Preview of our top selling International Distribution & Resale Agreement
Selectica / Samsung - International value Added Reseller Agreement
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}{ SELECTICA, INC.
INTERNATIONAL VALUE ADDED RESELLER AGREEMENT
}{
Agreement #:
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Effective Date: Jan. 12, 2000
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THIS AGREEMENT is made and entered into effect as of the date shown above, by and between Selectica, Inc. ("SELECTICA"), with its principal offices at 2880 Zanker Road, Suite 101, San Jose, CA 95134.
and Company ("VAR"): SAMSUNG SDS CO., LTD.
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with its principal offices located at 707-19 Yoksam-Dong, Kangnam-Go
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Seoul, Korea, 135-080
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Telephone Number: 82-2-3429-3425
---------------------------------------- Fax Number: 82-2-3429-411
---------------------------------------- Company Contact Name: Weon K. Lee
---------------------------------------- Company Contact Email Address: Lwk@samsung.co.kr
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RECITALS
The parties to this Agreement wish to enter into a non-exclusive, non-transferable agreement pursuant to which VAR will purchase and/or market certain of the propri
etary Products ("the Products") developed and manufactured by SELECTICA. Therefore, in consideration of the mutual covenants and conditions contained in this Agreement, SELECTICA and VAR agree as follows:
1. APPOINTMENT
1.1 SELECTICA appoints VAR, and
VAR accepts appointment as an authorized, non-exclusive Value Added Reseller of the Products listed on EXHIBIT B hereto (the "Products"). This appointment authorizes VAR to distribute Products directly to end-user customers only within the Territory. For
purposes of this Agreement, "Territory" shall mean Korea. VAR must obtain prior written consent from Selectica for any distribution outside of the Territory. VAR can recommend resellers in Korea to resell Selectica products. Selectica may approve a resell
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r if it meets certain criteria (e.g., such potential resellers do not represent competitive products/companies and have the expertise to resell and support Selectica products). If Selectica approves such reseller, VAR may execute a reseller agreement dire
ctly with the reseller with terms and conditions no less restrictive than those contained in this Agreement. VAR may not execute any reseller agreements with any reseller not previously approved in writing by Selectica.
1.2 Although SELECTICA may, from ti
me to time, publish suggested list prices of the Products, VAR has the right to determine its own resale prices unilaterally. No SELECTICA representative has any authority to require VAR to charge a particular resale price for the Products or to otherwise
inhibit VAR's pricing discretion. VAR will promptly report any attempt to do so to SELECTICA's management in writing.
1.3 SELECTICA reserves the right, during the term of this Agreement and thereafter, to market products that are the same as or similar t
o those products that are the subject of this Agreement, in the same geographical areas serviced by VAR, either directly or indirectly through independent agents, dealers, developers, distributors, value added resellers, system integrators and Original Eq
uipment Manufacturers' without obligation or liability to VAR.
2. LICENSE GRANT
As part of the appointment under Section 1.1, and subject to the terms and conditions of this Agreement, Selectica grants VAR (i) a nonexclusive, non-transferable license to
use and distribute internally the Products for internal testing and development purposes and for demonstration and support of End Users (the "End-User License");
[*] - CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
(ii) an exclusive, non-transferable license to distribute and sub-license the Products directly or indirectly through VAR's distribution channel to End
Users in the Territory pursuant to the terms and conditions of an End User license agreement that contains terms and conditions substantially similar to those set forth in the End Use Agreement which is attached as Exhibit C (hereinafter the "End User Agr
eement").
3. FEES AND PAYMENT TERMS
3.1 Products Fees. VAR shall pay Selectica, for the Products that VAR is purchasing pursuant to this Agreement the amount set forth in Exhibit B. Such fees for the purchase of the Products set forth in Exhibit B shall be non-refundable.
3.2 Internal Use License. VAR shall pay Selectica, for each of the Products that it uses or distributes for internal purposes within the scope of the rights set forth in Section 5(a)(i) of this Agreement, the amounts set forth in Exhibit G.
3.3 Payment Terms. The payments to Selectica from VAR for the Products listed on Exhibit B and the Internal Use License shall be paid upon the execution of this Agreement.
