SWREG PUBLISHER AGREEMENT
PLEASE READ THIS ENTIRE SWREG PUBLISHER AGREEMENT (THE “AGREEMENT”)
CAREFULLY, AS IT FORMS A LEGALLY BINDING AGREEMENT BETWEEN THE PERSON,
ORGANIZATION OR ENTITY WHO IS LISTED ON THE SWREG ACCOUNT ACTIVIATION PAGE (“You”) AND DR MYCOMMERCE, INC.
D/B/A SWREG (“SWREG”). Please print a copy of this Agreement
for Your records.
You must agree to the terms
and conditions in this Agreement before SWREG will resell Your Products to End
Users through the SWREG Site. Your electronic acceptance of this Agreement
constitutes an offer to SWREG. BY
ACCEPTING THIS AGREEMENT BELOW, THE PERSON ELECTRONICALLY ACCEPTING THIS
AGREEMENT REPRESENTS AND WARRANTS THAT HE/SHE HAS THE AUTHORITY TO BIND YOU TO
THIS AGREEMENT. The commencement of
SWREG’s performance of its obligations hereunder shall constitute SWREG’s
acceptance of this Agreement, and upon commencement of such performance this
Agreement shall form a binding agreement between the parties.
For good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, You and SWREG agree as follows:
1. DEFINITIONS
The following capitalized
terms in this Agreement are defined below. Other terms defined in the body of
this Agreement will have the meanings given where they are defined.
A. “Additional
Services” are additional optional value added services offered by SWREG
that SWREG may make available to You (in some instances for an additional charge),
which may include without limitation (i) delivery of pre-determined license
keys or tokens to End Users; (ii) creation of license keys or tokens using
criteria and algorithms You have specified to SWREG; (iii) distribution of
copies of Your Software to End Users; and (iv) advertisements or other
promotions through the SWREG Site or other means concerning Your Products.
B. “Discount” means the portion of the Total Sales Price of
each Product that SWREG deducts and retains in connection with the sale of a Product
by SWREG to an End User in order to calculate the Purchase Price of that Product,
calculated as follows:
(a) for sales on which
American Express is not used as the payment method, an amount equal to the
greater of (i) Six Percent (6%) of the Total Sales Price plus One Dollar ($1)
per item in the End User’s order, or (ii) One Dollar Fifty Cents ($1.50)
per item in the End User’s order; or
(b) for sales on which
American Express is used as the payment method, an amount equal to the greater
of (i) Eight Percent (8%) of the Total Sales Price plus One Dollar ($1) per item
in the End User’s order, or (ii) One Dollar Fifty Cents ($1.50) per item
in the End User’s order.
C. An “End User” means a person,
organization or entity that may choose to purchase one or more Products through
the SWREG Site.
D. “License Right” means the right to install and/or use an item
of Software.
E. “Product” means the software program and attached data,
or online service provided by You, together with the associated License Rights,
which You sell to SWREG for resale by SWREG to End Users. You will identify one
or more software programs and attached data, or online service(s) provided by You, which are associated with each set of License Rights.
F. “Purchase Price” means the purchase price of a Product by SWREG
from You, calculated as the Total Sales Price, less Transaction Costs, less the
Discount.
G. “SWREG Site” means SWREG’s Web site, found at www.swreg.org,
through which SWREG will be the seller and merchant of record for sales of Products
to End Users through a SWREG-provided Web-based commerce site and system, and through
which SWREG may provide Additional Services.
H. “Suggested Retail Price” means the price that You input into the SWREG
system as the recommended selling price of each Product. For the avoidance of
doubt, while You may load suggested retail prices for Products,
SWREG is solely responsible for setting the End User retail price at which Products
are resold by SWREG.
I. “Total Sales Price” means the price paid by an End User (less any applied
discounts or coupons) for a completed purchase, including any applicable taxes
or shipping.
J. “Transaction Costs” means any taxes, shipping charges, and other
fees or costs which are part of the Total Sales Price, all of which shall be
retained by SWREG.
K. “Your” or “Yours”
refer to things that You own, and Your rights or obligations as set forth in
this Agreement.
L. “Your
Site(s)” means one or more online Web sites and/or auction pages You
operate to solicit retail sales of Your Products, and which will provide links to
the SWREG Site for End Users to engage in retail sales transactions with SWREG.
2. CONDITIONS
AND RULES OF USING SWREG
In order to utilize the
outsourced e-commerce services offered by SWREG, You must meet and follow the following
conditions and rules:
A. Your Software must meet or exceed SWREG’s
product requirements (as determined by SWREG). Through the SWREG administration
pages, You must provide SWREG with a complete list of Your
Site(s) through which Your Products are sold online, and You must keep this
list current.
B. All marketing, advertising, and product
information must be fully and accurately disclosed on Your Site(s), so that End
Users do not need to contact You for additional
information prior to sale by SWREG.
C. Your Site cannot be used to offer Products
for sale specifically to personal acquaintances, such as friends, relatives,
co-workers, or for in-person sales.
D. End Users must place orders themselves
through the SWREG Site. You will
not place orders on behalf of End Users, nor allow anyone to place orders on an
End User’s behalf.
E. Suggested Retail Prices and End User retail
prices for Your Products must always be provided to SWREG in US Dollars.
F. You may not offer any products for sale
to SWREG other than software programs and attached data, or online services
provided by You, together with the associated License
Rights (prohibited products include but are not limited to products which are
fulfilled physically).
G. You must not engage in any unfair or
deceptive trade practices and all descriptions of Your Software must be
accurate, up to date, and easy to understand.
You agree that SWREG may add
to or modify these conditions and rules upon notice to You. If You do not
meet and follow all of these conditions and rules, You may not enter into this
Agreement. If SWREG determines at
any time that You or any of Your Products do not meet or follow all of these
conditions and rules, or that You are in breach of or noncompliance with any
provision of, or Your obligations under, this Agreement, SWREG may immediately suspend
sales of Your Products and/or terminate this Agreement without notice to You.
