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OEM AGREEMENT
This Agreement made as of this 13th day of September, 1999, by and between Corel
Corporation ("COREL") having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇) and Ebiz
Enterprises, Inc. ("Distributor"), having its principal place of business at
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ (Tel: ▇▇▇-▇▇▇-▇▇▇▇, Fax:
▇▇▇-▇▇▇-▇▇▇▇).
BACKGROUND:
1. COREL desires to secure distribution of certain of its software; and
2. Distributor desires to obtain certain software from COREL for
distribution with Distributor's products.
NOW THEREFORE, in consideration of the mutual promises, covenants and
obligations contained herein the parties agree as follows:
1. INTERPRETATION
1.01 Definitions. As used herein:
(i) "Agreement" means this agreement and any schedules attached
hereto.
(ii) "COREL Authorized Replicator" means a replicator of the
Software who has entered into an Authorized Replicator
Agreement with COREL and who is in good standing under such
Agreement.
(iii) "COREL Marks" means the trade names and trade-marks related to
the Software.
(iv) "Customer" means any entity, including but not limited to a
sub-distributor, reseller, end user or OEM, which purchases
Software from Distributor.
(v) "Software Prices" means the amount payable by Distributor
pursuant to Section 7 of this Agreement and according to the
pricing schedule set out in Schedule "B" for each copy of the
Software which is reproduced for Distributor.
(vi) "Distributor Products" means any one of the PIA and Element-L
personal computers produced and marketed by Distributor during
the term of this Agreement.
(vii) "End User License" means COREL's End User License as modified
by COREL from time to time.
(viii) "Software" means the object code version of the Software
listed in Schedule "B" hereto.
(ix) "Territory" means worldwide subject to Section 5.03.
1.02 Schedules. The following Schedules are appended to and form part of
this Agreement:
Schedule "A" - Guidelines for Using Corel Trade-Marks and
Guidelines for using Corel Logos
Schedule "B" - Software and Software Prices
Schedule "C" - Logo Link Usage Guidelines
2. LICENSE
2.01 License. Subject to the terms and conditions hereof, COREL hereby
grants to Distributor and Distributor accepts from COREL:
2.01.1 Reproduction - a non-exclusive license to have the Software
reproduced only by a COREL Authorized Replicator;
2.01.2 Pre-loading - a non-exclusive right to pre-load the Soft-
▇▇▇▇ onto Distributor Products provided that Distributor
distributes one copy of the Software with each of the Dis-
tributor Products on which the Software has been pre-loaded;
and
2.01.3 Distribution - a non-exclusive license to distribute the
Software bundled with Distributor Products within the
Territory. Distributor agrees not to distribute the Soft-
▇▇▇▇ on a stand alone basis.
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2.02 Intellectual Property. Distributor acknowledges that COREL is the owner of
all intellectual property, including, without limitation, patents and
copyright, relating to the Software and the COREL Marks. Distributor shall
have no rights in respect of such intellectual property, patents or
copyright other than to act as a distributor of the Software to deliver
the Software subject to the End User Licenses.
2.03 End User License Agreement. Distributor shall ensure that each copy of the
Software is distributed with a copy of the End User License.
2.04 Distribution Agreements. All Customers of Distributor, other than end
users, must be subject to binding written agreements with Distributor that
include provisions consistent with the material substance of Sections 2,
4, 5.02, 5.03, 5.04, 8, 9, 10 and 11 of this Agreement, and such
agreements must be materially no less protective of COREL's rights in the
Software than are the terms and conditions of this Agreement.
2.05 Master. To enable Distributor to exercise those rights granted under
Section 2.01.2, COREL shall deliver to Distributor a master copy of the
Software in accordance with the estimated availability as determined by
COREL, in COREL's sole discretion, for the Software as set out in Schedule
"B".
3. TRADE-MARKS
3.01 COREL Marks. During the term of this Agreement, COREL hereby grants
Distributor a license to display the COREL Marks solely in the form
provided by COREL and only in connection with the distribution and
marketing of the Software.
3.02 Non-alteration. Distributor agrees not to alter the COREL Marks, copyright
notices or designs of any Software. Distributor acknowledges and agrees
that COREL retains all of its right, title and interest in the COREL
Marks, and all use of the COREL Marks by Distributor shall enure to the
benefit of COREL.
