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EXHIBIT 10.9
NOVELL, INC.
COMPOSITE SIGNATURE AGREEMENT
FOR NOVELL AUTHORIZED OEMS
Name and Address of Authorized OEM: Agreement Number:
Microdyne Customer Number:
000 Xxxxx Xxxxxx Xx.
Xxxxxxxxxx, XX 00000
Novell Branch Office: Novell Philadelphia, 0000 Xxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, XX 00000
This Composite Signature Agreement is entered into by Novell, Inc. ("Novell")
and OEM, and will commence on the date accepted and executed by an authorized
Novell signatory.
This Composite Signature Agreement, when signed by Novell and OEM, will have
the same effect as each of the below identified documents would have if signed
by Novell and OEM.
Initials Title of Documents
/s/ DL Standard OEM Agreement
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Each of the identified documents is incorporated by reference. In the event of
a conflict or ambiguity between documents, the specific shall control the
general; the relative order of specificity of the documents is as follows: (1)
special Addenda, (2) Standard Addenda, and (3) the Standard OEM Agreement.
OEM ACKNOWLEDGES THAT IT HAS READ EACH OF THE DOCUMENTS DESIGNATED BY THE
INITIALS OF ITS AUTHORIZED REPRESENTATIVE, UNDERSTANDS THEM, AND AGREES TO BE
BOUND BY THEIR TERMS AND CONDITIONS.
This Composite Signature Agreement, together with all referenced documents, is
the exclusive statement of the entire agreement between Novell and OEM and
supersedes all prior oral and written representations or agreements between the
parties as to the subject matter of the Composite Signature Agreement and
referenced documents.
Accepted by:
Novell, Inc. OEM
By: /s/ X.X. Xxxxxxx By: /s/ X.X. Xxxxxxxx
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Title: Title: Vice President Operations
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Date: 6/14/95
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NOVELL, INC.
STANDARD OEM AGREEMENT
Novell and OEM agree to the terms and conditions of this Standard OEM Agreement
("Agreement"). The Agreement authorizes OEM to acquire Novell Products from
Novell and market them directly to End Users and through OEM Authorized
Resellers.
Novell maintains a Program Description for its Authorized OEM Program. Novell
may, from time to time, issue an amended Program Description which changes,
adds to or deletes from the terms of the previous Program Description. Upon
signing and initialing the Composite Signature Agreement, OEM agrees to the
terms and conditions of the current Program Descriptions, subject to OEM's
rights under Section 11.b of the Agreement.
1. DEFINITIONS. Each term defined in this Section is as follows unless the
context in which the term is used expressly provides otherwise. The term
"Section" refers to an identified section of the Agreement.
a. Bundled Products/ Services means the combination of the Novell
Products and OEM Products/Services that OEM will market and sell as
a single product offering.
b. End User means an entity who is not an affiliate of OEM's enterprise
and acquires the Novell Products for Internal Use. "End User" does
not include an entity which resells, sells, licenses, rents or
leases Novell Products to other parties in the regular course of
business.
c. Expiration Date means the date identified as the expiration date in
Exhibit A.
d. Internal Use means use for purposes which do not directly produce
revenue for the user. "Internal Use" does not include timesharing.
x. Xxxxx means Novell's trademarks, serve marks, logos, designations
and insignias.
f. Novell means Novell, Inc.
g. Novell Products means the Novell products identified in Exhibit A
that OEM is authorized to market and sell under the Agreement.
h. OEM means the customer identified as an Authorized OEM in the
Composite Signature Agreement.
i. OEM Authorized Reseller means an entity that (i) acquires Novell
Products for resale from OEM (ii) has successfully completed
Novell's Reseller Authorization Course or an equivalent course
approved by Novell and (iii) has at least one person employed, at
all times, who is a Certified NetWare Engineer.
j. OEM Products/Serves means OEM's products and/or services identified
in Exhibit B.
2. TERM. The term of the Agreement, unless terminated earlier as provided
in the Agreement, will commence on the date it is executed by an
authorized Novell signatory and will automatically expire on the
Expiration Date. The acceptance of any purchase order by Novell after
the Expiration Date will be construed as extending the Agreement on a
month-to-month basis, with the month-to-month Agreement subject to
termination at any time by either party upon thirty (30) days' prior
written notice. Nothing contained in the Agreement should be interpreted
as requiring either Novell or OEM to renew or extend the Agreement.
3. APPOINTMENT.
a. Appointment. Novell appoints OEM as a Novell Authorized Original
Equipment Manufacturer. This appointment is non-exclusive, with
Novell reserving the right to appoint other OEMs without restriction
as to number and location. Novell grants OEM a non-exclusive,
non-transferable, worldwide license to market Novell Products to (i)
End Users acquiring Bundled Products/Services for Internal Use and
(ii) OEM Authorized Resellers acquiring Bundled Products/Services
solely for resale in the ordinary course of business. OEM agrees to
offer Novell Products for sale to End Users or OEM Authorized
Resellers only as a part of a Bundled Product/Service offering and
not as a separate product offering.
