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 ▇▇▇▇▇ ▇▇▇▇▇, 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 time-to-time are binding on
Reseller, and Reseller is free to determine its own resale pricing structure
by bundling individual components as long as the minimum levels of each
upsell/enhancement as defined on Attachment A are maintained.
5.2.2 Payment Terms. Payment terms are in full upon creation
of units(web sites) of Software Product(s) if Reseller satisfies Interweb's
credit requirements; otherwise, terms are cash in advance of site creation.
Interweb reserves the right in its reasonable commercial judgment to place
Reseller on credit hold, in which event Interweb will promptly inform
Reseller, and Interweb may suspend Reseller orders.
5.2.3 Taxes and Duties. The prices stated are exclusive of
income taxes, sales or use taxes, ad valorem taxes, duties, licenses, or
levies imposed on the production, storage, sale, transportation or use of the
Software Product(s). Reseller shall pay all such charges either as levied by
taxing authorities or as invoiced by Interweb, or, in lieu thereof, Reseller
shall provide an exemption certificate acceptable to the relevant taxing
authorities.
6. WARRANTIES
6.1 Interweb's Limited Performance Warranty. For a period of ninety
(90) days commencing with the date of purchase by the End-User, Interweb
warrants that the unmodified Software Product(s) shall (i) perform
substantially in accordance with the Documentation, and (ii) be free of
defects in materials and workmanship. Reseller's sole and exclusive remedy
for breach of this warranty shall be limited to the prompt repair or
replacement of the affected Software Product unit at Interweb's expense.
6.2 Disclaimer. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, INTERWEB
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
6.2.1 SPECIFICALLY, INTERWEB MAKES NO REPRESENTATION OR
WARRANTY THAT ANY SOFTWARE PRODUCT IS FIT FOR ANY PARTICULAR PURPOSE, AND ANY
IMPLIED WARRANTY OF MERCHANTABILITY IS LIMITED TO THE DURATION OF THE LIMITED
WARRANTY COVERING THE DELIVERABLES ONLY, AND IS OTHERWISE HEREBY EXPRESSLY
DISCLAIMED. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY.
6.2.2 RESELLER EXPRESSLY ACKNOWLEDGES THAT NO REPRESENTATIONS
OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE RESPECTING THE
GOODS OR SERVICES TO BE PROVIDED HEREUNDER, AND THAT RESELLER HAS NOT RELIED
ON ANY REPRESENTATION NOT EXPRESSLY SET OUT HEREIN.
6.3 Reseller's Performance Warranty. Reseller is free to offer
separate and additional warranty terms regarding the Software Product(s) in
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Reseller's name only, but Reseller shall not bind Interweb to such additional
terms.
6.4 Rights Warranties.
6.4.1 Right to Contract and License. Interweb has the
authority to enter into this Agreement and the right to grant the rights and
licenses granted to Reseller herein without breach of obligation to any third
party; and the performance of this Agreement will not breach any obligation
to any third party.
6.4.2 No Encumbrances. Interweb hereby represents and warrants
that the Software Product(s), and any prior or subsequent versions thereof
(including any components thereof), as of the Effective Date and throughout
the term hereof is not pledged, covered, collaterally assigned as security,
or otherwise affected in any way by any bank loan, equipment financing,
lending, or security arrangement, or other such arrangement which is entered
into by or binding upon Interweb in any way.
6.4.3 Right to Quiet Enjoyment. Interweb hereby represents and
warrants that the Reseller, and any prior or subsequent versions thereof
(including any components thereof), as of the Effective Date and throughout
the term hereof, does not contain any virus, Trojan horse, worm, or other
software routine designed to permit unauthorized access to the associated
computer system, or to disable, erase or otherwise damage software, hardware,
or data, or to perform other similar actions; and does not contain or
implement any back door, time bomb, software lockout key or device, drop dead
device, or other software routine designed to disable a computer program,
either automatically with the passage of time or under the positive control
of a person other than Reseller.
7. INDEMNIFICATION
7.1 Reseller's Indemnity For Product Liability and Software Product
Warranties. Subject to the terms and conditions provided herein regarding
all Indemnities, Reseller shall Indemnify Interweb from and against any
product liability or warranty claim regarding the Software Product(s) as a
component of Software Product(s).
7.2 Rights Indemnities. Subject to the terms and conditions provided
herein regarding all Indemnities, Interweb shall Indemnify Reseller against
any breach by Interweb of any of the rights and warranties stated above.
