EXHIBIT 10.11
** indicates information which has been omitted and filed seperately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
Asterisks appear on page 1 of 10
Service Provider Agreement #________________________
SP-0036
SMI SERVICE PROVIDER AGREEMENT MASTER TERMS
THIS SMI SERVICE PROVIDER AGREEMENT ("Agreement") comprising of these Master
Terms ("Master Terms") and any modules or Exhibits, is made as of the ___ day of
"NOV 1 1999" between SUN MICROSYSTEMS, INC., a Delaware corporation with its
address at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇ ("Sun"), and ebaseOne
("Contracting Party") with its address at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BACKGROUND:
A. Sun sells computer hardware and licenses software, as well as support,
consulting and educational services;
B. Service Provider wishes to license software and purchase certain
hardware and other information technology products and certain
support, consulting and educational services from Sun;
C. Sun and Service Provider comprise a number of separate operating
divisions and Affiliated Companies (as defined below) and Sun and
Service Provider recognize the benefits of having a single contract
structure for the sale and purchase of Products (as defined below) and
provision of Services (as defined below) identified in any commercial
price list of Sun or its Affiliated Companies; and
D. The parties have agreed to a common set of terms as set out below
("Master Terms") and to such Exhibits as may from time to time be
attached.
The parties agree as follows:
1.0 DEFINITIONS:
1.1. Service Provider means the Contracting Party and all subsidiaries of
Contracting Party which meet the following criteria:
a) subsidiary is located in the United States;
b) Contracting Party owns an interest of more than fifty percent (50%)
or has management control (as defined by the ability to control the
Board of Directors or its equivalent);
c) subsidiary complies with the terms of this Agreement; and
d) subsidiary has substantially the same name as the Contracting Party
or is identified to Sun in writing.
1.2. EQUIPMENT means the hardware components (may also be referred to as
hardware) of Products and includes the media on which Software is loaded.
1.3. SUN PRODUCTS(S) or PRODUCTS(S) means the Equipment sold to Service
Provider and/or the Software licensed to Service Provider under this
Agreement.
1.4. SERVICE(S) means the consulting, educational and support services
provided to Service Provider under this Agreement.
1.5. SOFTWARE means the software program components of Products in machine-
readable or source code form and related documentation.
2.0 BINDING AGREEMENT
2.1 These Master Terms will apply to and bind any Service Provider that
purchases Products or Services or licenses hereunder and each of Sun's
operating divisions and Affiliated Companies which executes an Exhibit
to this Agreement. For the purposes of this Agreement, an "Affiliated
Company" means any entity of which Sun owns more than 50%. Unless
otherwise specified in such Exhibit, the execution of an Exhibit by a
Sun division shall bind each Affiliated Company Worldwide with respect
to activity related to such division.
2.2 Separate contracts may be negotiated by each party's operating
divisions or Affiliated Companies, to address different types of
transactions undertaken between them, it being understood that the
parties will use, without change, as many of these Master Terms as are
reasonable in the circumstances.
2.3 This Agreement between Service Provider and Sun consists of these
Master Terms and any Modules and/or Exhibits which are attached hereto
or which reference these Master Terms. The Master Terms describe the
general terms by which Service Provider may purchase Products and
Services from Sun and Sun delivers Products and Services to Service
Provider. The specific terms related to the purchase of Equipment,
Software and/or Services are described in the appropriate Product or
Service Module and/or Exhibits (collectively referred to as
"Modules"). Modules may be added or deleted from time to time by
agreement of the parties, but Service Provider is only authorized to
purchase Products or Services to the extent that one or more
applicable Modules is executed and in force.
Page 1 of 4
3.0 ORDER OF PRECEDENCE
The provisions of any Exhibit will take precedence over any of these Master
Terms, to the extent that they are inconsistent.
4.0 TERM AND TERMINATION
This Agreement commences the later of the effective date set forth below or
the effective date of the first attached Module and will continue until the
expiration or termination of all attached Modules. Either party may
terminate the Agreement or any individual Module immediately, in its
discretion, by written notice: (a) upon material breach by the other party,
if the breach cannot be remedied; or (b) if the other party fails to cure
any material remediable breach within 30 days of receipt of written notice
of the breach. Rights and obligations under this Agreement and/or any
Module which by their nature should survive, will remain in effect after
termination or expiration of this Agreement.
