Web4 Confidential
Web4
Confidential
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Distributor:
Research
Engineers Ltd.
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ID
Number:
RAOO-006-0605
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This
document, including all attached Exhibits (“Agreement”) sets forth the terms and
conditions between Web4 (“WEB4”) and software Distributor Research Engineers
Ltd. (“Distributor”) under WEB4’s Distributor Program. Terms and conditions
concerning Products offered, discounts, pricing, and other related items are
delineated for each WEB4 Product in the attached Exhibits.
1. Appointment.
Upon
written acceptance of the appointment, Distributor agrees to the terms and
conditions of this Agreement. Distributor is authorized to resell WEB4 products
(“Products”) as described in the attached Exhibits. Distributor’s appointment
shall be on an exclusive basis within the Territory (as defined in Section
2
below).
2. Scope
of Agreement.
This
Agreement permits Distributor to resell WEB4’s licensed Products identified in
the attached Exhibit B. Distributor's area of responsibility is the Territory
defined in the attached Exhibit
A.
Distributor shall sell to customers who purchase Products for their own internal
use (“End-Users”).
3.
Obligations.
Distributor agrees to: (a) maintain an adequate staff of trained sales and
technical personnel to effectively market all Products and ensure customer
satisfaction; (b) conduct sales training for Distributor's personnel to increase
knowledge of all Products and cooperate with WEB4 in any Product education
programs which may be established; (c) not resell to End-Users Products
purchased specifically for demonstration purposes; (d) conduct its business
affairs with WEB4 and with customers and potential customers of the Products
in
accordance with the highest ethical standards;, (e) use all reasonable efforts
to ensure that the End-User receives a Warranty Statement, a Warranty
Registration Card, License Agreement, User's Guide or any appropriate
accompanying material with the Products; and (f) provide End-User training,
first level technical support, quality and assurance. Distributor shall not
act
or perform, or permit any of its employees, agents, or other representatives
to
act or perform in any manner which could disparage or otherwise reflect
negatively on the reputation of WEB4 or the Products.
4. Term
of Agreement.
This
Agreement is effective on the date last executed below by the parties and shall
terminate one (1) year thereafter unless terminated sooner pursuant to the
provisions of this Agreement. Thereafter, this Agreement will automatically
be
renewed for subsequent one (1) year term(s) unless either party elects to
terminate the Agreement upon 60 days prior written notice prior to expiration
of
the then-current term.
5. Prices
and Payment Terms.
The list
prices for Products available under this Agreement are specified in the
price-list of WEB4 and set forth on Exhibit
B
hereto.
Distributor’s discounts are mentioned in Exhibit B of this Agreement.
Distributor shall purchase Products at WEB4’s Distributor prices and terms which
are in effect at the time the order is received from Distributor. WEB4 will
not
announce to the public a price change for thirty (30) days after announcement
to
Distributor. The quoted pricing for the Distributor remains in effect for the
period this Agreement is in effect and WEB4 shall not increase the price of
the
Products mentioned in this Agreement within the term of this Agreement;
provided,
however,
that,
upon at least 90 days prior written notice prior to the expiration of the
then-current term, WEB4 shall have the right to increase the price of the
Products mentioned in this Agreement effective for the subsequent term, if
any.
The annual maintenance fee on the licenses will be free for the first year
following the date of purchase and thereafter shall be purchased separately.
Pricing discounts for annual maintenance is listed in Exhibit
B.
Any
discounts to be applied to the software and services sold by the Distributor
are
listed in Exhibit
B
of this
Agreement.
6. Marketing
Programs.
During
the term of this Agreement, Distributor shall implement certain special
marketing programs to market WEB4’s Products. The marketing programs shall
include, but are not limited to, the creation of brochures, marketing materials
and promotions. WEB4 shall also implement marketing programs and promotions
of
the Products at its own cost and shall provide Distributor with assistance
in
terms of content, message and position for Distributor’s marketing efforts.
7. Purchase
Orders.
