M.C.Art Co. Ltd PARTNER
DISTRIBUTION AND LICENSING AGREEMENT
This Distribution and Licensing Agreement and Exhibits attached hereto (together, the "Agreement") is made and entered into as of and with effect as of [submission date], (the "Effective Date") by and between M.C.Art Co. Ltd, and [company name] ("Distributor" and collectively with Licensor, the "Parties" and each, a "Party").
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL AGREEMENTS HEREINAFTER CONTAINED, AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES HERETO, INTENDING LEGALLY TO BE BOUND HEREBY, AGREE AS FOLLOWS:
1. Defined Terms:
1.1. "Affected Products" shall have the meaning set forth in Section 8.2 hereof.
1.2. "Affiliate" shall mean, with respect to a given Person, any person or entity which, directly or indirectly, controls, is controlled by, or is under common control with, the given Person; "control" (including, with its correlative meanings, "controlled by" and "under common control with") means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).
1.3. "Agreement" shall have the meaning set forth in the preamble hereof.
1.4. "Confidential Information" shall mean any information, product, document or other material of any nature relating to or concerning Licensor, Suppliers and/or their Affiliates, that is provided or made available to Distributor either before or after the Effective Date, directly or indirectly in any form whatsoever, including in writing, orally, and machine readable, and including, but not be limited to, any correspondence, memoranda, notes, e-mails, formulas, samples, equipment, compilations, blueprints, business information, technical information, know-how, information regarding patents, patent applications, software, computer Object Code or Source Code, algorithms, high-level structures, graphic user interfaces, ongoing research and development, business plans, business or marketing strategies or plans, products or product development strategies or plans, information concerning current and future products and services, customers, suppliers and markets, price lists and pricing information, financial statements and forecasts, computerized or other magnetically filed data, methods and techniques, manufacturing processes, developments, inventions, designs, drawings, engineering specifications, hardware configuration information, trade secrets, financial information of Licensor, Suppliers and/or their Affiliates and any other business records and information, including without limitation the information about this Agreement, the use or disclosure of which might reasonably be construed to be contrary to the interests of such Licensor, Suppliers and/or their Affiliates, including information of third parties subject to confidentiality obligations and which one Licensor, Suppliers and/or their Affiliates may share with Distributor, provided, however, that Confidential Information shall not include information which:
(i) that is already in the possession of Distributor before receipt from Licensor, Suppliers and/or their Affiliates;
(ii) is or becomes rightfully in the public domain without no fault of Distributor;
(iii) is received by Distributor from a third party who or which is not under any obligation of confidentiality or restriction on use or disclosure concerning such information, or (iv) is disclosed under operation of law to the public or to a third party without a duty of confidentiality.
If Distributor asserts one of the four exceptions to Confidential Information above, then Distributor shall prove such assertion by proper forms of documentary evidence.
1.5. "Distributor" shall have the meaning set forth in the preamble hereof.
1.6. "Documentation" shall mean user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials, maintenance know how, text and graphic elements of all user interfaces and any modifications or upgrades of the foregoing, developed for use in connection with Products and provided or made available by Licensor or any of its Affiliates from time to time.
1.7. "Effective Date" shall have the meaning set forth in the preamble hereof.
1.8. "End User" shall mean any Person that licenses Products for his, her, or its use and not for redistribution.
1.9. "End User License Agreement" shall have the meaning set forth in Section 2.3 hereof.
1.10. "Excluded Territory and Persons" shall have the meaning set forth in Section 3.10(h) hereof.
1.11. "Gross Revenues" for any calendar period shall mean all gross sales revenues from the licensing of Products to End Users, including without limitations site licenses, upgrades and subscription renewals, if any, minus any refunds.
1.12. "Intellectual Property Rights" shall mean all forms of intellectual property rights and protections that may be obtained for, or may pertain to Products, Confidential Information, Software, Documentation and Marks and may include without limitation:
(i) All right, title and interest in and to all patents and all filed, pending, or potential applications for patents, including any reissue, reexamination, division, continuation or continuation-in-part applications throughout the world now or hereafter filed;
(ii) All right, title and interest in and to all trade secrets and all trade secret rights and equivalent rights arising under the common law, state law, federal law of the Russian Federation, and laws of foreign countries;
(iii) All right, title and interest in and to all mask works, copyrights, other literary property or author's rights, including Source Code, whether or not protected by copyright or as a mask work, under common law, state law, federal law of the Russian Federation, and laws of foreign countries; and
(iv) All right, title and interest in and to all proprietary indicia and designations of origin, trademarks, trade names, trade dress, service marks, service names, symbols, logos and/or brand names under common law, state law, federal law of the Russian Federation, and laws of foreign countries.
1.13. "License" shall have the meaning set forth in Section 2.1 hereof.
1.14. "License Fees" for each calendar month shall mean the aggregate of license fees, which may be calculated as a percentage of Gross Revenues, flat fees for each product sold, flat monthly fees, combination thereof or in any other manner agreed by the Parties and as may be amended from time to time upon mutual agreement by the Parties.
1.15. "Licensor" shall have the meaning set forth in the preamble hereof.
1.16. "Licensor Marks" shall mean all proprietary indicia and designations of origin, trademarks, trade names, trade dress, service marks, service names, symbols, logos and other distinct brand elements that appear from time to time in properties, products, ventures and services of Licensor or any of its Affiliates, together with any modifications to the foregoing made by such parties during the term of this Agreement.
1.17. "Licensor Site" shall mean Licensor's website currently located at www.mcartgroup.com and related sites owned or operated by Licensor and any replacements, additions, or successors thereof as may be changed by Licensor from time to time in its sole discretion.
1.18. "Localization Materials" shall have the meaning set forth in Section 2.5 hereof.
1.19. "Localized Version of Product" shall mean a derivative version of the Product which was created by translating, adapting and localizing the Product into the local language version as described in Section 2.5 hereof.
1.20. "Marks" shall mean Licensor Marks and Suppliers Marks.
1.21. "Notifications" shall have the meaning set forth in Section 11.6 hereof.
1.22. "Object Code" shall mean computer programs assembled or compiled in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse-assembly, reverse-compiling, or Reverse-Engineering.
1.23. "Original Term" shall have the meaning set forth in Section 10.1 hereof.
1.24. "Organization," shall mean without limitation, any partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority.
1.25. "Parties" or "Party" shall have the meaning set forth in the preamble hereof.