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b. OEM Business Plan. OEM represents and warrants that it has provided
Novell a business plan relating to the Agreement and that the
business plan is materially accurate. OEM agrees to provide
business plan updates in accordance with the format, content and
schedule reasonably requested by Novell. OEM acknowledges that
Novell has materially relied upon OEM's representations in the
business plan in appointing OEM as a Novell Authorized OEM and that
Novell may terminate the Agreement if OEM makes an untrue statement
or omits to state a material fact in the business plan or any
business plan update.
4. PRODUCTS AND PRICES.
a. Eligible Products. OEM may market the Novell Products specified in
Exhibit A. Novell reserves the right at any time to make changes to
any Novell Products, including without limitation changes which are
required (i) for security, or (ii) to facilitate performance in
accordance with specifications.
b. Pricing and Discounts. OEM may acquire Novell Products under the
Agreement at the prices listed in Novell's general price list, less
the discount set forth in Exhibit A (or, as applicable, at the per
unit price set forth in Exhibit A). Novell reserves the right at
any time to (i) add Novell Products to or drop Novell Products from
the general price list and Exhibit A, (ii) increase or decrease
prices on the general price list and/or (iii) to increase or
decrease discounts or per unit prices. Price changes become
effective upon thirty (30) days' prior written notice to OEM.
Orders requesting delivery after the effective date of a price
increase will be charged at the increased price. OEM agrees to
waive the notice requirement in the event Novell decreases prices or
increases discounts.
c. Taxes. Prices are exclusive of all applicable taxes. OEM agrees to
pay all taxes associated with the marketing, sublicensing and
delivery of Novell Products ordered under the Agreement, including
but not limited to sales, use, excise, added value and similar taxes
and all customs, duties or governmental impositions, but excluding
taxes on Novell's net income. Any tax or duty Novell may be
required to collect or pay upon the marketing or delivery of the
Novell Products will be paid by OEM, and such sums shall be due and
payable to Novell upon delivery. If OEM claims a tax exemption, OEM
must provide Novell with valid tax exemption certificates.
d. Product Upgrades. OEM may upgrade any Novell Products acquired by
OEM under the Agreement in accordance with Novell's general product
upgrade policies. This upgrade right will expire on the Expiration
Date or on the date the Agreement is otherwise terminated as
provided in Section 11.
e. Volume Forecast. OEM agrees to achieve the total volume forecast
set forth in Exhibit A during the term of the Agreement. OEM also
agrees that Novell may review the actual dollar volumes achieved by
OEM on a quarterly basis and may terminate the Agreement, under
Section 11.a, for failure to meet a quarterly volume forecast.
f. Price Protection. In the event of a price decrease, all inventory
acquired by OEM from Novell within sixty (60) days before the price
decrease and not yet sold or under a contract for sale will be
granted price protection. The difference between the price existing
immediately prior to the decrease, less any prior credits, and the
new price will be credited to OEM's account. Price protection will
not be granted in the case of a temporary price decrease or a
special promotion.
5. MARKETING, END USER SATISFACTION AND SUPPORT.
a. Use of Authorized OEM Title. OEM may refer to itself, in connection
with exercising its rights under the Agreement, as a "Novell
Authorized OEM," but solely in connection with marketing the Bundled
Products/Services and only during the term of the Agreement.
b. Use of Novell Marks and Trade Names. OEM is authorized to use the
Novell Marks applicable to Novell Products acquired under the
Agreement in connection with its marketing of Bundled
Products/Services, but only in accordance with Novell's trademark
usage policies and only during the term of the Agreement. OEM is
not authorized to use any Novell trade names
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without the prior written consent of Novell. Upon the Expiration
Date or termination of the Agreement, OEM agrees to cease all
display, advertising and use of any and all Novell trade names and
Marks. OEM agrees not to alter, erase or overprint any notice
provided by Novell and not to attach any additional trademarks
without the prior written consent of Novell or affix any Novell
Marks of any non-Novell product. OEM recognizes Novell's ownership
and title to the trade names and Marks and the goodwill attaching to
the trade names and Marks. OEM agrees that any goodwill which
accrues because of its use of the trade names and/or Marks will
become Novell's property. OEM agrees not to contest Novell's Marks
or trade names, or make application for registration of any Novell
Marks or trade names without Novell's prior written consent. OEM
agrees not to use, employ or attempt to register any trademarks or
trade names which are confusingly similar to Novell's Marks or trade
names.
