Authorized Tridium Reseller Agreement
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THIS
AGREEMENT is entered into as of this 25 day of August 2008 (the “Effective
Date”) by and between Tridium,
Inc., a Delaware corporation (“Tridium”) having its principal place of
business at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000, and
Solarsa Inc, a
Florida corporation (an
“Authorized Tridium Reseller” or “Reseller”) having its principal place of
business at 0000 Xxxx Xxxxx Xxxxxxx Xxxxx, Xxxxx Xxxxxxx 00000 (each a “Party”
and collectively, the “Parties”).
WHEREAS, Tridium
has developed software and hardware products for interconnecting devices and
controllers;
WHEREAS, Reseller desires to
receive and Tridium is willing to grant to Reseller, a limited license with
respect to Licensed Materials for the purpose of re-sale, license and
distribution of the software and hardware to Authorized Reseller Partners and
End Users as an element of an engineered solution; and
NOW, THEREFORE, in exchange
for the covenants exchanged herein and for other good and valuable
consideration, the receipt and sufficiency of which each Party hereby
acknowledges, Tridium and Reseller agree to the terms of this Agreement as of
the Effective Date.
1.
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1.1
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“ADI" shall mean
Application Development Information, which means the files that result
from the installation of the NiagaraAX
Framework on Reseller's computer determined at install time by user
specification of directory preference and/or specific platform
requirements. Tridium reserves the right to update the contents of these
lists and subdirectories from time to
time.
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1.2
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“Affiliates” shall mean
any of the entities that control, are controlled by or are under common
control with such party. For purposes of this definition,
“control” shall mean the possession, directly or indirectly, of a majority
of the voting power of such entity (whether through ownership of
securities or partnership or other ownership interests, by contact or
otherwise.
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1.3
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“API” shall mean an
Application-Programming Interface that supports development of
applications and communication drivers for use with the NiagaraAX
Framework.
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1.4
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“Authorized Reseller
Partner” shall mean those entities recruited by the Reseller to
re-sell, license and distribute the Licensed Materials and Hardware to
End-Users.
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1.5
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“AXTCP” shall mean
NiagaraAX
Technical Certification
Program.
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1.6
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“Code” shall mean
computer-programming code.
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i.
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“Binary Code” shall mean
Code including but not limited to Java byte Code and Object Code in a form
that is indirectly or directly executable by a computer, and is not
readable or understandable by a programmer of ordinary
skills.
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ii.
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“Object Code” shall mean
Code substantially or entirely in binary form, and includes header files
of the type necessary for use or inter operation with other computer
programs. It is intended to be directly executable by a
computer after processing or linking, but without interpretation,
compilation or assembly.
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iii.
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“Source Code” shall mean
Code in a form which when printed out or displayed is readable and
understandable by a programmer of ordinary skills. It includes
procedural and object oriented Code with associated comments describing
the operation of the Code.
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1.7
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“Confidential
Information” shall mean any non-public information about a Party;
the Party’s business, vendors, customers, products, services, employees;
the other’s finances, costs, expenses, financial or competitive condition,
policies, and practices; computer software programs and programming tools
and their respective design, architecture, modules, interfaces, databases
and database structures, non-literal elements, capabilities and
functionality, Code (including but not necessarily limited to the
NiagaraAX
Framework, ADI and APIs); the other’s research and development efforts,
marketing and distribution efforts; licensing, cross-licensing, marketing
and distribution practices; computer software programs and other
information licensed or otherwise disclosed to a Party in confidence by a
third party; the specific terms of this Agreement; and any other
non-public information that does or may have economic value by reason of
not being generally known.
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1.8
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“Customer” shall mean a
customer of the Reseller who is either an End User or an Authorized
Reseller Partner.
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1.9
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"Defect Correction"
shall mean any error corrections or bug fixes that
Tridium may provide from time to time, in its sole discretion, to
address defects found in the NiagaraAX
Framework software.
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1.10
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“Effective Date” shall
mean the date identified in the preamble of this
Agreement.
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1.11
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“End User” shall mean
any person, firm or enterprise authorized to use the Tridium technology
covered by this Agreement or the End User License Agreement for its
internal use and not for reselling or
sublicensing.
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1.12
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“End User License Agreement”
shall mean the license agreement between Tridium and an End User
that grants the right to use Tridium’s
software.
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1.13
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“Hardware” and “Hardware
Components” shall mean the JACE hardware manufactured or
distributed by Tridium designed to run the Licensed
Materials. Tridium reserves the right to replace, modify,
upgrade, discontinue and add to the Hardware available to the
Reseller.
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1.14
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“Intellectual Property
Rights” means (a) all inventions (whether patentable or
un-patentable and whether or not reduced to practice), all improvements
thereto, and all patents, patent applications, and patent disclosures,
together with all re-issuances, continuations, continuations-in-part,
revisions, extensions, and reexaminations thereof, (b) all Marks including
trademarks, service marks, trade dress, logos, trade names, and corporate
names, together with all translations, adaptations, derivations, and
combinations thereof and including all goodwill associated therewith, and
all applications, registrations, and renewals in connection therewith, (c)
all copyrightable works, all copyrights, and all applications,
registrations, and renewals in connection therewith, and (d) all mask
works and all applications, registrations, and renewals in connection
therewith.
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1.15
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“JACE” shall mean (i)
the Java Application Control Engine hardware manufactured or distributed
by Tridium and/or (ii) the Java Application Control Engine software
developed by Tridium.
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1.16
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“Key Contact” shall mean
the principal contact appointed by each Party for dealing with the other
pursuant to this Agreement, as identified in Section 13.9 below, or as may
be hereafter specified by notice of a Party to the
other.
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1.17
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“License Renewal Date”
shall mean the anniversary date of the Effective
Date.
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1.18
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“Licensed Materials”
shall mean the items listed on Exhibit
A.
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1.19
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“Marketing Plan” shall
mean the marketing plan as set forth on Exhibit
E.
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1.20
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“Xxxx(s)” shall mean a
Party’s trademarks, service marks, combination marks and logos that are
licensed hereunder and identified on Exhibit
B.
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1.21
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“Niagara Framework”
shall mean the interconnecting architecture and related software,
including ADI.
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1.22
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“Price List” shall mean
the Tridium, Inc. North American Price List in effect as the date of any
order placed by Reseller.
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1.23
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“Promotional Materials”
shall mean any press release, product brochure and similar
material, indicating Reseller is an Authorized Tridium
Reseller.
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1.24
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“Reseller Claim” shall
have the meaning as defined in Section
11.1.
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1.25
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“Reseller Matter” shall
have the meaning as defined in Section
11.2.
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1.26
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“RMA” shall mean a
Return Material Authorization relating to Hardware
returns.
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1.27
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“Systems Contractor
Agreement” shall mean that agreement by and between Reseller and an
Authorized Reseller Partner pursuant to which the Authorized Reseller
Partner shall obtain a non-transferable, non-exclusive right to re-sell,
license and distribute the Licensed Materials to
End-Users.
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1.29
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“Term” and “Renewal Term” shall
have the meanings as set forth in Section
12.1.
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1.30
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“Territory” shall be as
described in Exhibit E.
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1.31
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“Tridium Claim” shall
have the meaning as set forth in Section
11.3.
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1.32
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“Upgrades” shall mean
enhancements to or for the Licensed Materials and may also include any
unspecified modification, error correction, or bug fix. Upgrades shall
include Defect Corrections added to the Licensed Materials since the
previous Upgrade.
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1.33
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“Warranty Period” shall
mean the limited hardware warranty period defined in Section
9.2.
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2.1
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Limited
License. Subject to
the terms and conditions contained herein, Tridium hereby grants to
Reseller a non-exclusive, limited license under Tridium’s Intellectual
Property Rights to (i) order and purchase for resale copies of the
Licensed Materials; and (ii) use the Licensed Materials for demonstration
to and support of Customers.
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2.2
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End
User License Agreements. This Agreement does not provide
End Users with any right to install or use the Licensed
Materials. Use of the Licensed Materials by an End User is
governed by the terms of a separate End User License Agreement, which
accompanies or is included with the Niagara Framework. Reseller
acknowledges that End Users must enter into an End User License Agreement
(a copy of which is attached hereto as Exhibit F) with Tridium in each
instance where the Niagara Framework and/or other Licensed Materials are
resold to a Customer either directly or indirectly. Reseller
also acknowledges that End Users must agree to the terms of the End User
License Agreement before running the NiagaraAX
Framework and must obtain a permanent key from Tridium in order to
run the NiagaraAX
Framework beyond the initial operating period of 14
days.
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2.3
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No
Other Rights Granted. Apart from
the licenses expressly granted herein, no license or other right is
granted by Tridium to Reseller or Customers under this Agreement, either
directly or by implication, estoppel, or otherwise, under any other
Intellectual Property Rights (including, but not limited to, the right to
prepare derivative works), know-how or trade secrets. Reseller shall have
no right or access to the Source Code of the Licensed
Materials.
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2.4
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Restrictions. Reseller
shall:
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i.
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use
all commercially reasonable efforts to ensure that all Reseller employees,
contractors, consultants and Authorized Reseller Partners comply with the
terms of this Agreement;
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ii.
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not
make any representations or warranties on behalf of Tridium, about
Tridium, about the Intellectual Property or about the Licensed
Materials;
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iii.
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not
modify, decompile, disassemble, decrypt, extract, or otherwise reverse
engineer the Licensed Materials or any part thereof, or any application
enabler or grant any other person or entity the right to do so or take any
action that would assist any other person or entity in doing so and will
promptly notify Tridium of any information that any other person or entity
is or is attempting to copy, reverse engineer, disassemble, decompile,
translate or modify the Licensed
Materials;
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iv.
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not
insert, delete, replace, change or otherwise alter any files in the
Licensed Materials;
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v.
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not
loan, rent, lease, give, transfer, publish, disclose, display, or
otherwise make available the Licensed Materials, in whole or in part, to
any other person or entity except to an entity that (a) is an Authorized
Reseller Partner or (b) is the final End User of the Licensed Materials
and agrees to be bound by the End User
Agreement;
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vi.
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not
modify any API, including modifying any API by creating additional classes
within any interface or otherwise causing the addition to or modification
of the classes in an interface; and
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vii.
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ensure
that any individual employed by Reseller or any of its Authorized Reseller
Partners who undertakes NiagaraAX
programming has taken and passed either a Tridium AXTCP training course as
laid out in Exhibit D, or has taken and passed an equivalent training
operated by qualified Reseller
employees.
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3.1
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By
Reseller.
During the Term, Reseller grants Tridium a right of publicity to
use the Reseller Marks described in Exhibit B in its Promotional
Materials, financial reports, and prospectuses indicating Reseller is an
Authorized Tridium Reseller.
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3.2
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By
Tridium. During the Term, Tridium grants Reseller a
right of publicity to use the Tridium Marks described in Exhibit B in its
Promotional Materials, financial reports, and prospectuses indicating
Reseller is an Authorized Tridium
Reseller.
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3.3
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General
Restrictions. The Parties shall submit each use of the
other Party’s Marks in Promotional Materials for the owner’s prior written
approval, which approval shall not be unreasonably withheld or
delayed. Each Party shall use the other’s Marks strictly in
accordance with the Xxxx owner’s then-current usage guidelines as provided
from time to time.
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3.4
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NiagaraAX
Xxxx Usage Requirement. Reseller shall adhere
to logo usage guidelines attached as part of Exhibit
B. Reseller acknowledges that Tridium is the owner of all
right, title and interest in the “Powered by NiagaraAX”
Xxxx and that the mutually agreed upon appearance of the “Powered by
NiagaraAX”
Xxxx in the screens and displays of Licensed Materials or any related
printed materials shall inure to the benefit of Tridium as the owner
thereof.
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3.5
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Limitation
on Promotional Materials Usage. Once
approved, a Party may use the Promotional Materials until the other Party
withdraws such approval with reasonable prior notice. In the
event such approval is withdrawn, existing inventories of Promotional
Materials must be destroyed promptly. Each Party agrees to
supply to the other Party, upon request, with a reasonable number of
samples of any materials publicly disseminated that utilize the other
Party’s Marks.