3. GENERAL
RIGHTS AND OBLIGATIONS
A. Legal
Relationship. As a client of SWREG,
You will sell Your Products to SWREG, for resale by SWREG to End Users through
the SWREG Site as the seller and merchant of record. When an order is placed
through the SWREG Site by an End User, You agree to immediately sell the
applicable Product to SWREG as set forth in this Agreement in exchange for the
Purchase Price, at which time title to the Product will pass from You to SWREG, for subsequent transfer by SWREG to the End
User. If necessary in order for SWREG
to fulfill the End User’s purchase, You will
cooperate with SWREG’s requests in delivering or providing the Product to
the End User (in whatever form You have chosen to use for Your Product). You
give SWREG the right to sell Products as described in this Agreement,
and a limited right to use Your trademarks in connection with SWREG’s
sale of Your Products through the SWREG Site. For sales to End Users located in the
United States, title to a Product will transfer from SWREG to the End User upon
initiation of the download of the Software or provision of the License Right. For sales to End Users located outside
of the United States where the transfer originates within the United States,
title to a Product will transfer from SWREG to the End User at the time of
entry during transit from the United States to the state, territory, province,
or country in which the End User is located. With respect to sales of
subscription-based Products which gives an End User the right to use a future
service, You expressly agree and acknowledge that SWREG is reselling the right
to access, use, and/or participate in such future service only and is not the
provider of such future service, and You shall be solely responsible for
fulfilling such future service as the provider of such service.
B. [Intentionally omitted]
C. Additional Services. After You enter
into this Agreement, through Your online account interface You will be able to review
the Additional Services available to You, and select which if any Additional
Services You want SWREG to provide. You will have an opportunity to accept
any fees due to You in connection with an Additional
Service when choosing to use the Additional Service. SWREG may amend or change
the Additional Services SWREG provides at any time upon notice to You, and those changes will be effective for any
transactions that take place after the date of the change. If SWREG provides any Additional
Services to You, You grant SWREG the right to copy, store and distribute to
others, as appropriate for the particular set of Additional Services provided
by SWREG, any or all license keys or tokens for Your Products, copies of Your Products
in authenticated or un‑authenticated form and in electronic form for
download distribution and/or in physical form (such as CD‑ROM) for
physical distribution. You agree to
pay SWREG any amounts charged by SWREG in connection with SWREG’s
provision of such Additional Services as specified through the online account
interface.
D. Display of SWREG as Retailer. You will operate Your Site(s) to promote
the sales of Your Products to End Users by SWREG through the SWREG Site. You will prominently display, on Your
Site(s) and in other online marketing materials if applicable, the most current
SWREG logo (as provided or made available to You by SWREG)
and a statement that SWREG is the authorized online retailer from whom End
Users may purchase Your Products. However, note that credit card provider
rules, and trademark law, prohibit You from displaying any credit card logos or
insignia on Your Site(s) if based on Your relationship with SWREG, and You may
be subject to legal action and termination of this Agreement if You fail to
obey those rules. You will be responsible for all costs to create, operate and
maintain Your Site(s). SWREG shall
have full control over the privacy policy, terms and conditions of sale, and returns
policy for the SWREG Site, and “who we are” disclosures on the SWREG
Site designed to clearly disclose SWREG as the seller of record with respect to
sales of Your Products to End Users, and of the text of pages utilized in
connection with the SWREG Site. You
will not display, on the Your Site(s) or elsewhere, Your own terms of sale,
privacy policy, or returns policy with respect to SWREG’s sale of Software
products (not including any End User License Agreements for Your Products which
You will be solely responsible for providing), unless You have obtained SWREG’s
express prior written consent. Any
EULA for Your Software is strictly an agreement between You
and the End User, and SWREG is not a party to that EULA.
E. Export. You and
SWREG shall, as applicable, comply with all relevant export control laws and
regulations of all countries in which You and SWREG conduct business
(collectively, “Export Control
Laws”) that may apply to such party’s activities under this
Agreement, Your Products, or any End Users, as may be the case, including,
without limitation, the Export Administration Regulations (“EAR”),
the International Traffic in Arms Regulations (“ITAR”), Foreign
Assets Control Regulations, Foreign Trade Regulations and U.S. Customs Regulations,
as applicable. Neither You nor
SWREG shall export or re-export any Products pursuant to this Agreement except
as permitted by such applicable Export Control Laws. SWREG’s policy
is to not provide information, documentation or to participate in any way with
a foreign boycott-related request that would violate US anti-boycott laws,
rules and/or regulations. You shall
provide to SWREG, prior to the commencement of sale of Your Products through
the SWREG Site, accurate export classifications of Your Products resold by
SWREG (i.e., Commerce Control List classification, US Munitions List
Categories, U.S. Harmonized Tariff Classifications), export licensing
requirements (if any) and applicability of any EAR license exceptions or ITAR
license exemptions. You shall notify SWREG of the export classifications,
export licensing requirements and license exception/exemption eligibility, as
well any subsequent changes to the foregoing information, by email to orm@swreg.org.
You shall be solely responsible for determining the accurate export
classifications and export licensing requirements of Your Products, except as
otherwise mutually agreed upon in writing by You and
SWREG. You agree and acknowledge
that SWREG shall have the authority to cancel any sales transaction that
involves an IP address, bill-to address and/or ship-to address indicating an
embargoed or sanctioned country, an individual or entity designated on any US
or foreign restricted parties list such as but not limited to the Denied
Persons Lists, and Specially Designated Nationals Lists, Unverified Lists,
Entity Lists, Debarred Parties Lists, and Nonproliferation Sanctions Lists
(collectively, “Restricted Parties
Lists”), or where prohibited end-use is indicated. You further agree and acknowledge
that SWREG shall have the right to immediately terminate this Agreement without
penalty if it determines that SWREG is unable to engage in business with You
under applicable Export Control Laws or SWREG’s territorial restrictions
for permitted commerce, including without limitation Your designation on one or
more Restricted Parties Lists or residence in or provision of Products from a
country which is embargoed/sanctioned or in which SWREG does not conduct
commerce.
