This Reseller Agreement (the “Agreement”) is made and entered this __ day of ________ 20__ (the “Effective Date”) by and between Famatech Corp., a British Virgin Islands corporation (“Famatech”), and _______________________, a ___________________ corporation (“Reseller” and collectively with Famatech, the “Parties” and each, a “Party”).
1. Defined Terms:
1.1. “Affiliate” shall mean, with respect to a given Person, any person or entity which, directly or indirectly, controls, is controlled by, or is under common control with, the given Person.
1.2. “Agreement” shall have the meaning set forth in the preamble hereof.
1.3. “Confidential Information” shall mean any information, product, document or other material of any nature relating to or concerning Famatech, or any of its Affiliates, as a disclosing party, that is provided or made available to Reseller, as a recipient, either before or after the Effective Date, directly or indirectly in any form whatsoever, including in writing, orally, and machine readable, provided, however, that Confidential Information shall not include information which: (i) is already in the possession of Reseller before receipt from Famatech; (ii) is or becomes rightfully in the public domain without no fault of Reseller; (iii) is received by Reseller from a third party who or which is not under any obligation of confidentiality or restriction on use or disclosure concerning such information, or (iv) is disclosed under operation of law to the public or to a third party without a duty of confidentiality. If Reseller asserts one of the four exceptions to Confidential Information above, then Reseller shall prove such assertion by proper forms of documentary evidence.
1.4. “Documentation” shall mean user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials, maintenance, know how, text and graphic elements of all user interfaces and any modifications or upgrades of the foregoing, developed for use in connection with Software Products, whether in print or machine readable media and provided or made available by Famatech or any of its Affiliates from time to time.
1.5. “End User” shall mean any Person that downloads Software Products for his, her, or its use and not for redistribution.
1.6. “End User License Agreement” shall have the meaning set forth in Section 2.3 hereof.
1.7. “Famatech” shall have the meaning set forth in the preamble hereof.
1.8. “Famatech Domain Names” shall mean all domain names containing Famatech Marks.
1.9. “Famatech Marks” shall mean all proprietary indicia and designations of origin, trademarks, trade names, trade dress, service marks, service names, symbols, logos and other distinct brand elements that appear from time to time in properties, Software Products, ventures and services of Famatech or any of its Affiliates, together with any modifications to the foregoing made by such parties during the Term of this Agreement as set forth in Exhibit D hereof or as may be otherwise provided by Famatech.
1.10. “Famatech Software” shall mean any software described in Exhibit A, attached hereto and incorporated herein, only in Object Code and all related Documentation included therewith in any form and on any media and all fixes, updates, modifications, enhancements and new releases of the foregoing.
1.11. “Intellectual Property Rights” shall mean United States and worldwide rights in the Software Products to all (i) inventions (whether patentable or unpatentable, whether or not reduced to practice, and/or whether developed alone or jointly with others), all improvements thereto, patents, patent applications, patent disclosures, invention disclosures, and all other rights of inventorship, together with all reissue applications, continuation applications, continuation-in-part applications, divisional applications, petty patents, revisions, supplementary protection certificates, extensions and re-examinations thereof; (ii) Internet domain names, trademarks, service marks, trade dress, trade names, logos, designs, slogans, product names, corporate names, together with all of the goodwill symbolized thereby and associated therewith, and registrations and applications for registration thereof and renewals thereof; (iii) copyrights (registered or unregistered), copyrightable works, rights of authorship, and registrations and applications for registration thereof and renewals thereof; (iv) integrated circuit designs, cell libraries, electronic masks, net lists, simulations, mask works, semiconductor chip rights, and registrations and applications for registration thereof and renewals thereof; (v) computer software (including without limitation Source Code, Source Code engines, source data files, and Object Code), software development tools (including without limitation assemblers, compilers, converters, utilities, compression tools), libraries, algorithms, routines, subroutines, commented and documented code, programmer's notes, system architecture, logic flow, data, computer applications and operating programs, databases and documentation thereof; (vi) trade secrets and other confidential information (including without limitation ideas, technologies, know-how, manufacturing and production processes and techniques, research and development information, drawings, schematics, specifications, bill of material, designs, plans, proposals, technical data, pricing data, marketing data, financial records, customer and supplier lists, and other proprietary information), (vii) copies and tangible embodiments thereof (in whatever form or medium), and all modifications, enhancements and derivative works of any of the foregoing; (viii) all rights to sue and collect remedies for any past, present and future infringement of any of the foregoing, and rights of priority and protection of interests therein under the laws of any jurisdiction worldwide; (ix) all residual information resulting from access to or work with the Confidential Information and/or the Products; and (x) all moral rights.
