Exhibit 10.4
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (this "Agreement") is made and entered
into this 26th day of May, 1999, by and between Synergistic Office Solutions,
Inc. ("SOS"), a Florida Corporation, whose principal office is at 00000 Xxxx
Xxxxxxx Xxxx, Xxxxxxxx, XX 00000; and Accurate Assessments, Inc., an Iowa
Corporation, whose principal office is at 0000 Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxx, XX 00000 ("Distributor").
WITNESSETH:
Whereas, Synergistic Office Solutions, Inc., licenses or has rights
to the Products and Services further defined in this Agreement and wishes to
distribute such Products and Services through Distributor pursuant to the
terms and conditions of this Agreement; and
Whereas, Distributor intends to actively market in the Marketing
Area the Products and Services referred to in this Agreement subject to the
terms and conditions hereof.
Now, therefore, the parties agree as follows.
1. DEFINITIONS.
1.1 "LICENSED SOFTWARE" shall mean the software packages and
Products and Services described in Attachment 1.
1.2. "MARKS" shall have the meaning set forth in Section 4.2.
1.3. "LICENSEE" shall mean the party granted the license to use the
Licensed Software and any Products and Services.
1.4. "LICENSE AGREEMENT" shall mean the agreement between SOS and
Licensees providing the terms and conditions upon which the Licensed Software
and any Products and Services will be provided to Licensee.
1.5. "TAX" shall have the meaning set forth in Section 3.3.
2. PROVISION OF PRODUCTS AND SERVICES.
2.1. PRODUCTS AND SERVICES. SOS shall provide to Distributor the
Licensed Software described herein subject to the terms and conditions of
this Agreement. Distributor is authorized to market, license, sell and
distribute the Licensed Software according to the terms, conditions and
subject to any limitations set forth in this Agreement.
3. REPORTING, PRICING AND PAYMENT.
3.1. REPORTS AND COOPERATION. Distributor recognizes that the
quality of SOS's Licensed Software, SOS's ability to maintain the Licensed
Software and the maintenance of SOS's proprietary rights may require prompt
and complete reports from Distributor. Therefore, Distributor agrees to
maintain full, clear and accurate records with respect to each and every copy
of the Licensed Software distributed by Distributor, each license granted,
each License Agreement executed, and all receipts from installation,
maintenance and support of the System and all other revenues related thereto.
Distributor further agrees to cooperate fully with SOS should a dispute
arise with a Licensee or another entity regarding the sale, distribution or
maintenance and support of the Licensed Software.
On or before the 15th of each month, Distributor shall remit to SOS the
appropriate payments for the Licensed Software sold by Distributor during the
previous month. Failure of Distributor to remit payment to SOS by the 15th of
each month shall be considered a material breach of this Agreement. Overdue
payments (i.e., any payments not made by the 15th of each month)
shall be subject to a late payment charge at the rate of 1.5% per 30 days of
delinquency or fraction thereof, provided that if such late payment charge
exceeds the maximum permitted by law for such charges, such charge shall be
reduced to the maximum amount.
3.2. PAYMENT. Distributor agrees that it is obligated to remit to
SOS the amount described in Section 5.3. Distributor shall timely pay to SOS,
in U.S. Dollars, the amounts owed SOS or such Licensed Software.
3.3. TAXES. Distributor shall pay directly all income, franchise,
sales, use, personal property, ad valorem, value added, stamp or other taxes,
levies, customs duties or other imposts or fees, including withheld taxes
(except only a tax levied by the United States of America or the State of
Nebraska based on the net income of SOS) together with all penalties, fines
and interest thereon that in any way arise out of this Agreement, whether on
or measured by the price, the charges, the programs or the services
furnished, or their use, however designed, levied or based (hereinafter
collectively called "Tax").
Distributor shall pay on SOS's behalf any Tax levied upon SOS and
reimburse SOS for any Tax paid by SOS. This clause shall apply during and
after termination of this Agreement whenever SOS must pay and/or collect the
Tax from Distributor according to the applicable law, as interpreted by the
revenue authorities of the taxing unit. SOS's right to reimbursement under
this clause shall accrue as of the date SOS actually pays such Tax or such
Tax is withheld.
