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EXHIBIT 10.38
RESELLER AGREEMENT
This Reseller Agreement is made and entered into as of March 31, 2001
(the "EFFECTIVE Date") by and between Networks Associates Inc., a Delaware
corporation, doing business as Network Associates, Inc. ("RESELLER") and
XxXxxx.xxx Corporation, a Delaware corporation ("COMPANY").
RECITALS
WHEREAS, Company owns and/or markets certain Products.
WHEREAS, Company and Reseller are parties to the Technology License
which designates certain areas of exclusivity to Company.
WHEREAS, Reseller desires to resell the Products, and Company desires
Reseller to resell the Products, as an authorized reseller of Company in certain
areas not otherwise permitted by the Technology License, subject to the terms
and conditions set forth in this Reseller Agreement.
THEREFORE, in consideration of the foregoing, and of the mutual
covenants and agreements hereinafter set forth, Company and Reseller agree as
follows.
As used herein, the term "AGREEMENT" means and (i) this cover page, (ii)
the attached Terms and Conditions of Agreement, (iii) the attached General Terms
and Conditions, and (iv) the other Exhibits referenced in any of the foregoing
and attached hereto, all of which are hereby incorporated herein by this
reference.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the Effective Date.
XXXXXX.XXX CORPORATION:
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
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Title: President and Chief Executive Officer
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Date: March 30, 2001
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NETWORKS ASSOCIATES, INC.
By: /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
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Title: President, McAfee Business Unit
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Date: March 30, 2001
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TERMS AND CONDITIONS OF AGREEMENT
1. APPOINTMENT AND LICENSE TO REPRODUCE AND DISTRIBUTE.
1.1 Definitions.
1.1.1 The term "END USER" as used in the General Terms and
Conditions shall mean Consumer.
1.1.2 The term "PRODUCTS" shall mean (i) XxXxxx.xxx
Licensed Products as defined in Section 1.10 of the Technology License, (ii) any
service based on the foregoing and (iii) products and services based on
third party proprietary rights (to the extent the license with such third party
permits sublicensing hereunder).
1.1.3 The term "OEM/ASP TERRITORY" means worldwide,
subject to Section 17.7 of the General Terms and Conditions.
1.1.4 The term "DIRECT TERRITORY" means worldwide, subject
to Section 17.7 of the General Terms and Conditions, except for countries with
respect to which Company offers a version of its Product in the dominant local
language. Those countries where, as of the Effective Date, Company offers a
version of its Product in the dominant local language are identified on Exhibit
B, as may be amended from time to time.
1.1.5 The term "CONSUMER" shall have the same meaning as
End User under Section 1.3 of the Technology License.
1.1.6 The term "INTERMEDIATE RESELLER" means a person or
entity located in the applicable Territory licensed by Reseller to resell or
re-distribute the Products to Consumers. The term Intermediate Reseller includes
resellers, distributors, dealers, original equipment manufacturers (OEMs) or any
other person or entity which intends to resell or re-distribute the Products.
1.1.7 Other capitalized terms used herein shall have the
meaning set forth in the General Terms and Conditions or as defined herein.
1.2 Appointment. Subject to the conditions and restrictions set
forth in this Agreement, Company hereby appoints Reseller, and Reseller accepts
such appointment, as a non-exclusive reseller of the Products in the Direct
Territory and OEM/ASP Territory, as applicable. Reseller is entitled to
represent itself as an authorized reseller of Company for the Products in the
Direct Territory and OEM/ASP Territory, as applicable. Nothing in this Agreement
shall be interpreted as the grant by Company to Reseller of any right to
distribute any Company products other than or except on the terms provided in
this Agreement.
1.3 License to Reproduce and Distribute Company Products. Subject
to the terms of this Agreement, Company hereby grants to Reseller a
non-exclusive, non-transferable, perpetual (subject to Section 1.5), limited
license, (i) to reproduce and distribute the Products to original equipment
manufacturers and to sublicense such original equipment manufacturers the right
to reproduce and distribute the Products to Consumers in the OEM/ASP Territory
as bundled or integrated with the OEM's products, and (ii) to reproduce and
distribute the Products to application service providers ("ASPs") and managed
service providers ("MSPs") who will use the Products to provide Application
Services to Consumers in the OEM/ASP Territory; and (iii) to reproduce and
distribute the Product directly to Consumers, directly or via Intermediate
Resellers, in the OEM/ASP Territory. Reseller's method of
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distribution of the Products may be (i) in the packaging of the Products as
acquired from Company or (ii) via electronic transmission, including without
limitation via download from the Internet.
1.4 License to Reproduce and Distribute Reseller Products. In
addition to the foregoing, Company hereby grants to Reseller a non-exclusive,
non-transferable, perpetual (subject to Section 1.5), limited license to
distribute Reseller's products to Consumers and OEMs in the Direct Territory
which would otherwise, except for this license, be the exclusive customer of
Company under Section 2.3 of the Technology License. Such distribution may be
either directly or via Intermediate Resellers.
1.5 Notwithstanding anything to the contrary in this Section or
this Agreement, Company may terminate the rights granted to Reseller in Sections
1.3 and 1.4 above with respect to a given Product in a given country twelve (12)
months after the date that Company provides written notice to Reseller that
Company has licensed/sold a version of such Product localized for the
predominant language in that particular country (the "Localized Product") and
requesting termination as to that country as to Consumers. In the case of new
and/or the renewal of existing agreements for a fixed term entered by Reseller
with OEMs, ASPs, and MSPs, Reseller will upon the later of the expiration of
twelve (12) months from such notice or the expiration of the then current term
of the agreement with such entity either terminate the agreement or renew the
agreement on the basis that the applicable products shall be the Localized
Products. In any event, agreements entered by Reseller pursuant to this
Agreement prior to the notice and any renewals thereof thereafter shall be and
remain the property of Reseller and the licenses herein granted (and other terms
and provisions hereof) shall extend to and cover the remaining term and any
renewals of such agreements.
2. DELIVERY OF PRODUCTS. Within fifteen (15) days after the Effective
Date, Company shall deliver to Reseller an object code version of each Product
and the source code for each Product. Company shall not be required to obtain
source code rights for Reseller with respect to third party Products.
3. INDEPENDENCE OF RESELLER AND LICENSE AGREEMENTS.
3.1 Independence of Reseller. Reseller shall sell the Products as
an independent reseller, at its own risk and expense, and subject to any such
prices, contractual terms and conditions as Reseller may from time to time
determine.
3.2 License Agreements. Notwithstanding the foregoing, Reseller
shall require each Consumer, OEM, ASP, and MSP who receives a copy of a Product
to enter into or become subject to a written agreement with Reseller (the
"LICENSE AGREEMENT") which (i) protects Company's intellectual property rights
in and to the Products, (ii) disclaims all implied warranties, (iii) disclaims
all consequential, incidental and other indirect damages. In order to effectuate
the foregoing, Reseller agrees that each License Agreement will include, for
Company's benefit, (i) the terms and limitations substantially similar to the
following terms of the General Terms and Conditions: Sections 9 ("Proprietary
Rights"), 15 ("Limitation of Liability") and 16 ("Limitation on Warranties"),
(ii) the following restrictions for Consumers, ASPs and MSPs: Consumers, ASPs
and MSPs, shall not modify, reproduce (except for back-up purposes), distribute,
publicly display, publicly perform, reverse engineer, decompile, disassemble or
otherwise attempt to discover the source code for the Products, and (iii) the
following restrictions for OEMs: OEMs shall not modify, publicly display,
publicly perform, reverse engineer, decompile, disassemble or otherwise attempt
to discover the source code for the Products and shall not distribute the
Products as stand-alone products but only bundled with or integrated into the
OEM's products.
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4. LICENSE FEES AND PAYMENT TERMS.
4.1 License Fee. Reseller agrees to pay to Company the license
fees set forth in this Section (the "LICENSE FEES"). Reseller agrees to pay to
Company fifty percent (50%) of the Net Revenue (as defined below) actually
collected by Reseller from Consumers, OEMs, ASPs and MSPs to whom Reseller has
licensed the Products under Section 1.3 or Reseller's products pursuant to
Section 1.4. The term "NET REVENUE" means the gross revenue actually collected
by Reseller from Consumers, OEMs, ASPs or MSPs for sales of Products to such
entities, less all discounts, credits for returned Products, and all amounts
invoiced to an OEM, ASP or MSP for taxes (including without limitation sales
taxes and value added taxes), import and export duties, transportation,
insurance, and similar costs and amounts invoiced to Reseller but owed to a
third party. Notwithstanding anything to the contrary in this Section, and
subject to Section 4.3, in no event will the License Fee payable to Company for
a Product distributed to Consumers, an OEM, ASP or MSP be less than two (2)
times the marginal cost of providing such Product as determined by Company. The
marginal cost of providing such product as of the Effective Date is more fully
described in Exhibit "C." No License Fee shall be payable under this Agreement
by Reseller to Company for any use of XxXxxx.xxx Licensed Products for the NAI
Permitted Business Purpose (as that term is defined in Section 1.15 of the
Technology License).
4.2 Payment Terms. Reseller agrees to pay to Company the License
Fees ten (10) days after the end of each calendar month for License Fees due for
such calendar month. Each payment of the License Fees shall be accompanied by a
report as provided in the General Terms and Conditions.
4.3 Discounts. If Reseller desires to reduce the License Fee due
Company for any Product distributed to a Consumer, OEM, ASP or MSP below two (2)
times the marginal cost of providing such Product in order to meet the
competition or accelerate the sale or licensing of such Product, then Reseller
may request a License Fee reduction for such sale or license of such Product to
the Consumer, OEM, ASP or MSP by sending to Company a written Discount
Authorization Form ("DAF"). Each DAF will include the Product(s) to be licensed,
the name of the Consumer, OEM, ASP or MSP and Reseller's proposed License Fee
for the transaction. No such DAF will be effective until agreed to in writing by
Company.
