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SOFTWARE UPLOAD, EVALUATION AND PUBLISHING AGREEMENT
This Software Upload, Evaluation and Publishing Agreement (the Agreement), effective the date the product submission (the Effective Date) is entered into by and between the individual/company submitting a product to SoftwareDirect.com (Author) and ValuSoft, a division of THQ Inc., a Delaware Corporation, having offices at 711 South Pine Street, Waconia, Minnesota 55387, USA (ValuSoft).
Premises
Author has created and owns certain computer software products (Software) and desires to submit a copy of the Software to ValuSoft to make a no-obligation evaluation of the Software. In conjunction with such evaluation of the Software, Author offers to ValuSoft the right to distribute, publish, and commercially exploit any or all of the Software as determined in the sole discretion of ValuSoft via the "SoftwareDirect.com" web site.
ValuSoft wishes to evaluate the Software and to select, in the sole discretion of ValuSoft, any or all of such Software that ValuSoft desires to distribute, publish, and commercially exploit, all upon the terms and conditions set forth in this Agreement.
In consideration of the premises and mutual covenants, agreements and promises hereinafter set forth, the receipt and adequacy of which is hereby acknowledged, Author and ValuSoft agree as follows:
Definitions
A. Software: All or any part of the object code and source code computer software as described in Article 13, together with any and all user manuals, operator guidelines and other materials related to the Software that are intended to assist or inform a user or distributor of the Software to understand the specifications, requirements, performance capabilities, and features of the Software, regardless of the form of such materials (collectively, the Documentation), all of which may from time to time be modified by ValuSoft and/or Author.
B. Upload: The act of Author electronically submitting Software to ValuSoft at the SoftwareDirect.com web site of ValuSoft (URL: www.softwaredirect.com) for the evaluation by ValuSoft, and possible selection by ValuSoft for rights of distribution, publishing, and commercial exploitation of the Software under the terms of this Agreement.
ARTICLE 1.
1. TERM
This Agreement shall commence on the earlier of Effective Date or the first date Author performs an Upload and, if any or all of such Software is selected by ValuSoft under this Agreement, then the term of this Agreement shall remain in full force and effect for an initial term of three (3) years from the Effective Date. This Agreement may be extended for an additional twelve (12) month period provided both parties agree to such extension in writing at least three (3) months prior to the expiration date of this Agreement.
ARTICLE 2. OPTION TO EVALUATE UPLOADED SOFTWARE
2.1) During the Evaluation Period, ValuSoft shall have the right to perform a no obligation evaluation of such Software to determine whether the Software meets the selection criteria of ValuSoft. The selection criteria shall be established in the sole discretion of ValuSoft and may be changed from time to time by ValuSoft without notice to Author.
2.2) During the Evaluation Period, ValuSoft shall be free to select any or all of the Software and may apply any or all specific selection criteria in the sole discretion of ValuSoft.
2.3) If any Software is selected by ValuSoft for distribution, publishing, and commercial exploitation, then prior to the end of the Evaluation Period, ValuSoft shall notify Author about the portions of the Software that ValuSoft has selected and such Software shall be fully subject to the terms of this Agreement from the date of Upload.
2.4) If the Software is selected by ValuSoft for distribution, publishing, and commercial exploitation, ValuSoft reserves the right to remove the selected Software from the publishing and distribution medium at any time if the Software contains material or content deemed inappropriate by ValuSoft.
ARTICLE 3. LICENSE RIGHTS OF VALUSOFT IN THE SOFTWARE
3.1) Author hereby grants to ValuSoft, without limitation, the following royalty-bearing, irrevocable, worldwide, transferable right and license in and to any and/or all Software selected by ValuSoft pursuant to this Agreement, including, without limitation:
(a) The right to copy, use, promote, distribute, transmit, publicly perform, display publicly, translate, export, import, market, promote, encrypt and otherwise distribute, publish, and commercially exploit the Software in whole or in part, separately and/or as part of other products, bundled or otherwise, in association with SoftwareDirect.com; and including the right to grant third party end-users the right to use, perform and display the Software in whole or in part, and all related rights in all channels of distribution or trade now known or later devised, electronically or in any other form or medium now known or later devised, under the ValuSoft label or the label(s) of any other person or organization;
(b) The right of first refusal on any new retail publishing contracts;
(c) The right to further develop any documentation including hints and strategies for use of the Software in any form or medium now known or later devised;
(d) The right to sue for and collect damages relating to the infringement of any proprietary right associated with the Software; and
(e) The right to make a reasonable number of promotional transfers of the Software for no consideration as a part of ValuSoft's efforts to distribute, publish, and commercially exploit the Software.