5.0 PAYMENT TERMS
Prices and fees for Products and Services are exclusive of all shipping and
insurance charges, and do not include sales tax, value added tax or any
other tax based upon the value of Products and/or Services. Service
Provider is responsible for payment of all such charges and taxes. Service
Provider agrees to pay Sun any sums when due pursuant to the applicable
Exhibit attached hereto. Interest will accrue from the date on which
payment is due at the lesser of 15% per annum or the maximum rate permitted
by applicable law. Service Provider grants Sun a purchase money security
interest in Products which have not been paid for, including all
improvements, modifications, or replacements and proceeds thereof. Service
Provider further grants Sun the right to execute all documents necessary to
perfect this security interest. If Service Provider's Schedules for
provision of Service reference a special discount based on a volume, multi-
year service, or other commitment, and Service Provider fails for any
reason to meet that commitment, Service Provider agrees to pay for
discounts received by Service Provider which are not earned by Service
Provider. Discounts given to Service Provider may not be applicable for new
Products supported by Sun.
6.0 CONFIDENTIAL INFORMATION
If either party desires that information provided to the other party under
an Agreement be held in confidence, that party will, prior to or at the
time of disclosure, identify the information in writing as confidential or
proprietary. The recipient may not disclose such confidential or
proprietary information, may use it only for the purposes specifically
contemplated in this Agreement, and must treat it with the same degree of
care as it does its own similar information, but with no less than
reasonable care. These obligations do not apply to information which: a) is
or becomes known by recipient without an obligation to maintain its
confidentiality, b) is or becomes generally known to the public through no
act or omission of recipient, or c) is independently developed by recipient
without use of confidential or proprietary information. This section will
not affect any other confidential disclosure agreement between the parties.
7.0 LIMITED WARRANTIES
7.1 Sun warrants Products and Services as specified in each Exhibit.
7.2.a) Sun further warrants that specified versions of Products
identified on Sun's external Web site (url:
▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇.▇▇▇▇) as being Year 2000 compliant ("Listed
Products") will not produce errors in the Processing of date data
related to the year change from December 31, 1999 to January 1,
2000. Date representation, including leap years, will be accurate
when Listed Products are used in accordance with their
accompanying documentation, provided that all hardware and
software products used in combination with Listed Products
properly exchange date data with them.
7.2.b) Versions of Products identified on Sun's external Web site as not
yet compliant, but which are scheduled to be made compliant, will
become Listed Products when remedial replacement parts, patches,
software updates or subsequent releases ("Y2K Fixes") are
issued and properly installed. Y2K Fixes for such Products will
be issued no later than June 30, 1999.
7.2.c) Other Products are not covered by these warranties.
7.2.d) To the extent that Sun installs Y2K Fixes or performs other
Services under this Agreement for Service Provider, Sun
respectively warrants that:
(i) upon installation of the Y2K Fixes, Products will become
Listed Products; and
(ii) Services performed on Listed Products will not result in
them ceasing to be Listed Products.
7.2.e) Service Provider's sole and exclusive remedy for Sun's breach of
these warranties will be for Sun: (i) to use commercially
reasonable efforts to provide Service Provider promptly with
equivalent Year 2000 compliant products; or (ii) if (i) is
commercially unreasonable, to refund to Service Provider its net
book value for non-compliant Listed Products.
Page 2 of 4
7.3 UNLESS SPECIFIED IN THIS AGREEMENT, OR IN ANY EXHIBIT, ALL
EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO
THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.
8.0 IMPORT AND EXPORT LAWS
All Products, Services and technical data delivered under this Agreement
are subject to U.S export control laws and may be subject to export or
import regulations in other countries. Service Provider agrees to comply
strictly with all such laws and regulations and acknowledges that it has
the responsibility to obtain such licences to export, re-export or import
as may be required after delivery to Service Provider.
9.0 AIRCRAFT PRODUCT AND NUCLEAR APPLICATIONS
Service Provider acknowledges that Products are not designed or intended
for use in on-line control of aircraft, air traffic, aircraft navigation
or aircraft communications; or in the design, construction, operation
or maintenance of any nuclear facility. Sun disclaims any express or
implied warranty of fitness for such uses.
