RESELLER AGREEMENT
This
Reseller Agreement (this
“Agreement”) is made and entered into this 8th
day of
June, 2007 (the “Effective Date”) by and between Transparensee Systems, Inc., a
Delaware corporation having its principal place of business at 000 Xxxx,
0xx
Xxxxxx,
#0X, Xxx Xxxx, Xxx Xxxx 00000 (“Licensor”), and DigitalFX International, Inc., a
Florida corporation having its principal place of business at 0000 Xxxx Xxxxxxx
Xxxx, Xxxxx #0, Xxx Xxxxx, Xxxxxx 00000 (“Reseller”).
1.
DEFINITIONS:
(a)
"Confidential Information" means the confidential and/or proprietary information
of the licensing party (whether such information is or is not marked or
identified as confidential or proprietary), including software (in object
and
source code form), inventions (whether or not patentable), trade secrets,
ideas,
know-how, techniques, processes, formulas, algorithms, schematics, research,
development, software design and architecture, testing procedures, design
and
functional specifications, problem reports and performance information,
marketing and financial plans and data. "Confidential Information" does not
include information that Reseller can show through documentary evidence:
(a) is
or becomes publicly known through no fault, act or omission of Reseller;
(b) is
known by or in the possession of Reseller prior to its receipt from Licensor;
or
(c) is lawfully obtained from a third party who rightfully possesses the
information (without confidentiality or proprietary restriction) and who
did not
receive it, directly or indirectly, from Licensor.
(b)
"Documentation" means Licensor's standard end user documentation for the
Licensed Software, as modified from time to time by Licensor in its sole
discretion.
(c)
"End
User" means a licensee of the Licensed Software who acquires such software
for
normal personal use or business end use and not for resale or
distribution.
(d)
"End
User License" means Licensor's standard end user license agreement for the
Licensed Software, as modified from time to time by Licensor in its sole
discretion.
(e)
"Intellectual Property Rights" means all present and future copyrights,
trademark rights, service xxxx rights, trade secret rights, patent rights,
moral
rights, and other intellectual property and proprietary rights recognized
in any
jurisdiction.
(f)
“License Agreement” means the Software License and Services Agreement entered
into by the parties hereto, of even date herewith, pursuant to which Licensor
licenses to Reseller the Licensed Software for the uses set forth
therein.
(g)
"Licensed Software" means the software(s) made available by Licensor under
this
Agreement, and under the License Agreement.
(h)
"Product Unit" means a single retail-ready package containing one (1) copy
of
the Licensed Software in object code format stored on a single tangible medium,
or delivered electronically, the End User License, Documentation, packaging,
and/or other items as determined by Licensor in its sole
discretion.
(i)
"Term" shall have the meaning set forth in Section 7.
(j)
"Territory" means worldwide, except to the extent limited by U.S. export
laws
and the applicable import and export laws of foreign jurisdictions, as described
in Section 10.
2.
APPOINTMENT; LICENSE:
(a)
Appointment.
Subject
to the terms and conditions set forth herein, Licensor hereby appoints Reseller
as Licensor's independent, authorized, non-exclusive reseller of the Product
Units in the Territory during the Term, and Reseller hereby accepts such
appointment.
(b)
License
Grant.
Subject
to the terms and conditions of this Agreement, Licensor hereby grants to
Reseller a non-exclusive license that may be solely exercised within the
Territory: (i) to distribute directly to End Users in the Territory the Product
Units ordered pursuant to Section 5 for use in accordance with the terms
and
conditions of the End User Agreement; and (ii) to use, install and operate
the
Licensed Software (solely on Reseller's systems) for the sole purpose of:
(a)
testing and evaluation of the Licensed Software; (b) training Reseller's
personnel and marketing affiliates in the marketing and sale of the Licensed
Software; and (c) demonstrating and promoting the Licensed Software to potential
End Users. The rights granted hereunder may not be sublicensed or assigned
except to Reseller’s marketing affiliates and subdistributors solely for the
purpose of licensing, distributing and/or selling the Product Units to End
Users. Licensor reserves the right, from time to time and in its sole
discretion, inside or outside the Territory, to increase or decrease the
number
of authorized resellers of the Product Units and to distribute Product Units
using its own personnel or independent sales representatives or via any other
distribution channel.
