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DISTRIBUTOR AGREEMENT
This Agreement made this
________________ day of __________________,
2003, by and between
HTP Company (hereinafter called HTP), a corpora-
tion incorporated under
the laws of the State of California, United States
of America, having its
principal place of business at Thousand Oaks, CA,
U.S.A., and
_____________________________________, (hereinafter called
“Distributor”), a
corporation organized and existing under the laws of
_________, having its
principal place of business at ___________________.
Definitions:
For the purposes of this
agreement
“Customers” means end users of Products in the Region.
“Products” mean the software products of HTP described in
Appendix A attached hereto, and associated enhancements
and updates hereof. Updates do not include modifications
which HTP designates and markets as new products for which
it charges separately.
“Region” means _____________________
“Software License Agreement” means the agreement attached
hereto in Appendix B.
“Trademarks” means the trademarks
Witnesseth:
WHEREAS, HTP is engaged in
the design, manufacture and license of
Products and has the right
to appoint distributors therefore, and
WHEREAS, Distributor
desires to act as the non-exclusive distributor for
HTP in the Region.
NOW THEREFORE, for and in
consideration of the mutual promises and
Covenants herein contained
and other good and valuable consideration, the
Parties hereto agree as
follows:
U.S. Distributor Agreement
1.
APPOINTMENT
HTP hereby appoints Distributor as it non-exclusive distributor in
the region for the Products, and grants Distributor the following
rights and licenses:
·
The right to use the Products solely for
demonstration purposes.
·
The license to use the Trademarks,
solely in connection with its
Marketing and distribution of Products
hereunder.
·
The right to distribute Products to
Customers, except for
accounts listed in Appendix C, on such terms as
are set
forth or referred to herein, subject to the
terms of the
Software License Agreement, and otherwise at
prices and
on terms determined by the Distributor.
2.
ACCEPTANCE
Distributor accepts the appointment and agrees to use its best efforts to
promote vigorously the marketing and distribution of the Products within the
Region. In carrying out its duties hereunder, Distributor shall comply
with
such policies and standards of HTP as shall be announced by HTP from time
to time. Distributor shall market products in accordance with the Sales
Plan
attached hereto as Appendix C.
3.
ORDER PROCEDURE AND TERMS
(a)
Orders and Credit
Orders for Products will be placed by Distributor with HTP, in
Accordance with HTP’s order procedures. Distributor will make
payments
to HTP in U.S. dollars within 30 days after the date of invoice for Products
shipped to Distributor by HTP. Distributor will provide financial
statements
and references for the establishment of its initial credit line. HTP may
revoke
such open account terms should Distributor fail to make payments according
to the terms set out above or fail to provide satisfactory financial statements
or references, in which event HTP may require Distributor to accompany its
orders with irrevocable letters of credit or impose such other terms as HTP
may deem advisable.
U.S Distributor Agreement
(b)
Shipments
All shipments of Products shall be F.O.B. HTP’s facility in Thousand
Oaks, CA. Distributor will
assume all risks of loss or damage to Products
upon delivery to the carrier at the point of shipment. Unless Distributor
provides specific shipping instructions at the time of order, HTP will select
the carrier and ship on behalf of Distributor to Distributor’s address as set
forth in this agreement. All arrangements for transportation and insurance
will be made by HTP for Distributor’s account.
(c)
Controlling Terms
The terms and conditions of this agreement and of the applicable HTP
invoice or confirmation will apply to each order accepted or shipped by HTP
hereunder. The provisions of Distributor’s form of purchase order or other
business forms will not apply to any order notwithstanding HTP’s acknow-
ledgement or acceptance of such order.
(d)
Cancellation
HTP reserves the right to cancel any orders placed by Distributor and
accepted by HTP as set forth above, or to refuse or delay shipment thereof, if
Distributor (i) fails to make any payment as provided in this agreement or on
the terms of payment set forth in any invoice or otherwise agreed to by HTP
and Distributor, (ii) fails to meet reasonable credit or financial requirements
established by HTP, including any limitations on allowable credit, or (iii)
otherwise fails to comply with the terms and conditions of this agreement.
HTP also reserves the right to cancel any orders for discontinued Products
without liability of any kind to Distributor or to any other person. No
such
cancellation, refusal or delay will be deemed a termination (unless HTP so
advises Distributor) or breach of this agreement by HTP.
4.
PRICES
HTP shall invoice Distributor at time of shipment, F.O.B. HTP’s
facility in CA, for all Products shipped. Prices shall be in accordance
with
the current price list, as amended from time to time. Prices include
packaging, but do not include prepaid insurance or transportation charges.
U.S. Distributor Agreement
HTP shall have no liability for any sales, use, property or other
taxes, customs charges, import fees or other costs assessed or charged by
any governmental authority with respect to any sale or licensing of any of
the Products hereunder, and Distributor shall indemnify and hold HTP
harmless from and against any liability or obligation therefore.
The current price lists are attached hereto as Appendix D, which
may be revised by HTP from time to time.
HTP agrees to notify Distributor at least 60 days in advance of the
effective date of any price increase, by delivery to Distributor of a
replacement Appendix D.
Product Pricing:
1.
Product pricing will be list price less
_________ percent discount off
single copy server prices.
2.
Teamwork Project Environments which will
be discounted by
_________ percent off list price.
3.
A discount will be given off HTP’s
University Price list. HTP will
discount by _________ percent on products sold
in accordance with
HTP’s university sales policies to recognized
universities or
educational institutions. Special
conditions apply to University
licenses which should be discussed with HTP
Marketing before
quotations are made.
4.
HTP will pay a commission on GSA orders
referred to HTP from
distributor. HTP will pay _________
percent to distributor on GSA
orders.
