This MASTER CHANNEL AGREEMENT
, (this Agreement
) is entered into on this 21st day of March,
2011 (Effective Date
) by and among (i) EC America, Inc., a Maryland
corporation, and a subsidiary
of immixGroup, Inc. (Parent
), with offices at 8444 Westpark Drive, Suite 200, McLean, VA 22102
), (ii) Parent, with offices at 8444 Westpark Drive, Suite 200, McLean, VA 22102, and (iii)
, Inc., a Delaware
corporation with its principal location at 9770 Patuxent Woods Drive
). Parent shall only be a party to this Agreement
select provisions as set forth in Section 13.13.
WHEREAS, immix maintains various contract vehicles and teaming relationships itself and
through its affiliates; and
WHEREAS, immix is a leading reseller of complex information technology hardware, software
licenses, maintenance, training and manufacturer-provided implementation services; and
WHEREAS, Manufacturer desires immix to resell certain Products, Support and Product Services
(as defined below) to Authorized Resellers and/or Government Customers (as defined below).
, in consideration of the mutual promises and covenants contained in this
and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Manufacturer and immix agree as follows:
For purposes of this Agreement
, the following terms shall have the meanings set forth below:
1.1 Addendum means a separate addendum or writing signed by both immix and Manufacturer
indicating the responsibilities of each party with respect to a particular contract vehicle.
1.2 Affiliates means (i) any corporation, partnership, limited liability company or
limited liability partnership, (each an Entity) in which Parent owns a twenty percent (20%) or
greater equity interest; or (ii) any Entity which, directly or indirectly, is in control of, is
controlled by or is under common control with Parent, as applicable, after applying the attribution
rules of Section 318 of the United States Internal Revenue Code. For the purpose of this
definition, control of an Entity shall include the power, directly or indirectly, whether or not
exercised: (i) to vote fifty percent (50%) (or such lesser percentage as is the maximum allowed to
be owned by a foreign corporation in a particular jurisdiction) or more of the securities or other
interests having ordinary voting power for the election of directors or other managing authority of
such Entity; or (ii) to direct or cause the direction of the management or policies of such Entity,
whether through ownership of voting securities, partnership interest or equity, by contract or
1.3 Authorized Reseller is a third party reseller that Manufacturer has designated in
writing to immix (including by electronic mail) to be authorized by Manufacturer with the right to
act as a reseller of Products, Support and Product Services to Government Customers.
1.4 Commercial Terms has the meaning set forth in Section 4.1. Manufacturer may update
the Commercial Terms
with other terms and conditions from time to time without amendment to this Agreement
1.5 Documentation any and all user manuals, guides and similar documents relating to the
operation of the Products in electronic, print or other format that are created and published by
Manufacturer to describe Product performance.
1.6 EULA Manufacturers standard end user license agreement
1.7 Government Customers U.S., state, district, county or city governments, international
agencies of which the U.S. Government is or becomes a member, North Atlantic Treaty Organizations,
U.S. Government-funded Agency for International Development grant projects, foreign governments and
entities, and such other entities agreed to by Manufacturer on a pre-approved and case-by-case
basis. This definition shall also include Systems Integrators and other entities reselling or
relicensing the Products to the U.S., and entities set forth in this section 1.6.
1.8 GWACS has the meaning set forth in Section 5.1.
1.9 License has the meaning set forth in Section 4.1.
1.10 Order any and all delivery, task, purchase or other orders placed by immix for the
Products, Support and/or Product Services.
1.11 Price license fee or sale price to immix.
1.12 Products any and all items offered by Manufacturer to immix at any time during the
term of this Agreement
for sale to Authorized Resellers and/or Government Customers, e.g
hardware, appliances, firmware, software, and related updates or upgrades as set forth on
Manufacturers then-current commercial product list to be separately provided by Manufacturer to
immix, which may be revised from time to time by Manufacturer without amendment to this Agreement.
1.13 Product Services those SKU-based services (regardless of the price) routinely
provided by Manufacturer to end users relating to the installation, configuration, testing and
tuning of Products including, but not limited to, training and educational services.
1.14 Professional Services services, other than Product Services, performed on a time and
material or fixed priced basis which are provided to an end user pursuant to a statement of work.
1.15 Sell or sale sale, license or sublicense of a Product.
1.16 Software any and all computer programs licensed for use by Manufacturer in
connection with this Agreement regardless of license type or delivery method.
1.17 Support the technical maintenance and support services that an end user can purchase
with respect to its use of purchased Products.
1.18 Systems Integrator a prime contractor or subcontractor for a Government Customer.
1.19 Termination Date has the meaning set forth in Section 9.5.
1.20 Trademarks the trademarks, names, logos and service marks of Manufacturer associated
with the Products.
