CERTAIN INFORMATION HAS BEEN DELETED FROM THIS EXHIBIT AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT 10.79
SEAGATE SOFTWARE, INC.
A Delaware Corporation
000 Xxxx Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx 00000
NORTH AMERICAN DISTRIBUTOR AGREEMENT
CONTRACT NO._________________
THIS NORTH AMERICAN DISTRIBUTOR AGREEMENT IS MADE by and between SEAGATE
SOFTWARE, INC. and its affiliates a.k.a. Seagate Software Network & Storage
Management Group, Inc. ("Seagate Software NSMG") and Seagate Software
Information Management Group, Inc. ("Seagate Software IMG") (hereinafter
collectively referred to as "Seagate Software"), incorporated under the laws of
the state of Delaware, with offices located at 000 Xxxx Xxxxx, Xxxxxx Xxxxxx,
Xxxxxxxxxx 00000, and XXXXXX MICRO, INC. (hereinafter referred to as
"Distributor"), having its principal place of business at 0000 Xx. Xxxxxx Xxxxx,
Xxxxx Xxx, Xxxxxxxxxx 00000-0000.
Seagate Software owns or holds rights to distribute and license the software
products identified in Exhibit A ("Products"), among others. In some cases, the
Products may be distributed and licensed by Seagate Software in connection with
trademarks and other indicia of companies affiliated with Seagate Software
("Affiliates"). Distributor is engaged in the distribution of software products
and wishes to act as a distributor of the Products, on the terms and conditions
herein.
Seagate Software enters into this Agreement to sell Products to Distributor, in
accordance with the terms and conditions of this Agreement. This Agreement
consists of this signature page, the attached Terms and Conditions, Exhibit A
(Products), Exhibit B (Territory), Exhibit C (Cooperative Advertising Program
and Market Development Fund), Exhibit D (Price List and Payment Terms), Exhibit
E (Stock Rotation), Exhibit F (Proprietary Information Non-Disclosure
Agreement), Exhibit G (Seagate Software NSMG Year 2000 Readiness Statement), and
Exhibit H (Seagate Software IMG Year 2000 Readiness Statement).
Distributor has read, understands and agrees to the terms of this Agreement and
the undersigned is duly authorized to sign this Agreement.
SEAGATE SOFTWARE, INC. XXXXXX MICRO, INC.
Date September 29, 1998 Date 9-24-98
/s/ Xxxxx Xxxxxxxxxxx /s/ Xxxxxxx Xxxxxxx
---------------------------- ---------------------------
Signature Signature
Xxxxx Xxxxxxxxxxx Xxxxxxx Xxxxxxx
---------------------------- ---------------------------
Print Name Print Name
Sr. Vice President & CFO Vice President Purchasing
---------------------------- ---------------------------
Title Title
Telecopier (000)000-0000 Fax (000)000-0000
SEAGATE SOFTWARE, INC.
NORTH AMERICAN DISTRIBUTOR AGREEMENT
TERMS AND CONDITIONS
1. APPOINTMENT AND AUTHORITY OF DISTRIBUTOR
Seagate Software hereby appoints Distributor as a distributor of the
Products within the territory identified in Exhibit B ("Territory"), and
Distributor accepts such appointment, subject to the terms and conditions of
this Agreement. Seagate Software may modify, improve, change or discontinue any
or all of the Products from time to time, by delivering to Distributor an
updated price list which will supersede Exhibit A. Distributor's rights are not
exclusive. Seagate Software reserves the right to license directly to any
customer and may appoint other distributors in the Territory, in its discretion.
2. SOFTWARE RIGHTS
Distributor acknowledges that the Products sold by Seagate Software
hereunder constitute only discrete copies of software, the media in which it is
stored, and related documentation, as shipped to Distributor. Nothing herein
transfers any right, title or interest in the software or any intellectual
property rights therein to Distributor. All such software and proprietary rights
are subject to the terms and conditions of the Software License Agreement
included with each Product, as more fully described in Section 3.3.
3. GENERAL OBLIGATIONS OF DISTRIBUTOR
3.1 Promotion. Distributor shall actively advertise and promote
the Products in the Territory in a commercially reasonable manner. Distributor
shall list the Products in its catalogs. Distributor shall also transmit Product
information and promotional materials to its customers with Seagate Software
paying any applicable and agreed to program costs.
3.2 Advertising. Distributor shall provide samples of its
advertising copy and sales literature, to Seagate Software on its request.
Seagate Software reserves the right to review and approve all uses of Seagate
Software's trademarks, service marks, or trade names in Distributors advertising
and promotion of the Products, prior to use. Such approval will not limit
Distributor's obligation to comply with the terms of this Agreement and all
applicable laws and will not be deemed an endorsement or approval of any
advertising content.
3.3 Software Licenses. Distributor shall distribute the Products
only in the sealed packages in which Seagate Software delivers them to
Distributor ("Product Packages"). Distributor acknowledges that (a) Seagate
Software will package an end user license agreement between Seagate Software and
end users (the "Software License") in each Product Package, and (b) Seagate
Software will include in each Product Package, or reproduce on each Product
package, an appropriate customer registration card (the "Registration Card").
Seagate Software may modify the Software License and Registration Card at any
time, in whole or in part. Distributor shall have no obligation to ensure that
the Products in its inventory are packaged with the then current version of such
Software License and/or Registration Card. Distributor will publish, in its
price
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book, that all Seagate Software Products purchased from Distributor are
subject to the terms of the licenses and warranties packaged with the Products,
and will distribute the Products in the form received from Seagate Software with
all Licenses and Cards intact.
3.4 Sales and Inventory Reports.
(a) For Seagate Software NSMG. Distributor shall provide
Seagate Software NSMG, with weekly reports, by reseller, showing sales,
shipment, and inventory activity, and monthly detailed (customer name, address,
etc.) POS reports, relating to Distributor's activities under this Agreement as
Seagate Software NSMG may request. Distributor shall provide non-standard point
of sale ("POS") information including reseller name and address subject to the
terms and conditions of a separate Proprietary Information Non-Disclosure
Agreement, substantially in the form attached hereto as Exhibit F. Distributor
reports shall be made available to Seagate Software NSMG within seven days
following the week for which activity is reported. Seagate Software NSMG will
maintain such reports in confidence. In addition to constituting a breach
hereunder, failure to make available such reports on three consecutive occasions
or a total of five occasions will void Distributor's right to price protection
and sales incentive programs hereunder.
(b) For Seagate Software IMG. Distributor shall provide
Seagate Software IMG with monthly detailed (customer name, address, etc.) POS
reports relating to Distributor's activities under this Agreement as Seagate
Software IMG may request. Distributor shall provide non-standard point of sale
("POS") information including reseller name and address subject to the terms and
conditions of a separate Proprietary Information Non-Disclosure Agreement,
substantially in the form attached hereto as Exhibit F. Distributor reports
shall be made available to Seagate Software IMG within seven days following the
end of the month for which activity is reported. Seagate Software IMG will
maintain such reports in confidence. In addition to constituting a breach
hereunder, failure to make available such reports on three consecutive occasions
or a total of five occasions will void Distributor's right to price protection
and sales incentive programs hereunder. In exchange for the monthly detailed POS
reports provided by Distributor, Seagate Software IMG agrees to offer
Distributor a quarterly sales incentive rebate program, with quarterly rebate
goals to be mutually agreed upon by both parties.
3.5 Training and Support. Distributor shall provide such training
on the installation and use of the Products to its customers as is necessary to
enable them to distribute, market, install, and use the Products, as applicable.
Distributor shall provide, through its own technical personnel first-line
technical support to its direct customers. Distributor shall at all times
maintain a support capability which includes at least one technical person
trained by Seagate Software and qualified support personnel as necessary to
ensure a high level of customer satisfaction.
3.6 Government Requirements. Distributor shall obtain and maintain
all permits, licenses and government registrations necessary or appropriate to
perform hereunder and shall make all filings with governmental authorities
required of this Agreement by applicable law. This Agreement is in all respects
subject to compliance with all such requirements. On Seagate Software's request
Distributor shall provide Seagate Software written assurances of such
compliance.
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3.7 Distributor's Business Practices. Distributor shall (a)
conduct business in a manner that reflects favorably at all times on the
Products and Seagate Software's goodwill and reputation, (b) avoid deceptive,
misleading or unethical practices, (c) make no false or misleading
representations with regard to Seagate Software or the Products, and (d) not
solicit orders from any customer that Distributor is aware engages in illegal or
deceptive trade practices or any other practices proscribed under this
Agreement. Seagate Software will use commercially reasonable efforts to review
the point of sale reports furnished monthly by Distributor and to notify
Distributor of any company on said report that Seagate Software is aware engages
in illegal or deceptive trade practices.
3.8 Distributor's Own Account. Distributor shall conduct its
business for its own account, in its own name, and not as an agent, employee, or
partner of Seagate Software. Except as herein expressly provided, it shall
determine in its own judgment how best to perform its obligations hereunder, and
Seagate Software has no right to control such matters.
