Reseller Agreement - Artera Group Inc. and Spyder Technologies Group LLC
ARTERA TURBO RESELLER AGREEMENT
(for the United States, Canada, South America & Central America)
Reseller Agreement, dated as of September 1, 2003 ("Agreement") between Artera
Group, Inc., a Delaware corporation having a principal place of business at 20
Ketchum Street, Westport, CT 06880 ("Artera"), and Spyder Technologies Group,
LLC, a Connecticut limited liability company having a principal place of
business at 40 Kellogg Hill Road, Weston, CT 06883, a primary telephone number
of 203-858-1915, a Federal employer identification number of 32-0027124 and a
primary World Wide Web site address of http://www.spydergroup.com ("Reseller").
In consideration of the mutual promises contained in this Agreement, Artera and
Reseller hereby agree as follows:
1. Definitions. As used herein, the following words shall have the meanings
indicated below:
(a) CRM System. The Service's customer relations management system which,
among other things, allows authentication of Service subscriptions.
(b) End User. A client computer of an individual user, configured to
utilize the Service under a subscription via Reseller. In the case of
a residential Subscriber, the End User is also the Subscriber. In the
case of a Small Business or Government Entity Subscriber, the End User
is the client computer of the individual user of the Service rather
than the subscribing business or entity itself.
(c) Free Trial. A short-term Service subscription for which no Service
Fees are due, designed to allow a prospective Subscriber the
opportunity to try out the Service.
(d) Government Entity. A Federal, state, local or other governmental unit
or authority, or a department, division or segment thereof.
(e) Service. Artera's "Artera Turbo" service, as configured from time to
time, including its software.
(f) Service Fees. The fees payable by the Subscriber for its subscription
to the Service, excluding sales, use, VAT, excise and similar taxes.
(g) Small Business. A business or other organizational entity (excluding
Government Entities) that (i) does not have and use more than 250 End
User personal computers and (ii) does not sell, distribute or market
the Service.
(h) Subscriber. A residential individual, Small Business or Government
Entity in the Territory that subscribes to the Service via Reseller.
In the case of a residential Subscriber, the Subscriber is the End
User. In the case of a Small Business or Government Entity Subscriber,
the Subscriber is the subscribing business or entity rather than any
individual client computer or user within that business or entity.
(i) Territory. The United States, Canada, South America and Central
America (not including Puerto Rico, the Caribbean and Southern
Atlantic Islands).
2. Duties of Reseller.
(a) Reseller shall use its best efforts to secure subscriptions to the
Service by Subscribers in the Territory. A Marketing Plan describing
some of the steps Reseller will take to promote the Service is annexed
as Exhibit A hereto. If Exhibit A is not completed within this
Agreement, Reseller shall propose a Marketing Plan within 30 days
hereof and shall
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implement such plan, subject to any reasonable adjustments to the plan
requested by Artera. Reseller shall be responsible for all costs and
expenses incurred in securing orders for, distributing, promoting and
marketing the Service. In performing under this Agreement, Reseller
shall at all times act in accordance with this Agreement, with
guidelines and procedures furnished to Reseller by Artera, with
customary commercial practices and with applicable law.
(b) Reseller shall maintain a Web site and establish on it Service
information page(s), with links to allow prospective Subscribers to
purchase a subscription to the Service online via download of the
Service's End User software. Reseller may also allow prospective
residential Subscribers to initiate a Free Trial of the Service.
Reseller shall offer to provide the End User software to Subscribers,
upon their request, by sending the End User a CD containing such
software. Artera shall provide Reseller with master CDs containing the
End User software, but the cost of producing CDs from the master and
sending CDs to Subscribers shall be borne by Reseller.
(c) Reseller shall provide to Artera such information as is required to
enable Artera to (i) establish Reseller's business management account
within the CRM System, (ii) provide the necessary templates regarding
the Service for use on Reseller's Web site, (iii) provide customized
wizards for any Free Trials Reseller offers on its Web site, (iv)
coordinate links to the Service's on-line knowledge base for support
and (v) coordinate additional links between Reseller's Web site and
the Service's Web site as appropriate.
(d) As a condition to subscribing to the Service, Reseller shall require
that all Subscribers agree to Artera's Terms of Service for the
Service (the "Terms of Service"). Artera shall have the right to
modify the Terms of Service from time to time. Except for the Terms of
Service, all agreements relating to Subscribers' use of the Service
shall be between Reseller and the respective Subscribers. Reseller
shall have no authority to bind or obligate Artera under any
subscription agreement or otherwise (including representations or
warranties regarding the Service), and shall not represent to anyone
that it has such authority.
