EXHIBIT 10.12
SUN MICROSYSTEMS, INC.
SOFTWARE CHANNEL PROGRAM AGREEMENT
(United States and Canada)
This Sun Software Channel Program Agreement ("Agreement") and the Sun Channel
Program Guide ("Guide") contain the terms applicable to participants in the Sun
Software Channel Program. The terms of Section A and B below apply to
participants which resell Sun software products. For other participants which do
not resell Sun Software products, such as consultants and systems integrators,
only the terms of Section B apply.
Upon Sun Microsystems, Inc. ("Sun") issuing to the undersigned applicant
("Applicant") an authorization number ("Authorization"), Sun appoints Applicant
as a nonexclusive "Authorized Software Partner" or "Authorized Software
Enterprise Partner" as indicated by the Authorization.
Section A
1.0) Obligations. Applicant agrees to:
1.1) Sell only Sun software products which Applicant is authorized to sell as
indicated in the Guide ("Licensed Products"). Licensed Products may be acquired
by Applicant only from Sun Authorized Software Distributors and Master Resellers
("Authorized Distributors");
1.2) Pass along to End Users the Binary Code License ("BCL") contained in
Licensed Products;
1.3) Provide End Users with a warranty for Licensed Products at least
equivalent to the warranty provided by the Authorized Distributor from which
Applicant acquired the Licensed Product and indemnify Sun for any liability or
damages caused by Applicant's provision of any other warranty;
1.4) P rovide to Sun (or its designee) a written point-of-sale report as
described in the Guide (Authorized Software Enterprise Partners only);
1.5) Sell Licensed Products only to End Users located in United States and
Canada ("Territory"). "End User" means a person or entity who acquires Licensed
Products for its own internal use and does not include an entity which resells,
licenses or leases Licensed Products; and
1.6) Use its best efforts to promote the sale of Licensed Products.
2.0) Support. During the Term of this Agreement, Applicant will provide
prospective End Users with complete pre-sale support, and End Users with
post-sale support as provided in the Guide.
3.0) Subscription Kits.
3.1) Sun grants to Applicant a non-transferable, nonexclusive, limited license
to distribute Subscription Kits within the Territory. "Subscription Kit" means
tangible or electronically
downloadable materials for Licensed Products designated in the applicable Sun
price list as a Sun Software Subscription product and delivered in a kit form.
Subscription Kits contain (i) a certificate for the Sun Software Subscription
services entitling an End User to receive drop-shipments of upgrades for
Licensed Products directly from Sun; (ii) Sun Software Subscription services
program terms; (iii) End User registration and acceptance forms to be completed
and returned to Sun; and (iv) marketing collateral.
3.2) Applicant may not open any Subscription Kit prior to delivery to End
Users. Applicant may not sell or distribute Subscription Kits unless the End
User has first provided satisfactory proof of its license for the most current
version of the Licensed Products. Proof of End User's current license will be
satisfied by the End User showing Applicant copies of its license or install
disk, cover page of the install disk manual or other form of proof satisfactory
to Sun that End User is licensed to the current version level.
3.3) Subscription Kits may be purchased only from Authorized Distributors.
3.4) In the event an End User does not accept the terms provided in the
Subscription Kits and elects within fifteen (15) days of purchase to return the
Subscription Kit to Applicant, Applicant must accept return of the Subscription
Kit and refund the fees paid by End User. Applicant may return, shipping
prepaid, to the Authorized Distributor from which the Subscription Kit was
purchased, the Subscription Kit returned by the End User for a refund of the
fees paid by Applicant, provided, however, that: (i) the Subscription Kit was
properly returned to Applicant by the End User within fifteen (15) days of its
purchase; and (ii) Applicant requests and has received a Return Material
Authorization ("RMA") number from the Authorized Distributor within five (5)
business days of the Subscription Kit's return by the End User to Applicant.
3.5) Any additional subscription offerings and requirements are set forth in
the Guide.
Section B
1.0) Obligations. Applicant agrees to:
1.1) Report promptly to Sun all suspected and actual problems with any Licensed
Product;
1.2) Display, demonstrate and represent Licensed Products fairly and make no
representations concerning Sun or Licensed Products which are false, misleading
or inconsistent with those representations set forth in literature distributed
by Sun;
1.3) Adhere to Sun's applicable requirements for training, including for
authorized sales representatives and authorized systems engineers as set forth
in the Guide; and
1.4) Provide Sun on a quarterly basis with a relationship planning document as
described in the Guide.
