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EXHIBIT 10.42
FINANCIALWARE, INC.
0000 XXXX 00XX XX., XXXXX 000
XXXXXXXXXXXX, XXXXXXX 00000-0000
MASTER SOFTWARE DISTRIBUTION AGREEMENT
DISTRIBUTOR: Phoenix International
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Address: 000 Xxxxxxxxxxxxx Xxxxxxx
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Xxxxxxxx, XX 00000
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Telephone: ( 407 ) 548 - 5150
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Facsimile: ( ) -
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The provisions of the Standard Terms and Conditions and
Schedules A and B are also a part of this Agreement.
Financialware, Inc. Phoenix International
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DISTRIBUTOR
/s/ Xxxxxxx X. Xxxxx /s/ Xxxx X. Xxxxxxxxxx
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Signature Signature
Xxxxxxx X. Xxxxx, President Xxxx X. Xxxxxxxxxx, President & COO
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Printed Name and Title Printed Name and Title
July 6, 1999 June 24, 1999
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Date Date
PLEASE SIGN AND RETURN ALL COPIES.
DISTRIBUTOR COPY WILL BE RETURNED AFTER SIGNATURE BY FWI.
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MASTER SOFTWARE DISTRIBUTION AGREEMENT
STANDARD TERMS AND CONDITIONS
For purposes of this Agreement, the term "FWI" shall mean
Financialware, Inc., and "Distributor" shall mean the distributor identified on
the Signature Page of this Agreement
WHEREAS, FWI publishes computer software products including those FWI
products ("FWI Products") and third party products ("Other Products") listed on
the Signature Page, as such may be modified (collectively, the "Products").
Distributor distributes software or provides services that are complementary to
the Products. FWI and Distributor desire that Distributor act as an
independent, nonexclusive dealer in the Products.
THEREFORE, the parties agree as follows:
1. APPOINTMENT.
1.1 Scope. FWI hereby appoints Distributor, and Distributor hereby accepts
such appointment, as an independent, nonexclusive dealer in the
Products. In conjunction with such appointment, FWI grants to
Distributor a nontransferable, nonexclusive license to demonstrate and
market the Products to End-Users. "End-Users" are Distributor
customers that license from FWI a Product their own use. Distribution
to End-Users shall be pursuant to FWI's End-User license agreement
and, in the case of the Other Products, to any requirements of the
applicable third party vendors. Distributor's license does not
transfer any rights in any Product to Distributor or to any End-User
nor any right to sublicense.
1.2 Reserved Rights. FWI reserves the right, from time to time and in its
sole discretion, (a) to increase or decrease the number of authorized
distributors, (b) to distribute Products directly to independent
resellers and End-Users, or (c) to change, or to add to or delete from
the list of Products. In addition, FWI may from time to time impose
special conditions concerning Distributor's licensing of certain
Products, or change or terminate the type of service or support that
FWI makes available, after giving prior written notice to Distributor;
provided that Distributor's End-Users shall at all times during and
after the term of this Agreement be entitled to receive the same
support being provided to FWI's general customer base for the same
Products, as long as they pay the appropriate fee therefor,
1.3 Export. Distributor will be solely responsible for compliance with any
applicable export control laws or regulations, and payment of any
tariffs or other fees that may be required in connection with
distribution of any Product outside of the United States. FWI shall
have no obligation under this Agreement to directly distribute any
Product outside of the United States. All Products will be supported
in US format only. Distributor shall be solely responsible for
international returns.
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2. PRICE.
2.1 Prices. The current FWI retail prices for the Products are as set
forth on the then-current applicable FWI published price list ("FWI
Price List"). The initial discount applicable to the Products is as
set forth on Schedule A. FWI may change the FWI retail prices on the
FWI Product Price List at any time and may change the Distributor
discount at any time; provided, however, that FWI may increase the
price of Product to Distributor only after giving thirty days prior
notice to Distributor. Payment shall be made to FWI by Distributor
pursuant to the payment policy set forth below. Distributor shall be
solely responsible for establishing the price at which Products are
licensed or sold to its End-Users. Discounts do not apply to Product
maintenance/support or training.
2.2 Payment Terms. Full payment in U.S. dollars for Products licensed to
an End User of Distributor is due and payable by Distributor to FWI
within fifteen (I5) days of date of the invoice therefor, which
invoice shall be sent at the time of Product shipment to Distributor
or when hardware is delivered to FWI for staging. Products shall be
invoiced upon an End User licensing same, and services shall be
invoiced as specified in FWI's Price List. Interest shall accrue an
any delinquent amounts owed by Distributor at the lesser of 1.5% per
month or the maximum rate permitted by law. If any portion of
Distributor's outstanding balance is aged greater than 60 days (a
"Late Payment Condition"), FWI may require full or partial payment in
advance. If a Late Payment Condition exists, FWI may cancel or suspend
shipment of all Products to Distributor and the provision of services
until the Late Payment Condition is cured.
