1
Certain confidential portions of this Exhibit were omitted by means of blackout
of the text (the "Xxxx"). This Exhibit has been filed separately with the
Secretary of the Commission without the Xxxx pursuant to the Company's
Application requesting Confidential Treatment under Rule 406 under the
Securities Act.
EXHIBIT 10.32
SILICON GRAPHICS, INC.
VALUE-ADDED RESELLER AGREEMENT
This VALUE-ADDED Reseller Agreement is made between Molecular
Simulations, Inc., a corporation organized under the laws of Delaware (identify
by state or country) ("Reseller"), having a place of business at: 0000
Xxxxxxxx Xxxx, Xxx Xxxxx, XX 00000 and Silicon Graphics, Inc. a Delaware
corporation ("SGI"), having a place of business at 0000 Xxxxx Xxxxxxxxx Xxxx.,
Xxxxxxxx Xxxx, XX 00000-0000, acting on its own behalf and on behalf of
Silicon Graphics World Trade Corporation ("WTC") (see Section 1.0 below for
definitions of capitalized terms used herein) and Subsidiaries.
SGI acts hereunder as a representative for WTC and for each Subsidiary
only for the purpose of execution of this Agreement for purchases and licenses
of Product made for resale to End Users outside the U.S. and to enable
individual purchase orders of Reseller or Reseller's subsidiaries to be placed
and concluded directly with a Subsidiary or a Distributor operating in the
End-User's country. If there is no Subsidiary or Distributor in such country,
then Reseller or Reseller's Subsidiary shall place orders for that country with
WTC pursuant to this Agreement. Reseller desires to purchase SG computer
products, including computer workstations, servers and/or subsystems and
associated accessories and option items, for resale to End Users. SG hereby
agrees to provide certain of its products to Reseller for such purpose, under
the terms and conditions of sale and distribution set forth in this Agreement.
1. DEFINITIONS. As used in this Agreement:
1.1 "APPLICATION" means collectively or singularly, as the case
may be Reseller's proprietary application software product(s), identified on
Attachment B and that comply with Reseller's certification set forth in Section
3.2 below.
1.2 "ANNUAL VOLUME COMMITMENT" means the tier designated by the
parties under the caption "Annual Volume Commitment" on Attachment B and
reevaluated by SG pursuant to Section 6.7 below.
1.3 "ASSIGNED TRADING AREA" means the geographic area specified on
Attachment E in which Reseller is authorized to sell Product hereunder. The
Assigned Trading Area may be expanded from time to time upon the mutual written
agreement of SG and Reseller: provided, however, that Reseller submits a
Business Plan acceptable to SG therefor.
1.4 "BASE PRICE" means the price for Product identified in Section
6.1 below.
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1.5 "BUSINESS PLAN" means the business plan that sets forth
Reseller's plans for marketing, selling, and servicing Product, and which
Reseller shall submit with its application hereunder or pursuant to Section
5.0(n), which SGI has approved.
1.6 "CONFIDENTIAL INFORMATION" means information and/or materials
containing information which concern, without limitation, SG's or Reseller's
business, plans, customers, technology or products, and are proprietary and/or
confidential in nature.
1.7 "DEVELOPER PROGRAM" means SG's developer support program, as
may be amended from time to time.
1.8 "DISTRIBUTOR" means any distributor authorized by WTC to
resell Products.
1.9 "EFFECTIVE DATE" means the date SGI signs this Agreement on
the signature page hereof, on which date the term of this Agreement will
commence.
1.10 "END USER(S)" means Reseller's customers of Product, which
shall be the ultimate end users of Product (i.e., Reseller may not market or
distribute Product through intermediates such as dealers or other
distributors). End Users shall not include any Reseller agent or any agency,
department, or entity of the U.S. Government, unless previously agreed by SGI
in writing.
1.11 "END USER WARRANTY" means SG's standard limited end warranty
for Equipment in effect on the date Equipment is initially delivered to
Reseller.
1.12 "EQUIPMENT" means hardware products offered by SG hereunder,
including, but not limited to Workstations, servers, and accessories, options
and spare parts therefor.
1.13 "LICENSE" means SG's standard from End User Software License
Agreement, and may be amended by SG from time to time, the current form of
which is attached hereto as Attachment A.
1.14 "LICENSED SOFTWARE" means software products offered by SG
hereunder, and related documentation and manuals.
1.15 "PRODUCT" means any combination of Equipment and Licensed
Software.
1.16 "RESELLER PROGRAM" means SG's marketing program for SG's
value-added resellers of Product in the U.S., Canada, Japan and certain
European countries. Participants in the Reseller Program are automatically
participants in SG's Development Program.
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1.17 "RESELLER SUBSIDIARY(IES)" means any entity of which fifth
percent (50%) or more of the voting rights are owned or controlled, directly or
indirectly, by Reseller: provided, however, that such entity shall be deemed
to be a Reseller Subsidiary only for so long as such ownership or control
exists.
1.18 "RESELLER TRANSFER OF OWNERSHIP CARD" is a form which
Reseller, in accordance with Section 14.4 below, will complete and forward to
SG whenever it resells Product.
1.19 "SG" means, collectively or singularly, as the content
requires, SGI, WTC, and/or a Subsidiary.
1.20 "SUBSIDIARY" OR "SUBSIDIARIES" means any entity of which fifty
percent (50%) or more of the voting rights are owned or controlled, directly or
indirectly, by SGI or WTC; provided, however, that such entity shall be deemed
to be a Subsidiary only for so long as such ownership or control exists.
1.21 "SYSTEM" means a composite product created by Reseller by
combining the Application and any non-SG products with Product.
1.22 "TRADEMARKS" means any trademark, marks or tradename which SG
may designate, use or adopt from time to time.
1.23 "WTC" means Silicon Graphics World Trade Corporation, a
Delaware corporation, which is a wholly-owned subsidiary of SGI and SGI's
export corporation, having a place of business at 0000 X. Xxxxxxxxx Xxxx.,
Xxxxxxxx Xxxx, XX 00000-0000.
1.24 "WORKSTATION" means a single stand-alone workstation or
computer offered by SGI hereunder.
2. ATTACHMENTS. Attachments A (Software License Agreement), B (Value
Added Reseller Application and Annual Volume Commitment), C (Reseller Program),
D (Reseller Marketing Program), E (Assigned Trading Area), and F (if
applicable) are incorporated into and form a part of this Agreement. The
original forms of all Attachments listed above are the versions of such
Attachments which are in effect as of the Effective Date. SGI may from time to
time, at its sole discretion, modify Attachments A, C and D, change any aspect
of its Reseller Program or Developer Program, or change the price of any
Product. In the event of a change to Attachment B, SGI will provide a written
notice of amendment to Reseller, which amendment will automatically become a
part of this Agreement.
3. APPOINTMENT OF RESELLER, SCOPE OF AGREEMENT.
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3.1 APPOINTMENT. By this Agreement, SGI makes, and Reseller
accepts, the appointment of Reseller as an authorized, limited, non- exclusive
reseller of Product, solely in accordance with the terms and conditions of this
Agreement. Reseller agrees to resell Product only (i) as part of a stand-alone
computer system (ii) with a license for the Application to be used by the End
User, solely to End Users in the Assigned Trading Area; provided, however, that
Reseller may only sell Product in the Assigned Trading Area, where it is able
to provide adequate face-to-face support for Product and maintain a facility to
promote, demonstrate and sell Product. RESELLER ACKNOWLEDGES AND AGREES THAT
THIS AGREEMENT DOES NOT PERMIT RESELLER TO ACQUIRE PRODUCT FOR THE RENTAL OF
ANY PRODUCT TO ANY RESELLER CUSTOMER. Reseller agrees that it shall only sell
add-on or add-on options or upgrades for stand-alone systems originally sold by
Reseller (with the exception of add-ons or add-on options or upgrades for
products for which Reseller is an authorized reseller) and (ii) sell servers as
part of a network system. Reseller shall not sell or offer to sell Product
outside the Assigned Trading Area or to entities, departments, or agencies of
the U.S. Government without SGI's prior written consent. Upon the prior
written approval of SGI, Reseller shall have the right to sell SGI service
contracts to End Users.
3.2 VALUE-ADD REQUIREMENTS AND RESELLER REPRESENTATION AND
WARRANTY. Reseller warrants, represents that as of its execution of this
Agreement, the Application operates with Workstations and that it has full
power and authority to execute and deliver this Agreement and participate in
the Reseller Program. Reseller further warrants, represents, and agrees that
each Application Reseller shall sell with Product hereunder shall (i) operate
with Product and significantly enhance, in function and/or capability, the
Product with which it is sold; (ii) constitute an integral portion of the
System purchased by the End User and (iii) is of such a nature that a
reasonable End User would put the Application into productive use with the
purchased Product for at least ninety (90) days after receipt of the System.
Reseller acknowledges and agrees that SG has relied on the foregoing warranty,
representation , and covenant in entering into this Agreement and providing the
discounts hereunder. Therefore, Reseller agrees that (i) a breach of this
Section 3.2 shall constitute a material default under Section 15.1(a) of this
Agreement; and (ii) in the event of Reseller's breach of this Section 3.2,
immediately, upon SG's request, Reseller shall refund to SG an amount equal to
the discount originally granted by SG on the purchase by Reseller of the
Product sold with the Application that did not meet the requirements of this
Section 3.2.
3.3 PURCHASE ARRANGEMENTS. As used in this Section 3.3, the term
"country" shall be deemed to include the European Economic Area. Reseller
acknowledges and agrees that End Users are best served if Reseller acquires
Product from SG or a Distributor in the country where such End Users will
utilize Product, so that (i) satisfactory and responsive local service and
support can be provided to such End Users, and (ii) Product will meet such
country's particular product and regulatory requirements.
