EXHIBIT 10.16
AUTODESK AUTHORIZED RESELLER AGREEMENT
(United States)
This Autodesk Authorized Reseller Agreement ("Agreement"), effective
on February 1, 1999 ("Effective Date") is made between Autodesk, Inc., a
Delaware corporation ("Autodesk") and reseller set forth below ("Reseller")
DESIGN TECHNOLOGIES
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FAX: 000-000-0000
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1. DEFINITIONS
1.1 "AUTHORIZED LOCATION" shall mean each physical location where Reseller
is authorized to market and distribute Autodesk Software Products to End
Users, as identified in the Product Requirements Sheet concerning such
Autodesk Software Products.
1.2 "AUTHORIZED PRODUCTS" shall mean the Autodesk Software Product(s)
which (a) Reseller has procured from Autodesk or an Autodesk Distribution
Partner in accordance with this Agreement, and (b) Reseller is authorized
to market and distribute to End Users only in accordance with the Product
Requirements Sheet which corresponds to such Autodesk Software Product(s).
1.3 "AUTHORIZED TERRITORY" shall mean the United States and any
geographical area, identified in the Product Requirements Sheet, within
which Reseller is authorized to market, distribute, and support the
Authorized Products corresponding to such Product Requirements Sheet.
1.4 "AUTODESK DISTRIBUTION PARTNER" shall mean any entity authorized in
writing by Autodesk to distribute Autodesk Software Products to third
parties other than End Users.
1.5 "AUTODESK SOFTWARE PRODUCTS" shall mean the then-current product
offerings of Autodesk and its subsidiaries and affiliates, and any
Upgrades, Bug Fixes, or Enhancements thereto.
1.6 "CO-OP FUNDS" shall mean funds which are made available to Reseller
for the promotion of Autodesk Software Products, under the terms of this
Agreement.
1.7 "EARNBACKS" shall mean rebates that Reseller shall receive, under the
terms of this Agreement, upon the achievement of Reseller's Target.
1.8 "END USER" shall mean a customer of Reseller who has licensed one or
more Autodesk Software Products for the personal or business use of such
customer and not for transfer or resale.
1.9 "END USER LICENSE" shall mean the then-current license agreement
shipped with, or incorporated in, each Autodesk Software Product, which
sets forth the terms and conditions under which an End User may use such
Autodesk Software Product.
1.10 "PRODUCT REQUIREMENTS SHEET" shall mean a written amendment to the
agreement executed by the parties which sets forth the terms and
conditions under which Reseller is authorized to market, distribute, and
support one or more Autodesk Software Products to End Users. Reseller may
not market or distribute any Autodesk
Software Product to End Users until the parties have executed a Product
Requirements Sheet corresponding to such Autodesk Software Product.
Reseller must continuously meet the requirements set forth in the Product
Requirements Sheet for each Authorized Location in which Reseller intends
to market, distribute, and support the Autodesk Software Products
corresponding to such Product Requirements Sheet.
1.11 "RESTRICTED AUTHORIZED PRODUCTS" shall mean those Autodesk Software
Products identified on one or more Product Requirements Sheet(s), which
Reseller is prohibited from distributing to End Users outside of the
Authorized Territory.
1.12 "PURCHASE REQUIREMENT" shall mean the minimum purchase requirements as
set forth in the Products Requirement Sheet(s).
1.13 "TARGET" shall mean the revenue target, based upon purchases of
Authorized Products from Autodesk, which Reseller must obtain to receive
Earnbacks.
1.14 "UPDATES, BUG FIXES, AND ENHANCEMENTS" collectively shall mean
additions or corrections to any Autodesk Software Product which (a)
Autodesk designates to be a modified or upgraded version of such Autodesk
Software Product, and (b) requires the End User to whom it is distributed
to have previously licensed the Autodesk Software Product corresponding to
such modified or upgraded version.
All references in this Agreement to the "Sale" of or "selling" or
"purchase" of Software shall mean the sale or purchase of a license to use
such Software or Software Copies.
2. APPOINTMENT
2.1 NONEXCLUSIVE RETAIL RESELLER. Autodesk appoints Reseller as a
nonexclusive retail reseller to market, distribute, and support only the
Authorized Products identified on one or more Product Requirements
Sheet(s), solely to End Users within the United States, pursuant to an End
User License Agreement. Notwithstanding the preceding sentence, Reseller
may market, distribute, and support Restricted Authorized Products to End
Users within the Authorized Territory only.
2.2 RETENTION OF RIGHTS BY AUTODESK. Autodesk reserves the unrestricted
right (a) to market, distribute, and support any Autodesk Software Product
worldwide in any location, including in the Authorized Territory, directly
to End Users or through any other channel, including, but not limited to,
original equipment manufacturers, value added reseller, distributors,
dealers, or retail outlets, and (b) to modify, augment, or otherwise change
the methods in which Autodesk markets, distributes, or supports any
Autodesk Software Product, without any liability to Reseller.
