This Reseller Agreement provides for the resale of manufactured goods.
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DORADO SOFTWARE, INC.
THIS AGREEMENT (“the Agreement”) is made between:
(1) DORADO SOFTWARE, INC. (“Dorado”), a California corporation, with its principal place of business located at 4805 Golden Foothill Parkway, El Dorado Hills, CA 95762 and (2) ______________________ (“Reseller”)__________________,with its principal place of business located at __________________________________________________________ .
Once signed by Reseller, this Agreement shall become effective as of the date signed by Dorado below (“Effective Date”).
The following are included herein by reference as integral parts of this Agreement:
Exhibit A Licensed Software Products and Price List
Exhibit B Territory and Discounts
1.1 “Documentation” shall mean any user manuals, release notes, installation notes, and other materials in any form provided in conjunction with the Licensed Software Products.
1.2 “End User” shall mean that entity which acquires the Licensed Software Product for its own use, is granted a sublicense by Reseller and which has no right to sublicense or transfer the Licensed Software Product to any third party.
1.3 “License Agreement” shall mean an agreement in the form appended hereto as Exhibit D.
1.4 “Licensed Software Product(s)” shall mean the software listed in Exhibit A, in object code form, together with the Documentation provided by Dorado expressly for distribution under this Agreement to End Users. Dorado may change the Licensed Software Products and Price List on notice to Reseller.
1.5 “License Key” shall mean an encrypted character string in any form provided by Dorado to Reseller and/or End User to initialize or enable the use of the Licensed Software Product.
1.7 “Product” shall mean the Licensed Software Product(s) and Maintenance and Support Services as listed in Exhibit A.
1.8 “Release” shall mean any update, enhancement or bug-fix of a Licensed Software Product which is substantially similar to the original Version and is marketed under the same Version number and nomenclature. A Release is designated by a number to the right of the decimal point (such as Vx.1 or Vx.2).
1.9 “Territory” shall mean the geographic area in which the Reseller may resell the Product. The Territory for this Agreement is defined in Exhibit B.
1.10 “Version” shall mean a specific edition of the Licensed Software Products and is designated by a number located to the left of the decimal point (such as V1.x or V2.x). Each new Version of the Licensed Software Products contains significant functionality changes or improvements.
Other capitalized expressions used in this Agreement shall have the meanings respectively assigned to them.
2. License Grant and Restricted Use
2.1 Dorado licenses for using the Licensed Software Products and this is not an agreement for sale. Dorado and/or its licensors retain title to, ownership of, and all proprietary rights with respect to the Licensed Software Products and all copies and portions thereof. Dorado and/or its licensors retain rights to all copyrights, trademark, patents rights, trade secrets rights and other intellectual property rights with respect to any Licensed Software Products and derivatives thereof.
2.2 Dorado grants to Reseller a non-exclusive license to market and sub-license the Licensed Software Product to End Users in the Territory and Market in conjunction with Reseller’s products or services. The Reseller must either ensure that each copy of the Licensed Software Products is shipped with Dorado’s License Agreement. Any agreement between Reseller and End User shall expressly state that the sale of the Licensed Software Product is subject to the terms of the License Agreement and no conflicting or overriding terms shall be agreed by Reseller.
2.3 Dorado grants to Reseller subject to the terms hereof a non-exclusive, non-transferable license to use the Licensed Software Products in accordance with the accompanying Documentation. The Licensed Software Products are protected among other ways by national copyright law, the international treaty, and trade secret. Unauthorized copying of the Licensed Software Products, including software that has been modified, merged or included with other software is expressly forbidden. Reseller shall not (and shall not allow any third party to) decompile, disassemble, modify, examine, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Licensed Software Products by any means whatever.
2.4 Neither Reseller nor End User shall have any right to receive any source code with respect to any Licensed Software Product.
