Movable Type Authorized Reseller Agreement
READ CAREFULLY - THIS IS A BINDING LEGAL AGREEMENT
Participation in the Movable Type Authorized Reseller Program (the "Reseller Program") is subject to the all of the terms and conditions of this Movable Type Authorized Reseller Agreement (the "Agreement") between "Reseller" and Six Apart Ltd. ("Six Apart"). If you are accepting this Agreement and participating in the Reseller Program on your own behalf as an individual, then you are the "Reseller". If you are accepting this Agreement on behalf of a company, corporation, partnership or any other form of organization that is participating in the Reseller Program, then that company, corporation, partnership or other form of organization is the "Reseller". By selecting "I Accept" when being presented with this Agreement by Six Apart, or by purchasing, downloading, copying, installing or using the Movable Type software subject to the Reseller Program at any time, Reseller agrees to be bound by all of the terms and conditions of this Agreement. If Reseller does not agree to all of the terms and conditions of this Agreement, the Movable Type software subject to the Reseller Program may not be purchased, downloaded, copied, installed or used by Reseller.
RECITALS
WHEREAS, Six Apart makes available Movable Type® software, a blogging and content management platform for individuals, businesses and enterprises.
WHEREAS, Reseller possesses the necessary expertise, organization and resources to market, promote and resell Movable Type software in connection with other related products and services that Reseller makes available to its customers.
WHEREAS, Six Apart is willing to appoint Reseller, and Reseller is willing to accept its appointment, as a non-exclusive authorized reseller of Movable Type software upon the terms and conditions set out in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, the parties agree as follows:
1. DEFINITIONS.
1.1 "Effective Date" means the date of Six Apart's notice to Reseller that it accepts Reseller's application to participate in the Reseller Program pursuant to this Agreement.
1.2 "End User" means any individual or entity within the Territory to which the Software is resold by Reseller.
1.3 "End User License" means the license agreement between an End User and Six Apart describing the terms and conditions of the use of the Software by the End User, in the form made available by Six Apart to Reseller.
1.4 "Resale" means the transfer only of license rights to use the Software under the applicable End User License and specifically excludes any transfer or purported transfer of authorship, ownership, property, invention, patent, copyright, trademark or other intellectual property rights that has been issued, or that may issue, to Six Apart relating to the Software.
1.5 "Software" means only those version(s) of the Movable Type software made available by Six Apart from time to time for purchase and resale by Reseller.
1.6 "Territory" means the continents of North America, South America and Asia (excluding Japan).
1.7 "TypeKey Account" means a unique account on Six Apart's TypeKey® service that is required to obtain technical support for the Software from Six Apart.
1.8 "User" means a unique login name generated or recognized by an instance of the Software that possesses the permission to do anything more than commenting on one or more blogs and which has been used to log in to the Software within the prior ninety (90) days. Notwithstanding the foregoing, an individual whose relationship with the End User has been terminated and who is no longer authorized by the End User to make use of the Software no longer counts as a User effective upon the date of his/her termination, even if such individual has logged in to the Software within the prior ninety (90) days. Use of a login name by more than one person is prohibited.
1.9 "Value-Added Transaction" means a transaction between Reseller and an End User in which the Software is transferred to the End User by Reseller in conjunction with, and at the same time as, at least one of the following products or services provided by Reseller: (i) Web site design or programming services, (ii) Reseller's proprietary software and/or hardware products, (iii) third-party software and/or hardware products sourced by Reseller or (iv) installation or integration of the Software into the End User's computing environment.
2. APPOINTMENT; AUTHORITY OF RESELLER; LIMITATIONS.
2.1 Commencing on the Effective Date, continuing during the Term of this Agreement and upon the terms and conditions set forth herein, Six Apart appoints Reseller as its non-exclusive representative to market, promote, resell and distribute the Software throughout the Territory only as part of Value-Added Transactions offered to prospective End Users which are not, at the time, already Six Apart's existing customers for any versions of the Software. Reseller accepts such appointment and agrees to conduct such activities in accordance with the terms and conditions of this Agreement.