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3.6
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Limitations. Reseller
may not remove, delete, cover or alter, and will maintain Tridium’s Marks,
logos, proprietary rights notices and restrictive rights legends included
in and on the Licensed Materials. Neither Party shall combine
the other Party’s Marks with any other name or make use of any of the
other Party’s Marks in its own trademarks, service marks, logos, or trade
names; or make any use or presentation of the other Party’s Marks that
would infringe, dilute, weaken, or otherwise damage or impair the other
Party’s rights in its Marks. The Parties shall
not: (i) challenge the other Party’s ownership or use of its
Marks; (ii) register the other Party’s Marks; or (iii) incorporate any
Xxxx of the other Party into its Marks, company name(s), Internet
address(es), domain name(s), or any other similar
designations. If Reseller acquires any rights in Tridium’s
Marks by operation of law or otherwise, it will immediately at no expense
to Tridium, assign those rights to Tridium with any associated goodwill,
applications and registrations.
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3.7
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Branding. Tridium will cooperate
with Reseller to brand the engineered solutions developed by Reseller
using the Licensed Materials as permitted hereunder as reasonably
requested by Reseller. Reseller will provide Tridium with the
appropriate information, drawings, artwork and information printed
information that it wishes to be included with the products. Tridium may
charge Reseller a set up fee and/or per product fee to cover any one time
or ongoing costs of providing this branding. In no
case shall Tridium be required to participate in branding in a manner that
Tridium believes to be infringing any trademark or other right of any
third party, or otherwise to be contrary to Tridium’s business
interests.
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i.
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Reseller
shall use its best efforts to recruit a network of entities qualified to
serve as Authorized Reseller Partners which will promote, market and
distribute to Customers the Licensed Materials and Hardware and other
building automation services and products that are compatible with the
Licensed Materials and Hardware and induce such Authorized Reseller
Partners to enter into a Systems Contractor Agreement. All
costs of recruiting Authorized Reseller Partners and all costs of
promoting and marketing the Licensed Materials and Hardware shall be borne
solely by the Reseller.
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ii.
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In
the course of recruiting entities to serve as Authorized Reseller Partners
and/or marketing and distributing the Licensed Materials and Hardware,
Reseller shall avoid deceptive, misleading, illegal or unethical practices
that may be detrimental to Tridium or to the reputation and good will of
the Licensed Materials or the Tridium
Xxxx(s).
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4.2
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Marketing
Plan and Reporting Obligations. The initial Marketing Plan is set
forth on Exhibit E. Each year during the Term, the Parties will
jointly review the Marketing Plan and shall mutually agree upon
appropriate adjustments including marketing strategies, support
capabilities and sales goals.
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4.3
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Systems
Contractor Agreements. Reseller shall ensure
that any Systems Contractor Agreement entered into by Reseller (i)
requires protection of Tridium at least as great as that provided to
Tridium under the following Sections of this Agreement: Section
2 (Software License Grants).; Section 3 (Trademark License Grant); Section
8 (Confidentiality), Section 9 (Warranty and Limitations), Section 10
(Assurances of Reseller), Section 11.3 (Indemnity), Section 13.3
(Compliance with Applicable Laws), Section 13.4 (Export) and Section 13.13
(Government Restricted Rights) and 13.5 (Equitable Relief); (ii) does not
extend beyond the term of this Agreement; and (iii) expressly names
Tridium as a third party beneficiary of all of the rights, obligations and
limitations described in this Section 2.4.viii. Reseller shall
provide a copy of each such agreement to Tridium upon Tridium’s
request.
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5.1
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Orders. Reseller
shall place all orders for the Licensed Materials and Hardware for itself
and its Customers by electronic mail or such other means as provided or
approved by Tridium. The terms and conditions of this Agreement
and those set forth on Exhibit G shall apply to each order accepted or
shipped by Tridium hereunder. Any terms or conditions appearing on any
order or confirmation that are different from or in addition to those
required hereunder shall not be binding on the Parties, even if signed and
returned, unless both Parties hereto expressly agree in a separate writing
to be bound by such separate or additional terms and
conditions.
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5.2
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Cancellation. Tridium
reserves the right to cancel or suspend any orders placed by Reseller, or
refuse or delay shipment thereof, if Reseller fails to (i) place a valid
order per the requirements of Tridium; (ii) make any payment as provided
on Exhibit C; (iii) meet commercially reasonable credit or financial
requirements established by Tridium; or (iv) otherwise comply with the
terms and conditions of this
Agreement.
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5.3
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Delivery
of Licensed Materials. Tridium
will deliver the Licensed Materials directly to the Reseller referencing
the Reseller’s Customer, as applicable, in an electronic file format by
CD-ROM or such other means as determined by
Tridium.
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5.4
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Shipment
of Hardware. Tridium
will deliver each Hardware Component directly to Reseller to the address
specified in the shipping instructions on the purchase order received from
Reseller. Tridium reserves the right to ship Hardware by any
means it deems suitable.
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5.5
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Shipping
Charges and Risk
of Loss. All shipments are F.O.B.
carrier. Reseller is responsible for all shipping charges in
accordance with Tridium’s then current shipping and billing
practices. Risk of loss shall pass to Reseller upon Tridium’s
delivery to the carrier.
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5.6
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Returning
a Defective Product. Tridium provides a limited hardware
warranty pursuant to Section 9.2 below. Before returning any
Hardware, either within or outside the Warranty Period, Reseller must
contact Tridium and obtain an RMA number. If Tridium verifies
the Hardware is defective, it will issue Reseller an RMA number to place
on the outer package of the product. Tridium is under no obligation to
accept any Hardware without an RMA number on the
package.
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6.1
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Reseller
Support. During the
Term of this Agreement, Reseller shall provide Authorized Reseller
Partners and/or End Users with the first-tier warranty, maintenance and
support services contemplated under any Systems Contractor Agreement
entered into with any Authorized Reseller Partner or under any other
Agreement between Reseller and an End User in a timely and professional
manner.
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6.2
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Tridium
Support. During the Term of this Agreement, Tridium
shall provide back-up technical telephone support for advice, consultation
and assistance to diagnose and resolve the problems of Reseller’s
Authorized Reseller Partners and/or End Users. Such back-up
support shall be provided solely to employees of Reseller who have
received certification training and passed a certification test pursuant
to the training described on Exhibit D. Unless this Agreement
has been canceled or suspended for any reason allowed herein, support is
generally available between the hours of 8:00 am and 5:00 pm Eastern Time,
Monday through Friday on Tridium’s normal business
days. Tridium shall have no obligation to (i) provide technical
support to Authorized Reseller Partners, Customers or End-Users or (ii)
have direct contact with any Authorized Reseller Partner, Customer or
End-User other than in matter relating to an End-User License Agreement
with such Authorized Reseller Partners, Customers or
End-Users.
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6.3
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Reseller
Demo System Software Maintenance. During the Term of
this Agreement, Tridium shall provide Reseller and Authorized Reseller
Partners with Defect Corrections and Upgrades at no additional charge
for use on its demonstration system(s)
only.
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6.4
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Customer
Software Maintenance. During the Term of this Agreement,
Tridium shall provide customer software maintenance as
follows:
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i.
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Defect
Corrections between releases will be made available to a Customer through
Reseller free of charge for the current release licensed to that Customer
for the first 180 days following the purchase from Tridium of such
release. Tridium assumes no responsibility for the installation
or the cost of installation of any Defect
Corrections.
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ii.
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All
Upgrades for distribution to Customers shall be available to
Reseller and may be purchased
individually.
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6.5
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Training. Tridium
will offer certification training to Reseller employees involved in the
use, installation and maintenance of the Licensed Materials and Hardware
on the terms and conditions set forth in Exhibits C and D attached
hereto.
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6.6
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Additional
Services. Custom
applications (other than those developed by Tridium), first-tier support
to Authorized Reseller Partners and/or End Users, on-site support or other
engineering or programming services are not provided by Tridium under this
Agreement, but are available under the terms (which shall include
additional fees) of a separate agreement. In the event that
Reseller desires Tridium to provide support for any products licensed by
Reseller from a third party that are compatible with the Licensed
Materials, Reseller and Tridium shall enter into a separate support
agreement and Reseller shall obtain and warrant to Tridium that it has
obtained any license or permission from such third party necessary to
permit Tridium to perform such services on Reseller’s
behalf.
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7.1
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Fees
and Payment. As partial
consideration for the licenses granted by Tridium to Reseller in Sections
2 and 3 and as consideration for the delivered Hardware, Reseller shall
pay Tridium the license fees and/or royalties and/or other fees as listed
and referenced on Exhibit C and/or the then current Price
List. Except as otherwise provided in this Agreement, payment
of all fees shall be due and payable no later than 30 days from date of
invoice from Tridium. Tridium products are provided FOB, Richmond,
VA. Reseller must complete the credit form attached hereto as
Exhibit H prior to execution of this Agreement as part of Tridium’s
evaluation of the appropriate credit limit for
Reseller. Tridium reserves the right to review and adjust
Reseller’s credit limit at any
time.
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7.2.
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Late
Payment. If Reseller
fails to pay amounts when due, late charges of the lesser of one point
five percent (1.5%) per month or the maximum allowable under applicable
law shall also become payable to Tridium. In addition, failure
of Reseller to fully pay any fees within sixty (60) days after the
applicable due date shall be deemed a material breach of this Agreement,
justifying suspension of the performance by Tridium under this Agreement,
and will be sufficient cause for immediate termination of this Agreement
by Tridium. Any such suspension does not relieve Reseller from
paying past due fees plus interest and in the event of collection
enforcement, Reseller shall be liable for any costs associated with such
collection, including, but not limited to, legal costs, attorneys' fees,
court costs and collection agency
fees.
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7.3.
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Payment
Responsibility. Reseller is responsible for the payment
of all fees, and if applicable, all late charges owed to Tridium under the
terms of this Agreement. Tridium has no relationship with any
other party outside of this Agreement including but not limited to
Reseller, Customers, Authorized Reseller Partners and
End-Users.
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7.4.
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Payment
– General. All payments will be in United States Dollars
without deduction of any kind, except as required by applicable laws (in
which case Reseller will obtain and provide Tridium evidence issued by the
relevant authority acknowledging their receipt of the deducted
amount.)
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7.5
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Taxes. Published
prices on the Price List do not include duties or sales, use, excise or
other similar taxes and Reseller shall bear and pay all taxes (excluding
any income tax owed by Tridium) imposed by the national government,
including any political subdivision thereof, of any country in which
Reseller is doing business as the result of the existence of the Agreement
or the exercise of rights hereunder in addition to the stated prices; or
in lieu thereof, Reseller shall provide Tridium with required tax
exemption forms.
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7.6
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Expenses. It is
expressly understood and agreed that Tridium is under no obligation or
requirement to reimburse Reseller for any expenses or costs incurred by
Reseller in the performance of its responsibilities under this
Agreement. Any costs or expenses incurred by Reseller shall be
at Reseller’s sole risk and upon its independent business judgment that
such costs and expenses are
appropriate.
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7.7
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Audits
& Reports. If Reseller is granted direct
access to Tridium’s licensing server, then Reseller will maintain for a
period of three (3) years after the end of the year to which they relate
accurate records regarding all copying and distribution activities of
licenses issued from the Tridium licensing server, and any royalty
payments due to Tridium, pursuant to this Agreement. Upon 15
days prior notice, Tridium may, at its sole expense subject to
reimbursement as contemplated below, have an independent auditor of its
choice audit such records to verify such records and/or review Reseller’s
compliance with this Agreement during normal business hours; or Tridium
may require that Reseller provide Tridium with a written report signed by
an authorized officer of Reseller substantiating the number and product
code of the Licensed Materials issued using the Tridium licensing server
during the period of time covered by the report. If the audit,
the report, or other reasonable evidence is presented to Tridium,
indicates a discrepancy with any fee payments made to Tridium, payment
errors will be corrected immediately by an adjustment payment, which will
include interest on the overdue amount in accordance with the Reseller
Agreement. Audits will not occur and reports will not be
requested more than once each year unless discrepancies are discovered
indicating an underpayment of more than three percent (3%) of the proper
amount owed. Reseller will also reimburse Tridium for its reasonable out
of pocket audit costs if the underpayment is more than three percent (3%)
of the proper amount owed.