Distributor’s purchase orders (“Orders”) may be placed by means of telephone,
fax, mail or e-mail. All shipping and handling to end-users, all taxes and
all
additional costs associated thereto shall be assumed and provided for by
Distributor. A written Order shall be required by WEB4 prior to shipment. The
Orders must provide the following information: (a) Distributor's identification
number which has been assigned by WEB4; (b) identification of the Products
by
quantity, part number, and description; (c) whether installation or service
is
required; (d) the Product prices and installation or service rates, if
applicable; and (e) all customer contact information. ONLY THE TERMS AND
CONDITIONS OF THIS AGREEMENT SHALL APPLY REGARDLESS OF THE TERMS AND CONDITIONS
CONTAINED IN ANY ORDER.
No
Order
shall be effective unless and until it is accepted by WEB4. Acceptance shall
be
indicated by assignment of a shipment date or execution of shipment if the
Order
is placed by telephone, fax, or mail. WEB4 reserves the right to decline any
Order that may be in violation of Federal export laws in effect at the time
of
Order. Orders that are received during the term of this Agreement may be
delivered outside the term of this Agreement.
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WEB4
may
refuse to accept any Order, cancel any accepted Order, or delay shipment of
any
Products or suspend service if Distributor becomes delinquent in payment for
more than thirty (30) days or fails to meet any credit, financial, or other
material obligation under this Agreement. Refusal to accept an Order,
cancellation of an Order or delay of shipment of a Product for the foregoing
reasons shall not be construed as a termination or breach of this Agreement
by
WEB4 and shall in no event cause any liability to WEB4.
8. Purchase
Order Changes.
Distributor may change any Order by providing written notice to WEB4 prior
to
shipment; however, Distributor understands that any change in Product
configuration or part number may result in rescheduling of shipment in
accordance with WEB4’s then current manufacturing lead time.
Distributor
may request acceleration of any schedule date. Such request may be granted
depending upon availability of the Product.
9. Product
Revisions.
WEB4
reserves the right to modify, add, or eliminate Products which are available
under this Agreement at any time with at least sixty (60) days’ prior written
notice to Distributor. Distributor shall have no claim against WEB4 for failure
to furnish Products previously supplied.
10. Delivery.
Title to
software Products and documentation remain with WEB4. The delivery is to be
via
electronic means and electronic media shall be provided to the Distributor.
If
any conditions arise which prevent compliance with delivery schedules, WEB4
shall not be liable for any reasonable associated delay in delivery. WEB4 shall
use all reasonable efforts to notify Distributor of any anticipated delay in
delivery.
11. Payment.
Distributor shall report all current sales activities as and when they occur.
Distributor agrees to issue WEB4 an Order for all sales of the Products based
upon the list Products’ prices set forth in Exhibit
B
so that
all gross revenues are booked through WEB4. Distributor agrees to send detailed
Orders to WEB4, itemizing the Product, list price, quantity, discount with
the
total reflecting the “net amount due after discounts”. Distributor shall remit
the “net amount due” to WEB4.
12. Software
and Documentation.
Distributor agrees to: (a) ensure that each customer receives WEB4 license
terms
and conditions; (b) refrain from copying any portion of the software Products
or
related documentation; (c) refrain from loaning, renting, or otherwise
transferring any use or possession of any software Product or related
documentation to any third party; (d) use commercially reasonable efforts to
protect WEB4’s copyrights, trademarks, trade secrets and other proprietary data;
and (e) promptly report to WEB4 any infringements or misuse of WEB4 information
or property of which Distributor becomes aware.
13. Warranties.
WEB4
hereby warrants that: (a) it is the owner of the Products and/or has the right
to enter into this Agreement; (b) the media on which WEB4 delivers the Products
is free of defects in material and workmanship, and will remain so with
reasonable use and care for a period of thirty (30) days after shipment; and
(c)
that the Products shall substantially conform to their users manuals for a
period of a year. WEB4’s sole obligation under this warranty period shall be
limited to using its best efforts to correct such defects and supply a corrected
version of the Products as soon as practical after the customer has notified
WEB4 of such defects. WEB4 does not warrant that: (i) use of the Products shall
be error-free or uninterrupted; or (ii) functions contained in the Products
shall operate in conjunction with other software use by End-User.
The
warranties set forth in this Section are expressly subject to the limitations
set forth in Section 14 of this Agreement.
14. Limitation
of Liability.