1.21 Warranty Period has the meaning set forth in Section 3.1.1.
||SCOPE; IMMIX OBLIGATIONS
2.1 During the term of this Agreement, and subject to Section 4.1, Manufacturer grants to
immix and its Affiliates and immix accepts the non-exclusive right to market and resell Products,
Support and Product Services to Government Customers solely through Authorized Resellers. immix
will not: (i)
assign or delegate its rights or obligations hereunder, in whole or in part, to any third
party; (ii) promote, advertise, or market the sale or distribution of the Products, Support or
Product Services other than to Government Customers or Authorized Resellers; or (iii) enter into
any relationship or agreement with any dealer, original equipment manufacturer (OEM), value added
reseller (VAR), systems integrator, distributor or other third party other than an Authorized
Reseller for the purpose of permitting such third party to market and sell any Product, Support or
Product Services to any third party. Notwithstanding the foregoing, immix may directly (without the
use of an Authorized Reseller) market, resell and distribute Products, Support and Product Services
to a Government Customer if approved in advance by Manufacturer, in each instance on a case-by-case
2.2 Given the nature of Professional Services, the right to resell Professional Services is
not contemplated under this Agreement and requires a separate agreement or subcontract agreement
between the parties in addition to this Agreement. Manufacturer understands that nothing in this
Agreement, any Addendum, or any documentation requested in connection with this Agreement
establishes privity of contract between Manufacturer and any Government Customer.
2.3 Manufacturer shall have the right, either directly or indirectly through other
distributors, dealers, OEMs, VARs, systems integrators, distributors and other third parties, to
promote, advertise, market, sell and distribute the Products, Support and Product Services to
Government Customers and other end users and customers.
2.4 Manufacturer shall also have the right in its sole discretion to: (i) change, add to or
delete any Product, Support and/or Product Services from its product list at any time by providing
immix at least thirty (30) days prior notice; or (ii) change or terminate the level or type of
Support made available to Government Customers; provided, however, that such changes, additions,
deletions or terminations (collectively, Changes) shall not apply to any Orders submitted by an
immix customer prior to immixs receipt of written notice from Manufacturer specifying such
2.5 immix agrees that it will: (i) designate one (1) employee to act as its primary contact
for the purposes of communicating with Manufacturer and who shall be authorized to act on behalf of
immix within the scope of this Agreement; (ii) ensure that immixs employees who are directly
engaged in the sale of the Products, Support and Product Services complete all of Manufacturers
reasonably required sales and technical certification training; (iii) within fifteen (15) days
following the end of each calendar month while the Agreement is in effect, provide Manufacturer a
written point-of-sale (POS) report that includes the information set forth in subparts (i)-(iv) of
Section 5.2 for all transactions that occurred in such month; (iv) not conduct business in a manner
that reflects unfavorably on the Products, Support and Product Services and the good name, good
will and reputation of Manufacturer and not engage in deceptive, misleading or unethical practices
that are detrimental to the Products or Manufacturer; and (vi) make reference to Manufacturer and
the Products, Support and Product Services on immixs website (in a form to be agreed in advance
with Manufacturer) unless and until otherwise instructed by Manufacturer, and provide and maintain
a link from immixs website to Manufacturers website until instructed by Manufacturer to remove
2.6 Parent guarantees the performance of immixs obligation under this Agreement (and all Fee
Schedules) to make payment to Manufacturer for any amounts which are due and owing by immix to
Manufacturer pursuant to this Agreement provided that: (i) immix has not paid such amounts within
the period of time required
by this Agreement, notwithstanding that Manufacturer has previously (a) provided immix with a
notice of such failure to pay the amounts due and (b) afforded immix the requisite period of time
to cure such failure; (ii) there is no good faith dispute with regard to such amounts owed by
immix; and (iii) Manufacturer has provided written notice to Parent of such failure of immix to
make payment of the amounts due (Notice of Failure to Pay). Pursuant to the immediately
preceding sentence, Parent shall, within thirty (30) days of its receipt of the Notice of Failure
to Pay, pay Manufacturer the amount which immix has failed to pay to Manufacturer.
2.7 immix agrees to use commercially reasonable efforts to keep Manufacturers Products,
Support and Product Services listed on any GSA Schedule Contract held by immix or any Affiliates
thereof, provided that Manufacturer provides immix with all information reasonably necessary to
keep such listing current.
||WARRANTIES AND REPRESENTATIONS; INDEMNITY
3.1 Manufacturer represents and warrants to immix the following:
3.1.1 The Products are warranted as stated in the Commercial Terms (Warranty Period).
3.1.2 The Products will perform substantially in accordance with the Documentation.
3.1.3 Manufacturer is the owner of the Products or otherwise has the right to convey to
immix the rights granted under this Agreement and to perform its other obligations
hereunder, and that, to the best of Manufacturers knowledge, no part of the Products
violates or infringes upon any common law or statutory rights of any person or entity,
including, but not limited to, rights relating to copyrights, patents, trademarks,
contractual rights or trade secret rights.
3.2 EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THE PRECEDING SECTIONS 3.1.1, 3.1.2
and 3.1.3 MANUFACTURER MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO ANY PRODUCT, SUPPORT OR
PRODUCT SERVICES PROVIDED HEREUNDER AND HEREBY EXPRESSLY EXCLUDES ALL OTHER WARRANTIES, CONDITIONS,
ALL OTHER TERMS OR GUARANTEES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES, CONDITIONS, ALL OTHER TERMS OR WARRANTY OF
MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PRODUCTS
(INCLUDING ANY PRODUCT RELEASE OR MAINTENANCE RELEASE).
