ONLINE RESELLER AGREEMENT
This Reseller Agreement ("Agreement") sets forth the terms and conditions on which
you ("Reseller") will sell certain products of MetaProducts Corporation. This is
a legally binding agreement between the Reseller and MetaProducts Corporation, and
by registering as a Reseller, Reseller agrees to be legally bound by the terms and
conditions set forth in this Agreement. The "Effective Date" of this Agreement shall
be the date on which you complete this Reseller registration process.
ARTICLE 1 - PREMISES OF THIS AGREEMENT
MetaProducts Corporation, who is engaged in the design, development and sale of
software products, agrees to sell to Reseller, and Reseller, who is a supplier and
marketer of software products, agrees to purchase from software products from MetaProducts
Corporation. ("Software Products")
ARTICLE 2 - TERMS AND CONDITIONS OF SALE
The prices charged to, and discounts received by, Reseller for the Software Products
will only apply during the Term of this Agreement and commence upon the Effective
All orders for the Software Products placed by Reseller shall be paid in advance
by either credit card, check or wire transfer. By placing each order, the Reseller
confirms its agreement with and acceptance of all terms and conditions of this Agreement.
2.2 PAYMENT TERMS, OFFSETS, DELIVERY AND SHIPMENT
All payments shall be in United States Dollars. Any credits, allowances, or other
amounts payable or creditable to Reseller by MetaProducts Corporation shall be subject
to offset for any claims or other amounts owed by Reseller to MetaProducts Corporation
pursuant to the provisions of this Agreement or otherwise.
All the Software Products are downloadable from the MetaProducts Corporation Web
Site. The Software Products will not be provided in any other format unless specifically
agreed to in a separate agreement with MetaProducts Corporation.
All payments sent by check shall be payable in U.S. Dollars and drawn on a U.S.
bank. All payments due MetaProducts Corporation under this Agreement are net of
any and all expenses that may be incurred by Reseller, including the payment of
mailing, shipping and wire transfer fees.
The term of this Agreement shall continue until terminated by either Reseller or
MetaProducts Corporation. Reseller or MetaProducts Corporation may terminate this
Agreement at any time and for any reason upon notice to the other party. The Term
shall commence on the Effective Date and expire on the date terminated upon the
date the other party receives notice as required herein.
ARTICLE 3 - RESELLER RIGHTS
3.1 GRANT OF LICENSE
Subject to the terms and conditions of this Agreement, and for the Term of this
Agreement, MetaProducts Corporation hereby grants to Reseller a personal, non-exclusive,
non-assignable license to distribute and sell to end-users the Software Products,
sold pursuant to this Agreement and subject to MetaProducts Corporation standard
software license terms. (Contained within each Software Products.)
Notwithstanding anything to the contrary contained herein, Reseller shall not sell,
directly or indirectly, nor deliver, any Software Product in or to any country where
such a sale or delivery by Reseller would be prohibited by virtue of any applicable
law, regulation or agency ruling.
Reseller acknowledges that its license to sell the Software Products is non-exclusive.
MetaProducts Corporation reserves the right to license or appoint additional sales
representatives, value added resellers, distributors or OEMs for the Software Products,
and for any other products manufactured or distributed by MetaProducts Corporation,
and MetaProducts Corporation reserves the right, at any time, to sell any of the
Software Products directly in each case without thereby incurring any commission
or other obligation to Reseller of any type or nature.
3.3 INDEPENDENT RESELLER STATUS
Reseller is authorized to sell the Software Products in such manner, at such prices
and upon such terms as Reseller shall determine. Reseller shall not be considered
an agent or legal representative of MetaProducts Corporation for any purpose, and
neither Reseller nor any director, officer, agent or employee of Reseller, shall
be, or be considered, an employee or agent of MetaProducts Corporation for any purpose
whatsoever. Reseller is not granted and shall not exercise any right or authority
to assume or create any obligation or responsibility on behalf of or in the name
of MetaProducts Corporation, including without limitation contractual obligations
and obligations based on warranties or guarantees.
3.4 OPERATIONS AND EXPENSES
Except as provided herein, the detailed operations of Reseller under this Agreement
are subject to the sole control and management of Reseller. Reseller shall be responsible
for all its own expenses and employees, as may be required to carry out its obligations
under this Agreement. Reseller agrees that it shall incur no expense chargeable
to MetaProducts Corporation, except as may be specifically authorized in advance,
in writing, and in each case, by MetaProducts Corporation.