4. OBLIGATIONS AND RIGHTS OF DISTRIBUTOR AND SOS.
4.1. SALES. Distributor will actively market, promote, license and
sell the Licensed Software through a knowledgeable sales support staff of the
Distributor. Distributor shall participate in or attend trade shows, shall
conduct marketing seminars, distribute catalogs or newsletters, or shall
perform such other activities to actively market, promote, sell and
distribute the Licensed Software.
4.2. MARKS. Subject to the terms and conditions set forth below, SOS
grants to Distributor a non-exclusive license to use its trademarks,
servicemarks, trade names and logos (the "Marks") in material used to market,
promote, license and sell the Licensed Software. With respect to
Distributor's use of the Marks, Distributor shall: (i) obtain SOS's written
approval before using the Marks in any material not provided by SOS; (ii)
clearly identify SOS as the owner of the Marks; (iii) conform to SOS's then
current Xxxx guidelines; (iv) otherwise comply with any local notice or
marking requirements; and (v) not use the Marks in any material other than
material approved by SOS under this Agreement.
4.3. USE OF OTHERS. Distributor may solicit orders directly or
through subcontractors or agents. Distributor shall be responsible for its
employees', subcontractors' or agents' acts or omissions in performing
marketing services and for the payment of amounts owed (if any) to its
employees, subcontractors, or agents, as may be appropriate.
4.4. NO REPRESENTATIONS OR WARRANTIES. DISTRIBUTOR SHALL MAKE NO
REPRESENTATIONS OR WARRANTIES TO ANYONE ABOUT THE LICENSED SOFTWARE EXCEPT AS
MAY BE SET FORTH IN THIS AGREEMENT OR AS OTHERWISE EXPRESSLY APPROVED IN
WRITING BY SOS.
4.5. HOLD HARMLESS. Distributor shall hold harmless and indemnify and
keep SOS fully and effectively indemnified against any and all loss, damage,
claim, expense or liability (including reasonable attorneys' fees and costs)
arising from (i) any negligent act, gross misconduct, wilful act, omission or
misconduct of Distributor, or its employees, agents or subcontractors, (ii)
any breach by Distributor of any term or condition of this Agreement, and
(iii) any claim made by Licensees.
4.6. USE OF LICENSED SOFTWARE AND AGREEMENT TERMS. Distributor
agrees that the use of Licensed Software by Licensees shall be pursuant to
applicable documentation provided by SOS unless otherwise specified herein.
Supplemental instructions and procedures may be provided from time to time by
SOS to Distributor by written materials or electronic messages. Distributor
agrees that it will advise Licensees of the terms and conditions applicable
to the Licensed Software and the Products and Services through the execution
of a License Agreement to be provided by SOS.
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4.7. REPORTING. Distributor has sole responsibility for the billing
and collection of all amounts owed to it through Distributor's sale of the
Licensed Software.
4.8. DISTRIBUTION OF MATERIALS. Distributor shall distribute to the
Licensees that have purchased Licensed Software through Distributor all SOS
information supplied to Distributor by SOS for distribution to Licensees.
4.9 OWNERSHIP OF MARKETING MATERIALS. In connection with
Distributor's rights and obligations herein, Distributor may create, obtain
or otherwise procure certain marketing materials for the sale of the Licensed
Software. Distributor hereby assigns all right, title and interest in all
such marketing materials to SOS, provided however that Distributor shall have
a royalty free license to use and license such marketing materials during the
term of this Agreement. Distributor also shall promptly disclose all such
marketing materials to SOS.
4.10. HELPLINE. SOS shall provide a helpline staffed by experienced
technical personnel. The hours for the helpline shall be 9:00 a.m. to 6:00
p.m. CST Monday through Thursday, and 9:00 a.m. to 5:00 p.m. on Friday. This
service is designed to handle technical operations issues and questions. The
first year of helpline service shall be included as part of the purchase
price of the Licensed Software. Subsequent helpline support can be purchased
from SOS in accordance with Attachment 1.
4.11. TRAINING. For the fees set forth in Xxxxxxxxxx 0, XXX shall
provide instruction and training to Distributor or Licensees regarding the
use of the Licensed Software. All training shall be conducted in accordance
with then current documentation, instruction and training policies of SOS and
in the English language.