c. End User Satisfaction. The Novell Products marketing by OEM under
the Agreement are technically complex and require high-quality,
individualized pre-marketing and post-marketing support. This
support is necessary to achieve and maintain high End User
satisfaction. Oem agrees that high End User satisfaction is a
condition of its continued authorization by Novell. Although Novell
has granted OEM a worldwide license to market and sell Novell
Products under the terms of the Agreement, OEM agrees that it will
not market and sell Novell Products in areas where it does not have
the ability to support the Novell Products. In addition, in order
to help ensure high End User satisfaction, Customer agrees to:
- Report to Novell promptly and in writing all suspected and
actual problems with any Novell Product;
- Maintain a shipment report identifying the End User or OEM
Authorized Reseller, the Novell Product sold, the date of sale,
and each Novell Product's serial number;
- Retain all shipment reports for three (3) years after the date
of sale, and assist Novell, upon request, in tracing a product
to an End User or OEM Authorized Reseller, in order to
distribute critical product information, locate a Novell Product
for safety reasons, or discover unauthorized marketing or
infringing acts;
- Conduct business in a manner which reflects favorably at all
times on the products, goodwill and reputation of Novell;
- Avoid deceptive, misleading or unethical practices which are or
might be detrimental to Novell or the Novell Products;
- Refrain from making any false or misleading representations with
regard to Novell or the Novell Products;
- Refrain from making any representations, warranties or
guarantees to customers with respect to the specifications,
features or capabilities of the Novell Products that are
inconsistent with the literature distributed by Novell;
- Provide, or make commercially reasonable efforts to cause to be
provided, all original diskettes and manuals accompanying each
Novell Product to the End User.
d. OEM Authorized Resellers. OEM will require each OEM Authorized
Reseller to enter into a written agreement with its supplier (i.e.,
OEM itself or any other OEM Authorized Reseller) before any Bundled
Products/Services are provided to the OEM Authorized Reseller. The
agreement should include provisions consistent with the agreements
OEM uses with respect to the licensing of its own hardware and
software products. The agreement must contain provisions consistent
with this Agreement requiring the OEM Authorized Reseller to abide
by Section 7.a, 7.e, or 7.f of the Agreement. OEM agrees to use
commercially reasonable efforts to enforce its agreements with OEM
Authorized Resellers to ensure compliance with Section 7.a, 7.e or
7.f of the Agreement and commercially reasonable efforts to enforce
agreements with OEM Authorized Resellers and End Users with respect
to the other material provisions of this Agreement.
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e. Testing and Certification. To the extent required by Novell, OEM
agrees not to market OEM Products with Novell Products, until the
OEM Products have been tested and approved through Novell Labs.
f. Maintenance and Support. OEM is responsible to provide support to
End Users that acquire Novell Products through OEM or an OEM
Authorized Reseller. During the term of the Agreement, Novell will
provide OEM support as outlined in the Program Description. This
support will be equivalent to the support provided by Novell to
other similarly situated Novell Authorized OEMs.
6. PLACING ORDERS & TERMS OF PAYMENT.
a. Financial Information and Payment Terms. OEM agrees to maintain
good financial standing with Novell. At Novell's request, OEM
agrees to provide to Novell financial information and evidence of
financial security as reasonably required by Novell, Novell may
extend to OEM a line of credit based upon OEM's financial
information. Novell reserves the right to set the credit limit at
any level deemed prudent, and may increase or decrease the line of
credit at any time based upon OEM's payable history, credit limit,
and/or perceived risk. OEM agrees to pay for Novell Products it
orders in accordance with the credit and payment terms provided to
OEM, as they may change from time to time, or any special terms and
conditions stated on any invoice. Any other amounts owing under the
Agreement will be due and payable as indicated in any special terms
and conditions stated on the applicable invoice. Invoices not paid
when due will accrue interest on an annual basis from the date due
until paid of two percentage points (2%) over the prime interest
rate of the Chase Manhattan Bank of New York on any outstanding
balance or the maximum legal rate allowed by law, whichever is less.
All Novell Products ordered by OEM in excess of the credit limit
will be paid for in acceptable currency in advance of shipment, by a
letter of credit drawn upon a bank acceptable to Novell, a bank
cashier's check, or a bank wire transfer.
b. Acceptance of Orders. All orders will be subject to acceptance in
writing by Novell at its principal place(s) of business and will not
be binding until the earlier of acceptance or shipment. Orders
requesting shipment more than ninety (90) days from the date of the
order will not be subject to acceptance by Novell and will be null
and void. Should orders for Novell Products exceed Novell's
available inventory, Novell may, unless OEM has specifically
indicated otherwise in its purchase order, accommodate OEM's order
by allocating available inventory and making shipments on a basis
Novell deems equitable, without liability to Novell on account of
the method of allocation chosen or its implementation. Orders not
filled or completely filled by Novell within ninety (90) days of the
date of the orders will be deemed to have lapsed and will be removed
from Novell's order entry system, to the extent not filled.
c. Cancellation of Orders. Orders accepted by Novell may be canceled
without penalty by giving written notice of cancellation to Novell
at least fifteen (15) days prior to the schedule shipment date.
