Exhibit 10.61
* TEXT OMITTED AND FILED SEPARATELY,
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SS 200.80(b) (4)
200.83 AND 240 b-2
RESELLER AGREEMENT
BETWEEN
XXX XXXXXXXXXXX
AND
MTI TECHNOLOGY CORPORATION
RESELLER AGREEMENT
BETWEEN
XXX XXXXXXXXXXX
AND
MTI TECHNOLOGY CORPORATION
THIS AGREEMENT, effective as of March 31, 2003 (the "EFFECTIVE DATE") between
XXX XXXXXXXXXXX (together with its designated subsidiaries from time to time,
"EMC"), a Massachusetts corporation having its principal business offices at 000
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 and MTI TECHNOLOGY CORPORATION, A
DELAWARE CORPORATION HAVING ITS PRINCIPAL BUSINESS OFFICES AT 00000 XXXXXXXX
XXXXXX, XXXXXX, XX 00000 (together with its designated Subsidiaries listed on
Exhibit H, as amended from time to time, "RESELLER").
1.0 DEFINITIONS
BUSINESS DAY: Any day other than a Saturday, Sunday or other day on which
the New York Stock Exchange is not scheduled to open for trading.
CORE SOFTWARE: EMC microcode, firmware and associated software that enable
a Designated System to perform its basic functions. Core Software does not
include any Enterprise Storage Software.
DAYS: Calendar days, unless otherwise specified.
DELIVERY: The first point in time at which EMC has made the goods
available to Reseller (or Reseller's carrier) at EMC's manufacturing
facility.
DESIGNATED SITE: End-User's facility where the Host CPU or the Designated
System is located.
DESIGNATED SYSTEM: Equipment which is delivered by EMC to Reseller
pursuant to this Agreement and is identified by the serial number set
forth on the cabinet.
DOCUMENTATION: Documentation that accompanies the Products or which may be
provided by EMC from time to time under this Agreement, including but not
limited to brochures, manuals, and literature.
END-USER: Any person or entity which has licensed Software and/or
purchased Equipment from Reseller for its own internal business purposes
only.
END-USER AGREEMENT: The agreement between an End-User and Reseller, for
the licensing of Software and/or purchasing of Equipment and the provision
of services.
ENTERPRISE STORAGE SOFTWARE: Software provided by EMC, other than Core
Software and Maintenance Aids. Enterprise Storage Software consists of:
A-1
I. HOST-BASED SOFTWARE: Software that is licensed for use on one
or more Host CPUs, and
II. STORAGE SYSTEM BASED SOFTWARE: Software that is licensed for
use on the Designated System and, if applicable, on one or
more Host CPUs.
EQUIPMENT: The items of hardware sold by EMC under this Agreement, to
which resale rights are granted pursuant to this Agreement. Equipment may
be newly manufactured or remanufactured.
EX WORKS: The meaning set forth in the I.C.C. Incoterms, 2000 edition.
F.O.B.: The meaning set forth in the Uniform Commercial Code as adopted in
the Commonwealth of Massachusetts on the Effective Date.
HOST CPU: A central processing unit designated by End-User for operation
with the Designated System.
MAINTENANCE AIDS: The hardware, software and other aids owned by EMC and
used by EMC in furnishing maintenance services. Maintenance Aids are not
licensed to Reseller.
MATERIAL: Equipment and Parts sold hereunder.
PARTS: Those items identified in Exhibit A-1.
POST-WARRANTY: The period after expiration of the warranty period.
PRODUCTS: The Material, Software and services that EMC makes generally
available to its end-user customers upon the Effective Date, which are
identified in Exhibit A, and their successor products, which may be
updated or revised by EMC from time to time.
SOFTWARE: Core Software, Enterprise Storage Software and any other
software provided by EMC. (Note: Software does not include Maintenance
Aids).
SOFTWARE LICENSE AGREEMENT: See Article 16, and Exhibit C (Software
License).
SUBSIDIARY: Any company or other legal entity of which a party either
directly or indirectly owns or controls greater than [*]% percent of the
outstanding voting stock or capital and which is authorized by such party
(with written confirmation thereof) to procure or sell Product under this
Agreement. Subsidiaries of Reseller authorized to submit Purchase Orders
on behalf of Reseller are listed on Exhibit G.
Target Market: The market for the sale of Products as specified in Exhibit
A-2.
2.0 PURPOSE; RESELLER'S OBLIGATIONS
2.1 PURPOSE. This Agreement sets forth the terms and conditions under
which Reseller will purchase, license, distribute and service, and
EMC will sell, license, and provide Products during the term of this
Agreement.
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2.2 RESELLER'S REPRESENTATION. It is a condition of EMC's obligations
that Reseller purchase quantities of Products under this Agreement
and resell Products in the Target Market in the manner described in
Exhibit A-2, and perform those functions customarily performed by a
reseller relative to the advertising, marketing, sale and support of
Products. Without limitation, Reseller will establish programs to
provide sales incentives to Reseller's sales personnel, commit
personnel to Product sales and service, and provide marketing
programs and sales and service force training.
2.3 RELATIONSHIP. Reseller is EMC's customer under this Agreement, and
no other relationship is created or implied under this Agreement.
Without limitation, neither Party is in any respect an agent,
representative, partner or joint venturer of or with the other
Party.
2.4 RIGHT TO SELL. The terms and conditions of this Agreement, including
the pricing terms, are expressly conditioned upon Reseller's
agreement to sell (and, with respect to Software, license) EMC
Products [*].
* Confidential Treatment Requested
2.5 CUSTOMER SERVICE. Reseller's obligations relating to service of
Product are set forth in Exhibits D and E, the terms of which are
incorporated herein. As set forth more fully in Exhibits D and E,
initially, EMC will provide service for all Products. It is the
intent of the parties that, during a transition period, Reseller
will become qualified to service Clariion Products, and thereafter,
EMC will continue to service Products other than Clariion. Reseller
shall use commercially reasonable efforts to diligently service and
support its customers with respect to all applicable Products
provided hereunder. Reseller shall adequately train (with the
assistance of EMC) its personnel and obtain all needed Parts and
Equipment to carry out these duties.
2.6 PARTS STOCKING. Reseller agrees to stock and maintain a suitable
inventory of Parts in amounts reasonably expected to service its
customers, based on the quantity and mix of Product acquired by
Reseller from EMC. EMC will supply such Parts solely for Product
purchased by Reseller hereunder for Reseller's resale to Reseller's
customers, or otherwise as appropriate solely to support Reseller's
installed base of customers of Product purchased under this
Agreement. Reseller will sell and distribute Parts only in a manner
consistent with the foregoing limitations.
3.0 TERM
3.1 TERM. The term of this Agreement shall be three (3) years (the
"Initial Term"), commencing on the Effective Date. Thereafter, and
subject to mutual agreement, this Agreement shall be automatically
renewed for successive one (1) year renewal periods (the "Renewal
Term") in accordance with and pursuant to the same terms and
conditions contained herein, until terminated by either Party: (a)
by providing at least ninety (90) days' prior written notice
effective at the end of the Initial Term or any extension term, or
(b) pursuant to Article 13.
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3.2 SHIPMENT AFTER TERM. Product ordered before term or product shipped
after the Term is governed by this Agreement, provided the
applicable purchase order was accepted by EMC during the Term of
this Agreement.
