Manufacturers Bundling Distribution Agreement

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This Manufacturer's Bundling Distribution Agreement is for use by a corporation who has developed or acquired rights to software and a distributor who will bundle and sell it with other software products.

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This Manufacturer's Bundling Distribution Agreement is between a corporation who has developed or acquired the rights to certain software programs and a distributor who will sell and distribute the software, which may be bundled into or sold in connection with other products.

This agreement contains a comprehensive list of definitions, rights granted to distributor (such as limitations on use) and distributor's obligations. It also contains provisions regarding license fees, revenue sharing, warranties and confidentiality issues (i.e. rights and protection of data).

This Manufacturer's Bundling Distribution Agreement contains:
  • Parties: Sets forth the names and addresses of the corporation and distributor;
  • Intent: This agreement sets forth that distributor will bundle the products for sale and distribution;
  • Markings: Distributor agrees to place the appropriate trademark or logo on the distributed products;
  • Reports: Distributor will submit a report to corporation within ten days of each quarter setting out any new sublicensee of the product;
  • Records: Parties agree to keep accurate records of their property (for use when the parties are retaining some separate property);
  • License Fee: Sets forth the amount of the license fee the distributor will pay to manufacturer;
  • Confidentiality: Distributor acknowledges that all rights in the data will be kept confidential;
  • Signatures: Both parties must sign this agreement.

Protect yourself and your rights by using our attorney-prepared forms.

This attorney-prepared packet contains:
  1. General Information
  2. Instructions and Checklist
  3. Manufacturers Bundling Distribution Agreement
State Law Compliance: This form complies with the laws of all states
This is the content of the form and is provided for your convenience. It is not necessarily what the actual form looks like and does not include the information, instructions and other materials that come with the form you would purchase. An actual sample can also be viewed by clicking on the "Sample Form" near the top left of this page.













Manufacturer's Bundling Distribution Agreement










This Packet Includes:
1.  General Information
2.  Instructions and Checklist
3.  Manufacturer's Bundling Distribution Agreement











General Information
Manufacturer's Bundling Distribution Agreement

This Manufacturer's Bundling Distribution Agreement is between a corporation who has developed or acquired the rights to certain software programs and a distributor who will sell and distribute the software, which may be bundled into or sold in connection with other products.

This agreement contains a comprehensive list of definitions, rights granted to distributor (such as limitations on use) and distributor's obligations.  It also contains provisions regarding license fees, revenue sharing, warranties and confidentiality issues (i.e. rights and protection of data).

It is imperative that this agreement be clearly set forth in writing.  A written Manufacturer's Bundling Distribution Agreement will prove invaluable in the event of misunderstandings or litigation between the parties.

  



Instructions and Checklist


Manufacturer's Bundling Distribution Agreement

   Both parties should read the agreement carefully.

   Insert all requested information in the spaces provided on the form.

     This form includes exhibits, which should be attached and incorporated as part of this agreement.  

   Read the "License Fees; Revenue Sharing" provisions carefully.  If the language is unclear, describe it fully and include examples to remove as much ambiguity as possible.  

     This form contains the basic terms and language that should be included in similar agreements.  

     Both the manufacturer and distributor must sign the document.

   Both parties should retain either an original or copy of the signed agreement.

   All legal documents should be kept in a safe location such as a fireproof safe or safe deposit box.  



   




DISCLAIMER:

FindLegalForms, Inc. (“FLF”) is not a law firm and does not provide legal advice. The use of these materials is not a substitute for legal advice. Only an attorney can provide legal advice.  An attorney should be consulted for all serious legal matters.  No Attorney-Client relationship is created by use of these materials.  
THESE MATERIALS ARE PROVIDED “AS-IS.  FLF DOES NOT GIVE ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY OR COMPLETENESS FOR ANY OF THE MATERIALS FOR YOUR PARTICULAR NEEDS.  THE MATERIALS ARE USED AT YOUR OWN RISK.  IN NO EVENT WILL:  I) FLF, ITS AGENTS, PARTNERS, OR AFFILIATES; OR II) THE PROVIDERS, AUTHORS OR PUBLISHERS OF ITS MATERIALS, BE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATE OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER USED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THESE MATERIALS. 

MANUFACTURERS BUNDLING DISTRIBUTION AGREEMENT

_______________ CORPORATION
DISTRIBUTION AGREEMENT

This DISTRIBUTION AGREEMENT is made and entered into as of ________ , 20__, by and between _______________ CORPORATION., a _______________ [state] corporation having offices at ____________ , ___________ , ____________________  (name of corporation”) and [Equipment Manufacturer or Master Software Developer], a [state] corporation having offices at ________ , ________ , ________  (Distributor”).

WHEREAS,_______________ has developed or acquired rights to certain software programs identified on Schedule A (_______________ Programs”); and

WHEREAS, Distributor desires to distribute the _______________ Programs bundled into or in connection with the sales and distribution of the products of Distributor;

NOW THEREFORE, it is agreed between the parties hereto as follows:

1. Definitions.

1.01 Distributed Product” shall mean the products set forth on Schedule B hereto, including all revisions, upgrades or successor products thereto, that has an _______________ Program or Enhancement, or a portion thereof, has been bundled” or embedded. Distributed Products shall not contain any Source Code of _______________ Programs.

1.02 Enhancements” shall mean changes or additions to _______________ Programs that improve function or performance, including all language translations thereof, which _______________ makes available for general distribution to users _______________ Programs, other than changes or additions necessary to correct Errors.