2.2 Reseller will not delegate, assign or subcontract its duties or obligations hereunder to any third party. Reseller will not utilize or allow non-employee personnel to perform or assist in the performance of this Agreement without Six Apart's prior written approval.
2.3 Reseller will have no authority, and will not represent that it has the authority, to make, execute or enter into any agreement or to incur any indebtedness on behalf of Six Apart.
2.4 Reseller will not market, promote, resell or distribute the Software under any names other than its Six Apart brand name.
2.5 Reseller acknowledges that the Software originates from and is the property of Six Apart and will not make any representations to the contrary.
2.6 Reseller will not:
2.6.1 Create and/or distribute derivative works based on the Software (however, the creation and/or distribution of plugins and other extensions to the Software making use of application programming interfaces published by Six Apart is permitted);
2.6.2 Reproduce the Software except as described in this Agreement;
2.6.3 Reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or discover any source code or algorithms of the Software;
2.6.4 Sell, lease, assign, license, sublicense, disclose, distribute or otherwise transfer or make available the Software, in whole or in part or any copies thereof, in any form to any third parties, except as specifically set forth in this Agreement;
2.6.5 Host the Software for third party use or otherwise make the Software's functionality available to third parties as an application service provider or service bureau;
2.6.6 Remove or alter any proprietary notices on the Software;
2.6.7 Alter any End User License from the form in which it is provided by Six Apart; or
2.6.8 Allow use of the Software by third parties not included in the definition of End Users or the count of End User Seats permitted in a particular End User Seat License.
2.7 Six Apart reserves all rights to the Software that are not expressly granted in this Agreement.
3. GENERAL OBLIGATIONS OF RESELLER.
3.1 Reseller will diligently market and promote the Software in the Territory and maintain a staff of adequately trained personnel knowledgeable in the Software as is reasonably necessary to perform its obligations hereunder.
3.2 Reseller will, as part of each Value-Added Transaction: (i) with the End User's knowledge and permission, create a new TypeKey account on behalf of the End User and order the Software through this TypeKey account on behalf of the End User, (ii) inform the End User that it must use this TypeKey account to obtain technical support from Six Apart for its copy of the Software and (iii) provide the user name and email address for this TypeKey account to the End User for its future use.
3.3 Reseller will provide to Six Apart within thirty (30) days after the end of each calendar quarter a report, in a form and format reasonably acceptable to Six Apart, documenting the name, contact information, number of Users and the price charged for the Software for each End User with which Reseller completed a Value-Added Transaction in such calendar quarter.
3.4 Reseller may, but is not obligated to, identify itself as an "Authorized Reseller" using material supplied by Six Apart for such purposes.
3.5 Reseller will at all times comply with all applicable laws, rules and regulations applicable to its activities and obligations hereunder throughout the Territory including, but not limited to, laws governing unfair trade practices, deceptive or misleading advertising, privacy and data protection and will create, maintain and retain all records and documents reasonably necessary to demonstrate its full compliance with each such law, rule and regulation.
4. GENERAL OBLIGATIONS OF SIX APART.
4.1 Six Apart will provide Reseller with access to discounted versions of the Software for resale. Six Apart reserves the right to change the versions of the Software available and the discounts at any time.
4.2 Six Apart will provide Reseller with one (1) copy of the "Commercial Use" version of the Software for Reseller's own use for a maximum of five (5) Users free of charge. Technical support for one (1) year will be included with this copy of the Software. If Reseller desires technical support for this copy of the Software after one (1) year, Reseller may purchase an annual technical support contract from Six Apart.
4.3 Six Apart will provide Reseller with the marketing support set forth in Exhibit A. Six Apart reserves the right to amend Exhibit A from time to time by providing at least thirty (30) days written notice to Reseller.
