Exhibit 10.33
Addendum to EST Distributor Agreement
This addendum supersedes the EST Distributor Agreement dated February 2, 1994
between Embedded Support Tools Corporation (EST) and Toyo, Corporation
(Distributor).
EST hereby appoints Distributor and Distributor hereby accepts appointment as a
non-exclusive distributor for the sale of EST hardware and software products in
Japan. A detailed plan of the terms of the non-exclusive agreement will be
provided by the President of ESTKK located at Katori Building, 00-0 Xxxxxxxxxx
Xxxxxxxxxx, Xxxx-Xx, Xxxxx 000-0000.
The attached Schedule A titled "Sales Territory (Account Base)" and dated
February 25th, 1998 is agreed to be the allocation of the existing sales base
between EST KK and Toyo Corporation.
Initials:
EST: /s/ Xxxx X.X. Xxxxxxx Distributor /s/ Kohzo Yumoto
------------------------- ------------------
Xxxx X. X. Xxxxxxx Kohzo Yumoto,
President President
EST Corporation TOYO Corporation
Addendum to EST Distributor Agreement
This addendum supersedes the EST Distributor Agreement dated February 2, 1994
between Embedded Support Tools Corporation (EST) and Toyo Corporation
(Distributor).
EST hereby appoints Distributor and Distributor hereby accepts appointment as a
non-exclusive distributor for the sale of EST hardware and software products in
Japan. A detailed plan of the terms of the non-exclusive agreement will be
provided by the President of ESTKK located at Katori Building, 00-0 Xxxxxxxxxx
Xxxxxxxxxx, Xxxx-Xx, Xxxxx 000-0000
Initials:
EST: /s/ Xxxx X.X. Xxxxxxx Distributor ________________________
-------------------------
Xxxx X.X. Xxxxxxx
Vice President
EST Corporation
Addendum to EST Distributor Agreement
This addendum supersedes the EST Distributor Agreement dated February 2, 1994
between Embedded Support Tools Corporation (EST) and Toyo Corporation
(Distributor).
EST hereby appoints Distributor and Distributor hereby accepts appointment as a
non-exclusive distributor for the sale of EST hardware and software products in
Japan. A detailed plan of the terms of the non-exclusive agreement will be
provided by the President of ESTKK located at Katori Building, 00-0 Xxxxxxxxxx
Xxxxxxxxxx, Xxxx-Xx, Xxxxx 000-0000
Initials:
EST: /s/ Xxxx X.X. Xxxxxxx Distributor ________________________
-------------------------
Xxxx X.X. Xxxxxxx
Vice President
EST Corporation
Schedule A
Sales Territory (Account base)
Feb. 25, 1998
-------------------------------------------------------------------------
Customer Plant Territory
-------------------------------------------------------------------------
NEC All TOYO
Fujitsu All TOYO
PFU All TOYO
Hitachi Totsuka EST KK
Hitachi Telecom TOYO
Hitachi Mito TOYO
Mitsubishi Ofuna EST KK
Mitsubishi Tsuden EST KK
Mitsubishi Kamakura TOYO
Mitsubishi Kyoto TOYO
Oki Elc. All EST XX
Xxxxxxxxxx Comm-Saedo EST XX
Xxxxxxxxxx Comm-Tsunasima TOYO
Matsushita Others Open
Toshiba Hino/Ome TOYO
Toshiba Others EST KK
Sony All TOYO
Sharp All TOYO
Sanyo All TOYO
Minolta All TOYO
Sumitomo Elec Osaka TOYO
Furukawa Hiratsuka TOYO
Yahama Hamamatsu TOYO
Kyocela Ise TOYO
Advantest All TOYO
Richo All EST XX
Xxxxxx All EST KK
Xerox All EST KK
JVC All TOYO
Kodak All TOYO
Fuji-Film Asaka TOYO
Fuji-Film Miyanodai EST KK
TakaokaSS All TOYO
Yamatake Isehara TOYO
NihonKoden Nakano TOYO
-------------------------------------------------------------------------
Others Open
-------------------------------------------------------------------------
Sales Territory (Account base)
Feb. 25, 1998
-------------------------------------------------------------------------
Customer Plant Territory
-------------------------------------------------------------------------
NEC All TOYO
Fujitsu All TOYO
PFU All TOYO
Hitachi Totuska EST KK
Hitachi Telecom TOYO
Hitachi Mito TOYO
Mitsubishi Ofuna EST KK
Mitsubishi Tsuden EST KK
Mitsubishi Kamakura TOYO
Mitsubishi Kyoto TOYO
Oki Elc. All EST XX
Xxxxxxxxxx Comm-Saedo EST XX
Xxxxxxxxxx Comm-Tsunasima TOYO
Matsushita Others Open
Toshiba Hino/Ome TOYO
Toshiba Others EST KK
Sony All TOYO