1.03 Error” shall mean any patent or latent (a) problem or defect in an _______________ Program that causes it to fail to function in accordance with applicable product descriptions or specifications, (b) incorrect or incomplete statement or instruction in installation materials provided by _______________ that causes an_______________ Program to not function in accordance such product descriptions, (c) compatibility problems, or (d) other mistake, problem or defect that causes the Program to not perform in the manner described.

1.04 Proprietary Data” shall mean any Source Code delivered by _______________ hereunder and such other materials as are marked “Proprietary” at the time of delivery. “Proprietary Data” shall not include data which (i) through no act or failure on the part of Distributor, becomes generally known or available; (ii) is demonstrated by Distributor as being known to Distributor at the time of receiving such information from _______________; or (iii) is furnished to others by _______________ without restrictions on disclosure.

1.05 User” shall mean customers of Distributor who have acquired Distributed Products directly or indirectly from or through Distributor, whether for use or redistribution.
1.06 _______________ Programs” shall mean the software programs set forth on Schedule A hereto, consisting of machine readable program code on diskettes, which includes “Help” files (or if specifically indicated on Schedule, instruction manuals and other information related to the installation and use of such _______________ Program). _______________ reserves the right to alter or modify the _______________ Programs on Schedule A or add or delete upon sixty days prior written notice any of the individual items of _______________ Programs described therein.

1.07 Source Code” shall mean a human readable list of computer instruction sequences readily comprehended by an individual skilled in assembly level computer programming and from which such individual can “paraphrase” or modify the Software without undue difficulty.

1.08 Upgrades” shall mean different versions or titles of _______________ software which perform substantially the same functions and operations of _______________ Program, but also have additional features, functions, enhancements and/or capabilities.

2. Distributor Rights.

2.01 Grant of Rights. _______________ hereby grants to Distributor the world-wide, nonexclusive right and license (a) to duplicate, execute, display, utilize, market and distribute _______________ Programs and Enhancements only in Distributed Products, and (b) to sublicense others to execute, display, utilize, market and distribute _______________ Programs and Enhancements only in Distributed Products. If Distributor enters into any sublicense agreement that requires or contemplates the delivery of _______________ confidential or proprietary information, Distributor shall include in such sublicense provisions substantially the same as those of Section 7 hereof.

2.02 Limitation on Use. Distributor and each of its sublicensees shall distribute _______________ Programs only and Enhancements for use by Users pursuant to a license agreement between such Users and _______________ in the form provided by _______________. Distributor or its sublicensee will include an electronic version of such license agreement (e.g., as part of a README file) with the _______________ Programs bundled with Distributed Products.

2.03 Reservation. Nothing contained in this Agreement shall preclude or limit in any way the right of _______________ to market or service worldwide, either directly or indirectly, _______________ Programs, Enhancements or any of its other products. All right, title and interest in and to the _______________ Programs are, and shall remain, the sole property of _______________.

2.04 Markings. Distributor shall use the _______________ name and display _______________ trademarks in marketing materials and product documentation solely to describe, market install and use Products and Distributed Products, or such other uses as are expressly approved by _______________. No other use of the _______________ name or trademarks is authorized.

[or]

2.04 Markings. Distributor agrees to place the [_______________ trademark,]_______________ logo [and its “[desired slogan]” slogan] on each Distributed Product containing an _______________ Program, and related marketing materials and product documentation, in the size and at the locations mutually agreed by the parties prior to release of such Distributed Product. Notwithstanding the foregoing, the [_______________ trademark,]_______________ logo [and slogan] shall (i) appear at each location at which Distributors [trademark or] logo appears and (ii) be at least as large as, and be positioned as prominently as, the marks of Distributor or any other third party trademark or logo display. _______________ hereby grants to Distributor a nontransferable, non-exclusive, royalty-free license and right during the term of this Agreement to use its [trademark,] logos [and slogan], as approved by _______________, for the purposes of branding of Distributed Products. If _______________ changes its logo [or slogan] and notifies Distributor of such change, Distributor shall promptly modify its use of such _______________ logo [or slogan].

3. Distributor Obligations.

3.01 Collateral Materials. Distributor agrees to include or have included with each Distributed Product at least one piece of collateral marketing material supplied by _______________, no less than the same size and prominence as the marketing collaterals of Distributor or other providers of “bundled” products, for the purpose of marketing Upgrades and/or other products of _______________. _______________ shall provide Distributor with such quantities of collateral materials as Distributor shall reasonably request for such purpose.

3.02 Reports. Within ten (10) days following the end of each calendar quarter during the term of this Agreement, and any extensions thereof, Distributor shall submit to _______________ a report setting forth the name and address of each new sublicensee and User of a Distributed Product during such quarter and the appropriate contact at such sublicensee or User. The first of such reports shall include a listing of Distributors current customers of similar products as of the date of this Agreement. Such reports shall be delivered in “hard copy” or an electronic format, mutually agreeable to the parties. _______________ shall have the right to contact such sublicensees and Users for the purpose of marketing Upgrades and/or other products of _______________.

3.03 Markings. Distributor acknowledges that _______________ Programs will bear various proprietary markings of _______________. Distributor shall not alter or remove any human or machine readable trade name, trademark, legend, “flash screen” or other identification marks, symbols or labels from _______________ Programs.

4. _______________ Support.

