Типовой дистрибьюторский контракт на программное обеспечение



Model Software Distribution Agreement



(на английском языке)

(APPLE COMPUTER, INC.)



Международные контракты на программное обеспечение


Настоящий контракт разработан компанией Apple Computer Inc. для сбыта фирменного ПО для компьютеров MAC. См. универсальный контракт № I1.C2, составленный с учетом положений данного контракта для регламентации сбыта любых программных продуктов и баз данных.


Licensee _____________

Individual to Contact _________________

Street Address _______________________

City ___________________

Telephone Number: ___________________

Internet Address(es) : XX@XXXX.Net (*An Internet Address is required to obtain product updates under this Agreement).

X Computer, Inc. ("X") and Licensee agree that the following terms and conditions shall govern Licensee's use and distribution of the X Software. 


1.DEFINITIONS


1.1 "X Software" means the object code form of the X Software program identified in Exhibit B as the "X Software" and any subsequent version(s) of the X Software that X notifies Licensee will be covered by this Agreement.

1.2 "Distributor" means an individual or entity that is licensed by Licensee or another Distributor to distribute Licensee Programs to End-Users or other Distributors.

1.3 "End-User" means an individual or entity that licenses Licensee Programs for his or its own personal or business purposes, and not for license to others.

1.4" Licensee" means the licensee listed above.

1.5" Licensee Programs" means Licensee's own computer programs listed and described in Exhibit C.

1.6"...as incorporated in Licensee Programs..." means that (i) Licensee Programs depend upon X Software for certain elements of their operation and functionality; (ii) Licensee Programs access X Software functionality by means of programing libraries and programming interfaces, separately available from X; (iii) Licensee Programs incorporate X Software by reference by compilation with, and linking to these programming libraries and programming interfaces; and (iv) X Software is not distributed independently of Licensee Programs which depend on X Software. Licensee Programs may be distributed independently of X Software.

1.7 "Volume Licensing Program" means a software licensing program that authorizes use of the X Software only as incorporated in Licensee Programs on multiple computers - either a specific number of computers, or for a number of computers within a specific number range, where that number does not exceed 2000 computers.

1.8 "Limited Site Licensing Program" means a software licensing program that authorizes use of the X Software only as incorporated in Licensee Programs on multiple computers - either a specific number of computers, or for a number of computers within a specific number range, where that number is greater than 2000 computers, but does not exceed 5000 computers.

1.9 "Site Licensing Program" means a software licensing program that authorizes use of the X Software as incorporated in Licensee Programs on multiple computers -either a specific number of computers, or for a number of computers within a specific number range, where that number is greater than 2000 computers and may be any greater number.

1.10 "Unlimited Site Licensing Program" means a software licensing program that authorizes use of the X Software as incorporated in Licensee Programs on an unlimited number of computers.


2.LICENSE


2.1 X hereby grants to Licensee a nonexclusive, nontransferable, worldwide license to (i) copy and/or have copied for it the X Software for the sole purpose of incorporating the X Software into Licensee Programs; and (ii) distribute, to End Users and Distributors, the X Software in object code form solely as incorporated in Licensee Programs which are designed to operate on or with X-labeled or X-manufactured CPUs only and solely in compliance with the conditions described in Exhibit B. This license grant is expressly conditioned upon Licensee and/or Distributor's compliance with the following requirements:

(a) All distributions to End-Users must be subject to an End-User Software License Agreement no less restrictive or materially less protective of X's rights in the X Software than the Software License attached hereto as Exhibit D. For each jurisdiction in which Licensee Programs are distributed, it is Licensee's responsibility to use an End-User Software License Agreement which is enforceable under and complies with the laws of the jurisdiction.

(b) All Distributors must be subject to binding written agreements that include provisions consistent with and the material substance of Paragraphs 2, 3, 7, 8, 9 and 12 of this Agreement, and such agreements must be materially no less protective of X's rights in the X Software than are the terms and conditions of this Agreement.

(c) Licensee may distribute the X Software solely as incorporated in Licensee Programs as part of a Volume Licensing Program associated with Licensee Programs. In such cases, Licensee will include a restriction in its Volume Licensing Program Agreement with the End-User that the X Software shall be used by the End-User solely for operation in conjunction with Licensee Programs. Licensee agrees to refer End-User queries regarding use of the X Software with any other software to X, for execution of an X Tiered Volume License Agreement between X and the End-User.

