Distribution Agreement Template
PandaTip: This Distribution Agreement template is for a software product. As such, the distributor is acting as a kind of reseller or that software. This is a mutually non-exclusive agreement, but could be made exclusive with appropriate modifications.
This Distribution Agreement (this “Agreement” or this “Distribution Agreement”) is made and entered into as of [DATE] (the “Effective Date”) between [DISTRIBUTOR NAME] (“DISTRIBUTOR”) and [VENDOR NAME] (“VENDOR”).
WHEREAS, VENDOR has created and licenses the software program known generally as [PROGRAM NAME] (together with the Documentation referred to below, the “Software”) and, subject to the terms and conditions of this Agreement, has agreed to authorize DISTRIBUTOR to be an authorized DISTRIBUTOR of the Software.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Certain Defined Terms.
As used herein, the following terms shall have the following meanings: “Documentation” means those printed or online instructions, manuals, screens and diagrams distributed or otherwise provided by VENDOR that pertain to the Software; “End User” means any licensee or potential licensee of the Software; “End User Agreement” means the standard agreement(s) pursuant to which VENDOR grants to End Users the right and license to use the Software; “Term” has the meaning set forth in Section 3 below.
Non-Exclusive Right to Provide and Market Software to End Users.
Subject to the terms and conditions of this Agreement, VENDOR grants to the DISTRIBUTOR a non-exclusive right and license during the Term to: (a) market the Software to End Users; (b) purchase Software licenses for distribution to End Users; and (c) distribute Software and licenses thereto to End Users. DISTRIBUTOR may use the names, trademarks, service marks, trade names, product names and logos of VENDOR related to the Software (“VENDOR Trademarks”) for advertising, distribution and promotion of the Software to End Users. The DISTRIBUTOR agrees that it will not modify, alter, conceal, remove or make any other modification to any VENDOR Trademark without VENDOR’s prior approval. VENDOR shall be responsible for causing each End User that becomes authorized to use the Software to enter into an End User Agreement. The DISTRIBUTOR agrees that it will not modify or alter any End User Agreement.
Term and Termination.
This Agreement shall commence as of the Effective Date and, unless earlier terminated as provided herein, shall continue until the first (1st) anniversary of the Effective Date (the “Initial Term”). This Agreement shall automatically renew for successive one (1) year renewal terms (each, a “Renewal Term”) at the end of the Initial Term or any succeeding Renewal Term, unless (a) either party provides the other with written notice at least sixty (60) days prior to the beginning of any such Renewal Period electing to not renew this Agreement for such Renewal Period or (b) this Agreement is otherwise terminated as provided herein. The Initial Term and all Renewal Terms are, collectively, the “Term.”
Notwithstanding the foregoing provisions of this Section 3, (a) either party may terminate this Agreement, at any time and for any reason, upon sixty (60) days prior written notice to the other party and (b) if either party (the “breaching party”) breaches this Agreement, the other party may provide written notice thereof to the breaching party and if such breach is not cured within fifteen (15) days after the breaching party’s receipt of such notice, the other party may terminate this Agreement upon written notice to the breaching party.
Effect of Termination; Remedies Cumulative; Survival. Upon the effective date of expiration or termination of this Agreement, for any reason, DISTRIBUTOR’s rights pursuant to Section 2 shall terminate. Each right or remedy of a party in this Agreement shall be cumulative and in addition to, and not in lieu of, each other right and remedy of such party hereunder or pursuant to applicable law. The following provisions of this Agreement shall survive any expiration or termination hereof: Sections 4 and 8 through 15. In addition, any accrued rights to payment and remedies for breach of this Agreement shall survive any expiration or termination hereof and, if so directed by DISTRIBUTOR, VENDOR shall fulfill any Software orders placed hereunder prior to any expiration or termination of this Agreement, even if such fulfillment occurs after such expiration or termination.
Prices and Payment.
PandaTip: Note that an exhibit will need to be created with all of the pricing related information and terms.