4.0 DELIVERY
4.1 DELIVERY AND SHIP-TO POINT. Delivery of Material shall be at EMC's
designated place of manufacture (as of the Effective Date, Apex,
North Carolina, Franklin, Massachusetts or Cork, Ireland). Terms for
delivery within the United States are F.O.B. EMC's shipping dock at
the designated place of manufacture; delivery terms for delivery
outside the United States are Ex Works EMC's shipping dock at the
designated place of manufacture. Material shall be packed according
to EMC's standard practices. Reseller shall be responsible for
selecting and utilizing its own carrier. All transportation,
insurance, import, export and clearance charges shall be paid by
Reseller.
4.2 TITLE AND RISK OF LOSS. Title to Equipment, and risk of loss or
damage, shall pass to Reseller upon EMC's delivery to the carrier at
the FOB or Ex Works point.
5.0 PAYMENT
5.1 PAYMENT TERMS. Reseller shall make all payments due under this
Agreement in U.S. Dollars within [*] days after the date of EMC's
invoice, which shall not be earlier than the shipment date. EMC
reserves the right to charge interest on payments that are more than
five (5) days past due at 1.5% per month or the highest lawful rate,
whichever is less. EMC will credit Reseller 1% of the amount of an
invoice if payment in good funds is received by EMC within fifteen
(15) days from the date of invoice.
5.2 CREDIT LINE. EMC may establish a line of credit ("CREDIT LINE") for
Reseller. EMC reserves the right to increase or decrease the Credit
Line from time to time. The Credit Line shall be at the reasonable
discretion of EMC, and at no time will EMC be required to allow the
maximum amount owed by Reseller to EMC under outstanding accounts
receivable to exceed the amount of the Credit Line. In the event EMC
determines that there is a material risk that Reseller will not be
able or willing to pay its obligations hereunder, or in the event
Reseller fails to make timely payment of all invoices, EMC may
request payment in advance of shipment or suspend further shipments.
Initially, the Credit Line shall be up to [*] dollars $[*].
5.3 DISPUTE OF INVOICE. In the event Reseller disputes any item in an
invoice, Reseller shall notify EMC within thirty (30) days after the
date of the invoice, and Reseller hereby waives all objections not
raised by Reseller within such period.
* Confidential Treatment Requested
6.0 ORDERING, LEADTIME AND SCHEDULING
6.1 PURCHASE ORDERS. During the term of this Agreement, Reseller may
place purchase orders for Product hereunder ("Orders"). All Orders
shall be in writing and in form
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reasonably acceptable to EMC, shall reference this Agreement, and
shall contain the following:
(a) description of Product to be purchased;
(b) quantity of Product to be purchased;
(c) price of Product to be purchased, consistent with this
Agreement;
(d) requested delivery schedule, consistent with this Agreement;
(e) destination (ship-to address) and requested method of
shipment;
(f) shipping instructions, including whether to use Reseller's
carrier or EMC's carrier (to be billed to Reseller), billing
information, name of freight forwarder, and declaration and
notification of insurance.
All Orders shall be governed exclusively by the terms and conditions
of this Agreement, notwithstanding any preprinted or other terms and
conditions contained or proposed on any Reseller purchase order, EMC
order acknowledgement, or other communication. Orders will only be
valid when placed by authorized Purchasing representatives of the
Reseller, whom Reseller shall designate from time to time by written
notice to EMC. Unless otherwise instructed by EMC, Orders shall be
submitted directly to EMC. Orders for shipment to North America
shall be submitted to EMC in Hopkinton, MA and for International
Orders shall be submitted to EMC in Cork, Ireland. Orders may be
issued by Reseller on behalf of any of its designated Subsidiaries.
Reseller will be responsible for all Orders placed by its
Subsidiaries, jointly with the Subsidiary placing the Order.
6.2 ACCEPTANCE OF ORDERS. After receipt of any Purchase Order, EMC will,
within two (2) Business Days, provide Reseller with an
Acknowledgment accepting the Order, or notice that the order is not
acceptable and stating EMC's reasons.
6.3 FORECASTS. On a monthly basis, Reseller will provide EMC with a
rolling twelve (12) month written forecast ("FORECAST") detailing
Reseller's estimates of Reseller's likely requirements for Product
during each of the months of the forecast period. Such forecasts do
not constitute Orders and are not binding on Reseller. [*]
6.4 LEAD-TIMES. EMC will deliver ordered Products in accordance with the
Delivery dates indicated on the Orders, provided the requested
Delivery date(s) have a lead-time consistent with the terms of
Exhibit A. If EMC determines that Products ordered by Reseller
cannot be delivered within the established lead-time, EMC will
notify Reseller of the revised Order lead-time and the Parties may
agree on a revised Delivery date or Reseller may cancel such ordered
and delayed Products by written cancellation notice to EMC given
within five (5) Business Days after EMC's delay-notification. [*]
* Confidential Treatment Requested
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6.5 CANCELLATION. In the event that an End-User cancels an Order for
Product that it had placed with Reseller, Reseller may cancel an
Order for an identical product placed with EMC by providing a
written Purchase Change (Cancellation) Order to EMC subject to the
time periods and charges set forth in Exhibit A.
7.0 PRICING
7.1 PRICING. The initial prices for the Products under this Agreement
are set forth on Exhibit A-1.
7.2 PRICE CHANGES. EMC reserves the right to increase or decrease prices
and to amend Exhibits A, and A-1 from time to time upon [*] days'
notice to Reseller. If prices are increased, Orders in reasonable
quantities placed by Reseller pursuant to the terms of this
Agreement and accepted by EMC prior to the date of such increase
shall not be affected. Price increases shall be limited to [*]% per
increase unless mutually agreed upon. In no case shall the price
increase exceed [*]% per annum. In the case of price decreases, the
new price shall take effect [*]. Price decreases shall apply to all
pending Orders, which have not yet shipped, and which were placed
within the same calendar quarter in which notice of decrease was
given (or thereafter).
* Confidential Treatment Requested
8.0 TAXES AND EXPORT / IMPORT
8.1 TAXES. Reseller shall be responsible for all taxes on the sale of
Product provided hereunder, except taxes based on EMC's net income.
All prices and charges are stated exclusive of value-added tax,
sales and goods tax and exclusive of all use, property, excise and
similar taxes, import duties and other levies. Any tax EMC may be
required to collect or pay based upon the sale, use, licensing or
delivery of Products or other items or services hereunder shall be
paid by Reseller to EMC upon invoice. Payments to EMC shall be made
without deduction for taxes, imposts, customs, levies, or other
withholding tax ("Tax") or shall be grossed up (increased) to
provide EMC the same amount after such Tax as it would have received
without the imposition of such Tax, together with tax receipts or
similar evidence of payment by payor. Taxes may be billed on EMC's
invoices, and shall be paid by Reseller in such instances to EMC.
Reseller shall provide to EMC a reseller exemption certificate for
any jurisdiction in which Reseller claims a reseller exemption.
8.2 EXPORT OR IMPORT. Prices do not include fees for domestic or foreign
forwarding agent services, consular invoices, or for any other
documents required by the country of destination (if other than the
agreed delivery point), all of which fees shall be Reseller's
responsibility. Reseller shall obtain all required export
clearances, import licenses, permits or other governmental orders.
EMC agrees to cooperate with Reseller in such efforts, as reasonably
requested by Reseller and at Reseller's expense. Reseller hereby
authorizes EMC to act on behalf of Reseller in connection with
Reseller's export of Product. Such authority extends to the
preparation of any U.S. Shipper's Export Declarations and comparable
documents, and the assignment of any export license.