1
(c)
Restrictions
on Use.
Reseller
shall not, and shall ensure that other third parties shall not (i) modify,
adapt, alter, translate, copy, perform and display (publicly or otherwise)
or
create derivative works based on the Licensed Software; (ii) merge or bundle
the
Licensed Software with other software; (iii) sublicense, lease, rent, or
loan
the Licensed Software; (iv) except as expressly permitted under Section 2(b),
transfer the Licensed Software to any third party; (v) provide the use of
the
Licensed Software in any service bureau, rental or time-sharing arrangement;
(vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive
the source code for the Licensed Software (except as expressly permitted
pursuant to Section 2(b)(ii)); or (vii) remove, modify or obscure any
identification or proprietary or restrictive rights markings or notices from
the
Product Units or any component thereof. Reseller acknowledges that embodied
in
the Licensed Software is an electronic diagnostic feature (the “Feature”) that
automatically sends Licensor a message that tells Licensor when the Licensed
Software is operating and where the Licensed Software is being used (the
“Information”). Reseller agrees not to delete the Feature or to build a firewall
that prevents the Feature from sending the Information to Licensor.
(d)
Restrictions
on Distribution.
(i)
Territory.
Reseller
acknowledges that Reseller is not granted any rights under this Agreement
to
distribute the Product Units outside the Territory. Reseller will not promote,
market, or advertise the Product Units outside the Territory, or license,
distribute or deliver the Product Units to any party (including End Users)
located outside the Territory, without obtaining prior written consent from
Licensor. If Reseller receives from any party located outside the Territory
an
order to license the Product Units, Reseller will not accept such order and
will
promptly refer such order to Licensor.
(ii)
Marketing
Agents.
Reseller
may authorize or appoint members of its multi-level marketing network, or
other
dealers, agents, representatives, sub-distributors, value added resellers,
systems integrators or other third parties to distribute or sublicense the
Product Units.
(iii)
No
Sale.
Any
references to "sale(s)," "resale(s)," "selling" or "reselling" of the Product
Units in this Agreement refer only to the sale and transfer of title of the
medium on which the Licensed Software is stored and no title to the Licensed
Software is transferred. The Licensed Software may only be distributed under
this Agreement as expressly provided in this Section 2.
(iv)
No
Changes to Units.
Reseller
shall distribute the Product Units in the form delivered by Licensor, unopened,
unmodified and with the End User License, User Documentation, packaging,
and/or
other items intact.
(e)
IP
Ownership.
Subject
to the terms and conditions of Section 2(b)(ii) below, Licensor shall own
all
right, title and interest, including all Intellectual Property Rights, in
and to
the Licensed Software, End User License, Documentation, packaging and other
items contained within the Product Units ("Licensor Items"). All rights in
and
to the Licensor Items not expressly granted to Reseller under this Agreement
are
reserved by Licensor. Reseller shall not remove, alter, or obscure any
proprietary notices (including copyright notices) of Licensor or the End
User
License included in or with the Licensed Software. Reseller shall take all
reasonable measures to protect Licensor's Intellectual Property Rights in
the
Licensed Software, including providing assistance and measures as are reasonably
requested by Licensor from time to time.
3.
TRADEMARK LICENSE:
Subject
to the terms and conditions of this Agreement, Licensor hereby grants to
Reseller a non-exclusive, non-transferable, revocable license, without the
right
to sublicense, only in the Territory, to use, display and reproduce the
trademarks, service marks, or trade names owned by Licensor and placed on
the
applicable Product Unit or otherwise used in connection with the applicable
Product Unit by Licensor, including without limitation the Discovery Search
EngineTM
("Licensor Trademarks"), solely in connection with marketing, advertising,
promotion, and distribution of the Product Units during the Term of this
Agreement. Reseller's use will be in accordance with Licensor's guidelines
and
policies regarding advertising and trademark usage as established from time
to
time ("Trademark Guidelines"). All rights of Licensor in and to such Licensor
Trademarks not expressly granted under this Section 3(a) are reserved by
Licensor.
