EXHIBIT 10.7
BUY/SELL AGREEMENT
This Agreement effective as of the 1st day of April, 2004, by and between
TurboWorx, Inc., having offices at ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, ("Seller"), and AVNET, INC, having offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Buyer").
1. PRODUCTS
The term "Product" or "Products" as used in the Agreement will mean the
items listed on Exhibit "A", as changed from time to time in accordance
with the Agreement. Products may include software and/or hardware.
2. APPOINTMENT
Seller appoints Buyer and Buyer accepts the appointment, as an authorized
buyer for the Products within the United States, and Canada (the
"Territory"). Buyer is authorized to resell Products within the Territory
solely to resellers authorized by Seller in its sole discretion
("Authorized Resellers") or to end user customers of Buyer or the
Authorized Resellers ("Customers"). Buyer shall be the exclusive authorized
buyer for certain of the Products as designated in Exhibit "A".
3. TERM
This Agreement will commence on the effective date and will continue in
full force and effect until terminated as provided in section 11(a).
4. PRICE/PRICE CHANGE
(A) The Seller's list prices for the Products are set forth in Exhibit "A"
and the Seller's current pricing manual as provided to Buyer from time
to time. The price to be paid by the Buyer shall be the Seller's list
price less discounts as set forth in Exhibit "A". Buyer will also pay
shipping charges in addition to the Product prices.
(B) The Seller's list prices contained in Exhibit "A" are subject to change
by Seller at any time, with prior notice to Buyer. The discounts set
forth in Exhibit "A" may be adjusted according to the terms set forth
in Exhibit "A".
(C) In the event Seller decreases the price of any Product, Buyer is
entitled to a credit equal to the difference between the net price paid
by Buyer, less any prior credits issued by Seller for all Products
ordered from Seller but not yet delivered to Buyer and all Products
otherwise in transit to Buyer on the effective date of such price
decrease.
(D) All Products shipped after the effective date of any price increase
will be shipped and invoiced at the price in effect at the time of
order placement.
5. TAXES
Buyer will not be liable for any taxes with respect to any order other than
sales taxes that Seller is required by law to collect from Buyer.
6. PAYMENT
Payment for all Products purchased by Buyer will be 2% 10th and 25th or Net
thirty (30) days from date of invoice or shipment, whichever date is later.
In the event that at the close of each calendar month, sums owed to Buyer
from Seller exceed (i) sums due from Buyer to Seller plus (ii) projected
sums due from Buyer to Seller in respect of Products to be shipped in the
succeeding 30 day period collectively Net Seller Receivable ("NSR"), Seller
will remit to Buyer payment of all NSRs, by check or wire transfer in
Federal Funds, no later than the close of the following calendar month.
7. SHIPMENT/ORDER CHANGES
Buyer may change or cancel orders or reschedule shipment dates for any
Products ordered, provided Buyer notifies Seller at least ten (10) days
prior to the originally-scheduled shipment date. All Products ordered will
be shipped F.O.B. shipping point.
8. SOFTWARE LICENSING
In the event any of the Products listed on Exhibit A include software,
Seller authorizes Buyer to pass-thru to Buyers' Authorized Reseller(s)
and/or the end-users of the Products any and all Software licenses
necessary for use of such Products. Custom or unique terms relevant to such
licensing, and/or any and all fees associated with such will be negotiated
and agreed to as between Seller and such Authorized Reseller or end-user,
unless otherwise agreed to herein.
9. WARRANTY
Seller warrants the Products in accordance with its standard warranty as
set forth in Exhibit "B". Buyer is authorized to pass this warranty through
to Buyer's Authorized Resellers and to end-users. The warranty period as
stated in Exhibit "B" will begin to run with respect to any end user upon
delivery of the Product to the end user.
10. DISCONTINUED PRODUCTS/PRODUCT OBSOLESCENCE
Seller may discontinue the manufacture and/or sale of any Product. Seller
will give Buyer at least ninety (90) days advance written notice of any
such discontinuance, or in the event engineering or revision changes render
any Product obsolete.
