SERVICE PROVIDER AGREEMENT MASTER TERMS
THIS SERVICE PROVIDER AGREEMENT ("Agreement") of these Master Terms ("Master
Terms") and any modules or Exhibits, is made as of the 9th day of December 0000
xxxxxxx XXX XXXXXXXXXXXX XX XXXXXX INC., with its address at 000 Xxxxxxx Xxxxx,
Xxxxxxx, XX X0X 0X0 ("Sun"), and INFOCAST CORPORATION ("Contracting Party") with
its address at Xxxxx 0000, 000 - 0xx Xxxxxx XX, Xxxxxxx, Xxxxxxx X0X 0X0.
BACKGROUND:
A. Sun sells computer hardware and licenses software, as well as
support, consulting and educational services;
B. Service Provider wishes to license software and purchase
certain hardware and other information technology products and
certain support, consulting and educational services from Sun;
C. Sun and Service Provider comprise a number of separate
operating divisions and Affiliated Companies (as defined
below) and Sun and Service Provider recognize the benefits of
having a single contract structure for the sale and purchase
of Products (as defined below) and provision of Services (as
defined below) identified in any commercial price list of Sun
or its Affiliated Companies; and
D. The parties have agreed to a common set of terms as set out
below ("Master Terms") and to such Exhibits as may from time
to time be attached.
The parties agree as follows:
1.0 DEFINITIONS:
1.1. Service Provider means the Contracting Party and all subsidiaries
of Contracting Party which meet the following criteria:
a) subsidiary is located in Canada;
b) Contracting Party owns an interest of more than fifty
percent (50%) or has management control (as defined
by the ability to control the Board of Directors or
its equivalent);
e) subsidiary complies with the terms of this Agreement;
and
d) subsidiary has substantially the same name as the
Contracting Party or is identified to Sun in writing.
1.2. EQUIPMENT means the hardware components (may also be referred to
as hardware) of Products and includes the media on which Software is
loaded.
1.3. SUN PRODUCTS(S) or PRODUCT(S) means the Equipment sold to Service
Provider and/or the Software licensed to Service Provider under this
Agreement
1.4. SERVICE(S) means the consulting, educational and support services
provided to Service Provider under this Agreement.
1.5. SOFTWARE means the software program components of Products in
machine-readable or source code form and related documentation.
2.0 BINDING AGREEMENT
2.1 These Master Terms will apply to and bind any Service Provider
that purchases Products or Services or licenses hereunder and
each of Sun's operating divisions and Affiliated Companies
which executes an Exhibit to this Agreement. For the purposes
of this Agreement, an "Affiliated Company" means any entity of
which Sun owns more than 50%. Unless otherwise specified in
such Exhibit, the execution of an Exhibit by a Sun division
shall bind each Affiliated Company Worldwide with respect to
activity related to such division.
2.2 Separate contracts may be negotiated by each party's operating
divisions or Affiliated Companies, to address different types
of transactions undertaken between them, it being understood
that the parties will use, without change, as many of these
Master Terms as are reasonable in the circurnstanees.
2.3 This Agreement between Service Provider and Sun consists of
these Master Terms and any Modules and/or Exhibits which are
attached hereto or which reference these Master Terms. The
Master Terms describe the general terms by which Service
Provider may purchase Products and Services from Sun and Sun
delivers Products and Services to Service Provider. The
specific terms related to the purchase of Equipment, Software
and/or Services are described in the appropriate Product or
Service Module and/or Exhibits (collectively referred to as
"Modules"). Modules may be added or deleted from time to time
by agreement of the parties, but Service Provider is only
authorized to purchase Products or Services to the extent that
one or more applicable Modules is executed and in force.
3.0 ORDER OF PRECEDENCE
The provisions of any Exhibit will take precedence over any of these
Master Terms, to the extent that they are inconsistent.
4.0 TERM AND TERMINATION
This Agreement commences the later of the effective date set forth
below or the effective date of the first attached Module and will
continue until the expiration or termination of all attached Modules.
Either party may terminate the Agreement or any individual Module
immediately, in its discretion, by written notice: (a) upon material
breach by the other party, if the breach cannot be remedied; or (b) if
the other party fails to cure any material remediable breach within 30
days of receipt of written notice of the breach. Rights and obligations
under this Agreement and/or any Module which by their nature should
survive, will remain in effect after termination or expiration of this
Agreement.
5.0 PAYMENT TERMS
Prices and fees for Products and Services are exclusive of all shipping
and insurance charges, and do not include sales tax, value added tax or
any other tax based upon the value of Products and/or Services. Service
Provider is responsible for payment of all such charges and taxes.
Service Provider agrees to pay Sun any sums when due pursuant to the
applicable Exhibit attached hereto. Interest will accrue from the date
on which payment is due at the lesser of 15% per annum or the maximum
rate permitted by applicable law. Service Provider grants Sun a
purchase money security interest in Products which have not been paid
for, including all improvements, modifications, or replacements and
proceeds thereof. Service Provider further grants Sun the right to
execute all documents necessary to perfect this security interest. If
Service Provider's Schedules for provision of Service reference a
special discount based on a volume, multi-year service, or other
commitment, and Service Provider fails for any reason to meet that
commitment, Service Provider agrees to pay for discounts received by
Service Provider which are not earned by Service Provider. Discounts
given to Service Provider may not be applicable for new Products
supported by Sun.