2
4.
SUPPORT OBLIGATIONS; MARKETING:
(a)
Reseller
Support:
Licensor
shall provide support to Reseller on terms at least as favorable as the terms
under which Licensor provides support to any of its licensees of the Licensed
Software.
(b)
Marketing:
Reseller
shall use commercially reasonable efforts to successfully market, promote
and
solicit orders for the Product Units on a continuing basis, and shall bear
all
costs incurred by Reseller in the marketing, promotion and distribution of
the
Product Units. Licensor assumes no responsibility for any marketing materials
used by Reseller unless such materials were prepared and provided by Licensor
to
Reseller. In marketing and distributing the Product Units, Reseller shall:
(i)
conduct business in a manner that reflects favorably on the Product Units
and
the good name, goodwill and reputation of Licensor; and (ii) make no
representations with respect to the Product Units that are inconsistent with
the
literature distributed by Licensor, including without limitation any warranties
or disclaimers contained in such literature. Reseller shall include in all
advertising all applicable copyright, trademark and other proprietary or
restrictive rights notices as they appear on or in the Product
Units.
5.
ORDERS, PAYMENT AND SHIPMENT:
(a)
Orders
and Payment.
Reseller
shall order Product Units for resale and pay Licensor a Product Unit license
fee
equal to *****% of the gross revenue received by Reseller for each Product
Unit,
in accordance with the procedures, pricing information and other terms and
conditions set forth on Exhibit A attached hereto, which procedures, pricing
information and terms and conditions are incorporated herein.
(b)
Tax.
Reseller
will provide a resale certificate or other certificate, document, or other
evidence of exemption for payment or withholding of use or sales taxes, tariffs,
duties or assessments as requested by Licensor in order to exempt the
distribution or licensing of Product Units from any such liability. Reseller
shall pay, and shall indemnify and hold Licensor harmless from and against,
all
taxes, duties and levies directly imposed by all foreign, federal, state,
local
or other taxing authorities (including, without limitation, export, sales,
use,
excise, and valued-added taxes) based on the transactions or payments under
this
Agreement, other than taxes imposed or based on Licensor's net income.
(c)
Books
and Records.
During
the Term of this Agreement, and for one (1) year after the termination of
this
Agreement, Reseller shall maintain at its principal office true and accurate
books and records as sufficient to confirm Reseller's compliance with this
Agreement. Reseller shall, during usual business hours, permit Licensor or
its
agents, at Licensor's expense and upon ten (10) days prior written notice,
to
inspect and make copies of such books and records for the purpose of verifying
Reseller's compliance with this Agreement. If such inspection reveals a material
breach of this Agreement by Reseller, then Reseller shall pay for the cost
of
such inspection in addition to any other remedies available to Licensor for
such
breach.
6.
WARRANTY; DISCLAIMER:
(a)
Warranty
to End Users.
Except
for warranties made by Licensor under the License Agreement, any warranties
regarding the Licensed Software are made to End Users only, pursuant to the
terms and conditions of the End User License, and no warranty is extended
to
Reseller under this Agreement.
(b)
No
Warranty on Behalf of Licensor.
Reseller
shall not make any representation or warranty, express or implied, binding
or
purporting to bind Licensor in connection with the Product Units and/or the
Licensed Software, including but not limited to any representations or
warranties relating to the performance, condition, title, non-infringement,
merchantability, fitness for a particular purpose, system integration, or
data
accuracy of any of the foregoing.
(c)
DISCLAIMER.
