EXHIBIT 10.9
GOLD STANDARD RESELLER AGREEMENT
Agreement between INVU Services Limited (hereby referred to as INVU) and
Computer Associates International, Inc.
(Hereby referred to as CA)
Date: June 16, 1999 Our Ref: MPW/CAGPS
OVERVIEW
INVU is pleased to appoint CA as an Authorized Gold Standard Reseller
with effect from June 16, 1999. This appointment is for the INVU range of
products, as specified in Appendix A.
This appointment entitles CA to represent itself as an Authorized
Reseller for INVU and an Authorized Reseller of the relevant INVU range.
In accordance with this appointment, CA agrees to use all reasonable
endeavors to promote and sell the INVU range of products.
TERMS
1. INVU grant, and CA accepts this non-exclusive appointment as an
Authorized Reseller for the specified product(s) from INVU for a period
of 12 months from June 16, 1999, renewable on termination for a 12
month period, subject to agreement from both parties.
2. CA agrees to provide qualified and competent sales and marketing staff,
and to use all reasonable endeavors to maximize the sales opportunities
for the INVU range.
3. INVU agrees to pass sales leads to CA subject to availability. INVU
also agree to inform CA regarding Trade Shows, promotional material,
press releases and other relevant marketing materials and activities in
a timely fashion. CA undertake to advise INVU on a monthly basis as to
the progress and follow up of all leads and customer contacts relevant
to INVU products. CA also undertake to provide a ninety day rolling
forecast of business relevant to INVU.
4. All reasonable quantities of sales literature, marketing materials and
the like, required in the normal course of business for promoting,
selling and marketing of product from INVU will be supplied free of
charge.
5. INVU will provide two places on INVU's technical training courses free
of charge to CA personnel.
** [Confidential Treatment] indicates portions of this document that have
been deleted from this document and have been separately filed with the
Securities and Exchange Commission.
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6. CA must ensure at all times that is employs two technical staff who
have attended the INVU one day technical authorization course.
7. CA will provide a first line support service to all its clients on INVU
products. This service will handle the initial customer call, and
resolve any issues which could normally be expected to be resolved by
staff who have had the INVU training. INVU will not handle support
calls from CA clients directly.
8. CA will be permitted to use the Authorized Dealer not line technical
support facility for its own second line support needs. Full online
access will also be available to the INVU web site support page for
access to new releases, but clearances, and technical updates. CA must
purchase their own modem and connectivity means to enable access to the
web site.
9. INVU retains the right to charge CA for support and management time
spent in answering support calls and onsite visits which should have
been resolved by training CA staff. Standard INVU charging rates are
available on request.
10. INVU product sold through CA will be covered by the INVU product
warranties set out in the INVU software license.
11. CA will maintain a working demonstration system for the nominated INVU
products at all times, INVU will provide, free of charge, a
"Demonstration Product", comprising one item of INVU software. INVU
undertakes during the continuation of this agreement to maintain the
software content "Demonstration Product" to the latest specification at
all times at no additional cost to the dealer. It is the responsibility
of CA to provide, at their own cost, whatever hardware as is necessary
to run the demonstration system.
12. Product supplied to CA by INVU will be at **[Confidential Treatment
Requested]% discount from INVU's published United Kingdom recommended
retail price list. Product shown on rolling 90 day forecasts will
normally be shipped within one working day of receipt of order. Product
not shown on 90 day rolling forecasts may be subject to delivery
delays, normally not exceeding five days.
13. Gold Standard Resellers must achieve a minimum spend with INVU of US $
**[Confidential Treatment Requested] per calendar year. This achieve-
ment will be reviewed by the INVU account manager in the month follow-
ing the end of quarter, and failure to achieve the minimum level will
lead to suspension of this contract. Supply of INVU product will then
only be made on the standard registered VAR terms of **[Confidential
Treatment Requested]% discount, and the VAR will have no access to INVU
leads, marketing activities and materials.
14. INVU reserves the right to amend the United Kingdom recommended retail
price list at any time subject to 30 days notice in writing.
15. CA will only sell INVU products to genuine end user clients for use on
hardware configurations which belong to them. CA will not supply the
range of INVU products to resellers who are not authorized by INVU.
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16. For the term of this agreement, CA is appointed as an Gold Standard
Authorized Reseller. If the contract is terminated for any reason, CA
must stop use of these terms immediately.
17. This agreement is governed and construed in accordance with the laws of
England.
Two copies of the agreement should be signed by an authorized signatory
for the company, and returned to INVU. The agreement is not deemed to be in
place until INVU have countersigned the agreement and returned it.