3.03 ▇▇▇▇ Policies and Standards. Distributor shall display the COREL Marks in
accordance with COREL's Guidelines for Using COREL Trademarks and
Guidelines for Using COREL Logos as set forth in Schedule "A" or as
otherwise in effect from time to time. COREL retains the right to specify
and approve the quality and standards of all materials on which the COREL
Marks are displayed and to inspect samples of such materials from time to
time. Failure of Distributor to adhere to such standards of quality shall
be grounds for COREL to terminate Distributor's rights to use such COREL
Marks and to terminate this Agreement. In order to enable COREL to protect
its rights in the COREL Marks, Distributor will advise COREL of every
country in which it markets or distributes the Software or uses the COREL
Marks.
3.04 Validity and Enforceability of Marks. Distributor shall not at any time
during or after the term of this Agreement assert any claim or interest in
or to anything which may adversely affect the validity or enforceability
of any of the COREL Marks. Distributor shall not register, seek to
register, or cause to be registered any of COREL's trademarks, logos,
copyrights, including the COREL Marks without COREL's prior written
consent. Distributor shall not adopt or use such trade-marks, trade names,
logos or insignia or any confusingly similar work or symbol, as part of
Distributor's company or partnership name.
3.05 Infringement and Further Assurances. Distributor agrees to report all
infringement or improper or unauthorized use of COREL's trade-marks, trade
names, logos or insignia, including the COREL Marks which come to the
attention of Distributor. Distributor further agrees to execute all
documents and further assurances required by COREL to register or protect
COREL's rights.
4. TERM OF AGREEMENT
4.01 Effective Date. This Agreement shall be effective as of the date first
written above.
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4.02 Initial Term. The initial term of this Agreement shall commence upon
the date first written above and shall continue for a period of twelve
(12) months from such date, subject to Section 13.
4.03 Renewal. Subject to Section 13, this Agreement shall be renewed for
subsequent periods of twelve (12) months at the end of the prior
twelve (12) month term unless either party notifies the other prior to
the expiry of the term that it does not wish to renew the Agreement
for a further twelve (12) month term.
5. RESPONSIBILITIES OF DISTRIBUTOR
5.01 Support for Customers. Distributor shall be solely responsible for
providing all maintenance and technical support of the Distributor
Products to its Customers.
5.02 Restrictions. Distributor shall have the Software reproduced only by
a COREL Authorized Replicator and only in the form provided by COREL
and shall not alter the Software or any part thereof. Distributor
shall resell the Software only in the form agreed to by COREL and
shall not alter the Software, Software packaging or End User License
or any part thereof. COREL retains the right to specify and approve
the quality and standards of the Software and to inspect samples of
such Software from time to time. Distributor shall not rent the
Software or knowingly resell to anyone who rents same or infringes
COREL's rights. Distributor shall impose this same restriction on all
Customers, other than end users, who purchase Software from
Distributor.
5.03 Compliance with Laws. Distributor shall comply with all laws, rules,
regulations and industry standards existing with respect to the
Software and the performance by the Distributor of its obligations
hereunder existing in the jurisdictions where the Distributor carries
on activities under this Agreement and where the Software is resold
or distributed from time to time. Distributor shall not export the
Software unless such export complies with any applicable export laws
and regulations as they apply to the Software. In particular,
Distributor shall not export or re-export the Software, either
directly or indirectly, to countries to which the United States
has prohibited export, including, but not limited to, Cuba, Iran,
Iraq, Libya, North Korea, Syria and Sudan. If Distributor wishes to
distribute the Software to Customers outside of Canada, the United
States, the United Kingdom, the European Community or Australia,
Distributor shall notify COREL in writing prior to such distribution.
COREL reserves the right to withhold its consent to the distribution
of the Software in any country other than those listed above, if the
laws of the target country do not adequately protect the intellectual
property rights of COREL in the Software.
5.04 Marketing. Any advertising or marketing materials prepared by or for
Distributor shall advertise the Software as being available only as a
bundled product with Distributor Products and shall quote only the
bundled price, without disclosing a separate price for the Software,
unless required by law.