3.3 In the case of any alleged breach of Sections 3.1.1, 3.1.2 or 3.1.3 by Manufacturer, and
in the case of any third party allegation that any part of the Products infringes upon or
constitutes wrongful use of any U.S. copyrights, patents, trademarks, trade secret or other
proprietary rights, Manufacturer shall, at its expense, indemnify, defend, save and hold harmless
immix from and against any damages, losses, costs and claims based upon such allegation (each a,
Claim). Manufacturers obligations under this Section 3.3 are contingent upon (i) immix promptly
giving Manufacturer written notice of the Claim, (ii) immix providing, at Manufacturers expense,
all reasonable assistance to defend against the Claim, and (iii) Manufacturer being given the
exclusive right to control the defense and settlement of the Claim with counsel of its own
3.4 In no event will Manufacturer be liable for any indemnification obligations, liabilities,
expenses, losses or damages of immix or any third party resulting
from (i) any modifications to the Product or any components thereof other than by
Manufacturer, (ii) immixs sale or distribution of a Product after Manufacturer notifies immix to
discontinue sale and distribution of such Product, (iii) the combination of Products with a
non-Manufacturer application, product, data or business process, (iv) distribution or sale of a
Product in a manner prohibited under this Agreement, or (v) damages attributable to a
non-Manufacturer application, product, data or business process.
3.5 If any Product available for distribution to Government Customers or sale to Authorized
Resellers are, or in Manufacturers opinion is likely to be, enjoined due to the type of Claim
specified in Section 3.3 then Manufacturer may, at its sole option and expense but without
obligation to do so: (i) procure for immix the right to continue to distribute such Product under
the terms of this Agreement; (ii) replace the Product with a functional equivalent; (iii) modify
the Product so that they become non-infringing; or (iv) immediately remove such Product from its
product list in which event immix shall no longer have any right to market, distribute or place
Orders for such Products.
3.6 The provisions of this Section 3 set forth Manufacturers sole and exclusive obligations,
and immixs sole and exclusive remedies, with respect to indemnification for infringement or
misappropriation of intellectual property rights of any kind.
4.1 Subject to the terms and conditions of this Agreement, during the term of this Agreement
Manufacturer hereby grants to immix and its Affiliates a non-exclusive, non-transferable license
to: (i) market, resell and distribute copies of the object code of the Software to Authorized
Resellers for resale to Government Customers (License) pursuant to the EULA, a copy of which will
be separately provided by Manufacturer to immix, (ii) market and resell Support to Authorized
Resellers for resale to Government Customers pursuant to Manufacturers standard terms and
conditions for Support, a copy of which will be separately provided by Manufacturer to immix, and
(iii) market and resell Product Services to Authorized Resellers for resale to Government Customers
pursuant to Manufacturers standard terms and conditions for Product Services, a copy of which will
be separately provided by Manufacturer to immix (collectively the EULA, the terms and conditions
for Support, and the terms and conditions for Product Services, the Commercial Terms) to the
extent such terms and conditions do not conflict with federal law. Notwithstanding the foregoing,
immix may directly (without the use of an Authorized Reseller) market, resell and distribute
Products, Support and Product Services to a Government Customer if approved in advance by
Manufacturer, in each instance on a case-by-case basis. All rights not granted herein are reserved
4.2 Manufacturer, and its licensors, as applicable, retain title to and ownership of the
Software and Documentation, including all associated intellectual property and other proprietary
rights therein and in the Products. No title to or ownership of the Software or Documentation, or
any intellectual property rights therein or in the Products, is transferred to immix or any
Affiliate or any Authorized Reseller or any Government Customer pursuant to this Agreement.
4.3 The Products, Support and Product Services are provided to Government Customers subject to
the Commercial Terms. immix will require that Products, Support and Product Services be provided
to Government Customers under the Commercial Terms to the extent such terms and conditions do not
conflict with federal law and accommodate the Restricted Rights required of Commercial Computer
Software (F.A.R. 52.227-19).
4.4 Manufacturer grants immix a limited, non-exclusive and non-transferable right during the
term of this Agreement to use the Trademarks in order to promote the sale of Products, Support and
Product Services by Authorized Resellers to Government Customers. immixs use of the Trademarks
shall at all times be in accordance with Manufacturers then-current trademark usage guidelines.
immix shall not use any other trademark, logo or service mark confusingly similar to the Trademarks
without the prior written consent of Manufacturer. immix acknowledges and agrees that the use of
any Trademark shall not create any right, title or interest in or to the use of the Trademark, and
that all such use and goodwill associated therewith shall inure solely to the benefit of
||ORDER PROCEDURE; SHIPMENT
5.1 Unless stated otherwise in an Addendum to this Agreement for specific programs or
Government Wide Acquisition Contracts (GWACs) and in such cases only for the opportunity or
contract vehicle referenced in the Addendum, there shall be no minimum quantity for Orders, nor
shall there be a minimum or required Product mix. There shall be no initial stocking order
required. Authorized Resellers must also comply with Manufacturers standard policies and
procedures for its commercial channel program in order to be eligible to effect sales pursuant to
5.2 immix shall provide Manufacturer with an Order for all Products, Support and Product
Services to be resold to each Government Customer. All Orders submitted by immix will be in writing
and sent to Manufacturer at the address set forth above or sent electronically in the manner
specified by Manufacturer. By submitting an Order to Manufacturer, immix represents and warrants
to Manufacturer that the Government Customer identified in the Order is a bona fide purchaser and
that the Authorized Reseller has an agreement with such Government to sell Products, Support and/or
Product Services to such Government Customer. Each Order submitted by immix must include the
following information: (i) the quantity and/or type of the Products, Support and Product Services
to be resold to the Government Customer and the requested delivery date; (ii) the Authorized
Reseller that the Government Customer is purchasing the Products, Support and/or Product Services
from and all contact information of Authorized Reseller including but not limited to, the primary
contact, mailing address, phone number and e-mail address; (iii) the discount provided by immix to
Authorized Reseller; and (iv) all contact information of the Government Customer including but not
limited to, shipping address, phone number and e-mail address. If requested by Manufacturer, immix
shall submit orders for purchases via Manufacturers on-line ordering platform such as
Salesforce.com or other similar customer relationship management (CRM) tool.