5. Customer Support. As to the Products, Reseller will deliver first
level support to Consumers, which shall include all direct customer interaction,
problem identification, problem replication and providing solutions to end user
problems which have been documented in either the end user materials or in
information provided to Reseller by Company regarding regarding common or known
customer problems. Company will provide to Reseller second level and all
escalated support functions for end user problems not resolvable by first level
support. Company will report status and resolution on second level and escalated
issues to Reseller's first level support organization who will retain
responsibility at all times for communication with the Consumer or Intermediate
Reseller unless agreed to as an exception by Company. If a product sold
hereunder is not a Product, Reseller will provide all support to the Consumer
and Intermediate Reseller.
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GENERAL TERMS AND CONDITIONS
1. DEFINITIONS. For the purposes of this Agreement:
1.1 The term "Boxed Product(s)" shall mean packaged software or
hardware products purchased from the Company for resale to End Users by Reseller
in substantially the form delivered by Company.
1.2 The term "Business Customer" means a sublicensor of a
software product or recipient of software based services acquiring the product
or services solely for its internal business use under a license or agreement
for more than single node, individual consumer home use or for more than single
user, individual small office use only and not for resale or for the provision
of Application Services.
1.3 The terms "Application Services" and "ASP" means the delivery
of remote access to application software functionality by from one or more
centrally managed remote data servers via the Internet or other data
communications network through automation and/or professional services.
Application Services includes the incidental placement of software agents on the
Business Customer's systems to facilitate access to the remotely delivered
functionality by and from the service provider. "ASP" includes services commonly
denominated Managed Services and outsourced network operation services.
1.4 The term "OEM" shall refer to the shipment, by the
manufacturer of the Hardware, of Company Products (either full functionality or
enabling software) saved on the hard drive of or bundled with the manufacturer's
Hardware. "Hardware" shall mean a personal computer (PC), notebook computer,
desktop device, PDAs, smart phone, palmtop computer, or two way smart pager, not
including servers. Servers include, but are not limited to, computers operating
Windows NT Server Edition, Windows 2000 Server Edition or any version of Unix
(including, without limitation Xxxxx or Solaris).
1.5 The term "Technology License" shall mean that certain
Technology Cross License Agreement, dated as of January 1, 1999, by and among
Reseller, Company and Network Associates Technology Corporation, a Delaware
corporation, as amended.
1.6 The term "Products" shall include Boxed Products, unless the
context clearly requires otherwise.
2. MARKETING. Reseller agrees to use commercially reasonable efforts to
market the Products in the Territory. Reseller will conduct its business in a
professional manner that reflects favorably upon the Products and Company.
Reseller may not engage in the rental or lease of any of the Products. Reseller
shall not in any event remove from or obscure upon any Products any labels or
proprietary notices placed thereon by Company, except to the extent set forth in
the Reseller Agreement.
3. COMPANY'S RIGHT TO SELL PRODUCTS IN THE TERRITORY. Subject to the
limitations set forth in the Technology License, Company reserves the right (i)
to make direct sales of Products to End Users, OEMs, ASPs, and MSPs within and
without the Territory, (ii) to appoint other resellers and distributors of the
Products in within and without the Territory, and (iii) to contract directly
with present and future resellers, distributors, End-Users, OEMs, ASPs and MSPs.
Company reserves the right in its sole discretion and without liability to
Reseller to change the suggested prices for the Products, modify the Products
(subject to the Reseller Agreement), change the level of Company's support for
the Products and discontinue the availability of any Product.
4. USE OF TRADEMARKS.
4.1 Advertising; Use of Trademarks. Company hereby grants to
Reseller, subject to the provisions of the Reseller Agreement (including without
limitation these General Terms and Conditions), a non-exclusive,
non-transferable, limited license (without the right to sublicense) to use,
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reproduce and display the trademarks, service marks and trade names provided by
Company (the "COMPANY MARKS") in connection with Reseller's advertising and
promotion of the Products. All of Reseller's use and display of the Company
Marks shall be consistent with Company's general quality standards, the Reseller
Agreement and the provisions set forth in these General Terms and Conditions and
in any written guidelines provided to Reseller from time to time. Unless
otherwise agreed upon in writing by Company, Reseller will submit each
advertisement and promotion containing a Company Xxxx to Company for trademark
review and approval prior to initial release, which approval will not be
unreasonably delayed or withheld. All such usage which was not expressly
approved by Company must be terminated immediately upon receipt of written
notice from Company to that effect.
4.2 Trademark Rights. It is understood that Company owns any and
all Company Marks used in connection with the Products and all goodwill
associated with such uses and that Reseller's only rights with respect to the
Company Marks are the licenses set forth above. All such Company Marks shall (i)
include the full Product names used by Company, (ii) identify the Company as the
owner of the Company Xxxx (including the R inside the circle, as applicable),
and (iii) include the name, logos, designs, and other designations or brands
used by Company in connection with the Products. Reseller acknowledges and
agrees that Company is not granting to Reseller any rights in any Company Xxxx
beyond the limited licenses set forth in this Agreement. Reseller shall not
attempt to register any Company Xxxx or other Company or Product trademark,
trade name or service xxxx which is similar to the Products' or the Company's
trademark, trade name or service xxxx during or following the term of this
Agreement. Reseller agrees that only Company is entitled to register the Company
Marks and such other trademarks, trade names, and service marks in any class of
products or services. If Reseller has any ownership or rights or claims to any
such trademarks, trade names, or service marks, then Reseller agrees to so
notify Company and agrees that such ownership or rights or claims are
transferred to Company on the Effective Date of this Agreement and, if such
transfer requires any separate deed or other formalities to be fulfilled, to
co-operate in the executing of such deed or formalities at Company's first
demand. The compensation to Reseller for the transfer of such ownership or
rights or claims shall be U.S. $1.00 the receipt of such compensation hereby
acknowledged by the Reseller. With respect to the trademarks "McAfee,"
"VirusScan" and other marks licensed under the Technology Agreement, the terms
of the Technology License shall govern and control as to ownership.
5. INSPECTIONS, RECORDS AND REPORTING.
5.1 Monthly Reports. Reseller will provide to Company at the same
time as Reseller makes a payment to Company any license fees or other amounts
under this Agreement, a computer media data file in the format reasonably
established by Company showing, for the month for which such payments are due,
the amount of the fees due Company and how such fees were calculated, including
without limitation, Reseller's sales of each Product in terms of number of
Product units distributed, and the Net Revenue therefor, if applicable.
5.2 Notification. Reseller will notify Company in writing of any
claim made or proceeding initiated against Company or Reseller involving a
Product within five (5) days after Reseller receives written notice of such
claim or proceeding. Reseller will also report promptly to Company all claimed
or suspected Product defects or violations of the applicable End User or other
License Agreement within five (5) days after Reseller receives notice of such
defect or violations.
5.3 Records. For three (3) years after each calendar quarter
during the term of this Agreement, Reseller will keep, at Reseller's office,
full and accurate books of account and copies of all documents and other
materials for such quarter relating to this Agreement and Reseller's records,
accounts and contracts relating to the distribution of the Products and the use
of Product to provide
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services, including without limitation the basis for calculations of the fees
due Company for such calendar quarter.
5.4 Audit. Company may inspect such records described above upon
demand from time to time. In addition, Reseller agrees to allow Company's
independent auditors to audit and analyze appropriate accounting records of
Reseller from time to time to ensure compliance with all terms of this
Agreement. Any such audit shall be permitted by Reseller within fifteen (15)
days of Reseller's receipt of Company's written request to audit, during normal
business hours. The cost of such an audit will be borne by Company unless a
material discrepancy indicating inadequate record keeping or that additional
fees due to Company are discovered, in which case the cost of the audit shall be
borne by Reseller. A discrepancy shall be deemed material if it involves payment
or adjustment of more than Five Thousand Dollars ($5,000.00) in favor of
Company. Audits and inspections shall not interfere unreasonably with Reseller's
business activities.
6. ORDERING AND PAYMENT.
6.1 Orders. Reseller shall place its orders for Boxed Products
with Company. All such orders shall comply with the terms of this Agreement and
shall specify the Boxed Product ordered, the quantity of Boxed Products ordered,
the desired delivery date and the desired delivery location. Except for the
foregoing terms, all other terms and conditions set forth in any such order will
not be binding on Company (including without limitation all pre-printed terms)
and are hereby rejected by Company.
6.2 Payment Terms. Except as otherwise expressly provided in this
Agreement, all payments will be made in the United States dollars free of any
Taxes (as defined in below) at the address designated by Company. Reseller will
pay fees and amounts owed to Company as provided in the Terms and Conditions of
Agreement.
6.3 Taxes. All amounts payable by Reseller to Company under this
Agreement are exclusive of any tax, withholding tax, levy, or similar
governmental charge that may be assessed by any jurisdiction in or outside the
Territory. Such taxes, withholding taxes, levies, and governmental charges
(collectively "TAXES") include, without limitation, Taxes based on sales, use,
excise, import or export values/fees, value-added, income, revenue, net worth,
or may be the result of the delivery, possession, or use of the Products, the
execution or performance of this Agreement or otherwise, excluding taxes based
on Company's net income. Should any Taxes be due, Reseller agrees to pay such
Taxes and indemnify Company for any claim for such Taxes demanded. Reseller
shall make no deduction from any amounts owed to Company for any Taxes. Reseller
covenants to Company that all Products distributed hereunder will be in the
ordinary course of Reseller's business, and Reseller agrees to provide Company
with appropriate information and/or documentation satisfactory to the applicable
taxing authorities to substantiate any claim of exemption from any Taxes. For
all Taxes paid by Reseller, Reseller shall provide to Company within forty-five
(45) after the end of any quarter, a certificate of tax payment documenting the
payment and amount of the Taxes paid during the preceding quarter.
