SUN MICROSYSTEMS COMPUTER COMPANY
0000 Xxxxxx Xxxxxx, XXXXXX
Xxxxxxxx Xxxx, XX 00000-1100
000 000-0000
000 000-0000 fax
[SUN LOGO]
November 25, 1996
Xxxxx Xxxxxx
Icon CMT Corporation
000 Xxxxxxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000
RE: Sun Microsystems Computer Company ("SMCC")
U.S. Value Added Reseller Agreement ("Agreement") #IV-0092TP
Renewal Notification and Expiration date modification
This letter is to notify you that SMCC is pleased to conditionally renew the
above referenced Agreement with your company for an additional term. This
renewal is conditioned upon your agreement that your renewal date be extended
sixty days to February 28, 1997.
This extension is necessary to avoid any conflict of having the renewal process
coincide with the last (and busiest) month of SMCC's fiscal quarter. This sixty
day extension means the term of your Agreement will extend through February 28,
1998.
Therefore, if you wish to change your Master Reseller purchasing affiliation,
your opportunity to do so will be during the month of February, 1997.
It is extremely important that you sign where indicated below and return this
letter as soon as possible, but certainly no later than February 28, 1997.
Should you fail to do so, your Agreement will automatically expire without
further notice from SMCC on March 1, 1997.
Should you have any questions, please feel free to contact your Sun Sales
Representative.
Sincerely,
/s/Xxxx Xxxxxxxxx
-------------------------------
Xxxx Xxxxxxxxx
Contract Support Representative
SMCC Contracts Management
We hereby agree to the Expiration
date being modified in out Agreement.
Authorized Signatory: [signature illegible]
---------------------
Date: 12/31/96
-------------------------------------
ATTN: SMCC CONTRACTS DEPT.
000 Xxx Xxxxxxx Xxxx X/X XXXXX0-000
Xxxx Xxxx, Xx. 94303
cc: XXXX XXXXX, SMCC Sales Representative
Access Graphics Technology, Inc.
Integration Consortium, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
December 4, 1995
Mr. Xxx Xxx
Contracts Department
Sun Microsystems Computer Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Re: Integration Consortium, Inc.
Dear Xx. Xxx:
Reference is made to the U.S. Indirect Value Added Reseller
Agreement, dated as of November 2, 1992 (the "Agreement"), between Integration
Consortium, Inc. (the "Company") and Sun Microsystems Computer Corporation
("Sun").
Please be advised that the Company intends to merge with and
into its parent corporation, ICon CMT Corp. ("ICon"), a Delaware corporation
(the "Merger"), and that, pursuant to Section 17C of the Agreement, Xxx's prior
written consent is required to the assignment of the Agreement from the Company
to ICon which will result from the Merger. Accordingly, kindly confirm Xxx's
consent to such assignment by countersigning this letter in the space provided
below and returning it to me as soon as possible. There is no change in the
ownership of the company.
Very truly yours,
INTEGRATION CONSORTIUM, INC.
By: /s/Xxx Xxxxxxxx
---------------------------------------
Xxx Xxxxxxxx, Chief Financial Officer
Consented and Agreed to:
SUN MICROSYSTEMS COMPUTER CORPORATION
By: /s/Xxxxx Xxxx
-----------------------------------
Name:
Title: Manager, NAFO Contracts
SUN MICROSYSTEMS COMPUTER COMPANY
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000-0000
[SUN LOGO]
October 23, 1995
Xx. Xxxxx Xxxxxx
ICON International Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Xx. Xxxxxx:
This letter will serve as a response to your request for an exception to the
obligations set forth in Section 2 of the Indirect Value Added Reseller
Agreement ("IVAR") No. IV-0092TP between Sun Microsystems Computer Company
("SUN") and Integration Consortium Inc. ("ICON"), that all Netra Products be
sold direct to the end user. ICON is hereby granted authority to sell the
current Netra product line to those Netra Resellers currently authorized by
Access Graphics, provided that:
1) Sun preapprove each reseller in writing prior to the
commencement of any sale of such product;
2) the Netra Products are sold with ICON's added value, as
identified Exhibit C of the IVAR Agreement;
3) that the resellers to whom ICON sells such identified
product can not unbundle the product and it must be subsequently sold direct to
the end user.
