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Exhibit 10.1
CITRIX BUSINESS ALLIANCE MEMBERSHIP AGREEMENT
This Agreement ("Agreement") is between:
CITRIX SYSTEMS, INC. ("Citrix"), a Delaware corporation, located at 0000 XX 0xx
Xxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, and Invnsys Technology Corporation, a
Phoenix, AZ, corporation, located at: 0000 X. Xxxxx Xxxx #000, Xxxxxxx, Xxxxxxx
00000 (the Citrix Business Alliance Member or "CBA Member").
Whereas, CBA Member desires to enter into an alliance marketing relationship and
to recommend computer solutions to its customers in accordance with this
Membership Agreement; and
Whereas, Citrix desires to supply Citrix software and provide marketing services
and technical support on Citrix products to assist CBA Member in recommending
solutions to its customers, resellers and channel partners;
Now, therefore, in consideration of the mutual promises contained herein, the
parties agree as follows:
1. CBA MEMBER OBLIGATIONS. Pursuant to this Agreement, Member makes the
following promises and undertakes the following obligations to Citrix:
The Annual fee is waived through December 31, 1999 and will be invoiced on
January 1, 2000 and each September 1st thereafter, if renewed by Member. Initial
term Fee will be prorated based on effective date of agreement.
The CBA Member shall pay the annual fee set forth in the applicable Program
Track for the products and services provided by Citrix pursuant to this
Agreement which shall be submitted to Citrix with CBA Member's signed copy of
this Agreement. In addition, CBA Member agrees to Program Track requirements in
effect upon the Effective Date of this Agreement.
2. CITRIX OBLIGATIONS. During the term and pursuant to the terms of this
Agreement, Citrix undertakes the obligations to CBA Member set forth in the
Program Track applicable to this Agreement.
3. TRADEMARKS.
3.1 During the term of this Agreement, CBA Member shall have the right to
identify itself as a CBA Member. Citrix may also identify CBA Member as an
Alliance Member.
3.2 During the term of this Agreement, CBA Member may refer to Citrix products
using the Citrix product trademarks if the reference is not misleading and does
not indicate or imply Citrix's endorsement, testing, or approval of any other
product or of any service offered by CBA Member. The appropriate trademark
symbol (either "(TM)" [standard trademark] or (R) [registered trademark] in
superscript following the product name) shall be used whenever a Citrix product
name is mentioned in any advertisement, brochure, or material circulated or
published in any form whatsoever by CBA Member. The appropriate trademark symbol
must be used in conjunction with, at least, the first reference to each Citrix
product in all CBA Member's publications.
3.3 CBA Member may also have the right to use certain other Citrix trademarks in
order to inform the public that CBA Member's products contain, or are compatible
with, Citrix technology or products. CBA Members' rights and obligations with
respect to such xxxx(s) shall be governed by an appropriate Trademark License
Agreement to be included as an attachment to this Agreement.
4 Confidentiality.
4.1 Each party expressly undertakes to retain in confidence the terms and
conditions of this Agreement and all information transmitted to the other that
the disclosing party has identified in writing as confidential.
4.2 Either party may disclose confidential information as required by
governmental or judicial order, provided such party gives the other party prompt
written notice prior to such disclosure and complies with any protective order
(or equivalent) imposed on such disclosure.
4.3 Neither party shall have an obligation to maintain the confidentiality of
information that
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(i) it received rightfully from a third party prior to its receipt to the
disclosing party; (ii) the disclosing party has disclosed to a third party
without any obligation to maintain to such information in confidence; or (iii)
is independently developed by the obligated party. Each party's obligation under
this Section shall survive the expiration or earlier termination of this
Agreement and shall extend to the earlier of such time as the information
protected hereby falls into the public domain through no fault of the obligated
party or five (5) years following termination or expiration of this Agreement.
5. TERM AND TERMINATION.
5.1 This Agreement shall take effect on the date of its execution by Citrix
("Effective Date"), and unless terminated earlier as provided herein, shall
continue for a period of two (2) years from the Effective Date. Thereafter, this
Agreement shall automatically renew for additional one (1) year terms. Program
benefits are provided in accordance with the Program Track policies and
procedures in effect when a specific benefit is requested. CBA Member
understands that, at any time within Citrix's sole discretion, Citrix may add to
or cancel any CBA Program Track benefits.
5.2 Either party shall have the right to terminate this Agreement at any time,
without cause and without the intervention of the courts, on the giving of
thirty (30) days' prior written notice. Neither party shall be responsible to
the other for any costs or damages resulting from the termination of this
Agreement.
5.3 Upon expiration or termination of this Agreement, CBA Member shall
immediately cease use of any Citrix trademarks licensed hereunder, and shall
cease to represent itself as a CBA Member.
6. NEW PRODUCTS.
6.1 Notwithstanding any other provisions of this Agreement, Citrix may elect at
any time during the term of this Agreement to announce new Citrix products to
which the terms and conditions of this Agreement may not apply. New versions
(upgrades), minor product revisions (updates), and maintenance releases of
existing titles are not considered new Citrix products.
