Exhibit 10d-2
RESELLER AGREEMENT
BY AND BETWEEN
PIVX CORPORATION
AND
DETTO TECHNOLOGIES
This Reseller Agreement is entered as of this ___ day of _________, 2004
("Effective Date") by and between PivX Corporation, a California corporation,
having its principal place of business at 00 Xxxxxxxxx Xxxxx Xxxxx, Xxxxxxx
Xxxxx, Xxxxxxxxxx, 00000 ("PivX") and Detto Technologies, a Washington
corporation, having its principal place of business at 00000 XX 00xx Xxxxxx,
Xxxxx 00, Xxxxxxxx, Xxxxxxxxxx, 00000 ("Detto").
NOW THEREFORE, for good and valuable consideration, the parties hereby agree as
follows:
1. GRANT OF RIGHTS
1.1 LICENSE. Subject to the terms and conditions of this Agreement, PivX hereby
grants to Detto a non-transferable, exclusive license to distribute PivX's
Qwik-Fix Pro and any documentation supporting Qwik-Fix Pro provided from time to
time by PivX (the "Documentation") within North America, solely to third parties
to whom Detto licenses Qwik-Fix Pro ("Third Parties"), and as governed by the
terms set forth in Exhibit A (PivX/Detto Reseller Agreement Addendum). PivX also
hereby grants to Detto a non-transferable, non-exclusive license to distribute
PivX's Qwik-Fix Pro and the Documentation outside of North America, solely to
Third Parties and as governed by the terms in Exhibit A. Detto shall have no
right to reproduce Qwik-Fix Pro or any part thereof. All copies of Qwik-Fix Pro
distributed by Detto shall be distributed pursuant to PivX's current Enterprise
License Agreement, as amended by PivX from time to time (the "License"), a copy
of which PivX will provide Detto. Detto shall not distribute Qwik-Fix Pro to any
Third Party unless the Third Party has accepted the terms of PivX's current
License under penalty of perjury and in writing.
1.2 OWNERSHIP. As between PivX and Detto, PivX owns and retains all right,
title, and interest in and to Qwik-Fix Pro and Documentation; all trademarks,
service marks or trade names associated with Qwik-Fix Pro or Documentation (the
"Trademarks"); all copyrights, patents, trade secret rights, and other
intellectual property rights therein (collectively, together with Qwik-Fix Pro,
Documentation, and Trademarks, the "Property"). Except as expressly granted
herein, PivX does not grant to Detto any right or license, either express or
implied, in Qwik-Fix Pro, Documentation or Property. Detto shall not reverse
engineer, disassemble, decompile, or otherwise attempt to derive source code
from Qwik-Fix Pro.
1.3 PIVX CHANNELNET. PivX grants Detto access to PivX ChannelNet as governed by
the terms set forth in Exhibit A.
2. DETTO'S OBLIGATIONS
2.1 DETTO'S MARKETING; PUBLIC RELATIONS. Detto obligations for marketing and
public relations are governed under the terms in Exhibit A.
2.2 TRADEMARKS; PROPERTY. During the term of this Agreement, Detto shall have
the right to use and reproduce the Trademarks in connection with Detto's
marketing, advertising, promotion and distribution of Qwik-Fix Pro. Detto's use
of the Trademarks shall not create any right, title or interest therein. Detto
shall use the Trademarks only in a manner which complies in all material
respects with PivX's reasonable policies in effect from time to time, and all
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such use shall be for PivX's benefit. Detto shall not remove, obscure or alter
PivX's copyright notice or the Trademarks from Qwik-Fix Pro or Documentation. If
Detto, in the course of distributing Qwik-Fix Pro, acquires any goodwill or
reputation in any of the Trademarks, all such goodwill or reputation shall
automatically be transferred to and shall vest in PivX when and as, on an
on-going basis, such acquisition of goodwill or reputation occurs, as well as at
the expiration or termination of this Agreement, without any separate payment or
other consideration of any kind to Detto, and Detto agrees to take all such
actions necessary to effect such vesting. Detto shall not contest the validity
of any of the Property or PivX's exclusive ownership of them. Detto shall not
adopt, use, or register, whether as a corporate name, trademark, service xxxx or
other indication of origin, any of the Trademarks, or any word or xxxx
confusingly similar to the Trademarks in any jurisdiction.
2.3 SUPPORT FOR QWIK-FIX PRO. Detto shall provide for all customer support for
Qwik-Fix Pro that it resells as governed by the terms set forth in Exhibit A.
