PUBLISHER AGREEMENT
Exhibit
10.14
This
Agreement, entered into this 26th
day of
January 2005 between Xxx.Xxx, Inc. (known hereinafter as “Xxx.Xxx”) and Enigma
Software Group, Inc. (known hereinafter as “Publisher”).
WHEREAS,
PUBLISHER develops software or digital information and has developed and wishes
to sell the following titles: Spy Hunter or any other products developed by
Publisher and offered on the websites: xxx.xxxxxxxxxxxxxxxxxxx.xxx,
xxx.xxxxxxxxxxxxxx.xxx, xxx.xxxxxxx.xxx (known hereinafter as
“TITLES”).
| 1. |
WHAT
DO CERTAIN WORDS MEAN?
|
A
few
terms in this Agreement have special definitions.
| (a) |
“We”
or “us” means our company, Xxx.Xxx, a service of Digital River,
Inc.
|
| (b) |
“Our”
or “ours” means things that we own.
|
| (c) |
“You”
or the “Publisher” means you, which is the person or business that is
shown as the Publisher and/or “Company” on the Xxx.Xxx Account Activation
page you filled out prior to getting this
Agreement.
|
| (d) |
“Your”
or “yours” refer to things that you
own.
|
| (e) |
“License
Right” is a right to install, use and/or enhance the capabilities of a
Software program.
|
| (f) |
“Services”
are additional optional services you may obtain from us, in some
instances
for an additional price, which may
include:
|
| (i) |
Delivery
of pre-determined license keys or tokens to End
Users.
|
| (ii) |
Creation
of license keys or tokens using criteria and algorithms you have
specified
to us.
|
| (iii) |
Distribution
of copies of your Software to End
Users.
|
| (iv) |
Advertisements
or other promotions through our Site or other means concerning your
Software.
|
| (v) |
Access
to our Affiliate program, which will allow other persons to promote
your
Software or solicit sales of License Rights via our
Site.
|
| (g) |
“Software”
is the software program and attached data that is associated with
any
particular Product. You will identify one or more items of Software
for
each set of License Rights that you sell to
us.
|
| (h) |
“Site”
means our Website, found at xxx.xxx.xxx, which will act as a retail
merchant to sell your License Rights, and which may be used to fulfill
some or all of the additional Services you
purchase.
|
| (i) |
“End
Users” means the persons or businesses that may choose to purchase License
Rights through our Site.
|
| (j) |
“Suggested
Retail Price” means the price that you input into the Xxx.Xxx system as
the recommended selling price of the product. We agree not to sell
the
Product at a price higher then the recommended selling
price.
|
| 2. |
WHAT
DOES THIS AGREEMENT COVER?
|
| (a) |
As
End Users are directed to our Site, we will provide a Web-based payment
system to allow the End User to purchase a License Right for your
Software. You agree to sell to us the License Rights at the time
that the
End User makes the purchase from us. If necessary in order for us
to
fulfill the End User's purchase, you will cooperate with our requests
in
delivering or providing the License Right to the End User (in whatever
form you have chosen to use for your
Software).
|
| (b) |
After
you enter into this Agreement, you will be able to indicate which
of our
additional Services you can obtain through your online account interface.
We may amend or change the Services we provide, at any time upon
notice to
you, and those changes will be effective for any transactions that
take
place after the date of the change.
|
| (c) |
Please
note that we do not provide software help-desk or other forms of
technical
support concerning your Software. Our support is limited to assisting
you
with the use of our Site as well as concerning any deliveries of
Software
files, license keys or tokens if you have purchased those Services
from
us.
|
| 3. |
WHAT
RIGHTS DO YOU GRANT TO US?
|
| (a) |
You
give us the right to sell License Rights as described in this Agreement.