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Reseller, therefore expressly agrees that it shall resell Product only to End
Users and install such Product only in the country where Reseller purchased
such Product. Reseller acknowledges that SG will not be able to provide
adequate support or service for any Product unless Reseller has purchased that
Product from SG in the country of resale and installation. Reseller further
acknowledges that, at a minimum, the cost to Reseller to have Product brought
to conforming specification prior to serviceability under local conditions may
be significant. In the event Reseller fails to purchase Product from SG in the
country of where the End User shall use the Product, unless purchased from WTC,
Reseller shall immediately upon SGI's request, pay to SG the sum of (i) the
difference between such Product's list price in the country of purchase and the
list price in the country of installation, (ii) an amount equal to the discount
originally granted by SG on the purchase by Reseller of such Product, and (iii)
a rework charge equal to ten percent (10%) of the list price of such Product in
the country of installation.
3.4 NON-EXCLUSIVITY OF PROGRAM. SG reserves the right to market
any of its products, including Product to any customer in any location,
directly or indirectly, through other resellers, and other distribution
channels, including without limitation, distributors, original equipment
manufacturers, dealers and the like. Reseller agrees that SG may offer and
sell other products through such other channels of distribution or directly to
end users, including products which may be competitive with Products, without
making them available to resellers, including Reseller. Reseller is not
entitled to receive any commission, discount or any other compensation from SG
relating to such sales. Likewise, Reseller is free to sell non-SG products.
3.5 INDEPENDENT CONTRACTORS. The relationship between SG and
Reseller established by this Agreement is that of independent contractors, and
no franchise, joint venture or partnership is established by this Agreement.
Neither party hereunder is the agent, broker, partner, employee, or legal
representative of the other for any purpose whatsoever. All sales and other
agreements between Reseller and End Users are Reseller's exclusive
responsibility, and any commitment made by Reseller to End Users with respect
to the delivery, modification, interfacing capability, performance or
suitability of Product are Reseller's sole responsibility, unless prior written
approval has been obtained from SG.
3.6 SERVICE PROVIDER. In the event Reseller desires to become an
authorized service provider for Product, each Reseller entity that will provide
service must be approved in writing by and participate in SG's program for
authorized service providers.
3.7 SUBSIDIARY PURCHASES. In the event Reseller desires that
Reseller Subsidiaries have the right to purchase Product under this Agreement,
Reseller hereby guarantees all obligations of Reseller Subsidiaries hereunder.
Reseller shall provide SG
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with a written list of all Reseller Subsidiaries authorized to purchase Product
hereunder. Such list shall be incorporated herein as an Attachment.
4. TERM. The term of this Agreement shall be a period of one (1) year
after the Effective Date. This Agreement may be renewed for subsequent one (1)
year terms upon the mutual prior written agreement of the parties, under the
terms, conditions and pricing then generally made available by SG to its
reseller customers. However, each party acknowledges that this Agreement
shall always be interpreted as a definite term and that the other party has
made no commitments whatsoever regarding the duration or renewal of this
Agreement beyond those expressly stated herein.
5. RESELLER OBLIGATIONS. In consideration for the rights granted to
Reseller in this Agreement, Reseller agrees to:
(a) Purchase at least $100,000 of Product annually and exert its
best efforts to market all Product at or above its Annual Volume Commitment.
Reseller may not, with the exception of demonstration/development systems,
apply internal purchases to the Annual Volume Commitment unless SG has
otherwise previously agreed in writing as an amendment to this Agreement.
(b) Market and support Product in conformance with the Business
Plan and application submitted by Reseller.
(c) Maintain the Application to be compatible with at least one
(1) major operating system revision level offered by SG (as used herein the
term "major" means any release which provides for significant new
functionality); provided, however that the Application shall be functional.
(d) Maintain, at each Reseller sales office one (1) or more
full-time employees trained by SG, and capable of effectively marketing
Product. If Reseller has not previously sold Product, each Reseller trainee
must attend at least one SG-delivered sales training class, in the form
determined by SG, within one-hundred eighty (180) days of the Effective Date.
If Reseller has previously sold Product, each employee trainee must attend at
least one (1) SG-delivered sales training class during the term of this
Agreement. Reseller acknowledges and agrees that its customers cannot be
adequately support by telephone or a "mail order" sales and distribution
mechanism, and, therefore, agrees that, with the exception of repeat sales to
existing customers, it will sell Product only through "face-to-face" sales
activity providing for direct contact with End User.
(e) Maintain at least one (1) employee that has attended one (1)
or more technical training classes offered by SG.
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(f) At the time Product is delivered to the End User, (i) furnish
to the End User a xxxx of sale or other sales receipt which states the date of
purchase and identifies the Product purchased, (ii) ensure that the appropriate
SG warranty statement, agreement or other materials required by SG are included
with each Product, and (iii) instruct the customer on the set-up, installation
and use of the Product.
(g) Provide SG with a valid resale tax exemption certificate for
those territories where Reseller intends to request that SG ship product
directly from SG to the End User.
(h) Promptly report to SG any suspected defects or safety problems
in Product, keep SG informed of any customer complaints relating to Product,
and cooperate with and assist SG in the implementation of any field retrofits
required by SG to correct Product defects or problems.
(i) Allow SG access to Reseller's sales officers, upon previous
notice and at reasonable times, to inspect Reseller's sales facilities, and to
observe Reseller's compliance with this Agreement.
(j) Observe and comply with all applicable laws and government
regulations and conduct business in an ethical manner.
(k) Make no false or misleading representations regarding the
function and performance of Product, make only those representations which are
consistent with SG's Product documentation, and represent Product fairly in
comparison with third party products.
(l) In each Reseller sales office at all times maintain and
present a functional display of Product in an appropriate environment.
(m) Except with SG's prior written approval, purchase Product only
as provided under this Agreement.
(n) Deliver to SG, within thirty (30) days after a written request
during the term of this Agreement, a Business Plan acceptable to SG.
6. PRICE; DISCOUNTS; AND ORDERS
6.1 BASE PRICES. The base prices for Equipment purchased and fees
for Licensed Software provided hereunder will be the list prices which are
effective on the date SG receives Reseller's orders as set forth in, as
appropriate (a) SGI's standard commercial U.S. price list for Product purchased
in the U.S.; (b) in the price list then in effect for the appropriate
Subsidiary for those countries where SG operates a Subsidiary; (c) in a
separate agreement reached between Reseller and a Distributor in those
countries
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where SG sells Product through a Distributor; or (d) in its then-current
international price list for those countries having no Subsidiary or
Distributor.
6.2 PURCHASE PRICE CALCULATION. Reseller's purchase price will be
the Base Price, less a discount determined in accordance with Section 6.7
below. If Reseller is unsure of the current Base Price to use in calculating
net price to Reseller for any Product. Reseller should contact its SG sales
representative for verification. Reseller may determine the resale prices it
charges its customers in its sole discretion, and SG will not in any manner
require that any particular price be charged by Reseller.
6.3 CURRENCY. Price quotations for each purchase hereunder will
generally be made in the currency of the country in which Reseller's customer
will take delivery; provided, however, that if there is no Subsidiary or
Distributor in such country, the price quotation will be issued by WTC in U.S.
Dollars.
6.4 TAXES AND DUTIES. The Base Prices do not include sales, goods
and services, provincial, value added or similar taxes of any nature. Reseller
shall pay and indemnify SG against all sales, use, value-added, withholding and
similar taxes, including penalties and interest, levied by any governmental
authority as a result of the delivery, sale, distribution or other transfer of
Product or the resale thereof under this Agreement (other than taxes based upon
SG's net income). SG SHALL NOT SHIP PRODUCT TO ANY LOCATION FOR WHICH RESELLER
HAS NOT PREVIOUSLY SUBMITTED TAX EXEMPTION OR DROP-SHIP CERTIFICATES IN A FORM
REASONABLY SATISFACTORY TO SG.
6.5 BASE PRICE CHANGE. SG may change its Base Prices at any time.
SG will provide reasonable notice of any change in Base Price to Reseller. Any
such change will become effective immediately upon general announcement by SG,
and will apply to all orders that have not been shipped prior to such
announcement date. Reseller shall be entitled to any then-current price
protection policies provided by SG.
6.6 DISCOUNTS. Certain Product may be non-discountable or
available with a limited discount only. Reseller's discount from Base Prices
for the purchase of such items will be either the discount provided under
Attachment C, or the maximum discount level specified for that item in the
appropriate price list on the date SG accepts Reseller's order, whichever
discount level is lower. Subject to such discount limitation, SG will grant to
Reseller a volume purchase discount from Base Prices for its direct purchases
from SG under this Agreement and in accordance with the Business Plan, to be
calculated pursuant to the discount schedule an Attachment C, or an alternative
discount schedule which SG may specify from time to time during the term of
this Agreement.
6.7 DISCOUNT LEVEL DETERMINATION. SG will monitor the volume of
Reseller's purchases under this Agreement. SG shall have the right to review
the amount of
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Reseller's purchases of Product to date on each six (6) month anniversary of
the Effective Date. In the event that the run-rate of Reseller's purchases of
Product (i.e. the annualized projection of Reseller's purchases) based on
purchases of Product during such calendar quarter is one hundred percent (100%)
or more of the maximum volume required by Reseller's Annual Volume Commitment,
Reseller shall be entitled to receive any appropriate greater discount listed
in the general Discount Schedules set forth in Attachment C. In the event the
run-rate of Reseller's purchases for Product in any six (6) month period is
eighty percent (80%) or less of the minimum volume required by Reseller's
Annual Volume Commitment. SG, at its sole discretion, may reduce Reseller's
discount to the appropriate lesser discount under the general Discount
Schedules set froth in Attachment C. Any such adjustments to Reseller's
discount level will not affect the price of, or discount provided on,
Reseller's previous purchases. If Reseller later returns any Product that
enabled Reseller to meet or exceed its volume commitment entitling Reseller to
a greater discount, SG may reduce Reseller's discount to its original discount
level for the remainder of the then-current term.
6.8 DISTRIBUTOR DISCOUNTS. SG makes no representation as to the
level of discount that any Distributor will provide to Reseller, as such
discount level, if any, will be determined solely by separate agreement between
Reseller and such Distributor.