Orders canceled less than fifteen (15) days prior to the scheduled
shipment date may be subject to a cancellation payment of fifteen
percent (15%) of the invoice value of the canceled order. In no
event may OEM cancel any order or any portion of an order after
shipment.
d. Product Availability and Shipping Designations. Novell will use
commercially reasonable efforts to fill OEM's orders for Novell
Products and meet OEM's request for shipment dates subject to
product availability and consistent with Novell production and
supply schedules, but Novell will not be liable for any damages to
OEM or to any third party for Novell's failure to fill any orders or
for any delay in delivery or error in filling any orders for any
reason whatsoever. OEM may designate up to three (3) "xxxx to"
addresses and up to five (5) "ship to" addresses for shipments under
the Agreement. Novell will ship Novell Products and xxxx OEM to
OEM's designated "ship to" and "xxxx to" locations. OEM may change
the "ship to" location at any time prior to the estimated shipment
date; however, Novell may not be able to honor a notice unless it is
in writing and received at least fifteen (15) days prior to the
estimated shipment date. The right to change "ship to" locations
does not include any right to drop ship to customer sites.
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e. Obligation to Ship in Presence of Breach. Even in cases where
Novell accepts a purchase order, Novell will not be obligated to
ship Novell Products if OEM is in arrears on payments owing to
Novell or if OEM is otherwise in material breach of the Agreement at
the time of the schedule shipment.
f. Delivery. Delivery in the United States and Canada will be made
C.&F., OEM's facility, Novell's carrier, ground only. all other
freight arrangements will be prepaid and billed to OEM. For
delivery outside the United States and Canada, Novell will select a
carrier to transport Novell Products to the point identified in
Section 6.g, will prepay insurance and freight, and will add the
cost of insurance and freight to OEM's invoice.
g. Title & Risk of Loss. In the cases of shipments to shipping
destinations within the United States, title to Novell Products,
exclusive of the rights retained under the Agreement in Marks,
patents, copyrights, trade names, trade secrets and intellectual
property, and all risk of loss will pass to OEM upon delivery at
Novell's designated shipping facility to OEM or the common carrier
selected by Novell.
in the case of shipments to shipping designations outside the United
States, OEM and Novell expressly agree that beneficial and legal
title to, ownership of, right to possession of, control over, and
risks of loss and damage to, the Novell Products will remain with
Novell until the shipment physically arrives at the port of entry in
the importing country (or at a bonded warehouse within the
jurisdictional boundaries of Canada or Mexico if OEM requests
shipment to those countries). The time of payment, whether before
or after shipment, the place or medium of payment, the method of
shipment, the manner of consignment, whether to Novell, or its
agent, to OEM or its agent, or any agent for both, or any document
in relation to any sale under the Agreement, will in no way limit or
modify the right of Novell as the legal and beneficial owner of the
Novell Products, its right to control and its right to possession of
such goods until they physically arrive at the prot of entry of the
importing country (or at a bonded warehouse within the
jurisdictional boundaries of Canada or Mexico if OEM requests
shipment to those countries). Any use of the terms "F.O.B.,"
"F.A.S.," C.&F.," OR "C.I.F." in the Agreement will apply only to
price and not to title. It is expressly understood that the
foregoing will not be construed to mean that Novell has merely
retained bare legal title for security purposes, but rather retains
legal title and full beneficial ownership until the shipment arrives
at the port of entry in the country of destination (or at a bonded
warehouse within the jurisdictional boundaries of Canada or Mexico
if OEM requests shipment to those countries). If OEM insures the
shipment insurance policies will protect the interest of Novell as
the legal owner of the merchandise until title transfers as set
forth above.
h. Security Interest. OEM grants Novell, as security for its
obligations under the Agreement, a purchase money security interest
in (i) the Novell Products to be acquired from Novell under the
Agreement or any extension of the Agreement and (ii) the proceeds of
the Novell Products. Upon Novell's request, OEM agrees to execute
and cause to be filed all instruments or documents (including
without limitation financing statements) necessary to perfect any
security interest and further agrees that, in any event, Novell may
file a copy of the Agreement as a financial statement for this
purpose.