4.4 Six Apart hereby grants to Reseller a non-exclusive, royalty-free, limited license, with no right to sublicense, to use the Six Apart trademarks supplied by Six Apart to Reseller solely for the purposes of Reseller's marketing, promotion, resale and distribution of the Software pursuant to this Agreement. Such license will terminate immediately upon the expiration or termination of this Agreement. All rights not explicitly granted herein by Six Apart are reserved.
4.5 Six Apart may, from time to time and at its discretion, submit leads of potential End Users to Reseller. The submission of any lead by Six Apart to Reseller is not and will not be deemed to be Six Apart's approval of the lead as an End User or any representation regarding the suitability of the lead as a customer of Reseller. Reseller remains responsible for ensuring that the lead meets all applicable End User and Software criteria prior to entering into any transaction with such potential End User.
5. RESELLER PROGRAM FEES; EXPENSES.
5.1 As consideration for its participation in the Reseller Program, Reseller will pay Six Apart a non-refundable annual "Reseller Program Fee" of one hundred dollars ($100), as follows:
5.1.1 If the Effective Date is on or before June 30, 2008, the Reseller Program Fee applicable to the Initial Term will be waived by Six Apart;
5.1.2 If the Effective Date after June 30, 2008, the Reseller Program Fee applicable to the Initial Term will be due and payable to Six Apart no later than ten (10) days after the Effective Date; and
5.1.3 The Reseller Program Fee applicable to each Renewal Term will be due and payable to Six Apart on or before the first day of each such Renewal Term.
5.2 In addition to any other remedies available to Six Apart, the End User will pay a late fee of one and one-half percent (1.5%) per month (or the maximum amount permitted by applicable law, whichever is less) for any late payments hereunder.
5.3 Reseller will be solely responsible for all expenses it incurs in connection with this Agreement.
6. TAXES.
6.1 If any governmental entity imposes any tax, duty or levy on any Value-Added Transaction, Reseller will either pay the amount of such tax directly or cause the End User to pay the amount of such tax, duty or levy directly to such governmental entity. Six Apart will have no obligation to pay any tax, duty or levy on any Value-Added Transaction.
7. TERM AND TERMINATION.
7.1 This Agreement will commence on the Effective Date and will remain in full force and effect (unless terminated earlier as provided below) through and including December 31, 2008 (the "Initial Term") and will be automatically renewed for successive additional one (1) year terms (each a "Renewal Term"), contingent upon Reseller's payment of the Reseller Program Fee applicable to each such Renewal Term pursuant to Section 5.1.2, unless terminated earlier as provided below or unless either party gives the other party written notice of non-renewal no later than thirty (30) days prior to the end of the then-current Term period. Any references to the "Term" in this Agreement will include the Initial Term and all Renewal Terms.
7.2 This Agreement may be terminated by either party at any time upon written notice to the other party in any of the following circumstances: (i) for the material breach of the other party, which material breach has remained uncured for a period of thirty (30) days from the date of written notice of such breach, (ii) for the other party's breach of its confidentiality obligations pursuant to Section 8, (iii) an adjudication of bankruptcy of any party under any bankruptcy or insolvency law or (iv) the appointment of a receiver for business or property of the other property or the making of any general assignment for the benefit of its creditors.
7.3 This Agreement may be terminated by Six Apart at any time upon written notice to Reseller if Reseller is in breach of any of its obligations set forth in Sections 2.1 through 2.6, inclusive, of this Agreement and such breach has remained uncured for a period of ten (10) days from the date of written notice of such breach.
7.4 This Agreement may be terminated by Six Apart at any time upon written notice to Reseller if, in the sole discretion of Six Apart, Reseller (i) is or threatens to be in breach of any of its obligations set forth in Section 3.5 of this Agreement, (ii) conducts itself in a manner which results in an unacceptable level of complaints from prospective or actual End Users, (iii) disparages Six Apart, its products or services or (iv) otherwise conducts itself in an unprofessional manner.