All sales made by ICON must be identified through an ICON sales-out report,
identifying the ICON reseller and end user, per agreed upon guidelines for
report submission.
This letter further acknowledges that it is Xxx's intent to authorize ICON to
become part of Suns' Preferred Internet Provider Program ("XXXX") program, once
that program has been implemented by Sun, and to receive all benefits that such
a program will provide. Additionally once this program has been implemented, Xxx
will consider a pilot marketing fund credit, similar to the XXXX Reseller
Development fund ("RDF") for ICON sales of SPARC 1000 and SPARC 2000 based
systems when all of the following conditions are met:
1) systems are sold through the ICON channel for the Internet
application;
2) systems sales are reported on the ICON channel Productivity
Status Report ("PSR");
3) the systems sold include the ICON Internet value-add.
This credit will be made available to ICON for a maximum period of twelve (12)
months OR until there is a Netra based SPARC 1000/2000 product, whichever comes
first. The above referenced funds are to be used for marketing by ICON and will
be subject to the prior approval of Sun.
In consideration of the above authorization ICON agrees to an incremental annual
sales commitment of five million dollars ($5,000,000.00).
Either party has the right to terminate this amendment upon sixty (60) days
notice to the other party, without effecting any other terms and conditions of
the current IVAR Agreement between Sun and ICON.
Please acknowledge your approval of the above amendment to your current IVAR
Agreement with Xxx, by signing and returning this letter to my attention at your
earliest convenience.
Sincerely, Acknowledged and Agreed:
Xxxxxxx X. Xxxxxxxxxx /s/ Xxxxx Xxxxxx
Senior Corporate Contract Manager ---------------------------
NAFO Contract Management Name
President
---------------------------
Title
10/23/95
---------------------------
Date
cc: Xxx Xxxxxxx, Xxx
Xxxxx X'Xxxxxx, Xxx
-2-
SUN MICROSYSTEMS COMPUTER COMPANY
0 Xxx Xxxxxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
000 000-0000
000 000-0000 fax
[SUN LOGO]
September 5, 1995
Xx. Xxxxx X. Xxxxxx
ICon International Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Congratulations!
Sun Microsystems Computer Corporation, Inc. (SMCC) is pleased to acknowledge
that XXxx is accepted to participate in the Sun Netra "Preferred Internet
Provider Program" (XXXX).
The Preferred Internet Provider Program identifies "best-of-breed" Internet
Providers (IP) who have exceptional offerings in Internet access, service and
support for reseller channels and end users.
XXXX participation has significant benefits: you will be recognized by Sun as
part of an elite class of Internet providers and integrators. We will announce
this program and introduce your services to our channels and their customers
through our communications vehicles. Plus, for those IPs who are sun Netra
Internet Resellers, we are offering a special Reseller Development Fund, which
IPs can use according to the terms of the attached Sun Xxxxx XXXX RDF
Guidelines.
In turn, we require that the XXXX participants work with SMCC and develop and
execute a marketing plan which outlines how IPs will provide Internet access,
services and programs to Sun's reseller channels and customers.
XXXX participants are the preferred Internet Providers for participation in Sun
training, seminars, and local and national events. These activities will bolster
your ties with Sun, our channels and our customers who need Internet access and
services.
By your acceptance of this letter, you agree to participate in the Sun Preferred
IP Program and we are looking forward to forging an even stronger relationship
with you, and expand our on-line opportunities!
ICon International Inc.