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8.1
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Confidential
Information. During the Term of this Agreement, the
Parties acknowledge that Confidential Information may be disclosed to the
other Party. The standard Tridium non disclosure document has
been executed by both parties.
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8.2
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Exceptions. Confidential
Information shall not include information that: (i) is now or subsequently
becomes generally available to the public through no fault or breach on
the part of the receiving Party; (ii) the receiving Party can demonstrate
to have had lawfully in its possession without an obligation of
confidentiality prior to disclosure hereunder; (iii) is independently
developed by the receiving Party without the use of any Confidential
Information of the disclosing Party as evidenced by written documentation;
(iv) the receiving Party lawfully obtains from a third party who has the
right to transfer or disclose it and who provides it without any
obligation to maintain the confidentiality of such information; or (v) is
required to be disclosed by court order or operation of
law.
|
|
8.3
|
Obligations. Except
as otherwise expressly provided in this Agreement, each Party agrees to
keep confidential the Confidential Information disclosed during the Term
of this Agreement, and to not disclose the Confidential Information to
third parties except confidential disclosures made to directors, officers,
employees, consultants, counsel, accountants, professional advisers and
other agents of the Party or its Affiliates whose duties justify access to
such Confidential Information to perform such Party’s obligations or
exercise its rights hereunder, who shall each agree to comply with
nondisclosure protections at least as protective of the other Party’s
Confidential Information as those in this Section and to use such
Confidential Information for the purposes set forth in this
Agreement. Each Party agrees that its obligations with respect
to the other Party’s Confidential Information shall survive for (i) a
period of three (3) years following receipt of such Confidential
Information related to the disclosing Party’s general business information
and (ii) indefinitely with respect to any Confidential Information related
to the disclosing Party’s trade secrets or know-how. During the
Term of this Agreement, each Party shall take reasonable steps, at least
substantially equivalent to the steps it takes to protect its own
proprietary information to prevent the duplication or disclosure of
Confidential Information of the other Party. Each Party shall
use its best efforts to cause any third parties that may come into
possession of any Confidential Information to maintain the confidentiality
of such information.
|
|
9.1
|
Disclaimer
of Software Warranty. TRIDIUM
LICENSES THE LICENSED MATERIALS “AS IS” WITH NO OTHER EXPRESS OR IMPLIED
WARRANTY OF ANY KIND. TRIDIUM SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW, INCLUDING
WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE OR
FITNESS FOR ANY PARTICULAR PURPOSE. NO ORAL OR WRITTEN
INFORMATION OR ADVICE GIVEN BY TRIDIUM, ITS AGENTS OR EMPLOYEES SHALL
CREATE A WARRANTY.
|
|
9.2
|
Hardware
Limited Warranty & Hardware Replacement Policy. TRIDIUM WARRANTS
TO RESELLER THAT FOR 18-MONTHS FROM DATE OF MANUFACTURE (THE “WARRANTY
PERIOD”) THE HARDWARE COMPONENTS WILL BE FREE FROM DEFECTS IN MATERIAL AND
WORKMANSHIP. THIS WARRANTY DOES NOT COVER REPLACEMENT OF HARDWARE DAMAGED
BY ABUSE, ACCIDENT, MISUSE, NEGLECT, ALTERATION, REPAIR, DISASTER,
IMPROPER INSTALLATION, OR IMPROPER TESTING. IF THE HARDWARE IS
FOUND TO BE DEFECTIVE, TRIDIUM, AT ITS OPTION, WILL REPLACE OR REPAIR THE
HARDWARE AT NO CHARGE EXCEPT AS SET FORTH BELOW PROVIDED THE RESELLER
DELIVERS THE HARDWARE ALONG WITH A RETURN MATERIAL AUTHORIZATION (“RMA”)
NUMBER (SEE SECTION 5.6 ABOVE) WITH AN EXPLANATION OF ANY DEFICIENCY. IF
RESELLER SHIPS THE HARDWARE, RESELLER MUST ASSUME THE RISK OF DAMAGE OR
LOSS IN TRANSIT. RESELLER MUST USE THE ORIGINAL CONTAINER (OR THE
EQUIVALENT) TO RETURN THE HARDWARE. TRIDIUM MAY REPLACE OR
REPAIR THE HARDWARE WITH EITHER NEW OR RECONDITIONED PARTS, AND ANY PART
OR HARDWARE REPLACED BECOMES TRIDIUM’S PROPERTY. REPAIRED OR REPLACED
HARDWARE COMPONENTS WILL BE RETURNED AT THE SAME REVISION LEVEL AS
RECEIVED OR HIGHER, AT TRIDIUM’S OPTION. TRIDIUM RESERVES THE RIGHT TO
REPLACE DISCONTINUED HARDWARE WITH AN EQUIVALENT CURRENT GENERATION
PRODUCT. TRIDIUM ASSUMES NO RESPONSIBILITY FOR REPAIRS MADE ON
THE EQUIPMENT, UNLESS PERFORMED BY TRIDIUM AUTHORIZED
PERSONNEL. FOR MATERIALS FURNISHED BUT NOT MANUFACTURED BY
TRIDIUM, TRIDIUM WILL PASS THROUGH THE WARRANTY RECEIVED FROM THE
MANUFACTURER, AS PERMITTED BY THE MANUFACTURER, TO THE
RESELLER.
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9.3
|
Limitation
of Liability. NEITHER
TRIDIUM NOR ANY OF ITS RESPECTIVE LICENSORS, OFFICERS, AGENTS, EMPLOYEES
OR REPRESENTATIVES SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, OR PUNITIVE DAMAGES OR PENALTIES (INCLUDING
DAMAGES FOR LOST PROFITS, LOST BUSINESS, LOST DATA, BUSINESS INTERRUPTION,
AND THE LIKE), HOWEVER IT ARISES, INCLUDING BUT NOT LIMITED TO, THE USE BY
RESELLER OR ITS CUSTOMERS OF THE LICENSED MATERIALS OR ANY OF ITS OTHER
PRODUCTS, WHETHER FOR BREACH OR IN TORT, EVEN IF TRIDIUM HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
|
|
9.4
|
Limitation
of Remedies. NOTWITHSTANDING
THE ABOVE, IN NO EVENT SHALL TRIDIUM’S MONETARY LIABILITY IN CONNECTION
WITH THIS AGREEMENT OR THE LICENSED MATERIALS, TO RESELLER, ITS AUTHORIZED
RESELLER PARTNERS AND/OR ITS CUSTOMERS EXCEED THE AMOUNTS PAID TO IT BY
RESELLER PURSUANT TO THIS
AGREEMENT.
|
10.
|
Assurances by
Reseller.
|
|
10.1
|
Appropriate
Precautions Required by Reseller. There can
be no assurances whatsoever that control systems such as the Licensed
Materials and Hardware will protect Reseller, its Customers, or any
individual or his, her or their respective property from
harm. Appropriate safety precautions must always be taken when
operating or maintaining equipment connected to a JACE or other Licensed
Materials and Hardware. Tridium assumes no responsibility or
liability for any injury or damage to any persons or property resulting
from the use by Reseller or its Authorized Reseller Partners or Customers
of the Licensed Materials. Further, Reseller represents and
warrants that it will use its best efforts to take appropriate
precautions, establish appropriate procedures and post appropriate notices
to ensure that persons and property are not harmed in the event of an
error, malfunction or unexpected operation of the Licensed Materials,
Hardware, or other Tridium
products.
|
|
10.2
|
High-Risk
Applications. Unless
Tridium has provided its express written consent, neither the Hardware nor
Licensed Materials may be, and Reseller shall make reasonable business
efforts to ensure that it is not, used in any application in which the
failure of the Hardware and/or Licensed Materials could lead to death,
personal injury or severe physical or property damage (collectively,
“High-Risk Applications”), including but not limited to the operation of
nuclear facilities, mass transit systems, aircraft navigation or aircraft
communication systems, air traffic control, weapon systems and direct life
support machines. Tridium expressly disclaims any express or
implied warranty or condition of fitness for High-Risk
Applications.
|
11.
|
|
11.1
|
Indemnification
for Intellectual Property Infringement by Tridium. Tridium
shall, at its own expense, defend or, at its option, settle any claim,
suit, or proceeding brought against Reseller by a third party for
infringement or misappropriation of any US Intellectual Property Rights or
other proprietary right of any third party by the Licensed Material
(“Reseller Claim”) and shall pay any direct damages finally awarded or
settlement amounts agreed upon to the extent based upon an Reseller Claim;
provided that Reseller provides Tridium with (i) prompt written notice of
such Reseller Claim; (ii) control over the defense and settlement of such
Reseller Claim; and (iii) proper and full information and assistance to
settle or defend any such Reseller
Claim.
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11.2
|
Exceptions. Tridium shall have no
liability to Reseller under Section 11.1 or otherwise for any claim or
action alleging infringement based on (i) any use of the Licensed Material
in a manner other than as specified by Tridium; (ii) any combination of
the Licensed Material by Reseller or by any Customer with other products,
equipment, devices, software, systems or data not supplied by Tridium to
the extent such claim is directed against such combination; or (iii) any
modifications or customization of the Licensed Material by any person
other than Tridium (each, a “Reseller
Matter”).
|
|
11.3
|
By
Reseller. Reseller shall, at its own expense, defend or,
at its option, settle any claim, suit or proceeding brought against
Tridium arising out of a Reseller Matter and shall pay any damages finally
awarded or settlement amounts agreed upon to the extent based upon an
Reseller Matter (“Tridium Claim”); provided that Tridium provides Reseller
with (i) prompt written notice of such Tridium Claim; (ii) control over
the defense and settlement of such Tridium Claim; and (iii) proper and
full information and assistance to settle or defend any such Tridium
Claim. Reseller shall indemnify and hold harmless
Tridium, its Affiliates, officers, directors, employees and agents against
all losses, claims, damages or other causes of any nature or kind
whatsoever (including reasonable attorney's fees) arising directly or
indirectly out of third party claims concerning (i) the breach by Reseller
of any covenant herein; (ii) the gross negligence or intentional
misconduct of Reseller, its officers, employees, agents or contractors; or
(iii) any services rendered by Reseller pursuant to this
Agreement.
|
|
11.4
|
Certain
Actions in Response to Infringement. Upon
Tridium’s sole determination, or after the entry of any judgment or order
not subject to further appeal, that the use of the Licensed Materials by
Reseller or Reseller’s Customers (other than for use of the Licensed
Materials where the Licensed Materials would not by itself be infringing),
infringes upon the rights of any third party and that such use of the
Licensed Materials must cease, Tridium at its election shall, at its own
cost and expense, either (i) replace such parts of the Licensed Materials
the use of which have been enjoined, (ii) modify such Licensed Materials
in such a way that its use does not infringe upon the rights of third
parties, (iii) procure a license, on reasonable terms, for Reseller or its
Customers to use same, or (iv) refund the license fee paid by Reseller or
its Customer to Tridium.
|
12.1
|
Term
and License Renewal Dates. This
Agreement shall commence on the Effective Date and, unless terminated as
provided for herein, run for a period of two
years (the “Initial Term”) provided, however, that the license and support
fees as set forth in Exhibit C are paid by Reseller by each License
Renewal Date. This Agreement shall automatically renew for
subsequent one-year terms (each, a “Renewal Term”) unless, at least 90
days prior to the expiration of the then-applicable Term, either Party
gives the other written notice of its election not to renew. In
the event of such election not to renew, this Agreement and all licenses
shall expire automatically at the end of the then applicable
Term. References herein to the Term shall include the Initial
Term, the First Renewal Term and any Renewal
Term.
|
|
12.2
|
Termination
for Cause. Either
Party may terminate this Agreement upon a material or continuing breach of
this Agreement by the other by the giving of 30 days prior written notice
of termination, stating the cause therefore, with termination becoming
effective at the close of said 30-day term if the breach is not then cured
to the satisfaction of the Party giving
notice.
|
|
12.3
|
Termination
Upon Default. In addition to termination allowed under Section
12.2, this Agreement may be terminated immediately, by the giving of
written notice as follows:
|
|
i.
|
by
Tridium, if a governmental or regulatory body imposes restrictions or
denies authority for Reseller to perform the duties required of it
pursuant to this Agreement;
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ii.