You
shall not offer to SWREG for resale, directly or indirectly, any Product which is subject to export licensing
requirements, or which has an end use which is prohibited by applicable Export
Control Laws. All Products sold to SWREG for resale are subject to
US Export Control Laws, and diversion contrary to US law is prohibited.
You
shall ensure that the store-related pages hosted by You associated with the
sale of Your Products by SWREG as the seller of record through the SWREG Site
include a statement, in a prominent location, that all merchandise sold through
Your website are subject to US export control laws and regulations and that
diversion of such goods contrary to US export requirements are strictly
prohibited. (Such statement may appear in the terms of use for such pages which
are linked to on such pages via a hyperlink, or if no such terms of use exist,
shall be displayed on such pages.)
SWREG or its forwarding agent shall be
responsible for (1) the legal and lawful export of all commodities fulfilled to
an End User which are sold to such
End User by SWREG, and (2) completion
of all applicable export documentation and reporting required by Export Control
Laws, including without limitation Electronic Export Information (“EEI”) filings, and You shall
timely provide to SWREG any requested information necessary for SWREG to comply
with its obligations in this regard.
Where You act as SWREG’s fulfillment agent for the fulfillment of
Products resold by SWREG, You (and
not SWREG) shall be responsible for the foregoing obligations as SWREG’s
agent, and You will provide SWREG with scanned copies of all EEIs and
supporting documentation within three (3) calendar days following the date of
shipment, which will be sent to SWREG via email at orm@swreg.org. The
parties’ obligations under this Section 3(E) shall be considered material
obligations for the purposes of this Agreement.
F. Support. Please
note that SWREG does not provide software help-desk or other forms of technical
support concerning Your Products. SWREG’s support is limited to assistance
to End Users with the use of the SWREG Site and its shopping cart to make
purchases, as well as concerning any deliveries by SWREG of Software downloads, license keys and/or tokens if You have purchased
those Additional Services from SWREG.
G. End User Information. Because SWREG is the seller of Your Products
to End Users, SWREG is the party with whom the End User is transacting
business. As such, the End User is
giving his/her/its personally identifiable information to SWREG. As between You and SWREG, neither party
will own any End User information provided in connection with a sale by SWREG,
but shall have rights to use such information as set forth in this paragraph in
accordance with applicable laws, rules and regulations. SWREG will provide You
with access to certain End User information (excluding payment account
information) in connection with SWREG’s reporting to You of sales of Your
Products. You agree to only use End
User information in compliance with Your publicly
displayed privacy policy and with all applicable laws and regulations.
H. Privacy
Policy. The Privacy Policy for the SWREG Site (posted
at [JESSY TO PROVIDE CORRECT URL]) describes how SWREG may store, use
and disclose personal information about You and about
End Users. You agree to the terms of that Privacy Policy as it is now issued
and as it may be amended in the future by SWREG. You agree that You will not do anything to interfere with SWREG’s
Privacy Policy and how it impacts End Users, and You agree that SWREG has sole
control of the terms and enforcement of SWREG’s Privacy Policy. You will ensure that the privacy policy
for Your Site(s) clearly discloses that purchases through Your Site(s) will be
through an authorized reseller, and that the End User will be providing their
information to Your authorized reseller subject to the
authorized reseller’s privacy policy.
I. Subscription-Based Products. You
understand and acknowledge with respect to any Products which require automatic
rebilling (including without limitation renewing subscription-based products),
SWREG shall only process such renewal billing provided that each End User has
clearly and unambiguously consented to automatic periodic billing of its
subscription by SWREG in the manner required by SWREG (which may, in
SWREG’s sole discretion, include without limitation “opt-in”
consent through the SWREG Site), and is permitted by and in compliance with all
applicable laws, rules and regulations, including card association and payment
processor rules and regulations (collectively, “CC Requirements”),
as reasonably interpreted by SWREG.
In connection with subscription-based products, You will provide each
End User with the ability to terminate his/her subscription in a clear and
unambiguous manner as required by CC Requirements and in a manner acceptable to
SWREG, and that you will comply with SWREG’s subscription practices best
policy as made available to you through the SWREG online account interface
and/or provided to You in writing or by email from time to time. You agree to immediately provide SWREG
with information regarding a subscription cancellation immediately following Your receipt of such cancellation by an End User.
You also understand and
acknowledge that based on card association and payment processor rules, SWREG
may be restricted or prohibited from assuming the automatic rebilling of
subscriptions previously processed by a different entity, and from transferring
End User information (including without limitation credit card information) to
You or any other third party.
J. SWREG Audit Rights. You
agree that SWREG may, at any time, conduct an audit of Your Site to ensure Your compliance with the terms and requirements of this
Agreement. You agree to provide
reasonable assistance to SWREG, at no charge to SWREG, in connection with such
audit if such assistance is requested by SWREG. In the event SWREG determines through an
audit that Your Site is in violation of or noncompliance with any of the terms or
requirements of this Agreement and/or Your obligations under this Agreement, (i)
You agree to reimburse SWREG its reasonable costs of performing such audit on a
time and materials basis at the hourly rate of One Hundred and Fifty Dollars
($150) per hour, which amounts may be offset by SWREG against amounts due to
You under this Agreement, and (ii) You will immediately take action to rectify,
to SWREG’s satisfaction, any and all such violations and/or noncompliance
identified by SWREG. You understand
that SWREG may, at its option and without opportunity to cure, suspend Your account or terminate this Agreement if You fail to
timely rectify such violations or issues, or if SWREG determines that
suspension prior to correction is required to control SWREG’s risk.
