EXHIBIT 10.20
Agreement # __________
COMPAQ SOLUTIONS ALLIANCE AGREEMENT
This Compaq Solutions Alliance ("CSA") Agreement is made by and between Compaq
Computer Corporation, a Delaware corporation, having it principal address at
00000 X.X. 000, Xxxxxxx, Xxxxx 00000 ("Compaq"), and AltiGen, a California
Corporation, having offices at 00000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxx, XX 00000
("CSA member").
1. DEFINITIONS.
(a) "Agreement" means all provisions in the body of this Compaq Solutions
Alliance Agreement, the Exhibits attached to it, the CSA Program Guide,
the ASE Program materials, the CSA Application and any other CSA Program
publications or documents referenced in this Agreement which now exist or
which may be hereafter adopted by Compaq.
(b) "Annual Fee" means the fee set forth by Compaq in the CSA Program Guide or
the Application for membership in the CSA Program for that year.
(c) "Application" means the application in the form provided by Compaq from
time to time which CSA member shall complete and submit for membership in
the CSA Program. The Application is subject to acceptance by Compaq in its
sole discretion.
(d) "ASE Program" means the requirements, policies and procedures published by
Compaq for certifying CSA member personnel as "Accredited Systems
Engineers" (ASE) for Compaq Products.
(e) "Compaq Affiliate" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with Compaq. For
purposes of this definition "control" (including the related terms
"controlling" "controlled by" or "under common control with") shall mean
the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such person, whether
through the ownership of voting securities, by agreement or otherwise.
(f) "Compaq Products" means Compaq hardware and related software products sold
or licensed by authorized Compaq system resellers in the Territory.
(g) "Confidential Information" means trade secret, proprietary or confidential
business information of Compaq or CSA member, or its suppliers, provided
to the other party in connection with CSA member's membership in the CSA
Program and the performance of this Agreement.
(h) "CSA member Product or Services" means the software or hardware products
(including Compaq Products if CSA member is an authorized Compaq system
reseller in the Territory) and/or the system integration, consulting,
development, support or training services CSA member may provide to its
customers in the Territory, including such products and services provided
to customers for implementation of a Compaq Products solution.
(i) "CSA Program Guide" means the guide published by Compaq identifying
requirements for and benefits of membership in Compaq's CSA Program, which
may include requirements and benefits specific to CSA member Products or
Services.
(j) "Intellectual Property" means any patent, copyright, trade name, trade
xxxx, trade secret, know-how, mask work or any other intellectual property
right or proprietary information or technology, whether registered or
unregistered.
(k) "Effective Date" means the date set forth in Compaq's signature block
below.
(l) "Discount Credits" means certain credits CSA member may be eligible to
receive in accordance with the CSA Program Guide to obtain discounts on
the purchase or lease of Compaq Products for designated uses.
(m) "Territory" means the United States of America.
2. TERM AND TERMINATION.
(a) Subject to Compaq's acceptance of the Application and payment of the
Annual Fee, this Agreement will take effect on the Effective Date and
unless terminated sooner as provided below will expire at the end of the
calendar year in which it is entered into. The Agreement will
automatically renew for additional terms of one calendar year each, so
long as CSA member continues to meet all CSA Program membership
requirements under the then-current CSA Program Guide and continues to
meet its other obligations under this Agreement.
(b) Either party may terminate this Agreement at any time, with or without
cause and without intervention of the courts, upon 30-calendar days' prior
written notice. Neither party shall be liable to the other for costs and
damages resulting from such termination.
(c) Without prejudice to its other rights or remedies, a party may terminate
this Agreement upon notice to the other party if the other party commits a
material breach of its obligations under this Agreement.
(d) Upon expiration or termination of this Agreement, all right and benefits
granted to either party in this Agreement shall terminate and either party
shall immediately:
(1) cease use of the designated CSA name and logotype, all CSA member
Program materials and other materials made available to CSA member
under the CSA Program;
(2) destroy all such materials and items in its possession or under its
control; and
(3) cease holding itself out as a member of the CSA Program.
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3. APPOINTMENT AND BENEFITS.
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(a) CSA member is appointed as a member of the CSA Program in and for the
Territory.