4.12. CONFIDENTIALITY OF DISTRIBUTOR FILES. In accordance with the
provisions of Section 9, Confidentiality, the information or data in
Distributor's Licensee files shall be deemed "Confidential" whether or not
marked as such. Such information or data may not be disclosed by Distributor
or third parties without the express written consent of SOS.
4.13. SOFTWARE CUSTOMIZATION. SOS will provide all software
modifications and shall be solely responsible for bidding any such work to
Licensees. Any cost associated therein shall be billed directly by SOS to
Licensee in accordance with Attachment 1.
5. 70/30 DROP SHIP.
5.1. ORDERS. All written orders communicated to SOS by Distributor
will become a part of this Agreement when accepted in writing by SOS. SOS
shall provide order forms and may, at its sole discretion accept orders
either through electronic or facsimile transmission. Distributor is
financially responsible for any order communicated to SOS, whether written or
electronically transmitted to SOS, using an assigned identification code.
Except as otherwise provided in this Agreement, terms and conditions which
are not accepted in writing by the parties shall not be considered a part of
this Agreement.
5.2. DELIVERY. SOS shall, upon acceptance of an order in accordance
with Section 5.1, deliver the Licensed Software to the Licensee in accordance
with the terms and conditions of this Agreement.
5.3. PRICING. SOS has provided and may revise the retail pricing for
the Licensed Software, set forth on Attachment 1 or documentation relating to
the Licensed Software upon thirty (30) days' advance electronic and/or
written notice to Distributor. Distributor shall remit 70% of the retail
price of the Licensed Software in accordance with the schedule set forth in
Attachment 1 by the fifteenth day of each calendar month for the prior
month's sales of Licensed Software.
6. TERM. The term of this Agreement commences on the date first set
forth above and shall terminate one year thereafter. After the expiration of
the initial term of the Agreement, the Agreement shall automatically renew
for additional twelve (12) month terms unless terminated or canceled by
either party as set for in Section 7 of this Agreement.
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7. TERMINATION.
7.1. TERMINATION. Upon any material default by a party under this
Agreement, the other party may terminate this Agreement by giving not less
than thirty (30) days' prior written notice to the defaulting party;
provided, however, the defaulting party shall have the right to cure such
default within such thirty (30) day period. If not cured within such thirty
(30) day period, the Agreement shall terminate upon the expiration of such
thirty (30) day period. In addition to and notwithstanding for foregoing,
(i) if Distributor fails to pay any amount when due, then SOS may, at its
sole option, terminate this Agreement upon providing twenty-four (24) hours
prior written notice to Distributor and/or exercise any other rights provided
under this Agreement or available at law or in equity; and (ii) either party
may terminate this Agreement with 30 days' prior written notice to the other
party.
7.2 UNLAWFUL USE. If Distributor should use the Licensed Software
for an unlawful purpose or in an unlawfull manner, then SOS may terminate this
Agreement immediately. If the provision of the Licensed Software shall become
unlawful, then this Agreement shall terminate automatically and immediately.
7.3 LIABILITY UPON TERMINATION. Upon termination for any reason,
Distributor shall be liable for any charges incurred prior to termination and
shall pay such charges within five (5) days of termination.
8. TITLE TO AND USE OF INFORMATION.
8.1. TITLE. Title to the Licensed Software and all patents,
copyrights, trademarks, design rights, trade secrets, moral rights and other
proprietary rights in or related to the Licensed Software are and will remain
the exclusive property of SOS, whether or not specifically recognized or
perfected under the laws of the country where the Licensed Software is used.
Distributor will not take any action that jeopardizes such proprietary
rights, nor will it acquire any right in the Licensed Software without the
express written consent of SOS, nor will Distributor perform any reverse
engineering of the Licensed Software.
8.2. USE OF INFORMATION. All information furnished under this
Agreement (i) shall be used only in connection with this Agreement; (ii)
shall not be reproduced or copied, in whole or in part, except as necessary
for use as authorized under this Agreement; and (iii) shall, together with
any copies, be returned or destroyed when no longer needed or authorized for
use or upon termination of this Agreement.