1.12. “License Fees” shall mean the aggregate license fee for Software Products due to Famatech as indicated on Exhibit B.
1.13. “MSRP” shall mean Famatech’s ‘manufacturer’s suggested retail price’ for the End User license for each Software Product as set forth in Exhibit B, published by Famatech or its licensors, or a document substantially in the form of Exhibit B setting forth Famatech’s latest ‘manufacturer’s suggested retail price’ in accordance with Famatech’s then-current pricing policies provided to Reseller in accordance with Section 6.2 hereof.
1.14. “Object Code” shall mean computer programming code assembled or combined in magnetic or electronic binary form on software media which are readable and executable by a computer, but not generally readable by humans without Reverse Engineering and reverse-compiling.
1.15. “Party” and “Parties” shall have the meaning set forth in the preamble hereof.
1.16. “Person” means any individual, partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority.
1.17. “Promotional Materials” shall have the meaning set forth in Section 2.1(b) hereof.
1.18. “Reseller” shall have the meaning set forth in the preamble hereof.
1.19. “Reverse Engineering” shall mean the examination, disassembly, decompilation, decryption, simulation, code tracing of Object Code or executable code, debugging, or analysis of the Software Product or Confidential Information to determine its Source Code, structure, organization, internal design, constituent technologies, algorithms, encryption devices or any other Confidential Information.
1.20. “Sales Report” shall mean a report, in such form as Famatech from time to time shall specify, delivered together with each License Fees payment pursuant to Section 6.3 hereof, which shall set forth the calculation of the License Fees for the applicable fiscal period, licenses and maintenance agreement results for the month, the total number of copies of Software Products distributed and licensed to End Users and such other payment, license and maintenance agreement information reasonably requested by Famatech and in such form and format as is reasonably acceptable to Famatech.
1.21. “Software License” shall mean the rights to use a copy of the Software Product pursuant to the applicable End User License Agreement and Exhibit B hereof.
1.22. “Software Products” shall mean Famatech Software and all related Documentation included therewith in any form and on any media and all fixes, updates, modifications, enhancements of the foregoing.
1.23. “Source Code” shall mean the human-readable form of the computer programming code and related system documentation including all comments and any procedural code such as job control language.
1.24. “Suppliers” shall mean one or more of the entities from which the Software Products or rights to the Software Products may be or may have been obtained by Famatech.
1.25. “Term” shall have the meaning set forth in Section 10.1 hereof.
1.26. “Territory” shall mean the territory and/or segments of the markets as set forth in Exhibit C hereof.
2. Certain Rights Granted.
2.1. Grant by Famatech. Subject to the terms and conditions set forth herein, Famatech hereby grants to Reseller the following rights:
a). a non-exclusive non-transferable right to exhibit, market, demonstrate, distribute and sell the licenses to use Software Products to End Users, directly or through authorized sub-resellers throughout the Territory during the Term of this Agreement as provided herein;
b). the right to use, publish, and display the Famatech Marks: (i) on the Reseller web sites in connection with the posting of hyperlinks to the Software Products; (ii) in connection with Reseller’s development, use, reproduction in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about Software Products (“Promotional Materials”) and (iii) the right to reproduce an unlimited number of copies of the Documentation and other related materials for its own use provided that all titles, logos and copyrights are also reproduced;
c). if and as agreed in writing by Famatech, to customize Software Products for local distribution;
d). Reseller’s appointment as a Reseller is not transferable to any third party and any attempt to transfer such appointment shall be void and without effect. Nothing contained herein shall convey to Reseller any right to market or export the Software Products outside of the Territory, without prior written consent from Famatech; and.
e). Notwithstanding anything to the contrary herein, nothing in this Section 2.1 or this Agreement shall be construed as restricting Famatech or its Suppliers, licensors, distributors and resellers from marketing, licensing, or distributing any of the Software Products to distributors, sub-resellers, resellers or End Users in any form;
f). if and as agreed in writing by Famatech, to register and use some Famatech Domain Names only for publishing and promotion of Software Products.
2.2. Territory. Reseller may not market, sale or otherwise distribute any Software Products to any third party outside the Territory as indicated in Exhibit C, attached hereto and incorporated herein, without the prior written consent of Famatech, and Reseller shall refer to Famatech all inquiries and referrals received by Reseller regarding potential licenses of Software Products outside the Territory.
2.3. End User License. Reseller is authorized to offer, distribute and resell the licenses to use Software Products to End Users under the terms, conditions and restrictions as provided in an end user license agreement, as provided by Famatech in the Documentation (the “End User License Agreement”).