5.3 An Order will not bind Manufacturer until Manufacturer accepts it in writing (including by
e-mail) or ships the Products or performs the Support or Product Services, as applicable. If
Manufacturers inventory of Products is inadequate to meet the then-current demand, Manufacturer
reserves the right to allocate available Products among its customers, distributors and resellers
in such a manner as Manufacturer, in its sole discretion, deems equitable, without liability to
immix, Authorized Resellers or Government Customers provided, however this sentence shall not
apply to Defense Priorities and Allocations System (DPAS) rated orders and such DPAS rated orders
shall be fulfilled by Manufacturer in accordance with their DPAS related terms provided that the
Order submitted by immix related thereto expressly states that it is a DPAS order and Manufacturer
accepts such Order.
5.4 Unless the parties separately agree in writing, the terms and
conditions of this Agreement shall apply to each Order. immixs Orders will be governed
exclusively by the terms and conditions of this Agreement and any conflicting terms or conditions
contained in any such Order will not in any way modify or add any additional terms or conditions,
even if Manufacturer accepts or acknowledges such a Order.
5.5 Manufacturer reserves the right to cancel any Order, or to refuse or delay shipment
thereof, if immix (i) fails to make any payment as provided herein or under such other terms of
payment as the parties may agree upon in writing, except for disputed items as provided in Section
7.4 herein, (ii) fails to meet reasonable credit or financial requirements established by
Manufacturer, or (iii) otherwise fails to comply with the terms and conditions of this Agreement.
5.6 Unless otherwise agreed to by Manufacturer, Manufacturer shall be responsible for
delivering the Products either to the Government Customer or the Authorized Reseller for subsequent
delivery to the Government Customer, in each instance, to the address set forth in the applicable
Order. Manufacturer will not deliver any Products to immix or an Authorized Reseller unless a
Government Customer is identified in the Order. Except as otherwise agreed to in writing by
Manufacturer, Manufacturer shall be responsible for providing Support and Product Services directly
to Government Customers. Products will be shipped F.O.B. from Manufacturers designated facility
to the location specified in the applicable Order by a nationally recognized carrier appointed by
Manufacturer or such other reputable carrier requested by immix and consented to by Manufacturer,
such consent not to be unreasonably withheld. Subject to Manufacturers rights as set forth in this
Agreement, title, except to the extent the Products contain or consist of intellectual property
rights of Manufacturer and its licensors, and risk of loss will pass to Government Customer upon
delivery of the ordered Products to Manufacturers designated carrier.
5.7 Manufacturer shall provide immix written notice (which can be done be electronic mail) of
shipping. Such notice shall reference immixs Order number and include the following information:
date of shipment, Government Customer name, Government Customer ship-to address, items and
quantities shipped, shipping method, carrier and tracking number.
5.8 Manufacturer will use commercially reasonable efforts to deliver the Products at the times
specified in the Order, provided, however, Manufacturer will not be liable to immix, Authorized
Resellers or Government Customers for any delay in the delivery of the Products. Manufacturer must
be provided with written notice within fifteen (15) days of delivery if an appliance or hardware is
damaged when delivered and needs to be returned. Any such damaged appliance or hardware must be
returned to Manufacturer, at Manufacturers expense, in accordance with the reasonable instructions
provided by Manufacturer. If such notice is not delivered to Manufacturer in such 15-day period,
Manufacturer shall have no obligation to provide an Government Customer with a replacement
appliance or hardware.
5.9 immix acknowledges and agrees that the Products, including the structure, organization and
design of the hardware, firmware and software included as part of the Products constitute
proprietary and valuable trade secrets (and other moral rights and intellectual property rights) of
Manufacturer and its licensors. immix will not attempt to: (i) modify, translate, reverse engineer
(except to the limited extent permitted by law), decompile, disassemble or create derivative works
based on the Products or the accompanying documentation; (ii) except as expressly provided herein,
sublicense, rent or lease any rights in the Products or accompanying documentation in any form to
any person; or (iii) remove any proprietary notice, labels, or marks on the Products or their
containers or packaging.
||UPGRADES; DISCONTINUED PRODUCTS; DEFECTIVE PRODUCTS
6.1 Manufacturer shall notify immix within a commercially reasonable period of time of any
release of a new Product and update the Product list as necessary.
