This License Agreement (this "Agreement") is made effective upon acceptance of this agreement between SoftPerfect Research, the Product Publisher, and Plimus, Inc. ("Plimus"), 49016 Milmont Drive, Fremont, CA 94538. The party granting the right to sell the licensed property will be referred to as the "Vendor". The parties agree as follows
a) GRANT OF LICENSE. In accordance with this Agreement, the Vendor grants Plimus a non-exclusive, non-transferable license to sell licenses and deliver the submitted Product(s) ("Product") via the web site known as www.plimus.com. The Vendor retains title and ownership of the Product. Vendor may add or remove any Product from this Agreement from time to time upon reasonable notice to Plimus.
b) DEFINITIONS. The term 'PlimWare software' shall mean Plimus' software code for constraining the use of Titles, and protecting against unauthorized access to or use of Titles, as well as enabling the purchase of such Titles through the Plimus services. The term 'Title' shall mean the Product that is to be distributed using the PlimWare software and/or the Plimus services, and which is registered with Plimus as the software of an Vendor. The term 'Plimus services' shall mean the purchasing facility provided through the Plimus server or Plimus Help Desk, including the administration, banking and support elements of the facility. The term 'PlimWare-enabled' shall mean the software of a Vendor that has been compiled with the PlimWare software. The term 'End User' shall mean all owners, users and their respective employees and agents, that acquire use and possession of the Product through Plimus or any of Plimus' customers, licensees, lessees or any other legal person claiming license through Plimus. The term 'Electronic Product' shall refer to either a Title or a Product that is delivered electronically by means of an internet download or email attachment. The term 'Physical Product' shall refer to a tangible product that is delivered via UPS, USPS, FedEx or similar services from the Plimus Fulfillment Center and directly to the consumer. The term 'Plimus Fulfillment Center' shall refer to the Plimus warehousing facilities that store physical products. The term 'Fulfillment' shall mean the electronic delivery of Electronic Products by the Plimus servers as well as the physical delivery of Physical Products by the Plimus Fulfillment Center.
c) RIGHT TO PURCHASE AND RESELL. Vendor hereby grants to Plimus, and Plimus hereby accepts, the non-exclusive, non-transferable right to market, distribute and sell the Product to End Users using the Plimus service. Legal ownership of licenses for the Product shall be transferred from Vendor to Plimus and from Plimus to End User only upon the End User's execution of the Purchase Agreement setting forth Plimus' terms and conditions of sale, and acceptance of the Vendor's License Agreement packaged with the Product. Plimus shall not retain ownership of the licenses. Plimus shall have no right to provide warranty, maintenance or support services, except for download and fulfillment services when applicable, for the Products to End-Users and all requests therefore shall be forwarded to the Vendor.
d) PLIMWARE LICENSE. The Vendor may, on a non-exclusive basis, download and use the PlimWare software to create a PlimWare-enabled Title and may freely distribute the PlimWare-enabled Title to prospective purchasers. Should a prospective user not agree to enter into an End User Agreement with Plimus or does not accept the registration method of Plimus, the Vendor shall be entitled to inform the prospective purchaser of alternative purchase methods. In the event of the Vendor delivering any PlimWare-enabled Titles to Plimus on CD, DVD or by uploading them to a Plimus FTP or HTTP site, then unless informed otherwise by the Vendor in writing, Plimus shall be entitled to distribute the PlimWare-enabled Titles through various distribution channels available to Plimus at no cost to the Vendor. The Vendor may only be registered once with Plimus, for all Titles of that Vendor. This license may not be transferred or assigned by the Vendor. The Vendor shall not permit the PlimWare software to be reverse engineered, decompiled, or disassembled, except as expressly permitted by any applicable law, and then only to the extent so permitted.
e) LIABILITY. Subject to Plimus' liability to make payments as set out in clause i. for gross negligence, willful misconduct, and for intellectual Property infringement set out in clause f, or for a breach of clauses t or v. Plimus shall not be liable for any claims or damages arising from its inability to fulfill, in whole or part, any of the Plimus services or from any failure of or defect in the PlimWare Software and the Vendor indemnifies and holds Plimus harmless against any such claim or damage from any party whatsoever. All implied warranties relating to Plimus, including without limitation any warranty for fitness of purpose or of merchantability, are expressly excluded.