2.4. Delivery of Software Products. Upon the purchase by Reseller of Software Products in accordance with Section 6.1 Famatech shall promptly provide Reseller with Software Product license key which activates Software Products pursuant to the type and number of Software Licenses purchased by Reseller or on Reseller’s behalf and enables the full functionality of Software Products beyond the trial period.
2.5. Nature of Distribution. Famatech or, as the case may be, of its Suppliers or Affiliates retain ownership of the Software Products while extending the rights set forth in this Agreement. To the extent that any product contains or consists of software, technology or Intellectual Property Rights, Famatech grants only a license to use, reproduce, market and distribute the Software Products and does not transfer any right, title or interest to any such Software Product or any of Famatech’s Intellectual Property Rights to Reseller or End Users. Famatech shall sell Famatech Products to Reseller or End Users only to the extent that such products consist of non-software and tangible items on the terms specified herein. Use of the terms “sell,” “license,” “purchase,” “license fees” and “price” or derivatives thereof shall be interpreted in accordance with this Section 2.5.
3. Obligations of Reseller.
3.1. Ownership. Reseller agrees that all right, title, and interest in and to Products, including modifications, derivative works, developments, improvements, enhancements, and all Intellectual Property Rights are, and always shall remain, the sole and exclusive property of Famatech, Suppliers and/or their Affiliates, as applicable. No right to disclose, use, print, copy, or display Software Products in whole or in part is granted hereby, except as expressly provided herein. Famatech, Suppliers and/or their Affiliates, as the case may be, retain the right to market and distribute Software Products worldwide through retail, distribution, and any other marketing channels as Famatech, Suppliers and/or their Affiliates may deem appropriate. Nothing in this Agreement shall preclude Famatech, Suppliers and/or their Affiliates from marketing, distributing, licensing, selling, leasing, maintaining or servicing any Software Products worldwide through retail, distribution, and any other marketing channels as Famatech, Suppliers and/or their Affiliates, may deem appropriate with respect to any distributor, dealer or customer, including without limitation, any End Users, original equipment manufacturers, resellers or sub-resellers. Reseller hereby acknowledges that Famatech, Suppliers and/or their Affiliates, as the case may be, may modify, discontinue or add any Software Products in their sole discretion.
3.2. Promotional Efforts. Reseller shall use its best efforts to (i) promote vigorously and aggressively the marketing and distribution of Products in the Territory and agrees to prominently display therewith the Famatech Marks, and (ii) independently, or in co-operation with Famatech, seek out clients, identify, qualify, and secure licensing opportunities in the Territory, and (iii) follow the guidelines and obligations of the Reseller pursuant hereto, including without limitations Famatech’s MSRP’s policies. Reseller may advertise Software Products in advertising media of Reseller’s choice, provided that the primary audience or circulation is located in the Territory.
3.3. Limitation of Rights. Except as otherwise expressly set forth in this Agreement, Reseller, without Famatech’s advance written consent, which may be withheld at Famatech’s sole discretion, shall not (i) modify, decompile, disassemble, decrypt, extract, create derivative works of, or otherwise alter or Reverse Engineer any Software Product or any part thereof; (ii) reproduce any Software Product except as otherwise expressly provided herein.
3.4. Other Reseller’s Obligations. Reseller shall:
a). keep Confidential Information in strict confidence and shall not make use of Confidential Information for any purpose other than in connection with the Agreement;
b). notify Famatech if disclosure of Confidential Information by Reseller is necessary to comply with the requirements of any law, government order, regulation or legal process prior to such disclosure and Famatech’s request use best efforts to seek an appropriate protective order in connection with such legal process and, if unsuccessful, to use best efforts to assure that confidential treatment will be accorded to the disclosed Confidential Information;
c). comply with all applicable international, national, governmental, quasi governmental and/or local law and regulations in performing its duties or exercising its rights hereunder and assure that, in connection with performance of its obligations pursuant to this Agreement or arising or relating therefrom, no Software Product, Documentation, Confidential Information or any portion thereof, and any information relating thereto or to this Agreement, is exported, transshipped or re-exported, directly or indirectly, in violation of any applicable law and ensure that neither the Software Products nor the Documentation, underlying information or technology may be downloaded or otherwise exported or re-exported in violation of applicable embargo or export/import law, regulation or treaty;
d). represent Software Products and any information relating to Software Products accurately and fairly refrain from making any warranty, representation, or guarantees with respect to the specifications, features, or capabilities of Software Products, including without limitations warranties of functionality or performance, that are inconsistent with Software Product’s warranties and disclaimers contained in the Documentation and/or herein;
e). avoid any misleading or unethical business practices and shall not mask, frame, overlay, impair or otherwise materially alter, affect or impair the images, information, perception, service quality or security obtained from Famatech or any of its Affiliates;
f). comply with Famatech’s policy and guidelines concerning MSRP’s and upgrades;
g). not violate any third parties’ intellectual property rights and comply with its obligations relating to third party licenses;
h). keep and maintain accurate books, records, reports and customer data relating to Software Products; and
i). cooperate with Famatech in providing assistance in connection with any matter pertaining to the protection of the Famatech Software Products, or any Software Products liability action taken against Famatech, whether in the courts, administrative agencies or otherwise.
