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EXHIBIT NO. 10(c)
SUN TECHNOLOGY LICENSE AND DISTRIBUTION AGREEMENT
AGREEMENT NO. 14646
This Agreement is made and entered into by and between Sun Microsystems, Inc., a
Delaware corporation, located at 000 Xxx Xxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx
00000 ("Sun") and Customer set forth below ("Customer"):
(printed or typed)
Customer: Pinnacle Data Systems, Inc.
Address: 0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
This Agreement includes the terms and conditions set forth below and the
following Attachments:
Attachment 1 End User Binary Code License
Attachment 2 Binary Product/Activity Level Matrix
Sun designs, develops and markets operating system software, related software,
and documentation.
Customer desires to license from Sun the Products and distribute the same on the
terms and conditions herein.
IN CONSIDERATION of the foregoing premises, the parties agree that the terms and
conditions attached hereto and incorporated herein shall govern the licensing of
the Products described in Attachments initialed by the parties attached hereto
and incorporated herein.
Notices as described in Section 12.8 shall be delivered to Sun at the above
address, M/S XXXX00-000, Xxxxxxxxx: Vice President, Sales, with a copy to Sun
Legal Dept. (same address). Notices to Customer shall be delivered to: above
address, Attention: Xxxx Xxxx, CEO/President.
IN WITNESS WHEREOF, the parties have caused this Agreement and any Attachments
initialed hereto to be executed by their duly authorized representatives.
SUN MICROSYSTEMS, INC. PINNACLE DATA SYSTEMS, INC.
By: /s/ Xxx Xxxx By: /s/ Xxxx Xxxx
---------------------------- -------------------------------
Name: Xxx Xxxx Name: Xxxx Xxxx
---------------------------- -------------------------------
(printed or typed) (printed or typed)
Tide: VP Sales Title: Pres/CEO
---------------------------- -------------------------------
Date: 1/15/99 Date: 1/15/99
---------------------------- -------------------------------
GENERAL TERMS AND CONDITIONS
1.0 DEFINITIONS
1.1 "Agreement" means this Agreement, fully executed by the parties, to
include without limitation, all Attachments hereto.
1.2 "Attachments" means addenda, including any exhibits or schedules to this
Agreement describing the Products, Documentation, fees and royalties, and any
special terms and conditions pertaining to the license thereof.
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1.3 "Binary Code License (BCL)" means an End User license to use the Binary
Product(s) pursuant to Attachment 1 hereto, or as otherwise specified by Sun for
specific Products.
1.4 "Binary Products" means the machine-readable, executable code for the
Product and End User Documentation listed in Attachment 2 hereto, any Updates,
Version Release or Product Release to the Binary Product provided to Customer,
if any, and any Error Corrections.
1.5 "Confidential Information" means that information which Customer and/or Sun
desire to protect against unauthorized disclosure or use and which the
disclosing party designates as confidential (i) in writing, if communicated in
writing, or (ii) orally, prior to any oral disclosure of the Confidential
Information. Confidential Information may include information of third parties.
The terms and conditions of this Agreement shall be considered Confidential
Information of Sun.
1.6 "Distributor" means an entity that distributes Customer's Products and which
is under a contractual obligation to Customer as set forth in this Agreement.
1.7 "Dollar" or "$" means the currency of the United States of America.
1.8 "End User" means the entity to whom the BCL applies and to whom Customer
and/or Distributors furnish the Binary Products for use on or with Customer's
Products for internal use and not for resale, marketing, or leasing.
1.9 "End User Documentation" means users' manuals, programmers' guides and
system guides which Sun may provide for use with the Products, and which are
specified in the Attachments and/or the Price List.
1.10 "Error" means any reproducible failure of the Products to perform its
intended functions or any significant inaccuracies in the End User
Documentation.
1.11 "Error Correction" means a modification, addition, procedure or routine
intended to correct the practical adverse effect of an Error.
1.12 "Customer's Product(s)" means (i) the hardware system(s) manufactured by or
for Customer with which the full operating system environment Product(s) is
(are) intended to operate; and/or (ii) the hardware and/or software system
manufactured by or for Customer and which is shipped with the unbundled and
other technology Products.
1.13 "Master Media" means the Binary Product delivered to Customer for the
purpose of mass duplication in accordance with Section 2.0 herein.
1.14 "Packaged Product" means the Binary Product, including End User
Documentation, delivered to Customer in prepackaged (shrink-wrap) form.
1.15 "Price List" means the then current, geographical specific release of the
Sun Software OEM and Reseller License Fee and Royalty Schedule at the time of
execution of this Agreement including any subsequent price changes made by Sun
pursuant to Section 4.4.
1.16 "Product Release" means a release of a Product which is designated by Sun
in its sole discretion as a change in the digit(s) to the left of the decimal
point in the Product version number [(x).x.x].
1.17 "Royalty Bearing Event" means the license, grant of right to use, or other
authorized transfer of the Binary Product (or any portion thereof) by Customer,
Distributors or their distributors. There will be only one (1) Royalty Bearing
Event for each Binary Product shipped.
1.18 "Product(s)" means the Binary Product initialed on Attachment 2 hereto.
1.19. "Tax" means sales, use, rental, receipt, personal property, value-added,
consumption, goods and services, or other tax which may be levied or assessed in
connection with this Agreement, excluding tax based on Sun's income.
1.20 "Update" means a release of a Product which is designated by Sun in its
sole discretion as a change in the digit(s) to the right of the tenths digit in
the Product version number [x.x.(x)].
1.21 "Version Release" means a release of a Product which is designated by Sun
in its sole discretion as a change in the tenths digit in the Product version
number [x.(x).xl.
