GENERAL TERMS AND CONDITIONS of Master Distributor Agreement of WPS Office
Update on: August 25, 2020
The GENERAL TERMS AND CONDITIONS of Master Distributor Agreement of WPS Office( herein after referred to as the GENERAL TERMS AND CONDITONS) is an integral part of “Master Distributor Agreement of WPS Office” separately entered into by and between WPS Software Pte. Ltd. and/or its affiliates ( hereinafter referred to as “WPS”) and WPS’s Distributors ( hereinafter referred to as Distributors) concerning use licenses of the business software as stipulated in the “Master Distributor Agreement of WPS Office” (“Software”) to which WPS has legal rights.
The combination of “Master Distributor Agreement of WPS Office” and the GENERAL TERMS AND CONDITONS is hereinafter referred to as this Agreement, and is binding upon WPS and all the Distributors.
For purpose of this Agreement, hereinafter “Product” or “Products” means the use license(s) of the Software.
1. RIGHTS AND OBLIGATIONS
1) Distributors shall protect WPS’s and its Product’s reputation during their sales process and never do anything harmful to the rights or goodwill related to WPS or its products/ services. 2) In addition to this Agreement, Distributors shall also comply with WPS’s marketing policy, as it may be noticed and amended from time to time. 3) Distributors shall be responsible for all expenses and costs it incurs during their performance of rights and obligations under this Agreement, and unless otherwise agreed in writing, WPS will not pay any fees, revenue, compensation or amount to Distributors except as provided otherwise expressly. 4) Distributors’ Liability:
A) Distributors shall defend and indemnify and hold harmless WPS from and against any and all losses, claims, damages, liabilities and expenses (including, without limitation, legal fees and expenses) suffered or incurred by WPS to the extent arising from Distributors’ any breach of any representation or warranty or provision contained in this Agreement or any third party claims related to any breach by Distributors, or any third party claims related to any failure by Distributors to fulfill, any covenant or agreement contained herein.
B) Distributors promise not to sell pirated software. If Distributors found pirated software, Distributors must immediately inform WPS and make reasonable efforts to provide assistance.
C) Distributors guarantee that without the written consent of WPS, they shall not sign any agreement (including service category) related to software products and services of WPS with Customers in any way except for purchase agreement of Product(s) which is completely consistent with the demand of the software products ordered by Distributors to WPS, and shall not collect any fee from Customers except for purchase agreement of Product(s). Otherwise, any other payment related to the software products and services of WPS other than the purchase price obtained by Distributors shall be owned by WPS.
2. PRODUCT CHANGES
1) WPS has the right to modify, alter, amend or delete portions from the Product at any time in its sole discretion. WPS will use reasonable efforts to notify Distributors regarding Product changes.
2) Distributors may not alter, merge, modify or adapt the Software in any way including reverse engineering, disassembling or decompiling. Unauthorized reproduction or distribution of the Products, in whole or part, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
3. INTELLECTUAL PROPERTY
1) WPS retains all ownership rights to all applicable copyrights, trade secrets, trademarks, service marks, trade names and other intellectual property rights in the Software. Distributors shall not (i) copy, modify ,translate, or create derivate works of the Software or accompanying WPS documentation in any way, (ii) reverse engineer, disassemble, decompile or otherwise access the source code of the Software, (iii) remove, obscure or alter the WPS proprietary notices, any accompanying WPS End User License Agreement or other documentation for the Software, (iv) incorporate the Software into any other software or hardware product, or (v) private label the Software or any portion thereof or include any other party’s marks or legends on the Software or any portion thereof.
2) WPS grants Distributors a non-exclusive, royalty-free license to use the WPS trademarks, service marks, and trade names listed in the Attachment 1 (“WPS Marks”) solely for the purpose of advertising, promoting, merchandising and marketing the Products in the Territory specified in the Master Distributor Agreement of WPS Office. Distributors agree that all material relating to the Product shall identify WPS as the source of the Products. Distributors will discontinue all use of WPS Marks promptly upon the termination or expiration of this Agreement.