Unless terminated earlier as provided herein, this Agreement is effective for one (1) year from the Effective Date of this Agreement (“Initial Term”) and thereafter, renewable automatically on the anniversary of the Effective Date for additional one-year terms. Dorado must receive all orders pursuant to this Agreement by the last day of the Term hereof.
4. Obligations of Reseller
4.1 Prior to becoming a Reseller for Dorado, Reseller must provide Dorado with a basic Reseller Business Plan describing the Reseller’s business, the markets served by Reseller, products represented, staffing and technical resources, and product and revenue forecast.
4.2 Reseller shall provide competent sales and technical support personnel who will apply their best reasonable efforts to market, distribute and support the Licensed Software Product successfully within the Territory and Market in a professional and satisfactory manner, and on a continuing basis, including advertising and direct solicitation. Reseller will use its best efforts to follow up on all advertising inquiries from prospective customers and call on existing End Users at reasonable periodic intervals.
4.3 Reseller shall train and maintain a sufficient number of capable technical and sales personnel as agreed upon between Reseller and Dorado in Exhibit B.
4.4 Reseller will maintain an accurate and complete list of all End Users to whom Reseller resells Licensed Software Product or provides an evaluation, including the names and addresses of each End User or entity, the License Key given for the Licensed Software Product, the date of delivery of the Licensed Software Product and the License Agreement. Reseller shall permit a firm of accountants appointed by Dorado and/or its licensors on reasonable notice (but not more than once annually) to audit such records relevant to license or support fees. If such audit reveals an underpayment of more than 5%, then in addition to Reseller’s payment of such underpayment, Reseller shall bear the reasonable cost of such audit.
4.5 Reseller shall use reasonable commercial efforts to keep Dorado informed as to any problems encountered with the Licensed Software Product and any resolutions arrived at for those problems, and to communicate promptly to Dorado any modifications, design changes or improvements suggested by any End User, customer or employee.
4.6 Reseller will not advertise the Licensed Software Products outside the Territory or Market or solicit orders from outside the Territory or Market without the advance written consent of Dorado.
4.7 Reseller shall provide Dorado with an annual rolling, quarterly forecast of sales of Licensed Software Products.
4.8 Reseller will conduct its business in a manner which favorably reflects upon Dorado and the Licensed Software Products.
4.9 Reseller shall comply with good business practices and all laws and regulations relevant to this Agreement or the subject matter hereof.
5. Obligations of Dorado
5.1 Dorado shall use reasonable endeavors to keep Reseller promptly and fully informed as to any planned or actual changes, modifications or updates to the Licensed Software Products.
5.2 Dorado shall be solely responsible for the design, development, production, and performance of the Licensed Software Product and for the legal protection of its trademarks, trade names, copyrights, and patents.
5.3 Dorado commits to making deliveries of satisfactory Licensed Software Product within stated delivery schedules.
6. Sale of Products
6.1 Dorado will provide Reseller with Dorado’s current price lists, published delivery schedules, Standard License Agreements and standard terms and conditions of sale as established from time to time. Dorado may alter these provisions by giving 30 days prior written notice to Reseller of any changes to be put into effect. Each order shall be governed by the prices, delivery schedules, license, and terms and conditions of sale in effect at the time the order is accepted.
6.2 For each sale, Reseller shall submit a written purchase order to Dorado specifying the End User company name, technical contact name, phone numbers, email, shipping address, product name/numbers and quantities, specific computer information (such as platform) and any other information reasonably requested by Dorado in order to fulfill the order. Dorado will either ship directly to End User or to Reseller, as specified in the sales order. Dorado reserves the right to refuse all or any sales orders.
6.3 Under no circumstances shall Dorado be responsible to Reseller for failure to fill accepted orders, or for its delay in fulfilling accepted orders when such failure is due to any cause beyond Dorado’s control. (Force majeure)
6.4 Delivery of the Licensed Software Product ordered by Reseller hereunder shall be FOB Dorado’s premises at El Dorado Hills, California, USA All risk of loss and damage shall be Reseller's responsibility only and precisely after the delivery and receipt of the Licensed Software Product at Reseller premises.