3.4 Taxes, Fees, and Documentation. VAR agrees to pay, and to indemnify and hold Selectica harmless from, any s
ales, use, excise, import or export, value added or similar tax, not based on Selectica's net income, as well as the collection or withholding thereof, including penalties and interest, and all government permit or license fees and all customs, duty, tari
f
f and similar fees levied upon the delivery of the Products and other deliverables, and any costs associated with the collection of any of the foregoing items. VAR shall be responsible for obtaining, at its expense, all required import licenses, permits o
r
other governmental orders. If a resale certificate or other certificate, document or other evidence of exemption or payment or withholding of taxes by VAR is required in order to exempt the distribution or licensing of the Products from any such liabilit
y or to enable Selectica to claim any tax exemption, credit, or other benefit, VAR will promptly furnish such certificate or document to Selectica.
4. VAR RESPONSIBILITIES
In consideration for being appointed an authorized VAR of the Products, VAR assumes the following responsibilities:
4.1 Maintain a sufficient number of trained and knowledgeable sales personnel who are able to explain in detail the differences between the Products and competitive products, and who can effectively market the Products
and provide support for the Products to all of the VAR's end-user customers.
4.2 Make reasonable efforts to maintain at lest one SELECTICA certified technical resource on staff at all times.
4.3 Upon end-user customer request at the point of sale, explain and demonstrate the Products and instruct the customer on the setup and installation.
4.4 Display, demonstrate, and represent the Products fairly and make no representations concerning SELECTICA or its products that are false, misleading or inconsist
ent with those representations set forth in the promotional or other materials that are supplied by SELECTICA.
4.5 Assure that the Products are sold to end-user customers only in complete and appropriate packaging which includes an SELECTICA warranty and
limitation of liability statements, license agreement and/or other materials as specified by SELECTICA. VAR shall require each End-User to execute the End User Agreement attached hereto as Exhibit C.
4.6 Promptly report to SELECTICA all suspected defects in the Products.
4.7 Prevent the unauthorized reverse engineering, decompilation and reverse analysis of the products by VAR personnel and agents and use reasonable efforts to prevent unauthorized reverse engineering decompilation and
reverse analysis by VAR customers. VAR agrees that if, for any reason, it comes into possession of any source code, or portion thereof, for any Selectica product, not generally provided by Selectica as a part of the Software Product, it will immediately d
eliver all copies of such source code to Selectica.
4.8 Provide SELECTICA with monthly sales history and quarterly sales forecasts of the Products.
4.9 Employ the level of energy, skills, and resources necessary to market the Products actively.
4.10 Pay SELECTICA the fees set forth in Exhibit B to this Agreement and maintain a satisfactory overall credit rating.
4.11 Comply with all applicable laws and regulations in performing under this Agreement.
4.12 In connection with any VAR proposals or agreement
s to supply the Products or User Documentation to governments (or agencies thereof), VAR will take all reasonable steps in making such proposals and agreements to ensure that Selectica's Intellectual Property Rights in such Products and User Documentation
receive the maximum protection available from such governments for commercial computer software and related documentation developed at private expense. The provisions of this Section shall not be construed to expand the scope of VAR's rights set forth in
Section 5(a), nor to require VAR to seek or obtain registrations of any kind whatsoever, in any portion of the Exclusive or Nonexclusive Territories, to protect the Intellectual Property Rights of Selectica.
5. SUPPORT AND MAINTENANCE
5.1 Support: Pursuan
t to VAR being in compliance with the requirements as detailed in Section 4, SELECTICA shall, during the term of this Agreement and during SELECTICA's support business hours (5:00 AM - 5:00 PM PST), provide technical support through appropriate communicat
i
ons mechanisms (telephone, fax, electronic mail, or web services) to the designated support contact or backup support contact of the VAR. Both designated support contact and backup support contact are required to be trained by SELECTICA or its designee an
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maintain certification as SELECTICA Certified Developer. VAR will submit in writing the names of designated and backup support contacts. VAR will receive free of charge technical information on the development of solutions, software problem analysis, and
responses to technical issues as they pertain to the operation of SELECTICA's Products.