Internet Provider
Sincerely,
[Signature Illegible]
----------------------
Name
Xxxxx X. Xxxxxx
----------------------
Title
President
/s/ Xxx Xxxxxx
------------------------------ ----------------------
Xxx Xxxxxx, Regional Director Date 9/26/95
ADDENDUM TO U.S. VALUE ADDED RESELLER AGREEMENT
The Addendum is entered into by and between Sun Microsystems, Inc. ("Sun") and
Integration Consortium, Inc. who are parties to a U.S. Value Added Reseller
(VAR) Agreement, IV298 (the "Main Agreement").
The provisions of the Main Agreement are hereby modified as follows:
1. PARAGRAPH 5, VAR'S RESPONSIBILITIES.
Add the following subparagraph S:
"VAR shall not sell, lease, or otherwise deal in any product based in SPARC
Architecture, unless such product (a) bears the Sun trademark or (b) is a
"laptop system."
A product is a "laptop system" if it is (i) transportable,
(ii) battery operated, (iii) under 16 pounds total weight
including case, and (iv) packaged without a CRT.
VAR is not prohibited by this Agreement from selling any
product that does not contain the SPARC Architecture."
2. PARAGRAPH 15, TERM AND TERMINATION.
Delete the text of subparagraph A and substitute in its place the following:
"This Agreement shall commence on May 1, 1991 and shall remain in force until
the date established according to the following schedule:
If Effective Date Falls Between: Then Expiration Date Is:
(1) January 1 - March 31 March 31 (of each following year)
(2) April 1 - June 30 June 30 (of each following year)
(3) July 1 - September 30 September 30 (of each following year)
(4) October 1 - December 31 December 31 (of each following year)
It shall be automatically renewed on a yearly basis thereafter, unless at least
thirty (30) days prior to any year's Expiration Date, Sun or VAR tenders written
notice of intention not to renew. This Agreement may be terminated by either
party for any reason or for no reason, with or without cause, by giving the
other party notice not less than sixty (60) days prior to the effective date of
such termination."
3. PARAGRAPH 22, GENERAL.
Delete the text of subparagraph C and substitute in its place the following:
"Assignment. Except as provided herein, neither party may assign or otherwise
transfer this Agreement, or any orders issued under it, without prior written
consent of the other party. Sun shall have the right to sell or assign any of
its rights to payments (and any related rights or interests) under this
Agreement. Any such assignments shall be with respect to such rights or
interests only and shall not affect Sun's obligations under this Agreement."
Sun: [signature illegible] VAR: [signature illegible] Name
--------------------------- --------------------------------
V.P., U.S. Field Marketing President Title
--------------------------------
July 26, 1991 8/6/91 Date
-------------------------------------
(Effective Date of Addendum)
ADDENDUM TO THE
SUN MICROSYSTEMS COMPUTER CORPORATION
U.S. INDIRECT VALUE ADDED RESELLER ("IVAR") AGREEMENT
This Addendum, effective on January 1, 1994, is entered into by and between Sun
Microsystems Computer Corporation ("SMCC") and Integrated Consortium, who are
parties to the indirect Value Added Reseller ("IVAR") Agreement No. IV-0092TP
(the "Main Agreement").
The provisions of the Main Agreement are hereby adopted as follows:
A. SECTION 1: SCOPE.
Delete the parenthetical ("identified by 'Product Tiers')" in second
sentence.
B. SECTION 2: APPOINTMENT.
Delete the text of Section 2 and substitute in its place the following:
Sun appoints Reseller as a non-exclusive Indirect Value Added Reseller
("IVAR"). XXXX is authorized to purchase Product from its designated
Master Reseller. Product must be:
(i) sold, leased or rented (collectively referred to as 'sold') in
conjunction with the services and/or products set out on Exhibit B
(collectively referred to as 'Value Added Services');
(ii) sold directly to End Users on a face-to-face basis; and
(iii) installed at an End User site in the United States ('Authorized
Sale").