7. SHIPMENT, RISK OF LOSS AND DELIVERY.
7.1 Source Code. The parties reaffirm their obligation with
respect to the delivery of source code of Products set forth in the Technology
License. The terms and conditions of the Technology License and not the
following portions of Section 7 shall apply to all such deliveries of source
code.
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7.2 Shipment. All Boxed Products shipped by Company to Reseller,
if any, will be shipped F.C.A. (Incoterms 2000) place of shipment, to the
Reseller facility identified on the applicable purchase order. Reseller is
responsible for paying all freight charges, transportation expenses, insurance
charges, all applicable taxes, duties, import and export fees and similar
charges associated with the delivery of the Boxed Products to Reseller. All
shipments will be made using either the carrier designated by Reseller or such
another carrier approved by both Reseller and Company. Reseller shall submit all
claims for damages to the carrier and the carrier shall not be deemed to be an
agent of Company.
7.3 Risk of Loss. All risk of loss of or damage to the Boxed
Products will pass to Reseller upon delivery by Company to the common carrier.
Reseller will bear the risk of loss or damage in transit.
7.4 Delivery Schedule, Delays. Company will use reasonable
efforts to meet Reseller's requested delivery schedules for Boxed Products.
Should orders for Boxed Products exceed Company's available inventory, Company
will allocate its available inventory and make deliveries on a basis it deems
equitable, in its sole discretion, and without liability to Reseller on account
of the method of allocation chosen or its implementation. In any event, Company
will not be liable for any damages, direct, consequential, special or otherwise,
to Reseller or to any other person for failure to deliver or for any delay or
error in delivery of Boxed Products in accordance with this Agreement.
8. RETURNS.
8.1 Returned Merchandise Authorization. Notwithstanding anything
to the contrary herein contained, Company will not issue credit to nor be
obligated to accept returns for any reason for any Boxed Products shipped to
Reseller, unless Company shall have previously issued a written Return
Merchandise Authorization ("RMA"). The preceding sentence governs whether or not
Company is obligated to issue an RMA under this Agreement or applicable law.
RMAs must be in writing, signed by Company and only authorize the return of
Boxed Products in good resalable conditions unless expressly provided otherwise
herein. If damaged goods are received pursuant to an RMA, no credit shall be
given by Company with respect to such damaged goods unless the RMA indicates
otherwise. Reseller shall be responsible for all freight charges for goods
returned pursuant to an RMA, unless otherwise indicated herein or in the RMA.
8.2 Customer Returns and Bad Box. Subject to the terms of this
Agreement, Reseller may, during the term of this Agreement, obtain a credit
against current or future invoices from Company, for Boxed Products which (i)
have been returned to Reseller as defective, or (ii) timely returned by End
Users or other persons or entities to whom Reseller is entitled to distribute
Boxed Products pursuant to the warranty stated in Company's end user license
agreement. Such credit will be in an amount equal to the original invoice price
less any discounts or other credits previously received. Reseller shall also
have the ability to return for credit Boxed Products which have boxes that are
or become damaged, unless such damage (i) was caused by Reseller or the carrier,
or (ii) for which damages Reseller can be reimbursed by its insurance carrier.
In the event of claims by End Users or other persons or entities to whom
Reseller is entitled to distribute Boxed Products of an incomplete Boxed
Product, Company, at its discretion, may supply to Reseller, at no charge, any
and all missing materials which are supposed to be provided with the current
release of such Boxed Products or replace the entire Boxed Products in such
situation.
8.3 Discontinued Products. Reseller may, during the term of this
Agreement, obtain a credit for the price paid by Reseller to be applied against
current or future invoices, for all versions of Products shipped by Company
within the previous ninety (90) days that Company discontinues or which are
removed from Company's current retail price list. Such credit will be equal to
the price paid by Reseller for such obsolete Products, less any discounts
received under this Agreements. All such
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discontinued Products will be counted and inspected at the Reseller's premises
by Company's employee, and upon Company's acceptance thereof (which will be a
condition of Reseller's eligibility for a credit hereunder) such Products will
be promptly and completely destroyed or, if requested by Company, such Products
or any portion thereof will be returned to Company as it directs. No Product
shall be deemed discontinued if a later version of the Product is still being
offered by Company and End Users may obtain the current version of such Product
from Company electronically at no additional charge.
8.4 Freight. Reseller will pay all costs (including freight)
associated with the return of the Boxed Products to Company and back to Reseller
as provided herein, except that Company will be responsible for all freight
costs associated with (i) the return of any discontinued or obsolete Boxed
Products under Section 8.3, and (iii) the return of other Product updates agreed
upon by Company and Reseller.
9. PROPRIETARY RIGHTS. Subject to the Technology License, Company and
its licensors are and shall remain the owners of all right, title and interest
in and to all intellectual property rights in the Products and the Documentation
(including without limitation copyrights and patent rights). The Products are
licensed directly by Company to end users subject to the license agreement
accompanying each Product. The end user license agreement shall always be as
least as protective of the Company as the end user license that the Company
delivers to its customers with respect to the comparable product offering.
Reseller will not take any action or make any representation or warranty that is
inconsistent with the warranty granted by Company in the applicable End User
license agreement or this Agreement. Reseller will not remove, alter or obscure
any copyright or other proprietary rights notices contained on the Products.
Reseller will not apply any other trademarks, logos or notices to the Products.
Reseller may use trademarks and logos as provided by Company only in connection
with the marketing and resale of the Products as provided in this Agreement.
Reseller's use of trademarks and logos must be in accordance with Company's
policies and must meet Company's quality standards.
10. TERM AND TERMINATION.
10.1 Term. This Agreement will commence on the Effective Date,
and will continue until terminated as provided in this Agreement.
10.2 Termination for Insolvency. This Agreement may be terminated
(i) upon the institution by or against either party of insolvency, receivership
or bankruptcy proceedings or any other proceeding for the settlement of either
party's debts and such proceeding is not dismissed within sixty (60) days of its
institution, (ii) upon either party making an assignment for the benefit of
creditors, or (iii) upon either party's dissolution or ceasing to do business
but only if the party described in (i), (ii) or (iii) is in breach of its
obligations under this Agreement and the other party so desires to terminate the
Agreement by giving written notice.
10.3 Termination for Cause. Notwithstanding anything to the
contrary in this Agreement, either party may terminate this Agreement
immediately for cause if: (i) the other party engages in any unlawful business
practice and such party fails to cure such breach within thirty (30) days after
receipt of written demand to cease and desist such activity, (ii) the other
party fails to perform any obligation or violates any restriction contained in
this Agreement, including, but not limited to, Reseller's failure to provide the
reports as required in this Agreement and such party fails to cure such breach
within sixty (60) days after receipt of written notice of the breach, (iii) a
receiver is appointed for the other party or its property and such proceeding is
not dismissed within sixty (60) days of its institution, (iv) the other party
makes an assignment for the benefit of creditors, or (vi) the other party
becomes the subject of any proceeding under any bankruptcy, insolvency or
debtor's relief law and such proceeding is not dismissed within sixty (60) days
of its institution. Bona fide disputes as to the grounds of termination shall be
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resolved in accordance with Section 17.5 and the termination under the preceding
sentence will not be effective until the rendition of the arbitors' final
decision in such proceeding. In any event, all unlawful business practices shall
be discontinued immediately by the party committing same.
10.4 Effect of Termination.
10.4.1 Upon termination by Company, (i) all outstanding
orders for Products will be automatically canceled, and (ii) all outstanding
invoices will become immediately due and payable. In the event of dispute
proceedings under Section 17.5, the invoices will be due in any event in
accordance with their terms. Reseller's rights to distribute the Products and
use any of Company's trademarks or logos shall cease immediately upon
termination except to the extent necessary for Reseller to liquidate its
inventory of Products as permitted pursuant to the preceding sentence during
such one hundred twenty (120) day period. Unless otherwise expressly stated in
this Agreement, termination or expiration of this Agreement shall not affect any
of Reseller's payment obligations or Company's obligations relating to returns
or credits in order to carry out the intended purpose of this Agreement, all of
which survive termination of this Agreement.. The termination of expiration of
this Agreement shall not terminate the End User's (or other person's receiving
Products under this Agreement) right to continue to use Products distributed to
the End User prior to such termination.
10.4.2 Any termination of this Agreement shall terminate
the Reseller's rights and licenses granted in this Agreement.
10.5 Liability upon Termination. It is agreed that the benefits
made available to Reseller by Company under this Agreement shall include a
sufficient compensation for any goodwill created by Reseller for the Products
and/or Company (if any) from which Company may profit upon expiration or
termination of this Agreement. In no event shall Company upon expiration or
termination of this Agreement be liable for any compensation or damage relating
to any investments made by Reseller, employees hired, loss of any (anticipated)
profits or turnover, loss or creation of goodwill or for any claim of a similar
nature.
10.6 Survival. In addition to any other terms which expressly
survive the termination of this Agreement, the following Sections of these
General Terms and Conditions shall survive the termination of this Agreement:
Sections 5.3, 5.4, those portions of Section 6 related to Reseller's obligation
to pay for Products and pay for Taxes, 8, 9, 10, 11, 14, 15, 16 and 17.
11. CONFIDENTIALITY. Section 8 of the Technology License shall apply to
this Agreement as if the words "Agreement" and "this Agreement" referred to
therein related to the Reseller Agreement to which these General Terms and
Conditions are attached.
12. RELATIONSHIP OF THE PARTIES. The parties are independent contractors
and not partners, joint venturers or agents, and neither party may obligate the
other to any warranty or other obligation. Neither Reseller nor Company is by
virtue of this Agreement authorized as an agent or other representative of the
other party.