The Vendor indemnifies and holds Plimus harmless against any claim or damage from any party whatsoever arising from such party's use of the Product as delivered to Plimus. In no event shall Vendor or its licensors be liable to Plimus (or anyone claiming under or through Plimus) for any indirect, special, incidental or consequential damages of any kind even if the Vendor is aware of the possibility of such damages.
f) WARRANTY OF TITLE AND USE.
1. The Vendor warrants that it (and anybody authorized by it) has the right to distribute and license the Product, that such distribution and sale is lawful, and will not infringe the intellectual property rights, or any rights, of any third party, and further that no fraudulent or unlawful use of the PlimWare software and services will be caused or permitted by the Vendor. The Vendor shall defend and indemnifies and holds Plimus harmless against any claim or damage from any party whatsoever arising from a breach of these warranties.
2. Vendor warrants that it (and anybody authorized by it) will NOT use any of the Plimus Links on any illegal marketing campaigns.
3. Vendor warrants that it (and anybody authorized by it) will NOT use any of the Plimus Links on any UCE (spam) email campaigns, whether the email addresses are of opt-in type or not.
4. Plimus warrants that it has the right to provide the Plimus Service and to license the PlimWare software and warrants peaceful enjoyment by the Vendor of the license rights conferred on the Vendor on the Terms and Conditions hereof.
5. Plimus warrants that the Plimus Service and the Intellectual Property contained in the PlimWare software does not infringe the Intellectual Property rights of any person. Plimus will indemnify the Vendor in the event of any claim being made against the Vendor in respect of any infringement of Intellectual Property rights of any third party in and to the Plimus Services or PlimWare software.
6. Plimus warrants that it shall use its best efforts to maintain the security of its on-line distribution service and shall cease distribution of the Products at any time it has reason to believe that such security has been compromised.
7. Except as set forth in this Section f, and to the extent an express product warranty is made to an end user in Vendors End User License Agreement, Vendor makes no warranties or representations regarding the product to any person. To the extent permitted by applicable law, all implied warranties, including but not limited to implied warranties of merchantability and fitness for a particular purpose, are hereby excluded. Neither the Vendor, nor any of its licensors warrants the results of any products or that all errors in the products will be corrected, or that the functionality of the product will meet Plimus or any end-user's needs.
g) SOFTWARE CHANGES. Plimus reserves the right to change, add to, improve and issue new versions of the PlimWare software, in which event Plimus shall notify the Vendor of such changes, additions, improvements or issues of new versions of the PlimWare software. The Vendor shall make every endeavor to use the latest version of the PlimWare software as soon as is possible.
h) INTELLECTUAL PROPERTY. 1. All Intellectual Property rights in the PlimWare software and Plimus Services are and shall remain the property of Plimus, and the Vendor shall not remove any markings, trade names or logos from any product of Plimus'.
2. The Products shall at all times remain the sole property of the Vendor or its licensors. Nothing contained in this Agreement shall grant to Plimus any right, title or interest in and to the Products or to the trademarks, copyrights, patents or trade secrets of the Vendor or its licensors.
3. Plimus shall not alter, erase or deface any trademark, trade name, copyright and other notices of proprietary rights used by the Vendor for the Product and will not during or after the term of this Agreement, assert or claim any interest in, or do anything that may adversely affect the validity or enforceability thereof.
4. Plimus shall use its best efforts to protect the proprietary rights of the Vendor and its licensors and to cooperate in the Vendor's efforts to protect such rights. Plimus agrees to promptly notify the Vendor of any actual or suspected violation of such proprietary rights of which it has knowledge.
i) PAYMENTS.