Sharp All TOYO
Sanyo All TOYO
Minolta All TOYO
Sumitomo Elec Osaka TOYO
Furukawa Hiratsuka TOYO
Yahama Hamamatsu TOYO
Kyocela Ise TOYO
Advantest All TOYO
Richo All EST XX
Xxxxxx All EST KK
Xerox All EST KK
JVC All TOYO
Kodak All TOYO
Fuji-Film Asaka TOYO
Fuji-Film Miyanodai EST KK
TakaokaSS All TOYO
Yamatake Isehara TOYO
NihonKoden Nakano TOYO
-------------------------------------------------------------------------
Others Open
-------------------------------------------------------------------------
Addendum to EST Distributor Agreement
This addendum supersedes the EST Distributor Agreement dated February 2, 1994
between Embedded Support Tools Corporation (EST) and Toyo Corporation
(Distributor).
EST hereby appoints Distributor and Distributor hereby accepts appointment as a
non-exclusive distributor for the sale of EST hardware and software products in
Japan. A detailed plan of the terms of the non-exclusive agreement will be
provided by the President of ESTKK located at Katori Building, 00-0 Xxxxxxxxxx
Xxxxxxxxxx, Xxxx-Xx, Xxxxx 000-0000
Initials:
EST: /s/ Xxxx X.X. Xxxxxxx Distributor _________________________
------------------------
Xxxx X.X. Xxxxxxx
Vice President
EST Corporation
EST DISTRIBUTOR AGREEMENT
This Agreement is entered into this 2nd day of February 1994 between Embedded
Support Tools Corp., a corporation duly organized under the laws of the
Commonwealth of Massachusetts, and having its principal place of business at 000
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, XXX, ("EST"), and TOYO Corporation,
a corporation duly organized under the laws of JAPAN, with its principal place
of business at 0-0, Xxxxxxxxxx 0-xxxxx, Xxxxxxxxxx, Xxxx-xx, Xxxxx 000, Xxxxx
("Distributor"). IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES HEREIN
CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS:
1. APPOINTMENT AND ACCEPTANCE
EST hereby appoints Distributor and Distributor hereby accepts appointment as an
exclusive distributor for the sale of EST hardware products and for the sale of
licenses and support services for the EST software products, in executable form,
specified in the attached Schedule B ("Products") to end-users located within
and for installation only within the geographical area specified in the attached
Schedule A ("Territory"). Additional EST products (including new versions of the
Products) may be included under this Agreement by the mutual written consent of
the parties in the form of an amendment to this Agreement. EST reserves the
right to delete any Product from this list of which development, production,
licensing or maintenance is discontinued by EST.
2. DISTRIBUTION RIGHTS
A. No Software Product shall be distributed to an end-user by Distributor, if
the Product is designated a shrink-wrapped product by EST, until (i) the
end-user executes an EST Software License Agreement, which identifies EST
as the licensor and the end-user as the licensee, or (ii) the Product is
packaged with an EST Software License Agreement, the terms and conditions
of which the end-user agrees to comply with by opening the shrink-wrap
package containing this same Agreement.
B. The EST Software License Agreement is attached to, and made part of this
Agreement as Schedule D. Any modification, deletion or change Distributor
desires to make in any particular licensing transaction shall require the
prior written approval of EST. EST reserves the right to change any of the
terms and conditions of the attached EST Software License Agreement, or its
licensing procedures, provided Distributor is given thirty (30) calendar
days prior written notice of any such changes.
C. All orders submitted to EST by Distributor are subject to approval and
acceptance by EST in its sole discretion. Such approval shall not be
unreasonably withheld.
D. All shipments shall be made F.O.B. origin to Distributor at TOYO
Corporation, 00-0 Xxxxxxx 0-xxxxx, Xxxxxx-xx, Xxxxx 000, Xxxxx, or to a
forwarding agent as may be specified on orders received from Distributor.