4. Obligations of Famatech.
4.1. Obligations of Famatech. Famatech shall:
a). provide Software Products’ related second level technical support to Reseller via email, open discussion forums, knowledge base articles and by other electronic means provided that all support requests are sent to Famatech in English; and
b). take all necessary steps to ensure compliance by its employees or its other representatives with Famatech’s obligations under this Agreement.
5. Proprietary Notices; Trademarks.
5.1. Copyright Notices and End User License Agreement. Reseller will reproduce all copyright and proprietary notices resident in the master copies of the Famatech Software Products. Use of the Software Products by the End User shall be governed by the End User License Agreement. The Parties agree that Software Products shall be configured to require the End User to accept the terms of license electronically prior to the first use of the Software Products by the user as provided in Section 2.3 above.
5.2. Famatech Marks. The Parties hereto agree that any and all Famatech Marks are and shall remain the exclusive property of Famatech or, as the case may be, of its Suppliers or Affiliates, and Famatech grants Reseller a limited license to reproduce the Famatech Marks only to the extent expressly provided herein.
5.3. Use of Famatech Marks. Reseller acknowledges that any right to use the Famatech Marks is conditioned upon Reseller’s observance of the provisions of this Agreement regarding the marketing and advertising of the Products. Reseller shall display the Famatech Marks in accordance with Famatech’s guidelines for using trademarks as in effect from time to time and as provided to Reseller. Notwithstanding the foregoing, any change by Famatech, Suppliers or any of their Affiliates to the Famatech Marks guidelines which affects Reseller’s usage shall not apply retroactively to Reseller’s past usage which conformed to the then current guidelines and Famatech shall permit Reseller a reasonable period of time in which to conform to the new guidelines. Famatech retains the right to specify and approve the quality and standards of all materials on which the Famatech Marks are displayed and to inspect from time to time samples of such materials. If requested by Famatech, additional agreements and conditions regarding manufacture and quality control will be set forth in a separate Addendum to this Agreement. Failure of Reseller to adhere to such standards of quality as provided herein shall be grounds for Famatech to terminate Reseller’s rights to use such Famatech Marks and to terminate this Agreement. All Promotional Materials and all other advertising, packaging and similar items used by Reseller concerning the Products shall bear such trademark notices and legends as Famatech may reasonably require pursuant to this Section 5.2. Reseller shall not use, alter or exploit in any manner any of the Famatech Marks, except in such manner and media as Famatech may consent to in writing.
6. License Fees and Payments.
6.1. License Fees. Famatech will sell to Reseller, during the Term of this Agreement, any number of End User licenses for Software Products at the purchase prices and with the discounts established in accordance with Exhibit B attached hereto (“License Fees”).
6.2. MSRP. MSRP is established by Famatech for each Software Products and indicated on Exhibit B to this Agreement attached and incorporated herein. Famatech may change MSRP from time to time by providing a 30-day notice to Reseller in accordance with Section 10.4 hereof.
6.3. License Fees. Unless otherwise agreed or unless Reseller acquires the Software Product license for resale to End User directly from Famatech’s site subject to applicable Reseller discounts, Reseller shall, within fifteen (15) days after receipt of an invoice from Famatech, remit to Famatech an amount equal to the invoice amount without offset, credit or deduction of any kind, and electronically transmit to Famatech monthly Sales Report.
6.4. Right to Audit; Understated Payments. Famatech or its designated agent may, at Famatech’s sole expense (except as provided herein), during normal business hours, examine and/or audit the books and records of Reseller relating to payments due and Software Products distributed under this Agreement. If any examination or audit should reveal that the License Fees due to Famatech under this Agreement for any period was understated in any Sales Report, then Reseller shall pay to Famatech immediately upon demand the amount understated and any additional payments and fees due with respect thereto. If any examination or audit discloses in any Sales Report an understatement of five (5%) or more, Reseller shall also reimburse Famatech for any and all costs and expenses connected with the examination or audit (including without limitation, reasonable accountants’ and attorney’s fees). In the event that any examination or audit discloses or audit discloses an understatement of ten percent (10%) or more, Reseller shall also pay to Famatech as an underpayment penalty an amount equal to the amount of the underpayment. In the event any of the understatement of ten percent (10%) or more is determined to be intentional, Famatech may at its option terminate this Agreement immediately upon written notice to Reseller. The foregoing remedies shall be in addition to any other remedies Famatech may have hereunder. No provision of this Section 6.4 shall be construed as limiting or restricting any Famatech’s rights or remedies provided elsewhere in this Agreement or by law.