The sale of Products to resellers is prohibited. The sale of Products
to the Federal Government is prohibited unless XXXX executes a
Government System Intergrator (GSI) Addendum. XXXX's primary business
must at all times be the sale and support of computer systems and
related Added Value Services.
XXXX has executed the "Representation and Warranty" attached as Exhibit
E, thereby representing and warranting that it currently operates under
(or will establish no later than July 1, 1994), and will maintain for
the remainder of the term of this Agreement, a business model so that
at least fifty percent (50%) of IVARs aggregate revenue for any six
month period is generated by the sale of Value Added Services. XXXX
agrees, upon reasonable notice and at its own expense, to provide to
SMCC in confidence, financial reports and documentation sufficient to
establish that it is in conformity with this Representation and
Warranty. SMCC reserve the right, upon reasonable notice and at SMCC's
expense, to audit XXXX's conformity."
C. SECTION 3; RESELLER DEVELOPMENT FUNDS.
Insert before the period at the end of the first sentence (after the
word "resale"), the following:
"and Products that XXXX's Master Xxxxxxxx did not purchase
from SMCC"
D. SECTION 4; BUSINESS PLAN.
Delete the text from the beginning of the second sentence to the end of
the Section and substitute in its place the following:
"Either party may initiate a review of XXXX's compliance with
its Business Plan upon thirty (30) days' notice, provided that
SMCC shall initiate no more than one review per calendar
quarter. XXXX's failure to comply with its Business Plan will
constitute a material breach of this Agreement."
E. SECTION 5; XXXX'S OBLIGATIONS.
Insert new Subsection C as follows (and redesignate the remaining
Subsections accordingly):
"C. UPGRADES. The list price of upgrades is based upon the
return to SMCC of specified parts from the system(s) being
upgraded, as set out in the U.S. Price List. XXXX is
responsible for assuring that the specified parts are received
by SMCC within thirty (30) days after shipment of the upgrade
to XXXX. If the specified parts are not timely received,
Master Reseller will invoice and XXXX agrees to pay Master
Reseller (net 30 days) for the non-returned parts, the
difference between the list price of the purchased upgrade(s)
and the list price of the upgraded system(s) if purchased
new."
F. SECTION 12; TERM AND TERMINATION.
Insert before the period at the end of Subsection B(2) the following:
", or (iv) XXXX fails to maintain the business model as set
out in Section 2."
G. EXHIBIT A: PRODUCT TIERS/AUTHORIZED LOCATIONS/MASTER RESELLER.
Delete all references to "Product Tiers" and related text, and
substitute in its place the following:
"Products: XXXX xxx purchase for resale only Products for
which it has, at the time of purchase, established the
required level of training and certification. SMCC reserves
the right to discontinue any Product upon sixty days notice."
H. EXHIBIT B; ADDED VALUE.
Delete the text of Exhibit B in its entirety and substitute in its
place the following:
"Value 'Added Services' means:
"1. Services such as installation, training, consulting,
integration, systems management, and software
maintenance.
"2. Products such as proprietary/customized software and
proprietary/customized hardware peripherals/add-ons;
but NOT widely available general purpose products
that are undifferentiated by channel, such as word
processing and spread sheet applications, and generic
hardware peripherals, such as printers."
Except as modified herein, the provisions of the Main Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties have caused this Addendum to be executed by
their duly authorized representative.
SUN MICROSYSTEMS COMPUTER CORPORATION IVAR
By: /s/Xxxxx X. Xxx By:/s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxx Name: Xxxxx X. Xxxxxx
Title: Director, NAAFO, Contract Management Title: President
Date: 11/16/93 Date: 11/1/93
[SUN LOGO]
SUN MICROSYSTEMS COMPUTER CORPORATION
U.S. INDIRECT VALUE ADDED RESELLER ("IVAR") AGREEMENT
This AGREEMENT is effective on February 1, 1992 ("Effective Date"), by and
between Sun Microsystems Computer Corporation ("Sun"), a Delaware corporation,
having a place of business at 0000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx
00000 and Integration Consortium Inc., aka ICON Inc. ("Reseller") having a place
of business at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000.