|
by
Tridium, if Reseller uses or authorizes the unlicensed use or disclosure
of Tridium’s Confidential Information or makes, has made, uses, sells,
reproduces, modifies, or distributes the Licensed Materials other than as
is expressly licensed herein;
|
|
iii.
|
by
Tridium, if Reseller assigns or transfers this Agreement, or any license
herein, or attempts to do so without complying with the provisions of
13.2;
|
|
iv.
|
by
either Party if the other Party is indicted for the violation of any law
or regulation material to the performance of its duties
hereunder;
|
|
v.
|
by
Tridium, if Reseller (a) ceases to do business in the normal course, (b)
becomes or is declared insolvent or bankrupt, (c) is the subject of any
proceeding related to its liquidation or insolvency (whether voluntary or
involuntary), other than a reorganization under Chapter 11 of the
Bankruptcy Code of the United States of America, which is not dismissed
within ninety (90) calendar days, or (d) makes an assignment for the
benefit of creditors.
|
|
i.
|
Upon
termination or expiration of this Agreement, Reseller shall return or
provide Tridium with proof of the destruction of the Licensed Materials
and all existing packages, cartons, containers, point of sale displays,
advertising, labels, stencils, cut-outs, forms and the like which bear the
Tridium Marks or are or can be used in the application or reproduction of
the Tridium Marks. For the purposes of this Section 12.4, a
written statement fully describing such destructions and obliterations,
certified by Reseller, one of Reseller’s officers or another individual
legally authorized to bind Reseller, shall constitute acceptable proof to
Tridium.
|
|
ii.
|
The
rights of any Authorized Reseller Partners or End Users to whom Reseller
may have distributed copies of the Licensed Materials or Hardware pursuant
to this Agreement will be unaffected by the termination of this Agreement;
provided, however, upon termination Reseller shall assign to Tridium its
rights and obligations under the Systems Contractor
Agreement.
|
|
iii.
|
Upon
termination or expiration of this Agreement, Tridium may, but is not
obligated to, negotiate a license agreement with Reseller pursuant to
which Reseller may license the Licensed Materials to provide support to
the Authorized Reseller Partners or
Customers.
|
|
12.5
|
Change of Control of
Reseller. In the event of change of control of the
Reseller, Tridium may at its sole discretion terminate the Reseller
contract. Change of control is defined as when a
controlling interest in the Reseller’s company or any company that
controls the Reseller is obtained by an unaffiliated person or
company. Reseller may seek Tridium’s prior approval if it plans
to sell a controlling interest in Reseller. Such approval shall not be
unreasonably withheld or delayed.
|
13.
|
|
13.1
|
Independent
Contractor. Reseller and Tridium are independent business entities,
bound to each other only as provided for herein. Reseller has
no authority to bind, act on behalf of or represent Tridium except to the
limited extent Reseller is expressly authorized herein. Nothing
in this Agreement creates a relationship of employer-employee, principal
and agent, master and servant or franchisor and
franchisee. Reseller covenants that it shall not act or fail to
act in any way that could reasonably cause others to believe that it has
authority to act on behalf of Tridium beyond the authority expressly
granted herein.
|
|
13.2
|
Assignment. Neither
Party shall have the right to assign this Agreement or its rights and
obligations under this Agreement without the prior written consent of the
other. Notwithstanding the foregoing, Reseller agrees that: (a)
Tridium may assign its rights and obligations to any purchaser of
substantially all of its business; (b) Tridium may assign this Agreement
to an Affiliate; and (b) either Party may appoint subcontractors and
sublicenses to provide all or part of the goods or services hereunder,
subject to the other terms of this Agreement. This Agreement
shall be binding upon and inure to the benefit of each Party's successors
and authorized assigns.
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13.3
|
Compliance
with Applicable Laws. Tridium and
Reseller shall comply with all applicable laws and regulations of
governmental bodies or agencies relating to its performance under this
Agreement. Tridium and Reseller shall obtain and maintain all
necessary licenses and pay all required fees in connection with its duties
hereunder.
|
|
13.4
|
Export. Software,
including technical data, is subject to U.S. export control laws,
including the U.S. Export Administration Act and its associated
regulations, and may be subject to export or import regulations in other
countries. Reseller agrees to comply strictly with all such
regulations and acknowledges that it has the responsibility to obtain such
licenses to export, re-export, or import the Licensed
Materials. Without limiting the generality of the foregoing,
the Licensed Materials may not be used, sold, resold, sublicensed,
diverted, transferred, reshipped, or otherwise exported or
re-exported:
|
|
i.
|
in,
into or through any country designated as a terrorist supporting country
by the U.S. government or any of its
agencies;
|
|
ii.
|
in,
into or through any country which the U.S. has an embargo or with which
the U.S. or any of its agencies maintains comprehensive trade
controls;
|
|
iii.
|
to
or by a national or resident of the countries described in (i) or (ii);
or
|
|
iv.
|
to
or by any party included in the United States Department of Commerce’s
Denied Persons List, Entity List or Unverified List; or the United States
Department of the Treasury’s Specially Designated Nationals, Specially
Designated Global Terrorists, Specially Designated Narcotics Traffickers,
or Specially Designated Terrorists List; or the United States Department
of State’s Designated Foreign Terrorist Organizations or Debarred Persons
List; or is otherwise designated by the U.S. government or any of its
agencies as a party with which it is unlawful to do
business.
|
|
13.5
|
Equitable
Relief. Each Party acknowledges that any breach of its obligations
hereunder with respect to the Licensed Materials or the Confidential
information of the other Party will cause the non-breaching Party
irreparable injury for which it has no adequate remedy at law, and
therefore that the non-breaching Party will be entitled to seek and obtain
equitable relief, including preliminary injunctions and temporary
restraining orders, to prevent any unauthorized use of the non-breaching
Party’s Confidential Information, in addition to all other remedies
available to it under this Agreement or other applicable
law. The Parties also agree that any breach by Reseller of its
obligations with respect to the Licensed Materials shall give Tridium the
right to equitable relief as set forth
herein.
|
|
13.6
|
Headings. The
headings in this Agreement and its Exhibits are for the convenience of the
reader and shall not limit or alter the meaning of any term of this
Agreement.
|
|
13.7
|
Waiver. A waiver of
any breach of default of this Agreement shall not create a waiver of the
term or of any subsequent breach of
default.
|
|
13.8
|
Governing
Law; Arbitration. The validity of this Agreement and the rights,
obligations and relations of the Parties hereunder shall be construed and
determined under and in accordance with the substantive laws of the
Commonwealth of Virginia with respect to claims governed by state law and
the laws of the United States with respect to claims arising under the
laws of the United States, without regard to conflicts of laws principles
and excluding the Convention on Contracts for the International Sale of
Goods. Any action arising from or relating to this Agreement or the
conduct of the Parties pursuant hereto shall be commenced and heard solely
within a federal or state court of competent jurisdiction found within the
boundaries of the United States District Court for the Eastern District of
Virginia, Richmond Division, and Tridium and Reseller each consent to
personal jurisdiction and venue in any such
court.
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|
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13.9
|
Notices. Any notice
required or allowed to be delivered hereunder shall be effective only if
served by personal service, first class mail, confirmed facsimile
transmission, email (return receipt requested) or express carrier (e.g., Fed Ex)
to the Key Contact at the address of the receiving Party set forth
below. Either Party, by Notice to the other, may designate any
other individual, address or number in place of those shown
below.
|
TRIDIUM
KEY CONTACT
|
AUTHORIZED
TRIDIUM RESELLER
KEY
CONTACT
|
|||||
Name:
|
Xxxxxx
Xxxxxxxx
|
Name:
|
Xxxxx
Xxxxxxxxx
|
|||
Address:
|
0000
Xxxxxxxx Xxxxxxx
|
Address:
|
0000
Xxxx Xxxxx Xxxxxxx Xxxxx
|
|||
Xxxxxxxx,
XX 00000
|
Xxxxx,
XX 00000
|
|||||
Telephone:
|
000
000-0000
|
Telephone:
|
000
000-0000
|
|||
Facsimile:
|
804
747-5204
|
Facsimile:
|
||||
E-mail:
|
XXxxxxxxx@Xxxxxxx.xxx
|
E-mail:
|
Xxxxx.Xxxxxxxxx@Xxxxxxx.xxx
|
13.10
|
Survivability. Any term or
provision of this Agreement, or portion thereof, which by its nature
survives the termination or expiration of this Agreement, shall so
survive.
|
13.11
|
Force
Majeure. Neither
Party shall hold the other responsible for any delay or failure of
performance to the extent directly caused by strike, riots, fire,
insurrection, embargoes, failure of carriers, inability to obtain
materials or transportation facilities, acts of God or of the public
enemy, or other causes beyond the control of that Party, irrespective of
whether the cause could be alleviated by the payment of
money.
|
13.12
|
Severability. Should
any term or provision of this Agreement be finally determined by a court
of competent jurisdiction to be void, invalid, unenforceable or contrary
to law or equity, the offending term shall be modified and limited (or if
strictly necessary, deleted) only to the extent required to conform to the
requirements of law and the remainder of this Agreement (or, as the case
may be, the application of such provisions to other circumstances) shall
not be affected thereby but rather shall be enforced to the greatest
extent permitted by law.
|
13.13
|
U.S.
Government Restricted Rights. The
NiagaraAX
Framework is provided with RESTRICTED RIGHTS. Use, duplication
or disclosure by the government is subject to restrictions as set forth in
subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer
Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of
the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as
applicable. Manufacturer is Tridium, Inc., 0000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxx 00000.
|
13.14
|
Entire
Agreement. This
Agreement, including its Exhibits (which are hereby incorporated by
reference), comprises the entire agreement between the Parties relating to
its subject matter. This Agreement supersedes all prior
agreements and understandings, written or oral, express or implied except
the terms of any confidentiality agreement between the parties shall not
be superseded. This Agreement can be amended or modified only
by a writing executed in advance by duly authorized representatives of
each of the Parties hereto. THE ACCEPTANCE OF ANY PURCHASE
ORDER PLACED BY RESELLER IS EXPRESSLY MADE CONDITIONAL ON RESELLER’S
ASSENT TO THE TERMS SET FORTH HEREIN, AND NOT THOSE IN RESELLER’S PURCHASE
ORDER.
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|
TRIDIUM
INC.
|
AUTHORIZED
TRIDIUM RESELLER
|
|||||
Tridium
|
Reseller
|
|||||
Signature:
|
Signature:
|
|||||
Date:
|
Date:
|
|||||
Printed Name:
|
Printed Name:
|
|||||
Title:
|
Title:
|
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|
Exhibit
A
To
Tridium Reseller Agreement
(See
Section 2, the provisions in this Exhibit A set forth below and Exhibit C for
limitations of specific licenses.)
|
1.2
|
Licensed
Materials and Hardware for Demonstration and
Support:
|
Products
on Tridium’s North American AX Partner Price List
|
1.3
|
*
|
Tridium
reserves the right to replace, modify, upgrade, add to this list and
delete from this list any items as it deems appropriate in its normal
course of business. Please see the current Price List for an
updated list of Licensed Materials.
|
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|
Exhibit
B
To
Tridium Reseller Agreement
I.
|
Tridium
Marks
|
A.
|
Tridium
Incorporated (Company Logo)
|
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|
B.
|
Tridium
Niagara Framework (Interconnecting Architecture and related
Software)
|
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
C.
|
XXXX
|
XX.
|
Reseller
Marks
|
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|
Logo Placement
Guidelines
Compatibility
Logos. Tridium grants Reseller
a license to the Compatibility Logos pursuant to the further terms described in
the Compatibility Logos License entered into herewith, and incorporated by
reference herein. Tridium shall provide Reseller with a copy of such
Compatibility Logos in appropriate digital or camera-ready
format. Tridium’s Compatibility Logos may be altered, modified, and
changed by Tridium at its sole discretion at any time.