4.01 Deliverables. Within [e.g., forty-five (45)] days following the date of this Agreement, _______________ shall deliver to Distributor on a confidential basis one “master” CD ROM containing the _______________ Programs, which, unless specifically set forth to the contrary in Schedule A, include “Help” files instead of instruction manuals or supporting documentation. As soon as commercially feasible following the date of release of any Enhancement to any _______________ Program, but in no event later than the date it is made available to other similar distributors, _______________ shall deliver to Distributor on a confidential basis a new “master” CD ROM containing the applicable _______________ Programs containing such Enhancement.

4.02 Error Correction. _______________ shall make reasonable efforts to correct Errors discovered by Distributor following acceptance of the _______________ Programs. Distributor shall provide to _______________ prompt written notice of any Error or suspected Error in _______________ Programs, including all documentation reasonably requested by _______________ to evaluate and correct such Error.

4.03 Training. _______________ shall make available to Distributor and its sublicensees, at no charge, in scheduled classes, when provided and subject to space availability, training courses for the marketing, operation and support of the _______________ Programs.

4.04 Support. During the term of this Agreement, _______________ shall provide to Distributor technical consultation and service to correct Errors and shall promptly deliver to Distributor all applicable Enhancements. In addition, _______________ shall provide telephone technical support to Distributor with respect to installation, implementation and operation of _______________ Programs and inquiries which Distributor receives from its sublicensees and Users.

5. License Fees; Revenue Sharing.

5.01 License Fees. Distributor shall pay to _______________ a License Fee in the amount set forth under the License Fee heading in Schedule C (the License Fee”). Such License Fee shall be paid within ten (10) days following the date of this Agreement. If Distributor fails to pay any amount when due, Distributor agrees, in addition to other remedies of _______________, that Distributor will pay a late fee equal to the lesser of 18% per annum on the unpaid delinquent balance or the maximum amount allowed by law.

5.02 Revenue Sharing. _______________ shall pay to Distributor as a commission, the portion of Gross Profits set forth under the Revenue Sharing heading in Schedule C (Commission”) received by _______________ from the sale, license or other distribution of Upgrades to Users of Distributor during the term of this Agreement and for a period of [e.g., six] months thereafter (the Commission Period”). For the foregoing purposes, Gross Profits” shall mean gross revenues less cost of goods sold, as determined by generally accepted accounting principles consistently applied, and Users of Distributor” shall mean those Users who identify themselves with the Distributors identifier code at the time of the applicable sale. Within thirty (30) days following the end of each calendar quarter during the Commission Period, _______________ shall deliver to Distributor a report setting forth (i) the amount of gross revenues received from Users of Distributor during such quarter, by User, (ii) a calculation of gross profits related thereto, and (iii) such other information reasonable necessary to enable Distributor to determine or verify the amount of Commissions payable pursuant hereto. _______________ shall include with such report, payment for the aggregate Commissions which accrued during such quarter, less any adjustments for prior payments and returns.

5.03 Records and Audit. _______________ shall keep accurate records, books of account and logs concerning the distribution of Upgrades and/or other products of _______________ adequate to determine the amount of Gross Profits from such distribution and the Commission owed Distributor, which _______________ shall maintain for a period of one year following the expiration of the Commission Period. Distributor shall have the right, at Distributors expense, to audit _______________s records concerning the calculation and payment of the Commission. All information obtained in the audit shall be kept confidential by Distributor, except to the extent necessary for Distributor to enforce its rights under this Agreement.

6. Warranty.

6.01 _______________ Warranty._______________ agrees to promptly replace at any time within six months from the date of shipment, at no charge to Distributor, any _______________ Program or related documentation delivered by _______________ hereunder which contains an Error. Distributor agrees to return to _______________, if _______________ shall so requests, the defective diskette or documentation for verification of the Error. Replacement of the _______________ Program, by diskette or other media, is the exclusive remedy for any such Errors, and _______________ shall have no liability for any other damages. _______________SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, AND SHALL NOT BE LIABLE FOR ANY LOSS OF PROFIT OR ANY OTHER CLAIMS OF SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES.

6.02 Limitation. Distributor agrees to limit its warranty to its sublicensees and Users so as not to increase _______________s liability beyond that set forth herein and indemnifies and holds harmless _______________ from any claim or liability except as expressly assumed by _______________ in this Agreement.

7. Confidentiality.

7.01 Rights in Data. Distributor acknowledges that the _______________ Programs and Proprietary Data, and the concepts embodied therein, are and shall remain the proprietary property of _______________; and Distributor agrees that Distributor, its sublicensees and Users, shall neither have nor acquire any proprietary interest or other right to such software other than the right to use granted hereby. Under no circumstances shall Distributor decompile, or permit others to decompile, the _______________ Program object code into a Source Code version.

7.02 Protection of Data. Distributor agrees not to use the _______________ Programs and Proprietary Data except in accordance with the terms of this Agreement. Further, Distributor agrees to hold in confidence the Proprietary Data of _______________ and protect it in accordance with the standards within the industry for the protection of proprietary information and at least to the same extent that Distributor protects its own confidential or proprietary information.
8. Indemnification.

