SOFTWARE RESELLER AGREEMENT
THIS AGREEMENT is entered into as of January 15, 1999, by and between HOUSTON
INTERWEB DESIGN, INC., a Texas corporation ("Interweb") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
dba Proses, a Texas Corporation ("Reseller").
WHEREAS, Interweb has the right to license the Software Product(s); and
WHEREAS, the parties desire that Interweb license to Reseller the right to
market and distribute Software Product(s) manufactured and hosted by Interweb,
such distribution to be authorized on a stand-alone basis, subject to the terms
and conditions hereof;
NOW, THEREFORE, in consideration of the foregoing, and in reliance on the mutual
agreements contained herein, the parties agree as follows:
1. DEFINITIONS
1.1 "Software Product(s)." Interweb's computer program(s) in Object Code
form as listed and described in Interweb's attached Confidential Product and
Price List Exhibit, together with associated Documentation, and any fixes,
updates, or upgrades which are delivered to Reseller by Interweb under this
initial Agreement or under any other agreement or arrangement between the
parties.
1.2 "Documentation." User's guides for the Software Product(s).
1.3 "Object Code." The representation of Software Product(s) in the
binary instruction code form suitable for execution by a computer.
1.4 "Source Code." The representation of Software Product(s) in a
relatively high-level computer programming language.
1.5 "Distributors." Distributors, wholesalers, and retailers of computer
and/or software products.
1.6 "End-Users." Customers who acquire Software Product(s) for their
internal use and not for redistribution, remarketing, time-sharing, or service
bureau use.
1.7 "Field of Use." All industries.
1.8 "End-User License Terms." Terms and conditions described in the
attached End-User License Terms Exhibit to be incorporated into an End-User
license agreement by Reseller for use in the distribution of Software
Product(s).
1.9 "Proprietary Rights." Any and all rights in and with respect to
patents, copyrights, Confidential Information, know-how, trade secrets, moral
rights, contract or licensing rights, confidential and proprietary information
protected under contract or otherwise under law, and other similar rights or
interests in intellectual or industrial property.
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1.10 "Indemnify." To fully defend and indemnify the designated party to
be indemnified, its officers, directors, employees, agents and other
representatives, and to pay any and all liabilities, losses and damages
(including awards of court costs and attorneys' fees) resulting from the subject
claim.
1.11 "Confidential Information." Information (i) relating to the
architecture, design, and coding methodology embodied in the Software
Product(s); (ii) embodied herein regarding the terms and conditions of this
Agreement; and (iii) disclosed by one party to the other regarding past,
present, or future marketing and business plans, customer lists, and lists of
prospective customers.
1.11.1 "Confidential Information" includes all tangible materials
which contain the information described above, including without limitation,
written or printed documents and electronic media.
1.11.2 "Confidential Information" does not include (i) information
which is or becomes generally known or available through no act or failure to
act by the receiving party; (ii) is already known by the receiving party as
evidenced by its written records, (iii) is rightfully furnished to the receiving
party by a third party without restriction or disclosure; or (iv) is
independently developed by the receiving party without reference to Confidential
Information.
1.12 "Technical Support Terms." Those terms and conditions set forth in
the attached Technical Support Terms Exhibit, and by reference incorporated
herein.
1.13 "Territory." Mexico, Colombia and the United States.
1.14 "Effective Date." The date of execution hereof by both parties as
specified in the preamble hereof.
2. LICENSE AND RESTRICTIONS
2.1 Grant of License. Subject to the limitations and restrictions
provided in this Section 2 and to the other terms and conditions of this
Agreement, Interweb hereby grants, and Reseller hereby accepts, the limited
right and license:
2.1.1 Use License - to practice, use, and operate the Software
Product(s) and only those of Interweb's Proprietary Rights embodied therein
which are necessary for purposes of the reasonable exercise and enjoyment of the
limited rights granted herein.