1.26. "Person" means any individual, partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority.
1.27. "Products" shall mean Software and all related Documentation included therewith in any form and on any media and all fixes, updates, modifications, enhancements and new releases of the foregoing and those related materials sold and/or used in connection therewith.
1.28. "Promotional Materials" shall have the meaning set forth in Section 2.1(c) hereof.
1.29. "Reverse Engineering" shall mean the examination, disassembly, decompilation, decryption, simulation, code tracing of object code or executable code, debugging, or analysis of the Product or Confidential Information to determine its Source Code, structure, organization, internal design, constituent technologies, algorithms or encryption devices.
1.30. "Restricted Nations" shall have the meaning set forth in Section 3.10(h) hereof
1.31. "Sales Report" shall mean the report, in such form as Licensor from time to time shall specify, delivered together with each License Fees payment pursuant to Section 5.1 hereof, which shall set forth the calculation of the License Fees for the applicable fiscal period, licenses and maintenance agreement results for the month, the total number of copies of Products distributed to End Users and such other payment, license and maintenance agreement information reasonably requested by Licensor and in such form and format as is reasonably acceptable to Licensor.
1.32. "Software" shall mean any software described herein, and including all forms of code, such as Source Code and Object Code, any upgrades, modified versions, updates, and additions thereto, in any form and on any media including all fixes, updates, modifications, enhancements and new releases of the foregoing.
1.33. "Source Code" shall mean the human-readable form of the computer programming code and related system documentation including all comments and any procedural code such as job control language.
1.34. "Suppliers" shall mean one or more of the entities from which the Products or rights to the Products may be or may have been obtained by Licensor.
1.35. "Suppliers Marks" shall mean all proprietary indicia and designations of origin, trademarks, trade names, trade dress, service marks, service names, symbols, logos and other distinct brand elements that appear from time to time in properties, products, ventures and services of Suppliers or any of their Affiliates, together with any modifications to the foregoing made by such parties during the term of this Agreement.
1.36. "Term" shall have the meaning set forth in Section 10.1 hereof.
1.37. "You" means the individual person distributing or wishing to distribute the Product under this Agreement on his or her own behalf; or, an Organization on which behalf this Agreement is being entered into, then the Person accepting this Agreement represents hereby that such Organization has authorized such person to accept this Agreement on the Organization's behalf.
2. License and Appointment of Distributor.
2.1. Appointment of Distributor. Subject to the terms and conditions set forth herein, Licensor hereby appoints Distributor as an independent distributor of Products in the Territory and grants the following rights (the "License") and Distributor hereby accepts such License:
a). a non-exclusive non-transferable license to exhibit, reproduce, bundle, market, distribute the Products directly to End Users throughout the Territory during the Term of this Agreement as provided herein;
b). the right to use, reproduce, publish, perform and display the Licensor Marks: (i) on the Distributor web sites in connection with the posting of hyperlinks to the Products and/or Licensor Site; and (ii) in connection with the development, use, reproduction in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about the Products ("Promotional Materials"), provided that any Promotional Materials shall be pre-approved by Licensor;
c). the right to include, on the Distributor's sites or third party networks (including, without limitation, telephone and wireless networks), hypertext links (whether in graphical, text or other format) which enable users to link to Licensor's Site for purposes of purchasing or obtaining the Products;
d). Distributor's appointment as a distributor is not transferable to any third party and any attempt to transfer such appointment shall be void and without effect;
e). Notwithstanding anything to the contrary herein, nothing in this Section 2.1 or this Agreement shall be construed as restricting Licensor or its distributors and licensees from marketing, licensing or distributing any of the Products directly to End Users, or through distributors, resellers, or licensees in any form; and
f). The foregoing notwithstanding, nothing contained herein shall limit Licensor's ability to comply with all of the terms of existing agreements between Licensor and third parties.
g). Distributor is not allowed to register any Internet domain name containing a word "M.C.Art" without a prior written consent from the Licensor;
h). Licensor can request the Distributor to hand over any Internet domain name containing the word "M.C.Art" with a written notice. Distributor will hand over the abovementioned Internet domain name in 30 days period;
2.2. Territory. Distributor may not market, sell or otherwise distribute any Products to any third party outside the Territory without the prior written consent of Licensor, and Distributor shall refer to Licensor all inquiries and referrals received by Distributor regarding potential licenses of Products outside the Territory.
2.3. End User License. Licensee is authorized to offer, distribute and license the Products to End Users under the terms, conditions and restrictions as provided in an End User License Agreement, as provided by Licensor in the Documentation or as may be attached hereto. If applicable, Distributor shall include the applicable End User License Agreement with the Products and shall comply with the reasonable instructions of Licensor regarding the packaging or presentation of the End User License Agreement. Distributor shall require each End User to enter into the End User License Agreement, electronically or otherwise, as a condition precedent to the first use of any Products. Licensor and Distributor will cooperate to establish mutually acceptable procedures to reasonably assure that End Users enter into the End User License Agreement. Distributor shall provide End User License Agreement to the End User and assure that such End User License Agreement is agreed to by the End User before the consummation of any transaction and Distributor shall accept the return of the Products from End Users who do not wish to be bound by the terms and restrictions of the End User License Agreement and any such return shall be on the account of Distributor and Distributor shall be fully responsible for any expenses and costs incurred as a result of such return.
2.4. Delivery of Products. As soon as practicable but not later than five (5) days after the later of (i) payment of any License Fees due to Licensor hereunder, or (ii) the Effective Date, Licensor shall ensure that Distributor is able to download a master copy of the trial version of Product from the Licensor's internet site. For purposes of Section 2.1, Licensor shall provide Distributor with a 30 day trial version of the Product. Upon a successful transaction with an End User, Distributor shall provide Licensor with the name and type of the license (and such other information as may be necessary or required) and Licensor shall ensure that End Users are promptly provided with activation keys enabling the full functionality of the Product beyond the trial period. In addition, for the demonstration and marketing purposes, Distributor may request Licensor to supply Distributor with one fully functional "not-for-resale" copy of the Product with an activation key effective for a certain Term and pursuant to the terms hereof provided that: (i) Distributor actively participates in the certification programs as set out by Licensor, at its sole discretion, from time to time and as published on the Licensor Website.
