FORM OF
RESELLER AGREEMENT
This Reseller Agreement is made and entered into this 25th day of
August, 1999 by and between Pacific WebWorks, Inc. ("PWI"), a Utah corporation,
and U.S. Merchant Systems, Inc., a California corporation ("Reseller").
PWI hereby grants to Reseller and Reseller hereby accepts, subject to
the terms and conditions contained in this agreement, a non-exclusive,
non-transferable right in the Territory to: (a) market and demonstrate PWI
Software and Services to prospective Licensees. For the Reseller Fee contained
in Exhibit A, and other good and valuable consideration, the parties mutually
agree as follows:
1. Use of Software and Services Provided. PWI has created software known
as Visual WebTools, which is accessible via the Internet. Said software
shall hereinafter be referred to as "the Software". PWI 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 PWI 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:
a. Time of Payment. Reseller agrees to pay PWI the amounts due
within 30 business days after receipt of PWI's invoice.
b. Payment Not Contingent. The amounts due PWI from Reseller are
not contingent upon receipt of payment to Reseller by the End
User.
c. Payment in U.S. Funds. All amounts are payable in US Dollars
and all sales, withholding, other taxes and duties, if any,
shall be paid by Reseller.
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 PWI to Reseller.
5. Training of Reseller. PWI will provide Reseller with initial training
with respect to the use of the Software. Said training shall consist of
up to 2 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. PWI shall be responsible to provide all support
for the End Users solicited by Reseller. Support will be provided with
appropriate charges assessed to the End User. Until otherwise notified,
Reseller may represent to End Users that PWI will provide support, for
which charges will be assessed at the rate of $40 per call and that
such rates will prevail until End User is otherwise notified by PWI.
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. 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.
PWI reserves the right to terminate services for any End User, which is
breach of this paragraph.
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8. Sales Materials. PWI will make available any sales materials it has
developed relating to the Software. Pricing for Sales Materials is
contained in Exhibit A. If Reseller produces its own sales materials,
said materials shall first be approved by PWI 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 PWI without PWI'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. PWI 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. PWI will indemnify Reseller against any
damage claims by End Users resulting from the fault of PWI in
failing to reasonably provide access to PWI'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. PWI does not assume responsibility for service
interruptions, delays, non-delivery of information, or the End
Users inability to access PWI's servers which are beyond PWI's
control such as power outages, telephone line failures, acts
of God or similar circumstances. For service interruptions
which, are reasonably within PWI's control, PWI shall have 15
days to correct said service interruption without any recourse
from Reseller.
11. Payment for Internet Domain Name. The End User shall be responsible to
pay these charges upon signing 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 PWI,
which is not cured within thirty days after notice, shall constitute a
default under this Agreement.
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14. Term and Termination of Agreement.
a. Term. The term of this agreement shall commence on the
effective date and shall continue in force for a period not to
exceed one (1) year from such date ending on the 31st day of
May following the effective date, unless earlier terminated as
provided herein. This agreement shall renew in one year
increments from the effective date unless terminated by either
party in writing within 30 days of the renewal date.
b. Termination by either party. This contract can be immediately
terminated by either party in the event that the other party
ceases conducting business in the normal course, is insolvent,
petitioned into bankruptcy or becomes subject to any
proceeding for the protection of the rights of its creditors.
c. Termination for cause. Upon default by Reseller, PWI 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, PWI
shall be entitled to any other remedies allowed under Utah
law. In the event this Agreement is terminated, PWI 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 be due within 60 days of termination. PWI
will pay Reseller its commissions and residuals 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:
d. 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 PWI by Reseller
under the price schedule attached hereto as Exhibit A.
e. 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 PWI by Reseller under the price schedule
attached hereto as Exhibit A.
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15. Indemnification. Reseller agrees to indemnify and hold PWI 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. PWI agrees
not to directly solicit any party while they are actively reselling the
Software for Reseller.
18. 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 PWI at its sole discretion and
redistributed to its Resellers. PWI 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.
19. Use of Name. Reseller may represent themselves as an authorized dealer
of PWI. Reseller agrees to use PWI's name, logo, slogan or anything,
which represents the corporate image of PWI or the Software subject to
approval by PWI. 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.
20. Miscellaneous.
a. Notice. All demands and notices 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.
b. 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.
c. 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.
d. Amendment. This Agreement may not be altered or amended except
by a subsequent written agreement executed by all of the
parties hereto.
e. 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.
f. 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.
g. Place of Payment. The obligation to make payment as provided
herein shall be made in Salt Lake County, State of Utah.
h. 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.
i. 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.
j. 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 PWI. In the event that PWI is sold, this Agreement shall remain
in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year above indicated.
Pacific WebWorks, Inc.
___________________________
Authorized Officer
U.S. Merchant Systems Inc.
___________________________
Authorized Officer
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Exhibit A
Pacific WebWorks, Inc.
US Merchant Systems
Complete E-Commerce Package Pricing
Confidential
Package Costs
Retail Package Wholesale Pricing
WebWizard - Retail $100.00
WebShopper - Retail $100.00
Intellipay with e-check $399.00
E-commerce CD-ROM $60.00
Express Package USMS Regular
WebWizard - Express $250.00 $300.00
WebShopper - Express $250.00 $300.00
Upgrade of Choice $100.00 $100.00
Intellipay with e-check $399.00
E-commerce CD-ROM $60.00
Pro Package USMS Regular
WebWizard - Pro $500.00 $625.00
WebShopper - Pro $300.00 $350.00
WebChannels $100.00 $100.00
WebProfiler $100.00 $100.00
WebStats $100.00 $100.00
Intellipay with e-check $399.00
E-commerce CD-ROM $60.00
Options
Domain Name Registration $50.00
Search Engine Submission $50.00
WebChannels $100.00
WebProfiler $100.00
WebStats $100.00