It is the responsibility of Distributor to ship the Product to the
applicable end-user.
E. Nothing in this Agreement shall be construed as a grant to Distributor of
any right, title or interest in and to copyrights, patents or trade secrets
of the Products, all rights related thereto being reserved by EST.
F. Except for copying as may be specifically provided by Schedule E,
Distributor will not copy, in whole or in part, or modify, alter, reverse
engineer, decompile or disassemble any Product furnished Distributor,
without prior written consent of EST. Such consent shall not be
unreasonably withheld.
G. In the event that copying is authorized by Schedule E for the purpose of
making deliveries to Distributor's customers, Distributor shall reproduce
and include EST copyright notice both in and on every copy made, in any
form, including partial copies. Distributor agrees to keep a record of
every copy made and to furnish such record to EST upon its request.
H. Distributor is hereby granted an exclusive, non-transferable right to use
as selling aids in the Territory, during the life of this Agreement, the
trademarks identifying the Products. Distributor shall not sublicense or
otherwise permit the use of said trademarks by other parties. All rights in
said trademarks shall, at all times during the life of this Agreement and
thereafter, be and remain the sole property of EST and good will and other
benefits associated therewith are hereby assigned and shall inure to the
benefit of EST. Distributor shall not use said trademarks in any manner
which would injure or destroy their value or diminish EST's property rights
therein. Distributor shall promptly notify EST of any infringement or
suspected infringement of said trademarks that may come to Distributor's
attention and assist EST, at EST's expense, in taking action against such
infringement as EST, in its sole discretion, may decide.
I. Distributor is hereby granted the right to translate into Kanji and publish
any of the technical or sales promotional materials for use in promoting
EST products in Japan. Distributor will retain sole rights to such
material.
-2-
3. OBLIGATIONS OF DISTRIBUTOR
Distributor shall:
A. Submit to EST, if requested by EST, a marketing plan for the Products to be
distributed, including a twelve (12) month forecast of sales revenue
anticipated for these products.
B. Provide its best efforts to promote the licensing of and support services
for the Products within the Territory in accordance with terms and
conditions determined by EST, and provide evidence of such efforts if
requested to do so by EST.
C. Employ, on an on-going basis, a fully trained and competent sales and
technical support organization sufficient to meet Distributor's obligations
hereunder and to have such personnel complete, at Distributor's expense,
any training deemed necessary by EST to meet this requirement.
D. Maintain adequate person-power and facilities to ensure prompt handling of
inquiries, orders, shipments and support services as described by Section
13 below to end-users of the Products in the Territory.
E. Assign a specific contact at the office of Distributor who will handle
inquiries and correspondence pertaining to this Agreement with reasonable
promptness.
F. In the conduct of its business under this Agreement, comply with all
applicable laws, regulations and orders in the Territory and shall not take
any action which will cause EST to be in violation of any such law,
regulation or order in the Territory or the United States including, but
not limited to the US Foreign Corrupt Practices Act, the US Export
Administration Regulations and the US Anti-Boycott Laws.
G. Not without prior written consent of EST, appoint any sub-representatives,
agents, sub-distributors or dealers to carry out any of the activities
covered by this Agreement.
H. Assume all responsibility for delivery of the Products to end-users in the
Territory, including shipping and like costs, taxes, compliance with and
expense of any import legalities and duties.
I. Bear exclusively all responsibility toward its employees imposed by
legislation within the Territory and shall hold EST harmless from and
indemnify EST against any and all claims by any such employee against EST
for payment of commissions, salaries, expenses, termination indemnities or
any other amounts payable under such legislation.
-3-
4. OBLIGATIONS OF EST
EST shall:
A. Furnish reasonable quantities of promotional literature at no charge to
Distributor. Additional quantities shall be available at cost.
B. Promptly advise Distributor when Products are shipped.
C. Assign a specific contact at EST in Canton, MA, USA who will handle
inquiries and correspondence pertaining to this Agreement with reasonable
promptness.