Notwithstanding anything to the contrary herein, upon termination of this Agreement, Distributor shall cease using and operating any free copies of the Product and delete, uninstall and return to Licensor any such copies unless a separate end user license is purchased therefore.
2.5. Localized Version of Product.
a). Distributor may, upon Licensor's prior written consent, take any and all steps necessary in order to create the Localized Version of the Product in accordance with the provisions of this Agreement, including without limitation, this Section 2.5. Distributor shall translate and adapt to the local language all translatable files, including without limitation such elements as anatomical terms, menus and dialog boxes, graphics, online help system, textual content, installation program, user's guide and packaging and all fixes, updates, modifications, enhancements and new releases of the foregoing.
b). Except as otherwise agreed by the Parties, consideration for creation of Localized Version by Distributor shall be as provided on the Licensor Site.
c). Notwithstanding anything contrary herein and for avoidance of doubt, Distributor herby expressly agree, that all right, title and interest to Localized Version of the Product and the Product's derivative materials developed by the Distributor pursuant to this Section 2.5, including without limitations, a revision, modification, translation, abridgement, condensation, expansion, or any other form in which Product may be recast, transformed, or adapted, that are NOT expressly set forth in this Section 2.5 shall (i) solely belong to and owned by the Licensor, and (ii) if applicable, vest in the Licensor immediately and irrevocably upon its creation and shall be deemed as "works made for hire," and the Licensor shall have and enjoy any and all proprietary rights in and to the Localization Materials under all federal, state, and international intellectual property laws and laws of any other applicable jurisdiction.
d). To the extent the Licensor does not own such Localization Materials as a "work made for hire," Distributor hereby assigns, transfers, releases and conveys to Licensor all rights, title and interest to such Localization Materials, including but not limited to all other patent rights, copyrights, trade secret rights related to the Product and Localized Version of the Product, including, without limitation, in all tangible and intangible property, work products, ideas, inventions, discoveries and improvements, whether or not patentable, which are conceived, developed, created, obtained or first reduced to practice by Distributor for the Licensor pursuant to the performance under this Agreement, including, without limitation, all technical notes, schematics, software source and object code, prototypes, computer models, artwork, literature, methods, processes, photographs, and any other technical, business or financial information.
e). Notwithstanding anything to the contrary herein, the Parties hereto agree that during the Term of this Agreement, Distributor shall have no right to use the Localized Materials except in furtherance of the purpose of this Agreement and except as otherwise agreed by the Licensor.
2.6. Nature of Distribution. To the extent that any Product contains or consists of software, Distributor's appointment grants to Distributor only a license to distribute such Product, and does not transfer any right, title or interest to any such Product to Distributor or Distributor's customers. Licensor shall sell Products to Distributor only to the extent that such tangible goods consist of non-software items on the terms specified herein. Use of the terms "sell," "license," "purchase," "license fees" and "price" shall be interpreted in accordance with this Section.
3. Obligations of Distributor.
3.1. Promotional Efforts. Distributor shall use its best efforts to (i) promote vigorously and aggressively the marketing and distribution of the Products and agrees to prominently display therewith the Licensor Marks, and (ii) follow the guidelines and obligations of the Distributor pursuant hereto. Distributor may advertise the Products in advertising media of Distributor's choice, provided that the primary audience or circulation is located in the Territory. Distributor shall make full use of all promotional material supplied by Licensor if any. Distributor shall list the information about the Product on its website and its official price list of goods and services provided that Distributor shall not set the lower than the minimum end-user prices listed on Licensor's website.
3.2. Protection of Goodwill. Distributor shall protect and preserve the goodwill and image of the Products and to (i) conduct business in a manner that reflects favorably at all times on the Products and the reputation of Licensor, Suppliers and their Affiliates; (ii) avoid deceptive, misleading, or unethical practices that are or might be detrimental to Licensor, Suppliers and their Affiliates, and the Products, or the public, including any disparagement of Licensor, Suppliers and their Affiliates, or the Products; (iii) make no false or misleading representations with regard to Licensor, Suppliers and their Affiliates, or the Products; and (iv) refrain from publishing or employing any misleading or deceptive advertising material.
3.3. Distributor Operations. Distributor shall maintain at its cost and expense suitable demonstration facilities and/or media for the Products, as appropriate, comprised of appropriate compatible peripheral equipment and system software in good operating condition. Distributor shall train and maintain a sufficient number of capable technical and sales personnel to comply with the guidelines and Distributor's obligations pursuant hereto.
3.4. Technical Expertise. Distributor and its designated staff shall be conversant with the technical language conventional to Products and similar computer products in general, and shall develop sufficient knowledge of the industry (including, but not limited to knowledge about networks, including LAN and WAN networks), Products and products competitive with Products (including specifications, features and benefits) so as to be able to explain in detail to its customers the differences between Products and competitive products.
3.5. Service and Support. Parties hereby agree to mutually develop guidelines in order to provide pre- and post-sales and license service and support for all Products distributed in connection with this Agreement.
3.6. Market Conditions. Distributor shall advise Licensor promptly concerning any market information that comes to Distributor's attention respecting Licensor, the Products, Licensor's market position, or the continued competitiveness of the Products in the marketplace, including charges, complaints, or claims by End-Users or other persons about Licensor or Products.
3.7. Packaging and Licensing Agreements. Distributor acknowledges and agrees that Products will be subject to all warranties, shrink-wrap agreements, disclaimers and end-user license agreements and other license agreements contained in the packages as shipped from Licensor and/or Suppliers and Distributor shall instruct its customers as to the terms of such documents applicable to Products.
3.8. Ownership. Distributor agrees that all right, title, and interest in and to Products, including modifications, derivative works, developments, improvements, enhancements, and all Intellectual Property Rights are, and always shall remain, the sole and exclusive property of Licensor, Suppliers and/or their Affiliates, as applicable. No right to disclose, use, print, copy, or display Products or Software in whole or in part is granted hereby, except as expressly provided herein. Licensor, Suppliers and/or their Affiliates, as the case may be, retain the right to market and distribute Products worldwide through retail, distribution, and any other marketing channels as Licensor, Suppliers and/or their Affiliates may deem appropriate. Nothing in this Agreement shall preclude Licensor, Suppliers and/or their Affiliates from marketing, distributing, licensing, selling, maintaining or servicing any Products worldwide through retail, distribution, and any other marketing channels as Licensor, Suppliers and/or their Affiliates, may deem appropriate with respect to any distributor, dealer or customer, including without limitation, any End Users, original equipment manufacturers, licensees or sublicensee. Distributor hereby acknowledges that Licensor, Suppliers and/or their Affiliates, as the case may be, may modify, discontinue or add any Products at their sole discretion.
