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EXHIBIT 10.2
Digital River Vendor Agreement
This Agreement is made and entered into on (date) 03/01/00
by and between Digital River, Inc., its successors or assigns,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("DRI and
Tsunami Media, Corporation, located at
▇▇▇▇▇ - ▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
a Corporation hereafter referred to as "Vendor", with its
principal office at
▇▇▇▇▇ - ▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇.
BACKGROUND
a. Vendor is the Owner of all rights (or has a license to
sell) to the Software as defined hereunder.
b. Vendor desires to enter into an Agreement with DR to
allow DR to distribute the Software.
c. DR desires to obtain the right to distribute the
Software.
NOW THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS
a. Software: the executable object code for Vendors software
identified on Exhibit A, including all subsequent versions
thereof provided to DR pursuant to this Agreement.
b. Documentation: all computer readable and/or printed
instructions, manuals and other materials normally provided
from time to time by Vendor to End Users for use of the
Software, and all subsequent versions thereof provided to DR
pursuant to this Agreement.
c. End-User License Agreement (▇▇▇▇): the computer readable
license agreement provided by Vendor that governs the use of
the Product by End Users, and which is to be included with
each copy of the Product sold by DR hereunder.
d. DR Materials: computer readable materials provided by DR for
inclusion in an electronic package containing the Software,
Documentation, and ▇▇▇▇, which materials have been approved
by Vendor.
e. Product: a copy of the Software, Documentation, ▇▇▇▇ and DR
Materials, if any, packaged in computer readable form
together for electronic delivery on ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (or
equivalent) and/or in tangible packaged form for delivery in
accordance with this Agreement, as identified on Exhibit A.
f. End User: person(s) or organization(s) that acquire a
Product for use rather than resale or distribution.
g. Vendor Trademarks: the trademarks, trade names, and logos
used by Vendor in connection with the Product.
h. Territory: all countries in the world except (i) countries
to which export or re-export of any Product, or the direct
products of any Product is prohibited by United States law
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without first obtaining the permission of the United States
Office of Export Administration or its successor, and (ii)
countries that may be hereafter explicitly excluded pursuant
to the terms of this Agreement.
i. Dealer: person(s) or organization(s) that resell the
Products.
j. Site: the Vendor's World Wide Web Site
k. Host Sales: sales of the Products originating from the Site.
l. Channel Sales: sales of the Products originating from a
source other than the Site
m. Transaction: the processing at one time of a payment made by
an End User, which processing of payment may include more
than one (1) Product.
2. LICENSE
a. Vendor hereby grants DR, within the Territory, a license and
right to:
1. Reproduce and distribute the Product in computer
readable form to the End Users and/or Dealers if
Product is identified on Exhibit A for electronic
delivery; 1
2. Package the Product in a computer readable form
reasonably specified by Vendor if Product is identified
on Exhibit A for electronic delivery;
3. Utilize the Vendor Trademarks in connection with the
replication of the Product, packaging and distribution
of the Product, in a manner reasonably specified by
Vendor; and
4. Distribute in tangible form the Product to the End
Users and/or Dealers if Product is identified on
Exhibit A for tangible delivery.
b. DR acknowledges that the Software and Documentation are the
property of Vendor or its licensors and that DR has no
rights in the foregoing except for encryption software
supplied by DR, if any, and those expressly granted by this
Agreement.
c. Under no circumstances shall the provisions of this
Agreement be deemed to require DR to engage in any
activities in connection with the distribution of the
Products that could, in the reasonable discretion of DR,
result in a financial loss to DR or result in an
unacceptably small level of profitability for DR.