(d) Subject to the additional fees described in option D of Exhibit A as the "Limited Site License Option", Licensee may distribute the X Software solely as incorporated in Licensee Programs as part of a Limited Site Licensing Program associated with Licensee Programs. In such cases, Licensee will include a restriction in its Limited Site Licensing Program Agreement with the End-User that the X Software shall be used by the End-User solely for operation in conjunction with Licensee Programs. Licensee agrees to refer End-User queries regarding use of the X Software with any other software to X, for execution of an X Master Software Site License Agreement between X and the End-User.

(e) Subject to the additional fees described in option E of Exhibit A as the "Site License Option", Licensee may distribute the X Software solely as incorporated in Licensee Programs as part of a Site Licensing Program associated with Licensee Programs. In such cases, Licensee will include a restriction in its Site Licensing Program Agreement with the End-User that the X Software shall be used by the End-User solely for operation in conjunction with the Licensee Programs. Licensee agrees to refer End-User queries regarding use of the X Software with any other software to X for execution of an X Master Software Site License Agreement between X and the End-User.

(f) Licensee may not distribute the X Software as part of any Unlimited Site Licensing Program.

(g) Licensee is not authorized to distribute the X Software Programming Libraries under this Agreement.

2.2 Licensee acknowledges that the X Software is proprietary to X and that X retains all right, title, and interest in and to the X Software, including without limitation all copyrights and other proprietary rights.

2.3 Licensee agrees not to reverse engineer, reverse compile, or otherwise disassemble the X Software, except as permitted by applicable legislation. Licensee may not use, reproduce, sublicense, distribute or dispose of the X Software, in whole or in part, other than as permitted under this Agreement.

2.4 If X requests in writing, Licensee shall provide X with an archive copy of Licensee Programs in object code form for the sole purpose of monitoring Licensee's compliance with the terms of this Agreement.

2.5 X will notify Licensee of the availability of updates or extensions to the X Software ("Updates"). Upon such notification, Licensee will take all necessary steps to obtain Updates, including but not limited to downloading them from a server as instructed by X. Licensee shall incorporate any Update in Licensee Programs, and shall cease distribution of earlier versions of the X Software to the extent that they have been updated, at the first available opportunity within Licensee's product cycle, but no later than one hundred eighty (180) days after X has notified Licensee of the availability of such Update. Licensee shall make all Updates available to Licensee's End-Users upon the request of the End-Users or X.

2.6X hereby grants to Licensee a nonexclusive, nontransferable, worldwide license to (i) copy and/or have copied for it and to modify the documentation included in the X Software for the sole purpose of incorporating such documentation into Licensee's documentation in support of the X Software as incorporated in Licensee Programs; and (ii) distribute such modified documentation to End Users and Distributors. This license in conditioned on the following copyright notice appearing in Licensee's documentation:

"Portions of this manual are copyrighted by X Computer, Inc."


3. EFFECTIVE DATE; TERMS


3.1 The Effective Date of this Agreement will be the date of X's execution. The initial term will be until December thirtieth (30th) of the current year and the Agreement will automatically renew for subsequent one year periods unless one of the following events occurs: (i) Licensee fails to pay the applicable renewal fee before the expiration of the current term; (ii) X terminates this Agreement at any time pursuant to Section 13; (iii) X provides notice to Licensee of its intent to terminate for any reason, with or without cause, at least twelve (12) months prior to the effective date of termination; or (iv) Licensee provides notice to X of its election to terminate this Agreement for any reason, with or without cause.

3.2 In the event of any termination, Licensee must immediately discontinue all use and distribution of the X Software. However, Licensee is entitled to retain one (1) copy of the X Software, and is not restricted from providing continued technical support of Licensee's End-Users, including continued support regarding the use of X Software in conjunction with Licensee's Programs.


4.CONSIDERATION


4.1 In consideration of, and as a condition of the rights granted to Licensee by X, Licensee agrees to pay X the annual license fee and royalty payments based on the options selected by Licensee in Exhibit A. If a royalty option is specified on Exhibit A, a royalty obligation shall be effective upon the date Licensee begins the sale, license and/or distribution of Licensee Programs and shall extend as long as Licensee sells, licenses and/or distributes Licensee Programs.

4.2 If an annual license fee is specified on Exhibit A, the license fee for the initial term shall be prorated based upon the number of months remaining in the current year and is due and payable in United States currency upon Licensee's execution of this Agreement. The renewal fee for each subsequent term is due on the thirty first (31st) of December of the current year. As a courtesy, X intends to send renewal notices sixty (60) days prior to the expiration date of each term, but all renewal fees are due and payable on or before December 31 of each year, whether or not X provides such notice. The annual license fee for any of the options will not increase more than ten percent (10%) per annum for the first three (3) years of this Agreement.