2.1.2 Distribution License - to distribute and display the
Software Product(s) on a standalone basis as authorized herein, only in Object
Code form, only as limited by the Field of Use, and only to End-Users located
within the Territory through a single tier of distribution consisting only of
sales personnel with face-to-face contact with End-Users.
2.1.3 End-User Sublicenses - to grant sublicenses for Software
Product(s) only to End-Users, only for purposes of use and not for
redistribution, only in conformity with the Sublicense Terms, and only in
written form and signed by the Reseller.
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2.2 Non-Exclusive License. The license granted herein is non-exclusive.
Interweb may distribute the Software Product(s) both on a stand-alone basis and
as combined with other software without restriction.
2.3 Exclusive Dealing Restriction. During the term hereof, Reseller
shall not distribute, or act as an agent or representative of any developer,
publisher, or manufacturer, of software programs that are functionally
comparable or intended, by applicable marketing and promotional programs
directed to such products, to compete directly with the Software Product(s).
2.4 Internal Use of Software Product(s). Reseller may use the Software
Product(s) to process Reseller's own internal data without restriction.
Reseller is not authorized to process data for third parties.
2.5 Restriction on Promotional Copies. Notwithstanding anything to the
contrary contained herein, distribution of promotional or demonstration copies
of Software Product(s) by Reseller without payment of fair market value in money
is not authorized, except for a maximum of the lesser of (i) five percent (5%)
of copies distributed, or (ii) 500 copies per year during the term hereof.
2.6 Trademark Rights; Product Naming.
2.6.1 Reseller is hereby granted the limited right and license to
reproduce Interweb's trademark(s) associated with the Software Product(s) on
marketing materials and advertising for the Software Product(s), subject to a
right of prior approval by Interweb for purposes of determining accuracy and
correctness. Reseller shall not otherwise use such trademarks for any purpose
without the prior written approval of Interweb.
2.6.2 Reseller is not authorized (i) to alter or modify Interweb's
trademark(s) associated with the Software Product(s), or (ii) to market or
distribute the Software Product(s) under any other product name or trademark.
2.7 Export. Software Product(s), including associated technical data,
are subject to United States export control laws, and may be subject to export
or import regulation in other countries. If Reseller is authorized to
distribute Software Product(s) outside the United States at any time during the
term hereof, Reseller agrees to comply strictly with all such regulations, and
acknowledges that it has the responsibility to obtain such licenses to export,
re-export, or import Software Product(s). Reseller shall, at its own expense,
obtain and arrange for the maintenance in full force and effect of all
governmental approvals, consents, licenses, authorizations, declarations,
filings and registrations as may be necessary or advisable for the performance
of the terms and conditions of this Agreement, including without limitation,
fair trade approvals.
2.8 Retained Rights. All rights that are not expressly granted to
Reseller herein are retained by Interweb.
3. INTERWEB'S MARKETING AND SUPPORT RESPONSIBILITIES
3.1 Duties of Interweb. Interweb shall at its expense unless otherwise
provided:
3.1.1 Manufacture Software Product units and host sites for
Reseller.
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3.1.2 Provide to Reseller two (2) days (consisting of 8 hours
each) and up to 20 hours tech training/support of training at Interweb's
facility or at a mutually agreeable location regarding the use and operation of
the Software Product(s), all travel and lodging expenses to be the sole
responsibility of Reseller; additional training, if requested by Reseller, will
be provided at Interweb's then-current rates for consulting services.
3.1.3 Provide technical support only to Reseller in accordance
with the Technical Support Terms. Interweb shall charge fees for technical
support as provided in the Technical Support Terms.
3.2 Standard of Performance. Interweb shall use reasonable efforts to
perform the marketing and support responsibilities described above.
4. RESELLER'S MARKETING AND SUPPORT RESPONSIBILITIES
4.1 Duties of Reseller. Reseller shall at its expense unless otherwise
provided:
4.1.1 Design and print product advertising and collateral
materials for the Software Product(s).
4.1.2 Develop and implement positioning strategies for the
Software Product(s).