3. VENDOR'S GENERAL OBLIGATIONS
a. Vendor shall deliver the current version of the Product to
DR immediately following execution of this Agreement. Vendor
will provide DR with (i) copies of the Software on master
diskettes if Product is identified on Exhibit A for
electronic delivery, (ii) Product specification information
in a single file, self extracting archive format, or in
another mutually agreeable computer readable form that can
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be reproduced by DR, (iii) Documentation in a computer
readable form mutually agreeable to the parties that can be
reproduced by DR, and (iv) all the items and materials
specified in the "Requirements Checklist" on Exhibit B.
b. Vendor shall provide DR with computer readable copies and/or
tangible packaged Products containing all new releases,
updates, or revisions of the Software and Documentation
within a reasonable time after each such release is made
generally available by Vendor. Vendor will notify DR of its
plans for each new release, update or revision of the
Product within a reasonable period of time prior to such
release and offer such releases, updates, or revisions of
the Product to DR in sufficient quantities on or before the
date it is offered to any other distributor.
c. For Products are listed on Exhibit A as Host Sales, Vendor
shall provide a hypertext link to ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (or
equivalent) on the Site (the Link) where Product may be
purchased by End-User from DR. Vendor agrees to prominently
display the Link and to use reasonable efforts to promote
the Link on Site. Vendor agrees that no other hypertext link
for sale of the Products will be placed on the Site or
elsewhere without the prior written consent of DR.
d. If Vendor makes any modifications, updates, or enhancements
(the Improvements) to the Product, Vendor will offer the
improvements for distribution by DR on terms substantially
equivalent to those provided in this Agreement. In the event
that Vendor develops or acquires any new products, Vendor
agrees to give DR the right of first refusal for
distribution of these products on the Site and as provided
for in this Agreement with respect to the Products.
e. Vendor shall furnish a ▇▇▇▇ in computer readable form to DR
which is to be included with each copy of the Product sold
by DR hereunder. Vendor's linking of the Site to
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (or equivalent) shall constitute
approval of the ▇▇▇▇ DR is delivering as part of the
Product.
f. Vendor shall provide all support and be fully responsible
for all warranty obligations relating to the Product. Such
support and warranty shall be provided in accordance with
Vendor's then-current published software support policy, or,
in the absence of such a policy in a reasonable manner.
g. Vendor shall provide DR, without charge, such technical
information, current maintenance documentation, and
telephone assistance as is necessary to enable DR to
effectively reproduce, electronically package, and
distribute the Products as provided for in this Agreement.
4. WARRANTIES
a. Vendor represents and warrants that it has the right and
authority to enter into this Agreement and to grant DR the
rights to the Software and Documentation granted in this
Agreement.
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b. Vendor represents and warrants to DR that the Vendor has all
rights, title, and interest in the Software and
Documentation or has obtained the right to grant to DR the
licenses set forth in this Agreement. As of the execution
date of this Agreement, Vendor represents and warrants that
to the best of Vendor's knowledge the Product does not
infringe upon or misappropriate the proprietary rights of
any other person or organization.
c. DR represents and warrants that it has the right and
authority to enter into this Agreement.
d. DR represents and warrants that it will use its best efforts
to accurately replicate the Product.
e. DR represents and warrants that except for encryption
software, if any, supplied by DR, the Products will not be
altered by DR.
f. Vendor represents and warrants that the Software: shall
accurately manage, manipulate, and process data (including
without limitation, calculating, comparing, and sequencing)
involving dates, from, into, and between the Twentieth
Century and the Twenty-first Century, the calendar years
1999 and 2000, and leap year calculations, and shall not
cause an abnormally ending result within the application or
generate incorrect values or invalid results involving such
dates; provides that all date-related user interface
functionalities and data fields include the indication of
century; and provides that all date-related date interface
functionalities include the indication of century.
5. INITIALIZATION FEE
Vendor agrees to pay DR the Initialization Fee specified on
Exhibit A. Vendor agrees to allow DR to offset the unpaid
Initialization Fee against any or all other amounts owing to
Vendor by DR under this Agreement. Products available from Vendor
will be installed on DR's server upon fulfillment of other
obligations pursuant to this Agreement. The Initialization Fee
includes normal price changes and version updates. All requested
and mutually agreed upon programming and changes made after
initial site setup excluding normal price changes, product
additions and version updates will be charged to Vendor at One
Hundred Eighty Dollars ($180.00) per hour (Site Maintenance).