5.05 Press Releases. Distributor agrees that all information released to
the media or the general public regarding this Agreement or the
relationship between the parties including, but not limited to press
releases, shall require prior written approval by COREL.
5.06 Reports. Distributor will provide to COREL monthly reports within ten
(10) days at the end of each month regarding the number of
reproductions of the Software made, the number of copies of the
Software released for distribution to Customers, and the total amount
owning for the Software Prices for the released Software. The monthly
report shall also track the Distributor's inventory levels of the
Software. All Distributor reports or other Software sales
information, including, but not limited to, market share information
regarding the Software or COREL, in Distributor's possession or under
its control shall be considered confidential information subject to
Section 8 herein.
5.07 Audits. Distributor agrees to maintain complete and accurate records
relating to its promotion, marketing, use and distribution of the
Software. COREL shall have the right no more often than once each
twelve (12) month
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period to appoint an independent third party to examine Distributor's
books and records in order to verify Distributor's compliance with the
terms of this Agreement. Any such audit shall be at the expense of COREL
unless the audit reveals a non-compliance by Distributor with the terms
of this Agreement of greater than five percent (5%) in which case the
audit shall be at the expense of Distributor.
5.08 No Distribution of Counterfeits. Distributor agrees that: (i) it shall
not engage in the manufacture or use of counterfeited, pirated or
illegal Software; (ii) it shall not knowingly engage in the
distribution, supply or transfer of counterfeited, pirated or illegal
Software; and (iii) it shall not knowingly supply any Software to
Customers who engage in the use, manufacture, distribution or other
supply or transfer of counterfeited, pirated or illegal Software.
5.09 Anti-Piracy Efforts. Distributor agrees to report all occurrences of
counterfeited, pirated or illegal Software of which it becomes aware and
to provide reasonable assistance to COREL in the investigation of
counterfeited, pirated or illegal Software.
5.10 Web Marketing. Distributor agrees to provide a COREL logo link on the
main page of Distributor's website linking to COREL's website in
accordance with the Logo Link Usage Guidelines set out in Schedule "C"
hereto.
6. RESPONSIBILITIES OF COREL
6.01 Promotional Materials. COREL shall furnish Distributor, at no charge,
with sales aids, product briefs, brochures and similar literature and
materials with respect to the Software which COREL generally makes
available to other OEM's without charge.
6.02 Support for Customers. COREL shall be responsible for providing
maintenance and technical support for the Software to its customers in
accordance with COREL's standard policies and procedures as may be in
effect from time to time.
6.03 Royalty Report. Within six (6) days of the end of each month, COREL
shall provide Distributor with a royalty report detailing the number of
copies of Software replicated by the COREL Authorized Replicator for
Distributor in the immediately preceding month. Distributor shall have
five (5) days from the date of receipt of the royalty report from COREL
to provide COREL with written notice disputing the number of copies of
Software replicated for Distributor. In the event that COREL does not
receive any notice of dispute from Distributor in such five (5) day
period, the royalty report shall be deemed accepted by Distributor and
payment for such replicated Software shall be due and payable in
accordance with Section 7.01 herein.
7. PAYMENTS
7.01 Amounts Payable. Within thirty (30) days from the date of the invoice
Distributor shall pay to COREL Software Prices for each copy of the
Software reproduced for Distributor during the month just ended.
7.02 Taxes. Distributor shall pay, in addition to all amounts specified in
this Agreement, all duties and foreign, federal, state, provincial,
county or local income taxes, value added taxes, use, personal,
property, sales taxes and other taxes whatsoever, or amounts in lieu
thereof, and interest thereon, paid or payable or collectible by COREL
(exclusive of taxes based on COREL's net income) and levied or based on
amounts chargeable to or payable by Distributor pursuant to this
Agreement. In the event any payments required to be made by Distributor
under this Agreement are subject to applicable withholding tax that
Distributor is required to deduct from such payments, Distributor shall
promptly deliver to COREL receipts issued by appropriate government
authorities for all such taxes withheld or paid by Distributor and
Distributor shall fully and promptly cooperate with COREL to provide
such information and records as COREL may require in connection with any
application by COREL to obtain available tax credits.