3.9 Demonstration Copies. Distributor may use Products provided
hereunder for internal use as demonstration copies, in such number and on such
terms as Seagate Software may allow from time to time. In such event,
Distributor shall comply with and be bound by all of the terms and conditions of
the Software License included with the Product so used. Distributor shall not
resell, lease, rent, or license any Product used as a demonstration copy.
Distributor acknowledges that it will not need to decompile the Products or
adapt them to any other software in order to use them for the limited
demonstration purposes contemplated herein.
4. GENERAL OBLIGATIONS OF SEAGATE SOFTWARE
4.1 Sales Materials. Seagate Software shall supply Distributor
with such quantities of its Product advertising and promotional materials, and
artwork for Distributor's use as Seagate Software deems reasonably appropriate
for Distributor's performance hereunder.
4.2 Sales Incentive Programs. Seagate Software shall offer
Distributor a cooperative advertising program and market development fund on the
terms set forth in Exhibit C. Seagate Software may from time to time offer other
incentive programs to Distributor. All such programs will be governed by such
rules and guidelines as Seagate Software may announce and modify from time to
time in its discretion.
4.3 Updates and Upgrades. Seagate Software shall use reasonable
efforts to notify Distributor prior to the introduction of any update or upgrade
of a Product for distribution to the general public, and shall make such update
and upgrade available to Distributor. Seagate Software reserves the right to
decide, in its sole discretion, whether to make an update or upgrade available
at no additional charge or as a separately-priced item.
4.4 Discontinued Products.
(a) For Seagate Software NSMG Products. Seagate Software
NSMG shall notify Distributor within thirty (30) days prior to the
discontinuance or declaration of obsolescence
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of any Products. Within ninety (90) days after notice by Seagate Software NSMG,
Distributor may return for credit all units of such Product then held by
Distributor in inventory, purchased ninety (90) days preceding such notice and
not committed to sale. The return rights set forth in this Section 4.4 are in
addition to any Stock Rotation rights described in Exhibit E, Stock Rotation, of
this Agreement.
(b) For Seagate Software IMG Products. Seagate Software
IMG shall notify Distributor within thirty (30) days prior to the discontinuance
or declaration of obsolescence of any Products. Within ninety (90) days after
notice by Seagate Software IMG, Distributor may return for credit all units of
such Product then held by Distributor in inventory and not committed to sale.
Any exceptions to the foregoing shall be approved on a case by case basis by
Seagate Software IMG, in its sole discretion. The return rights set forth in
this Section 4.4 are in addition to any Stock Rotation rights described in
Exhibit E, Stock Rotation, of this Agreement.
5. ORDERS AND DELIVERY
5.1 Orders. Distributor may initiate written purchase orders (when
available with the relevant software subsidiary) under this Agreement.
Distributor shall order Products from Seagate Software using mutually agreed
upon forms and procedures as Seagate Software may prescribe from time to time.
All orders shall be subject to acceptance and approval by Seagate Software in
its discretion. All orders shall be governed by the terms and conditions of this
Agreement notwithstanding any contrary preprinted terms of any other document.
5.2 Delivery.
(a) For Seagate Software NSMG Products. All deliveries
shall be F.O.B. Seagate Software NSMG's North American designated U.S. shipping
point. Such shipping point is subject to change in Seagate Software NSMG's
discretion. If the Products are shipped from a non-North American shipping
point, then Distributor shall pay shipping charges from the Port of Entry in
North America. Seagate Software NSMG shall use best efforts to ship Products
within 14 days after acceptance of an order, subject to availability. Either
party may reschedule delivery or cancel orders for Products provided notice is
received prior to the scheduled delivery date. Upon loading of the Products on
board carrier, title to the Products and all risk of loss or damage thereto
shall pass to and be borne by Distributor and shall constitute full and final
delivery by Seagate Software NSMG. Seagate Software NSMG shall not be obligated
to furnish insurance covering any shipment or to ship to Distributor's
customers. All Products shall be shipped in the standard commercial packaging
used by Seagate Software NSMG and according to standard practices, unless
otherwise agreed in writing. Distributor shall pay the cost of
Distributor-requested special packaging and shipment.
(b) For Seagate Software IMG Products. All deliveries
shall be F.O.B. Distributor's U.S. warehouse and by agreement of the parties,
title shall pass to the Distributor upon delivery to the designated carrier.
Seagate Software IMG shall pay freight and retain risk of loss or damage to
Products until delivery to Distributor's U.S. warehouse. Seagate Software IMG
shall use best efforts to ship Products within 14 days after acceptance of an
order, subject to availability. Either party may reschedule delivery or cancel
orders for Products provided notice is
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received prior to shipment. Seagate Software IMG shall not be obligated to
furnish insurance covering any shipment or to ship to Distributor's customers.
All Products shall be shipped in the standard commercial packaging used by
Seagate Software IMG and according to standard practices, unless otherwise
agreed in writing. Distributor shall pay the cost of Distributor-requested
special packaging and shipment.
5.3 Costs.
(a) For Seagate Software NSMG Products. Distributor shall
pay all shipping and transportation charges, customs duties and similar charges,
and other taxes and fees imposed on Seagate Software NSMG Product purchases and
sales hereunder. Distributor shall pay the above mentioned charges from Seagate
Software NSMG's North American shipping point. In the event Seagate Software
NSMG pays any such amounts, Distributor shall reimburse Seagate Software NSMG
and they shall be added to the invoiced amounts as separate charges.
Notwithstanding the above, Seagate Software NSMG agrees to pay any additional
shipping charges which Seagate Software NSMG agrees are caused by Seagate
Software NSMG's errors or delays.
(b) For Seagate Software IMG Products. Seagate Software
IMG shall pay all shipping and transportation charges, customs duties and
similar charges imposed on Seagate Software IMG Product purchases and sales
hereunder. Distributor shall pay all other taxes and fees imposed on Seagate
Software IMG Product purchases and sales hereunder. In the event Seagate
Software IMG pays any such amounts, Distributor shall reimburse Seagate Software
IMG and they shall be added to the invoiced amounts as separate charges.
5.4 Returns.
(a) For Seagate Software NSMG Products. Upon issuance by
Seagate Software NSMG of a return material authorization ("RMA"), Distributor
may return for credit a Seagate Software NSMG Product which was shipped by
Distributor to one of its customers in the previous 90 days and is found to be
defective. For purposes of this Section 5.4, a defective product is one which
fails to conform to Seagate Software's warranty under Section 7.1. Seagate
Software NSMG shall pay freight charges for the return of defective Products to
Seagate Software NSMG.
(b) For Seagate Software IMG Products. Upon Issuance by
Seagate Software IMG of a return material authorization ("RMA"), Distributor may
return for credit a Seagate Software IMG Product which was shipped by
Distributor to one of its customers and is found to be defective. For purposes
of this Section 5.4, a defective product is one which fails to conform to
Seagate Software's warranty under Section 7.1. Seagate Software IMG shall pay
freight charges for the return of defective Products to Seagate Software IMG.
6. PRICES AND PAYMENT
6.1 Prices. Distributor shall pay the prices, and on the terms and
conditions, set forth in Exhibit D attached hereto.
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6.2 Price Changes. Seagate Software may change such prices, terms
and conditions from time to time in its discretion on prior written notice to
Distributor. Seagate Software IMG will provide Distributor with 30 days prior
written notice of price increases for Seagate Software IMG Products. In the
event that Seagate Software raises such prices, all orders for the applicable
Product placed prior to the effective date of the increase, for delivery prior
to such date, shall be invoiced at the lower price. If Seagate Software reduces
the price of a Product, Seagate Software shall provide price protection to
Distributor on the terms set forth in Exhibit D (Price Protection).
6.3 Credit Information and Changes. Distributor shall provide
Seagate Software with its financial statements and other financial condition
information as set forth in Exhibit D. Seagate Software shall maintain such
information in confidence. Distributor's financial responsibility is at all
times subject to approval of Seagate Software, and Seagate Software reserves the
right at any time, in its discretion, before payment or even after partial
payment on account, to change or withdraw any credit line, require payment on
delivery or by irrevocable, unconditional letter of credit (in accordance with
Exhibit D), declare all sums immediately due and payable, or cancel or delay
shipment of any order.
6.4 Stock Rotation. Distributor may return Products to Seagate
Software for stock rotation on the terms set forth in Exhibit E.
6.5 Right to Withhold. Notwithstanding any other provision in this
Agreement to the contrary, Distributor shall not be deemed in default if it
withholds any specific amount to Seagate Software because of what the parties
agree is a legitimate dispute as to that specific amount pending the timely
resolution of the disputed amount.