EXCEPT
FOR THE WARRANTIES AND RESPRESENTATIONS MADE TO RESELLER AS LICENSEE UNDER
THE
LICENSE AGREEMENT, AND THE EXPRESS WARRANTIES, IF ANY, MADE DIRECTLY TO END
USERS PURSUANT TO THE END USER LICENSE, LICENSOR MAKES NO WARRANTIES WITH
RESPECT TO ANY PRODUCTS, LICENSE OR SERVICE, INCLUDING WITHOUT LIMITATION,
THE
LICENSOR ITEMS AND THE LICENSOR TRADEMARKS, AND HEREBY DISCLAIMS ALL STATUTORY
OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT,
AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE
OR
USAGE OF TRADE. LICENSOR DOES NOT WARRANT THAT THE LICENSOR ITEMS SHALL MEET
ANY
END USER REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED SOFTWARE SHALL
BE
UNINTERRUPTED OR ERROR-FREE. RESELLER IS NOT AUTHORIZED TO MAKE ANY OTHER
WARRANTY OR REPRESENTATION CONCERNING THE PERFORMANCE OF THE LICENSED SOFTWARE
OTHER THAN AS PROVIDED, IF AT ALL, IN THE END USER LICENSE. RESELLER SHALL
MAKE
NO OTHER WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF LICENSOR. NOTWITHSTANDING
ANYTHING IN THIS AGREEMENT, IN NO EVENT SHALL LICENSOR'S AGGREGATE LIABILITY
ARISING UNDER, WITH RESPECT TO OR IN CONNECTION WITH THIS AGREEMENT EXCEED
THE
TOTAL MONIES PAID BY RESELLER TO LICENSOR UNDER THIS AGREEMENT; PROVIDED
THAT
NOTHING IN THIS AGREEMENT SHALL REDUCE ANY LIABILITY OF LICENSOR UNDER THE
LICENSE AGREEMENT.
3
(d)
DAMAGES.
LICENSOR
SHALL IN NO EVENT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT
UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), INDEMNITY
OR OTHER LEGAL, CONTRACTUAL OR EQUITABLE THEORY FOR: (i) ANY INDIRECT,
SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND
WHETHER OR NOT ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES; OR
(ii) DAMAGES FOR LOST PROFITS OR LOST DATA.
7.
TERM AND TERMINATION:
(a)
Term.
This
Agreement shall commence on the date that Reseller agrees to this Agreement
("Effective Date") and will remain in full force and effect for an initial
term
of two (2) years, to be co-terminus with the Term of the License Agreement,
unless earlier terminated pursuant to the terms of this Agreement. The Term
shall automatically renew for one successive renewal term ("Renewal Term")
if
the License Agreement shall be renewed for a Renewal Term.
(b)
Termination
for Cause.
Either
party may terminate this Agreement, effective immediately upon written notice
to
the other party if: (i) the other party materially breaches any term of this
Agreement and fails to cure such breach, which is a curable breach, within
thirty (30) days after receipt of the non-breaching party's written notice
of
such breach; (ii) the other party materially breaches any term of this Agreement
which is not capable of cure; (iii) the other party dissolves, becomes insolvent
or makes a general assignment for the benefit of its creditors; (iv) a voluntary
or involuntary petition or proceeding is commenced by or against the other
party
under federal, state or foreign bankruptcy laws; or (v) the other party becomes
insolvent, is unable to pay its debts as they become due or ceases to conduct
business in the normal course. Termination of this Agreement under this Section
7(b) will be without prejudice to any other remedy which may be available
to a
party under applicable law.
(c)
Rights
Upon Termination; Survival.
Upon any
termination or expiration of this Agreement: (i) Reseller shall cease to
be an
authorized reseller of Product Units and all rights and licenses granted
to
Reseller hereunder shall cease; (ii) Reseller shall immediately: (a) cease
all use and distribution of the Product Units; (b) discontinue any use of
the Licensor Trademarks; and (c) cease to promote, solicit or procure
orders for the Product Units; and (iii) Sections 1, 2(e), 5(c), 6, 7(c),
8, 9
and 11 shall survive.