3.9. Limitation of Rights. Except as otherwise expressly set forth in this Agreement, Distributor, without Licensor's advance written consent, which may be withheld at Licensor's sole discretion, shall not (i) modify, decompile, disassemble, decrypt, extract, or otherwise Reverse Engineer any Product or any part thereof; (ii) reproduce any Product except as otherwise expressly provided herein, (iii) adapt in any way, modify, insert, delete, replace, change, prepare or create derivative works of or otherwise alter any files in the Product (except as such files may be modified as an incidental effect of the normal installation process); or (iv) make any Product available for any certification, analysis, trial or testing, including without limitation, any software performance comparison testing, without prior written approval from Licensor which can be withheld at Licensor's sole discretion. Except as otherwise specifically provided in this Agreement, Distributor does not acquire any right to use, disclose, copy, reproduce, publish, or distribute Software, Products, or Marks and the order of, delivery to, or payment for Products does not convey any other license, expressly or by implication, estoppel or otherwise, under any Intellectual Property Rights owned by Licensor, Suppliers and/or their Affiliates, including without limitation, the right to produce, modify or enhance any Products.
3.10. Other Distributor's Obligations. Distributor shall:
a). keep Confidential Information in strict confidence and shall not make use of Confidential Information for any purpose other than in connection with the Agreement;
b). notify Licensor if disclosure of Confidential Information by Distributor is necessary to comply with the requirements of any law, government order, regulation or legal process prior to such disclosure and Licensor's request use best efforts to seek an appropriate protective order in connection with such legal process and, if unsuccessful, to use best efforts to assure that confidential treatment will be accorded to the disclosed Confidential Information;
c). take all necessary steps to ensure compliance by its employees or its other representatives with Distributor's obligations under this Agreement;
d). Distributor shall comply with all applicable international, national, governmental, quasi governmental and/or local laws and regulations in performing its duties hereunder and in any of its dealings with respect to the Products, including without limitation, relevant embargo and export laws and regulations;
e). represent Products and any information relating to Products accurately and fairly and shall avoid any misleading or unethical business practices and shall not mask, frame, overlay, impair or otherwise materially alter, affect or impair the images, information, perception, service quality or security obtained from Licensor or any of its Affiliates;
f). refrain from making any warranty, representation, or guarantees with respect to the specifications, features, or capabilities of Products, including without limitations warranties of functionality or performance, that are inconsistent with the Product's warranties and disclaimers contained in the Documentation and/or herein;
g). keep and maintain accurate books, records, reports and customer data relating to the Products;
h). Distributor shall comply with all applicable international, national, governmental, quasi governmental and/or local laws and regulations in performing its duties hereunder and in any of its services or dealings with respect to the Products, including without limitation, relevant embargo and export laws and regulations, and assure that, in connection with performance of its obligations pursuant to this Agreement or arising or relating therefrom, no Product, Confidential Information or any portion thereof, and any information relating thereto or to this Agreement, is exported, transshipped or re-exported, directly or indirectly, in violation of Russian Federation law and such foreign governments and ensure that none of the Products or the Documentation, underlying information or technology may be downloaded or otherwise exported or re-exported (i) to any individual located in any country to which the Russian Federation has embargoed goods (the "Restricted Nations"); (ii) to any business or organization owned, controlled by or acting on behalf of an individual, business or organization in a Restricted Nation; (iii) to the governments of a Restricted Nation or any business or organization owned, controlled by or acting on behalf of a government of a Restricted Nation.
i). forward to Licensor copies of any information that comes into its possession relating to the performance of Products, including, but is not limited to, complaints about the operation of the product, comments on the product or suggestions for its improvement, or any critical remarks for customers and it Distributor should receive notice of any "bug" or defect in the operation of any Products, Distributor shall use its best efforts to ascertain as much information as possible from the customer making such complaint, so that such information will allow Licensor to replicate the malfunction.
4. Proprietary Notices; Trademarks.
4.1. Marks. Any and all Marks are and shall remain the exclusive property of Licensor, Suppliers and/or of their Affiliates, as the case may be, and Licensor grants Distributor a limited license to reproduce the Marks only to the extent expressly provided herein. Distributor will use the Marks consistently with guidelines for use as may be communicated by Licensor from time to time. Distributor acknowledges that its utilization of the Marks pursuant hereto shall not create in it, nor shall it represent it has, any right, title or interest in or to the Marks other than the license expressly granted herein, or contest or impair Intellectual Property Rights. Distributor shall:
a). not, either during or after the Term of this Agreement, do anything or aid or assist any other Person to do anything which would infringe upon, harm or contest the validity of any Mark or Licensor's, Suppliers' or any of their Affiliates' rights therein or which would hinder or prevent Licensor, Suppliers' or any of their Affiliates from utilizing and/or licensing or sublicensing the Marks in any manner;
b). not in any manner authorize or purport to authorize any Person to use any of the Marks; and
c). report to Licensor any unauthorized use of any of the Marks by any Person that comes to Distributor's attention in any manner whatsoever.
4.2. Mark Policies and Standards; Quality Control. Distributor acknowledges that any right to use the Marks is conditioned upon Distributor's observance of the provisions of this Agreement regarding the Marketing and advertising of the Products. Distributor shall display the Marks in accordance with Licensor's guidelines for using trademarks as in effect from time to time and as provided to Distributor. Notwithstanding the foregoing, any change by Licensor, Suppliers or any of their Affiliates to the Marks guidelines which affects Distributor's usage shall not apply retroactively to Distributor's past usage which conformed with the then current guidelines and Licensor shall permit Distributor a reasonable period of time in which to conform with the new guidelines. Licensor retains the right to specify and approve the quality and standards of all materials on which the Marks are displayed and to inspect from time to time samples of such materials. If requested by Licensor, additional agreements and conditions regarding manufacture and quality control will be set forth in a separate Addendum to this Agreement. Failure of Distributor to adhere to such standards of quality as provided herein shall be grounds for Licensor to terminate Distributor's rights to use such Marks and to terminate this Agreement. All advertising and other promotional, packaging and similar materials used by Distributor concerning Products shall bear such trademark notices and legends as Licensor may reasonably require pursuant to this Section
4.3. Distributor shall not use, alter or exploit in any manner any of the Marks, except in such manner and media as Licensor may consent to in writing.