6.5 Dorado shall have the sole right of credit approval or credit refusal for Reseller’s credit line with Dorado.
7. Prices and Payment Terms
7.1 Fees are due to Dorado for Product resold by Reseller as listed in Dorado’s then-current applicable price list for the country of delivery and end use, as published from time to time, less the applicable discount set forth in Exhibit B.
7.2 Dorado will invoice Reseller for software upon shipment or installation, whichever transpires first.
7.3 Payment is due 30 days after the date of invoice. All payments are due in US dollars. If payments are overdue, Dorado will notify Reseller that its status is “no ship” and orders will be held until payment is received for all due invoices. The applicable discount set forth in Exhibit B is conditional on prompt payment. Should Reseller exceed its stated credit terms or Dorado determines that Reseller’s ability to make payment is in doubt, then Dorado may seek alternative guarantees of payment.
7.4 In addition to any other sums payable hereunder, Reseller shall pay all charges, including without limitation, transportation charges, shipping insurance or duties, and shall be responsible for any and all taxes, import or export fees, excise duties and withholding taxes arising from the use of the license and support of the Product. In the event that the government of any country requires Reseller to withhold or deduct any taxes, charges or other duties from any payments hereunder, Reseller shall pay any additional amounts as may be necessary in order that the net amounts received by Dorado after any such withholding or deduction equals the amounts specified in the sales order.
7.5 Reseller agrees to comply with the U.S. Foreign Corrupt Practices Act (regarding among other things, payments to government officials) and all export laws, restrictions, national security controls and regulations of the United States (US), United Kingdom (UK), the European Union (EU) and all other applicable foreign agencies and authorities. Reseller will comply with all such laws and obtain licenses to export, re-export or import, as may be required. Reseller will not export or re-export or allow the export or re-export of, any Products or any copy or direct product thereof to any embargoed or restricted country identified in US, UK, and EU export laws and regulations. Dorado shall promptly execute any documents required by Reseller to comply with US, UK, and EU export requirements or demonstrate to Dorado its compliance with such requirements.
8.1 Dorado will use reasonable efforts to support Reseller in its efforts to market the Products. At Reseller’s request and expense, Dorado will make available marketing literature packs and any other materials reasonably deemed necessary for proper promotion and sales of Products.
8.2 Dorado grants to Reseller the right to use the trademarks (including the logo, trademarks, service marks, and trade names that Dorado may adopt from time to time) (the “Trademarks”) for the promotion and distribution of the Licensed Software Product. Reseller shall have the right to indicate to the public that it is an authorized reseller of Dorado’s Products and to advertise such Products under the Trademarks. Reseller agrees that its right to use the Trademarks is only by virtue of this Agreement and that Reseller shall acquire no title to or interests to or in any Trademarks through Reseller’s use thereof.
8.3 Reseller’s right to market and sublicense the Products is non-exclusive. Nothing in this Agreement shall be construed as limiting in any manner Dorado’s marketing or distribution activities or its appointment of other resellers, Resellers, licensees or agents in the Territory or Market.
9.1 Both parties understand and acknowledge that by reason of the relationship, each party will have access to certain information and materials concerning the other’s business, plans, customers, technology and products that are confidential and of substantial value to the other and the value of such would be impaired if such information were disclosed to third parties. Each party agrees that it will not disclose to any third party or use in any way for its own account or the account of any third party, any such confidential information revealed to it by the other, other than to fulfill its express obligations under this Agreement. Each party will take every reasonable precaution to protect the confidentiality of such information.
9.2 All customer lists, potential customer lists, marketing, and financial information, business plans and technical information whether written or verbal of both parties shall be deemed confidential information, and the Licensed Software Product and all code, inventions, algorithms, know-how and ideas obtained from Dorado shall be deemed confidential information.