FOR AND ON BEHALF OF COMPUTER ASSOCIATES INTERNATIONAL, INC.
Signature /s/ Xxxxxxx [Xxxxxxx]
--------------------------------
Name Xxxxxxx [Xxxxxxx]
--------------------------------
Position Senior Vice President
--------------------------------
Date 6/25/99
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FOR AND ON BEHALF OF INVU SERVICES LIMITED
Signature /s/ Xxxxx Xxxxxx
--------------------------------
Name X. Xxxxxx
--------------------------------
Position President & CEO
--------------------------------
Date 26/5/99
--------------------------------
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APPENDIX A - INVU PRODUCTS COVERED BY THIS AGREEMENT
INVU PRO
INVU PRO (Network Edition)
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ADDENDUM TO RESELLER AGREEMENT
FOR
PRODUCTS ("Agreement")
DATED JUNE 16, 1999 BY AND BETWEEN
INVU SERVICES LIMITED ("Invu")
AND
COMPUTER ASSOCIATES INTERNATIONAL, INC. ("Reseller")
The Agreement dated June 16, 1999, as amended with certain deletions
shown thereon, and all Supplements referring thereto, are hereby modified as
follows below. Any reference to the Agreement shall mean the Agreement as
modified by this Addendum. In the event of any inconsistency between the terms
of the Agreement, any Supplemental and this Addendum, this Addendum shall govern
and control unless expressly agreed by the parties.
1. Computer Associates International, Inc. shall be deemed to include
Computer Associates International, Inc., its parent company , and all
affiliates, subsidiaries, and divisions controlling, controlled by, or under
common control with, Computer Associates International, Inc.
("Reseller"), wherever located on a worldwide basis.
2. All licenses granted to Reseller pursuant to the Agreement shall be
worldwide, perpetual, fully paid-up, and non-exclusive licenses. Reseller
acknowledges that, from time to time, Reseller may purchase licenses from Invu
from nominated distributor.
3. All software licenses granted and services to be delivered to
Reseller shall be installed by Invu and shall be subject in all respects to a
sixty (60) day warranty period set forth herein. Notwithstanding warranties set
out in Clause 8 below, Invu warrants that the licenses granted shall be free
from defects in materials and workmanship. In the event that such defects occur,
then Invu shall replace/repair at Invu's option the said licenses.
4. Reseller may make copies of the Products for archival and back-up
purposes and use such archival or back-up copies on a system other than as the
license provides herein or at an installation site other than that identified in
the applicable Supplement for the purposes of conducting testing of the disaster
recovery plan's procedures and effectiveness and during any period subsequent to
the occurrence of an actual disaster during which the Reseller cannot operate
the Products.
5. At any time that Reseller shall elect, Reseller shall be entitled to
contract with a third party to provide outsourcing or third-party processing
services respecting the Products. Should any Products be used in such manner,
Invu shall cooperate with Reseller in providing such third party with access to
the Products as soon as practicable.
6. All payment terms shall be Net 30 days from the date of invoice. Any
invoiced amount which is not the subject of a bona fide dispute and not paid on
or before the due date may be subject to a reasonable service charge, but no
payment of late fees or interest shall be due. If Reseller shall fail to pay an
undisputed invoice, Reseller shall pay all of Invu's actual out-of-pocket costs
and
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expenses (including reasonable attorney's fees) if payment is rightfully due to
Invu and legal action is required to collect outstanding balances.
7. Invu represents and warrants that the pricing granted to Reseller
represents the best price currently available from Invu. In the event that Invu
reduces its prices generally during a period within five (5) years from the date
hereto, Invu will notify Reseller and permit Reseller to receive the benefits of
such preferential pricing. For a period of ten (10) days from the date of
license, the maintenance fees for the Products shall not increase more than
**[Confidential Treatment Requested] percent from the maintenance fees paid by
Reseller in the previous year. In addition, for a period of ten (10) years from
the date of license, the maintenance rate of **[Confidential Treatment
Requested] percent shall remain fixed and shall not increase in any respect. Any
future purchase of goods or services from Invu will be subject to the same
preferential pricing provided to Reseller hereunder.
8. Support and maintenance services for Products shall at all times
consist of support, updates and fixes as they become available. Major new
releases will be subject to further charges, which will be re-sold by the
Reseller to the end-users. Support and maintenance services will at all times
include (a) telephone consultation on use of the Products and error diagnosis,
isolation and correction via remote telephone support or e-mail as applicable,
dial-in access during standard support hours; (b) the furnishing of available
error or defect problem solutions on a timely basis, (c) an error or defect
reporting service; and (d) technical bulletins and written updates. Reseller may
initiate on-site support subject to availability at additional charges, but
there shall be no charge for on-site maintenance services, if Invu's services
pursuant to this agreement fail to remedy the defective operation of these
Products.