4.PRODUCT SUPPORT AND TRAINING.
1) WPS will provide Distributors with training on both the Product and WPS’s Distributors program processes. Training will be done either in-person, via web, or over the phone with training materials delivered to the Distributors.
2) WPS’s warranty, maintenance and support obligations with regard to the Products are set forth in WPS’s then-current End User License Agreement. WPS MAKES NO WARRANTIES TO Distributors, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
5.Limitation of Liability
WPS WILL NOT BE LIABLE FOR ANY LOST PROFITS, LOST BUSINSESS, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE TYPE OF CLAIM (INCLUDING NEGLIGENCE), ARISING OUT OF OR RELATING TO THIS AGREEMENT OR Distributors’ PURCHASE AND RESALE OF PRODUCTS. In no event will WPS’s aggregate liability arising out of or in relation to this Agreement or any order exceed the aggregate amount of the Product purchase payments received from Distributors in the six (6) months immediately prior to the date the claim arose, whether the claim arises under contract, statute, or common law.
6.RELATIONSHIP OF THE PARTIES
It is expressly understood and agreed that the relationship between the parties is solely that of Seller and “Distributor. Distributors are not, and shall not be, partners, agents, representative or joint venturers of WPS. Distributors have no authority to assume or create any obligation for or on behalf of WPS, express or implied with respect to the Products or otherwise.
7.MISCELLANEOUS
1) This Agreement supersedes all prior agreements, proposals, representations and communications between the parties relating to the subject matter herein. No contrary or additional terms or conditions contained in Distributors’ purchase orders will apply.
2) Distributors and WPS agree that this Agreement and the Products including all information related to the Products that are disclosed to the Distributors as a result of this Agreement: (i) constitutes the proprietary and confidential information of WPS; (ii) shall be used by the Distributors only as required to exercise the rights and obligations granted under this Agreement; and (iii) shall be held in confidence and shall not be made available in any form to any person or entity other than Distributors, without the express written consent of WPS.
3) This Agreement will be governed by the laws of the Hong Kong SAR, China without reference to any rules regarding conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any dispute arising out of or in connection with this Agreement shall be finally settled by binding arbitration in the China International Economic and Trade Arbitration Commission (CIETAC) under the CIETAC's arbitration rules in effect at the time of applying for arbitration, before a panel of [three arbitrators] selected by the parties (or, if not selected within thirty (30) days of a Request for Arbitration, appointed by the CIETAC pursuant to its rules). Judgment on the award may be entered in any court having jurisdiction thereof or having jurisdiction over either of the parties or its assets. Notwithstanding the foregoing, either party may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of such party’s intellectual property rights or other proprietary rights.
4) This Agreement is not assignable by Distributors. Any amendments or waivers of this Agreement must be in writing signed by both parties.
5) In any action between the parties to enforce any term of this Agreement, the prevailing party shall be entitled to recover reasonable expenses, including reasonable attorney’s fees.
6) All notices or other communications made under this Agreement from one party to the other party shall be deemed to be duly delivered (i) if by mail, on personal delivery or delivery of international express or postal mail (registered, return receipt requested), (ii) if by facsimile, when transmitted properly to the facsimile number; or (iii) if by e-mail, at the time of the entry of the e-mail into the e-mail system of the recipient. The notice or other communication received on a non-working day or a non-business hours of the receiving place shall be deemed to be received on the following working day.
7) If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
Attachment 1: WPS Marks
Distributors can only use the marks listed in this attchment 1 within the Territory for advertising, promoting, merchandising and marketing the Products. Any liability arising out of or in relation to the use of the WPS Marks outside of WPS Marks and Territory will be borne by the Distributors theirselves. The use of WPS Marks shall also be subject to this Agreement.