7. WARRANTIES
7.1 Limited Warranty. Seagate Software hereby warrants to
Distributor and its customers that the physical diskette (s), CD ROM or other
physical form in which the software is provided and the documentation will be
free from defects in materials and workmanship for a period of 90 days from date
of shipment by Distributor's customer to the end user. Distributor's exclusive
remedy and Seagate Software's sole obligation arising out of this Warranty shall
be for Seagate Software to replace the defective physical diskette(s), CD ROM or
other physical form, and/or documentation, as applicable, provided Distributor
returns the defective items to Seagate Software within the above-referenced
ninety (90) day warranty period and in accordance with the return procedures
specified in Section 5.4. The above warranty specifically excludes defects
resulting from accident, abuse, unauthorized repair, modifications,
enhancements, or misapplication, unless Distributor can demonstrate that such
accident, abuse, unauthorized repair, modifications, enhancements, or
misapplication occurred after the software left Distributor's possession.
Seagate Software makes no other representation, warranty, or guaranty, express
or implied, regarding the Products. Seagate Software may in its sole discretion
modify this Warranty at any time and from time to time.
7.2 Ownership. Seagate Software is the owner, or is the lawful
licensee, without encumbrances, of the Products.
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7.3 Unrestricted Rights. Seagate Software has the unrestricted
right and authority to enter into and perform this Agreement.
7.4 DISCLAIMER. EXCEPT AS SET FORTH IN WRITING IN THIS AGREEMENT,
SEAGATE SOFTWARE MAKES NO REPRESENTATIONS OR CONDITIONS, WARRANTIES, OR
GUARANTEES, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE
PRODUCTS AND ANY SERVICES COVERED BY OR FURNISHED PURSUANT TO THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITION OR WARRANTY (A) OF
MERCHANTABILITY, (B) OF FITNESS FOR A PARTICULAR PURPOSE, OR (C) ARISING FROM
COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
7.5 Year 2000. Seagate Software warrants that the Products
identified as Year 2000 Ready on the Seagate Software NSMG Year 2000 Readiness
Statement attached hereto as Exhibit "G" and the Seagate Software IMG Year 2000
Readiness Statement attached hereto as Exhibit "H" are Year 2000 Ready, as set
forth in this Agreement. For purposes of this Agreement, "Year 2000 Readiness"
shall mean that Product functionality is not adversely affected by processing of
dates prior to, during and after the Year 2000, but only if all other products
(e.g. hardware, firmware and other software, whether or not provided by or
obtained from Seagate Software) used with the particular Product properly
exchange accurate date data with it; and only if the particular Product is
correctly configured and used within its intended operating environment. The
Products hereunder have been tested by Seagate Software for Year 2000 Readiness
on a stand-alone basis and only within their intended operating environment.
Distributor's exclusive remedy and Seagate Software's entire liability with
respect to this Year 2000 warranty will be that Seagate Software shall use
commercially reasonable efforts to correct the Products. Seagate Software will
assume Distributor's liabilities to end users of the Products which result from
breach of this warranty, up to the maximum liability contained in this Section
7.5.
8. SEAGATE SOFTWARE'S INTELLECTUAL PROPERTY
8.1 Limited Rights. Distributor shall not acquire any right to any
trademarks, service marks, or tradenames used by Seagate Software or any
Affiliates (collectively "Trademarks"), or the copyrights, patent rights, trade
secrets, commercial symbols, goodwill, or other form of intellectual or
commercial property of Seagate Software or any Affiliates and shall not use such
property or rights in any manner, except as herein permitted. Distributor shall
use the Trademarks in referring to the applicable Products they identify and
shall identify itself as an authorized distributor of Seagate Software, in a
form prescribed or approved from time to time by Seagate Software or as
otherwise agreed by Seagate Software in writing. Seagate Software may from time
to time discontinue or modify the Trademarks, add new Trademarks, and revise
these instructions, to protect the standards of quality established for the
goods and services sold under the Trademarks.
8.2 Modifications and Reverse Engineering. Distributor shall not
copy, modify, reverse engineer, decompile, enhance, or make derivative works of
the Products. Any such unauthorized modifications, derivative works, and
enhancements shall belong to Seagate Software
8
and Distributor hereby assigns all rights in them (including moral rights) to
Seagate Software. Distributor acknowledges that it has and shall have no right
whatsoever, whether by the express terms of this Agreement or by any course of
conduct, to use, review, or access the source code for the Products.
8.3 Notices. Distributor shall not remove, change, or obliterate
any copyright, confidential, or proprietary notices incorporated in, marked on,
or fixed to the Products by Seagate Software.
8.4 Protection of Trademarks. As between the parties hereto,
Seagate Software shall have sole and exclusive right to protect and defend the
Trademarks, at its sole cost and expense. Neither Seagate Software nor any
Affiliate shall be liable to Distributor for any loss or damage suffered by
Distributor as a result of the use of the Trademarks, any litigation or
proceeding involving the Trademarks, or any failure to protect or defend the
Trademarks. Distributor shall cooperate fully with Seagate Software or an
Affiliate, as applicable, in the defense and protection of the Trademarks, and
shall promptly and fully advise Seagate Software of the use in the Territory of
any xxxx infringing any of the Trademarks. Without limiting the generality of
the foregoing, Distributor shall not seek or obtain registration, or any other
right, in any Trademark in any jurisdiction, whether in its own name or
otherwise. If it does, it shall forthwith assign all rights therein to Seagate
Software or at the direction of Seagate Software, as Seagate Software may in its
discretion require.
8.5 Country Restrictions. If at any time Seagate Software
determines that the laws or policies of any country are or become materially
insufficient to protect its intellectual or proprietary rights in the Products,
Seagate Software may restrict or terminate Distributor's rights to use or
distribute Products in or to that country, on written notice to Distributor.
Distributor shall take all actions reasonably necessary to comply with and
enforce any such restriction or termination.
8.6 Confidential Information.
(a) As used herein, "Confidential Information" shall mean
all information concerning Seagate Software or any Affiliate or parent company
of Seagate Software to which Distributor is provided access by virtue of this
Agreement or its activities hereunder, including without limitation technical
data, Product design and development, sales information, quantity and kind of
Products sold, prices and methods of pricing, marketing techniques and plans,
Product returns, unannounced products, product and process information, and any
other information which, if disclosed to others, might be competitively
detrimental to Seagate Software. Confidential Information shall not include any
information which has been publicly disseminated in writing by Seagate Software,
which Distributor can show it knew prior to Seagate Software's disclosure, or
which was rightfully received by Distributor from a third party without
restriction.
(b) During the term hereof and at all times thereafter,
Distributor shall maintain the Confidential Information in strictest confidence,
shall not disclose it to any third party, and shall use it only as necessary to
perform hereunder. Distributor shall cause each of its officers,
9
directors, employees, and agents to restrict disclosure and use of such
Confidential Information in like fashion, and shall be responsible for any
wrongful disclosure and use by any of them.
(c) In the event any court or other authority orders
Distributor to disclose any Confidential Information, Distributor shall use its
best efforts to protect its confidentiality and shall forthwith notify Seagate
Software thereof to enable it to seek to do so. At the termination of this
Agreement, Distributor shall promptly return all tangible Confidential
Information to Seagate Software.
9. INDEMNITIES/INSURANCE
9.1 Infringement Claims. If an action is brought against
Distributor claiming that a Product infringes any United States patent,
copyright, trade secret, or other proprietary rights of a third party within the
Territory, Seagate Software shall defend Distributor at Seagate Software's
expense and shall pay the damages and costs finally awarded against Distributor
in the action specifically on account of such infringement, but only if (a)
Distributor notifies Seagate Software promptly upon learning that the claim
might be asserted, (b) Seagate Software has sole control over the defense of the
claim and any negotiation for its settlement or compromise, and (c) Distributor
takes no action that in Seagate Software's judgment, impairs Seagate Software's
defense of the claim.
9.2 Seagate Software's Options. If Distributor's use of any
Product is enjoined Seagate Software shall within a commercially reasonable
period of time, and at its expense, either (a) substitute equivalent
non-infringing Products for the infringing item, (b) modify the infringing item
so that it no longer infringes but remains functionally equivalent, or (c)
obtain for Distributor the right to continue selling such item. Upon threat of
claim of infringement, or if Seagate Software wishes to minimize its liability
hereunder, Seagate Software may at its option and expense, either (a) substitute
equivalent non-infringing Products for the infringing item, (b) modify the
infringing item so that it no longer infringes but remains functionally
equivalent, or (c) obtain for Distributor the right to continue selling such
item. If none of the foregoing is feasible, Seagate Software will accept a
return of the Products which are subject to the injunction and refund to
Distributor the purchase price, less reasonable depreciation, plus shipping
costs paid by Distributor. The indemnity in Section 9.1 will not apply if and to
the extent that the infringement claim results from (x) a correction or
modification of the Product not provided by Seagate Software, (y) a failure to
promptly install an update, or (z) the combination of the Product with other
software not provided by Seagate Software.
9.3 LIMIT. THE FOREGOING STATES THE ENTIRE LIABILITY AND
OBLIGATION OF SEAGATE SOFTWARE OR WITH RESPECT TO INFRINGEMENT OR CLAIMS OF
INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL
PROPERTY RIGHT BY THE PRODUCTS.
9.4 Insurance.
(a) The parties shall be responsible for providing Worker's
Compensation insurance in the statutory amounts required by the applicable state
laws.