3.5 PROMOTIONAL MATERIALS AND PRODUCT MANUALS
Subject to MetaProducts Corporation's prior review and written approval, which shall
not be unreasonably withheld, Reseller shall have the right to create and distribute
promotional materials and product manuals for the Software Products sold pursuant
to this Agreement. As part of that process, Reseller may modify the promotional
materials and product manuals provided by MetaProducts Corporation; however, such
modified materials may only be used in connection with the Software Products sold
pursuant to this Agreement. MetaProducts Corporation shall retain all rights, including
copyrights, in the materials it provides to Reseller. Also, Reseller shall be responsible
for any modifications to MetaProducts Corporation's materials.
ARTICLE 4 - METAPRODUCTS CORPORATION'S RIGHTS
4.1 PROPRIETARY RIGHTS
MetaProducts Corporation will retain all proprietary rights, including copyrights,
in and to the Software Products, and Reseller will have no proprietary rights in
or to the Software Products at any time.
4.2 PRODUCT MODIFICATION OR DISCONTINUANCE
MetaProducts Corporation may at any time make changes in any of the Software Products
(whether in design, the addition of improvements, or otherwise) and may discontinue
the development of any Software Product, all in its sole discretion, without incurring
any obligation of any kind as a result thereof. MetaProducts Corporation shall notify
Reseller with as much advance notice as possible of any changes which may affect
the Software Products. Reseller may request a delay in the implementation of a change
in response to specific requirements from a customer, and MetaProducts Corporation
shall use reasonable efforts to accommodate such request; provided, however, in
no circumstance will MetaProducts Corporation be required to support any version
of a Software Product other than the then-current version and the immediately preceding
version. MetaProducts Corporation shall notify Reseller thirty (30) days in advance
of its discontinuance of the development of any of the Software Products.
Reseller agrees that it shall not in any way alter the Software Products, nor any
of the parts or components thereof.
4.3 SALE OR TRANSFER OF RIGHTS
MetaProducts Corporation has the right to sell or otherwise transfers some or all
of its rights in and to any of the Software Products at any time and without notice
to Reseller. MetaProducts Corporation's obligations under this Agreement shall be
binding upon MetaProducts Corporation, its successors and assigns, only during its
period of ownership of the rights in and to the Software Products. In the event
of any sale or other transfer of MetaProducts Corporation's rights in and to any
of the Software Products, then this Agreement shall be terminated with respect to
the Software Products that have been sold or otherwise transferred automatically
after the date of such sale or transfer.
ARTICLE 5 - WARRANTIES, REPRESENTATIONS AND LIMITATION OF LIABILITY
5.1 WARRANTIES AND RESPRESENTATIONS BY METAPRODUCTS CORPORATION
MetaProducts Corporation warrants that it shall convey good title to all the Software
Products sold to Reseller, free of all security interests, liens and encumbrances,
but subject to any licenses for third-party software included in the Software Products.
MetaProducts Corporation agrees to protect, defend, hold harmless and indemnify
the Reseller from and against any and all liabilities, damages and actions arising
out of any claim that the Software Products infringe any patent, trademark or copyright
of third parties.
Such indemnity, however, is specifically exclusive of any such claims which arise
or result of the following: (1) the misuse or alteration of the Software Products,
(2) the use of the Software Products in with apparatus and software not delivered
or furnished by MetaProducts Corporation, (3) the use of the Software Products in
a manner for which the same were neither designed nor contemplated, (4) or a patent,
trademark or copyright in which the Reseller has any direct or indirect interest
by license or otherwise.
This indemnification and hold harmless provision shall extend only to damages and
costs assessed against the Reseller embodied in a final judgment by a court of competent
jurisdiction holding that such Software Products constitute a patent, trademark
or copyright infringement or damages and costs incurred by the Reseller as a result
of a settlement entered into with the prior written consent of MetaProducts Corporation.
MetaProducts Corporation shall not be responsible for any loss of profits or the
Reseller's incidental or consequential damages or losses.
MetaProducts Corporation will be promptly notified by Reseller of any suit or threat
of suit as to which MetaProducts Corporation may have obligations under the above
provisions and be given reasonable opportunity to defend the same. The Reseller
shall reasonably cooperate with MetaProducts Corporation with regard to the defense
of any suit or threatened suit and MetaProducts Corporation shall have authority
to settle or otherwise dispose of any such suit or threatened suit, and to appeal
any judgment which may be entered.
