License and Distribution Agreement

This is a legally binding agreement between the party (the 'PUBLISHER'), whether a person or a legal entity, that make use of SOFTWRAP LIMITED'S services and software, and SOFTWRAP LIMITED ('Softwrap').

The terms and conditions of this Agreement are set out below, and the Publisher binds itself to these terms and conditions by consenting to them when registering as a Publisher with Softwrap. In the event of any conflict between the provisions of this Agreement and the provisions of any hard copy of a Licence and Distribution Agreement which is signed by the Publisher and Softwrap, the provisions of the hard copy shall prevail.

1. Interpretations and Definitions.

“Distribution Partner” shall mean a legal entity with whom Softwrap collaborates to market and distribute the Titles provided by the Publisher to Softwrap.

“End-User” means an individual or legal entity acquiring the Title;

“Chargebacks and Refunds” shall mean the aggregate of those amounts initially paid by End-users but which have then subsequently been charged back by End-Users or refunded back to End-Users;

“Confidential Information” shall mean a Party’s technical, financial and commercial information and shall include, but is not limited to, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, tracings, diagrams, models, samples, flow charts, data, computer programs, disks, diskettes, tapes, marketing plans, customer names and other technical, financial or commercial information and intellectual properties, whether in tangible or in intangible form;

“Publisher Fee” means the fee payable by Softwrap to the Publisher in terms of clause 9.1;

“Softwrap Services” shall mean the purchasing facility provided through the Softwrap server or Softwrap help desk, including the administration, banking and support elements of the facility.

“Softwrap Software” shall mean Softwrap's software code for constraining the use of Titles, and protecting against unauthorised access to or use of Titles, as well as enabling the purchase of such Titles through the Softwrap Services;

“Support Materials” shall mean all documentation, information and materials relating to the use of the Title, whether in paper, electronic or other format;

“Territory” shall mean worldwide;

“Title” shall mean the Publisher’s software provided to Softwrap from time to time;

“Wrap” shall mean the attachment of the usage constraints and purchasing facilities in the Softwrap Software to a Title, and “Wrapped” and “Wrapping” shall have corresponding meanings;

2. The purpose and scope of the Agreement

2.1  The purpose of this Agreement is to define the terms and conditions under which Softwrap markets, distributes and sells Titles to End-Users.

2.2  This Agreement shall apply to all Titles provided to Softwrap by the Publisher from time to time unless the Parties agree otherwise.

3. Terms and conditions of Licence.

3.1 The Publisher hereby grants to Softwrap a non-exclusive right and licence to:

3.1.1 Wrap the Titles using the Softwap Software;

3.1.2 Market, distribute and sell the Titles to End-Users in the Territory;

3.1.3 at Softwrap’s discretion, sub-license any one or more Distribution Partners, to market and distribute the Titles to End-Users in the Territory;

3.1.4 Use the Support Materials in the demonstration, marketing, distribution and sale of the Titles.

3.1.5 Reproduce itself and authorize the Distribution Partners to reproduce the necessary copies of the Titles and Support Materials for the purposes above outlined in 3.1.1 to 3.1.4.

3.2 Softwrap has the right to add a back-up CD to the Softwrap shopping cart allowing the End-User to get a copy of the purchased Title on a CD. Softwrap is entitled to charge the End-User a packaging and handling fee for the CD (the “CD Fee”). The CD is manufactured and delivered by or on behalf of Softwrap to the End-User at no additional charge to the Publisher. For the avoidance of doubt, all CD Fees received by Softwrap do not form part of the sales revenue upon which the Publisher Fee is calculated,

3.3 The purchase of a Title by an End-User may only be made if the End-User is enabled to use the Softwrap Services as directed in the Softwrap Software and only if the End-User agrees to enter into an End-User Agreement with Softwrap (“Softwrap’s EULA”) and accepts the registration method of Softwrap.

4. Warranty of Title and Use and Indemnification

4.1 The Publisher warrants that it is the owner of good and marketable title to the Titles and that it has the necessary rights in and to the Titles to grant the marketing, distribution and sale rights to Softwrap in accordance with this Agreement. 

4.2 The Publisher warrants that it has tested the Titles and that the Titles perform to the standards acceptable for their intended use. 