THE
FOREGOING EXPRESS WRITTEN MANUFACTURER'S WARRANTIES AND REMEDIES ARE EXCLUSIVE
AND ARE IN LIEU OF ANY OTHER WARRANTIES OR REMEDIES, EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR
A
PARTICULAR PURPOSE. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY
OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES,
INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, AND/OR INTERFERENCE WITH
BUSINESS RELATIONSHIPS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WEB4
SHALL NOT BE LIABLE BECAUSE THE PRODUCTS OR ANY DEFECT THEREIN CAUSED ANY DAMAGE
TO OR FAILURE OF OTHER EQUIPMENT WITH WHICH THE PRODUCTS ARE USED. THE FOREGOING
LIMITATION OF LIABILITY SHALL NOT APPLY TO THE EXTENT THAT IT IS ILLEGAL OR
UNENFORCEABLE UNDER APPLICABLE LAW.
15. Installation,
Service and Training.
WEB4
shall provide installation, consulting, and training service on a subcontract
basis in accordance with the attached Exhibits. WEB4 shall provide basic
training and support to Distributor at no additional cost. Basic training to
the
Distributor includes one day of training per year. The technical support shall
be in accordance with the maintenance agreement and shall only be provided
if
the annual maintenance has been purchased. WEB4 shall provide basic technical
support for the features that are already available in the Products listed
in
the Exhibit
B
to
include bug fixes and only the planned upgrades. Any special consulting,
training or seminar expense and fees shall be paid by the
Distributor.
16. Sales
Support.
WEB4
will put the reasonable effort to satisfy the Distributor with the bug fixes
and
issue resolution. If the customer returns the Product within a “cooling off”
period of 30 days, Distributor will receive a full refund from WEB4 for the
return of the Product.
17. Evaluation
Copy.
WEB4
shall provide maximum of 10 evaluation licenses (to be renewed every six months)
to the Distributor for sales demonstrations.
18. Taxes.
WEB4
shall be responsible for any applicable taxes levied by any United States
jurisdiction on the payments made by customers to WEB4 hereunder. Distributor
shall be responsible for any applicable taxes levied by Distributor’s country on
any applicable payments made by WEB4 to Distributor hereunder. Additionally,
Distributor shall be solely responsible for any federal, state and local taxes
or duties levied upon Distributor by any state and/or country where the Products
are re-sold by Distributor.
19. Export.
Distributor
may only distribute WEB4’s software Products for use outside the Territory with
prior written consent from WEB4 where (a) export or re-export, directly or
indirectly, is not restricted by United States law or regulations, and (b)
the
software Products are protected by the copyright law.
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20. Indemnification.
Subject
to the provisions of Section 14 of this Agreement, if any third party claims
that a Product infringes its rights, WEB4 shall indemnify and hold Distributor,
its officers, directors, stockholders, employees, representatives, agents,
affiliates, successors and assigns (each a “Distributor Indemnified Party”)
harmless from any claims, actions, causes of action, costs, deficiencies, taxes,
penalties, fines, liabilities, damages or other losses or expenses, judgments
or
settlements, including costs and reasonable attorneys' fees (collectively,
“Losses”), resulting from the claim, provided that such Distributor Indemnified
Party promptly notifies WEB4 in writing of the claim and permits WEB4 to take
over the defense (provided that WEB4 agrees in writing to be responsible for
all
Losses relating to such defense). WEB4 shall have the right to defend,
compromise, or settle the claim at its sole expense, and Distributor agrees
to
provide all available information, assistance, and authority to enable WEB4
to
do so, provided WEB4 reimburses Distributor for such activity. Distributor
shall
have no authority to settle any claim on behalf of WEB4. WEB4 may also at its
expense: (a) substitute a comparable non-infringing Product; (b) modify the
Product to make it non-infringing; (c) obtain a right for continued use or
resale of the Product; or (d) if the above are impractical, and continued use
or
resale of the Product is enjoined, buy back from Distributor all such Products
remaining in Distributor’s possession inventory at the original purchase price.
If such Products have been used, WEB4 shall buy back all such Products at the
original purchase price less depreciation. This indemnification does not apply
to claims resulting from modifications to the Products or claims resulting
from
integration of the Products with other third party products.
Distributor
indemnifies and shall hold WEB4, its officers, directors, stockholders,
employees, representatives, agents, affiliates, successors and assigns, harmless
against any Losses caused in whole or in part by Distributor's active, passive,
or willful negligence or other acts.