2.4 COMPLIANCE WITH APPLICABLE LAWS. Detto shall comply with all laws and
regulations applicable to Detto's marketing and distribution of Qwik-Fix Pro
hereunder. Without limiting the generality of the foregoing, Detto shall, at its
own expense, make, obtain, and maintain in force at all times during the term of
this Agreement, all filings, registrations, licenses, permits and authorizations
in North America required for Detto to perform its obligations under this
Agreement.
2.5 SECURITY ISSUES. Detto shall take all action necessary to ensure that (a)
Qwik-Fix Pro and Documentation on Detto's servers or computer systems is
appropriately secured so that Qwik-Fix Pro and Documentation can only be viewed,
copied, or utilized by licensed Third Parties; and (b) that the object code of
the Courseware can only be accessed by employees authorized by PivX and cannot
be copied or downloaded by any of Detto's licensees or by any other third party.
In addition, Detto shall make its offices and equipment available in person,
upon reasonable notice, and to the extent feasible, remotely, to PivX to inspect
and test Detto's physical and technical set-up to ensure that Detto is complying
with its obligations under this Section. Detto agrees to indemnify and hold PivX
harmless in accordance with the provisions of Section 4.4 to the extent that
Detto breaches its obligations under this Section 2.5.
2.6 PROTECTION OF PROPRIETARY RIGHTS. Detto shall cooperate without charge
(provided that PivX will reimburse out of pocket expenses as agreed in advance
in writing), in PivX's efforts to protect PivX's rights in the Property. Detto
shall promptly notify PivX of any infringements of PivX's Property Rights that
come to Detto's attention. PivX shall have the exclusive right to institute
infringement or other appropriate legal action against alleged infringers of its
Property Rights. PivX shall incur all expenses in connection therewith and shall
retain all monetary recoveries received therefrom.
2.7 NO EXCESS REPRESENTATIONS OR WARRANTIES. Detto covenants that it shall not
make any representations or warranties with respect to Qwik-Fix Pro or
Documentation in excess of those provided by PivX herein. Detto agrees to
indemnify and hold PivX harmless in accordance with the provisions of Section
4.4 to the extent that Detto breaches its covenant under this Section 2.7.
2.8 FULFILLMENT OF DETTO'S OBLIGATIONS. Detto covenants that it will fulfill all
of its contractual and legal obligations to its customers. Detto covenants that
it will (a) provide its customers with first quality sales and technical support
with respect to any copies or licenses of Qwik-Fix Pro sold by Detto, (b)
promptly, courteously and appropriately respond to its customers questions,
concerns and complaints, and (c) generally deal with its customers in a
professional manner that shall add to the good reputation of Detto and PivX. To
the extent that Detto fails to fulfill its contractual and legal obligations to
its customers, Detto agrees that PivX may elect to fulfill those obligations, or
any portion of them, and Detto shall reimburse PivX any costs and expenses so
incurred by PivX. Detto agrees to indemnify and hold PivX harmless in accordance
with the provisions of Section 4.4 to the extent that it breaches any of its
covenants under this Section 2.8.
2.9 U.S. GOVERNMENT - RESTRICTED RIGHTS. Detto covenants to require its
customers to accept a click-wrap agreement that, among other things, provides
that Qwik-Fix Pro and accompanying documentation are deemed to be "commercial
computer Software" and "commercial computer Software documentation,"
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respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as
applicable. Any use, modification, reproduction release, performance, display or
disclosure of Qwik-Fix Pro and accompanying documentation by the U.S. Government
shall be governed solely by the terms of the Agreement and shall be prohibited
except to the extent expressly permitted by the terms of this Agreement.
2.10 BUSINESS DEVELOPMENT. Detto will engage in future business development with
PivX as governed by the terms set forth in Exhibit A.
2.11 SALES FORECASTING; SALES METRICS; SALES REPORTING. Detto will provide sales
forecasting, sales metrics and sales reporting to PivX as governed by the terms
set forth in Exhibit A.
3. PRICE AND PAYMENT; SHIPMENT AND DELIVERY
3.1 SUGGESTED THIRD PARTY PRICES. Third Party prices are governed by the terms
set forth in Exhibit A.
3.2 PER COPY FEES. Detto shall pay to PivX for each unit of Qwik-Fix Pro
distributed hereunder per copy fees (the "Per Copy Fees") as governed by the
terms set forth in Exhibit A. In the event that PivX changes the Third Party
prices, Per Copy Fees based on such changed prices shall apply to any order for
Qwik-Fix Pro received by PivX after the effective date of the increase. PivX
shall provide Detto with at least forty-five (45) days written notice of any
increase in the Per Copy Fees.