7.5 This Agreement may be terminated by Six Apart at any time upon written notice to Reseller if Six Apart, in its sole discretion, terminates the Reseller Program.
7.6 Upon the expiration or termination of this Agreement for any reason whatsoever, Reseller will cease all marketing, promotion, resale and distribution of the Software.
7.7 Sections 8 through 13, inclusive, of this Agreement will survive any expiration or termination of this Agreement.
8. CONFIDENTIALITY.
8.1 "Confidential Information" means information not generally known to the public, whether of a technical, business or other nature that relates to this Agreement, or that is disclosed during the Term of this Agreement as a result of the parties' discussions about this Agreement, and that is designated as "confidential" or "proprietary" or other words of similar meaning. Confidential Information may be disclosed in written or other tangible form (including information in computer software or held in electronic storage media) or by oral, visual or other means. Confidential Information will not include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving party's possession. Confidential Information may include a third party's confidential information.
8.2 Each party agrees not to use any Confidential Information of the other party for any purpose except to perform its obligations or exercise its rights under this Agreement. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party's employees, except to those employees or consultants of the receiving party with a need to know. Each party agrees that it will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party will take at least those measures that it takes to protect its own most highly confidential information and will ensure that its employees and independent contractors who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof. Each party will reproduce the other party's proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
8.3 If the receiving party is requested by any court, tribunal or governmental entity, or otherwise required by law to disclose any Confidential Information, it will, prior to any such disclosure, promptly notify the disclosing party and provide an opportunity to permit the disclosing party to seek a protective order or take other appropriate action. The receiving party shall reasonably cooperate in the disclosing party's efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Information.
8.4 The terms of this Agreement are hereby designated as Confidential Information of both parties.
8.5 Reseller will not issue any publicity statement, press release or consent to any interview relating to this Agreement or its activities under this Agreement without the prior written consent of Six Apart.
8.6 Upon the expiration or termination of this Agreement, each party will immediately return to the other party all materials belonging to the other party or its licensors, including without limitation all Confidential Information, and will promptly certify to the other party in writing such return.
9. WARRANTIES; DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITIES.
9.1 Reseller represents and warrants that (i) it has full right, power and authority to enter into and fully perform its obligations under this Agreement, (ii) the execution, delivery and performance of the terms and conditions of this Agreement do not conflict with any other agreement to which it is a party or by which it is bound, (iii) it will perform its duties and obligations under this Agreement with standards of diligence and care not less than those prevailing in the professional software and services industries in the Territory at the time and (iv) it will at all times comply with all applicable laws, rules and regulations applicable to its activities, duties and obligations hereunder throughout the Territory.
9.2 EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER. EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, SIX APART'S PRODUCTS AND SERVICES ARE PROVIDED "AS-IS" AND SIX APART DISCLAIMS ANY REPRESENTATION THAT ITS PRODUCTS OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY PRODUCTS OR SERVICES PROVIDED BY THIRD PARTIES WILL BE UNINTERRUPTED OR ERROR FREE.
9.3 EXCEPT IN CONNECTION WITH A PARTY'S BREACH OF ITS OBLIGATIONS HEREIN REGARDING CONFIDENTIAL INFORMATION OR IN CONNECTION WITH THE INDEMNIFICATION OF THIRD PARTY CLAIMS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, COST OF COVER, LOSS OF USE OR DATA OR INTERRUPTION OF BUSINESS, WHETHER SUCH ALLEGED DAMAGES ARE LABELED IN CONTRACT, INDEMNITY, TORT OR STRICT LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.4 EXCEPT IN CONNECTION WITH A PARTY'S BREACH OF ITS OBLIGATIONS HEREIN REGARDING CONFIDENTIAL INFORMATION OR IN CONNECTION WITH THE INDEMNIFICATION OF THIRD PARTY CLAIMS, IN NO EVENT WILL EITHER PARTY'S TOTAL CUMULATIVE DAMAGES HEREUNDER EXCEED FIFTY THOUSAND DOLLARS ($50,000).