2.3 Taxes. Distributor shall pay any taxes (other than FWI's income taxes)
which may arise by virtue of its distribution of the Products, The
prices set forth in this Agreement do not include any such taxes.
Should any tax be assessed against FWI as a result of Distributor's
distribution of the Products hereunder, Distributor agrees to pay such
tax. If, pursuant to this Agreement and at the request of Distributor,
FWI ships Products to a state that has a sales tax, Distributor agrees
to provide FWI with appropriate documentation satisfactory to the
applicable tax authorities for any claim of exemption from any sales,
use, value added or other taxes, duties or similar fees which may be
required upon delivery of Products or collection of payments due from
Distributor. Should Distributor fail to provide adequate exemption
documentation, or should any tax or levy be assessed against FWI,
Distributor agrees to pay such tax or levy and indemnify FWI for any
claim for such tax or levy.
3. SUPPORT.
3.1 Technical Support. Distributor shall provide technical support to its
End Users in accordance with FWI's support standards, which FWI may
modify from time to time. At a minimum, Distributor shall (1) provide
all assistance necessary to install the Products and (2) respond
during normal business hours to End User's questions regarding
operation of the Products. FWI shall provide reasonable consultation
to
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Distributor regarding questions raised by End Users that Distributor's
staff cannot answer. The support shall be provided to End Users whose
Product(s) are under warranty or for which the End User has remitted
payment of the annual fee for the Product.
3.2 Training. Distributor shall, at its expense, participate in any
Distributor training and product promotion programs which FWI may
establish from time to time. Distributor shall maintain on its staff
at all times the number of trained and technically proficient
personnel necessary, and all hardware necessary, for Distributor to
market the Products and provide installation, training and technical
support to End Users.
3.3 Initial Subscription and Renewal. In connection with initial Product
license sales, Distributor shall pay FWI the applicable first year
maintenance cost pursuant to the FWI Product Price List, on behalf of
each new End-User less 15%. Renewals of support shall be solely the
responsibility of FWI and Distributor shall not have the right to sell
support to End-Users other than in connection with the initial Product
license sale. FWI's obligation to support any Distributor End-User
shall be contingent on Distributor's provision of the appropriate
End-User information to FWI pursuant to the terms of Section 4.3.
4. ORDER AND REPORTING PROCEDURES.
4.1 Purchase Orders. Purchase orders must be submitted to FWI by
Distributor in writing. All purchase orders shall be subject to
acceptance by FWI and shall not be binding until the earlier of such
acceptance or shipment, and, in the case of acceptance by shipment,
only as to the portion of the order actually shipped.
Order cancellations must be confirmed in writing.
4.2 Controlling Terms. This Agreement will apply to each order and the
provisions of Distributor's form of purchase order will not supersede
any of the terms of this Agreement.
4.3 Reporting. For each Product order filled by Distributor, and for each
training contract and professional services contract entered into by
Distributor, Distributor will, from the information it gathers from
the End-User, inform FWI, of the date and content of the order or
contract, the name, address and telephone number of the End-User(s)
for whom the order was placed, the number of network users to use any
Product, the number of active employees to be covered by any Product,
whether each End-User has subscribed to the applicable FWI support
program and such other information as FWI may reasonably request.
Failure by Distributor to use its best efforts to provide the required
End-User information will constitute a material breach of the terms of
this Agreement subject to termination pursuant hereto.
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5. SHIPMENT.
5.1 Shipment And Risk Of Loss. FWI will ship all Products ordered directly
to the Distributor, in single or several lots, F.O.B. FWI's point of
shipment. FWI will select the carrier. Distributor will be responsible
for and pay all shipping and freight charges. All risk of loss of, or
damage to, the Products shipped will pass to Distributor upon delivery
by FWI to the carrier, freight forwarder or Distributor, whichever
comes first.
5.2 Delays. Should orders for the Products exceed FWI's available
inventory, FWI will allocate its available inventory and make
deliveries on a basis FWI deems equitable, in its sole discretion, and
without liability to Distributor on account of the method of
allocation chosen or its implementation. In any event, FWI shall not
be liable for any damages, direct, consequential, special, or
otherwise, to Distributor or to any other person for failure to
deliver or for any delay or error in delivery of the Products for any
reason whatsoever.
6. RETURNS OF PRODUCT. During the term of this Agreement, Distributor may
only return to FWI unopened Products (support not included) that have been
superseded by a new release. Upon receipt of the returned Product FWI will
exchange it for the then-current version of the same Product. Distributor will
be responsible for and pay all shipping, freight and insurance charges for all
Products returned to FWI and any Products to be returned to Distributor or an
End-User. No other returns of Product will be honored by FWI
7. INTERFACE. Distributor shall be solely responsible for any interface
between the Products and Distributor's own software products.