6.5. Taxes and Other Payments. All disbursements, prices and fees payable to Famatech hereunder, including the License Fees, are exclusive of all federal, state, municipal, or other government, excise, sales, use, occupational, or like taxes now in force or enacted in the future, with the sole exception of Famatech’s income taxes, and any Resellers liability for all licensing and royalty fees to third parties (other than for any Software Products or Famatech Marks) that accrue in connection with the Agreement. Reseller shall cover all fees and processing expenses for chargebacks, frauds, and refunds. Notwithstanding anything to the contrary herein, Reseller shall be solely responsible for any value added taxes collections, payments and related registrations arising in any way out of or relating to this Agreement. If a certificate of exemption or similar document or proceeding is to be made in order to exempt the sale from sales or use tax liability, Reseller will obtain and provide Famatech with such certificate, document or proceeding.
7. Warranties.
7.1. Reseller Representations and Warranties. Dealer represents and warrants that:
a). it is a corporation duly created, formed and organized, validly existing and in good standing under the laws of the jurisdiction of its creation, formation, or organization;
b). there is no pending or threatened action (or basis therefor) for the dissolution, liquidation, or insolvency of Reseller;
c). it is duly qualified or licensed as a foreign corporation in each jurisdiction in which its assets are owned or leased, or the nature of its business makes such qualification or licensing necessary;
d). it has all requisite corporate power and authority necessary to execute and deliver the Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby;
e). the Agreement as executed and delivered, constitutes a valid, legal and binding obligation of Reseller enforceable against Reseller in accordance with its terms, subject to any law affecting creditors’ rights;
f). the execution, delivery and performance by Reseller of the Agreement do not and will not (i) violate any law (including, without limitation, privacy, export control and obscenity laws), (ii) violate any charter document of Dealer, (iii) violate any agreement or order to which Reseller is a party or by which Dealer or its assets are bound, or (iv) require any consent from any Person.
8. Warranties and Disclaimers.
8.1. Famatech’s warranties as to Software Products are limited to the warranties set forth in the Documentation and/or End User License Agreement.
8.2. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, SOFTWARE PRODUCTS ARE PROVIDED “AS IS AND WITH ALL FAULTS” AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, FAMATECH DISCLAIMS ALL OTHER WARRANTIES, OF ANY KIND, EITHER EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. FAMATECH DOES NOT WARRANT THAT THE SOFTWARE PRODUCTS WILL MEET RESELLER’S OR END USERS’ REQUIREMENTS OR WILL OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED BY RESELLER OR END USER OR THAT THE OPERATION OF THE SOFTWARE PRODUCTS WILL BE SECURE, ERROR-FREE, OR UNINTERRUPTED, AND FAMATECH HEREBY DISCLAIMS ANY AND ALL LIABILITY ON ACCOUNT THEREOF TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
8.3. EXCLUSIONS OF DAMAGES AND LIABILITY. IN NO EVENT WILL FAMATECH BE LIABLE TO RESELLER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY FORM OR THEORY OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, EQUITY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, OVERHEAD, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO ALL CIRCUMSTANCES. Waiver of a breach of any provision of this Agreement does not constitute a waiver of any other breach of the same provision or any other provision of this Agreement.
9. Indemnification.
9.1. Indemnification by Reseller. Reseller shall indemnify, defend, and hold Famatech and its directors, officers, employees, agents and attorneys harmless from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, or settlements, including all reasonable attorney’s fees, and expenses related thereto, directly or indirectly resulting from, relating to, arising out of, or attributable to or based upon:
a). any statements made by Reseller or its employees or agents with respect to Software Products, except for statements that are a direct and correct reference to information in the Documentation and marketing materials provided by Famatech for use in connection with Software Products;
b). any breach or alleged breach by Reseller of any of its obligation, covenant or warranty hereunder; and
c). the modification of Software Products by Reseller
9.2. Notification Regarding Claims. Famatech agrees to notify Reseller of any claim giving rise to Reseller indemnification obligation under Section 8.1 and furnish Reseller with a copy of each communication, notice, or other action relating to such claim. Failure to notify Reseller will not relieve Reseller of any liability hereunder that it may have under Section 8.1, except to the extent the defense of such claim is materially and irrevocably prejudiced by Famatech’s failure to give such notice. Reseller has the right to assume the sole authority to conduct the trial or settlement of such claim or any negotiations related thereto. Famatech will provide reasonable information and assistance as requested by Reseller in connection with such claim or suit and Famatech, at its sole discretion, will have the option to be represented by separate legal counsel.