5.2 Maintenance to VAR: VAR will receive minor upgrades, updates, software problem fixes, periodic reports on software problems, and other maintenance support for the
products purchased for the Internal Use License under the VAR program as long as VAR is current with maintenance fees. VAR shall pay a minimum annual maintenance fee at an amount as shown in EXHIBIT A for all term years except year one. All maintenance fe
e
s received from VAR (not directly from end-user) for VAR's end-user customers' annual maintenance shall be credited against VAR's annual program maintenance fee. The annual program maintenance fee only covers the development system(s) associated with the
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AR Program as listed in EXHIBIT A. Any additional products purchased by VAR for internal use will be charged a separate maintenance fee as defined in Exhibit A. Such maintenance fees will be included with each product order, prorated based on the upcoming
anniversary date of this Agreement. Renewal maintenance fees will be billed annually on the anniversary date of this Agreement. The maintenance fees must be kept current in order to remain in the VAR Program.
5.3 Maintenance to End User: VAR shall pay SEL
ECTICA certain maintenance fees as defined in EXHIBIT A for all products purchased by end-users where VAR is providing first line support. VAR is required to provide first level support for year one for each customer, at a minimum. SELECTICA agrees to pro
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ide second line support to VAR provided that VAR is current with respect to maintenance fees as defined in section 5.2. VAR will receive minor upgrades, updates, software problem fixes, periodic reports on software problems, and other maintenance support
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or the products that VAR is then entitled to pass on to end-users. The annual maintenance fee covers only the Products VAR is licensed to resell. First year maintenance fees are required for each customer and are paid at the time of initial order. Subsequ
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nt renewal will be on each anniversary of the maintenance effective date. The maintenance effective date is defined as the date that SELECTICA ships product to VAR for a given customer. For year two and onward, SELECTICA agrees to contract with end-user f
or maintenance and support, if requested.
by VAR or end-user. In such cases, end-user will be billed SELECTICA's standard maintenance and support fee as detailed in EXHIBIT A. Selectica shall have no obligation to support: (i) altered or damaged Software o
r any portion of Software incorporated with or into other software; (ii) Software that is not the then current release or immediately previous sequential release which is aged six (6) months or more since the issuance of the successive release; (iii) Soft
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are problems caused by Company's negligence, abuse or misapplication, use of Software other than as specified in Selectica user manual or other causes beyond the control of Selectica; or (iv) Software installed on any hardware that is not supported by Sel
ectica. Selectica shall have no liability for any changes in Company's hardware, which may be necessary to use Software due to a workaround or maintenance release.
5.4 Updates and Maintenance Fixes: During the Agreement's term, SELECTICA will furnish to V
AR within a reasonable time after publication one copy of updates and corrections to the Products VAR is authorized to resell. Such corrections are collectively referred to herein as "Updates and/or Maintenance Fixes". Updates and Maintenance Fixes do not
include any releases or updates with a change in the version number to the left of the decimal point or any release, update or upgrade that has been customized for use by any particular user or which is made solely to adopt or reflect trade dress of any t
hird party.
5.5 Product Exchange: VAR shall be entitled to exchange any of the Products it is purchasing pursuant to this Agreement to the other Products in this Agreement.
6. TERM AND RENEWAL
6.1 The term of this Agreement shall be a single Contract Period commencing on the Effective Date set forth above and terminating one (1) year thereafter, unless renewed as provided below or unless terminated sooner in accordance with the provisions of t
his Agreement.
6.2 This appointment as a VAR for SELECTICA's Products shall be automatically renewable for successive twelve-month (12-month) periods unless written notice by either party of its intent not to renew at least thirty (30) days before the expiration date.
7. TERMINATION
7.1 If SELECTICA in its judgment finds VAR deficient in meeting VAR's responsibilities or obligations under the terms of this Agreement, SELECTICA will provide written notice of such deficiencies and establish a reasonable
period of time, not to exceed thirty (30) days, in which VAR must remedy such deficiencies. In the event VAR does not correct the deficiencies, SELECTICA can, at its option, terminate this Agreement. No waiver by SELECTICA of any deficiencies in one or m
ore instances shall constitute a waiver of SELECTICA's right to terminate this Agreement in a subsequent instance.