1. The Vendor shall be entitled to appoint an independent auditor for the verification of the monthly total sales revenue and Plimus' fees due to Plimus by the Vendor. The Vendor shall furnish 14 days notice in writing of its request for such an auditor. The Vendor undertakes to make payment of the costs of the auditors in preparing such a report in the event of no errors being found in the manner of calculation of the payments made to the Vendor. In the event of any errors being found in the manner of calculation of the payments made to the Vendor by the auditors report Plimus shall pay for the costs of such report in addition to the payment of all fees owing.
2. Should Plimus reasonably believe that the PlimWare software or services are being fraudulently used by the Vendor, Plimus has the right to withhold payments to the Vendor pending further investigation by Plimus.
3. Plimus will process on a monthly basis total sales made up to the last calendar day of the previous month, and this total less Value Added Tax, Sales Tax (or any other applicable tax), and Plimus' standard commission as set out in Exhibit A hereto, will be distributed to the Vendor by the fifteenth day of the following month. Payment will be made on the account only when sales have reached a minimum of $35.00 for the period in question. Plimus shall be entitled to recover from the Vendor or to setoff against future amounts owing, at Plimus' discretion, payments that are charged back or disputed by the purchaser of a Title, and Plimus shall not be liable if End User continues to make use of the Title. Plimus shall provide information and assistance requested by the Vendor to pursue the unauthorized use of the Title.
4. Customer refunds shall be processed by the Vendor using the Plimus Refunds facility. Plimus has incurred charges even if the monies are refunded, therefore Vendor shall continue to be responsible for any commissions assessed at the time of payment and shall be liable for them.
When a chargeback occurs, Plimus will charge the Vendor's account for the chargebacked amount in addition to a USD15.00 chargeback fee, this transaction behaves as a Refund. Plimus will bear the USD15.00 applied chargeback fee in the case that the chargeback ratio is less than 0.4% of the total sales for the Title during the current payment cycle. If the chargeback ratio exceeds 0.4% of the total sales then the applied chargeback fee of USD15.00 will be deducted from the account of the Vendor and there will be no other hidden or implicit charges to the Vendor.
5. All payments will be made in US dollars.
j) DURATION.
1. This agreement shall continue subject to termination by either party serving upon the other written notice of one calendar month of such party's intention to terminate this agreement.
Any monies collected by the Plimus services on behalf of a Vendor after termination shall continue to be paid out by Plimus, subject to these terms and conditions, but Plimus shall have no duty to process any transaction for the Vendor. Plimus may retain a reserve from the monies collected for up to 3 months to cover future chargebacks and refunds, this reserve will be paid out to the Vendor when deemed appropriate by Plimus.
2. If in the sole discretion of Plimus it is considered that the PlimWare software, Products or services have been fraudulently used by either the Vendor or the Vendor's customers, or that the Vendor's products and/or content are not deemed acceptable, Plimus shall have the right to terminate this agreement immediately on notice to the Vendor.
3. If in the sole discretion of the Vendor it is considered that the Products have been fraudulently used, that the security of the Products has been jeopardized, or that Plimus is in material breach of its payment obligations to the Vendor, the Vendor shall have the right to terminate this agreement immediately on notice to Plimus.
4. Upon termination, Plimus shall remit all fees owing to the Vendor according to the terms of this agreement and Plimus shall immediately cease distribution of the Products, except when required to support existing customers. 5. Upon termination of this Agreement, Plimus shall promptly return to the Vendor all copies of the Products, the End-User Agreement, Vendor Confidential Information, and any marketing or other materials relating to the Products, and shall deliver to the Vendor within ten (10) days following the termination of this Agreement a certificate signed by an officer of Plimus certifying the return of all such materials.
k) VENDOR'S SALE PRICE. The Vendor's sale price shall be set by the Vendor and entered in the Plimus web site per the Title registration details. Plimus is located in California and will collect CA Sales tax for CA residents for all physical products, these taxes will be submitted by Plimus to the appropriate authorities. As of July 1st 2003 Plimus will also collect VAT when selling an electronic products to any non-business user located in the EU. Business users will be able to waive said VAT charges by providing a valid VAT ID, these taxes will be submitted by Plimus to the appropriate European authorities. It is the responsibility of the Vendor to properly mark their products as electronically delivered only or not. Any other applicable taxes, duties, imposts or the like shall remain the responsibility of the Vendor.
l) VENDOR'S END USER LICENSE.