i. Point of Sale Reports. OEM agrees to provide Novell, by no later
than the tenth (10th) day of each calendar month, a Point of Sale
report for the previous calendar month. "Point of Sale Report"
means, for purposes of the Agreement, a report provided by OEM to
Novell which is in a Novell-specified format and which includes,
among other things, (i) a list of Novell Products sold, (ii) the
regional designation required by Novell, and (iii) the part numbers
of the Novell Products sold. The Point of Sale Report may only be
used by Novell to provide compensation to Novell's sales force and
to concentrate marketing activities to promote greater sales.
j. Inventory Balancing. Once, during each Novell fiscal quarter OEM
may return for credit a quantity of excess inventory of Novell
Products, the value of which will not exceed twelve and one-half
percent (12.5%) of OEM's net dollar sales invoiced by Novell during
the immediately preceding Novell fiscal quarter. The credit
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issued for the returned inventory will be based on the then current
U.S. list price, minus the contracted discount. This inventory
balancing privilege will apply only if: (i) at the time the Novell
Products are returned, OEM orders Novell Products equal in value to
the issued credit; (ii) OEM obtains a Novell Return Material
Authorization (RMA) prior to returning the Novell Products; (ii) the
Novell Products have been in OEM's inventory more than sixty (60)
days; and (iv) OEM completes and submits a Novell Stock Rotation
Form. Novell reserves the right to make partial approvals of any
Stock Rotation Form.
7. INTELLECTUAL PROPERTY RIGHTS & INDEMNIFICATION.
a. Software. Software acquired under the Agreement is made available
to OEM to market only under the provisions of the Agreement. When
marketing software, OEM agrees to exercise commercially reasonable
efforts to ensure that each End User receiving the software through
OEM or an OEM Authorized Reseller understands, and agrees to be
bound by, the applicable Novell software License Agreement. For
purposes of the Agreement, "software" includes firmware and software
stored in ROMs. OEM agrees to be bound by the applicable Software
License Agreement with respect to all software put to Internal Use
by OEM.
b. Indemnification. Novell agrees to indemnify, defend and hold OEM
harmless from any and all damages, liabilities, costs and expenses
incurred by OEM as a result of any claim, judgment or adjudication
against OEM which provides that the Novell Products, trade names or
the Marks appropriately used by OEM in connection with marketing the
Novell Products infringe any U.S. trademark, U.S. copyright or U.S.
patent of any third party, provided: (i) OEM promptly notifies
Novell in writing of the claim; and (ii) OEM agrees that Novell will
have the sole control of the defense of any action and all
negotiations for settlement and compromise.
c. Actual or Potential Product Infringement. Should the Novell
Products, or the operation of the Novell Products, become, or in
Novell's opinion be likely to become, the subject of infringement of
any U.S. trademark, U.S. copyright or U.S. patent, OEM agrees to
permit Novell, at its option and expense, either to procure for OEM
the right to continue using the Novell Products, to replace or
modify them so that they become non-infringing, or to grant OEM
credit for the Novell Products as depreciated on a straight-line
method, using a useful life of five (5) years, and accept their
return.
d. Disclaimer. THE ABOVE STATES THE ENTIRE LIABILITY OF NOVELL WITH
RESPECT TO INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADEMARKS OR ANY
OTHER FORM OF INTELLECTUAL PROPERTY RIGHT BY ANY PRODUCT SUPPLIED BY
NOVELL.
e. Proprietary Nature of Products and Ownership. No title to or
ownership of software acquired under the Agreement or proprietary
technology in hardware acquired under the Agreement is transferred
to OEM. Notwithstanding any provision of the Agreement to the
contrary, Novell, or the licensor through which Novell obtained the
rights to distribute the Novell Products, owns and retains all title
and ownership of all intellectual property rights in the Novell
Products, including all software, firmware, software master
diskettes, copies of software, master diskettes, documentation and
related materials which are acquired, produced or shipped by Novell
under the Agreement, and all modifications to and derivative works
from software acquired under the Agreement made by OEM, Novell or
any third party. Novell does not transfer any portion of such title
and ownership, or any of the associated goodwill, to OEM, and the
Agreement should not be construed to grant OEM any right or license,
whether by implication, estoppel or otherwise, except as expressly
provided. OEM agrees to be bound by and observe the proprietary
nature of the Novell Products acquired under the Agreement. OEM
agrees to take appropriate action by instruction or agreement with
its employees, agents, contractors and sublicensees who are
permitted access to the Novell Products to fulfill OEM's obligations
under the Agreement. Except as set forth in the Agreement, or as
may be permitted in writing by Novell, OEM agrees not to provide
Novell Products or any part or copies thereof to any third party
without the prior written consent of Novell.