9. CONFIDENTIALITY. Both parties to this Agreement shall retain in
confidence and not disclose to any third party all information (whether in
tangible form or stored electronically or in magnetic media) of a party
designated as "Confidential" or "Proprietary" disclosed to it by the other
party to this Agreement, except where the party receiving such disclosures
can establish that:
a) such information was known to the receiving party prior to its
disclosure by the other; or
b) such information was known to the public prior to its disclosure
to the receiving party, or has become known to the public through no fault of
the receiving party; or
c) such information was subsequently disclosed to the receiving party
by a third party having a lawful right to make such disclosure without
limitation or disclosure; or
d) such information was required to be disclosed pursuant to any law
or regulation, or by any court, agency or other tribunal of competent
jurisdiction.
The obligations of nondisclosure under this Section 9 shall begin on
the date hereof and shall continue for a period of five (5) years following
termination of this Agreement.
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10. WARRANTIES.
10.1. WARRANTY. SOS warrants that the Licensed Software will perform
as described in the documentation provided to Distributor describing the
Licensed Software. SOS does not warrant that the Licensed Software or
associated support facilities will be uninterrupted or error free. If, within
forty-five (45) days of delivery of the Licensed Software to the Licensee,
the Licensee determines that the Licensed Software does not meet its needs
and requirements or does not perform as warranted, then the Licensee may
terminate its licensed agreement by returning the Licensed Software to
Distributor or SOS. If the Licensed Software is returned, then SOS will
provide a refund or credit for any charges paid to SOS for the returned
Licensed Software. The refund or credit will be made by SOS to Distributor,
who shall then provide a refund or credit to the Licensee.
10.2. NO WARRANTIES OR REPRESENTATIONS. EXCEPT AS SPECIFICALLY MADE
HEREIN, SOS MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AND
DISCLAIMS ANY WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
AS TO THE LICENSED SOFTWARE AND ASSOCIATED SUPPORT FACILITIES WHICH WILL BE
PROVIDED TO DISTRIBUTOR AND ITS LICENSEES BY SOS UNDER THIS AGREEMENT OR AS
TO THE USE OF THE SAME IN CONJUNCTION WITH EQUIPMENT, PROGRAMS OR OTHER
MATERIALS PROVIDED BY DISTRIBUTOR OR A THIRD PARTY.
10.3. NO RESPONSIBILITY. SOS shall not be responsible for (i)
actions of persons or parties other than SOS's employees, agents, or persons
or parties under the direction or control of SOS's personnel; (ii) the
failure by Distributor or any of its customers to follow SOS's instructions;
(iii) failure of products to maintained by SOS; or (iv) acts or events beyond
SOS's control.
11. ASSIGNMENT. This Agreement may not be assigned in whole or in part
by either party without the prior written approval of the other party, which
shall not be unreasonably withheld; provided, however, SOS may assign this
Agreement to any present or future affiliate or subsidiary or assign its
right to receive payment hereunder without such consent.
12. INFRINGEMENT CURE. In the event the Licensed Software become the
subject of a claim for patent or copyright infringement or other infringement
of proprietary rights, whether such claim is asserted against SOS or
Distributor or any Licensee, SOS may (i) at its cost, procure for Distributor
the right to continue using the Licensed Software; or (ii) modify the
Licensed Software so as to make them non-infringing. If SOS, in its sole
discretion, determines that it is not reasonably able to procure such rights
or so modify the Licensed Software or otherwise secure to Distributor on
reasonable terms the right to continue using the Licensed Software, then
Distributor agrees to cease using the Licensed Software subject to the
infringement and SOS shall refund to Distributor any fees paid for
undelivered Licensed Software. SOS shall have no obligation to Distributor
under any provision of this paragraph with respect to any claim based on the
use of the Licensed Software in combination with equipment, devices or
software not supplied by SOS or upon the use of the Licensed Software in a
manner which is inconsistent with the specifications or documentation
provided by SOS. The foregoing states the sole and exclusive liability of
SOS for infringement of any kind and is in lieu of all warranties, express or
implied, in regard hereto.
