Print, Sign, Mail, or Fax (1-602-577-2181) this document to the
Agreement (this "Agreement") is made effective upon
receipt of this signed agreement between ProForce Software Corporation
of 16734 La Montana Drive Ste. #103 Fountain Hills Arizona 85268
USA, and vendor listed below. In the Agreement, the party who
is granting the right to sell the licensed property will be referred
to as "the Publisher", and the party who is receiving
the right to sell the licensed property will be referred to as
"Vendor". The parties agree as follows:
1. GRANT OF
LICENSE. Subject to the terms of the Agreement,the Publisher grants
Vendor a limited, revocable, nontransferable, nonexclusive license
to use the to market and sell the Publishers software archive
("Software"). The Publisher retains title and ownership
of the Software. Vendor shall not reproduce, store, modify, publish,
transmit, distribute, perform, display, market, modify, translate,
reverse engineer, decompile, disassemble, rent, lease, grant a
security interest in or otherwise transfer or participate in the
transfer or sale of, create derivative works based on, remove
or deface any legends, restrictions, product identification, copyright,
trademark or other proprietary notices from, or in any way exploit,
any Software or web site, Content, Products, or Services in whole
or in part except as expressly permitted under the Agreement;
provided, however, that a Vendor may make copies of the ProForce
software, web pages in a computer server system when providing
a consumer storefront site for selling ProForce software, and
for its own internal use in maintaining the same.
The Publisher warrants that it owns and possesses all rights and
interests in the Software necessary to enter into this Agreement,
and shall indemnify, defend and hold Vendor, its agents and employees,
harmless from any loss, damage or liability for infringement of
any US patent right or copyright or other property right with
respect to the use of the Software delivered thereunder; provided,
that Vendor permits the Publisher to defend, compromise, or settle
said claim or infringement and gives the Publisher all available
information, assistance and authority to enable the Publisher
to do so.
3. SETUP FEES.
Vendor will forward to Publisher an initial setup fee of $125.00
when this software agreement is submitted.
By submission of Software Vendor agreement via this web site,
fax, or mail, the Vendor agrees to the terms and conditions set
forth herein, including all subsequent software programs available
at a later date.
FOR THE SOFTWARE. Vendor will market, sell and collect the most
current retail purchase price for said Software through it's online
storefront. Vendor will execute a daily sales report, and forward
it to Publisher. Publisher will ship sale reported products directly
to retail purchasers, in a timely fashion. At the end of each
month, that month's sales will be tallied by Publisher, and a
bill will be submitted to Vendor at the wholesale discount of
35% off retail. Payment shall be made to the Publisher at the
agreed rate for each copy sold. Payment shall be mailed to the
Publisher within 10 days of the first of the month in which the
billing statement is sent. With each bill, Publisher will submit
to The Vendor a printed or electronic report of the shipments
for that month.
Vendor shall keep accurate records regarding the quantities of
the Software that are sold. A written or electronic report of
the quantity of shipments shall be provided with the monthly statement,
by Publisher. Individual shipment and sales information from each
retail sale is to be provided the same day, to the Publisher for
shipment purposes. The Vendor is NOT to redistribute this information
to any third party for any purposes whatsoever.
Unless the prior written consent of The Publisher is obtained,
Vendor may not modify, duplicate, or change the Software in any
Refunds will only be issued for defective products. The purchaser
is required to return software in new condition to Publisher,
by certified postal service within the first 30 days of the purchase.
When a purchaser requests a refund, Vendor will first contact
the Publisher by e-mail with the refund request information to
allow the Publisher the opportunity to resolve the issues directly
with the purchaser. Vendor shall never l issue a refund unless
a) instructed to do so by the Publisher within the first 30 days
of the purchase or b) the customer is not satisfied with the publisher's
response AND submits a signed "Letter of Software Intellectual
Property Destruction" received at Vendor's offices within
30 days of the purchase date. An amount equal to the original
purchase will be debited from the Publisher's account to cover
the refund cost.