10. INDEMNIFICATION.
10.1 Reseller will indemnify, defend and otherwise hold harmless Six Apart, its officers, directors, employees, agents and subsidiaries from and against any claim or suit brought against Six Apart relating to, or resulting from Reseller's breach of this Agreement. Six Apart will promptly notify Reseller of any and all such claims and will reasonably cooperate with Reseller with the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts Six Apart in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement will require Six Apart's written consent (to be granted or withheld at Six Apart's sole discretion) and Six Apart may have its own counsel in attendance at Six Apart's expense at all proceedings and substantive negotiations relating to such claim.
11. DISPUTE RESOLUTION.
11.1 All disputes between the parties arising from or concerning in any manner the subject matter of this Agreement will be resolved through binding arbitration by a single arbitrator pursuant to the American Arbitration Association's rules applicable to commercial disputes. The arbitration will be held in San Francisco, California.
12. NOTICES.
12.1 Any notice or other communication under this Agreement given by any party to any other party will be in writing and will be deemed properly given when sent to the intended recipient by registered letter, receipted commercial courier or electronically receipted facsimile transmission (acknowledged in like manner by the intended recipient) at its address specified below:
If to Six Apart:
Chief Executive Officer
Six Apart Ltd.
548 4th Street
San Francisco, CA 94107
Fax: 415.344.0829
With a copy to:
General Counsel
Six Apart Ltd.
548 4th Street
San Francisco, CA 94107
Fax: 415.344.0829
If to Reseller:
To the contact specified in Reseller's application to join the Reseller Program.
Any party may from time to time change such address or individual by giving the other party notice of such change in accordance with this Section.
13. GENERAL.
13.1 All transfers of Software from Six Apart to Reseller pursuant to this Agreement are agreed to take place in California and this Agreement will be governed by and construed in accordance with the laws of the State of California without regard to conflict of laws principles. This Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act, even if that law is adopted in California. If Reseller is outside of the United States, the parties agree that rights and obligations of the parties under this Agreement will not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods.
13.2 If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement will remain in full force and effect.
13.3 The manufacture and licensing of the Software is subject to the export control laws of the United States of America, including the U.S. Bureau of Industry and Security regulations, as amended, and the parties hereby agree to obey any and all such laws.
13.4 Failure by a party to enforce any term of this Agreement will not be deemed a waiver of future enforcement of that or any other term in this Agreement or any other agreement that may be in place between the parties.
13.5 Reseller may not assign this Agreement, and any assignment of this Agreement by Reseller will be null and void.
13.6 The parties are independent contractors. Neither party will be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other. Reseller will identify itself as an authorized representative of Six Apart only with respect to the Software and only in the Territory and shall otherwise identify itself as an independent business.
13.7 This Agreement is not intended as and does not constitute an offer to sell, or the solicitation of an offer to buy, a franchise.
13.8 This Agreement is not intended to benefit, nor will it be deemed to give rise to, any rights in any third party.
13.9 Neither party will be liable for any failure or delay in its performance under this Agreement, except the making of payments, due to causes, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, flood, earthquake, strikes, riot, war, sabotage, failure of suppliers and governmental action, which are beyond its reasonable control.
13.10 The section titles and numbering of this Agreement are displayed for convenience and have no legal effect.
13.11 This Agreement may be executed in counterparts, each of which shall be deemed an original and all such counterparts shall constitute one and the same agreement.
13.12 This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.
Exhibit A
Six Apart Marketing Support
1. Reseller's entry into the Reseller Program will be announced in the monthly Movable Type newsletter distributed by Six Apart.
2. Reseller's name, linked to Reseller's Web site, will be included in the directory of Movable Type resellers displayed by Six Apart on www.movabletype.com.
3. Six Apart will provide Reseller with marketing and sales materials promoting the features and benefits of the Software.
4. Reseller's profile on www.movabletype.org will display an "Authorized Reseller" badge supplied by Six Apart.