_______________ agrees to defend, at its expense, any patent or copyright infringement proceeding instituted against Distributor in which it is asserted that any _______________ Program as delivered by _______________ hereunder infringes a United States patent or copyright and shall hold Distributor harmless against damages and costs awarded by final judgment therein to the extent directly attributable to such infringement; provided that Distributor gives _______________ prompt written notice of any such proceedings and cooperates in the defense thereof. _______________ shall have full control of the defense and shall be free to negotiate and conclude any settlement or compromise. _______________ shall have no liability whatever to Distributor for any actual or claimed patent or copyright infringement arising out of (i) compliance with Regulatory Agency requirements, (ii) use of the _______________ Program in combination with software, products or devices not delivered by _______________, (iii) modifications of _______________ Programs included at the request of Distributor for the purpose of providing compatibility to other products delivered by Distributor, or (iv) use of the _______________ Program in a manner not contemplated by this Agreement.

9. Term and Termination.

9.01 Term. This Agreement shall be effective as of the date first set forth above and, unless otherwise terminated in accordance with the provisions hereof, shall remain in effect for a term of one (1) year. Thereafter, this Agreement may be renewed or extended, by agreement of the parties, subject to the determination of mutually acceptable License Fees and Commissions related to such extension or renewal period.

9.02 Early Termination. If Distributor shall (i) be in breach, in any material respect, of any of its obligations hereunder, (ii) become insolvent or unable to pay its debts as and when due, (iii) make an assignment for the benefit of creditors, or (iv) file for protection under bankruptcy or similar laws, then in any such case, _______________ may terminate this Agreement by sending written notice to such effect to Distributor at least thirty (30) days prior to the effective date thereof. Such termination shall be effective on the date set forth in the notice, unless Distributor cures such default or breach within such notice period. Such right of termination shall be in addition to and shall not prejudice any other rights or claims that _______________ may have against Distributor. For the purposes of this Section 9.02, failure by Distributor to make payments as provided in Section 5 or adhere to the requirements of Sections 3, 6.02, 7 or 10.04 shall be deemed a material breach of its obligations hereunder.

9.03 Consequences of Termination. The parties shall not, by reason of the termination of this Agreement for any reason, be liable to each other for compensation or damages for present or prospective loss of business or profits, goodwill, creation of clientele, salaries, expenditures, investments or commitments made in connection herewith. Upon the termination of this Agreement, howsoever the same shall occur, (i) _______________ shall be relieved of any further obligation to fulfill any Distributor orders not delivered as of the effective date of termination; and (ii) Distributor shall return to _______________ at Distributors expense, all _______________ furnished Proprietary Data except for that data specifically required to service and maintain installed _______________ Programs and cease to use same for any other purpose. Termination of this Agreement shall not affect the rights to use granted to any User (other than affiliates of Distributor) within the terms of this Agreement prior to the effective date of termination.

9.04 Survival. The provisions of Sections 5, 6, 7 and 10.04 shall survive the term or termination of this Agreement, until the expiration of all patents and copyrights related to the _______________ Programs or Proprietary Data. Termination of this Agreement shall not terminate any sublicenses validly granted hereunder prior to the effective date of termination to any third party not an affiliate of Distributor provided obligations to _______________ with respect thereto are promptly satisfied.

10. General.

10.01 Independent Contractor. Distributor shall be deemed an independent contractor hereunder and, as such, Distributor shall not be nor hold itself out as an employee or agent of _______________. Distributor acknowledges that it does not have any authority to act for or in the name of _______________ or to commit _______________ in any manner whatsoever.

10.02 Nonassignability. Neither this Agreement nor any rights or obligations hereunder shall be assignable, in whole or in part, by operation of law or otherwise without the prior written consent of the other party, except that _______________ may assign this Agreement without Distributors consent to a parent or wholly owned subsidiary or in connection with a transfer of all or substantially all its assets or capital stock. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the respective parties hereto.

10.03 Notices. Unless otherwise specified in this Agreement, all notices required hereunder shall be in writing and shall be dispatched by prepaid first class mail, commercial express carrier (such as Federal Express, UPS, DHL, etc.) to the addresses of the respective parties first set forth in this Agreement or via facsimile transmission that confirms message receipt. Either party hereto may change its address for the purposes of this Agreement by giving the other party written notice hereunder.

10.04 Compliance with Law. Each of the Parties agrees to comply with all applicable laws and regulations of appropriate governmental bodies in the performance of this Agreement, including regulations related to the exportation of technical data, technology or products from the USA.

10.05 Enforcement. This Agreement shall be construed in accordance with the laws of the State of __________________ and Distributor agrees to accept venue and submit to the exclusive jurisdiction of the courts [therein][in ________  County, ____________ [State]]. If any provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall remain in effect. Any waiver of any provision or breach of any provision of this Agreement must be in writing. The failure of either party to enforce at any time any provision hereof shall not be construed to be a waiver of any rights thereunder.


If either party deems it necessary to bring suit or retain an attorney to enforce its rights under this Agreement, the prevailing party in such dispute shall be entitled to recover from the other party, in addition to any judgment or award, reasonable attorneys fees and court costs related to such dispute.

10.06 Entire Agreement. This Agreement contains the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes any and all prior contracts, agreements and understandings. In the event of any conflict between a provision of this Agreement and any catalog, purchase order or other document with respect to _______________ or the _______________ Programs, this Agreement shall control. This Agreement can be altered, amended or varied only by a written document signed by both parties.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date first above written. This Agreement may be executed in counterparts, all of which shall be enforceable, and together shall constitute a single instrument.