7.3 Infringement Indemnity of Reseller. Subject to the terms and
conditions hereof, Reseller shall Indemnify Interweb against any claim that
any material which Reseller combines or bundles with the Software Product(s)
or derivative works based thereon created by Reseller infringes any
Proprietary Right of a third party.
7.4 Infringement Indemnity of Interweb. Subject to the terms and
conditions hereof, Interweb shall Indemnify Reseller against any claim that
the Software Product(s) used by Reseller within the scope of this Agreement
infringes any Proprietary Right of a third party.
7.5 Infringement Indemnity Terms and Conditions. The infringement
Indemnities shall not apply to the extent that any third party's infringement
claim is based upon modifications, enhancements and other revisions to the
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material which have been made by Indemnified party or by parties operating
under license from or authorization by the Indemnified party. In the event
of any ruling of infringement by a court of competent jurisdiction, or if the
Indemnifying party reasonably believes such a ruling is likely, the
Indemnifying party shall, at its expense and after notice to and consultation
with the Indemnified party, at the Indemnifying party's option either:
7.5.1 modify the subject infringing material so as not to
infringe, or replace such infringing material with a material that does not
infringe; provided, however, that any modified or replacement material
provided by Interweb shall have the same functionality, operating
characteristics, compatibility and interoperability as the infringing
material being modified or replaced; or
7.5.2 if Reseller is the Indemnified party, Interweb shall
obtain a license for Reseller to continue using the subject material, free of
any future liability from the claiming party.
7.6 Conditions to All Indemnities. All Indemnities are subject to the
following conditions:
7.6.1 The Indemnified party notifies the Indemnifying party in
writing within thirty (30) days of being apprised of the claim.
7.6.2 The Indemnifying party has sole control of the defense
and all related settlement negotiations, subject to the right of Indemnified
party to participate in and monitor such defense, at its own cost and option
and through its own counsel, for the purpose of consulting with the
Indemnifying party's counsel.
7.6.3 The Indemnified party provides the Indemnifying party
with the assistance, information, and authority necessary to perform as
required above, provided that reasonable costs and expenses incurred by the
Indemnified party in providing such assistance and information will be
reimbursed by the Indemnifying party.
8. LIMITATION OF LIABILITY
8.1 Interweb's Limitation of Actual Damages. Except for rights and
infringement Indemnities, Interweb's liability to Reseller for actual damages
from any cause whatsoever, and regardless of the form of the action, whether
in contract, tort (including negligence), product liability or otherwise,
will be limited to the amounts paid to Interweb hereunder.
8.2 Disclaimer. NEITHER PARTY WILL BE LIABLE TO THE OTHER IN ANY EVENT
FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING ANY
DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF
BUSINESS INFORMATION), EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN
ADVANCE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATIONS MAY
NOT APPLY.
9. PROPRIETARY RIGHTS
9.1 Title to Software Product(s). Under this Agreement, Reseller
acquires only a license for the Software Product(s) and does not acquire any
rights of ownership of any Proprietary Rights embodied therein. All right,
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title and interest in and to the Proprietary Rights embodied in the Software
Product(s) shall at all times remain the property of Interweb or its
licensors.
9.2 Confidential Information. Each party acknowledges that the other
party may disclose its Confidential Information to the other in the
performance of this Agreement. Each party further acknowledges the other
party's assertion that the other party's Confidential Information is deemed
to include valuable trade secrets and confidential business information
proprietary to the other party and/or third parties. Accordingly, each party
shall (i) take reasonable steps to keep the Confidential Information
disclosed by the other party confidential, and (ii) use and disclose such
Confidential Information only with the receiving party's employees and
contractors who have a need to know and only for the purposes of fulfilling
this Agreement, or for purposes of disclosure to affiliated companies and
professional advisors for the purpose of disclosing the party's internal
business.
9.3 Confidentiality of Software Product(s). Specifically regarding the
Software Product(s), Reseller acknowledges Interweb's claim that the Software
Product(s) embodies valuable trade secrets proprietary to Interweb.
Accordingly, Reseller shall take reasonable measures to protect the Software
Product(s) from unauthorized access, disclosure, and use, including without
limitation, the placement of any Proprietary Rights notice on the Software
Product(s) that is reasonably requested by Interweb. Reseller shall not:
9.3.1 Distribute, transfer, loan, rent, or provide access to
the Software Product(s), except as provided herein.
9.3.2 Remove or add any Proprietary Rights notice associated
with the Software Product(s) without the express written permission of
Interweb.
9.3.3 Disassemble or decompile the Software Product(s) for any
purpose.
9.4 Injunctive Relief. The parties hereby agree that any breach of
this Section regarding Proprietary Rights would constitute irreparable harm,
and that the aggrieved party shall be entitled to specific performance and/or
injunctive relief in addition to other remedies at law or in equity.
