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IVAR Agreement No. _________
SUN MICROSYSTES COMPUTER CORPORATION
U.S. INDIRECT VALUE ADDED RESELLER ("IVAR") AGREEMENT
This AGREEMENT is effective on _______________, 19 __ ("Effective Date") by and
between Sun Microsystems Computer Company ("SMCC"), a division of Sun
Microsystems, Inc. a California corporation, having a place of business at 0000
Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 and Infinite Technology Group
LTD ("Reseller") having a place of business at 0 Xxxx Xxxxx Xxxxx 0000 Xxx Xxxx
Xxxx, XX 00000.
1. SCOPE
This Agreement governs Resellers authorization to purchase certain SMCC
products ("Products") from a designated SMCC 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,
approved buying and selling locations, and the identity of the designated
Master Reseller are set out in Exhibit A. SMCC may discontinue any Product
upon sixty (60) days' notice.
2. APPOINTMENT
SMCC appoints Resellers as a non-exclusive Indirect Value Added Reseller
("IVAR"). IVAR 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 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 IVAR executes a Government
System Integrator (GSI) Addendum. IVAR's primary business must at all
times be the sale and support of computer systems and related Valued Added
Services.
IVAR has executed the "Representation and Warranty" attached as Exhibit E,
thereby representing and warranting that it currently operates under, and
will maintain for the remainder of the term of this Agreement, a business
model so that at least fifty Percent (50%) of IVAR's aggregate revenue for
any six month period is generated by the sale of Value Added Services.
IVAR agrees, upon reasonable notice and 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 reserves the right, upon reasonable notice and at SMCC's expense, to
audit IVAR's conformity.
3. RESELLER DEVELOPMENT FUNDS
IVAR shall receive directly from SMCC, 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, Products not purchased for resale and Products
that IVAR'S Master Reseller did not purchase from SMCC. SMCC may modify
this Section upon ninety (90) days' Notice.
4. BUSINESS PLAN
IVAR has submitted a Business Plan to, and which has been reviewed by,
SMCC (attached as Exhibit C). IVAR has represented to SMCC that the
Business Plan accurately reflects the manner in which it intends to market
and support Products. Either party may initiate a review of the accuracy
of IVAR'S Business Plan upon thirty (30) days' notice, provided that SMCC
shall initiate no more than one review per calendar quarter.
5. IVAR REFERENCE GUIDE
SMCC's IVAR policies are detailed in its VAR Reference Guide ("Guide").
IVAR represents that it has read the Guide and will comply with all
applicable rules and procedures. SMCC may modify the Guide from time to
time upon sixty (60) days' Notice.
6. RESELLER COMMISSION PROGRAM
IVAR may participate in SMCC'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 SMCC may modify Exhibit D (Object Code License) at
any time. The current version of each Exhibit is hereby incorporated by
reference.
8. IVAR's OBLIGATIONS
A. Sale and Support. IVAR 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 at
each authorized selling location. IVAR shall provide to each End
User, as detailed in the Guide and the Business Plan; (1) complete
pre- and post- installation support, including complete
installation, training, and continuous technical service and (ii)
hardware and software maintenance support. IVAR must submit and SMCC
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, SMCC trained and SMCC certified, including at least one full
time SMCC dedicated sales representative and one full time, SMCC
dedicated systems engineer per authorized selling location. Training
and certification may be secured directly from SMCC or from any SMCC
Authorized training provider. SMCC'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
IVAR's End User for internal use, or (ii) the service of Products
sold and installed by IVAR under this Agreement, except that IVAR
may use such parts to service all of an End User's systems if IVAR
has sold and installed at least twenty-five percent (25%) of the
systems for which service is being provided.
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. IVAR is responsible for assuring that
the specified parts are received by SMCC within thirty (30) days
after shipment of the upgrade to
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IVAR. If the specified parts are not timely received, Master
Reseller will invoice and IVAR 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 upgrade
system(s) if purchased new.