4. PRICING
AND PAYMENTS
A. Sale
of Products. For each sale of a Product by SWREG to an End User, SWREG will
purchase the Product from You for the Purchase Price. All amounts which SWREG owes You for the sale of Products by SWREG shall be placed in a
general in-house account maintained by SWREG, and SWREG will pay You from that
account as described below.
B. Taxes. In
addition to charging the End Users the retail price, SWREG will collect and
remit to the proper authorities, where SWREG is legally required to do so, any
sales tax, value‑added-tax (VAT), or similar tax or similar government
fees that are based on the sale of Your Products by SWREG to End Users (collectively
“Sales Taxes”). Any
collected Sales Taxes will not be placed into Your
account but shall instead be paid by SWREG to the appropriate government
authority.
You will be solely
responsible for the collection and payment of any and all applicable sales or
use, value added and/or other similar consumption-based taxes imposed on Your sale of Products to SWREG (or Your income derived therefrom).
The Purchase Price for a Product shall be inclusive of all required sales or
use, value added and/or other consumption-based taxes, provided that You shall
not assess any tax on SWREG in connection with the sale of a Product to SWREG
unless and until You have asked SWREG to provide a resale exemption
certificate, and SWREG has informed You that it is unable to do so. You shall provide to SWREG all data
reasonably necessary for SWREG to support any taxes included in the purchase
price of a Product. For the
avoidance of doubt, under no circumstances shall SWREG be deemed to be
providing tax advice or consulting services to You. You shall be solely responsible for, and
shall hold SWREG harmless from and against, the calculation of taxes due from SWREG
on Your sale of Products to SWREG, and any failure to collect taxes from SWREG
on Your sale of Products to SWREG at the time of sale to SWREG (including
without limitation interest and penalties that result from any failure). If SWREG determines that the sale of Products
or the fulfillment of a Product into any particular place will put SWREG in
violation of local tax laws, SWREG may choose to refuse to make sales to End
Users in those locations.
C. Refunds. SWREG’s
policy is to provide End Users with a thirty (30) day right to return a Product
for a refund of the purchase price paid by the End User (unless a longer period
is required by law in which case End Users may return a Product as permitted by
applicable law), provided the End User has electronically certified to SWREG
that they have destroyed any copies of the related Product in their possession. You can view the full SWREG returns
policy at [JESSY TO PROVIDE CORRECT URL]. As the seller and merchant of
record, SWREG is responsible for setting and applying the returns policy
applicable to the SWREG Site. You shall accept for return any Products returned
to SWREG by an End User which return is either (a) in compliance with SWREG’s
returns policy, and/or (b) required by applicable law, or (c) as provided in an
effort to keep chargeback rates at a minimum. If SWREG processes any refunds to End
Users who have purchased Your Products from SWREG, SWREG will deduct the amount
of the refund from amounts due to You. SWREG will be entitled to keep an amount
equal to (i) for sales transactions on which American Express was used as the
payment method, the SWREG Discount earned by SWREG on the sale to the End User,
or (ii) for sales transactions on which any other payment option was used as
the payment method, One Dollar ($1) in connection with each return processed by
SWREG, even if the End User makes a return or such sale becomes subject to
chargeback as described below. You
further agree that SWREG may treat any non-fraudulent chargeback or other non-fraudulent
End User-, bank-, or payment processor-initiated reversal of a previously
completed payment, and any sales transaction identified as fraudulent
subsequent to settlement of payment but prior to receipt of a fraudulent
chargeback for such sales transaction, as an order-level satisfaction return
and refund validly provided by SWREG, and that You shall accept each such
return from SWREG.
If requested by You and
agreed to by SWREG, SWREG will appoint You as SWREG’s agent for
processing returns on SWREG’s behalf, in accordance with the SWREG
returns policy. You will be
responsible for contacting an End User within two (2) business days of initial
contact by the End User in order to confirm whether the End User’s return
will be accepted; if You authorize the return based on
the SWREG returns policy, You will indicate that a return has been authorized
through the SWREG client interface.
In the event You fail to properly and timely
manage returns on behalf of SWREG, SWREG may immediately revoke Your ability to
manage returns on SWREG’s behalf.
D. Chargebacks,
Fraud and Suppressed Orders. A “Chargeback” is another form of
refund that happens when a credit card processor or bank unilaterally revokes a
prior transaction, which may be done under the rules of the credit card banking
system for such reasons as fraud or suspected fraud, End User complaint, or
other reasons determined at the sole discretion of the credit card processors
and/or banks. You acknowledge that credit card transactions over the SWREG shopping
cart are ‘non-swiped’ and have no physical signature from an End
user, and thus are subject to a higher level of Chargeback activity compared to
physical credit card transactions with wet-ink signatures. SWREG makes no promises as to whether or
how credit card processors and/or banks will interpret their rules or rights
concerning Chargebacks. SWREG may deduct from Your account any amounts
attributable to or resulting from Chargebacks on End User transactions, fines
and/or penalties incurred by SWREG or its parent company resulting from Your
Chargebacks, and any other activities that are deemed by SWREG to be fraudulent
or criminal. The amount which may
be deducted from Your account may include the original
amount of the transaction as well as additional fees or penalties resulting
from Chargebacks on sales of Your Products.