WEB4
indemnifies and shall hold the Distributor Indemnified Parties harmless against
any Losses caused in whole or in part by WEB4's active, passive, or willful
negligence or other acts.
21. Maximum
Liability.
Except
for the Indemnification provisions of Section 20, WEB4’s maximum liability for
damages shall be limited to the license fees paid by Distributor under this
Agreement for the particular WEB4 Product which caused the damages.
22. Assignment.
WEB4 may
assign its rights under this Agreement. Distributor shall be given written
notification of any such assignment. Distributor may not assign any rights
under
this Agreement without WEB4’s prior written consent, which consent shall not be
unreasonably withheld.
23. Enforcement
of Provisions.
The
failure of either party to enforce, at any time, any of the provisions hereof,
shall not be construed to be a waiver of the right of such party thereafter
to
enforce any such provision.
24. Relationship
of the Parties.
Distributor is an independent contractor and has no power, right or authority
to
bind WEB4 or to assume or to create any obligation or responsibility, express
or
implied, on behalf of WEB4. Nothing stated in this Agreement shall be construed
as creating a partnership relationship between Distributor and WEB4, or as
creating the relationships of employer and employee, or creating a fiduciary
relationship between the parties, or principal and agent between the parties
hereto. The parties agree that this is a product supply and software license
agreement only, and not a franchise or other agreement.
25. Termination.
This
Agreement may be terminated with or without cause by either party upon ninety
(90) days prior written notice to the other party. In
the
event Distributor terminates the Agreement, payment for all outstanding sums
is
immediately due and payable by Distributor to WEB4 upon termination.
WEB4
shall not be liable in any manner on account of the termination of this
Agreement, except that Product warranty shall survive termination. Except as
otherwise provided, WEB4 may terminate this Agreement without liability in
the
event that Distributor is in default of any material obligation, duty, or
responsibility under this Agreement and such default continues unresolved for
a
period of ten (10) days after written notice or recurs following written notice
and cure.
This
Agreement shall automatically terminate without notice in the event that any
of
the following occur: (a) a receiver is appointed for Distributor or its
property; (b) Distributor becomes insolvent or unable to pay its debts or makes
an assignment for the benefit of its creditors; (c) proceedings are commenced
by
or for and/or against Distributor under any bankruptcy, insolvency or debtors
relief law and such proceeding continues undismissed or unstayed for 120 days;
or (d) Distributor is liquidated or dissolved.
Each
party hereto agrees to notify the other promptly following any change in control
of such party including details on the nature of the change. Upon termination
of
this Agreement, Distributor shall cease to use any WEB4 trademark, trade names
and marks.
26. Force
Majeure.
Neither
party shall be liable to the other for delays in performing any obligations
under this Agreement except the obligation to make payment, due to circumstances
beyond its reasonable control, including but not limited to, revolutions,
insurrections, riots, wars, acts of enemies, national emergency, strikes,
floods, embargo, inability to secure materials or transportation and acts of
God
or governmental authorities.
27.
Notices.
All
notices, which either party may be required or desire to give the other party
shall be given by registered carrier, second-day delivery to the other party
at
its respective address or by facsimile with confirmation of transmission and
receipt. Notices shall be deemed to be received on the second business day
following the date of mailing or on the date of the facsimile transmission,
provided that the notice is received prior to 5:00 P.M Pacific Standard
Time.
28. Applicable
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
India, exclusive of choice of law statutes. Both parties agree to submit
exclusively to the personal jurisdiction of the applicable courts located in
Kolkata, India. WEB4 and Distributor exclude the United Nations Convention
on
Contracts for the International Sale of Goods from this Agreement and any
transaction between them that may be implemented in connection with this
Agreement.
29. Judicial
Interpretation.
Any
provisions in this Agreement which are found to be prohibited by law shall
be
ineffective to the extent of such prohibition without invalidating the remaining
provisions.
30. Compliance
with Laws and Regulations.
Both
parties shall comply with all applicable federal, state, and local laws, rules,
regulations, and executive orders. Distributor shall be responsible for
obtaining all permits, licenses, or certificates required by any regulatory
body
for resale or use of the Products.