This indemnity shall be effective with respect to all Software Products sold by
MetaProducts Corporation to the Reseller on or after the date set forth above and
shall continue until terminated by MetaProducts Corporation. Termination of this
indemnity shall not affect its applicability as to the Software Products sold by
MetaProducts Corporation to the Reseller prior to the termination date thereof.
5.2 WARRANTIES AND RESPRESENTATIONS BY RESELLER
The Reseller agrees to protect, defend, hold harmless and indemnify MetaProducts
Corporation from and against any and all liabilities, damages and actions arising
out of any claim that the other products of the Reseller bundled with or sold in
conjunction with the Software Products infringe any patent, trademark or copyright
of third parties.
The Reseller will be promptly notified by MetaProducts Corporation of any suit or
threat of suit as to which the Reseller may have obligations under the above provisions
and be given reasonable opportunity to defend the same. The Reseller shall reasonably
cooperate with MetaProducts Corporation with regard to the defense of any suit or
threatened suit and MetaProducts Corporation shall have authority to settle or otherwise
dispose of any such suit or threatened suit, and to appeal any judgment which may
be entered. This indemnity shall be effective with respect to all Software Products
sold by MetaProducts Corporation to the Reseller on or after the Effective Date
and shall continue until terminated by MetaProducts Corporation. Termination of
this indemnity shall not affect its applicability as to the Software Products sold
by MetaProducts Corporation to the Reseller prior to the termination date thereof.
5.3 LIMITATION OF LIABILITY
In no event shall either party to this Agreement be liable to the other (or shall
MetaProducts Corporation be liable to Reseller or any other reseller or end-user
of any Software Product) for any damages whatsoever including, without limitation,
loss of profits, injuries to property, loss of use of any Software Product or any
associated equipment, whether or not such party has been advised that the possibility
of such loss, and whether the claim is for breach or repudiation or contract, tort,
breach of warranty, negligence, or otherwise.
MetaProducts Corporation's and Reseller's liability under, for breach of, or arising
out of these terms and conditions or sale and/or sale or use of a Designated Product
shall be limited to an amount equal to the price of the affected Software Product.
The essential purpose of this section is to limit the potential liability of the
parties to this Agreement arising out of the terms and conditions of the purchase
and sale of the Software Products.
ARTICLE 6 - NOTICES, PLACE AND METHOD OF PAYMENT
Any notice or other communication required or permitted under this Agreement may
be given by email, on the date that email is received, unless the date of that delivery
(or attempted delivery) or that receipt, as applicable, is not a business day or
that communication is delivered (or attempted) or received, as applicable, after
the close of business on a business day, in which case that communication shall
be deemed given and effective on the next day that is a business day.
6.2 CHANGE OF EMAIL ADDRESSES
Either party may by notice to the other change the email address at which notices
or other communications are to be given to it.
ARTICLE 7 - MISCELLANEOUS PROVISIONS
Reseller may not sublicense, assign or transfer any of its rights, privileges or
obligations hereunder either in whole or in part, without the prior written consent
of MetaProducts Corporation. Nor shall an assignment or transfer of the Agreement
and the licenses granted herein be affected by operation of law, such as for example,
by merger, consolidation, sale of the business or assets, or by acquisition of a
majority of the voting stock of Reseller by a third party, without the prior written
consent of MetaProducts Corporation.
MetaProducts Corporation or Reseller will not be liable for any delay or failure
to fulfill its obligations hereunder that results from an act of God, war, civil
disturbance, court order, legislative or regulatory action, catastrophic weather
condition, failure or fluctuation in electrical power or other utility services
or other cause beyond its reasonable control.
7.3 NO PARTNERSHIP
This Agreement will not be construed to create a joint venture or partnership between
the parties hereto and neither will have the right, power or authority at any time
to act on behalf of, to impose any obligation on or to represent the other, except
as expressly set forth herein.
7.4 GOVERNING LAW
This Agreement will be governed by and construed in accordance with the laws of
the State of Ohio, USA, without regard to the conflicts of law provisions thereof.
The parties mutually consent and submit to the jurisdiction of the federal and state
courts for Franklin County, and agree that any action, suit or proceeding concerning
this Agreement will be brought only in the federal or state courts of such county
and that they will not raise, in connection therewith, any defense or objection
based on lack of personal jurisdiction, improper venue, inconvenience of forum or
7.5. ENTIRE AGREEMENT
This Agreement constitutes and contains the entire agreement between the parties
with respect to the subject matter hereof and supersede any prior oral or written
agreements with respect thereto. This Agreement may not be amended except in writing
signed by both parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by checking
the "I Agree" radio button on this form.