4.3 The Publisher warrants that it shall not reverse engineer, decompile, or disassemble the Softwrap Software, without Softwrap’s express prior written consent.

4.4 The Publisher at its own expense shall indemnify, defend and hold Softwrap free and harmless from all damages, losses, costs, actions and expenses, including attorneys’ and experts’ fees, arising from any third-party claims arising from or related to (a) breach of any representation or warranty made by the Publisher hereunder, or (b) any contention that the Titles or any intellectual property licensed hereunder infringes or misappropriates any copyright, trademark, patent rights trade secrets or any other intellectual property rights of any third parties.

4.5 To the best of Softwrap’s knowledge, the Softwrap Software does not infringe the intellectual property rights of any person. Softwrap will, however, indemnify the Publisher in the event of any Publishersuch infringement.

4.6 All implied warranties relating to Softwrap Software and Softwrap Services, including without limitation any warranty for fitness of purpose or of merchantability, are expressly excluded.

4.7 Softwrap warrants that it has full power and all necessary rights to enter into and perform according to the terms and conditions of this Agreement.

4.8 Softwrap warrants that it shall not reverse engineer, decompile, or disassemble the Titles, without the Authors express prior written consent.

4.9 Softwrap shall indemnify, defend and hold the Publisher harmless against any claims, actions, damages, liabilities, losses, costs, suits or expenditures (including but not being limited to attorney's fees and costs) incurred by the Publisher as a result of breach by Softwrap of any of its warranties.

5. Limitation of liability.

5.1 The liability of each Party under this Agreement shall be limited to loss or damage arising directly out of:

5.1.1 any material breach of that Party’s obligations under this Agreement; or

5.1.2 that Party’s own gross negligence or wilful misconduct.

5.2 Nothing in this clause 5 shall be construed to exclude the liability of either Party for death or personal injury caused by its negligence.

5.3 Except as expressly provided herein, neither party shall be liable to the other for any indirect and/or special and/or incidental and/or consequential damages (including without limitation, loss of profit and/or revenue and/or data and/or use) incurred by the other Party, or for similar costs, whether in an action in contract, tort (including but not limited to negligence) or otherwise based on a warranty or any other claim, even if the Party has been advised of the possibility of such damages.

5.4 Each Party’s aggregate liability for any claims arising out of this Agreement, whether in contract, tort (including but not limited to negligence) or otherwise, shall not exceed $75,000.

6. Software Changes.

6.1 Softwrap reserves the right to change, add to, improve and issue new versions of the Softwrap Software, in which event Softwrap shall notify the Publisher of such changes, additions, improvements or issues of new versions of the Softwrap Software.

7. Intellectual Property.

7.1 All intellectual property rights in the Titles are and shall remain the property of the Publisher or its licensors, and Softwrap shall not, nor shall it permit the Distribution Partners to, remove any markings, trade names or logos from any product of Publisher's.

7.2 All intellectual property rights in the Softwrap Software and Softwrap Services are and shall remain the property of Softwrap or its licensors, and the Publisher shall not remove any markings, trade names or logos from any product of Softwrap's.

7.3 Neither Party is entitled to seek registration of the other’s trademarks or otherwise seek to gain any rights to the other’s trademarks.

7.4 Each Party will immediately bring to other’s attention any improper or wrongful use of the other’s Intellectual Property Rights which come to the attention of a Party.

8. Commencement and Duration.

8.1 This Agreement shall continue until terminated in accordance with the provisions of clause 8.2, 8.3 or 8.4.

8.2 Either Party may terminate this Agreement by written notice if the other is in breach of any of its material obligations under this Agreement and fails to remedy such breach (if capable of remedy) within 20 days of written notice to do so.

8.3 Either Party may terminate this Agreement immediately and without notice if:

8.3.1 the other Party enters into a composition with its creditors;

8.3.2 an order is made for the winding up of the other party;

8.3.3 an effective resolution is passed for the winding up of the other Party (other than for the purposes of amalgamation or reconstruction); or

8.3.4 the other Party has a receiver, manager, administrative receiver or administrator appointed in respect of it.