11. TERMINATION
(A) This Agreement may be terminated at any time, with or without cause, by
either Seller or Buyer upon giving the other company at least thirty
(30) days prior written notice. The termination will be effective on
the date stated in such notice.
(B) After any termination of this Agreement Seller agrees to sell to Buyer
any Products which Buyer is contractually obligated to furnish to an
Authorized Reseller or end-user and which Seller has not yet delivered
to Buyer, provided Buyer orders such Products within ten (l0) days
after the effective date of termination.
12. PATENT/COPYRIGHT/TRADEMARK INDEMNIFICATION
Seller warrants that any and all Products purchased, and the manufacture,
sale or use thereof, do not and will not violate or infringe upon any
patent, copyright, trademark, trade secret or other intellectual property
right ("Third Party Rights") of any third party. Buyer agrees that Seller
has the right to defend, or at its option to settle, and Seller agrees, at
its own expense, to defend or at its option to settle, any claim, suit or
proceeding brought against Buyer, any Authorized Reseller or any Customer
on the issue of infringement of any Third Party Rights by the Products
distributed hereunder or the use thereof, subject to the limitations
hereinafter set forth. Seller shall have sole control of any such action or
settlement negotiations, and Seller agrees to pay, subject to the
limitations hereinafter set forth, any final judgment entered against
Buyer, any Authorized Reseller or any Customer on such issue in any such
suit or proceeding defended by Seller. Buyer agrees that Seller at its sole
option shall be relieved of the foregoing obligations unless Buyer notifies
Seller promptly in writing of such claim, suit or proceeding and gives
Seller authority to proceed as contemplated herein, and, at Seller's
expense, gives Seller information and assistance to settle and/or defend
any such claim, suit or proceeding. If the Products, or any part thereof,
are, or in the opinion of Seller may become, the subject of any claim, suit
or proceeding for infringement of any Third Party Rights, or if it is
adjudicatively determined that the Products, or any part thereof, infringe
any Third Party Rights, or if the distribution or use of the Products, or
any part thereof, is, as a result, enjoined, then Seller shall , at its
option and expense: (i) procure for Buyer the right under such Third Party
Rights to distribute or use, as appropriate, the Products or such part
thereof; or (ii) replace the Products, or part thereof, with other suitable
Products or parts; or (iii) suitably modify the Products, or part thereof;
or (iv) if the use of the Products, or part thereof, is prevented by
injunction, remove the Products, or part thereof, and refund the aggregate
payments paid therefor to Seller,. Seller shall not be liable for any costs
or expenses incurred without its prior written authorization.
Notwithstanding the foregoing, Seller shall not be obligated to defend or
otherwise be liable under this Section to the extent the infringement
asserted results from (a) any modification of the Products other than a
modification by Seller, (b) the use or combination of the Products with
items not provided by Seller, to the extent such infringement would not
have occurred but for such use or combination, or (c) the use of other than
the latest unmodified version of the Products if such infringement would
have been avoided by the use of such later version.
13. ADDITIONAL INSURED
Seller agrees to name Buyer as an additional insured on any and all product
liability insurance policies it may have in effect from time to time with
respect to any and all Products.
14. INTELLECTUAL PROPERTY RIGHTS
During the term of this Agreement, Buyer is authorized to use Seller's
trademarks, trade names and logos in connection with Buyer's sale,
advertisement and promotion of Products. Buyer will have the right to pass
on this right of usage to the Authorized Resellers. Upon termination of
this Agreement, Buyer and its Authorized Resellers will cease to use any of
such marks, names or logos and will, within a reasonable time, remove any
reference to Seller from its advertising and promotional material. Seller
shall at all times retain all patent, trademark, copyright or other
intellectual property rights to any of the Confidential Information (as
defined below) or Products provided by Seller to Buyer in connection with
this Agreement.
15. CONFIDENTIAL INFORMATION
Both parties agree to handle all Confidential Information as described in
the mutual Non Disclosure Agreement executed between Buyer and Seller on
March 31, 2004.
16. GENERAL
(A) INDEPENDENT CONTRACTORS. It is understood and agreed that Seller and
Buyer are independent contractors and each is engaged in the operation
of its own business and neither will be considered the agent of the
other for any purpose whatsoever. Nothing
contained in this Agreement will be construed to establish a
relationship that would allow either party to make representations or
warranties on behalf of the other except as expressly set forth in
this Agreement.