Also, if you purchase any additional Services from us, you also permit
us
to copy, store and distribute to others, as appropriate for the particular
set of Services you purchase, any or all of your: Software license
keys or
tokens, copies of your Software in authenticated or un-authenticated
form
and in electronic form for download distribution and/or in physical
form
(such as CD-Rom) for physical
distribution.
|
-2-
| (b) |
Other
than the rights described above, as we need them to fulfill the purposes
of this Agreement, you do not grant us any rights in the intellectual
property of your Software, your name or your
trademarks.
|
| (c) |
Any
end user license agreement (“XXXX”) you make with an End User is strictly
an agreement between you and the End User, and we are not a party
to that
XXXX.
|
| 4. |
HOW
DO WE HANDLE THE MONEY?
|
| (a) |
When
we sell your License Rights, we will be the retail merchant of record
for
the sale to the End User. For each sale of a License Right, we shall
retain an amount equal to 9% of the Suggested Retail (Price less
any
discounts or coupons applied to the purchase). All amounts which
we owe
you for the sale of a License Right shall be placed in an in-house
account
that we will maintain for you, and pay you from that account as described
below.
|
| (b) |
CD-ROM
Service - You will be prompted to upload your product(s) and we will
then
create a custom CD-ROM for the product(s). Then, whenever a user
purchases
the software, the user will be given the option to also purchase
it on
CD-ROM. You will retain any amount above the minimum price of $7.99
as
defined by us in the Xxx.Xxx administration interface. This service
is
required on all products where we host files and pass them along
to End
Users after a sale.
|
| (c) |
Extended
Download Warranty - You will retain any amount above the minimum
price of
$3.25 as defined by us for each approved order of our Extended Download
Warranty. This service provides storage of your file on our server
for the
customer to re-download their purchase for up to two years, by providing
the customer a download link. This service is required on all products
where we host files and pass them along to End Users after a
sale.
|
| (d) |
If
you desire additional Services from us that require payment of additional
fees, those fees will be described to you once you activate your
account
and logon in the online account interface. You will have an opportunity
to
accept those fees when choosing to use the Service. As we provide
the
Services to you, we will deduct the fees you owe from your
account.
|
| (e) |
In
addition to charging the End Users your stated price, we will collect
and
remit to the proper authorities, where we are legally required to
do so,
any sales tax, value-added-tax (VAT), or similar tax or similar government
fees that are based on the sale of your Products (collectively “Sales
Taxes”). Any collected Sales Taxes will not be placed into your account
but shall instead be paid by us to the appropriate government authority.
If we process any refunds to End Users who have purchased your Products,
we will deduct the amount of the refund from your account. Normally,
we
will only provide a refund to an End User upon your instruction to
us.
However, if you do not respond within 2 business days to a refund
request
we have received from an End User and forwarded to you for response
(either by yes, no or a request for further information), or if a
credit
card processor charges back to us an amount against a sale of your
License
Rights (which they may do for any reason allowable under the credit
card
processor's merchant regulations including fraud, consumer complaint
or
government order), we may choose to make the refund without your
explicit
instruction. When there is any refund or chargeback of a transaction
we
have already processed, we will keep our original margin. However,
we will
be responsible for fees payable to credit card processors, including
any
merchant fees or credit card transaction fees. We will also be responsible
for any chargeback fees charged by the credit card processors unless
the
chargeback arose out of your own fraudulent acts or
omissions.
|
-3-
| (f) |
At
the end of each pay cycle, we will send you a payment in the form
you
select in your account settings for the payable amount in your account.
However, our obligation to pay you out of your account is subject
to-the
following:
|
| (i) |
Upon
receipt of the notice of termination, we are authorized to withhold
a
reasonable portion of those licensing fees yet to be paid in order
to
cover still undetermined chargebacks and refunds. As a rule, chargebacks
can occur up to six months after settlement of a transaction. The
amount
to be withheld is therefore based on the individual average percentage
value of chargebacks and refunds in relation to your total sales
during a
period of twelve (12) months during which products were sold in fact,
whereby the last 6 months prior to receipt of the termination letter
shall
not be considered. The average value thus determined shall be multiplied
by sales during the last six (6) months. The result shall form the
amount
of withholding, if a larger withholding does not appear to be justified
(example: 2 % [percentage value of chargebacks/refunds in 12 months]
x
$60,000 [sales during last 6 months] = $1,200). In the event the
underlying contractual relationship is less than 12 months, we shall
be
authorized to withhold a lump sum of 15% of sales of the last month
unless
refunds and/or chargebacks of the last month are greater than 10%,
in
which case we shall be authorized to withhold three times the amount
of
refunds and/or chargebacks being realized in the last month. The
amount
withheld shall be paid out 6 months after the termination date of
the
agreement, less any reverse entries made by that date. In the event
that
the amount withheld does not cover all reverse entries, we are authorized
to demand payment from you of any reverse entries not covered. Such
payment shall then be due no later than 30 days after receipt of
the
payment demand.
