Marketing, Licensing, and Distribution Agreement
This Software Distribution Agreement (hereinafter "Agreement"), effective April 1, 2023 between Micro Enterprise Technologies, Inc, DBA Shout (hereinafter "Developer") and Distibutor, (hereinafter "Distributor").
I. AGREEMENT PURPOSE
Developer and Distributor desire to arrange for Distributor to market Developer's software in consideration for the compensation as set forth herein.
NOW, THEREFORE, it is agreed:
II. DEFINITIONS
As used herein, the following terms shall have the following meanings:
“Confidential Information” means the Developer Confidential Information and the Distributor Confidential Information
“Disclosing Party” means a party hereto disclosing its Confidential Information hereunder
“End User” means any licensee or potential licensee of the Software that during any period of their relationship with Developer has connected the Software to Distributor’s inventory management software at Sonlet.com or PopItUp.com;
“End User Agreement” means the standard agreement(s) pursuant to which Developer grants to End Users the right and license to use the Software;
"Error" means a substantial failure of the Software to conform to the material functional specifications contained within the Documentation
"Error Correction" means either a software modification or addition in Executable Code that when made or added to the Software, establishes material conformity of the Software to the material functional specifications contained within the Documentation, or a procedure or routine that, when included in the regular operation of the Software, eliminates the practical adverse effect on the End User of such nonconformity.
“Developer Confidential Information” means the Software
“Distributor Confidential Information” means the identity of, and other information regarding, End Users and information about Distributor’s plans, strategies, products and services
“Receiving Party” means a party hereto which receives Confidential Information of the disclosing party hereunder.
“Services Agreement” means a separate Agreement between Developer and Distributor in which the pricing, pricing schedule, contract effective date and other terms are defined and which incorporates the terms of this agreement.
“Software” means the Shout customer relationship management software described at shoutsocial.com and which are or may be available on the Shout.app, Apple App Store, Mac App Store, Windows Store, and Google Play Store, and any other future releases of Developer software that provide this functionality to Distributor users.
“Term” has the meaning set forth in Section 3 below;
III. LICENSE GRANT
- Developer grants to Distributor and Distributor accepts the following rights and licenses:
i. A transactional, nontransferable, worldwide, right and license to sublicense the Software to End Users, for End User’s internal use only and without the further right to sublicense, distribute, transfer, or transmit the Software during the Term;
ii. A nontransferable, nonexclusive right and license to use the Software for the sole purposes of (i) demonstrating the features and functionality of the Software to End Users, (ii) providing training to End Users, and (iii) providing Software support to End Users;
iii. A nontransferable, nonexclusive right and license to use the Developer Marks in conjunction with the licenses granted to Developer in subsections (a), and (b) above.
iv. A nontransferable, nonexclusive right and license to use the Distributor Marks in conjunction with the licenses granted to Distributor and to encourage and promote Software End Users to license Software from Distributor subject to Distributor’s prior written approval, which Distributor may provide by email and shall review within 7 days;
- Limited Licensees. Distributor shall market only to or through ZyiaActive.com and its affiliated websites.
IV. LICENSE TERM
Agreement shall commence as of the Effective Date and, unless earlier terminated as provided herein, shall continue until the first (1st) anniversary of the Effective Date (the “Initial Term”). Renewal of Agreement must be agreed to in writing.
V. END USER LICENSE FEE
During the Term, Developer shall determine the fee per Ender User license charged for use of the Software (hereinafter “End User License Fee”) at its sole discretion.
VI. DISTRIBUTOR LICENSE FEES
- Distributor shall pay Developer per license it distributes as defined in the Services Agreement.
- Payment Method. For all Tiers, Distributor shall be billed and shall pay on either an annual or monthly basis as defined in the Services Agreement.
VII. SOFTWARE RELEASES, MAINTENANCE, AND END USER SUPPORT
- New Releases. Developer shall make available to Distributor all new releases and versions of the Software promptly upon completion thereof, including all modifications, error fixes, and associated documentation. Nothing contained herein shall require Distributor to create any new releases and/or versions of the Software unless otherwise expressly set forth in Agreement.
- Error Correction. Developer shall use reasonable commercial efforts to correct all verifiable and reproducible “errors”. Upon delivery of an Error Correction to Distributor, such Error Correction shall be considered to be a part of the Software. Within a reasonable period of time after verifying that such an Error is present, Developer shall initiate work in a diligent manner toward development of an Error Correction. Developer shall not be responsible for correcting Errors resulting from misuse, negligence, revision, modification, or use of the Software or any portion thereof by Distributor, any End User, or any other person or entity that is not in accordance with the license restrictions. Distributor shall promptly notify Developer of all reported Errors encountered by Distributor or to the extent known by Distributor, any End User in using the Software.