7. WARRANTIES/LIMITED WARRANTIES.
7.1 Citrix warrants Citrix products on the terms set out in the license
agreement accompanying each such product. THESE LIMITED WARRANTIES ARE IN LIEU
OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED, IMPLIED, OR STATUTORY,
INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND AGAINST INFRINGEMENT AND OF ALL OTHER OBLIGATIONS, CONDITIONS, OR
LIABILITIES ON CITRIX'S PART EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW.
8. INDEMNITY.
8.1 CBA Member shall defend, indemnify, and hold harmless Citrix from and
against all liabilities, claims, costs, fines, and damages of any type
(including attorneys' fees) arising out of or in any way related to CBA Member's
delivery of services and/or representations made by CBA Member to its customers.
8.2 CBA Member agrees that Citrix has the right but not the obligation to
defend, or at Citrix's option, to settle any claim, suit or proceeding brought
against CBA Member based on a claim that any products or materials supplied to
CBA Member under this Agreement infringe upon any United States patent or
copyright or violate the trade secret rights of any United States party
(hereinafter "Infringement Claims") provided that CBA Member notifies Citrix in
writing within seven (7) days of notification or discovery of an Infringement
Claim. CBA Member agrees that Citrix will have sole control over the defense or
settlement of any Infringement Claim, and CBA Member will provide reasonable
assistance in the defense of the same (Citrix will reimburse CBA Member for
reasonable expenses incurred in providing such assistance). Any favorable
monetary award, judgment, or settlement will belong exclusively and entirely to
Citrix.
9. LIMITATION OF LIABILITY.
9.1 EXCEPT FOR CLAIMS UNDER SECTION 8 OR CLAIMS FOR INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS, AND SUBJECT TO APPLICABLE LAW, NEITHER PARTY OR
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ITS SUPPLIERS OR ITS LICENSORS SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT,
INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF
BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE
LIKE) ARISING OUT OF ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT,
EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY. IN ANY
EVENT, EXCEPT AS OTHERWISE PROVIDED BY LAW, THE LIABILITY OF CITRIX OR ITS
SUPPLIERS, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY, OR
OTHERWISE, SHALL, IN THE AGGREGATE, NOT EXCEED THE AMOUNT PAID TO CITRIX BY CBA
MEMBER HEREUNDER.
10. GENERAL.
10.1 Except as expressly granted herein, no license regarding the use of
Citrix's copyrights, patents, trademarks or trade names is granted or will be
implied.
10.2 If a particular provision of the Agreement is terminated or held by a court
of competent jurisdiction to be invalid, illegal, or unenforceable, this
Agreement shall remain in full force and effect as to the remaining provisions.
10.3 No waiver of any breach of any provisions of this Agreement shall
constitute a waiver of any prior, concurrent, or subsequent breach of the same
or any other provisions hereof, and no waiver shall be effective unless made in
writing and signed by an authorized representative of the waiving party.
10.4 Neither this Agreement, nor any terms and conditions contained herein,
shall be construed as creating a partnership, joint venture, franchise or agency
relationship between Citrix and CBA Member.
10.5 CBA Member is an independent business and agrees that it shall not make any
representation that might indicate to any third party that CBA Member has
authority to act on Citrix's behalf or to bind Citrix to any representation or
warranty. CBA Member shall not hold itself out as an agent of Citrix, or attempt
to bind Citrix to any third-party agreement.
10.6 This Agreement, and any rights or obligations hereunder, shall not be
assigned or sublicensed by CBA Member, without prior written consent from
Citrix.
10.7 This Agreement shall be governed by the laws of the State of Florida and
CBA Member consents to jurisdiction and venue in the state and federal courts
sitting in the State of Florida. If either Citrix or CBA Member employs
attorneys to enforce any rights arising out of or relating to this Agreement,
the prevailing party shall be entitled to recover costs and attorneys' fees.
10.8 The making, execution and delivery of this Agreement have been induced by
no representations, statements, warranties or agreements other than those herein
expressed.
10.9 No term or provision of this Agreement may be changed, waived, discharged
or terminated except by a writing singed by duly authorized officers of the
parties hereof. The terms of any other documents or electronic communications
exchanged (including the terms set forth on any purchase order) shall be of no
force or effect unless incorporated herein as a modification or addition to the
terms of this Agreement.
10.10 This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior and
contemporaneous communications including all prior and current Citrix Authorized
Reseller and Citrix Authorized Premier Reseller Agreements. It shall not be
modified except by a written agreement dated subsequent to the Effective Date of
the Agreement and signed on behalf of CBA Member and Citrix by their respective
duly authorized representations.
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ACCEPTED BY CBA MEMBER
Company Name:
Invnsys Technology Corporation
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Authorized Signature:
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Name (printed):
Xxxx Xxxxxxx
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Title:
Vice President - Operations
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Date:
2-10-99
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ACCEPTED BY CITRIX SYSTEMS, INC.
Authorized Signature:
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Name (printed):
Xxxx-Xxxxx Xxxxxxxx
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Title:
Controller
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Date:
2/22/99
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