|
-4-
| (ii) |
If
the total amount we owe to you at the end of a pay cycle will be
less than
$100, or at the end of a calendar quarter will be less then $25,
we will
withhold payment until a later pay cycle when the total amount owed
is
greater than the above amounts.
|
| (iii) |
All
the payments shall be made within 30 days by the end of the month
in which
the sales occurred.
|
| (iv) |
Any
and all fees, payments, compensation, consideration, and other money
amounts shall be expressed and payable in United States Dollars.
Amounts
in your account with us will not accrue interest while in our
possession.
|
| 5. |
WHAT
DO YOU PROMISE TO US?
|
You
make
the following promises and warranties to us:
| (a) |
You
have the right to sell the License Rights to us for purposes of resale
through our Site. If you have us distribute your Software or associated
files, license keys or tokens, you have the right to permit us to
do those
Services for you. You warrant that our sale, copying, storage and
distribution of the License Rights or the Software will not infringe,
violate or misuse anybody's else's intellectual property rights.
You
warrant that the above warranties and promises are valid for sale
and
distribution to End Users throughout the
world.
|
| (b) |
Any
descriptions you provide for your Software that will be displayed
on our
Site are accurate, and will not be in violation of any applicable
laws or
regulations concerning advertising claims or other forms of consumer
protection laws.
|
| (c) |
You
have the right to enter into this Agreement, and that you are of
legal age
and otherwise competent to be contractually bound to this Agreement.
Also,
if you are a corporation or other form of business entity, the person
who
has pressed the Register button is authorized to bind you, and if
that
person is not so authorized that person agrees that he or she is
personally responsible for whatever is done on your account under
this
Agreement.
|
| (d) |
Your
Software, including all content within it, is not libelous, does
not
slander others, does not contain obscene or pornographic material,
is not
illegal to use, nor does it contain devices which are intended to
be used
to perform illegal activities (such as, but not limited to, tools,
devices
or software used to defeat data encryption devices), nor is it designed
as
a tool for processing e-mail for mass mailing (“spamming” tools or the
like). Our distribution of your License Rights and/or the Software
will
not violate any laws concerning export over national borders, including
laws involving encryption technology. You agree that we may, in our
sole
discretion, decline to carry (or to continue to carry) any of your
Products at any time, with or without
reason.
|
-5-
| (e) |
All
of the information you entered on the Author Registration is correct
as of
the time you entered it. You also promise that you will update any
of that
information when it has changed by updating your online account interface.
You can access your account information within the Vendor's
Center.
|
| (f) |
Anyplace
you promote the sale of the License Rights where you provide End
Users
with a hyperlink or other means to reach our Site (whether on a Web
site,
e-mail, on paper or any other means); you will not display any inaccurate
or misleading information concerning your identity or
location.
|
| (g) |
If
you ever have reason to believe there is any reason these promises
are not
true, now or in the future, you promise to promptly tell
us.
|
| (h) |
You
hereby irrevocably appoint as to be your exclusive agent during the
term
of this agreement to accept and process and deliver orders from the
public
sections of your website(s) listed in the opening Paragraph of this
agreement for the software product via Xxx.Xxx, and in doing so,
to
collect the appropriate fees from your purchasing customers. This
exclusivity does not apply to third party affiliate networks that
also act
as payment processors, including but not limited to: ClickBank, RegNow,
and CCBill.
|
| 6. |
WHAT
RIGHTS DO WE HAVE AND
KEEP?
|
| (a) |
You
acknowledge that we can, at any time cease to distribute any or all
of
your License Rights or your Software if we determine that the License
Rights or Software violate your promises to us as stated
above.
|
| (b) |
We
are not obligated to pay you any amounts in your account that are
connected with any activities that are deemed to be fraudulent or
criminal
(reasons for withholding such amounts include by way of example but
not
limitation, identity theft and unauthorized use of credit cards).