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(b) Without in any way limiting Seagate Software's indemnification
obligation as set forth in this Agreement, Seagate Software shall maintain
Commercial General Liability and/or Comprehensive General Liability Insurance in
an amount not less than $5,000,000 (Five Million Dollars) Combined Single Limit
for Bodily Injury and Property Damage per occurrence.
(c) Seagate Software will, within ten (10) days of the full execution
of this Agreement, provide evidence of the existence of insurance coverages
referred to in this Section 9.4 by certificates of insurance which should also
provide for at least thirty (30) days notice of cancellation, nonrenewal or
material change of coverage to Distributor.
10. ASSIGNMENT
10.1 Written Consent. Neither Seagate Software nor Distributor may
assign or transfer any of the rights or responsibilities set forth herein
without the express written consent of the other party and any purported attempt
to do so shall be deemed void, provided that either party shall be entitled to
assign this Agreement to a successor to all or substantially all of its relevant
assets, whether by sale, merger, or otherwise.
11. TERM AND TERMINATION
11.1 Term. The term of this Agreement shall be two (2) years
commencing on the effective date hereof, unless sooner terminated in accordance
herewith. The parties may extend the term or enter into a new agreement only by
their formal, mutual consent expressed in writing. Nothing set forth in this
Agreement, no course of conduct, and no oral statements shall be deemed to
constitute such consent.
11.2 Termination, No Cause. This Agreement may be terminated by
either party for any or no cause, by providing at least 60 days prior written
notice to the other party. Without granting Distributor greater rights in other
circumstances, Distributor shall have no right to receive compensation from
Seagate Software in the event Seagate Software terminates this Agreement
pursuant to this Section 11.2.
11.3 Payment Breach. Except as otherwise provided herein, Seagate
Software may terminate this Agreement prior to its expiration in the event
Distributor fails to cure any breach of a payment obligation hereunder within
twenty (20) business days after written notice from Seagate Software describing
the breach. Notwithstanding any other provision in this Agreement to the
contrary, Distributor shall not be deemed in payment breach if it withholds any
specific amount to Seagate Software because of a legitimate dispute between the
parties as to that specific amount, pending the timely resolution of the
disputed amount.
11.4 Termination, Cause. Either party may terminate this Agreement
at any time if (a) the other party fails to cure any material breach (other than
a payment breach) within 30 days after written notice, (b) a receiver is
appointed for the other party or its property, (c) the other party makes an
assignment for the benefit of its creditors, (d) there is reasonable cause to
believe that the other party is insolvent, (e) proceedings are commenced by,
for, or against the other party under any bankruptcy, insolvency, or debtor's
relief law, (f) the other party liquidates or dissolves or
11
attempts to do so, (g) the other party assigns or purports to assign this
Agreement in breach of its provisions, or (h) the other party commits a breach
of a material obligation hereunder which is by its nature incurable.
11.5 Effect of Termination. Termination of this Agreement will not
relieve either party from fulfilling its obligations which by their terms or
nature survive termination, except as otherwise expressly provided. Upon
termination of this Agreement for any reason: (a) Distributor shall immediately
cease using and shall deliver to Seagate Software any unused sales literature
and other written information and materials supplied by Seagate Software
pursuant to this Agreement or which contain any Trademarks; (b) Distributor
shall immediately cease to identify itself as an authorized distributor for
Seagate Software or otherwise affiliated in any manner with Seagate Software;
(c) any rights or benefits which may have accrued in Distributor's favor, prior
to termination hereof, under any market development, price protection, sales
incentive, stock rotation, or other program, shall terminate and be forfeited,
except where expressly provided to the contrary in this Agreement. If this
Agreement is terminated by Distributor pursuant to Section 11.2 (Termination, No
Cause) or by Seagate Software pursuant to Section 11.4 (Termination, Cause),
Seagate Software shall have the option, exercisable in its discretion, to
reacquire from Distributor, at then current prices all or part of the Products
and documentation, including translated versions, which are then held by
Distributor in inventory and not committed to sales. If this Agreement is
terminated by Seagate Software pursuant to Section 11.2 (Termination, No Cause)
or by Distributor pursuant to Section 11.4 (Termination, Cause), then Seagate
Software shall be obligated to reacquire from Distributor all such Products and
documentation which are in the then current version and in resalable condition
and then held by Distributor in inventory and not committed to sales. In
effecting the reacquisition of Products and documentation, Seagate Software
shall be entitled to set off, against amounts payable to Distributor, all
amounts owed by Distributor to Seagate Software. The repurchase period shall be
within ninety (90) days of the effective date of termination. If requested by
Seagate Software, Distributor shall furnish proof of purchase. Distributor shall
be entitled to distribute all Products and documentation which are in
Distributor's inventory as of the effective date of termination or expiration of
this Agreement and which are not reacquired from Distributor by Seagate
Software. All such distribution shall be in accordance with the terms and
conditions of this Agreement.
12. LIMITATION OF LIABILITY
EXCEPT FOR CLAIMS BY SEAGATE SOFTWARE REGARDING VIOLATION OF ITS
INTELLECTUAL PROPERTY RIGHTS, OR CLAIMS BY EITHER PARTY FOR LIABILITY FOR
CONTRIBUTION OR INDEMNITY WITH RESPECT TO THIRD PARTY CLAIMS FOR BODILY INJURY,
PHYSICAL DAMAGE TO REAL OR PERSONAL PROPERTY AND SEAGATE SOFTWARE'S
INDEMNIFICATION OBLIGATIONS, WHETHER BY CONTRACT OR BY OPERATION OF LAW, THE
LIABILITY OF EITHER PARTY OR THEIR AFFILIATES UNDER THIS AGREEMENT, REGARDLESS
OF THE BASIS OF LIABILITY OR THE FORM OF ACTION, SHALL IN NO EVENT EXCEED THE
TOTAL PRICE PAID TO SEAGATE SOFTWARE BY DISTRIBUTOR, NET OF ALL DISCOUNTS,
REBATES, AND REFUNDS, FOR THE PRODUCT DIRECTLY CAUSING THE LIABILITY OR, IF NO
PRODUCT CAUSES THE LIABILITY, THEN THE TOTAL PRICE PAID TO SEAGATE SOFTWARE, NET
OF ALL DISCOUNTS, REBATES AND
12
REFUNDS. THIS CAP IS IN ADDITION TO AMOUNTS THAT DISTRIBUTOR OWES SEAGATE
SOFTWARE (PAYABLE BUT NOT YET PAID). IN NO EVENT SHALL SEAGATE SOFTWARE OR ITS
AFFILIATES BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE. IN
NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH
OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT THEY HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. THE ESSENTIAL PURPOSE OF THIS SECTION IS TO
LIMIT THE POTENTIAL LIABILITY OF EACH PARTY AND ITS AFFILIATES ARISING OUT OF
THIS AGREEMENT.
13. GENERAL PROVISIONS
13.1 Independent Contractors. The relationship of Seagate Software
and Distributor established by this Agreement is that of independent
contractors. This Agreement does not give either party the power to direct and
control the day to day activities of the other, constitute the parties as
partners, joint venturers, co-owners, principal-agent, or otherwise participants
in a joint or common undertaking, or allow either party to create or assume any
obligation on behalf of the other party for any purpose whatsoever.
13.2 Entire Agreement. This Agreement constitutes the entire
agreement of the parties, supersedes any prior and contemporaneous oral or
written understanding as to the subject matter hereof, and excludes all implied
representations, conditions, warranties, and other terms. Each party
acknowledges that it is entering into this Agreement as a result of its own
independent investigation and not as a result of any representation of the other
party not contained herein.
13.3 Amendments; Waivers. This Agreement may be modified only by a
writing signed by the party to be charged. Without limitation, this provision
shall apply equally to this Section 13.3 and to Section 11.1. A waiver of any
provision or breach is no waiver of any other provision or breach.
13.4 Force Majeure. Neither party shall be responsible for any
failure to perform due to causes beyond its reasonable control.
13.5 Taxes. Except as otherwise specifically set forth in this
Agreement, Distributor shall pay or reimburse Seagate Software for all national
federal, state, local or other taxes and assessments of any jurisdiction (except
taxes imposed on Seagate Software's income), including sales or use taxes,
property taxes, withholding taxes as required by international tax treaties or
otherwise, customs or other import or export taxes, value added taxes, and
amounts levied in lieu thereof based on charges set, services performed or to be
performed or payments made or to be made under this Agreement. Distributor shall
not deduct the amount of such taxes, duties or assessments from payments made to
Seagate Software under this Agreement unless specifically required by applicable
law. In such event, Distributor shall promptly notify Seagate Software, and the
amount due shall automatically be increased to totally offset such tax, so that
the amount remitted to Seagate Software, net of all taxes, equals the invoiced
amount. Distributor shall also
13
provide Seagate Software with a copy of the official receipt evidencing payment
of the tax to the applicable local taxing authorities.