8. MARKETING AND SALES.
8.1 Distributor User Solicitation. FWI and Distributor will work together
in good faith to develop an announcement plan to Distributor End-Users
and for conducting joint mailings into the Distributor customer base.
FWI and Distributor will share equally in production and mailing cost
associated with mutually agreed upon incentive programs. Distributor
will handle telephone follow-up and mailing administration at no
charge to FWI.
8.2 Minimum Volume Commitment. Distributor commits to generating fees to
FWI in the amount of the MVC sat forth on the Signature page of this
Agreement, during each annual term of this Agreement. If in any annual
term Distributor fails to generate fees to FWI equal to or greater
than the MVC, Distributor shall pay to FWI at the end of each annual
term an amount equal to one hundred percent (100%) of the difference
between actual fees paid to FWI and the MVC.
8.3 Demonstration Copies. FWI will provide Distributor with demonstration
copies of each Product, free of charge, solely for use by Distributor
personnel in connection with
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performing its obligations under this Agreement. These copies may not
be sold, licensed or modified.
8.4 Marketing Materials. Distributor shall purchase marketing collateral
from the standard FWI Price List.
8.5 Updates and New Releases. During the term of this Agreement, FWI shall
use reasonable efforts to deliver a copy of any update or new release
of the Products to Distributor prior to release of such update or new
release by FWI to its End Users for which FWI has received payment for
an active annual support and maintenance agreement.
8.6 Account Managers. FWI and Distributor shall each designate an account
manager who will be responsible for managing the sales and marketing
relationship and for providing a first line of contact on such issues.
8.7 Certification. Distributor agrees that only sales people who have been
adequately trained on FWI's Products may sell the Products.
9. DURATION AND TERMINATION OF AGREEMENT.
9.1 Term. This Agreement shall begin on the date it is signed by both
parties hereto, and shall continue until terminated as provided below.
9.2 Termination at Will. Either party may terminate this Agreement by
providing the other party with at least ninety days prior written
notice of termination.
9.3 Termination for Cause.
a. Either party will have the right to terminate this Agreement
at any time if the other party is in breach of any material
term. Such termination will become effective thirty days
after the nonterminating party's receipt of a notice of
termination in the absence of a cure during such thirty day
period.
b. Either party will have the right to terminate this Agreement
at any time if the other party (i) becomes insolvent; (ii)
discontinues its business; (iii) is merged, consolidated, or
sells all or substantially all of its assets; (iv) fails to
pay its debts or perform its obligations in the ordinary
course of business as they mature; or (v) becomes the subject
of any voluntary or involuntary proceeding in bankruptcy,
liquidation, dissolution, receivership, attachment or
composition for the benefit of creditors. Such termination
will become effective upon the nonterminating party's receipt
of a notice of termination at any time after the specified
event.
9.4 Orders After Termination Notice. In the event that any notice of
termination of this Agreement is given, FWI will be entitled to reject
all or part of any orders received
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from Distributor after the date of such notice. Notwithstanding any
credit terms made available to Distributor prior to such notice, any
Products shipped thereafter shall be paid for by certified or
cashier's check prior to shipment.
9.5 Effect of Termination. Upon termination or expiration of this
Agreement:
a. The due dates of all outstanding invoices to Distributor for
the Products automatically will be accelerated so they become
due and payable on the effective date of termination or
expiration, even if longer terms had been provided
previously, All orders or portions thereof remaining
unshipped as of the effective date of termination will
automatically be canceled.
b. Each party shall cease using any trademark, logo or tradename
of the other and Distributor's right to market any Products
shall automatically cease and terminate, unless FWI agrees
otherwise.
c. For a period of one year after the date of termination,
Distributor shall make available to FWI for inspection all
sales records of Distributor that pertain to Distributor's
activities and compliance hereunder.
9.6 No Damages for Termination. Distributor acknowledges and agrees that
Distributor has no expectation and has received no assurances that its
business relationship with FWI will continue beyond the stated term of
this Agreement or its earlier termination in accordance with this
Section 9 and will make no claims against FWI for damages or expenses
(including damages which may arise from the loss of prospective
customers of Distributor, or expenses incurred or investments made in
connection with the establishment, development, or maintenance of
Distributor's business as a FWI distributor) in connection with any
permitted termination.
9.7 Survival. Distributor's obligations to pay FWI all amounts due
hereunder, as well as either party's obligations relating to
indemnification, warranties, disclaimers of warranty, protection of
proprietary rights and confidential information shall survive
termination of this Agreement.
10. RELATIONSHIP OF THE PARTIES. Distributor's relationship with FWI
during the term of the Agreement will be that of an independent contractor with
no power to bind FWI, or to create any obligation on behalf of FWI.
11. ENTIRE AGREEMENT; MODIFICATIONS. This Agreement and Schedules A and B
represent the entire agreement between Distributor and FWI with respect to
their subject matter, superseding all previous communications or agreements
regarding such subject matter. This Agreement may be modified only by a writing
signed by the parties.
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