Software Reseller Agreement

THIS AGREEMENT is entered into as of June 1, 1998, by and between HOUSTON INTERWEB DESIGN, INC., a Texas corporation ("Interweb") and HARRY BAUGE, an individual ("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 standalone 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." 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


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redistribution, only in conformity with the Sublicense Terms, and only in written form and signed by the Reseller.


2.2 Non-Exclusive License. The license granted herein is non-exclusive. Interweb may distribute the Software Product(s) both on a standalone 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) 1,000 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:


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3.1.1 Manufacture Software Product units and host sites for Reseller.


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.


4.1.7 Maintain sufficient network, hardware and bandwidth capacity levels to satisfy reasonably anticipated demand of Software Product(s).


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,


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and any conflicting, inconsistent, or additional terms of Reseller's purchase order shall be null and void.


5.2 Price and Payment.


5.2.1 Price; Resale Prices. Subject to the Minimum Purchase Commitment, and the other 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 t ...