5. CHARGES AND PAYMENTS
A. Fees/Prices for the Products to be supplied to Distributor for unbundled
distribution by Distributor are in accordance with the EST Price List, for
the applicable product line, then in effect at the time of receipt of the
order by EST, minus the discount set forth in Schedule C. Fees/Prices for
bundled distribution, if applicable, are set forth in Exhibit E. Discounted
fees/prices are due and payable within thirty (30) calendar days of
shipment of the Product(s) to Distributor. Fees under the bundled pricing
arrangement are due as specified in Exhibit E. All payments are due when
specified, regardless of whether or not Distributor has received payment
from the end-user. All payments are to be made in United States Dollars on
drafts payable at a US bank to:
Accounts Receivable
Embedded Support Tools Corp.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
or wired directly to a bank designated by EST for credit to an EST account
at such bank.
B. EST reserves the right to change any fee/price set forth in the EST Price
List, provided Distributor is given sixty (60) calendar days prior written
notice. EST reserves the right to increase fees for bundled pricing upon
sixty (60) days written notice in the event there is a material increase in
EST price list or upon renewal of this agreement.
C. Distributor shall pay or promptly reimburse EST for all property, sales,
use and other taxes or duties imposed on EST with respect to this Agreement
and payments made hereunder, including any withholding taxes withheld on
payments made to EST hereunder, but excluding taxes based on EST net
income.
-4-
D. Distributor shall cause true and accurate books of account and records
relating to the Products to be kept in such detail as to enable EST to
ascertain what fees are due hereunder, and all such books and records shall
be open to inspection and audit by EST or its duly authorized
representatives at all reasonable times during regular business hours, but
not more than twice in any single calendar year. In the event such audit
discloses any breach of this Agreement, Distributor shall pay the full cost
of the audit, in addition to other damages and rights available to EST as
the result of such breach.
E. For each end-user under a support services agreement, Distributor agrees to
pay to EST the applicable annual fee specified in EST's Support Price List
then in effect, minus the discount set forth in Schedule C. Said fees are
due and payable by Distributor within thirty (30) calendar days from the
acceptance of a support services contract from the end-user.
6. TERM
This Agreement shall enter into effect on the date set forth above and shall
have an initial term of one year (365 days) from such date. Said initial term
shall be automatically renewed for successive terms of one year (365 days) each,
unless either party notifies the other in writing at least sixty (60) calendar
days prior to the date of expiration of the term in effect, of its election that
the Agreement not be renewed. This Agreement shall be interpreted as a definite
term Agreement.
7. TERMINATION
Either party may terminate this Agreement at any time after the initial term by
giving sixty (60) calendar days prior written notice to the other party. Either
party may terminate this Agreement upon written notice if the other party
breaches any of its basic obligations hereunder and fails to cure such breach
within thirty (30) calendar days from the date of written notice given by the
other party identifying such breach.
Either party may terminate this Agreement immediately upon written notice if the
other party (i) becomes bankrupt or insolvent, or files a petition therefor;
(ii) makes an assignment for the benefit of its creditors; (iii) enters
proceedings for winding up or dissolution; (iv) is dissolved; (v) is
nationalized or is subject to the expropriation of all or substantially all of
its business or assets. EST may terminate this Agreement upon written notice in
the event that Distributor changes ownership either by sale, acquisition, merger
or other reason.
8. CONSEQUENCES OF TERMINATION
Upon the termination of this Agreement: (i) all orders submitted by Distributor
and not accepted by EST on or before the date of termination shall be canceled
or
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accepted at the sole option of EST; (ii) Distributor shall return all lists,
catalogs, samples, and promotional literature and Products furnished to it by
EST and any and all copies thereof; and (iii) EST shall not be liable to
Distributor for, and Distributor hereby expressly waives any claims for,
extracontractual compensation or damages of any kind whatsoever in connection
with this agreement or its termination, expiration or modification, whether on
account of the loss by Distributor of anticipated profits or of expenditures,
investments or commitments made in connection with the establishment,
development or maintenance of Distributor's business or for any cause
whatsoever. Sections 3I, 5, 8, 10, 11, 14, 15, and 16 shall survive the
termination, expiration or cancellation of this agreement.