10.0 INTELLECTUAL PROPERTY CLAIMS
Sun will defend or settle at its option and expense any legal proceeding
brought against Service Provider, to the extent that it is based on a claim
that Products (or the use of the replacement parts, enhancements,
maintenance releases, and patches ("Materials") provided to Service
Provider by Sun) directly infringe a copyright or a U.S. patent, and will
pay all damages and costs awarded by a court of final appeal attributable
to such claim, provided that Service Provider: (i) gives written notice of
the claim promptly to Sun; (ii) gives Sun sole control of the defense and
settlement of the claim; (iii) provides to Sun all available information
and assistance; and (iv) has not compromised or settled such claim. If any
Products or Materials are found to infringe, or in Sun's opinion are likely
to be found to infringe, Sun may elect to: (i) obtain for Service Provider
the right to use such Products and/or Materials; (ii) replace or modify
such Products and/or Materials so that they become non-infringing; or if
neither of these alternatives is reasonably available, (iii) remove such
Products and/or Materials and refund Service Provider's net book value for
these Products and/or Materials. Sun has no obligation under this Section
10 for any claim which results from: (i) use of Products and/or Materials
in combination with any equipment, software or data not provided by Sun;
(ii) Sun's compliance with designs or specifications of Service Provider,
(iii) modification of Products and/or Materials; or (iv) use of an
allegedly infringing version of any Products and/or Materials, if the
alleged infringement could be avoided by the use of a different version
made available to Service Provider. THIS SECTION STATES THE ENTIRE
LIABILITY OF SUN AND EXCLUSIVELY REMEDIES OF SERVICE PROVIDER FOR CLAIMS OF
INFRINGEMENT.
11.0 LIMITATION OF LIABILITY
11.1 Except for obligations under Section 10 (Intellectual Property
Claims), or breach of any applicable license grant, and to the extent not
prohibited by applicable law, each party's aggregate liability to the other
for claims relating to this Agreement, whether for breach or in tort, will
be limited to the amount paid to Sun for Products, Services, or Materials
which are the subject matter of the claims. Liability for damages will be
limited and excluded even if any exclusive remedy provided for in this
Agreement fails of its essential purpose.
11.2 Neither party will be liable for any indirect, punitive,
special, incidental or consequential damage in connection with or arising
out of this Agreement (including loss of business, revenue, profits, use,
data or other economic advantage) however it arises, whether for breach or
in tort, even if that party has been previously advised of the possibility
of such damage.
12.0 FORCE MAJEURE
A party is not liable under this Agreement for non-performance caused by
events or conditions beyond that party's control, if the party makes
reasonable efforts to perform. This provision does not relieve either party
of its obligation to make payments then owing.
13.0 WAIVER OR DELAY
Any express waiver or failure to exercise promptly any right under this
Agreement will not create a continuing waiver or any expectation of non-
enforcement.
14.0 ASSIGNMENT
Neither party may assign or otherwise transfer any of its rights or
obligations under an Agreement, without the prior written consent of the
other party, except that Sun may assign its right to payment, assign an
Agreement to an Affiliated Company, subcontract the delivery of Services or
Products, or any of these. If Sun elects to subcontract Services or Product
delivery, Sun will remain primarily responsible for the delivery of
Services or Products.
Page 3 of 4
Service Provider Agreement # BP-0036
---------
15.0 NOTICES
All written notices required by this Agreement must be delivered in person
or by means evidenced by a delivery receipt and will be effective upon
receipt.
16.0 SEVERABILITY
If any provision of this Agreement is held invalid by any law or regulation
of any government or by any court or arbitrator, such invalidity will not
affect the enforceability of any other provisions.
17.0 CONTROLLING LANGUAGE
The English version of this Agreement controls, regardless of whether a
translation into any other language is made.
18.0 SURVIVAL
Rights and obligations under this Agreement which by their nature should
survive, will remain in effect after termination or expiration hereof.
19.0 GOVERNING LAW
Disputes which cannot be settled amicably will be governed by the laws of
the State of California and applicable U.S. Federal law. Choice of law
rules of any jurisdiction and the United Nations Convention on Contracts
for the International Sale of Goods will not apply.
20.0 ENTIRE AGREEMENT
20.1 This Agreement is the parties' entire agreement relating to its
subject matter. It supersedes all prior or contemporaneous oral
or written communications, proposals, conditions, representations
and warranties and prevails over any conflicting or additional
terms of any quote, order, acknowledgment, or other communication
between the parties relating to its subject matter during the
term of this Agreement
20.2 No modification to this Agreement will be binding, unless in
writing and signed by an authorized representative of each party.
