FORM OF PREMIER RESELLER SOFTWARE LICENSING AGREEMENT BETWEEN CYBRA CORPORATION AND SOLZON CORPORATION
EXHIBIT
10.1
FORM
OF PREMIER RESELLER SOFTWARE LICENSING AGREEMENT
BETWEEN
CYBRA
CORPORATION AND SOLZON CORPORATION
THIS
AGREEMENT
is
entered into as of the 27th day of August, 2007 (“Effective Date”) by and
between CYBRA Corporation, a corporation organized under the laws of the State
of New York and having a principal place of business at Xxx Xxxxxxxxx Xxxxxxxxx,
Xxxxxxx, XX 00000 (hereinafter “Publisher”),
and
Solzon Corporation, a corporation organized under the laws of the State of
New
Hampshire and having a principal place of business at _________________________
(hereinafter “Premier
Reseller”)
WHEREAS,
Publisher is engaged in the design, creation, distribution, license, maintenance
and support of certain computer software products, and represents that it is
the
owner of or has rights to market, license, and distribute certain computer
products (including related documentation) as specifically identified in Exhibit
1, attached hereto (“Products” or "CYBRA Products"); and
WHEREAS,
Premier
Reseller sells, licenses and supports software to third party entities for
use
in their business operations (“Customer”, “Customers”, or “Customers and
Prospects”); and
WHEREAS,
Publisher, complementary to its current business practices, desires to xxxxxx
the marketing of its Products (including any successor products together with
any other products as may be made available from Publisher during the term
of
this Agreement, any and all of which shall be deemed to be included in the
term
“Products” as used in this Agreement) by Premier Reseller to Premier Reseller
Customers and Prospects; and
WHEREAS,
Premier
Reseller desires to acquire from Publisher a non-exclusive right and license
to
market the Products in accordance with the terms and conditions of this
Agreement; and
NOW
THEREFORE,
in
furtherance of the foregoing purpose, the parties agree as follows:
I. Marketing
Rights and Software License
The
Publisher grants the Premier Reseller marketing rights for the Auto-IdTM suite
of
software products which is comprised of the MarkMagicTM
and
EdgeMagicTM
product
lines.
| A. |
Premier
Reseller is hereby granted a non-exclusive license to use any
current or
future software (“Software”) only in conjunction with Premier Reseller's
sale of the Products purchased directly from Publisher under
this
Agreement during the useful life of such Products, as they may
be repaired
or modified, from time to time. Premier Reseller agrees the Software
may
not be modified or reverse engineered in any manner.
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| B. |
Premier
Reseller agrees that such Software shall be treated as the exclusive
property of Publisher and/or Publisher suppliers, as appropriate,
and as a
proprietary and trade secret of Publisher and/or Publisher's
suppliers, as
appropriate. Premier Reseller shall take those steps as may be
necessary
to hold this Software in confidence for the benefit of Publisher
or
Publisher's suppliers, as appropriate.
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| C. |
Premier
Reseller shall have the right to sublicense Publisher's Software
to its
customers only on the terms provided above.
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II. Period
of the Agreement
This
agreement is effective from date of signature and is in effect for two years
thereafter. This agreement shall thereafter automatically renew for additional
one year periods unless either party notifies the other of its intention to
terminate the Agreement at least 30 days prior to any termination or renewal
date. Each party may terminate the agreement by notifying the other party of
the
intent of so doing sixty (60) days in advance without cause. Termination with
cause is immediate.
III. Territorial
Limitation
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A.
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The
Premier Reseller may sell the product(s) anywhere in the world.
Premier
Reseller acknowledges that the Products are of United States origin.
Premier Reseller agrees to comply with all national and international
laws
that apply to Product, including the US Export Administration and
the
equivalent Industry Canada Regulations as well as end-use and destination
restrictions issued by the United States and Canadian governments.
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IV. Sales
Channels and Commercial Terms
The
sales
channels governed by this agreement are for Premier Reseller to sell CYBRA
Products directly to Premier Reseller customers. When Premier Reseller purchases
CYBRA Products, the sales credit is taken as a discount for resale to customers
or agents.
On
an
exception basis, Publisher may sell the Products directly to Premier Reseller
customers, provided that either: (a) the Premier Reseller customer insists
on
purchasing directly from Publisher rather than from Premier Reseller, or (b)
as
mutually agreed upon between Premier Reseller and Publisher. In the event of
such an exception, the Premier Reseller’s sales credit will be paid by Publisher
to Premier Reseller as a commission equivalent to the discount that would have
been due Publisher had Premier Reseller sold directly to the customer or agent.
CYBRA
Products can be sold as a special Premier Reseller bundle, or can be sold
individually. Terms and conditions of CYBRA Product pricing and sales credit
are
contained in Exhibit
2 - Commercial Terms.
Publisher
periodically publishes new products. The Premier Reseller will be notified
of
availability and prices of such products. Sales credit for new products and
add-on options will be consistent with current products.