8.4 Either Party may terminate this Agreement without cause by giving two (2) months written notice to the other Party.

8.5 Upon termination of this Agreement by either Party for whatever reason:

8.5.1 Softwrap shall return and/or destroy all copies of the Titles in its possession and shall use its best effort to cause all Distribution Partners it may have engaged to market and Distribute the Titles, to do the same;

8.5.2 Each Party shall return or destroy all Confidential Information of the other Party;

8.5.3 Softwrap shall cease to market, distribute and sell the Titles. However, the termination does not affect the licences distributed by Softwrap or its Distribution Partners before the termination of this Agreement. For the avoidance of doubt, both Parties shall also have the right to continue collecting revenue, when applicable, for the licences distributed by Softwrap or by any and all Distribution Partners prior to the termination of this Agreement;

8.6 Despite the termination of this Agreement, the Publisher’s right to receive fees from Softwrap continues and remains in force as agreed between the Parties for as long as Softwrap continues to receive sales revenues from End-Users pertaining to Titles.

9. Payments

9.1 Unless agreed otherwise in writing between the Parties, Softwrap will, in respect of each sale of a Title made by Softwrap, pay the Publisher a percentage of the sales revenue received by Softwrap as set out in Annexure A hereto (the “Publisher Fee”).

9.2 Softwrap will process the sales revenue on a monthly basis and shall pay the Publisher Fee to the Publisher by the last business day of the following calendar month. The Publisher Fee shall be inclusive of any applicable VAT.

9.3 The Publisher shall be entitled to appoint an independent auditor for the verification of the Publisher Fee. The Publisher shall furnish 21 days notice in writing of its intention to audit. The Publisher undertakes to make payment of the costs of the auditors in preparing such a report unless the auditor’s report reveals that Softwrap has underpaid by more than 5%, in which case Softwrap shall promptly pay the amount of the underpayment together with the costs of such report.

9.4 Softwrap shall be responsible for paying all VAT and other sales taxes on the sale of the Titles to End-Users. 

9.5 Softwrap will only make payment to the Publisher when the amount owing to the Publisher is US$500 or greater (the “Minimum Payment Level”). In the event that the Minimum Payment Level is not reached during a calendar month, the amount standing to the Publisher’s credit will carry over to the next calendar month. The Minimum Payment Level will not apply in the event that the Publisher’s account is closed due to a valid termination of this Agreement.

9.6 Softwrap shall be entitled to recover from the Publisher or to setoff against future Publisher Fees owing, at Softwrap's discretion, the Chargebacks and Refunds. If the number of sales transactions that are charged back by End-Users in any calendar month during the term of this Agreement is 0.4% or higher in relation to the number of successful sales transactions for that calendar month then, in respect of each chargeback made during that calendar month, Softwrap shall be entitled to recover from the Publisher or to setoff against future Publisher Fees owing to the Publisher, at Softwrap's discretion, an amount of US$25.

10. Title Sale Price.

10.1 The sales price for each Title shall be set and decided by Softwrap. The Publisher may, however, suggest a minimum sales price for each Title.

11. Publisher's End-User Licence.

11.1 In the event of the Publisher Wrapping the Title, it shall be the Publisher's responsibility to include the Publisher’s End-User licence agreement, if any, in the Wrapped Title. In the event that Softwrap is to Wrap the Title, it shall be the Publisher's responsibility to provide Softwrap with the Publisher’s End-User licence agreement, if any, together with the Title. If such licence contains any terms or conditions that are contradictory to those in this Agreement, then the terms and conditions of this Agreement shall prevail.

12. Notice of Errors.

12.1 The Publisher shall notify Softwrap as soon as reasonably possible after it becomes aware of any errors in the Softwrap Software or Softwrap Services.

13. Notices.

13.1 All notices which are permitted or required to be given hereunder shall be in writing and shall be sent to the last known corresponding address or number of the receiving Party. Any such notice may be delivered personally, or by courier or registered post, or by first class pre-paid letter, or by facsimile transmission and shall be deemed to have been served when delivered if delivered by hand, if by first class post ten days after posting, and if by facsimile transmission supported by printed confirmation report when dispatched, and if by courier or registered post when signed for.

14. No Partnership or Agency.

14.1 Nothing in this Agreement shall constitute or be deemed to constitute, a partnership between the Parties, or to constitute either Party as an agent of the other.

14.2 The Publisher shall have no authority or power to bind Softwrap or to contract in the name of Softwrap or to create a liability against Softwrap in any way or for any purpose.