Additionally, in the event (a)
the number of sales transactions for any of Your Products resold by SWREG subject
to a Chargeback of any form during any given calendar month exceeds One and
One-Half Percent (1.5%) of the total number of sales transactions for that Product
by SWREG during that calendar month, or (b) the number of sales transactions of
all of Your Products resold by SWREG subject to a Chargeback of any form during
any given calendar month exceeds One and One-Half Percent (1.5%) of the total
number of sales transactions for Your Products during that calendar month, You agree
that SWREG may charge Your account twenty five dollars ($25) per Chargeback in
excess of that threshold during that calendar month. In the event (a) the
number of sales transactions for any of Your Products resold by SWREG subject
to a Chargeback of any form during any given calendar month exceeds Two and
One-Half Percent (2.5%) of the total number of sales transactions for that Product
by SWREG during that calendar month, or (b) the number of sales transactions of
all of Your Products resold by SWREG subject to a Chargeback of any form during
any given calendar month exceeds Two and One-Half Percent (2.5%) of the total
number of sales transactions for Your Products during that calendar month, You
agree that SWREG may charge Your account fifty dollars ($50) per Chargeback in
excess of that threshold during that calendar month. Without limiting the foregoing,
in the event any of the above thresholds is achieved in a given calendar month,
SWREG may also, in its sole discretion, refuse to sell the affected Product(s) and/or
may immediately terminate this Agreement upon notice to You.
Further,
any sale where the fulfillment of a Product has been made by SWREG upon receipt
of a valid payment authorization but is subsequently rejected or cancelled
prior to settlement by SWREG, the merchant bank or payment processor, will not
be treated as a completed sale to an End User by SWREG for the purposes of
calculating payments due to You. The
existence or possibility of fraud or criminal activity will be determined by SWREG
in SWREG’s reasonable discretion, and SWREG may make any inquiries and
investigations it deems appropriate.
E. Payment
Method and Frequency. As of the pay cycle that follows the
sixtieth (60th) day after the date of the first sale of Your Products under
Your account and at the end of each pay cycle thereafter, SWREG will send You a
payment in the form You select (in Your account settings) for the accrued
amounts due to You from SWREG (except that if the total amount SWREG owes to
You at the end of a pay cycle will be less than Fifty Dollars ($50), SWREG will
withhold payment until the next pay cycle where the total amount due to You is
greater than this minimum). Pay cycles are on a monthly basis unless otherwise
specified and unless You are due less than the monthly
minimums. Amounts due to You in connection with orders processed by SWREG in a
given month will be sent to You no later than the fifteenth (15th) day of the
following calendar month (example: Proceeds of orders filled in February will
be paid by March 15). If SWREG, in its sole discretion, deems You to be in good
standing after doing business with SWREG for no less than four (4) months, You
may request weekly payments, which are typically made on Tuesdays for an
additional surcharge equal to One Percent (1%) of each payment to You.
SWREG’s obligation to
pay You is subject to the following:
i. You
expressly agree that SWREG may offset from amounts due to You
any and all amounts due to SWREG under or arising out of this Agreement
(including without limitation Chargebacks and related fines and penalties, and
amounts due for Additional Services).
ii. All payments will be made via ACH direct deposit (for US
clients), BACS (UK clients), PayPal, international wire, except as set forth
below. Direct Wires may be processed at Your request for a fee of $20 per wire. Corporate checks/bank drafts are also
available for a fee of $4 per draft.
iii. SWREG may determine to hold back some or all of the money due
to You if SWREG believes that it might be necessary to cover future refunds,
other amounts due or reimbursable to SWREG as set forth in this Agreement, or
other liabilities You may owe to SWREG. SWREG may also holdback some or all of
the money due to You if SWREG believes that the funds represent fraudulent
transactions or involve other kinds of illegal activities, or if SWREG has a reasonable
basis to believe that it will incur future Chargebacks and/or related fines and/or
penalties which relate to SWREG’s sale of Your Products. SWREG will only
holdback those amounts which SWREG determines are reasonable under the
circumstances. SWREG’s statements or other communication from SWREG will
note how much SWREG is holding back. SWREG will keep any held-back amounts only
for a reasonable time as determined in SWREG’s sole discretion, and will
promptly pay over to You any remaining held back
amounts after that reasonable time has passed. Regardless of any holdback SWREG
may choose to keep, You agree to pay SWREG, upon
demand, for any shortfall owed to SWREG due to refunds, Chargebacks, fraud,
suppressed orders, affiliate commissions or fees for services rendered if they cannot
be offset from Your account within ninety (90) days of the date SWREG first
seeks to offset such charges. If SWREG actually keeps (or sets off) against Your
account with SWREG any of the funds SWREG has held back, SWREG will do so in a
manner that SWREG believes fairly reflects Your liability owed to SWREG, and SWREG
will note the setoff and an explanation of the setoff on Your next statement
that SWREG issues to You.
iv. Any and all fees, payments,
compensation, consideration, and other money amounts shall be expressed and
payable in United States Dollars unless otherwise requested by You and approved
in writing by SWREG. In the event SWREG
receives funds in connection with a transaction in a currency other than United
States Dollars (or the applicable payment currency approved by SWREG), SWREG
will convert such receivables to United States Dollars (or the applicable
payment currency approved by SWREG) using industry-accepted bank conversion
rates which may be adjusted by SWREG for volatility and liquidity risk. Amounts in Your account with SWREG will
not accrue interest while in SWREG’s possession.
v. In certain limited circumstances, SWREG may, in its sole discretion, allow
You to designate certain additional payees (each, a “Third Party
Payee”) to whom SWREG will pay a portion of the amounts due to You as
Your payment agent. SWREG may place
limits on the number of Third Party Payees You may
designate. You will provide all
information regarding Third Party Payees that SWREG requests for verification
and processing purposes. You
represent and covenant that You will not designate any
Third Party Payee for the purposes of paying salaries or other wages,
attorneys’ fees, or contractors. You agree and acknowledge that neither
SWREG nor any of its corporate affiliates are responsible for withholding any
applicable taxes from Third Party Payees, or for any type of tax reporting to
Third Party Payees (including without limitation 1099-MISC reporting), and that
You and Your Third Party Payees are solely responsible for doing so. You agree and acknowledge that SWREG may
cease offering You the ability to split amounts due to
You to Third Party Payees in general, or to any specific Third Party Payee, at
any time in SWREG’s sole discretion.
vi. You expressly agree that SWREG may change the fees set
forth in this Agreement at any time, but SWREG will give You at least thirty (30)
calendar days notice prior to the effective date of any such change.