7.2 Notwithstanding any other provisions of this agreement, and without requirement for SELECTICA to reimburse VAR for any fees, SELECTICA may terminate this Agreement immediately upon delivery of Notice of Termination to VAR if the VAR:
a. Transfers control or ownership of all or part of the VAR, whether
directly, indirectly, voluntarily or involuntarily;
b. Submits to SELECTICA at any time prior to or during the term of this
Agreement a report, financial statement, tax return, or other information
in which VAR knowingly submits false or misleading information.
c. Fails or refuses to comply with the provisions of this Agreement, even
if such failures or refusals are corrected after notice thereof is
delivered to VAR; or
d. Sells the Products to non-end-user customers, or otherwise violates
the Grant of Rights in Section 1.
7.3 In the event of termination or expiration of this Agreement due to VAR's default, VAR shall immediately discontinue use of SELECTICA's name and marks, and shall within thirty (30) days of the effective termination
expiration date settle all accounts, pay all outstanding bills, and return to SELECTICA all confidential and proprietary information obtained from SELECTICA pursuant to this Agreement.
7.4 In the event of a material default under this Agreement by SELECT
ICA, VAR will provide written notice of such default and establish a reasonable period of time, not to exceed thirty (30) days, in which VAR must remedy such deficiencies. In the event VAR does not correct the deficiencies, VAR can, at its option, termina
te this Agreement.
8. ANNOUNCEMENT
8.1 VAR agrees that upon both parties signatures below, SELECTICA may publicize the relationship established by this Agreement.
9. INDEMNIFICATION
9.1 Except as limited in Section 9.2, SELECTICA shall defend at i
ts expense any action brought against VAR to the extent the action is based on a claim that use of any Products furnished to VAR under this Agreement infringes any United States patent or copyright. SELECTICA will indemnify VAR against any costs, damages
o
r fees finally awarded against VAR in such an action, provided that VAR notifies SELECTICA promptly, in writing, of the claim, and grants SELECTICA sole authority to defend or settle the claim, and also provides SELECTICA with all reasonable information,
a
ssistance, and authority necessary to enable SELECTICA to do so. SELECTICA shall have the right to substitute a new Product that is non-infringing provided that the performance of the new product is substantially equivalent to the licensed Product that wa
s originally delivered to VAR.
9.2 SELECTICA shall have no liability under Section 9.1 for claims and/or actions based on: (a) the use of other than the most current version of the Products, if the claim or action could have been avoided by use of the mos
t current version of the Products; (b) the purchase or obtaining of the Products from a dealer, distributor, or VAR not authorized by SELECTICA; or (c) the modification of the Products by the VAR or a third party.
9.3 The indemnification by SELECTICA in
Section 9.1 above shall not extend to claims that arise solely from the work that VAR performs in integrating the Products with other Products or in the marketing of the Products pursuant to this Agreement. VAR agrees that, as to the content of such work
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AR, at its own expense, shall indemnify, defend and hold SELECTICA harmless from and against any and all awards, judgments, expenses, damages, costs (including reasonable attorney's fees) and losses resulting from any claim, action, suit or proceeding thr
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atened or instituted against SELECTICA based on a claim that the integrated and combined Products and the use thereof, constitutes an infringement upon or misappropriation of any patent, copyright, trade secret or other proprietary right. Except with the
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ritten consent of SELECTICA, VAR will not consent to the entry of any judgment or enter into any settlement which does not include as an unconditional term thereof, the giving to SELECTICA a full and final release from all liability or which limits or adv
ersely affects the rights of SELECTICA to carry on or conducts its business, then or into the future.
9.4 VAR agrees to indemnify and hold Selectica harmless from any claims, suits, proceedings, losses, liabilities, damages, costs and expenses (inclusive
of Selectica's reasonable attorneys' fees) made against or incurred by Selectica as a result of (i) negligence or misrepresentation by VAR or its representatives, (ii) any error or omission on the part of VAR or representatives of VAR or (iii) any action
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y VAR which affects Selectica's Intellectual Property Rights (iv) any claims for compensation asserted by VAR's employees. VAR shall be solely responsible for, and shall indemnify and hold Selectica harmless from, any claims, warranties or representations
made by VAR or VAR's employees or agents. VAR will defend, indemnify, and hold harmless Selectica and its successors, agents, officers, directors, and employees from and against any violation of any laws or regulations by VAR o...
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