Exhibit 10.27
WIND RIVER SYSTEMS, INC.
SOURCEBOOK PROGRAM DISTRIBUTION AGREEMENT
THIS AGREEMENT is by and between Embedded Support Tools Corporation
(hereinafter "Supplier"), a Corporation with principal offices at 000 Xxxxxx
Xxxxxx, Xxxxxx, XX 00000, and Wind River Systems, Inc. (hereinafter "WRS"), a
Delaware corporation with principal offices at 000 Xxxx Xxxxx Xxx, Xxxxxxx, XX
00000.
The parties will check below to indicate whether they have elected to use the
"Drop Ship Method" or the "Inventory Method" as defined herein. The parties
will also check below to indicate whether WRS will be distributing Supplier's
products in object code form, source code form, or both.
Please check one of the following: Please check one of the following:
[_] Inventory Method per [_] Object Code only
section 3.1
x Drop Ship Method per [_] Source Code only
section 3.2 x Both Source and Object Code
WITNESSETH:
WHEREAS, Supplier has created and produces certain computer programs with or
without hardware in the form of program packages;
WHEREAS, Supplier is willing to make such programs available for marketing by
WRS to its customers, under the terms and conditions of this Agreement; and
WHEREAS, WRS is willing to distribute such programs under the terms and
conditions of this Agreement;
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree
as follows:
Section 1
DEFINITIONS
As used herein, the following words and phrases shall have the following
meanings:
1.1. "End-Users." Customers of WRS who have ordered Products directly from
WRS in accordance with the terms of end user license agreements.
1.2. "Products." Program packages, including (1) object and/or source
code on various media; (2) instruction booklets and other information prepared
for End-Users concerning the use of the program; and (3) an end user license
agreement, packaged for distribution to End-Users. Products may also include
hardware. The products covered by this Agreement are listed by title and
functional description on the "Product Price List" attached hereto as Exhibit B.
1.3. "Sales Support and Materials." Sales literature, brochures, and
demonstration materials, listed on the "Schedule of Marketing Materials"
attached hereto as Exhibit C and furnished by Supplier at the prices listed
therein.
Section 2
MARKETING APPOINTMENT; SUPPLIER AND DISTRIBUTOR SUPPORT
2.1. Subject to the terms and conditions of this Agreement, Supplier
grants WRS the nonexclusive, nontransferable (except as set forth in Section
13.10), sublicensable (as set forth in Section 2.4) right to market and
distribute the Products under this Agreement, in unopened and unaltered form, to
its customers. WRS acknowledges and agrees that sales will be made only to
customers who have executed with Supplier an end user license agreement
substantially of the form as set forth on Exhibit D (the "End User License
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Agreement").
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2.2. Supplier agrees to provide WRS with a reasonable number of free
copies of Products and Sales Support and Materials for the purpose of marketing
and demonstrating the Products. In addition, training, telephone consultation
services, and Product updates may be provided by Supplier for certain Products
as sales support, all as more fully described in Exhibit A.
2.3. Supplier agrees that WRS will not provide Product support to End
Users. All End User support shall be provided by Supplier in accordance with its
standard maintenance and support policies.
2.4. Except for Japan, WRS may not appoint subdistributors or agents to
promote and/or distribute Products. In Japan WRS may appoint subdistributors or
agents to promote and/or distribute Products provided that (i) such
subdistributors and agents also distribute and sell the other products
distributed by WRS and (ii) WRS informs Supplier in writing of any new
subdistributors and agents who are engaged after the effective date of this
agreement. A list of WR's current subdistributors and agents is set forth on
Exhibit F. Distributor shall be liable for the performance of any
subdistributors and/or agents and Distributor hereby agrees to indemnify and
hold harmless Supplier from all damages, costs or expenses arising directly from
any act or omission on the part of its subdistributors or agents. WRS shall
insure that such subdistributors and agents do not (i) remove, alter, cover or
obfuscate any copyright notices or other proprietary rights notices placed or
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embedded by Supplier on or in any Products or (ii) modify, alter, reverse
engineer, disassemble or decompile any Products.
Section 3
PRODUCT ORDERS AND SHIPMENT
3.1. WRS Inventory Method. In the event that the parties have checked
"Inventory Method" as indicated on first page of this Agreement, the following
shall apply:
3.1.1 WRS shall from time to time prepare and submit to Supplier product
orders stating the number and type of Products that WRS desires to receive, with
shipment by Supplier expected for approximately 10 (ten) business days
thereafter. WRS's product orders shall be in writing and shall constitute
binding commitments to accept the number and type of Products stated therein, in
accordance with the terms and conditions of this Agreement.