3.2) The rights licensed to ValuSoft under this Article 3 shall be collectively referred to as the "Licensed Rights."
ARTICLE 4. OBLIGATIONS OF VALUSOFT
ValuSoft shall diligently and in good faith exert reasonable efforts to distribute, publish, and commercially exploit the Software.
ARTICLE 5. OBLIGATIONS OF AUTHOR
5.1) Author shall Upload the best edition of the Software on the Effective Date.
5.2) Author shall provide reasonable technical support to ValuSoft and customers of SoftwareDirect.com who purchase Software via SoftwareDirect.com. Technical support will be conducted by Author via telephone, e-mail, facsimile transmission, or as otherwise requested by ValuSoft. Author warrants that such technical support shall be performed diligently and in good faith and shall be accurate and complete at the time of performance. Author shall use its best efforts to promptly identify for ValuSoft any errors in the Software that prevent or interfere with the Software's operation and performance in accordance with the Documentation, and Author shall, at its expense, promptly correct any and all such errors.
5.3) Author shall provide to ValuSoft each additional updated and/or revised edition of the Software as may be created by Author, or on behalf of Author, promptly upon completion of such updated and/or revised editions without charge or obligation to ValuSoft. If, in its sole discretion, ValuSoft elects to make such updated and/or revised editions a part of the Software, they shall become subject to the provisions of this Agreement.
5.4) Upon the written request of ValuSoft, and pursuant to such written request, Author shall perform such other consulting and/or computer software programming services as may be reasonably requested by ValuSoft. Any and all work product and/or deliverables developed by Author in connection with the performance of such services shall be a "work made for hire" and exclusively owned by ValuSoft.
5.5) Upon the written request of ValuSoft, at the expense of ValuSoft, Author shall take such actions as may be reasonably necessary in connection with the distribution, publishing and commercial exploitation of the Software, including without limitation, the granting of interviews; radio, television, and web cast appearances; signing events, appearances at stores and other facilities; and participation in trade shows and exhibitions. Author hereby authorizes and consents to ValuSoft's use of Author's name, image, likeness, signature, statements, quotes, and voice in any form or medium now known or later devised in connection with the distribution, publishing, and commercial exploitation of the Software, and Author waives any rights of privacy or publicity with respect to ValuSoft's distribution, publishing, and commercial exploitation of the Software.
5.6) Author shall refrain from making any disparaging and/or critical statements and/or comments about ValuSoft and/or the Software. Author shall refrain from taking any actions that could impair ValuSoft's ability to distribute, publish, and commercially exploit the Software; or that could injure the goodwill or reputation of ValuSoft.
5.7) Upon the request of ValuSoft, Author shall take such actions and execute such documents as may be reasonably requested by ValuSoft to protect, perfect, or enforce ValuSoft's rights under this Agreement, and/or to otherwise accomplish the purposes of this Agreement.
5.8) Author shall use SoftwareDirect.com customer information including without limitation, name, e-mail address, mailing address, and phone number solely for purposes of providing Software technical support to customer. Author shall NOT share SoftwareDirect.com customer information with any third party without the express written consent of ValuSoft.
ARTICLE 6. THIRD PARTY APPROVAL
6.1) Author shall be solely responsible for obtaining any and all consents, permits, licenses, releases, and any other authorizations required in connection with the use of any third party computer software, trademarks or service marks, copyrighted materials, patented materials, or any other proprietary materials of any kind whatsoever used as a part of or in connection with the Software (collectively, the "Third Party Materials").
Upon the request of ValuSoft, Author shall provide ValuSoft with true and accurate copies of any and all documents and instruments relating to any Third Party Materials (the "Third Party Agreements").
6.2) Author shall not enter into any additional Third Party Agreements relating to such Software without receiving the prior written consent of ValuSoft.