5. License Fees, Payments and Orders.
5.1. License Fees and Payment. Unless otherwise instructed by Licensor, Distributor shall use one of the options below. The option to be used:
a). Distributor shall prepay Licensor for all licenses to End Users prior to any delivery of the activation keys to the Products and remit to Licensor an amount in US dollars or Euros equal to the entire aggregate License Fees
b). Distributor shall pay Licensor for all licenses to End Users after the delivery of the activation keys for the Products and remit to Licensor an amount in US dollars or Euros equal to the entire aggregate License Fees
c). Distributor shall pay Licensor for all licenses to End Users in a cumulative manner on a periodic basis and remit to Licensor an amount in US dollars or Euros equal to the entire aggregate License Fees
5.2. Prices. The minimum license fees and suggested End Users' prices, subject to applicable taxes and tariffs, shall be as provided in this Agreement provided that such prices listed on Licensors website, unless otherwise indicated, do not include any applicable value added or sale taxes and may be changed by Licensor from time to time upon a ten (10) days notice and further provided that subject to the minimum prices requirements described above, Distributor may freely set up licensing fees to End Users and further increase such licensing fees and prices to End Users for the amounts of applicable sales, use and value-added taxes.
5.3. Payments. All payments to Licensor shall be made according to the option the parties have chosen according to item 5.1.
a). In case of the option set forth in item 5.1(a): in US dollars or Euros to the registration service account provided to Distributor by Licensor for such other registration service account as provided to Distributor in accordance with Section 11.6 hereof; or
b). In case of the option set forth in item 5.1(b): Distributor makes payments of License Fees by wire transfer to the account provided by Licensor to the Distributor accompanied with any customs and financial documentation as may be required by law.
c). In case of the option set forth in item 5.1(c): Distributor makes payments of License Fees by wire transfer to the account provided by Licensor to the Distributor in accordance with Section 11.6 provided that such wire transfers shall be accompanied by the monthly Sales Report as set forth in item 5.6 and any other customs and financial documentation as may be required by law.
5.4. Taxes and other payments. All disbursements, prices and fees payable to Licensor hereunder, including the License Fees, are exclusive of all federal, state, municipal, or other government, excise, sales, use, occupational, or like taxes now in force or enacted in the future, with the sole exception of Licensor's income taxes, and any Distributor's liability for all licensing and royalty fees to third parties (other than for any Products or Marks) that accrue in connection with the Agreement, and therefore, prices are subject to an increase equal in amount to any tax Licensor may be required to collect or pay upon the sale or delivery of items purchased or licensed. Notwithstanding anything to the contrary herein, Distributor shall be solely responsible for any value added taxes collections, payments and related registrations arising in any way out of or relating to this Agreement. If a certificate of exemption or similar document or proceeding is to be made in order to exempt the sale from sales or use tax liability, Distributor will obtain and provide Licensor with such certificate, document or proceeding.
5.5. Right to Audit; Understated Payments. Licensor or its designated agent may, at Licensor's sole expense (except as provided herein), upon 10 days advance written notice to Distributor during Distributor's business hours examine and/or audit the books and records of Distributor which relate to payments due and Products distributed under this Agreement. Licensor shall not have access to any of Distributor's records beyond those necessary to complete any audit contemplated under this Section 5.5. If any examination or audit should reveal that the License Fees to Licensor under this Agreement for any period was understated in any Sales Report, then Distributor shall pay to Licensor immediately upon demand the amount understated and any penalty fee due with respect thereto. If any examination or audit discloses an understatement in any Sales Report of five percent (5%) or more, Distributor shall also reimburse Licensor for any and all costs and expenses connected with the examination or audit (including without limitation, reasonable accountants' and attorney's fees). In the event that any examination or audit discloses or audit discloses an understatement in any Sales Report of ten percent (10%) or more, Distributor shall also pay to Licensor as an underpayment penalty an amount equal to the amount of the underpayment. In the event any of the understatement of ten percent (10%) or more is determined to be intentional, Licensor may at its option terminate this Agreement immediately upon written notice to Distributor. The foregoing remedies shall be in addition to any other remedies Licensor may have hereunder. No provision of this Section 5.5 shall be construed as limiting or restricting any Licensor's rights or remedies provided elsewhere in this Agreement or by law.
5.6. Reporting. In case Parties agreed to follow the payment option as set forth in item 5.1(c) of the present Agreement, the Distributor is to provide a Sales Report within 10 calendar days from the end of each reporting period. Licensor undertakes to send the Distributor an invoice within 3 working days after receiving the Sales Report. Distributor undertakes to make the payment in a 30-day period from the moment of receiving the invoice.
6. Licensor Obligations.
6.1. Licensor obligations. Licensor shall:
a). Distributor Support. Licensor shall have sole responsibility for Distributor support for the Licensor's Site and the Product, including but not limited to billing issues related to the Product;
b). Licensor Site and Products. Licensor will be solely responsible for the design, layout, posting, maintenance and hosting of the Licensor Site and Product. For the avoidance of doubt, Licensor hereby reserves the right to change, update and modify the Product, services and its fees and terms and conditions related thereto, at any time and without notice.
7. Representations and Warranties; Disclaimer.
7.1. Distributor Representations and Warranties. Distributor represents and warrants that:
a). if an Organization, it is an entity duly created, formed and organized, validly existing and in good standing under the laws of the jurisdiction of its creation, formation, or organization;
b). there is no pending or threatened action (or basis therefor) for the dissolution, liquidation, or insolvency of Distributor;
c). it is duly qualified or licensed as a foreign corporation in each jurisdiction in which its assets are owned or leased, or the nature of its business makes such qualification or licensing necessary;
d). it has all requisite corporate power and authority necessary to execute and deliver the Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby;
e). the Agreement has been duly authorized, executed and delivered, and constitutes a valid, legal and binding obligation of Distributor enforceable against Distributor in accordance with its terms, subject to any law affecting creditors' rights; and
f). the execution, delivery and performance by Distributor of the Agreement do not and will not (i) violate any law (including, without limitation, privacy, export control and obscenity laws), (ii) violate any charter document of Distributor, (iii) violate any agreement or order to which Distributor is a party or by which Distributor or its assets are bound, or (iv) require any consent from any Person.