2.0 BINARY LICENSE RIGHTS; TERMS AND CONDITIONS
2.1 Binary License Grant.
(a) Packaged Product. Subject to and in consideration of the conditions and
restrictions set forth in this Agreement, Sun grants to Customer a personal,
non-transferable, world-wide and non-exclusive, fee-bearing, limited right and
license to distribute Packaged Product for use with Customer's Products.
Packaged Product distributed by Customer and/or its Distributors may not be
opened prior to delivery to End Users except, in the event the End User requests
pre-installation of the Packaged Product, Customer and/or its Distributors may
do so only after obtaining agreement to the BCL terms by the End User prior to
delivery of the pre-installed Packaged Product.
(b) Master Media. Subject to and in consideration of the payments, conditions
and restrictions set forth in this Agreement, Sun grants to Customer a personal,
non-transferable, world-wide and non-exclusive, royalty-bearing, limited right
and license to make copies of the Binary Product from Master Media and
distribute such copies, including End User Documentation, for use with
Customer's Product's in accordance with the terms of this Agreement.
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2.2 Binary License Terms and Conditions. Each distribution of a
Binary Product by Customer or its Distributors to an End-User must be made
pursuant to a license that is consistent with the rights and obligations set
forth herein and that incorporates in substance, and is no less restrictive
than, the terms and conditions of the BCL. In the event the BCL contains
supplemental terms and conditions relating to a specific product, Customer shall
be obligated to pass through such supplemental terms and conditions to its End
User customers. It is expressly acknowledged and agreed that in the United
States and in other jurisdictions where an enforceable copyright protection
covering the Binary Products exists, such license may be a written agreement on
or accompanying the package containing the Binary Product media that is fully
visible to the End-User before the package is opened, that the End-User accepts
by opening the package and that complies with applicable law relating to
agreements of such type. In all other jurisdictions, such license must be a
written agreement signed by the End-User. Sun does not undertake to inform
Customer of the jurisdictions where such copyright protection exists. Customer
or its Distributors shall be the "Licensor" under its Binary Code Licenses. In
the event the End User, upon reading the BCL, elects to return the product as
provided in the product packaging, Customer will accept return of the unopened
Packaged Product and shall refund the license fee to the End User.
2.3 Distribution Agreements.
(a) Prior to Customer furnishing any Binary Product to one of its Distributors,
Customer shall obtain a signed agreement from its Distributors substantially
similar to the terms and conditions of this Agreement and sufficient to allow
protection of the intellectual property rights of Sun and its licensors.
(b) Customer shall use commercially reasonable efforts comparable to those it
uses for its own products to enforce any agreements with Distributors and End
Users of the Products entered into with Customer or its Distributors. If a
Distributor or End User fails to fulfill any of its material obligations with
respect to the Products under such agreement, Sun may, upon its election and in
addition to any other remedies that it may have notify Customer in writing of
such breach and require Customer to terminate all the rights granted in such
agreement with respect to the Products by thirty (30) days written notice to
such Distributor or End User specifying the breach, unless the breach is
remedied within such thirty (30) day period. Customer shall use commercially
reasonable efforts comparable to those it uses for its own products in
monitoring its Distributor's adherence to the provisions of its agreements
required by this Agreement and shall promptly inform and consult with Sun if
Customer becomes aware of any substantial non-compliance. In the event that
Customer fails to satisfy the foregoing obligations with regards to the
Products, subject to Section 8.0 below, Customer shall be responsible for all
reasonable costs incurred by Sun, including without limitation, attorneys fees,
in connection with such enforcement actions undertaken by Sun. In those
jurisdictions where Sun does not have standing to bring an action in its own
name or under the intellectual property laws of such jurisdiction, Customer
shall assign those rights to Sun reasonably necessary to allow Sun to bring an
action under any legal theory available to Customer.
2.4 End User Documentation Distribution; Modification.
(a) End User Documentation Distribution. One (1) copy of End User Documentation
is provided with each copy of the Product(s) if specified on the Price List.
Each additional copy of End User Documentation requires payment of applicable
royalties as set forth in the Price List
(b) Modification of End User Documentation. Customer may modify the End User
Documentation ("Modified Documentation") and distribute such Modified
Documentation, subject to the following: (i) Customer may modify only those
portions of the End User Documentation and only to the extent necessary to
reflect any modifications or value added to the product developed by or for
Customer or as required for Customer's Product(s); (ii) Customer distributes the
Modified Documentation only in connection with its distribution of Customer's
Product; and (iii) Customer pays Sun the applicable royalty as listed in the
Price List (if any), subject to applicable discounts, for each copy of such
Modified Documentation distributed by or for Customer.
2.5 Trademarks, Logos and Product Designs.
(a) "Sun Trademarks" means all names, marks, logos, designs, trade dress and
other brand designations used by Sun in connection with Products. Customer may
refer to Products by the associated Sun Trademarks, provided that such reference
is not misleading and complies with the then current Sun Trademark and Logo
Policies. Customer shall not remove, alter, or add to any Sun Trademarks, nor
shall it co-logo Products. Customer is granted no right, title or license to, or
interest in, any Sun Trademarks. Customer acknowledges Sun's rights in Sun
Trademarks and agrees that any use of Sun Trademarks by Customer shall inure to
the sole benefit of Sun. Customer agrees not to (i) challenge Sun's ownership or
use of, (ii) register, or (iii) infringe any Sun Trademarks, nor shall Customer
incorporate any Sun Trademarks into Customer's trademarks, service marks,
company names, internet addresses, domain names, or any other similar
designations. If Customer acquires any rights in any Sun Trademarks by operation
of law or otherwise, it will immediately at no expense to Sun assign such rights
to Sun along with any associated goodwill, applications, and/or registrations.
