FD is happy to welcome new resellers (each a “Reseller,” and collectively, “Resellers”) to our worldwide family of retailers, distributors and resellers. To ensure that FD’s products are properly promoted and supported, FD has developed this Agreement. FD reserves the right to amend and modify this Agreement from time to time. The version of this Agreement in place at the time you submit each Purchase Order (as defined below) is the version that will govern such order. FD will use reasonable efforts to notify you of these changes through communications through its website. For purposes of this Agreement, the terms ‘Reseller’, ‘you’, ‘your’ and ‘yours’ means the company, person or other entity purchasing the Products pursuant to this Agreement.
TERMS and CONDITIONS
RIGHTS AND OBLIGATIONS
Reseller shall have the non-exclusive, non-transferable and revocable right to purchase, sell, market and promote products purchased from FD (each a “Product” and, collectively, “Products”), subject to the terms and conditions of this Agreement. Reseller shall not sell, directly or indirectly or deliver any Product to any country where a delivery of such Product would be prohibited by any applicable laws or regulations. As between the parties, FD owns all right, title, and interest in and to all intellectual property in or relating to the Products and, no rights to such intellectual property are granted to Reseller, except as expressly provided in this Agreement. Reseller will not itself, or permit any third party to, modify, duplicate, disassemble, or attempt to reverse engineer the Products or otherwise try to disable or alter the Products’ functionality. Sale of the Products does not convey any license, expressly or by implication, to manufacture, modify, duplicate, or otherwise copy or reproduce any Product or component thereof. Each of Reseller and FD grants to the other a nonexclusive, nontransferable, non-sublicensable, royalty-free license to use, in Reseller’s case, “Final Draft” and associated logos and, in FD’s case Reseller’s company name and associated logos (collectively, “Marks”), solely in connection with each party’s rights and obligations under this Agreement. Any use of Marks must be in accordance with the granting party’s reasonable trademark usage policies, with proper markings and legends, and subject to the granting party’s prior written approval. The granting party may withdraw any approval of any use of its Marks at any time in its sole discretion. During the period of use, the licensed party shall reasonably cooperate with the granting party in facilitating the granting party’s monitoring and control of the nature and quality of products and services bearing the granting party’s Marks, and shall supply the granting party with specimens of the licensed party’s use of the granting party’s Marks upon request. If the granting party notices the licensed party that the licensed party’s use of the granting party’s Marks is not in compliance with the granting party’s trademark policies or is otherwise deficient, then the licensed party shall promptly comply with such policies or otherwise as directed by the granting party. Neither party shall make any express or implied statement or suggestion, or use the other party’s Marks in any manner, that dilutes, tarnishes, degrades, disparages or otherwise reflects adversely on the other party or its business, products or services. Each party acknowledges that the other party’s Marks are and shall remain Marks of the other party. Neither party shall gain any right, title or interest with respect to the other party’s Marks by use thereof and all rights or goodwill associated with the other party’s Marks shall inure to the benefit of the other party.
CONFIDENTIALITY AND NON-SOLICITATION
Neither party shall use or disclose any Confidential Information (defined below) of the other party for any purpose outside the scope of this Agreement, except with the other party’s prior written consent. Each party shall protect the other party’s Confidential Information in a manner similar to its own Confidential Information of like nature (but in no event using less than reasonable care). In the event of an actual or threatened breach of a party’s confidentiality obligations, the non-breaching party shall have the right, in addition to any other remedies available to it, to seek injunctive relief, it being specifically acknowledged by the breaching party that other remedies may be inadequate. “Confidential Information” means all proprietary or confidential material or information disclosed orally or in writing by the disclosing party to the other, including the terms and conditions of this Agreement, and all data of each party’s customers (which shall be deemed Confidential Information of such party), that is designated as proprietary or confidential or that reasonably should be understood to be proprietary or confidential given the nature of the information and the circumstances of the disclosure; provided, that Confidential Information shall not include any information or material that: (a) was or becomes generally known to the public without breach of any obligation owed to the disclosing party; (b) was or subsequently is independently developed without reference to Confidential Information of the disclosing party; (c) was or subsequently is received from a third party who obtained and disclosed such Confidential Information without breach of any obligation owed to the disclosing party; or (d) is required by law to be disclosed (in which case the party required by law to disclose such Confidential Information shall give the other party reasonable prior notice of such compelled disclosure should the other party wish to contest the disclosure or seek a protective order).