6.2 Manufacturer shall notify immix within a commercially reasonable period of time of the
discontinuation of any Product from its product list. For purposes of this Section 6.2, a
discontinuation of a Product shall take place at such time as Manufacturers management makes the
corporate decision that an existing Product will no longer be sold or licensed. In such event,
Manufacturer will update the Product list as necessary.
6.3 Subject to Section 6.4, immix may return to Manufacturer at Manufacturers expense, and
Manufacturer shall accept, any defective Product units returned by Government Customers within the
terms of Manufacturers warranty. Any such return need not be accompanied by an Order.
6.4 With respect to all Products returned to Manufacturer in accordance with Section 6.3: (i)
immix agrees to comply with Manufacturers reasonable policies concerning return authorization
procedures, including, if necessary, obtaining a return authorization number from Manufacturers
shipping department prior to returning the Product, and (ii) Manufacturer agrees to use
commercially reasonable efforts to promptly approve and effectuate any such Product returns.
||COMPENSATION; PRICE AND PAYMENT
7.1 immix will pay Manufacturer for each Order submitted and accepted by Manufacturer. The
immix compensation, payment terms and invoicing procedures will be set forth in the separately
executed Fee Schedule to be agreed upon by the parties.
7.2 immix will pay all shipping charges associated with each Order. Manufacturer is
responsible for airfare, lodging and related travel expenses incurred as a result of travel
requested and pre-approved by Manufacturer in writing. Manufacturer is not charged for mileage
within a 50-mile radius of Washington
7.3 Manufacturer understands that immix sells primarily within the public sector market and
that certain unique circumstances exist when serving Government Customers that must accommodate
public policy and the requirements associated with spending public funds. As such the Parties
agree as follows:
7.3.1 immixs price for the Products, Support and Product Services shall be stated in a
quote from Manufacturer or as part of a standing pricing schedule associated with a specific
contract vehicle (such as the GSA Multiple Award Schedule).
7.3.2 If Manufacturer provides a quote to immix for a specific sales opportunity, such quote
shall be honored by Manufacturer for a minimum of sixty (60) days from the date such quote
is received by immix.
7.3.3 Where one of immixs contract numbers is referenced it is understood and agreed that
any transaction pursuant to such reference whether in the form of a quote, Order or invoice
shall be considered as a transaction under the referenced contract.
7.3.4 Unless provided for through a written Addendum hereto or expressly agreed to as part
of a written quote from immix, this Agreement does not authorize Manufacturer or
Manufacturers agents, resellers, VARs, OEMs, System
Integrators, or partners of any type to issue quotes, against any of immixs or its
Affiliates government contracts. Manufacturer shall, at its expense, indemnify, defend,
save and hold harmless immix from and against any loss (including lost margin), cost, damage
or expense of any kind resulting from any failure by Manufacturer or its employees to act in
accordance with this Section 7.3.4.
7.3.5 Pursuant to 31 U.S.C. 3324, the Government Customer may be unable to make payments in
advance for services such as maintenance and/or training despite Manufacturers standard
commercial practice. immix will make every effort to honor Manufacturers standard
commercial payment practice but where the Government Customer requires invoicing and payment
for Services in arrears, immix will issue or re-issue its Order to Manufacturer and will
make payment in arrears to Manufacturer in accordance with the schedule mandated by
7.4 In the event that immix disputes in good faith the Price, condition, shipment or other
material element concerning any Product, Support or Product Service and so informs Manufacturer in
writing, such dispute shall not be sufficient cause for Manufacturer to delay, cancel or refuse
existing or new Orders. Additionally, immix may suspend payment for any such disputed items for a
reasonable time during which the parties shall use prompt and reasonable efforts to settle the
7.5 immix agrees that during the term of this Agreement and for one (1) year thereafter
Manufacturer or its designee (if one shall be mutually agreed upon in writing by Manufacturer and
immix) shall have the right (after immixs receipt from Manufacturer of five business days advance
written notice and subject to any contractual obligations of immix or its affiliates, e.g.,
nondisclosure or confidentiality obligations) and other reasonable limitations, not more than once
in any twelve month period, to conduct an on-site audit of immixs books and records directly
related to sale of Products, Support and Product Services. These audits will be conducted during
regular business hours and shall be at Manufacturers expense, and Manufacturer will make
reasonable efforts to minimize interference with immixs regular business activities.
Alternatively, Manufacturer may request that immix complete a self-audit questionnaire in a form
provided by Manufacturer. If an audit reveals that immix has not paid for all Orders, then
Manufacturer shall provide such evidence of non-payment to immix. If immix agrees that such
evidence adequately supports Manufacturers claim of non-payment, immix shall immediately
thereafter pay for such unpaid amounts.
8.1 immix acknowledges that Products, including technical data, are subject to the United
States export control laws. immix shall be responsible for compliance with such applicable export
laws and will obtain any required export licenses and other permissions for Products ordered
pursuant to this Agreement upon notice from Manufacturer that such export license or permission is
required. Without limitation of the foregoing, immix will not export or re-export directly or
indirectly (including via remote access) any part of the Product(s) and/or technical data to any
country listed on the State Departments list of State Sponsors of Terrorism.