_______________ CORPORATION
DISTRIBUTOR
  By:  
_____________________________________
By:  
_____________________________________
  Title  
_____________________________________
Title  
_____________________________________



Distribution Agreement

Dated ________ , 20__




SCHEDULE A

_______________ Programs

Programs:


Distribution Agreement

Dated ________ , 20__



SCHEDULE B.

Distributed Products

Distribution Agreement

Dated ________ , 20__



SCHEDULE C.

License Fees and Commissions

License Fee:


Distributor shall pay _______________ a License Fee of ________  

Revenue Sharing:


_______________ shall pay Distributor Commissions in amounts equal to ________ % of the Gross Profits received during the Commission Period for Upgrades. Revenue sharing is an optional provision benefiting the Distributor. It should not be automatically volunteered by the developer.



Number of Pages13
DimensionsDesigned for Letter Size (8.5" x 11")
EditableYes (.doc, .wpd and .rtf)
UsageUnlimited number of prints
Product number#43677
This is the content of the form and is provided for your convenience. It is not necessarily what the actual form looks like and does not include the information, instructions and other materials that come with the form you would purchase. An actual sample can also be viewed by clicking on the "Sample Form" near the top left of this page.













Manufacturer's Bundling Distribution Agreement










This Packet Includes:
1.  General Information
2.  Instructions and Checklist
3.  Manufacturer's Bundling Distribution Agreement











General Information
Manufacturer's Bundling Distribution Agreement

This Manufacturer's Bundling Distribution Agreement is between a corporation who has developed or acquired the rights to certain software programs and a distributor who will sell and distribute the software, which may be bundled into or sold in connection with other products.

This agreement contains a comprehensive list of definitions, rights granted to distributor (such as limitations on use) and distributor's obligations.  It also contains provisions regarding license fees, revenue sharing, warranties and confidentiality issues (i.e. rights and protection of data).

It is imperative that this agreement be clearly set forth in writing.  A written Manufacturer's Bundling Distribution Agreement will prove invaluable in the event of misunderstandings or litigation between the parties.

  



Instructions and Checklist


Manufacturer's Bundling Distribution Agreement

   Both parties should read the agreement carefully.

   Insert all requested information in the spaces provided on the form.

     This form includes exhibits, which should be attached and incorporated as part of this agreement.  

   Read the "License Fees; Revenue Sharing" provisions carefully.  If the language is unclear, describe it fully and include examples to remove as much ambiguity as possible.  

     This form contains the basic terms and language that should be included in similar agreements.  

     Both the manufacturer and distributor must sign the document.

   Both parties should retain either an original or copy of the signed agreement.

   All legal documents should be kept in a safe location such as a fireproof safe or safe deposit box.  



   




DISCLAIMER:

FindLegalForms, Inc. (“FLF”) is not a law firm and does not provide legal advice. The use of these materials is not a substitute for legal advice. Only an attorney can provide legal advice.  An attorney should be consulted for all serious legal matters.  No Attorney-Client relationship is created by use of these materials.  
THESE MATERIALS ARE PROVIDED “AS-IS.  FLF DOES NOT GIVE ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY OR COMPLETENESS FOR ANY OF THE MATERIALS FOR YOUR PARTICULAR NEEDS.  THE MATERIALS ARE USED AT YOUR OWN RISK.  IN NO EVENT WILL:  I) FLF, ITS AGENTS, PARTNERS, OR AFFILIATES; OR II) THE PROVIDERS, AUTHORS OR PUBLISHERS OF ITS MATERIALS, BE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATE OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER USED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THESE MATERIALS. 

MANUFACTURERS BUNDLING DISTRIBUTION AGREEMENT

_______________ CORPORATION
DISTRIBUTION AGREEMENT

This DISTRIBUTION AGREEMENT is made and entered into as of ________ , 20__, by and between _______________ CORPORATION., a _______________ [state] corporation having offices at ____________ , ___________ , ____________________  (name of corporation”) and [Equipment Manufacturer or Master Software Developer], a [state] corporation having offices at ________ , ________ , ________  (Distributor”).

WHEREAS,_______________ has developed or acquired rights to certain software programs identified on Schedule A (_______________ Programs”); and

WHEREAS, Distributor desires to distribute the _______________ Programs bundled into or in connection with the sales and distribution of the products of Distributor;

NOW THEREFORE, it is agreed between the parties hereto as follows:

1. Definitions.

1.01 Distributed Product” shall mean the products set forth on Schedule B hereto, including all revisions, upgrades or successor products thereto, that has an _______________ Program or Enhancement, or a portion thereof, has been bundled” or embedded. Distributed Products shall not contain any Source Code of _______________ Programs.

1.02 Enhancements” shall mean changes or additions to _______________ Programs that improve function or performance, including all language translations thereof, which _______________ makes available for general distribution to users _______________ Programs, other than changes or additions necessary to correct Errors.

1.03 Error” shall mean any patent or latent (a) problem or defect in an _______________ Program that causes it to fail to function in accordance with applicable product descriptions or specifications, (b) incorrect or incomplete statement or instruction in installation materials provided by _______________ that causes an_______________ Program to not function in accordance such product descriptions, (c) compatibility problems, or (d) other mistake, problem or defect that causes the Program to not perform in the manner described.

1.04 Proprietary Data” shall mean any Source Code delivered by _______________ hereunder and such other materials as are marked “Proprietary” at the time of delivery. “Proprietary Data” shall not include data which (i) through no act or failure on the part of Distributor, becomes generally known or available; (ii) is demonstrated by Distributor as being known to Distributor at the time of receiving such information from _______________; or (iii) is furnished to others by _______________ without restrictions on disclosure.