13.6 Audits. Upon at least twenty (20) business days' notice to
Distributor and during Distributor's business hours, Seagate Software shall have
the right to audit, at Seagate Software's expense, the Products in Distributor's
possession or inventory and Distributor's books and records relating to its
performance under this Agreement, in order to determine its compliance
hereunder. In the event any such audit reveals that Distributor has knowingly
breached a material obligation hereunder, then, in addition to such other
remedies as Seagate Software may have, Distributor shall pay or reimburse to
Seagate Software a negotiated amount for the cost of the audit.
13.7 Import and Export Controls. Distributor hereby acknowledges
that the Products are subject to United States export controls, pursuant to the
U.S. Export Administration Regulations. Distributor shall comply with all
applicable provisions of the Export Administration Regulations, and shall not
export, reexport, transfer, divert or disclose, directly or indirectly,
including via remote access, the Products, any confidential information
contained or embodied in the Products, or any direct product thereof, except as
authorized under the Export Administration Regulations.
13.8 Publicity. The terms of this Agreement are confidential. No
press release or other like publicity regarding this Agreement may be made
without the other party's approval.
13.9 Notices. All notices and other communications hereunder shall
be given in writing and delivered (a) by personal delivery, by prepaid overnight
or international courier service to the addresses set forth on the signature
page of this Agreement, or (b) by facsimile to such facsimile number as may be
provided in writing by a party. Notices are deemed given on receipt or attempted
delivery (if receipt is refused).
13.10 Governing Law. Distributor acknowledges that Seagate Software
is based in the State of California, U.S.A. and requires uniformity and
consistency in the laws under which it deals with all of its domestic and
international distributors. Accordingly, this Agreement shall be governed and
construed, and all arbitration's hereunder shall be determined, in accordance
with the laws of the State of California, without regard to its conflicts of
laws rules.
13.11 Dispute Resolution. Seagate Software and Distributor agree
that, before initiating any litigation concerning this Agreement or their
respective obligations hereunder, they will attempt in good faith to resolve
their dispute through nonbinding mediation. Each party covenants (a) not to
unfairly use litigation or the threat of litigation as a means to harass or
intimidate the other party, and (b) not to assert frivolous claims or defenses
in any dispute between them.
13.12 Attorney's Fees. In the event of any litigation hereunder, the
court shall award costs and reasonable attorneys' fees to the prevailing party.
13.13 English Language. English is the authoritative text of this
Agreement, and all communications, arbitration's, and other adjudication
hereunder shall be made and conducted in English.
14
13.14 Severability. If any provision of this Agreement is held, in a
final and nonappealable decision by an arbitrator or court of competent
jurisdiction, not to comply with any applicable law, now existing or hereafter
enacted, such provision shall to the extent possible be interpreted so as to
comply with such law or condition or, if such interpretation is not possible, it
shall be deemed amended to satisfy the requirements thereof. Any provision
hereof deemed invalid or unenforceable, in a final and nonappealable decision by
an arbitrator or court of competent jurisdiction, shall be severed from this
Agreement, the balance of which shall remain enforceable.
13.15 Acceptance by Seagate Software. This Agreement shall not be
deemed accepted by or binding upon Seagate Software unless and until a copy
fully executed by Distributor and an authorized representative of Seagate
Software is delivered to Distributor. This Agreement shall be deemed accepted
where executed by Seagate Software.
15
EXHIBIT A
[SUPERSEDED]
EXHIBIT B
[SUPERSEDED]
EXHIBIT C
[SUPERSEDED]
EXHIBIT D
PRICE LIST AND PAYMENT TERMS
1. Price List. In recognition of Distributor's services as a
distributor of the Products, and for so long as Distributor is in full
compliance with its obligations hereunder, Distributor shall pay Seagate
Software for Products purchased hereunder according to the standard price list
of the relevant subsidiary, less the applicable discount set forth in this
Agreement. Such prices and discount are subject to modification in accordance
with Section 6.2. The foregoing discount shall apply only to Products, and not
to any other goods or services Seagate Software may offer, including without
limitation upgrades, updates, and maintenance services, all of which Seagate
Software may in its discretion separately offer and price. In addition, the
foregoing discount may not apply to Products offered by Seagate Software on a
temporary basis at prices below its standard distributor prices, for special
promotions or otherwise.
2. Payment Terms. Seagate Software shall issue to Distributor
individual invoices for each shipment of Products made hereunder. Distributor
shall, without setoff, pay Seagate Software in full in U.S. dollars for each
delivery, (a) net 30 days from date of invoice for Seagate Software NSMG
Products; and (b) net 45 days from date of invoice for Seagate Software IMG
Products. Payment must be made by check or wire transfer to such accounts as
Seagate Software may designate.
3. Early Payment Discount. Seagate Software shall grant
Distributor an early payment discount of [*] for payments received by wire
transfer from Distributor pursuant to the terms of this Agreement no
more than twenty (20) days from the date of invoice. Such discount may be
amended or discontinued by Seagate Software upon providing thirty (30) days
prior written notice to Distributor. No early payment discount will be given
unless all past due invoices are paid in full, other than those invoices which
the parties agree are the subject of a good faith dispute, and such discount is
only applicable to Products identified and shipped pursuant to Distributor's
initial purchase order for "new" Product, and not to any Products reshipped
pursuant to Seagate Software's warranty provisions or returned for any reason.
4. Credit Information. The foregoing credit terms, and the
maximum amount of Distributor's credit line, will be subject to Distributor's
providing Seagate Software the following information:
(a) Distributor's annual and quarterly financial
statements, which are publicly available through the Internet on Distributor's
website and through the Securities and Exchange Commission Electronic Data
Gathering and Retrieval (XXXXX) database; and
(b) Other mutually agreed to documents and information as
required by Seagate Software to demonstrate Distributor's ongoing
creditworthiness.
* Confidential treatment has been requested with respect to this information,
which has been filed separately with the Securities and Exchange Commission.
20
5. Credit Changes. All credit lines and terms extended by Seagate
Software to Distributor under this Agreement, as set forth above or as
hereinafter granted, are subject to modification or withdrawal in the manner and
on the terms set forth in Section 6.3.
6. Debit Memos. Seagate Software shall accept debit memos issued
to Seagate Software by Distributor. However, Distributor shall not be entitled
to any credit memo issued by Seagate Software unless expressly authorized in
writing by Seagate Software. .Unauthorized debits shall be paid back to Seagate
Software within 15 days of Distributor's receipt of a written and detailed
request from Seagate Software. Distributor is not obligated to pay for items not
received by it.
7. Price Protection
(a) For Seagate Software NSMG Products. If Seagate Software
NSMG reduces its standard retail price, it will credit Distributor with the
difference for all Seagate Software NSMG Products which were shipped to
Distributor by Seagate Software NSMG (and not by any other party) during the 120
days preceding the date the reduced price is first offered and which are still
held in inventory by Distributor on such date. Distributor may make only one
domestic and one international credit request per reduction; except that Seagate
Software NSMG may, in its discretion, accept an additional request if
Distributor can establish that its failure to comply was a result of mistake or
inadvertence. Each such request must be in writing and delivered to Seagate
Software NSMG within twenty (20) business days after Seagate Software NSMG's
notice of the price reduction, and must provide Seagate Software NSMG with
written confirmation of the identity and quantity of the inventory for which
Distributor claims a credit, as Seagate Software NSMG may require.
(b) For Seagate Software IMG Products. If Seagate Software IMG
reduces its standard retail price or offers the Seagate Software IMG Products at
a lower price, including raising the discount offered, to any other similarly
situated distributor, it will credit Distributor with the difference between the
invoice price charged to Distributor and the reduced price for each unit of
Seagate Software IMG Products held in inventory by Distributor on the date the
reduced price is first offered. Price protection credit will not apply to
Seagate Software IMG Products purchased by Distributor from parties other than
Seagate Software IMG. Each request for price protection must be in writing and
delivered to Seagate Software IMG within twenty (20) business days after Seagate
Software IMG's notice of the price reduction, and must provide Seagate Software
IMG with written confirmation of the identity and quantity of the inventory for
which Distributor claims a credit, as Seagate Software IMG may require. Seagate
Software IMG may, in its sole discretion, provide Distributor's customers, on a
case by case basis, with a price reduction on inventory purchased within 90 days
of price decrease. In such case, proof of purchase by Distributor's customer
must be provided. Distributor will use commercially reasonable efforts to
provide inventory reporting of its customers' inventory.
8. Letters of Credit. Unless otherwise agreed in writing on a
particular sale, any letter of credit required by Seagate Software shall be
irrevocable and made payable in
21
U.S. Dollars at a bank designated by Seagate Software available by draft at
sight upon (1) loading of the Products on board carrier and (2) presentation to
Distributor or its agent or bank of the commercial invoice and bills of lading
within the time specified in the letter of credit. Such letter of credit shall
stipulate an expiration date of 3 months after the date Distributor orders the
Products, be issued subject to the Uniform Customs and Practices for Documentary
Credits (1983) Revision ICC Publications No. 400 (or superseding equivalent), be
transferable, and otherwise be on terms and conditions acceptable to Seagate
Software as it may require from time to time.