2.0) Access to Sun Software Channel Program Web Site. Subject to the following,
Sun will provide Applicant with an account login, password and the site URL for
Sun's proprietary channel information system ("Channel Web").
2.1) Title to and ownership in all products, including software products,
documents and other program information contained in the Channel Web ("Web
Contents") will solely and exclusively be and remain in Sun and/or its
licensors.
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2.2) Applicant is not authorized to make any modifications or revisions to the
Web Contents nor distribute the Web Contents to any third party. Applicant will
indemnify Sun form all liability, expense, and damage of any type arising form
Applicant's violation of this Section B.2.0.
2.3) Applicant acknowledges that Sun is not obligated to make any of the Web
Contents available as a final Sun product. Sun retains the right to make any
modifications or changes to the Web Contents at any time without prior notice to
Applicant. The Web Contents are provided strictly on as "AS IS" basis. Applicant
acknowledges that no support will be provided by Sun for the software product(s)
contained in the Web Contents.
2.4) Applicant may use software products contained in the Web Contents only
for: (i) its internal evaluation purposes and (ii) at its primary business
facility. If the software products contain third party code, Applicant's use of
the products may be subject to additional terms.
3.0) Sun Channel Program Guide. Applicant understands that the Guide sets forth
additional terms and authorization requirements and that Applicant's appointment
is conditioned on its compliance with this Agreement and the Guide. Changes to
the Guide will be provided via the Channel Web and Applicant agrees to be bound
by these changes. For those Applicants who do not have regular access to the
internet and Channel Web, printed copies of changes to the Guide will be
provided by Sun upon written request.
4.0) Not For Resale Software.
4.1) As part of the Sun Software Channel Program, Applicant may obtain
not-for-resale copies of Licensed Products ("NFR Software"). Licensed Products
available as NFR Software are designated on Channel Web and may be ordered only
from Authorized Distributors. Applicant may use no more than one (1) copy of
each NFR Software at each Applicant business location. Each location at which
NFR Software is used must be staffed with Applicant employees who have met all
applicable training, testing and authorization requirements set forth in the
Guide.
4.2) NFR Software must at all times be clearly labeled "Not For Resale
Software" and may be used only for purposes of internal staff training,
pre-sales support, customer demonstrations and Sun approved marketing.
4.3) Applicant must destroy all NFR Software: (i) upon notice that the NFR
Software has been discontinued or is available as a new revision release or (ii)
if it is no longer being used on a regular basis by Applicant for the purposes
described in Section B.4.2. To obtain new revision releases of NFR Software,
Applicant must provide Authorized Distributor with written certification that
the NFR Software has been destroyed.
4.4) In addition to this Section B.4.0, Applicant's use of NFR Software is
further subject to the terms of the BCL which accompanies the software.
4.5) Applicant may not use the NFR Software for development of software
programs; nor copy, resell or distribute the NFR Software to any third party.
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5.0) Disclaimer of Warranties.
5.1) Unless specified in this Agreement, all express or implied conditions,
representations and warranties, including any implied warranty of
merchantability, fitness for a particular purpose, or non-infringement, are
disclaimed, except to the extent that such disclaimers are held to be legally
invalid.
5.2) Licensed Product is not designed or intended for use in the design,
construction, operation or maintenance of any nuclear facility. Sun disclaims
any express or implied warranty of fitness for such uses.
6.0) Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER FOR THE OTHER'S INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES, NO MATTER WHAT THEORY OF LIABILITY, AND EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL NOT
APPLY: (i) IN THE EVENT THAT THE ACTION OR INACTION OF A PARTY RESULTS IN THE
UNAUTHORIZED DISCLOSURE, DISTRIBUTION OR USE OF THE OTHER PARTY'S CONFIDENTIAL
INFORMATION; (ii) WITH RESPECT TO ANY INDEMNIFICATION REQUIRED UNDER THIS
AGREEMENT OR (iii) FOR CLAIMS ARISING OUT OF SECTION B.5.2. IN NO EVENT WILL AN
ENTITY WORKING WITH SUN ON THE DEVELOPMENT AND SUPPLY OF ANY LICENSED PRODUCT OR
PART THEREOF BE LIABLE UNDER THIS AGREEMENT.
7.0) Trademarks and Special Program Logos.
7.1) "Sun Trademarks" means all names, marks, logos, designs, trade dress and
other brand designations used by Sun in connection with Licensed Product.