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8.3 EXPORT CONTROL. Reseller and EMC each agrees to comply with all U.S.
and other applicable export laws and regulations.
9.0 PRODUCT CHANGES
9.1 ADDITIONAL PRODUCT. EMC may in its sole discretion from time to time
amend Exhibits A and A-1, to add for sale under this Agreement other
products which EMC offers for sale to its other resellers. Such
Product may be substituted for any substantially equivalent Product
described in this Agreement. In such event, Reseller may revise its
Forecast accordingly.
9.2 DISCONTINUANCE OF PRODUCT. If EMC discontinues the production of any
Product for sale to its customers, then EMC may remove such Product
from Exhibit A and/or A-1 upon one hundred and twenty (120) days'
written notice to Reseller. During such notice period, Reseller may
continue to place orders for such discontinued Product, provided
that the delivery dates requested by Reseller are within sixty (60)
days of the effective date of EMC's written notice of
discontinuance. In the event of discontinuation of Products,
Reseller may revise its Forecast accordingly. EMC shall support
Products for a minimum of five (5) years from the date of the last
shipment of such discontinued Product to Reseller.
9.3 ENGINEERING CHANGE ORDERS (ECO) CHANGES. EMC reserves the right to
make substitutions and modifications in the specifications and
design of any Material and Software. Substitutions and modifications
do not create or imply any obligation to make substitutions or
modifications to any Material or Software previously provided. All
substitutions and modifications shall be made in accordance with
EMC's standard Engineering Change Order (ECO) control procedures as
set forth in the Services Guide (as defined in Section 15.1 below),
as such procedures may be amended from time to time.
9.4 MANDATORY ENGINEERING CHANGE ORDERS. From time to time (e.g., for
product safety reasons) EMC may issue mandatory ECO's. As to any
affected Product from time to time in Reseller's inventory or
control, or already dispositioned by Reseller and for which Reseller
is authorized to provide maintenance services (i.e., Clariion
Products following the transition of service responsibilities to
Reseller), EMC shall provide replacement parts and/or software
updates, and Reseller shall use its commercially reasonable efforts
at its expense to promptly install all such mandatory ECOs, failing
which Reseller shall obtain access to the Product to permit EMC or
EMC's agents to install such ECOs. EMC shall provide for advance
replacement parts representing [*]% of Reseller's current installed
and maintained base for the purpose of such ECO change out at [*].
Parts will be returned upon replacement where EMC guarantees [*] day
turnaround of such parts. Any unused inventory supplied by EMC will
be returned to EMC. All costs associated with shipping and handling
of such parts will be at the [*] expense.
* Confidential Treatment Requested
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10.0 WARRANTY AND DISCLAIMER
10.1 WARRANTY. Product is warranted by EMC only as provided in Exhibit
A-3 ("Warranty"), which is incorporated herein.
10.2 NO OTHER WARRANTIES. No representation or other affirmation of fact,
oral or written, including but not limited to, statements regarding
capacity, suitability for use or performance of Product, whether
made by EMC employees or otherwise, shall be deemed a warranty by
EMC for any purpose, or give rise to any liability of EMC whatsoever
unless expressly stated in this Agreement. EXCEPT AS EXPRESSLY
STATED IN EXHIBIT A-3, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED,
BY OPERATION OF LAW OR OTHERWISE, FOR PRODUCT FURNISHED HEREUNDER OR
IN CONNECTION HEREWITH. WITHOUT LIMITATION, EMC DISCLAIMS ALL
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE,
TITLE, OR NON-INFRINGEMENT, AND THOSE WARRANTIES ARISING BY STATUTE
OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
11.0 OUT-OF-WARRANTY REPAIR AND SERVICE SUPPORT
Out-of-warranty repair and replacement Parts are available to
Reseller solely in accordance with Exhibit A-4 (Out-of-Warranty
Repair), which is incorporated herein.
12.0 INTELLECTUAL PROPERTY RIGHTS
12.1 RIGHTS RESERVED. Other than the licenses expressly granted herein,
nothing in this Agreement shall be deemed to be a grant of any
intellectual property rights to Reseller or to any of its customers
or to any other person or entity, and no title to or ownership of
Software or copyright, patent or other intellectual property right
therein is transferred to Reseller or to any of its customers.
References to "sale" or "purchase" of Software in this Agreement
shall be interpreted to mean "license upon the terms contained in
this Agreement."
12.2 PROTECTION OF IP RIGHTS. Reseller shall take reasonable measures to
protect the intellectual property rights of EMC in connection with
all Product, Parts and Documentation, including such assistance and
measures as are reasonably requested by EMC.
12.3 INDEMNITY. If notified promptly in writing of any action brought
against Reseller alleging that any Product, Part or Documentation
sold or licensed to Reseller under this Agreement infringes a valid
patent or copyright in the jurisdictions listed in Exhibit G where
Reseller directly or indirectly sells, licenses or leases Products,
EMC will defend that action at its expense and will pay the costs
and damages awarded against Reseller in the action, provided EMC
shall have sole control of the defense of any such action. Reseller
shall not negotiate for nor enter into any settlement or compromise
of such claims without the prior written consent of EMC. If Reseller
is enjoined from purchase, use or sale of Product (or license of and
with respect to Software), or if in EMC's opinion Reseller is likely
to become the subject
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of a injunction, EMC will at its option and expense either procure
for Reseller the right to continue purchasing, using and selling
such Product (or licensing such Software) in accordance with this
Agreement, or replace or modify such Product so that it becomes
non-infringing, or, if Reseller has to credit or refund an End-User
on such account, grant Reseller a credit based on a five-year
straight-line depreciation of the price of such Product upon return
of the Products to EMC.
12.4 LIMITATIONS. EMC shall have no liability to Reseller pursuant to
Section 12.3 to the extent that, the alleged infringement is based
on (i) use, sale or license of any Products in combination with
other equipment or software not provided by EMC; (ii) use of any of
the Products in a manner or for a purpose for which they were not
designed, as specified in EMC's written specifications; (iii) use of
Software when use of a later release of the Software which EMC has
made available to Reseller as a recommended ECO would have avoided
such infringement; (iv) modifications to any Product or Software not
made by EMC; or (v) any intellectual property right owned or
licensed by Reseller from a licensor other than EMC.
12.5 NO OTHER LIABILITY. THIS ARTICLE STATES THE ENTIRE LIABILITY OF EMC
AND ITS LICENSORS AND SUPPLIERS WITH RESPECT TO ALLEGED
INFRINGEMENTS OF PATENTS, COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY
RIGHTS BY THE PRODUCTS AND SOFTWARE, OR ANY PART OF THEM, OR BY
THEIR OPERATION, PURCHASE, LICENSE, USE OR SALE.
13.0 TERMINATION AND DEFAULT
13.1 DEFAULT; REMEDIES. Failure of either Party to pay or perform any of
its obligations hereunder within thirty (30) days after receipt of
written notice from the other Party describing the nature of the
nonperformance shall constitute default, except for Reseller's
failure to pay hereunder, which will require only ten (10) days
prior written notice of default. Upon an event of default continuing
after the expiration of such 30- (or 10-) day period, the
non-defaulting Party may either suspend all or any portion of its
obligations pending completion of corrective action by the noticed
Party, or may terminate this Agreement. Relative to defaults
comprising more than a failure to pay money, if within such 30-day
period, after receipt of written notice from the other Party
describing the nature of the non-performance, either the default is
cured or the non-performing Party submits in writing a plan for
curing the non-performance that is reasonably agreeable to the
noticing Party, then termination of this Agreement shall not be a
remedy during the timely and efficient execution of such plan.