6.9 ORDERS. All orders placed hereunder by Reseller will be
subject to acceptance by SG at the place of business designation herein or
otherwise by SG. Reseller will order Product for installation in the U.S. by
submitting written orders to SGI, at SGI's address set forth above. For
Product intended for installation outside the U.S., Reseller shall submit
written orders to WTC, Distributors, or Subsidiaries, as applicable. All
orders shall reference this Agreement, specify this Agreement's assigned number
(listed on the signature page hereof), and state the quantities and
descriptions of Product required, applicable list and purchase prices and
license fees, requested delivery dates and shipping instructions, and import
certificates, if any, required by the country where Reseller shall resell
Product. Reseller's orders will specify a "xxxx to" address which shall be the
address for Reseller above, unless an alternate billing address has previously
been approved in writing by SG. Reseller shall provide copies to WTC of all
orders submitted to Distributors and Subsidiaries. SG will not be required to
accept orders that specify delivery to any country where the U.S. Government
will not grant an export license for Product.
6.10 TIMING OF ORDERS. Reseller shall place its orders during the
term of this Agreement. Such orders may specify requested delivery dates that
are up to ninety (90) days after the order date and after the expiration of the
term hereof. For purposes of this Agreement, the order date will be the date
on which SG receives Reseller's order.
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7. ORDER RESCHEDULING, CONFIGURATION CHANGES, CANCELLATION AND STOCK
ADJUSTMENT PROGRAM.
7.1 RESELLER. Reseller may cancel its orders to SG or otherwise
make changes to its orders as to either the date of shipment and/or
configuration thereof subject to the following charges, provided that Reseller
shall not change or cancel any purchase order less than fifteen (15) days
before the scheduled shipment date for such order without SG's prior written
consent:
NO. OF DAYS BETWEEN DATE CHARGE AS %
NOTICE IS RECEIVED OF RESELLER'S
BY SG AND SCHEDULED PURCHASE PRICE
SHIPMENT DATE CANCELLATION CHANGE
15-30 10% 5%
31-60 5% 5%
SG may, at its option, waiver the foregoing change charges if
Reseller's change increases the net purchase price of its order by ten percent
(10%) or more.
7.2 SG CHANGES IN DELIVERY. Although SG will use reasonable
efforts to ship Product on the originally scheduled shipment date after
Reseller changes an existing order with SG, it may be necessary for SG to
revise the scheduled shipment date after an order change. In such event, SG
will send Product as soon after the originally scheduled shipment date as
reasonable practicable.
7.3 CHANGE ORDER/CANCELLATION CHARGES. Cancellation charges for
rescheduled Product will be calculated based upon the amount of notice, if any,
provided either in the initial rescheduling of the order or in the cancellation
of the order, whichever notice period is less.
7.4 STOCK ADJUSTMENT PROGRAM. Reseller may return Product then
currently in its inventory to SGI under SGI's then-current Stock Adjustment
program, if any.
8. PAYMENT AND SECURITY TERMS.
8.1 PAYMENT FOR PRODUCT PURCHASED FROM SGI. Reseller will pay for
Product purchase from SGI under this Agreement net thirty (30) days after the
date of SGI's invoice, which SGI will issue upon shipment of Product. Although
SGI may extend credit to Reseller, SGI reserves the right to change its credit
terms at any time when, in SGI's sole opinion, Reseller's financial condition
or payment record so warrants.
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8.2 PAYMENT FOR PRODUCT PURCHASED FROM WTC. Reseller shall pay
for purchases from WTC via wire transfer prepayment to WTC's U.S. bank account
(by identified account number), made at least five (5) days prior to the
scheduled shipment date, or by confirmed, irrevocable letter of credit issued
in favor of WTC at least thirty (30) days before the scheduled shipment date,
of an amount equaling: (i) one hundred percent (100%) of the price of Product
to be delivered; or, if due to any reason WTC cannot make delivery of all of
Product ordered, the amount equaling that portion thereof to be delivered, and
(ii) cancellation or rescheduling charges, if any, based upon the charges
specified in Section 7.0 for any cancellation and/or rescheduling.
8.3 PAYMENT FOR PRODUCT PURCHASED FROM SUBSIDIARIES AND
DISTRIBUTORS. Resell shall pay for orders from Subsidiaries and Distributors,
in accordance with the payment terms agreed to by the Subsidiary or
Distributor, as applicable.
8.4 SECURITY FOR EQUIPMENT PURCHASED IN THE U.S. The parties
agree that this Agreement constitutes a security agreement, whereunder SGI has
retained and claims, and Reseller hereby grants to SGI, a continuing purchase
money security interest under the California Commercial Code in the Equipment,
in any receivables generated therefrom upon Reseller's subsequent disposition
of the Equipment, and in any proceeds (as such term is defined in Section
9306(1) of the California Commercial Code) derived from the sale of the
Equipment or the collection of such receivables. In order to perfect SGI's
security interest, Reseller agrees that at any time, or from time to time (i)
Reseller will execute financing statements (e.g.: UCC-1 forms) and amendments
and supplements thereto, or other instruments that SGI, as a secured party, is
required to file in compliance with the California Commercial Code and any
other state law which is applicable to the Equipment as collateral, and (ii)
SGI may file such financing statements and this Agreement or copy of this
Agreement, with the appropriate state provincial or local authorities at any
time, alone or with other documents which SGI determines to be necessary or
desirable to perfect or protect the security interest created hereby. In cases
where Reseller has requested that SGI ship Equipment directly to Reseller's
customer, SGI, its agent or its assignee is authorized to execute for and on
behalf of Reseller (Reseller authorizes SGI or its agent to sign financing
statements in Reseller's stead or Reseller's attorney in fact with full power
of substitution) and to file such financing statements, amendments and
supplements thereof, or other instruments that SGI, as a secured party,
requires or deems desirable to comply with the California Commercial Code and
any other law of the U.S., which is applicable to the Equipment as collateral.
Payment in full of the purchase price of any Equipment shall release the
security interest on that Equipment.
8.5 SECURITY FOR EQUIPMENT PURCHASED OUTSIDE THE U.S. The parties
agree that this Agreement constitutes a security agreement under which Reseller
grants to WTC preferential rights or liens upon or the reservation of title to
Equipment purchased outside
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the U.S. under this Agreement for the amount of the purchase price of such
Equipment until Reseller has fully paid for such Equipment. Such preferential
rights or liens or the reservation of title shall be effected through the
statutory system available in the country of purchase by Reseller and the
country of purchase by End User. Reseller agrees to sign all documents
required to achieve and perfect the foregoing and further agrees to and shall
obtain executed documents establishing and perfecting such preferential rights,
liens, and or reservation of title from any intermediary purchaser or End User
of Equipment. Reseller acknowledges that any security interest in Product sold
by a Subsidiary or Distributor shall be determined by separate agreement with
Reseller.
8.6 PARTIAL SHIPMENTS. Reseller agrees to accept partial
shipments and pay for Product comprising a partial shipment, net thirty (30)
days after the date of SG's invoices provided, however, that SG shall only
submit an invoice for Product which it has shipped, unless otherwise agreed to
in writing by the parties.
9. DELIVERY, RISK OF LOSS AND TITLE
9.1 DELIVERY IN THE U.S. Unless SGI has otherwise previously
agreed in writing and subject to Section 6.4 above, SGI will ship Product only
to End Users in the U.S. Delivery will be made F.O.B. origin. For purposes of
this Agreement, this means the time of delivery is the time when SGI remits
Product to the carrier at SGI's facility. In the absence of specific written
instructions from Reseller, SGI will select the carrier, but such carrier will
not be the agent of SGI, nor will SGI assume any liability with regard to the
shipment after delivery to the carrier. SGI will pack all Product shipped in
accordance with standard commercial practices. Risk of loss and/or damage to
Product will pass to Reseller on delivery. Title to Equipment will pass to
Reseller on delivery, subject to the security interest referred to in Section
8.0 above.
9.2 DELIVERY OUTSIDE THE U.S. The following terms of shipment
will apply to orders of Product purchased for resale outside of the U.S.
(a) PURCHASES FROM WTC. For WTC export
shipments, Product will be delivered FCA SG's facility (according to Incoterms
1990). Risk of loss and/or damage to Product shall pass to Reseller upon
delivery which occurs when Product is delivered to the carrier. In the absence
of specific written instruction from Reseller, WTC will select the carrier, but
such carrier shall not be the agent of WTC, nor shall WTC assume any liability
with regard to the shipment. All Product shipped shall be packed in accordance
with standard commercial practices. Equipment and Licensed Software held or
stored for Reseller by the carrier shall be held or stored at Reseller's risk
and costs. WTC shall not be liable for any damages or penalty due to delay in
delivery by the carrier. Title Equipment shall pass to Reseller upon delivery
in accordance with Section 8.5 above or local Subsidiary terms and conditions
of sale. Provided that Reseller has
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furnished to WTC all required information and/or import certificates or other
documents, WTC will produce all U.S. Government export licenses required to
export Product to the ship-to-address specified in Reseller's order.
(b) PURCHASES FROM SUBSIDIARIES. For countries
where Reseller purchases Product from a Subsidiary, Product will be delivered
in the country of purchases in accordance with the Subsidiary's terms and
conditions then in effect. The Subsidiary will procure all documents required
by the U.S. Government and the government of the country of destination for
delivery of Product, including but not limited to export licenses and import
certificates.
(c) DISTRIBUTOR PURCHASES. For countries where
Resell purchases Product from a Distributor, the terms of shipment will be
determined by separate agreement between Resell and the Distributor.
(d) PURCHASES FROM SILICON GRAPHICS CANADA, INC.
Product will be delivered in Canada in accordance with SG's Canadian
Subsidiary's then-current terms and conditions. Such Subsidiary will procure
all documents required by the U.S. Government and the government of the country
or destination for delivery of Product, including but not limited to export
licenses and import certificates and will procure transit insurance to
Reseller's designated destination.