3.1.2 Within 5 (five) business days after receiving a product order from
WRS submitted in accordance with the terms hereof, Supplier shall acknowledge
its acceptance of such product order to WRS. Supplier's acceptance shall
constitute a binding commitment to ship to WRS the number and type of Products
stated in such product order, in accordance with the terms and conditions
hereof.
3.1.3 Supplier shall use all reasonable efforts to ship quantities of
Products ordered within 10 (ten) business days of receipt and acceptance of
products orders. Packaging and means of shipment of Products shall be determined
by Supplier unless otherwise agreed. Risk of loss with respect to Products shall
pass to WRS at the time Products are delivered to WRS.
3.1.4 If scheduling of shipment by Supplier is delayed to occur more than
30 (thirty) days from the date of receipt of a product order, Supplier shall
notify WRS and WRS may either agree to accept later shipment or may cancel its
order in whole or in part.
3.1.5 Failure to ship Products within 45 days of the date of receipt of a
product order shall be considered a material breach of this Agreement.
3.1.6 Products damaged in transit shall be returned to Supplier, in
accordance with Supplier's return material authorization ("RMA") procedures,
within ten (10) days after receipt, accompanied by such documentation as may
reasonably be required to assert any claims that may lie against the carrier
causing such damage.
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3.2. Supplier Drop Ship Method. In the event that parties have checked
"Drop Ship Method" as indicated on first page of this Agreement, the following
shall apply:
3.2.1 WRS shall obtain orders for Product from its customers, and directly
submit such orders to Supplier. WRS's product orders shall be in writing and
shall constitute binding commitments to accept the number and type of Products
stated therein, in accordance with the terms and conditions of this Agreement.
3.2.2 Within 5 (five) business days after receiving a product order from
WRS submitted in accordance with the terms hereof, Supplier shall acknowledge
its acceptance of such product order to WRS. Supplier's acceptance shall
constitute a binding commitment to ship to WRS (or such End User address as WRS
may indicate on its purchase order) the number and type of Products stated in
such product order, in accordance with the terms and conditions hereof.
3.2.3 Supplier shall use all reasonable efforts to ship quantities of
Products ordered within 10 (ten) business days of receipt and acceptance of
product orders. Packaging and means of shipment of Products shall be determined
by Supplier unless otherwise agreed. Risk of loss with respect to Products shall
pass to WRS (or an End User) at the time Products are delivered to WRS (or to an
End User, respectively).
3.2.4 If scheduling of shipment by Supplier is delayed to occur more than
30 (thirty) days from the date of receipt of a product order, Supplier shall so
notify WRS and WRS may either agree to accept later shipment or may cancel its
order in whole or in part.
3.2.5 Failure to ship Products within 45 days of the date of receipt of a
product order shall be considered a material breach of this Agreement.
3.2.6 Products damaged in transit shall be returned to Supplier, in
accordance with Supplier's return material authorization ("RMA") procedures,
within 10 (ten) days after receipt, accompanied by such documentation as may
reasonably be required to assert any claims that may lie against the carrier
causing such damage.
3.3. Product Changes. Supplier reserves the right, in its discretion,
to: (i) alter the specifications for any Product; (b) discontinue any Product;
or (c) discontinue the development of any new product, whether or not such
product has been announced publicly. Notwithstanding the foregoing, Supplier
shall use commercially reasonable efforts to provide WRS with a minimum of
ninety (90) days written notice of such decisions and shall fill all accepted
orders from WRS for any such altered or discontinued Products.
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Section 4
PRICES AND PAYMENT
4.1. WRS is granted a discount of 25% (twenty five percent) in that WRS
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shall pay Supplier 75% of Supplier's Product Price List of 75% of the actual
sales price, whichever is greater WRS recognizes that SUPPLIER pricing varies by
country and will honor the pricing structure for each country in which WRS sells
SUPPLIER products. WRS will not knowingly sell SUPPLIER products in a location
of lower pricing for shipment to another country where pricing is higher. WRS
will work diligently to enforce SUPPLIER pricing by country in a manner
consistent with its own practices. The Product Price List attached as Exhibit B
is the one in effect as of the effective date of this Agreement. Prices are
quoted exclusive of taxes, shipping, and insurance charges.
4.2. The Product Prices and discounts set forth in Exhibit B are firm for
at least 6 (six) months after the execution hereof. After the expiration of such
period, Supplier may, at any time, change the suggested retail prices for
Products and applicable discounts by providing at least 60 (sixty) days' prior
written notice of the change. Such new price shall apply to all product orders
received after the effective date of the change set forth in such written
notice.