The fees charged by VENDOR to DISTRIBUTOR for the Software’s End User licenses that DISTRIBUTOR may order hereunder are set forth on Exhibit A hereto. The fees identified in this Agreement do not include any sales or use taxes resulting from the ordering of Software by DISTRIBUTOR hereunder. Unless a tax exemption is applicable, VENDOR may invoice DISTRIBUTOR for sales and use taxes arising as a result of DISTRIBUTOR’s ordering of Software hereunder. For all fees and other charges hereunder, VENDOR shall promptly invoice DISTRIBUTOR and invoices are due within [NUMBER] days after DISTRIBUTOR’s receipt thereof.
Ordering and Provision.
The DISTRIBUTOR may order End User Software licenses hereunder by submitting a purchase order to VENDOR. Each purchase order submission shall identify: the number of Software end user licenses to be purchased; the name of the End User for each license; the version of the Software for each license; and the Fulfillment Email Address (as defined below). “Fulfillment Email Address” means, for any order, the email address specified in such order as the place where the Fulfillment Materials are to be sent to DISTRIBUTOR. If no such email address is specified in such order, the Fulfillment Email Address for such order shall be the email address of DISTRIBUTOR from which such order was originated.
Within two (2) business days of its receipt of such an order, the VENDOR shall fulfill such order by sending the following materials (the “Fulfillment Materials”) to the Fulfillment Email Address for each End User license included in such order: a license key; a serial number; and an Internet web link that enables such End User to access and download the licensed Software and agree to the End User Agreement. VENDOR shall forward an End User’s Fulfillment Materials to such End User.
Title; Limitations on Use.
The DISTRIBUTOR agrees that, as between the VENDOR and the DISTRIBUTOR, VENDOR shall have sole and exclusive ownership of and all right, title and interest in and to the Software. This Agreement does not provide the DISTRIBUTOR with title or ownership of the Software, but only the right to market and provide the Software as set forth herein. DISTRIBUTOR will not modify or prepare derivative works of the Software. The DISTRIBUTOR may not reverse assemble or reverse compile the Software or use other means to identify the Software’s source code.
VENDOR shall indemnify, defend and hold DISTRIBUTOR harmless from and against any and all damages, costs, penalties, claims, demands, causes of action and expenses (including, without limitation, the fees and expenses of counsel) arising out of or resulting from the infringement of any patent, copyright, trademark, service mark, trade secret or other intellectual property right of a third party by the Software. DISTRIBUTOR agrees to promptly notify the VENDOR after DISTRIBUTOR becomes aware of any claim giving rise to an indemnification obligation pursuant to this Section; provided that a failure to provide such notice shall not affect DISTRIBUTOR’ right to indemnification pursuant to this Section, except to the extent that the VENDOR is actually prejudiced thereby.
Warranties; Limitation of Liability.
VENDOR represents and warrants that (i) it has all power and authority, corporate and otherwise, to enter into this Agreement and perform its obligations hereunder, (ii) it has duly authorized, executed and delivered this Agreement and (iii) this Agreement is an enforceable agreement of VENDOR, enforceable against VENDOR in accordance with its terms. VENDOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), WHETHER CAUSED BY NEGLIGENCE OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
PandaTip: If you are the distributor, you may want to include yourself in this limitation of liability clause. After all, who likes liability?
Either party may assign its rights and obligations hereunder (in whole and not in part) to any person or entity, provided that (a) the assignee agrees to be bound, in writing, by this Agreement, (b) such an assignment shall not relieve the assignor of its obligations hereunder and (c) the assignor provides written notice of the assignment to the other party. This Agreement shall be binding upon the parties hereto and their respective successors and assigns.