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7.03 Late Payment. If Distributor is in arrears under this Agreement, COREL
will give written notice to Distributor that Distributor is responsible
for payment of all outstanding amounts and finance charges. If the
outstanding amounts are not paid within ten (10) days of such notice,
COREL has the right to terminate this Agreement. Late payments will be
assessed a 1% finance charge per month (12% per annum) or the highest
finance charge permitted by applicable law, whichever is less. All such
finance charges shall automatically begin to accrue on overdue amounts
starting on the thirty-first (31st) day after payment of such amounts was
due. Distributor shall pay all costs including reasonable attorney's fees,
incurred by COREL in collecting overdue amounts.
7.04 U.S. Currency. All payments to COREL pursuant to this Agreement shall be
made in the lawful currency of the United States of America and all
amounts referred to in this Agreement are in the lawful currency of the
United States of America.
8. CONFIDENTIALITY
8.01 Confidentiality. Each of the parties hereto agrees to keep confidential
any and all information with respect to the other party which it has
received or may in the future receive in connection with this Agreement
which is not otherwise available to the general public without
restriction. Notwithstanding the foregoing, each of the parties shall be
entitled to disclose such information (i) to its agents, employees or
representatives who have a need to know such information for the purpose
of performance under this Agreement and exercising the rights granted
under this Agreement, or (ii) to the extent required by applicable law, or
(iii) during the course of or in connection with any litigation,
arbitration or other proceeding based upon or in connection with the
subject matter of this Agreement provided that Distributor shall give
COREL reasonable notice prior to such disclosure and shall comply with any
applicable protective order or equivalent. Distributor shall not
disassemble, decompile, reverse engineer or attempt to disassemble,
decompile, reverse engineer the Software, except to the extent this
restriction is not permitted by applicable law. Confidential Information
shall not include that information defined as Confidential Information
which the receiving party can conclusively establish (i) was in the
possession of the receiving party at the time of disclosure; (ii) prior to
or after the time of disclosure became part of the public domain without
the act or omission of the party to whom it was disclosed; (iii) was
disclosed to the receiving party by a third party under no legal
obligation to maintain the confidentiality of such information; (iv) was
independently developed by the receiving party.
9. WARRANTS AND OTHER REPRESENTATIONS
9.01 Warranty. The storage medium for the gold master for the Software or
Software is warranted against defects in workmanship and materials for a
period of ninety (90) days from the date it is delivered to Distributor.
In the event that the storage medium for the gold master for the Software
is defective COREL will replace it free of charge with another copy of the
gold master for the Software. Replacement of the storage medium for the
gold master for the Software shall be COREL's sole obligation and
Distributor's sole remedy for a breach of the warranty in this section.
9.02 Limitation. OTHER THAN AS PROVIDED IN SECTION 9.01, THE SOFTWARE, AND
STORAGE MEDIA ARE PROVIDED AND LICENSED BY COREL ON AN "AS IS" BASIS AND
THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR
IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF
DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THEM OR ANY OTHER PRODUCT
OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION HEREWITH BY COREL. COREL
DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY,
SATISFACTORY QUALITY, MERCHANTABILITY, DURABILITY OR FITNESS FOR
PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT,
INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING PERFORMANCE OF THE
SOFTWARE, OR STORAGE MEDIA, WHICH IS NOT CONTAINED IN THIS
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AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY, CONDITION OR
REPRESENTATION BY COREL.
9.03 No Variation. NO AGREEMENTS VARYING OR EXTENDING THE TERMS OF SECTION
9.01 OR 9.02 WILL BE BINDING ON COREL UNLESS IN WRITING AND SIGNED BY
AN AUTHORIZED SIGNING OFFICER OF COREL.
9.04 Distributor not to Bind. Distributor will give and make no warranties
or representations on behalf of COREL as to quality, merchantable
quality, satisfactory quality, merchantability, fitness for a
particular use or purpose or any other features of the Software; and
Distributor shall not incur any liabilities, obligations or
commitments on behalf of COREL, including, without limitation, a
variation of the End User License.