8.
RESELLER INDEMNIFICATION:
Reseller
shall defend, indemnify and hold Licensor, its officers, directors, agents
and
employees harmless against any and all claims, suits, proceedings, damages,
judgments and expenses (including reasonable attorneys' fees) or settlement
thereof in connection with or arising from any third party claim based upon:
(a) Reseller's use or distribution of the Product Units not in accordance
with this Agreement; or (b) any warranties or representations made by
Reseller or Reseller's agents which differ from those provided by Licensor.
Licensor may, at its option, join in the defense or settlement of any such
claim
with counsel of its choice, at its own expense. NOTWITHSTANDING ANYTHING
IN THIS
AGREEMENT, IN NO EVENT SHALL RESELLER'S AGGREGATE LIABILITY ARISING UNDER,
WITH
RESPECT TO OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL MONIES PAID
BY
RESELLER TO LICENSOR UNDER THIS AGREEMENT.
9.
CONFIDENTIALITY:
Reseller
shall protect the Confidential Information from unauthorized dissemination
and
shall use the same degree of care that Reseller uses to protect its own like
information, but in no event less than a reasonable degree of care. Reseller
shall not disclose to third parties the Confidential Information without
the
prior written consent of Licensor. Reseller shall use the Confidential
Information only for purposes of performing its obligations or exercising
its
rights under this Agreement. Notwithstanding the foregoing, Reseller may
use or
disclose the Confidential Information to the extent Reseller is legally
compelled to do so, provided, however, prior to any such compelled disclosure,
Reseller notifies Licensor and fully cooperates with Licensor in protecting
against any such disclosure and/or obtaining a protective order narrowing
the
scope of such disclosure and/or use of the Confidential Information. Reseller
agrees that any breach of this Section 9 would cause irreparable harm to
Licensor for which monetary damages would not be adequate and, therefore,
Reseller agrees that, in the event of a breach of this Section 9, Licensor
shall
be entitled to seek equitable relief in addition to any remedies it may have
hereunder or at law.
4
10.
COMPLIANCE WITH LAWS:
Reseller
will comply with all applicable international, national, regional, and local
laws and regulations with regard to its marketing, sales, distribution and
other
activities under this Agreement, including any applicable import and export
laws
and regulations in the Territory, and the U.S. Foreign Corrupt Practices
Act,
which prevents unlawful payments to third parties. Reseller will obtain,
at its
own expense, all necessary permits, licenses, registrations, and approvals
needed in connection with the importation, marketing, sale, and distribution
of
the Product Units into and within the Territory. Reseller agrees that it
will
not export or re-export the Product Units in any form in violation of the
export
or import laws of the United States or any foreign jurisdiction. Reseller
will
defend, indemnify, and hold harmless Licensor from and against any violation
of
such laws or regulations by Reseller or any of its agents, officers, directors,
or employees.
11.
GOVERNING LAW:
This
Agreement is to be construed in accordance with and governed by the internal
laws of the State of New York without giving effect to any choice of law
rule
that would cause the application of the laws of any jurisdiction other than
the
internal laws of the State of New York to the rights and duties of the
parties.
12.
NOTICE:
Any
notice required or permitted to be given under this Agreement if delivered
(i)
by hand and shall be effective on the date of delivery, (ii) by registered
or
certified mail, postage prepaid, return receipt requested and shall be effective
three (3) business days after posting, (iii) by overnight courier with proof
of
delivery and shall be effective one (1) business day after dispatch, (iv)
by
email with confirming letter mailed under the conditions described in (ii)
or
(iii) above, and shall be effective on the date of transmission, or (v) by
fax
with confirming letter mailed under the conditions described in (ii) or (iii)
above, and shall be effective on the date of transmission. All notices sent
to
Licensor must be given at the address, fax number and/or email of Licensor
given
in the first paragraph of this Agreement. All notices sent to Reseller must
be
given at the address, fax number and/or email of Reseller provided by Reseller
at the time of entering into this Agreement, as updated from time to time
by
Reseller.
