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:
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.
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 email@example.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.
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 firstname.lastname@example.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.
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.