5.
Trial versions of Teamwork are not
discountable. See pricing in
Appendix D.
Maintenance:
Option 1. Distributor shall
provide primary source of maintenance to
Customers. Distributor will pay a 12% fee on cumulative sublicense fees
paid to HTP. Maintenance fees will be payable on a quarterly basis.
Option 2. HTP will be the sole source of Teamwork maintenance and
therefore only initial maintenance orders will be discounted. The discount
on maintenance orders will be the same as product discount rates above.
Renewal contracts will be sold by HTP.
Refer to Section 6 for description of Maintenance options.
U.S. Distributor Agreement
Education Services:
The following services available through HTP FSE’s or HTP approved
consultants are not discountable to distributor. However, these services
may be made available to distributor’s customers by requesting and
coordinating services with the local HTP sales office. In addition, should
distributor choose to provide similar services directly to their customers,
distributor may acquire rights to use the HTP training materials.
Services provided by HTTP:
- Teamwork
Product Training
- Teamwork
System Administrator Training
- Methods
and Executive Education Training
5.
TRAINING
HTP shall provide training in sale
and use of Teamwork as follows:
(a) HTP shall conduct at no charge
____(#)_________ courses for a maximum
per course of ____(#)________ sales
and technical specialists appointed by
Distributor and (b) HTP will provide additional courses at HTP’s current
price for such courses. Location to be determined and may be at HTP’s
offices in Thousand Oaks, CA.
Distributor will be responsible for all
specialist’s salary, travel, and living expenses related to training.
Distribuor’s personnel are expected to be skilled in general software
engineering techniques, capable of using the current range of workstations
on which the Products operate, and skilled in system selling to major
accounts. Distributor should also be able to support on site installation,
training, and sytem’s administration.
6. MAINTENANCE
Option 1. Distributor shall
provide software training and maintenance
service to Customers generally in line with the maintenance offered by HTP
to its domestic customers. Maintenance services provided to Customers
shall be at least of the scope of the services described in Appendix E – Option
1 attached hereto. HTP will provide second line support to Distributor
from
its office in Thousand Oaks, CA.
U.S. Distributor Agreement
Option 2. Distributor shall provide software training and support
services to its prospective Customers generally in line with the services
offered by HTP to its domestic customers. Maintenance services provided
to Customers shall be at least of the scope of the services described in
Distributor selects option ________________________. Refer to Section 4
for pricing.
7.
CATALOGS, LITERATURE, SALES AIDS, PREPAID
LICENSES, DEMONSTRATION EQUIPMENT
HTP agrees to provide Distributor
with an initial supply of
catalogs and advertising matter for Distributor to distribute among
prospective Customers. HTP also agrees to make available price lists,
photographs, video-tapes, press releases, demonstration scripts and
bulletins prepared by HTP in the ordinary course of business.
When additional marketing and promotional materials are
required, Distributor shall order same from HTP at the prices set forth
in Appendix F.
Distributor will prepay Teamwork licenses in the amount set
forth in Appendix C. Prepaid licenses are due at the time of signature of
this agreement. Payment will be non-refundable.
HTP will provide _____(#)_________ free demonstration sets of
Products to be used by Distributor to promote the sale of Products. HTP
will provide free updated software and documentation updates for the
demonstation sets. Telephone support will be provided to ____(#)________
technical support contracts designated by Distributor. Additional
demonstration sets can be ordered at price set forth in Appendix F and are
subject to upgrade fees.
Distributor will maintain an adequately configured computer
System to demonstrate Products.
U.S. Distributor Agreement
8.
COMPLIANCE WITH GOVERNMENTAL REGULATIONS
Distributor understands that HTP is subject to U.S. Government
regulation, under which export or diversion of HTP Products and software
to certain foreign countries is prohibited. Distributor agrees that it
will not
export, outside the Region, directly or indirectly, any Products or technical
data relating to Products, without the consent of HTP and clearance under
applicable regulations.
9.
DISTRIBUTOR NOT AN AGENT
HTP and Distributor are independent contractors and are not,
and shall not represent themselves as, principal and agent or joint
venturers. Distributor shall act as a principal on its own behalf and is
not authorized to act for or obligate HTP in any manner.
10.
PROPRIETARY RIGHTS
Distributor agrees not to disclose any technical or proprietary
information disclosed to it by HTP. Distributor acknowledges that HTP
retains all copyrights and other proprietary rights to the Products, and that
Distributor obtains only the rights to Products specifically granted in Section
1 hereof.
No product shall be sold to a Customer unless Distributor shall
prior to such transfer have obtained from the Customer a signed copy of the
Software License Agreement, copies of all of which shall be furnished to
HTP with Distributor’s order, except in the case of PCSA, in which case the
standard PCSA license agreement will be provided to customer at the time
of purchase.
HTP shall have the right to change the form of the Software License
Agreement from time to time, which Distributor will utilize for future sales
activity.
11.
ASSIGNABILITY
Neither this agreement nor any of the rights granted under it shall
be assignable by Distributor unless the written consent of HTP shall have
first been obtained.
U.S. Distributor Agreement
12.
NON-COMPETITION
Distributor agrees that during the term of this agreement and
during the six months following termination for any reason, it will not
represent, or sell product of, any company in the CASE market that is in
competition with HTP.
13.
DURATION
This agreement shall commence on the date first above written
and shall remain in full force and effect for a period of twelve months from
the date of execution. This agreement shall be automatically extended from
year to year upon agreement to Sales Plan Objectives for the following year.
Either party may terminate the same without cause, by giving written notice
to the other party at least 60 days prior to desired termination date.
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