- End User support. Developer shall provide support to End Users for use of the Software. Developer’s support personnel shall be trained and qualified to resolve Software problems. In the event that End Users request support from Distributor customer support team, Distributor may, at its discretion, provide high level support, refer End Users to Developer for further support, or report support issues to Developer directly.
VIII. TITLE AND INTELLECTUAL PROPERTY RIGHTS
Developer shall have sole and exclusive ownership of and all right, title and interest in and to the Software. Agreement does not provide the Distributor with title or ownership of the Software, but only the right to market and offer the Software as set forth herein.
IX. INFRINGEMENT INDEMNITY
Developer shall indemnify and hold Distributor harmless from and against any and all damages, costs, penalties, claims, demands, causes of action and expenses (including, without limitation, the fees and expenses of counsel) arising out of or resulting from the infringement of any patent, copyright, trademark, service mark, trade secret or other intellectual property right of a third party by the Software. Distributor agrees to promptly notify the Developer after Distributor becomes aware of any claim giving rise to an indemnification obligation pursuant to this Section; provided that a failure to provide such notice shall not affect Distributor’s right to indemnification pursuant to this Section, except to the extent that the Developer is actually prejudiced thereby.
X. LIMITATION OF LIABILITY
Except for each Party’s confidentiality obligations and indemnification obligations herein, including infringement obligations, in no event shall Developer or Distributor be liable for any indirect, special, incidental or consequential damages–including loss of profits–whether based on contract, tort, strict liability, or any other legal theory, even if Developer or Distributor was advised of the possibility of such damages.
In the event that any disclaimer of warranty or limitation of liability is found to be unlawful or inapplicable, or to have failed of its essential purpose, Developer's or Distributor’s liability shall be limited to the amount paid by Distributor for the specific Software copy that caused such liability or $1M, whichever is less.
XI. WARRANTIES AND REPRESENTATIONS
Developer and Distributor each represents and warrants that (i) it has all power and authority, corporate and otherwise, to enter into Agreement and perform its obligations hereunder, (ii) it has duly authorized, executed and delivered Agreement and (iii) Agreement is enforceable against each Party in accordance with its terms. Each Party disclaims all other warranties–express or implied–including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose.
XII. CONFIDENTIALITY
Confidential Information may be oral, visual, in writing or electronic.
“Confidential Information” of the disclosing party shall not include information which: (i) is or becomes generally available to the public, other than as a result of a disclosure by the receiving party or any of its Representatives (as defined below); (ii) was available to receiving party on a non-confidential basis prior to its disclosure to the receiving party by the disclosing party, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the disclosing party; (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party, provided that such source was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the disclosing party or any of its affiliates; or (iv) is or was independently developed or discovered by the receiving party without use of or reference to the Confidential Information of the disclosing party.
Confidential Information will not be used by Receiving Party or any of the Receiving Party’s employees, officers, directors or contractors (“Representatives”) for any purpose other than Receiving Party’s performance of its obligations or exercise of its rights pursuant to Agreement.
Confidential Information of Disclosing Party will not be disclosed or divulged by Receiving Party to anyone except: (a) with Disclosing Party’s prior written permission; (b) as may be required by law, rule or regulation or by the order or demand of a court or government agency or authority; or (c) as may be permitted pursuant to Agreement.
Notwithstanding the foregoing, Receiving Party may disclose Disclosing Party’s Confidential Information to those of Receiving Party’s Representatives as needed for the purpose of Receiving Party’s performance of its obligations or exercise of its rights pursuant to Agreement, but only after Receiving Party has informed Representatives of the confidential nature of such Confidential Information and received written agreement from such to treat Confidential Information confidentially on terms substantially similar to those of Agreement.
If Receiving Party or any of its Representatives shall be requested or required by governmental order, judicial process or similar means to disclose Confidential Information, Receiving Party agrees to provide prompt written notice to Disclosing Party of such request and to cooperate with Disclosing Party in seeking to limit such disclosure and in seeking an appropriate protective order and confidential treatment.
Disclosing Party will suffer irreparable injury as a result of the use or disclosure of its Confidential Information in violation of this Section, for which money damages will be inadequate. Accordingly, in addition to any other remedy available to Disclosing Party pursuant to Agreement or applicable law, Disclosing Party shall be entitled to obtain preliminary and permanent injunctive relief with respect to any breach or threatened breach of this Section, without the necessity of proving actual damages.
Upon expiration or termination of Agreement for any reason, Receiving Party will return to Disclosing Party or destroy all Confidential Information and all copies thereof (except that Distributor may retain any Confidential Information needed to fulfill orders then pending as contemplated by Agreement until such orders are fulfilled and any other Confidential Information that Distributor has a right to retain independent of Agreement) and, upon the written request of Disclosing Party, an authorized officer of Receiving Party will certify in writing to Disclosing Party that Receiving Party has complied with this Section. In such event, Receiving Party will continue to be bound by this Section.