(b) Customer may use the special program logo, if any, applicable to Customer's
channel (e.g. Authorized Reseller Logo) only: (i) as shown in the artwork
provided by Sun; (H) in pre-sale marketing materials and
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advertising, but not on goods, packaging, product labels, documentation or other
materials distributed with Products; (iii) in a manner no more prominent than
Customer's corporate name and logo; and (iv) otherwise in accordance with the
then current Sun Trademark and Logo Policies.
2.6 Intended Purpose. The intended purpose of the Binary Products is for use
with Customer's Products. Customer shall market and distribute directly or
indirectly through its Distributors each Binary Product for use only to End
Users of Customer's Product(s). Customer's product packaging for the Binary
Products shall clearly indicate this intended purpose.
2.7 Governmental Approvals. Customer shall, at its own expense, obtain and
arrange for the maintenance in full force and effect of all governmental
approvals, consents, licenses, authorizations, declarations, filings and
registrations as may be necessary for the performance of the terms and
conditions of the Agreement, including without limitation, fair trade approvals,
under all laws, regulations and other legal requirements within the
jurisdictions that Customer distributes the Products that apply to this
Agreement, including tax and foreign exchange legislation.
2.7 No Other Rights. Except as expressly stated herein and in the Attachment(s)
hereto, no other license, right or interest is granted to Customer for any other
purpose.
3.0 TERM AND TERMINATION
3.1 Term. This Agreement shall commence on: (i) the date of its execution by Sun
or (ii) where this Agreement will be void or Sun will be liable for a penalty
without an approval, registration, filing as referred to in Section 2.7,or Sun
obtaining the necessary US eport license, the date of such approval,
registration, filing, or US export license, whichever occurs later (the
"Effective Date") and shall have an initial term of three (3) years. Thereafter,
this Agreement shall be automatically renewed for successive one (1) year terms
(with a maximum of two (2) subsequent terms), unless one party notifies the
other party in writing at least sixty (60) days before the end of the then
current term stating that it wishes to terminate this Agreement; whereupon, this
Agreement shall terminate at the end of the then current term.
3.2 Termination. If either party fails to comply with any of the terms and
conditions of this Agreement, the other party may terminate this Agreement upon
thirty (30) days written notice to the breaching party specifying any such
breach, unless the breach specified therein has been remedied within such thirty
(30) day period. In the event of Customer's breach, Sun may terminate this
Agreement in its entirety or as to any individual Product(s).
3.3 Termination for Insolvency. Either party may terminate this Agreement
immediately in the event that the other party ceases to conduct its operations
in the normal course of business, or files for or becomes the subject of a
Bankruptcy petition, or is placed in receivership, or attempts to assign this
Agreement to creditors or otherwise without prior written consent of the other
party.
3.4 Effect of Termination.
(a) For Breach by Customer: Upon termination of this Agreement for breach by
Customer, Customer shall discontinue issuing BCL's for the Products, shall
return all Products and all copies thereof in its possession to Sun or destroy
all Products and all copies thereof in Customer's possession and certify in
writing by an officer of Customer that such Products and all copies thereof were
so destroyed.
(b) For Other Than Breach by Customer: Upon termination of this Agreement for
all other reasons, Customer shall discontinue issuing BCL's for the Products.
Customer and its Distributors may continue to use the Products in source code
form only in accordance with the terms and conditions hereunder solely for
maintenance services for then-existing customers and only for so long as
Customer and its Distributors are, at the time of termination, contractually
obligated to provide such maintenance services to such customers. In no event
shall Customer retain source code for more than three (3) years after the
effective date of termination.
(c) BCL's for the Products issued prior to the effective date of
termination shall continue in accordance with their terms and conditions.
Customer's obligation to pay royalties accrued prior to the termination of
this Agreement shall not terminate.
3.5 No Liability For Termination. To the full extent allowed by any applicable
law except as expressly provided in this Agreement, Customer agrees that it
shall have no rights to damages or indemnification of any nature due to any
expiration or rightful termination of this Agreement by Sun pursuant to its
terms. The foregoing restriction shall include without limitation, commercial
severance pay whether by way of loss of future profits, expenditure for
promotion of the Products, payment for goodwill generated or other commitments
made in connection with the business contemplated by this Agreement or other
similar matters. Customer will not be entitled under local law or otherwise to
receive any payment from Sun, whether for actual, consequential, indirect,
special or incidental damages, costs or expenses, whether foreseeable or
unforeseeable, any right to which Customer hereby waives and disclaims. Customer
EXPRESSLY WAIVES AND RENOUNCES ANY CLAIM TO COMPENSATION OR INDEMNITIES FOR ANY
TERMINATION OF BUSINESS RELATIONSHIP BY A FOREIGN BUSINESS ENTITY, WHICH MAY
EXIST UNDER THE LAWS OF ANY APPLICABLE JURISDICTION.
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3.6 Survival. Rights and obligations under this agreement which by their nature
should survive, will remain in effect after termination or expiration hereof.
4.0 PAYMENTS; TAXES; ACTIVITY LEVEL
4.1 Payment Terms. Except as otherwise specified in the Attachments, and in
consideration of the rights granted to Customer hereunder, Customer shall pay to
Sun the royalties for each Royalty Bearing Event for the applicable Product(s)
and Derivative Works thereof (as defined in Exhibit A, as applicable) licensed
or sublicensed by Customer on a quarterly basis within thirty (30) days
following the end of the preceding calendar quarter, accompanied by a report
pursuant to Section 5.1 below. License fees due Sun hereunder shall be paid to
Sun as set forth herein. In the case of Packaged Product or block serial
numbers, Customer shall pay amounts due to Sun within thirty (30) days from
Sun's invoice date. Sun's acceptance of this Agreement and any associated
order(s) does not imply Sun's approval of an open line of credit. Credit terms
are established by Sun based in part upon Customer's financial and payment
records. Sun reserves the right to place Customer on credit hold in the event
Customer's financial condition ceases to warrant the credit terms specified
above.