Each party shall indemnify, defend and hold harmless the other party, its affiliates, and their officers, directors, employees, agents, and subcontractors from and against any loss, damage or expense (including reasonable attorneys’ fees) incurred in connection with any claims, actions, demands, suits or proceedings (individually a “Claim” and collectively, “Claims”) made against the other party by a third party and arising out of a breach by the indemnifying party of this Agreement (including any representation or warranty contained herein). The party seeking indemnification shall (i) notify the indemnifying party in writing of any Claim as soon as practicable upon knowledge of same, (ii) give the indemnifying party the opportunity, and full and exclusive authority, to defend, settle or participate in the defense or settlement of the Claim, and (iii) provide to the indemnifying party all reasonable requested assistance (at the indemnifying party’s expense); provided, however, that (a) no failure to notify the indemnifying party shall relieve it of its indemnification obligations hereunder except to the extent the indemnifying party can demonstrate detriment attributable to such failure, and (b) the indemnifying party shall not settle any Claim in a way that imposes any obligation or liability on the indemnified party without the indemnified party’s prior written consent (which consent will not be unreasonably withheld).
DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
FD WARRANTS THAT THE PRODUCTS WILL SUBSTANTIALLY CONFORM TO THE DESCRIPTION CONTAINED IN THE APPLICABLE DOCUMENTATION. EXCEPT AS EXPRESSLY PROVIDED IN WRITING IN THIS AGREEMENT, OR ANY MUTUALLY AGREED UPON PURCHASE ORDER OR SCHEDULE ATTACHED TO THIS AGREEMENT, EACH PARTY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES REGARDING ITS PRODUCTS AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR IN WRITING, ARISING UNDER ANY LAW, INCLUDING WITH RESPECT TO VALIDITY, NON-INTERRUPTION, ERROR-FREE OPERATION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER UNDER TORT, CONTRACT OR ANY OTHER THEORY, EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE AGGREGATE OF THE AMOUNTS PAID OR OWED BY EITHER PARTY TO THE OTHER UNDER THIS AGREEMENT.
Any representation, warranty or condition with respect to Products purchased by Reseller’s customers shall run directly from FD to the Reseller customer. Reseller shall not make or offer any representation or warranty to any Reseller customer or potential Reseller customer with respect to any Product other than those representations and warranties made expressly in writing by FD. Reseller hereby agrees to indemnify, defend and hold harmless FD from and against any expense (including reasonable attorneys’ fees), cost, damage or liability resulting from any representation or warranty made or offered by Reseller in violation of this section.
EXCEPT WITH REGARD TO INDEMNIFICATION AND/OR PAYMENT OBLIGATIONS HEREUNDER, AND EXCEPT FOR BREACHES OF A PARTY’S CONFIDENTIALITY OR INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY (I) DIRECT DAMAGES IN EXCESS OF $300.00 OR THE LIST PRICE OF THE FD PRODUCT IN QUESTION (WHICHEVER IS GREATER) AND/OR (II) LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE PRODUCTS OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF FD OR RESELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
COMPLIANCE WITH LAWS AND EXPORT CONTROL
Each party shall comply with all applicable laws and regulations in its performance hereunder. Reseller agrees and acknowledges that it shall comply with all laws, rules and regulations and that the Products are subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. Reseller agrees that it will not and shall not permit any third party to export or re-export the Products in any form in violation of the export laws of the United States or of any foreign jurisdiction (as applicable). Reseller will comply strictly with the United States Foreign Corrupt Practices Act (the “FCPA”) and all anti-corruption laws and regulations of any country in which you resell Products. Reseller hereby agrees and acknowledges that its breach of this section will be grounds for immediate termination of this Agreement by FD.
The initial order from all new resellers must be prepaid by credit card.
Following the initial order, FD’s payment terms are net thirty (30) days from receipt of Products as applicable.
(a) emailed to Resellers; OR
(b) physically mailed to the address indicated in the “Notices” section below.
Prices quoted on POs must agree with the current FD Price List for the quantity ordered. All purchase orders must be issued and paid in U.S. dollars.
All POs for FD product are subject to a minimum quantity of ten (10) products ordered.