5. PROMISES
TO SWREG
You make the following
promises, representations, warranties and covenants to SWREG:
A. You have all rights necessary to sell each
of Your Products to SWREG for SWREG’s resale. If You
have SWREG distribute Your Software or associated files, license keys or
tokens, You have the right to allow SWREG to provide that Additional Service. Your
Products, and SWREG’s sale, copying, storage and distribution of Your Products,
does not and will not infringe, violate or misuse anybody else’s
intellectual property or other proprietary rights. The above warranties and
promises are valid for sale and distribution to End Users throughout the world.
B. Any descriptions You
provide for Your Products that will be displayed on the SWREG Site are
accurate, and are not in violation of, and will not violate, any applicable
laws or regulations concerning advertising claims or other forms of consumer
protection laws.
C. You have the right to enter into this
Agreement, and that the person accepting this Agreement on Your behalf is of
legal age and has the authority to contractually bind You to this Agreement, or
by accepting SWREG’s value added reseller services, You ratify that
person’s binding of You to this Agreement. If that person is not so authorized,
that person agrees that he or she is also personally responsible for whatever
is done on Your account under this Agreement.
D. Your Products, including all content
within it: (i) is not libelous, does not slander others, does not contain
obscene or pornographic material, and is not illegal to use; (ii) does not contain
devices which are intended to be used to perform illegal activities (such as,
but not limited to, tools, devices or software used to defeat data encryption
devices); (iii) does not contain any viruses, Trojan horses, malware, spyware,
adware or other disruptive software, or any software code which is designed to
disrupt, damage, or perform unauthorized actions on a computer system, or which
transmits data from a user’s computer without notice to and the express
prior consent of the user; and (iv) is not designed as a tool for processing
e-mail for mass mailing (“spamming” tools or the like). SWREG’s sale of, and the fulfillment of, Your Products will
not violate any laws concerning export over national borders, including laws involving
encryption technology.
E. All of the information You entered during the SWREG sign-up process is correct as
of the time You entered it. You also promise that You
will update any of that information when it has changed by updating Your online
account interface. You can access Your registration
information on Your Account page.
F. Anyplace You promote the sale of Your Products
where You provide End Users with a hyperlink or other means to reach the SWREG
Site (whether on a Web site, e-mail, on paper or any other means), You will not
display any inaccurate or misleading information concerning Your identity, location,
or Products, or SWREG’s status of the seller and merchant of record to
End Users.
G. If SWREG provides or makes available to
You any proprietary and non-public information relating to SWREG, its systems,
clients and/or customers, You will keep such information strictly confidential
using no less than reasonable care; You will only access and use such
information to the extent necessary for Your use of SWREG’s services; and
You will not allow any third party to access or use such information without
SWREG’s express prior written consent.
H. You will not engage in deceptive trade
practices, market to End Users who have not affirmatively consented to receive
solicitations from You, or otherwise violate any laws, rules or regulations
applicable to the sale of Your Products and the conduct of Your business.
I. You will not use commercial e-mail
(solicited or unsolicited) to market Your Products, or commercial e-mail that identifies
SWREG or the SWREG Site, if that use of commercial e-mail violates any
applicable laws or regulations regarding the use of commercial e-mail. You will
comply with any legal obligations to provide proper labeling and content within
its marketing e-mails, and to provide opt-in or opt-out
capabilities to recipients and comply with any such requests. Any advertising
or other marketing materials that mention or contain hyperlinks to SWREG or the
SWREG Site must be in compliance with all laws concerning advertising and
marketing for the territories where You deliver those
materials. You are responsible for compliance with all of the above, whether You provide the e mails or advertisements on its own or use
the services of a third party. If SWREG is charged any fines, penalties or
incur any costs, including attorney fees, because of its non-compliance with
the above, You agree to indemnify and reimburse SWREG
any of those amounts upon SWREG’s demand, and to allow SWREG to offset
any such amounts from amounts due to You.
J. You shall not any time hold SWREG
(including its parents, subsidiaries, partners or affiliates) or its employees,
officers, directors or shareholders up to public scorn, ridicule or defamation.
K. You shall make any and all changes that SWREG
mandates to Your Site, including adding disclosures or disclaimers as needed to
comply with applicable law, rules, regulations, guidelines, or best practices
in SWREG’s sole discretion.
If You
ever have reason to believe there is any reason these promises,
representations, warranties and covenants are not true, now or in the future,
You promise to promptly tell SWREG.
6. RESERVED
RIGHTS; DISCLAIMER OF WARRANTIES
A. You acknowledge that SWREG may, in SWREG’s
sole discretion with or without advance notice, decline to sell or distribute any
or all of Your Products at any time.
B. [Intentionally omitted]
C. SWREG’s trademarks, service marks
and business names (SWREG’s “Trademarks”)
are owned or licensed solely and exclusively by SWREG. You may not make any
press release regarding this Agreement, or use SWREG’s name or logo to
refer to SWREG, or use SWREG’s Trademarks, without SWREG’s express
prior written consent to do so. All
of Your use of SWREG’s Trademarks shall inure to SWREG’s benefit.
You agree, upon SWREG’s demand, to promptly stop or alter any of Your uses of SWREG’s Trademarks which SWREG deems to
be improper or which may have the potential to put SWREG’s Trademark
rights at risk.
D. SWREG provides its value-added reseller services to You on an “AS-IS” basis and makes no promises as
to the percentage up-time or that the SWREG Site will operate completely without
error. SWREG MAKES AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR
IMPLIED, CONCERNING THE QUALITY OF THE SWREG SITE, THE ADDITIONAL SERVICES, AND
THE OTHER SERVICES PROVIDED BY SWREG PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND NON‑INFRINGEMENT.