V. Protection
and Security
The
Premier Reseller undertakes to maintain secrecy concerning know-how,
documentation, working methods, etc. concerning the products, and to use such
information only as required for purposes of executing its obligations under
this agreement.
| A. |
The
Premier Reseller shall not engage directly or indirectly in the
production
or development of software products that compete directly with
the
Auto-IdTM suite
while this agreement remains in
effect.
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| B. |
The
Premier Reseller is authorized to copy the product for his own
backup
purposes and for licensing to end-users. This includes distribution
of the
MarkMagic libraries with the distributor's application program
libraries.
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VI. Warranty
and Support
The
Publisher warrants all materials, i.e., documentation and software, and will
be
replaced if found to be defective in material or workmanship.
THE
WARRANTIES SET FORTH ABOVE ARE OFFERED IN LIEU OF ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED. EXCEPT AS SET FORTH HEREIN, PUBLISHER MAKES NO OTHER WARRANTIES,
EXPRESS OR IMPLIED, REGARDING THE QUALITY, MERCHANTABILITY, OR FITNESS OF ITS
PRODUCT(S) FOR A PARTICULAR PURPOSE OR USE. PUBLISHER SHALL NOT BE RESPONSIBLE
FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGE, INCLUDING, BUT NOT
LIMITED TO LOSS OF PROFITS OR DAMAGES TO BUSINESS OR BUSINESS RELATIONS. THIS
WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES.
The
Publisher is responsible for providing technical support arising from the use
of
CYBRA
Products.
The
Premier Reseller is responsible for all Level
One
(1) end
user technical support arising from the use of CYBRA Products. Level
One
(1)
support includes printer connectivity, installation issues and basic usability
questions.
VII. Selling
Methods
To
sell
CYBRA
Products,
Publisher will provide the Premier Reseller with product literature in digital
files, which can be copied and given to prospects. Any modifications to the
literature must be approved by the Publisher.
Premier
Reseller’s customers and prospects that wish to try CYBRA Products for a trial
period can download the product and documentation from the Publisher’s website.
If the customer prefers media instead of download, it is the Premier Reseller’s
responsibility to supply the media.
Premier
Reseller’s customer may test CYBRA Products for a 30 day trial period. The trial
period may be extended with Publisher’s permission. For the trial period the
customer requires a temporary license key in order to activate the software.
Premier Reseller will request both temporary and permanent license keys from
the
Publisher via email using the CYBRA Premier Reseller License Key Request
Form.
Publisher
will issue a permanent license key to the Premier Reseller when royalties due
Publisher (list price less commission) in the form of either a bank money order,
check drawn on a US bank, money transfer or equivalent, in US funds and signed
License Agreements completed by the customer are received by Publisher.
IX. Disclaimer
This
agreement does not formulate a joint venture relationship or a partnership.
The
Premier Reseller is granted no additional authority to assume any obligation
on
behalf of the Publisher, or to perform any act in the name of the Publisher
if
not authorized to do so by this agreement.
| A. |
The
Premier Reseller will not make contractual agreements, which
bind the
Publisher. The Premier Reseller is not the agent or employee
of the
Publisher, and will not represent it as
such.
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| B. |
Premier
Reseller shall indemnify and hold Publisher free of any and all
claims of
loss or liability arising from improper maintenance, support,
or
misrepresentation by Premier Reseller's personnel or their authorized
agents.
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| C. |
Publisher
will indemnify, defend, and hold harmless Premier Reseller for
all claims
of whatever nature made by others against Premier Reseller based
on the
product, arising out of Publisher's performance under this Agreement,
and
/or as a result of Publisher's agreements/relations with anyone
else or
copyright or patent infringement
claims.
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X. Legal
Considerations/Damages and Liability
The
laws
of the state of New York will govern the terms of this agreement, and any
dispute arising between CYBRA Corporation and the Premier Reseller will be
settled by the jurisdiction of the authorized courts in the state of New York.
THE
PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE
TO BE BOUND BY ITS TERMS AND CONDITIONS. THE PARTIES FURTHER AGREE THAT IT,
INCLUDING THE EXHIBITS ATTACHED HERETO, IS THE COMPLETE AND EXCLUSIVE STATEMENT
OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR
AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN THE PARTIES
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
IN
NO
CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL,
INDIRECT, RESULTING, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING WITHOUT
LIMITATION LOSS OF PROFITS OR DAMAGE TO BUSINESS OR BUSINESS RELATIONS), HOWEVER
CAUSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR ANY ORDER
FOR PRODUCTS ARISING HEREUNDER OR THE PURCHASE OR USE OF PRODUCTS OR SERVICES
FURNISHED BY PUBLISHER TO PREMIER RESELLER.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the date first written.
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The
Publisher
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The
Premier Reseller
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CYBRA
Corporation
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Solzon
Corporation
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Authorized
Representative:
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Authorized
Representative:
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Title:
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Title:
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Address
for Notices:
One
Executive Boulevard
South
Westchester Executive Park
Yonkers,
NY 10701-6804
USA
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Address
for Notices:
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Signature:
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Signature:
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