4.1.3 Provide to Interweb within thirty (30) days of the Effective
Date a written marketing plan describing the projected sales for Software
Product(s) for the initial term hereof together with the strategies and tactics
for achieving the projected results.
4.1.4 Provide suitable press releases and public relations efforts
for the initial launch of Software Product(s), together with ongoing public
relations activities.
4.1.5 Promote, market, and distribute the Software Product(s) only
through sales personnel with face-to-face contact with End-Users; sales
personnel may be employees and/or sales agents selected by Reseller.
4.1.6 Comply with all limitations and restrictions on marketing
and distribution provided in Section 2.
4.2 Standard of Performance. Reseller shall use its reasonable efforts
to perform the marketing and support responsibilities described above.
5. PAYMENT, AND TAXES
5.1 This Agreement Controls. Notwithstanding the content of Reseller's
purchase orders, this Agreement shall take precedence over such purchase order,
and any conflicting, inconsistent, or additional terms of Reseller's purchase
order shall be null and void.
5.2 Price and Payment.
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5.2.1 Price; Resale Prices. Subject to the terms and conditions
set forth in the Confidential Product and Price List, Reseller shall pay the
price per unit for the Software Product(s) as indicated on the Confidential
Product and Price List. Retail prices indicated by Interweb from time-to-time
are binding on Reseller, and Reseller is free to determine its own resale
pricing structure by bundling individual components as long as the minimum
levels of each upsell/enhancement as defined on Attachment A are maintained.
5.2.2 Payment Terms. Payment terms are in full on the 10th day of
each month if such day is a business day and on the next business day after the
10th if such date is a weekend or holiday. Payment is calculated on the gross
revenues received in each month and subject to the pricing provisions above in
5.2.1 and in the Confidential Product and Price List. Interweb reserves the
right in its reasonable commercial judgment to place Reseller on credit hold, in
which event Interweb will promptly inform Reseller, and Interweb may suspend
Reseller orders.
5.2.3 Taxes and Duties. The prices stated are exclusive of income
taxes, sales or use taxes, ad valorem taxes, duties, licenses, or levies imposed
on the production, storage, sale, transportation or use of the Software
Product(s). Reseller shall pay all such charges either as levied by taxing
authorities or as invoiced by Interweb, or, in lieu thereof, Reseller shall
provide an exemption certificate acceptable to the relevant taxing authorities.
6. WARRANTIES
6.1 Interweb's Limited Performance Warranty. For a period of ninety (90)
days commencing with the date of purchase by the End-User, Interweb warrants
that the unmodified Software Product(s) shall (i) perform substantially in
accordance with any provided Documentation, and (ii) be free of defects in
materials and workmanship. Reseller's sole and exclusive remedy for breach of
this warranty shall be limited to the prompt repair or replacement of the
affected Software Product unit at Interweb's expense.
6.2 Disclaimer. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, INTERWEB
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
6.2.1 SPECIFICALLY, INTERWEB MAKES NO REPRESENTATION OR WARRANTY
THAT ANY SOFTWARE PRODUCT IS FIT FOR ANY PARTICULAR PURPOSE, AND ANY IMPLIED
WARRANTY OF MERCHANTABILITY IS LIMITED TO THE DURATION OF THE LIMITED WARRANTY
COVERING THE DELIVERABLES ONLY, AND IS OTHERWISE HEREBY EXPRESSLY DISCLAIMED.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED
WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY.
6.2.2 RESELLER EXPRESSLY ACKNOWLEDGES THAT NO REPRESENTATIONS
OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE RESPECTING THE GOODS
OR SERVICES TO BE PROVIDED HEREUNDER, AND THAT RESELLER HAS NOT RELIED ON ANY
REPRESENTATION NOT EXPRESSLY SET OUT HEREIN.
6.3 Reseller's Performance Warranty. Reseller is free to offer separate
and additional warranty terms regarding the Software Product(s)in Reseller's
name only, but Reseller shall not bind Interweb to such additional terms.