22
EXHIBIT E
STOCK ROTATION
During the term of this Agreement, Distributor may return product to
Seagate Software for stock rotation up to ten percent (10%) of the dollar value
of Distributor's last three months' product orders, subject to the following
conditions:
(a) Distributor must submit its request for stock
rotation to Seagate Software in writing at least 14 days in advance of
Distributor's proposed stock return date, and, if requested by Seagate Software,
providing with the request supporting documentation showing that at least the
amount of the same product for which rotation is requested has been shipped to
Distributor within the last 60 days;
(b) the version of the Products being returned must be the
current version or the version immediately preceding the then-current version;
(c) Distributor must submit to Seagate Software,
concurrently with its rotation request, an order for Products equal to or
greater than the value of the Products being returned;
(d) Distributor may submit only one stock rotation request
per calendar quarter;
(e) the Products being returned must be new, resaleable,
and in their original, unopened packaging; and
(f) Distributor shall pay the shipping costs for Product
returned for Stock Rotation.
23
EXHIBIT F
PROPRIETARY INFORMATION
NON-DISCLOSURE AGREEMENT
This Agreement is made this 29th day of September, 1998, by and between
Xxxxxx Micro Inc., a Delaware corporation with its principal place of business
at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000 ("Ingram"), and
Seagate Software, Inc., a Delaware corporation, with office located at 000 Xxxx
Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxx 00000 ("Vendor").
WHEREAS Ingram has compiled and organized certain information relating to its
sales which is proprietary and confidential, and such information includes, but
is not limited to the "Point of Sale (POS) Report" ("Proprietary Information");
and
WHEREAS Ingram agrees to disclose Proprietary Information to Vendor for the
limited purpose set out herein; and
WHEREAS Vendor desires to inspect and use such Proprietary Information for it's
internal business purposes only, including, but not limited to, distribution to
its affiliates and employees and agents for purposes of calculation of
commissions.
NOW, THEREFORE, in consideration of the mutual promises set out herein, the
parties hereby agree as follows:
1. Vendor agrees not to use, or permit others to use, the Proprietary
Information, other than for the purpose(s) stated above. Vendor agrees to limit
distribution of and access to the Proprietary Information to employees and
agents of Vendor and its affiliated companies who require access to Proprietary
Information.
2. Vendor agrees not to contact any customer or dealer listed in the
Proprietary Information for the purpose of soliciting a direct sales
relationship between Vendor and such customer or dealer. Notwithstanding the
foregoing, Vendor shall not be prohibited from contacting or soliciting those
customers or dealers (a) with whom Vendor already has a direct relationship, (b)
who contact Vendor of their own accord, and (c) who are developed as prospective
customers or dealers independent of the Proprietary Information.
3. Vendor agrees that it shall take reasonable measures to protect the
secrecy of and avoid disclosure and unauthorized use of the Proprietary
Information. Without limiting the foregoing, Vendor shall take at least those
measures that it takes to protect its own most highly confidential information
and shall ensure that its employees who have access to Proprietary Information
have signed a non-use and non-disclosure agreement in content similar to the
provisions hereof, prior to any disclosure of Proprietary Information to such
employees.
4. The term of this Agreement, unless terminated in accordance with
paragraph 6, shall be concurrent with the term of that Distribution Agreement
between Xxxxxx Micro Inc. and Vendor dated September 29, 1998, incorporated by
reference as if fully set forth herein.
5. Vendor and Ingram mutually agree that Xxxxxx'x public disclosure of the
Proprietary Information, except pursuant to a confidential disclosure agreement,
to any party will release
24
Vendor from the obligation of confidentiality with respect to that portion of
the Proprietary Information actually disclosed by Xxxxxx.
6. Upon termination of this Agreement by either party for any reason,
Vendor shall return all Proprietary Information, in the form received by Vendor,
to Ingram within thirty (30) days. For purposes of enforcing this provision,
Vendor's return obligation shall survive the termination of this Agreement.
7. Vendor acknowledges the damages which Ingram may suffer in the event of
Vendor's breach of obligations set forth herein. Vendors agrees to and shall
indemnify Ingram from and compensate Ingram for any and all damage or injury,
including legal fees and costs incurred by Ingram, as a direct consequence of
any action or inaction of Vendor with respect to the Proprietary Information.
This provision shall survive the expiration or earlier termination of this
Agreement for a period of one (1) year. THE LIABILITY OF VENDOR OR ITS
AFFILIATES UNDER THIS AGREEMENT , REGARDLESS OF THE BASIS OF LIABILITY OR THE
FORM OF ACTION, SHALL IN NO EVENT EXCEED THE TOTAL PRICE PAID TO VENDOR BY
INGRAM DURING THE PRIOR TWELVE MONTH PERIOD, OR ANY APPLICABLE PRO-RATA PORTION
THEREOF, EXTRAPOLATED TO A TWELVE MONTH PERIOD. IN NO EVENT SHALL VENDOR OR ITS
AFFILIATES BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR OTHER
DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR
OTHERWISE, AND WHETHER OR NOT VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THE ESSENTIAL PURPOSE OF THIS SECTION IS TO LIMIT THE POTENTIAL
LIABILITY OF VENDOR AND ITS AFFILIATES ARISING OUT OF THIS AGREEMENT.
8. The rights, promises, duties, and obligations set out herein, and the
validity, interpretation, performance, and legal effect of the whole Agreement
shall be governed and determined by the laws of the State of California. In the
event that any provision is found invalid or unenforceable pursuant to statutory
or judicial decree, such provision shall be construed only to the maximum extent
permitted by law, and the remainder of the Agreement shall be valid and
enforceable in accordance with its terms.
XXXXXX MICRO, INC. SEAGATE SOFTWARE, INC.
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxxxxxx
---------------------------- ---------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxx Xxxxxxxxxxx
Title: Vice President Purchasing Title: Sr. VP and CFO
Date: 9-24-98 Date: Sept. 29, 1998
25
[SEAGATE SOFTWARE LOGO]
SEAGATE SOFTWARE, INC.
A Delaware Corporation
000 Xxxx Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx 00000
NORTH AMERICAN DISTRIBUTOR AGREEMENT
AMENDMENT TO CONTRACT NO. 975500878
The parties to the NORTH AMERICAN DISTRIBUTOR AGREEMENT in effect between
SEAGATE SOFTWARE, INC. and its affiliates a.k.a Seagate Software Network &
Storage Management Group, Inc. and Seagate Software Information Management
Group, Inc. (herein collectively known as ("Seagate Software) and INGRAM MIRCO,
INC. ("Distributor"), with the signature of SEAGATE SOFTWARE, INC. dated
September 29, 1998, (the "Agreement), hereby agree to amend to Agreement in the
following particular matters:
1. Exhibit B ("Territory") of the Agreement is amended, to delete the
Territory referenced therein, and to substitute the Territory which is
identified in the new Exhibit B attached hereto.
This Amendment shall be effective as of the date which is last written, below.
All other terms and conditions of the Agreement shall remain in full force and
effect, except to the extent that such terms and conditions may be inconsistent
with the terms of this Amendment.
Distributor has read, understands and agrees to the terms of this Amendment and
the undersigned represents that he or she is duly authorized to sign this
Amendment.
SEAGATE SOFTWARE, INC. INGRAM MIRCO, INC.
Date December 7, 1998 Date 2/4/98
/s/ Xxxxx Xxxxxxxxxxx /s/ Xx Xxxx
------------------------ -------------------------
Signature Signature
Xxxxx Xxxxxxxxxxx Xx Xxxx
----------------------- ------------------------
Print Name Print Name
SR VP, CFO VP, Purchansing
---------------------------- -----------------------------
Title Title
Telecopier (000) 000-0000 Telecopier ________________________
Xxxxxx Micro Amendment No. 1
1
[SEAGATE SOFTWARE LOGO]
EXHIBIT B
TERRITORY
FOR SEAGATE SOFTWARE NETWORK & STORAGE MANAGEMENT GROUP, INC. PRODUCTS:
United States
Canada
FOR SEAGATE SOFTWARE INFORMATION GROUP, INC. PRODUCTS:
United States Jamaica
Canada Cayman Islands
Antigua Lesser Antilles
Aruba Martinique
Barbados Nether-Antilles
Bermuda New Caledonia
Bolivia Nicaragua
Bahamas Panama
Br. Virgin Islands Peru
Belize Puerto Rico
Columbia Paraguay
Costa Rica Suriname
Dominican Republic El Salvador
Ecuador Trinidad
Guatemala Venezuela
Guyana US Virgin Islands
Honduras West Indies
Haiti
Xxxxxx Micro Amendment No. 1
2
SEAGATE SOFTWARE, INC.