(e) During the term of this Agreement, Reseller shall not sell,
distribute, market, represent, deal with or have any interest in any
service or product that competes with the Service.
(f) Reseller shall give Artera prompt written notice of any change in any
of Reseller's data set forth in the recital paragraph of this
Agreement.
3. Royalty. Artera shall be entitled to receive a royalty (the "Royalty") for
each calendar month (or part thereof) of each Service subscription by a
Subscriber. The Royalty shall be calculated on a per End User basis. The
amount or formula of the Royalty is set forth in Exhibit B hereto.
4. Support. Reseller shall provide level 1 support for the Service ("Level 1
Support"), which consists of being the initial point of contact for
Subscriber inquiries regarding the Service and which shall include those
forms of support described in Exhibit C hereto. Within 30 days of the date
of this Agreement, Artera shall provide, and Reseller shall attend, Level 1
Support training. Artera shall provide level 2 support for the Service,
which consists of support to Reseller to assist Reseller in providing Level
1 Support. Artera shall provide level 3 support for the Service, which
consists of software bug fixes for the Service.
5. Data Center. Functionality of the Service depends, in part, upon connection
of the End User to a Service data center (the "Data Center"). Artera shall
provide and operate the Data Center for the End Users.
6. Billing. Billing and collection of Service Fees shall be performed by
Artera on behalf of Reseller. Artera shall bill the Subscriber each month.
On or prior to the 15th day of each calendar month,
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Artera shall pay Reseller the difference between the Service Fees actually
received by Artera during the preceding calendar month and the Royalty due
to Artera with respect to such preceding calendar month. The Royalty shall
be based on subscriptions to the Service, irrespective of actual Service
Fee collections by Artera. For subscription periods greater than one month
(e.g., annual subscriptions), (a) the Royalty shall be based on the number
of months within the subscription period notwithstanding any discount given
by Reseller to the Subscriber (unless Artera agrees otherwise in writing in
advance) and (b) the Royalty for the entire subscription period shall
accrue to Artera in the first month of such subscription period. Payments
by Artera shall be made to an account specified by Reseller. Artera shall
keep records of the foregoing billing, collection and payment transactions
in a level of detail sufficient to demonstrate its compliance with the
provisions of this Agreement relating thereto.
7. Intellectual Property. All right, title and interest in and to the Service,
including all copyrights, trademarks, service marks, logos, names, patents
and other intellectual property embodied in the Service or provided by
Artera in connection therewith (including but not limited to the Service's
End User software and the mark "Artera Turbo") shall remain the property of
Artera. Reseller shall have a right to use such Artera properties only for
the limited purpose of distributing and promoting the Service in the
Territory in accordance with this Agreement. Reseller may use literature
and other promotional materials to aid in marketing the Service only if
such materials have been provided or approved in advance by Artera. In
marketing the Service, Reseller may reference its own name or brand in
association with the Service, rather than Artera's, if done in a manner
that does not prejudice Artera's intellectual property rights in and to the
Service.
8. Representations and Warranties. Each party represents and warrants to the
other party that (a) it has the full power, authority and legal right to
execute, deliver and perform this Agreement, (b) this Agreement has been
duly authorized, executed and delivered by it and (c) this Agreement is a
legal, valid and binding obligation enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws
affecting the rights of creditors generally and subject to general
principles of equity. Artera makes no representations or warranties of any
kind to Reseller with respect to the Service, other than any that are
expressly set forth in this Agreement. If Reseller makes any
representations or warranties to Subscribers with respect to the Service,
such representations and warranties shall be the sole responsibility of
Reseller.
9. Term and Termination.
(a) The term of this Agreement shall commence as of the date hereof and
shall continue until one year from such date. Thereafter, this
Agreement shall automatically renew for successive one-year periods
unless either party gives written notice of termination to the other
party at least 30 days prior to the end of the then-current term.
(b) Without limitation to any other rights available under this Agreement,
this Agreement may be terminated (i) by either party for the material
breach of this Agreement or of a representation, warranty or covenant
contained herein by the other party, which breach is not cured within
30 days after written notice of such breach by the terminating party,
(ii) by Artera if Artera discontinues the Service or discontinues the
distribution of the Service in the Territory and gives Reseller 30
days' prior written notice of the applicable discontinuation or (iii)
automatically if Reseller has not acquired any Subscribers within 60
days of the date of this Agreement.