2.3 RESTRICTIONS. Reseller agrees as follows:
(a) Reseller shall use its best efforts to enforce the terms of the End
User License Agreement and to advise Autodesk promptly of any known breach
of the terms of the End User License Agreement. Reseller shall not
distribute copies of any Autodesk Software Product that is marked "Not for
Resale" or otherwise provided to Reseller for demonstration purposes only
("NFR(s)").
(b) Reseller shall not market, distribute, or support any Autodesk
Software Product to or for any third party other than an End User.
Reseller expressly acknowledges and agrees that Reseller is not an Autodesk
Distribution Partner and further acknowledges and agrees that the
distribution rights granted under this Section 2 may not be construed so as
to allow Reseller to market or distribute Autodesk Software Products to any
person or entity other than an End User. This restriction notwithstanding,
Reseller may permit the financing of any Autodesk Software Products by an
End User through a financial institution, approved by Autodesk. Such
financing shall be restricted to a loan arrangement or permitting an End
User to enter into a buy-out lease, provided however, such financial
institution shall not be an End User and shall have no rights to such
product as a licensee thereof. In any event, this consent shall not be
construed to permit short-term rental of Autodesk Software Products.
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(c) Reseller shall not purchase, license or otherwise acquire or attempt
to acquire licenses for Autodesk Software Products from (i) an End User,
(ii) an agent acting on behalf of an End User, or (iii) any person or party
other than Autodesk or an Autodesk Distribution Partner.
(d) Reseller shall not attempt to upgrade, exchange, or otherwise procure
an economic benefit from any Autodesk Software Product purchased, licensed,
or otherwise acquired from (i) an End User, (ii) an agent acting on behalf
of an End User, or (iii) any person or party other than Autodesk or an
Autodesk Distribution Partner.
(e) Reseller shall not attempt to mischaracterize an Update, Bug Fix, or
Enhancement as a stand-alone, fully paid-up license to the corresponding
Autodesk Software Product for the purpose of attempting to upgrade,
exchange, or otherwise procure an economic benefit from such Update, Bug
Fix, or Enhancement.
(f) Reseller shall not market, distribute, or support any Autodesk
Software Product (i) to any entity purporting to be an End User but which
is either known to Reseller or known to Autodesk and communicated to
Reseller, to have the intent to, or have attempted to, sublicense such
Autodesk Software Products to bona fide End Users or other third parties,
(ii) or to any End User or other third party who intends to export the
Autodesk Software Products, without authorization from Autodesk.
(g) Reseller shall not attempt to market or distribute Restricted
Authorized Products other than in the Authorized Territory, unless
authorized by Autodesk in writing. Any advertising, including but not
limited to, trade magazine and Web based advertising, which will be seen by
customers outside of Reseller's Authorized Territory, must contain a
disclaimer notifying such customers that Reseller may not sell to customers
outside of Reseller's Authorized Territory. Reseller shall refrain from
marketing or promoting, in any manner, any Autodesk Software Product other
than the Authorized Product(s).
(h) In addition to all other remedies available to Autodesk under law or
equity or this Agreement, in the event that Reseller violates any of the
provisions of subsections 2.3(a)-(f) herein, Reseller shall pay to
Autodesk, as liquidated damages and not as a penalty, an amount equal to
the difference between the then-current Autodesk suggested retail price and
the price Reseller actually paid for the Autodesk Software Product used,
procured or distributed in contravention of this Section 2.3. In the event
that Reseller violates the provisions of subsection 2.3(g), Reseller shall
pay to Autodesk, as liquidated damages and not as a penalty, the sum of
$500.00 for each copy of a Restricted Authorized Product distributed
outside the Authorized Territory. In addition, Autodesk may terminate this
Agreement for numerous or repeated violations of subsection 2.3(h).
2.4 REPORTING. Reseller, at its own expense and in the format requested
by Autodesk, shall provide the following reports:
(a) SELL THROUGH REPORTS. Reseller shall maintain complete and accurate
records concerning each and every Authorized Product distributed to an End
User in accordance with this Agreement, including the name, phone number,
fax number, and address of each such End User, the serial number of each
Autodesk Software Product licensed to such End User, the Authorized
Location from which such product was distributed, the date of the
transaction, and end-of-month inventory for each Authorized Product.
Reseller shall provide the Autodesk sales office with written reports
including the above referenced information within fifteen (15) days of the
end of each calendar month during the term of this Agreement, and shall
also provide Autodesk with such information promptly at other times upon
reasonable request for Autodesk.