7.2. Licensor Representations and Warranties. Licensor represents and warrants that:
a). there is no pending or threatened action (or basis therefor) for the dissolution (if an entity), liquidation (if an entity), bankruptcy or insolvency of Licensor;
b). it has all requisite corporate power and authority necessary to execute and deliver the Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby;
c). the Agreement has been duly authorized, executed and delivered, and constitutes a valid, legal and binding obligation of Licensor enforceable against Licensor in accordance with its terms, subject to any law affecting creditors' rights;
d). it has all the necessary rights, titles, and/or interests, in Products to grant Distributor the rights and licenses contained in this Agreement; and
e). that the Products, and any updates thereof, furnished hereunder shall perform substantially in accordance with the specifications found in the user manual in effect as of the date of this Agreement for a period of the greater of (i) ninety (90) days and (ii) the minimum warranty period required by non-waivable provisions of applicable law.
8. DISCLAIMERS; LIMITED WARRANTY; LIMITATION OF LIABILITIES.
8.1. SCOPE OF WARRANTY; DISCLAIMER. Licensor's warranties as to the Products are limited to the warranties set forth in the Documentation; provided, however, that the foregoing warranties are expressly contingent (and shall otherwise be void) upon use of the Products strictly in accordance with such specifications and without misuse, damage, alteration, or modification thereto. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, THE PRODUCTS ARE PROVIDED "AS IS AND WITH ALL FAULTS" AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR DISCLAIMS ALL OTHER WARRANTIES, OF ANY KIND, EITHER EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. LICENSOR DOES NOT WARRANT THAT THE PRODUCTS WILL MEET DISTRIBUTOR'S, LICENSEES' OR END USERS' REQUIREMENTS OR WILL OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED BY DISTRIBUTOR, LICENSEE OR END USER OR THAT THE OPERATION OF THE PRODUCTS WILL BE SECURE, ERROR-FREE, OR UNINTERRUPTED, AND LICENSOR HEREBY DISCLAIMS ANY AND ALL LIABILITY ON ACCOUNT THEREOF TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
8.2. Exclusive Remedy. Other than termination of this Agreement due to Licensor's breach, as the Distributor's exclusive remedy for any defect or nonconformity in the Product, Distributor shall obtain from Licensor repair or replacement of the Products containing such defect or nonconformity ("Affected Products"). In furtherance of such undertaking, if Distributor reasonably believes that any Product contains a defect or nonconformity for which Licensor is responsible, Distributor shall inform Licensor of the nature of such defect or nonconformity in reasonable detail and shall request authorization from Licensor to return the Affected Products to Licensor for repair or replacement. All Products so returned shall be shipped prepaid or otherwise delivered to Licensor's facility or authorized service center. If Licensor fails to repair or replace the Affected Products within a reasonable time after Distributor has so returned them to Licensor, Distributor shall be entitled to repayment or credit of the original price of the defective or nonconforming Product as its exclusive further remedy.
8.3. EXCLUSIONS OF DAMAGES AND LIABILITY. IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY FORM OR THEORY OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, EQUITY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, OVERHEAD, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
8.4. Limitation on Liability. If the Agreement is expired or terminated pursuant to any provision of hereof, Licensor shall not be liable to Distributor because of such termination, for consequential or incidental damages, including without limitation, loss of profits or goodwill. Termination shall not, however, relieve either Party of its liability or obligation for any breach or default occurring before the termination. Notwithstanding any provision to the contrary herein, the liability of Licensor to Distributor for any claim whatsoever related to the Products or this Agreement, including any cause of action sounding in contract, tort, or strict liability, shall not exceed the greater of One Thousand ($1,000.00) Dollars or the total amount of payments theretofore paid by Distributor during the previous one-year period to Licensor in connection with the products relating to such liability.
8.5. Applicability. The limitations and exclusions contained in Sections 8.1 through 8.4 shall apply notwithstanding any failure of essential purpose of any limited remedy.
9.1. Indemnification by Distributor. Distributor shall indemnify, defend and hold Licensor harmless from any and all claims, actions, costs, demands, liabilities or expenses, including reasonable attorney's fees, incurred by Licensor as a result of any claim or proceeding against Licensor arising out of or based upon:
a). any statements made by Distributor or its employees or agents with respect to the Products, except for statements that are a direct and correct reference to information in the Documentation and marketing materials provided by Licensor for use in connection with the Products;
b). a claim of patent, trademark, trade secret or copyright infringement based on the combination, operation or use of the Products with any hardware, products, program or data not supplied or approved in writing by Licensor, if such infringement would have been avoided but for such combination, operation or use; and
c). the modification of the Products by Distributor.
9.2. Licensor shall promptly notify Distributor in writing after it becomes aware of any such claims, but failure to give such notice shall not relieve Distributor of its indemnity obligations hereunder unless the Distributor has been materially prejudiced by such failure. Distributor shall have exclusive control over the settlement or defense of such claims or actions, except that Licensor may appear in the action, at its own expense, through counsel reasonably acceptable to Distributor, only in the event it is determined by Licensor, in its reasonable discretion, that an actual conflict of interest would exist by Distributor's representation of Licensor and Distributor in such action. Licensor shall give Distributor, at Distributor's expense, all information and assistance reasonably requested by Distributor to settle or defend such claims or actions. Distributor shall be entitled to retain all monetary proceeds, attorneys' fees, costs and other rewards it receives as a result of defending or settling such claims. In the event Distributor fails to promptly indemnify and defend such claims and/or pay Licensor's expenses, as provided above, Licensor shall have the right to defend itself, and in that case, Distributor shall reimburse Licensor for all of its attorneys' fees, costs and damages incurred in settling or defending such claims within thirty (30) days of each of Licensor's written requests.
10. Term and Termination.
10.1. Term. This Agreement is effective as of the Effective Date and will remain in full force and effect for a period of one (1) year from the Effective Date (the "Original Term") and shall automatically extend for five (5) consecutive one (1) year periods upon the expiration of the Original Term and the applicable extension periods (as so extended, the "Term"), unless either Party submits written notification to the other Party of its intent not to extend the Agreement at least 90 days prior to expiration of the Original Term or the applicable extension period.