10.1 Dorado warrants that for a term of ninety (90) days after a physical copy of Licensed Software is first installed to Reseller the Licensed Software Products will perform substantially in accordance with the Documentation provided. If the Reseller/End User asserts a defect in the Licensed Software Products during the above-defined warranty period, Dorado shall be entitled at its expense to replace the defective software with software that substantially conforms to the Documentation.
10.2 Dorado does not warrant that the functions contained within the licensed software products will meet end-user requirements or will operate in any combination which may be selected for use by Reseller or end user, or that operation of the licensed software will be uninterrupted or error-free, or that any defects that may exist in the software will be corrected.
10.4 Dorado shall not be liable under this warranty if its testing and examination disclose that the alleged defect in the Licensed Software Product does not exist or was caused by Reseller’s or End User’s or any third person’s misuse, neglect, improper installation or testing, unauthorized attempts to repair or modify, or any other cause beyond the range of the intended use of the Licensed Software Products, or by accident, fire, lightning, or other hazard.
11. Patent and Copyright Indemnification
11.1 Dorado shall at its own expense defend any suit instituted against Reseller and indemnify Reseller against any award of damages made against Reseller based on the claim that any of the Products furnished by Dorado under this Agreement constitute an infringement of any third party patent or copyright, provided that Reseller gives Dorado immediate notice in writing of any such claim, permits Dorado to defend the suit and gives Dorado all available information, assistance and authority so to do. Dorado shall control any such suit, including appeals and all negotiations to effect settlement. If the Products furnished hereunder become, or in the opinion of Dorado may become the subject of a claim for infringement, Dorado may at its election and expense: (a) procure for Reseller and its sub-licensees the right to continue using the same, (b) replace or modify the same so that it becomes non-infringing or (c) grant Reseller a refund for such Licensed Software Product based upon a five year straight line depreciation schedule, measured from End User’s installation date. Dorado shall not be liable for any cost or expenses incurred without its prior written authorization.
11.2 Dorado shall, however, have no liability to Reseller under this section if any patent or copyright infringement is based upon or arises out of (a) compliance with plans, designs or specifications furnished by or on behalf of Reseller as to the Licensed Software Product, (b) alterations to the Licensed Software Product by Reseller, (c) failure of Reseller to use updated Licensed Software Product provided by Dorado for avoiding infringement, (d) use of Licensed Software Product in a manner for which the same was neither designed nor contemplated, as evidenced by Dorado ’s published specifications, or (e) a patent or copyright in which Reseller or affiliate or subsidiary of Reseller has any direct or indirect interest by license or otherwise.
11.3 The foregoing states the entire liability of Dorado for, or resulting from, intellectual property infringement or claim thereof.
12. Limitation on Liability.
Dorado shall not be liable or obligated to reseller or any third party with respect to any subject matter of this agreement or otherwise, or under any contract, negligence, strict liability or other legal or equitable theory for any loss of profits, loss of business, loss of data or use thereof, interruption of business, or for any indirect, special, incidental or consequential damages of any kind, even if Dorado has been advised, knew, or should have known of the possibility thereof, or for any claim by any third party. the liability of Dorado hereunder whether in contract or in tort shall in no event exceed the fees paid by reseller under this agreement. Dorado will not be liable for any representation or warranty made to any third party by Reseller, any agent of Reseller, any Reseller or dealer or other person or entity in the distribution chain.
Reseller shall indemnify and hold Dorado and its affiliates, and their respective officers, directors, agents and employees (collectively, "Dorado Indemnities"), harmless from and against all claims, loss, expense (including, without limitation, fees and disbursements of legal counsel incurred by a Dorado Indemnitee in any action or proceeding between Dorado Indemnitee and Reseller, or between Dorado Indemnitee and any third party or otherwise), damage, liability and lawsuits arising from breach by Reseller of any of its representations or warranties in this Agreement.