13. FAIR BUSINESS PRACTICES. While Company may suggest retail prices for
the Products, Reseller is solely responsible for determining its own resale
prices. Neither party shall engage in any deceptive, misleading, unethical or
otherwise unfair business practices and will comply with all applicable laws and
regulations in conducting its business. No employee or representative of Company
or anyone else associated or affiliated with Company has any authority to tell
Reseller what its prices for the Products must be or to inhibit in any way
Reseller's discretion with respect to its prices for the Products. Reseller
hereby promises to report promptly to Company in writing any attempts to do so.
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14. INDEMNIFICATION. Section 11 of the Technology License shall apply to
this Agreement as if the words "Agreement" and "this Agreement" referred to
therein related to the Reseller Agreement to which these General Terms and
Conditions are attached.
15. LIMITATION OF LIABILITY. EXCLUSIVE OF ANY CLAIMS BY THIRD PARTIES
FOR INJURY OR DAMAGES TO PERSONS OR TANGIBLE PROPERTY DIRECTLY CAUSED BY ANY
PRODUCT OR A PARTY OR ITS EMPLOYEES, NEITHER PARTY'S LIABILITY WITH REGARD TO
THIS AGREEMENT OR THE PRODUCTS, IF ANY, WILL INCLUDE INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFITS, EVEN IF THE OTHER PARTY
HAS BEEN ADVISED OF OR HAS KNOWLEDGE OF THE LIKELIHOOD OF SUCH DAMAGES. IN NO
EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY IN THE
AGGREGATE FOR AN AMOUNT IN EXCESS OF THE AMOUNTS PAID BY RESELLER TO COMPANY
UNDER THIS AGREEMENT.
16. LIMITATION OF WARRANTIES. OTHER THAN AS EXPRESSLY SET FORTH HEREIN
COMPANY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES WITH REGARD TO THE
PRODUCTS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
17. GENERAL.
17.1 Force Majeure. Neither party shall be liable for the failure
to perform any of its obligations under this Agreement, except for payment
obligations, if such failure is caused by the occurrence of any event beyond the
reasonable control of such party, including without limitation, fire, flood,
strikes and other industrial disturbances, failure of raw materials suppliers,
failure of transport, accidents, riots, insurrections, acts of God or orders of
governmental agencies.
17.2 Entire Agreement. This Agreement, and the attached Exhibits
and Schedules, embody the entire Agreement and understanding of the parties with
respect to the subject matter and shall supersede all prior and contemporaneous
agreements and understandings, oral or written. This Agreement may not be
amended except by a written document signed by both parties hereto. The parties
agree that the terms and conditions of this Agreement shall prevail over any
contrary or additional terms in any purchase order (unless agreed to in writing
by both parties), sales acknowledgment, confirmation or any other document
issued by either party affecting the purchase and/or sale of the Products.
17.3 Modifications. This Agreement may not be changed, terminated
or amended except in writing. Whenever the consent of any party is required
hereunder, such consent may be given or withheld in such party's sole discretion
and with or without reason or cause, unless this Agreement states otherwise.
17.4 Waiver. Either party's failure or delay in exercising any of
its rights will not constitute a waiver of such rights or any other rights under
this Agreement and will not constitute an ongoing waiver of such rights, unless
expressly waived in writing.
17.5 Arbitration. Any dispute which may arise from this Agreement
or the subject matter hereof shall be settled by arbitration in accordance with
the procedures set forth in Section 13 of the Technology License.
17.6 Compliance with Laws. Reseller represents and warrants that,
(i) it shall comply with all applicable, local and national laws and
regulations, (ii) this Agreement and all of its terms are in full conformance
and in compliance with such laws, and (iii) it shall not act in any fashion or
take any
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action which will render Company, it parents, subsidiaries or affiliates, liable
for a violation of the United States Foreign Corrupt Practices Act, which
prohibits the offering, giving or promising to offer or give, directly or
indirectly, money or anything of value to any official of a government,
political party or instrumentality thereof in order to assist it or Company in
obtaining or retaining business. Reseller shall use its best efforts to
regularly and continuously inform Company of any requirements of laws, statutes,
ordinances, governmental authorities directly or indirectly affecting this
Agreement, the sale, use and distribution of Company Products or Company's firm
name, the Company Marks or other commercial, industrial or intellectual property
interests, including, but limited to, certification of the Company Products from
the proper authorities of the country or countries where Reseller conducts its
business.
17.7 Export Law Compliance. Reseller undertakes to obtain all
licenses, permits or approval required by any government, and shall comply with
all applicable rules, policies and procedures thereof. Reseller, shall not
transmit, directly or indirectly, the Products or any technical data (including
processes and services) received from Company, nor the direct product thereof,
outside of the country in which it is received without prior authorization, if
required, the by the appropriate government agency, including without limitation
the U.S. Department of Commerce. Reseller acknowledges that some Company
Products contain encryption. Some countries have restrictions on the use, import
and export of encryption products, or the import of encryption even if for only
temporary personal or business use. Reseller acknowledges that the
implementation and enforcement of these laws is not always consistent as to
specific countries. Reseller further acknowledges that for this reason, the
export or import of such items may subject the Reseller or its executives to
fines and/or other severe penalties. Unless all required permits and/or
approvals have been obtained, Reseller shall not export, re-export or import the
Products, whether directly or indirectly in violation of the applicable laws,
rules and regulations, and will not cause, approve or otherwise facilitate
others such as agents, subsequent purchasers, licensees or any other third
parties in doing so. The parties agree to cooperate with each other respect to
any application for any required licenses and approvals, however, Reseller
acknowledges it is their ultimate responsibility to comply with any and all
government export laws and that Company has no further responsibility after the
initial sale to the Reseller within the original country of sale.
17.8 Governing Law and Severability. The validity,
interpretation, and performance of this Agreement, shall be controlled by and
construed under the laws of the State of California, without given effect to its
conflicts of law provisions. If any term, provision, convenient or condition of
the Agreement is held invalid or unenforceable for any reason, the remaining
provisions shall continue in full force and effect as if the Agreement had been
executed with the invalid portion eliminated so long as the Agreement continues
to express, without material change, the original intentions of the parties. For
the avoidance of doubt, the parties confirm that the U.N. Convention on
Contracts for the International Sale of Goods shall not apply to their
relationship as set forth herein.
17.9 Notices. Any notice or other communication required or
permitted hereunder shall be given in writing to the other party at such address
as shall be given by either party to the other in writing. Such notice shall be
deemed to have been given when (i) delivered personally, (ii) sent via certified
mail (return receipt requested), (iii) sent via cable, telegram, telex,
telecopier, fax (all with confirmation of receipt), or (iv) by recognized air
courier service.
NOTICES TO COMPANY WILL BE ADDRESSED TO:
Network Associates, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Attn: Chief Financial Officer
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With a copy to:
Network Associates, Inc.
00000 Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attn: Vice President of Legal Affairs
NOTICES TO XXXXXX.XXX WILL BE ADDRESSED TO:
XxXxxx.xxx
000 Xxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
17.10 Non-Assignability and Binding Effect. Neither party shall,
without the prior written consent of the other party, transfer or assign this
Agreement in whole or in part, whether by operation of law or otherwise, to any
third party (including affiliated companies) without the prior written consent
of the other party. Any purported transfer or assignment without such consent
shall be void ab initio. Subject to the foregoing, this Agreement will inure to
the benefit of the parties and their permitted successors and assigns.
17.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original and all of which taken
together shall constitute one and the same agreement.
17.12 Construction. The headings in this Agreement are provided
for reference only and shall not be used as a guide to interpretation. When used
in this Agreement, the singular includes the plural and the plural includes the
singular, and gender related pronouns include the feminine, masculine and
neuter. This Agreement has been prepared jointly by the parties and shall not be
construed against one party as the draftsman thereof.
17.13 Relation to Technology License. The Reseller Agreement
shall not be deemed, whether expressly or by implication, to expand or modify in
any manner the licenses granted to Reseller under the Technology License but
rather shall be construed as a separate and distinct license grant. The Reseller
Agreement shall not be deemed, whether expressly or by implication, to modify in
any manner the provisions of Sections 2.3 and 2.8 of the Original Agreement.
Termination of this Agreement shall not terminate the Technology License.
Termination of the Technology License shall terminate this Agreement.
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RESELLER AGREEMENT
This Reseller Agreement is made and entered into as of March 31, 2001
(the "EFFECTIVE Date") by and between Networks Associates Inc., a Delaware
corporation, doing business as Network Associates, Inc. ("COMPANY") and
XxXxxx.xxx Corporation, a Delaware corporation ("RESELLER").
RECITALS
WHEREAS, Company owns and/or markets certain Products.
WHEREAS, Company and Reseller are parties to the Technology License
which designates certain areas of exclusivity to Company.
WHEREAS, Reseller desires to resell the Products, and Company desires
Reseller to resell the Products, as an authorized reseller of Company in certain
areas not otherwise permitted by the Technology License, subject to the terms
and conditions set forth in this Reseller Agreement.
THEREFORE, in consideration of the foregoing, and of the mutual
covenants and agreements hereinafter set forth, Company and Reseller agree as
follows.
As used herein, the term "AGREEMENT" means and (i) this cover page, (ii)
the attached Terms and Conditions of Agreement, (iii) the attached General Terms
and Conditions, and (iv) the other Exhibits referenced in any of the foregoing
and attached hereto, all of which are hereby incorporated herein by this
reference.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the Effective Date.
By: /s/ XXXXXXX XXXXXXX
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
---------------------------------------
Title: President and Chief Executive Officer
--------------------------------------
Date: March 30, 2001
---------------------------------------
NETWORKS ASSOCIATES, INC.