“VENDOR Confidential Information” means the Software, “DISTRIBUTOR Confidential Information” means the identity of, and other information regarding, End Users and information about DISTRIBUTOR’S plans, strategies, products and services, “Confidential Information” means the VENDOR Confidential Information and the Distributor Confidential Information, “disclosing party” means a party hereto disclosing its Confidential Information hereunder and “receiving party” means a party hereto which receives Confidential Information of the disclosing party hereunder. Confidential Information may be oral, visual, in writing or electronic. “Confidential Information” of the disclosing party shall not include information which: (i) is or becomes generally available to the public, other than as a result of a disclosure by the receiving party or any of its Representatives (as defined below); (ii) was available to receiving party on a non-confidential basis prior to its disclosure to the receiving party by the disclosing party, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the disclosing party; (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party, provided that such source was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the disclosing party or any of its affiliates; or (iv) is or was independently developed or discovered by the receiving party without use of or reference to the Confidential Information of the disclosing party. The Confidential Information will not be used by the receiving party or any of the receiving party’s employees, officers, directors or contractors (“Representatives”) for any purpose other than the receiving party’s performance of its obligations or exercise of its rights pursuant to this Agreement. The Confidential Information of the disclosing party will not be disclosed or divulged by the receiving party to anyone except: with the disclosing party’s prior written permission; as may be required by law, rule or regulation or by the order or demand of a court or government agency or authority; or as may be permitted pursuant to this Agreement. Notwithstanding the foregoing, the receiving party may disclose the disclosing party’s Confidential Information to those of the receiving party’s Representatives who need to review such Confidential Information for the purpose of the receiving party’s performance of its obligations or exercise of its rights pursuant to this Agreement, but only after the receiving party has informed them of the confidential nature of such Confidential Information and they have agreed, in writing, to treat such Confidential Information confidentially on terms substantially similar to those of this Agreement. If the receiving party or any of its Representatives shall be requested or required by governmental order, judicial process or similar means to disclose any Confidential Information of the disclosing party, the receiving party agrees to provide prompt written notice to the disclosing party of such request and to cooperate with the disclosing party in seeking to limit such disclosure and in seeking an appropriate protective order and confidential treatment. The receiving party acknowledges that the disclosing party will suffer irreparable injury as a result of the use or disclosure of the disclosing party’s Confidential Information in violation of this Section, for which money damages will be inadequate. Accordingly, in addition to any other remedy available to the disclosing party pursuant to this Agreement or applicable law, the disclosing party shall be entitled to obtain preliminary and permanent injunctive relief with respect to any breach or threatened breach of this Section, without the necessity of proving actual damages. Upon expiration or termination of this Agreement for any reason, the receiving party will return to the disclosing party or destroy all Confidential Information of the disclosing party and all copies thereof (except that DISTRIBUTOR may retain any Confidential Information needed to fulfill orders then pending as contemplated by this Agreement until such orders are fulfilled and any other Confidential Information that DISTRIBUTOR has a right to retain independent of this Agreement) and, upon the written request of the disclosing party, an authorized officer of the receiving party will certify in writing to the disclosing party that the receiving party has complied with this Section. In such event, the receiving party will continue to be bound by this Section.
The relationship between the parties is that of independent contractors and nothing herein shall be construed to create a partnership, joint venture, or agency relationship between the parties hereto.
Entire Agreement; Amendment; Waiver; Severable Provisions; Headings.
This Agreement is the entire agreement between the DISTRIBUTOR and VENDOR with respect to its subject matter and supersedes all prior and contemporaneous agreements, negotiations, representations and proposals, written or oral, related to such subject matter. This Agreement may not be amended or otherwise modified except by a writing signed by authorized representatives of all parties that specifically refers hereto. A waiver by any party of its right hereunder shall not be binding unless contained in a writing signed by an authorized representative of the party waiving its rights. The non-enforcement or waiver of any provision on any occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing. It is agreed that no usage of trade or other regular practice or method of dealing between or among the parties hereto shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement. In the event that any provision of this Agreement is held invalid, illegal, or unenforceable, the remaining provisions shall be enforced to the maximum extent permitted by applicable law. Headings herein are for reference only, and shall not be construed as substantive parts of this Agreement.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Maryland. This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, without giving effect to its principles or rules of conflicts of laws. The parties hereby agree to opt-out of the Maryland Uniform Computer Information Transactions Act (UCITA).
PandaTip: Note that the governing law is Maryland. For that reason, we have added reference to the state specific act UCITA. A question for your lawyer might be: what are the implications of changing the governing law to another jurisdiction? Are there any similar acts we may need to reference?
All notices and other communications required or permitted to be given under this Agreement will be in writing and will be considered effective when deposited in the U.S. mail as registered or certified mail, return receipt requested, postage prepaid, or deposited with a nationally recognized overnight courier service for next day delivery, and in each case addressed to the party at the address of such party on the signature page hereof, unless by such notice a different address will have been designated in writing.
IN WITNESS WHEREOF, the parties have caused the Agreement to be duly executed by their authorized representatives as set forth below.
[NAME], [TITLE] DATE
[NAME], [TITLE] DATE