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EXHIBIT 10.9
NONEXCLUSIVE UNIQUE APPLICATION RESELLER AGREEMENT
This Nonexclusive Unique Application Reseller Agreement (the
"Agreement") is entered into in California, by and between Autodesk, Inc., a
Delaware corporation with principal offices at 000 XxXxxxx Xxxxxxx Xxx Xxxxxx,
Xxxxxxxxxx 00000 ("Autodesk"), and Faro Technologies, a Delaware corporation
with principal offices at 000 Xxxxxxxxxx Xxxx Xxxxx, Xxxx Xxxx, Xxxxxxx 00000
("UAR"). The Effective Date shall be the last date on which an authorized
representative of the parties signed below.
THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS.
1.1 "Software" shall mean the Autodesk software set forth on
Exhibit A and any subsequent release delivered to UAR by Autodesk as mutually
agreed upon by the parties in writing.
1.2 "Documentation" shall mean the reference manual
customarily supplied to Customers by Autodesk with the Autodesk retail version
of the Software.
1.3 "Customer" shall mean any third party licensee of the UAR
Product who obtains such UAR Product solely in order to fulfill its own personal
or business needs and not for further distribution or resale.
1.4 "UAR Product" shall mean the Software bundled in
combination with and accompanied by UAR's software as described in Exhibit A.
1.5 "Territory" shall mean those countries set forth in
Exhibit B.
1.6 "Sales Channels" shall be those channels set forth in
Exhibit B.
1.7 "Market" shall mean the market set forth in Exhibit B.
1.8 All references in this Agreement to the "Sale" of or
"selling" or "purchase" of Software shall mean the sale of a license to use such
Software or Software Copies.
2. APPOINTMENT AND RESPONSIBILITIES OF UAR.
2.1 Appointment. Subject to the terms and conditions of this
Agreement, Autodesk appoints UAR as a Unique Application Reseller and grants to
UAR a non-exclusive license to distribute, through UAR's Sales Channels,
promote, market and sublicense the Software bundled with the UAR's software as a
UAR Product within the Territory and Market as defined above. In the event that
UAR breaches the limitations of this appointment, UAR shall rebate to Autodesk,
as liquidated damages and not as a penalty, an amount (with respect to each such
sale) equal to the difference between the then-current Autodesk
U.S. suggested retail price as indicated on the applicable published Autodesk
price list and the per copy fee.
Autodesk reserves the unrestricted right to distribute,
promote, market and sublicense the Software and Documentation (as provided to
UAR or as distributed by Autodesk in the Autodesk retail version of the
Software) in the Territory, including but not limited to through OEMs, VARs, and
other third party resellers (including other unique application resellers), as
well as directly to Customers.
2.2 Bundling. UAR shall not distribute any Autodesk Software
or Documentation to any party separately or unbundled from the UAR Product, or
price quote or invoice the Autodesk Software as a separate item. UAR
acknowledges that any transfer of the Software or Documentation acquired
pursuant to this Agreement as a stand-alone product is expressly prohibited.
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2.3 Promotion of UAR Products. UAR, shall, at its own expense,
actively promote the distribution of the UAR Product within the Territory and
shall assume all costs and obligations, including any commissions, involved with
sales and marketing of the UAR Product.
2.4 Marketing. UAR shall, at its own expense:
i) reference the Software as a component of the
UAR Product in UAR!s brochures and feature the Software as a component of the
UAR Product in any applicable trade show that it attends;
ii) provide adequate contact with existing
customers, including notifying customers of bugs or errors in the Software and
corrections or fixes for such bugs or errors as suggested by Autodesk to UAR;
iii) assist Autodesk in assessing Customer
requirements for the Software as a component of the UAR Product, including
modifications and improvements thereto, in terms of quality, design, functional
capability, and other features; and
iv) promptly notify Autodesk of bugs or errors
in the Software discovered by UAR or reported to UAR by Customers.
2.5 End User Licensing. The UAR Product shall be sublicensed
to Customers under the terms of UAR's Customer License. The term "Customer
License" shall mean UAR's standard license agreement which contains terms
substantially similar to the minimum terms and conditions described in Exhibit C
pursuant to which Customers are granted a license to use the Software.