FD accepts credit cards, company checks, cashier’s checks and money orders. Such checks and money orders must be made payable to Final Draft. All payments must be in U.S. dollars. Bank transfers (ACH) will also be accepted. For bank information to execute ACH transactions please contact our Financial Department by clicking on the following link: Accounting. We also accept the following credit cards: MasterCard, Visa, Discover and American Express.
VOLUME LICENSING POLICY
Reseller may sell single-user licenses for the Products to end users only in accordance with the terms of this Agreement and the End User License Agreement (the “EULA”) incorporated herein by this reference. All use of Products by end users is subject to the EULA and you may not purport to impose any other terms pertaining to end users’ use of the Products.
Volume licensing must be purchased directly from FD by a company, university or other enterprise user; Products cannot be obtained through a Reseller. Therefore, Reseller shall not sell licenses to companies for enterprise use, or to schools or universities for use in a classroom/ laboratory or other academic setting. It is a violation of the EULA for FD Products to be used in this way. FD reserves the right to void this agreement in its sole discretion if Reseller does not adhere to this requirement.
EDUCATIONAL SALES POLICY
The FD EDU product SKU requires academic status verification and all Resellers are required to execute this verification. The FD EDU product SKU is designed to be sold to individual students and educators and may not be used by educational institutions on institutional machines in lieu of a site license. Each verified student or educator may only purchase 1 copy of FD EDU. Below is a list of qualifying documents for EDU verification. Such documents may be provided in hardcopy or digital form as described below:
College Students, K-12 Students age 13 and over must be currently enrolled and demonstrate such enrollment by providing to Reseller a copy of a valid Student ID card, registration receipt, class schedule, report card or a letter of enrollment on school letterhead.
Parents or guardians of K-12 Students Under 13 must be currently enrolled and demonstrate such enrollment by providing to Reseller a copy of a valid Student ID card, registration receipt, class schedule, report card or a letter of enrollment on school letterhead.
K-12 Educators and College Faculty must provide Reseller with a valid copy of their faculty ID card, letter of employment on school letterhead or a copy of a recent pay stub.
Home Schooled Students and Educators need to provide Reseller with a copy of their curriculum receipts, or proof of registration through or membership with a nationally-recognized home schooling organization such as the National Home School Association (NHSA).
In the case of a post-purchase EDU verification system, Reseller may not deliver the FD EDU product prior to verification.
To return or exchange Products, a Reseller must request and receive a Return Merchandise Authorization (“RMA”) number from FD prior to the submission of such request for return or exchange. Please contact our Sales Coordinator with Customer Numbers for Products to be returned or exchanged at Resellers to request the generation of RMAs for this purpose. Please be aware that RMAs are finalized and approved for credit o set only when all Customer Numbers are returned and all activations have been removed from any computers on which software is installed. To request a return or exchange, please return Customer Numbers to the following email address: Resellers
Please reference the RMA numbers provided to you by FD in your email.
All customers and/or clients of the Reseller that contact FD directly inquiring about refunds or returns will be directed to contact the Reseller. FD will not interfere with Reseller return policies and procedures.
STOCK ROTATION POLICY
It is the policy of FD to notify its Resellers of new or upgraded versions of products within thirty (30) days of release. Resellers must exchange old versions of Products at no charge, within thirty (30) days, by following our Return/Exchange policy above. Resellers may not sell older versions of Final Draft 30 days after the newest version’s release date.
FD is a developer, manufacturer and seller of all its Products directly. It is FD‘s policy to refer customers to Resellers in their area for purchase. Resellers are encouraged to submit advertising and special pricing information to FD at any time for referral purposes. FD reserves the right to promote, market and sell its products as it deems necessary.
MINIMUM ADVERTISED PRICE (MAP)
In order to protect FD’s reputation for superior technology and quality products, FD has established a Minimum Advertised Price (MAP) for selected FD products as set forth in the current FD Price List. This policy applies to all forms of advertising including mailings, catalogs, displays at consumer exhibitions and shows, and any and all forms of advertising media, including, without limitation, the Internet and any other electronic network. FD reserves the right at any time to change the prices listed on the FD Price List. Any changes to the prices on the FD Price List will be effective thirty (30) days from notification of the change on FD’s website. FD shall have the right to terminate this Agreement if the Reseller’s advertising contains a price lower than the MAP. This policy only concerns advertised prices and does not relate to actual sales prices for Products. The Reseller may sell the Products at any price. For Resellers located outside the US, the USD MAP as set forth is the equivalent in the applicable foreign currency.