4.3. If the parties have agreed to use the WRS Inventory Method, WRS shall
prepare and deliver to Supplier within thirty (30) days of the last day of each
WRS fiscal quarter during the term of this Agreement a written report which
shall describe all Products sold by WRS, and a check for the corresponding
amount of fees payable to Supplier.
4.4. If the parties have agreed to the Supplier Drop Ship Method, Supplier
shall issue an invoice to WRS upon Product shipment, payable net thirty days.
4.5. Amounts payable to Supplier under this Agreement are payable in full
to Supplier with deduction and are net of any taxes (including any sales, use,
excise, ad volorem, property, withholding, value added tax, or other tax),
tariffs, duties or assessments. WRS shall pay and shall indemnify and hold
Supplier harmless from all such taxes and customs duties payable with respect to
the sale and purchase of Products under this Agreement. When Supplier has the
legal obligation (independent of this Agreement) to collect such taxes, the
appropriate amount shall be added to WRS's invoice and paid by WRS unless WRS
provides Supplier with a valid tax exemption certificate authorized by the
appropriate taxing authority.
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Section 5
TRADEMARKS; MARKING OF PRODUCTS
5.1. WRS may use and display the trademarks and logos of Supplier (the
"Trademarks") to identify and market the Products only as included in the
marketing materials prepared by Supplier and delivered to WRS or such materials
as are approved by Supplier in writing prior to use, which materials relate to
the Products set forth in Exhibit B. In each case, WRS shall comply with
Supplier's trademark advertising guidelines. No other use of Trademarks is
authorized. WRS shall not alter or remove any Trademarks applied by Supplier to
any Products or related materials. Nothing herein shall grant to WRS any right,
title or interest in the Trademarks and all goodwill accruing to the Trademarks
shall accrue to Supplier. At no time during or after the term of this Agreement
shall WRS challenge or assist others to challenge the Trademarks or the
registration thereof or attempt to register any trademarks, marks or trade names
confusingly similar to the Trademarks.
Section 6
COMPETITIVE PRODUCTS AND NONEXCLUSIVITY
Nothing in this Agreement shall be construed to (i) require WRS to refrain
from distribution of any other microcomputer software, regardless of whether it
is competitive with the Products or (ii) prevent Supplier from appointing other
distributors, resellers or VARs or otherwise sell or distribute the Products.
Section 7
PROPRIETARY PROTECTION OF PROGRAMS
WRS shall be authorized only to market and distribute the Products in their
form and packaging as delivered by Supplier in accordance with the terms of this
Agreement. This Agreement shall not be construed to grant to WRS any other
right, title, or interest in any intellectual property rights embodied in or
associated with the Products, or any right to copy, modify, loan, or lease the
Products. All other use of the Products by WRS shall be subject to the terms
and conditions of the End-User License Agreement included with each Product, or
under the terms of any other agreement in place between the parties, as
applicable. WRS shall not (and shall require that End-users do not) remove,
alter, cover or obfuscate any copyright notices or other proprietary rights
notice placed or embedded by Supplier on or in any Products. WRS shall not, and
shall not authorize any third party to, modify, alter, reverse engineer,
dissemble or decompile any Products.
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Section 8
WARRANTIES AND LIMITATIONS OF LIABILITY
8.1. Supplier warrants to and for the benefit of WRS and End-Users that
Suppliers owns or has right to the Products, including any intellectuals
property rights associated therewith, adequate to enable Supplier to perform its
obligations, to authorize the distribution of the Products by WRS, and to
authorize the use of the Products by End-Users in accordance with the terms and
conditions of the End-User License Agreement. Supplier sole and exclusive
liability and WRS's sole and exclusive remedy for breach of this warranty shall
be Supplier's indemnification obligations set forth in Section 10.
8.2. Supplier warrants to and for the benefit of WRS and its End-Users
that the Products and the distribution thereof do not infringe the trademarks,
patents, copyrights, or other proprietary rights of any third party. Suppliers
sole and exclusive liability and WRS's sole and exclusive remedy for breach of
this warranty shall be Supplier's indemnification obligations set forth in
Section 10.
8.3. Suppliers limited warranty to End-Users is stated in the end user
license agreement included with each Product. Certain Products are provided "as
is" without warranty to End-users. The end user license agreement respecting a
particular product may provide that the sole remedy of an End-User shall be a
refund of the purchase price of the Product.