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f. Product Tampering. OEM agrees not to de-compile, reverse engineer,
reverse compile, modify or perform any similar type of operation on
any software, firmware or hardware acquired under the Agreement, in
any fashion or for any purpose whatsoever, without the prior written
consent of Novell. OEM also agrees that any such works are
derivative works and as such are the sole and exclusive property of
Novell or its licensor.
g. Confidential Information. The parties agree that any information
provided under the Agreement will be held and maintained in strict
confidence. Each party agrees to protect the confidentiality of
such information in a manner consistently with the way a reasonable
person would protect similar Confidential Information.
"Confidential Information" means the information and materials
noticed or marked by Novell or OEM as confidential and proprietary.
"Confidential Information" does not include information that (i) is
already known to the receiving party at the time it is disclosed and
has not been obtained wrongfully, (ii) becomes publicly known
without fault of the receiving party, (iii) is independently
developed by the receiving party, (iv) is approved for release in
writing by the disclosing party, (v) is disclosed without
restriction by the disclosing party to a third party, or (vi) is
disclosed pursuant to legal obligations beyond the control of the
disclosing and receiving parties.
8. WARRANTIES.
a. Statements of Limited Warranty. Novell provides, to End Users only,
warranties for software in the Software License Agreement which
accompanies each software product and warranties for Novell hardware
in the Statement of Limited Warranty which accompanies each hardware
product. Each Novell Statement of Limited Warranty and each
Software License Agreement distributed with the Novell Products is
incorporated in the Agreement by reference. Novell extends the
warranties contained in the applicable Statement of Limited Warranty
or Software License Agreement through OEM to End Users. OEM is
responsible to provide, or cause to be provided, a copy of the
applicable Statement of Limited Warranty or Software License
Agreement to End Users for their review at the time of installation.
Each revised Statement of Limited Warranty or Software License
Agreement will become effective on the date indicated in the
Statement of Limited Warranty or Software License Agreement. Novell
does not warrant non-Novell products. They are provided by Novell
on an "AS IS" basis. Any warranty service for non-Novell products
will be provided by the manufacturer of the products in accordance
with the applicable manufacturer's warranty.
b. Warranty Representations. OEM is not authorized to make any
warranty commitment on Novell's behalf, whether written or oral,
other than those contained in the applicable Statement of Limited
Warranty or Software License Agreement. Novell may authorize OEM to
market Novell Products for which warranty service is provided by (1)
OEM, (2) Novell, (3) a Novell selected third party, (4) the
manufacturer of a non-Novell product, or (5) some combination of
these providers of warranty service.
c. Warranty Service Responsibilities. OEM agrees to validate, or cause
to be validated, all warranty claims presented to OEM, and maintain
the capability to provide warranty services according to the
requirements of the Program Description.
9. LIMITATION OF WARRANTIES. THE WARRANTIES DESCRIBED IN THE APPLICABLE
NOVELL STATEMENT LIMITED WARRANTY OR SOFTWARE LICENSE AGREEMENT AND
SECTION 8 ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
10. LIMITATION OF REMEDIES. NOVELL'S ENTIRE LIABILITY AND OEM'S EXCLUSIVE
REMEDY FOR ANY CLAIMS CONCERNING THE AGREEMENT AND NOVELL PRODUCTS
ACQUIRED UNDER THE AGREEMENT ARE SET FORTH IN THIS SECTION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, NEITHER NOVELL
NOR OEM WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL,
OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) SUSTAINED OR INCURRED
IN CONNECTION WITH THE AGREEMENT AND THE NOVELL PRODUCTS THAT ARE SUBJECT
TO THE AGREEMENT REGARDLESS OF THE FORM OF
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ACTION AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.
a. Hardware. In all situations involving performance or
non-performance of hardware acquired under the Agreement, OEM's
remedy is the adjustment or repair of the hardware or replacement of
parts of the hardware by Novell. If, after repeated efforts, Novell
is unable to place the hardware in good working order, all as
warranted, OEM will be entitled to recover direct damages to the
limits set forth in this Section. For any other claim concerning
performance or non-performance by Novell in any way related to, or
arising from the Agreement, or any purchase order under the
Agreement, OEM will be entitled to recover actual damages to the
limits set forth in this Section.
b. Software. Novell's liability and OEM's exclusive remedy for
software acquired under the Agreement are set forth in the
applicable Software License Agreement. The Software License
Agreement which applies is the Software License Agreement in effect
at the time when the event occurs which causes the damages.
c. Third Party Claims. Novell will not be liable for any claim by OEM
based on any third party claim, except as stated in Sections 7 and 8
of the Agreement.
d. Aggregate Liability. Novell's liability for direct damages to OEM
for any cause whatsoever, except as otherwise stated in this
Section, and regardless of the form of action, will be limited to
the greater of (1) $100,000 or (2) the price, less discount, of the
Novell Product that caused the damages or gave rise to the cause of
action. This limitation does not apply to the payment of the costs,
damages and attorney's fees referred to in Section 7.b and 12.g, or
to claims by OEM for personal injury or damage to real property or
tangible personal property caused by Novell's negligence.