31. Attorney's
Fees.
The
prevailing party of any action arising between the two parties in connection
with this Agreement shall be entitled to reasonable attorney's fees and all
costs of proceedings incurred in enforcing this Agreement in addition to any
other amount of recovery ordered by the court.
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32. Proprietary
Information.
WEB4
considers this entire Agreement, along with its Exhibits describing the
discounts and other terms, to be WEB4 proprietary. Distributor agrees not to
disclose this Agreement and all other related information to any other third
party, except to government agencies requiring such information.
33. Modifications.
Except,
as otherwise provided, all modifications of this Agreement must be in writing
and signed by an authorized representative of each party.
34. Complete
Agreement.
This
document and the Exhibits listed below and attached to this Agreement contain
the complete and exclusive agreement between the parties, and supersede all
other prior or contemporaneous written or oral communications between the
parties relating to the subject matter hereof.
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WEB4
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DISTRIBUTOR:
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Address:
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Address:
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Telephone:
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Telephone:
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Facsimile:
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Facsimile:
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Signature
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Date |
Signature
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Name
of Signer (Type or Print)
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Name
of Signer (Type or Print)
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Title
of Signer (Type or Print)
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Title
of Signer (Type or
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EXHIBIT
A
TERRITORY:
Distributor’s territory for Web4 is for the countries of India, Malaysia,
Bangladesh, Nepal, Thailand, Myanmar, Philipines, Vietnam and Indonesia.
Distributor may not participate in Web4’s Distributor Program in any territory
other than the foregoing without the prior written consent of Web4.
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WEB4:
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DISTRIBUTOR:
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Initials
of Authorized Person
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Initials
of Authorized Person
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Date
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Date
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EXHIBIT
B
WEB4
Products, Discounts and Other Terms
1.
PRODUCTS.
Distributor shall have the following WEB4 products available for resale.
Distributor may request other WEB4 products be added to this list as they become
available. Please refer to the updated Product Price List for an up-to-date
listing of all WEB4 products and services.
Product
Name: eReview
Platform(s):
All supported in the product
2.
DISTRIBUTOR’S
DISCOUNT:
Distributor
shall receive a discount on a mutually agreed upon price structure for the
Territory.
3.
TECHNICAL
AND SALES SUPPORT
(a)
Representatives: The Technical Support Representative will be available to
address Products covered by this Agreement during the hours and time zone
indicated in the section 4 of this Exhibit B. The Marketing/Sales Representative
is the Distributor’s contact for marketing and sales activities and the Order
Processing Representative is the Distributor contact for information pertaining
to any orders placed.
(b)
Product Problem Fixes: Distributor agrees to provide WEB4 written notice of
all
problems found in WEB4 Products listed in this Exhibit and submitting it to
the
representative listed in this Exhibit. WEB4 agrees to use reasonable efforts
to
resolve problems in WEB4 Products taking into consideration the seriousness
of
the problem and the impact upon the End User. The “Software
License, Maintenance and Service Agreement”
shall
govern the maintenance activities between the Distributor, customer and
WEB4.
(c)
Enhancement Requests: For all Enhancement Requests by Distributor, WEB4 shall
either provide Distributor with an estimated schedule for the addition of the
Enhancement Request to the Product at no charge or advise Distributor if such
Enhancement Request represents a special development effort and Distributor
may
request such Enhancement Request at a mutually agreed upon cost and schedule.
Such Enhancement Request will be made to the Sales/Marketing Representative
in
this Exhibit.
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4. Authorized
Representatives for WEB4 and Distributor.
WEB4’s
representatives will be:
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Name
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Phone
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Fax
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E-Mail
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For
Technical Support
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Support
Hours: 8:00am PST - 5:00pm PST
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Time
Zone: Pacific Standard Time (PST)
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Marketing/Sales
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For
Order Processing
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Distributor
representatives will be:
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For
Technical Support
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Marketing/Sales
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For
Administration and Payables
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5.
Distributor Number. Distributor’s reference Number is RAOO-006-0605.
Distributor must refer to this reference Number in all correspondence as well
as
while placing orders with WEB4.
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WEB4:
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DISTRIBUTOR:
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Initials
of Authorized Person
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Initials
of Authorized Person
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Date
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Date
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