Termination or suspension of performance by the noticing Party shall
not be deemed a waiver of any of its rights or of the defaulting
Party's obligations under this Agreement. This provision does not
release either Party from any obligations under this Agreement
which, pursuant to this Agreement, are to be fulfilled within a
shorter time period than the aforementioned period(s).
13.2 TERMINATION FOR CAUSE. Either party may at its option and upon
written notice to the other party terminate this Agreement, and/or
suspend its performance hereunder, if: (i) a material violation of
this Agreement by the other party is not remedied within thirty (30)
days after written notice of the violation or such longer period as
may
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reasonably be required given the exercise of due diligence and
provided efforts to cure the default are initiated within such
period and diligently pursued thereafter; or (ii) the other party
admits in writing its inability to pay its debts generally as they
become due, or executes an assignment for the benefit of creditors
or similar document; or (iii) a receiver, trustee in bankruptcy or
similar officer is appointed for the other party's property; or (iv)
the other party breaches Section 18.2 (Confidential Information), or
Article 16 (Software), or (v) a material portion of the equity or
assets of the other party is transferred or this Agreement is
assigned or the other party is fully or partially acquired by or
merges with a third party, or any third party acquires a controlling
interest in the other party, except as permitted by or consented to
by the other party pursuant to Section 18.7 (Assignment), below.
13.3 EFFECT OF TERMINATION. In the event of any termination, the
provisions of this Agreement shall continue to apply to all Purchase
Orders accepted by EMC prior to the effective date of such
termination. Termination of this Agreement shall not relieve either
party from making payments which may be owed to the other party
under the terms of this Agreement. Termination shall not exclude
other remedies for failure of a party to perform its obligations.
The provisions of this Agreement shall, to the extent applicable,
survive termination. Termination does not relieve either party from
on-going Support related initiatives or contractual obligations
entered into during the term of the Agreement. Upon termination by
EMC for cause, all monies due to EMC hereunder shall become
immediately due and payable by Reseller to EMC.
14.0 PROPRIETARY RIGHTS
14.1 PROPRIETARY RIGHTS. Reseller's Forecasts and portions of data and
information supplied by EMC relating to Product are proprietary and
will be so marked. EMC and Reseller shall abide by such markings.
EMC retains for itself exclusively all proprietary rights (including
manufacturing rights) in and to all designs, specifications,
engineering details and other data and information pertaining to
Product provided or offered to Reseller, and to all discoveries,
inventions, patent rights, products and all other property rights
arising out of work done solely by EMC or jointly with Reseller,
including without limitation to rights relating to improvements or
modifications to Product arising from such work of EMC. A copyright
notice on any data does not by itself constitute or evidence a
publication or public disclosure.
14.2 TRADEMARKS. Nothing contained in this Agreement shall be construed
as licensing either Party to use any trademark or trade name owned
or used by the other Party without the prior written consent of the
other Party. However, during the term of this Agreement and so long
as Reseller remains in good standing hereunder, Reseller shall have
the right to use those EMC trademarks set forth on Exhibit B in
connection with the use, marketing, copying, distribution, sale,
rental, leasing and licensing of the Products sold hereunder. The
use by Reseller of any EMC owned trademarks and trade names shall be
restricted to use beneficial to EMC and shall be subject to EMC's
prior written approval at all times, which shall not be unreasonably
withheld or delayed.
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14.3 U.S. GOVERNMENT DATA RIGHTS: The Software and Documentation is
"commercial computer software" and "commercial computer software
documentation" as those terms are defined in the U.S. Government
Federal Acquisition Regulations. If Reseller is a unit or agency of
the United States Government, then the United States Government's
rights with respect to the Software and Documentation are limited by
the terms of this Agreement, pursuant to FAR Section 12.212(a)
and/Or DFARS Section 227.7202-1(a), as applicable.
15.0 SERVICE
15.1 EMC SUPPORT OF RESELLER'S SUPPORT ORGANIZATION: EMC will during the
term of this Agreement, and provided Reseller is not in default,
make available to Reseller those reseller support services described
in the "EMC CLARiiON Services Guide for Partners" (the "SERVICES
GUIDE") insofar as applicable to the Parties' relationship under
this Agreement. EMC reserves the right to amend and modify the
Services Guide from time to time, in EMC's sole discretion. Reseller
shall be notified of any change to the Services Guide affecting
Reseller's rights hereunder. To the extent this Agreement states any
obligation in conflict with the Services Guide, the provisions of
this Agreement shall control.
15.2 RESELLER SUPPORT. The terms under which Reseller shall be trained to
provide support of Products during a transition period are set forth
in Exhibit D, which is incorporated herein. The terms under which
Reseller will provide support for Clariion Products after a
transition period are set forth in Exhibit E, which is incorporated
herein.
15.3 TRAINING: Insofar as applicable to Products purchased hereunder by
Reseller, EMC shall make available to Reseller solely for support of
Products purchased hereunder appropriate standard or customized
support training courses relative to the Products as and when the
same are available, upon EMC's terms and charges for such courses.
16.0 SOFTWARE
16.1 GRANT OF LICENSE. EMC hereby grants to Reseller a personal,
non-transferable, non-exclusive right and license (and as to items
(b) and (c) below, a right to sublicense to End-Users) during the
Term of this Agreement:
(a) to resell Equipment;
(b) to transfer Core Software to End-Users, solely in conjunction
with the reselling of a Designated System; and
(c) to transfer the Enterprise Storage Software to End-Users for
use with a Designated System.
16.2 LICENSE AGREEMENT. Reseller, prior to the transfer of any Software
to an End-User, shall ensure that each End-User is legally bound and
obligated by a software license agreement containing, at a minimum,
the terms set forth in Exhibit C (Minimum Terms of End-User
License).
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16.3 NO MODIFICATION. Neither Reseller nor any of Reseller's employees or
agents shall without the prior written consent of EMC modify,
enhance, supplement, reverse assemble, reverse compile, reverse
engineer or otherwise reduce any Software in whole or in part to
human readable or source code form. Reseller shall promptly report
to EMC any violation of this paragraph and shall take further steps
as may be reasonably required by EMC to remedy any such violation
and to prevent future violations.
16.4 NO UNAUTHORIZED COPYING. Reseller shall not make copies or media
translations of Software or Documentation, in whole or in part,
without EMC's prior written approval, and all such copies and media
translations shall include EMC's copyright, trade secret or other
proprietary notices.
16.5 SOFTWARE MAINTENANCE. See Exhibit F.
17.0 DOCUMENTATION
17.1 END-USER DOCUMENTATION. EMC shall provide to Reseller for Reseller's
use a single reproducible copy of standard items of end-user
(customer) documentation ("END-USER DOCUMENTATION"). Incident to and
for the sole purpose of supporting the sale and use of Products,
Reseller shall have the right to reproduce and distribute reasonable
quantities of End-User Documentation to its End-Users in conjunction
with sales and support of Product(s) and likewise to create and so
distribute derivative works there from under Reseller's own name,
provided that all whole or partial copies include all applicable
copyright and other proprietary notices and software license terms
as required by Article 16 (Software). EMC shall have the right, upon
request, to review all such derivative Documentation created by
Reseller before release of such Documentation by Reseller.