11. TERMINATION.
a. Termination for Cause. Either party may terminate the Agreement for
the substantial breach by the other party of material term. The
terminating party will first give the other party written notice of
the breach and a reasonable period of at least thirty (30) days in
which to cure the alleged breach. If a cure is not achieved during
the cure period, then the non-breaching party may terminate the
Agreement upon written notice.
b. Termination by OEM. OEM may terminate the Agreement upon thirty
(30) days' prior written notice to Novell if Novell amends the
Program Description and the amendment is unacceptable to OEM.
c. Termination by Novell. Novell may terminate the Agreement if OEM
fails to meet its payment obligations under the Agreement and this
failure continues for ten (10) days following receipt of written
notice from Novell.
d. Insolvency, Assignment, or Bankruptcy. Either party may terminate
the Agreement upon written notice to the other party if the other
party (i) is not paying its debts as such debts generally become
due, (ii) becomes insolvent, (iii) files or has filed against it a
petition (or other document) under any Bankruptcy Law or similar
law, which is unresolved within sixty (60) days of the filing of
such petition (or document), (iv) proposes any dissolution,
liquidation, composition, financial reorganization or
recapitalization with creditors, (v) makes a general assignment or
trust mortgage for the benefit of creditors, or (vi) if a receiver,
trustee, custodian or similar agent is appointed or takes possession
of any of its property or business.
e. Acceleration of Payment. Upon termination of the Agreement by
Novell under Section 11.a, 11.c or 11.d, the due dates of all
outstanding invoices to OEM for Novell Products will automatically
be accelerated so that they become due and payable on the effective
date of termination, even if longer terms had been provided
previously. All orders or portions of orders remain unshipped as of
the effective date of such termination will automatically be
canceled.
f. Termination for Convenience. Either party may terminate the
Agreement solely for convenience upon ninety (90) days' prior
written notice.
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g. Effect of Termination on Obligations. Termination of the Agreement
will not affect any pre-termination obligations of either party
under the Agreement, and any termination is without prejudice to the
enforcement of any undischarged obligations existing at the time of
termination. Regardless of any other provision of the Agreement,
Novell will not by reason of the termination of the Agreement be
liable for compensation, reimbursement, or damages on account of the
loss of prospective profits on anticipated sales, or on account of
expenditures, investments, leases, or commitments in connection with
OEM's business or goodwill, or otherwise.
12. GENERAL PROVISIONS.
a. Force Majeure. If either party is prevented from performing any
portion of the Agreement (except the payment of money) by causes
beyond its control, including labor disputes, civil commotion, war,
governmental regulations or controls, casualty, inability to obtain
materials or services or acts of God, such defaulting party will be
excused from performance for the period of the delay and for a
reasonable time thereafter.
b. Jurisdiction. The Agreement will in all respects be governed by and
construed in accordance with the laws of the State of Utah of the
United States of America, and will not be construed in accordance
with or governed by the Untied Nations Convention for International
Sales of Goods.
c. Survival of Terms. The provisions of the Agreement which by their
nature extend beyond the Expiration Date or other termination of the
Agreement will survive and remain in effect until all obligations
are satisfied.
d. Waiver. No waiver of any right or remedy on one occasion by either
party will be deemed a waiver of that right or remedy on any other
occasion.
e. Superior Agreement. The Agreement will not be supplemented or
modified by any course of dealing or usage of trade. Variance from
or addition to the terms and conditions of the Agreement in any
purchase order or other written notification from OEM (including but
not limited to any specification of a price different than Novell's
current list price, less the appropriate discount) will be of no
effect, unless otherwise expressly provided in the Agreement.
f. Assignment. The Agreement is not assignable by OEM, in whole or in
part, without Novell's prior written consent. Notwithstanding,
Novell will not unreasonably withhold consent to an assignment of
the Agreement or any part of the Agreement to a parent, subsidiary
or affiliate. Any attempted assignment without Novell's written
consent will be null and void.
g. Attorneys' Fees. Each party agrees to pay the other's reasonable
attorneys' fees and costs of litigation if the original party, for
any cause whatsoever, brings suit against the other party and the
other party is finally adjudicated not to have liability.
h. Notice. Unless otherwise agreed to by the parties, all notices
required under the Agreement (except those relating to product
pricing, changes and upgrades) will be deemed effective when
received and made in writing by either (i) registered mail, (ii)
certified mail, return receipt requested, (iii) overnight mail,
addressed and sent to the address indicated in the Composite
Signature Agreement and to the attention of the party executing the
Agreement or that person's successor, or (iv) by telephone facsimile
transfer appropriately directed to the attention of the party
executing the Agreement or that person's successor.