The
existence or possibility of fraud or criminal activity will be determined
by us in our reasonable discretion, and we may make any inquiries
and
investigations we deem appropriate.
|
| (c) |
Our
Site has a Privacy Policy posted at xxxx://xxx.xxx.xxx/xxxxxxxxxx.xxx?,
and that policy describes how we may store, use and disclose personal
information about you and your End Users. You agree to the terms
of that
Privacy Policy as it is now issued and as it may be amended in the
future
by us. You agree that you will not do anything to interfere with
our
Privacy Policy and how it impacts your End Users, and agree that
we have
sole control of the terms and enforcement of our Privacy Policy.
You agree
that the Privacy Policy you post on your site will be sufficiently
broad
to permit us to use the information sent to us consistent with our
Privacy
Policy.
|
-6-
| (d) |
If
we determine that the sale of your Product into any particular place
will
put us in violation of local tax laws, and if resolving that problem
will
cost us an unreasonable amount of time, effort or money, we may choose
to
refuse to make sales to End Users in those
locations.
|
| (e) |
Our
trademarks, service marks and business names (our “Trademarks”) are owned
or licensed solely and exclusively by us. All of your use of our
Trademarks shall inure to our benefit. You agree, upon our demand,
to
promptly stop or alter any of your uses of our Trademarks which we
deem to
be improper or which may have the potential to put our Trademark
rights at
risk.
|
| 7. |
WHAT
DO YOU NEED TO DO ABOUT SPAM AND
ADVERTISING?
|
| (a) |
You
may not use commercial e-mail (solicited or unsolicited) to market
your
Software, or that identifies us or our Web site, where the e-mail
violates
any applicable laws or regulations regarding the use of commercial
e-mail.
You must comply with any legal obligations to provide proper labeling
and
content within your marketing e-mails, and to provide opt-in or opt-out
capabilities to recipients and comply with any such requests. Any
advertising or other marketing materials that mention our company
or our
Web site, or which contain hyperlinks to our Web site, must be in
compliance with all laws concerning advertising and marketing for
the
territories you deliver those materials
to.
|
| (b) |
You
are responsible for compliance with all of the above, whether you
provide
the e-mails or advertisements on your own or use the services of
a third
party. If we are charged any fines, penalties or incur any costs,
including attorney fees, because of your non-compliance with the
above,
you agree to reimburse us any of those amounts upon our
demand.
|
| 8. |
WHAT
WARRANTIES DO WE DISCLAIM?
|
We
provide our services to you on an AS IS basis and make no promises as to the
percentage up-time or that our site will operate without error. WE MAKE NO
WARRANTIES CONCERNING THE QUALITY OF OUR SERVICES ON THE SITE, EXPRESS OR
IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON¬INFRINGEMENT. Except for any obligations we have to pay you the
amounts in your account that are owed to you, you agree that your sole remedy
for any breach of this Agreement by us is for you to terminate this Agreement.
While this may exempt us from liability, this has no bearing on whether the
system failing to function properly constitutes a breach of contract as defined
in Section 10 of this Agreement. In the event of an uncured breach of contract,
you are permitted to terminate this agreement under Section 10 prior to the
expiration of its term.
-7-
| 9. |
HOW
IS OUR LIABILITY LIMITED?
|
UNDER
NO
CIRCUMSTANCES SHALL OUR TOTAL LIABILITY UNDER THIS AGREEMENT OR ARISING OUT
OF
OUR RELATIONSHIP WITH YOU UNDER THIS AGREEMENT, REGARDLESS OF HOW THE LIABILITY
ARISES, EXCEED THE NET AMOUNT REALIZED BY US UNDER THIS AGREEMENT. WE ALSO
SHALL
NOT HAVE ANY LIABILITY TO YOU OR TO ANY OTHER PERSON OR ORGANIZATION FOR ANY
DAMAGES RELATING TO ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES
OF ANY DESCRIPTION, WHETHER ARISING OUT OF WARRANTY OR OTHER CONTRACT,
NEGLIGENCE OR OTHER TORT, OR OTHERWISE.