Tridium
Trademarks License. Reseller
may refer to the engineered solution by the associated Tridium Trademarks solely
in accordance with this section. Reseller shall not combine the
Tridium Trademarks with any other name or make use of any of the Tridium
Trademarks in its own trademarks, service marks, logos, or trade names other
than in accordance with the agreement or as otherwise mutually agreed upon by
the parties; or make any use or presentation of the Tridium Trademarks that
would infringe, dilute, weaken, or otherwise damage or impair Tridium's rights
in the Tridium Trademarks. All forms of presentation of the Tridium
Trademarks shall be in accordance with the requirements of this Exhibit, shall
be subject to prior review and approval by Tridium (upon its request), and shall
be otherwise reasonably acceptable to Tridium. Reseller is granted no right,
title or license to, or interest in, any Tridium Trademarks. Reseller
acknowledges Tridium's statements about its rights in Tridium Trademarks and
agrees that any use of Tridium Trademarks by Reseller will inure to the sole
benefit of Tridium.
The
following guidelines are to be followed on all newly printed materials,
advertisements, literature, documents, website pages, or trade show displays on
the Effective Date of this Agreement. In no event shall Reseller
and/or its Customers distribute any documents for products incorporating the
engineered solution or the Niagara Framework without adhering to the guidelines
below:
Printed materials for system
components enabled by NiagaraAX
Framework that compose any part of the total control system must feature the
powered by NiagaraAX logo on
the same page in which the first reference to NiagaraAX
Framework technology appears within the printed material copy or
graphics.
Printed materials for building
automation system solutions that feature references to individual system
components enabled by NiagaraAX
Framework technology must, at a minimum, reference the powered by Niagara logo
on the back page/cover of the printed materials.
Printed materials that
reference the NiagaraAX
Framework technology in name or inference as part of a control system solution
must, at a minimum, reference the powered by NiagaraAX logo on
the back page/cover of the printed materials.
In printed materials that
acknowledge LonMark and/or BACnet names or marks, the powered by NiagaraAX xxxx
must receive equal treatment in a similar manner.
Color printed materials will
feature a color version of the powered by NiagaraAX
logo. Black-and-white printed materials may use the one-color version
of the logo. All reproduction guidelines provided by Tridium must be
met.
Appropriate
trademark/service xxxx descriptive information must be displayed within all
printed materials for
products or systems that include the NiagaraAX
Framework. “NiagaraAX
Framework is a registered trademark of Tridium, Inc.” Trademark
information must be displayed in a bold typeface of 10-point size or larger, but
not larger than any Reseller trademark if the Reseller trademark information is
smaller than 10 font. In no cases, however, shall the Reseller
trademark be of a smaller font than generally customary in the industry for
printed material of similar nature, text font size, and style.
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The
powered by NiagaraAX logo
must appear within all advertising for products or
systems that incorporate the NiagaraAX
Framework, or any part of the NiagaraAX
Framework as the control system operating infrastructure.
Logo
placement on A4 advertising must be at least
32mm (width).
In the
case of oversized advertisements, the powered by
Niagara logo will be one column wide based on a five column layout.
Color
advertisements will
feature a color version of the powered by NiagaraAX
logo. Black-and-white ads may use the one-color version of the
logo. All reproduction guidelines provided by Tridium must be
met.
Appropriate
trademark/service xxxx descriptive information must be displayed within all
advertisements that use
the powered by NiagaraAX
logo: “NiagaraAX
Framework is a registered trademark of Tridium, Inc.” Further, this
information (“NiagaraAX
Framework is a registered trademark of Tridium, Inc.”) must be displayed in the
same area that Reseller trademark or registered xxxx descriptive references
appear. Trademark information must be displayed in a bold typeface of
10-point size or larger, but not larger than any Reseller trademark if the
Reseller trademark information is smaller than 10 font. In no cases,
however, shall the Reseller trademark be of a smaller font than generally
customary in the industry for printed material of similar nature, text font
size, and style.
Logo
placement on webpages
must be at least one-fifth the screen width, or one-inch in size (width),
whichever is smaller. There must be a minimum of ¼ inch clear space
surrounding the border of the logo, or 30 percent of the height of the “N” in
NiagaraAX,
whichever is greater, unencumbered by other graphics or copy. Logo
may be shown within the lower border area of the page. The lower or
outer edge of the logo must always maintain at least ½ inch clear space from the
edge of the page.
The
powered by NiagaraAX logo
will be positioned over a contrasting background.
The
following guidelines are to be followed on all newly distributed hardware and
software products on the Effective Date of this Agreement. In no
event shall Reseller and/or its Customers distribute product incorporating the
ENGINEERED SOLUTION or the NiagaraAX
Framework without adhering to the guidelines below:
Hardware
Products: If the NiagaraAX
Framework is embedded into hardware components within a control system
installation, those hardware components must contain the powered by NiagaraAX
logo. In the case of products bearing the Reseller logo, with at
least ¼-inch of clear space maintained, or 30 percent of the height of the “N”
in NiagaraAX,
whichever is greater, between the outer edge borders of two logos.
A 1.5
inch logo size (width) is preferred; however, if space is limited, logo
placement on product must be at least one inch in size (width) or 30 percent of
the size of the OEM logo, whichever is greater. There must be a
minimum of ¼-inch clear space surrounding the border of the logo, or 30 percent
of the height of the “N” in NiagaraAX,
whichever is greater, unencumbered by other graphics or copy.
Software Products: The powered
by NiagaraAX logo
must appear on the ENGINEERED SOLUTION home page display, system configuration
page and/or system default page for any system comprised of components enabled
by NiagaraAX
Framework.
Logo
placement on software products must be at least one-fifth the screen width, or
one-inch in size (width), whichever is smaller. There must be a
minimum of ¼ inch clear space surrounding the border of the logo, or 30 percent
of the height of the “N” in NiagaraAX,
whichever is greater, unencumbered by other graphics or copy. The
“Powered by NiagaraAX” logo
will be included on the Product and literature and shall not be removed or
otherwise tampered with. Reseller undertakes to comply with the
Branding and labeling information contained in Exhibit C attached.
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23-SEPT-2005
|
Exhibit
C
To
Tridium Reseller Agreement
Schedule
of Fees and Royalties
Schedule
of Fees, Royalties and Commissions
I.
|
Tridium Reseller
Sign-Up Fees
|
|
$9,619.00
|
Total
Fee payable (see attached Solarsa reseller signup for breakdown) upon
execution of this Authorized Tridium Reseller Agreement including
rebranding of hardware, application, and engineering
tools.
|
|
A.
|
Single User Registered Licenses
for Office Demo AX Web Supervisor Software. Covers the
first year license fee for registered licenses of Office Demo AX
Supervisor installed on the Reseller’s designated engineering workstations
for demonstration, database development support and training. Each copy of
the software includes the Workplace AX configuration and programming
tool. The designated workstation must meet the minimum system
requirements as listed on the current software release
bulletin. .
|
|
B.
|
Office Demo Equipment and
Software. This includes the office demonstration
equipment and software shown in the following
table:
|
Item
|
Qty
|
Part
Number
|
||
JACE
2 Office Demo
|
1
|
N-2XX-AX-KIT
|
||
Includes
the following:
|
||||
JACE
2
|
1
|
J-201
|
||
Universal
Power Supply
|
1
|
NPB-PWR-UN
|
|
C.
|
Optional Demonstration
Equipment and Software. AX Partners may purchase
additional demonstration equipment and software at special pricing as
detailed in Tridium’s North American AX Partner Price List for
Demonstration and Support of Security
Products.
|
|
D.
|
Support. Tridium
will provide Reseller with technical telephone support during the first
year of this Agreement as described in Section 6.2 of this
Agreement.
|
|
E.
|
Maintenance with Upgrades and
New Modules Released During the First Year of the
Agreement. These Upgrades and new modules are only
applicable for the demonstration software licenses and are NOT FOR
SPECIFIC PROJECT SOFTWARE LICENSES.
|
|
F.
|
Demonstration Database and
Library. Each Reseller will be provided a demonstration
database, a user tutorial database, an engineering tutorial database and a
library of applications and
graphics.
|
|
G.
|
(0) Students (1)-week
NiagaraAX Training
Courses. (Credit was issued for having existing Niagara
Certified person on staff) Tridium will
provide one week of AXTCP training for one employee of Reseller at the
Tridium’s headquarters in Richmond, Virginia or other location as
specified by Tridium. Dates are to be determined by the next
available training course offering. Each Reseller is required to have one
employee trained within ten weeks of the Effective Date of this Agreement,
and the second employee within fourteen weeks of the Effective Date of
this Agreement. All costs and expenses related to attending
such training are the sole responsibility of the
Reseller.
|
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|
|
H.
|
Branding of
Products. Tridium will work with reseller to private
brand label products. Fee above includes re-branding of the
hardware and software detailed in the following
table:
|
Category
|
Part Number
|
Description
|
||
Hardware
|
||||
J-201
|
JACE
2
|
|||
I/O-34
|
Remote
I/O module
|
|||
I/O-16
|
Remote
I/O module
|
|||
NPB-PWR-UN
|
Universal
power supply
|
|||
Software
|
S-AX-SBS
|
Small
Building Web
Supervisor
|
|
i.
|
The
Reseller Brand will be private and exclusive to
Reseller.
|
|
ii.
|
Branded
documentation will be the Reseller’s responsibility. Tridium
will provide source documentation in editable
format.
|
|
iii.
|
Branding
fees include replacement of standard labeling and packaging with
Reseller’s Brand. Requirements other than Tridium’s standard
packaging and labeling will be quoted
separately.
|
The
provisions of this Section H are subject to the requirements of Section 3.7 of
the Reseller Agreement. “Branded” as used in this Exhibit C shall
mean private branded for Control Concepts Security under this Section
H.
II.
|
Additional Dealer
Sign-up Fees: Please reference the current dealer
sign-up form for 2nd
tier partner program details and
fees.
|
III.
|
Annual License and
Support Renewal Fees: Billed to the Reseller 30 days
before each License Renewal Date and due on or before the License Renewal
Date.
|
|
$2,000.00
|
Annual License and Support Fee
for Registered Licenses for Niagara AX Supervisor Software. Covers
the license fee for the Niagara AX Supervisor software installed on the
designated system for demonstration, database development support and
training for a single field office location of the Reseller. Also covers the technical
telephone support provided by Tridium to the Reseller during the Renewal
Term. (First
Office)
|
Tridium
reserves the right to modify the annual renewal fees based on Reseller (i)
meeting its marketing objectives, (ii) volume, and (iii) payment
history.
|
$5,000.00
|
Total
Fee payable upon completion of product re-branding for initial product
stock. Reseller may purchase any combination
of Products on Tridium’s North American AX Partner Price List
for Distribution to End Users.
|
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|
A.
|
Emergency Stock
Requirements. Reseller is required to maintain a minimum
inventory for emergency field replacements as detailed in the below
table:
|
Item
|
Part Number
|
Quantity
|
||
JACE
2
|
J-201
|
1
|
||
Universal
Power Supply
|
NPB-PWR-UN
|
1
|
||
I/O
16 module
|
IO-16
|
1
|
||
I/O
34 module
|
IO-34
|
1
|
|
See
the Price List. Reseller’s initial contractual multiplier is
0.285,
which shall be applied against the list prices on the current Price
List. Tridium will review Reseller’s purchase volume and
payment history on a quarterly basis beginning four (5) calendar quarters
after the Effective Date of this
Agreement.
|
Reseller’s
multiplier for the next three months will be based on Minimum Multiplier
corresponding to the annual net purchase volume in Table 1 below and the
Multiplier Adjustment based on Reseller’s payment history as shown in Table 2
below. Table 3 shows the range of multipliers available to Reseller
based on purchase volume and payment history. The Net Multiplier will be in
effect for a period beginning one month after the end of each calendar quarter
for the next three months. Tridium reserves the right to fully
enforce all of its rights under Sections 7 and 12 of this Agreement regarding
payment terms including but not limited to the right to charge interest for any
payment received after the payment due date in addition to the Net
Multiplier.