-------------------------------------------------------------------------------
TO SIGNIFY THEIR AGREEMENT TO THESE TERMS, THE PARTIES HAVE CAUSED THIS
AGREEMENT TO BE SIGNED BY THEIR AUTHORIZED REPRESENTATIVES. THE EFFECTIVE DATE
OF THIS AGREEMENT IS
8/24/99
---------------------
SUN MICROSYSTEMS, INC, Service provider
By: /s/ [ILLEGIBLE]^^ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------- ---------------------------
Name: [ILLEGIBLE]^^ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------- --------------------------
Title: [ILLEGIBLE]^^ Title: President & CEO
--------------------- --------------------------
Date: 11/1/99 Date: 8-24-99
--------------------- --------------------------
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Exhibit No. SP-0036
SUN MICROSYSTEMS, INC.
AMERICAS' EXECUTIVE SERVICE PROVIDER ("SP") PROGRAM EXHIBIT
This Exhibit is effective on Nov 11, 1999 ("Effective Date") by and between
SUN MICROSYSTEMS, INC. ("Sun"), having a place of business at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ebaseOne ("SP") having a place of business
at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. This is an Exhibit to the SMI Service
Provider Agreement Master Terms between the parties dated Nov -1 1999
1.1 SCOPE
This Exhibit governs SP's authorization to purchase certain Sun Products
directly from Sun, and perform SP Services to SP's customers other than
governmental entities, departments, agencies and offices. Throughout the term of
this Exhibit, SP's primary business must be to provide facilities and/or
infrastructure for delivery of SP Services, including Web based applications and
IP services to Enterprise customers, consumers or other Service Providers. "SP
Services" are set forth in Attachment A. Authorized Sun Products and buying
locations are set out in Attachment B. In connection with the provision of SP
Services, SP will use Sun Products internally for purposes of providing the SP
Services. SP may not purchase Sun Products pursuant to this Exhibit unless those
Products are necessary for the provision of specified SP Services to SP's
customers or for SP's internal use. Unless SP is accepted into the "SunTone
Elite Program" and a Reseller Addendum is executed by Sun and SP, SP may not
resell Sun Product. If SP resells or transfers new or unused Sun Products to
third parties, this Exhibit will be terminated for material breach.
1.2 BUSINESS PLAN
SP must submit a Business Plan to, and which will be reviewed by, Sun. The
Business Plan will be attached to Attachment B. SP has represented to Sun that
the Business Plan accurately reflects the manner in which SP intends 1) to
utilize Product in conjunction with its SP services, 2) to market and support
Sun Products and 3) market SP's relationship with Sun. Either party may initiate
a review of the accuracy of SP's Business Plan upon thirty (30) days' Notice,
provided that Sun shall initiate no more than one review per calendar quarter.
1.3 ATTACHMENTS
The Attachments to this Exhibit may be modified only upon the mutual written
consent of the parties. The current version of each Attachments is attached to
this Exhibit and becomes a part hereof.
1.4 PRICES AND DISCOUNTS
SP's net price for Products or spare parts purchased and licensed under this
Exhibit shall be the price set forth in Sun's U.S. End User Price List at the
time SP's order is accepted, less a discount of ** on Category A Products, ** on
Category B Products and ** on Category H Products. Such discounts will not apply
to those Products which are listed as "non-discountable" in the appropriate
price list, nor may they be applied to exceed any listed maximum discount. Such
discounts will apply towards purchases of discountable spare parts, but such
discounts will not apply to purchases of training, installation (except where
included in the purchase price of the Products), consulting, repairs,
maintenance work or similar services and source code license fees. Each year,
within thirty (30) days of the anniversary of the Effective Date of this
Exhibit, Sun will determine SP's discount for the following year based on SP's
(i) verifiable purchases of Products from Sun and Sun authorized resellers
during the current term then ending and, (ii) Sun's then-current discount
policies. Price lists and discounts are subject to change at any time.