2.6 Registration. UAR shall be responsible for Customer
registration of the UAR Product. UAR shall maintain an accurate accounting of
the Autodesk serial numbers incorporated into the UAR Product and shall
provide registration reports to Autodesk as set forth in Paragraph 4.6 (Sales
and Inventory Reports).
2.7 Conflict of Interest. UAR shall not promote the products
of other companies if it will create a conflict of interest in handling
Autodesk's confidential or proprietary information.
3. PROHIBITIONS.
3.1 Modification. Autodesk shall be responsible for all
reproduction of copies of the Software and Documentation. UAR shall not disable
features of the Software, modify, enhance or make derivative works of the
Software or Documentation or sublicense such rights. UAR may, however, link its
software to the Software and revise the user interface of the Software. UAR
agrees not to reverse engineer, disassemble, or decompile the Software in whole
or in part. UAR acknowledges that Autodesk desires to protect the integrity of
the Software as a commercial technology. UAR agrees that the licenses granted
herein are subject to UAR bundling the Software in its entirety, as delivered by
Autodesk to UAR and UAR specifically agrees not to bundle a lesser subset of any
Software files with the UAR Product without Autodesks prior written consent.
3.2 Mail Order Sales Prohibited. UAR shall not distribute
the UAR Product by Mail Order or to any Sales Channel that UAR has
reason to believe may distribute the UAR Product by Mail Order. "Mail Order"
shall be defined as invitation, through advertising or otherwise, for orders by
mail or telephone, where Customer service, product demonstrations and
installation services are not offered by UAR to the Customer.
3.3 Software Purchases. Software for use in the UAR Product
may only be purchased
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under the terms of this Agreement. UAR may not purchase Software for the UAR
Product under any other agreements with Autodesk.
4. TERMS OF DELIVERY OF SOFTWARE AND DOCUMENTATION
4.1 Delivery. Autodesk shall deliver to UAR copies of the
Software media (5 1/4, 3 1/2 floppy disk, CD-ROM or tape) and copies of the
necessary documentation, as ordered by UAR from time to time.
4.2 Orders, Acceptance and Shipping. All orders for copies of
Software and Documentation shipped to UAR by Autodesk shall be in writing
(including by facsimile), and shall be subject to the terms and conditions of
this Agreement. Any purchase order which purports to supersede or otherwise
modify this Agreement shall be of no force or effect. Each copy of Software and
Documentation shall be deemed accepted by UAR upon receipt. All Software and
Documentation delivered by Autodesk shall be F.O.B. Autodesk's manufacturing
plant. All shipping charges, special packing expenses, if any, and insurance,
will be borne by UAR. If at any time UAR is not in conformance with its
obligations under the terms of this Agreement, Autodesk reserves the right to
cease delivering Software and Documentation to UAR until such time as UAR is in
compliance with such obligations.
4.3 Payment. The price to UAR for each copy of the Software
and related Documentation shall be the then-current Price List price for the
Autodesk version of the Software less the discount set forth in Exhibit D. UAR's
discount is dependent upon UAR's quarterly purchases (revenues) to Autodesk.
Such discount shall be adjusted quarterly based on UAR's previous quarter
revenues. Autodesk shall submit an invoice to UAR upon each shipment. Upon
approval of UAR!s credit standing by Autodesk, payment terms shall be thirty
(30) days from the date of the invoice. Pending such approval, payment shall be
due immediately upon delivery. Any invoiced amount not received within thirty
(30) days of the date of invoice shall be subject to a service charge of one and
one-half percent (1.5%) per month (or, if less, the maximum allowable by
applicable law). UAR shall pay all sales, property, excise, duties, and other
federal and local taxes (other than those based on Autodesk's net income).
4.4 Initial Purchase. Upon execution of this Agreement, UAR
shall purchase the quantity of Software Copies set forth in Exhibit D. Such
initial purchase shall determine UAR's discount for the first and second
quarters of this Agreement.