4.2 Taxes.
(a) Subject to Section 4.2(b), all amounts payable by Customer under this
Agreement are exclusive of any Tax, levy or similar governmental charge that may
be assessed by any jurisdiction, whether based on gross revenue, the delivery,
possession or use of the Products, the execution or performance of this
Agreement or otherwise, except for net income, net worth or franchise taxes
assessed on Sun. If, under the local law, Customer is required to withhold any
Tax on such payments, then the amount of the payment actually remitted to Sun
will be net of all Taxes. Customer will promptly furnish Sun with the official
receipt of payment of these Taxes to the appropriate taxing authority. Customer
will pay all other Taxes, levies or similar governmental charges or provide Sun
with a certificate of exemption acceptable to the taxing authority.
(b) Notwithstanding Section 4.2(a), Customer may deduct from payments any income
tax or tax of a similar nature imposed by any non-United States government
("government income tax") on the income of Sun from such payment and actually
paid by Customer for the account of Sun. In the event that Customer deducts any
such income tax from any such payment, Customer shall furnish Sun with evidence
acceptable to Sun and to the United States Government to sufficiently establish
that such government income tax has been paid for the account of Sun.
4.3 Updates, Version Releases and Product Releases. The fees specified in this
Agreement are for the then current release at time of execution of this
Agreement of the Products only. Updates, Version Releases and Product Releases
may require additional payment and/ or additional terms and conditions
hereunder. Sun shall have the right, at its sole discretion and without
incurring any liability to Customer, to modify a Product or discontinue its
manufacture, sale or support and will provide Customer with thirty (30) days
prior notice. Such change shall not require Customer's approval.
4.4 Price Changes. Sun reserves the right to change the Price List, discount
schedule and/or royalties for any Product at any time. Price decreases will take
effect immediately upon announcement. In the event of a price increase, Sun
shall provide Customer with thirty (30) days prior notice. Such change shall not
require Customer's approval. If, during the term of this Agreement, Sun
decreases the royalty rate for any Binary Product(s), Customer will be allowed a
credit toward new orders for any Binary Product(s) placed within thirty (30)
days of receiving such notice from Sun. This credit will be equal to the
difference between the new royalty rate and the previous royalty rate for all
such unopened Binary Product(s) in Customer's inventory as of the date of such
notice which were shipped to Customer not more than ninety (90) days before such
notice and whose serial numbers are submitted to Sun with Customer's written
request for credit. All orders for such Binary Product(s) scheduled for shipment
or in transit to Customer at the time of such notice shall be adjusted to the
decreased royalty rate.
4.5 Minimum Payments. Customer agrees to place a prepaid, firm, non-cancelable
stocking order for Packaged Product and/or a minimum, non-refundable prepayment
for Master Media in the amount specified for the Annual Activity Level. Such
stocking order and/or minimum prepayment must be provided to Sun upon execution
of the Agreement by Customer. The stocking order shall request shipment of all
Product(s) ordered thereunder within thirty (30) days of the execution date of
the Agreement by Customer, and such shipment shall not be rescheduled by
Customer.
4.6 Customer's Products. Customer shall list in its revenue reports to Sun
pursuant to Section 5.0 of the Agreement, Customer's Products shipped in
conjunction or associated with each Binary Product hereunder.
5.0 RECORDS; AUDIT REQUIREMENTS; FORECAST
5.1 Record Keeping. Customer shall maintain for a three (3) year period revenue
records sufficient to determine that Customer is in compliance with the
Agreement as it relates to the correctness of the royalties, fees and other
payments hereunder. Customer shall provide to Sun along with the payments
specified hereunder quarterly revenue reports, in the English language which
shall include, at a minimum, the following information: Product names,
Customer's Product names, number of units shipped, and royalty amounts due Sun.
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5.2 Audit Requirements. The following audit provision shall continue throughout
the term of this Agreement and shall survive the termination of this Agreement
insofar as applicable to payment obligations accrued prior to such termination.
(a) Right to Audit. Sun shall have the right to audit the records and accounts
of Customer required to be kept in accordance with this Agreement. The auditor
shall be adequately bound to keep confidential all Confidential Information of
Customer learned during the course of or pursuant to the audit. Any such audit
shall be performed only during Customer's normal business hours, no more
frequently than once per calendar year, and shall be performed in such a manner
as to avoid unreasonable interference with Customer's business operations; and
the auditor shall be limited to reporting the adequacy of Customer's records and
accounts, including, but not limited to, whether Customer is in compliance with
the terms of this Agreement and the amount, if any, of underpayment or
overpayment of the amounts due Sun pursuant to this Agreement. Except as
expressly provided in Section 5.2(b), Sun shall bear all costs and expenses
associated with the exercise of its right to audit.
(b) Errors in Payment. In the event that any errors in payment shall be
determined, such errors shall be corrected by appropriate adjustment in payment
(plus interest at one and one-half percent (1 - 1/2%) per month or the highest
rate permitted by law) for the quarterly period during which the error is
discovered. In the event of underpayment of more than five percent (5%) of the
amount due for that period (i) Customer shall reimburse Sun the reasonable
charges of the audit that identified the underpayments, and (ii) Sun shall have
the right to audit, at its sole discretion, in ninety (90) day intervals until
Customer becomes fully compliant with the terms and conditions of this
Agreement.
5.3 Forecast. On the first business day of each calendar quarter, Customer shall
provide Sun a rolling six (6) month non-binding forecast of Customer's projected
shipments for each Binary Product licensed hereunder.
