MERLIN SOFTWARE TECHNOLOGIES INC. ("MERLIN")
RESELLER AGREEMENT
The Parties noted below agree as follows:
1. For the purpose of this Agreement:
"Effective Date" means the date specified below:
"Software" means the computer software programs, in object code form only,
stored on some medium and associated user manuals and other documentation
("Related Documentation") included in the sealed package, developed by MERLIN
and marketed under the trade-xxxx PerfectBACKUP+.
"Shrink Wrap License" means a document included in the sealed package on
delivery of the Software authorizing an end user to use the Software and Related
Documentation.
"Territory" means worldwide with the exception of Direct Sales in the U.K. and
Southern Ireland.
2. MERLIN hereby grants to RESELLER subject to the terms and conditions
contained in this Agreement, including the attached Schedule "A", a
non-exclusive, non-transferable right to market, demonstrate, distribute and
sell the Software to other distributors, resellers and end user customers in the
Territory for use on computers located in the Territory. RESELLER shall order
all copies of the Software from MERLIN or a MERLIN Authorized Distributor
("SAD") on terms agreed to between RESELLER and MERLIN or SAD and shall use its
best efforts to market, demonstrate and distribute the Software to customers in
the Territory.
3. RESELLER acknowledges that the Software contains confidential and
proprietary information and trade secrets belonging to MERLIN and its licensors,
that title and ownership rights to the Software and the Related Documentation,
including all worldwide intellectual property rights, shall remain exclusively
with MERLIN and its licensors, and that RESELLER's rights to the Software and
the Related Documentation are strictly limited to those specifically granted in
this Agreement. Except as expressly permitted herein, RESELLER shall not make
any copies of the Software or the Related Documentation without the express
written consent of MERLIN.
4. RESELLER shall not make, without the prior written consent of MERLIN, any
claim, representation or warranty about MERLIN or the Software other than
presenting current information that has been published by MERLIN.
5. On all matters relating to the use of MERLIN's trade name, logo and
trade-marks, including without limitation, use in advertising and marketing
materials, RESELLER shall obtain prior written approval of MERLIN in order to
assure proper use and shall follow all written guidelines provided by MERLIN as
to proper use.
6. RESELLER shall alert customers and potential customers to the technical
support options which are available from MERLIN, as advised by MERLIN from time
to time.
7. RESELLER shall provide MERLIN with a written report on a quarterly basis
setting forth: (a) detailed information about each customer that has acquired
the Software including company name, address (including e-mail address) and
contact name and the quantity of the Software acquired; and (b) three month
forecast of expected sales.
8. MERLIN may periodically revise MERLIN's suggested retail price for the
Software in which case RESELLER will be given at least thirty (30) days written
notice.
9. MERLIN shall supply to RESELLER in a timely and efficient manner all
MERLIN promotional material ordered by RESELLER with respect to the Software,
subject to MERLIN's then current charges for such materials.
10. MERLIN shall not be required to make training in the marketing, sale,
operation or use of the Software available to RESELLER.
11. In order for RESELLER and MERLIN to effectively carry out their
respective obligations hereunder, each party may from time to time disclose to
the other party confidential information. Confidential information shall be
clearly designated in writing as confidential, or if verbally disclosed,
identified as being confidential. Without limiting the foregoing, confidential
information of MERLIN includes all information about the Software (subject as
set out below) and any proposed enhancements, new functions, new versions or
other improvements thereto. Confidential information does not include:
(a) information generally available to or known to the public;
(b) information previously known to the recipient;
(c) information independently developed by the recipient without access to
the discloser's confidential information; or
(d) information lawfully disclosed by a third party.
12. Each party acknowledges a relationship of trust and confidence with
respect to the confidential information of the other. Each party agrees that
it shall not disclose confidential information of the other to any third party
without the express written consent of the other party, that it shall not
reproduce such confidential information or make use of any such confidential
information other than for performance of its obligations under this Agreement,
and that it shall use at least the same degree of care to avoid disclosure of
such information as it uses with respect to its own confidential information.
This obligation shall survive termination of this Agreement and does not
supersede or replace any prior non-disclosure covenants in place between the
parties.
13. OTHER THAN THE WARRANTY PROVIDED TO THE END USER AS SET FORTH IN
MERLIN'S SHRINK WRAP LICENSE, MERLIN DISCLAIMS ALL OTHER WARRANTIES AND
CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, INCLUDING, BUT NOT
LIMITED TO, THOSE OF MERCHANTABLE QUALITY, DURABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
14. MERLIN shall in no event be liable to RESELLER for any special,
indirect, incidental, consequential, punitive or exemplary damages, including
loss of profits, loss of data, loss of business, failure to realize anticipated
savings and shall not be liable to RESELLER for any legal fees and disbursements
incurred by RESELLER, in connection with any claim under this Agreement and/or
the Software. MERLIN's total aggregate liability to RESELLER for any and all
claims under this Agreement and/or in connection with the Software, including
any claim under contract (including fundamental breach), tort (including
negligence) or for infringement of intellectual property rights, shall be
limited to direct damages and shall not exceed the sum of twenty thousand
dollars CDN (CDN $20,000).
15. The term of this Agreement shall commence on the Effective Date and
shall continue in force for one (1) year from such date. Thereafter the
Agreement shall automatically renew for additional one (1) year periods,
provided that during any such renewal period either party may terminate this
Agreement for convenience upon giving thirty (30) days' prior written notice to
the other. Either party may immediately terminate this Agreement or suspend any
rights granted hereunder upon notice to the other in the event that the other
party fails to perform any obligation under this Agreement within fifteen (15)
days after receiving notice from the terminating party. On expiration or
termination, each party shall promptly remit to the other all unpaid monies due
under this Agreement and shall return to the other party all confidential
information of the other party in its possession or control. This Section 15
and Sections 3, 11, 12, 13, 14, 15 and 16 shall survive the termination of this
Agreement.