(b) FORECASTS. Reseller shall provide Autodesk with monthly forecasts
setting forth the numbers of copies of each Authorized Product held in
inventory by Reseller, and the numbers of copies of each Authorized Product
which Reseller expects to distribute to End Users in the ninety (90) day
period following the date of the report. Reseller also agrees, upon the
request of Autodesk, to provide Autodesk with market research information
regarding competition and changes in the market.
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2.5 AUDIT RIGHTS. Autodesk, in its sole discretion, not more than once
each Autodesk fiscal quarter, may conduct an audit of the financial and
other records of Reseller for the purpose of validating or augmenting the
Reseller reports identified in Section 2.4 above and otherwise ensuring
that Reseller is complying with the terms of this Agreement. Such audits
shall be conducted at Reseller's sites during normal business hours upon
reasonable notice to Reseller. Autodesk shall bear the cost of such audit,
unless Autodesk determines that (a) Reseller has underpaid Autodesk by more
than five percent (5%) for any Autodesk fiscal quarter or year, or (b)
Reseller has failed to disclose a material breach of an End User License
Agreement or of this Agreement.
2.6 ADDITIONAL RESELLER DUTIES. Reseller agrees to perform all of the
following obligations in good faith:
(a) PRODUCT REQUIREMENTS SHEETS. Each Authorized Location of Reseller
shall continually comply with the specific requirements ("Product
Requirements") set forth in each Product Requirements Sheet.
(b) APPROVALS. Reseller shall obtain and maintain at its own expense all
approvals, consents, permissions, licenses, and other governmental or other
third party approvals necessary to enable Reseller to market, distribute,
and support the Products for which Reseller is authorized in accordance
with this Agreement. Reseller shall comply with all applicable federal,
state, county, and local laws, statutes, ordinances, and regulations which
apply to the activities of Reseller.
(c) MARKETING ACTIVITIES. Reseller shall use its best efforts to actively
market, promote, and distribute, at Seller's expense, the Authorized
Products only within the Authorized Territory under the terms of this
Agreement and the Product Requirement Sheet(s).
(d) UPDATES, BUG FIXES, AND ENHANCEMENTS. Reseller, at its own expense,
shall be responsible for distribution and support of any updates and/or Bug
Fixes to any Autodesk Software Product which Reseller has licensed to an
End User promptly after delivery to Reseller of such Update or Bug Fix.
Autodesk reserves the right to distribute Updates, Bug Fixes, and
Enhancements to End Users directly or through alternative channels,
including, but not limited to, electronic distribution. Reseller shall
promptly notify Autodesk of any defect in any Autodesk Software Produce
which is discovered by or reported to Reseller.
(e) CSC RESELLER POLICY AND PROCEDURE MANUAL. Reseller shall comply with
all terms and conditions as set forth in the then current CSC Reseller
Policy and Procedure Manual. Repeated failure to abide by such policies
and procedures shall be considered a material breach of this Agreement.
Autodesk reserves the right to modify such policies and procedures at
anytime.
(f) FULFILLMENT OF REBATE COUPONS. From time to time Autodesk may run a
promotion whereby End Users may receive a rebate offer for Authorized
Products. Autodesk appoints Reseller as a non-exclusive agent for the
fulfillment of rebate claims ("Rebate Claims") submitted by End Users for
the various promotions ("Promotions"). Reseller shall pay to an End User
who has submitted a Rebate Claim the specified dollar amount as set forth
on the Rebate Coupon, according to the terms and conditions stated on the
Rebate Coupon. Reseller shall only pay End User for Rebate Claims which
have been received for the Promotions for which Reseller has been
Authorized by Autodesk. Reseller shall pay a rebate to End User only if
the Rebate Coupons have been completely filled out by the End User, if all
required documentation is attached, and the Rebate Claim was postmarked or
received prior to the expiration date printed on the Rebate Coupon, unless
otherwise instructed by Autodesk. After submission of all required End
User documentation by Reseller to Autodesk. Autodesk shall credit
Reseller's account for the amount of the Rebate Coupon.
(g) RESELLER'S OFFICE. Reseller shall maintain an office within a
commercial facility that is suitable to adequately represent Autodesk
Software Products to End Users. Such office may not be a home-office.
Reseller shall submit to Autodesk photographs of Reseller's office along
with this Agreement. Reseller shall have until April 1, 1999 to comply
with this requirement. Failure to comply after this date shall be material
breach of this Agreement and may result in its termination by Autodesk. In
the event that Reseller loses its commercial office after April 1, 1999,
Reseller shall have thirty (30) days in which to establish a new office as
defined above. The establishment of a new office which is more than five
miles from the location listed at the beginning of this Agreement is
subject to approval by Autodesk.