17.2 SUPPORT DOCUMENTATION. EMC shall provide to Reseller solely for
Reseller's internal use for the purpose of selling, marketing and
supporting Products sold hereunder, the standard support
Documentation normally supplied generally by EMC to its Resellers
and such other items of technical Documentation as it may from time
to time publish for the use of its Resellers similarly situated.
17.3 NO MODIFICATIONS. Reseller will not, without the express written
permission of EMC, change the EMC copyright notices or software
legends or proprietary notices which appear in any Documentation or
Software.
17.4 SERVICE DOCUMENTATION. EMC shall provide Reseller with Service
Documentation as set forth in Exhibit D.
18.0 GENERAL PROVISIONS
18.1 NOTICES. Any notice which may be or is required to be given under
this Agreement shall be in writing, sent by certified mail or
courier, fees prepaid and in each case providing for proof of
delivery. Notices shall be deemed to have been given when received,
addressed in the manner indicated below or at such alternate
addresses as the parties may from time to time inform the other.
12
If to EMC: If to Reseller:
Attention: Vice President Attention: CFO and SVP Product Marketing
Global Alliances Division MTI Technology Corporation
XXX Xxxxxxxxxxx 00000 Xxxxxxxx Xxxxxx
0 Xxxxxx Xxxxx Xxxxxx, XX 00000
Xxxxxxxxx, XX 00000 X.X.X.
X.X.X.
with a copy to:
with a copy to:
Attention: Xxxxxx Xxxxxx Xxxx, Esq.
Attention: Office of General Counsel Xxxxxxxx & Xxxxxxxx LLP
XXX Xxxxxxxxxxx 00000 XxxXxxxxx Xxxxxxxxx
000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx 00000-0000
Xxxxxxxxx, XX 00000 XXX
X.X.X.
Facsimile communications shall also be effective, if actually
received by the person to whose attention written notices are to be
directed pursuant to this Article, and provided that confirmatory
notice is made as provided above. The Parties' designated telephone
numbers for purposes of facsimile communications, subject to
modification in the future by written notice to the other party, are
as follows:
If to EMC: If to Reseller:
Tel: 1 - 508 - 435 - 1000 Tel:________________________
Fax: 1 - 508 - 497 - 6915 Fax:________________________
18.2 CONFIDENTIAL INFORMATION. In the course of the relationship
contemplated under this Agreement, each party may disclose or make
available to the other party confidential and/or proprietary
information of its own or of third parties, including without
limitation specifications and designs of EMC and pricing and
customer information of Reseller's. Without limitation, EMC
considers all information contained in the Software and in
documentation for Products to be trade secrets of EMC. Reseller may
make available to EMC information concerning its requirements for
Products hereunder. EMC and Reseller each agrees to use reasonable
efforts, such as it uses with respect to its own confidential and/or
proprietary information of a similar nature, to identify such
confidential information as being its confidential information, and,
upon receipt, not to disclose such information as properly
identified to any third party (other than its accountants, attorneys
and other consultants or representatives under a similar obligation
to maintain confidentiality), and to use such information solely for
the purposes for which it is disclosed, i.e. the furtherance of the
relationship between the parties hereunder and the marketing and
support of Products purchased by Reseller from EMC. However, the
foregoing restrictions shall not apply to information that is: (a)
in the possession of the receiving party prior to its disclosure and
not subject to other restrictions on disclosure or use; (b)
independently developed by the receiving party; (c) publicly
disclosed by the disclosing party; (d) rightfully received by the
receiving party from a third party without restrictions on
disclosure or
13
use; (e) approved for unrestricted release or unrestricted
disclosure by the disclosing party; (f) available by the inspection
of products or services marketed without restrictions or offered for
sale or lease in the ordinary course of business by either party or
others; or (g) produced or disclosed pursuant to applicable laws,
regulations or court order, provided the receiving party has given
the disclosing party the opportunity to defend, limit or protect
such production or disclosure. All confidential information supplied
by each party to the other will be immediately returned upon
termination of this Agreement, or destroyed and a certification of
destruction provided.
18.3 PUBLICITY. This Agreement and the terms of the relationship between
Reseller and EMC shall be treated by Reseller and by EMC as each
treats its own confidential information, and no press releases and
other like publicity of any nature regarding this Agreement shall be
made without the other party's written or electronic approval, which
approval shall not be unreasonably withheld. Notwithstanding
anything to the contrary, the foregoing restrictions shall not apply
to disclosure of information provided or disclosed pursuant to
applicable laws, regulations or court order, provided the disclosing
party has given the nondisclosing party the opportunity to defend,
limit or protect such production or disclosure.
18.4 COMPETITIVE PRODUCTS AND SERVICES. Neither this Agreement nor the
parties' relationship or activities hereunder will impair any right
of EMC or Reseller to market, directly or indirectly, other products
or services competitive with those offered by the other party, nor
require a party to disclose any trade secret, confidential or
proprietary information to the other party. Without limitation, EMC
shall be free to market, directly or indirectly, Product to other
customers.
18.5 LIMITATION OF REMEDY AND LIABILITY:
(a) GENERAL LIMITATION. IN NO EVENT WILL EITHER PARTY BE LIABLE TO
THE OTHER HEREUNDER FOR (A) INCIDENTAL, INDIRECT, SPECIAL,
CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR (B) ANY DAMAGES
WHATSOEVER RESULTING FROM THE LOSS OF USE, DATA OR PROFITS,
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM
THE USE OR PERFORMANCE OF THE PRODUCT, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, EXCEPT IN THE CASE OF A BREACH OF
SUCH PARTY'S OBLIGATIONS WITH RESPECT TO CONFIDENTIAL
INFORMATION, SOFTWARE LICENSING OR OTHER INTELLECTUAL PROPERTY
RIGHTS, TO THE EXTENT SUCH DAMAGES CONSTITUTE THE MEASURE OF
DAMAGES UNDER APPLICABLE LAW.
(b) LIMITATION OF AMOUNT. EMC'S ENTIRE LIABILITY HEREUNDER FOR ANY
CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO CONTRACT, TORT,
AND NEGLIGENCE CLAIMS, AND REGARDLESS OF THE FORM OF ACTION,
SHALL NOT EXCEED IN THE AGGREGATE THE LESSER OF EITHER [*]
(U.S.) DOLLARS OR [*]. EXCLUDED FROM THIS LIMITATION ARE
AMOUNTS PAID OR INCURRED BY EMC UNDER [*].
14
(c) RESELLER'S INDEMNITY. Reseller shall indemnify and hold EMC
harmless against all loss, cost, damage, claims and expense,
including without limitation attorneys' fees, asserted by
End-Users as a result of Reseller's acts or omissions which
constitute a breach of Reseller's obligations with respect to
Products purchased under this Agreement, or arising from such
claims.
(d) CLAIMS; LIMITATION OF ACTION. Any right to damages which
Reseller may have under the terms of this Agreement shall be
conditional upon such party notifying the other party in
writing promptly after such party knows or should have known
of such damages. No claim arising out of this Agreement,
except for EMC's claims against Reseller for failure to pay
for Products or either party's claims under Section 18.2, may
be brought more than eighteen (18) months after such claim has
accrued.