7. LIMITATION OF LIABILITY
Except for any obligations SWREG
has to pay You the amounts in Your account that are owed to You (less any
applicable offsets of amounts due to SWREG), You agree that Your sole remedy
for any breach of this Agreement by SWREG is for You to terminate this
Agreement. UNDER NO CIRCUMSTANCES
SHALL SWREG’S AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT OR ARISING
OUT OF SWREG’S RELATIONSHIP WITH YOU UNDER THIS AGREEMENT, REGARDLESS OF
HOW THE LIABILITY ARISES, EXCEED THE NET AMOUNT ACTUALLY REALIZED BY SWREG
UNDER THIS AGREEMENT FOR THE PREVIOUS SIX (6) MONTHS. SWREG SHALL NOT HAVE ANY
LIABILITY TO YOU OR TO ANY OTHER PERSON OR ORGANIZATION FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY
DESCRIPTION (INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOSS OR INTERRUPTION
OF BUSINESS), WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL
THEORY, REGARDLESS OF WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND
IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS. THE LIMITATIONS UPON DAMAGES AND CLAIMS
SET FORTH IN THIS AGREEMENT ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER
OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN HELD TO BE
INVALID OR INEFFECTIVE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF
ANY LIMITED REMEDY PROVIDED HEREIN, AND FORM A FUNDAMENTAL PART OF THE BASIS OF
THE BARGAIN BETWEEN YOU AND SWREG.
9. YOU
INDEMNIFY US FOR CERTAIN LOSSES
You
shall indemnify and hold harmless SWREG, its parents, subsidiaries and/or
affiliates, together with their officers, employees, directors, successors and
assigns, as such, from and against any liabilities, claims, actions, suits,
proceedings, judgments, losses, damages, costs and expenses, including
reasonable attorneys' fees, resulting from any claim (the "Indemnified
Claims") that are made by a third party, including without limitation by
an End User, that arise from, result from, or relate to:
a. Any claim that Your Products resold by SWREG,
or Your Site(s), violates a patent, copyright, trademark, trade secret or other
intellectual property right of any third party recognized under the laws of any
jurisdiction where Your Products are offered for sale, or where Your Site(s)
may be directed for viewing;
b. Any claim that any of Your Products and/or Your Site(s) are defamatory,
slanderous, or in violation of the rights of privacy or publicity of any person
(including without limitation an End User) where such claims are recognized
under the laws of any jurisdiction where Your Products are offered for sale or to
where Your Products are fulfilled, or where Your Site(s) may be directed for
viewing;
c. Any claim that Your Products have not been fully tested under applicable
laws, rules and regulations (including without limitation the regulations
promulgated by the Consumer Product Safety Commission), or that the resale of
such Products by SWREG in and of itself violates any applicable laws, rules and
regulations (including without limitation any applicable mandatory safety
standards);
d. Product warranty claims;
e. Your fulfillment and shipment of Products
purchased by End Users from SWREG, including any failure of a shipment to be
delivered due to no fault of SWREG or the End User;
f. Any alleged or actual failure on Your part to comply with Your obligations
under this Agreement, including without limitation any breach of Your
representations or warranties under this Agreement; or
g. Personal injury, property damage or product liability, or any
grossly negligent or intentionally tortious acts or omissions You commit, in
connection with this Agreement or the creation, manufacture, delivery or use of
Your Products.
SWREG shall have sole control
over its own defense of any Indemnified Claims. However, You
shall reimburse SWREG upon our demand, on no less than a monthly basis, for any
costs we have incurred in defending against any of the Indemnified Claims, and
expressly agree that SWREG may offset such costs against amounts due to You
under this Agreement. You shall cooperate, at Your
sole cost, with any of SWREG’s reasonable requests made in connection
with its defense of Indemnified Claims, including Your personal appearance at
official proceedings of courts or administrative agencies, providing sworn
testimony, answering written questions under oath, or providing documentary
evidence. If You are also a party to any of the
Indemnified Claims, You are responsible for providing Your own defense
(including providing Your own attorney) at Your own cost.
10. TERM AND TERMINATION
This Agreement starts on the
date SWREG acknowledges its acceptance of this Agreement, and will continue
until terminated. Either You or SWREG
may terminate this Agreement with or without cause by providing the other with thirty
(30) calendar days prior notice of its decision to terminate. In the event You are in breach of this Agreement or have failed to comply
with Your obligations under this Agreement, SWREG may terminate this Agreement
without any obligation to give You prior notice of termination or opportunity
to cure. Neither You nor SWREG is obligated
to continue under this Agreement for any period of time, and You should not
rely upon whether or not we will continue to resell Your Products for any
period of time.
If Your account has no sales
activity for a period of six (6) consecutive months, SWREG reserves the right
to charge You an account dormancy fee equal to Five Dollars (USD $5) per month
in each subsequent month during which Your account has no sales activity, or at
its option to alternatively terminate this Agreement upon notice to You.
Account dormancy fees will not be assessed against accounts without a payable
balance.
Once this Agreement has been
terminated, (a) You will immediately cease any use of SWREG’s name, logos
or Trademarks, and remove any hyperlinks to the SWREG Site that deal with the
sale and/or distribution of Your Products; (b) SWREG will promptly halt any
sale of Your Products and will promptly give notice to all affiliates that SWREG
knows are promoting the sale of Your Products to discontinue linking to the SWREG
Site for that purpose (but SWREG is not responsible for whether or not the affiliate
complies with that notice); (c) SWREG may holdback funds and charge against
those funds any amounts which SWREG is entitled to under this Agreement; and (d)
You will continue to be responsible for any liability that might arise out of Chargebacks,
any infringement of intellectual property rights, any violation of laws, rules
or regulations that may have occurred as a result of Your Products being resold
and/or distributed via the SWREG Site, and any breach by You of the terms of
this Agreement.