D. IVAR Documentation Business Records, and Reports. IVAR 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. IVAR shall, 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 IVAR and its End Users, Master Reseller and SMCC.
SMCC may review these records upon request.
IVAR shall provide monthly Productivity Status Reports ("PSRs") to
SMCC as detailed in the Guide. Upon the initial failure to timely
submit a complete PSR; SMCC will put IVAR on notice that it is in
breach of its obligation. If IVAR fails to remedy this initial
breach or subsequently fail to timely submit a PSR, SMCC 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.
E. Indemnity and Insurance. IVAR agrees to indemnify and hold SMCC
harmless from and against all claims from IVAR's End Users or third
parties arising out of any acts and/or omissions of IVAR its
employees or representatives. IVAR shall carry liability insurance
to protect SMCC from all such claims, pay the premiums therefor,
and deliver to SMCC, upon request, proof of such insurance (which
shall require thirty (30) days' written notice to SMCC in event of
modification or termination).
F. Fair representation. IVAR shall display, demonstrate, and represent
Products fairly and shall make no representations concerning SMCC or
its Products which are false, misleading, or inconsistent with those
representations set forth in promotional materials, literature and
manuals published and supplied by SMCC. IVAR shall comply with all
applicable laws and regulations in performing under this Agreement.
G. "SMCC SPARC Only. IVAR shall not sell, lease, or otherwise deal in
any product based on SPARC Architecture, unless such product (i) is
a SMCC 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. IVAR is not prohibited by this Agreement
from selling any product that does not contain the SPARC
Architecture.
H. IVAR shall purchase all SMCC Products for resale from its designated
Master Reseller unless an exception is granted by SMCC in writing.
Purchase terms and conditions as may be agreed upon between IVAR 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. SMCC will permit
IVAR to change the identity of its designated Master Reseller only
once per year, by Notice (which shall include the effective date of
the transition), during the thirty (30) days' period prior to each
year's Expiration Date.
I. Limited Warranty. IVAR must provide a warranty to its End Users at
least equivalent to the warranty provided by Master Reseller. IVAR
agrees to indemnify SMCC for any liability or damages caused by
IVAR's provision of any other warranty.
J. 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 FAIL-SAFE 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"). SMCC SPECIFICALLY DISCLAIMS ANY
EXPRESS OR IMPLIED WARRANTY 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, LOGOS AND PRODUCT DESIGNS
A. "Sun Trademarks" means all company names, products names, marks,
logos, designs, trade dress and other designations or brands used by
Sun Microsystems Inc., its subsidiaries and affiliates in connection
with Products, including Sun, Sun Microsystems, the Sun logo,
SPARC station, SPARC server, and all Sun product designs.
B. IVAR is granted no right, title, license or interest in the Sun
Trademarks. IVAR acknowledges Sun's rights in the Sun Trademarks and
agrees that any and all use of the Sun Trademarks by IVAR shall
inure to the sole benefit of Sun. IVAR agrees that it shall take no
action inconsistent with Sun's ownership of the Sun Trademarks and
agrees not to challenge Sun's rights in or attempt to register any
of the Sun Trademarks, or any other name or xxxx owned or used by
Sun or any xxxx confusingly similar thereto. If at any time IVAR
acquires any rights in, or any registration or application for, any
of the Sun Trademarks by operation of law or otherwise, it will
immediately upon request by Sun and at no expense to Sun, as-
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sign such rights, registrations, or applications to Sun, along with
any and all associated goodwill.
C. IVAR may refer to the Products by their associated Sun Trademarks
provided that such references are truthful and not misleading and
provided that IVAR complies with the then-current Sun Trademark and
Logo Policies.
11. SOFTWARE
A. License. IVAR is granted a non-exclusive nontransferable limited license
to distribute and sublicense Products consisting of software in machine
readable form ("Software") to run on SMCC CPUs sold to End Users in
accordance with the terms of this Agreement. IVAR 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 SMCC on
request. IVAR 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 multiuser). The records may be
audited once per year by SMCC.