3.3 PAYMENT. All payments to PivX shall be made within thirty (30) days after
the receipt by Detto of the PivX's invoice. Detto shall pay PivX a late charge
on outstanding amounts due equal to one and one-half percent (1.50%) per month
or the maximum amount allowed by law, whichever is less. All payments shall be
made in United States Dollars, free of any withholding tax and of any currency
control or other restrictions to PivX. PivX shall have the right, at reasonable
times and on reasonable notice, to inspect and audit the books and records of
Detto to verify the accuracy of any statements. In the event that such an
inspection discloses any error of any amount, the parties shall by appropriate
payment promptly adjust for the error. If Detto fails to make payments when due,
PivX shall be entitled to, in its sole discretion, to take any one or more of
the following: (a) place Detto on credit hold, in which case, PivX may cease to
fulfill Detto's orders to any new Third Parties; (b) rescind Detto's right to
sell or distribute any additional Qwik-Fix Pro or Documentation hereunder; and
(c) to require that Detto direct all future payments, for licenses sold in the
past or in the future, from the Third Parties directly to PivX or a lock box or
an account designated by PivX for such purpose, to be applied by PivX to the
payment default (and interest thereon) until such defaults have been satisfied.
All amounts received by PivX hereunder shall be nonrefundable except for any
payments received or held under PivX's control pursuant to clause "c" of the
last sentence after Detto's payment default has been satisfied.
3.4 TAXES, TARIFFS, FEES. PivX's Suggested Prices and Per Copy Fees do not
include any national, state or local sales, use, value added or other taxes,
customs duties, or similar tariffs and fees which may be required to be paid or
collected upon the delivery of Qwik-Fix Pro or upon collection of the prices for
Qwik-Fix Pro or the Per Copy Fees. Should any tax or levy be made, Detto agrees
to pay such tax or levy and indemnify PivX against any claim for such amount.
Detto represents and warrants to PivX that all Qwik-Fix Pro acquired hereunder
is for redistribution in the ordinary course of Detto's business, and Detto
agrees to provide PivX with appropriate resale certificate numbers and other
documentation satisfactory to the applicable taxing authorities to substantiate
any claim of exemption from any such taxes or fees.
3.5 SHIPMENT AND DELIVERY. PivX shall electronically deliver Qwik-Fix Pro to
Detto. Detto shall inspect all software delivered to it, upon receipt and shall,
within 10 days of receipt, give written notice to PivX of any claim of damage or
missing portions. Should Detto fail to give such notice, or fail to obtain an
extension of such 10-day period from PivX, the packages shall be deemed to be
accepted by Detto. PivX will reasonably accommodate Detto's request to replace
its master copy of software that becomes corrupted or damaged. Detto shall
contractually require its Third Parties to report any claim of damage or
shortages for Qwik-Fix Pro shipped to them within thirty (30) days of the Third
Parties receipt of such package (or the time required by applicable law, if
longer). PivX shall use commercially reasonable efforts to meet delivery dates
requested by Detto, but in no event shall PivX be liable for its failure to meet
such dates. In the event that PivX shall be unable to meet Detto's requested
ship dates, PivX shall advise Detto of the change in or actual delivery
schedule.
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3.6 SECURITY INTEREST. Detto hereby grants PivX a purchase money security
interest in all Qwik-Fix Pro licensed to Detto, all physical media on which
Qwik-Fix Pro is located, and all rights licensed to Detto pursuant to this
Agreement in the amount of the Total Purchase Price. Detto also grants PivX a
security interest in Detto's address list of Third Parties to secure Detto's
payment, indemnification, and other obligations hereunder. To secure its rights
hereunder, PivX shall have the right to file one or more UCC financing
statements and to make such other filings as PivX shall deem appropriate. Detto
shall cooperate with PivX with respect to all such filings. Upon PivX's demand,
Detto agrees to execute promptly any financing statement, security agreement,
chattel mortgage, applications for registration and/or similar documents, and to
take any other action deemed necessary for registration or otherwise deemed
necessary or desirable by PivX in order to perfect PivX's security interest
hereunder. In the event of Detto's default hereunder, PivX may foreclose its
security interests and exercise such other rights as provided under the UCC.
4. WARRANTY AND LIABILITY
4.1 PRODUCT WARRANTY. With respect to Qwik-Fix Pro delivered by PivX to Detto on
CD-Rom, PivX warrants that for a period of thirty (30) days following delivery
to Detto, the media on which Qwik-Fix Pro is furnished to Detto will be free
from defects in materials and workmanship during normal use. PivX warrants that
Qwik-Fix Pro will substantially conform to the user documentation. EXCEPT AS
EXPRESSLY SET FORTH ABOVE, QWIK-FIX PRO AND DOCUMENTATION ARE PROVIDED "AS IS".