(b) So long as CSA member meets its obligations under this Agreement it will
be eligible to receive the core CSA Program benefits set forth in the CSA
Program Guide published from time to time, such as:
(1) Listing in the CSA Web directory and solution locator area of
Compaq's "CSA Web Site"
(2) Access to the restricted CSA Web Site
(3) Use of the name and logo designated by Compaq for indicating
membership in the CSA Program
(4) Discounts on the purchase of a designated quantity of Compaq
Products
(5) Eligibility for favorable rental and lease programs for Compaq
Products
(6) Access to up to date Compaq Product solution information
(7) Receipt of the CSA Program member welcome kit and CSA Program member
newsletter
(8) Access to Compaq labs and porting centers
(9) Eligibility for the core CSA Program member education, marketing,
technical and other support programs made available to all CSA
Program members, subject to any requirements specific to the
particular support program
(10) Eligibility to attend invitational CSA events including executive
forums and developer conferences
(11) Access to sales information tools, training and support via CSA
member's 800 telephone number, subject to any prevailing
requirements and charges
(12) Opportunity to market value proposition to Compaq partners,
channels, and customers
(c) Discount Credits will be administered by Compaq or its third party
administrator. Compaq may change its administrator at any time in its sole
discretion. Neither this Agreement nor the agreement between Compaq and
its administrator confers any third party beneficiary rights on CSA
member. Discount Credits may be received and applied only in accordance
with the requirements of the CSA Program Guide. Any unapplied Discount
Credits remaining at the expiration of each annual term of this Agreement
and at the termination of this Agreement will automatically expire.
(d) CSA Program benefits are provided in accordance with the CSA Program
policies and procedures in effect when a specific benefit is requested.
CSA member understands that at Compaq's sole discretion it may revise or
end the CSA Program or revise, add or end any CSA Program benefits or
requirements. If any such change adversely affects CSA member, it may
terminate this Agreement under Section 2.(b) without any recourse against
Compaq.
(e) As a CSA Program benefit, CSA member is granted a non-exclusive, revocable
license to use the name and logotype specifically designated by Compaq in
the CSA Program Guide (or such other Compaq CSA Program publication
designated by Compaq) for referring to CSA member as a member of the CSA
Program. This restricted license is subject to the provisions of Section
5.(l) below. Apart from this use, this Agreement does not grant CSA member
any right to use any Compaq trademarks or logotypes. Use of the designated
CSA name and logotype by CSA member will inure to the benefit of Compaq.
Compaq reserves in its sole discretion the right to amend the designated
CSA name and logotype. CSA member agrees to use the name and logotype in
accordance with the provisions of Section 5.(l) below,
(f) Except as specified in this Agreement, CSA member does not grant to Compaq
any rights in or to any Intellectual Property related to the Product or to
any materials furnished hereunder. The Intellectual Property embodied in
the Product, all modifications thereto, and all Documentation thereof, are
proprietary to CSA member, and CSA member retains all right, title and
interest in and to such Intellectual Property.
4. PAYMENT.
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Compaq will waive the Annual Fee upon acceptance of the Application. Payment
of any other fees that may be due Compaq hereunder shall be due 30 days
after invoice.
5. CSA MEMBER AND COMPAQ OBLIGATIONS.
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(a) CSA member shall use its reasonable efforts to assure that each quarter 50%
of all CSA member Products installations for server system "seats" (e.g.,
number of persons authorized to access and use the product) by operating
system (e.g., Windows NT, SCO UNIX and Novell Netware) are installed for use
on Compaq Products server systems and 50% of all CSA member Products
customer installations for client system seats by operating system (e.g.,
Windows NT, SCO UNIX and Novell Netware) are installed for use on Compaq
Products client systems. If CSA member licenses CSA member Products for use
other than by number of seats (in whole or in part) it will use reasonable
best efforts to meet the same market share percentages stated above through
its other licensing arrangements for installations of CSA member Products
for use on Compaq servers and clients. Compaq and CSA member agree to
develop a joint business and marketing plan within 90 days from signing of
this Agreement. This plan will outline the business and marketing strategy,
with associated budget, that will be used to drive the 50% installation
goals referenced above. It will also include an appropriate ramp time to
reach the 50% goals. The plan, which will be an on-going working document,
will include marketing strategies, channel strategies, training and a
communications strategy. The marketing effort could consist of one or more
of the following: advertising, direct mail, channel communications, end user
communications, etc. The parties may also agree to make provision in the
plan for certain press releases or other public statements by either or both
parties that reference the other. Any such
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press releases or public statement must be approved in advance by each
party with respect to timing, audience, form, content and any other
relevant matters. If the parties are unable to agree to the plan for any
reason, then either party may terminate this Agreement under Section
2.(b). above.