A Delaware Corporation
000 Xxxx Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx 00000
AMENDMENT TO NORTH AMERICAN DISTRIBUTOR AGREEMENT
AMENDMENT TO CONTRACT NO. 975500878
The parties to the NORTH AMERICAN DISTRIBUTOR AGREEMENT in effect between
SEAGATE SOFTWARE, INC. and XXXXXX MICRO INC., with the signature of SEAGATE
SOFTWARE, INC. dated September 29, 1998 (the "Agreement"), hereby agree to
amend the Agreement as follows:
1. The Agreement is hereby in effect between Seagate software Network &
Storage Management Group, Inc. and Xxxxxx Micro Inc.
2. Exhibit A ("Products") of the Agreement is hereby amended to remove all IMG
Products.
3. Exhibit B ("Territory") of the Agreement is hereby amended to remove all
IMG Territories.
4. Any and all references or terms relating to IMG or IMG Products throughout
the Agreement, and any and all renewals or amendments thereto, are hereby
removed.
5. The contract number is hereby amended to 995502560
This Amendment shall be effective as of the date which is last written below.
All other terms and conditions of the original Agreement, and any and all
renewals or amendments thereto, shall remain in full force and effect (including
any term or expiration date thereof), except to the extent that such terms and
conditions may be inconsistent with the terms of this Amendment.
Distributor has read, understands and agrees to the terms of this Amendment and
the undersigned represents that he or she is duly authorized to sign this
Amendment.
SEAGATE SOFTWARE, INC. XXXXXX MICRO INC.
April 20, 1999 April 7, 1999
--------------------------- -----------------------------
Date Date
/s/ Xxxxx X. Xxxxxxxxxxx /s/ Xxxxxxx Xxxxxxx
--------------------------- -----------------------------
Signature Signature
Xxxxx X. Xxxxxxxxxxx Xxxxxxx Xxxxxxx
--------------------------- -----------------------------
Print Name Print Name
Sr. Vice-President &
Chief Financial Officer Vice President Purchasing
--------------------------- -----------------------------
Title Title
831/438-0746 (000) 000-0000
--------------------------- -----------------------------
Telecopier Telecopier
1
[XXXXXX MICRO LOGO]
AMENDMENT # 2 TO THE
NORTH AMERICAN DISTRIBUTION AGREEMENT
THIS AMENDMENT (the "Amendment") is entered into this 18 day of June, 1999, by
and between XXXXXX MICRO INC. ("Ingram") and VERITAS SOFTWARE CORPORATION.
"VERITAS".
The parties have agreed to amend the North American Distribution Agreement
between Ingram and Seagate Software, Inc. dated September 29, 1998 and amended
April 20, 1999 ("Distribution Agreement").
1. All references to "Seagate Software Network & Storage Management Group,
Inc.", "NSMG" or "Vendor" in the Distribution Agreement, this
Amendment, or any other such documentation or communication concerning
the Distribution Agreement shall be changed to VERITAS.
2. All notices or other communications to Seagate Software Network &
Storage Management Group, Inc., under Section 13.9 shall be sent to
VERITAS' address:
VERITAS Software Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Legal Department
3. The terms and conditions of this present Amendment shall prevail over
the terms and conditions of the Distribution Agreement.
4. Notwithstanding the foregoing, all other provisions of the Distribution
Agreement shall remain unchanged and in force.
The undersigned have the read the Amendment, agree hereto, and are authorized
representatives of their respective parties.
XXXXXX MICRO INC. VERITAS SOFTWARE CORPORATION
By: /s/ Xxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxx
-------------------------------- -------------------------------
Name: Xxx Xxxxxxxx Name: Xxxxxx Xxxxxx
Title: VP & GM Storage & Components Title: Associate General Counsel
Date: 6/18/99 Date: 6/20/99
Veritas Software Corporation Confidential
Doc rev 2/97 6/10/99
1
AMENDMENT NO.3 TO
NORTH AMERICAN DISTRIBUTOR AGREEMENT
CONTRACT NO. 995502560
The NORTH AMERICAN DISTRIBUTOR AGREEMENT in effect between SEAGATE SOFTWARE
NETWORK & STORAGE MANAGEMENT GROUP, INC. and XXXXXX MICRO, INC. ("Distributor"),
with the signature of SEAGATE SOFTWARE NETWORK & STORAGE MANAGEMENT GROUP, INC.
dated April 20, 1999 (the "Agreement"), has been assigned to VERITAS SOFTWARE
CORPORATION, a Delaware corporation ("VERITAS"), with its principal place of
business at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000, in connection
with its acquisition of Seagate Software Network & Storage Management Group. The
parties hereto agree to amend the Agreement as follows:
1. The term "NSMG" is replaced with "VERITAS" throughout the Agreement.
2. In Section 11.1, Term, the second sentence is hereby deleted and replaced
with the following:
"Thereafter, this Agreement shall renew for additional one
year terms unless earlier terminated as set forth herein."
3. Section 4.2, Sales Incentive Programs, is hereby deleted in its entirety
and replaced with the following:
"VERITAS shall offer Distributor a marketing development
program on the terms set forth in Exhibit C. VERITAS may from
time to time offer other incentive programs to Distributors.
All such programs will be governed by such rules and
guidelines as VERITAS may announce and modify from time to
time in its discretion."
4. Exhibit C, Cooperative Advertising Program, is hereby deleted in its
entirety and replaced with the new Exhibit C, Market Development Program,
attached hereto.
5. For the Products listed on Attachment 1 hereto, Distributor shall provide
VERITAS with end user point of sale reports by the 10th day of each month,
in a manner and format consistent with the monthly reports that Distributor
is currently providing to VERITAS.
6. All other terms and conditions of the original Agreement are incorporated
herein and shall remain in full force and effect, except to the extent that
such terms and conditions may be inconsistent with the terms of this
Amendment.
Distributor has read, understands and agrees to the terms of this Amendment and
the undersigned represents that he or she is duly authorized to sign this
Amendment.
VERITAS SOFTWARE CORPORATION XXXXXX MICRO, INC.
/s/ Xxxxxx Xxxxxx /s/ Xxxxxx X. Xxxxxxx
------------------------------- -----------------------
Signature Signature
Xxxxxx Xxxxxx Xxxxxx X. Xxxxxxx
------------------------------- -----------------------
Print Name Print Name
Associate General Counsel VP/GM
------------------------------- -----------------------
Title Title
2/10/00 1/21/00
------------------------------- -----------------------
Date Date
EXHIBIT C
MARKET DEVELOPMENT PROGRAM
1. Market Development Fund Account
(a) VERITAS shall accrue for Distributor's benefit amounts for
later use as Market Development Funds ("MDF"), on the terms herein. MDF is
eligible for the marketing and promotion of VERITAS Products purchased by and
shipped to Distributor.
(b) VERITAS may determine, in its sole discretion, the amount of
MDF to be used by Distributor.
2. Payment if Market Development Funds
(a) VERITAS shall credit Distributor with amounts from its MDF
account (MDF Credits) in reimbursement of Distributor's qualifying marketing
expenditures for VERITAS Products. VERITAS shall determine in its sole
discretion which advertising, promotional, and other marketing expenditures by
Distributor qualify for MDF Credits under its Market Development
Program. Distributor shall provide proof of expenditure as VERITAS may prescribe
in guidelines it establishes and may modify from time to time.
(b) VERITAS shall provide MDF Credits to Distributor in the form
of credits against Distributor's account for VERITAS Product purchases. VERITAS
reserves the right for prior approval of any credits against Distributors's
account, which such approval will not be unreasonably withheld or delayed.
(c) MDF Credits which have been properly requested and are payable
to Distributor in accordance with the foregoing, prior to the termination of
this Agreement, shall be paid thereafter notwithstanding such termination.
AMENDMENT NO. 4 TO
NORTH AMERICAN DISTRIBUTOR AGREEMENT
CONTRACT NO. 995502560
This Fourth Amendment ("Amendment"), which is entered into and is effective on
June 5, 2000 ("Effective Date"), supplements and amends the terms of the North
American Distributor Agreement between VERITAS SOFTWARE CORPORATION ("VERITAS")
and XXXXXX MICRO, INC. ("Distributor"), with the signature of VERITAS SOFTWARE
CORPORATION dated September 28, 1998 (the "Agreement"). Capitalized terms not
otherwise defined herein shall have the meaning set forth in the Agreement.
Except as supplemented and amended herein, the Agreement shall remain in full
force and effect. The parties hereto agree to amend the Agreement as follows:
1. The attached "Exhibit A, Appendix 1" shall be added to "Exhibit A,
(Products)" of the Agreement. ESG, a business unit of Xxxxxx Micro,
Inc., shall be the only business unit permitted to directly buy and
sell the Products set forth in Exhibit A, Appendix 1.