10. TERM AND TERMINATION
10.1 Term of Agreement. The initial term of this Agreement shall
commence as of the Effective Date hereof and shall continue for a period of
one (1) year.
10.2 Renewal. The initial term hereof shall automatically renew for
successive one (1) year terms upon reseller attaining either of the following
sales levels; (1) 15,000 sites sold, or (2) average daily sales of at least
120 sites (over 22 sales days for a total of 2,640 sites sold) in the month
prior to the start of new annual term. Upon renewal, Interweb will set new
average daily sales numbers and annual minimum sales levels to be met in the
following year and such amounts shall not be unreasonable taking into
consideration the then current year sales levels and in no event shall such
new levels be higher than 150% of the previous years levels. Both the
initial term and any renewal term are subject to earlier termination as
otherwise provided herein.
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10.3 Automatic Termination. Unless Interweb promptly after discovery of
the relevant facts notifies Reseller to the contrary in writing, this
Agreement will terminate immediately without notice upon the institution of
insolvency, bankruptcy, or similar proceedings by or against Reseller, any
assignment or attempted assignment by Reseller for the benefit of creditors,
or any appointment, or application for such appointment, of a receiver for
Reseller.
10.4 Termination by Interweb for Cause. Interweb may terminate this
Agreement and all licenses granted herein for a material breach by Reseller
which remains uncured after thirty (30) days from receipt by Reseller of
written notice describing the nature of the breach.
10.5 Termination by Reseller for Cause. Reseller may terminate this
Agreement for a material breach by Reseller which remains uncured after
thirty (30) days from receipt by Interweb of written notice describing the
nature of the breach.
10.6 Acknowledgment and Waiver. The parties acknowledge that the
provisions of this Section are essential, fair, and reasonable, and that the
occurrence of any of the events described herein shall constitute good, just,
and sufficient cause for the termination or nonrenewal of this Agreement.
The parties further acknowledge that any amounts spent in the performance of
this Agreement shall be spent with the understanding that this Agreement may
not be renewed. Accordingly, each party hereby waives any claim against the
other for loss or damage of any kind (including, without limitation, damages
or other compensation for unjust enrichment, loss of prospective profits,
reimbursement for expenditures or investments made, or commitments entered
into or goodwill), due to failure of the parties to renew this Agreement or
upon expiration to make a similar agreement.
10.7 Inventory Sell-Down Period. Upon the expiration hereof, but not in
cases of termination by Interweb for cause, Reseller may continue to
distribute its then-current inventory of Software Product(s), but in no event
no longer than three (3) months after expiration or termination. During this
period, the provisions of this Agreement shall continue in force to the
extent required for the limited purpose of permitting OEM to distribute its
current inventory of Software Product(s).
10.8 Continuing Obligations. The following obligations shall survive
the expiration or termination hereof and the distribution grace period
provided above: (i) any and all limitations of liability and Indemnities
granted by either party herein, (ii) any covenant granted herein for the
purpose of protecting the Proprietary Rights of either party or any remedy
for breach thereof, and (iii) the payment of taxes, duties, or any money to
Interweb hereunder.
11. DISPUTE RESOLUTION
11.1 Documentation. Except for actions to protect Proprietary Rights
and to enforce an arbitrator's decision hereunder, all disputes,
controversies, and claims arising out of the terms, operation, or
interpretation of this Agreement shall be initiated by a written demand for
resolution, documented in writing, and escalated through the appropriate
levels of management of each party, up to and including a corporate officer
responsible for this Agreement, until resolution of the issue is achieved or
those officers agree that the dispute cannot be resolved.
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11.2 Arbitration. If the dispute cannot be resolved by the parties as
provided above within thirty (30) days from the date of the written demand
for resolution, the dispute shall be resolved by binding arbitration under
the Commercial Arbitration Rules of the American Arbitration Association
("AAA") then in effect. The proceedings shall be held in Houston, Texas
under the auspices of the AAA. As a minimum set of rules in the proceeding,
the parties agree as follows:
11.2.1 The arbitration proceeding shall be held by a single
arbitrator mutually acceptable to the parties. If the parties cannot agree
on a single arbitrator within fifteen (15) days after the date written demand
for the appointment of an arbitrator is made, each party shall identify one
independent individual, and these individuals shall then meet to appoint a
single arbitrator. If an arbitrator still cannot be agreed upon within an
additional thirty (30) days, one shall be appointed by the AAA. The
arbitrator shall be knowledgeable regarding the personal computer and
software industries.