1.5 SP DEVELOPMENT FUND ("SPDF"). This section governs SP accrual, use, and
reimbursement of SPDF.
a) SP will receive SPDF at a rate equal to * of its net purchase of Sun
Products from Sun directly.
b) Disbursement and use of SPDF shall be as follows:
** Sun technology, training, services
** Marketing Initiatives
Page 1 of 10
c) Any additional policies and procedures governing the SP's reporting,
use and reimbursement of SPDF will be set forth on the SP web site,
when it becomes available.
d) SP agrees to pay any and all such applicable taxes as set forth in
Section 1.19.
e) To be eligible for reimbursement, all expenditures must be in the
United States.
f) All claims for reimbursement must be received by the designated co-op
agency within 6 months from the accrual date. Any funds not claimed
during this time period will be forfeited to Sun. SP shall be advised
of unused funds at least thirty (30) days prior to the forfeiture
date.
g) Sun shall not be responsible in any way for the acts, errors, or
omissions of the designated co-op agency.
h) Failure to comply with any foregoing obligations will constitute a
material breach of this Exhibit.
1.6 COMPETENCY TRAINING
SP may enroll in Sun's Certification Training Program established for Sun
Service Providers as those classes are established from time-to-time and
set forth on the SP Web site: _____________________________.
1.7 SP's OBLIGATIONS
a) SP shall provide monthly productivity status reports ("PSR") as
directed by Sun on the SP web site. If SP does not provide Sun with
PSR's as set forth on the SP web site, Sun may cancel SP's Business
Development Fund accruals and may terminate this Exhibit.
b) Indemnity. Each party shall indemnify and hold the other harmless from
and against all third party claims for personal injury or death, as
may arise from the negligent performance or non-performance of its
obligations under this Exhibit.
c) Fair Representation. SP shall display, demonstrate and represent Sun
Products fairly and shall make no representations concerning Sun or
its Sun Products which are false, misleading, or inconsistent with
those representations set forth in promotional materials, literature
and manuals published and supplied by Sun. SP shall comply with all
applicable laws and regulations in performing under this Exhibit.
d) SUN SPARC Only. SP 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. SP is not prohibited by this Exhibit from selling any product
that does not contain the SPARC Architecture.
1.8 TERM AND TERMINATION
A. Term. This Exhibit 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)
March 1 - May 31 May 31
June 1 - August 31 August 31
September 1 - November 30 November 30
December 1 - February 28 February 28
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
SP tenders Notice of intention not to renew.
Page 2 of 10
B. Termination.
a) This Exhibit and/or any Exhibit hereto 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 Exhibit 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.
a) Sun may terminate this Exhibit immediately, by Notice in the
event of (i) the direct or indirect taking over or assumption of
control of SP or of substantially all of its assets by any
government, governmental agency or other third party; (ii) Sun
discovers that SP has made a material misrepresentation or
omission in its SP Application; and (iii) SP makes an authorized
resale.
C. Effect of Termination.
a) Upon any termination or expiration of this Exhibit, SP shall no
longer be authorized to purchase Sun Products. In the event of
termination for cause, all outstanding orders are subject to
cancellation or acceptance by Sun. Sun may repurchase and require
SP to sell to Sun any unused Sun Products in SP's inventory at
net invoice price.
b) Rights and obligations under this Exhibit which by their nature
should survive, will remain in effect after termination or
expiration hereof. Neither party shall be liable to the other for
damages of any kind, on account of the termination or expiration
of this Exhibit in accordance with its terms and conditions.
1.9 NO EXPORT
SP agrees that it will not export Products outside the United States unless SP
has been accepted into Sun's Passport Program and has executed a Passport
Exhibit to this Exhibit. SP recognizes that (i) under the Passport Program, the
prices it pays and the discounts it receives may be different from those stated
in this Exhibit, and that purchases made outside the U.S. will be subject to
local terms and condition, and (ii) Sun Enterprise Services will not be
obligated to provide Support Program Modules for services for Products exported
hereunder.
1.10 TRADEMARKS LOGOS AND PRODUCT DESIGNS
"Sun Trademarks" means all names, marks, logos, designs, trade dress and other
brand designations used by Sun in connection with Products. SP may refer to
Products by the associated Sun Trademarks, provided that such reference is not
misleading and complies with the then-current Sun Trademark and Logo Policies.
SP shall not remove, alter or add to any Sun Trademarks, nor shall it co-logo
Product. SP is granted no right, title or license to, or interest in, any Sun
Trademarks. SP acknowledges Sun's rights in Sun Trademarks and agrees that any
use of Sun Trademarks by SP shall inure to the sole benefit of Sun. SP agrees
not to (i) challenge Sun's ownership or use of, (ii) register, or (iii) infringe
any Sun Trademarks, nor shall SP incorporate any Sun Trademarks into SP's
trademarks, service marks, company names, internet addresses, domain names, or
any other similar designations. If SP acquires any rights in any Sun Trademarks
by operation of law or otherwise, it will immediately at no expense to Sun
assign such rights to Sun along with any associated goodwill, applications,
and/or registrations.