6.4 Rights Warranties.
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6.4.1 Right to Contract and License. Interweb has the authority
to enter into this Agreement and the right to grant the rights and licenses
granted to Reseller herein without breach of obligation to any third party; and
the performance of this Agreement will not breach any obligation to any third
party.
6.4.2 No Encumbrances. Interweb hereby represents and warrants
that the Software Product(s), and any prior or subsequent versions thereof
(including any components thereof), as of the Effective Date and throughout the
term hereof is not pledged, covered, collaterally assigned as security, or
otherwise affected in any way by any bank loan, equipment financing, lending, or
security arrangement, or other such arrangement which is entered into by or
binding upon Interweb in any way.
6.4.3 Right to Quiet Enjoyment. Interweb hereby represents and
warrants that the Reseller, and any prior or subsequent versions thereof
(including any components thereof), as of the Effective Date and throughout the
term hereof, does not contain any virus, Trojan horse, worm, or other software
routine designed to permit unauthorized access to the associated computer
system, or to disable, erase or otherwise damage software, hardware, or data, or
to perform other similar actions; and does not contain or implement any back
door, time bomb, software lockout key or device, drop dead device, or other
software routine designed to disable a computer program, either automatically
with the passage of time or under the positive control of a person other than
Reseller.
7. INDEMNIFICATION
7.1 Reseller's Indemnity For Product Liability and Software Product
Warranties. Subject to the terms and conditions provided herein regarding all
Indemnities, Reseller shall Indemnify Interweb from and against any product
liability or warranty claim regarding the Software Product(s) as a component of
Software Product(s).
7.2 Rights Indemnities. Subject to the terms and conditions provided
herein regarding all Indemnities, Interweb shall Indemnify Reseller against any
breach by Interweb of any of the rights warranties stated above.
7.3 Infringement Indemnity of Reseller. Subject to the terms and
conditions hereof, Reseller shall Indemnify Interweb against any claim that any
material which Reseller combines or bundles with the Software Product(s) or
derivative works based thereon created by Reseller infringes any Proprietary
Right of a third party.
7.4 Infringement Indemnity of Interweb. Subject to the terms and
conditions hereof, Interweb shall Indemnify Reseller against any claim that the
Software Product(s) used by Reseller within the scope of this Agreement
infringes any Proprietary Right of a third party.
7.5 Infringement Indemnity Terms and Conditions. The infringement
Indemnities shall not apply to the extent that any third party's infringement
claim is based upon modifications, enhancements and other revisions to the
material which have been made by Indemnified party or by parties operating under
license from or authorization by the Indemnified party. In the event of any
ruling of infringement by a court of competent jurisdiction, or if the
Indemnifying party reasonably believes such a ruling is likely, the
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Indemnifying party shall, at its expense and after notice to and consultation
with the Indemnified party, at the Indemnifying party's option either:
7.5.1 modify the subject infringing material so as not to
infringe, or replace such infringing material with a material that does not
infringe; provided, however, that any modified or replacement material provided
by Interweb shall have the same functionality, operating characteristics,
compatibility and interoperability as the infringing material being modified or
replaced; or
7.5.2 if Reseller is the Indemnified party, Interweb shall obtain
a license for Reseller to continue using the subject material, free of any
future liability from the claiming party.
7.6 Conditions to All Indemnities. All Indemnities are subject to the
following conditions:
7.6.1 The Indemnified party notifies the Indemnifying party in
writing within thirty (30) days of being apprised of the claim.
7.6.2 The Indemnifying party has sole control of the defense and
all related settlement negotiations, subject to the right of Indemnified party
to participate in and monitor such defense, at its own cost and option and
through its own counsel, for the purpose of consulting with the Indemnifying
party's counsel.
7.6.3 The Indemnified party provides the Indemnifying party with
the assistance, information, and authority necessary to perform as required
above, provided that reasonable costs and expenses incurred by the Indemnified
party in providing such assistance and information will be reimbursed by the
Indemnifying party.