16. RESELLER is an independent contractor and the parties are not agents or
legal representatives of each other and have no power of attorney to represent,
act for, bind or commit each other except as described in this Agreement.
Neither execution nor performance of this Agreement shall be construed to have
established any joint venture or partnership between MERLIN and RESELLER. In
the event that any provision of this Agreement shall not be enforceable, the
remainder of this Agreement shall remain in full force and effect. This
Agreement is not assignable. This Agreement and any matters relating thereto
shall be governed, construed and interpreted in accordance with the laws of the
Province of British Columbia, Canada, without regard to its conflicts of laws
rules. The provisions of the 1980 U.N. Convention on Contracts for the
International Sale of Goods shall not apply to this Agreement. In the event of
any dispute hereunder, the parties hereby irrevocably submit to the jurisdiction
of the courts of the Province of British Columbia.
17. This Agreement, including the attached Schedule "A", constitutes the
full and entire understanding and agreement between RESELLER and MERLIN with
respect to the marketing, demonstration and distribution of the Software and
supersedes all negotiations, commitments and understandings, both verbal and
written, with respect thereto. No modifications, additions, or amendments to
the terms of this Agreement shall be effective unless in writing and signed by
the duly authorized representatives of RESELLER and MERLIN. RESELLER shall
fully comply with the applicable export restriction laws of Canada and the
United States in its distribution of the Software as permitted hereunder. All
notices required or permitted to be given hereunder shall be given by personal
delivery and shall be deemed received at the time of delivery. Time is of the
essence in this Agreement. Any waiver by one party of a breach by the other
party hereunder shall not operate as a waiver of any subsequent or similar
breach.
This Agreement is effective the 20th day of March, 2000 (the "Effective Date")
IMPERA SOFTWARE CORP. MERLIN SOFTWARE TECHNOLOGIES INC.
(Linux Xxxxxxxxxx.xxx) Ste. 000-0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X.
Xxxxxx X0X 0X0
(herein referred to as "RESELLER") (herein referred to as "MERLIN")
/s/ D. Shlesberg /s/ X. Xxxxxxxxxx
------------------ -------------------
Signature Signature
Print Name: D. Shlesberg Print Name: Xxxxxxx Xxxxxxxxxx
------------- -------------------
Title: C.E.O. Title: V.P. Marketing
------ ---------------
MERLIN SOFTWARE TECHNOLOGIES INC.
SCHEDULE "A" TO RESELLER AGREEMENT
BETWEEN THE PARTIES DATED 3/20, 2000
(the "Agreement")
Until such time as MERLIN has advised RESELLER of the name of a MERLIN
Authorized Distributor from which RESELLER can order the Software, RESELLER
shall order all copies of the Software from MERLIN by providing MERLIN with an
order form referencing this Agreement, requesting a delivery date, stating the
ship-to-address and specifying the number of copies required.
RESELLER shall pay MERLIN its U.S. list price in U.S. dollars for each copy
of the Software ordered for distribution by RESELLER [less a discount of
thirty-five percent (35%).] MERLIN shall be responsible for all shipping and
insurance charges associated with delivery of the Software to RESELLER's address
specified on the Agreement and the terms of each sale shall be DDP (Delivered
Duty Paid, as that term is defined in the publication "Incoterms 2000" published
by the International Chamber of Commerce) RESELLER's address specified on the
Agreement. The full responsibility for credit risk of and collections from
RESELLER's customers rests with RESELLER. All credits and returns in respect of
the Software shall be according to MERLIN's policies then in effect. Unless
otherwise agreed by MERLIN, RESELLER shall be responsible all shipping,
insurance and related costs for all returns of unsold and old versions of the
Software. RESELLER shall pay MERLIN 10% of MERLIN's retail price per copy of
the Software returned to MERLIN as a restocking charge if RESELLER wishes to
replace older versions of the Software with the then current version.
All monies are due and payable under this Agreement upon receipt of
invoice. RESELLER shall pay interest on accounts overdue by more than thirty
(30) days at a rate of one and one half percent (1.5%) per month (18% per annum)
or the maximum legal interest rate, whichever is less. MERLIN reserves the
right to require security for payment from RESELLER for any particular or all
orders. Title to all copies of the Software included with each order shipped to
RESELLER shall remain with MERLIN until payment in full is received by MERLIN
for such order. RESELLER hereby grants to MERLIN a purchase money security
interest in all copies of the Software delivered to RESELLER and all proceeds
thereof, as security for payment. MERLIN is entitled to file, in any
jurisdiction where the Software delivered to RESELLER is located, a financing
statement in order to perfect its purchase money security interest granted
herein. RESELLER acknowledges receipt of a copy of the Agreement and this
Addendum and waives its right to receive a copy of any financing statement or
financing change statement filed by MERLIN.
Dated this ------ day of -------------, 200---.
IMPERA SOFTWARE COPR. MERLIN SOFTWARE TECHNOLOGIES INC.
(Linux Xxxxxxxxxx.xxx) Ste. 000-0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X.
Xxxxxx X0X 0X0
(herein referred to as "RESELLER") (herein referred to as "MERLIN")
/s/ D. Shlesberg /s/ X. Xxxxxxxxxx
------------------ -------------------
Signature Signature
Print Name: D. Shlesberg Print Name: Xxxxxxx Xxxxxxxxxx
------------- -------------------
Title: C.E.O. Title: V.P. Marketing
------ ---------------