11.2.2 The parties shall equally bear the costs and fees of the
arbitration proceeding, and each party shall bear its own legal expense.
11.2.3 Any arbitration proceeding hereunder shall be conducted
on a confidential basis.
11.2.4 The arbitrator shall specify the basis of his/her
decision and the basis for any damages awarded. The decision of the
arbitrator shall be considered as a final and binding resolution of the
dispute, and may be entered as judgment in any court of competent
jurisdiction in the United States. Each party agrees to submit to the
jurisdiction of any such court for purposes of the enforcement of any such
decision, award, order, or judgment.
11.2.5 The parties shall agree upon what, if any, discovery will
be made available. If the parties cannot agree on the form of discovery
within fifteen (15) days of the written demand for the appointment of the
arbitrator, there shall be neither discovery nor the issuance of subpoenas.
In no event, however, shall any such discovery take more than one (1) month.
11.2.6 Neither party shall ▇▇▇ the other where the basis of the
suit is a disagreement arising directly under the express terms of this
Agreement except for (i) injunctive relief for Infringement or
misappropriation of Proprietary Rights, or (ii) enforcement of the
arbitrator's decision in the event the other party is not performing in
accordance with the arbitrator's decision.
12. GENERAL PROVISIONS
12.1 Notices. All notices shall be given in writing and shall be
effective when either (i) served by personal delivery, (ii) upon receipt of
mail sent as certified mail, return receipt requested, or (iii) upon receipt
of facsimile transmission if verified by a written or electronic record of
the transmission, provided that any such communication is addressed to the
parties at their respective addresses and/or facsimile numbers set forth
below, or to such other address or numbers as either party may later specify
by written notice or provide as part of the performance of this Agreement.
If to Interweb:
Houston Interweb Design, Inc.
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▇▇▇▇ ▇▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Contact: ▇▇▇ ▇▇▇▇▇▇▇
Telephone: (713) 627 - 9494
Facsimile: (713) 627 - 2744
If to Reseller:
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (972) 424 - 3531
Facsimile: (972) 881 - 9017
12.2 Merger; Amendment. This Agreement shall not be considered an offer
by either party, and it shall not be effective until signed by both parties.
This Agreement constitutes the entire understanding of the parties with
respect to the subject matter of this Agreement and merges all prior
communications, understandings, and agreements. This Agreement may be
modified only by a written agreement signed by the parties.
12.3 Independent Contractors. The relationship of the parties is that
of independent contractor, and nothing herein shall be construed to create a
partnership, joint venture, franchise, employment, or agency relationship
between the parties. Reseller shall have no authority to enter into
agreements of any kind on behalf of Interweb and shall not have the power or
authority to bind or obligate Interweb in any manner to any third party.
12.4 Severability. If any provision of this Agreement shall be held by
a court of competent jurisdiction to be contrary to law or public policy, the
remaining provisions shall remain in full force and effect.
12.5 No Implied Waivers. The failure of either party to enforce at any
time any of the provisions hereof shall not be a waiver of such provision, or
any other provision, or of the right of such party thereafter to enforce any
provision hereof.
12.6 Governing Law. This Agreement shall be construed under the laws of
the State of Texas, without regard to its principles of conflicts of law.
12.7 Force Majeure. Neither party shall be liable for damages for any
delay or failure of delivery arising out of causes beyond their reasonable
control and without their fault or negligence, including, but not limited to,
Acts of God, acts of civil or military authority, fires, riots, wars, or
embargoes.
12.8 Multiple Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each one of which shall be deemed
an original, but all of which shall constitute one and the same instrument.
12.9 Assignment. Reseller shall not assign this Agreement or any right
or interest under this Agreement, nor delegate any work or obligation to be
performed under this Agreement, without Interweb's prior written consent.
Any attempted assignment or delegation in contravention of this provision
shall be void and ineffective and shall be deemed to be a material breach
hereof.
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12.10 Change of Control. In the event of the direct or indirect taking
over or assumption of control or merger of Reseller or substantially all of
its assets by any government authority or other third party, Interweb shall
have the right to terminate this Agreement upon first giving written notice
to Reseller.
12.11 Attached Exhibit(s). This Agreement includes the attached
exhibit(s) listed below, which are hereby incorporated in this Agreement by
reference.
Confidential Product and Price List Exhibit
Sublicense Terms Exhibit
Technical Support Terms Exhibit
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed below.
HOUSTON INTERWEB DESIGN, INC. Reseller:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇ - CEO ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer Title: Chief Executive Officer
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Date: 6-5-98 Date: 6-9-98
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HB_____ HW_____ 12