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(h) UPDATED FINANCIAL STATEMENTS. Reseller shall be required to submit
updated financial statements to Autodesk prior to the acceptance of this
Agreement by Autodesk.
3. RESELLER ORDERS AND PAYMENT TERMS.
3.1 PRICES AND ORDERS. The prices applicable to Reseller shall be the
prices reflected on the then-current Reseller Price List based upon
Reseller's discount level, as set forth in the AUTODESK FY2000 VAR VALUE
PROPOSITION. The AUTODESK VAR VALUE PROPOSITION may be revised by Autodesk
upon written notice to Reseller. Autodesk may change prices at any time
effective thirty (30) days after publication of a new Reseller Price List
or other similar notice to Reseller. All prices are F.O.B. or Free Carrier
Autodesk's manufacturing plant. Purchase orders must be in writing
(including facsimile, telex, telecopy or electronic communication such as
email, but only if such form of electronic communication has been
previously agreed to by Autodesk) and must request a delivery date during
the term of this Agreement. Autodesk reserves the right to accept or
reject orders, in whole or in part, and shall make reasonable commercial
efforts to advise Reseller promptly of any order rejected hereunder. Upon
acceptance by Autodesk. purchase orders shall be binding as to the products
and services ordered and place of delivery, but not as to any other term
appearing on such purchase order. Autodesk reserves the right to reject
any order or to cancel any order previously accepted if Autodesk determines
that Reseller is in default under this Agreement.
3.2 TAXES. Reseller shall be responsible for the payment of all federal,
state, county, or local taxes, fees, and other charges, including all
applicable income and sales taxes, including penalties and interest, with
respect to the Autodesk Software Products.
3.3 PAYMENT. Payment shall be in advance of or upon delivery unless
credit has been arranged with Autodesk, in which case Autodesk shall submit
an invoice to Reseller upon shipment of an order or partial order. If
Autodesk elects to grant credit to Reseller, all invoiced amounts shall be
due and payable net thirty (30) days from the date of invoice. If Reseller
fails to pay any invoiced amounts when due, Autodesk may at its discretion,
and in addition to any other remedies, revoke or suspend Reseller's credit
terms, require further assurances from Reseller that such invoiced amounts
shall be paid, or require Reseller to prepay for all Authorized Products
ordered. Overdue amounts shall be subject to a late payment charge of one
and one-half percent (1.5%) per month, or the legal maximum, whichever is less.
3.4 SHIPMENT. Autodesk will ship orders to the address designated in
Reseller's purchase order F.O.B. or Free Carrier Autodesk's manufacturing
plant, at which time risk of loss shall pass to Reseller. All freight,
insurance, customs duties, and other shipping expenses shall be paid by
Reseller.
3.5 VAR SALES TOOL KIT CHARGE. Reseller shall purchase from Autodesk at
the then current price, each year this Agreement is in force, one VAR Sales
Took Kit per authorized location which includes not for resale copies of
the certain Authorized Products and certain marketing material as deemed
appropriate by Autodesk.
4. COMMISSIONS, EARNBACKS AND CO-OP FUNDS
4.1 COMMISSIONS. Reseller may receive a commission on direct sales of
Authorized Products to End Users by Autodesk, provided that Reseller is
authorized to sell such products and Reseller complies with all terms and
conditions for receiving a commission, as set forth in the then current
documentation (including but not limited to Premier Program manuals, VIP
Subscription manuals, GSA manuals and relevant information published on the
Autodesk Partner section of the Autodesk website) provided by Autodesk.
4.2 EARNBACK FUNDS. Reseller shall receive Earnbacks pursuant to the U.S.
Commercial Discount Structure in the AUTODESK FY2000 VAR VALUE PROPOSITION,
in the event Reseller achieves its quarterly Target. Earnbacks due shall
be credited to Reseller's account with Autodesk thirty (30) days after the
last day of the Autodesk fiscal quarter. Targets shall be assigned to
Reseller by Autodesk for each quarter. Targets shall be based upon actual
sales by Reseller to End Users only. In the event that Reseller has
returns of Autodesk Software Products in excess of the allowable percentage
of returns for that quarter, Reseller shall not be entitled to Earnbacks
for such quarter
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and any Earnbacks credited to Reseller's account shall be debited.
Reseller shall be notified, in writing, of the allowable return percentage
for any quarter at least thirty (30) days prior to the end of that quarter.
4.3 CO-OP FUNDS. Reseller shall receive Co-op Funds pursuant to the
AUTODESK CO-OP MANUAL AND CLAIM FORM which shall be distributed separately
from this Agreement, but which terms are hereby incorporated by reference.