* Confidential Treatment Requested
18.6 GOVERNING LAW. This Agreement shall be governed and construed in all
respects in accordance with the substantive laws of the Commonwealth
of Massachusetts, U.S.A., excluding its conflicts of laws rules and
excluding the United Nations Convention on the International Sale of
Goods. Reseller consents and submits to the jurisdiction and venue
of the Massachusetts courts and the U.S. Federal courts sitting in
Massachusetts.
18.7 ASSIGNMENT. Except as expressly permitted herein, neither party
shall assign any right or delegate any obligation under this
Agreement and any attempted assignment or delegation except as
permitted shall be void. This prohibition shall not apply to
assignments by EMC of money due or to become due hereunder, nor to
EMC's right to subcontract portions of the manufacture of Product or
of its other obligations hereunder. EMC may assign this Agreement to
its affiliates and subsidiaries, and may appoint another EMC entity
as its representative and agent. Consent of assignment in the case
of succession by merger, consolidation or other form of corporate
reorganization shall not be unreasonably refused, except in the case
of a change of control of the other party's business where EMC deems
the successor entity to be a competitor of EMC. No assignment shall
in any event relieve the assignor who shall remain with assignee
jointly and severally liable.
18.8 AMENDMENT. No modification, termination, extension, renewal, waiver,
or addition to the terms of this Agreement shall be binding upon a
party unless set forth in a written amendment signed by an
authorized representative of that party.
18.9 FORCE MAJEURE. Neither party shall be liable to the other for its
failure to perform any of its obligations hereunder during any
period in which such performance is delayed by circumstances beyond
its reasonable control including, but not limited to, fire, flood,
war, embargo, strike, riot, inability to secure materials and
transportation facilities, or the intervention of any governmental
authority.
15
18.10 SEVERABILITY. If any provision of this Agreement is held invalid by
any law, rule, order or regulation of any government, or by the
final determination of any court, such invalidity shall not affect
the enforceability of any other provisions not held to be invalid.
Clause headings and captions are used in this Agreement for
convenience of reference only and shall not affect the
interpretation of this Agreement.
18.11 ENTIRE AGREEMENT. This Agreement and its Exhibits constitute the
entire agreement of the parties as to the subject matter hereof, and
supersedes any and all prior and contemporaneous oral or written
understandings and agreements as to such subject matter, including,
without limitation, the Nondisclosure Agreement between the parties
dated March 6, 2003 and that certain Basic Ordering Agreement for
Reselling, dated as of March 6, 2003, by and between EMC and
Reseller. A waiver by either party at any time of its rights
resulting from breach of this Agreement by the other party shall not
constitute or be deemed to be a waiver of rights concerning a
subsequent breach. A waiver at any time by either party of any
condition of this Agreement shall not operate thereafter as a waiver
of the same or any other condition. This Agreement is solely between
EMC and Reseller, and does not create rights in third parties; there
are no third-party beneficiaries to this Agreement.
18.12 [*]
* Confidential Treatment Requested
Agreed by the parties, as of the Effective Date stated above
XXX XXXXXXXXXXX ("EMC") MTI TECHNOLOGY CORPORATION ("RESELLER")
By:___________________________________ By:____________________________________
Name:_________________________________ Name:__________________________________
Title:________________________________ Title:_________________________________
Date:_________________________________ Date:__________________________________
16
EXHIBIT A
1. CLARIION PRODUCTS. The lead-time for Clariion Products under this Exhibit
is [*] Business Days.
If Reseller cancels an Order for Clariion Products within five (5)
Business Days after receipt of EMC's Acknowledgement of the Order, then no
cancellation charges shall be imposed on the Reseller. If Reseller cancels
an Order for such Products more than five (5) Business Days after such
Acknowledgement, then EMC may impose reasonable re-stocking fees (not to
exceed ten percent (10%) of the original Order), except in the case of
cancellation due to EMC failure to meet agreed upon Delivery date.
2. ALL OTHER PRODUCTS. The lead-time for all other Products under this
Exhibit is [*] Business Days.
[*]
* Confidential Treatment Requested
X-0
XXXXXXX X-0
PARTS DESCRIPTION AND PRICE SCHEDULE
1. The lead-time established for Parts is set forth in Exhibit A.
[*]
* Confidential Treatment Requested
X-0-X-0-0
XXXXXXX X-0
(PART 2)
[EMC's current price list]
X-0-0X-0-0
XXXXXXX X-0
XXXXXX XXXXXX
Xxxxxx Xxxxxx/Xxxxxxxxx: The geographies listed in Exhibit G.
A-5-A-2-1
EXHIBIT A-3
WARRANTY
1. WARRANTY. Subject to Paragraph 7 below, EMC warrants that the Products
supplied under this Agreement shall be free from defects in material and
workmanship and shall perform substantially in accordance with EMC's
written Product Specifications for the warranty period specified below,
calculated from the date of shipment from EMC's plant of manufacture:
- Clariion Equipment and Parts (other than disks)
listed in Exhibit A: [*]
- Clariion Fibre Disks (as contained in disc modules,)
listed in Exhibit A: [*]
- Clariion ATA Disks (as contained in disc modules)
listed in Exhibit A: [*]
- Clariion Replacement Parts: [*]
- All Non-Clariion Equipment and Parts [*]
- Out-of-warranty repairs: [*]
- Enterprise Storage Software: [*]
* Confidential Treatment Requested
2. WARRANTY DESCRIPTION. EMC's entire liability and Reseller's exclusive
remedy under Paragraph 1, above, shall be for EMC to use reasonable
efforts to remedy defects covered by these warranties within a reasonable
period of time or, at EMC's option, either to replace the defective
Material or to correct the defective Software or to refund the amount paid
by the Reseller for such Material or Software, as depreciated on a
straight-line basis over a [*] year period upon return of such Material or
Software to EMC. Without limitation, EMC does not warrant that the
operation of Software will be uninterrupted or error free, or that all
Software defects can be corrected. Reseller's obligation hereunder is to
claim warranty service upon, and to ship to EMC only the defective Part
and not to return the entire Product to EMC. Unless Reseller selects the
Advanced Replacement Option under Paragraph 4, below, or a Dead-on-Arrival
replacement option under Paragraph 5, below, a replacement Part shall be
shipped to Reseller no later than thirty (30) days after the defective
Part is received at EMC's North Carolina repair facility. Reseller shall
obtain a Return Material Authorization (RMA) number from EMC before
sending any defective Part or other Material to EMC. EMC will own all
replaced Equipment and Software; Reseller shall return the replaced
Equipment and Software to EMC upon EMC's request.
* Confidential Treatment Requested
C-A-3-1
3. TRANSPORTATION. To receive warranty service, Reseller shall ship, at
Reseller's own expense, all defective Material to EMC's designated
manufacturing or repair facility. EMC is responsible for paying return
transportation charges for shipping replacement Material to Reseller if
within the United States or if outside the United States, to Reseller's
service operations center in the United States, or Europe, or as EMC may
otherwise agree. Insofar as practicable, the parties will seek to arrange
that only the defective part or component shall be returned to EMC for
warranty service.