10.2. Termination. The Parties may terminate this Agreement as provided below:
a). Distributor and Licensor may terminate this Agreement by mutual written consent at any time;
b). Licensor may terminate this Agreement by giving notice to Distributor at any time if Distributor has breached any representation, warranty, obligation or covenant contained in this Agreement and this breach has not been cured within a 30 day period;
c). Licensor may terminate this Agreement as provided in Section 4.2 and 5.5 hereof;
d). either Party may terminate this Agreement if the other Party attempts to make an assignment in violation of Section 11.1 below; and
e). either Party may terminate this Agreement (i) if the other Party declares insolvency or bankruptcy, (ii) if a petition is filed in any court and not dismissed in ninety (90) days to declare the other Party bankrupt or for the other Party's reorganization under bankruptcy, insolvency, reorganization, moratorium, or other laws relating to or affecting the rights of creditors; or (iii) if the other Party consents to the appointment of a trustee in bankruptcy or a receiver or similar entity
f). Licensor may terminate the agreement immediately in case of breach of items 2.1(g), 2.1(h), 5.3 or any of its sub-points or 5.6 or any of its sub-points of the present Agreement
10.3. Distributor Actions upon Termination. In the event of termination or expiration of this Agreement, Distributor shall:
a). immediately cease all use of Products, Software, and Marks and to uninstall, delete and destroy all relevant files, including, without limitation all activation keys;
b). immediately return to Licensor the master copies of Products and Confidential Information, including any copies thereof;
c). calculate and pay to Licensor the License Fees through the date of termination and any other amounts due Licensor hereunder; and
d). maintain all books, records, business reports and other reports relating to the Products for a period not less than two (2) years and permit Licensor to inspect such documents as provided in Section 5.5 hereof.
10.4. No Prejudice to Other Rights. Any termination pursuant to Section 10.2 shall be without prejudice to any other rights or remedies which one Party (referred to in this Section 10.4 as the "nonbreaching Party") may have in respect of any default by the other Party (referred to in this Section 8.4 as the "breaching Party"). Any failure by the nonbreaching Party to exercise its rights hereunder to terminate or otherwise to enforce or recover damages for any default, breach or non observance by the breaching Party of any covenant, condition, obligation or term of this Agreement will not affect or impair the nonbreaching Party's right in respect of any subsequent default, breach or non observance of the same or a different kind, nor will any delay or omission of the nonbreaching Party to exercise any right arising from any default, breach or non observance affect or impair the nonbreaching Party's right as to the same or any future default, breach or non observance provided however, that nothing in this Section 10.4 shall be construed or interpreted as to override any provision in this Agreement limiting the remedies of a nonbreaching Party against a breaching Party.
10.5. Survival of Certain Provisions. Notwithstanding any provisions to the contrary herein, the provisions of Sections 3.2, 3.8, 3.9, 3.10(a) - (d), 4.1, 4.2, 5.5 (for a period of two years), 8, 9, 10.3 - 10.5, 11.2, 11.3 and 11.5 shall survive the termination or expiration of the Agreement and such termination or expiration shall not release Distributor or Licensor of their respective obligations regarding the Confidential Information, Distributor's obligations with respect to Intellectual Property Rights or any duties, liabilities or obligations which by the terms hereof or in context are to survive termination; all licenses properly granted to End Users pursuant to the then-existing end-user license agreements shall continue in force and effect in accordance with the terms thereof and the Products already distributed shall remain in use under the terms of such end-user license agreements.
11. Miscellaneous Provisions.
11.1. Assignment. This Agreement may not be assigned, in whole or in part, by either Party without the prior written consent of the other Party, provided, however, that Licensor shall have the right to assign this Agreement to its Affiliates without Distributor's prior consent by giving notice to Distributor. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
11.2. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Virginia without reference to conflicts of law rules and principles. To the extent permitted by law, the provisions of this Agreement shall supersede any provisions of the Uniform Commercial Code as adopted or made applicable to any products described herein in any competent jurisdiction.
a). Arbitration. In the event of a dispute between the Parties arising out of or in connection with this Agreement, the Parties hereto shall use their best efforts to resolve the dispute on an amicable basis. If an amicable settlement cannot be reached, either Party hereto may request, by written notice, that the dispute be resolved by arbitration by a panel of three (3) arbitrators administered by the Russian Arbitration Association pursuant to the then current rules of the Russian Arbitration Association, Commercial Arbitration Rules (the "AAA Rules").
b). In the event of any conflict between the AAA Rules and the provisions of this Agreement, the provisions of this Agreement shall prevail.
c). The place of the arbitration shall be Washington, District of Columbia, USA.
d). The claimant Party shall appoint an arbitrator and the respondent Party shall appoint one arbitrator, and the two arbitrators so appointed shall appoint the third arbitrator, in accordance with the provisions of the AAA Rules.
e). The English language shall be used as the written and spoken language for all matters connected with all references to arbitration.
f). The decision of the arbitrators shall be made by majority vote and shall be made in writing.
g). The decision of the arbitrators shall be final and binding on the Parties, save in the event of fraud, manifest mistake or failure by any of the arbitrators to disclose any conflict of interest.
h). The decision of the arbitrators may be enforced by any court of competent jurisdiction and may be executed against the person and assets of the losing Party in any jurisdiction. For the avoidance of doubt, such court includes any court that is authorized to make such an order by virtue of any treaty or legislation relating to the reciprocal enforcement of foreign arbitral awards or judgments.
11.3. Legal Expenses. The prevailing Party in any legal action, including arbitration, brought by one Party against the other and arising out of this Agreement shall be entitled, along with any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorney's fees. Such fees may be set by the court in the trial of such action or may be enforced in a separate action brought for that purpose. Such fees shall be in addition to any other relief that may be awarded.
11.4. Publicity. The Parties shall work together to issue publicity and general marketing communications concerning their relationship and other mutually agreed-upon matters. In addition, neither Party shall issue such publicity and general marketing communications concerning their relationship without the prior written consent of the other Party (not to be unreasonably withheld or delayed). Neither Party shall disclose the terms of this Agreement to any third party other than its outside counsel, auditors, and financial and technical advisors, except as required by law.
11.5. Non-solicitation. Both Parties agree that during the Term of this Agreement and for a period of one (1) year thereafter, that they will not, without the prior written approval of the other Party hire or enter into a contract with any employee, agent or representative of the other Party to provide services, directly or indirectly, induce or attempt to induce or otherwise counsel, discuss, advise or encourage any employee, consultant, agent or representative of either Party to leave or otherwise terminate such person's relationship with that Party.