8.2 immix shall not export and/or re-export Product(s), including technical data, to
individuals or companies listed on the U.S. Department of Commerces Denied Persons List or the
Entity List, on the U.S Department of Treasurys Specially Designated Nationals Lists, or any other
list of parties proscribed by the U.S. Government.
8.3 immix shall not export and/or re-export Products and technical data, if it knows or has
reason to know that the end-user is engaged in the design, development and use of nuclear, chemical
and biological, and/or missile technology activities.
8.4 Manufacturer shall reasonably assist immix by providing necessary information and
supporting documentation to immix, on immixs written request, for the purpose of obtaining any
export license or other permissions required for the export of a Product permitted by this Section.
8.5 immix shall, at its expense, indemnify, defend, save and hold harmless Manufacturer from
and against any loss, cost, damage or expense of any kind resulting from or any third-party claim
alleging any failure by immix, its employees or agents to act in accordance with this section.
9.1 This Agreement shall commence on the Effective Date and shall continue for thirty six (36)
calendar months. This Agreement shall be automatically renewed thereafter on a month-to-month
basis unless either party gives one hundred fifty (150) days notice to the other party of
termination, or unless this Agreement is otherwise terminated in accordance with Section 9.
9.2 This Agreement may be terminated, with or without cause, by either party upon one hundred
fifty (150) calendar days written notice to the other party.
9.3 This Agreement may be terminated by either party for cause at any time, without limiting
any partys other rights or remedies:
9.3.1 upon written notice identifying with specificity the cause if the non-terminating
party commits a material breach of this Agreement, and such breach continues unremedied for
a period of more than thirty (30) calendar days after receipt by the other party of written
notice thereof; or
9.3.2 without the obligation to give thirty (30) days written notice if the non-terminating
party: (i) has a receiver appointed for itself or its property; (ii) makes an assignment for
the benefit of its creditors; (iii) has any proceedings commenced by, for or against it
under any bankruptcy, insolvency or debtors relief law seeking a reorganization of such
partys debts and such proceedings are not dismissed within ninety (90) days of their
commencement; or (iv) is liquidated or dissolved.
9.3.3 In the event of termination for cause, Manufacturer agrees to assist immix by
providing any information that immix reasonably requests to satisfy a Government Customer.
9.4 Neither party to this Agreement shall be liable to the other by reason of termination of
this Agreement at law or equity for compensation, reimbursement or damages on account of any loss
of prospective profits on anticipated sales or on account of expenditures, investments, leases or
other commitments relating to the business or goodwill of either party, notwithstanding any law to
the contrary. No termination of this Agreement shall release either party from its obligation to
pay the other party any amounts which accrued prior to such termination or which shall accrue after
9.5 In the event either party terminates this Agreement, Manufacturer shall honor all Orders
placed prior to the date on which any termination becomes effective (the Termination Date),
including the License, if applicable, to any Government Customer which became effective prior to
the Termination Date.
9.6 Upon any expiration or termination of this Agreement for any reason: (i)
Master Channel Agreement
immix will pay Manufacturer for all unpaid Orders placed under this Agreement; (ii) immix will
discontinue all use of Trademarks; (iii) each party will remove the other partys logos, trademarks
and service marks from its website and disable all links on its own website to the other partys
website; and (iv) unless otherwise required by applicable law, each party will promptly destroy or
return the other partys confidential information in its possession or control and provide the
other party with a written certification, signed by one of its officers, certifying to the return
or destruction of such confidential information.
||LIMITATION OF LIABILITY
10.1 EXCLUSION OF CONSEQUENTIAL DAMAGES. EXCEPT FOR A BREACH OF SECTION 7.3.4,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE
OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, BUSINESS INTERRUPTION OR PROCUREMENT
OF SUBSTITUTE SOFTWARE OR SERVICES WHETHER FORSEEABLE OR NOT AND EVEN IF SUCH PARTY HAS BEEN
APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 LIMITATION OF DIRECT DAMAGES. EXCEPT FOR EACH PARTYS INDEMNIFICATION
OBLIGATIONS HEREUNDER, OR A BREACH OF SECTIONS 7.3.4 OR 13.3, IN NO EVENT WILL IMMIXS LIABILITY TO
MANUFACTURER EXCEED THE NET MARGIN EARNED BY IMMIX FROM ITS SALE TO GOVERNMENT CUSTOMERS AND
AUTHORIZED RESELLERS OF MANUFACTURERS PRODUCTS, SUPPORT AND PRODUCT SERVICES IN CONNECTION WITH
THIS AGREEMENT AND IN NO EVENT WILL MANUFACTURERS LIABILITY TO IMMIX EXCEED THE AMOUNT RECEIVED BY
MANUFACTURER FROM IMMIX IN ACCORDANCE WITH THIS AGREEMENT (PAID AMOUNT). As used in this Section
10.2, Net Margin shall mean the aggregate amount calculated by subtracting the Paid Amount from
the revenue received by immix from its sale to Government Customers and Authorized Resellers of
Manufacturers Products, Support and Product Services in connection with this Agreement.
