SOFTWARE MARKETING AGREEMENT
This SOFTWARE MARKETING AGREEMENT (this "Agreement"), dated May 15, 1999,
is made and entered into by and between Coherence Technology Inc, a Delaware
corporation (hereinafter referred to as "COHERENCE"), and Sharp Technology,
Inc., a Delaware corporation (hereinafter referred to as "SHARP").
COHERENCE and SHARP hereby agree as follows:
Section 1
PURPOSE
This Agreement sets forth the terms and conditions under which SHARP shall
provide, and COHERENCE shall receive, assistance in marketing the Program
Offering.
The Program Offering consists of a desktop software program referred to as
"Dr. Y2K" in executable or usable form and further described as:
Dr. Y2K is a desktop application which tests the BIOS and O/S clocks on
standard Windows based PC's to see that they are Year 2000 compliant.
The Program Offering is a set of Copyable Materials, which consist of a
custom set of program code, provided to SHARP in copyable form for SHARP to copy
for redistribution by U S West Communications Inc., and covered by an End-User
Agreement requiring execution by the End-User, and COHERENCE, prior to
productive use of the program.
Section 2
SCOPE OF MARKETING AND SERVICE
COHERENCE hereby grants SHARP a nonexclusive right and license to market,
and otherwise distribute an unlimited number of copies of the Copyable Materials
in connection with its redistribution contract with US West Communications Inc.
The foregoing includes all rights necessary for (1) copying and distributing the
Copyable Materials via CD distribution or web site download for purposes of the
sale or license to End-Users in the geographic territories covered by U S West
Communications, Inc. during the period from June 20, 1999 to December 31, 2000
(hereinafter referred to as the "Territory" and the "Time-frame"); (2)
conducting demonstration or training activities in support of such distribution;
and (3) providing incremental support for End-Users in addition to the support
services guaranteed by COHERENCE.
Section 3
END-USER AGREEMENT
COHERENCE shall cause each End-User to receive an End-User Agreement
covering the Program Offering it is providing. The End-User Agreement shall be
substantially in the form of the agreement COHERENCE currently uses as its
standard domestic end-user agreement. The End-User Agreement shall be authorized
for execution by each End-User without any requirement of execution by
COHERENCE, so that it becomes effective upon execution by the End-User.
Section 4
COHERENCE'S SUPPORT OBLIGATIONS
4.1 Direct Services. COHERENCE shall make available and provide to the
End-Users generated by this Agreement, the types of maintenance and support it
provides to its best class of End-User. SHARP is authorized to provide any
further types of maintenance and support for the benefit of End-Users, at its
own expense through the use of its own resources.
4.3 Updated Versions. COHERENCE shall make, introduce, and provide to SHARP
for distribution updated versions of the Program Offering, including fixes,
enhancements, and new releases or editions, of the same nature and on the same
timetable as the updated versions made and introduced with respect to the
Owner's other versions of the Program Offering, if any. COHERENCE shall notify
SHARP as soon as possible when such updated versions are introduced.
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Section 5
Intentionally left blank.
Section 6
PAYMENT TERMS AND CUSTOMER SHARING
6.1 Payments for Programs. In exchange for all rights and licenses granted
in this agreement, SHARP shall pay to COHERENCE the sum of One Hundred Fifty
Thousand Dollars ($150,000), in cash. The first payment of Fifty Thousand
Dollars ($50,000) shall be due and payable on January 15, 2000. The remaining
$100,000 shall be paid into two equal installments of $50,000 to be paid not
later than April 15, 2000 and July 15, 2000 respectively. In the event SHARP
elects to pay the entire cash amount due before the close of business January
15, 1999, they will enjoy an early pay discount in the amount of $25,000.
In addition, Sharp herewith grants an Option to COHERENCE to purchase 50,000
shares of SHARP's common stock at an exercise price of 25 cents per share when,
and if, SHARP becomes a publicly traded company.
6.2 Customer Sharing. The customers who accept the Program Offering under
the terms of this agreement, shall be considered to be shared customers.
Customer information shall be shared between the two companies within 15 days of
the date such customer information first becomes available to SHARP.
Section 7
TERM AND TERMINATION
7.1 Term. The term of this Agreement shall commence upon its execution by
both COHERENCE and SHARP and shall continue until December 31, 2000, unless
earlier terminated pursuant to Section 7.2.
7.2 Termination. This Agreement may be terminated only (1) by either party
in the event that the other party has committed a material breach of any of its
obligations hereunder that has not been cured within 60 days after the breaching
party has received notice thereof; (2) by mutual written agreement of the
parties.
7.3 Survival. Notwithstanding any termination of this Agreement,
COHERENCE's obligations concerning support and maintenance under Section 4.1,
COHERENCE's assurances under Sections 8.1 and 8.8, and the general limitations
contained in Section 8.4 shall survive and continue in effect in accordance with
their terms.
Section 8
MISCELLANEOUS
8.1 Warranties. COHERENCE represents and warrants, on a present and ongoing
basis, that (1) COHERENCE has all intellectual property rights in the Program
Offerings necessary to enable SHARP to provide the assistance contemplated by
this Agreement, to sell, lease, or license the Program Offerings to End-Users in
the Territory during the Timeframe, and to perform its other obligations under
this Agreement; (2) COHERENCE's commitments and the rights and privileges
granted to SHARP hereunder do not conflict with any other agreement or legal
obligation of COHERENCE; (3) the Program Offerings have been prepared with
professional skill and diligence, meet the requirements of the descriptive
materials provided by COHERENCE to SHARP and/or the End-Users, and conform to
all quality and performance standards established by COHERENCE for the Program
Offerings; and (4) COHERENCE has not, in entering this Agreement, relied on any
promises, inducements, or representations of SHARP except for those expressly
stated in this Agreement.