4.3 If royalty payments are specified on Exhibit A, royalties shall be payable on an annual calendar basis, within 45 days of the end of the calendar year (December 31), with respect to the number of end-user licenses granted by Licensee to End-Users under Licensee's Site Licensing Programs. Royalty payments shall be determined in accordance with the schedule specified in Exhibit A. All payments to X shall be made in U.S. currency, with checks drawn on a U.S. bank. Foreign funds will be calculated at the exchange rate at which the Licensee's foreign currency transactions are translated in U.S. dollars at month end reporting. At the time when royalty payments are due, Licensee will deliver to X a report setting forth the following information: (i) Title of Licensee Program; (ii) number of licenses granted to Licensee's End-Users under Licensee's Site Licensing Programs for the immediately preceding year and in aggregate from inception of this license agreement; and (iii) a calculation of the royalties due and payable to X for the immediately preceding year and in aggregate from inception of this license agreement. Any overdue amounts shall bear interest at the rate of one and one-half (1.5%)  percent per month or the maximum rate permitted under applicable law, whichever is less.

4.4X shall have the right at its expense and on reasonable notice, to have an accredited auditing representative audit the records of Licensee to verify the information to be provided in the reports. If, as a result of such audit, a dollar error of over 5% for any quarter or year is found in favor of X, Licensee will reimburse X for the cost of such audit within thirty days of Such finding. In the event Licensee's royalty reports or payments include any inconsistencies or mistakes, Licensee will rectify such statements and will make any payments required by such rectification to X within thirty (30) days. Any overdue amounts shall bear interest at the rate of one and one-half (1.5%) percent per month or the maximum rate permitted under applicable law, whichever is less. Failure to pay royalties and/or audit expenses when due as provided in this Section 4 will be grounds for termination of the Agreement under Section 3.

4.5 Licensee shall deliver the royalty payments and royalty reports to: ___________________ 

4.6 Licensee's royalty accounting contact, address and phone number is:

Contact Name: _______________ 

Address: _____________________ 

Phone Number: ________________ 






5.REPORTS


5.1 If Licensee chooses option (B), (D) or (E) as specified in Exhibit A, Licensee must provide to X reports in the form set forth on Exhibit E, as it may be modified from time to time by X by notice to Licensee. These reports shall be considered confidential information and used for X internal revenue reporting purposes only.

5.2 If Licensee chooses option (D) or option (E) as specified in Exhibit A, Licensee must provide to X reports in the form set forth on Exhibit F, as it may be modified from time to time by X by notice to Licensee. These reports shall be considered confidential information and used for X internal revenue reporting purposes only.

5.3 If Licensee chooses option (E) as specified in Exhibit A, Licensee must provide royalty reports to X as specified in Paragraph 4.3 above.


6.DELIVERY OF X Software


One copy of the X Software shall be delivered by X to Licensee upon the execution of this Agreement by both parties and receipt of Licensee's check for the license fee for the initial term.


7. DISCLAIMER OF WARRANTY


X licenses the X Software to Licensee on an "AS IS" basis. X MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE X SOFTWARE OR ITS USE AND OPERATION ALONE OR IN COMBINATION WITH LICENSEE PROGRAMS. Neither Licensee, its employees, agents, or Distributors have any right to make any other representation, warranty or promise with respect to the X Software.


8. LIMITATION OF LIABILITY


In no event shall X be liable for special, incidental or consequential damages arising from the use, sale or distribution of X Software by Licensee or any third party, whether under theory of contract, tort (including negligence), product liability or otherwise. In no event shall X's liability under this Agreement exceed the amount of $500.


9. LABELING


9.1 As a condition of X's license grant in Paragraph 2, Licensee shall not remove any copyright notices or proprietary legends contained within the X Software. Further, Licensee shall include a copyright notice in Licensee Programs reflecting the copyright ownership of Licensee and X as follows:

Copyright -C- 19__ {Licensee Name} and its licensors. All rights reserved.

9.2 To the extent permitted by applicable law, Licensee shall also include in a conspicuous place in the manual and in bold letters, a warranty disclaimer as follows:

"{Licensee Name}'s LICENSOR(S) MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE SOFTWARE. {Licensee Name}'s LICENSOR(S) DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THESOFTWARE IS ASSUMED BY YOU.THE EXCLUSION OF IMPLIED WARRANTIES IS NOT PERMITTED BY SOME JURISDICTIONS. THE ABOVE EXCLUSION MAY NOT APPLY TO YOU."