Vendor agrees to pay the billed Site Maintenance charges within
thirty (30) days from the date of billing. In the event that Site
Maintenance is not paid for within thirty (30) days of billing,
Vendor agrees to allow DR to offset the unpaid Site Maintenance
against any or all other amounts owing to Vendor by DR under this
Agreement.
6. PROCESSING AND PAYMENTS
Sales activities shall be processed, and payments shall be made
in accordance with the provisions specified on Exhibit C.
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7. END USER CONTACT OTHER THAN FROM SITE
The Vendor shall be charged __________ (written) ($ ________)in
addition to Transaction fees for each order taken for the
Products by means including, but not limited to, orders taken by
telephone, email, facsimile transmission or by means other than
from the Site, which amount shall, as applicable, be invoiced to
the Vendor by DR, or deducted from payments made by DR to the
Vendor. For each similar End User contact that does not result in
an order, the Vendor will be charged ________ (written) $_______.
8. RECORDS
DR and Vendor agree to maintain adequate books and records
relating to the distribution of the Product to End Users and
Dealers, including without limitation, books, records, and tax
returns relating to returns, refunds, and sales and use taxes.
Such books and records shall be available at the principal office
of each party for inspection by the other party or its
representative during normal business hours, for the purpose of
determining the accuracy of the payments required to be made
pursuant to the provisions of this Agreement. Each party shall
have the right to conduct such an audit upon twenty (20) days
advance written notice not more than twice each year. In the
event that such an audit discloses an underpayment which is
greater than five percent (5%), then the party responsible for
the underpayment shall pay the underpayment and reasonable costs
of such audit, otherwise the party requesting the audit shall pay
the costs of such audit.
9. DELIVERY OF PRODUCTS
As specified in Exhibit A, DR and/or Vendor shall be responsible
for making digital and/or tangible delivery of the Products as
follows:
a. The following provisions shall apply to any Products listed
on Exhibit A for which digital delivery is to be made by DR:
1. Within twenty-four (24) hours after receipt of an order
from an End User, DR shall make digital delivery of the
Products available to the End User.
b. The following provisions will apply to any Products listed
on Exhibit A for which tangible delivery is to be made by
DR:
1. The Vendor shall provide DR with an inventory of the
Products to be held on consignment and used by DR to
fulfill orders for the Products. DR shall be
responsible for the delivery of the Products to the End
User at a location or locations designated by the End
User.
2. The Products shall be delivered to DR prepackaged and
ready for shipment and delivery to the End User. The
Vendor shall be solely responsible for the shipment of
the Products to DR and shall be solely responsible for
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all costs and expenses associated with any such
shipments. The Vendor shall bear the entire risk of
loss of or damage to the Products during shipments to
or from DR.
3. Within fifteen (15) days after the date of this
Agreement, the Vendor shall provide DR with such
consigned quantities of the Products as may be mutually
agreed upon in writing by DR and the Vendor. On a
periodic basis, DR shall provide an inventory detail to
Vendor showing the current inventory of the Products.
Periodically, DR will issue consignment purchase orders
for the estimated needs of Product to be tangibly
delivered. The Vendor shall be responsible for making
prompt delivery of the Products to DR.
4. All shipments of Product to DR will be clearly labeled
with DR's purchase order number on the outside of the
box.
5. DR shall have no liability of any kind whatsoever as a
result of any delay in the delivery of the Products by
the Vendor, or the delivery of the Products to DR in
non-conforming condition. Upon the termination of this
Agreement, at the Vendor's sole cost and expense, the
unsold inventory of the Products shall be returned to
the Vendor.
c. The following provisions shall apply to any Products listed
on Exhibit A for which digital or tangible delivery is to be
made by Vendor:
1. The Vendor shall maintain an inventory of the Products
to be used by Vendor to fulfill orders for tangible
delivery of the Products.