8.4. WRS agrees to use the "Returns Form" attached hereto as Exhibit E.
WRS may return opened packages of Products to Suppler only when a Returns Form
has been duly filled out and signed by an End-User indicating one of the
approved reasons for return.
8.5. WRS shall provide copies of such completed Returns Forms to Supplier.
Upon receipt of the packages of Products with such duly completed and signed
form, Supplier shall issue a credit or payment to WRS in the amount previously
received by Supplier with respect to such returned Products. Supplier shall
have no obligation to accept returns of Products or issue credits or payments
with respect to Products that were returned because of allegedly erroneous or
misleading statements made by WRS.
8.6. If the parties have agreed to use the WRS Inventory Method, WRS may
return to Supplier at the end of each calendar quarter, quantities of Product
less than equal to one third of the shipments received by WRS in the preceding
three calendar months, provided:
1. Shipping costs for such returns are prepaid by WRS;
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2. All returned Products are in unopened and undamaged condition.
8.7. WRS shall accept for full refund and return to inventory any Products
that are returned by a customer because the customer is unwilling to be bound by
the terms of the End-User License Agreement.
Section 9
DISCLAIMER AND LIMITATION
9.1. The warranties set forth in Section 8 hereof are expressly contingent
upon use of such Products strictly in accordance with the instructions contained
in the user's manual and without misuse, damage, alterations, or modifications.
THE WARRANTIES SET FORTH IN SECTION 8 ARE IN LIEU OF ALL OTHER WARRANTIES, AND
SUPPLIER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
9.2. The liability of Supplier to WRS for any claim whatsoever related to
the Products or this Agreement, including any cause of action sounding in
contract, tort, or strict liability, shall not exceed the total amount of
payments previously made to Supplier hereunder. Regardless of any other breach
hereunder or any other claim by WRS against Supplier, Supplier in no event shall
be liable to WRS for any loss of profits; any incidental, special, exemplary, or
consequential damages; or any claims or demands brought against WRS by any other
party, regardless of whether Supplier has been previously advised of the
possibility of such claims or demands. The foregoing limitation shall not apply
to damages arising out of claims alleging infringement of any third-party
proprietary rights for which indemnification is made pursuant to Section 10
hereof.
Section 10
INDEMNIFICATION
10.1. Supplier hereby indemnifies and agrees to hold WRS harmless from and
against any and all claims, demands, or actions and any related costs,
liabilities, or losses arising out of any actual or alleged infringement of any
patent, trademark, or copyright or violation of any trade secret or other
proprietary rights by any of the Products furnished hereunder.
10.2. WRS hereby indemnifies and agrees to hold Supplier harmless from and
against any and all claims, demands, or actions and any related costs,
liabilities, or losses arising out of any statements or representations made by
WRS, employees, or agents with respect to the Products, except for statements
that are
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direct quotations of the documentation and marketing materials provided by
Supplier to WRS for use in connection with the Products.
10.3. The foregoing indemnities are in addition to any rights otherwise
under this Agreement, but shall be expressly contingent on the party seeking
indemnity (1) promptly notifying the indemnifying party in writing of any such
claim, demand, action, or liability, (2) cooperating in the defense or
settlement thereof; and (3) allowing the indemnifying party to control the
defense or settlement of the same.
Section 11
TERM AND TERMINATION
11.1. The term of this Agreement shall be 12 (twelve) months from the date
first above written. This Agreement shall be extended automatically for
additional one (1) year periods unless one party shall notify the other in
writing of termination three months prior to the anniversary date hereof.
11.2. Either party may terminated this Agreement if the other party
commits a material breach of any of the terms hereof and such breach remains
uncured 30 (thirty) days after written notice of such breach has been furnished
to the party in breach by the other party.
11.3. The provisions of Sections 1 and 9-13, and all payments obligations
that have accrued prior to termination or expiration, shall survive any
termination or expiration of this Agreement, all of WRS's rights and licenses
with respect to the Products shall terminate, provided that each End User
license granted in accordance with this Agreement shall survive in accordance
with its terms, subject to termination for default in accordance with its terms.
All copies of Products in WRS's and its subdistributors' possession at the time
of termination or expiration of this Agreement shall be promptly returned to the
Supplier.
11.4. In the event of termination by either party in accordance with any
of the provisions of this Agreement, neither party shall be liable to the other,
because of such termination, for compensation, reimbursement or damages on
account of the loss of prospective profits or anticipated sales or on account of
expenditures, inventory, investments, leases or commitments in connection with
the business or goodwill of either party. Termination shall not, however,
relieve either party of any obligations incurred prior to the termination,
including, without limitation, the obligation of WRS to pay the Supplier for
Products purchased or reproduced prior to such termination.