B. Internal Use. The provisions of Exhibit D (Object Code License) shall
govern IVAR'S internal use of Software, including use for demonstration,
development or training purposes.
C. Restrictions. Title to all copies of Software is retained by SMCC or its
Licensor. IVAR 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 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, SMCC or IVAR
tenders Notice of intention not to renew.
B. Termination.
(1) This agreement (which, for purposes of termination by SMCC, may be
construed as referring to 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) SMCC may terminate this Agreement immediately, by Notice in the
event that (i) there is any material change in the management or
control of IVAR, or transfer of any substantial part of IVAR's
business, (ii) SMCC discovers that IVAR has make a material
misrepresentation or omission in its Reseller Application, (iii)
IVAR makes an unauthorized sale, or (iv) IVAR fails to maintain the
business model set out in Section 2, herein.
C. Effect of Termination. Upon any termination or expiration of this
Agreement, IVAR 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 IVAR
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 indemnify 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 SMCC desires that information provided to IVAR under this Agreement be
held in confidence, SMCC agrees to identify such information as
"Confidential" or "Proprietary" ("Confidential Information"). All
Software is Confidential Information. IVAR 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
IVAR agrees that it shall resell Products only to End Users in the
Continental United States, Alaska, and Hawaii, unless IVAR has been
accepted into SMCC'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. IVAR
IVAR agrees to comply strictly with all such regulations and acknowledges
that it has the responsibility to obtain licenses to export or re-export
Products.
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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 for the County
of Santa Xxxxx. The parties hereby submit to the personal
jurisdiction and venue of such courts.
B. Relationship. The parties 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 act in a manner which expresses or implies a
relationship other than that of independent contractor.
C. Assignment. IVAR may not assign or otherwise transfer any of its
rights or obligations under this Agreement, without the prior
written consent of SMCC.
D. Waiver 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 non-enforcement, 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 SMCC:
Sun Microsystems Computer Corporation
0000 Xxxxxx Xxxxxx, M/S MIL06-20
Xxxxxxxx Xxxx, XX 00000
Attn: Manager, Sales Contracts
If to IVAR:
Infinite Technology Group LTD
0 Xxxx Xxxxx Xxxxx 0000
Xxx Xxxx Xxxx, XX 00000
G. Execution. This Agreement shall become effective only after it has been
signed by an authorized officer of IVAR and an authorized officer of SMCC.
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
communications, proposals and representations with respect to its subject
matter; and (ii) prevails over any conflicting or additional terms of any
quote, order, acknowledgement, 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 MICROSYSTEMS COMPUTER CORPORATION: IVAR
By: By: /s/ Xxxx Xxxxxxx
--------------------------------- ----------------------------------
Name: Name: Xxxx Xxxxxxx
-------------------------------- ---------------------------------
Title: Title: Executive V.P.
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Date: Date: 4/25/95
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July 31, 1999
[LOGO] Sun microsystems
Xxxxx Xxxxxxxx
Infinite Technology Group LTD
00 Xxxxxxx Xxxxxxxx
Xxxxxxx, XX 00000
RE: Sun Microsystems Inc. ("SMI")
U.S. Value Added Reseller Agreement ("Agreement")
#IV-0932PSN
Renewal Notification
Pursuant to the terms of your Agreement with Sun Microsystems Inc. (SMI), SMI is
pleased to renew your Agreement for an additional 12 months. Your next renewal
date is August 31, 2000.
Additionally, in accordance with the terms of the Agreement, we have provided
you a blank copy of our most recent Reseller Business Plan. Please complete and
return the enclosed to SMI Contracts Management, 00000 Xxxxx Xxxxxx Xxxxxxx,
Xxx. 000, Xxxxxx, XX 00000 M/S: UDFW04.
If you have any questions, please contact your SMI Sales Representative.
Sincerely,
/s/ Xxxx Xxxxxx
Xxxx Xxxxxx
Contracts Coordinator
SMI Contracts Management