||CHOICE OF LAW; DISPUTES
11.1 This Agreement shall be governed by and interpreted in accordance with the laws of the
Commonwealth of Virginia
, without regards to the conflicts of law principles thereof. Any and all
claims, controversies or disputes arising out of or in connection with this Agreement shall be
resolved in accordance with this Section. Virginia
law shall apply unless the issue relates to
federal procurement regulations or statutes and in such case federal procurement law as interpreted
by the United States Boards of Contract Appeals and the United States Court of Federal Claims shall
11.2 The parties consent to the exclusive jurisdiction of the state and federal courts located
in Fairfax County, Virginia
, for any such action, suit or proceeding. Both parties obligations
under this Section survive termination or expiration of this Agreement. The prevailing party in any
action shall be entitled to recover its costs and attorneys fees.
||MANUFACTURER COMPLIANCE WITH LAW
12.1 In the performance of this Agreement, Manufacturer and immix shall comply with the
requirements of all applicable laws, ordinances, and regulations of the United States of America
and any state, country, or other governmental entity. Manufacturer shall comply with the following
Master Channel Agreement
Regulation (F.A.R.) clauses, which are hereby incorporated by reference, with the same force
and effect as if they were set forth expressly herein: F.A.R. 52.219-8 Utilization of Small
Business Concerns; F.A.R. 52.222-26 Equal Opportunity; F.A.R. 52.222-35 Equal Opportunity for
Special Disabled Veterans; F.A.R. 52.222-36 Affirmative Action for Workers with Disabilities;
F.A.R. 52.247-64 Preference for Privately Owned U.S. Flag Commercial Vessels; F.A.R. 52.222-41
Services Contract Act; 52.222-50 Combating Trafficking in Persons; F.A.R. 52.225-5 Trade
Agreements; F.A.R. 52.2095 Certification Regarding Responsibility Matters; F.A.R. 52.2446
Subcontracts for Commercial Items.
12.2 Each party certifies on behalf of itself and its parent that it shall not use unethical
practices, or in cases of dealing with the government, violate 31 U.S.C. 1352 (concerning payments
to influence federal transactions) or the Procurement Integrity Act (Subsection 27(a) of the
Federal Procurement Policy Act, (42 U.S.C. 423) as amended by Section 814 of Public Law (101-189)
to obtain information or to secure business for itself or others.
12.3 Any breach of the laws or clauses set forth in this Section 12 is a material breach. In
addition, in the case of any alleged or actual breach of Section 12 by either party, the breaching
party shall, at its expense, indemnify, defend, save and hold harmless the non-breaching party from
and against any loss, cost, damages or reasonable expenses finally awarded and arising from a claim
of such alleged or actual breach. The breaching partys obligations under this Section 12.3 are
contingent upon (i) the non-breaching party promptly giving the breaching party written notice of
the alleged or actual breach, (ii) the non-breaching party providing, at the breaching partys
expense, all reasonable assistance to defend against the claim, and (iii) the breaching party being
given the exclusive right to control the defense and settlement of the claim with counsel of its
13.1 Assignment and Subcontracting. immix may not assign this Agreement (including any
Addendum hereto) or any of its rights or delegate any obligations hereunder (including, without
limitation, rights and duties of performance) to any of its Affiliates without the prior consent of
Manufacturer, such consent not to be unreasonably withheld, conditioned or delayed. Neither party
may assign this Agreement or any of its rights or delegate any obligations hereunder (including
without limitation rights and duties of performance) to any other third party or entity, and this
Agreement may not be involuntarily assigned or assigned by operation of law, without the prior
written consent of the non-assigning party, which consent may be given or withheld by such
non-assigning party in the sole exercise of its discretion, except that either party may assign
this Agreement without the consent of the other party as part of: (i) any transfer of 50% or more
of its outstanding voting capital stock; or (ii) any transfer of all or substantially all of the
assets of such party in a single transaction. Any attempted assignment in violation of this
Section will be null and void. This Agreement shall be binding upon the parties and inure to the
benefit of the parties successors and permitted assigns
13.2 Relationship of Parties. Manufacturer and immix perform this Agreement as
independent contractors. Each party has the sole obligations to supervise, manage, contract,
direct, procure, perform or cause to be performed its obligations set forth in this Agreement,
except as may otherwise be agreed upon in writing by the parties. Nothing set forth in this
Agreement shall be construed to create the relationship of principal and agent between Manufacturer
and immix. Neither party shall act or attempt to act or represent itself, directly or by
implications, as an agent of the other or its affiliates or in any manner assume or create, or
attempt to assume or create, any obligation on behalf of, or in the name of, the other party or its
Master Channel Agreement
13.3 Confidentiality. Each party agrees not to use any confidential information of the
other party (whether oral or written) except in performance of this Agreement and not to disclose
such information to third parties (other than, as determined by the receiving party in good faith,
those persons with a genuine need to know and who agree to similarly limit the use and disclosure
of the information, such as attorneys and accountants). Confidential information shall mean all
information clearly identified as such by the disclosing party or such other information which
should be reasonably understood under the circumstances to be confidential given the nature of the
information. With respect to both parties hereto, for the purposes hereof, confidential
information shall not include any information that: (1) is now or becomes in the public domain
through no breach of this Agreement; (2) is in the possession of the receiving party as of the date
of execution hereof; (3) is independently learned by the receiving party from a third party without
breach of this Agreement; (4) is required by law or order of a court (in which case the other party
shall be promptly notified before disclosure), administrative agency or other governmental body to
be disclosed by the receiving party; or (5) is disclosed by the receiving party more than three
years after that partys receipt of such information.