By: /s/ XXXX XXXXXX
-----------------------------------------
Name: Xxxx Xxxxxx
---------------------------------------
Title: President, McAfee Business Unit
--------------------------------------
Date: March 30, 2001
---------------------------------------
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TERMS AND CONDITIONS OF AGREEMENT
18. APPOINTMENT AND LICENSE TO REPRODUCE AND DISTRIBUTE.
18.1 Definitions.
18.1.1 The term "INTERMEDIATE RESELLER" means a person or
entity located in the Territory licensed by Reseller to resell or re-distribute
the Products to Business Customers. The term Intermediate Reseller includes
resellers, distributors, dealers, original equipment manufacturers (OEMs) or any
other person or entity which intends to resell or re-distribute the Products.
18.1.2 The term "PRODUCTS" shall mean both NAI Licensed
Products and products and services offered by Company which are based on third
party proprietary rights (to the extent the license with such third party
permits sublicensing hereunder).
18.1.3 The term "NAI LICENSED PRODUCTS" shall mean (i) NAI
Licensed Products as defined in Section 1.16 of the Technology License, (ii)
XxXxxx.xxx Licensed Products as defined in Section 1.10 of the Technology
License but if such product or service includes "any Derivative Work created by
or for XxXxxx.xxx of an NAI Licensed Product or work included therein" within
the meaning of Section 1.8 of the Technology License, and (iii) any service
based on the either of the foregoing. The term NAI Licensed Products shall not
include any XxXxxx.xxx Licensed Products as defined in Section 1.10 of the
Technology License if such product or service does not includes "any Derivative
Work created by or for XxXxxx.xxx of an NAI Licensed Product or work included
therein" within the meaning of Section 1.8 of the Technology License.
18.1.4 The term "TERRITORY" means worldwide, excluding
Japan. As to ASP services, non-Japanese language services which are not hosted
from servers in Japan, but are accessible via the Internet in Japan shall not be
within the foregoing exclusion.
18.1.5 The term "END USER" as used in the General Terms
and Conditions shall mean Business Customer.
18.1.6 Other capitalized terms used herein shall have the
meaning set forth in the General Terms and Conditions or as defined herein.
18.2 Appointment. Subject to the conditions and restrictions set
forth in this Agreement, Company hereby appoints Reseller, and Reseller accepts
such appointment, as a non-exclusive reseller of the Products to Business
Customers in the Territory, either as Boxed Products, via electronic download or
via Application Services. Reseller has initially elected to act as a reseller of
the Products described on Exhibit A. Reseller is entitled to represent itself as
an authorized reseller and ASP of Company for the Products in the Territory.
Nothing in this Agreement shall be interpreted as the grant by Company to
Reseller of any right to distribute or use any Company products other than or
except upon the terms provided in this Agreement.
18.3 Grant of Rights. Pursuant to its rights under the Technology
License, and subject to the conditions and restrictions set forth in this
Agreement, Company hereby also grants to Reseller the following non-exclusive,
non-transferable: (i) right to sell Products to Business Customers in the
Territory (A) from xxx.XxXxxx.xxx by the Business Customers registering for and
purchasing the desired Product on-line at xxx.XxXxxx.xxx or directly via
non-electronic means, (B) for product functionality and/or services to be
delivered from xxx.XxXxxx.xxx or from the website of Reseller's licensed
Intermediate Resellers (subject to the following proviso) to the Business
Customer and (ii) right
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to sublicense Reseller's Intermediate Resellers to sell Products to Business
Customers in the Territory, directly via non-electronic means, from
xxx.XxXxxx.xxx or from the website of the Intermediate Resellers; and provided
that, as to Reseller's Intermediate Resellers, such Intermediate Resellers agree
in writing to terms at least as protective of NAI's rights as this Agreement.
18.4 Standardizing on Company Products. So long as Reseller is
directly or through Intermediate Resellers distributing Products to Business
Customers pursuant to Section 1.2 and/or 1.3, and as a condition thereto, as to
such Products only, Reseller shall not, directly or through its Intermediate
Resellers, distribute any competing product or service to Business Customers,
including products based on Reseller owned rights and technology. The preceding
sentence shall not apply to products and services of Reseller that both (a) do
not contain NAI Copyright Claims nor are based on NAI Patent Rights (as those
terms are defined in the Technology License) and (b) which, when initially
marketed, licensed, sold or distributed by Reseller, did not violate Section 2.8
of the Technology License. Reseller shall have a grace period of six months
commencing on the election to commence such distribution in which to implement
the agreements contained in the preceding sentence. The preceding agreement
shall not require cessation of use of Reseller owned or licensed technology for
the fulfillment of end user agreements with Business Customers entered within
such six month period. The initial list of products and functionality to be
discontinued by Reseller as of the Effective Date is set forth in Exhibit A.
18.5 Additional Products. Reseller has initially elected to act
as a reseller of the Products described on Exhibit A. The parties agree to meet
(in person or via telephone conference) every six (6) months to discuss the
addition of products to or the deletion of products from the list of Products in
Exhibit A. The parties agree to set forth such agreement in a written amendment
to Exhibit A executed by both parties. Any product listed in such amendment will
be a "Product" for all purposes of this Agreement.
18.6 Branding of Products vs. Reseller Web Site. Reseller is, as
of the Effective Date, distributing products and offering ASP services to
Business Customers, with such distribution and services being offered on the
Reseller branded web site at domain xxx.xxxxxx.xxx and related pages operated by
or for Reseller (the "RESELLER WEB SITE"). Subject to the terms of this Section,
Reseller shall have the right to determine Reseller's branding and look and feel
of the Reseller Web Site(s).
18.7 License to Modify, Reproduce and Distribute. Subject to the
terms of this Agreement, Company hereby grants to Reseller a non-exclusive,
non-transferable, limited license, (i) to modify the web and management server
components of the source code for the Products (but not any other portion of
such source code) for the sole and exclusive purpose of integrating the Products
with Reseller's infrastructure, (ii) to reproduce the Products, as so modified,
in object code form, and distribute (including via download from the Internet)
such reproductions to Business Customers in the Territory, (iii) to distribute
the Products in the packages purchased from Company, and (iv) to use the Product
to provide Application Services to Business Customers. Reseller shall ensure
that none of its modifications to the Products change the function of the
Products nor shall be visible to Business Customers (e.g., in reporting layouts
for anti-virus reporting) except to the extent necessary or desirable to
standardize on Microsoft Corporation's .NET format. If Reseller desires to
further modify the Products, then Reseller may request the right to make such
additional modifications by sending to Company's designated contact for the
applicable product a written request specifying the proposed changes and the
reasons therefor. No such request for modification will be deemed approved
unless agreed to in writing by Company.
19. DELIVERY OF PRODUCTS. Within fifteen (15) days after the Effective
Date, Company shall deliver to Reseller an object code version of each Product
and the source code for each Product. Company shall not be required to obtain
source code rights for Reseller with respect to third party Products.
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20. END USER SUPPORT. As to the Products, Reseller will deliver first
level support to Business Customers, which shall include all direct customer
interaction, problem identification, problem replication and providing solutions
to end user problems which have been documented in either the end user materials
or in information provided to Reseller by Company regarding regarding common or
known customer problems. Company will provide to Reseller second level and all
escalated support functions for end user problems not resolvable by first level
support. Company will report status and resolution on second level and escalated
issues to Reseller's first level support organization who will retain
responsibility at all times for communication with the end-user customer or
Intermediate Reseller unless agreed to as an exception by Company.
21. INDEPENDENCE OF RESELLER AND LICENSE AGREEMENTS.
21.1 Independence of Reseller. Reseller shall sell the Products
as an independent reseller, at its own risk and expense, and subject to any such
prices, contractual terms and conditions as Reseller may from time to time
determine.
21.2 License Agreements. Notwithstanding the foregoing, Reseller
shall require each Business Customer who receives ASP services using a Product
to enter into or become subject to a written agreement with Reseller (the
"LICENSE AGREEMENT") which (i) protects Company's intellectual property rights
in and to the Products, (ii) disclaims all implied warranties, (iii) disclaims
all consequential, incidental and other indirect damages. In order to effectuate
the foregoing, Reseller agrees that each License Agreement will include, for
Company's benefit, (i) the terms and limitations substantially similar to the
terms set forth in Sections 9 ("Proprietary Rights"), 15 ("Limitation of
Liability") and 16 ("Limitation on Warranties") of the General Terms and
Conditions, and (ii) the following terms: Business Customers shall not modify,
reproduce (except for back-up purposes), distribute, publicly display, publicly
perform, reverse engineer, decompile, disassemble or otherwise attempt to
discover the source code for the Products. Reseller acknowledges and agrees that
if Reseller distributes a Product to an Business Customer, then the Business
Customer will be required to agree to Company's then-current form of End User
license agreement or similar agreement agreed to by Company. Reseller agrees to
provide to each such Business Customer a copy of Company is then-current form of
Business Customer license agreement and Reseller will not provide a Product to
the Business Customer until the Business Customer has executed such End User
license agreement. Reseller may not modify the Company's End User license
agreement as provided in Boxed Products.
22. LICENSE FEES AND PAYMENT TERMS.
22.1 License Fees. Reseller agrees to pay to Company the license
fees set forth in this Section (the "LICENSE FEES").
22.1.1 Sales from the Reseller Web Site. Reseller agrees
to pay to Company a License Fee for the sale of Products to Business Customers
from a Reseller Web Site and the sale of ASP services which use the Products via
a Reseller Web Site or otherwise. The License Fee for such sales will be equal
to fifty percent (50%) of Company's then-current list price for the Products and
such services.
22.1.2 Sales Other than From the Reseller Web Site.
Reseller agrees to pay Company a License Fee for the sale of Products to
Business Customers by any means other than via download from the Reseller Web
Site (i.e., sale of tangible forms of the Products in packages acquired from
Company). The License Fee or price for such Products will be equal to the lowest
price charged by Company to other Company resellers or distributors in the
applicable geographic area or country.