13.
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 that either party may
assign
this Agreement without the consent of the other party to any parent company
or
subsidiary, or to any successor to the assets or business of the assigning
party
by way of merger, or any purchaser of all or substantially all of the assets
or
equity of the assigning party. Any purported assignment, sale, transfer,
delegation or other disposition by either party, except as permitted herein,
shall be null and void. This Agreement shall be binding upon and shall inure
to
the benefit of the parties and their respective successors and permitted
assigns.
14.
FORCE MAJEURE:
Any
delay
in the performance of any duties or obligations of either party (except the
payment of money) will not be considered a breach of this Agreement if such
delay is caused by a labor dispute, shortage of materials, fire, earthquake,
flood, war, act of terrorism, or any other event beyond the control of such
party, provided that such party uses reasonable efforts, under the
circumstances, to notify the other party of the circumstances causing the
delay
and to resume performance as soon as possible.
15.
INDEPENDENT CONTRACTORS:
The
relationship of Licensor and Reseller established by this Agreement is that
of
independent contractors, and neither party is an employee, agent, partner
or
joint venturer of the other.
16.
PUBLICITY; PRESS RELEASES:
Reseller
shall make commercially reasonable efforts to market, promote, and distribute
the Product Units. Licensor shall be permitted to use the name of Reseller
in
publicity releases, advertising, or similar activities without the prior
written
consent of Reseller.
5
17.
GENERAL:
This
Agreement constitutes the entire understanding of the parties with respect
to
the subject matter of this Agreement and supersedes all prior communications,
understandings, and agreements, written or oral. This Agreement may be modified
only by a written agreement signed by both parties. The failure of either
party
to enforce at any time any of the provisions hereof shall not be a waiver
of
such provision, or any other provision, or of the right of such party thereafter
to enforce any provision hereof. If any provision specified in this Agreement
shall be invalid under any applicable law, the invalid provision, or portion
thereof, shall be struck and the remainder, if any, shall be deemed enforceable
to the extent permitted under applicable law, and the remaining provisions
of
this Agreement shall be given effect in accordance with their terms. Nothing
in
this Agreement is intended or will be construed to give any person (other
than
Licensor and Reseller) any legal or equitable right, remedy or claim under
this
Agreement or any provision hereof. The captions or headings of the Sections
of
this Agreement are for reference only and are not to be construed in any
way as
part of this Agreement.
IN
WITNESS WHEREOF, the parties have caused their duly authorized representatives
to execute this Agreement as of the date first set forth above.
TRANSPARENSEE
SYSTEMS, INC.
By: /s/
Xxxxxx X. Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
Chief Executive Officer
DIGITALFX
INTERNATIONAL, INC.
By: /s/
Xxxxx
Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Chairman, CEO & President
6
Exhibit
A
Pricing
Information, Payment Procedures and other Terms and Conditions
Reseller
and Licensor shall mutually determine the price to be charged to Reseller’s
customers for the Product Units. Reseller shall bear all responsibility for
the
billing of its customers.
On
or
before the fifteenth day of each calendar month during the Term, Reseller
shall
deliver to Licensor a statement accounting for all sales of Product Units
during
the preceding calendar month, and such statement shall be accompanied by
Licensor’s *****% share of any revenue received by Reseller during the preceding
calendar month in respect of sales of Product Units. In addition, no later
than
one hundred twenty (120) days following the termination or expiration of
the
Term, Reseller shall deliver to Licensor a statement accounting for all sales
of
Product Units during the last calendar month of the Term, and such accounting
shall be accompanied by Licensor’s *****% share of any revenue received by
Reseller in respect of sales of Product Units since the last previous
accounting.
If
Licensor disputes any statement or amount paid, it shall notify Reseller
of such
dispute and the basis therefor within one hundred twenty (120) days of the
receipt of such statement or payment, or the disputed statement or payment
shall
be deemed waived.
7