SP may use the Service Provider program logo only, (i) as shown in the artwork
provided by Sun; (ii) in pre-sale marketing materials and advertising, but not
on goods, packaging, product labels, documentation or other materials
distributed with Products; (iii) in a manner no more prominent than SP's
corporate name and logo; and (iv) otherwise in accordance with the then current
Sun Trademark and Logo Policies.
1.11 ORDERS AND DELIVERY
SP may submit written Product orders to Sun at any time. However, acceptance of
SP's Product orders will only be effective upon issuance of Sun's order
acknowledgement form. Any subsidiary of SP which is at least 50% owned by SP and
which desires to be an ordering location must agree to bound by the terms of
this Exhibit in writing and must be listed as an ordering location in Attachment
B to this Exhibit. Additional ordering locations may be added by written
request. Sun will use reasonable efforts to meet the delivery date(s) identified
on the acknowledgment form. Unless otherwise specified on SP's order, Sun may
make partial deliveries and invoice each delivery. Such deliveries will not
relieve SP of its obligation to accept other parts of its order. Title to
Equipment, and risk of loss of or damage to Products, will pass to SP upon
shipment by Sun, Ex Works Sun's product delivery center. Products
Page 3 of 10
will be deemed accepted upon receipt by SP. Sun's product offerings are
continually evolving. Accordingly, Sun reserves the right to make product
substitutions and modifications that do not cause a material adverse effect in
overall product performance. Although Sun will endeavor to ship Products as
scheduled, Sun reserves the right, should it be necessary for any reason, to
allocate production to its SPs in a commercially reasonable manner.
1.12 RESCHEDULING, RECONFIGURATION, AND CANCELLATION CHARGES
SP may reschedule, reconfigure, refuse or cancel the whole or part of any
Product order once, at no charge, provided the written request to do so is
received by Sun at least sixty (60) days prior to the scheduled delivery date
and, in the case of rescheduling or reconfiguration, the requested delivery date
is within sixty (60) days of the original delivery date. If an order for a
Product is rescheduled, reconfigured, refused, or cancelled at SP's request on
any other basis, or if Sun reschedules the Product order because SP fails to
meet an obligation under this Exhibit, Sun may charge SP a restocking fee equal
to ten percent (10%) of the list price of the rescheduled, refused, reconfigured
or cancelled portion of the order.
1.13 PRODUCT UPGRADES
The list price of Product upgrades is based upon the return to Sun of specified
parts from system(s) being upgraded, as identified in the Sun U.S. End User
Price List. If Sun does not receive the specified parts within thirty (30) days
of upgrade delivery to SP, Sun will invoice SP for the non-returned parts, SP
agrees to pay Sun for such 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.
1.14 RESALE OF EQUIPMENT:
a) INITIAL INTERNAL USE ONLY: Equipment purchased by Customer,
at the discounts provided under this Exhibit, is for the
internal use of Customer only, and may not be resold for a
period of twelve (12) months from the date of delivery, and
may not be resold as "new" at any time. In the event that
Customer resells Equipment in violation of this provision,
and in addition to any other remedies available to Sun,
Customer agrees to pay to Sun, upon written demand, a sum
equal to the difference between the then current Sun U.S.
End User Computer Systems list price and the price actually
paid for the resold Equipment.
b) FUTURE RESALE CONDITIONS: In the event that Customer resells
Equipment in used condition at least twelve (12) months
after the date of delivery, Customer may transfer the
associated operating system Software license to the
purchaser of Equipment, provided Customer (i) executes and
has the purchaser of Equipment execute the Licensed Software
Transfer Notification/Exhibit (the "Transfer Exhibit")
attached to this Exhibit as Exhibit C and; (ii) returns an
executed copy of the Transfer Exhibit to Sun at the address
therein specified.
1.15 PRODUCT WARRANTY
Product warranties may vary depending on the type of Sun Products purchased.