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Company agrees to provide to Reseller, on or about the first business day of
each calendar quarter, such prices and License Fees for all countries or
geographic areas within the Territory.
No License Fee shall be payable under this Agreement by Reseller to Company for
any use of NAI Licensed Products for the XxXxxx.xxx Permitted Business Purpose
(as that term is defined in Section 1.9 of the Technology License).
22.2 Price Changes. Company may change its list prices for the
Products from time to time during the term of this Agreement by written notice
to Reseller. Such notice will be sent to Reseller at the same time as Company
sends such notice to other resellers and distributors of the Products. Such
price changes shall be effective thirty (30) days following the date of such
notice .
22.3 Discounts. If Reseller desires to reduce the License Fee or
price due Company for any Product distributed to an Business Customer below the
amounts set forth above to meet the competition or accelerate the sale or
licensing of such Product, then Reseller may request a License Fee reduction for
such sale or license of such Product to the Business Customer by sending to
Company's designated contact for the applicable country where the Business
Customer is located a written Discount Authorization Form ("DAF"). No such DAF
will be effective until agreed to in writing by Company. Reseller agrees that it
will not quote a reduced price to any Business Customer until such time as the
applicable Company channel sales manager has approved the reduced License Fee or
price for the applicable DAF.
22.4 Payment Terms. Reseller agrees to pay to Company the License
Fees ten (10) days after the end of each calendar month for License Fees due for
such calendar month. Each payment of the License Fees shall be accompanied by a
report as provided in the General Terms and Conditions.
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EXHIBIT A
Company Products and Reseller Competing Products
------------------------------------------------------------------------------------
COMPANY PRODUCTS COMPANY LIST PRICE AS OF THE RESELLER COMPETING
EFFECTIVE DATE PRODUCTS, IF ANY
------------------------------------------------------------------------------------
VirusScan ASaP Product Sales: XxXxxx.XXX virus
functionality
ASP Services
------------------------------------------------------------------------------------
VirusScreen ASaP Product Sales:
ASP Services
------------------------------------------------------------------------------------
Cybercop ASaP Product Sales:
ASP Services
------------------------------------------------------------------------------------
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GENERAL TERMS AND CONDITIONS
23. DEFINITIONS. For the purposes of this Agreement:
23.1 The term "Boxed Product(s)" shall mean packaged software or
hardware products purchased from the Company for resale to End Users by Reseller
in substantially the form delivered by Company.
23.2 The term "Business Customer" means a sublicensor of a
software product or recipient of software based services acquiring the product
or services solely for its internal business use under a license or agreement
for more than single node, individual consumer home use or for more than single
user, individual small office use only and not for resale or for the provision
of Application Services.
1.3 The terms "Application Services" and "ASP" means the delivery
of remote access to application software functionality by from one or more
centrally managed remote data servers via the Internet or other data
communications network through automation and/or professional services.
Application Services includes the incidental placement of software agents on the
Business Customer's systems to facilitate access to the remotely delivered
functionality by and from the service provider. "ASP" includes services commonly
denominated Managed Services and outsourced network operation services.
1.4 The term "OEM" shall refer to the shipment, by the
manufacturer of the Hardware, of Company Products (either full functionality or
enabling software) saved on the hard drive of or bundled with the manufacturer's
Hardware. "Hardware" shall mean a personal computer (PC), notebook computer,
desktop device, PDAs, smart phone, palmtop computer, or two way smart pager, not
including servers. Servers include, but are not limited to, computers operating
Windows NT Server Edition, Windows 2000 Server Edition or any version of Unix
(including, without limitation Xxxxx or Solaris).
1.5 The term "Technology License" shall mean that certain
Technology Cross License Agreement, dated as of January 1, 1999, by and among
Reseller, Company and Network Associates Technology Corporation, a Delaware
corporation, as amended.
1.6 The term "Products" shall include Boxed Products, unless the
context clearly requires otherwise.
24. MARKETING. Reseller agrees to use commercially reasonable efforts to
market the Products in the Territory. Reseller will conduct its business in a
professional manner that reflects favorably upon the Products and Company.
Reseller may not engage in the rental or lease of any of the Products. Reseller
shall not in any event remove from or obscure upon any Products any labels or
proprietary notices placed thereon by Company, except to the extent set forth in
the Reseller Agreement.
25. COMPANY'S RIGHT TO SELL PRODUCTS IN THE TERRITORY. Subject to the
limitations set forth in the Technology License, Company reserves the right (i)
to make direct sales of Products to End Users, OEMs, ASPs, and MSPs within and
without the Territory, (ii) to appoint other resellers and distributors of the
Products in within and without the Territory, and (iii) to contract directly
with present and future resellers, distributors, End-Users, OEMs, ASPs and MSPs.
Company reserves the right in its sole discretion and without liability to
Reseller to change the suggested prices for the Products, modify the Products
(subject to the Reseller Agreement), change the level of Company's support for
the Products and discontinue the availability of any Product.
26. USE OF TRADEMARKS.
26.1 Advertising; Use of Trademarks. Company hereby grants to
Reseller, subject to the provisions of the Reseller Agreement (including without
limitation these General Terms and Conditions), a non-exclusive,
non-transferable, limited license (without the right to sublicense) to use,
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21
reproduce and display the trademarks, service marks and trade names provided by
Company (the "COMPANY MARKS") in connection with Reseller's advertising and
promotion of the Products. All of Reseller's use and display of the Company
Marks shall be consistent with Company's general quality standards, the Reseller
Agreement and the provisions set forth in these General Terms and Conditions and
in any written guidelines provided to Reseller from time to time. Unless
otherwise agreed upon in writing by Company, Reseller will submit each
advertisement and promotion containing a Company Xxxx to Company for trademark
review and approval prior to initial release, which approval will not be
unreasonably delayed or withheld. All such usage which was not expressly
approved by Company must be terminated immediately upon receipt of written
notice from Company to that effect.
26.2 Trademark Rights. It is understood that Company owns any and
all Company Marks used in connection with the Products and all goodwill
associated with such uses and that Reseller's only rights with respect to the
Company Marks are the licenses set forth above. All such Company Marks shall (i)
include the full Product names used by Company, (ii) identify the Company as the
owner of the Company Xxxx (including the R inside the circle, as applicable),
and (iii) include the name, logos, designs, and other designations or brands
used by Company in connection with the Products. Reseller acknowledges and
agrees that Company is not granting to Reseller any rights in any Company Xxxx
beyond the limited licenses set forth in this Agreement. Reseller shall not
attempt to register any Company Xxxx or other Company or Product trademark,
trade name or service xxxx which is similar to the Products' or the Company's
trademark, trade name or service xxxx during or following the term of this
Agreement. Reseller agrees that only Company is entitled to register the Company
Marks and such other trademarks, trade names, and service marks in any class of
products or services. If Reseller has any ownership or rights or claims to any
such trademarks, trade names, or service marks, then Reseller agrees to so
notify Company and agrees that such ownership or rights or claims are
transferred to Company on the Effective Date of this Agreement and, if such
transfer requires any separate deed or other formalities to be fulfilled, to
co-operate in the executing of such deed or formalities at Company's first
demand. The compensation to Reseller for the transfer of such ownership or
rights or claims shall be U.S. $1.00 the receipt of such compensation hereby
acknowledged by the Reseller. With respect to the trademarks "McAfee,"
"VirusScan" and other marks licensed under the Technology Agreement, the terms
of the Technology License shall govern and control as to ownership.
27. INSPECTIONS, RECORDS AND REPORTING.
27.1 Monthly Reports. Reseller will provide to Company at the
same time as Reseller makes a payment to Company any license fees or other
amounts under this Agreement, a computer media data file in the format
reasonably established by Company showing, for the month for which such payments
are due, the amount of the fees due Company and how such fees were calculated,
including without limitation, Reseller's sales of each Product in terms of
number of Product units distributed, and the Net Revenue therefor, if
applicable.
27.2 Notification. Reseller will notify Company in writing of any
claim made or proceeding initiated against Company or Reseller involving a
Product within five (5) days after Reseller receives written notice of such
claim or proceeding. Reseller will also report promptly to Company all claimed
or suspected Product defects or violations of the applicable End User or other
License Agreement within five (5) days after Reseller receives notice of such
defect or violations.
27.3 Records. For three (3) years after each calendar quarter
during the term of this Agreement, Reseller will keep, at Reseller's office,
full and accurate books of account and copies of all documents and other
materials for such quarter relating to this Agreement and Reseller's records,
accounts and contracts relating to the distribution of the Products and the use
of Product to provide
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services, including without limitation the basis for calculations of the fees
due Company for such calendar quarter.
27.4 Audit. Company may inspect such records described above upon
demand from time to time. In addition, Reseller agrees to allow Company's
independent auditors to audit and analyze appropriate accounting records of
Reseller from time to time to ensure compliance with all terms of this
Agreement. Any such audit shall be permitted by Reseller within fifteen (15)
days of Reseller's receipt of Company's written request to audit, during normal
business hours. The cost of such an audit will be borne by Company unless a
material discrepancy indicating inadequate record keeping or that additional
fees due to Company are discovered, in which case the cost of the audit shall be
borne by Reseller. A discrepancy shall be deemed material if it involves payment
or adjustment of more than Five Thousand Dollars ($5,000.00) in favor of
Company. Audits and inspections shall not interfere unreasonably with Reseller's
business activities.
28. ORDERING AND PAYMENT.
28.1 Orders. Reseller shall place its orders for Boxed Products
with Company. All such orders shall comply with the terms of this Agreement and
shall specify the Boxed Product ordered, the quantity of Boxed Products ordered,
the desired delivery date and the desired delivery location. Except for the
foregoing terms, all other terms and conditions set forth in any such order will
not be binding on Company (including without limitation all pre-printed terms)
and are hereby rejected by Company.