| 10. |
HOW
LONG DOES THIS AGREEMENT
LAST?
|
| (a) |
The
term of this Agreement shall be one year unless sooner terminated
in
accordance with this Agreement. Such term shall automatically renew
for
successive one (1) year renewal terms unless and until one party
hereto
notifies the other party hereto in writing not less than thirty (30)
days
before the end of the then current initial term or renewal term of
its
intent not to renew this Agreement. In addition to the rights of
termination specified elsewhere in this Agreement, Xxx.Xxx or the
Publisher, as applicable, may immediately terminate this Agreement
prior
to the expiration of its tern upon the occurrence of any of the
following:
|
| (i) |
In
the event that there is a material breach of this Agreement, after
the
expiration of ten (10) days from receipt of a written notice from
the
other party communicating such breach or failure, and such breach
or
failure to perform is not cured within such ten (10) day
period,
|
| (ii) |
If
there is an outage of Xxx.Xxx service for greater than 8 hours within
any
one month period and you have given us written notice of such outage,
and
we have had five (5) days to respond to and dispute the
outage.
|
| (iii) |
If
we have a misreporting of transactions by an amount greater than
5% of the
total transactions within any one month
period.
|
| (iv) |
If
CSV or XML reporting functionality is not functioning properly and
you
have given us notice of such malfunction and we did not correct such
malfunction within five (5) days.
|
| (v) |
If
our customer service is not responding to written notices from you
within
5 business days to problems relating to our software and
systems.
|
| (vi) |
If
we alter our system in any way for the purpose of promoting any products
on the Developer's store, other than the Developers products, with
the
exception of the Service Providers products, Extended Download Service
and
CDROM Service, unless approved by you in
writing.
|
-8-
| (vii) |
If
we materially alter our system in a way that directly creates an
immediate
substantial decline in processing volume as evidenced by sales dropping
by
at least 25% as compared to an average of the previous ten (10) days
sales, on the day immediately after the change has been put into
effect by
us. You will provide us written notice of such decline and we shall
have
ten (10) days to respond or dispute such
decline.
|
| (b) |
The
assertion against either party of a claim that all or any part of
any
materials, items, products, or information developed or used in connection
with this Agreement infringes or otherwise violates the rights of
any
other person or organization, with no opportunity to
cure;
|
| (c) |
The
assertion against either party of claims relating to product liability,
with no opportunity to cure;
|
| (d) |
The
material violation of the privacy policy of either party, with no
opportunity to cure;
|
| (e) |
The
commission of a fraudulent or criminal act by either party, with
no
opportunity to cure;
|
| (f) |
Either
party substantially ceases to do business in the manner in which
it is
conducted as of the Effective Date, with no opportunity to cure;
or
|
| (g) |
Either
party initiates or has initiated against it, voluntarily or involuntarily,
any act, process or proceeding under the provisions of any bankruptcy
statute or law, or under any other insolvency law or other statute
or law
providing for the modification or adjustment of the rights of
creditors.
|
| (h) |
The
parties agree that in the event that: (a) the Publisher materially
breaches the terms of this Agreement, is given written notice of
said
breach, and fails to cure said breach within thirty (30) days of
the date
of the notice, or (b) Publisher otherwise terminates this Agreement
without cause prior to the next Expiration Date (The last day of
the
Initial Term or Renewal Term shall be referred to as the “Expiration
Date”) of this Agreement, Xxx.Xxx shall be entitled to recover damages
as
stated in this provision. Specifically, Xxx.Xxx shall be entitled
to
recover as damages (and not a penalty) an amount calculated based
on the
average Margin Payment due from Publisher to Xxx.Xxx over the last
twelve
(12) consecutive months prior to the date of the written notice of
breach
times the number of months left from the date of the written notice
of
breach until the next Expiration Date of this Agreement. For purposes
of
this calculation, the number of months remaining before the next
Expiration Date shall be rounded up to the nearest whole month. If
there
are less than twelve (12) consecutive months of Margin Payments from
which
to arrive at the average monthly Margin Payment, the average monthly
Margin Payment shall be determined by using as many whole months
available
in which Margin Payment was due from Publisher to Xxx.Xxx. For example,
if
the total payment in months 6 through 18 of the Agreement was $37,200,
and
you terminated the Agreement part of way through month 19 (or we
gave
notice of breach by you, and you failed to timely cure said breach),
damages would be calculated as
follows:
|
-9-
37,200
÷
12 = 3,100 average monthly payment
3,100
x 6
months to next Expiration Date = $18,600 damages
| (i) |
The
availability of damages under this provision shall be a cumulative
remedy,
and not the exclusive remedy, available to us for breach of this
Agreement. Notwithstanding the availability of damages under this
provision, we shall be entitled any other such remedies as may be
available to it in law or equity.