11.6. Notices. All claims, instructions, consents, designations, notices, waivers, and other communications in connection with the Agreement ("Notifications") will be in writing. Such Notifications will be deemed properly given (a) when received if delivered personally, (b) if delivered by facsimile transmission when the appropriate telecopy confirmation is received; (c) upon the receipt of the electronic transmission by the server of the recipient when transmitted by electronic mail, or (d) within three (3) days after deposit with an internationally recognized express delivery service, in each case when transmitted to a Party at the following address or location:
If to Licensor:
to the address indicated on Exhibit A.
with a copy to (which shall not constitute notice):
Gelsingforsskaya st, 4/1, off 28
Phone: +7(812) 309-78-93
If to Distributor:
to the address indicated on Exhibit A.
Either Party may send any Notification hereunder to the intended recipient at the address set forth above using any other means (including personal delivery, expedited courier, messenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice, request, demand, claim, or other communication will be deemed to have been duly given unless and until it actually is received by the intended recipient. Either Party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other notice in the manner herein set forth.
11.7. Independent Contractors. The relationship of Licensor and Distributor established by this Agreement is that of independent contractors and nothing contained in this Agreement shall be construed to (i) give either Party the power to direct and control the day-to-day activities of the other, (ii) constitute the Parties as partners, joint venturers, franchisor-franchisee, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow Distributor to create or assume any obligation on behalf of Licensor for any purpose whatsoever. Except for the rights of Distributor set forth in this Agreement, Distributor shall be solely responsible for developing and implementing its business and marketing plans and its operations.
11.8. Severability. If this Agreement or any provision thereof is, or the transactions contemplated hereby are, found by a court of competent jurisdiction to be invalid, void, unenforceable for any reason or inconsistent or contrary to any valid applicable laws or official orders, rules and regulations, in whole or in part, the inconsistent or contrary provision of this Agreement shall be null and void and such laws, orders, rules and regulations shall control and, as so modified, this Agreement shall continue in full force and effect and the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law; provided, however, that nothing herein contained shall be construed as a waiver of any right to question or contest any such law, order, rule or regulation in any forum having jurisdiction.
11.9. No Waiver. No provision of the Agreement will be considered waived unless such waiver is in writing and signed by the Party that benefits from the enforcement of such provision. No waiver of any provision in the Agreement, however, will be deemed a waiver of a subsequent breach of such provision or a waiver of a similar provision. In addition, a waiver of any breach or a failure to enforce any term or condition of the Agreement will not in any way affect, limit, or waive a Party's rights under the Agreement at any time to enforce strict compliance thereafter with every term and condition of the Agreement.
11.10. Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent the performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers.
11.11. Further Assurances. The Parties will each perform such acts, execute and deliver such documents and instruments, and do such other things as may be reasonably requested to accomplish the transactions contemplated by this Agreement and to carry out the purpose and intent hereof.
11.12. No Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties and, except as otherwise provided herein, no other Person will have any right, interest, or claim under this Agreement.
11.13. Entire Agreement. With the exception of prior Non-Disclosure Agreements, if any, the Agreement, together with the exhibits, attachments and appendices hereto, constitutes the entire agreement and understanding between the Parties or any of their Affiliates with respect to its subject matters and supersedes all prior agreements, understandings and representations, written or oral, to the extent they relate in any way to the subject matter of the Agreement.
11.14. Counterparts of the Agreement. The Agreement may be separately
executed by the Parties in two (2) or more counterparts and all such
counterparts shall be deemed an original, but all of which together shall
constitute one and the same instrument and will be binding on the Parties as if
they had originally signed one copy of the Agreement. Delivery of a copy of
this Agreement or such other document bearing an original signature by
facsimile transmission (whether directly from one facsimile device to another
by means of a dial-up connection or whether mediated by the worldwide web), by
electronic mail in "portable document format" (".pdf")
form, or by any other electronic means intended to preserve the original
graphic and pictorial appearance of a document, will have the same effect as physical
delivery of the paper document bearing the original signature. "Originally
signed" or "original signature" means or refers to a signature
that has not been mechanically or electronically reproduced.
Localization of the Products shall mean a version of the Product as described and listed on Exhibits A, including without limitation, fixes, updates, modifications, enhancements and new releases of the foregoing and those related materials sold and/or used in connection therewith in which all translatable elements have been translated, including but not limited to, all anatomical terms, user interface items, such as dialog boxes and textual messages, online help and installer program into any language specified by Licensor herein. The Product shall be fully installable and functioning, with no untranslated elements. Localization of the Products shall include:
1. Distributor shall promptly perform localization of all textual elements of the Products.
2. All translatable elements shall be translated, including but not limited to, all user interface items, such as dialog boxes and textual messages, online help and installer program and Distributor shall deliver complete and compiled Localized Version of the Product to Licensor within mutually agreed period.
3. Within the period of fourteen (14) business days from the date of the delivery of the Localized Version of the Product per above section, Licensor shall test and evaluate the Localized Version of the Product to determine as to whether the Localized Version of the Product complies with Licensor's instructions.
4. In an event that the Localized Version of the Product is rejected by the Licensor, the Licensor shall provide a written, reasonably detailed list to Distributor of the items and errors that shall be corrected by Distributor, and the Distributor shall correct such items and errors within fourteen (14) days after such notice.
5. Any corrected Localized Version of the Product shall be subject to the acceptance and correction procedures per Section 3 and 4 hereof.
6. The Localized Version of the Product shall be deemed accepted by the Licensor unless Licensor notifies the Distributor regarding any items or errors to be corrected in the Localized Version of the Product within fourteen (14) days of the delivery of Localized Version of the Product to Licensor per Section 3 above or within 14 days after the re-delivery of the corrected Product per Section 4 above.
The time is of the essence for purposes of meeting deadlines and performance schedules hereunder and without limiting or restricting any remedies of Licensor under the Agreement, Distributor shall be liable and indemnify Licensor for lost revenues and/or profits for Distributor's failure to strictly adhere to the terms and timetables provided herein. Licensor shall have the right to offset any amounts due to Distributor hereunder against any License Fees due to Licensor under the Agreement.
PAYMENT AND REPORTING
1. Payment options:
Parties agree to follow the option set forth in item 5.1(a)
2. Reporting period:
Parties agree to establish a monthly sales reporting period