9. NOTICES
All communication between parties shall be made by facsimile, telex, cable, or
regular airmail. Notices concerning termination or alleged breaches hereof shall
be made by registered mail, return receipt requested. Notices are to be
addressed to:
EST: Distributor:
President President
Embedded Support Tools Corp. Toyo Corporation
000 Xxxxxx Xxxxxx 0-0, Xxxxxxxxxx 1-chome
Xxxxxx, XX 00000, XXX Xxxxxxxxxx, Xxxx-Xx, Xxxxxx
000 Xxxxx
10. CONFIDENTIALITY
Distributor understands and recognizes the confidential and proprietary nature
of the Products and related business and technical information which may be
furnished from time to time to Distributor by EST under this Agreement. Except
that Distributor may ship Products to licensed end-users as provided by Section
3 above, Distributor shall not disclose, provide or otherwise make available the
Products or related information to any person other than Distributor employees
who have a need to know, without EST prior written consent, and shall use the
same only for purposes consistent with this Agreement. Distributor agrees to
take all the necessary steps to safeguard the proprietary and confidential
nature of the Products and related information and to ensure that no
unauthorized person has access to the Products and related information and that
no unauthorized copy, in whole or part, in any form, is made. Distributor
further agrees, at EST request, to assist EST in protecting the same against
unlawful appropriation by third parties.
The obligations of this Article do not apply to information that has become part
of the public domain through no fault of Distributor.
-6-
11. WARRANTIES
The only warranties which shall be granted by EST with respect to the Products
licensed to end-users within and for installation in the Territory, shall be
those expressly set forth in the EST Software License Agreements, Hardware
Product Users' Manual and Schedule F of this Agreement. IN NO EVENT SHALL ANY
SUCH WARRANTIES OR ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
BE DEEMED TO HAVE BEEN EXTENDED TO DISTRIBUTOR.
12. PATENT AND COPYRIGHT INDEMNIFICATIONS
EST will defend at its own expense any action brought against Distributor to the
extent it is based on a claim that an unmodified Product used by an end-user
within the scope of the EST Software License Agreement infringes a United States
patent or copyright. EST will pay any costs, damages and attorney fees finally
awarded against Distributor in such action which are attributable to such claim
provided EST is given prompt written notice of the claim, information,
assistance, and authority over the control of the defense and/or settlement of
the same. In the event that the Product becomes or, in EST opinion, is likely to
become the subject of a claim of infringement, EST may, at its option, secure
Distributor's and any licensed end-users' right to continue using the Product,
replace or modify the Product to make it noninfringing or remove the Product and
refund the license fee paid by Distributor thereof as depreciated or amortized
over the lifetime of the Product as established by EST in its sole discretion.
EST shall have no liability for any claim or patent copyright infringement based
upon the use of a combination of the Product with programs or data not supplied
by EST where the Product alone would not constitute an infringement. THE
FOREGOING STATES THE ENTIRE LIABILITY OF EST WITH RESPECT TO INFRINGEMENT OF ANY
COPYRIGHTS OR PATENTS OR OTHER PROPRIETARY RIGHTS BY THE PRODUCTS OR ANY PART
THEREOF.
13. SUPPORT SERVICES
A. EST shall provide Distributor support services which are equivalent to
those normally provided to EST's end-user customers for the Products as
follows:
1. EST will use its reasonable efforts to correct deviations from the
Products' published specifications current at the time of shipment to
Distributor, within reasonable time of written notification from
Distributor of the deviation, such notification to include the
specific version number and parts list number of the Product that
showed the deviation and a complete and accurate description of the
deviation.
-7-
2. EST will provide Distributor updates, enhancements and documentation
of known deviations to the Products as generally made available by EST
to its customers under support services agreements with EST.
3. EST will provide Distributor with reasonable telephone consultations
regarding the use and functionality of the Products.
B. Distributor agrees that it will provide support services for the Products
to its licensed end-users in accordance with EST's standard practices as
set forth in Section 13A above, provided that the end-user has entered into
a support services agreement with Distributor. In no event shall
Distributor distribute support services provided by EST to an end-user who
is not under a support services agreement with Distributor and for which
Distributor has not paid EST a support services fee.
C. EST will make its best effort to enable Distributor to carry out local
repairs to EST hardware products including in-warranty repairs. This will
include the supply by EST, at reasonable cost, of critical parts to enable
Distributor to maintain a local inventory. EST agrees to reimburse
Distributor for any parts used for in-warranty repairs. In the event that
it is agreed that a hardware product should be returned to EST for repair
or replacement, EST will make all reasonable effort to carry out the repair
or send a replacement within (4) weeks of receiving the returned unit at
its place of business in the USA.