6.0 CONFIDENTIAL INFORMATION If Sun desires that information provided to
Customer under this Agreement be held in confidence, Sun will identify the
information as confidential or proprietary. Customer may not disclose Sun's
confidential or proprietary information and may use it only for purposes
specifically contemplated in this Agreement. Sun will treat tangible business
and financial information of Customer that has been previously identified as
confidential, with the same degree of care as it does its own similar
information. The foregoing obligations do not apply to information which:
(i) is or becomes known by recipient without an obligation to maintain its
confidentiality; (ii) is or becomes generally known to the public through no act
or omission of recipient, or (iii) is independently developed by recipient
without use of confidential or proprietary information. This Section 6.0 will
not affect any other confidential disclosure agreement between the parties.
7.0 WARRANTIES
7.1 Customer's Limited Warranty. Sun warrants that for a period of ninety (90)
days from the date of delivery to Customer: (i) the media on which the Product
is furnished will be free of defects in materials and workmanship under normal
use; and (ii) the Product contains the features described in the Price List.
Except for the foregoing, to the full extent allowed by applicable law, the
Product is provided "AS IS". Customer's exclusive remedy and Sun's entire
liability under this limited warranty will be at Sun's option to repair or
replace the Product.
7.2 Aircraft Product and Nuclear Applications. Products are not designed or
intended for use in on-line control of aircraft, air traffic, aircraft
navigation or aircraft communications; or in the design, construction, operation
or maintenance of any nuclear facility. Sun disclaims any express or implied
warranty of fitness for such uses. Customer represents and wan-ants that it will
not use or resell Products for such purposes and that it will use its best
efforts to ensure that its Distributors and End Users of Products are provided
with a copy of the foregoing notice.
7.3 No Other Warranties. Unless specified in this Agreement, all express or
implied conditions, representations and warranties, including any implied
warranty or merchantability, fitness for a particular purpose, or
non-infringement, are disclaimed, except to the extent that such disclaimers are
held to be legally invalid.
8.0 LIMITATION OF LIABILITY
TO THE FULL EXTENT ALLOWED BY ANY APPLICABLE LAW, EXCEPT FOR EXPRESS
UNDERTAKINGS UNDER SECTION 7.2 AND OBLIGATIONS TO DEFEND UNDER SECIION 9.0 OF
THIS AGREEMENT, EACH PARTY'S LIABILITY TO THE OTHER FOR CLAIMS RELATING TO THIS
AGREEMENT, WHETHER FOR BREACH OR IN TORT, SHALL BE LIMITED TO ONE HUNDRED
PERCENT (100%) OF THE AMOUNT HAVING THEN ACTUALLY BEEN PAID BY CUSTOMER TO SUN
FOR ALL COPIES LICENSED HEREUNDER FOR THE PARTICULAR PRODUCT GIVING RISE TO SUCH
CLAIM, IF ANY. THE FOREGOING LIMITATION DOES NOT REDUCE CUSTOMER'S OBLIGATION TO
PAY SUN THE LICENSE FEES DUE AND OWING FOR THE PRODUCT(S). IN NO EVENT WILL
EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT
(INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, USE, DATA, OR OTHER ECONOMIC
ADVANTAGE), HOWEVER IT ARISES, WHETHER FOR BREACH OF THIS AGREEMENT, INCLUDING,
BUT NOT LIMITED TO,
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BREACH OF WARRANTY, OR IN TORT, EVEN IF THAT PARTY HAS BEEN PREVIOUSLY ADVISED
OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY OF
CUSTOMER TO SUN SHALL NOT APPLY IF CUSTOMER'S ACTIONS OR INACTION RESULT IN THE
UNAUTHORIZED DISCLOSURE, DISTRIBUTION OR USE OF THE PRODUCT(S) OR CONFIDENTIAL
INFORMATION.
9.0 INTELLECTUAL PROPERTY CLAIMS
9.1 Sun shall defend at its own expense without limitation and, in addition,
shall indemnify Customer from damages, liabilities, costs and expenses actually
awarded against Customer up to the amount stated in Section 8.0, as a result of
any judgment or proceeding against Customer in which it is determined that (i)
Sun does not have the right to grant the license(s) given to Customer hereunder,
excluding trademark rights; or (ii) that the marketing or use of any Sun written
code within the Product(s) infringe Berne Convention copyrights or patent rights
of third parties in any country where Sun Microsystems, Inc. has a subsidiary.
In the event Sun elects to avoid litigation relating to the foregoing and settle
any such claims, Sun will pay the settlement amount and obtain a release as to
all such claims against Customer.
9.2 Customer shall defend at its expense without limitation and, in addition,
shall indemnify Sun from damages, liabilities, costs and expenses actually
awarded against Sun up to the amount stated in Section 8.0, as a result of
actions or omissions set forth in Section 9.5 (i) through (iv). In the event
Customer elects to avoid litigation relating to the foregoing and settle any
such claims, Customer will pay the settlement amount and obtain a release as to
all such claims against Sun.
9.3 The indemnification obligations set forth in Sections 9.1 and 9.2 above
shall be conditioned upon the indemnified party (i) notifying the indemnifying
party within thirty (30) days of notice of a claim of infringement; (ii)
providing full cooperation and assistance to the indemnifying party at the
indemnifying party's expense; and (iii) providing the indemnifying party full
authority to manage the defense or settlement of the claim.
9.4 Should Products become or, in Sun's opinion, be likely to become the subject
of a claim of infringement pursuant to Section 9.1 above Sun, at its option may
(i) procure for Customer, at no additional cost to Customer, the right to
continue to use the Products, (ii) replace or modify the Products, at no
additional cost to Customer, to make such Product(s) non-infringing, provided
that substantially similar functionality and performance is obtained with the
replacement or modified Products, or (iii) if the right to continue to use
cannot be procured under commercially reasonable terms, or such Products cannot
be replaced or modified at commercially reasonable time and expense, terminate
the license to use such Products and refund to Customer over five (5) years in
equal monthly payments the amounts that Customer refunds to its customers for
such Product(s) due to the claim of infringement, up to the maximum amounts paid
by Customer to Sun under this Agreement for such Product(s). Sun's performance
of (i), (ii) or (iii) above shall be Customer's sole and exclusive remedies.