4. ADVANCED REPLACEMENT OPTION. Reseller may request an Advanced Replacement
Option, where EMC shall undertake to ship a replacement Part to Reseller
before receiving the defective Part from Reseller. EMC will ship expedited
advance replacement repairs within 48 hours of RMA requests by MTI. The
fee for this service is $[*] per repaired part in addition to any repair
charges that may be applicable. However, MTI will be granted free advanced
replacements, the amount in any month equal to [*]% of the average monthly
returns over the prior [*] months. If Reseller does not return the
defective Part to EMC's designated manufacturing or repair facility within
thirty (30) days after Reseller's request for an Advanced Replacement,
Reseller shall pay EMC the then prevailing list price for the replacement
Part. During the initial quarter, EMC shall provide Reseller with ten (10)
advanced replacement parts without service charge.
* Confidential Treatment Requested
5. DEAD-ON-ARRIVAL ("DOA") WARRANTY. A Product shall be considered DOA if it
is located within the U.S. or Canada or the European Union and exhibits
symptoms of a component failure or misadjustment within thirty (30) days
after shipment from EMC's manufacturing facility. If a Product is
considered DOA, EMC will endeavor at no charge to Reseller to ship a
replacement Product or appropriate replacement Part to Reseller within 48
hours after EMC's receipt of notification of the DOA condition. Reseller
shall obtain an RMA for the defective Product or Part, and if Reseller
does not return the defective Product or Part to EMC's designated
manufacturing or repair facility within thirty (30) days, Reseller shall
pay EMC the then prevailing list price for such Product or Part.
6. NON-DEFECTIVE PARTS. If EMC cannot validate that a returned Product or
Part is defective, Reseller shall pay EMC a reasonable service fee (not to
exceed 15% of the then prevailing repair list price) for testing and
handling, and the Product or Part shall be returned to Reseller as
received.
7. EXCLUSION. Warranties are extended only to Reseller and may not be
transferred. Reseller agrees to be solely responsible to establish and
service any and all warranties to its direct and indirect customers.
Warranty claims will be processed only at those EMC facilities which EMC
may from time to time designate as designated repair facilities hereunder.
Warranties do not apply to Material on which the original identification
marks have been removed or altered, or to defects or failure where such
defects or failure are caused by: (i) accident, neglect or misuse; (ii)
failure or defect of electrical power, external electrical circuitry,
air-conditioning or humidity control; (iii) the use of parts not provided
by EMC; (iv) modification, adjustment, repair or servicing of the Material
by any party other than EMC; (v) causes not arising from fault of EMC
during shipment to or from Reseller; (vi) modifications or alterations
made to the Material by Reseller or any third party; (vii) use of customer
replaceable units ("CRUs") or any components in a CRU other than those
sold to
C-2A-3-2
Reseller hereunder; or (viii) failure of Reseller to comply with any of
EMC's return procedures.
8. LIMITATION. EXCEPT AS EXPRESSLY STATED IN THIS EXHIBIT, EMC MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, BY OPERATION OF LAW OR
OTHERWISE, OF ANY PRODUCTS OR SOFTWARE FURNISHED UNDER OR IN CONNECTION
WITH THIS AGREEMENT. EMC DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, OR
NON-INFRINGEMENT, AND THOSE WARRANTIES ARISING BY STATUTE OR OTHERWISE IN
LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
9. STORED DATA. EMC accepts no liability with respect to data contained in or
recorded on any Material returned to EMC for repair. Reseller is solely
responsible for safeguarding any such data.
10. UNCORRECTABLE DEFECTS. If EMC is unable to correct a defect covered by
these warranties after the expenditure of reasonable efforts and time,
"reasonable" to be defined by the nature of the defect when encountered,
EMC will permit Reseller to return the Material and receive a refund based
on a straight-line depreciation of the price of such Material over five
(5) years. Such refund shall constitute Reseller's sole remedy and EMC's
maximum liability under any warranty with respect to such Material.
11. REPLACEMENT PARTS. Replacement Parts may be new or repaired like-new parts
(provided that like-new parts shall not evidence any diminished
performance), and will not necessarily be the original Part submitted to
EMC for repair.
12. NON-REPAIRABLE PARTS. Not all Parts are repairable. For non-repairable
Parts, all applicable terms of the Warranty as stated in this Exhibit are
effective, except Reseller does not have to return such non-repairable
defective Parts to EMC. Reseller will coordinate with EMC relative to the
handling of non-repairable Parts.
C-3A-3-3
EXHIBIT A-4
OUT-OF-WARRANTY REPAIR
1. DURATION. After the expiration of the Product warranty period, EMC shall
maintain replacement Parts and repair services for all Parts for a period
of five (5) years after the latest date of shipment of the Product from
EMC's place of manufacture to Reseller.
2. REPAIR DESCRIPTION. EMC's obligation is to repair or, at EMC's option,
replace any defective Material, at the charge stated below. Reseller's
obligation will ship the defective Part, and not the entire Product, to
EMC. Reseller shall obtain a Return Material Authorization (RMA) number
from EMC before sending any defective Part or other Material to EMC.
3. REPAIR GOAL. Unless Reseller selects the Advanced Replacement Option under
Paragraph 5 below, EMC will ship the replacement Part to Reseller after
the defective Part is received at EMC. EMC will ship a replacement Part to
Reseller within thirty (30) days after receipt of the defective Part.
4. TRANSPORTATION. Reseller shall ship, at Reseller's own expense, defective
Material to EMC's designated manufacturing or repair facility. Reseller is
also responsible for paying the return transportation charges arising from
EMC's returning the repaired Material to Reseller.
5. ADVANCED REPLACEMENT OPTION. Reseller may request an Advance Replacement
Option, where EMC shall undertake to ship a replacement Part to Reseller
before receiving the defective Part from Reseller. EMC will ship expedited
advance replacement repairs within 48 hours of RMA requests by MTI. The
fee for this service is [*] per repaired part in addition to any repair
charges that may be applicable. However, MTI will be granted free advanced
replacements, the amount in any month equal to [*]% of the average monthly
returns over the prior [*] months. If Reseller does not return the
defective Part to EMC within thirty (30) days after Reseller's receipt of
Advanced Replacement, Reseller shall pay EMC the then prevailing list
price for the replacement Part.
* Confidential Treatment Requested
6. CHARGES. All out-of-warranty repair prices and replacement Parts prices
shall be listed in the standard EMC Spare Parts Price List, as updated by
EMC from time to time. EMC shall provide Reseller with ninety (90) days
notice of price changes.
7. NON-DEFECTIVE PARTS. If a returned Part is found to be non-defective,
Reseller shall pay EMC a reasonable per part service fee (not to exceed
15% of the then prevailing repair list price) for testing and handling and
the Part shall be returned to Reseller as received.
8. REPLACEMENT PARTS. Replacement Parts shall be new, or repaired like-new
parts (provided that like-new parts shall not evidence any diminished
performance), or a suitable plug-compatible replacement Part. Further,
Parts may become obsolete if EMC's supplier terminates supply of a Part,
in which case EMC shall seek to provide Reseller with a one hundred and
twenty (120) day notice of such Part obsolescence.
D-1-A-4-1
9. NON-REPAIRABLE PARTS. Not all Parts are repairable. For non-repairable
Parts, Reseller shall have the right to purchase a new Part at the then
prevailing spare part price under this Agreement.
10. STORED DATA. EMC accepts no liability with respect to data contained in or
recorded on any Material returned to EMC for repair. Reseller is solely
responsible for safeguarding any such data.
D-1-2A-4-2
EXHIBIT A-5
CO-OP PROGRAM
[*]
* Confidential Treatment Requested
A-5-1
EXHIBIT B
EMC TRADEMARKS
FULL LIST OF TRADEMARKS ARE AVAILABLE AT XXX.XXX, AS SUPPLEMENTED FROM TIME TO
TIME.