Licensee shall also include the following disclaimer of liability language in the same place:

"IN NO EVENT WILL {Licensee Name}'s LICENSOR(S), AND THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY {Licensee Name}'s LICENSOR) BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF {Licensee Name}'s LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. {Licensee Name}'s Licensor's liability to you 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 $50."

9.3During the term of this Agreement, X may revise the notice or disclaimer language required by Paragraph 9.2 above. Licensee shall incorporate such revisions within ninety (90) days of written notice from X.

9.4Licensee may not use any X trademarks, service marks, trade names, or logos in any advertising, brochures, or promotional materials except to denote compatibility with X products in the form set forth in X's Third Party Trademark Guidelines.

9.5Licensee shall not refer to the product name "TCP/IP Connection for Macintosh" in packaging or other advertising collateral materials for the Licensee Programs.


10.INDEMNIFICATION BY X


X shall indemnify, defend and hold Licensee harmless from and against any claim that the X Software infringes any United States patent or copyright of any third party. Licensee shall promptly notify X of any such claim. n no event shall X's liability to Licensee for damages, losses, liabilities, costs and expenses (including reasonable fees of attorneys and other professionals) under this Paragraph 10 exceed the total amount paid by Licensee to X for the license granted hereunder. Notwithstanding the foregoing, X will have no liability under this Paragraph 10 for any claim or suit of copyright, trade secret or patent infringement where such claim or suit is based upon the combination, operation, or use of the X Software with Licensee Programs, if such infringement would have been avoided but for such combination, operation or use.


11.INDEMNIFICATION BY LICENSEE


Except as provided in Paragraph 10, Licensee shall indemnify, defend at X's request, and hold X harmless from any and all claims, damages, losses, liabilities, costs and expenses (including reasonable fees of attorneys and other professionals) arising out of or in connection with Licensee's distribution of the X Software in combination with Licensee Programs or the use of Licensee Programs in combination with X Software. Licensee shall promptly notify X of any such claim.


12.EXPORT


Licensee certifies that it will not distribute the X Software in contravention of any laws or regulations relating to export control, including but not limited to the United States Export Administration Act and associated regulations.


13.TERMINATION FOR CAUSE


If any breach of this Agreement by Licensee continues for more than thirty (30) days after receipt of written notice of such breach by X, X may terminate this Agreement by written notice to Licensee, whereupon this license and all rights granted to Licensee herein shall immediately cease. Waiver by X of any breach by Licensee shall not be deemed to be a waiver of any other or subsequent breach. The rights of X under this clause are in addition to any other rights and remedies provided by law or under this Agreement.


14.RELATIONSHIP OF THE PARTIES


Nothing stated in this Agreement will be construed as creating the relationships of joint venturers, partners, employer and employee, franchisor and franchisee, master and servant, or principal and agent.


15.ASSIGNMENT


This Agreement may not be assigned by Licensee without the prior written consent of X.


16.NOTICES


Any notice required under this Agreement shall be deemed given: (i) when delivered personally; (ii) by telex or facsimile; (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, (iv) by Internet to the address set forth on the first page of this Agreement for notice to Licensee; or (v) by XLink, to the address of SW.LICENSE. for any notice to X and to the address set forth on the first page of this Agreement for any notice to Licensee. All communications will be sent to the address noted on the first page of this Agreement.


18.GOVERNING LAW


This Agreement shall be governed by and construed in accordance with the laws of the State of California as applied to agreements entered into and to be performed entirely within California between California residents. Any litigation or other dispute resolution between the parties relating to this Agreement shall take place in the Northern District of California. The parties consent to the personal jurisdiction of, and venue in, the state and federal courts within that District.


19.COMPLETE UNDERSTANDING


This Agreement including all Exhibits attached constitutes the entire Agreement between the parties concerning the use and distribution of X Software. Any waiver or amendment of any provision of this Agreement shall be effective only if in writing and signed by authorized representatives of both parties.