10. TRADEMARKS AND CONFIDENTIAL INFORMATION
10.1 TRADEMARKS. During the term of this Agreement, Reseller will
indicate to the public that it is an authorized reseller of Product by using
Trademarks in Reseller's advertisements for such Product. Reseller shall
submit to SG, in advance, such advertisements, and any other promotional
materials that describe or identify Product, and/or use Trademarks for SG's
approval, unless such advertising materials have been received form SG, or SG
has otherwise agreed to Reseller's use and distribution of such materials in
writing. SG reserves the right to reject and Reseller will not make use of)
any of such materials which in SG's reasonable judgment do not comply with the
SG Trademark Use Guidelines contained in SG's latest Reseller Marketing Kit, or
which are otherwise inconsistent with proper trademark usage, of poor quality,
or potentially injurious to SG's business or Product. SG grants Reseller no
title or interest in any Trademark under this Agreement. Reseller will not (i)
alter or remove any Trademark applied to or used in conjunction with, a Product
by SG, (ii) attach any additional trademark or trade designation to any
Product, (iii) use any Trademark as part of Reseller's trade name, service
xxxx, or trademark or in any other manner as would cause a reasonable person to
infer that Reseller has affiliation with SG other than the rights provided
under this Agreement to resell Product, or (iv) use any Trademark in a way that
implies Reseller is an agent, franchisee, representative or branch of SG,
Reseller will
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immediately change or discontinue any Trademark use as requested by SG. At no
time during or after the term of this Agreement will Reseller challenge or
assist others to challenge the validly of any Trademark, or SG's ownership or
registration thereof, or attempt to use or register any trademark, servicemark,
or tradename which is confusingly similar to any Trademark. Reseller will, on
expiration or termination of this Agreement, cease indicating to the public
that it is an authorized reseller of Product, cease the use of Trademarks and
destroy all existing literature referencing same.
10.2 CONFIDENTIAL INFORMATION. Reseller and SGI acknowledge that,
by reason of their relationship under this Agreement, they will have access to
Confidential Information. Each party hereto agrees that Confidential
Information is a trade secret of the other, and agrees not to disclose or use
any Confidential information for any purpose except as contemplated by this
Agreement. Each party hereunder agrees to limit the use of and access to
Confidential Information to such employees as have a need to know such
information for the purposes of carrying out such party's obligations under
this Agreement. Each party hereto will bind its personnel receiving
Confidential Information in writing to the obligations of confidentiality
specified in this Section 10.2.
10.3 EXCLUSIONS. A party hereunder shall have no obligation as to
Confidential Information that (i) is not provided in a tangible form and
labeled as confidential or proprietary, or if provided orally, designated as
confidential or proprietary at the time of disclosure, (ii) is known to the
receiving party at the time of disclosure, as evidenced by documentation in the
receiving party's possession at the time of such disclosure, (iii) is
independently developed by the receiving party (provided the receiving party
can show that such development was accomplished by or for the receiving party
without the use of or any reference to Confidential Information), (iv) becomes
rightfully known to the receiving party from another source without restriction
on subsequent disclosure or use, (v) is or becomes part of the public domain
through no wrongful act of the receiving party, or (vi) is furnished by the
disclosing party to a third party without a similar confidentiality
restriction. A receiving party may disclose Confidential Information pursuant
to any competently authorized judicial or governmental request, requirement or
order provided that the receiving party takes reasonable steps to give the
disclosing party sufficient prior notice to contest such request, requirements
or order and/or to seek a protective order therefor.
10.4 NOTICE OF DISCLOSURE. A receiving party shall promptly notify
the disclosing party in writing of any unauthorized disclosures of Confidential
Information. Such notices shall include a detailed description of the
circumstances of the disclosure and the parties involved therewith.
10.5 INJUNCTIVE RELIEF. The parties acknowledge and agree that in
the event of an unauthorized use, reproduction, distribution or disclosure of
any Confidential
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Information, the disclosing party will not have an adequate remedy at law, and
therefore, injunctive or other equitable relief may be appropriate to restrain
such use, reproduction, distribution or disclosure, threatened or actual.
10.6 NO RIGHT TO COPY. Product is offered for sale and sold by SG
subject in every case to the condition that such sale does not convey any
license, expressly, by implication, estoppel, or otherwise to manufacture,
duplicate or otherwise copy or reproduce any Product. Reseller shall take
appropriate steps to assure compliance wit the restrictions contained in this
Section.
10.7 NEWS RELEASES. Except as may be required by law or
regulation, no news release, public announcement or advertising material
concerned with the Agreement shall be issued by either party without prior the
written consent of the other party.
10.8 DISPOSAL OF MEDIA. Before disposing of any media or storage
apparatus containing Confidential Information, a party hereunder shall ensure
that it has completely erased or otherwise destroyed any such Confidential
Information.
10.9 PRODUCT ANNOUNCEMENTS. Reseller will constrain discussion and
all business activity relating to Product solely to those products announced by
SG. Reseller will not provide information on unannounced SG products to any
third party or accept deposits for the purchase of unannounced SG products.
Reseller will not misrepresent the scope of Reseller's authority with regard to
Product under this Agreement.
11. LICENSED SOFTWARE AND ITS DISTRIBUTION.
11.1 LICENSED SOFTWARE. The sale of Product to Reseller and the
transfer of title to Reseller for each purchased Product will not include a
sale of, or transfer of title to, any Licensed Software, whether included with
Product or not. Title to Licensed Software will remain with SG and its
suppliers, regardless of any references or usages to the contrary with respect
to Product in this Agreement.
11.2 RESELLER'S USE OF LICENSED SOFTWARE. Reseller may only use
the Licensed Software provided under this Agreement in accordance with
Attachment A, and only in support of its internal Application development,
marketing and support activities. Reseller shall provide Licensed Software to
End Users solely in accordance wit Section 11.3 below.
11.3 DISTRIBUTION OF LICENSED SOFTWARE TO END USERS. Reseller will
"pass through" the Licensed Software supplied to End Users. For purposes of
this Agreement "pass through" means that Reseller will provide the Licensed
Software to End Users exactly as ordered and received from SG, and Reseller
will in no circumstances remove, modify or otherwise tamper will the License,
any package containing Licensed Software,
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any other document provided with the Licensed Software, or any labeling on any
physical media containing Licensed Software. Except as an end user of the
Licensed Software pursuant to Section 11.2 above, this Agreement grants to
Reseller no right to use, modify, copy or sublicense the Licensed Software. SG
will provide to End Users, solely under the terms and conditions specified in
the License, a license to use (i) the then-current (on the date of shipment)
release of the Licensed Software appropriate for the Equipment configuration
purchased by the End User, and (ii) any Licensed Software option items ordered
for use with such Equipment. End Users will indicate acceptance of the License
terms and conditions by signed agreement as well as by opening and using the
media and/or manuals package, or using the Licensed Software.
11.4 WARRANTY. The terms of the Licensed Software warranty and
patent/copyright infringement protection provided hereunder to Reseller and End
Users with respect to Licensed Software are specified in Attachment A, and are
limited by the terms and conditions therein.
12. Limited Patent And Copyright Protection.
12.1 INFRINGEMENT CLAIMS. SG will defend any suit or proceeding
brought against Reseller or any End User, but only to the extent such suit or
proceeding is based on a claim that the Equipment, solely as furnished by SG to
Reseller under this Agreement, constitutes direct infringement of any (i)
issued U.S. patent or (ii) registered copyright in the country use by an End
User. SG will pay all settlements and costs finally awarded therein against
Reseller or its customer with respect to such matter, provided that Reseller
(i) promptly informs SG thereof, and furnishes to SG a copy of each
communication, notice or other action relating to the alleged infringement,
(ii) gives SG the authority, information and assistance necessary to settle,
compromise or litigate such suit or proceeding, and (iii) does not settle, or
agree to settle, any such suit without the express written permission of SG.
If the Equipment is held in any such suit to infringe and the use of the
Equipment is enjoined. SG will have the option, at its own expense, to procure
for End Users the right to continue using the Equipment, or replace same with
non-infringing Equipment; or modify same to make it non-infringing; or refund
the depreciated value of such Equipment, and accept the return of same.
12.2 EXCEPTIONS. SG will not be obligated to defend or be liable
for costs and damages if infringement, or a claim of infringement, arises out
of (i) compliance with Reseller's specifications, incorporation of Reseller or
third party equipment or software in or with the Equipment, (ii) a modification
made to the Equipment by Reseller or a third party, or (iii) other fault,
action of inaction of Reseller or its customer. SG may decline to make further
shipments to Reseller under this Agreement if infringement caused by any such
action has been alleged, or has occurred.
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12.3 LIMITATION. THE FOREGOING STATES THE ENTIRE LIABILITY OF SG
FOR PATENT, COPYRIGHT OF OTHER INTELLECTUAL PROPERTY INFRINGEMENT BY THE
EQUIPMENT FURNISHED UNDER THIS AGREEMENT.
13. Liability
13.1 RISK ALLOCATION. This Agreement allocates the risks of the
marketing, sales and use of Product between SG and Reseller. SGI and Reseller
recognize and acknowledge such allocation as fair, and adequately reflected in
the purchases price of the Equipment and license fees for Licensed Software
provided under this Agreement. Except as otherwise provided in this Agreement,
SG will not be liable, in whole or in part, for any claims or damage arising
from Reseller's marketing, resale, or distribution of Product by Reseller or
its customers, and Reseller agrees to indemnify, defend (with counsel approved
in writing in advance by SG) and hold SG harmless against any claims for cost,
damage, expenses or liability arising out of or in connection with any
negligent resale or installation of Product by Reseller or its customers or use
of the Application in connection therewith, whether alone or in combination
with Product or any other product or service (provided, however, that Reseller
shall not be obligated to indemnify SG for negligent installation of Product by
its customers where Reseller has provided installation information to its
customers that is consistent with SG's written specifications therefor). With
respect to the foregoing risks thus assumed, Reseller shall maintain a policy
of liability insurance covering Comprehensive General Liability, including
Completed Operations, Contractual Liability, Broad Form Property Damage and
Product Liability, with a minimum combined single limit of $2,000,000.00. Such
policy shall be with an insurer reasonably satisfactory to SG and shall contain
a requirement that no material modification or cancellation of coverage may
occur unless thirty (30) days prior written notice thereof has been provided to
SG. Upon SG's request, Reseller shall cause its insurer to provide to SG a
certificate evidencing such coverage within fifteen (15) days after the
Effective Date, and cause SG to be named as an additional insured on its
policy.