XIII. TERMINATION
Notwithstanding the provisions Term, (a) either Party may terminate Agreement, at any time and for any reason, upon ninety (90) days prior written notice to the other party, (b) if either Party (hereinafter “Breaching Party”) breaches Agreement, the other Party may provide written notice thereof to Breaching Party. If such breach is not cured within thirty (30) days after Breaching Party’s receipt of such notice, the other Party may terminate Agreement upon written notice to Breaching Party, and (c) in the event that either Distributor or Developer are not permitted by law or the action of an independent third party action from distributing or developing the Software, Agreement shall terminate upon mutual agreement of the Parties.
Upon the date of expiration or termination of Agreement, for any reason, Distributor and Developer rights pursuant to Section III shall terminate. Each right or remedy of a Party in Agreement shall be cumulative and in addition to, and not in lieu of, each other right and remedy of such Party herein or pursuant to applicable law.
XIV. FORCE MAJEURE
Except with respect to Distributor License Fees obligations, neither Party shall be deemed in default, nor shall it hold the other Party responsible for, any cessation, interruption or delay in the performance of its obligations herein–excluding payment obligations–due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, boycott or other events beyond the reasonable control of such Party; provided, however, that the Party relying upon this provision: (a) gives prompt written notice thereof, and (b) takes all steps reasonably necessary to mitigate the effects of the Force Majeure Event; and (c) provided further, that in the event a Force Majeure Event extends for a period in excess of thirty (30) days in the aggregate, either Party may immediately terminate Agreement or the affected Customer Agreement upon written notice to the other Party.
XV. GOVERNING LAW
Agreement shall be governed by and construed in accordance with the laws of the State of Utah, without giving effect to its principles or rules of conflicts of laws.
XVI. DISPUTES
Any dispute shall first be referred in writing to the manager or managing director of the Parties. If the dispute is not resolved by the Parties within 21 calendar days from the date the dispute was referred to the manager or managing director in writing, it shall be referred to an executive, officer, partner, or owner of each party. If the dispute is not resolved by this process within 21 days, either Party may commence litigation proceedings in accordance with the relevant means available to it by applicable law.
XVII. INDEPENDENT CONTRACTOR
The relationship between the Parties is that of independent contractors and nothing herein shall be construed to create a partnership, joint venture, or agency relationship between the parties hereto.
XVIII. SURVIVING PROVISIONS
The following provisions of Agreement shall survive any expiration or termination hereof: Sections IX, X, XII, XIV. In addition, any accrued rights to payment and remedies for breach of Agreement shall survive any expiration or termination hereof and, if so directed by Distributor, Developer shall provide any Software licenses distributed herein prior to any expiration or termination of Agreement, even if such fulfillment occurs after such expiration or termination.
XIX. NOTICES
All notices and other communications required or permitted to be given under Agreement will be in writing and will be considered effective when deposited in the U.S. mail as registered or certified mail, return receipt requested, postage prepaid, or deposited with a nationally recognized overnight courier service for next day delivery, and in each case addressed to the party at the address of such party on the signature page hereof, unless by such notice a different address will have been designated in writing, or when delivered by email to the respective parties as follows:
Micro Enterprise Technologies, Inc, DBA Shout
Attn: Wyatt Grantham
Email: wyatt@shoutsocial.com
Distributor
As defined in the Services Agreement.
XX. ENTIRE AGREEMENT; AMENDMENT; WAIVER; SEVERABLE PROVISIONS; HEADINGS
Agreement is the entire agreement between the Distributor and Developer with respect to its subject matter and supersedes all prior and contemporaneous agreements, negotiations, representations and proposals, written or oral, related to such subject matter.
Agreement does not supersede Developer’s prior agreements pertaining to use of Distributor’s Application Programming Interface(s) and the Direct Sales Developer Agreement. Agreement may not be amended or otherwise modified except by a writing signed by authorized representatives of all Parties that specifically refers hereto. A waiver by any Party of its right herein shall not be binding unless contained in a writing signed by an authorized representative of the Party waiving its rights. The non-enforcement or waiver of any provision on any occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing.
No usage of trade or other regular practice or method of dealing between or among the Parties hereto shall be used to modify, interpret, supplement, or alter in any manner the terms of Agreement. In the event that any provision of Agreement is held invalid, illegal, or unenforceable, the remaining provisions shall be enforced to the maximum extent permitted by applicable law. Headings herein are for reference only, and shall not be construed as substantive parts of Agreement.