LICENSEE: ____________________________

Signature: ___________________________

Printed Name and Title: ___________________________

Date Signed: ___________________________ ___________________________ ___________________________

(RETURN TWO SIGNED ORIGINALS)




EXHIBIT A: LICENSE FEES


SELECT EACH OF THE OPTIONS YOU WANT BY MARKING THE APPROPRIATE OPTION(S) WITH AN "X" IN THE SPACE INDICATED. RECORD THE ASSOCIATED FEES IN THE RIGHT HAND COLUMN, AND THEN TOTAL THE FEES FOR ALL SELECTED OPTIONS.

1.REQUIRED: CHOOSE ONLY ONE OF (A) OR (B)

OPTION DESCRIPTION FEE SELECT AMOUNT

(A)Basic X software NO requirement for reporting of shipped units$5,000 per year X5,000.00 ----- -------- (B)

Basic XXX software Requirement for reporting of shipped units$5,000 per year ----- -------- 

2.OPTIONAL: CHOOSE (C)

OPTION DESCRIPTION FEE SELECT AMOUNT

(C)__ Extension for XXX software $2,500 per year ----- --------

3.Optional: CHOOSE ONLY ONE OF (D) OR (E)

OPTION DESCRIPTION FEE SELECT AMOUNT

(D) Limited Site License Program Option Prerequisite choice of Option B, above $5,000 per year

(E) Site License Program Option Prerequisite choice of Option B, above $500 per year plus ----- -------- per-unit royalties

Option (E) per unit royalties are determined according to the following schedule, based on the CUMULATIVE ANNUAL number of end-user licenses for X Software granted by Licensee to End-Users under Licensee Site License Programs. End-user licenses granted on a single-user basis, or under the terms of a Licensee Volume License Program do NOT count towards the Option (E) royalty tier.

If number of licenses granted is more than but not greater than the per-unit royalty is

1 2,000$0.00 2,001 5,000$1.00 5,00125,000$0.75 25,001100,000$0.60 100,001 and above$0.50

4. TOTAL AMOUNTS FOR OPTIONS SELECTED TOTAL FEES PAID 5,000.00


EXHIBIT B: X SOFTWARE


"X Software" referenced in Subparagraph 1.1 of the Agreement means Version ____ of X's Software Program known as XXX consisting of the following:

BASIC XXX FILES:

If Licensee desires to distribute the XXX 2.0.6 software, then Licensee must also distribute the XXX Extension 2.0.2 with Licensee Programs. XXX Ping 2.0.2 is not required, but may be distributed with Licensee Programs.

If Licensee chooses option (C) in Exhibit A "MacSNMP Extension for XXX" software files, then Licensee must distribute the SNMP Macintosh Agent, SNMP XXX Agent, SNMP Manager, SNMP TCP/IP Transport files, Library Manager Resources, and Shared Library Manager with Licensee Programs. SNMP Preferences and MacSNMP Client 1.0.2 are not required, but may be distributed with Licensee Programs.

XXX 2.0.2 DOCUMENTATION DISK




EXHIBIT C: LICENSEE PROGRAMS


SECTION BELOW MUST BE COMPLETED BY LICENSEE

"Licensee Programs" referenced in Subparagraph 1.5 of the Agreement means all of the following:

1.Licensee Program (Title):EARTHLINK TOTALACCESS

2.Description of Licensee Program:

INTERNET CONNECTIVITY SOFTWARE

Licensee Program (Title):

2.Description of Licensee Program:

1.Licensee Program (Title):

2.Description of Licensee Program:


EXHIBIT D: END USER AGREEMENT


(См. образец соглашения с конечным пользователем)




EXHIBIT F: LICENSEE (LIMITED) SITE LICENSE REPORTS


Licensee will provide a report of (Limited) Site Licenses of Licensee Programs on the thirty first (3lst) of December of each renewal term of this Agreement in the following form:

REPORT OF (LIMITED) SITE LICENSE UNITS SHIPPED - XXX FOR THE PERIOD JANUARY 1, 200X - DECEMBER 31, 200X

COMPANY NAME: {LICENSEE NAME}

PRODUCT NAME: {LICENSEE PROGRAM NAME} ------------------------------------

REPEAT FOR EACH (LIMITED) SITE LICENSE EXECUTED OR RENEWED WITH END-USER DURING THE REPORTING PERIOD:

COMPANY NAME: {END-USER NAME}

COMPANY ADDRESS: {END-USER POSTAL MAILING ADDRESS}

CONTACT NAME: {END-USER CONTACT PERSON NAME}

NUMBER AUTHORIZED USERS: {MAXIMUM AUTHORIZED USERS}

The reports should be sent to the following address:

X Computer, Inc. Attention:XXX Product Manager