(c) In the event of expiration or any termination of this Agreement, the
obligations of the parties under this Agreement shall cease as of such
expiration or termination, except (i) for obligations (including
payment obligations) that accrued prior to termination; (ii) that, if
the determining event was not a termination of this Agreement by
Artera under Section 9(b)(i) hereof, Reseller shall be entitled to
continue its Service subscriptions existing at the time of such
expiration or termination, subject to Reseller's compliance with all
of the terms
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and conditions of this Agreement with respect thereto (including
payment of Royalties); and (iii) as may otherwise be expressly
provided in this Agreement.
10. Indemnification, Insurance and Limitation of Liability. Each party hereto
shall indemnify and hold harmless the other party, such other party's
affiliates, and the officers, directors, employees, agents and
representatives of all thereof from and against any and all claims,
damages, actions, costs and expenses (including reasonable attorneys' fees)
arising out of or relating to a breach by such party of any of its
representations, warranties or undertakings set forth in this Agreement or
arising out of or relating to such party's intentionally wrongful or
grossly negligent conduct in connection with this Agreement or with such
party's performance hereunder. In the event of a claim for which
indemnification is to be sought hereunder, the party to be indemnified
shall provide prompt written notice of such claim to the other party, shall
allow the other party to control the defense of such claim and shall
cooperate with the other party in conducting such defense. Each party shall
at all times during the term of this Agreement maintain such insurance
coverage, if any, that is commercially reasonable in light of the nature,
volume and location of such party's business activities in connection with
this Agreement. In no event shall either party be liable to the other or to
any third party for incidental, special, punitive or consequential damages
(including but not limited to lost profits) relating to this Agreement or
the Service.
11. Confidentiality. The terms and conditions of this Agreement, and all
proprietary information regarding the Service and its distribution, shall
be confidential between the parties, and neither shall reveal such terms,
conditions or information to any third parties other than its accountants
or attorneys or as required by process of law. The obligations contained in
this confidentiality provision shall survive the expiration or any
termination of this Agreement. This confidentiality provision shall not
limit the generality of any separate confidentiality or nondisclosure
agreement in effect between Artera and Reseller; provided, however, that if
such other agreement and this provision cover the same information, the
stricter of the two shall apply with respect thereto.
12. Miscellaneous.
(a) All demands, notices and communications under this Agreement shall be
in writing and shall be deemed duly given if delivered by hand, by
recognized commercial courier, by fax or by certified mail (with
return receipt), in each case with postage or delivery charges
pre-paid, as follows:
If to Artera: If to Reseller:
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Artera Group, Inc. Spyder Technologies Group, LLC
900 Straits Turnpike 40 Kellogg Hill Road
Middlebury, CT 06762 Weston, CT 06883
Fax: 203-577-5380 Fax: 203-454-3094
Attention: Michelle Jordano Attention: President
with a copy to:
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Artera Group, Inc.
20 Ketchum St.
Westport, CT 06880
Fax: 203-226-4338
Attention: General Counsel
(b) Any provision of this Agreement that is prohibited or held to be void
or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability, without invalidating the remaining
provisions of this Agreement.
(c) This Agreement shall bind and inure to the benefit of and be
enforceable by the parties hereto and their respective permitted
successors and assigns. Neither party may assign this Agreement nor
any rights or obligations hereunder except to its affiliated entities
or
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with the prior written consent of the other party, which consent shall
not be unreasonably withheld.
(d) No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be
enforced. No waiver of any breach of any provision of this Agreement
shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provision hereof.
(e) Artera and Reseller shall be considered independent contractors to one
another, and nothing in this Agreement shall be construed as creating
an employer-employee, agency, partnership or joint venture
relationship between the parties.
(f) No provision of this Agreement shall be interpreted against a party
solely because such party or its attorney drafted such provision.
(g) Neither party shall be deemed in breach of this Agreement to the
extent that performance of its obligations is prevented or delayed by
reason of any act of God, fire, natural disaster, accident, riot, act
of government, shortage of materials or supplies, failure of
transportation or communication, third party nonperformance
(including, without limitation, failure of performance by common
carriers, interexchange carriers and local exchange carriers) or any
other cause beyond such party's reasonable control.
(h) This Agreement shall be construed in accordance with the laws of the
State of Connecticut (U.S.A.), without regard to its conflict of law
provisions. Jurisdiction for any action under this Agreement shall lie
solely in the Federal or state courts located in the State of
Connecticut, and venue in any such action shall be proper only
therein.