Applicable terms and conditions are as set out in the then-current Sun U.S. End
User Price List. Software provided with Product is warranted to conform to
published specifications for a period of ninety (90) days from the date of
delivery. Sun does not warrant that; (i) operation of any such Software will be
uninterrupted or error free; or (ii) functions contained in such Software will
operate in combinations which may be selected for use by the licensee or meet
the licensee's requirements. These warranties entend only to SP as an original
purchaser. Sun reserves the right to change these warranties at any time upon
notice and without liability to SP or third parites.
a) Limitation of Liability under Warranty: SP's exclusive
remedy and Sun's entire liability under these warranties
will be: (i) with respect to Equipment, repair or at Sun's
option, replacement; and (ii) with respect to Software,
using reasonable efforts to correct such Software as soon as
practicable after SP has notified Sun of such Software's
nonconformance. If such repair, replacement or correction is
not reasonably achievable, Sun will refund the purchase
price/license fee. Unless SP has executed an on-site service
Exhibit, repair or replacement will be undertaken at a
service location authorized by Sun.
b) No Warranty: No warranty will apply to: (i) any and all
Software customization, such Software is provided "AS IS",
and "WITH ALL FAULTS", or (ii) any Product that is modified
without Sun's written consent or which has been misused,
altered, repaired or used with Equipment or software not
supplied or expressly approved by Sun.
Page 4 of 10
1.16 BINARY CODE LICENSE
a) Grant and Restrictions: SP is granted a non-exclusive and non-
transferable license ("License") for the use of Software provided with
Product in machine-readable form and accompanying documentation, by
the number of users for which the applicable fee has been paid.
Software is copy-righted and title to all copies is retained by Sun,
its licensors or both. SP will not make copies of Software or
accompanying documentation, other than a single copy of Software for
archival purposes and, if applicable, SP may, for its internal use
only, print the number of copies of on-line documentation for which
the applicable fee has been paid, in which event all proprietary
rights notices on Software will be reproduced and applied. Except as
specifically authorized below, SP will not modify, decompile,
disassemble, decrypt, extract, or otherwise reverse engineer Software.
b) License to Develop: In the event that SP desires to develop software
programs which incorporate portions of Software ("Developed
Programs"), the following provisions apply, to the extent applicable:
Developed Programs are to have an application programming interface
that is the same as that of Software; fonts within such Software will
remain associated with their toolkit or server; Developed Programs may
be used and distributed, but only on computer equipment licensed to
utilize Solaris operating system software, unless an additional
Developer's License Exhibit has been executed by Sun and SP; SP is not
licensed to develop printing applications or print, unless SP has
secured a valid printing license; incorporation of portions of Motif
in Developed Programs may require reporting of copies of Developed
Programs to Sun; and SP agrees to indemnify, hold harmless and defend
Sun from and against any losses, expenses, claims or suits, including
attorney's fees, which arise or result from distribution or use of
Developed Programs, to the extent that such claims or suits arise from
the development performed by SP.
c) Confidential Information: Software is confidential and proprietary
information of Sun, is licensors, or both. SP agrees to take adequate
steps to protect Software from unauthorized disclosure or use.
d) U.S. Government Restrictions: If SP is acquiring Software or
accompanying documentation on behalf of the U.S. Government, it will
be subject to "Restricted Rights", as that term is defined in the
Federal Acquisition Regulations ("FARs") in paragraph 52.227-19(c)(2),
or its equivalent paragraph in the DOD Supplement to the FARs or its
successor provisions.
e) Termination: The License is effective until terminated. SP may
terminate the License at any time by destroying Software and
accompanying documentation and all copies thereof. The License will
terminate immediately upon Notice from Sun if SP fails to comply with
the terms of this License Section or the Confidential Information
obligations set forth above. Upon termination, SP will destroy all
copies of Software and accompanying documentation.