2. On a daily basis, by electronic and/or facsimile
transmission, DR shall notify Vendor about the number
of orders for the Products made the previous day (the
Order Notification). The Order Notification shall
contain the names and delivery addresses (including, as
applicable, electronic delivery addresses) of the End
Users; the names , serial numbers, and quantity of the
Products sold to particular End Users; and the manner
of delivery to such End Users (whether digital or
tangible delivery).
3. Vendor shall be responsible for making digital or
tangible delivery, as applicable, of all Products to
the End Users and Dealers identified in the Order
Notifications, and shall be responsible for all risk of
loss of, or damage to the Products during digital or
tangible delivery to the End Users. Vendor shall, as
specified in the Order Notification, make digital
delivery or tangible shipment to the End User of all
the Products within twenty-four (24) hours after
receipt of the Order Notifications.
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4. Vendor shall develop, establish, and maintain such
delivery systems and procedures as may, in the
discretion of DR, be necessary ensure that the Products
are promptly and correctly delivered, and which enable
DR and Vendor to immediately determine the status of
the Products during delivery. On a daily basis, by
electronic and/or facsimile transmission, Vendor shall
provide a report to DR which provides information about
the digital deliveries and tangible shipments of the
Products made the previous day (the Shipment Reports).
The Shipment Reports shall contain the names and
delivery addresses (including, as applicable,
electronic delivery addresses) of the End Users or
Dealers to whom the Products have been digitally
delivered or tangibly shipped; the form of delivery
(whether digital or tangible delivery); the name,
address, and telephone number of carriers (in the case
of tangible shipment); confirmation numbers; package
tracking information; and any other information that
may from time to time be requested by the Company.
10. MARKETING PAYMENTS
If Exhibit D has been initialed by the parties and attached to
this Agreement, Vendor and DR agree to the marketing payments and
marketing activities provided for on Exhibit D.
11. CUSTOMER SERVICE
DR's policy is to provide End User's with a thirty (30) day right
to return Products for a refund of the purchase price paid by the
End User. Returns and refunds may be made in the discretion of
DR. This policy is subject to modification from time to time in
the discretion of DR. To the extent the Vendors return policies
are consistent with those of DR then in effect, DR shall
cooperate and assist the Vendor and End Users with respect to
Product returns.
12. CONFIDENTIALITY
a. Each party agrees that all binary code, inventions,
algorithms, know-how, ideas, and all other business,
technical and financial information it obtains from the
other party constitutes the confidential property of the
disclosing party (Confidential Information). Except as
expressly permitted in this Agreement, the receiving party
will hold in confidence and not use or disclose any
Confidential Information and shall similarly bind its
employees and agents. The receiving party shall not be
obligated under this Section with respect to information the
receiving party can document that:
1. is or has become readily available to the public
through no fault of the receiving party or its
employees or agents; or
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2. is received without restriction from another person or
organization lawfully in possession of such information
and lawfully empowered to disclose such information;
3. was rightfully in the possession of the receiving party
without restriction prior to its disclosure by the
disclosing party; or
4. is independently developed by the receiving party or
its employees or agents without access to the other
disclosing party's similar Confidential Information.
Each party's obligations with respect to Confidential Information
shall continue for the shorter of three (3) years from the date
of termination of this Agreement or until one of the above
enumerated conditions becomes applicable. Each party acknowledges
that its breach of this Section would cause irreparable injury to
the other for which monetary damages are not an adequate remedy.
Accordingly, a party will be entitled to injunctive relief and
other equitable remedies in the event of a breach of the terms of
this Agreement.
b. DR agrees not to: (i) disassemble, decompile, or otherwise
reverse engineer the Software, or otherwise attempt to learn
the source code, structure, algorithms or ideas underlying
the Software; or (ii) take any action contrary to ▇▇▇▇
except as allowed under this Agreement.
c. Except as may be required by law, Vendor shall not issue any
press release or otherwise make any public disclosure about
either the existence or the terms of this Agreement without
receiving the prior written consent of DR, which consent
shall not be unreasonably withheld.