28.2 Payment Terms. Except as otherwise expressly provided in
this Agreement, all payments will be made in the United States dollars free of
any Taxes (as defined in below) at the address designated by Company. Reseller
will pay fees and amounts owed to Company as provided in the Terms and
Conditions of Agreement.
28.3 Taxes. All amounts payable by Reseller to Company under this
Agreement are exclusive of any tax, withholding tax, levy, or similar
governmental charge that may be assessed by any jurisdiction in or outside the
Territory. Such taxes, withholding taxes, levies, and governmental charges
(collectively "TAXES") include, without limitation, Taxes based on sales, use,
excise, import or export values/fees, value-added, income, revenue, net worth,
or may be the result of the delivery, possession, or use of the Products, the
execution or performance of this Agreement or otherwise, excluding taxes based
on Company's net income. Should any Taxes be due, Reseller agrees to pay such
Taxes and indemnify Company for any claim for such Taxes demanded. Reseller
shall make no deduction from any amounts owed to Company for any Taxes. Reseller
covenants to Company that all Products distributed hereunder will be in the
ordinary course of Reseller's business, and Reseller agrees to provide Company
with appropriate information and/or documentation satisfactory to the applicable
taxing authorities to substantiate any claim of exemption from any Taxes. For
all Taxes paid by Reseller, Reseller shall provide to Company within forty-five
(45) after the end of any quarter, a certificate of tax payment documenting the
payment and amount of the Taxes paid during the preceding quarter.
29. SHIPMENT, RISK OF LOSS AND DELIVERY.
29.1 Source Code. The parties reaffirm their obligation with
respect to the delivery of source code of Products set forth in the Technology
License. The terms and conditions of the Technology License and not the
following portions of Section 7 shall apply to all such deliveries of source
code.
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29.2 Shipment. All Boxed Products shipped by Company to Reseller,
if any, will be shipped F.C.A. (Incoterms 2000) place of shipment, to the
Reseller facility identified on the applicable purchase order. Reseller is
responsible for paying all freight charges, transportation expenses, insurance
charges, all applicable taxes, duties, import and export fees and similar
charges associated with the delivery of the Boxed Products to Reseller. All
shipments will be made using either the carrier designated by Reseller or such
another carrier approved by both Reseller and Company. Reseller shall submit all
claims for damages to the carrier and the carrier shall not be deemed to be an
agent of Company.
29.3 Risk of Loss. All risk of loss of or damage to the Boxed
Products will pass to Reseller upon delivery by Company to the common carrier.
Reseller will bear the risk of loss or damage in transit.
29.4 Delivery Schedule, Delays. Company will use reasonable
efforts to meet Reseller's requested delivery schedules for Boxed Products.
Should orders for Boxed Products exceed Company's available inventory, Company
will allocate its available inventory and make deliveries on a basis it deems
equitable, in its sole discretion, and without liability to Reseller on account
of the method of allocation chosen or its implementation. In any event, Company
will not be liable for any damages, direct, consequential, special or otherwise,
to Reseller or to any other person for failure to deliver or for any delay or
error in delivery of Boxed Products in accordance with this Agreement.
30. RETURNS.
30.1 Returned Merchandise Authorization. Notwithstanding anything
to the contrary herein contained, Company will not issue credit to nor be
obligated to accept returns for any reason for any Boxed Products shipped to
Reseller, unless Company shall have previously issued a written Return
Merchandise Authorization ("RMA"). The preceding sentence governs whether or not
Company is obligated to issue an RMA under this Agreement or applicable law.
RMAs must be in writing, signed by Company and only authorize the return of
Boxed Products in good resalable conditions unless expressly provided otherwise
herein. If damaged goods are received pursuant to an RMA, no credit shall be
given by Company with respect to such damaged goods unless the RMA indicates
otherwise. Reseller shall be responsible for all freight charges for goods
returned pursuant to an RMA, unless otherwise indicated herein or in the RMA.
30.2 Customer Returns and Bad Box. Subject to the terms of this
Agreement, Reseller may, during the term of this Agreement, obtain a credit
against current or future invoices from Company, for Boxed Products which (i)
have been returned to Reseller as defective, or (ii) timely returned by End
Users or other persons or entities to whom Reseller is entitled to distribute
Boxed Products pursuant to the warranty stated in Company's end user license
agreement. Such credit will be in an amount equal to the original invoice price
less any discounts or other credits previously received. Reseller shall also
have the ability to return for credit Boxed Products which have boxes that are
or become damaged, unless such damage (i) was caused by Reseller or the carrier,
or (ii) for which damages Reseller can be reimbursed by its insurance carrier.
In the event of claims by End Users or other persons or entities to whom
Reseller is entitled to distribute Boxed Products of an incomplete Boxed
Product, Company, at its discretion, may supply to Reseller, at no charge, any
and all missing materials which are supposed to be provided with the current
release of such Boxed Products or replace the entire Boxed Products in such
situation.
30.3 Discontinued Products. Reseller may, during the term of this
Agreement, obtain a credit for the price paid by Reseller to be applied against
current or future invoices, for all versions of Products shipped by Company
within the previous ninety (90) days that Company discontinues or which are
removed from Company's current retail price list. Such credit will be equal to
the price paid by Reseller for such obsolete Products, less any discounts
received under this Agreements. All such
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discontinued Products will be counted and inspected at the Reseller's premises
by Company's employee, and upon Company's acceptance thereof (which will be a
condition of Reseller's eligibility for a credit hereunder) such Products will
be promptly and completely destroyed or, if requested by Company, such Products
or any portion thereof will be returned to Company as it directs. No Product
shall be deemed discontinued if a later version of the Product is still being
offered by Company and End Users may obtain the current version of such Product
from Company electronically at no additional charge.
30.4 Freight. Reseller will pay all costs (including freight)
associated with the return of the Boxed Products to Company and back to Reseller
as provided herein, except that Company will be responsible for all freight
costs associated with (i) the return of any discontinued or obsolete Boxed
Products under Section 8.3, and (iii) the return of other Product updates agreed
upon by Company and Reseller.
31. PROPRIETARY RIGHTS. Subject to the Technology License, Company and
its licensors are and shall remain the owners of all right, title and interest
in and to all intellectual property rights in the Products and the Documentation
(including without limitation copyrights and patent rights). The Products are
licensed directly by Company to end users subject to the license agreement
accompanying each Product. The end user license agreement shall always be as
least as protective of the Company as the end user license that the Company
delivers to its customers with respect to the comparable product offering.
Reseller will not take any action or make any representation or warranty that is
inconsistent with the warranty granted by Company in the applicable End User
license agreement or this Agreement. Reseller will not remove, alter or obscure
any copyright or other proprietary rights notices contained on the Products.
Reseller will not apply any other trademarks, logos or notices to the Products.
Reseller may use trademarks and logos as provided by Company only in connection
with the marketing and resale of the Products as provided in this Agreement.
Reseller's use of trademarks and logos must be in accordance with Company's
policies and must meet Company's quality standards.
32. TERM AND TERMINATION.
32.1 Term. This Agreement will commence on the Effective Date,
and will continue until terminated as provided in this Agreement.
32.2 Termination for Insolvency. This Agreement may be terminated
(i) upon the institution by or against either party of insolvency, receivership
or bankruptcy proceedings or any other proceeding for the settlement of either
party's debts and such proceeding is not dismissed within sixty (60) days of its
institution, (ii) upon either party making an assignment for the benefit of
creditors, or (iii) upon either party's dissolution or ceasing to do business
but only if the party described in (i), (ii) or (iii) is in breach of its
obligations under this Agreement and the other party so desires to terminate the
Agreement by giving written notice.
32.3 Termination for Cause. Notwithstanding anything to the
contrary in this Agreement, either party may terminate this Agreement
immediately for cause if: (i) the other party engages in any unlawful business
practice and such party fails to cure such breach within thirty (30) days after
receipt of written demand to cease and desist such activity, (ii) the other
party fails to perform any obligation or violates any restriction contained in
this Agreement, including, but not limited to, Reseller's failure to provide the
reports as required in this Agreement and such party fails to cure such breach
within sixty (60) days after receipt of written notice of the breach, (iii) a
receiver is appointed for the other party or its property and such proceeding is
not dismissed within sixty (60) days of its institution, (iv) the other party
makes an assignment for the benefit of creditors, or (vi) the other party
becomes the subject of any proceeding under any bankruptcy, insolvency or
debtor's relief law and such proceeding is not dismissed within sixty (60) days
of its institution. Bona fide disputes as to the grounds of termination shall be
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resolved in accordance with Section 17.5 and the termination under the preceding
sentence will not be effective until the rendition of the arbitors' final
decision in such proceeding. In any event, all unlawful business practices shall
be discontinued immediately by the party committing same.
32.4 Effect of Termination.
32.4.1 Upon termination by Company, (i) all outstanding
orders for Products will be automatically canceled, and (ii) all outstanding
invoices will become immediately due and payable. In the event of dispute
proceedings under Section 17.5, the invoices will be due in any event in
accordance with their terms. Reseller's rights to distribute the Products and
use any of Company's trademarks or logos shall cease immediately upon
termination except to the extent necessary for Reseller to liquidate its
inventory of Products as permitted pursuant to the preceding sentence during
such one hundred twenty (120) day period. Unless otherwise expressly stated in
this Agreement, termination or expiration of this Agreement shall not affect any
of Reseller's payment obligations or Company's obligations relating to returns
or credits in order to carry out the intended purpose of this Agreement, all of
which survive termination of this Agreement.. The termination of expiration of
this Agreement shall not terminate the End User's (or other person's receiving
Products under this Agreement) right to continue to use Products distributed to
the End User prior to such termination.