10. Term and Termination.
10.1. Term. The term of this Agreement shall commence as of the Effective Date set forth above, and shall continue for a period of one (1) year and thereafter this Agreement shall be automatically renewed for successive one year periods unless written notice of termination is given by either party sixty (60) days prior to the end of any one year period (as so extended, the “Term”).
10.2. Termination.
a). Either Party may terminate this Agreement by:
i). mutual written consent at any time;
ii). immediately upon notice, if the other Party declares insolvency or bankruptcy;
iii). immediately upon notice, if a petition is filed in any court and not dismissed in ninety (90) days to declare the other Party bankrupt or for the other Party’s reorganization under bankruptcy, insolvency, reorganization, moratorium, or other laws relating to or affecting the rights of creditors;
iv). immediately upon notice, if the other Party consents to the appointment of a trustee in bankruptcy or a receiver or similar entity; or
v). at its sole discretion by giving ninety (90) days prior written notice.
b). Famatech may terminate this Agreement by:
i). giving notice to Reseller at any time if Reseller has breached any representation, warranty, obligation or covenant contained in this Agreement this breach has not been cured within a 30 day period;
ii). upon notice to Reseller if Reseller ceases to carry on business, or takes any action to liquidate its assets, or stops making payments in the usual course of business, provided that the foregoing will not be construed so as to prohibit a bona fide reorganization of Reseller;
iii). Famatech may terminate this Agreement immediately upon notice as provided in Section 5.2; and
iv). if any legal proceeding is initiated by a third party and not dismissed within thirty (30) days alleging that (a) Dealer violated any applicable material laws, or (b) Dealer has interfered with, infringed upon, misappropriated, or otherwise violate or come into conflict with any other Person’s intellectual property rights.
10.3. Actions upon Termination. In the event of termination or expiration of this Agreement, Reseller shall:
a). immediately cease all use of Famatech Marks;
b). calculate and pay to Famatech the License Fees through the date of termination and any other amounts due Famatech hereunder; and
c). maintain all books, records, business reports and other reports relating to the Software Products for a period not less than two (2) years and permit Famatech to inspect such documents as provided in Section 6.4 hereof.
d). Within 30 days after the Agreement termination transfer all Famatech Domain Names to Famatech or its affiliates or other companies designated by Famatech.
10.4. Survival of Certain Provisions. Notwithstanding any provisions to the contrary herein, the provisions of Sections 3.1, 3.3, 3.4(a)-(b), 5.2, 6.4 (for a period of two years), 6.5, 8, 9, 10.3, 10.4, and 11 shall survive the termination or expiration of the Agreement and continue according to their terms and such termination or expiration shall not release the Parties of their respective obligations with respect to Confidential Information or Intellectual Property Rights or any duties, liabilities or obligations which by the terms hereof or in context are to survive termination; all licenses properly granted to End Users pursuant to the then-existing End User License Agreements shall continue in force and effect in accordance with the terms thereof and the Software Products already distributed shall remain in use under the terms of the End User License Agreements.
11. Miscellaneous Provisions.
11.1. Assignment. This Agreement may not be assigned, in whole or in part, by either Party without the prior written consent of the other Party, provided, however, that Famatech shall have the right to assign this Agreement to its Affiliates without Reseller’s prior consent by giving notice to Reseller. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
11.2. Publicity. The Parties shall work together to issue publicity and general marketing communications concerning their relationship and other mutually agreed-upon matters.
11.3. Independent Contractors. The relationship of Famatech and Reseller established by this Agreement is that of independent contractors and nothing contained in this Agreement shall be construed to (i) give either Party the power to direct and control the day-to-day activities of the other, (ii) constitute the Parties as partners, joint venturers, franchisor-franchisee, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow to create or assume any obligation on behalf of Famatech for any purpose whatsoever. Except for the rights of Famatech set forth in this Agreement, shall be solely responsible for developing and implementing its business and marketing plans and its operations.
11.4. Notices. All claims, instructions, consents, designations, notices, waivers, and other communications in connection with the Agreement will be in writing. Such Notifications will be deemed properly given (a) when received if delivered personally or by an internationally recognized courier service, (b) if delivered by facsimile transmission when the appropriate telecopy confirmation is received; (c) upon the receipt of the electronic transmission by the server of the recipient when transmitted by electronic mail
11.5. Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the Commonwealth of Virginia, USA without giving effect to the principles of conflicts of law.