D-4-B-1
EXHIBIT C
MINIMUM TERMS OF END-USER LICENSE
1.0 LICENSE TERMS
- End-User receives a non-exclusive, non-transferable license to use the
Software solely in conjunction with a Designated System or Host CPU, as
applicable.
- End-User shall not, without the licensor's prior written consent, provide,
disclose or otherwise make available Software in any form to any person
other than End-User's employees, independent contractors or consultants,
who shall use the Software solely for End-User's internal business
purposes.
- End-User may make one copy of the Software for back-up and archival
purposes provided End-User reproduces and includes EMC's copyright and
other proprietary notices on and in any copies.
- No title to, or ownership of, the Software is transferred to End-User.
- Neither End-User nor any of its agents, independent contractors or
consultants shall modify, enhance, supplement, create derivative works
from, reverse assemble, reverse engineer, reverse compile or otherwise
reduce to human readable form the Software without prior written consent.
- End-User's right to use the Software may not be assigned, sublicensed or
otherwise transferred; provided however, that if Customer sells or
transfers the Designated System, EMC shall offer to license the Software
to the purchaser under EMC's standard terms and conditions. EMC reserves
the right to refuse to license its Software to its competitors and for
other good cause.
2.0 DEFINITIONS
- SOFTWARE: Core Software, Enterprise Storage Software and any other
software provided by EMC. (Note: Software does not include Maintenance
Aids.)
- CORE SOFTWARE: EMC microcode, firmware and associated software that enable
a Designated System to perform its basic functions. Core Software does not
include any Enterprise Storage Software.
- ENTERPRISE STORAGE SOFTWARE: Software provided by EMC, other than Core
Software and Maintenance Aids. Enterprise Storage Software consists of:
i. Host-based Software: software that is licensed for use on one or
more Host CPUs, and
ii. Storage System Based Software: software that is licensed for use on
the Designated System and, if applicable, on one or more Host CPUs.
E-C-1
- DESIGNATED SYSTEM: EMC equipment which is identified by serial number or
other specific identification.
- HOST CPU: A central processing unit designated by End-User for operation
with a Designated System.
E-C-2
EXHIBIT D
TRANSITION SERVICE ARRANGEMENTS
The Transition Service Schedule is hereby attached to and made a part of the
Reseller Agreement and shall have the following components:
Attachment D-1 - Technical Support and Training
I. Attachment D-2 - Training Offering
II. Attachment D-3 - Service Delivery Logistics
III. Attachment D-4 - Professional Services
IV. Attachment D-5 - On-site Services
Collectively, the "Services." This Schedule shall apply only during the
Transition period, which begins on the Effective Date of the Reseller Agreement
and expires June 30th, 2003, unless extended by EMC's V.P. for CS Global
Partners and Alliances. EMC shall have the option of utilizing EMC service
partners and subcontractors to perform EMC's obligations hereunder.
The terms and conditions of this Schedule shall apply to all Services purchased
by MTI from EMC, or otherwise provided under this Schedule. For the purpose of
this Schedule, Services includes without limitation all incidental services and
tasks necessary to perform Services (installation and break-fix) and provide
deliverables (including without limitation any software or other goods provided
in connection with the provisioning of Services) and/or documentation that
accompany the deliverables (hereinafter collectively referred to as the
"Deliverables")
EMC will provide to MTI the Services according to the time and manner specified
in this Schedule and the applicable attachments, including any other Statements
of Works that may be executed by both parties. Any Services that are provided by
EMC for a fee, shall only be purchased by MTI upon issuance of a MTI purchase
order ("Order") referencing this Agreement, or any applicable Addendum or
Schedule. Fee structure to be included in the Post Transition Service Agreement
(Exhibit F of the Reseller Agreement).
1. PAYMENT
All payments for Services shall be made in accordance with the applicable
provisions of the Reseller Agreement.
2. ACCEPTANCE
In performance of the Services, EMC agrees to provide MTI with the Deliverables
set forth in the applicable Attachment or Statement of Work, if any. These
Deliverables shall meet the criterion (the "Acceptance Criterion") set forth in
the applicable Attachment or Statement of Work.
3. WARRANTY
Warranty for Services shall be as set forth in the Reseller Agreement.
4. INDEMNITY
The indemnification from EMC to MTI for Services shall be as set forth in the
Reseller Agreement.
D-1
5. GENERAL
5.1 Insurance: EMC will obtain and at all times during the term of this
Schedule maintain at its own expense appropriate levels of insurance.
5.2 Monthly Business Reviews: EMC and MTI will each appoint a Program Manager
to manage the service relationship under this Schedule. The Program Managers
will meet monthly to review MTI field and technical performance and recommend
corrective action in writing accordingly.
5.3 MTI Regions
For purposes of this Schedule, the "MTI Regions" shall include but be limited to
(1) the United States (2) Europe (UK, Germany, France, Ireland, Benelux)
6. CONTACT INFORMATION
[*]
* Confidential Treatment Requested
D-2
ATTACHMENT D-1
TECHNICAL SUPPORT AND TRAINING
[*]
* Confidential Treatment Requested
D-1-1
Incident Severity Chart EMC TECHNICAL SUPPORT RESPONSE GOALS FOR
ESCALATED CUSTOMER INCIDENTS
[*]
* Confidential Treatment Requested
D-1-2
Pricing Proposal for Year one - MTI
ATTACHMENT D-2
TRAINING OFFERINGS
[*]
* Confidential Treatment Requested
X-0-0
XXXXXXXXXX X-0
SERVICE DELIVERY LOGISTICS
[*]
* Confidential Treatment Requested
X-0-0
XXXXXXXXXX X-0
PROFESSIONAL SERVICES
[*]
* Confidential Treatment Requested
X-0-0
XXXXXXXXXX X-0
ON-SITE SERVICES
[*]
* Confidential Treatment Requested
D-5-1
EXHIBIT E
POST TRANSITION SERVICE AND SUPPORT
[*]
* Confidential Treatment Requested
E-1
ATTACHMENT E-1
TECHNICAL SUPPORT AND TRAINING
[*]
* Confidential Treatment Requested
E-1-1
EMC TECHNICAL SUPPORT RESPONSE GOALS FOR
ESCALATED CUSTOMER INCIDENTS
[*]
* Confidential Treatment Requested
E-1-2
Pricing Proposal for Year one - MTI
ATTACHMENT E-2
TRAINING OFFERINGS
[*]
* Confidential Treatment Requested
E-2-1
ATTACHMENT E-3
[*]
* Confidential Treatment Requested
E-3-1
ATTACHMENT E-3
PROFESSIONAL SERVICES
[*]
* Confidential Treatment Requested
E-3-2
ATTACHMENT E-4
ON-SITE SERVICES
[*]
* Confidential Treatment Requested
E-4-1
EXHIBIT F
CLARIION POST-WARRANTY SOFTWARE SUPPORT
THROUGH DECEMBER 31, 2003
[*]
* Confidential Treatment Requested
F-1
EXHIBIT G
LIST OF COUNTRIES REFERENCED
IN SECTION 12.3 (PATENT INDEMNIFICATION)
[*]
* Confidential Treatment Requested
G-1
EXHIBIT H
LIST OF RESELLER'S APPROVED SUBSIDIARIES
[*]
* Confidential Treatment Requested
H-1