Table
1
Annual Net Purchase Volume
for the Evaluation
Period*
|
Minimum
Multiplier
|
|||
Below
$50,000
|
N/A | * | ||
$50,000
- $99,999
|
0.300 | |||
$100,000
- $249,999
|
0.285 | |||
$250,000
- $499,999
|
0.280 | |||
$500,000
- $749,000
|
0.275 | |||
$750,000
+
|
0.270 |
Table
2
Weighted Average Days Late
(Payment
History) for the Evaluation
Period
|
Multiplier
Adjustment
|
|||
0 -
14
|
+ .00 | |||
15
- 30
|
+ .01 | |||
30
+
|
+ .02 |
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23-SEPT-2005
|
Table
3
Net Multiplier Table | ||||||||||||
Weighted Average Days
Late
|
||||||||||||
Annual
Volume
|
0 -
14
|
15
- 30
|
30+
|
|||||||||
Below
$50,000
|
N/A | * | N/A | * | N/A | * | ||||||
$50,000
- $99,999
|
0.300 | 0.310 | 0.320 | |||||||||
$100,000
- $249,999
|
0.285 | 0.295 | 0.305 | |||||||||
$250,000
- $499,999
|
0.280 | 0.290 | 0.300 | |||||||||
$500,000
- $749,000
|
0.275 | 0.285 | 0.295 | |||||||||
$750,000
+
|
0.270 | 0.280 | 0.290 |
* These
are the fees that are effective as of the Effective Date of this contract.
Tridium reserves the right to modify all fees including volume targets on an
annual basis and will notify Reseller in writing of any changes thirty (30) days
before any such changes become effective.
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23-SEPT-2005
|
Exhibit
D
To
Tridium Reseller Agreement
The AX
Technical Certification Program (“AXTCP”) program provides education,
consulting, and technical support for integration solutions built upon the
NiagaraAX
Framework. Technical certification is a critical element of this
program, which is designed to ensure high quality service and support for the
Licensed Materials. The goal of AXTCP is to help a broad range of
distribution partners in the automation, energy services, power/utility, and
industrial sectors gain the level of technical expertise necessary to
effectively support their client base.
The
educational requirements for AXTCP include passing a written proficiency exam
and successfully completing a hands-on certification lab. The written
exam is designed to test the candidate’s knowledge of the NiagaraAX
Framework technology and system architecture. The certification lab
is designed to give candidates real-world experience in application development,
engineering and implementing control solutions, Web interface design and
development, diagnosing and fixing errors, and system
administration.
Successful
completion of the AXTCP attests to the ability of the candidate to plan,
develop, and maintain the AX Licensed Materials applications. The
prerequisites for sitting for the certification exam and lab include attending
NiagaraAX
Fundamentals technical training and NiagaraAX
Framework Application Development technical training.
Resellers
that successfully complete AXTCP certification requirements receive a Tridium
AXTCP certificate, which is required to be NiagaraAX
certified.
All
Resellers must have at least one employee complete the AXTCP certification
process within ten weeks of signing this Addendum. All additional
Reseller Field Offices AND for each Authorized Reseller Partner must have at
least one employee undergo the same certification process and will be awarded a
certificate of course completion.
Resellers,
Reseller Field Offices and Authorized Reseller Partners shall not allow any
individual to program or engineer any application of the Licensed Materials
unless that individual has been trained and certified via Tridium AXTCP program
as detailed above.
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of 35
|
23-SEPT-2005
|
Exhibit
E
To
Tridium Reseller Agreement
Marketing
Plan and Territory
Territory
North
America
Marketing
Plan
Marketing
Strategies: Reseller will sell and market Solarsa AX products
as part of the Solarsa engineered Control System.
Solarsa
agrees to the following sales goals:
|
·
|
Solarsa
Xxxxx Goals
|
|
o
|
Balance
of 2008 $25,000
|
|
o
|
2009 250
JACES
|
|
o
|
2010 500
JACES
|
|
o
|
2011 750
JACES
|
Support
Capabilities: First line of support will be provided by
Solarsa, Tridium will support Solarsa per section 6 of this
agreement.
25
of 35
|
23-SEPT-2005
|
Exhibit
F
To
Tridium Reseller Agreement
End
User License Agreement dated January 26, 2005
(May be
updated from time to time by Tridium)
TRIDIUM,
INC. ("TRIDIUM") HAS DEVELOPED A STANDARDIZED ARCHITECTURE AND RELATED SOFTWARE
FOR INTERCONNECTING DEVICES AND CONTROLLERS. TRIDIUM IS WILLING TO PROVIDE A
LIMITED LICENSE OF THE ARCHITECTURE AND SOFTWARE (THE "NIAGARA FRAMEWORK") TO
YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS IN THIS AGREEMENT.
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE CLICKING
ON THE "I ACCEPT" BUTTON. BY CLICKING ON THE "I ACCEPT" BUTTON YOU ACKNOWLEDGE
THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND
CONDITIONS. CLICK ON THE "DO NOT ACCEPT" BUTTON TO DISCONTINUE THE INSTALLATION
PROCESS. THE NIAGARA FRAMEWORK INITIAL OPERATING PERIOD WILL EXPIRE 14 DAYS FROM
INSTALLATION. THE ACCEPTANCE OF THIS AGREEMENT IS REQUIRED FOR USE OF THE
NIAGARA FRAMEWORK.
1.1
|
AX
Licensed Materials. Subject to the terms
and conditions contained herein, Tridium hereby grants you a
non-transferable, non-exclusive, limited license to install, use and
execute the AX Licensed Materials on a single personal computer, which is
identified by serial number during the installation process (the
"Designated System"), solely for your internal business use. You may
transfer and use the AX Licensed Materials on a backup computer system you
own or lease if, and only for so long as, the Designated System is (i)
inoperative or (ii) unavailable due to regularly scheduled
maintenance.
|
1.2
|
No Other Rights
Granted. Apart from the license expressly granted herein, no
license or other right is granted by Tridium to you under this Agreement,
either directly or by implication, estoppel, or otherwise (including, but
not limited to, the right to prepare derivative works). You shall have no
right or access to the source code of the AX Licensed
Materials.
|
2.
|
YOUR RESPONSIBILITIES.
You shall (i) use all commercially reasonable efforts to ensure that your
employees comply with the terms of this Agreement; (ii) not modify,
decompile, disassemble, decrypt, extract, or otherwise reverse engineer
the AX Licensed Materials or any part thereof, or any application enabler
or grant any other person or entity the right to do so or take any action
that would assist any other person or entity in doing so and will promptly
notify Tridium of any information that any other person or entity is or is
attempting to copy, reverse engineer, disassemble, decompile, translate or
modify the AX Licensed Materials; (iii) not insert, delete, replace,
change or otherwise alter any files in the AX Licensed Materials or
application enabler; (iv) not modify, change, prepare derivative works of
or otherwise alter any Binary Code files included with the AX Licensed
Materials; (v) not loan, rent, lease, give, sublicense, transfer, publish,
disclose, display, or otherwise make available the AX Licensed Materials,
in whole or in part, to any other person or entity; and (vi) not modify
any application programming interface, including modifying any application
programming interface by creating additional classes within any interface
or otherwise causing the addition to or modification of the classes in an
interface.
|
3.
|
TECHNICAL SUPPORT. You
may receive technical telephone support only from employees and
subcontractors of Tridium's value-added resellers or systems integrators
who have received certification training and passed a certification test
administered by Tridium (each a "Certified System Integrator"). Tridium
shall have no obligation to provide technical support to
you.
|
4.
|
LICENSE FEES. The
license fees paid by or for you to Tridium are paid in consideration of
the licenses granted under this
Agreement.
|
5.1
|
Ownership by
Tridium. Tridium retains all right, title and interest, in and to
the AX Licensed Materials (and any portions thereof). You shall not have
any right, title, or interest to the AX Licensed Materials except as
provided in this Agreement, and further shall secure and protect the AX
Licensed Materials consistent with maintenance of Tridium's proprietary
rights therein. You agree that you shall not contest or challenge, or take
any action inconsistent with or that may damage or impair Tridium's
ownership or rights, and further that you shall not contest or challenge,
or take any action inconsistent with or that may damage or impair the
ownership or intellectual property rights of Tridium's licensors. You
shall not use the AX Licensed Materials except as is expressly authorized
in this Agreement.
|
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|
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|
5.2
|
Confidentiality.
You acknowledge that the AX Licensed Materials contains valuable trade
secrets of Tridium and you agree to maintain the confidentiality of the AX
Licensed Materials using at least the same degree of care you use with
your own confidential information. You acknowledge that upon your breach
of Sections 5.1 or 5.2, Tridium shall be entitled to equitable relief to
protect its interests, including preliminary and permanent injunctive
relief and you further agree to waive any right or claim to which you may
be entitled to immunity or exemption from
liability.
|
5.3
|
Third-Party
Code. Additional copyright notices and license
terms applicable to portions of the AX Licensed Materials are set forth in
the readmeLicenses.txt file provided with the AX Licensed
Materials. In addition to any terms and conditions of any
third-party opensource/freeware license identified in the
readmeLicenses.txt file, the disclaimer of warranty and limitation of
liability provisions contained below in paragraph 6 of this Agreement
shall apply to all third party code contained in the AX Licensed
Materials.
|
6.1
|
Disclaimer of Software
Warranty. TRIDIUM LICENSES THE AX LICENSED MATERIALS "AS IS," WITH
NO OTHER EXPRESS OR IMPLIED WARRANTY OF ANY KIND. TRIDIUM SPECIFICALLY
DISCLAIMS ALL INDIRECT OR IMPLIED WARRANTIES TO THE FULL EXTENT ALLOWED BY
APPLICABLE LAW, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF,
NON-INFRINGEMENT, MERCHANTABILITY, TITLE OR FITNESS FOR ANY PARTICULAR
PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TRIDIUM, ITS
AGENTS OR EMPLOYEES SHALL CREATE A
WARRANTY.
|
6.2
|
Limitation of
Liability. NEITHER TRIDIUM NOR ANY OF ITS LICENSORS, OFFICERS,
AGENTS, EMPLOYEES OR REPRESENTATIVES SHALL BE LIABLE FOR INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR PENALTIES
(INCLUDING DAMAGES FOR LOST PROFITS, LOST BUSINESS, PERSONAL INJURY, LOST
DATA, BUSINESS INTERRUPTION, AND THE LIKE), HOWEVER IT ARISES, WHETHER FOR
BREACH OR IN TORT, EVEN IF TRIDIUM HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
|
6.3
|
Limitation of
Remedies. NOTWITHSTANDING THE ABOVE, IN NO EVENT SHALL TRIDIUM'S
MONETARY LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE AX LICENSED
MATERIALS, TO YOU EXCEED THE AMOUNTS PAID TO IT BY YOU PURSUANT TO THIS
AGREEMENT.
|
7.
|
ASSURANCES BY YOU. There
can be no assurances whatsoever that control systems such as the AX
Licensed Materials will protect any individual or his or her property from
harm. Appropriate safety precautions must always be taken when operating
or maintaining equipment connected to the AX Licensed Materials. Tridium
assumes no responsibility or liability for any injury or damage to any
persons or property resulting from the use by you of the AX Licensed
Materials. Further, you represent and warrant that you will take
appropriate precautions, establish appropriate procedures and post
appropriate notices to ensure that persons and property are not harmed in
the event of an error, malfunction or unexpected operation of the Tridium
AX Licensed Materials or products.
|
8.
|
INDEMNIFICATION. You
shall indemnify and hold harmless Tridium from and against all losses,
claims, damages or other causes of any nature or kind whatsoever
(including reasonable attorney's fees) arising directly or indirectly out
of third party claims concerning (i) a breach of any of your obligations,
covenants, representations or warranties contained herein; (ii) your
selection of, transactions and/or agreements with any Certified Systems
Integrator; and (iii) the negligence or intentional misconduct of you or
your officers, employees, agents or
contractors.
|
9.
|
TERM AND TERMINATION.
This Agreement is effective upon your clicking the "I Accept" button and
shall continue until terminated. You may terminate this Agreement at any
time by returning the AX Licensed Materials and all copies and extracts to
Tridium. Tridium may terminate this Agreement upon a material or
continuing breach of this Agreement by you by the giving of 10 days prior
written notice of termination, stating the cause therefore, with
termination becoming effective at the close of said 10-day term if the
breach is not then cured to the satisfaction of
Tridium.
|
10.
|
10.1
|
Assignment. You
may assign this Agreement or your rights and obligations under this
Agreement to a purchaser of the real property and/or hardware on which the
software is installed, provided (i) you provide the purchaser with a copy
of this Agreement and (ii) the purchaser agrees to comply with all of the
terms and conditions of this Agreement. Tridium may assign this Agreement
without your consent.
|
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|
23-SEPT-2005
|
10.2
|
Export.