1.05 User” shall mean customers of Distributor who have acquired Distributed Products directly or indirectly from or through Distributor, whether for use or redistribution.
1.06 _______________ Programs” shall mean the software programs set forth on Schedule A hereto, consisting of machine readable program code on diskettes, which includes “Help” files (or if specifically indicated on Schedule, instruction manuals and other information related to the installation and use of such _______________ Program). _______________ reserves the right to alter or modify the _______________ Programs on Schedule A or add or delete upon sixty days prior written notice any of the individual items of _______________ Programs described therein.

1.07 Source Code” shall mean a human readable list of computer instruction sequences readily comprehended by an individual skilled in assembly level computer programming and from which such individual can “paraphrase” or modify the Software without undue difficulty.

1.08 Upgrades” shall mean different versions or titles of _______________ software which perform substantially the same functions and operations of _______________ Program, but also have additional features, functions, enhancements and/or capabilities.

2. Distributor Rights.

2.01 Grant of Rights. _______________ hereby grants to Distributor the world-wide, nonexclusive right and license (a) to duplicate, execute, display, utilize, market and distribute _______________ Programs and Enhancements only in Distributed Products, and (b) to sublicense others to execute, display, utilize, market and distribute _______________ Programs and Enhancements only in Distributed Products. If Distributor enters into any sublicense agreement that requires or contemplates the delivery of _______________ confidential or proprietary information, Distributor shall include in such sublicense provisions substantially the same as those of Section 7 hereof.

2.02 Limitation on Use. Distributor and each of its sublicensees shall distribute _______________ Programs only and Enhancements for use by Users pursuant to a license agreement between such Users and _______________ in the form provided by _______________. Distributor or its sublicensee will include an electronic version of such license agreement (e.g., as part of a README file) with the _______________ Programs bundled with Distributed Products.

2.03 Reservation. Nothing contained in this Agreement shall preclude or limit in any way the right of _______________ to market or service worldwide, either directly or indirectly, _______________ Programs, Enhancements or any of its other products. All right, title and interest in and to the _______________ Programs are, and shall remain, the sole property of _______________.

2.04 Markings. Distributor shall use the _______________ name and display _______________ trademarks in marketing materials and product documentation solely to describe, market install and use Products and Distributed Products, or such other uses as are expressly approved by _______________. No other use of the _______________ name or trademarks is authorized.

[or]

2.04 Markings. Distributor agrees to place the [_______________ trademark,]_______________ logo [and its “[desired slogan]” slogan] on each Distributed Product containing an _______________ Program, and related marketing materials and product documentation, in the size and at the locations mutually agreed by the parties prior to release of such Distributed Product. Notwithstanding the foregoing, the [_______________ trademark,]_______________ logo [and slogan] shall (i) appear at each location at which Distributors [trademark or] logo appears and (ii) be at least as large as, and be positioned as prominently as, the marks of Distributor or any other third party trademark or logo display. _______________ hereby grants to Distributor a nontransferable, non-exclusive, royalty-free license and right during the term of this Agreement to use its [trademark,] logos [and slogan], as approved by _______________, for the purposes of branding of Distributed Products. If _______________ changes its logo [or slogan] and notifies Distributor of such change, Distributor shall promptly modify its use of such _______________ logo [or slogan].

3. Distributor Obligations.

3.01 Collateral Materials. Distributor agrees to include or have included with each Distributed Product at least one piece of collateral marketing material supplied by _______________, no less than the same size and prominence as the marketing collaterals of Distributor or other providers of “bundled” products, for the purpose of marketing Upgrades and/or other products of _______________. _______________ shall provide Distributor with such quantities of collateral materials as Distributor shall reasonably request for such purpose.

3.02 Reports. Within ten (10) days following the end of each calendar quarter during the term of this Agreement, and any extensions thereof, Distributor shall submit to _______________ a report setting forth the name and address of each new sublicensee and User of a Distributed Product during such quarter and the appropriate contact at such sublicensee or User. The first of such reports shall include a listing of Distributors current customers of similar products as of the date of this Agreement. Such reports shall be delivered in “hard copy” or an electronic format, mutually agreeable to the parties. _______________ shall have the right to contact such sublicensees and Users for the purpose of marketing Upgrades and/or other products of _______________.

3.03 Markings. Distributor acknowledges that _______________ Programs will bear various proprietary markings of _______________. Distributor shall not alter or remove any human or machine readable trade name, trademark, legend, “flash screen” or other identification marks, symbols or labels from _______________ Programs.

4. _______________ Support.

4.01 Deliverables. Within [e.g., forty-five (45)] days following the date of this Agreement, _______________ shall deliver to Distributor on a confidential basis one “master” CD ROM containing the _______________ Programs, which, unless specifically set forth to the contrary in Schedule A, include “Help” files instead of instruction manuals or supporting documentation. As soon as commercially feasible following the date of release of any Enhancement to any _______________ Program, but in no event later than the date it is made available to other similar distributors, _______________ shall deliver to Distributor on a confidential basis a new “master” CD ROM containing the applicable _______________ Programs containing such Enhancement.