10. INFRINGEMENT
10.01 Defense and Settlement. If notified promptly in writing of any action
(and all prior related claims) brought against Distributor alleging
that Distributor's resale, distribution or other disposition of the
Software under this Agreement infringes any valid copyright, COREL
will defend that action at its expense and will pay the costs and
damages finally awarded against Distributor in the action, provided:
that Distributor provides COREL with prompt written notice of such
claim(s); that COREL shall have sole control of the defense of any
such action and all negotiations for its settlement or compromise;
that Distributor, and where applicable, those for whom Distributor is
in law responsible, cooperate fully with COREL in its defense of the
action; and that COREL shall have no liability if (a) the action
results from (i) the use of the Software for purposes or in an
environment for which it was not designed; (ii) modification of the
Software by anyone other than COREL or bundling of the Software with
Distributor Product(s); (iii) distribution of any Software or display
or use of any COREL ▇▇▇▇ after COREL's notice to Distributor that it
should cease distribution or use of such Software and/or COREL ▇▇▇▇
due to a possible infringement; or (b) Distributor is otherwise in
breach of the terms and conditions of this Agreement.
10.02 Options Where Claim. If a final injunction is obtained in such action
against Distributor's distribution of the Software or if in COREL's
opinion the Software is likely to become the subject of a claim of
infringement, COREL may at its sole option and expense either procure
for Distributor the right to distribute the Software or replace or
modify the Software so that it becomes non-infringing or grant
Distributor a credit for the Software Prices paid by Distributor to
COREL in respect of any Software remaining in the inventory of
Distributor.
10.03 Entire Liability. The foregoing states the entire liability of COREL
and exclusive remedy of Distributor with respect to any intellectual
or industrial property infringement.
11. LIMITATION OF LIABILITY
11.01 Limitation. IN NO EVENT WILL COREL BE LIABLE FOR ANY INCIDENTAL,
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER
RESULTING FROM LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE
SOFTWARE OR STORAGE MEDIA, OTHER COREL PROVIDED MATERIAL OR THE
PERFORMANCE OF COREL WHETHER SUCH ACTION IS BASED IN CONTRACT OR IN
TORT INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND WHETHER OR NOT COREL
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES
ARE FORESEEABLE.
11.02 Aggregate Liability. Other than as provided in Section 10, COREL's
aggregate liability to Distributor whether for negligence, breach of
contract, misrepresentation or otherwise shall, in respect of a
single occurrence or a series of occurrences, in no circumstances
exceed the Software Prices paid by Distributor to COREL over the
twelve (12) month period immediately preceding the claim by
Distributor.
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12. DISTRIBUTOR INDEMNIFICATION
12.01 Indemnification. Except as set forth in Section 10, Distributor agrees
to indemnify and save COREL harmless from and against any and all
claims, demands, costs and liabilities (including all reasonable legal
and attorney fees and expenses) of any kind whatsoever, arising directly
or indirectly out of claims by Distributor's Customers or any third
party relating to: (i) Distributor's Products; (ii) Distributor's
performance or non-performance, including but not limited to negligence,
of its obligations hereunder; or (iii) Distributor's pre-loading of the
Software.
13. TERMINATION
13.01 Termination. This Agreement will terminate in the event of any of the
following:
13.01.1 written notice of termination from COREL, effective
immediately, under Section 7.03;
13.01.2 on the thirtieth (30th) day after one party gives the other
written notice of breach by the other of any material term or
condition of this Agreement unless the breach is cured before
that day;
13.01.3 written notice of termination by one party, effective
immediately, after a receiver has been appointed in respect of
the whole or a substantial part of the other's assets or a
petition in bankruptcy or for liquidation is filed by or
against that other, or if the other has been dissolved or
liquidated or is insolvent;
13.01.4 written notice of termination, effective immediately, by the
non-defaulting party; if Distributor or COREL has breached its
obligation under Section 8; or
13.01.5 upon the expiry of ninety (90) days following receipt by either
party of written notice from the other party terminating this
Agreement for convenience.
13.02 No Compensation. Distributor acknowledges and agrees that it has no
expectation that its business relationship with COREL will continue for
any minimum period of years or that Distributor shall obtain any
anticipated amount of profits by virtue of this Agreement. The parties
agree that the termination provisions herein, in terms of both notice
and default events are reasonable and agree not to contest same by way
of wrongful termination proceedings or otherwise. COREL shall not be
liable, by reason of any termination of this Agreement, for
compensation, reimbursement or damages on account of the loss of
prospective profits on anticipated orders or on account of expenditures,
investments, leases or commitments whatsoever in connection with the
business or goodwill of Distributor.