(B) ASSIGNMENT. This Agreement may not be assigned partially or completely
by either party without the prior written consent of the other which
will not be unreasonably withheld. This Agreement will be binding upon
both Buyer's and Seller's successors and assigns.
(C) NOTICES. Any notice to be sent to either Buyer or Seller must be in
writing and sent to their respective addresses as set forth on page one
of this Agreement.
(D) ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties with regard to the Products and supersedes all prior
communications and proposals. Amendments to this Agreement must be in
writing, signed by authorized officers of the Seller and Buyer and
specifically state that such amendment is made pursuant to this
subparagraph (d).
(E) GOVERNING LAW. This Agreement shall be governed by, subject to, and
construed in accordance with the substantive laws of the State of
Connecticut without regard for any choice or conflict of laws rule or
provision that would result in the application of the substantive law
of any other jurisdiction.
(F) STATUTORY CONFORMANCE. For all Products sold to Buyer, Seller warrants
and agrees that it has complied with the requirements of: (i) the Fair
Labor Standards Act of 1938, as amended, and its invoices will so
state; (ii) Social Security and Workers Compensation laws, if work is
performed on Buyer's premises; (iii) Equal Opportunity clause in
Section 202 of Executive Order 11246, as the same may be amended; (iv)
Section 503 of the Rehabilitation Act of 1973; (v) The Vietnam Veterans
Readjustment Assistance Act of 1974; and (vi) all other applicable
federal, state and local laws, codes and requirements.
(G) OZONE DEPLETING SUBSTANCES. Buyer reserves the right to reject any
Products containing or manufactured with substances identified as a
Class I or Class II ozone depleting substances by the U.S.
Environmental Protection Agency pursuant to Title VI of the Clean Air
Act Amendments of 1990, and any amendments thereto, whether or not such
Products will be required to bear labeling.
(H) SURVIVORSHIP. All obligations and duties that will by their nature
extend beyond the expiration or termination of this Agreement, will
survive and remain in effect beyond any expiration or termination of
the Agreement.
(I) FORCE MAJEURE. Neither Seller or Buyer will be liable for failure to
fulfill its obligations under this Agreement or for delays in delivery
due to causes beyond its reasonable control, including, but not limited
to, acts of God, acts or omissions of the other party, man-made or
natural disasters, material shortages, strikes, delays in
transportation or inability to obtain labor or materials through its
regular sources. The time for performance of any such obligation will
be extended for the time period lost by reason of the delay.
(J) WAIVERS. The waiver by either party of a breach or default under any
provision under this Agreement or the failure of such party to exercise
its rights under this Agreement in any instance shall not operate or be
construed as a continuing waiver or a waiver of any subsequent breach
or default. No waiver of any of the provisions of this Agreement shall
be deemed or shall constitute a waiver of any other provision hereof
(whether or not similar).
(K) CONFLICTING TERMS. The parties agree that the terms and conditions of
this Agreement will prevail, notwithstanding contrary or additional
terms, in any purchase order, sales acknowledgment, confirmation or any
other document issued by either party effecting the purchase and/or
sale of Products. No waiver, alteration or modification of any of the
terms of this Agreement shall be binding unless in writing and signed
by a duly authorized representative of the party adversely affected by
such writing.
IN WITNESS WHEREOF, the persons signing below represent they have the authority
to sign the Agreement on behalf of their company:
SELLER: BUYER:
TURBOWORX, INC. AVNET, INC.
By: By:
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Name: Name:
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(TYPED OR PRINTED) (TYPED OR PRINTED)
Title: Title:
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Date: Date:
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EXHIBIT A
PRODUCT LISTING
Buyer to receive 40% off list price for products in current
Exclusive Price List below.