4.5 Sales and Inventory Reports and Audit Rights. UAR shall
provide Autodesk with a quarterly point-of-sale report for each of the Sales
Channels set forth in Exhibit B, showing, at a minimum, date shipped, quantity
of UAR Product sold and used internally, the Autodesk serial numbers and the
corresponding UAR serial numbers, the Customers' names and addresses, quantities
sold to such Customers (if any), as well as the quarter-end inventory position
on hand for the UAR Product. This report must be forwarded within fifteen (15)
days of the close of each quarter. Within the first five (5) days of every
quarter, UAR shall provide Autodesk with a ninety (90) day rolling forecast
showing prospective orders for each Sales Channel and intended date when such
orders shall be submitted to Autodesk. UAR shall maintain complete and accurate
records of the information required by this section. Autodesk shall be entitled,
at any time during the term of this Agreement, to audit the books and records of
UAR for purposes of compliance with the terms of this Agreement and verifying
such sales and inventory reports. Any such audit shall be conducted by Autodesk
or its representatives during normal business hours, and UAR shall cooperate
fully with Autodesk or its representatives in any such audit. In the event such
inspection or audit discloses any underpayment, UAR shall promptly pay Autodesk
such amount, together with interest accrued daily at a rate per annum equal to
the highest allowable rate under California law on the unpaid balance until paid
in full.
5. CUSTOMER SERVICE.
5.1 Customer Support. UAR, (through UAR's Sales Channel),
shall be directly responsible
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for providing Customer support for the UAR Product and the Software as a
component of the UAR Product. UAR shall contract with its sales channel to
provide installation and support services solely through sales, installation and
support personnel employed directly by UAR or its Sales Channel. UAR shall
maintain on staff full time support personnel sufficiently knowledgeable with
respect to the Software such that UAR shall be capable of fully supporting the
Software as a component of the UAR Product. At no time during the term of this
Agreement, shall UAR represent to any Customer that Autodesk is available to
directly answer questions about the Software as a component of the UAR Product.
5.2 Autodesk Support to UAR. Autodesk shall, during normal
business hours, provide to UAR telephone assistance and response to written
requests received by telecopy concerning Software errors and possible work
arounds for the Software. Such support is specifically designed to assist UAR as
a reseller of the Software and UAR is not to make such UAR support accessible to
its Customers at any time.
5.3 Error Notifications. UAR shall promptly notify Autodesk
of bugs or errors in the Software or Documentation. Autodesk shall not be
obligated to correct any such errors discovered by UAR or reported to UAR by
Customers.
5.4 Autodesk Developer Support. UAR shall register with
Autodesk Developer Marketing to participate in the Autodesk Developer Network
Program at the then current fees.
6. UPGRADES BY UAR.
In the event Autodesk creates bug fixes or New Releases
("Upgrades") of the Software, Autodesk will notify UAR in writing (including
through CompuServe) and UAR will advise Autodesk as to whether UAR wishes to
receive such Upgrade. Once any such Upgrade is made available to UAR, if UAR
decides to integrate the Upgrade into the UAR Product, UAR shall be responsible
for providing such Upgrade as a component of the revised UAR Product to its
Customers. UAR will ensure that the copy of the Software as a component of the
UAR Product is destroyed either by UAR or by Customer at the time the Upgrade is
installed. Any such Upgrade shall be subject to the terms of this Agreement.
Unless other arrangements are made with Autodesk in writing, such Upgrade will
not be delivered to Customers as stand-alone product but rather will be
integrated into the new version of the UAR Product and delivered as an upgrade
to the UAR Product already in the possession of UAR's installed base of
Customers.
7. WARRANTIES.
7.1 Standard Limited Warranty. Autodesk will provide no
warranty or continuing support for the Software to Customers or the Sales
Channel and UAR agrees that UAR shall be solely responsible for providing
warranty and continuing support to UAR's Customers and Sales Channel. Autodesk
warrants to UAR, for a period of ninety (90) days from delivery by Autodesk to
UAR, that the copies of the Software delivered to UAR (as a standalone product)
will perform substantially in accordance with the Documentation. UAR SHALL NOT
MAKE OR PASS ON TO ANY PARTY ANY WARRANTY OR REPRESENTATION CONCERNING THE
SOFTWARE AND DOCUMENTATION ON BEHALF OF AUTODESK.
7.2 No Other Warranty. EXCEPT FOR THE LIMITED WARRANTY
TO UAR DESCRIBED IN SUBPARAGRAPH 7.1 ("STANDARD LIMITED WARRANTY"), AUTODESK
GRANTS NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE
REGARDING SOFTWARE AND DOCUMENTATION. AUTODESK DOES NOT WARRANT THE PERFORMANCE
OF THE SOFTWARE WHEN USED IN CONJUNCTION WITH THE UAR PRODUCT. FURTHERMORE,
AUTODESK EXPRESSLY EXCLUDES ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT.