9.5 Notwithstanding the foregoing, Sun shall have no obligation to indemnify and
defend Customer or to pay costs, damages or attorneys' fees for any claim based
upon (i) the combination, operation, or use by Customer of Products with other
equipment, code, programs or data not supplied by Sun if such infringement would
have been avoided but for the combination, operation or use of the Products with
other equipment, code, programs or data; or (ii) use by Customer of other than
the then latest version of a Product, if such infringement could have been
avoided by the use of the latest version of the Product and such latest version
had been made available to Customer; or (iii) modifications by Customer of the
Products in the event such infringement is caused by such modifications; or (iv)
use by Customer outside the scope of the granted license(s).
10.0 MAINTENANCE AND SUPPORT
10.1 This Agreement does not include maintenance and support of Products by Sun.
Sun's standard support offerings are available under a separate support
agreement.
10.2 At a minimum, Customer shall provide technical support to its Distributors
and End-Users including the following: (i) assisting with installation,
operation, and use of the Products; (ii) preparing all Error reports and
conducting necessary call backs; and (iii) furnishing Error Corrections provided
to Customer by Sun. These tasks may be undertaken on Customer's behalf by
Distributors for End-Users.
11.0 GOVERNMENT CONTRACTS
11.1 U.S. Governments
(a) If procured by, or provided to, the U.S. Government, use, duplication, or
disclosure of technical data is subject to restrictions as set forth in FAR
42.227-14(g)(2), Rights in Data - General (June 1987); and, for computer
software and computer software documentation, FAR 52.227-19, Commercial Computer
Software - Restricted Rights (June 1987). However, if procured by, or provided
to, the U. S. Department of Defense ("DOD"), use, duplication, or disclosure of
technical data is subject to DFARS 252.227-7015(b), Technical Data - Commercial
Items (June 1995); and, for computer software and computer software
documentation, as specified in the License under which the computer software was
procured pursuant to DFARS 227.7202-3(a). For U.S. Government agencies other
than the DOD with solicitations issued prior to October 1, 1995, all software
and technical data are provided
8
with "Restricted Rights" as defined in FAR 52.227-19, and "Limited Rights" as
defined in FAR 52.227-14, Rights in Data - General, respectively, and for DOD,
as defined in DFAR 252,227-7013, Rights in Technical Data and Computer Software
(Oct 1988). Customer shall not provide Software Product nor technical data to
any third party, including the U.S. Government, unless such third party accepts
the same restrictions. Customer is responsible for ensuring that proper notice
is given to all such third parties and that the Software Product and technical
data are properly marked. Customer shall indemnify Sun for any claims or damages
arising from any claim by the U.S. Government to more than Restricted Rights in
and to the Software Product(s) resulting from Customer's failure to provide a
Restricted Rights legend as required herein. Any failure by Sun to affix a
Restricted Rights legend on the Software Product(s) shall not be deemed to
constitute a waiver of any limitation on Customer's rights imposed by this
Agreement.
(b) Under no circumstances shall Sun be obligated to comply with any
requirements imposed by the U.S. Government regarding submission of or the
request for exemption from submission of cost or pricing data or cost accounting
requirements for any distribution or license of Products that would require
compliance by Sun with U.S. Governmental requirements relating to cost or
pricing data or cost accounting requirements.
11.2 Other Sovereign Governments
At its own cost and expense, Customer and its Distributors will take all
necessary steps in making proposals and agreements with sovereign governments
other than the U.S. Government which involve Products and End User Documentation
to ensure that Sun's proprietary rights in Products and End User Documentation
receive the reasonably necessary protection available from such foreign
governments for commercial computer software and related documentation developed
at private expense."
12.0 MISCELLANEOUS
12.1 Force Majeure. A party is not liable under this Agreement for
non-performance caused by events or conditions beyond that party's control if
the party makes reasonable efforts to perform. This provision does not relieve
Customer of its obligation to make payments then owing.
12.2 Severability. In the event that any part of this Agreement is held to be
unenforceable, in whole or in part, such holding will not affect the validity of
the other parts of this Agreement, unless Sun deems the unenforceable part to be
essential to this Agreement, in which case Sun may terminate this Agreement,
effective immediately upon notice to Customer.
12.3 Relationship of the Parties. This Agreement is not intended to create a
relationship such as a partnership, franchise, joint venture, agency, or
employment relationship. Neither party may act in a manner which expresses or
implies a relationship other than that of independent contractor, nor bind the
other party.
12.4 Governing Law. Any action related to this Agreement will be governed by
California law and controlling U.S. federal law. No choice of law rules of any
jurisdiction will apply.
12.5 Import and Export Laws. All Products and technical data delivered under
this Agreement are subject to U.S. export control laws and may be subject to
export or import regulations in other countries. Customer agrees to comply
strictly with all such laws and regulations and acknowledges that it has the
responsibility to obtain such licenses to export, re-export or import as may be
required after delivery to Customer.
12.6 Assignment. Neither party may assign or otherwise transfer any of its
rights or obligations under this Agreement, without the prior written consent of
the other party, except that Sun may assign its right to payment and may assign
this Agreement to an affiliated company.
12.7 Change of Control. In the event of the direct or indirect taking over or
assumption of control of Customer or of substantially all of its assets by any
government, governmental agency or other third party, Sun may terminate this
Agreement upon written notice to Customer.
12.8 Notices. All written notices required by this Agreement must be delivered
in person or by means evidenced by a delivery receipt and will be effective upon
receipt.
12.9 Waiver or Delay. Any express waiver or failure to exercise promptly any
right under this Agreement will not create a continuing waiver or any
expectation of non-enforcement.