14. EFFECT OF TERMINATION
14.01 Distributor. In the event of termination Distributor shall:
14.01.1 perform with respect to COREL all payment and other obligations
of Distributor arising under this Agreement within thirty (30)
days of termination;
14.01.2 immediately cease to have the Software reproduced, immediately
cease to use the COREL Marks in any manner whatsoever and
immediately cease to act as a distributor of the Software and
to represent itself as such; and
14.01.3 immediately return the gold master of the Software to COREL, at
Distributor's sole cost and expense.
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14.02 Survival. Sections 2.02, 3.02, 3.04, 5, 7, 8, 9, 10, 11, 12, 13.02, 14
and 15 shall survive the termination of this Agreement.
14.03 No Prejudice. Except as provided in Section 13.02, termination
hereunder shall be without prejudice to any other right or remedy to
which either party may be entitled hereunder in law.
14.04 Destroy or Deliver Up. At termination, COREL shall have the option to
require Distributor to destroy and certify that it has destroyed or to
deliver to COREL any property of COREL, including the golden masters
for the Software, then in its possession or under its control.
15. MISCELLANEOUS
15.01 Entire Agreement. This Agreement constitutes the entire agreement
between the parties concerning the subject matter hereof and
supersedes all prior statements, representations, discussions,
negotiations and agreements, both oral and written, including all
pre-printed terms and conditions appearing on Distributor's order
forms, COREL's acknowledgement of order forms and COREL's invoice
forms.
15.02 Amendment or Waiver. COREL expressly reserves the right to modify
Schedule "A" from time to time. Except as specifically provided for
herein, all other modifications and/or amendments require a mutual
written agreement signed by authorized signing officers of both
parties. No order, invoice or similar document will affect this
Agreement even if accepted by the receiving party.
15.03 Illegal or Unenforceable Provisions. If any one or more of the
provisions of this Agreement shall be found to be illegal or
unenforceable, this Agreement shall nevertheless remain in full force
and effect, and such term or provision shall be deemed severed.
15.04 Independent Contractors. The parties to this Agreement are independent
contractors. No relationship of principal to agent, master to servant,
employer to employee or franchisor to franchisee is established
between the parties. Neither party has the authority to bind the
other or incur any obligation on its behalf.
15.05 Force Majeure. Unless continuing for a period of ninety (90)
consecutive days, or unless involving the payment of amounts due under
this Agreement, no default, delay or failure to perform on the part of
either party shall be considered a breach of the Agreement if such
default, delay or failure to perform is shown to be due entirely to an
event of force majeure, or to causes beyond the reasonable control of
the defaulting party including without limitation, strikes, riots,
civil disturbances, actions or inactions concerning governmental
authorities, epidemics, war, embargoes, severe weather, fire,
earthquakes, acts of God or the public enemy or default of a common
carrier, always provided that the party so relieved of its obligations
shall take reasonable steps to prevent, correct or amend such act or
event which renders such obligations impossible.
15.06 No Waiver. Neither of the party's rights to enforce provisions of this
Agreement shall be affected by any prior course of dealing, waiver,
delay, omission or forbearance.
15.07 Assignment. This Agreement and the rights granted hereunder shall not
be assigned, encumbered by security interest or otherwise transferred
by Distributor without the prior written consent of COREL. An
amalgamation or merger of Distributor or COREL with any person who is
not a party to this Agreement shall be deemed to result in an
assignment of this Agreement. COREL may assign this Agreement at any
time upon notice to this effect to Distributor.
15.08 Enurement. This Agreement shall enure to the benefit of and be binding
upon the parties and their respective successors and permitted
assigns.