1. SCOPE
This Agreement governs Reseller's authorization to purchase certain Sun
products ("Products") from a designated Sun Authorized master reseller
("Master Reseller") and to resell those Products in the United States
to end users other than the Federal Government ("End Users"). Products
(identified by "Product Tiers"), approved buying and selling locations,
and the identity of the designated Master Reseller are set out in
Exhibit A. Sun may discontinue any Product upon sixty (60) days'
notice.
2. APPOINTMENT
Sun appoints Reseller as a non-exclusive Indirect Value Added Reseller
("IVAR"). XXXX is authorized to purchase Products from its designated
Master Reseller. Products must be (i) sold, leased or rented
(collectively referred to as "sold") as part of a total solution
consisting of Products and the added value set forth in Exhibit B, (ii)
sold directly to End Users on a face-to-face basis, and (iii) installed
at an End User site in the United States ("Authorized Sale"). The sale
of Products to resellers and to the federal government is prohibited
unless consented to in writing by Xxx. XXXX's primary business must at
all times be the sale and support of computer systems.
3. RESELLER DEVELOPMENT FUNDS
XXXX shall receive directly from Sun Reseller Development Funds ("RDF")
equal to two and thirty-six hundredths percent (2.36%) of the value of
its purchases of Products computed at Sun's list price, excluding
Products purchased from Sun Express and Products not purchased for
resale. Sun may modify this Section upon ninety (90) days' Notice.
4. BUSINESS PLAN
XXXX agrees to market and support Products in compliance with Business
Plans developed by XXXX and approved by Xxx (attached as Exhibit C).
Either party may initiate a review of XXXX's selection of and/or
compliance with objectives, strategies, and tactics under the Business
Plan upon thirty (30) days' notice, provided that Sun shall initiate no
more than one review per calendar quarter. XXXX's failure to comply
with its tactics under the Business Plan shall constitute a material
breach of this Agreement.
5. IVAR REFERENCE GUIDE
Sun's IVAR products are detailed in its VAR Reference Guide ("Guide").
XXXX represents that it has read the Guide and will comply with all
applicable rules and procedures. Xxx may modify the Guide from time to
time upon sixty (60) days' Notice.
6. RESELLER COMMISSION PROGRAM
XXXX xxx participate in Sun's Reseller Commission Program as detailed
in the Guide.
7. EXHIBITS
The attached Exhibits may be modified only upon the mutual consent of
the parties, except that Sun may modify Exhibit D (Object Code license)
at any time. The current version of each Exhibit is hereby incorporated
by reference.
8. XXXX'S OBLIGATIONS
A. Sale and Support. XXXX shall use its best efforts to promote
the sale of Products, and shall purchase and maintain the
demonstration configuration identified in the Guide for each
authorized Product Tier at each authorized selling location.
XXXX shall provide to each End User, as detailed in the Guide
and the Business Plan (i) complete pre- and post-installation
support, including complete installation, training, and
continuous technical service and (ii) hardware and software
maintenance support. XXXX must submit and Sun must approve a
detailed, location specific support plan prior to installing
Products at any End User site located more than 200 miles from
an authorized selling location. The sale and direct support of
Products must be performed at all times by full-time employees
who are Sun trained and Sun certified, including at least one
full time Sun dedicated sales representative and one full
time, Sun dedicated systems engineer per authorized selling
location. Training and certification may be secured directly
from Sun or from any Sun Authorized training provider. Sun's
support options are set out in the Guide.
B. Spare Parts. The use of spare parts purchased under the
authority granted by this Agreement is strictly limited to (i)
resale to an XXXX's End User for internal use or (ii) the
Service of Products sold and installed by XXXX under this
Agreement except that XXXX may use such parts to service all
of an End User's systems if XXXX has sold and installed at
least twenty-five percent (25%) of the systems for which
service is being provided.