(b) Compaq will use reasonable effort to work with CSA member to identify
appropriate Compaq channel partners who can deliver the joint Compaq/CSA
member solution. The channels may include distributors, value-added
resellers, corporate resellers, systems integrators, and Internet Service
Providers (ISPs)
(c) Compaq will use reasonable efforts to identify appropriate Compaq sales
and marketing contacts to assist in the effective and efficient delivery
of Compaq/CSA member solutions to joint customers.
(d) CSA member will exercise due skill and care in providing CSA member
Products or Services to customers as a CSA Program member for
implementation with Compaq Products. CSA member will not act in a manner
that could adversely affect the goodwill Compaq establishes with the CSA
Program.
(e) CSA member will use its reasonable best efforts to market its CSA member
Product and Services specifically for use with Compaq Products in such a
manner as to reasonably promote Compaq Products for use with CSA member
Products or Services.
(f) Once each calendar quarter, and subject to availability of information
from Compaq/CSA member channels to CSA member, CSA member shall provide
Compaq with a market share report containing such information as is
necessary for Compaq to evaluate CSA members success in reaching the
market share percentage targets described in Section 5.(a) above and
assessing CSA members efforts under Section 5.(c). CSA member agrees to
use such forms as Compaq may provide from time to time for the reports.
Compaq will treat the reports and the information contained within them as
Confidential Information of CSA member under this Agreement.
(g) Upon reasonable prior notice and during CSA member's normal business
hours, Compaq may schedule reviews of CSA member's relevant records
regarding the subject matter of Section 5.(a) to verify CSA member market
share reports and marketing efforts. Compaq will treat the records and the
information contained within them as Confidential Information of CSA
member under this Agreement.
(h) At Compaq's sole discretion, CSA member agrees to use good faith efforts
to cooperate with Compaq in resolving disputes with customers concerning
the delivery or performance of CSA member Products or Services for
implementation with a Compaq Products solution.
(i) CSA member will assure that at least one of its employees is and remains
certified as an ASE in accordance with the requirements of the ASE
Program.
(j) CSA member will assure that all information provided in the Application,
the sales and service reports and the records referred to above and other
information CSA member provides Compaq in connection with membership in
the CSA Program is true and accurate in all material respects, and that it
will remain so while this Agreement is in effect, unless and until CSA
promptly notifies Compaq of any change.
(k) CSA shall validate that its proprietary software (if any) runs on Compaq
products in accordance with guidelines set forth in the CSA Program Guide.
(l) In accordance with the CSA Program Guide or such other CSA publication as
Compaq may provide, CSA member shall comply with Compaq's published
trademark guidelines concerning the size, placement and use of the
specific CSA name and logotype designated by Compaq for use by CSA Program
members. CSA member shall use the appropriate trademark symbol (e.g., "TM"
or "Registered") in a superscript following the designated CSA name in all
CSA publications and circulations in any form. Compaq reserves the right
to review and approve CSA member's use of the CSA name and logotype.
6. RIGHT TO REFER TO CSA MEMBER.
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Compaq may in its sole discretion refer to CSA member in Compaq publications,
advertisements and promotional materials in connection with the CSA Program or
the promotion and sale of Compaq Products. However, Compaq will not use CSA
member's logotype without its permission and only in accordance with CSA member
guidelines provided to Compaq.
7. RELATIONSHIP OF PARTIES.
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The parties are independent contractors and no other relationship is intended.
Neither party shall act in a manner that expresses or implies a relationship
other than that of independent contractor, including agent. This Agreement is
not exclusive in any respect and either party may enter into similar or
different agreements with third parties.
8. NO ENDORSEMENT.
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Neither party will have any right or authority to act on behalf of the other
party. CSA member will not represent that Compaq has endorsed, guaranteed or
warranted CSA member Products or Services in any way.
9. LIMITATION ON LIABILITY.
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IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, PUNITIVE, MORAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING, BUT
NOT LIMITED TO, LOST PROFITS. ANY BENEFITS AND MATERIALS EITHER PARTY PROVIDES
EITHER PARTY UNDER THIS AGREEMENT ARE PROVIDED "AS IS", WITHOUT EXPRESS OR
IMPLIED WARRANTIES OF ANY KIND, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY OF NON-INFRINGEMENT.
10. CONFIDENTIAL INFORMATION.
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Each party may be provided access to Confidential Information of the other
party. The receiving party will keep all Confidential Information in confidence,
will not disclose any item of Confidential Information to any person other than
its employees, agents or contractors who need to know the same in the
performance of their duties under this Agreement and will use Confidential
Information only as authorized to fulfill its obligations under this Agreement.