12.10 No Rights in Third Parties. This Agreement is made for the benefit of the
parties hereto, and not for the benefit of any third parties unless otherwise
stated herein or agreed to by the parties.
12.11 Counterparts. This Agreement may be executed in one or more counterparts,
each of which will be deemed an original, but all of which will constitute but
one and the same instrument.
12.12 Headings. The headings and captions used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
12.13 Construction. This Agreement has been negotiated by the parties hereto and
by their respective counsel. This Agreement will be fairly interpreted in
accordance with its terms and without any strict construction in favor of or
against either party. The original of this Agreement has been written in
English, and such version shall be the governing version of the Agreement. To
the extent allowed under applicable law, Customer waives any right it may have,
if any, under any law or regulation to have this Agreement written in a language
other than English.
9
12.14 Orders. This Agreement does not constitute an order for Products, but
rather a commitment to order Products as set forth in the Attachments. Purchase
orders for Products shall be submitted to Sun by Customer pursuant to the terms
of this Agreement and shall be subject to a minimum of Five Thousand Dollars
($5,000) for Packaged Product. Any terms or conditions set forth on any purchase
order, check, or other document of Customer shall have no force or effect
whatsoever. Customer further acknowledges that it does not take title to the
Product, with the exception of the media and printed materials, but rather
licenses the Products pursuant to the terms and conditions of this Agreement.
12.15 Deliveries. Products and Documentation shall be delivered F.O.B. Sun's
designated shipping facility unless otherwise agreed to by the parties in
writing. Sun may make partial deliveries and such deliveries will not relieve
Customer of its obligation to accept the remainder of that order in whole or in
part. Sun may allocate Products to fairly accommodate orders received by Sun
from all customers at anytime demand exceeds the available supply.
12.16 Equitable Relief. Because the licenses granted under this Agreement are
personal and unique, and because Customer will have access to and become
acquainted with confidential and proprietary information of Sun, the
unauthorized use or disclosure of which would cause irreparable harm and
significant injury which would be difficult to ascertain and which would not be
compensable by damages alone, both parties agree that, in addition to any and
all legal remedies available to Sun for Customer's breach of this Agreement, Sun
shall be entitled to avail itself of actions against Customer and/or third
parties for seizure and injunctive relief. If an unauthorized use or disclosure
occurs, Customer will promptly notify Sun and take, at Customer's expense, all
steps which are necessary to recover the Product and to prevent its subsequent
unauthorized use or dissemination.
12.17 Entire Agreement. This Agreement is the parties' entire agreement relating
to its subject matter. It supersedes all prior or contemporaneous oral or
written communications, proposals, conditions, representations nd warranties and
prevails over any conflicting or additional terms of any quote, order,
acknowledgment, or other communication between the parties relating to its
subject matter during the term of this Agreement. No modification to this
Agreement will be binding, unless in writing and signed by an authorized
representative of each party.
10
ATTACHMENT I
END USER BINARY CODE LICENSE
SUN IS WILLING TO LICENSE THE ACCOMPANYING SOFTWARE TO YOU ONLY UPON THE
CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT.
READ THE TERMS AND CONDITIONS OF THIS LICENSE CAREFULLY BEFORE OPENING THE
SOFTWARE MEDIA PACKAGE. BY OPENING THE SOFTWARE MEDIA PACKAGE, YOU AGREE TO THE
TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY
THIS AGREEMENT, RETURN THE SOFTWARE UNUSED WITHIN FIFTEEN (15) DAYS OF PURCHASE
FOR A REFUND OF THE LICENSE FEE PAID.
1. LICENSE TO USE. Customer is granted a non-exclusive and non-transferable
license ("License") for the use of the accompanying binary software in
machine-readable form, together with accompanying documentation ("Software"), by
the number of users and the class of computer hardware for which the
corresponding fee has been paid.
2. LICENSE TO DEVELOP. This License authorizes Customer to develop software
programs utilizing the Software. However, in the event that Customer desires to
develop software programs which incorporate portions of Software ("Developed
Programs"), the following provisions apply, to the extent applicable: Developed
Programs are to have an application programming interface that is the same as
Software; fonts within Software are to remain associated with their toolkit or
server; Developed Programs may be used and distributed, but only on computer
equipment licensed to utilize Software, unless an additional Developer's License
Agreement has been executed by Sun and Customer; Customer is not licensed to
develop printing applications or print unless Customer has secured a valid
printing license; incorporation of portions of Motif(R) in Developed Programs
may require reporting of copies of Developed Programs to Sun; and Customer
agrees to indemnify, hold harmless and defend Sun and its Licensors from and
against any claims or suits, including attorneys' fees, which arise or result
from distribution or use of Developed Programs to the extent such claims or
suits arise from the development performed by Customer.
3. RESTRICTIONS. Software is copyrighted and title to all copies is retained by
Sun and/or its licensors. Customer shall not make copies of Software, other than
a single copy of Software for archival purposes and, if applicable, Customer
may, for its internal use only, print the number of copies of on-line
documentation for which the applicable fee has been paid, in which event all
proprietary rights notices on Software shall be reproduced and applied. Except
as specifically authorized in Paragraph 2 above or unless enforcement of this
provision is prohibited by applicable law, Customer shall not modify, decompile,
disassemble, decrypt, extract, or otherwise reverse engineer Software. SOFTWARE
IS NOT DESIGNED OR LICENSED FOR USE IN ON-LINE CONTROL EQUIPMENT IN HAZARDOUS
ENVIRONMENTS SUCH AS OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR
CONTROL, OR DIRECT LIFE SUPPORT MACHINES.
4. CONFIDENTIALITY. Software is confidential and proprietary information of Sun
and/or its licensors. Customer agrees to take adequate steps to protect Software
from unauthorized disclosure or use.