X. XXXX Documentation Business Records and Reports. XXXX shall
furnish to its End Users, at the time of delivery of Products,
a sales receipt stating the date of sale, and, if applicable,
the serial number of Products sold. XXXX xxxxx, during the
term of this Agreement and for five (5) years thereafter, keep
and maintain complete and accurate business records with
respect to its purchase and sale of all Products, including
all documents relating to or exchanged between XXXX and its
End Users, Master Reseller and Sun. Sun may review these
records upon request.
XXXX shall provide monthly Productivity Status Reports
("PSRs") to Sun as detailed in the Guide. Upon the initial
failure to timely submit a complete PSR, Xxx will put XXXX on
notice that it is in breach of its obligation. If XXXX fails
to remedy this initial breach or subsequently fails to timely
submit a PSR Sun may cancel RDF accruals and suspend
participation in other programs. Any subsequent failure to
remedy or timely submit a PSR may result in immediate
termination of this Agreement.
D. Indemnity and Insurance. XXXX agrees to indemnify and hold Sun
harmless from and against all claims from XXXX's End Users or
third parties arising out of any acts and/or omissions of XXXX
or its employees or representatives. XXXX shall carry
liability insurance to protect Sun from all such claims, pay
the premiums therefor, and deliver to Sun, upon request, proof
of such insurance (which shall require thirty (30) days'
written notice to Sun in event of modification or
termination).
E. Fair Representation. XXXX shall display, demonstrate, and
represent Products fairly and shall make no representations
concerning Sun or its Products which are false, misleading, or
inconsistent with those representations set forth in
promotional materials, literature and manuals published and
supplied by Sun. XXXX shall comply with all applicable laws
and regulations in performing under this Agreement.
F. "Sun SPARC Out". XXXX shall not sell, lease, or otherwise deal
in any product based on SPARC Architecture, unless such
product (i) is a Sun Product or (ii) is a "laptop system". A
product is a "laptop" system if it is (i) transportable, (ii)
battery operated, (iii) under sixteen (16) pounds total weight
including case, and (iv) packaged without a CRT. XXXX is not
prohibited by this Agreement from selling any product that
does not contain the SPARC Architecture.
X. XXXX shall purchase all Sun Products for resale from its
designated Master Reseller unless an exception is granted by
Xxx in writing. Purchase terms and conditions as may be agreed
upon between XXXX and designated Master Reseller shall govern
the purchase of Products. All Product warranties or claims
against such warranties shall be between IVAR and its
designated Master Reseller. Sun will permit XXXX to change the
identity of its designated Master Reseller only once per year,
by Notice (which shall include the effective date of the
transaction), during the thirty (30) days' period prior to
each year's Expiration Date.
H. Limited Warranty. XXXX must provide a warranty to its End
Users at least equivalent to the warranty provided by Master
Reseller. XXXX agrees to indemnify Sun for any liability or
damages caused by XXXX's provision or any other warranty.
I. Failure to comply with any of the foregoing obligations will
constitute a material breach of this Agreement.
9. HIGH RISK ACTIVITIES
A. PRODUCTS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED,
MANUFACTURED OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL
EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAILSAFE
CONTROLS, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES,
AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS. AIR TRAFFIC
CONTROL LIFE SUPPORT OR WEAPONS SYSTEMS ("HIGH RISK
ACTIVITIES"). XXX SPECIFICALLY DISCLAIMS ANY EXPRESS OR
IMPLIED WARRANT OF FITNESS FOR SUCH HIGH RISK ACTIVITIES.
B. IVAR represents and warrants that it will not use, or
knowingly distribute or resell, Products for such High Risk
Activities and that it will ensure that its customers and End
Users of Products are provided with the notice in A. above.