PIVX HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY,
INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
4.2 PRODUCT INDEMNITY. PivX will indemnify, defend and hold Detto and its
subsidiaries (each, an "Indemnified Party"), harmless from and against any and
all claims, losses, costs, liabilities and expenses (including reasonable
attorneys' fees), arising as a result of or in connection with any claim that
Qwik-Fix Pro or Documentation infringes any intellectual property right of a
third party provided: (i) the Indemnified Party promptly gives written notice of
any claim to PivX; (ii) the Indemnified Party provides any assistance which PivX
may reasonably request for the defense of the claim (with reasonable out of
pocket expenses paid by PivX); and (iii) PivX has the right to control of the
defense or settlement of the claim, provided, however, that the Indemnified
Party shall have the right to participate in, but not control, any litigation
for which indemnification is sought with counsel of its own choosing, at its own
expense. Additionally, if an injunction or order issues restricting the use or
distribution of any of Qwik-Fix Pro or Documentation, or if PivX determines that
Qwik-Fix Pro or Documentation are likely to become the subject of a claim of
infringement or violation of any proprietary right of any third party, PivX
shall in its discretion and, at its option (a) procure the right to continue
using, reproducing, and distributing Qwik-Fix Pro and Documentation; (b) replace
or modify Qwik-Fix Pro and Documentation so that they become noninfringing,
provided such modification or replacement does not materially alter or affect
the specifications for or the use or operation of Qwik-Fix Pro; require return
of Qwik-Fix Pro to PivX and refund any licensing fees relating to the future use
of Qwik-Fix Pro.
4.3 LIMITATION OF LIABILITY. EXCEPT FOR PIVX'S OBLIGATIONS UNDER SECTION 4.2, IN
NO EVENT SHALL PIVX'S OR ITS LICENSORS' LIABILITY TO DETTO OR ANY THIRD PARTY
ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY RECEIVED BY PIVX
HEREUNDER DURING THE PREVIOUS SIX (6) MONTHS. IN NO EVENT SHALL ANY PARTY OR
PIVX'S LICENSORS BE LIABLE TO ANOTHER PARTY OR ANY THIRD PARTY FOR LOSS OF DATA,
COSTS OF PROCUREMENTS OF SUBSTITUTE GOODS OR SERVICES OR ANY INDIRECT,
INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES UNDER ANY CAUSE OF ACTION, EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION
SHALL APPLY NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY PROVIDED HEREIN.
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4.4 INDEMNIFICATION. Detto shall indemnify and hold PivX harmless from and
against any and all damages, liabilities, costs and expenses (including
reasonable attorney's fees) which PivX incurs as a result of any claim based on
any breach of any representation or warranty, covenant or agreement by Detto
under this Agreement or any breach of this Agreement by Detto; provided: (i)
that PivX promptly gives written notice of any claim to Detto; (ii) at Detto's
expense, PivX provides reasonable assistance which Detto may reasonably request
for the defense of the claim; and (iii) Detto has the right to control the
defense or settlement of the claim, provided, however, that PivX shall have the
right to participate in, but not control, any litigation for which
indemnification is sought with counsel of its own choosing, at its own expense.
5. TERM AND TERMINATION
5.1 TERM OF AGREEMENT. The term of this Agreement shall commence on the
Effective Date and continue for six (6) months.
5.2 TERMINATION OF AGREEMENT. PivX may terminate this Agreement for convenience
by giving at least thirty (30) days written notice of termination to Detto. This
Agreement may be terminated by either party in the event of a material breach of
this Agreement by the other party that is not cured within thirty (30) days of
the other party's receipt of written notice of such breach. If a material breach
is cured within a thirty (30) day cure period this Agreement shall remain in
effect as if no material breach had occurred. This Agreement shall terminate
automatically without notice and without further action by the other party in
the event that the other party becomes insolvent, which means it becomes unable
to pay its debts in the ordinary course of business as they come due, or makes
an assignment of this Agreement for the benefit of creditors.
5.3 EFFECT OF TERMINATION. Upon the expiration or termination of this Agreement:
(a) Detto shall, within thirty (30) days, pay to PivX all amounts due hereunder,
return to PivX all products and demonstration copies received from PivX, erase
any and all of the foregoing from all computer memories and storage devices
within Detto's possession or control and, if requested, provide PivX with a
signed written statement that Detto has complied with the foregoing obligations.
All rights and licenses granted by PivX hereunder shall terminate, provided such
termination shall not result in the termination of Licenses for copies of
Qwik-Fix Pro which already have been purchased by Third Parties in accordance
with the provisions of this Agreement.