8. LIMITATION OF LIABILITY
8.1 Interweb's Limitation of Actual Damages. Except for rights and
infringement Indemnities, Interweb's liability to Reseller for actual damages
from any cause whatsoever, and regardless of the form of the action, whether in
contract, tort (including negligence), product liability or otherwise, will be
limited to the amounts paid to Interweb hereunder.
8.2 Disclaimer. NEITHER PARTY WILL BE LIABLE TO THE OTHER IN ANY EVENT
FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING ANY
DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS
INFORMATION), EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE. BECAUSE
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL
OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY.
9. PROPRIETARY RIGHTS
9.1 Title to Software Product(s). Under this Agreement, Reseller
acquires only a license for the Software Product(s) and does not acquire any
rights of ownership of any Proprietary Rights embodied therein. All right,
title and interest in and to the Proprietary Rights embodied in the Software
Product(s) shall at all times remain the property of Interweb or its licensors.
9.2 Confidential Information. Each party acknowledges that the other
party may disclose its Confidential Information to the other in the performance
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of this Agreement. Each party further acknowledges the other party's assertion
that the other party's Confidential Information is deemed to include valuable
trade secrets and confidential business information proprietary to the other
party and/or third parties. Accordingly, each party shall (i) take reasonable
steps to keep the Confidential Information disclosed by the other party
confidential, and (ii) use and disclose such Confidential Information only with
the receiving party's employees and contractors who have a need to know and only
for the purposes of fulfilling this Agreement, or for purposes of disclosure to
affiliated companies and professional advisors for the purpose of disclosing the
party's internal business.
9.3 Confidentiality of Software Product(s). Specifically regarding the
Software Product(s), Reseller acknowledges Interweb's claim that the Software
Product(s) embodies valuable trade secrets proprietary to Interweb.
Accordingly, Reseller shall take reasonable measures to protect the Software
Product(s) from unauthorized access, disclosure, and use, including without
limitation, the placement of any Proprietary Rights notice on the Software
Product(s) that is reasonably requested by Interweb. Reseller shall not:
9.3.1 Distribute, transfer, loan, rent, or provide access to the
Software Product(s), except as provided herein.
9.3.2 Remove or add any Proprietary Rights notice associated with
the Software Product(s) without the express written permission of Interweb.
9.3.3 Disassemble or decompile the Software Product(s) for any
purpose.
9.4 Injunctive Relief. The parties hereby agree that any breach of this
Section regarding Proprietary Rights would constitute irreparable harm, and that
the aggrieved party shall be entitled to specific performance and/or injunctive
relief in addition to other remedies at law or in equity.
10. TERM AND TERMINATION
10.1 Term of Agreement. The initial term of this Agreement shall commence
as of the Effective Date hereof and shall continue for a period of one (1) year.
10.2 Renewal. The initial term hereof shall automatically renew for
successive one (1) year terms upon reseller attaining either of the following
sales levels; (1) 4,000 sites sold, or (2) average daily sales of at least 30
sites (over 22 sales days for a total of 660 sites sold) in the month prior to
the start of new annual term. Upon renewal, Interweb will set new average daily
sales numbers and annual minimum sales levels to be met in the following year
and such amounts shall not be unreasonable taking into consideration the then
current year sales levels and in no event shall such new levels be higher than
150% of the previous years levels. Both the initial term and any renewal term
are subject to earlier termination as otherwise provided herein.
10.3 Automatic Termination. Unless Interweb promptly after discovery of
the relevant facts notifies Reseller to the contrary in writing, this Agreement
will terminate immediately without notice upon the institution of insolvency,
bankruptcy, or similar proceedings by or against Reseller, any assignment or
attempted assignment by Reseller for the benefit of creditors, or any
appointment, or application for such appointment, of a receiver for Reseller.