FD advocates the solicitation of cooperative advertising from its Resellers. Please contact FD’s Marketing Department at Resellers to discuss cooperative advertising prior to implementation.
Products are delivered electronically only. Deliveries to Resellers will be delivered per requested PO-appropriate Customer Numbers (i.e., “License Numbers”) via FD’s digital transactional management systems. Reseller’s Customers can be directed to the FD web site Final Draft Installers to download the Product and any related documentation (as applicable) which can then be activated. Products are ready for use after the end user enters the Customer Number provided by FD. Resellers are permitted to host the appropriate software installers. FD will “Drop Ship” to Reseller’s customer email address or send a thumb drive containing the Product to Reseller’s mailing address upon request if required.
The amounts payable to FD under this Agreement do not include any taxes, customs duties or tariffs. Customs taxes and duties assessed by foreign governments are the sole responsibility of the Reseller. All Resellers hereby acknowledge and agree to pay all taxes and duties for electronic delivery outside of the U.S.A. All payments made by Reseller to FD are payable in full without reduction for any such taxes, customs duties or tariffs. Reseller is responsible for and will indemnify FD against any such taxes, customs duties and tariffs assessed against FD, based on payments to FD hereunder or on the use or possession by Reseller or an end user of the Products.
TERM AND TERMINATION
This Agreement shall continue until a party shall give notice to the other party of its desire to terminate this Agreement upon at least sixty (60) days prior written notice.
The terms of this Agreement shall be governed under the laws of California and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Products shall be subject to the exclusive jurisdiction of the state and federal courts located in Los Angeles, California.
Notices shall be in writing and effective upon receipt.
Notices to FD shall be addressed to:
Attn.: Legal Department.
2300 Empire Avenue
Reseller may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of FD. Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, reorganization, or sale of all or substantially all of the assets or equity in a transaction not involving a direct competitor of the other party. Any attempted assignment in breach of this section shall be voidable at FD’s option. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
This Agreement represents the entire agreement of the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the amendment or waiver is to be asserted. To the extent of any conflict between the body of this Agreement and any schedules or attachments hereto, the body of this Agreement shall prevail unless expressly stated otherwise. There are no third party beneficiaries to this Agreement.
No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be unlawful, illegal or unenforceable, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
FD shall not be liable for delays and/or defaults in its performance under this Agreement (other than Reseller’s obligation to pay fees) due to causes beyond its reasonable control, including, but without limiting the generality of the foregoing: acts of God or of the public enemy; fire or explosion; flood; actions of the elements; epidemics, telecommunication system failure; war; acts of terrorism; riots; embargoes; quarantine; viruses; strikes; lockouts; disputes with workmen or their labor disturbances; total or partial failure of transportation, delivery facilities, or supplies; acts or requests of any governmental authority; or any other cause beyond its reasonable control, whether or not similar to the foregoing.
Except for materials already made public, neither party will distribute any news releases, articles, brochures, speeches, or advertisements concerning this Agreement, nor use the other party’s name or trademarks (or any variation thereof), without the other party’s prior written consent.
Reseller represents and warrants that the following paragraph shall be included in any contract between Reseller and the United States Government or other governmental agencies: “Use of the Products by the United States Government or other governmental agencies shall be as “restricted computer software” or “limited rights data” as set forth in 48 CFR 52.227-14, or as “commercial computer software” or “commercial computer software documentation” under DFARS 252.227- 7202, or under such other similar applicable terms and conditions to prevent the transfer of rights in and to the technology to the government or such agency other than under normal commercial licensing terms and conditions. Contractor/manufacturer is Cast & Crew Production Software, LLC dba Final Draft, 2300 Empire Avenue, 5th Floor, Burbank, CA 91504.”
Reseller will not knowingly engage in the manufacture, use or distribution of counterfeit, pirated or illegal copies of the Products. Reseller further agrees not to resell any Products to customers that are known to Reseller to engage in the use, manufacture, distribution or transfer or counterfeit, pirated or illegal software. Reseller will reasonably cooperate with FD in the investigation of counterfeit, pirated or illegal copies of the Products. Reseller further agrees to report to FD, as soon as reasonably possible after it comes to Reseller’s attention, any suspected counterfeiting, piracy or other infringement of copyright in the Products and any related documentation or marketing materials.