5. LIMITED WARRANTY. Sun warrants that for a period of ninety (90) days from the
date of purchase, as evidenced by a copy of the receipt; (i) the media on which
Software is furnished will be free of defects in materials and workmanship under
normal use; and (ii) the Software contains the features described in the Sun
price list. Except for the foregoing, the Software is provided "AS IS". This
limited warranty extends only to Customer as the original licensee. Customer's
exclusive remedy and Sun's entire liability under this limited warranty will be
at Sun's option to repair or replace the Software.
6. DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFIED IN THIS LICENSE, ALL EXPRESS OR
IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW.
7. LIMITATION OF LIABILITY. IN NO EVENT WILL SUN BE LIABLE FOR ANY LOST REVENUE,
PROFIT OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE
DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF
THE USE OF OR INABILITY TO USE SOFTWARE, EVEN IF SUN HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. In no event shall Sun's liability to Customer,
whether in contract, tort (including negligence), or otherwise, exceed the
license fee paid by Customer for Software. The foregoing limitations shall apply
even if the above stated warranty fails of its essential purpose.
8. TERMINATION. This license is effective until terminated. Customer may
terminate this License at any time by destroying all copies of Software
including any documentation. This License will terminate immediately without
notice from Sun if Customer fails to comply with any provision of this License.
Upon termination, Customer must destroy all copies of Software.
11
9. EXPORT REGULATIONS. Software, including technical data, is subject to U.S.
export control laws, including the U.S. Export Administration Act and its
associated regulations, and may be subject to export or import regulations in
other countries. Customer agrees to comply strictly with all such regulations
and acknowledges that it has the responsibility to obtain licenses to export,
re-export, or import Software.
10. U.S. GOVERNMENT RESTRICTED RIGHTS. If procured by, or provided to, the U.S.
Government, use, duplication, or disclosure of technical data is subject to
restrictions as set forth in FAR 42.227-14(g)(2), Rights in Data - General (June
1987); and, for computer software and computer software documentation, FAR
52.227-19, Commercial Computer Software - Restricted Rights (June 1987).
However, if procured by, or provided to, the U. S. Department of Defense
("DOD"), use, duplication, or disclosure of technical data is subject to DFARS
252.227-7015(b), Technical Data Commercial Items (June 1995); and, for computer
software and computer software documentation, as specified in the License under
which the computer software was procured pursuant to DFARS 227.7202-3(a). For
U.S. Government agencies other than the DOD with solicitations issued prior to
October 1, 1995, all software and technical data are provided with "Restricted
Rights" as defined in FAR 52.227-19, and "Limited Rights" as defined in FAR
52.227-14, Rights in Data - General, respectively, and for DOD, as defined in
DFAR 252,227-7013, Rights in Technical Data and Computer Software (Oct
1988).Use, duplication, reproduction or disclosure by the Government is subject
to such restrictions or successor provisions. Contractor/ Manufacturer is: Sun
Microsystems, Inc., 000 Xxx Xxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000.
11. GOVERNING LAW. This Agreement is made under, shall be governed by and
construed in accordance with the laws of the State of California, U.S.A.,
excluding its choice of law provisions.
12. SEVERABILITY. If any of the above provisions are held to be in violation of
applicable law, void, or unenforceable in any jurisdiction, then such provisions
are herewith waived to the extent necessary for the License to be otherwise
enforceable in such jurisdiction. However, if in Sun's opinion deletion of any
provisions of the License by operation of this paragraph unreasonably
compromises the rights or liabilities of Sun or its licensors, Sun reserves the
right to terminate the License and refund the fee paid by Customer as Customer's
sole and exclusive remedy.
13. INTEGRATION. This Agreement is the entire agreement between Customer and Sun
relating to Software and: (i) supersedes all prior or contemporaneous oral or
written communications, proposals and representations with respect to its
subject matter; and (ii) prevails over any conflicting or additional terms of
any quote, order, acknowledgment, or similar communication between the parties
during the term of this Agreement. No modification to the Agreement will be
binding, unless in writing and signed by a duly authorized representative of
each party.
12
ATTACHMENT 2
BINARY PRODUCT/ACTIVITY LEVEL MATRIX
Binary Product versions licensed hereunder shall be the then current release at
time of execution of this Agreement. Binary Product discount categories shall be
as described in the Price List.
1. BINARY PRODUCTS
A. SUN ANNUAL ACTIVITY LEVEL/DISCOUNT MATRIX
Discount(s) for the Binary Products described in Section I.B. below are determined through assessing
Customer's Annual Activity Level for all Binary Products provided under this Agreement.
1. Annual Net Activity Level: less than $299,000.00
Quarterly Sales Targets: Q1:$40,000.00
Q2:$40,000.00
Q3:$40,000.00
Q4:$40,000.00
2. Initial Prepayment/Initial Stocking Order: n/a - renewal
3. Discounts
Customer Base Discount*: PP: Cat A 40 % Cat B n/a % Cat C n/a %
(Includes a 10% required bundling discount)
Value Added Discount [maximum of twelve (12) percent]:
Added
Discount
Reseller Recruitment and Management: 6% 6%
Master Media manufacturing of OEM'd product: 4% 4%
SI/Consulting or Vertical Application
Development and/or Project Management: 4% 4%
Dedicated/trained Technical Support person(s): 2% 2%
Total Value Added Discount (maximum 12%): 12%
TOTAL CUSTOMER DISCOUNT RATE: PP: Cat A 52 % Cat B n/a % Cat C n/a %
== === ===
B. PRODUCT MATRIX
Product(s) provided to Customer under this Attachment 2 shall be the
initialed Binary Products as described in the Price List
Solaris 2.x SPARC Operating Environment ___________
Solaris 2.5.1, 2.6 and Solaris 7 SPARC Customer
(binaries only) (Initials)