4.02 Error Correction. _______________ shall make reasonable efforts to correct Errors discovered by Distributor following acceptance of the _______________ Programs. Distributor shall provide to _______________ prompt written notice of any Error or suspected Error in _______________ Programs, including all documentation reasonably requested by _______________ to evaluate and correct such Error.

4.03 Training. _______________ shall make available to Distributor and its sublicensees, at no charge, in scheduled classes, when provided and subject to space availability, training courses for the marketing, operation and support of the _______________ Programs.

4.04 Support. During the term of this Agreement, _______________ shall provide to Distributor technical consultation and service to correct Errors and shall promptly deliver to Distributor all applicable Enhancements. In addition, _______________ shall provide telephone technical support to Distributor with respect to installation, implementation and operation of _______________ Programs and inquiries which Distributor receives from its sublicensees and Users.

5. License Fees; Revenue Sharing.

5.01 License Fees. Distributor shall pay to _______________ a License Fee in the amount set forth under the License Fee heading in Schedule C (the License Fee”). Such License Fee shall be paid within ten (10) days following the date of this Agreement. If Distributor fails to pay any amount when due, Distributor agrees, in addition to other remedies of _______________, that Distributor will pay a late fee equal to the lesser of 18% per annum on the unpaid delinquent balance or the maximum amount allowed by law.

5.02 Revenue Sharing. _______________ shall pay to Distributor as a commission, the portion of Gross Profits set forth under the Revenue Sharing heading in Schedule C (Commission”) received by _______________ from the sale, license or other distribution of Upgrades to Users of Distributor during the term of this Agreement and for a period of [e.g., six] months thereafter (the Commission Period”). For the foregoing purposes, Gross Profits” shall mean gross revenues less cost of goods sold, as determined by generally accepted accounting principles consistently applied, and Users of Distributor” shall mean those Users who identify themselves with the Distributors identifier code at the time of the applicable sale. Within thirty (30) days following the end of each calendar quarter during the Commission Period, _______________ shall deliver to Distributor a report setting forth (i) the amount of gross revenues received from Users of Distributor during such quarter, by User, (ii) a calculation of gross profits related thereto, and (iii) such other information reasonable necessary to enable Distributor to determine or verify the amount of Commissions payable pursuant hereto. _______________ shall include with such report, payment for the aggregate Commissions which accrued during such quarter, less any adjustments for prior payments and returns.

5.03 Records and Audit. _______________ shall keep accurate records, books of account and logs concerning the distribution of Upgrades and/or other products of _______________ adequate to determine the amount of Gross Profits from such distribution and the Commission owed Distributor, which _______________ shall maintain for a period of one year following the expiration of the Commission Period. Distributor shall have the right, at Distributors expense, to audit _______________s records concerning the calculation and payment of the Commission. All information obtained in the audit shall be kept confidential by Distributor, except to the extent necessary for Distributor to enforce its rights under this Agreement.

6. Warranty.

6.01 _______________ Warranty._______________ agrees to promptly replace at any time within six months from the date of shipment, at no charge to Distributor, any _______________ Program or related documentation delivered by _______________ hereunder which contains an Error. Distributor agrees to return to _______________, if _______________ shall so requests, the defective diskette or documentation for verification of the Error. Replacement of the _______________ Program, by diskette or other media, is the exclusive remedy for any such Errors, and _______________ shall have no liability for any other damages. _______________SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, AND SHALL NOT BE LIABLE FOR ANY LOSS OF PROFIT OR ANY OTHER CLAIMS OF SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES.

6.02 Limitation. Distributor agrees to limit its warranty to its sublicensees and Users so as not to increase _______________s liability beyond that set forth herein and indemnifies and holds harmless _______________ from any claim or liability except as expressly assumed by _______________ in this Agreement.

7. Confidentiality.

7.01 Rights in Data. Distributor acknowledges that the _______________ Programs and Proprietary Data, and the concepts embodied therein, are and shall remain the proprietary property of _______________; and Distributor agrees that Distributor, its sublicensees and Users, shall neither have nor acquire any proprietary interest or other right to such software other than the right to use granted hereby. Under no circumstances shall Distributor decompile, or permit others to decompile, the _______________ Program object code into a Source Code version.

7.02 Protection of Data. Distributor agrees not to use the _______________ Programs and Proprietary Data except in accordance with the terms of this Agreement. Further, Distributor agrees to hold in confidence the Proprietary Data of _______________ and protect it in accordance with the standards within the industry for the protection of proprietary information and at least to the same extent that Distributor protects its own confidential or proprietary information.
8. Indemnification.

_______________ agrees to defend, at its expense, any patent or copyright infringement proceeding instituted against Distributor in which it is asserted that any _______________ Program as delivered by _______________ hereunder infringes a United States patent or copyright and shall hold Distributor harmless against damages and costs awarded by final judgment therein to the extent directly attributable to such infringement; provided that Distributor gives _______________ prompt written notice of any such proceedings and cooperates in the defense thereof. _______________ shall have full control of the defense and shall be free to negotiate and conclude any settlement or compromise. _______________ shall have no liability whatever to Distributor for any actual or claimed patent or copyright infringement arising out of (i) compliance with Regulatory Agency requirements, (ii) use of the _______________ Program in combination with software, products or devices not delivered by _______________, (iii) modifications of _______________ Programs included at the request of Distributor for the purpose of providing compatibility to other products delivered by Distributor, or (iv) use of the _______________ Program in a manner not contemplated by this Agreement.