Either party shall have the right in its good faith discretion to make such public press
releases, announcements or other communications as it reasonably believes are necessary to comply
with applicable federal and state securities or other laws and the regulations promulgated by the
National Association of Securities Dealers (NASD) and/or appropriate securities exchanges, as the
case may be, but only to the extent of not divulging any confidential information of the other
party. immix acknowledges and agrees that Manufacturer may, without having to obtain the prior
consent of immix and without having to provide immix with prior notice, file this Agreement with
the U.S. Securities and Exchange Commission and with all applicable securities exchanges and
regulator agencies if required to do so by law.
13.4 Non-Solicitation. During the term of this Agreement, and for a period of six (6)
months after termination of this Agreement neither party shall solicit for employment any employee
of the other party, provided, however, the foregoing covenant will not apply to employees who
independently respond to general pubic solicitations (such as general newspaper advertisements,
employment agency referrals and internet postings) not targeting such employees.
13.5 Notices. All notices, directives, request or other written communications
required or permitted to be given or sent by this Agreement, shall be deemed given if mailed first
class, postage paid or sent by facsimile, and if addressed as follows:
9770 Patuxent Woods Drive
Columbia, MD 21046
Attn: General Counsel
8444 Westpark Drive
McLean, VA 22102
Attn: Scott Needleman
Phone: 703-752-0631Fax: 703-752-0613
Either party may, by a notice given in accordance with the foregoing, change its address or
designated recipient for notices. Any notice given as aforesaid shall be deemed to have been
received on the date of the overnight mail receipt, on the date imprinted by the facsimile machine,
or five business days after deposit in the mail (first class, postage paid), whichever is
applicable, unless the addressee party is able to establish conclusively that such notice was not
Master Channel Agreement
received by it. Notwithstanding the foregoing, the parties may separately agree to exchange Orders
via electronic mail and other means of communication.
13.6 Severability. If any term, provision, covenant, or condition of this Agreement
is held by a court or board of competent jurisdiction to be invalid, illegal or unenforceable for
any reason, the remainder of the provisions of this Agreement shall continue in full force and
effect as if this Agreement had been executed with the invalid portion(s) eliminated, and such
term, provision, covenant or condition shall be amended to achieve as nearly as possible the same
economic effect as the original term, provision, covenant or condition.
13.7 Entire Agreement. This Agreement, including any separately executed Fee
Schedules, constitute the entire understanding and agreement of and between the parties with
respect to the subject matter hereof and supersedes all prior and contemporaneous representations
and agreements with respect to the subject matter hereof. This Agreement shall not be varied by
any oral agreements or representations or otherwise except by an instrument in writing duly
executed by authorized representatives of the parties. In the event the terms contained within an
Addendum vary or conflict with the terms stated in the Agreement above, the terms and conditions
contained in the Addendum shall control for all Orders placed under the referenced opportunity or
GWAC subsequent to the date of the Addendum. The Section and paragraph headings herein are for
convenience only and shall not limit in any way the scope of any provisions of this Agreement.
13.8 Nonwaiver of Rights. The failure of either party to insist upon strict
performance of any of the terms and conditions of this Agreement or to exercise any rights or
remedies shall not be construed as a waiver of its right to assert any of the same or to rely on
any such terms and conditions at any time thereafter.
13.9 Force Majeure. Neither Manufacturer nor immix shall be deemed in default if its
performance of obligations hereunder (other than payments of amounts due) is delayed or becomes
impossible or impractical by reason of any act of God, war, fire, earthquake, strike, epidemic, or
any other cause beyond such partys reasonable control.
13.10 Counterparts. This Agreement may be executed in two or more counterparts which
may be provided by electronic mail in PDF format, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
13.11 Survival. The terms and conditions set forth in Sections 3, 10, 11 and 13 shall
survive any termination of this Agreement for any reason whatsoever.
13.12 Prior Agreement. Parent and Manufacturer agree that following execution of this
Agreement that all orders outstanding as of the Effective Date under that certain Government
Reseller Agreement, dated October 8, 2002, as amended, by and between Manufacturer and
immixTechnology, Inc., a wholly-owned subsidiary of Parent (the Prior Agreement), shall be
honored and processed in accordance with the terms of the Prior Agreement. Once such outstanding
orders have been fulfilled, Parent shall cause immixTechnology, Inc. to enter into an agreement
with Manufacturer to terminate the Prior Agreement.
13.13 Parents Obligations. Parent is only a party to this Agreement with respect to
Section 2.6 and Section 13.12, and not with respect to any other terms or conditions of this
Agreement, all of which other terms and conditions hereof are of no force or effect with regard to
[Signature Page Follows]
Master Channel Agreement
IN WITNESS WHEREOF, each of Manufacturer, Parent and immix has caused this Master Channel
Agreement to be signed and delivered by its duly authorized representative as of the Effective
|Sourcefire, Inc. (Manufacturer)
||/s/ Todd P. Headley
||Print Name: Todd P. Headley
||Chief Financial Officer
|EC America, Inc. (immix)
||/s/ Skip Liesegang
|immixGroup, Inc. (Parent)
||/s/ Scott Needleman
||Print Name: Scott Needleman