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10.4 Termination by Interweb for Cause. Interweb may terminate this
Agreement and all licenses granted herein for a material breach by Reseller
which remains uncured after thirty (30) days from receipt by Reseller of written
notice describing the nature of the breach.
10.5 Termination by Reseller for Cause. Reseller may terminate this
Agreement for a material breach by Reseller which remains uncured after thirty
(30) days from receipt by Interweb of written notice describing the nature of
the breach.
10.6 Acknowledgment and Waiver. The parties acknowledge that the
provisions of this Section are essential, fair, and reasonable, and that the
occurrence of any of the events described herein shall constitute good, just,
and sufficient cause for the termination or nonrenewal of this Agreement. The
parties further acknowledge that any amounts spent in the performance of this
Agreement shall be spent with the understanding that this Agreement may not be
renewed. Accordingly, each party hereby waives any claim against the other for
loss or damage of any kind (including, without limitation, damages or other
compensation for unjust enrichment, loss of prospective profits, reimbursement
for expenditures or investments made, or commitments entered into or goodwill),
due to failure of the parties to renew this Agreement or upon expiration to make
a similar agreement.
10.7 Inventory Sell-Down Period. Upon the expiration hereof, but not in
cases of termination by Interweb for cause, Reseller may continue to distribute
its then-current inventory of Software Product(s), but in no event no longer
than three (3) months after expiration or termination. During this period, the
provisions of this Agreement shall continue in force to the extent required for
the limited purpose of permitting OEM to distribute its current inventory of
Software Product(s).
10.8 Continuing Obligations. The following obligations shall survive the
expiration or termination hereof and the distribution grace period provided
above: (i) any and all limitations of liability and Indemnities granted by
either party herein, (ii) any covenant granted herein for the purpose of
protecting the Proprietary Rights of either party or any remedy for breach
thereof, (iii) the payment of taxes, duties, or any money to Interweb hereunder,
and (iv) the payment of compensation for monthly hosting fees.
11. DISPUTE RESOLUTION
11.1 Documentation. Except for actions to protect Proprietary Rights and
to enforce an arbitrator's decision hereunder, all disputes, controversies, and
claims arising out of the terms, operation, or interpretation of this Agreement
shall be initiated by a written demand for resolution, documented in writing,
and escalated through the appropriate levels of management of each party, up to
and including a corporate officer responsible for this Agreement, until
resolution of the issue is achieved or those officers agree that the dispute
cannot be resolved.
11.2 Arbitration. If the dispute cannot be resolved by the parties as
provided above within thirty (30) days from the date of the written demand for
resolution, the dispute shall be resolved by binding arbitration under the
Commercial Arbitration Rules of the American Arbitration Association ("AAA")
then in effect. The proceedings shall be held in Houston, Texas under the
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auspices of the AAA. As a minimum set of rules in the proceeding, the parties
agree as follows:
11.2.1 The arbitration proceeding shall be held by a single
arbitrator mutually acceptable to the parties. If the parties cannot agree on a
single arbitrator within fifteen (15) days after the date written demand for the
appointment of an arbitrator is made, each party shall identify one independent
individual, and these individuals shall then meet to appoint a single
arbitrator. If an arbitrator still cannot be agreed upon within an additional
thirty (30) days, one shall be appointed by the AAA. The arbitrator shall be
knowledgeable regarding the personal computer and software industries.
11.2.2 The parties shall equally bear the costs and fees of the
arbitration proceeding, and each party shall bear its own legal expense.
11.2.3 Any arbitration proceeding hereunder shall be conducted on a
confidential basis.
11.2.4 The arbitrator shall specify the basis of his/her decision
and the basis for any damages awarded. The decision of the arbitrator shall be
considered as a final and binding resolution of the dispute, and may be entered
as judgment in any court of competent jurisdiction in the United States. Each
party agrees to submit to the jurisdiction of any such court for purposes of the
enforcement of any such decision, award, order, or judgment.