ARTICLE 7. REPRESENTATIONS AND WARRANTIES AND RELATED INDEMNITY BY AUTHOR
7.1) Author represents and warrants to ValuSoft that:
(a) Author is at least eighteen (18) years of age;
(b) As applicable, Author is a duly organized and validly existing business entity, or is acting in a personal capacity, and in either event has full authority to enter into and perform Author's obligations under this Agreement;
(c) Author's execution of this Agreement creates a legally binding obligation on the part of Author;
(d) Author currently owns all right, title and interest in and to the Software and the Licensed Rights, and the Software and the Licensed Rights constitute all of the necessary computer software and proprietary rights necessary to distribute, publish, and commercially exploit the Software;
(e) The Software and the Licensed Rights are not subject to any liens, claims, charges, encumbrances, security interests, or restrictions of any kind whatsoever;
(f) All of the Third Party Agreements are in full force and effect, and Author has no notice or knowledge of any facts or circumstances that might constitute a breach of any of the Third Party Agreements;
(g) ValuSoft's distribution, publishing, and commercial exploitation of the Software and/or exercise of the Licensed Rights shall not infringe on the proprietary rights of any other person or organization, including without limitation, any rights of copyright, patent, trademark and service mark rights, and any and all other proprietary rights of any kind whatsoever;
(h) Author has sufficient experience, training, resources, and computer and telecommunications equipment and expertise to provide technical support for the Software and otherwise perform its obligations under this Agreement;
(i) The Software does not contain malicious or potentially malicious code, including viruses, worms, trojans or equivalent; and
(j) The Software does not contain code that gathers and transmits information about a person or organization without their knowledge, including spyware, adware, or equivalent.
7.2) Author shall promptly indemnify, defend, and hold harmless ValuSoft from, against, for, and in respect of, and pay any and all damages, losses, obligations, liabilities, claims, encumbrances, deficiencies, costs, and expenses, including without limitation, reasonable attorney's fees and other costs and expenses incidental to any suit, action, investigation, claim, or proceeding, sustained, incurred, or required to be paid by ValuSoft which relate to: (i) Authors breach of any of its representations and warranties under this Agreement; (ii) Author's failure to perform any of its obligations under this Agreement; or (iii) an allegation that the distribution, publishing, and commercial exploitation of the Software and/or the exercise of the Licensed Rights infringes or otherwise violates any proprietary right of another person or organization. In the event any claim is asserted against ValuSoft which gives rise to an indemnification obligation on the part of Author, ValuSoft shall be entitled to retain for itself any or all royalties payable to Author pursuant to the provision of Article 9 as security for Author's performance of its indemnification obligations.
7.3) The representations, warranties, and indemnification obligations of Author shall survive the termination of this Agreement.
ARTICLE 8. MARKS, NOTICES, AND LABELING
8.1) The Software shall be distributed, published, and commercially exploited under the corporate name, trade names, and trademarks and service marks of ValuSoft (collectively, the "Marks"). Author shall have no rights or interests in the Marks, and shall not adopt, use, register, or attempt to register any corporate name, trade name, trademark or service mark the same as or substantially similar to any of the Marks.
8.2) The Software and any packaging shall bear proprietary notices and legends as may be reasonably necessary to protect and preserve the proprietary rights of ValuSoft and Author in the Software.
8.3) The Software and any packaging shall credit Author as an author or contributing author of the Software.
ARTICLE 9. ROYALTY STRUCTURE
9.1) ValuSoft shall pay Author a royalty on a calendar quarter basis in an amount equal to seventy-five percent (75%) of the "net sales price" received by ValuSoft from the sale of single copies of the Software. The term "net sales price" shall mean the gross sales price received by ValuSoft from the sale of single copies of the Software, reduced by sales, use, value-added, and other transaction taxes, shipping and delivery charges, refunds, and returns of the Software, and further reduced by engine licensing fees and fees under Third Party Agreements paid in connection with the Software. In the event the Software is sold as a component of a product containing other products (a "Bundled Product"), Author shall be paid a royalty on a calendar quarter basis, in an amount equal to seventy-five percent (75%) of the "net sales price of the Software as a component of a Bundled Product." The term "net sales price of the Software as a component of a Bundled Product" shall mean the gross sales price received by ValuSoft from the sale of the Bundled Product, reduced by sales, use, value-added and other transaction taxes, shipping and delivery charges, refunds, and returns of the Bundled Product, and further reduced by engine licensing fees and fees under Third Party Agreements paid in connection with the Bundled Product, and then divided by the number of products that are components of the Bundled Product. Royalties shall be paid to Author within thirty (30) days after the end of each calendar quarter.