13.2 LIMITATION OF LIABILITY. IN NO EVEN SHALL SG BE LIABLE TO
RESELLER OR END USERS FOR EXEMPLARY, INCIDENTAL INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOSS OF PROFIT,
LOSS OF USE SAVINGS OR REVENUE, OR THE CLAIMS OF THIRD PARTIES INCLUDING END
USERS, WHETHER OR NOT SG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS,
HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT OR
THE RELATIONSHIP OF RESELLER AND SG.
13.3 LIMITATION IN AMOUNT. EXCEPT AS PROVIDED IN SECTION 12 ABOVE,
THE LIABILITY OF SG ARISING OUT OF THESE TERMS AND CONDITIONS OF SALE AND/OR
SALE OR USE, INCLUDING WITHOUT
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LIMITATION ANY AND ALL CLAIMS COMBINED, WILL NOT EXCEED THE AMOUNT OF THE
PURCHASE PRICE/LICENSE FEE OF PRODUCT PROVIDED UNDER THIS AGREEMENT AND HAVING
CAUSED SG'S LIABILITY. IN NO EVENT WILL SG BE LIABLE FOR THE COST OF
PROCUREMENT OF SUBSTITUTE GOODS BY RESELLER, END USERS OR ANY OTHER PERSON OR
ENTITY.
13.4 FAILURE OF ESSENTIAL PURPOSE. THE LIMITATIONS IN THIS SECTION
SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY.
13.5 NUCLEAR AND AVIATION APPLICATION. Product is not specifically
designed, manufacture or intended to application in connection with the use of
handling of nuclear material or the design, construction, maintenance,
operation or use in (i) any nuclear facility, or (ii) aircraft, aircraft
communication or aircraft ground support equipment. Reseller warrants that it
shall not use Product, or offer Product for resale to End Users for use for
such purposes unless Reseller or an End User has general and product liability
insurance of the kind and amount deemed in SG's sole discretion to be
commercially appropriate coverage for Reseller's or its End User's use of such
Product. Except as otherwise provided herein, SG shall not be liable, in whole
or in part, for any claims or damages arising from such use or sale. Reseller
agrees to indemnify and hold SG harmless from any claims for loss, cost,
damage, expense, cause of action, or liability arising out of or in connection
with the use and performance of the Equipment and License Software in such
nuclear and aviation application if Reseller or its customers use the Equipment
or Licensed Software for such applications.
13.6 LIMITATION TO BRING SUIT. Except for actions relating to
Reseller's failure to perform its obligations under Section 8.0 of this
Agreement, no action arising out of or in connection with this Agreement, may
be brought by SG or Reseller more than eighteen (18) months after the cause of
action has accrued, or, in the event of Reseller's failure to perform its
obligations under Section 10.0 of this Agreement, more than eighteen (18)
months after the date of discovery of such failure.
13.7 DISTRIBUTORS. A Distributor's limitation of liability will be
in accordance with the terms and conditions agreed between Reseller and such
Distributor. Distributors are not acting as agents or employees of SG, and all
sales and other agreements between Distributors and Reseller are exclusive
responsibilities of such Distributors and Reseller and shall have no effect on
this Agreement or the obligations of SG or reseller hereunder. SG SHALL NOT BE
LIABLE FOR ANY ACTION OR INACTION, NEGLIGENT OR OTHERWISE BY ANY DISTRIBUTOR,
AND SG PROVIDES NO INDEMNIFICATION TO RESELLER HEREUNDER FOR ANY DAMAGE, COST,
LOSS INCLUDING LOSS OF PROFITS OR EXPENSE, HOWEVER CAUSED,
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ARISING OUT OF RESELLER'S RELATIONSHIP WITH DISTRIBUTORS, OR RESELLER'S
PURCHASE OF PRODUCT FROM SUCH DISTRIBUTORS.
14. LIMITED WARRANTY.
14.1 RESELLER'S LIMITED EQUIPMENT WARRANTY. For purchases from SGI
and WTC, SGI warrants to Reseller that the Equipment delivered hereunder will
be free from defects in materials and workmanship. Equipment will be of new
manufacture, but may include used parts and/or components which match or exceed
the performance and reliability of new parts and/or components. This warranty
to Reseller is effective for sixty (60) days after the date of original
shipment of the Equipment, or expires on the sale of the Equipment to the End
User, if such sale occurs before the end of such period. After sale to the End
User, the End User Warranty becomes effective in accordance with Section 14.3,
below. The terms and conditions of warranty for Product Reseller purchases
from Subsidiaries and Distributors shall be, respectively, (i) those specified
as in effect by the applicable Subsidiary or the date such Subsidiary ships
Reseller's order and (ii) determined by separate agreement between the
applicable Distributor and Reseller.
14.2 EXCLUSIVE REMEDY. Provided that Reseller has notified SG of a
defect during the warranty period, as Reseller's exclusive remedy for breach of
warranty, SG will at its sole discretion and at no charge to Reseller, repair
or replace any such Equipment which SG confirms to be defective. The foregoing
warranty shall not apply to Equipment which has been (i) damaged by accident,
act of God, shipment, improper installation, misuse or misapplication or (ii)
modified without SG's express written acceptance of such modification for
warranty purposes and such modification is responsible for the defect, in which
case the warranty herein shall be null and void.
14.3 END USER LIMITED EQUIPMENT WARRANTY. SG reserves the right to
amend the terms and conditions of the End User Warranty from time to time. The
End User Warranty statement shipped with Equipment will specify the terms and
conditions of SG's then-current End User Warranty (as of the date when the
Equipment is packed and shipped by SG). If SG changes the terms and conditions
of its standard End User Warranty, such change shall not affect the End User
Warranty on Equipment previously delivered. Reseller will ensure that the End
User Warranty statement included with Equipment is passed through with the
Equipment to End Users.
(a) FOR THE U.S. SGI will include, with all
Equipment shipped under this Agreement, a copy of its standard End User
Warranty statement. The End User Warranty is solely for the benefit of the End
User purchasing the Equipment from Reseller, and is a "manufacturer's" warranty
provided directly by SGI to the End User, effective on the End User's date of
purchase.
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(b) FOR COUNTRIES OTHER THAN THE U.S. WTC or the
applicable Subsidiary will provide a warranty to the End User equal to the
warranty provided to Reseller by WTC or the Subsidiary pursuant to WTC's or the
Subsidiary's terms and conditions then in effect.
14.4 RECORD OF PURCHASERS. To facilitate Product warranty and
maintenance support to End Users, Reseller agrees to notify SG of the names and
addresses of End Users, and Product configuration and serial numbers purchased
by such End Users by providing to SG, within ten (10) days after shipment of
Product to the End User, a completed copy of the Reseller Transfer of Ownership
Card for all Product provided to End Users.
14.5 DISCLAIMER. THE FOREGOING WARRANTIES ARE IN LIEU OF, AND SG
DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
15. Default; Termination.
15.1 DEFAULT. The occurrence of any of the following acts or
events will constitute default of this Agreement:
(a) in the case of Reseller:
(i) failure to pay any invoice when due;
(ii) if in any case Reseller sells,
transfers or otherwise conveys any Product to anyone not in conjunction with
the issuance of a license for, or sale of, an Application;
(iii) becoming insolvent, suffering the
appointment of a receiver, or making an assignment for the benefit of
creditors; commencement of proceedings against it under any bankruptcy,
insolvency or debtor's relief law, if such proceeding is not vacated or set
aside within sixty (60) days after the date of commencement thereof;
(iv) subject to the provisions of Section
16.9 below, a material change in ownership of Reseller or a sale or transfer of
all, or substantially all, of Reseller's assets; and
(v) a breach of the warranties and
representations set forth in Section 3.2;
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(b) in the case of either party, the failure by
such party to observe or perform any material covenant or obligation under this
Agreement.
15.2 TERMINATION. In the case of any event of default specified in
Section 15.1(a) above, SGI may terminate this Agreement at any time after such
default by providing written notice of termination to Reseller. In the case of
an event of default under Section 15.1(b) above, if such default has not been
cured within thirty (30) days after a party has received a written notice of
default from the other party, the party giving notice may terminate this
Agreement by written notice at any time thereafter.
15.3 RETURN OF CONFIDENTIAL INFORMATION. In any event of
termination or expiration of this Agreement, each party will promptly return to
the other party such party's Confidential Information in its possession or
control.
15.4 SG'S RIGHT TO CHANGE CREDIT TERMS UPON TERMINATION. If either
party gives the other notice of termination or advises the other of its intent
not to renew this Agreement, SG may, at its sole discretion, (i) require that
Reseller pay cash in advance for subsequent purchases, regardless of Reseller's
credit status, (ii) withhold all shipments until Reseller pays its existing
balance, (iii) stop shipments in transit to Reseller, and/or (iv) repossess
Product which is in Reseller's possession, but has not yet been paid for.
15.5 NO LIABILITY. In the event of termination by either party in
accordance with any of the provisions of this Agreement, neither party will be
liable for such termination to the other for compensation, reimbursement or
damages on account of the loss of prospective profits or anticipated sales or
on account of expenditures, inventory, investments, leases or commitments in
connection with the business or goodwill of SG or Reseller.
15.6 SURVIVAL. The parties' obligations under Sections 7.0, 8.0,
9.0, 10.0, 11.0, 12.0, 13.0, 14.0, 15.3, 15.5, 15.6 and 16.0, and Attachment A
shall survive any termination and/or expiration of this Agreement.
16. General
16.1 MODIFICATION. Except as provided in Section 2.0, this
Agreement may only be modified by the prior written approval of a duly
authorized representative of each party. The terms and conditions specified in
this Agreement (with the exception of any agreement between Reseller and a
Distributor or Subsidiary) will take precedence over any provisions in
Reseller's purchase orders or other Reseller or SG business forms, and will
apply to all purchases made by Reseller form SG. Commencement of performance
and/or delivery under this Agreement will not be considered to be acceptance of
SG's or Reseller's additional or different terms and conditions, which will be
of no force or effect whatsoever in respect to Reseller's purchases under this
Agreement.
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16.2 FORCE MAJEURE. Except for Reseller's obligation to make
payment for its purchases under this Agreement, neither party hereto shall be
liable to the other for delays or non-delivery or non-fulfillment of any orders
or failure to perform any part of this Agreement for any reason or unforeseen
circumstance beyond the affected party's reasonable control, including, but not
limited to, acts of God, fire, labor disputes of any nature, inevitable
accident, insurrection, delays in transportation, delivery by carrier, or
supply.