Applicant may refer to Licensed Product by the associated Sun Trademarks,
provided that such reference is not misleading and complies with the then
current Sun Trademark and Logo Policies. Applicant may not remove, alter, or add
to any Sun Trademarks, nor may it co-logo Licensed Products. Applicant is
granted no right, title or license to, or interest in, any Sun Trademarks.
Applicant acknowledges Sun's and its licensors' rights in Sun Trademarks and
agrees that any use of Sun Trademarks by Applicant will inure to the sole
benefit of Sun and its licensors. Applicant agrees not to (i) challenge Sun
Microsystems, Inc.'s or its licensors' ownership or use of, (ii) register, or
(iii) infringe any Sun Trademarks, nor will Applicant incorporate any Sun
Trademarks into Applicant's trademarks, service marks, Applicant names, internet
addresses, domain names, or any other similar designations. If Applicant
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 or its licensors
as applicable along with any associated goodwill, applications, and/or
registrations.
7.2) Applicant may use the special program logo, if any, applicable to
Applicant's channel (e.g. Authorized Applicant Logo) only: (i) as shown in the
art work provided by Sun; (ii) in pre-sale marketing materials and advertising,
but not on goods, packaging, product labels, documentation or other materials
distributed with Sun products; (iii) in a manner no more prominent than
Applicant's corporate name and logo; and (iv) otherwise in accordance with the
then current Sun Trademark and Logo Policies.
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7.3) Sun has the right to disclose and publish Applicant's name, address and
profile information in connection with the Sun Software Channel Program.
8.0) Confidential Information. If Sun desires that information provided to
Applicant under this Agreement be held in confidence, Sun will identify the
information as confidential or proprietary. Applicant 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 Applicant 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 B.8 will
not affect any other confidential disclosure agreement between the parties.
9.0) Records and Audit Rights. During the term of this Agreement, and for a
period of three (3) years thereafter, Applicant will maintain records and
accounts sufficient to determine Applicant's compliance with the terms of this
Agreement. These records and accounts will be kept in the English language. Sun
has the right to audit Applicant's records and accounts after reasonable notice,
no more frequently than once per calendar quarter. The right to audit may be
exercised through an independent auditor of Sun's choice ("Auditor"). Auditor
will be bound to keep confidential the details of the business affairs of
Applicant and to limit disclosure of the results of any audit to only the
sufficiency of the records and accounts, including, but not limited to, whether
Applicant is in compliance with the terms of this Agreement.
10.0) Term and Termination.
10.1) This Agreement will commence upon the date Sun issues the Authorization
to Applicant ("Effective Date"). Unless earlier terminated as provided, below,
this Agreement will remain in effect until the date established in the following
schedule:
Effective Date Expiration Date (of the following year)
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July 1 - September 30 September 30
October 1 - December 31 December 31
January 1 - March 31 March 31
April 1 - June 30 June 30
10.2) Either party may terminate this Agreement at any time upon thirty (30)
days written notice to the other party.
10.3) Upon termination of this Agreement: (i) Applicant's rights under this
Agreement will immediately terminate; (ii) Applicant must discontinue use of and
destroy any confidential information provided by Sun and NFR Software in its
control or possession; and (iii) Applicant must cease use of any Sun special
program logos. Rights and obligations which by their nature should survive, will
remain in effect after termination or expiration of this Agreement.
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11.0) General Terms.
11.1) 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 this Agreement to an affiliated company.
11.2) 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.
11.3) All Licensed Products under this Agreement is subject to U.S. Export
control laws and may be subject to export or import regulations in other
countries. Applicant 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
Applicant.
11.4) 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.
11.5) Any action related to this Agreement will be governed by California law
and controlling U.S. federal law. The United Nations' Convention on Contracts
for the International Sale of Goods and the choice of law rules of any
jurisdiction will not apply.
11.6) 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.
11.7) This Agreement (including the Guide) is the parties' entire agreement
relating to its subject matter. It supersedes all prior or contemporaneous oral
or written communications, proposals, conditions, representations and 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. Except for the Guide, which
may be modified by Sun at any time without notice to Applicant, no modification
to this Agreement will be binding, unless in writing and signed by an authorized
representative of each party.
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I have read and agree to the terms of this Agreement and the Guide.
(Initial one) Sections A and B (reseller) _____
Section B (non-reseller) X
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Applicant: Logical Design Solutions Inc.
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(printed or typed)
By:
Name: E. Xxxxx Xxxxxxxxx
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(printed or typed)
Tile: Chief Financial Officer
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(printed or typed)
Date: August 23, 1999
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