13. VENDOR TRADEMARKS
a. DR acknowledges that the Vendor Trademarks are trademarks
owned or licensed solely and exclusively by Vendor. DR
agrees to use the Vendor Trademarks only in the form and
manner and with appropriate legends as prescribed by Vendor.
All use of Vendor Trademarks shall inure to the benefit of
Vendor.
b. DR shall not remove, alter, cover or obfuscate any copyright
notice or other proprietary rights notice placed in or on
the Products by Vendor.
14. INDEMNIFICATION
a. Vendor shall defend, indemnify, and hold DR and its
successors and assigns harmless from and against any and all
liabilities, losses, damages, costs, and expenses
(including, without limitation, reasonable legal fees and
expenses) associated with or incurred as a result of any
claim, action, or proceeding instituted against DR and its
successors and assigns arising out of or relating to the
acts or failure to act of the Vendor, or any of its
affiliated companies, agents, employees or other related
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parties under this Agreement including, without limitation,
actions, claims, or proceedings related to: (i) Vendor's
performance of its obligations under this Agreement, (ii)
the breach by Vendor of any of the terms of this Agreement
or any of the representation and warranties contained
herein; (iii) the actual or alleged infringement of any
proprietary rights arising out of DR's duplication, sale,
distribution, or other use of the Product pursuant to this
Agreement; or (iv) in the event the Vendor is obligated to
make sales or use tax payments pursuant to the provisions of
Exhibit C, any obligation or liability of DR and its
successors and assigns to make any sales or use tax payments
in any state indicated in Exhibit C or otherwise.
b. DR shall indemnify and hold Vendor harmless from and against
any and all liabilities, losses, damages, costs and expenses
(including reasonable legal fees and expenses) associated
with or incurred as a result of any claim action, or
proceeding instituted against Vendor resulting from DR's
improper or unauthorized replication, packaging, marketing,
distribution, or installation of the Product, or the breach
by DR of any of the terms of this Agreement or any of the
representations and warranties contained herein.
c. If either Vendor or DR receives notice or knowledge of a
claim as described above, it will promptly notify the other
party in writing and give the other party all necessary
information and assistance and the exclusive authority to
evaluate, defend, and settle such claim.
15. LIMITATION OF LIABILITY
The total liability of DR (including its employees, agents, and
Dealers) for all claims, whether in contract, tort (including
negligence and product liability) or otherwise, arising out of,
connected with, or resulting from the distribution of the
Products or the provisions of this Agreement shall not exceed the
net amount realized by DR hereunder. IN NO EVENT SHALL DR BE
LIABLE FOR ANY LOSS OF DATA, LOST PROFITS, OR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, EVEN IF
DR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY PROVID9D HEREIN.
16. TERM AND TERMINATION
a. This Agreement will continue in effect for one (1) year from
the date hereof (initial Term). This Agreement will be
automatically renewed for successive additional one (1) year
terms (each, a Renewal Term) unless terminated by either
party upon ninety (90) days written notice prior to the
expiration of the Initial Term or any Renewal Term.
b. This Agreement may be terminated by a party immediately by
written notice to the other party upon the occurrence of any
of the following events: (i.) If the other party ceases to
do business, or otherwise substantially terminates its
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business operations; (ii.) If the other party shall fail to
promptly secure or renew any license registration, permit,
authorization or approval for the conduct of its business in
the manner contemplated by this Agreement or if any such
license, registration, permit, authorization or approval is
revoked or suspended and not reinstated within thirty (30)
days; (iii) If the other party materially breaches any
provision of this Agreement and fails to fully cure such
breach within thirty (30) days of written notice describing
the breach; or (iv.) If the other party becomes insolvent or
seeks protection under any bankruptcy laws, creditor's
arrangement, composition or comparable proceeding, or if any
such proceeding is instituted against the other and not
dismissed within ninety (90) days.
c. Upon termination of this Agreement for any reason, DR will
immediately cease distribution of the Products. The
termination of this Agreement shall not in any respect
whatsoever affect a party's obligations to make payments to
the other party in connection with the distribution of
Products that occurred prior to the termination of this
Agreement.
d. Termination by either party will not affect the rights of
any End User under the terms of the ▇▇▇▇.
