Last Updated: February 16, 2022
This Seller Agreement (the "Agreement") is between SugarCRM Inc. (the "Seller") and the legal entity or individual named on the Seller's website "Registration Page" (the "Developer").
General Purpose of this Agreement. Seller has developed a website (www.sugaroutfitters.com) and related applications to promote the download and sales of licenses to various Developer computer software programs that work in conjunction with SugarCRM's software. This Agreement, then, shall set forth the terms and conditions pursuant to which Seller will (a) license certain computer software from Developer; and (b) market, sell, copy, license and distribute Developer's computer software.
THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY BE CHANGED BY SELLER ON THIRTY DAYS PRIOR WRITTEN NOTICE; SUCH NOTICE SHALL BE POSTED TO THE APPLICABLE SELLER WEBSITE OR SENT BY EMAIL TO THE DEVELOPER EMAIL ADDRESS SET FORTH ON THE REGISTRATION PAGE.
1. DEFINITIONS
1.1 "Customer" means each legal entity or individual who has agreed to purchase from Seller a license to use the Software.
1.2 "List Price" means the price for the Software to be charged by Seller to Customer.
1.3 "Software" mean that Developer's computer software programs described on the Developer's Registration Page (as defined below) and all Upgrades (as defined below).
1.4 "Support Services" means the remote telephone, fax, web-based or e-mail consultation, bug fixes, error corrections, workarounds performed by Developer.
1.5 "Trademarks" means the trademarks, trade names, logos and slogans used by Developer to identify the Software.
2. RIGHTS OF SELLER
Subject to the terms of this Agreement, Developer grants Seller the limited, non-exclusive, non-transferable license, during the Term (as defined in Section 7 below) of this Agreement to (a) market, store, copy (solely in order to facilitate the download or distribution of the Software), sell, license and distribute the Software to the Customer; (b) use the Software for demonstrating and advertising the operation and capabilities of the Software; and (c) use the Trademarks when marketing, selling and distributing the Software.
3. DEVELOPER OBLIGATIONS
3.1 Developer shall complete and submit to Seller a Seller website registration form (the "Registration Page") that shall, among other things, name the Developer, provide full contact information concerning the Developer, describe and name the Software to be resold by Seller pursuant to this Agreement, state the List Price for such Software and any additional Customer terms and conditions required by Developer (the "Developer Terms"). Developer agrees to promptly update, modify or amend the Registration Page as necessary.
3.2 Upon Seller Approval (as defined below) Developer shall make the Software available to Seller. Developer shall also make available to Seller all updates, modifications, additions or improvements (collectively "Upgrades") to the Software which have been made generally available by Developer. All Software, including all Upgrades, shall meet the technical standards published from time to time by Seller (http://www.sugaroutfitters.com/selling)
3.3 Developer shall be solely responsible for Support Services. Seller shall not provide a warranty to the Software to Customers. If Developer provides a warranty to the Software, the terms and conditions shall be set forth in the Developer Terms. Developer shall provide on the Registration Page a physical mailing address, an email address and phone number that Customers can use to contact Developer regarding use of the Software, including support and warranty questions.
4. SELLER'S OBLIGATIONS
4.1 Seller shall review each completed Registration Page and then determine whether or not, at its sole discretion, they will elect to sell the Software described in the Registration Page ("Seller Approval").
4.2 Upon Seller Approval, Seller shall promote, license and distribute the Software to Customers.
4.3 Seller shall not distribute the Software to Customer until Customer has agreed to use the Software in accordance with Seller's End User License Agreement and those additional Developer terms and conditions referenced on the Developer's Registration Page.
4.4 Seller is not responsible for the support or maintenance of Software.
4.5 Within thirty days of the end of each calendar month, Seller will provide Developer with a report that describes the number of Software licenses granted by Seller to Customer in the just ended calendar month (the "Sales Report"). The Sales Report shall include a calculation of the Net Sales (as defined below) of Software in the just ended calendar month. "Net Sales" shall be defined as the payments actually received by Seller from Customers who have licensed the Software minus the discounts, any refunds, rebates and allowances granted Customers, credit card chargebacks, amounts associated with credit card or debit card disputes, credit card and debit card usage fees and sales and use taxes paid by Customer to Seller.
5. LIST PRICES; PRICE ADJUSTMENTS; PAYMENTS
5.1 The List Price to be charged by Seller to Customer for each copy of the Software distributed by Seller to a Customer is set forth on Developer's Registration Page.
5.2 Developer may adjust the List Price at any time by modifying the List Price on Developer's Registration Page. If Developer increases or decreases the List Price, such change will apply to any Customer order received by Seller after the effective date of such price change.
5.3 As Developer's sole compensation for Seller's sales, licensing and distribution of the Software to Customers, Seller shall pay to Developer seventy percent (70%) of the Net Sales, as indicated on the Sales Report (the "Developer Payment(s)"). Seller shall pay the Developer Payment within thirty days of the date of the applicable Sales Report. All Developer Payments will be in United States dollars. Any dispute or claim with respect to Developer Payments shall be made in writing to Seller within forty-five (45) days from the date of the Sales Report. Failure to timely raise in writing any claims or disputes with respect to Developer Payments shall constitute a total waiver by Developer for any such Developer Payments.