(b) The following shall survive termination of this Agreement: Section 1.2, the
last two sentences of Section 2.2, Sections 2.3 through and including 2.9,
Section 3.6, Section 4, this Section 5 and Section 6. 5.4 LIMITATION OF
LIABILITY UPON TERMINATION. In the event of termination in accordance with
Section 5.1, PivX shall not be liable to Detto because of such termination for
compensation, reimbursement or damages on account of the loss of prospective
profits or anticipated sales or on account of expenditures, inventory,
investments, leases or commitments in connection with the business or goodwill
of Detto.
6. GENERAL PROVISIONS
6.1 CONFIDENTIALITY. By virtue of this Agreement, each party may have access to
information that is confidential to the other ("Confidential Information").
Confidential Information shall include, but not be limited to, software,
documentation, formulas, methods, know how, processes, designs, new products,
developmental work, marketing requirements, marketing plans, customer names,
prospective customer names, the terms and pricing under the Agreement, and any
information clearly identified in writing at the time of disclosure as
confidential. A party's Confidential Information shall not include information
that (a) is or becomes a part of the public domain through no act or omission of
the other party; or (b) is independently developed by the other party without
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use of or reference to the first party's Confidential Information. In the event,
Confidential Information is required to be disclosed by law or other
governmental authority, a party hereunder shall not be prohibited from
disclosing such information by this Section provided that the responding party
shall first have given prompt notice to the other party hereto and shall have
made a reasonable effort to obtain a protective order restricting or limiting
the disclosure of the Confidential Information to the extent possible.
6.2 THIS AGREEMENT CONTROLS; MERGER; AMENDMENT; WAIVER. This Agreement and
Exhibit A to this Agreement shall control Detto's distribution of Qwik-Fix Pro
and Documentation. All different or additional terms or conditions in any Detto
purchase order or similar document shall be null and void. This Agreement,
including Exhibit A, constitutes the final, complete, and exclusive agreement
between the parties with respect to the subject matter hereof and supersedes all
prior or contemporaneous agreements. No modification, amendment, or waiver of
any provision of this Agreement shall be effective unless in writing signed by
both parties. The failure or delay by either party in exercising any right,
power or remedy under this Agreement shall not operate as a waiver of any such
right, power or remedy.
6.3 NOTICES. All notices shall be given in writing and shall be considered
effective when (a) personally delivered, (b) upon confirmed receipt if sent by
electronic mail or facsimile; or (c) two (2) days after posting if sent by
overnight registered private carrier (e.g. DHL, Federal Express, etc.).
6.4 ASSIGNMENT. Detto may not assign any of its rights or delegate any of its
obligations hereunder, whether by operation of law or otherwise, without PivX's
prior written consent. Subject to the foregoing, this Agreement shall bind and
inure to the benefit of the parties, their respective successors and permitted
assigns.
6.5 FORCE MAJEURE. PivX will not incur any liability to Detto or any other party
on account of any loss or damage resulting from any delay or failure to perform
all or any part of this Agreement (except for payment obligations) to the extent
such delay or failure is caused, in whole or in part, by events, occurrences, or
causes beyond the control, and without the negligence of, the parties. Such
events, occurrences, or causes include, without limitation, acts of God,
telecommunications outages, Internet outages, power outages, strikes, lockouts,
riots, acts of war, floods, earthquakes, fires, and explosions.
6.6 GENERAL. If any provision of this Agreement shall be held by a court of
competent jurisdiction to be contrary to law, such provision shall be changed
and interpreted so as to best accomplish the objectives of the original
provision to the fullest extent allowed by law and the remaining provisions of
this Agreement shall remain in full force and effect. Detto is an independent
contractor, and nothing herein shall be construed to create an
employer-employee, partnership, joint venture, or agency relationship between
the parties. Detto shall have no authority, right or power to create any
obligation or responsibility on behalf of PivX.
6.7 GOVERNING LAW. This Agreement shall be governed by and construed under the
laws of the State of California, excluding conflict of laws provisions and
excluding the 1980 United Nations Convention on Contracts for the International
Sale of Goods. The parties consent to the personal and exclusive jurisdiction of
and venue in the state and federal courts of Orange County, California, U.S.A.
for any disputes arising out of this Agreement. This Agreement may be executed
simultaneously in two or more counterparts, each one of which shall be deemed an
original, but all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the following duly authorized representatives have signed
this Agreement on behalf of the entities indicated below, as of the date first
above written.
DETTO PIVX
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By: By:
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Title: Title:
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Date: Date:
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