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) Two and Nine-Tenths Percent (2.9%) 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) Four and Nine-Tenths Percent (4.9%) 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,
but excluding the selling price of any Optional Offering included in such
completed purchase.
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. You
acknowledge that SWREG may, in its sole discretion, resell Products to its corporate
affiliates for the immediate subsequent resale and transfer of such Products to
End Users by such corporate affiliate. 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. Backup
CD Option, Download Insurance Service, and Registration Backup Service. SWREG
may, at its option, offer to End Users any combination of (a) its Backup CD
Option through which an End User may elect to purchase a copy of the downloaded
Product on CD, (b) its Download Insurance Service which provides storage of a
purchased Product on SWREG’s server for an End User to re-download their
purchase for up to two (2) years from the date of purchase, and/or (c) its
Registration Backup Service which provides storage of purchased license keys on
SWREG’s server for an End User to re-download for up to two (2) years from the
date of purchase (each, an “Optional Offering”). You will provide SWREG with a copy of Your
Software in the event SWREG elects to offer the Backup CD Option or Download
Insurance Service to End Users. SWREG
may elect to offer one or more of these Optional Offerings to End Users where SWREG
sells Your Products to End Users. SWREG
shall set and maintain pricing for the Optional Offerings. SWREG will pay You Twenty Percent (20%) of
the selling price for every approved order of an Optional Offering sold by SWREG. In the event You interfere with SWREG’s offering
of one or more of the Optional Offerings, Your account may be suspended or
terminated at SWREG’s option.
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 export@digitalriver.com. 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 export@digitalriver.com. 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. SWREG shall have the right to use End User
information 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 US: cs.mycommerce.com/privacy-policy/swreg/mcus and EU: cs.mycommerce.com/privacy-policy/swreg/mcie)
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
US: cs.mycommerce.com/terms-of-sale/swreg/mcus and EU: cs.mycommerce.com/terms-of-sale/swreg/mcie. 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 its margin
earned on the sale to the End User, 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.
In the event that SWREG believes in good faith that any or all of the
money due to You represents a fraudulent transaction or otherwise involves
other kinds of illegal activities, SWREG shall have the right, in its sole
reasonable discretion, to cancel such transactions, which shall be treated as a
validly accepted return for the purposes of this Agreement, and refund the
applicable End Users.
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. SWREG is permitted to display in any post-purchase
pages and communications (including without limitation any thank You page,
confirmation page, confirmation e-mail, and any pages following the actual
submission of an order for processing) information of SWREG’s choosing,
including in SWREG’s sole discretion cross-sells, up-sells and other marketing
opportunities offered by third-party advertisers. You grant to SWREG and any such third-party
advertiser a right and license to use Your site URL and Your name, trademarks
and logos in connection with such marketing, both (a) during the period such
marketing opportunities are offered on the post-purchase pages and (b)
thereafter to remind participants in such marketing opportunities of the manner
in which such participant elected to participate in such opportunities in
connection with renewals and support related to such opportunities.
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. Upon termination or
expiration of this Agreement, You will be charged an account closing fee equal
to Two-Hundred and Fifty Dollars ($250) USD, which SWREG may offset from
amounts otherwise due to You.
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.
v15.01.2.9 (1013)