1.17 OTHER GENERAL TERMS
a) Injunctive Relief. It is understood and agreed upon that,
notwithstanding any other provisions of this Exhibit, breach of this
Exhibit by a party may cause irreparable damage for which recovery of
money would be inadequate and that either party shall be entitled to
timely injunctive relief to protect such party's rights under this
Exhibit in addition to any and all remedies at law.
b) Return Of Information. Upon the expiration or termination of this
Exhibit, each party will, upon the written request of the other party,
return or destroy (at the option of the party receiving the request)
all Confidential Information, documents, manuals and other material
specified by the other party.
c) Headings. The paragraph headings appearing in this Exhibit are
inserted only as a matter of convenience and in no way define, limit,
construe, or describe the scope or extent of such paragraph or in any
way affect this Exhibit.
d) Acknowledgment. The parties hereto each acknowledges that the
provisions of this Exhibit were negotiated to reflect an informed,
voluntary allocation between them of all risks (both known and
unknown) associated with the transactions contemplated hereunder. The
limitations and disclaimers related to warranties and liabilities
contained in this Exhibit are intended to limit the circumstances and
extent of liability. The provisions of such sections (and this
Section) will be
Page 5 of 10
enforceable independent and severable from any other enforceable or
unenforceable provision of this Exhibit.
e) Reference Customer. Sun will be entitled to use SP as a reference customer
and to refer to SP in any materials in which Sun's clients and customers
are mentioned, subject in each case to SPs prior approval. Either party may
use the other's name and logos and related other trade marks, trade names
and service marks in connection with any such materials with prior written
approval of the other party.
F. Exhibits. The attached Exhibits may be modified only upon the manual
written consent of the parties. The current version of each Exhibit is
hereby incorporated by reference.
------------------------------------------------------------------------------
TO SIGNIFY THEIR AGREEMENT TO THESE TERMS, THE PARTIES HAVE CAUSED THIS
EXHIBIT TO BE SIGNED BY THEIR AUTHORIZED REPRESENTATIVES. THE EFFECTIVE DATE OF
THIS EXHIBIT IS 8/24/99.
-------
SUN MICROSYSTEMS INC. Service Provider
By: /s/ [ILLEGIBLE]^^ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------- --------------------------
Name: [ILLEGIBLE]^^ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------- ------------------------
Title: [ILLEGIBLE]^^ Title: President & CEO
----------------------- -----------------------
Date: 11/1/99 Date: 8-24-99
----------------------- ------------------------
--------------------------------------------------------------------------------
Page 6 of 10
ATTACHMENT A
SP Services:
ebaseONE services will be made up of a primary offering called OneServ and a
secondary CorServ is the Company's premier ASP-based solution. CorServ will be
basic data center services available by the very fact that the Company will own
and operate a state-if-the-art shared computer center. CorServ services will
include web hosting, security, hosting of applications for independent software
vendors (ISVs), backup services and other standard data services
Page 7 of 10
ATTACHMENT B
1.0 Authorized Sun Prod
All Sun Microsystem's products listed in the U.S. End User Price List.
2.0 Authorized Buying Locations
ebaseONE Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇
Contact: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President, Technology Operations
3.0 Business Plan
Page 8 of 10
ATTACHMENT C
LICENSED SOFTWARE TRANSFER NOTIFICATION/Exhibit
-----------------------------------------------
TO: Sun Microsystems, Inc.
Attn: Contracts Department, M/S UPAL01-455
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
TRANSFER NOTIFICATION:
In connection with the sale of used Sun workstations ("Equipment") Licensee
undertakes to notify Sun Microsystems, Inc., of the transfer of certain
Licensed Software in conjunction with such sale, to the party herein named
below under "Transfer Exhibit" ("Transferee"). Licensee warrants that
Licensee has not retained any copies of the Licensed Software transferred
in conjunction with the sale of used Equipment to Transferee and hereby
relinquishes all rights in the Licensed Software previously granted by Sun.
Licensed Software Transferred: Used Equipment Sold
Licensed Software:
Equipment Serial Number
a. a.
------------------------------- ---------------------------
b. b.
------------------------------- ---------------------------
c. c.
------------------------------- ---------------------------
d. d.
------------------------------- ---------------------------
Signed:____________________________
Name:______________________________
Title:_____________________________
Company:___________________________
Address:___________________________
___________________________
Date:______________________________
Page 9 of 10
TRANSFER Exhibit:
ATTACHMENT C
(CONTINUED)
-----------
Transferee herein acknowledges receipt of the Licensed Software in
conjunction with the purchase of the Equipment as herein set forth above.
Transferee further agrees to the terms and conditions governing the
transfer and use of the Licensed Software as contained in Sun's Binary Code
License, attached hereto. The term "LICENSEE" as contained in the Binary
Code License shall be deemed to apply to Transferee.
Signed:_____________________________
Name:_______________________________
Title:______________________________
Company:____________________________
Address:____________________________
____________________________
Date:_______________________________
Page 10 of 10