BUYER EXCLUSIVE PRICING FOR THE
TURBOWORX HOMOGENEOUS ENTERPRISE HUB/IBM XSERIES PACKAGES(1)
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Package Configurations IBM xSeries Model TurboWorx TurboWorx
Perpetual Unit Subscription/
Pricing* Annual Unit Pricing
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇ xSeries 305 $31,000 $12,500
Permits up to 16 homogeneous
TurboWorx SmartGrid(TM) Worker CPUs
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇ xSeries 345 $46,000 $18,500
Permits up to 64 homogeneous
TurboWorx SmartGrid(TM) Worker CPUs
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇ Permits up xSeries 345 Plus $86,000 $34,500
to 256 homogeneous TurboWorx
SmartGrid(TM) Worker CPUs
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(1) Software Packages listed are exclusive to Buyer only when sold in
a bundle with IBM xSeries hardware listed or equivalent. All
prices are for Hub software only; worker licenses may be ordered
off standard price list (see below). Buyer to receive 40% off
price shown above.
(2) Additional 18% maintenance fee required.
BUYER NON-EXCLUSIVE PRICING
Buyer to receive 40% off software list price for any all other
software products in current Seller Price List.
ANNUAL SALES REVENUE MILESTONES
o 40% discount shown above apply each year for the first $1,000,000 of
sales.
o Buyer to receive 45% discount off list price after exceeding
$1,000,000 sold.
o Buyer to receive 50% discount off list price after exceeding
$2,000,000 sold.
EXHIBIT B
WARRANTY
DISCLAIMER OF WARRANTIES AND CONDITIONS
THE SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS" AND WITHOUT ANY WARRANTY OR
CONDITION OF ANY KIND, STATUTORY OR OTHERWISE . TO THE MAXIMUM EXTENT PERMITTED
BY LAW, TURBOWORX AND/OR ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OR
CONDITIONS, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY EXPRESS OR
IMPLIED WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, WITH RESPECT TO THE
SOFTWARE OR DOCUMENTATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY, OR
FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE USE, QUALITY AND
PERFORMANCE OF THE SOFTWARE OR DOCUMENTATION IS WITH YOU.
NOTWITHSTANDING THE FOREGOING, TURBOWORX WARRANTS THAT THE SOFTWARE, AND THE
MANUFACTURE, SALE OR USE THEREOF, DO NOT AND WILL NOT VIOLATE OR INFRINGE UPON
ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY
RIGHT ("THIRD PARTY RIGHTS") OF ANY THIRD PARTY. CUSTOMER AGREES THAT TURBOWORX
HAS THE RIGHT TO DEFEND, OR AT ITS OPTION TO SETTLE, AND TURBOWORX AGREES, AT
ITS OWN EXPENSE, TO DEFEND OR AT ITS OPTION TO SETTLE, ANY CLAIM, SUIT OR
PROCEEDING BROUGHT AGAINST CUSTOMER ON THE ISSUE OF INFRINGEMENT OF ANY THIRD
PARTY RIGHTS BY THE SOFTWARE OR THE USE THEREOF, SUBJECT TO THE LIMITATIONS
HEREINAFTER SET FORTH. TURBOWORX SHALL HAVE SOLE CONTROL OF ANY SUCH ACTION OR
SETTLEMENT NEGOTIATIONS, AND TURBOWORX AGREES TO PAY, SUBJECT TO THE LIMITATIONS
HEREINAFTER SET FORTH, ANY FINAL JUDGMENT ENTERED AGAINST CUSTOMER ON SUCH ISSUE
IN ANY SUCH SUIT OR PROCEEDING DEFENDED BY TURBOWORX. CUSTOMER AGREES THAT
TURBOWORX AT ITS SOLE OPTION SHALL BE RELIEVED OF THE FOREGOING OBLIGATIONS
UNLESS CUSTOMER NOTIFIES TURBOWORX PROMPTLY IN WRITING OF SUCH CLAIM, SUIT OR