The receiving party will protect and maintain the confidentiality of all
Confidential Information with the same degree of care it employs to protect its
own Confidential Information, but at least with a reasonable degree of care,
including binding employees, agents and contractors to confidentiality
provisions substantially the same in all material respects as the provisions of
this Section. The receiving party will be liable to the disclosing party for any
non-compliance by its agents or contractors to the same extent it would be
liable for non-compliance by its employees. Confidential Information does not
include any data or information which (a) was in the receiving party's lawful
possession prior to the submission thereof by the disclosing party, (b) is later
lawfully obtained by the receiving party from a third party under no obligation
of secrecy, (c) is independently developed by the receiving party, or (iv) is,
or later becomes, available to the public through no act or failure to act by
the receiving party. Confidential Information must be marked or clearly
designated as such in writing by the disclosing party.
11. EXPORT CONTROLS.
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CSA member acknowledges that the Compaq Products and related Confidential
Information and technical documents and materials are subject to export controls
under the U.S. Export Administration Regulations and related U.S. laws. CSA
member will (a) comply with all legal requirements established under these
controls, (b) cooperate fully with Compaq in any official or unofficial audit or
inspection that relates to these controls and (c) not export, re-export, divert,
transfer or disclose, directly or indirectly, any Compaq Products, or related
Confidential Information or technical documents or materials, to any country (or
to any national or resident thereof) which the U.S. Government determines from
time to time is a country (or end-user) to which such export, re-export,
diversion, transfer or disclosure is restricted, without obtaining the prior
written authorization of Compaq and the applicable U.S. Government agency.
12. NOTICES.
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Any notice, request or consent under this Agreement will be given in writing and
will be sent by confirmed telefax, personal delivery, overnight courier service
or registered or certified mail, postage prepaid, to the address for each party
stated on the first page of this Agreement, or to such other address as such
party may designate by notice in accordance with the provisions of this Section.
Notices to either party will be directed to its signatory to this Agreement or
as otherwise designated by such party. Any notice delivered by personal delivery
will be deemed to have been received the day it is sent. Any notice sent by
telefax or overnight courier service, with confirmed receipt, shall be deemed to
have been received the day after it is sent. Any notice sent by registered or
certified mail will be deemed to have been received on the 5th business day
after its date of posting.
13. ESCALATION.
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Any dispute between the parties relating to this Agreement will first be
submitted in writing to a designated senior executive of Compaq and CSA member
who will meet and confer in an effort to resolve such dispute. Any mutual
written decision of the executives will be final and binding on the parties. In
the event the executives are unable to resolve any dispute within 30 calendar
days after submission to them, either party may refer any dispute to a court of
competent jurisdiction or, if both parties agree, to arbitration.
14. MISCELLANEOUS PROVISIONS.
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Any holding that a provision of this Agreement is invalid or unenforceable will
not affect the validity or enforceability of the other provisions of this
Agreement. This Agreement is the parties' entire agreement relating to the
subject matter described within it and supersedes all prior or contemporaneous
oral or written communications, proposals and representations concerning that
subject matter. Modifications to this Agreement must be in writing and signed by
an authorized representative of each party. Any waiver of any provision of this
Agreement, or a delay by either party in the enforcement of any right hereunder,
shall neither be construed as a continuing waiver nor create an expectation of
non-enforcement of that or any other provision or right. Neither party may
assign or delegate this Agreement or any of its rights or obligations without
prior consent from the other party and any attempt to do so will be void,
provided that Compaq may assign the Agreement, or any of its rights and
obligations thereunder, to a Compaq Affiliate. This Agreement will be governed
by and interpreted in accordance with the laws of the State of Texas. The terms
and limitations contained in this Agreement that by their sense and context are
intended to survive the term shall so survive, including, without limitation,
its confidentiality and export control provisions, and the limitation on
liability and miscellaneous provisions with respect to the interpretation,
construction and enforcement of the surviving provisions. The use of the word
"include" or "including" in this Agreement is not meant to be limiting.
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IN WITNESS WHEREOF, each party has the legal and other authority to execute
and perform under this Agreement and has caused this Agreement to be signed
by its authorized representative on its behalf.
ALTIGEN COMMUNICATIONS INC. COMPAQ COMPUTER CORPORATION
"CSA Member" "Compaq"
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Andreas Kudephi
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Name: Xxxxxxx Xxxxxxx Name: Andreas Kudephi
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Title: Vice President of Sales Title: Director, NA Enterprise
---------------------------- Solutions & Partners
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Date: 12/9 , 1998 Effective Date: 1-18 , 1999
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