SWREG’s obligation to
make payments to You of amounts due to You, SWREG’s holdback and offset
rights as described herein, Your obligation to pay SWREG for any amounts due to
SWREG, and any other 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.
11. OTHER TERMS
A. No
Exclusivity. Neither You nor SWREG is obligated to deal
exclusively with the other. You may
use other means or companies to sell Your Products, and SWREG may sell software
products provided by others that may be similar to or competitive with Your Products.
B. Notices.
If You are obligated under this Agreement to tell SWREG something or You wish
to give SWREG legal notice of any kind, You must do so in writing and deliver
it by certified mail, postage pre-paid and return receipt requested OR by
nationally recognized overnight courier which provides a written proof of
delivery, to the following address: DR MyCommerce, Inc. d/b/a SWREG, ATTN:
General Counsel, 10380 Bren Road West, Minnetonka, Minnesota 55343, United
States of America.
If SWREG is obligated under
this Agreement to tell You something or SWREG wishes
to give You legal notice of any kind, SWREG may do so by use of any of the addresses
You gave to SWREG through the SWREG online account interface, including postal
mail or e-mail. If any such notice fails to reach You
because You gave SWREG inaccurate address information, SWREG’s notice
shall nonetheless be deemed to have been delivered to You.
C. Changes to this Agreement. SWREG
reserves the right to amend or modify this Agreement, or any portion of this Agreement.
In the event of an amendment or modification, You will
be notified of such updated version of the Agreement in Section 11(B) above. If
You do not wish to agree to the updated version, You
will have the right to terminate this Agreement by giving SWREG notice of Your
desire to terminate provided You provide SWREG with Your notice of termination
within thirty (30) calendar days of the date of such notice of an updated
version of the Agreement from SWREG. If You do not
terminate the agreement within that thirty (30) calendar day period, You will
be deemed to have accepted the updated version of the Agreement between us
effective as of the end of that thirty (30) calendar day period, and the prior version
of the Agreement will be superseded by the updated version of the Agreement.
D. Waiver; Severability. No waiver of any
provision or breach of this Agreement (a) shall be effective unless made in
writing, or (b) shall operate as or be construed to be a continuing waiver of
such provision or breach. Any
failure by SWREG to enforce any of its rights under this Agreement or any
applicable laws shall not constitute a waiver of such right. The invalidity of non-enforceability of
any provision of this Agreement, as determined by a court of competent
jurisdiction, shall not affect the other provisions hereof, and in any such
occasion this Agreement shall be construed in all respects as if such invalid
or non-enforceable provisions were omitted, and the invalid or non-enforceable
provision of this Agreement shall automatically be construed as replaced with a
valid and enforceable provision which most closely meets or approximates the
intent and economic effect of the invalid or non-enforceable provision.
E. Governing Law; Venue. This Agreement
shall be governed by and interpreted under the laws of the State of Minnesota,
United States of America, without respect to or application of its conflicts-of-laws
provisions. The parties specifically disclaim application of (i) the United
Nations Convention on the International Sale of Goods, and (ii) of Article 2 of
the Uniform Commercial Code as codified.
If there are any disputes or conflicts related to or arising out of this
Agreement, You and we shall use reasonable means to resolve the conflict prior
to starting any lawsuits or other litigation, including negotiation between
management personnel capable of resolving the conflicts. However, in the event
either You or we should start any litigation arising
out of this Agreement, You expressly agree that the litigation will take place
exclusively in the state or federal courts located in Hennepin County,
Minnesota, United States of America, and You expressly agree that any such
court has personal jurisdiction over You. You waive all defenses of lack of
personal jurisdiction and forum non-conveniens. Process may be served on either
party in the manner authorized by applicable law or court rule.
F. Entire Agreement; Assignment. This
Agreement sets forth the entire understanding between You
and SWREG with respect to its subject matter, and supersedes any and all prior
or contemporaneous proposals, communications, agreements, understandings, negotiations,
and representations, whether written or oral, related thereto, which shall have
no effect as of the date this Agreement becomes effective. You may not assign
this Agreement, or any of Your rights or obligations under this Agreement
(whether directly or indirectly, in whole or in part, by operation of law or
otherwise) without SWREG’s express prior written permission to do so, and
any attempt to assign in violation of the preceding shall constitute an
incurable material breach of this Agreement and shall, at SWREG’s option,
render this Agreement null and void. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties and their permitted
successors and assigns.
G. Relationship
of the Parties. This Agreement shall
not in any respect whatsoever be deemed to create a partnership, joint venture,
or other business combination between You and SWREG.
Neither You nor SWREG shall be obligated by any agreement, representation or
warranty made by the other, nor shall You or SWREG be obligated for damages to
any person or organization for personal injuries or property damage directly or
indirectly arising out of the conduct of the other party’s business or
caused by the other party’s negligence, willful act, or failure to act.
There are no third-party beneficiaries through You
under this Agreement.
H.
Electronic Signatures. YOU
HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER
RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF
TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SERVICES PROVIDED BY SWREG.
Further, You hereby waive any rights or requirements under any statutes,
regulations, rules, ordinances or other laws in any jurisdiction which require
an original signature or delivery or retention of non-electronic records, or to
payments or the granting of credits by other than electronic means.
I. Other. SWREG is relieved of any
obligation to perform under this Agreement if we are unable to perform as a
result of any reasons or conditions beyond SWREG’s reasonable
control. Notwithstanding any
applicable statute of limitations, You and SWREG agree
that any claims for breach of this Agreement shall be brought within two (2)
years of the date that party first learns of such breach. No provisions in Your purchase orders or other business forms (including by
way of example but not limitation, any Statement of Work or Change Order Form)
shall modify, supersede or otherwise alter the terms of this Agreement. SWREG may engage the services of
subcontractors or agents to assist SWREG in the performance of its obligations,
and SWREG will be responsible for the acts and omissions of such subcontractors
and agents.
v12.01.6 (0103)