Vendor's responsibility for customer support ends with the successful
delivery of the software package to the customer. Vendor will
not be responsible for providing technical support to purchasers
of the Software and shall refer all such inquiries to the Publisher.
If Vendor fails to abide by the obligations of this Agreement,
The Publisher shall have the option to cancel this Agreement by
providing 30 day(s) written notice to Vendor.
All disputes under this Agreement that cannot be resolved by the
parties shall be submitted to arbitration under the rules and
regulations of the American Arbitration Association. Either party
may invoke this paragraph after providing 30 days written notice
to the other party. All costs of arbitration shall be divided
equally between the parties. Any award may be enforced by a court
Vendor does not make any warranties with respect to the use, sale
or other transfer of the Software. Vendor shall take reasonable
measures to ensure that no warranty misrepresentations are made.
OF RIGHTS. This Agreement shall be binding on any successors of
the parties. Neither party shall have the right to assign its
interests in this Agreement to any other party, unless the prior
written consent of the other party is obtained.
The term of the Agreement shall commence on the date that the
Agreement is signed, delivered, and accepted by both parties.
ProForce shall have the right to terminate the Agreement, without
prior notice or liability, if Vendor breaches any term, condition,
rule or policy of the Agreement, does not maintain and keep current
the Vendor Site or cease to provide consumer credit card Service(s),
or fails to comply with any applicable law. Vendor may terminate
the Agreement at any time by providing ProForce with written notice
of its intent to terminate. Upon termination of the Agreement,
Vendor's right to use the ProForce Services and to provide Vendor
storefront Site shall immediately cease and Vendor acknowledges
and agrees that Vendor shall delete all ProForce materials from
all computers, Internet servers, and storage devices. Vendor agrees
that upon termination of the agreement Vendor will: (1) pay any
and all outstanding fees and payments due to ProForce in full
within thirty (30) days after termination; (2) perform its obligations
under all outstanding sales or purchases; and (3) not disclose
any information that ProForce has designated as confidential.
All warranty disclaimers, waivers of liability, indemnification
provisions and the miscellaneous provisions herein shall survive
the termination of the Agreement.
AGREEMENT. This Agreement contains the entire agreement of the
parties and there are no other promises or conditions in any other
agreement whether oral or written. This Agreement supersedes any
prior written or oral agreements between the parties. Vendor reserves
the right to refuse to include the any single Software product
in the Virtual Software Store for any reason Vendor deems the
software to be unsuitable.
This Agreement may be modified or amended, if the amendment is
made in writing and is signed by both parties.
If any provision of this Agreement shall be held to be invalid
or unenforceable for any reason, the remaining provisions shall
continue to be valid and enforceable. If a court finds that any
provision of this Agreement is invalid or unenforceable, but that
by limiting such provision it would become valid or enforceable,
then such provision shall be deemed to be written, construed,
and enforced as so limited.
OF CONTRACTUAL RIGHT. The failure of either party to enforce any
provision of this Agreement shall not be construed as a waiver
or limitation of that party's right to subsequently enforce and
compel strict compliance with every provision of this Agreement.
LAW. This Agreement shall be governed by the laws of the State
Vendor shall not assign (including without limitation, any assignment
by operation of law), transfer, or sub-license any right under
the Agreement (or delegate any obligation under the Agreement)
(collectively, "Assign") without the prior consent of ProForce,
which consent shall not be unreasonably withheld, and any attempt
to do so shall be void and without effect. Vendor hereby gives
its consent for ProForce to Assign the Agreement at ProForce's
OF LIABILITY. Vendor shall not be liable for any direct, indirect,
special, incidental or consequential damages, whether based on
contract, tort or any other legal theory, arising out of any use
of the Software or any performance of this Agreement. Notwithstanding
any other provision of this Agreement, Vendor's liabilities under
this Agreement, whether under contract law, tort law, warranty
or otherwise, shall be limited to direct damages not to exceed
the amounts actually received by Vendor from the Publisher pursuant
to this Agreement. No action, regardless of form, arising out
of any transaction under this Agreement may be brought by either
party more than one year after the injured party has actual knowledge
of the occurrence which gives rise to the cause of such action.
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