16.3 NO RIGHTS TRANSFERRED. Except as otherwise expressly provided
in this Agreement, no license or rights in SG hardware design, software or
other intellectual property are provided under this Agreement, either expressly
or by implication, estoppel or otherwise.
16.4 EXPORT. Reseller understands that Product is subject to
regulation by agencies of the U.S. Government, including the U.S. Department
of Commerce, which prohibits export or diversion of Product to certain
countries and parties, and agrees it will not knowingly assist or participate
in any such diversion or other violation of applicable U.S. laws and
regulations. Reseller warrants that it shall not sell any Product to End Users
not approved to receive controlled commodities under applicable U.S. laws and
regulations and that Reseller will abide by such laws and regulations.
16.5 GOVERNING LAW. Transactions under this Agreement shall be
governed by and interpreted in accordance with the laws of the State of
California, excluding its choice of law rules.
16.6 DISPUTE RESOLUTION. Any dispute regarding the interpretation
or validity of or otherwise arising out of, this Agreement, or relating to
Product sold, distributed or licensed by SGI and WTC under this Agreement,
shall be subject to the exclusive jurisdiction of the California state courts
in and for Santa Xxxxx, County, California (or, if there is federal
jurisdiction, the U.S. District Court for the Northern District of California),
and SG and Reseller agree to submit to the personal and exclusive jurisdiction
and venue of these courts. Disputes regarding an agreement or purchase/license
of Product between Reseller and a Subsidiary or Distributor shall be in
accordance with such Subsidiary's or Distributor's local terms and conditions.
16.7 UNIFORM LAW ON INTERNATIONAL SALE OF GOODS. The "Convention
Relating to a Uniform Law on the International Sale of Goods" shall not be
applied to this Agreement or transactions under this Agreement.
16.8 SECTION/HEADING. Section and/or paragraph headings used in
this Agreement are for reference purposes only and will not be used in the
interpretation of this Agreement.
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16.9 ASSIGNMENT. Neither this Agreement or any interest herein may
be assigned, in whole or in part, by either party without the prior written
consent of the other party, except that without securing such prior consent,
either party shall have the right to assign this Agreement and the obligations
thereunder to any successor of such party by way of merger or consolidation or
the acquisition of substantially all of the business and assets of the
assigning party relating to the Agreement; provided, however, that such
successor entity shall not be a competitor of the non-assigning party. This
right shall be retained provided that such successor shall expressly assume all
of the obligations and liabilities of the assigning party liable and
responsible to the other party hereunder, and that the assigning party shall
remain liable and responsible to the other party hereto for the performance and
observance of all such obligations.
16.10 WAIVER. The failure of Reseller or SG to enforce at any time,
or for any period of time, the provisions of this Agreement will not be
interpreted to be a waiver of such provisions or of the right of such party to
enforce each and every such provision.
16.11 NOTICES. All notices or demands hereunder will be by
certified or registered mail, return receipt requested, at the address of the
receiving party specified above (or at such different addresses as may be
designated by either party by written notice to the other party), and will be
deemed complete three (3) days after mailing. Notices to SGI will be sent to
the attention of: LEGAL SERVICES.
16.12 SEVERABILITY. In the event that any of the provisions of this
Agreement will be held by a court or other tribunal of competent jurisdiction
to be unenforceable, the remaining portions of this Agreement will remain in
full force and effect, provided that in such event SGI and Reseller agree to
negotiate in good faith substitute enforceable provisions which most nearly
effect SGI's and Reseller's intent in entering into this Agreement.
16.13 AUDIT. To ensure compliance herein, Reseller shall allow
mutually acceptable independent auditors to audit and analyze appropriate
Reseller records relating to Product. Reseller shall permit such audit to
occur within twenty (20) days of its receipts of SGIs written request to
conduct such audit during normal business hours, and at a time mutually agreed
upon. Audits shall not unreasonably interfere with Reseller's business
activities. SGI shall pay for the audits unless the audits reveal
discrepancies in excess of $1,000.00 or that Reseller is in breach of this
Agreement, in which event, Reseller shall pay for the audit.
16.14 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which taken
together shall constitute one and the same instrument.
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16.15 THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall be
for the benefit of anyone not a party to this Agreement.
16.16 INTEGRATION. This Agreement, including the attachments to
this Agreement, constitutes the entire agreement between the parties hereto,
and any and all written or oral agreements previously existing between the
parties hereto pertaining to the subject matter of this Agreement are expressly
canceled. Reseller acknowledges that it is not entering into this Agreement on
the basis of, and has not relied on, any representations not expressly
contained in this Agreement.
SILICON GRAPHICS, INC. RESELLER
By: By: /s/Xxxxx X. Xxxxx
--------------------------- --------------------------
Xxxxx X. Xxxxx
------------------------------ ------------------------------
Name (Print or Type) Name (Print or Type)
Chief Financial Officer
------------------------------ ------------------------------
Title Title
12/26/96
------------------------------ ------------------------------
Date Date
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ATTACHMENT A
SOFTWARE LICENSE AGREEMENT
THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND SILICON GRAPHICS, INC.
("SGI"). BY BREAKING THE SEAL ON THE PACKAGE CONTAINING SGI'S SOFTWARE
PRODUCT, AND/OR BY USING THE ENCLOSED SOFTWARE OR ITS DOCUMENTATION,(THE
"SOFTWARE"), YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS
AGREEMENT, INCLUDING THE SOFTWARE LICENSE AND DISCLAIMER OF SOFTWARE WARRANTY
BELOW. PLEASE READ THIS DOCUMENT CAREFULLY BEFORE OPENING THE PACKAGE AND
USING THE SOFTWARE. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS
AGREEMENT, YOU SHOULD PROMPTLY RETURN THE UNOPENED PACKAGE AND THE SOFTWARE TO
THE PLACE WHERE YOU OBTAINED IT, AND YOU WILL BE GIVEN A FULL REFUND OF ANY
LICENSE FEE THAT YOU PAID FOR SUCH SOFTWARE.
1. GRANT OF LICENSE; SOFTWARE USE RESTRICTIONS. In consideration for
your payment of any applicable license fee and/or your purchase of an SGI
workstation or server production (an "SGI System"), SGI hereby grants to a
personal, non-transferable (except as expressly provided in Section 4 below)
and non-exclusive right to use and execute the SOFTWARE on a single SGI System,
without right to sublicense the SOFTWARE. Under no circumstances may you
store, use or allow the use of the SOFTWARE in any manner on more than one SGI
System at one time. You agree that you will not reverse engineer, decompile or
disassemble any portion of the SOFTWARE. If you dispose of any media or
apparatus containing SOFTWARE, you will ensure that you have complete erased or
otherwise destroyed any SOFTWARE contained on such media or stored in such
apparatus. Except as expressly provide in Section 4 below, you may not
distribute, lease, transfer for profit, loan or otherwise convey the SOFTWARE
or any portion thereof to anyone.
2. COPYING RESTRICTIONS. In order to effect your license rights
hereunder, you may install the SOFTWARE by copying it onto the hard disk drive
or into the CPU memory of an SGI System for use thereof, and you may make full
or partial copies of the SOFTWARE, but only as necessary for backup or archival
purposes. You agree that (i) your use and possession of such copies shall be
solely under the terms and conditions of this Agreement, and (ii) you shall
place the same proprietary and copyright notices and legends on all such copies
as included by SGI on the media containing the authorized copy of the SOFTWARE
originally provided by SGI.
3. OWNERSHIP OF SOFTWARE AND MEDIA. You agree and acknowledge that SGI
transfers no ownership interest in the SOFTWARE, in the intellectual property
1.
26
in any SOFTWARE or in any SOFTWARE copy, to you under this Agreement or
otherwise, and that SGI and its licensors reserve all rights not expressly
granted to you hereunder. After you pay any applicable license fees and/or the
purchase price of the applicable SGI System, you will own the media on which
the SOFTWARE was originally provided to you hereunder and on which you
subsequently copy the SOFTWARE but SGI and its licensors shall retain ownership
of all SOFTWARE and copies of the SOFTWARE or portions thereof embodied in or
on such media.
4. TRANSFER RESTRICTIONS. If you transfer ownership or otherwise dispose
of an SGI System, you may transfer the SOFTWARE and all licenses and rights in
the SOFTWARE granted to you under this Agreement to the transferee provided
that: (i) such transferee agrees in writing to accept the terms and conditions
of this Agreement, and (ii) you also transfer all SOFTWARE, including all
copies thereof, to such transferee. Except as provided in this Section, you
may not sublicense, transfer or assign this Agreement or any of your rights or
obligations under this Agreement, in whole or in part.
5. EXPORT RESTRICTIONS. You may not export or reexport any Software or
other technology received under this Agreement except in full compliance with
all United States and other applicable laws and regulations. In particular,
none of such Software or technology may be exported or reexported into (or to a
national or resident of) any country to which the U.S. embargoes goods, or to
anyone on the U.S. Treasury Department's list of Specially Designated Nationals
or the U.S. Commerce Department's Table of Denial Orders.
6. ENFORCEMENT OF TERMS; TERMINATION. If you fail to fulfill any of your
material obligations under this Agreement, SGI and/or its licensors may pursue
all available legal remedies to enforce this Agreement, and SGI may, at any
time after your default of this Agreement, terminate this Agreement and all
licenses and rights granted to you under this Agreement. You agree that SGI's
licensors referenced in the SOFTWARE and third-party beneficiaries of this
Agreement, and may enforce this Agreement as it relates to their intellectual
property. You further agree that if SGI terminates this Agreement for your
defaults, you will, within thirty (30) days after any such termination, deliver
to SGI or render unusable all SOFTWARE originally provided to you hereunder and
any copies thereof embodied in any medium.
7. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with California law, excluding its choice of law rules.
U.S. GOVERNMENT USERS, if the SOFTWARE is acquired by or on behalf of an entity
of government of the United States of America, the following provision applies:
U.S.. GOVERNMENT RESTRICTED RIGHTS LEGEND
2.