14.1 Either party may terminate this Agreement for convenience upon thirty (30) days written notice.
14.2 This Agreement may be terminated immediately by either party upon written notice if the other party (a) breaches any payment obligation hereunder and fails to cure the same within ten (10) days after receipt of written notice hereunder, (b) breaches any other material term or condition of this Agreement and fails to remedy the breach within thirty (30) days after being given notice thereof, (c) shall become insolvent or file or have filed against it a petition for bankruptcy (which is not dismissed within thirty (30) days after it is filed), (d) make an assignment for the benefit of creditors or (e) cease to be actively engaged in business. In addition, Dorado may terminate this Agreement immediately in the event that Reseller has not achieved sales of Product for a period of one hundred and eighty (180) days or has significantly missed its forecast and sales goals. This remedy shall not be an exclusive remedy and shall be in addition to any other remedies which the non-breaching party may have under this Agreement or otherwise.
14.3 All trademarks, service marks, trade names, copyrights, technical documents, demonstration units, literature, software, and sales tools of any kind shall remain the property of Dorado. Within thirty (30) days of termination or expiry of this Agreement, Reseller shall ship all such items in its possession to Dorado, at Dorado’s expense. Effective upon the termination or expiry of this Agreement, Reseller shall cease to use all Dorado Trademarks.
15. Independent Contractors
15.1 Reseller is an independent contractor, and nothing contained in this Agreement shall be construed to give either party the power to direct and control the day to day activities of the other party. Each party is solely responsible for its business practices and all its employees and agents and its labor costs and expenses arising in connection therewith.
15.2 Except as expressly provided herein neither party shall represent itself as an agent, partner or representative of the other.
16.1 This Agreement, the initialed Exhibits, and any documents explicitly referred to therein, constitute the entire agreement between the parties, and no representation, condition, understanding or agreement of any kind, oral or written, shall be binding upon the parties unless incorporated herein. This Agreement may not be modified or amended, nor will the rights of either party be deemed waived, except by an agreement in writing signed by authorized representatives of Reseller and Dorado. This Agreement supersedes and cancels any previous agreements between Dorado and Reseller.
16.2 If an End User of the Programs is an agency, department, or other entity of the United States Government (“Government”), Government user, duplication, reproduction, release, modification, disclosure or transfer of the Programs, or an related documentation of any kind, including technical data, is restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies and Defense Federal Acquisition Supplement (“DFARS”) 227.7202 for military agencies. The Programs are commercial computer software and may be accompanied by commercial computer documentation. The use of the Licensed Software Products and related documentation by the Government is further restricted in accordance with the terms of this Agreement, or any modification thereto. In the event of a sale or transfer of the Licensed Software Products to the Government, Reseller will affix the following legend to the Licensed Software Products and related documentation: “Use, duplication, reproduction, release, modification, disclosure or transfer of this commercial computer software and accompanying documentation, is restricted in accordance with FAR 12.212 and DFARS 227.7202, and by a license agreement. Contractor is Dorado Software, Inc., 4805 Golden Foothill Parkway, El Dorado hills, CA 95762.”
16.3 This Agreement and the rights hereunder are not transferable or assignable, without the prior written consent of Dorado.
16.4 The failure or delay of either party to enforce any term of this Agreement shall not be deemed a waiver of such term.
16.5 If any part of this Agreement is held to be invalid by a court of competent jurisdiction then the remaining provisions shall remain in full force and effect.
16.6 No delay, failure or default in the performance of an obligation hereunder shall constitute a breach of this Agreement to the extent caused by force majeure.
16.7 All notices and invoices and sales orders shall be in writing and delivered by hand, by email or sent by first class prepaid mail or international mail and shall be deemed received on the earlier of actual receipt or ten (10) days after posting.
Notices for Dorado:
4805 Golden Foothill Parkway
El Dorado Hills, CA 95762
Business Phone: +1-916-1100 x 1090
Email: [email protected]
Notices for Reseller:
Business Phone: ______________________
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the Effective Date.