Software, including technical data, is subject to U.S. export control
laws, including the U.S. Export Administration Act and its associated
regulations, and may be subject to export or import regulations in other
countries. You agree to comply strictly with all such regulations and
acknowledge that you have the responsibility to obtain such licenses to
export, re-export, or import AX Licensed Materials. The AX Licensed
Materials may not be used, sold, resold, sublicensed, diverted,
transferred, reshipped, or otherwise exported or re-exported: (i) in, into
or through any country designated as a terrorist supporting country by the
U.S. government or any of its agencies; (ii) in, into or through any
country which the U.S. has an embargo or with which the U.S. or any of its
agencies maintains comprehensive trade controls; (iii.) to or by a
national or resident of the countries described in (i) or (ii); or (iv) to
or by any party included in the United States Department of Commerce's
Denied Persons List, Entity List or Unverified List; or the United States
Department of the Treasury's Specially Designated Nationals, Specially
Designated Global Terrorists, Specially Designated Narcotics Traffickers,
Specially Designated Narcotic Traffickers, or Specially Designated
Terrorists List; or the United States Department of State's Designated
Foreign Terrorist Organizations or Debarred Persons List; or is otherwise
designated by the U.S. government or any of its agencies as a party with
which it is unlawful to do
business.
|
10.3
|
Equitable
Relief. You acknowledge that any breach of your obligations
hereunder with respect to the AX Licensed Materials or the confidential
information of Tridium will cause Tridium irreparable injury for which it
has no adequate remedy at law, and therefore that Tridium will be entitled
to seek and obtain equitable relief, including preliminary injunctions and
temporary restraining orders, to prevent any unauthorized use of the AX
Licensed Materials and confidential information, in addition to all other
remedies available to it under this Agreement or other applicable
law.
|
10.4
|
Entire
Agreement. This Agreement comprises the entire agreement between
the parties relating to its subject matter. This Agreement supersedes all
prior agreements and understandings, written or oral, express or implied.
This Agreement can be amended or modified only by a writing executed in
advance by duly authorized representatives of each of the parties hereto.
In the event any foreign ministry or other governmental entity or agency
makes any changes, deletions or modifications to this Agreement, holds any
provision herein unenforceable or imposes any conditions or restrictions
on either party to this Agreement which affects its ability to fully
perform, Tridium shall have the right to immediately terminate this
Agreement. By clicking the I ACCEPT button, you represent and warrant that
all consents, approval or authorizations of third parties, foreign
ministries or any governmental entities or agencies, required as a
recondition or otherwise necessary for you to enter into and perform its
obligations under this Agreement have been duly
obtained.
|
10.5
|
Waiver. A
waiver of any breach of default of this Agreement shall not create a
waiver of the term or of any subsequent breach of
default.
|
10.6
|
Governing Law; Choice
of Venue. The validity of this Agreement and the rights,
obligations and relations of the parties hereunder shall be construed and
determined under and in accordance with the substantive laws of the
Commonwealth of Virginia with respect to claims governed by state law and
the laws of the United States with respect to claims arising under the
laws of the United States, without regard to conflicts of laws principles
and excluding the Convention on Contracts for the International Sale of
Goods. Any action arising from or relating to this Agreement or the
conduct of the parties pursuant hereto shall be commenced and heard solely
within a federal or state court of competent jurisdiction found within the
boundaries of the United States District Court for the Eastern District of
Virginia, Richmond Division, and Tridium and you each consent to personal
jurisdiction and venue in any such
court.
|
10.7
|
Severability.
Should any term or provision of this Agreement be finally determined by a
court of competent jurisdiction to be void, invalid, unenforceable or
contrary to law or equity, the offending term shall be modified and
limited (or if strictly necessary, deleted) only to the extent required to
conform to the requirements of law and the remainder of this Agreement
(or, as the case may be, the application of such provisions to other
circumstances) shall not be affected thereby but rather shall be enforced
to the greatest extent permitted by
law.
|
10.8
|
Government Use.
The AX Licensed Materials is provided with restricted rights. With respect
to any acquisition of the AX Licensed Materials by or for any unit or
agency of the U.S. Government ("Government"), the AX Licensed Materials
shall be classified as "Commercial Computer Software," as that term is
defined in the applicable provisions of the Federal Acquisition Regulation
("FAR") and supplements thereto, including the Department of Defense
(“DoD”) FAR Supplement ("DFARS"). If the AX Licensed Materials is supplied
for use by DoD, the AX Licensed Materials is delivered subject to the
terms of this Agreement and either (i) in accordance with DFARS
252.227-7202-1(a) and 227.7202-3(a), or (ii) with restricted rights in
accordance with DFARS 252.227 7013(c)(1)(ii), as applicable. If the AX
Licensed Materials is supplied for use by a federal agency other than DoD,
the AX Licensed Materials is restricted computer software delivered
subject to the terms of this Agreement and (i) FAR 12.212(a); (ii) FAR
52.227-19; or (iii) FAR 52.227-14 (ALT III), as
applicable.
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Exhibit
G
To
Tridium Reseller Agreement
Terms
and Conditions
THESE
TERMS AND CONDITIONS SUPERCEDE ANY TERMS AND CONDITIONS THAT ARE ATTACHED OR
PART OF ANY ORDER FORM OR PURCHASE ORDER UNLESS SPECIFICALLY ALLOWED OR
SUPERCEDED BY WRITTEN CONTRACT WITH TRIDIUM. PURCHASER MUST
ACCEPT IN WRITING THESE TERMS AND CONDITIONS WITH EACH PURCHASE ORDER UNLESS
THERE IS AWRITTEN CONTRACT BETWEEN PURCHASER AND TRIDIUM, IN FORM ACCEPTABLE TO
TRIDIUM, INCORPORATING THE TERMS AND CONDITIONS APPLICABLE TO ALL PURCHASE
ORDERS.
Disclaimer and Purchased
Representation. There can be no assurance whatsoever that control systems
such as the Tridium Niagara Framework and related software (comprised of
Hardware as defined below and related software or "Licensed Materials")
will protect Purchaser, its customers, or any individual or his, her or their
respective property from harm. Appropriate safety precautions must
always be taken when operating or maintaining equipment connected to the Niagara
Framework. Tridium assumes no responsibility or liability for any
injury or damage to any persons or property resulting from the use by Purchaser
or its customers of the Niagara Framework. Further, Purchaser
represents and warrants that it shall take all appropriate precautions,
establish appropriate procedures and post appropriate notices to ensure that
persons and property are not harmed in the event of an error, malfunction or
unexpected operation of the Niagara Framework. Unless Tridium has
provided its express written consent, neither the Hardware nor Licensed
Materials may be, and Purchaser shall make reasonable business efforts to ensure
that they are not, used in any application in which the failure of the Hardware
and/or Licensed Materials could lead to death, personal injury or severe
physical or property damage (collectively, “High-Risk Applications”), including
but not limited to the operation of nuclear facilities, mass transit systems,
aircraft navigation or aircraft communication systems, air traffic control,
weapon systems and direct life support machines. Tridium expressly
disclaims any express or implied warranty or condition of fitness for High-Risk
Applications.
Disclaimer of Software
Warranty. TRIDIUM LICENSES THE TRIDIUM NIAGARA FRAMEWORK “AS IS” WITH NO
EXPRESS OR IMPLIED WARRANTY OF ANY KIND. TRIDIUM SPECIFICALLY DISCLAIMS ALL
EXPRESS OR IMPLIED WARRANTIES TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW,
INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE OR
FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT. NO ORAL OR WRITTEN
INFORMATION OR ADVICE GIVEN BY TRIDIUM, OR ITS AGENTS OR EMPLOYEES SHALL CREATE
OR FORM THE BASIS OF ANY WARRANTY OF ANY KIND.
End User License
Agreement. Use of the Licensed Materials by a Purchaser or
Purchaser's customer is governed by the terms of a separate end user agreement
included in all copies of Licensed Materials. The end user license
agreement must be entered into before running the Niagara
Framework.
Hardware Limited Warranty and
Hardware Replacement Policy. Tridium warrants for 18-months from date of
shipment by Tridium that the JACE® controller and all other hardware components
of the Tridium Niagara Framework (collectively, the "Hardware"), will be
free from defects in material and workmanship. This warranty does not cover the
product if it is damaged in the process of being installed or improperly used.
This warranty does not cover replacement of Tridium’s products damaged by abuse,
accident, misuse, neglect, alteration, repair, disaster, improper installation,
or improper testing. If the product is found to be defective, Tridium, at its
option, will replace or repair the product at no charge provided that Purchaser
delivers the product along with a Return Material Authorization (RMA) number
(see below) with an explanation of any deficiency. If Purchaser ships the
product, Purchaser must assume the risk of damage or loss in transit. Purchaser
must use the original container (or the equivalent) to return the product.
Repaired or replaced products will be returned at the same revision level as
received or higher, at Tridium’s option. Tridium reserves the right to replace
discontinued product with an equivalent current generation
product. Tridium assumes no responsibility for repairs made on the
product, unless performed by Tridium authorized personnel. For materials
furnished but not manufactured by Tridium, Tridium will pass through the
warranty received from the manufacturer, to the extent permitted, to the
Purchaser.
THIS
EXPRESS WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, GUARANTEES, OR
REPRESENTATIONS, EXPRESS OR IMPLIED. THERE ARE NO IMPLIED WARRANTIES OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE OR
NONINFRINGEMENT.
Purchaser’s
Remedies. The Purchaser's remedies with respect to Hardware
found to be defective in material or workmanship shall be limited exclusively to
the right of repair or replacement of such defective Hardware. IN NO EVENT SHALL
TRIDIUM BE LIABLE FOR CLAIMS (BASED UPON BREACH OF IMPLIED WARRANTY OR
OTHERWISE) FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, FORESEEABLE,
CONSEQUENTIAL, OR SPECIAL OR FOR ANY EXPENSES INCURRED BY REASON OF THE USE OR
MISUSE OF THE HARDWARE.
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Software Maintenance Agreements and
Other Support. Software Maintenance Agreements provide
Purchaser and Purchaser's customers access to all software upgrades released
during the maintenance agreement period for the specified
product. The Software Maintenance Agreements cover all interim
service releases and major releases (example, Rev 2.2 to Rev 2.3, including all
new features and functionality of the new release). New product
releases (example, Niagara to NiagaraAX,) are
not included as part of Software Maintenance Agreements. Purchaser
has no implicit or implied right to upgrades other than through the Software
Maintenance Agreements that it purchases. Furthermore, Tridium has no
obligation to provide any technical support to Purchaser or Purchaser's
customers unless specifically agreed to in writing between Tridium and
Purchaser.
Acceptance and Cancellation of
Orders. Tridium reserves the right to reject, cancel or
suspend any orders placed by Purchaser or refuse or delay shipment thereof if
Purchaser fails to (i) place a valid order per these Terms and Conditions; (ii)
make any payment as provided herein; (iii) meet commercially reasonable credit
or financial requirements as determined by Tridium in its sole discretion; or
(iv) otherwise comply with any terms or conditions stated herein or in any other
agreement between Tridium and Purchaser. Each order that include
Hardware is subject to a minimum billing charge of $100.00 (this clause does not
apply to additions to an existing order).
Acceptance of Terms and
Conditions. The terms and conditions as stated herein shall apply to each
order accepted or shipped by Tridium hereunder. Tridium’s offer to sell products
to Purchaser is expressly limited to these Terms and
Conditions. Tridium hereby expressly objects to any term in any
purchase order issued by Purchaser that is in conflict with or in addition to
these Terms and Conditions. Any terms or conditions appearing on any order or
confirmation received from Purchaser that are different from or in addition to
those required hereunder shall not be binding on the parties, even if signed and
returned, unless both parties hereto expressly agree in a separate writing to be
bound by such separate or additional terms and conditions.