9.2) ValuSoft shall maintain such books and records as are necessary to verify the accuracy of the royalty payments made to Author pursuant to this Article.
ARTICLE 10. TERMINATION
10.1) Except as otherwise provided in this Agreement, in the event a party is given notice that it is in material breach of this Agreement, it shall have thirty (30) days from receipt of notice to cure the breach in all material respects. In the event of a failure to cure such material breach, the non-breaching party may then terminate this Agreement immediately.
10.2) In the event any person or organization asserts a claim against ValuSoft which alleges that the distribution, publishing, and commercial exploitation of the Software, or the exercise of the Licensed Rights, infringes the proprietary rights of another person or organization, ValuSoft shall have the right to immediately terminate this Agreement.
10.3) Upon termination of this Agreement for any reason, ValuSoft shall have the right to continue the distribution, publishing, and commercial exploitation of the Software in its inventory as of the date of termination for a period of one hundred eighty (180) days following the termination date of this Agreement (the "Extended Period"). Within ninety (90) days after the end of the Extended Period, ValuSoft shall pay the amount of the Retained Royalties, if any, to Author.
ARTICLE 11. CONFIDENTIALITY
All of the trade secrets and other confidential information of ValuSoft, including without limitation, methods, processes, marketing plans, strategic plans, customer lists, computer software, and financial information shall be maintained in confidence, and Author shall not, during the term of this Agreement or subsequent to the termination of this Agreement, whether such termination is voluntary or involuntary, divulge to any person or organization, or use in any manner whatsoever, directly or indirectly, for any reason whatsoever, any of the trade secrets or confidential information of ValuSoft without receiving the prior written consent of ValuSoft.
ARTICLE 12. MISCELLANEOUS
The provisions of this Agreement shall not in any respect whatsoever be deemed to create a partnership, joint venture, or other business combination between ValuSoft and Author. Injunctive or other equitable relief shall be a remedy available to either party in the event of a breach of any provision of this Agreement by the other party, but such remedy shall not be the exclusive remedy available to the parties. ValuSoft shall not be liable to Author for any indirect, consequential, incidental or special damages relating to its performance or failure to perform under this Agreement. The maximum liability of ValuSoft under this Agreement shall not exceed the aggregate amount of royalties paid to Author hereunder during the six (6) month period immediately preceding the date Author asserts any claim. ValuSoft disclaims any and all representations and warranties relating to the operation, use, or performance, as applicable, of any products or services associated with the Software. Any notices required or permitted to be given under this Agreement shall be sufficient if in writing and personally delivered or sent by certified mail or express courier to the other party at its address set forth in this Agreement, or at such other address as the parties shall designate in writing by personal delivery, certified mail, or express courier. Any and all section references in this Agreement shall refer to other sections contained in this Agreement. The provisions of this Agreement which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination of this Agreement. Author shall not, without the prior written consent of ValuSoft, assign its rights or delegate its duties under this Agreement. The waiver of any provision or the breach of any provision of this Agreement shall not be effective unless made in writing. Any waiver by either party of any provision or the breach of any provision of this Agreement shall not operate as or be construed to be a continuing waiver of the provision or the breach of the provision. This Agreement shall be governed by the laws of the State of Delaware. For the purpose of resolving conflicts related to or arising out of this Agreement, the parties expressly agree the venue shall be in the State of Delaware only, and, in addition, the parties hereby consent to the jurisdiction of the federal and state courts in the State of Delaware. In the event any portion of this Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this Agreement. This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof, there being no terms, conditions, warranties, or representations other than those contained in this Agreement, and no amendments shall be valid unless made in writing and signed by the parties to this Agreement.
ARTICLE 13. DESCRIPTION OF THE SOFTWARE AND DOCUMENTATION
All files submitted via SoftwareDirect.com web form by Author
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