15. Severability.

15.1 Should any part of this Agreement be declared to be void or invalid by the final decision of any court of competent jurisdiction, the remainder of this Agreement shall continue to be in force between the Parties, as if the portion which has been declared invalid or void was excluded from the Agreement at commencement thereof.

16. Force Majeure.

16.1 Neither Party shall be liable to the other for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to an event of Force Majeure.

16.2 Events of Force Majeure are events beyond the control of a Party which occur after and were not reasonably foreseeable on the date of signing of this Agreement and whose effects are not capable of being overcome without unreasonable expense and/or loss of time to the Party concerned. Events of Force Majeure shall include (without being limited to) war, acts of government, natural disasters, fire and explosions.

16.3 The Party wishing to claim relief by reason of force majeure shall notify the other Party in writing without delay of the commencement and the cessation of an event of force majeure. Parties shall take reasonable measures to minimize the effect of the force majeure conditions, but the Party’s sole remedy in such case shall be termination of this Agreement in accordance with its terms.

17. Confidentiality

17.1 Subject to clause 17.2, each Party shall both during and after the term of this Agreement hold in confidence and not use or permit the use (except for the purpose of performing its obligations under this Agreement) of any the other Party’s Confidential Information and use at least the same degree of care to prevent the unauthorised copying, use and/or disclosure of the disclosing Party's Confidential Information that it uses to protect its own Confidential Information of like importance.

17.2 Either Party ("the receiving party") may disclose Confidential Information of and to the extent that it:

17.2.1 has come into the public domain through no fault of the receiving party;

17.2.2 is disclosed by the owner of the Confidential Information to others without restriction on disclosure;

17.2.3 is independently developed by the receiving party;

17.2.4 was known to the receiving party prior to this Agreement without any breach of any restriction upon its dissemination or disclosure and can be shown by that party to have been so known; or

17.2.5 is required by law to be disclosed by the receiving party

18. Law.

18.1 This Agreement shall be governed by and construed in accordance with the laws of the Isle of Man and the courts of the Isle of Man will have jurisdiction over any disputes between the Parties.

19. General.

19.1 No representation, term, condition, guarantee, or warranty, not contained in this Agreement, nor any amendment of, addition to, or consensual cancellation of, this Agreement, nor any indulgence of one Party by the other, or waiver of either Party's rights provided in terms of this Agreement, shall be binding on the Parties unless reduced to writing and signed by or on behalf of both Parties.

19.2 This Agreement and any Annexures hereto form the entire Agreement between the Parties relating to the subject matter hereof, and supersede all prior communications, written and oral, between the Parties relating to the subject matter hereof.

19.3 Neither Party shall be entitled to assign nor transfer all or any of its rights, benefits and obligations under this Agreement without the prior written consent of the other Party, which consent shall not unreasonably be withheld.

19.4 Any terms and conditions that by their nature or otherwise reasonably should survive a cancellation or termination of this Agreement shall also be deemed to survive.

19.5 Headings are used for the purposes of references only and shall not affect the interpretation of this Agreement.

19.6 No delay or failure on the part of any Party to exercise or enforce any right or remedy under this Agreement shall constitute a waiver of that right or remedy or any other right or remedy.

19.7 This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument.  For purposes of this Agreement, the delivery of a counterpart signature by telephonic facsimile transmission will be deemed the equivalent of the delivery of an original counterpart signature.

ANNEXURE A:

Publisher Fees.

All charges below are listed in US Dollars. In addition to US Dollars ($), Softwrap accepts Pounds Sterling (£) and Euros (€). Please note that the numeric values of the fees listed below remain the same, irrespective of the currency used.

Title Sales Price (Excluding VAT and any other sales tax):	Publisher Fee (as a % of Title Sales Price):*
$10–$19.99	82.0%
$20–$49.99	82.5%
$50–$99.99	83.0%
$100–$149.99	83.5%
$150.00–$200.00	84.0%

Title Upgrade Price (Excluding VAT and any other sales tax):	Publisher Fee (as a % of Title Sales Price):*
$0 (Free Upgrade)	0%
$10–$19.99	82.0%
$20–$49.99	82.5%
$50–$99.99	83.0%
$100–$149.99	83.5%
$150.00–$200.00	84.0%