EXHIBIT 10.5
RESELLER AGREEMENT
This Reseller Agreement is made and entered into this 8 day of October,
1998 by and between Utah WebWorks, Inc. ("UWI"), a Utah corporation, and
________________________________ ("Reseller").
For ten dollars and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties mutually agree as
follows:
1. Use of Software and Services Provided. UWI has created software known
as Visual WebTools, which is accessible via the Internet. Said software
shall hereinafter be referred to as "the Software". UWI will provide
licenses to use the Software to the Reseller's End Users for the
purpose of creating Internet projects for the fees set forth herein.
2. Pricing. Reseller agrees to pay UWI according to the Pricing Schedule,
which is attached hereto as Exhibit A and incorporated herein by
reference.
3. Payment Terms. The following payments terms shall apply:
1. Time of Payment. Reseller agrees to pay UWI the amounts due
within five business days after receipt of UWI's invoice.
2. Payment Not Contingent. The amounts due UWI from Reseller are
not contingent upon receipt of payment to Reseller by the End
User.
4. Use of Purchase Agreement With End User. Reseller agrees to have each
End User sign a Purchase Agreement, which agreement has been provided
by UWI to Reseller.
5. Training of Reseller. UWI will provide Reseller with initial, training
with respect to the use of the Software. Said training shall consist of
up to 5 days of on site training during the first three months after
the date of this Agreement as requested by Reseller.
6. Support of End User. Reseller shall be responsible to provide all
support for the End Users solicited by Reseller. If End User requests
support form UWI, said support will be provided by a 900 telephone
number with appropriate charges assessed to the End User. Until
otherwise notified, Reseller may represent to End Users that UWI will
provide support, for which charges will be assessed at the rate of one
dollar per minute billed to the nearest one minute interval and that
such rates will prevail until End User is otherwise notified by UWI.
7. Use of Software. Reseller will use its best efforts to assure that the
End User will not use the Software in any way which violates any
international, federal, state or local laws, including without
limitation, laws dealing with copyrights, indecent material,
misrepresentation or other illegal or improper purpose. End User shall
not send or allow anyone else to send any unsolicited e-mail messages
or advertising as relates to the Software, domain or web site of End
User. UWI reserves the right to terminate services for any End User
which is breach of this paragraph.
8. Sales Materials. UWI will make available any sales materials it has
developed relating to the Software. If Reseller produces its own sales
materials, said materials shall first be approved by UWI in writing.
9. Independent Contractor. Reseller is an independent contractor and is
not authorized to make any representations or incur any obligations on
behalf of UWI without UWI's written permission.
10. Warranty Limitation.
1. Limitation. NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE
MADE AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
OR ANY OTHER MATER WITH RESPECT TO THIS AGREEMENT, unless
specifically set forth herein.
2. Service. UWI makes no warranties as to the delivery,
completeness, accuracy or relevance of information provided to
End User through the use of the Software.
3. Reseller Indemnified. UWI will indemnify Reseller against any
damage claims by End users resulting from the fault of UWI in
failing to reasonably provide access to UWI's servers with
regard to the use of the Software or to provide support
pursuant to this Agreement or the Purchase Agreement with End
User. UWI does not assume responsibility for service
interruptions, delays, non-delivery of information, or the End
Users inability to access UWI's servers which are beyond UWI's
control such as power outages, telephone line failures, acts
of God or similar circumstances. For service interruptions
which are reasonably within UWI's control, UWI shall have 15
days to correct said service interruption without any recourse
from Reseller.
11. Payment for Internet Domain Name. UWI and Reseller agree to pay and
share equally the fees due Network Solutions, e.g. Internic, to acquire
the use of a domain name. T he End User shall be responsible to pay
these charges after the first two years of their Purchase Agreement.
12. Invoicing End User. Reseller shall be responsible to invoice and
collect amounts due from End Users.
13. Default. Any breach of the terms of this Agreement by Reseller or UWI,
which is not cured within thirty days after notice, shall constitute a
default under this Agreement.
14. Termination of Agreement. Upon default by Reseller, UWI may elect to
terminate this Agreement upon ten days written notice and shall be
entitled to collect any unpaid amounts that are due pursuant to this
Agreement. In addition, after default, UWI shall be entitled to any
other remedies allowed under Utah law. In the event this Agreement is
terminated, UWI can take over and/or transfer and service the End Users
that were solicited by Reseller and enter into new Purchase Agreements.
However, all commissions and residuals, as those terms are defined
herein, which would be due Reseller based upon fees and charges paid by
End users who have signed Purchase Agreements prior to the termination
of this Agreement, shall not be forfeited by Reseller upon termination
of this Agreement but shall continue for a period of twelve months from
the date of termination so long as the particular End User continues to
utilize services of UWI without substantial interruption. For purposes
of this paragraph, substantial interruption shall mean at least six
months. UWI will pay Reseller its commissions and residuals on the
first day of each month after receipt of fees from any End User to
which Reseller is entitled to commissions or residuals, less a twenty
five percent fee for servicing said accounts after default.
For purposes of this Agreement, the following definitions shall apply:
1. Commissions. The term "commission" as used herein shall mean
the entire purchase price and fees paid by End User under the
Purchase Agreement less the amount owed to UWI by Reseller
under the price schedule attached hereto as Exhibit A.
2. Residuals. The term "residuals" shall mean the entire purchase
price and all fees paid by End User in any year subsequent to
the first year after execution of a Purchase Agreement, less
amounts owed to UWI by Reseller under the price schedule
attached hereto as Exhibit A.