THE SECTION 12 STATES THE ENTIRE AND EXCLUSIVE OBLIGATION OF SOS TO
DISTRIBUTOR AND ITS LICENSEES RELATING TO SOS'S LICENSED SOFTWARE WITH
RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF PATENTS, COPYRIGHTS OR OTHER
PROPRIETARY RIGHTS OF THIRD PARTIES BY THE LICENSED SOFTWARE OR ANY PART
THEREOF.
13. MAJEURE. Neither party shall be liable for delays in performance of
this Agreement caused by acts of God, government restrictions or
interference, strikes or other labor disputes, fires, power outages,
communications failures, or for any other cause, to the extent that any such
causes are beyond its reasonable control; provided, however, that if such
delay shall continue for thirty (30) days, then either party may terminate
this Agreement upon thirty (30) days' written notice to the other party. If
the non-performing party performs within said thirty (30) day period, then
this Agreement shall continue in full force and effect as though no such
notice had been given. In no event shall failure to timely pay amounts owed
be excused.
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14. INDEPENDENT CONTRACTOR. In connection with this Agreement, each party
is an independent contractor and as such will not have any authority to bind
or commit the other party except as provided hereunder. Nothing herein shall
be deemed or construed to create a joint venture, partnership or agency
relationship between the parties for any purpose.
15. SUBCONTRACTING. SOS may subcontract any or all of the work to be
performed by it under this Agreement, but shall retain responsibility for the
work subcontracted.
16. LIMITATION OF LIABILITY.
16.1 LIMITATIONS. SOS's liability for damages, costs or losses of
any type for any claim or cause of action whatsoever, including, without
limitation, claims of infringement of proprietary rights, shall not exceed an
amount equal to five (5) times the average amount of fees paid to and
received by SOS each month during the term of this Agreement.
16.2 NO LIABILITY. SOS shall have no liability to Distributor for
damages caused by acts or events beyond SOS's control. In addition, SOS shall
have no liability for information or advice supplied by third-party vendors.
16.3 OTHER DAMAGES. NEITHER PARTY SHALL BE LIABLE FOR INCIDENTAL,
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS, SAVINGS OR
REVENUES OF ANY KIND, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
16.4 UNAVAILABILITY. SOS shall not be liable for any damages arising
from the unavailability of the Licensed Software. Distributor agrees to
advise its customers of the fact that use of the Licensed Software may be
interrupted from time to time. Distributor agrees to indemnify and hold SOS
harmless from any loss, damage, claim, expense or liability (including
reasonable attorneys' fees and costs) arising from claims made by
Distributor's customers due to the unavailability of the Licensed Software.
17. GENERAL.
17.1 MODIFICATIONS. This Agreement may be supplemented or modified;
however, any supplement, modification or waiver of any provision of this
Agreement or any Attachment to this Agreement must be in writing and signed
by authorized representatives of both parties.
17.2 SEVERABILITY. If any portion of this Agreement is found to be
invalid or unenforceable, the parties agree that such provisions shall be
enforced to the greatest extent permitted by law and the remaining portions
shall remain in effect. The parties further agree that in the event such
invalid or unenforceable portion is an essential part of this Agreement, they
will immediately begin good faith negotiations for a replacement.
17.3 NO WAIVER. If either party fails to enforce any right or remedy
available to it under this Agreement, such failure shall not be construed as
a waiver of any right or remedy with respect to any other breach or failure
by the other party.
17.4 LIMITATION OF ACTIONS. Any legal action brought against SOS
with respect to this Agreement or with respect to any Licensed Software
contracted for or furnished under this Agreement must begin within two (2)
years from the date the cause of action arises.
17.5 HEADINGS. The section headings in this Agreement are inserted
for convenience only and are not intended to affect the meaning or
interpretation of this Agreement.
17.6 GOVERNING LAW. This Agreement and all matters arising out of or
relating to this Agreement shall be governed by the laws of the State of
Nebraska and shall be deemed to be executed in and the Licensed Software
performed from Omaha, Nebraska. The parties agree that any legal action or
proceeding relating to this Agreement shall be instituted in the state or
federal courts in Omaha, Nebraska. The parties agree to submit to the
jurisdiction of, and agree that venue is proper in, the foregoing courts in
any legal action or proceeding.