5. TRADEMARKS. During the term of this Agreement, Reseller shall have a
nonexclusive, nontransferable right to indicate to the public that it is an
Autodesk authorized reseller and to advertise the Autodesk Software
Products within the United States under the trademarks and slogans adopted
by Autodesk from time to time ("Trademarks"). Reseller's use of the
Trademarks in any literature, promotion, or advertising shall be in
accordance with Autodesk guidelines for such usage. Reseller shall not
contest, oppose, or challenge Autodesk's ownership of the Trademarks. All
presentations of Autodesk Trademarks that Reseller intends to use shall be
exact copies of those used by Autodesk, or shall first be submitted to the
appropriate Autodesk personnel for approval of design, color, and other
details, and such approval shall not be unreasonably withheld. If any of
the Autodesk Trademarks are to be used in conjunction with another
trademark on or in relation to the Software, then the Autodesk Trademarks
shall be presented equally legibly, equally prominently, but nevertheless
separated from the other so that each appears to be a trademark in its own
right, distinct from the other xxxx. Effective upon the termination of
this Agreement, Reseller shall cease all usage of Autodesk Trademarks and
shall remove all such Trademarks.
6. TITLE AND PROPRIETARY RIGHTS. The Autodesk Software Products and
other materials included in or incorporated in the Autodesk Software
Products ("Materials") remain at all times the property of Autodesk.
Reseller acknowledges and agrees that Autodesk holds the copyright to the
Autodesk Software Products and, except as expressly provided herein,
Reseller is not granted any other right or license to patents, copyrights,
trade secrets, or trademarks with respect to the Materials. Reseller shall
take all reasonable measures to protect Autodesk's proprietary rights in
the Materials and shall not copy, use or distribute the Materials, or any
derivative thereof, in any manner or for any purpose, except as expressly
authorized in this Agreement. Reseller shall not disassemble, decompile,
or reverse-engineer any Autodesk Software Product, including the Materials,
or otherwise attempt to discover any Autodesk trade secret or other
proprietary information. Reseller acknowledges that Autodesk has an Anti-
Piracy Program and Reseller agrees to review and follow the Anti-Piracy
Program Guidelines as published by Autodesk from time to time. Reseller
shall notify Autodesk promptly in writing upon its discovery of any
unauthorized use of the Autodesk Software Products or infringement of
Autodesk's patent, copyright, trade secret, trademark, or other
intellectual property rights. Reseller shall not distribute any Autodesk
Software Product to any person or entity if Reseller is aware that such
person or entity may be involved in potential unauthorized use of Autodesk
Software Products or other infringement of Autodesk's proprietary rights.
7. CUSTOMER DATABASE. Reseller shall have access to Autodesk's customer
database which is Autodesk confidential information. Reseller access to
such database shall be limited to customers with which Reseller has a pre-
existing business relationship.
8. SECURITY INTEREST. Reseller hereby grants to Autodesk a security
interest in all of Reseller's Inventory purchased from Autodesk, all of
Reseller's accounts receivable evidencing any obligation to Reseller for
payment for Authorized Products sold, and all proceeds of any character,
whether cash or non-cash, arising from the disposition of Reseller's
inventory and accounts.
9. WARRANTY AND LIMITATIONS OF WARRANTY. Autodesk makes certain limited
warranties to the End User in the End User License Agreement and disclaims
all other warranties. RESELLER SHALL NOT MAKE ANY WARRANTY OR
REPRESENTATION ACTUALLY, APPARENTLY OR OSTENSIBLY ON BEHALF OF AUTODESK,.
EXCEPT FOR THE EXPRESS END USER WARRANTY REFERRED TO HEREIN, AUTODESK MAKES
NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, BY STATUTE OR
OTHERWISE, REGARDING THE AUTODESK SOFTWARE PRODUCTS. AUTODESK EXPRESSLY
EXCLUDES ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY OR NONINFRINGEMENT.
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10. INDEMNITY.
10.1 INFRINGEMENT INDEMNITY BY AUTODESK. Autodesk shall indemnity, hold
harmless, and defend, at its expense, Reseller from any action brought
against Reseller which alleges that any Autodesk Software Product infringes
a United States patent, copyright, or trade secret, provided that Reseller
promptly notifies Autodesk in writing of any claim, gives Autodesk sole
control of the defense and settlement thereof, and provides all reasonable
assistance in connection therewith. If the Software is finally adjudged to
so infringe, Autodesk, in addition to paying any judgment or damages, at
its exclusive option, (a) shall procure for Reseller the right to continue
distribution of such Autodesk Software Product; (b) shall modify or replace
such Autodesk Software Product with a noninfringing product; or (c) shall
accept return of the Autodesk Software Product and refund the purchase
price. Autodesk shall have no liability regarding any claim (i) arising
out of the use of the Autodesk Software Product in combination with other
products, or modification of the Autodesk Software Product, if the
infringement would not have occurred but for such combination,
modification, or usage, or (ii) for use of the Autodesk Software Product
which does not comply with the terms of the End User License Agreement or
this Agreement. THE FOREGOING STATES RESELLER'S SOLE AND EXCLUSIVE REMEDY
WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF
ANY KIND.