Delivery of
Hardware. Tridium will ship each Hardware component to the
Purchaser, or the Purchaser’s freight forwarder, located within the United
States of America, at the address specified in the shipping instructions on the
purchase order received from the Purchaser. Tridium reserves the
right to ship Hardware by any means it deems suitable. Tridium will
not ship hardware to a location outside the United States of
America. All deliveries are F.O.B. (Uniform Commercial Code terms)
place of shipment. Purchaser is responsible for all shipping charges
in accordance with Tridium’s then current shipping and billing
practices. Risk of loss shall pass to Purchaser upon Tridium’s
delivery to the carrier. Purchaser is responsible for import into the
country of destination, transport through all countries other than the United
States of America, payment of all duties and tariffs, and compliance with all
export and import laws.
Delivery of Licensed
Materials. Tridium will deliver the software directly to the
Purchaser in an electronic file format by making the same available for download
by Customer, or if expressly agreed by Tridium, by shipment of a CD-ROM or such
other means as determined by Tridium. Any such shipment will be made
in accordance with the provisions for delivery of Hardware set forth
above.
Export. Software
and Hardware, including technical data, is subject to U.S. export control laws,
including the U.S. Export Administration Act and its associated regulations, and
may be subject to export or import regulations in other
countries. Purchaser agrees to comply strictly with all such
regulations and acknowledges that it has the responsibility to obtain such
licenses to export, re-export, or import the Licensed
Materials. Without limiting the generality of the foregoing, the
Licensed Materials may not be downloaded, used, sold, resold, sublicensed,
diverted, transferred, reshipped, or otherwise exported or
re-exported:
i.
|
in,
into or through any country designated as a terrorist supporting country
by the U.S. government or any of its
agencies;
|
ii.
|
in,
into or through any country which the U.S. has an embargo or with which
the U.S. or any of its agencies maintains comprehensive trade
controls;
|
iii.
|
to
or by a national or resident of the countries described in (i) or (ii);
or
|
iv.
|
to
or by any party included in the United States Department of Commerce’s
Denied Persons List, Entity List or Unverified List; or the United States
Department of the Treasury’s Specially Designated Nationals, Specially
Designated Global Terrorists, Specially Designated Narcotics Traffickers,
Specially Designated Narcotic Traffickers, or Specially Designated
Terrorists List; or the United States Department of State’s Designated
Foreign Terrorist Organizations or Debarred Persons List; or is otherwise
designated by the U.S. government or any of its agencies as a party with
which it is unlawful to do
business.
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Payment and Credit
Terms. Payment terms are cash in advance or by credit card
payment made in advance of shipment unless Tridium has agreed in writing to
other credit terms. If Tridium has agreed in writing to extend credit
to Purchaser, then payment terms are net-thirty (30) days from date of
invoice. If Purchaser fails to pay amounts when due, late
charges of the lesser of one point five percent (1.5%) per month or the maximum
allowable under applicable law shall also become payable to
Tridium. In addition, failure of Purchaser to fully pay any fees
within sixty (60) days after the applicable due date shall be deemed a material
breach of these Terms and Conditions, justifying suspension of the performance
by Tridium under any and all purchase orders placed by Purchaser, and will be
sufficient cause for immediate termination of any such purchase orders by
Tridium. Any such suspension does not relieve Purchaser from paying
past due fees plus interest and in the event of collection enforcement,
Purchaser shall be liable for any costs associated with such collection,
including, but not limited to, legal costs, attorneys' fees, court costs and
collection agency fees.
Pricing
Policy. All prices are stated in, and payable in,
U.S. Dollars. Prices are subject to change without
notice. Written quotations will be honored for 30 days from the
date of quotation or as stated therein. Orders already entered and unshipped on
the date of a price change will be invoiced at the prices on the date the order
was received. Published prices are exclusive of freight costs.
Tridium will add to the amount due under any purchase order the cost of freight
whether shipped from a Tridium regional office or from the home office
manufacturing facility. Published prices do not include any
additional services such as design layout, system drawings, installation
drawings, job site labor, shop labor, airfreight or special delivery charges.
All labor and expenses for such services will be charged at the rates prevailing
at the time and place of occurrence. Published prices do not include
duties or sales, use, excise or other similar taxes and shall be paid by
Purchaser in addition to the stated price; or in lieu thereof, Purchaser shall
provide Tridium with required tax exemption forms.
Returning
Hardware. Before returning any Hardware, whether within
or outside the Warranty Period, the Purchaser must contact Tridium and obtain a
Return Material Authorization (RMA) number by calling Tridium's home
office. If Tridium verifies the Hardware is defective, it will issue
the Purchaser an RMA number to place on the outer package of the product.
Tridium is under no obligation to accept any Hardware without an RMA number on
the package. The Purchaser must provide the unit serial number, and
Project ID
Hardware
and related installed software may be returned for a restocking fee if it is in
an unopened and new condition. Factory-installed software may not be
returned without the related Hardware. A restocking fee will be
charged at 25% of the returned bundled hardware cost and a 75% credit will be
issued upon inspection and validation of the returned
device. Software products sold separately may not be returned for
credit.
For
in-warranty devices, Tridium will, within two business days of receipt of a
complete and accurate purchase order for the replacement part and payment for
the same by credit card, and subject to product availability, ship replacement
units, prepaid via UPS either standard overnight, 2nd day, 3rd day, or UPS
Ground in accordance with the Purchaser's requirements. The shipping
and delivery terms applicable to such shipments shall be the same as provided
above for all other products. When the replacement unit arrives, the
Purchaser shall re-pack the defective unit in the same box in which the
replacement unit was shipped, and return the same to Tridium. If Tridium
receives the failed unit within 45 days from its shipment of the advanced
replacement unit, Tridium will credit Purchaser’s credit card for the purchase
price of the replacement unit. Tridium will provide a 90 day warranty
from the date of exchange or the balance of the original warranty period,
whichever is longer.
For
out-of-warranty devices, Tridium offers advance replacement units under its
exchange program, subject to product availability. A Purchaser's
purchase order and payment by credit card is required to cover the price of the
replacement unit and associated shipping charges. See the current
Tridium price list for pricing of specific replacement
units. If the failed unit is received within 45 days after the
replacement unit is shipped, Tridium will credit Purchaser’s credit card for the
difference between the purchase price of the replacement unit and the exchange
price for that unit, less shipping charges.. Tridium will provide a
90 day warranty from the date of exchange.
Standard
Delivery
·
|
Tridium
will ship within ten (10) business days from the receipt of a valid and
complete order.
|
Rush
Delivery
·
|
Tridium
will ship as provided in this paragraph if the purchase order asks for
“Rush Delivery”, subject to product availability, and subject to Tridium’s
consent in the case of orders for twenty or more
products. Tridium will advise Purchaser of the availability of
Rush Delivery for orders that request Rush Delivery at the time of its
acknowledgment of the order.
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·
|
For
each order that includes Hardware for which Tridium agrees to provide Rush
Delivery, Purchaser shall pay an amount equal to 25% of the purchase price
of the entire order in advance of shipment.Rush Delivery orders
for which Tridium issues an acknowledgment that the order is complete and
in proper form by 10:00 a.m. Eastern Time will be shipped via UPS next-day
service (a) within three business days after the day on which such
acknowledgment is issued if the order includes Hardware, and (b ) the same
day as such acknowledgment is issued if it includes only
software. In either case, the Purchaser shall pay all shipping
costs.
|
Language and
Law. The language of all purchaser orders
submitted under these Terms and Conditions shall be English, and any
documents or notices provided hereunder, communications related hereto or any
dispute resolution proceeding arising as a result of this agreement shall be
conducted in English.This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia, United States of
America, without regard to the conflicts of law provisions thereof and excluding
the Convention on Contracts for the International Sale of Goods. Any
action arising from or relating to this Agreement or the conduct of the parties
pursuant hereto shall be commenced and heard solely within a federal or state
court of competent jurisdiction found within the boundaries of the United States
District Court for the Eastern District of Virginia, Richmond Division, and
Tridium and Purchaser each consent to personal jurisdiction and venue in any
such court.
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Exhibit
H
To
Tridium Reseller Agreement
APPLICATION
FOR CREDIT
PLEASE
FULLY COMPLETE THIS TWO-PAGE APPLICATION, SIGN, AND RETURN
Date______________________ Fax
to: 000-000-0000
COMPANY
INFORMATION (COMPLETED BY CUSTOMER)
1)
Name of Company
|
|||||||||||
2)
Billing Address
|
City
|
State/Country
|
Zip
Code
|
||||||||
3)
Shipping Address
|
City
|
State/Country
|
Zip
Code
|
||||||||
4)
Phone Number
|
Fax
Number
|
How
long in business?
|
|||||||||
5)
You are applying for credit with Tridium, Inc.
Name of your Tridium
sales/customer representative and phone number?
|
|||||||||||
6)
Estimated Monthly Volume:
|
Requested
Credit Line:
|
||||||||||
7)
Tridium is a wholly owned subsidiary of Honeywell
International. Do you currently have Net 30-day terms with any
Honeywell business unit?
|
|||||||||||
Yes ¨ Please
list business units and account
numbers.
(Then
go to item 11.)
|
No ¨ (Go
to item 8.)
|
||||||||||
8)
Dun & Bradstreet Number
|
Federal
ID # (U.S. companies only)
|
||||||||||
9)
Are Cash on Delivery (COD) terms acceptable?
Are
Payment Prior to
Shipment
(PPS) terms acceptable?
Is Letter Of Credit an
option?
|
Yes ¨ No ¨
Yes ¨ No ¨
Yes ¨ No ¨
|
Are
you capable or interested in
Electronic
Data Interchange (EDI)?
Are
you capable or interested in
Electronic
Funds Transfer (EFT)?
|
Yes ¨
No ¨
Yes ¨
No ¨
|
||||||||
10)
Are you taxable?
|
Yes ¨ No ¨
|
||||||||||
*
IF YOU ARE NOT TAXABLE, PLEASE RETURN A COPY OF YOUR TAX EXEMPTION
CERTIFICATE WITH
THIS APPLICATION; OTHERWISE, YOU WILL BE BILLED SALES TAX ON ALL
INVOICES.
|
|||||||||||
11)
Accounts Payable Contact Name
|
Phone
|
Fax
|
|||||||||
Continued
on page 2.
|
|||||||||||
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TERMS OF
SALE
Tridium
(the Company) provides agreed goods and services in exchange for payment within
terms. It is the Company’s normal policy to extend payment terms of
30 days from invoice date to qualified applicants. Payment is
expected at the Company’s designated address (specified on the invoice) within
30 days of the invoice date. Thirty (30) day terms are upheld. Cash
on Delivery (COD), Payment Prior to Shipment (PPS) or any other method of
payment may be required pending receipt and review of a customer’s credit
application.
It
is understood and agreed that, once Tridium has approved the credit application,
payment will be tendered according to the assigned credit
terms. Tridium may take any action required in case of failure to
make payment as agreed. This may include, but is not limited to, use
of outside agencies or attorneys. Costs and fees incurred by outside
service agencies or attorneys will be an additional liability on the part of the
debtor organization.
STATEMENT
OF JOINT AND SEVERAL LIABILITY
Sole
Proprietorships, Partnerships, Joint Ventures, Personally Held
Corporations
I
(We) agree that the Sole Proprietorship, Partnership, Joint Venture, or
Personally Held Corporation indicated below will pay all invoices in accordance
with agreed terms per the written contract with Tridium. All
signatories for this organization agree, in the event of the failure of the
organization to pay invoices as rendered, to personally reimburse the Company
for all liabilities incurred.
PLEASE
REVIEW THE ABOVE TERMS.
AUTHORIZATION
TO OBTAIN CREDIT INFORMATION FOR OFFICERS, PARTNERS OR OWNER
13)
Name (Please
Print) Title Signature
________________________________________________________________________________________________
NEW
APPLICATIONS MUST INCLUDE THE FOLLOWING:
¨ Financial Statements
¨ Trade References
¨ Bank References
¨ Accts Payable
Contact Name/Phone/Fax #’s
CREDIT
& TREASURY SERVICES USE ONLY
DATE___________ LOG
IN TIME___________ NEW ACCOUNT
_______ EXISTING
ACCOUNT_________
ACTIVE
SBU/CUST
#_____________________ _________________________
_____________________________
BUSINESS
UNIT NO.______________ CUSTOMER I.D.____________
CREDIT
LINE_____________TERMS________
APPROVED
BY:____________________ PHONE_________________DATE___________
MANAGER
CODE_______
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