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15.09 Notices. Any notice or other communication to the parties shall be sent
to the addresses set out above, or such other places as they may from
time to time specify by notice in writing to the other party. Notices to
COREL shall be sent to the attention of the legal department. Any such
notice or other communication shall be in writing, and, unless delivered
to a responsible officer of the addressee, shall be given by registered
mail, facsimile or telex and shall be deemed to have been given when such
notice should have reached the addressee in the ordinary course, provided
there is no strike by postal employees in effect or other circumstances
delaying mail delivery, in which case notice shall be delivered or given
by facsimile or telex.
15.10 Further Assurances. The parties agree to do all such things and to
execute such further documents as may reasonably be required to give full
effect to this Agreement.
15.11 Time. Time shall be of the essence.
15.12 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario, Canada, excluding
that body of law applicable to choice of law and excluding the United
Nations Convention on Contracts for the International Sale of Goods and
any legislation implementing such Convention, if otherwise applicable.
Distributor hereby consents and attorns to the jurisdiction of the courts
of such province. If either party employs attorneys to enforce any rights
arising out of or relating to this Agreement, the prevailing party shall
be entitled to recover reasonable attorney's fees. Each party waives any
right, and agrees not to apply to have any disputes under this Agreement
tried or otherwise determined by a jury, except where required by law.
15.13 Non-Conflict. No director or officer of Corel Corporation (and/or its
subsidiaries and affiliates) shall be admitted to any share or part of
this Agreement or to any benefit arising therefrom.
15.14 Language. The original of this Agreement has been written in English and
Distributor waives any right it may have under the laws of Distributor's
Territory to have the Agreement written in any other language.
Distributor represents that it has the ability to read and write in
English and has read and understands this Agreement. If this Agreement is
translated into a language other than English, the English version and
interpretation shall govern and prevail. All communications between the
parties hereunder shall be in English.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
EBIZ ENTERPRISES, INC.
PER: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
COREL CORPORATION
PER:
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Name:
Title:
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SCHEDULE "A"
GUIDELINES FOR USING COREL TRADE-MARKS AND GUIDELINES FOR USING COREL LOGOS
This page left blank. Corel Trade-Marks and
Logos Guidelines provided on following page.
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GUIDELINES FOR USING COREL LOGOS & TRADEMARKS
Corel permits you to use its logos and trademarks in both plain word and
stylized form (the "Marks") for the purpose of promoting and advertising Corel
products or services, provided you comply with the following guidelines:
- The Marks may only be used in relation to Corel products or services.
This means that you may not display the Marks on any non-Corel product
or service including any associated packaging, documentation,
advertising or other materials in a manner that suggests that such
product or service is a Corel product or service, that Corel or any of
the Marks are associated with such product or service or that Corel is
affiliated with, endorses or sponsors you or any of such products or
services. Use of Corel partner program logos and trademarks, such as
the Corel Solutions Partner and Corel Training Partner logos, are
subject to the terms and conditions of the respective partner program
and no permission to use such logos is granted herein. Please contact
a Corel representative or visit ▇▇▇▇▇.▇▇▇ for further details.
- Corel will provide you with the artwork for the Marks. This artwork
may not be altered in any way.
- When displayed, the Marks must be substantially less prominent than
your trademark, trade name, logo or product name. The Marks may not be
used as, or as part of, a company name.
- When displayed, the Marks must stand alone. A minimum amount of empty
space must be left between the Marks and any other object such as
type, photography, borders, edges, etc. The required border of empty
space around the Marks must be 1/2x wide where x is the height of the
▇▇▇▇.
- You may not combine the Marks with any other feature including, but
not limited to, other logos, words, graphics, photos, slogans,
numbers, design features, or symbols. Further, you may not display
your own logos or marks or other text or graphics in the same or
similar get-up, graphics, look, or trade-dress as the Marks.
- The Marks must not be used in a manner that, in Corel's judgment, may
diminish or otherwise damage Corel's goodwill in the Marks, including
but not limited to uses which could be deemed to be obscene,
pornographic, or otherwise in poor taste or unlawful, or which purpose
or objective is to encourage unlawful activities.
- You must place an asterisk (*) or similar notation ▇▇▇▇ beside the
first use of a ▇▇▇▇ and include the following attribution statement on
the materials in which the Marks are featured.