|
| (j) |
However,
if this agreement is terminated based upon an uncured breach of contract
by Xxx.xxx as defined in Section 10 of this agreement Publisher will
not
be liable for any such damages outlined in Section
10(h).
|
| (k) |
Once
this Agreement has been terminated without any renewals or amendments
per
the amendment terms below:
|
| (i) |
You
will immediately remove any reference to our name or any hyperlinks
to our
Site that deal with the sale of your License Rights or the distribution
of
your Software.
|
| (ii) |
We
will promptly halt any sale of your License Rights. We will promptly
give
notice to all Affiliates that we know are promoting the sale of your
License Rights to discontinue linking to our Site for that purpose,
but we
are not responsible for whether or not the Affiliate complies with
that
notice.
|
| (iii) |
We
will continue to make payments to you out of your account, on the
regular
pay cycle dates, until the time that your account has reached a zero
balance. Our holdback rights, as described above, survive past the
termination date of the Agreement. Your obligation to pay us for
any
shortfall in your account survives the termination of the
Agreement.
|
| (iv) |
We
may hold-back funds and charge against those funds any amounts which
we
are entitled to charge under this Agreement, as described
above.
|
| (v) |
You
will continue to be responsible for any liability that might arise
out of
fraudulent transactions, any infringement of intellectual property
rights,
and any other violation of law that may have occurred as a result
of your
Product being distributed via our
Site.
|
-10-
| 11. |
ANYTHING
ELSE WE AGREE UPON?
|
| (a) |
You
may not assign this Agreement, or any of your rights under this Agreement.
Any attempt to assign in violation of the preceding shall, at our
option,
render this Agreement null and void. However, the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
and their permitted successors and
assigns.
|
| (b) |
Except
as otherwise stated in this agreement, neither you nor we are obligated
to
deal exclusively with the other, and you may use other means or companies
to distribute your License Keys and/or Software, and we may distribute
Software and/or License Rights provided by others that may be similar
to
or competitive with your Software.
|
| (c) |
End
User data shall be owned jointly by you and us. If there is an Affiliate
involved in the collection of the End User data, then they may also
be a
joint owner of the End User data.
|
| (d) |
We
are relieved of any obligation to perform under this Agreement if
we are
unable to perform as a result of natural disaster, war, emergency
conditions, labor strike, acts of terrorism, the substantial inoperability
of the Internet, the inability to obtain supplies, or other reasons
or
conditions beyond our reasonable
control.
|
| (e) |
If
you are obligated under this Agreement to tell us something or you
wish to
give us legal notice of any kind, you must do so in writing and deliver
it
by certified mail, postage pre-paid and return receipt requested
OR by
nationally recognized overnight courier which provides a written
proof of
delivery, to the following address:
|
Xxx.Xxx,
Inc.
Attn:
General Counsel
0000
00xx
Xxxxxx,
Xxxxx 000
Xxxx
Xxxxxxx, XX 00000
| (f) |
If
we are obligated under this Agreement to tell you something or we
wish to
give you legal notice of any kind, we may choose to do so by use
of any of
the addresses shown on your Publisher Registration page, including
postal
mail or e-mail.
|
| (g) |
This
Agreement shall be governed by and interpreted under the laws of
the State
of Minnesota. The parties specifically disclaim application of the
United
Nations Convention on the International Sale of
Goods.
|
| (h) |
If
there are any disputes or conflicts related to or arising out of
this
Agreement, you and we shall use reasonable means to resolve the conflict
prior to starting any lawsuits or other litigation, including negotiation
between management personnel capable of resolving the conflicts.