10.2 INDEMNITY BY RESELLER. Reseller agrees to indemnify, hold harmless
and defend Autodesk from any cost, loss, liability, or expense, including
court cots and reasonable fees for attorneys or other professionals,
arising out of or resulting from (a) any claim or demand brought against
Autodesk or its directors, employees, or agents by a third party arising
from or in connection with any breach by Reseller of the terms of this
Agreement or any End User License Agreement, or (b) any negligent or
willful act omission by Reseller, Reseller's employees, or Reseller's Sales
Channel including, but not limited to, any act or omission that contributes
to (i) any bodily injury, sickness, disease, or death; (ii) any injury or
destruction to tangible property or loss of use resulting therefrom; or
(iii) any violation of any statute, ordinance or regulation.
11. LIMITATION OF LIABILITY. EXCEPT FOR CLAIMS UNDER THE INDEMNITY
SECTION 10 ABOVE, AUTODESK'S LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR
THE ORDER OR DELIVERY OF ANY SOFTWARE SHALL NOT EXCEED THE PRICE PAID BY
RESELLER FOR THE AUTODESK SOFTWARE PRODUCT(S). IN NO EVENT SHALL AUTODESK
BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR
ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES ARISING OUT OF
THIS AGREEMENT, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, TORT,
(INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT
AUTODESK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE
LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FUNDAMENTAL BREACH, BREACH OF
A FUNDAMENTAL TERM OR FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12. CONFIDENTIALITY
12.1 CONFIDENTIAL INFORMATION. As used in this Agreement, Confidential
Information shall mean any information (a) designated as confidential
orally or in writing by either party hereto, (b) related to any Autodesk
Software Product, (c) related to Autodesk's business, or (d) other
information received by Reseller by virtue of Reseller's relationship with
Autodesk including, but not limited to, product plans, product designs,
product costs, product prices, product names, finances, marketing plans,
business opportunities, personnel, research, development, or know-how.
12.2 LIMITATIONS ON DISCLOSURE AND USE OF CONFIDENTIAL INFORMATION. Each
party shall exercise reasonable care to prevent the unauthorized disclosure
of Confidential Information by employing no less than the same degree of
care employed, by such party to prevent the unauthorized disclosure of its
own Confidential Information. Confidential Information disclosed under
this Agreement shall only be used by the receiving party in the furtherance
of this Agreement or the performance of its obligations hereunder. Neither
party shall disclose the terms of this Agreement to any third party without
the prior written consent of the other, except pursuant to a valid and
enforceable order of a court or government agency.
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12.3 EXCEPTIONS. Confidential Information does not include information
which (a) is rightfully received by the receiving party from a third party
without restriction, (b) is known to or developed by the receiving party
independently without use of the confidential information, (c) is or
becomes generally known to the public by other than a breach of duty
hereunder by the receiving party, or (d) has been approved for release by
written authorization of the receiving party.
13. TERM, RENEWAL, TERMINATION, AND OTHER REMEDIES
13.1 INITIAL TERM AND RENEWAL. This Agreement shall continue for the
period beginning on the Effective Date through January 31, 2000, unless
terminated earlier under the provisions of this Agreement.
13.2 TERMINATION FOR INSOLVENCY. Autodesk may terminate this Agreement if
Reseller becomes the subject of a voluntary or involuntary petition in
bankruptcy or any proceeding relating to insolvency, receivership,
liquidation, or assignment for the benefit of creditors, if that proceeding
is not dismissed with prejudice within sixty (60) days after filing. In
addition to the foregoing, in the event Reseller either voluntarily files
for protection against its creditors under the United States Bankruptcy
Code or is the subject of an involuntary petition in bankruptcy, Reseller
agrees that Autodesk shall be entitled to all rights to retain the benefits
of this Agreement which are set forth in 11 U.S.C. 365(n). No right
granted to Autodesk under 11 U.S.C. 365 shall be deemed to have been waived
either expressly or by implication without a written agreement confirming
such waiver.
13.3 TERMINATION FOR BREACH. Either party may terminate this Agreement
upon notice if the other party breaches any material term or condition of
this Agreement.
13.4 TERMINATION FOR FAILURE TO MEET PURCHASE REQUIREMENTS OR TARGET
(a) PURCHASE REQUIREMENTS. Failure by Reseller to achieve the two (2)
quarter Purchase Requirements may result in the termination of this
Agreement or the applicable Software Product authorization by Autodesk.