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17.7 SURVIVAL OF TERMS. The respective obligations of Distributor
and SOS hereunder which by their nature would continue beyond termination or
expiration hereof, including, but not limited to, (i) obligations of
confidentiality, (ii) limitations of liability, (iii) indemnity obligations,
(iv) Section 17.4, and (v) Section 17.6, shall survive the termination or
expiration of this Agreement.
17.8 AUTHORIZATION. Each party represents and warrants that it has
the power and authority to execute this Agreement and that the individual
signing this Agreement is authorized to do so. The parties further represent
and warrant that upon execution of this Agreement, it shall be a valid and
binding agreement between the parties enforceable in accordance with its
terms.
17.9 ENTIRE AGREEMENT. This Agreement, the Attachment(s) made a part
hereof, and the documentation for the Licensed Software constitute the entire
Agreement between the parties with respect to the Licensed Software provided
hereunder and they supersede all prior or contemporaneous agreements,
proposals or understandings, whether written or oral.
18. NOTICES. Any notice required or permitted hereunder shall be in
writing and addressed to the other party as first set forth in this Agreement
or to the last known address of the party. Any notice sent shall be deemed to
be received and valid upon (i) actual receipt, if hand delivered, (ii) three
business days from date on which such notice was sent, if sent by certified
or first class mail, postage prepaid, or (iii) upon the next business day if
such notice was sent by facsimile or overnight mail.
IN WITNESS WHEREOF, the parties hereto, through their authorized
representatives, execute this Agreement to be effective as of the date first
written above.
FOR SYNERGISTIC OFFICE SOLUTIONS, INC. FOR ACCURATE ASSESSMENTS, INC.
Signature: /s/ Xxxxxxxxx X. Xxxxx Signature: /s/ Xxxxxxx X. Xxxxx
---------------------------- ----------------------
Printed Name: Xxxxxxxxx X. Xxxxx Printed Name: Xxxxxxx X. Xxxxx
------------------------- -------------------
Title: Vice President Title: CEO
------------------------------ -------------------------
Date: 5/28/99 Date: 5-26-99
------------------------------ -------------------------
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ATTACHMENT 1
RESELLER PRICING - SOS OFFICE MANAGER FOR WINDOWS
(RETAIL BASE = RETAIL PRICE - COST OF SQL ANYWHERE COMPONENTS;
RESELLER PRICE = RETAIL BASED - % + SQL COST)
RETAIL RESELLER
PRODUCT PRICE RETAIL BASE PRICE
------------------------------------------------------------------------------
OMW Standalone Std $1,499.00 $1,429.00 $1,070.30
OMW Standalone Pro $1,999.00 $1,929.00 $1,420.30
-------------------------------------------------------------------------------
OMW Network Server
w/2 users $3,449.00 $3,239.00 $2,477.30
w/4 users $3,599.00 $3,249.00 $2,624.30
w/8 users $3,999.00 $3,369.00 $2,988.30
w/16 users $4,699.00 $3,509.00 $3,646.30
-------------------------------------------------------------------------------
w/32 users $5,999.00 $3,689.00 $4,892.30
w/unlim users Call for Pricing
add one user $119.00 $49.00 $104.30
--------------------------------------------------------------------------------
OMW Network Pro Server
--------------------------------------------------------------------------------
w/2 users $4,499.00 $4,289.00 $3,212.30
w/4 users $4,649.00 $4,299.00 $3,359.30
w/8 users $4,999.00 $4,369.00 $3,688.30
w/16 users $5,699.00 $4,509.00 $4,346.30
w/32 users $6,999.00 $4,689.00 $5,592.30
-------------------------------------------------------------------------------
w/unlim users Call for Pricing
-------------------------------------------------------------------------------
TRAINING
SCHEDULE CLASSROOM 000 Xxx Xxxxxxxx
XX SITE Priced per site; must be bid by SOS
CUSTOM PROGRAMMING $100 first hour, $75 each additional hour
All custom programming must be bid by SOS
SUPPORT & UPDATES Approximately 15% of the cost
of products used
ALL PRICES ARE SUBJECT TO CHANGE WITH 30 DAYS NOTICE!
MAY 28, 1999