11.6. Severability. If any one or more of the provisions of this Agreement is ruled to be wholly or partly invalid or unenforceable by a court or other government body of competent jurisdiction then: (a) the validity and enforceability of all provisions of this Agreement not ruled to be invalid or unenforceable shall be unaffected; (b) the effect of the ruling shall be limited to the jurisdiction of the court or other government body making the ruling; (c) the provision(s) held wholly or partly invalid or unenforceable shall be deemed amended, and the court or other government body is authorized to amend and to reform the provision(s) to the minimum extent necessary to render it valid and enforceable in conformity with the Parties’ intent as manifested in this Agreement and a provision having a similar economic effect shall be substituted; and (d) if the ruling and/or the controlling principle of law or equity leading to the ruling is subsequently overruled, modified, or amended by legislative, judicial, or administrative action, then the provision(s) in question as originally set forth in the Agreement shall be deemed valid and enforceable to the maximum extent permitted by the new controlling principal of law or equity.
11.7. No Waiver. No provision of the Agreement will be considered waived unless such waiver is in writing and signed by the Party that benefits from the enforcement of such provision. No waiver of any provision in the Agreement, however, will be deemed a waiver of a subsequent breach of such provision or a waiver of a similar provision. In addition, a waiver of any breach or a failure to enforce any term or condition of the Agreement will not in any way affect, limit, or waive a Party’s rights under the Agreement at any time to enforce strict compliance thereafter with every term and condition of the Agreement.
11.8. No Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties and, except as otherwise provided herein, no other Person will have any right, interest, or claim under this Agreement.
11.9. Entire Agreement. The Agreement, together with the exhibits, attachments and appendices hereto, constitutes the entire agreement and understanding between the Parties or any of their Affiliates with respect to its subject matters and supersedes all prior agreements, understandings and representations, written or oral, to the extent they relate in any way to the subject matter of the Agreement.
11.10. Counterparts. The Agreement may be separately executed by the Parties in two (2) or more counterparts and all such counterparts shall be deemed an original, but all of which together shall constitute one and the same instrument and will be binding on the Parties as if they had originally signed one copy of the Agreement. Delivery of a copy of this Agreement or such other document bearing an original signature by facsimile transmission (whether directly from one facsimile device to another by means of a dial-up connection or whether mediated by the worldwide web), by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature. “Originally signed” or “original signature” means or refers to a signature that has not been mechanically or electronically reproduced.
IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly authorized representatives as of the date first set forth above.
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Famatech Corp.
By: __________________________________ |
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By: __________________________________ |
EXHIBIT A
FAMATECH SOFTWARE
Radmin 3.x Remote Control Software
EXHIBIT B
SOFTWARE PRODUCTS LICENSE FEES/MSRP’s SCHEDULE
Product: Radmin 3.x Remote Control Software
Radmin 3.x Remote Control consists of two separate modules: Radmin Server 3.x (which needs to be installed on the remote computer) and Radmin Viewer 3.x (which needs to be installed on the local computer). Only Radmin Server 3.x is licensed. Radmin Viewer 3.x is free of charge and can be used on any number of computers.