15. Indemnification. Reseller agrees to indemnify and hold UWI harmless
against, and in respect of, any and all claims, losses, expenses,
costs, obligations, and liabilities they may incur by reason of
Reseller's failure to perform any of its warranties, guaranties,
commitments, or covenants set forth in this Agreement. If a party shall
bring suit to enforce this indemnification provision, the party making
the indemnification shall be liable for all costs and expenses,
including fees of attorneys, incurred in prosecuting such action (or
any appeal thereto), and such costs and expenses shall be included in
any judgment that may be rendered.
16. Arbitration. In the event of a dispute under this Agreement, the
parties agree that any dispute shall be resolved by arbitration
according to the rules of the American Arbitration Association. The
arbitration hearing shall be held in Salt Lake City, Utah. One
arbitrator shall be selected. The costs of arbitration shall be equally
divided between the parties. Each party shall pay their own attorney's
fees.
17. Dealer Network. Reseller may establish a network of dealers, which
shall have the right to resell the Software to End Users. UWI agrees
not to directly solicit any party while they are actively reselling the
Software for Reseller.
18. Exclusivity. As otherwise provided in this paragraph, UWI shall not
solicit or contract with any party within Salt Lake County, in the
State of Utah for the purpose of establishing a dealer network as
described above so long as Reseller meets its milestones in sales as
set forth on Exhibit B, attached hereto and incorporated herein by
reference. For parties in Salt Lake County which inquire of UWI about
purchasing the Software, or selling the Software to businesses in Salt
Lake County, UWI agrees to refer them to Reseller for sale of the
Software within Resellers sales organization. Notwithstanding any
provision hereof to the contrary, UWI may solicit and establish dealer
networks with the parties listed on Exhibit C, attached hereto and
incorporated herein by reference. UWI agrees to limit any future
Resellers form selling the Software within Salt Lake County, unless
said sales are conducted from outside said county without face to face
contact.
19. Retail Price Stipulations. Reseller agrees to sell the Software
according to the price schedule attached hereto as Exhibit A. Said
price schedule may be revised by UWI at its sole discretion and
redistributed to its Resellers. UWI agrees to provide the same price
schedule to all of its Resellers in Salt Lake County so as not to
create an unfair market advantage for any Reseller.
20. Use of Name. Reseller may represent themselves as an authorized dealer
of UWI. Reseller agrees to use UWI's name, logo, slogan or anything,
which represents the corporate image of UWI or the Software subject to
approval by UWI. Reseller agrees to represent the Software and its
capabilities accurately and correctly and agrees not to make false
claims or representations as to the same.
21. Miscellaneous.
1. Notice. All demands and notice to be given hereunder, if any,
shall be personally delivered or sent by registered mail
addressed to the respective parties at their postal addresses
as of the date of this Agreement or to such other address as
each may hereafter designate in writing.
2. Successors. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of
the respective parties hereto, their legal representatives,
successors and assigns.
3. Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties and supersedes
all prior agreements or understandings with respect to the
subject matter of this Agreement.
4. Amendment. This Agreement may not be altered or amended except
by a subsequent written agreement executed by all of the
parties hereto.
5. Governing Law. The terms of the Agreement shall be governed by
and construed in accordance with Utah law. The parties agree
that any legal proceedings relating to the subject matter of
this agreement shall be brought exclusively in the State of
Utah. The parties represent to each other that the Agreement
to bring legal proceedings exclusively in the State of Utah
will not place a serious inconvenience or be unfair or
unreasonable to any of the parties hereto.
6. Severability. If any of the terms and conditions of this
Agreement shall be declared invalid by a tribunal or entity
having jurisdiction thereof, the application of such
provisions to parties or circumstances other than those as to
which it is held invalid or unenforceable shall not be
affected thereby, and each of them not so declared invalid or
unenforceable shall be valid and be enforced to the fullest
extent permitted by law.
7. Place of Payment. The obligation to make payment as provided
herein shall be made in Salt Lake County, State of Utah.
8. Interest. In the event any money obligation described herein
is not paid when due, interest shall accrue (both before and
after judgment) thereon at the Annual Percentage Rate of
eighteen percent (18%) per annum.
9. Authorization. The individuals who have signed this Agreement
represent and warrant that they are duly authorized to execute
this Agreement, in either their individual or representative
capacity as indicated, and that this Agreement is enforceable
according to its terms.
10. Assignment. No interests or obligations under this Agreement
are assignable without the written consent of all parties. If
such consent is given, no assignment shall relieve any party
from the performance of all of the covenants and conditions
set forth herein.
22. Sale of UWI. In the event that UWI is sold, this Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year above indicated.
Utah WebWorks, Inc.
-----------------------------
Authorized Officer
[COMPANY NAME]
-----------------------------
Authorized Officer
EXHIBIT "A"
Visual WebTool(TM) Reseller Pricing Guide
Product Reseller Cost MRP
WebWizard $500.00 $1,500.00
WebWizard - FPA $335.00 $1,005.00
WebShopper XXX XXX
WebChannels XXX XXX
WebProfiler XXX XXX
WebStats XXX XXX
EXHIBIT "B"
Visual WebTool(TM) Reseller Sales Schedule
Month Number of Sales of WebWizard or WebWizard FPS
October 1998 5
November 1998 10
December 1998 20
January 1999 20
February 1999 35
March 1999 50
For 6 months following March 1999 the number of sales shall be at least 50 per
month.
For 4 years starting in September 1999 the number of sales shall be at least 75
per month.
EXHIBIT "C"
Utah WebWorks(TM) Prospects - State of Utah
Global Marketing Alliance (GMA)
The American Home Business Association (AHBA)
Home Business Works (HBW)