17. GENERAL PROVISIONS
a. This Agreement may not be assigned by Vendor or transferred
by operation of law to any other person or organization
without the express written approval of DR. DR shall be
entitled to assign this Agreement in the event of a merger,
acquisition, joint venture, or a sale of substantially all
of its assets or business, or any similar transaction.
b. All notices and demands hereunder shall be in writing and
shall be served by personal delivery, nationally-recognized
express courier, or by certified mail at the address of the
receiving party set forth in this Agreement (or at such
different address as may be designated by such party by
written notice to the other party). All notices and demands
shall be deemed given upon the earlier of receipt, two (2)
days after deposit with a nationally-recognized express
courier; or five (5) days after deposit in the mail.
c. This Agreement shall be governed by the laws of the State of
Minnesota. For the purpose of resolving conflicts related to
or arising out of this Agreement, the parties expressly
agree that venue shall be in the State of Minnesota only,
an, in addition, the parties hereby expressly consent to the
jurisdiction of the federal and state courts in the State of
Minnesota.
d. Each party is acting as an independent contractor and not as
an agent, partner, or joint venturer with the other party
for any purpose. Except as provided in this Agreement,
neither party shall have the right, power, or authority to
act or to create any obligation, express or implied, on
behalf of the other.
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e. The indemnification and confidentiality obligations set
forth in the Agreement and any other provision which by its
sense and context is appropriate, shall survive the
termination of this Agreement by either party for any
reason.
f. 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 place any
construction upon or on any of the provisions of this
Agreement.
g. All exhibits to this Agreement are incorporated herein by
reference and made a part of this Agreement.
h. No provisions in either party's purchase orders, or in any
other business forms employed by either party will supersede
the terms and conditions of this Agreement, and no
supplement, modification, or amendment of this Agreement
shall be binding, unless executed in writing by a duly
authorized representative of each party to this Agreement.
i. DR shall not be in breach of this Agreement in the event it
is unable to perform its obligations under this Agreement as
a result of natural disaster, war, emergency conditions,
labor strife, the failure or substantial failure of the
Internet, or other reasons or conditions beyond its
reasonable control.
j. The parties have read this Agreement and agree to be bound
by its terms, and further agree that it constitutes the
complete and entire agreement of the parties and supersedes
all previous communications, oral or written, and all other
communications between them relating to the license and to
the subject hereof. No representations or statements of any
kind made by either party, which are not expressly stated
herein, shall be binding on such party.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date set forth above.
VENDOR DR
Tsunami Media Corporation DIGITAL RIVER, INC.:
Signature: Signature:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name & Title: Name & Title:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary
Date: March 1, 2000 Date: March 1, 2000
The rest of this page is intentionally blank.
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Digital River Vendor Agreement
EXHIBIT A
Defined Terms
As used in this Agreement, the following terms shall have the
meanings ascribed to them below, and shall have application to
the Products and DR and the Vendor, as applicable, as indicated
in the following table:
The term "Advertised Price" shall mean the price at which the
Product will be initially sold for Host Sales.
The term "Discount Percentage" shall mean the percent by which
the Advertised Price is reduced.
The term "Margin Payment" shall mean the Dollar amount of the
Discount Percentage, which, as applicable, shall be retained by
or paid to DR.
The term "Percentage Cost" shall mean an amount equal to the
Advertised Price minus the Margin Payment, and which shall be
payable by DR to Vendor for each copy of a Product sold to an End
User in a Host Sale.