8.2 Confidential Information. Unless otherwise agreed to in writing signed
by the authorized representatives of both parties, neither party shall provide
the other party with information that is confidential or proprietary to itself
or any third party. Accordingly, no obligation of confidentiality of any kind is
assumed by, or shall be implied against, either party by virtue of its
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discussions and/or correspondence with the other party or with respect to any
information received (in whatever form or whenever received) from the other
party under this Agreement or in activities related thereto.
8.3 Administrators. The parties each hereby designate an Administrator to
receive notices, payments, and any other contact between the parties pursuant to
this Agreement.
COHERENCE's Administrator is:
Xxxxxx Xxxxxxx
President
000 Xxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
SHARP's Administrator is:
Xxxxxx Xxxxx
President
0000 Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Either party may change its Administrator pursuant to written notice to the
other party containing an express reference to this Agreement.
8.4 Limitations. Neither party shall be entitled to indirect, incidental,
or consequential damages, including lost profits based on any breach or default
under this Agreement. This limitation shall not apply to any liabilities of
COHERENCE for warranty matters or infringement or any liabilities based on
obligations to third parties. In no event shall SHARP be liable under this
Agreement to COHERENCE, its successors, and assigns for damages exceeding the
amounts payable and as yet unpaid by SHARP under this Agreement in accordance
with its terms.
8.5 Freedom of Action. Nothing in this Agreement shall be construed as
prohibiting or restricting either party from independently developing or
acquiring and marketing materials and/or programs that are competitive with the
Program Offering.
8.6 No Guarantee of Marketing Success. SHARP makes no representations,
warranties, or promises, express or implied, to COHERENCE as to the success of
its marketing efforts pursuant to this Agreement or with respect to the amount
of payments that may accrue under the terms of this Agreement.
8.7 Compliance With Laws. Except to the extent such obligation is expressly
assumed by SHARP, COHERENCE shall, at its own expense, comply with any laws
relating to the sale, lease, or license of the Program Offerings, and shall
procure all licenses and pay all fees and other charges required thereby. Both
COHERENCE and SHARP shall limit their actions hereunder, and COHERENCE shall
require each End-User to limit its actions under the End-User Agreement, to
conform to applicable laws regarding the export or reexport of any information,
or any process, product, or service, to countries specified as prohibited
destinations, including the Regulations of the U.S. Department of Commerce
and/or the U.S. State Department, to the extent applicable.
8.8 Indemnity. COHERENCE agrees to protect, defend, hold harmless, and
indemnify SHARP, its subsidiaries and their customers from and against any and
all claims, damages, liabilities, losses, and expenses, arising out of any
actual or alleged (1) defect or nonconformity of the Program Offerings, (2)
noncompliance of COHERENCE with the terms of the End-User Agreement or any other
agreement between COHERENCE and any third party, (3) noncompliance of COHERENCE
or the Program Offerings with applicable laws, or (4) breach of COHERENCE's
obligations under this Agreement. COHERENCE shall pay all damages, settlements,
expenses, and costs, including costs of investigation, court costs and
attorneys' fees, incurred in connection with such payment, provided that such
payment shall be contingent on (1) notice by SHARP to COHERENCE in writing of
such claim; (2) cooperation by SHARP with COHERENCE in the defense thereof, at
COHERENCE's expense; and (3) SHARP's obtaining COHERENCE's prior written consent
of any settlement by SHARP of such matters, which consent shall not be
unreasonably withheld.
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8.9 Independent Contractor. COHERENCE is and shall remain an independent
contractor with respect to all work completed pursuant to this Agreement.
Neither COHERENCE nor any employee of COHERENCE shall be considered an employee
or agent of SHARP for any purpose.
8.10 No Assignment. COHERENCE may not sell, transfer, assign, or
subcontract any right or obligation set forth in this Agreement, without the
prior written consent of SHARP. Any act in derogation of the foregoing shall be
null and void.
8.11 Governing Law. The validity, construction, and performance of this
Agreement will be governed by the substantive law of the State of Texas .
8.12 Amendments in Writing. No amendment, modification, or waiver of any
provision of this Agreement shall be effective unless it is set forth in a
writing that refers to the Agreement by number and the provisions so affected
and is executed by an authorized representative of both parties. No failure or
delay by SHARP in exercising any right, power, or remedy will operate as a
waiver of any such right, power, or remedy.
8.13 Entire Agreement. COHERENCE agrees that it has assessed the
opportunity for marketing the COHERENCE Materials independently of any
representation or information provided by SHARP. The provisions of this
Agreement constitute the entire agreement between the parties and supersede all
prior agreements, oral or written, relating to the subject matter of this
Agreement except for any agreements specifically referenced herein. Any terms
contained in COHERENCE invoices, acknowledgments, shipping instructions, or
other forms shall be void and of no effect.
8.14 Conflicts with US West Agreement. Should any of the terms of this
agreement be in conflict with the US West Co Branded Marketing Agreement, or
Amendment No. 1 thereto, The terms of the West Co Branded Marketing Agreement,
or Amendment No. 1 thereto shall prevail.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective authorized representatives.
ACCEPTED AND AGREED TO:
SHARP Technology, Inc.
/s/ Xxxxxx Xxxxx
---------------------
By: Xxxxxx Xxxxx
Title: President
ACCEPTED AND AGREED TO:
COHERENCE, Inc.
/s/ Xxxxxx Xxxxxxx
---------------------
By: X X Xxxxxxx
Title: President
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