32.4.2 Any termination of this Agreement shall terminate
the Reseller's rights and licenses granted in this Agreement.
32.5 Liability upon Termination. It is agreed that the benefits
made available to Reseller by Company under this Agreement shall include a
sufficient compensation for any goodwill created by Reseller for the Products
and/or Company (if any) from which Company may profit upon expiration or
termination of this Agreement. In no event shall Company upon expiration or
termination of this Agreement be liable for any compensation or damage relating
to any investments made by Reseller, employees hired, loss of any (anticipated)
profits or turnover, loss or creation of goodwill or for any claim of a similar
nature.
32.6 Survival. In addition to any other terms which expressly
survive the termination of this Agreement, the following Sections of these
General Terms and Conditions shall survive the termination of this Agreement:
Sections 5.3, 5.4, those portions of Section 6 related to Reseller's obligation
to pay for Products and pay for Taxes, 8, 9, 10, 11, 14, 15, 16 and 17.
33. CONFIDENTIALITY. Section 8 of the Technology License shall apply to
this Agreement as if the words "Agreement" and "this Agreement" referred to
therein related to the Reseller Agreement to which these General Terms and
Conditions are attached.
34. RELATIONSHIP OF THE PARTIES. The parties are independent contractors
and not partners, joint venturers or agents, and neither party may obligate the
other to any warranty or other obligation. Neither Reseller nor Company is by
virtue of this Agreement authorized as an agent or other representative of the
other party.
35. FAIR BUSINESS PRACTICES. While Company may suggest retail prices for
the Products, Reseller is solely responsible for determining its own resale
prices. Neither party shall engage in any deceptive, misleading, unethical or
otherwise unfair business practices and will comply with all applicable laws and
regulations in conducting its business. No employee or representative of Company
or anyone else associated or affiliated with Company has any authority to tell
Reseller what its prices for the Products must be or to inhibit in any way
Reseller's discretion with respect to its prices for the Products. Reseller
hereby promises to report promptly to Company in writing any attempts to do so.
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36. INDEMNIFICATION. Section 11 of the Technology License shall apply to
this Agreement as if the words "Agreement" and "this Agreement" referred to
therein related to the Reseller Agreement to which these General Terms and
Conditions are attached.
37. LIMITATION OF LIABILITY. EXCLUSIVE OF ANY CLAIMS BY THIRD PARTIES
FOR INJURY OR DAMAGES TO PERSONS OR TANGIBLE PROPERTY DIRECTLY CAUSED BY ANY
PRODUCT OR A PARTY OR ITS EMPLOYEES, NEITHER PARTY'S LIABILITY WITH REGARD TO
THIS AGREEMENT OR THE PRODUCTS, IF ANY, WILL INCLUDE INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFITS, EVEN IF THE OTHER PARTY
HAS BEEN ADVISED OF OR HAS KNOWLEDGE OF THE LIKELIHOOD OF SUCH DAMAGES. IN NO
EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY IN THE
AGGREGATE FOR AN AMOUNT IN EXCESS OF THE AMOUNTS PAID BY RESELLER TO COMPANY
UNDER THIS AGREEMENT.
38. LIMITATION OF WARRANTIES. OTHER THAN AS EXPRESSLY SET FORTH HEREIN
COMPANY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES WITH REGARD TO THE
PRODUCTS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
39. GENERAL.
39.1 Force Majeure. Neither party shall be liable for the failure
to perform any of its obligations under this Agreement, except for payment
obligations, if such failure is caused by the occurrence of any event beyond the
reasonable control of such party, including without limitation, fire, flood,
strikes and other industrial disturbances, failure of raw materials suppliers,
failure of transport, accidents, riots, insurrections, acts of God or orders of
governmental agencies.
39.2 Entire Agreement. This Agreement, and the attached Exhibits
and Schedules, embody the entire Agreement and understanding of the parties with
respect to the subject matter and shall supersede all prior and contemporaneous
agreements and understandings, oral or written. This Agreement may not be
amended except by a written document signed by both parties hereto. The parties
agree that the terms and conditions of this Agreement shall prevail over any
contrary or additional terms in any purchase order (unless agreed to in writing
by both parties), sales acknowledgment, confirmation or any other document
issued by either party affecting the purchase and/or sale of the Products.
39.3 Modifications. This Agreement may not be changed, terminated
or amended except in writing. Whenever the consent of any party is required
hereunder, such consent may be given or withheld in such party's sole discretion
and with or without reason or cause, unless this Agreement states otherwise.
39.4 Waiver. Either party's failure or delay in exercising any of
its rights will not constitute a waiver of such rights or any other rights under
this Agreement and will not constitute an ongoing waiver of such rights, unless
expressly waived in writing.
39.5 Arbitration. Any dispute which may arise from this Agreement
or the subject matter hereof shall be settled by arbitration in accordance with
the procedures set forth in Section 13 of the Technology License.
39.6 Compliance with Laws. Reseller represents and warrants that,
(i) it shall comply with all applicable, local and national laws and
regulations, (ii) this Agreement and all of its terms are in full conformance
and in compliance with such laws, and (iii) it shall not act in any fashion or
take any
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action which will render Company, it parents, subsidiaries or affiliates, liable
for a violation of the United States Foreign Corrupt Practices Act, which
prohibits the offering, giving or promising to offer or give, directly or
indirectly, money or anything of value to any official of a government,
political party or instrumentality thereof in order to assist it or Company in
obtaining or retaining business. Reseller shall use its best efforts to
regularly and continuously inform Company of any requirements of laws, statutes,
ordinances, governmental authorities directly or indirectly affecting this
Agreement, the sale, use and distribution of Company Products or Company's firm
name, the Company Marks or other commercial, industrial or intellectual property
interests, including, but limited to, certification of the Company Products from
the proper authorities of the country or countries where Reseller conducts its
business.
39.7 Export Law Compliance. Reseller undertakes to obtain all
licenses, permits or approval required by any government, and shall comply with
all applicable rules, policies and procedures thereof. Reseller, shall not
transmit, directly or indirectly, the Products or any technical data (including
processes and services) received from Company, nor the direct product thereof,
outside of the country in which it is received without prior authorization, if
required, the by the appropriate government agency, including without limitation
the U.S. Department of Commerce. Reseller acknowledges that some Company
Products contain encryption. Some countries have restrictions on the use, import
and export of encryption products, or the import of encryption even if for only
temporary personal or business use. Reseller acknowledges that the
implementation and enforcement of these laws is not always consistent as to
specific countries. Reseller further acknowledges that for this reason, the
export or import of such items may subject the Reseller or its executives to
fines and/or other severe penalties. Unless all required permits and/or
approvals have been obtained, Reseller shall not export, re-export or import the
Products, whether directly or indirectly in violation of the applicable laws,
rules and regulations, and will not cause, approve or otherwise facilitate
others such as agents, subsequent purchasers, licensees or any other third
parties in doing so. The parties agree to cooperate with each other respect to
any application for any required licenses and approvals, however, Reseller
acknowledges it is their ultimate responsibility to comply with any and all
government export laws and that Company has no further responsibility after the
initial sale to the Reseller within the original country of sale.
39.8 Governing Law and Severability. The validity,
interpretation, and performance of this Agreement, shall be controlled by and
construed under the laws of the State of California, without given effect to its
conflicts of law provisions. If any term, provision, convenient or condition of
the Agreement is held invalid or unenforceable for any reason, the remaining
provisions shall continue in full force and effect as if the Agreement had been
executed with the invalid portion eliminated so long as the Agreement continues
to express, without material change, the original intentions of the parties. For
the avoidance of doubt, the parties confirm that the U.N. Convention on
Contracts for the International Sale of Goods shall not apply to their
relationship as set forth herein.
39.9 Notices. Any notice or other communication required or
permitted hereunder shall be given in writing to the other party at such address
as shall be given by either party to the other in writing. Such notice shall be
deemed to have been given when (i) delivered personally, (ii) sent via certified
mail (return receipt requested), (iii) sent via cable, telegram, telex,
telecopier, fax (all with confirmation of receipt), or (iv) by recognized air
courier service.
NOTICES TO COMPANY WILL BE ADDRESSED TO:
Network Associates, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Attn: Chief Financial Officer
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With a copy to:
Network Associates, Inc.
00000 Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attn: Vice President of Legal Affairs
NOTICES TO XXXXXX.XXX WILL BE ADDRESSED TO:
XxXxxx.xxx
000 Xxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
39.10 Non-Assignability and Binding Effect. Neither party shall,
without the prior written consent of the other party, transfer or assign this
Agreement in whole or in part, whether by operation of law or otherwise, to any
third party (including affiliated companies) without the prior written consent
of the other party. Any purported transfer or assignment without such consent
shall be void ab initio. Subject to the foregoing, this Agreement will inure to
the benefit of the parties and their permitted successors and assigns.
39.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original and all of which taken
together shall constitute one and the same agreement.
39.12 Construction. The headings in this Agreement are provided
for reference only and shall not be used as a guide to interpretation. When used
in this Agreement, the singular includes the plural and the plural includes the
singular, and gender related pronouns include the feminine, masculine and
neuter. This Agreement has been prepared jointly by the parties and shall not be
construed against one party as the draftsman thereof.
17.13 Relation to Technology License. The Reseller Agreement
shall not be deemed, whether expressly or by implication, to expand or modify in
any manner the licenses granted to Reseller under the Technology License but
rather shall be construed as a separate and distinct license grant. The Reseller
Agreement shall not be deemed, whether expressly or by implication, to modify in
any manner the provisions of Sections 2.3 and 2.8 of the Original Agreement.
Termination of this Agreement shall not terminate the Technology License.
Termination of the Technology License shall terminate this Agreement.
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