The term "Fee" shall mean the amount indicated, which shall be
payable to DR for each Transaction.
The term "Responsible for Delivery" shall mean the party
responsible for delivering the Products to End Users.
The term "Method of Delivery" shall mean the manner in which the
Products are delivered to End Users, either digitally or
tangibly.
The term "Distribution Cost" shall mean the amount indicated,
which is the amount DR shall pay Vendor for each Product sold in
a Channel Sale and which shall not in any event be an amount more
than the amount for which the Vendor sells the same Product to
any other person or organization.
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Digital River Vendor Agreement
EXHIBIT A (continued)
Product Information
Please fill out the following template for each Product
________________________________________________________________
Product Name (50 characters maximum): __________________________
Vendor Name (up to 36 characters): _____________________________
Version Number: ________________________________________________
If product is for tangible delivery by DR, shipping weight:
________________________________________________________________
UPC Code: ______________________________________________________
ISBN Number: ___________________________________________________
Game Rating if applicable: _____________________________________
Product Categories (up to 3) ___________________________________
Does this Product include electronic documentation? (Y/N)
________________________________________________________________
Does this Product include online help? (Y/N) ___________________
What is the platform for this Product? (Mac, Win 3.X, Win95/NT,
UNIX, Java, Sony Playstation) __________________________________
What are the computer system requirements (OS, RAM, disk space,
etc.)? _________________________________________________________
What is the vendor part number of this product? ________________
If product is serialized, will DR distribute serial numbers?
(Y/N) __________________________________________________________
Does this Product have an export ban? (Y/N) ____________________
If yes, to which countries is export restricted or banned?
________________________________________________________________
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Digital River Vendor Agreement
EXHIBIT B
Requirements Checklist
The "checklist" of items needed to complete the process are:
1) Executed Distribution Agreement.
2) If Product will be delivered electronically, DR requires the
"net deliverable" Master copy of the Product in a
compressed, auto-installing form for application programs
and in a compressed form for data or document products. This
file needs to include all information the end-user needs
such as applicable end user license agreement(s) and online
documentation and help files.
DOS/Windows
All DOS/Windows platforms files must be received as a single exe
for self-extracting, self-installing executable (.exe), the file
should create a directory and extract all of the files into it.
When appropriate it should automatically run the setup.exe or
install.exe file when double-clicked. ▇▇▇▇▇▇, Palm, Window CE
files can be self-extracting and not self-installing files.
Installation instructions must be included in the file. For fonts
and Unix platform where exe is not relevant zip files are
acceptable.
Apple Macintosh
Mac files should be a single BinHex (.hqx) file. Double clicking
should unstuff a folder with the installer file and necessary
files. When appropriate it should automatically install the
product when double-clicked. The customer should not need to
unstuff files more than once (i.e. there should not be a bin
or.sit file within the hqx file).
Multi-platform
Files useable in multiple platforms such as jar (Java archive),
mpeg, mov, pcd, gif, jpg, mp3, adobe acrobat, ASCII test files,
etc.) should not be compressed. A wide range of customers will
need to access the file without inventorying multiple
downloadable files.
3) If product is serialized and DR is required to distribute
serial numbers, a range of not less than 100 license numbers
electronically in a text format (.txt file).
4) Marketing Materials.
Text - Vendor must deliver this in a htmI file with the
information clearly delineated. All Maximum Character
lengths INCLUDE spaces and htmI tags.
Product Name (50 char. max.)
95
Product Description (75 char. max.)
Sales Pitch (255 char. max.)
Product Detail (6,000 char. max.)
Product Keywords (2,000 char. max.)
Graphics
Product Image (.jpg or.gif, 220 X 220 pixels)
Thumbnail Image (.jpg or.gif, 100 X 100 pixels)
Banner Image (.jpg or gif, 100 X 100 pixels)
5) if not completed by Vendor, Product may need to be converted
for electronic distribution by DR. Product conversion
includes packaging the Product, inclusion in the dealer
network on-line catalogs, posting of product information
provided by vendor in HTML format and other marketing
activities which may be added from time to time. The cost
for such conversion is per Product, and is payable by
Vendor. Payment is due upon execution of this Agreement by
Vendor.