Radmin 3.x – Standard Licensing |
Price |
Price per |
Valid for |
||
USD |
EUR |
GBP |
|||
Radmin 3 Standard license |
49.00 |
46.20 |
33.20 |
one license |
single remote PC |
Radmin 3 50-license package |
1,490.00 |
1,405.00 |
1,010.00 |
one package |
50 remote PC's |
Radmin 3 100-license package |
2,490.00 |
2,348.00 |
1,688.00 |
one package |
100 remote PC's |
| Radmin 3 150-license package | 3,490.00 | 3,292.00 | 2,366.00 | one package | 150 remote PC's |
| Radmin 3 Volume license [200-399 licenses] | 22.00 | 20.70 | 14.90 | one license | 200-399 remote PC's |
| Radmin 3 Volume license [400-999 licenses] | 20.00 | 18.90 | 13.60 | one license | 400-999 remote PC's |
| Radmin 3 Volume license [1000-1999 licenses] | 17.40 | 16.40 | 11.80 | one license | 1000-1999 remote PC's |
| Radmin 3 Volume license [2000-3999 licenses] | 15.70 | 14.80 | 10.60 | one license | 2000-3999 remote PC's |
| Radmin 3 Volume license [4000-7999 licenses] | 14.10 | 13.30 | 9.60 | one license | 4000-7999 remote PC's |
| Radmin 3 Volume license [8000-15999 licenses] | 12.70 | 12.00 | 8.60 | one license | 8000-15999 remote PC's |
| Radmin 3 Volume license [from 16,000 licenses] | 11.40 | 10.80 | 7.70 | one license | from 16,000 remote PC's |
| Radmin 3 - Additional 5-Client Access license | 40.00 | 37.70 | 27.10 | one license | up to 5 additional connections to Radmin Server 3.x |
| Remote Administrator CD | 15.00 | 14.10 | 10.20 | one CD | - |
Radmin 3.x – Help Desk Licensing |
Price |
Price per |
Valid for |
||
USD |
EUR |
GBP |
|||
Radmin 3 Help Desk license |
33.00 |
31.10 |
22.40 |
one license |
50-99 remote PC's |
| Radmin 3 Help Desk license [100-199 licenses] |
28.00 | 26.40 | 19.00 | one license | 100-199 remote PC's |
| Radmin 3 Help Desk license [200-399 licenses] |
24.00 | 22.60 | 16.30 | one license | 200-399 remote PC's |
| Radmin 3 Help Desk license [400-999 licenses] |
22.00 | 20.70 | 14.90 | one license | 400-999 remote PC's |
| Radmin 3 Help Desk license [1,000-9,999 licenses] |
20.00 | 18.90 | 13.60 | one license | 1,000-9,999 remote PC's |
| Radmin 3 Help Desk license [from 10,000 licenses] | 19.00 | 17.90 | 12.90 | one license | from 10,000 remote PC's |
Radmin 3.x – Upgrade Licensing |
Price |
Price per |
Valid for |
|||
Radmin 2.2 license |
Radmin 3.x license after upgrade |
USD |
EUR |
GBP |
||
1 single license |
2 Standard licenses |
13.00 |
12.30 |
8.80 |
one license |
2 remote PC's |
25 single licenses |
50-license package |
440.00 |
415.00 |
298.00 |
one package |
50 remote PC's |
50-license package |
100-license package |
740.00 |
698.00 |
505.00 |
one package |
100 remote PC's |
100-license package |
200 Volume licenses |
6.60 |
6.20 |
4.50 |
one license |
200 remote PC's |
200-license package |
400 Volume licenses |
6.00 |
5.70 |
4.10 |
one license |
400 remote PC's |
200-499 Volume licenses |
400-998 Volume licenses |
6.00 |
5.70 |
4.10 |
one license |
400-998 remote PC's |
500-4,999 Volume licenses |
1,000-9,998 Volume licenses |
5.40 |
5.10 |
3.70 |
one license |
1,000-9,998 remote PC's |
from 5,000 Volume licenses |
from 10,000 Volume licenses |
5.10 |
4.80 |
3.50 |
one license |
from 10,000 remote PC's |
Radmin 3.x – Help Desk Upgrade Licensing |
Price |
Price per |
Valid for |
|||
Radmin 2.2 Help Desk license |
Radmin 3.x Help Desk license after upgrade |
USD |
EUR |
GBP |
||
50-99 licenses |
50-99 licenses |
9.70 |
9.10 |
6.60 |
one license |
50-99 remote PC's |
100-199 licenses |
100-199 licenses |
8.10 |
7.60 |
5.50 |
one license |
100-199 remote PC's |
200-399 licenses |
200-399 licenses |
7.30 |
6.90 |
4.90 |
one license |
200-399 remote PC's |
400-999 licenses |
400-999 licenses |
6.60 |
6.20 |
4.50 |
one license |
400-999 remote PC's |
1,000-9,999 licenses |
1,000-9,999 licenses |
5.90 |
5.60 |
4.00 |
one license |
1,000-9,999 remote PC's |
from 10,000 licenses |
from 10,000 licenses |
5.60 |
5.30 |
3.80 |
one license |
from 10,000 remote PC's |
For more information about licenses and additional available options, please refer to this webpage http://www.radmin.com/ordering/
Other: Radmin Software - Phone Support
License Name |
Valid For |
Price for 2 Years |
||
USD |
EUR |
GBP |
||
Silver Phone Support Package |
6 incidents |
200.00 |
189.00 |
136.00 |
Gold Phone Support Package |
unlimited number of incidents |
600.00 |
566.00 |
407.00 |
The pricing set forth above shall change in accordance with and only due to published public price change published by Famatech and offered to its customers.
Remote Administrator CD and Phone Support Package are not sold separately and can only be purchased in addition to one of the licenses above.
Reseller discount 20% (reseller discount is not to be added to an on-line affiliate discount)
EXHIBIT C
TERRITORY
_____________________
EXHIBIT D
FAMATECH MARKS
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