i. Severability. If any term, provision, covenant or condition of the
Agreement is held invalid or unenforceable for any reason, the
remainder of the provisions will continue in full force and effect
as if the Agreement had been executed with the invalid portion
eliminated. The parties further agree to substitute for the invalid
provision a valid provision which most closely approximates the
intent and economic effect of the invalid provision.
j. Independent Contractors. Each party acknowledges that the parties
to the Agreement are independent contractors and that it will not,
except in accordance with the Agreement, represent itself as an
agent or legal representative of the other.
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k. Compliance with Laws. OEM represents and warrants that all consents
of government officials necessary for the Agreement to become
effective have been obtained, or will be obtained, before OEM places
any orders under the Agreement, OEM will comply, at its own expense,
with all statutes, regulations, rules, ordinances, and orders of any
governmental body, department or agency which apply to or result
from OEM's obligations under the Agreement. OEM agrees to not
export Novell Products, directly or indirectly, separately or as
part of a system, without first obtaining proper authority to do so
from the appropriate governmental agencies or entities, as may be
required by law. In particular, OEM assures Novell that, absent any
required prior authorization from the Office of Export Licensing,
U.S. Department of Commerce, 00xx xxx Xxxxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, X.X. 00000, OEM will not export or reexport (as defined
in Section 779 of the Export Administration Regulations, as amended
("Regulations")) the Novell Products, any technical data or other
confidential information, or direct product of any of the foregoing,
to Afghanistan, Haiti, Iraq, the People's Republic of China,
Yugoslavia, or any Group Q, S, W, Y, or Z country specified in
Supplement No. 1 to Section 770 of the Regulations.
l. Governmental Rights. OEM agrees to (i) identify the Novell Products
in all proposals and agreements with the United States Government or
any contractor for the United States Government; and (ii) identify
or xxxx the software products provided pursuant to any agreement
with the United States Government or any contractor for the United
States Government as necessary to obtain protection substantially
equivalent to that afforded commercial computer software and related
documentation developed at private expense and provided with
Restricted Rights as defined in DOD FAR Supplement 48 C.F.R.
252.227-7013(c)(1)(ii) in effect as of May 18, 1987 or any successor
regulation.
m. Records Examinations. OEM agrees to allow Novell to examine its
records to determine compliance or noncompliance with the Agreement.
Any examination will be at the expense of Novell and will be solely
for the purpose of ensuring compliance with the Agreement. Any
examination will be conducted only by an authorized representative
of Novell, and will occur during regular business hours at OEM's
offices and will not interfere unreasonably with OEM's business
activities. Examinations will be made no more frequently than
quarterly, and Novell will give OEM ten (10) days or more prior
written notice of the date of the examination and the name of the
Novell authorized representative who will be conducting the
examination. All information obtained by the Novell authorized
representative conducting the audit will be maintained confidential
by the representative. The examiner will give OEM and Novell an
examination report containing only the information necessary to
indicate compliance or non-compliance with the Agreement.
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EXHIBIT A
PRODUCTS AND DISCOUNTS
ANNUAL VOLUME COMMITMENT:
-------------------------------------------------------
EXPIRATION DATE: October 31, 1995
---------------------------------------------------------------
PRODUCT CATEGORIES
A NetWare Operating System Products (excluding NetWare for VMS &
NetWare Lite), Development Products and Database Products.
B NetWare Documentation Kits and Computer Based Training
Products.
C Communications Hardware Products.
E Communications Products and NetWare for SAA Products.
F TCP/IP Connectivity Products.
G LANalyzer for NetWare
H Factor Install Program Kit.
K Desktop System Group Products.
ELIGIBLE PRODUCTS (check appropriate boxes)
All products /X/
A / / Excluding (if any)
----------------------------------------------------------
B / / Excluding (if any)
----------------------------------------------------------
C / / Excluding (if any)
----------------------------------------------------------
E / / Excluding (if any)
----------------------------------------------------------
F / / Excluding (if any)
----------------------------------------------------------
G / / Excluding (if any)
----------------------------------------------------------
H / / Excluding (if any)
----------------------------------------------------------
K / / Excluding (if any)
----------------------------------------------------------
NON-MANUFACTURING DISCOUNT
A: 58% B: 58% C: 50% E: 58% F: 58% G: 58% H:__% K: 58%
MANUFACTURING DISCOUNT
SALES FORECAST (IN THOUSANDS OF $US)
YEAR
------------
JAN FEB MAR APR MAY JUNE
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JUL AUG SEPT OCT NOV DEC
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