DR may at its option publish this list or any revisions or
changes to it on its web page. In this event, Vendor will be
given the URL of the page containing the revised data, usually
▇▇▇▇://▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
Digital River Vendor Agreement
96
EXHIBIT C
Processing and Payments
For each copy of a Product sold and delivered to an End User, DR
shall be responsible for the processing of payments made by End
Users (including amounts for sales or use taxes). Amounts collected
by DR shall be deposited in an account established, owned, and
maintained by DR. DR shall be solely responsible for the payment of
any and all credit card transaction fees. DR shall be solely
responsible for the preparation and filing of any and all sales or
use tax returns, and the payment of any and all sales or use taxes,
together with any and all related interest and penalties.
Within thirty (30) days after the end of each calendar month, by
electronic and/or facsimile transmission, DR shall notify Vendor
about payments processed during the previous calendar month (the
Processing Report). The Processing Report shall contain the names
and delivery addresses of the End Users, and the names, Vendor
Product numbers, and quantity of the Products sold to particular
End Users. Within thirty (30) days after the end of each calendar
month, DR shall, as indicated in Exhibit A, pay Percentage Costs
and Distribution Costs to the Vendor based on the number of
Products for which DR processed payment during the immediately
preceding calendar month. Any payment or part of a payment
hereunder, which is not paid when due shall bear interest at the
rate of 1.5% per month from its due date until paid.
DR acknowledges that it shall bear the risk associated with
unauthorized returns of Vendor products and credit card chargebacks
in connection with the distribution of the Vendor's products as
contemplated by the Agreement. Under no circumstances shall DR be
obligated to pay any Percentage Costs or Distribution Costs in
connection with any activities that are deemed to be fraudulent or
criminal. DR shall use its best efforts to screen for, detect,
prevent, and take such other actions as it deems reasonably
necessary to prevent any fraudulent activity. The existence of
fraud, or the possibility of the existence of fraud, shall be
determined in the sole discretion of DR, and DR may, in its sole
discretion, make such inquiries and investigations as it deems
appropriate under the circumstances. During the pendency of any
such inquiries and investigations, DR shall have no obligation to
make payment to the Vendor of the Percentage Costs and Distribution
Costs associated with such inquiries and investigations. The
payment of Percentage Costs and Distribution Costs shall be subject
to adjustment by DR based on Product returns and refunds paid to
End Users.
97
Digital River Vendor Agreement
EXHIBIT D
Marketing Development Funds - Coop Advertising
If this Exhibit is attached, and initialed by DR and Vendor in
the space provided, then the terms herein shall become a part of
this Agreement. Nothing in this Exhibit is intended to change the
other obligations or responsibilities contained in the Agreement.
DR will accrue a coop advertising allowance (COOP) in an amount
equal to _______________% of the price for the Product specified
on the Site. Such allowance may be used to fund advertising,
channel marketing and promotions for Products by DR including,
but not limited to, purchasing links to banners from focused
Internet web sites. Vendor agrees to allow DR to offset this COOP
against any or all other amounts owing to Vendor by DR under this
Agreement, or, as applicable, to invoice Vendor for the COOP.
DR will receive Marketing Development Funds (MDF) in an amount of
$ ______. The funds may be used to fund advertising, channel
marketing and promotions for Products by DR including, but not
limited to, purchasing links to banners from focused Internet Web
sites. Vendor agrees to allow DR to offset this MDF against any
or all other amounts owing to Vendor by DR under this Agreement
or, as applicable, to invoice the Vendor for the MDF.
DR agrees that all Marketing Development Funds and/or Coop
Advertising received from Vendor will be used to promote the
sales of Products.
Please initial in the space below:
DR ______________
Vendor ____________