(b) TARGET. Failure by Reseller to meet or exceed the yearly Target may
result in Termination of this Agreement by Autodesk.
13.5 BREACH OF OTHER AGREEMENTS WITH AUTODESK. In the event Reseller has
other current reseller or agreements of any other type with Autodesk
("Other Autodesk Agreement"), the Breach of any term of any such Other
Autodesk Agreement may, at Autodesk's option, be deemed a breach of this
Agreement and shall permit Autodesk to terminate this Agreement in the same
manner as if a breach of the terms of this Agreement had occurred. Any
alleged breach by Autodesk of any Other Autodesk Agreement shall not be
deemed a breach of this Agreement by Autodesk and shall not constitute
cause for termination by Reseller or support an allegation by Reseller of
damages under this Agreement.
13.6 TERMINATION FOR CUSTOMER DISSATISFACTION. Autodesk is relying upon
Reseller acting in a professional and upstanding manner in its relationship
with all End Users. Failure to attain a high level of customer
satisfaction shall be considered a material breach of this Agreement and
Autodesk reserves the right to terminate Reseller in the event that
Autodesk receives customer dissatisfaction complaints from End Users,
regarding Reseller.
13.7 TERMINATION FOR CONVENIENCE. Either party may terminate this
Agreement for convenience upon sixty (60) days' written notice to other
party.
13.8 EFFECT OF TERMINATION
(a) MONIES DUE AND PAYABLE. Notwithstanding any credit terms previously
established with Reseller or any other provision of this Agreement, upon
notice of a material breach pursuant to this Agreement or notice of
termination, all monies owed by Reseller to Autodesk shall become due and
Reseller shall remit to Autodesk such monies owed no later than thirty (30)
days after notice. Overdue amounts shall be subject to a late payment
charge of one and one-half percent (1.5%) per month, or the legal maximum,
whichever is less.
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(b) FULFILLMENT OF RESELLER ORDERS. Upon delivery of notice of a material
breach or notice of termination of this agreement, Autodesk shall not be
obligated to fulfill any orders. Autodesk shall not be obligated to
fulfill any orders received by Autodesk subsequent to the effective date of
termination. In Autodesk's sole discretion, Autodesk may continue to
fulfill orders provided that Reseller (i) submits prepayments for any such
order and (ii) pays all outstanding obligations to Autodesk prior to any
shipment by Autodesk.
(c) RETURN OR DEPLETION OF INVENTORY. Subject to the limitations set
forth below, upon termination, Autodesk, at its sole discretion, may either
(i) repurchase all or any part of Reseller's inventory of Autodesk Software
Products at the price paid by Reseller to Autodesk and/or (ii) allow
Reseller to continue to distribute those Autodesk Software Products in
inventory until the inventory is depleted, subject to the terms and
conditions set forth in this Agreement and whatever additional terms and
conditions may be imposed by Autodesk. Except as expressly set forth
above, under no circumstances shall Reseller be entitled to a refund for
all or any portion of the Autodesk Software Products in Reseller's
inventory.
(d) RETURN OF MATERIALS. Within thirty (30) days after the termination of
this Agreement, Reseller shall return to Autodesk at Autodesk's expense all
Autodesk Confidential Information, data, photographs, samples literature
and sales aids, and any other property of Autodesk then in Reseller's
possession.
(e) PARTIAL TERMINATION. Autodesk, at its sole discretion, may exercise
its termination rights under this Section 13 solely with respect to one or
more Product Requirements Sheet(s), Authorized Locations, Authorized
Territories, or Authorized Products, or with respect to any Other Autodesk
Agreement terminated pursuant to Section 13.5 hereof, which partial
termination shall not affect this Agreement's application to the remaining
Product Requirements Sheet(s), Authorized Locations, Authorized
Territories, or Authorized Products, or affect any remaining part of any
Other Autodesk Agreement.
13.9 OTHER REMEDIES. In addition to the right to terminate this Agreement,
Autodesk reserves all rights and remedies available to Autodesk under law
or equity, including the right to seek damages and injunctive relief for
breach or threatened breach of this Agreement by Reseller.
13.10 ATTORNEYS' FEES. In any action brought to enforce the terms and
conditions of this Agreement, the prevailing party shall be entitled to
recover reasonable costs and attorneys' fees incurred in maintaining such
action.
13.11 SURVIVING PROVISIONS. The terms and conditions, which by their
nature should survive, shall survive and continue after termination of the
Agreement.