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11.5. If WRS distributes products that are direct competitors with
Supplier's products, Supplier may elect to terminate this agreement with 30 days
written notice to WRS.
Section 12
MISCELLANEOUS
12.1. WRS is an independent contractor under this Agreement, and nothing
herein shall be construed to create a partnership, joint venture, or agency
relationship between parties hereto. WRS shall have no authority to enter into
agreements of any kind of behalf of Supplier and shall not have the power or
authority to bind or obligate Supplier in any manner to any third party.
12.2. Each party represents and warrants that it has full power and
authority to undertake the obligation set forth in this Agreement and that it
has not entered into any other agreement nor will it enter into any other
agreement that would render it incapable of satisfactorily performing its
obligations hereunder.
12.3. Each party agrees that it will comply with all applicable laws and
regulations of governmental bodies or agencies in its performance under this
Agreement.
12.4. Each party represents that it is acting on its own behalf and is not
acting as an agent for or on behalf of any third party.
12.5. Any notice required or permitted by this Agreement shall be in
writing and shall be deemed sufficient upon receipt, when delivered personally
or by courier, overnight delivery service or confirmed facsimile, or forty-eight
(48) hours after being deposited in the regular mail as certified or register
mail (airmail if sent internationally) with postage prepaid, if such notice is
addressed to the party to be notified at such party's address as set forth
below, or as subsequently modified by written notice.
Wind River System, Inc.
000 Xxxx Xxxxx Xxx
Xxxxxxx, XX 00000
Fax: ___________________
12.6. All questions concerning the validity, operation, interpretation,
and constructions of this Agreement will be governed by the determined in
accordance with the laws of the State of California without reference to its
principles of conflicts of laws.
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12.7. Neither party shall be mere lapse of time, without giving notice or
taking other action hereunder, be deemed to have waived any breach by the other
party of any of the provisions of this Agreement. Further, the waiver by either
party of a particular breach of this Agreement by the other shall not be
construed as or constitute a continuing waiver of such breach or of other
breaches of the same or other provisions of this Agreement.
12.8. Except for obligations of WRS respecting (1) protection of
Supplier's proprietary rights in the Products and (2) payment of invoices for
Products, neither party shall be in default in any delay or failure to perform
any obligation hereunder is caused solely be events beyond such party's control.
Any party claiming the benefit of such excuse shall be entitled to do so only to
the extent that such party has diligently acted or cure the cause and
consequence of such event.
12.9. The parties hereto acknowledge that this Agreement is the complete
the exclusive statement of agreement respecting the subject matter hereto and
supersedes all proposals (oral or written), understandings, representations,
conditions, and other communications between the parties relating hereto. This
Agreement may be amended only by a subsequent writing that specifically refers
to this Agreement and is signed by both parties, and no other act, document,
usage, or custom shall be deemed to amend this Agreement.
12.10. Neither party shall assign or transfer this Agreement or any rights
or obligations under this Agreement without the prior written consent of the
other party. Notwithstanding the foregoing, either party may assign or transfer
rights or obligations under this Agreement pursuant to a merger, consolidation
or reorganization of such party or pursuant to an acquisition of such party
(whether by sale of all or substantially all of such party's assets or by sale
of such party's stock). Any assignment or transfer of this Agreement made in
contravention of the terms hereof shall be null and void. subject to the
foregoing, this Agreement shall be binding on and inure to the benefit of the
parties' respective successors and permitted assigns.
12.11. In order to promote Supplier's sales organization and WRS's sale
organization to work together Supplier and WRS will both compensate, via
commissions, their respective field organizations for sales of Supplier
products.
12.12. Contact Info. WRS will provide end user contact information to
SUPPLIER promptly after the sale and in no event in greater than 30 days after
the sale. Contact information will include Account Name and complete address,
end user contact name/title, phone number or email address, the products and
quantity sold date of sale and actual end user price. If the shipment will be
distributed to multiple locations by the customers, WRS will make reasonable
effort to obtain such re-shipment information with appropriate contact
information at each location.
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WHEREBY, the parties have caused this Agreement to be executed by their
duly authorized officers as set forth below effective this 19th day of July
1999.
Wind River System, Inc. Supplier:
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxx Xxxxxxx
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Name: Xxxxxxx X. Xxxxxx Name: Xxx Xxxxxxx
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Title: CFO Title: Senior Vice President
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Date: 7/19/99 Date: 7/14/99
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