8. CONTACT PERSONS.
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The contact persons for the parties shall be:
Autodesk: Xxxxx Xxxx
00000 Xxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Tel: (000) 000-0000 Fax: (000) 000-0000
UAR: Faro Technologies
000 Xxxxxxxxxx Xxxx Xxxxx
Xxxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
9. OWNERSHIP OF PROPRIETARY RIGHTS.
UAR acknowledges that the Software and Documentation are
proprietary to Autodesk and that Autodesk retains exclusive ownership of the
Software and Documentation and all proprietary rights associated with the
Software and Documentation. UAR shall take all reasonable measures to protect
Autodesk's proprietary rights in the Software and Documentation. Except as
provided herein, UAR is not granted any other rights or license to patents,
copyrights, trade secrets or trademarks with respect to the Software and
Documentation. UAR shall promptly notify Autodesk in writing upon its discovery
of any unauthorized use or infringement of the Software and Documentation or
Autodesk's patent, copyright, trade secret, trademark or other intellectual
property rights. UAR shall not (and shall require that its Customers do not)
remove, alter, or cover any copyright notices or other proprietary rights
notices placed on or in any copy of the Software or Documentation by Autodesk.
UAR shall not sell to any Customer if UAR has notified Autodesk that such
Customer may be involved in potential unauthorized use of Software or
Documentation or other infringement of Autodesk's proprietary rights.
10. CONFIDENTIALITY.
10.1 Confidentiality Required. Through its relationship with
Autodesk UAR shall have access to certain information and materials concerning
Autodesk's business, plans, Customers, technology, and products that are
confidential and of substantial value to Autodesk, which value would be impaired
if such information were disclosed to third parties ("Confidential
Information"). UAR shall not disclose any such Confidential Information to any
third party and shall take every reasonable precaution to protect such
information. UAR shall not publish any technical description of Software and
Documentation beyond the description published by Autodesk. In the event of
termination of this Agreement, there shall be no use or disclosure by UAR of any
confidential information of Autodesk.
10.2 Exceptions to Confidentiality. UAR's confidentiality
obligations do not extend to Confidential Information which (i) becomes publicly
available without the fault of UAR; (ii) is rightfully obtained by UAR from a
third party with the right to transfer such information; or (iii) is
independently developed by UAR and without reference to Autodesk's Confidential
Information. UAR shall have the burden of proving the existence of any condition
in this Paragraph.
11. TRADEMARKS.
During the term of this Agreement, UAR shall have a
non-exclusive, non-transferable right to indicate to the public that it is an
authorized UAR of Autodesk's Software and Documentation as a component of the
UAR Product and to advertise such Software and Documentation as a component of
the UAR Product within the Territory under the Autodesk trademarks and slogans
adopted by Autodesk from time to time ("Trademarks").
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UAR shall include the Autodesk Trademarks in any literature, promotion or
advertising concerning the UAR Product. UAR shall not affix any Autodesk
Trademark to products other than the UAR Product. UAR shall not contest, oppose
or challenge Autodesk's ownership of the Trademarks. All representations of
Autodesk Trademarks that UAR intends to use shall be exact copies of those used
by Autodesk, or shall first be submitted to the appropriate Autodesk personnel
for approval of design, color, and other details and such approval shall not be
unreasonably withheld. If any of the Autodesk Trademarks are to be used in
conjunction with another trademark on or in relation to the UAR Product, then
the Autodesk Trademarks shall be presented equally legibly, equally prominently,
but nevertheless separated from the other so that each appears to be a trademark
in its own right, distinct from the other xxxx. Effective upon the termination
of this Agreement, UAR shall cease to use all Autodesk Trademarks.
12. PROPRIETARY RIGHTS INDEMNITY.
Autodesk shall defend, at its expense, any action brought
against UAR which alleges that the Software or Documentation infringes a United
States copyright or patent, provided that UAR promptly notifies Autodesk in
writing of any claim, gives Autodesk sole control of the defense and settlement
thereof, and provides all reasonable assistance in connection therewith. If the
Software and Documentation is finally adjudged to so infringe, Autodesk shall,
at its option, (a) procure for UAR the right to continue using the Software and
Documentation as a component of the UAR Product; (b) modify or replace the
Software and Documentation so there is no infringement; or (c) accept return of
the copies of the Documentation in UAR's inventory and refund the purchase
price. Autodesk shall have no liability regarding any claim arising out of the
use of the Software and Documentation in combination with other products,
including the UAR Product, if the infringement would not occur but for such
combination. THE FOREGOING STATES UAR'S SOLE AND EXCLUSIVE REMEDY WITH
RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY
KIND.