1. It shall be the Vendor's responsibility to provide an end user license, and such license shall not contain any terms or conditions that are contradictory to those in this agreement. The Vendor may update its end user license at any time and Plimus shall promptly substitute any updated version of Vendors end user license provided by the Vendor. Plimus may not modify Vendors end user license or agree to any changes thereof without the Vendors express written consent.
2. In the event that Vendors Product is Plimware-enabled, it is recorded that the Vendor's End User License Agreement should not conflict with Plimus' End User License Agreement. In the event that the Vendor's End User License Agreement conflicts with the provisions of Plimus' End User License Agreement then the provisions of Plimus' End User License Agreement shall prevail.
m) NOTICE OF ERRORS AND INFRINGEMENTS. The Vendor shall notify Plimus immediately if it becomes aware of any errors in the PlimWare software or Plimus services, and of any infringement of any of Plimus' intellectual property rights.
n) SERVICE OF NOTICES. Any notice to be given hereunder shall be sufficiently given if forwarded by e-mail with receipt, registered post, or hand or courier delivery, to the last known corresponding address or number of the receiving party.
o) ARBITRATION. All disputes between the parties arising from this agreement, including disputes as to the validity or existence of this agreement shall be referred to and finally determined by arbitration, conducted in the English language in San Jose, California, and in accordance with the Expedited Arbitration Rules of the World Intellectual Property Organization ('WIPO'). The proceedings shall be secret and the award shall be final and binding on the parties, and each party consents to the award being made an order of any court of competent jurisdiction.
p) NO PARTNERSHIP OR AGENCY. Plimus is a purchaser and reseller of Product as an independent contractor and is not an agent or employee of Vendor. Nothing in this agreement shall constitute or be deemed to constitute, a partnership between the parties, or to constitute either party as an agent of the other. The Vendor shall have no authority or power to bind Plimus or to contract in the name of Plimus or to create a liability against Plimus in any way or for any purpose.
q) SEVERABILITY. Should any part of this agreement be declared to be void or invalid by the final decision of any court of competent jurisdiction, the remainder of this agreement shall continue to be in force between the parties, as if the portion which has been declared invalid or void was excluded from the Agreement at commencement thereof.
r) FORCE MAJEURE. Neither party will be liable for any delay in or failure of performance if such delay or failure arises from any event beyond its reasonable control including any Act of God, civil commotion, fire, explosion, lightning, storm, flood, earthquake, accident, rebellion, insurrection, riot, industrial dispute or lock-out, or act of government. If such an event prevents or delays one party from performing any of its obligations under this agreement, it must notify the other party as soon as reasonably practicable, and must recover from such position as soon as possible.
s) LAW. This agreement shall be governed by the laws of the State of California, U.S.A..
t) GENERAL. No representation, term, condition, guarantee, or warranty, not contained in this agreement, nor any amendment of, addition to, or consensual cancellation of, this agreement, nor any indulgence of one party by the other, or waiver of either party's rights provided in terms of this agreement, shall be binding on the parties unless reduced to writing and signed by or on behalf of both parties.
u) Plimus, at its sole discretion, is allowed to refund a customer's purchase and the Vendor has no recourse (practically speaking, we send the vendors 3 emails of increasing urgency to respond to the customers refund request, and if they ignore all 3 requests and the customer is credibly threatening a chargeback, we refund)
v) Adult entertainment content (porn, gambling, etc.) is not permitted on Plimus, and Plimus reserves the right to immediately shut off any Vendor account in violation