D. All communication from EST, including manuals and technical support
documents, shall be in English.
E. Distributor shall provide the first line of support to its customers such
as installation and operation assistance. For support issues requiring the
assistance of EST, Distributor shall use the standard EST procedure and
forms then in effect for documenting and communicating the support issues
to EST.
F. EST shall have no obligation under this Section 13 to provide support
services for Product(s) altered or modified without EST prior written
consent; problems resulting from equipment malfunction or created by causes
within Distributor's or its owner's control; and, at EST option, Product(s)
that have been superseded by a new release for more than six (6) months.
G. Distributor shall, on a quarterly basis, provide EST with a record of all
end-users to which Distributor is providing support services.
-8-
H. Distributor will grant EST, reasonable access to any unique software,
equipment or information required by EST in carrying out its obligations
under Section 13A.
14. GOVERNING LAW
The laws of the Commonwealth of Massachusetts, United States of America shall
apply to any interpretation of the terms and conditions of this Agreement.
15. LIMITATION OF LIABILITY
DISTRIBUTOR AGREES THAT EST's LIABILITY, IF ANY, IN ANY ACTION REGARDLESS OF
FORM SHALL NOT EXCEED THE PAYMENTS MADE HEREUNDER BY DISTRIBUTOR TO EST. IN NO
EVENT SHALL EST BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR CLAIMS BY
THIRD PARTIES.
DISTRIBUTOR AGREES TO INDEMNIFY AND HOLD EST HARMLESS FROM AND AGAINST ANY SUIT,
CLAIM, EXPENSE, LOSS OR LIABILITY (INCLUDING BUT NOT LIMITED TO COUNSEL FEES AND
EXPENSE) ARISING FROM THE ACT, OMISSION OR NEGLIGENCE OF DISTRIBUTOR.
16. FOREIGN RESHIPMENT LIABILITY
This Agreement is made subject to any laws, regulations, orders or other
restrictions on export from the United States of America of controlled
commodities, technical data or information about such commodities or data, which
may be imposed from time to time by the Government of the United States of
America. Distributor will not export, directly or indirectly, any of the
Products or information pertaining thereto to any country for which the
Government of the United States or any agency thereof requires an export license
or other government approval or written assurance at the time of export without
first obtaining such license, approval or assurance and shall indemnify EST for
any failure to do so.
17. FORCE MAJEURE
EST will incur no liability arising out of any delay in delivery or non-delivery
of any Products or Support Services due to a force majeure. A force majeure is
defined as any circumstances beyond the reasonable control of EST including, but
not limited to, fire, floods, earthquakes, fuel shortages, acts of nature, war,
or acts of any Government.
-9-
18. DISPUTES
Any controversy or claim out of or pertaining to this Agreement or breach
thereof shall be resolved by arbitration in accordance with the rules of the
American Arbitration Association, then in effect, at the office of the American
Arbitration Association located closest to EST's corporate address, and the
decision rendered by the American Arbitration Association shall be final and
binding upon both parties and judgement upon such decision may be entered in any
court of competent jurisdiction. Neither party shall be precluded hereby from
seeking provisional remedies in the courts of any jurisdiction, including but
not limited to temporary restraining orders and preliminary injunctions to
protect its right and interest, but such shall not be sought as a means to avoid
or stay any arbitration. Neither party shall institute a proceeding hereunder
unless, at least thirty (30) calendar days prior thereto, such party shall have
provided to the other party written notice of its intent to do so and the
grounds therefor.
19. ASSIGNMENT
Distributor shall not assign or transfer this Agreement or any of its rights or
obligations hereunder, including assignment or transfer to a successor Company,
without the prior written consent of EST. EST may assign, transfer or delegate
any of its rights or obligations hereunder to any affiliated or subsidiary
company of EST or any company acquiring all or substantially all of the assets
of Embedded Support Tools Corp.
20. WAIVER
A waiver of any breach or acceptance of any order inconsistent with the terms of
this Agreement, or the making of deliveries pursuant to such order, shall effect
no modification of this Agreement. No waiver of any provision of this Agreement
shall be effective unless made in writing. Any waiver of any breach of any
provision of this Agreement shall not constitute a waiver of any subsequent
breach of the same of any other provision of the Agreement.