UAR shall defend, at its expense, any action brought against
Autodesk for any claim which alleges the UAR Product infringes a United States
copyright or patent. Autodesk shall provide all reasonable assistance in
connection with any claim therewith.
13. TERM AND TERMINATION.
13.1 Term. The term of the Agreement shall commence upon the
Effective Date and unless terminated earlier in accordance with the terms of
this Agreement, shall continue for one (1) year.
13.2 Termination for Cause. Autodesk may terminate this
Agreement upon thirty (30) days written notice of a material breach.
13.3 Termination for Convenience. This Agreement may be
terminated without administrative or judicial resolution by either party for any
reason or no reason, by giving the other party written notice ninety (90) days
in advance.
13.4 Termination for Insolvency. Either party may terminate
this Agreement immediately, upon written notice, (i) upon the institution by or
against the other of insolvency, receivership or bankruptcy proceedings or any
other proceedings for the settlement of the other's debts, (ii) upon the
other's making an assignment for the benefit of creditors or (iii) upon the
other's dissolution or ceasing to conduct business in the normal course.
13.5 Fulfillment of Orders Upon Notice of Termination. Upon
delivery of notice of termination pursuant to this Paragraph 13 ("Term and
Termination"), Autodesk shall not be obligated to fulfill any unfulfilled orders
or any orders received by Autodesk subsequent to the date of delivery of notice
of termination. In Autodesk's sole discretion Autodesk may continue to fulfill
orders if UAR (i) submits prepayments for any such
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order and (ii) pays all credit balances then outstanding prior to any shipment
of Software or Documentation by Autodesk.
13.6 Return of Materials. All Autodesk Confidential
Information, data, photographs, samples, literature, and sales aids of every
kind shall remain the property of Autodesk. Within thirty (30) days after the
termination of this Agreement, UAR shall return all such items as Autodesk may
direct, at Autodesk's shipping expense.
13.7 Survival of Certain Terms. The provisions of Paragraph
4.3 ("Payment"), Paragraph 5.1 ("Customer Support"), Paragraph 7 ("Warranties"),
Paragraph 9 ("Ownership of Proprietary Rights"), Paragraph 10
("Confidentiality"), Paragraph 11 ("Trademarks"), Paragraph 12 ("Proprietary
Rights Indemnity"), Paragraph 13 ("Term and Termination"), Paragraph 14
("Consequential Damages Waiver") and Paragraph 15 ("Limitation of Liability")
shall survive the termination of this Agreement for any reason. All other
rights and obligations of the parties shall cease upon termination of this
Agreement.
14. CONSEQUENTIAL DAMAGES WAIVER.
THE PARTIES AGREE THAT IN NO EVENT WILL AUTODESK BE LIABLE TO
UAR OR ANY OTHER PARTY, UNDER ANY THEORY OF LIABILITY, WHETHER IN AN ACTION
BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY,
HOWEVER ARISING, FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES BY
UAR OR FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER OR NOT AUTODESK HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS LIMITATION SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
15. LIMITATION OF LIABILITY.
AUTODESK'S AGGREGATE LIABILITY UNDER THE TERMS OF THIS
AGREEMENT SHALL BE LIMITED TO THE TOTAL PAYMENTS MADE BY UAR TO AUTODESK FOR THE
SOFTWARE AND DOCUMENTATION SHIPPED BY AUTODESK TO UAR FOR INCLUSION IN THE UAR
PRODUCT IN THE MOST RECENT FULL CALENDAR YEAR PRECEDING IMPOSITION OF SUCH
LIABILITY. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY.
16. GENERAL PROVISIONS.
16.1 Compliance With Laws.
a) Foreign Corrupt Practices Act.