In the event that Invu shall have ceased providing maintenance services
to Reseller, Invu shall deliver a copy of the source code for the Products.
Reseller will, however, only use such copy of the source code internally to
support the Products.
Invu warrants that, for as long as Reseller is entitled to receive
maintenance from Invu for the Products, the Products shall perform substantially
in accordance with the corresponding technical specifications set forth in the
user's manual provided by Invu with the Products on the Equipment recommended by
Invu and set forth on the Supplemental or other Order. Invu's sole obligation
under this warranty shall be limited to using its reasonable efforts to correct
such defects and supply Reseller with a corrected version of such Products as
soon as practicable after Reseller has notified Invu of such defects. In the
event that Invu shall be unable to cause the Products to operate following
notification of the defect by Customer, Reseller shall be entitled to terminate
this license with respect to such Products and be entitled to receive a refund
of all fees paid hereunder. However, neither party shall be liable to the other
party for any consequential, special, indirect and/or economic losses, costs,
claims and/or damages howsoever caused.
9. Either party may terminate this Agreement or any particular license
granted hereunder upon thirty (30) days written notice. Immediately upon
termination of this Agreement and/or any particular license for reasons other
than Invu's breach, Reseller shall return or destroy all Products and
Documentation (provided under such terminated licenses) and all copies thereof
in any form (including translations and compilations), whether partial or
complete, and whether or not modified or merged into other Products made by
Customer. If requested by Invu (and only if Invu is not in
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breach), Reseller shall certify in writing as to the return or destruction of
such Products and Documentation and all copies thereof. Invu shall have the
right to use reasonable means to verify Customer's actual compliance with such
certification.
10. Reseller and Invu agree not to disclose to any third party any
Confidential Information disclosed to it by the other party without the prior
written consent of the disclosing party. Each party further agrees to take the
same care with the other's Confidential Information as it does with its own, but
not less than a reasonable standard of care. Each party agrees to take
appropriate action by instruction or agreement with all persons who are
permitted access to Confidential Information. Reseller shall limit access to the
Confidential Information of Invu to those persons having a need to know such
information in order to exercise or perform Customer's rights and obligations
under this Agreement.
11. The terms set forth herein shall not be interpreted or construed to
prevent or restrict Reseller from participating in any manner in the creation,
development or distribution of type of computer software or program with similar
functions or features competitive to the Products licensed hereunder.
12. This Agreement shall be governed by, and construed in accordance
with, the laws of England.
13. This Agreement is not assignable by either party without the prior
written consent of the other party, which consent shall not be unreasonably
withheld or delayed; except that consent shall not be necessary in the event of
Reseller's assignment to any affiliate, subsidiary or division. Except as set
forth above, any attempt to assign any of the rights, duties, or obligations of
this Agreement without such consent shall be void and no effect. Only upon
obtaining Reseller's prior written consent in each instance, Invu shall be
entitled to fulfill any of its obligations under this Agreement through the
services of any independent party.
14. This Agreement can be modified only by a written agreement signed
by persons duly authorized to sign agreements on behalf of Reseller and Invu.
15. Invu represents and warrants that the Products will operate before,
during and after January 1, 2000, with no adverse effects or consequences to the
operation of the Products due to the change in century.
16. Invu represents and warrants that the Products will operate in
accordance with all currencies worldwide, including Euro conversions with no
adverse effects or consequences to the operation of the Products due to the
change of currencies or phased implementation of the Euro.
17. Invu represents and warrants that the Products do not and will not
contain any disabling codes, viruses,, or other mechanisms which will cause the
interruption or impairment of Reseller's operations of the Products. In the
event such codes are discovered, Invu will promptly remove them or consent to
the issuance of a temporary restraining order to prevent their operation.
The Effective Date of the Agreement is June 16, 1999.
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VENDOR COMPUTER ASSOCIATES INTERNATIONAL INC.
INVU SERVICES LIMITED
BY: /s/ Xxxxx Xxxxxx BY: Xxxxxxx [Xxxxxxx]
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TITLE: President & CEO TITLE: Senior Vice President
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NAME: X. Xxxxxx NAME: Xxxxxxx [Xxxxxxx]
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DATE: 26/5/99 DATE: 6/25/99
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