"* Trademark(s) of Corel Corporation or Corel Corporation Limited"
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SCHEDULE "B"
SOFTWARE AND SOFTWARE PRICES
I. SOFTWARE
i) Corel WordPerfect 8 for Linux - Personal Edition
Languages: English, French, Italian, German and Spanish
Estimated availability: available
End User License and registration card
II. SOFTWARE PRICES
i) For each copy of the Software reproduced, Distributor is not required
to pay any Software Prices.
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SCHEDULE "C"
LOGO LINK USAGE GUIDELINES
Proper usage of the Corel logo (the "Logo") requires compliance with the
following guidelines:
REQUIRED LINK
The Logo must always be a single active link to the Corel home page at
▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇ (the "Corel Site"). See the HTML code provided below. By
linking to the Corel Site, you agree to be bound by the Corel Site Terms and
Conditions of Use.
REQUIRED HTML CODE - NEW BROWSER WINDOW USE
The following code must be used to place the Logo on your HTML page. The Logo
itself must be located in the same directory as the HTML page that references
it:
![[Corel
Corporation Logo]](https://www.sec.gov/Archives/edgar/data/1094944/000095015399001457/corel.gif)
CHANGES TO YOUR URL
Any change to your placement of the Logo on your site requires the completion of
a new Logo Link Application Form.
LOGO SIZE
There is only one version of the Logo. The required size of the Logo is 100 by
35 pixels. The Logo may NOT be displayed in a larger size, even if all elements
of the Logo are increased in size proportionately. Your web page title and other
trademarks and logos must appear at least as prominently as the Logo.
REQUIRED PLACEMENT
The Logo must be placed by itself in a prominent location on your site. The Logo
may not be used as a feature or design element of any other logo. The Logo must
not be used in conjunction with a high-contrast background.
NO ALTERATION ALLOWED
The Logo must not be modified or distorted in ANY way. Do not shrink it, take it
apart, change its proportions, color or font, or otherwise alter it from the
Corel-supplied version.
POSITIVE PRESENTATION
Your site must display the Logo in a positive manner. The Logo may not be used
to depict Corel or its products negatively, or in a manner that could reflect
adversely on Corel or its products and services, including, but not limited to
uses which could be deemed to be obscene, pornographic, excessively violent or
otherwise in poor taste or unlawful, or which purpose or objective is to
encourage unlawful activities.
Your web page title and other trademarks and logos must appear at least as
prominently as the Logo.
You may not display the Logo in any manner that implies sponsorship, endorsement
or license by Corel.
You may not display the Logo on any site that infringes Corel's intellectual
property or other rights, or violates any state, provincial, federal or
international law.
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GUIDELINE CHANGES
Corel reserves the right to change the Logo Link Usage Guidelines at its sole
discretion upon ten (10) days electronic notice of such changes.
PROPRIETARY RIGHTS
The Logo is a proprietary logo of Corel Corporation. It contains Corel's
trademark and may be used only with the permission of Corel. The Logo Usage
Guidelines do not grant a license or any other right in Corel's logos or
trademarks. Use of the Logo acknowledges Corel's ownership of such logos and
trademarks (collectively referred to as the "Marks") and does not create any
right, title or interest in or to the Marks. All use of or goodwill associated
with the Marks enures to the benefit of Corel.
TERMINATION
Corel reserves the right in its sole discretion to immediately terminate or
modify permission to use the Logo at any time. Further, Corel reserves the
right to refuse permission to use the Logo and to decline your Logo Link
Application Form. Corel may visit participating sites to ensure compliance with
the Logo Link Usage Guidelines. Corel reserves the right to take action against
any use that does not conform to the Logo Link Usage Guidelines, infringes any
Corel intellectual property or other right or violates other applicable law.
Upon termination, you agree to immediately remove the Logo from your site and
disable your link to Corel's homepage.
DISCLAIMER
Corel disclaims any warranties that may be express or implied by law regarding
the Logo, including warranties against infringement.
*****
The Logo may only be used with the permission of Corel. To receive the Logo and
HTML code to link your site to Corel's homepage, complete the above Logo Link
Application Form, read the above Logo Link Usage Guidelines and accept to be
bound by the terms and conditions stated therein by hitting the "ACCEPT" button
below. If you do not accept to be bound by the terms and conditions contained
in the Logo Link Usage Guidelines, hit the "REJECT" button below.