27
Use, duplication or disclosure of SOFTWARE by the Government is subject to
restrictions as set forth in FAR 52.227-19(c)(2) or subparagraph (c)(1)(ii) of
the Rights in Technical Data and Computer SOFTWARE clause at DFARS 252.227-7013
and/or in similar or successor clauses in the FAR. or the DOD or NASA FAR
Supplement. Unpublished rights reserved under the Copyright Laws of the United
States. Contractor manufacturer is SIL.CON GRAPHICS. INC., 0000 X. Xxxxxxxxx
Xxxx., Xxxxxxxx Xxxx, XX 00000-0000.
8. DISCLAIMER OF SOFTWARE WARRANTY. SGI PROVIDES THE SOFTWARE TO YOU "AS
IS" AND WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING
WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY SGI EMPLOYEE,
REPRESENTATIVE OR DISTRIBUTOR WILL CREATE A WARRANTY FOR THE SOFTWARE, AND YOU
MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
9. LIMITED WARRANTY ON MEDIA. SGI warrants the media on which SOFTWARE
is recorded and provided to you under this Agreement to be free from defects in
materials and workmanship under normal use for a period of ninety (90) days
after the date of the original delivery of SOFTWARE to you. Such warranty is
solely for your benefit and you have no authority to assign, pass through or
transfer this warranty to any other person or entity. If you return any
defective media to SGI or an authorized SGI representative during the warranty
period with proof of purchase. SGI will, at its sole option, either replace
such defective media or refund the purchase price for such media. This
warranty will not apply to any media that has been damaged by abuse, accident
or misuse. THE FOREGOING WARRANTY SETS FORTH SGI'S ENTIRE LIABILITY AND YOUR
EXCLUSIVE REMEDY FOR ANY DEFECTS IN ANY MEDIA AND IS IN LIEU OF, AND SGI
DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE INCLUDING
WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
10. INTELLECTUAL PROPERTY RIGHTS PROTECTION. If any third party brings a
suit against you that is based on a claim that the SOFTWARE solely as furnished
to you under this Agreement, constitutes direct infringement of any patent
issued by, or copyright registered in, the United States, SGI shall defend such
suit or proceeding and shall pay any damages and costs finally awarded therein
against you with respect to such matter, provided that you promptly inform SGI
of any such claim, furnish SGI with a copy of each communication, notice or
other action relating to the alleged infringement and give SGI the authority,
information and assistance necessary to settle, compromise or litigate such
suit or proceeding. Following notice of a claim or a threatened or actual
suit,
3.
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XXX may, without obligation to do so, at SGI's sole option: (a) procure for
you the right to continue to use the SOFTWARE as furnished, (b) replace or
modify the SOFTWARE to make it non-infringing, or (c) discontinue your license
for the SOFTWARE and refund to you any license fee that you paid for it, less a
reasonable value for use, determined by prorating such license fee on the basis
of a thirty-six (36) month straight line depreciation method, applied to the
period of actual use. SGI shall not be obligated to defend or be liable for
costs and damages if the infringement or claim thereof arises out of: (i) use
or combination of SOFTWARE with products or data not provided by SGI, (ii) use
of other than the latest unmodified release of SOFTWARE made available to you
by SGI if such infringement would have been avoided by the use of such release
of SOFTWARE, (iii) modification of the SOFTWARE by anyone but SGI, (iv) use of
SOFTWARE after receiving notice, or having reason to believe, that SOFTWARE
infringes a patent or copyright of a third party, or (v) a claim based on any
portion of the UNIX(R) software that may be included with SOFTWARE.
THE FOREGOING STATES YOUR EXCLUSIVE REMEDY AND SGI'S ENTIRE LIABILITY WITH
RESPECT TO INFRINGEMENT OF ANY PATENT OR COPYRIGHT BY SOFTWARE, AND SGI SHALL
HAVE NO LIABILITY WITH RESPECT TO ANY OTHER INTELLECTUAL PROPERTY RIGHT.
11. LIMITATION OF LIABILITY. EXCEPT FOR MATTERS ARISING OUT OF SECTION 10
ABOVE, IN NO EVENT SHALL SGI OR IT LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT
LIMITATION THE COST OF COVER, DAMAGES ARISING FROM LOSS OF DATA, USE, PROFITS
OR GOODWILL, OR PROPERTY DAMAGE), WHETHER OR NOT SGI HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING
OUT OF THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE
FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SGI'S LIABILITY ARISING
OUT OF THIS SOFTWARE LICENSE AGREEMENT AND/OR YOUR USE OR POSSESSION OF THE
SOFTWARE, INCLUDING WITHOUT LIMITATION ANY AND ALL CLAIMS COMBINED, WILL NOT
EXCEED THE AMOUNT OF THE LICENSE FEE FOR THE SOFTWARE PROVIDED UNDER THIS
AGREEMENT.
12. LAWS GOVERNING WARRANTIES AND LIABILITY. The law(s) of a jurisdiction
may define the scope of warranty to be provided for products or the manner in
which a supplier's liability may be limited, and such law(s) shall govern this
Agreement only to the extent a party protected by such law(s) cannot waive the
protection thereof by contract. In the U.S. and other countries, some states,
territories or other principalities do not allow the limitation or exclusion of
liability for incidental or consequential damages, or allow the exclusion of
implied warranties, so the limitation and
4.
29
exclusion above may not apply to you, and you may have other rights that vary
from state, territory or principality to state, territory or principality.
5.
30
ATTACHMENT B
VALUE-ADDED RESELLER
APPLICATION AND ANNUAL VOLUME COMMITMENT
Name of Application Description/Functionality
Please have a Customer Support Representative contact me to establish a Service
Program: ___________
Annual Volume Commitment:
Tier U.S. Dollar Commitment
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
Authorization:
SGI RESELLER
By: /s/ Xxxxx X. Xxxxx
------------------------------- ---------------------------
Date: Date: 12-26-96
----------------------------- ----------------------
1.
* CONFIDENTIAL TREATMENT REQUESTED
31
ATTACHMENT C
RESELLER DISCOUNT SCHEDULE
DISCOUNT SCHEDULE
Category Net Annual Schedule 1 Schedule 2 Schedule 3 Schedule 4 Schedule 5
Purchase Volume Discount (Power Discount Discount (IRIS Discount Discount
Series Systems, (Peripheral Indigo(TM), (Application (INDY(TM),
Hardware Options, IRIS, Distribution Indigo2(TM),
Upgrades, Software, and Crimson(TM), , 3rd party Power
Hardware Networking Onyx(TM), products) Indigo2(TM),
Options, Display Products, Challenge DM, L, Challenge S,
Options, and unless and XL, and and Power
Video Options otherwise Power Challenge Challenge M
unless otherwise noted) L and XL systems,
noted) systems, unless
upgrades, otherwise
options, and noted.)
peripherals,
unless otherwise
noted)
1. $0 to $249,999 [*] [*] [*] [*] [*]
2. $250,000 to [*] [*] [*] [*] [*]
$499,999
3. $500,000 to [*] [*] [*] [*] [*]
$999,999
4. $1,000,000 to [*] [*] [*] [*] [*]
$1,999,999
5. $2,000,000 to [*] [*] [*] [*] [*]
$4,999,999
6. $5,000,000 to [*] [*] [*] [*] [*]
$9,999,999
7. $10,000,000- [*] [*] [*] [*] [*]
Demo/ All levels [*] [*] [*] [*] [*]
Dev.
Note: See the applicable SG Price List for Product Schedule definition. This
Discount Schedule is subject to change as new Products, configurations of
Products and/or upgrades are introduced. Indigo is a registered trademark and
Indigo2, Crimson, Onyx, Indy, and CHALLENGE are trademarks of Silicon Graphics,
Inc.
1.
* CONFIDENTIAL TREATMENT REQUESTED
32
ATTACHMENT D
RESELLER MARKETING PROGRAM
1.0. DEMONSTRATION/DEVELOPMENT/TRAINING EQUIPMENT. Reseller shall be
entitled to purchase demonstration and development Workstations pursuant to
SG's then-current Reseller Policy.
2.0 SOFTWARE UPDATES. In the event Reseller purchases SG's
support/maintenance services to cover any Product purchased under Section 1.0
above, SG shall provide updates of Licensed Software to Reseller for Equipment
covered by such contract at no additional charge, to the extent which such
updates are provided at no additional charge to other resellers under SG's
contractual maintenance services.
3.0 MARKETING DEVELOPMENT FUNDS (IN THE U.S. AND CANADA ONLY). Any
marketing development funds for which Reseller may be eligible shall be
distributed pursuant to SG's then-current Marketing Development Funds program.
4.0 SERVICE PROGRAMS. SG will provide end user service directly to
Reseller's customers when Reseller markets maintenance contracts or extended
warranties to End Users. Reseller will receive a discount on the level of
service Reseller delivers to End Users. Reseller must select an appropriate
service program prior to quoting a service contract to an End User. SG will
provide notice to Reseller, at least ninety (90) days before the termination of
maintenance coverage, to allow Reseller to market maintenance coverage renewals
to its End Users.
5.0 TECHNICAL TRAINING. SG will provide technical training to Reseller
through classes offered by SG's Customer Support Division at SG's then-current
discount policy, if any. Such classes are offered on a regular basis, but
attendance is limited and advanced written registration is required. Reseller
will pay a fee for each student attending a class, and will be responsible for
any travel and per diem costs associated with its employee's attendance. Upon
Reseller's written request, SG will provide detailed information on class
content, scheduling and fees.
6.0 EQUIPMENT AND TRAINING PROGRAMS. From time to time, SG may offer
promotional product and training programs to its resellers. Subject to such
programs' eligibility requirements, Reseller shall have the right, at its
discretion, to participate in such programs.
7.0 SALES SUPPORT. SG agrees to make available to Reseller, a field sales
account representative for order placement, relationship management, and the
development of joint sales and marketing strategies.
1.
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8.0 DEVELOPER PROGRAM. Upon SGI's execution of this Agreement and payment
by Reseller of the appropriate fee, Reseller shall automatically be enrolled in
the SG Developer Program and be entitled to the full benefits of SG's
then-current Developer Program.
9.0 CONFLICT. To the extent the provision of this Attachment conflicts
with the Agreement and any Attachment thereto, this Attachment shall govern.