(i) This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior and
contemporaneous written or oral agreements or communications between
such parties with respect to such subject matter.
IN WITNESS WHEREOF, Artera and Reseller have duly executed this Agreement as of
the date first above written.
ARTERA GROUP, INC. SPYDER TECHNOLOGIES GROUP, LLC
By: /s/ Cy E. Hammond By: /s/ Jonathan Parrella
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Cy E. Hammond Jonathan Parrella
Treasurer President
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Exhibit A
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RESELLER'S MARKETING PLAN
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Exhibit B
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ROYALTY
The Royalty is payable in U.S.A. dollars. The monthly Royalty amounts, per End
User, are as follows:
1. Residential Subscribers. The monthly Royalty amount for each residential
End User is:
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Royalty
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$3.20
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2. Small Business or Government Entity Subscribers. The monthly Royalty amount
for each End User of a Small Business or Government Entity Subscriber is
based on the number of End Users within the applicable Subscriber, as
provided in the table below. Small Business or Government Entity
Subscribers with under five End Users shall be treated as if they had five
End Users, with a Royalty that is five times the amount specified in the
table.
Number of End Users Within Subscriber Royalty
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5 - 9 $3.00
10 - 24 $2.85
25 - 49 $2.70
50 or above $2.40
Road Warrior + $3.00
3. Road Warrior. "Road Warrior" refers to a version of the Service used with
mobile computers that at times may be connected to the Internet through a
local area network (LAN), and at other times may be connected to the
Internet on a standalone basis. The monthly Royalty for a Road Warrior End
User is the sum of (a) the applicable ordinary royalty amount described
above plus (b) the applicable Road Warrior amount described above.
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Exhibit C
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LEVEL 1 SUPPORT
The purpose of Level 1 Support is to assist Subscribers and End Users in the
basic installation and usage of the Service. This includes answering general
questions to help Subscribers and End Users understand what the Service is and
how it provides a benefit to them. Level 1 Support is responsible for assisting
Subscribers and End Users with the items listed below. This list may be refined
as experience is gained and the Service evolves over time.
1. Establishing an Internet connection (typically via Windows Dial-Up
Networking), launching a Web browser and surfing to various Web sites on
the Internet.
2. Assisting in downloading the Service's End User software, running the
Service's setup program, installing the Service software on the End User's
PC and, if necessary, surfing to the Service's Web site.
3. Launching and running the Service, including answering basic questions
about the system configuration needed for running the Service (i.e.,
Windows version, memory, hard disk space) as documented on the Service's
Web site.
4. Answering basic questions about navigating within the Service's End User
interface.
5. Showing Subscribers and End Users how to know if the Service is working.
This includes pointing out the Network View, Activity View and SpeedBar.
6. Confirming that the browser is actually forwarding its requests to the Data
Center, by reviewing the Activity View and the browser's proxy settings.
7. Assisting an End User who uses a dialer other than Windows Dial-Up
Networking (e.g., Juno or NetZero) or who uses a browser other than
Internet Explorer (requiring telling the End User how manually to set the
browser's proxy settings).
8. Verifying that the Subscriber or End User has a Data Center connection
online.
9. Assisting in uninstalling the Service.
10. Explaining the Service's Firewall and how to disable it if desired
(including explaining the ramifications of disabling it). Assisting in
opening additional ports in the Service's Firewall. The Subscriber or End
User should be told that they should not run the Service's Firewall with
any other firewall.
11. Assisting in adding sites into the Service's Site Blocking list and/or Ad
Blocking list. Explaining how Ad Blocking removes ads and replaces them
with "place holder" graphics, but that this can result in what appears to
be "missing" elements on the page. Explaining how to turn off Ad Blocking
if desired (including explaining that this will reduce the speed benefits
of the Service).
12. Explaining how to change the image quality within the Service. This
includes explaining how to refresh the page once quality has been set to
"Best Quality." The Subscriber or End User should be informed of how to
revert back to "Best Speed" image quality setting and that if they do not
revert back to "Best Speed," the speed benefits of the Service will be
reduced.
13. Explaining what a cache is, and how to adjust its settings within the
Service.
14. Explaining what settings in the browser are changed when the Service is
running (including proxy settings, the number of requests the browser will
issue at one time and disablement of the browser's cache). The Subscriber
or End User should be told that when the Service is not running, or is
uninstalled, these settings in the browser are changed back to their
original values.
15. Answering questions about obtaining (i.e., downloading) Service product
updates and installing them.
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