14. GENERAL PROVISIONS
14.1 Assignment. Reseller acknowledged that Autodesk is relying upon
Reseller's reputation, business standing, and goodwill under Reseller's
present ownership in entering into this Agreement. Accordingly, Reseller
agrees that its rights and obligations under this Agreement may not be
transferred or assigned and its duties may not be delegated directly or
indirectly without the prior written consent of Autodesk. Reseller shall
notify Autodesk promptly in writing of any change of ownership of Reseller
or of any sale of all or substantially all of Reseller's assets. Reseller
acknowledges that any change of ownership, sale of all or substantially all
of Reseller's assets, or attempted assignment by Reseller of this
Agreement, or any part thereof, without Autodesk's prior written consent
may result in immediate termination of this Agreement by Autodesk.
Autodesk may assign or otherwise transfer it rights and obligations to
successors-in-interest (whether by purchase of stock or assets, merger,
operation of law, or otherwise) of that portion of its business related to
the subject matter hereof. Subject to the restrictions set forth in this
Section 14.1, all of the terms and conditions of this Agreement shall be
binding upon, inure to the benefit of, and be enforceable by the respective
successors and permitted assigns of the parties hereto.
14.2 VENUE/CHOICE OF LAW. This Agreement shall be construed in accordance
with the laws of the State of California (excluding rules regarding
conflicts of law) and the United States of America. The parties hereby
submit to the exclusive personal jurisdiction of and venue in the Superior
Court of the State of California, County of Marin, and the United States
District Court for the Northern District of California in San Francisco.
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14.3 NOTICES. Any notices required under the terms of this Agreement will
be given in writing either (a) to the persons at the addresses set forth
below, or to such other address as either party may substitute by written
notice to the other in the manner contemplated herein, and will be deemed
served when delivered or, if the delivery was not accomplished by reason or
fault of the addressee, when tendered, or (b) by facsimile, and will be
deemed delivered on the day reflected in the transmission confirmation.
If to Autodesk:
Autodesk, Inc.
000 XxXxxxx Xxxxxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
If to Reseller, to the address and facsimile number identified on the first
page of this Agreement.
14.4 INDEPENDENT CONTRACTORS. In performing their respective duties under
this Agreement, each of the parties will be operating as an independent
contractor. Nothing contained herein will in any way constitute any
association, partnership, or join venture between the parties hereto, or be
construed to evidence the intention of the parties to establish any such
relationship. Neither of the parties will hold itself out in any manner
that would be contrary to the provisions of this Section 14.4.
14.5 ENTIRE AGREEMENT. This document contained the entire Agreement and
understanding concerning the subject matter between Reseller and Autodesk
and supersedes all prior negotiations, proposed agreements, and all other
agreements, whether written or oral, except all prior confidentiality and
nondisclosure agreements to the extent that they are not expressly
superseded by this Agreement. Except as set forth in Section 1.10, this
Agreement may be amended only by a writing signed by authorized individuals
for both Autodesk and Reseller. Any handwritten or typed changes to this
Agreement must be initialed by both parties in order to become effective.
14.6 SEVERABILITY. In the event that it is determined by a court of
competent jurisdiction as a part of a final nonappealable judgment that any
provision of this Agreement or part thereof is invalid, illegal, or
otherwise unenforceable, such provision will be enforced or reformed as
nearly as possible in accordance with the state intention of the parties,
while the remainder of the Agreement will remain in full force and effect.
14.7 CONSTRUCTION. This Agreement has been negotiated by the parties and
their respective counsel. This Agreement will be fairly interpreted in
accordance with its terms and without any strict construction against
either party. Ambiguity will not be interpreted against the drafting
party.
14.8 COUNTERPARTS. This Agreement may be executed in separate counterparts
and shall become effective when the separate counterparts have been
exchanged between the parties.
14.9 FORCE MAJEURE. Except for the failure to make payments, neither party
will be liable for any loss, damage or penalty resulting from delays or
failures in performance resulting from acts of God, supplier delay or other
causes beyond the non-performing party's reasonable control and not caused
by the negligence of the nonperforming party, provided that the
nonperforming party promptly notifies the other party of the delay and the
cause thereof and promptly resumes performance as soon as it is possible to
do so.
14.10 WAIVER. The waiver of any breach or default will not constitute a
waiver of any other right in this Agreement or any subsequent breach or
default. No waiver shall be effective unless in writing and signed by an
authorized representative of the party to be bound. Failure to pursue, or
delay in pursing any remedy for a breach shall not constitute a waiver of
such breach.
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The Undersigned are duly authorized to execute this Agreement on
behalf of their respective parties.
AUTODESK, INC. RESELLER
By: /s/ XXXX XXXXXX By: /s/ XXXX XXXXXX
---------------------------- -------------------------
Xxxx Xxxxxx Xxxx Xxxxxx
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Printed Name Printed Name
Vice President - World Wide
Field Operations President
------------------------------- ----------------------------
Title Title
1/29/99 January 13, 1999
------------------------------- ----------------------------
Date Date
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