PROCEEDING AND GIVES TURBOWORX AUTHORITY TO PROCEED AS CONTEMPLATED HEREIN, AND,
AT TURBOWORX'S EXPENSE, GIVES TURBOWORX INFORMATION AND ASSISTANCE TO SETTLE
AND/OR DEFEND ANY SUCH CLAIM, SUIT OR PROCEEDING. IF THE SOFTWARE, OR ANY PART
THEREOF, IS, OR IN THE OPINION OF TURBOWORX MAY BECOME, THE SUBJECT OF ANY
CLAIM, SUIT OR PROCEEDING FOR INFRINGEMENT OF ANY THIRD PARTY RIGHTS, OR IF IT
IS ADJUDICATIVELY DETERMINED THAT THE SOFTWARE, OR ANY PART THEREOF, INFRINGE
ANY THIRD PARTY RIGHTS, OR IF THE USE OF THE SOFTWARE, OR ANY PART THEREOF, IS,
AS A RESULT, ENJOINED, THEN TURBOWORX SHALL , AT ITS OPTION AND EXPENSE: (I)
PROCURE FOR CUSTOMER THE RIGHT UNDER SUCH THIRD PARTY RIGHTS TO USE THE SOFTWARE
OR SUCH PART THEREOF; OR (II) REPLACE THE SOFTWARE, OR PART THEREOF, WITH OTHER
SUITABLE SOFTWARE OR PARTS; OR (III) SUITABLY MODIFY THE SOFTWARE, OR PART
THEREOF; OR (IV) IF THE USE OF THE SOFTWARE, OR PART THEREOF, IS PREVENTED BY
INJUNCTION, REMOVE THE SOFTWARE, OR PART THEREOF, AND REFUND THE AGGREGATE
PAYMENTS PAID THEREFOR TO TURBOWORX. TURBOWORX SHALL NOT BE LIABLE FOR ANY COSTS
OR EXPENSES INCURRED WITHOUT ITS PRIOR WRITTEN AUTHORIZATION. NOTWITHSTANDING
THE FOREGOING, TURBOWORX SHALL NOT BE OBLIGATED TO DEFEND OR OTHERWISE BE LIABLE
UNDER THIS SECTION TO THE EXTENT THE INFRINGEMENT ASSERTED RESULTS FROM (A) ANY
MODIFICATION OF THE SOFTWARE OTHER THAN A MODIFICATION BY TURBOWORX, (B) THE USE
OR COMBINATION OF THE SOFTWARE WITH ITEMS NOT PROVIDED BY TURBOWORX, TO THE
EXTENT SUCH INFRINGEMENT WOULD NOT HAVE OCCURRED BUT FOR SUCH USE OR
COMBINATION, OR (C) THE USE OF OTHER THAN THE LATEST UNMODIFIED VERSION OF THE
SOFTWARE IF SUCH INFRINGEMENT WOULD HAVE BEEN AVOIDED BY THE USE OF SUCH LATER
VERSION.
If you have questions about performance of this product, you can contact
Turboworx at ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ (or such other address as Turboworx may make
available from time to time).
Some jurisdictions do not allow the exclusion or limitation of relief,
incidental or consequential damages, so the above limitation or exclusion may
not apply to you.
LIMITATION OF LIABILITY
IN NO EVENT WILL TURBOWORX OR ITS LICENSORS BE LIABLE FOR SPECIAL, INCIDENTAL,
PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO
DAMAGES RESULTING FROM LOSS OF DATA, LOSS OF USE, OR LOSS OF ANTICIPATED
PROFITS) RESULTING FROM EITHER THE SOFTWARE OR DOCUMENTATION OR BOTH, EVEN IF
TURBOWORX OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH
DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO INTELLECTUAL PROPERTY
INFRINGEMENT CLAIMS, BREACHES OF CONFIDENTIALITY, OR LIABILITY FOR DEATH OR
PERSONAL INJURY RESULTING FROM A PARTY'S GROSS NEGLIGENCE TO THE EXTENT
APPLICABLE LAW PROHIBITS SUCH LIMITATION.
EXCEPT WITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS OR BREACHES OF
CONFIDENTIALITY, TURBOWORX'S OR ITS LICENSORS' LIABILITY TO YOU OR ANY RELATED
THIRD PARTY FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE
AMOUNT OF THE PURCHASE PRICE PAID FOR THIS LICENSE.
Some jurisdictions do not allow the exclusion or limitation of incidental,
consequential, special, punitive or indirect damages, or the limitation of
liability to specified amounts, so the above limitation or exclusion may not
apply to you.