11.2.5 The parties shall agree upon what, if any, discovery will be
made available. If the parties cannot agree on the form of discovery within
fifteen (15) days of the written demand for the appointment of the arbitrator,
there shall be neither discovery nor the issuance of subpoenas. In no event,
however, shall any such discovery take more than one (1) month.
11.2.6 Neither party shall ▇▇▇ the other where the basis of the
suit is a disagreement arising directly under the express terms of this
Agreement except for (i) injunctive relief for Infringement or misappropriation
of Proprietary Rights, or (ii) enforcement of the arbitrator's decision in the
event the other party is not performing in accordance with the arbitrator's
decision.
12. GENERAL PROVISIONS
12.1 Notices. All notices shall be given in writing and shall be
effective when either (i) served by personal delivery, (ii) upon receipt of mail
sent as certified mail, return receipt requested, or (iii) upon receipt of
facsimile transmission if verified by a written or electronic record of the
transmission, provided that any such communication is addressed to the parties
at their respective addresses and/or facsimile numbers set forth below, or to
such other address or numbers as either party may later specify by written
notice or provide as part of the performance of this Agreement.
If to Interweb:
Houston Interweb Design, Inc.
▇▇▇▇ ▇▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Contact: ▇▇▇ ▇▇▇▇▇▇▇
Telephone: (713) 627 - 9494
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Facsimile: (713) 627 - 2744
If to Reseller:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (281) 397 - 0273
Facsimile: (281) 397 - 0273
12.2 Merger; Amendment. This Agreement shall not be considered an offer
by either party, and it shall not be effective until signed by both parties.
This Agreement constitutes the entire understanding of the parties with respect
to the subject matter of this Agreement and merges all prior communications,
understandings, and agreements. This Agreement may be modified only by a
written agreement signed by the parties.
12.3 Independent Contractors. The relationship of the parties is that of
independent contractor, and nothing herein shall be construed to create a
partnership, joint venture, franchise, employment, or agency relationship
between the parties. Reseller shall have no authority to enter into agreements
of any kind on behalf of Interweb and shall not have the power or authority to
bind or obligate Interweb in any manner to any third party.
12.4 Severability. If any provision of this Agreement shall be held by a
court of competent jurisdiction to be contrary to law or public policy, the
remaining provisions shall remain in full force and effect.
12.5 No Implied Waivers. The failure of either party to enforce at any
time any of the provisions hereof shall not be a waiver of such provision, or
any other provision, or of the right of such party thereafter to enforce any
provision hereof.
12.6 Governing Law. This Agreement shall be construed under the laws of
the State of Texas, without regard to its principles of conflicts of law.
12.7 Force Majeure. Neither party shall be liable for damages for any
delay or failure of delivery arising out of causes beyond their reasonable
control and without their fault or negligence, including, but not limited to,
Acts of God, acts of civil or military authority, fires, riots, wars, or
embargoes.
12.8 Multiple Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, each one of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
12.9 Assignment. Reseller shall not assign this Agreement or any right or
interest under this Agreement, nor delegate any work or obligation to be
performed under this Agreement, without Interweb's prior written consent. Any
attempted assignment or delegation in contravention of this provision shall be
void and ineffective and shall be deemed to be a material breach hereof.
12.10 Change of Control. In the event of the direct or indirect taking
over or assumption of control or merger of Reseller or substantially all of its
assets by any government authority or other third party, Interweb shall have the
right to terminate this Agreement upon first giving written notice to Reseller.
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12.11 Attached Exhibit(s). This Agreement includes the attached exhibit(s)
listed below, which are hereby incorporated in this Agreement by reference.
Confidential Product and Price List Exhibit A
Sublicense Terms Exhibit B
Technical Support Terms Exhibit C
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
below.
HOUSTON INTERWEB DESIGN, INC. Reseller:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------- ------------------------------
▇▇▇▇▇ ▇▇▇▇▇ - CEO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: CEO Title: Director
------------------------- ---------------------------
Date: 1-27-99 Date: Jan-27-1999
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EA HW HW
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