9. Term and Termination.

9.01 Term. This Agreement shall be effective as of the date first set forth above and, unless otherwise terminated in accordance with the provisions hereof, shall remain in effect for a term of one (1) year. Thereafter, this Agreement may be renewed or extended, by agreement of the parties, subject to the determination of mutually acceptable License Fees and Commissions related to such extension or renewal period.

9.02 Early Termination. If Distributor shall (i) be in breach, in any material respect, of any of its obligations hereunder, (ii) become insolvent or unable to pay its debts as and when due, (iii) make an assignment for the benefit of creditors, or (iv) file for protection under bankruptcy or similar laws, then in any such case, _______________ may terminate this Agreement by sending written notice to such effect to Distributor at least thirty (30) days prior to the effective date thereof. Such termination shall be effective on the date set forth in the notice, unless Distributor cures such default or breach within such notice period. Such right of termination shall be in addition to and shall not prejudice any other rights or claims that _______________ may have against Distributor. For the purposes of this Section 9.02, failure by Distributor to make payments as provided in Section 5 or adhere to the requirements of Sections 3, 6.02, 7 or 10.04 shall be deemed a material breach of its obligations hereunder.

9.03 Consequences of Termination. The parties shall not, by reason of the termination of this Agreement for any reason, be liable to each other for compensation or damages for present or prospective loss of business or profits, goodwill, creation of clientele, salaries, expenditures, investments or commitments made in connection herewith. Upon the termination of this Agreement, howsoever the same shall occur, (i) _______________ shall be relieved of any further obligation to fulfill any Distributor orders not delivered as of the effective date of termination; and (ii) Distributor shall return to _______________ at Distributors expense, all _______________ furnished Proprietary Data except for that data specifically required to service and maintain installed _______________ Programs and cease to use same for any other purpose. Termination of this Agreement shall not affect the rights to use granted to any User (other than affiliates of Distributor) within the terms of this Agreement prior to the effective date of termination.

9.04 Survival. The provisions of Sections 5, 6, 7 and 10.04 shall survive the term or termination of this Agreement, until the expiration of all patents and copyrights related to the _______________ Programs or Proprietary Data. Termination of this Agreement shall not terminate any sublicenses validly granted hereunder prior to the effective date of termination to any third party not an affiliate of Distributor provided obligations to _______________ with respect thereto are promptly satisfied.

10. General.

10.01 Independent Contractor. Distributor shall be deemed an independent contractor hereunder and, as such, Distributor shall not be nor hold itself out as an employee or agent of _______________. Distributor acknowledges that it does not have any authority to act for or in the name of _______________ or to commit _______________ in any manner whatsoever.

10.02 Nonassignability. Neither this Agreement nor any rights or obligations hereunder shall be assignable, in whole or in part, by operation of law or otherwise without the prior written consent of the other party, except that _______________ may assign this Agreement without Distributors consent to a parent or wholly owned subsidiary or in connection with a transfer of all or substantially all its assets or capital stock. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the respective parties hereto.

10.03 Notices. Unless otherwise specified in this Agreement, all notices required hereunder shall be in writing and shall be dispatched by prepaid first class mail, commercial express carrier (such as Federal Express, UPS, DHL, etc.) to the addresses of the respective parties first set forth in this Agreement or via facsimile transmission that confirms message receipt. Either party hereto may change its address for the purposes of this Agreement by giving the other party written notice hereunder.

10.04 Compliance with Law. Each of the Parties agrees to comply with all applicable laws and regulations of appropriate governmental bodies in the performance of this Agreement, including regulations related to the exportation of technical data, technology or products from the USA.

10.05 Enforcement. This Agreement shall be construed in accordance with the laws of the State of __________________ and Distributor agrees to accept venue and submit to the exclusive jurisdiction of the courts [therein][in ________  County, ____________ [State]]. If any provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall remain in effect. Any waiver of any provision or breach of any provision of this Agreement must be in writing. The failure of either party to enforce at any time any provision hereof shall not be construed to be a waiver of any rights thereunder.


If either party deems it necessary to bring suit or retain an attorney to enforce its rights under this Agreement, the prevailing party in such dispute shall be entitled to recover from the other party, in addition to any judgment or award, reasonable attorneys fees and court costs related to such dispute.

10.06 Entire Agreement. This Agreement contains the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes any and all prior contracts, agreements and understandings. In the event of any conflict between a provision of this Agreement and any catalog, purchase order or other document with respect to _______________ or the _______________ Programs, this Agreement shall control. This Agreement can be altered, amended or varied only by a written document signed by both parties.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date first above written. This Agreement may be executed in counterparts, all of which shall be enforceable, and together shall constitute a single instrument.



_______________ CORPORATION
DISTRIBUTOR
  By:  
_____________________________________
By:  
_____________________________________
  Title  
_____________________________________
Title  
_____________________________________



Distribution Agreement

Dated ________ , 20__




SCHEDULE A

_______________ Programs

Programs:


Distribution Agreement

Dated ________ , 20__



SCHEDULE B.

Distributed Products

Distribution Agreement

Dated ________ , 20__



SCHEDULE C.

License Fees and Commissions

License Fee:


Distributor shall pay _______________ a License Fee of ________  

Revenue Sharing:


_______________ shall pay Distributor Commissions in amounts equal to ________ % of the Gross Profits received during the Commission Period for Upgrades. Revenue sharing is an optional provision benefiting the Distributor. It should not be automatically volunteered by the developer.



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