However,
in the event either you or we should start any litigation arising
out of
this Agreement, you expressly agree that the litigation will take
place
exclusively in the state or federal courts located in Hennepin County,
Minnesota, USA, and you expressly agree that any such court has personal
jurisdiction over you. You waive all defenses of lack of personal
jurisdiction and forum non-conveniens. Process may be served on either
party in the manner authorized by applicable law or court rule. This
Agreement sets forth the entire understanding between you and us
concerning the subject matter hereof, and any prior understandings,
or
understandings that are not expressly contained in this Agreement,
shall
have no effect as of the date this Agreement is
effective.
|
-11-
| (i) |
The
provisions of this Agreement shall not in any respect whatsoever
be deemed
to create a partnership, joint venture, or other business combination
between you and us. Neither you nor we shall be obligated by any
agreement, representation or warranty made by the other, nor shall
you or
we be obligated for damages to any person or organization for personal
injuries or property damage directly or indirectly arising out of
the
conduct of the other party’s business or caused by the other party’s
negligence, willful act, or failure to act. There are no third-party
beneficiaries through you under this
Agreement.
|
| (j) |
In
the event any portion of this Agreement shall be held to be invalid,
the
same shall not affect in any respect whatsoever the validity of the
remainder of this Agreement. The provisions of this Agreement which,
by
their terms, require performance after the termination of this Agreement,
or have application to events that may occur after the termination
of this
Agreement, shall survive the termination of this Agreement. This
Agreement
is written with titles and headings intended to provide a greater
understanding of the terms of the Agreement. However, the titles
and
headings of the various sections and paragraphs in this Agreement
are
intended solely for convenience of reference and are not intended
for any
other purpose whatsoever, or to explain, modify or impose any construction
or meaning on any of the provisions of this
Agreement.
|
| 12. |
DESCRIPTION
OF SERVICES.
|
| (a) |
Both
Xxx.Xxx and you jointly agree upon the following proposed services
described below.
|
| (b) |
The
Xxx.Xxx Basic Services
|
| (i) |
Use
of web server & database server for the secure processing of orders
from Publisher's online store. This processing will include processing
for
one time sales and (or) recurring
billing.
|
| (ii) |
Xxx.Xxx
will provide an XML web service to receive order information from
Publisher. Xxx.Xxx will process order information and send back to
Publisher an approval or a denial for each transaction sent. Furthermore
Publisher agrees that no Credit Card information will be stored on
Publisher's Systems.
|
-12-
| (iii) |
Xxx.Xxx
shall keep accurate record related to the transactions being processed
through the online store managed by
Xxx.Xxx.
|
| (iv) |
Xxx.Xxx
will maintain on-call system administration availability 24 hour
per day,
7 days per week during the term of the
Agreement.
|
| (v) |
The
online shopping systems allows payment via credit card (MasterCard,
Visa,
American Express, Discover, and Diners
Club).
|
| (vi) |
Xxx.Xxx
shall use reasonable efforts to screen for potential fraudulent
orders.
|
| (c) |
License
and Product Delivery
|
| (i) |
Publisher
will make its web-based key generator available to Xxx.Xxx to use
at
Publisher's sole discretion.
|
| (ii) |
Xxx.Xxx
will deliver licenses to End Users at Publisher’s option upon completion
of successful orders.
|
| (d) |
Online
Information System
|
| (i) |
Xxx.Xxx
will allow Publisher access to use Xxx.Xxx’s secure control panel for real
time access to customer and transaction data for managing Publisher's
product and online store design.
|
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the dates set
forth below, to be effective as of the Effective Date.
| VENDOR | |||
| Enigma Software Group, Inc. | Xxx.Xxx, Inc. | ||
| /s/ Colorado Xxxxx | /s/ Xxxxxx Xxxxx | ||
|
Signature |
Signature |
||
| Chairman | Chief Financial Officer | ||
|
Title |
Title |
||
| Date: January 26, 2005 | Date: January 26, 2005 | ||
|
|
|
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