10. TRADEMARKS
"Sun Trademarks" shall mean all names, logos, designs, and other
designations or brands used by Sun in connection with Products,
including Sun, Sun Microsystems and the Sun logo and the Sun system
enclosure design elements. XXXX is granted the right or license to use,
any Sun Trademarks, except that XXXX has the right to use the Sun Value
Added Reseller logo and to refer to Sun products and technologies by
their associated Sun Trademarks in XXXX's advertising or marketing
materials, in the form set out in the Guide. Xxx shall have the right
to approve all such materials, and XXXX agrees, on request, to modify
any materials which do not comply with these provisions. XXXX may not
re-logo or co-logo Products, or otherwise modify, conceal or remove any
Trademark or other proprietary rights notice without Sun's written
consent.
11. SOFTWARE
A. License. XXXX is granted a non-exclusive nontransferable
limited license to distribute and sublicense Products
consisting of software in machine readable form ("Software")
to run on Sun CPUs sold to End Users in accordance with the
terms of this Agreement. XXXX shall require each of its End
Users to execute a sublicense containing, at a minimum, the
provisions set forth on Exhibit D and shall provide copies to
Sun on request. XXXX shall keep records specifying the End
User, its location, the serial numbers of the CPU(s) on which
the Software was licensed, and the license capacity (single
user or multi-user). The records may be audited once per year
by Xxx.
B. Internal Use. The provisions of Exhibit D (Object Code
license) shall govern XXXX's internal use of Software,
including use for demonstration, development or training
purposes.
C. Restrictions. Title to all copies of Software is retained by
Sun or its Licensor. XXXX agrees not to decompile,
disassemble, or otherwise reverse engineer Software.
12. TERM AND TERMINATION
A. Term. This Agreement shall commence on the Effective Date and
shall remain in full force until the date established
according to the following schedule:
EFFECTIVE DATE: EXPIRATION DATE
(of each following year):
January 1 - March 31 March 31
April 1 - June 30 June 30
July 1 - September 30 September 30
October 1 - December 31 December 31
It shall be automatically renewed on an annual basis thereafter, unless
at least thirty (30) days prior to any years Expiration Date, Sun or
IVAR tenders Notice of intention not to renew.
B. Termination.
(1) This Agreement (which, for purposes of termination by
Xxx, may be construed as referring to an individual
authorized buying or selling locations) may be
terminated by either party ((i)without cause, for any
reason, on ninety (90) days' Notice to the other
party; (ii) immediately, by Notice, upon material
breach by the other party, if such breach cannot be
remedied; (iii) by Notice, if the other party fails
to cure any material remediable breach of this
Agreement within thirty (30) days of receipt of
Notice of such breach; or (iv) immediately by Notice
upon the second commission of a previously remedied
material breach.
(2) Sun may terminate this Agreement immediately by
Notice in the event that (i) there is any material
change in the management or control of XXXX, or
transfer of any substantial part of XXXX's business,
(ii) Xxx discovers that XXXX has made a material
misrepresentation or omission in its Reseller
Application, or (iii) XXXX makes an unauthorized
sale.
C. Effect of Termination. Upon any termination or expiration of
this Agreement, XXXX shall no longer be authorized to purchase
Products from Master Reseller. With the exception of those
rights and obligations which by their nature should survive,
all rights and licenses granted to XXXX under this Agreement
shall immediately cease and terminate. Neither party shall be
liable to the other for damages of any kind on account of the
termination or expiration of this Agreement in accordance with
its terms and conditions.
13. LIMITATION OF LIABILITY
Except for express obligations to indemnity under this Agreement,
and/or breach of Sections 9 (High Risk Activity, 11 (Software), or 15
(Confidentiality):
A. Each party's liability to the other for claims related to this
Agreement, whether for breach or in tort shall be limited to
$10,000; and
B. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT,
PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE IN
CONNECTION WITH OR RELATED TO THIS AGREEMENT (INCLUDING
LOSS OF PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE),
HOWSOEVER ARISING, WHETHER FOR BREACH OF THIS AGREEMENT,
INCLUDING BREACH OF WARRANTY OR IN TORT, EVEN IF THAT PARTY
HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE.