21. SEVERABILITY
In the event that any provision of this Agreement is declared invalid or becomes
unlawful in its operation, such provision shall be deemed to be omitted and
shall not affect that validity or enforceability of any of the other provisions.
22. RELATIONSHIP
Distributor shall perform its work as an independent contractor and not as an
employee, agent, or partner of EST. Distributor shall have no right or authority
to enter into any contracts in the name of, or for the account of EST, nor to
assume or create any obligation or liability of any kind, expressed or implied,
on behalf of EST,
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and shall not take any action which has the effect of creating the appearance of
its having such authority.
23. ENTIRE AGREEMENT
This Agreement, including the attached Schedules A, B, C, D and E, contains the
entire Agreement of the parties hereto. No verbal or oral statements or
representations by either party shall in any way modify, add to, delete or
otherwise amend this Agreement. This Agreement may be changed only by a writing
signed by authorized representatives of the parties hereto.
Agreed to by:
Embedded Support Tools Corp. Distributor
Signature: /s/ Xxxx X.X. Xxxxxxx Signature: /s/ Tadahiro Hara
------------------------ ------------------------
Name: Xxxx X.X. Xxxxxxx Name: Tadahiro Hara
Title: Vice President Title: President
Date: February 3, 1994 Date: March 2, 1994
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SCHEDULE A
TERRITORY
Territory:
1. JAPAN
2.
3.
Initials:
EST______________________________ Distributor________________________
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SCHEDULE B
PRODUCTS
Products: (Exclusive for Term of this Agreement)
1. ALL PRODUCTS DEVELOPED, MANUFACTURED AND THE OWNERSHIP RIGHTS TO WHICH
ARE THE PROPERTY OF EST.
2.
3.
4.
5.
6.
Initials:
EST______________________________ Distributor___________________________
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SCHEDULE C
DISTRIBUTOR
DISCOUNTS
FOR
PRODUCTS AND SUPPORT SERVICES
1. Distributor Discount for Products
EST grants to Distributor a discount off the International Price List (IPL)
based on the following:-
Net US $s transferred to EST Current calendar quarter
by Distributor for previous discount off EST's IPL
calendar quarter
---------------------------- ------------------------
$US
$ 0 to $39,999 30%
$ 40,000 to $69,999 35%
$ 70,000+ 40%
Distributor will receive the higher discount for the remainder of the current
quarter after the sales volume to receive that discount has been met.
All payments to EST are based on the current EST International Price List in
effect when Distributor places the order, regardless of the selling price by
Distributor.
2. Distributor Discount for Support Services
Distributor will receive a 30% discount on all standard EST's Support Services
Contracts sold during the contract period. Support Services Contract prices are
calculated in accordance with the current EST Price List in effect when
Distributor places the order.
Initials:
EST___________________________________ Distributor___________________________
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SCHEDULE D
EST SOFTWARE LICENSE AGREEMENT
EMBEDDED SUPPORT TOOLS CORP. END USER LICENSE AGREEMENT
READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT ("AGREEMENT") CAREFULLY
BEFORE OPENING THE PACKAGE CONTAINING THE MEDIA, COMPUTER SOFTWARE, HARDWARE,
AND ACCOMPANYING USER DOCUMENTATION ("THE PRODUCT"). THIS AGREEMENT REPRESENTS
THE ENTIRE AGREEMENT BETWEEN YOU AND EMBEDDED SUPPORT TOOLS CORPORATION ("EST")
AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION OR UNDERSTANDING BETWEEN
THE PARTIES. BY OPENING THE PACKAGE CONTAINING THE PRODUCT, YOU ARE ACCEPTING
AND AGREEING TO THE TERMS OF THIS AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND
BY THE TERMS OF THIS AGREEMENT, PROMPTLY RETURN THE UNOPENED PACKAGE AND YOU
WILL RECEIVE A REFUND OF YOUR MONEY. LICENSE: This Agreement grants you a
non-exclusive right to use the media and computer software contained therein
(collectively referred to as the "Software"), hardware, and the accompanying
Documentation, only as authorized in this Agreement. The Software may be used
only on one computer owned, leased or controlled by you. Neither concurrent use
on more computers nor use in a local area network or other network is authorized
without the prior written consent of EST and the payment of additional license
fees. You agree that you will not assign, sublicense, rent, lease, loan,
distribute or share your rights to the Product. You may not modify, adapt,
alter, translate, decompile, disassemble, reverse engineer, or create derivative
works based on the Product.