In conformity with the United States Foreign Corrupt Practices Act and with
Autodesk's established corporate policies regarding foreign business practices,
UAR and its employees and agents shall not directly or indirectly make an offer,
payment, promise to pay, or authorize payment, or offer a gift, promise to give,
or authorize the giving of anything of value for the purpose of influencing an
act or decision of an official of any government within the Territory or the
United States Government (including a decision not to act) or inducing such a
person to use his influence to affect any such governmental act or decision in
order to assist Autodesk in obtaining, retaining or directing any such business.
b) Export Administration Act. In conformity
with the United States Export Administration Act and regulations promulgated
thereunder, UAR and its employees and agents shall not disclose, export or
reexport, directly or indirectly, any Product or technical data (or direct
products thereof) provided under this Agreement to destinations in Country
Groups S and Z as modified from time to time by the U.S. Department of Commerce,
or to destinations that are otherwise controlled or embargoed under U.S. law.
The countries and
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destinations listed as of the date hereof include the following:
Country Group S: Libya
County Group Z: North Korea, Cuba
Other: Iran, Iraq
Serbia, Montenengro
c) UAR shall comply with any and all laws,
regulations, or legal requirements of the territory that apply to execution and
performance of this Agreement.
16.2 Assignment. UAR shall not assign this Agreement, in
whole or in part, without the prior written approval of Autodesk. To obtain
prior written approval to assign this Agreement in the case of a change of
ownership, UAR must submit information regarding the proposed assignee, as
specified by Autodesk, at least thirty (30) days prior to the proposed date of
assignment. Autodesk will review the information and accept or reject the
proposed assignment, in writing, in Autodesk's sole discretion. For the
purposes of this paragraph, a change in the persons or entities who control 50%
or more of the equity securities or voting interest of UAR shall be considered
an assignment of this Agreement. Notwithstanding the foregoing, Autodesk's
rights and obligations under this Agreement, in whole or in part, may be
assigned by Autodesk and Autodesk may sell, pledge or otherwise transfer its
right to receive payments under this Agreement.
16.3 Injunctive Relief. It is expressly agreed that a
material breach of this Agreement by UAR shall cause irreparable harm and a
remedy at law would be inadequate. In addition to any and all remedies
available at law, Autodesk shall be entitled to an injunction or other
equitable remedies in all legal proceedings in the event of any threatened or
actual violation of any or all of the provisions of this Agreement.
16.4 Governing Law and Jurisdiction. This Agreement shall be
governed by and construed under the laws of the State of California. The federal
(Northern District of California) and state (Marin County) courts within the
State of California shall have jurisdiction to adjudicate any dispute arising
out of this Agreement.
16.5 Legal Expenses. The prevailing party in any legal action
brought by one party against the other arising out of this Agreement shall be
entitled, in addition to any other rights and remedies it may have, to
reimbursement for its expenses, including court costs, expert witness fees and
reasonable attorney's fees.
16.6 Independent Contractors. The relationship of Autodesk
and UAR established by this Agreement is that of independent contractors, and
nothing contained in this Agreement shall be construed to create an agency
relationship between the parties or to allow UAR to create or assume any
obligation on behalf of Autodesk for any purpose whatsoever.
16.7 Severability. In the event that any provision of this
Agreement shall be unenforceable or invalid under any applicable law or be so
held by applicable court decision, such unenforceability or invalidity shall not
render this Agreement unenforceable or invalid as a whole.
16.8 Waiver. The failure of either party to require
performance by the other party of any provision hereof shall not affect the full
right to require such performance at any time thereafter; nor shall the waiver
by either party of a breach of any provision hereof be taken or held to be a
waiver of the provision itself
16.9 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
16.10 Entire Agreement. This Agreement sets forth the entire
agreement and understanding
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of the parties relating to the subject matter herein. This Agreement merges and
supersedes all prior or contemporaneous agreements, discussions and
understandings between the parties, oral or written, regarding such subject
matter. No modification to, or amendment of, this Agreement, shall be effective
unless in writing and signed by the party to be bound.
"Autodesk" "UAR"
AUTODESK, INC. FARO TECHNOLOGIES
By:/s/ Xxxx Xxxxxxxx By:/s/ Xxxxxxx X. Xxxxxx
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Xxxx Xxxxxxxx Xxxxxxx X. Xxxxxx
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Printed Name Printed Name
Director of OEM Sales Vice President
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Title Title
9/9/96 8/30/96
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Date Date
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