2. Exhibit D, Section 1 shall be deleted in its entirety and replaced with
the following:
1. Price List. In recognition of Distributor's services as a
distributor of the Products, and for so long as Distributor is in full
compliance with its obligations hereunder, Distributor shall pay
VERITAS for Products purchased hereunder according to VERITAS' standard
distributor price list in effect at the time of sale, less, a discount
in each case of: (i) [*] of the applicable standard price for classic
VERITAS Products (set forth in Exhibit A, Appendix 1 attached hereto);
(ii) [*] of the applicable standard price for NSMG Products and
NetBackup BusinesServer; (iii) [*] of the applicable standard price for
support and training for classic VERITAS Products (as set forth in
Exhibit A, Appendix 1 attached hereto); and (iv) [*] of the applicable
standard price for support and training for NSMG Products. Such prices
and discount are subject to modification in accordance with Section
6.2. The foregoing discount shall apply only to Products, and not to
any other goods or services VERITAS may offer, including without
limitation upgrades, updates, and maintenance services, all of which
VERITAS may in its discretion separately offer and price. In addition,
the foregoing discount shall not apply to Products offered by VERITAS
on a temporary basis at prices below its standard distributor prices,
for special promotions or otherwise.
3. For the Products listed on Appendix 1 hereto, EXHIBIT D, Section 3
shall not apply and shall be deleted in its entirety.
4. For the Products listed on Appendix 1 hereto, Distributor shall provide
VERITAS with daily, end user (Company name, city, state and zip) point
of sale reports, in a manner and format consistent with the reports
that Distributor is currently providing to VERITAS.
5. All other terms and conditions of the original Agreement are
incorporated herein and shall remain in full force and effect, except
to the extent that such terms and conditions may be inconsistent with
the terms of this Amendment.
INITIAL /s/ [ILLEGIBLE]
* Confidential treatment has been requested with respect to this information,
which has been filed separately with the Securities and Exchange Commission.
1
Distributor has read, understands and agrees to the terms of this Amendment and
the undersigned represents that he or she is duly authorized to sign this
Amendment.
VERITAS SOFTWARE CORPORATION XXXXXX MICRO, INC.
/s/ Xxxxx Xxxxxx /s/ Xxxxxx X. Xxxxxxx
----------------------------- -----------------------------
Signature Signature
Xxxxx Xxxxxx Xxxxxx X. Xxxxxxx
----------------------------- -----------------------------
Print Name Print Name
V. P. VP/GM
----------------------------- -----------------------------
Title Title
8/9/00 7/26/00
----------------------------- -----------------------------
Date Date
2
EXHIBIT A
APPENDIX 1
PRODUCTS
VxFS
VxVM
Foundation Suite
Editions
NBU
NBU BusinessServer
NBU Professional
HSM
Distribution of the following Products requires further authorization from
VERITAS:
VCS
VCS Editions
Replication (SRVM and SRFS)
NT VCS
NT VM
SRE
AMENDMENT NO. 5 TO
NORTH AMERICAN DISTRIBUTOR AGREEMENT
CONTRACT NO. 995502560
This Fifth Amendment ("Amendment"), which is entered into and is effective on
June 13, 2001 ("Effective Date"), supplements and amends the terms of the North
American Distributor Agreement between VERITAS SOFTWARE GLOBAL CORPORATION
("VERITAS") and XXXXXX MICRO, INC. ("Distributor"), with the signature of
VERITAS dated September 28, 1998, including all supplements and amendments
thereto (collectively the "Agreement"). Capitalized terms not otherwise defined
herein shall have the meaning set forth in the Agreement. Except as supplemented
and amended herein, the Agreement shall remain in full force and effect.
For good and valuable consideration, the parties agree to amend the Agreement as
follows:
1. Notwithstanding anything to the contrary set forth on any Exhibit A or
Exhibit A, Appendix 1 to the Agreement delivered by VERITAS to Distributor
from time to time, Distributor is not authorized to distribute the
following Products on or after the Effective Date of this Amendment:
VERITAS SERVPOINT(TM) FOR NAS AND VERITAS SERVPOINT(TM) FOR NAS HA
Such Products shall be deemed deleted from any Exhibit A or Exhibit A,
Appendix 1 delivered to Distributor by VERITAS.
2. All other terms and conditions of the original Agreement are incorporated
herein and shall remain in full force and effect, except to the extent that
such terms and conditions may be inconsistent with the terms of this
Amendment.
Distributor has read, understands and agrees to the terms of this Amendment and
the undersigned represents that he or she is duly authorized to sign this
Amendment.
VERITAS SOFTWARE GLOBAL XXXXXX MICRO, INC.
CORPORATION
/s/ Xxxx X. Xxxxxxx /s/ Xxxx Xxxxxx
-------------------------- ---------------------------------
Signature Signature
Xxxx X. Xxxxxxx Xxxx Xxxxxx
-------------------------- ---------------------------------
Print Name Print Name
Vice President
and General Counsel VP Product Management
-------------------------- ---------------------------------
Title Title
1
(VERITAS LOGO) AMENDMENT TO
NORTH AMERICAN DISTRIBUTOR AGREEMENT
#_____________________
--------------------------------------------------------------------------------
This Amendment ("Amendment") is entered into on this 17th day of February, 2003,
(the "Effective Date") between VERITAS SOFTWARE GLOBAL CORPORATION with its
principal place of business at 000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
("VERITAS") and XXXXXX MICRO, INC. with its principal place of business at 0000
Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000 ("Distributor") and
supplements and amends the terms of the North American Distributor Agreement
between VERITAS and Distributor with the signature date of VERITAS dated
September 28, 1998, including all supplements and amendments thereto
(collectively the "Agreement"). Capitalized terms not otherwise defined herein
shall have the meaning set forth in the Agreement.
For good and valuable consideration, the parties agree to amend the Agreement as
follows:
1. The parties agree to extend the Agreement until March 31, 2003.
2. All other terms and conditions of the original Agreement are incorporated
herein and shall remain in full force and effect, except to the extent
that such terms and conditions may be inconsistent with the terms of this
Amendment.
3. Each of the undersigned represents that he or she is duly authorized to
sign this Agreement on behalf of their respective companies.
VERITAS SOFTWARE GLOBAL CORPORATION CUSTOMER: XXXXXX MICRO, INC.
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxxxx
Name: Xxxx X. Xxxxxxx Name: Xxxxx Xxxxxxxx
Title: Vice President Title: SVP - Product Mgmt.
and General Counsel
2/28/03
Amendment VERITAS Confidential Page 1
060302
(VERITAS LOGO) AMENDMENT TO
NORTH AMERICAN DISTRIBUTOR AGREEMENT
#_____________________
--------------------------------------------------------------------------------
This Amendment ("Amendment") is entered into on this 31st day of March, 2003,
(the "Effective Date") between VERITAS SOFTWARE GLOBAL CORPORATION with its
principal place of business at 000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
("VERITAS") and XXXXXX MICRO, INC. with its principal place of business at 0000
Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000 ("Distributor") and
supplements and amends the terms of the North American Distributor Agreement
between VERITAS and Distributor with the signature date of VERITAS dated
September 28, 1998, including all supplements and amendments thereto
(collectively the "Agreement"). Capitalized terms not otherwise defined herein
shall have the meaning set forth in the Agreement.
For good and valuable consideration, the parties agree to amend the Agreement as
follows:
1. The parties agree to extend the Agreement until May 1, 2003.
2. All other terms and conditions of the original Agreement are incorporated
herein and shall remain in full force and effect, except to the extent
that such terms and conditions may be inconsistent with the terms of this
Amendment.
3. Each of the undersigned represents that he or she is duly authorized to
sign this Agreement on behalf of their respective companies.
VERITAS SOFTWARE GLOBAL CORPORATION CUSTOMER: XXXXXX MICRO, INC.
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxxxx
Name: Xxxx X. Xxxxxxx Name: Xxxxx Xxxxxxxx
Title: Sr. Vice President Title: Senior Vice President,
And General Counsel Product Mgmt.
Amendment VERITAS Confidential Page 1
060302
(VERITAS LOGO) AMENDMENT TO
NORTH AMERICAN DISTRIBUTOR AGREEMENT
#_____________________
--------------------------------------------------------------------------------
This Amendment ("Amendment") is entered into on this 30th day of April, 2003,
(the "Effective Date") between VERITAS SOFTWARE GLOBAL CORPORATION with its
principal place of business at 000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
("VERITAS") and XXXXXX MICRO, INC. with its principal place of business at 0000
Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000 ("Distributor") and
supplements and amends the terms of the North American Distributor Agreement
between VERITAS and Distributor with the signature date of VERITAS dated
September 28, 1998, including all supplements and amendments thereto
(collectively the "Agreement"). Capitalized terms not otherwise defined herein
shall have the meaning set forth in the Agreement.
For good and valuable consideration, the parties agree to amend the Agreement as
follows:
1. The parties agree to extend the Agreement until June 1, 2003.
2. All other terms and conditions of the original Agreement are incorporated
herein and shall remain in full force and effect, except to the extent
that such terms and conditions may be inconsistent with the terms of this
Amendment.
3. Each of the undersigned represents that he or she is duly authorized to
sign this Agreement on behalf of their respective companies.
VERITAS SOFTWARE GLOBAL CORPORATION CUSTOMER: XXXXXX MICRO, INC.
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxx Xxxxxx
Name: Xxxx X. Xxxxxxx Name: VP Vendor Management
Title: Sr. Vice President Title: Xxxx Xxxxxx
And General Counsel
Amendment VERITAS Confidential Page 1
060302