BACKUP: Except as authorized under this paragraph, no copies of the Product may
be made. You may make one (1) copy of the Software solely for backup purposes.
Any such copies made shall include EST's and all other copyright and other
proprietary notices which are included in the original Software.
OWNERSHIP: The Product is licensed, not sold to you, for use only under the
terms of this Agreement. You acknowledge and agree that the Product consists of
proprietary, unpublished products of EST, protected under the copyright law and
trade secret laws. All right title and interest in and to the Product are and
shall remain with EST except for the nonexclusive license granted to you as
expressly provided herein.
TERM: This Agreement is effective upon your opening the package containing the
Software and shall continue until terminated. You may terminate this Agreement
at any time by returning the Product and all copies thereof to EST. EST may
terminate this Agreement if you fail to comply with any provisions of this
Agreement. Upon such termination by EST, you agree to return to EST the Product
and all copies thereof.
LIMITED WARRANTY: EST warrants that, for thirty (30) days from the date of
delivery of software and one (1) year from the date of delivery of hardware, the
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Product shall operate substantially in accordance with the published functional
specifications current at the time of shipment. If, during the warranty period,
a defect appears, EST will use its best efforts to correct the defect within a
reasonable time after notification by you. You agree that the forgoing
constitutes your sole and exclusive remedy for breach by EST under any
warranties made under this Agreement. This warranty does not cover any Product
that has been altered or changed in any way by anyone other than EST. EST is not
responsible for changes made after ordering the Product to computer hardware,
operating systems or test equipment, or for problems in the interaction of the
Software with software not furnished by EST. EXCEPT AS STATED ABOVE, EST GRANTS
NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT USE OF
THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. These warranties give you
specific legal rights, and you may also have other rights which vary from state
to state. LIMITATION OF LIABILITY: EST'S LIABILITY TO YOU ARISING OUT OF OR IN
RELATION TO THIS AGREEMENT, IN ANY ACTION REGARDLESS OF FORM, SHALL NOT EXCEED
THE LICENSE FEE PAID TO EST FOR YOUR USE OF THIS PRODUCT. IN NO EVENT SHALL EST
BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
INCLUDING LOST PROFITS, BUSINESS INTERRUPTION AND LIKE DAMAGES, EVEN IF IT HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR CLAIMS BY THIRD PARTIES.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL
OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO
YOU.
UPDATES: Any updates or corrected Products provided under the above warranty or
any subsequent maintenance services shall be covered by the terms of this
Agreement.
GOVERNMENT END-USERS: If this Product is acquired by or on behalf of a unit or
agency of the United States Government this provision applies: This Product was
(a) not developed with Government funds, (b) is a trade secret of EST for all
purposes of the Freedom of Information Act and (c) is "commercial computer
software". For units of the Department of Defense (DoD), this Product is sold
only with "Restricted Rights" as defined in the DoD Supplement to the Federal
Acquisition Regulations, 52.227-7013(b)(3)(ii). Use, duplication, or disclosure
is subject to the restrictions as set forth in subdivision (b)(3)(ii) of the
Rights to Technical Data and Computer Software clause at 52.227-7013.
Manufacturer: Embedded Support Tools Corporation, 000 Xxxxxx Xxxxxx, Xxxxxx, XX
00000.
EXPORT LAWS: You agree and certify that neither the product nor any direct
product thereof shall be directly or indirectly shipped, transferred or re-
exported into any country prohibited by the United States export laws and
regulations and you agree to comply with such laws and regulations.
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GENERAL: Terms and conditions contained in any purchase order issued by you
shall in no way modify the terms of this Agreement. If any of the provisions of
this Agreement, or portions thereof, are declared void or unenforceable by any
court of competent jurisdiction, they are to that extent deemed omitted and the
remaining portions shall remain in full force and effect. No waiver of any
provision of this Agreement shall be affective unless made in writing. No waiver
of any breach of any provision of this Agreement shall constitute a waiver of
any subsequent breach of the same or of any other provision of this Agreement.
This Agreement shall be construed and governed by the laws of the Commonwealth
of Massachusetts.
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SCHEDULE E
NOT APPLICABLE
Initials:
EST:________________________________ Distributor:__________________________
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