6. INDEMNIFICATION
6.1 Developer shall indemnify and hold Seller and its officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with: (a) a claim alleging that the Software or Trademarks infringe upon or constitutes a misuse of a copyright, patent, trademark, trade secret, contractual right or right of privacy or publicity of a third party; (b) a claim, which if true, would constitute a violation by Seller of its representations or warranties set forth in Section 7.1 below; or (c) any claim made by a Customer against Seller that is based on or arises from the Software or any other product or services sold, licensed or distributed by Developer.
6.3 Seller shall (a) promptly give written notice of any claim of indemnification to Developer; (b) give Developer sole control of the defense and settlement of any such claim (provided that Developer may not settle or defend any such claim unless it unconditionally releases Seller of all liability); and (c) provide Developer all reasonable information and assistance requested by Developer.
7. LIMITED WARRANTY AND DISCLAIMER
7.1 Developer warrants to Seller that it has the right to enter into and perform this Agreement and to grant the license(s) specified in Section 2.1.
7.2 Developer warrants that the Software shall operate in conformance with the description of the Software on the Registration Page and those other descriptions set forth in Developer's marketing materials for a period of thirty days from the date that the Software is provided to Customer. In the event that the Software fails to meet such warranty, Developer agrees to refund all previous Developer Fees associated with said failure to meet such warranty.
7.3 Developer warrants that all information submitted on the Registration Page is correct and accurate.
7.4 Developer further warrants that the Software does not contain or will contain any protection feature designed to prevent its use. This includes, without limitation, any computer virus, worm, software lock, drop dead device, Trojan horse routine, trap door, time bomb or any other codes or instructions that may be used to access, modify, delete, damage or disable Customer's or Seller's computer system.
8. LIMITATION OF LIABILITY
8.1 WHETHER OR NOT ADVISED OF THEIR POSSIBILITY, AND EXCEPT FOR THOSE INDEMNIFICATION CLAIMS SET FORTH IN SECTION 6 ABOVE, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY, WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
8.2 EXCEPT FOR THOSE INDEMNIFICATION CLAIMS SET FORTH IN SECTION 6 ABOVE, ONE PARTY’S TOTAL LIABILITY TO THE OTHER PARTY, WHETHER IN CONTRACT, NEGLIGENCE OR OTHERWISE, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT WILL NOT EXCEED IN AGGREGATE THE TOTAL DEVELOPER PAYMENTS RECEIVED BY DEVELOPER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THAT THE CAUSE OF ACTION OR LIABILITY AROSE.
9. TERM AND TERMINATION
9.1 The term of this Agreement shall commence on the date of the Registration Approval and continue until terminated as set forth herein (the "Term").
9.2 Either party to this Agreement may terminate this Agreement on thirty (30) days prior written notice to the other party.
9.3 Upon the effective date of any termination of this Agreement, (a) all licenses and other rights granted to Seller under this Agreement will promptly cease, and (b) Seller will (i) promptly pay all undisputed amounts owed to Developer; (ii) return all tangible and intangible embodiments of the Software; and (iii) cease using the Trademarks.
9.4 Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs. Termination of this Agreement for any reason will not affect any rights or liabilities that have accrued prior to the date of termination.
9.5 Seller will not incur any liability or compensation obligation, and Seller hereby waives any rights which it may have to receive compensation, for any damage (including without limitation, damage to, or loss of, goodwill or investment), loss or expenses Seller suffers or incurs arising from, or incidental to, this Agreement's termination.
9.6 Sections 6, 7, 8, 9 and 10 will survive termination of this Agreement.
10. GENERAL TERMS
10.1 Except as set forth in the third paragraph of this Agreement, notices will be in writing and be deemed given when delivered personally or seven (7) days after having been mailed by first class mail, return receipt requested, or by prepaid express courier.
10.2 Developer may not assign this Agreement without the prior written consent of Seller which will not be unreasonably withheld or delayed. Seller may assign or delegate this Agreement and/or any rights and obligations thereunder, to any affiliate or subsidiary or to any other company in the event of merger of acquisition of Seller (even if Seller is not the surviving entity) or sale of substantially all of the assets of Seller.
10.3 The failure or delay of a party to enforce its rights with respect to any breach will not constitute a waiver of the right to enforce its rights with respect to the same or any other breach. Any waiver must be in writing to be effective.
10.4 This Agreement, and any disputes arising out of or in connection with this Agreement, will be governed by and interpreted in accordance with the laws of California without regard to that state's conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. All disputes arising from or relating to this Agreement will be within the exclusive jurisdiction of the state and/or federal courts located within Santa Clara County, California.
10.5 The parties are independent contractors and not agents, partners, joint venturers or employees of each other.
10.6 If any provision or part of this Agreement is found to be invalid or unenforceable by a competent court, it will be severed from the remainder of this Agreement which will remain in full force and effect to the fullest extent permitted by law.
10.7 This Agreement (including the Registration Page, which is hereby incorporated by reference) constitutes the parties' complete and entire agreement relating to its subject matter and supersedes all prior or contemporaneous discussions, representations, and proposals.