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ATTACHMENT E
AUTHORIZED SALES REGION(S)
Checked box(es) designate VAR's - Texas
authorized sales Region(s): - Oklahoma
- Mississippi
- NORTHWEST REGION - Louisiana
- Colorado - Arkansas
- Idaho - (southwestern tip)
- Oregon
- Alaska - NORTHEASTERN REGION
- Montana - Massachusetts
- Washington - Vermont
- Utah - Maine
- Wyoming - New Hampshire
- Connecticut
- GOLDEN GATE REGION - Rhode Island
- Northern California - Upstate New York
- SOUTHWEST REGION - MID-ATLANTIC REGION
- Southern California - Eastern Pennsylvania
- Nevada - Delaware
- Hawaii - New Jersey
- Arizona - New York (except Upstate NY)
- New Mexico
- SOUTHEASTERN REGION
- GREAT LAKES REGION - Georgia
- Michigan - North & South Carolina
- Western Pennsylvania - Tennessee
- Ohio - Alabama
- Kentucky - Mississippi
- Indiana - Florida
- West Virginia
- CHESAPEAKE REGION
- NORTH CENTRAL REGION - Maryland
- Illinois - Virginia
- Wisconsin - Washington, D.C.
- Missouri
- Kansas - ENTIRE UNITED STATES
- Minnesota X Xxxxxxxx
- Xxxx
- Xxxxx & Xxxxx Xxxxxx - XXXXXX
- Nebraska - Eastern Canada
- Central Canada
- XXXXX XXXXXXX XXXXXX - Xxxxxxx Xxxxxx
3.
35
ATTACHMENT F
PREMIER RESELLER PROGRAM
1. CRITERIA. Reseller participating in the Premier Reseller program
shall meeting the following requirements unless any such requirement has been
waived in advance by SG in writing.
(a) End user customer installations in which Reseller has licensed
the Application for use in conjunction with Workstations resold by Reseller or
purchased directly from SG due to a referral or lead passed to SG by Reseller
must be greater than or equal to $3.5 million (U.S.) worldwide.
(b) Reseller shall maintain a credit rating with SG permitting
Reseller to finance up to U.S. $350,000.
(c) Reseller shall perform significant optimization of the
Application on the SG platform.
(d) Reseller shall establish and maintain a multinational
marketing presence (e.g., establish subsidiaries or sales offices where offices
where Reseller sells Product to end Users).
2. REVENUE REPORTING. Reseller agrees that as a condition of
participation in the Premier Reseller Program, Reseller shall complete and
deliver to SG completed sell-through reports on SGI's then-current form, no
later than forty five (45) days after the close of the previous quarter.
3. MARKETING DEVELOPMENT FUNDS. SG will make available to Reseller, upon
each SG fiscal year, Marketing Development Finds subject to the following:
(a) Marketing Development Funds will be earned by Reseller sold
Application independently of Product to End Users.
(b) Marketing Development Funds will be allocated according to
SG's fiscal year and subject to the terms and conditions of the then-current
Marketing Development Fund program as published to Reseller by SG.
(c) Seller agrees that as a condition for receipt of funds,
Reseller shall deliver to SG completed sell-through reports pursuant to Section
2.0 above.
(d) Funds will be spent in accordance with the SG published
guidelines for fund usage.
1.
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4. DEMONSTRATION/DEVELOPMENT/TRAINING EQUIPMENT PURCHASE PLANS. Reseller
shall be entitled to purchase demonstration and development Workstations
pursuant to SG's then-current Premier Reseller Policy.
5. ACCESS TO SG DEVELOPER PROGRAM. SG will allow one (1) primary
Reseller contact and two (2) subscribers access to the SG's Developer Program
at no charge during the term of this Agreement.
6. TECHNICAL SUPPORT. SG will provide Reseller with access to a SG
applications engineer located at SG's facilities to assist in software product
turning, porting, and general software development support on as available
basis.
7. PREMIER RESELLER DESIGNATION. During the term of this Agreement, SG
grants Reseller a revocable, non-exclusive right to use, on appropriate Product
marketing and sales materials, the Premier Reseller logo, provided that such
use complies with Section 10.0 of Reseller Agreement.
8. CONFLICT. To the extent the provisions of this Attachment conflicts
with the Agreement and any Attachment thereto, this Attachment shall govern.
AUTHORIZATION
SGI RESELLER
By: By: /s/ XXXXX X. XXXXX
-------------------------- --------------------------------
Date: Date: 12-26-96
------------------------ ------------------------------
2
37
Silicon Graphics, Inc.
0000 X. Xxxxxxxxx Xxxx.
Mail Stop 20U-105
Xxxxxxxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
ADDENDUM TO THE VALUE-ADDED RESELLER AGREEMENT
This Addendum to the Value-Added Reseller Agreement ("Addendum") is dated for
reference purposes only as ________________, 1996, and is made and incorporated
into that Value-Added Reseller Agreement of even date herewith between
Molecular Simulations, Inc., ("MSI"), a _____________ corporation and Silicon
Graphics, Inc. ("SG"), a Delaware corporation. As used herein, the term
"Addendum" shall mean the Value-Added Reseller Agreement, this Addendum and all
addenda, attachments, riders, exhibits, rules, regulations, covenants,
conditions and restrictions referred to in the Agreement Form or this Addendum.
The terms set forth herein shall have the same meanings as they have in the
Agreement.
THE PARTIES AGREE TO THE FOLLOWING:
1. DEFINITIONS.
1.2. This section is changed to read: "Annual Volume Forecast" means the tier
designated by the parties under the caption "Annual Volume Forecast" on
Attachment B and that comply with Reveler's certification set forth in Section
3.2. below."
3.0 APPOINTMENT OF RESELLER; SCOPE OF AGREEMENT.
3.1 APPOINTMENT.
MSI shall be entitled to use the Equipment for an evaluation program and
consulting services.
5.0 RESELLER OBLIGATIONS.
(B) Add the following to the end of this section: "SG agrees to cooperate
with Reseller in the development of an appropriate Business Plan solely for the
purposes of this Agreement."
(D) Delete this section in its entirety.
(E) Delete this section in its entirety.
1.
38
(L) At the end of line one (1), add the word "reasonable" before the word
"previous".
(L) At line one, delete the word "each" and insert in place thereof the words
"one or more".
6.0 PRICE, DISCOUNTS AND ORDER.
6.7 DISCOUNT LEVEL DETERMINATION.
This section shall remain unchanged.
8.0 PAYMENTS AND SECURITY TERMS.
8.1 PAYMENT FOR PRODUCT PURCHASED FROM SGI.
At line three (3), after the words "Agreement net" delete "thirty (30) " and
insert in place thereof "forty five (45)".
8.4 SECURITY FOR EQUIPMENT PURCHASED IN THE US.
At line five (5), after the words "in the Equipment" delete "in any receivables
generated therefrom upon Reseller's subsequent disposition of the Equipment, and
in any proceeds (as such term is defined in Section 9306(1) of the California
Commercial Code) derived from the sale of the Equipment or the collection of
such receivables."
12.0 LIMITED PATENT AND COPYRIGHT PROTECTION
12.1 INFRINGEMENT CLAIMS.
At line six (6), delete the word "registered".
At line eight (8), after the word "costs" add "incurred by or".
At line twenty (20), after the word "non-infringing" add the words "and of
equivalent functionality".
16.0 GENERAL
16.13. AUDIT
Change the last sentence of this section to read as follows: "SGI shall pay for
the audits unless the audits reveal material discrepancies in excess of five
percent (5%) of the total amount purchased by Reseller or that Reseller is in
breach of this Agreement, in which event Reseller shall pay for the audit. In no
event, shall Reseller pay more than five
2
39
thousand US dollars ($5,000.00) for the cost of such audit. The foregoing shall
in no way limit Reseller's liability for a breach of this Agreement.
DISCOUNT SCHEDULE.
SGI is currently in the process of announcing new products. SGI's Origin 2000,
Origin 2000(TM), and Onyx(TM) products shall be provided at Schedule 3
discounts. SGI's Indy and WebFORCE(TM), Products shall remain at Schedule 5
discounts. SGI's O2(TM), Products shall be provided to you at Schedule 3
discounts. The Discount Tier for Schedule 7 is D.
EFFECT OF ADDENDUM.
In the event of any inconsistency between this Addendum and/or the Value-Added
Reseller Agreement, the Attachments or Exhibits hereto, and any other addenda,
riders exhibits, rules, regulations, convenants or attachments referred to in
the Agreement, the terms of this Addendum shall prevail.
IN WITNESS WHEREOF, these duly authorized parties agree to the foregoing
provisions set forth on the date below.
SILICON GRAPHICS, INC. MOLECULAR SIMULATIONS, INC.
By: By: /s/ XXXXX X. XXXXX
-------------------------------- ----------------------------------
Name: Name: Xxxxx X. Xxxxx
------------------------------ --------------------------------
Title: Title: Chief Financial Officer
----------------------------- -------------------------------
Date: Date: 12-26-96
------------------------------ --------------------------------
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EXHIBIT A TO ATTACHMENT D
DIRECT RESELLER DEMO/DEVELOPMENT
DISCOUNT POLICY
Silicon Graphics, Inc., may provide specific discounts for Demo/Development
Systems. For this purpose the term "Demo/Development System(s)" is defined as
Silicon Graphics Products which are purchased for use in training,
demonstration, or development of software to support the sales of Silicon
Graphics Products.
VAR/VAD shall be entitled to the discounts set forth in the VAR/VAD
Demo/Development Discount Schedule.
VAR/VAD must purchase at least 1 (one) Silicon Graphics workstation to be used
as a Demo/Development System. Only 1 (one) workstation may be purchased at the
VAR/VAD Demo/Development discounts for each approved location per quarter.
Each policy is effective August 1, 1996.
VAR/VAD
DEMO/DEVELOPMENT DISCOUNT SCHEDULE
Demo/Dev/Schedule 1 Schedule 2 Schedule 3 Schedule 4 Schedule 5
Training
VAR/VAD [*] [*] [*] [*] [*]
*CONFIDENTIAL TREATMENT REQUESTED