14. DISCLAIMER OF WARRANTY
EXCEPT AS SPECIFIED IN THIS AGREEMENT, ALL EXPRESS OR IMPLIED
REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT, ARE HEREBY EXCLUDED.
15. CONFIDENTIALITY
If Sun desires that information provided to XXXX under this Agreement
be held in confidence, Xxx agrees to identify such information as
"Confidential" or "Proprietary" ("Confidential Information"). All
Software is Confidential Information. XXXX will not disclose
Confidential Information and will use it only for purposes specifically
related to this Agreement. This Agreement shall not affect any
confidential disclosure agreement between the parties.
16. NO EXPORTATION
XXXX agrees that it shall resell products only to End Users in the
continental United States, Alaska and Hawaii unless XXXX has been
accepted into Sun's Passport Program and has executed a Passport
Addendum to this Agreement. Products, including technical data are
subject to the U.S. Export Administration Act and its associated
regulations and may be subject to export or import regulations in other
countries. XXXX agrees to comply strictly with all such regulations and
acknowledges that it has the responsibility to obtain licenses to
export or re-export Products.
17. GENERAL
A. Dispute Resolution. Any action related to this Agreement will
be governed by California law, excluding choice of law rules,
and will be brought exclusively in the United States District
Court for Northern California or the California Superior Court
of Santa Xxxxx. The parties hereby submit to the personal
jurisdiction and venue of such courts.
B. Relationship. The partes are independent contractors under
this Agreement and no other relationship is intended,
including a partnership, franchise, joint venture, agency,
employer/employee, or master/servant relationship. Neither
party shall be authorized to bind the other, or as a manner
which expresses or implies a relationship other than that of
independent contractor.
C. Assignment. XXXX may not assign or otherwise transfer any of
its rights or obligations under this Agreement without the
prior written consent of Sun.
X. Xxxxxx or Delay. Any waiver of any provision of this
Agreement, or a delay by either party in the enforcement of
any right hereunder, shall neither be construed as a
continuing waiver, nor create an expectation of nonenforcement
of that or any other provision or right.
E. Force Majeure. A party is not liable for non-performance of
this Agreement, to the extent to which the non-performance is
caused by events or conditions beyond that party's control,
and the party gives prompt Notice and makes all reasonable
efforts to perform.
F. Notice. All Notices (upper case "N", under this Agreement must
be in writing and delivered either in person or by a means
evidenced by a delivery receipt to the address specified
below. Notice will be effective upon receipt:
If to Sun: Sun Microsystems Computer Corporation
0000 Xxxxxx Xxxxxx, XX XXX00-00
Xxxxxxxx Xxxx, XX
Attn: Manager, Sales Contracts
If to IVAR: Integration Consortium, Inc. aka ICON, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
G. Execution. This Agreement shall become effective only after it
has been signed by an authorized officer of XXXX and an
authorized officer of Sun.
H. Entire Agreement. This Agreement, including all attachments
incorporated by reference, is the parties' entire agreement
relating to Products and: (i) supersedes all prior or
contemporaneous oral or written communication, proposals and
representations with respect to its subject matter, and (ii)
prevails over any conflicting or additional terms of any
quote, order, acknowledgment or similar communication between
the parties during the term of this Agreement. No modification
to this Agreement will be binding unless in writing and signed
by a duly authorized representative of each party.
Sun and XXXX acknowledge that each has read and understood this Agreement and
consents to be bound by its terms.
SUN MICROSYSTEMS COMPUTER CORPORATION IVAR
By: /s/Xxxxx Xxxxxxx By:/s/Xxxxx X. Xxxxxx
Name: Xxxxx Xxxxxxx Name: Xxxxx X. Xxxxxx
Title: Title: President
Date: 11/2/92 Date: 10/1/92