6.0 CONFIDENTIAL INFORMATION
If either party desires that information provided to the other party
under an Agreement be held in confidence, that party will, prior to or
at the time of disclosure, identify the information in writing as
confidential or proprietary. The recipient may not disclose such
confidential or proprietary information, may use it only for purposes
specifically contemplated in this Agreement, and must treat it with the
same degree of care as it does its own similar information, but with no
less than reasonable care. These obligations do not apply to
information which: a) is or becomes known by recipient without an
obligation to maintain its confidentiality; b) is or becomes generally
known to the public through no act or omission of recipient, or c) is
independently developed by recipient without use of confidential or
proprietary information. This section will not affect any other
confidential disclosure agreement between the parties.
7.0 LIMITED WARRANTIES
7.1 Sun warrants Products and Services as specified in each
Exhibit.
7.2.a) Sun further warrants that specified versions of Products
identified on Sun's external Web site
(url:xxx.xxx.xxx/x0000/xxx.xxxx) as being Year 2000 compliant
("Listed Products") will not produce errors in the processing
of date data related to the year change from December 31, 1999
to January 1, 2000. Date representation, including leap years,
will be accurate when Listed Products are used in accordance
with their accompanying documentation, provided that all
hardware and software products used in combination with Listed
Products properly exchange date data with them.
7.2.b) Versions of Products identified on Sun's external Web site as
not yet compliant, but which are scheduled to be made
compliant, will become Listed Products when remedial
replacement parts, patches, software updates or subsequent
releases ("Y2K Fixes") are issued and properly installed. Y2K
Fixes for such Products will be issued no later than June 30,
1999.
7.2.c) Other Products are not covered by these warranties.
7.2.d) To the extent that Sun installs Y2K Fixes or performs other
Services under this Agreement for Service Provider, Sun
respectively warrants that:
(i) upon installation of the Y2K Fixes, Products will become
Listed Products; and
(ii) Services performed on Listed Products will not result in
them ceasing to be Listed Products.
7.2.e) Service Provider's sole and exclusive remedy for Sun's breach
of these warranties will be for Sun: (i) to use commercially
reasonable efforts to provide Service Provider promptly with
equivalent Year 2000 compliant products; or (ii) if (i) is
commercially unreasonable, to refund to Service Provider its
new book value for non-compliant Listed Products.
7.3 UNLESS SPECIFIED IN THIS AGREEMENT, OR IN ANY EXHIBIT, ALL
EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE DISCLAIMED,
EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE
LEGALLY INVALID.
8.0 IMPORT AND EXPORT LAWS
All Products, Services and technical data delivered under this
Agreement are subject to U.S. and Canadian export control laws and may
be subject to export or import regulations in other countries. Service
Provider agrees to comply strictly with all such laws and regulations
and acknowledges that it has the responsibility to obtain such licenses
to export, re-export or import as may be required after delivery to
Service Provider.
9.0 AIRCRAFT PRODUCT AND NUCLEAR APPLICATIONS
Service Provider acknowledges that Products are not designed or
intended for use in on-line control of aircraft, air traffic, aircraft
navigation or aircraft communications; or in the design, construction,
operation or maintenance of any nuclear facility. Sun disclaims any
express or implied warranty of fitness for such uses.
10.0 INTELLECTUAL PROPERTY CLAIMS
Sun will defend or settle at its option and expense any legal
proceeding brought against Service Provider, to the extent that it is
based on a claim that Products (or the use of the replacement parts,
enhancements, maintenance releases, and patches ("Materials") provided
to Service Provider by Sun) directly infringe a copyright or a U.S. or
Canadian patent, and will pay all damages and costs awarded by a court
of final appeal attributable to such claim, provided that Service
Provider (i) gives written notice of the claim promptly to Sun; (ii)
gives Sun sole control of the defense and settlement of the claim;
(iii) provides to Sun all available information and assistance; and
(iv) has not compromised or settled such claim. If any Products or
Materials are found to infringe, or in Sun's opinion are likely to be
found to infringe, Sun may elect to: (i) obtain for Service Provider
the right to use such Products and/or Materials; (ii) replace or modify
such Products and/or Materials so that they become non-infringing; or
if neither of these alternatives is reasonably available, (iii) remove
such Products and/or Materials and refund Service Provider's net book
value for these Products and/or Materials. Sun has no obligation under
this Section 10 for any claim which results from: (i) use of Products
and/or Materials in combination with any equipment, software or data
not software or data not provided by Sun; (ii) Sun's compliance with
designs or specifications of Service Provider; (iii) modification of
Products and/or Materials; or (iv) use of an allegedly infringing
version of any Products and/or Materials, if the alleged infringement
could be avoided by the use of a different version made available to
Service Provider. THIS SECTION STATES THE ENTIRE LIABILITY OF SUN AND
EXCLUSIVELY REMEDIES OF SERVICE PROVIDER FOR CLAIMS OF INFRINGEMENT.
11.0 LIMITATION OF LIABILITY
11.1 Except for obligations under Section 10 (Intellectual Property
Claims), or breach of any applicable license grant, and to the
extent not prohibited by applicable law, each party's
aggregate liability to the other for claims relating to this
Agreement, whether for breach or in tort, will be limited to
the amount paid to Sun for Products, Services, or Materials
which are the subject matter of the claims. Liability for
damages will be limited in accordance with the foregoing and
consequential damages excluded even if there is a fundamental
breach of this Agreement.
11.2 Neither party will be liable for any indirect, punitive,
special, incidental or consequential damage in connection with
or arising out of this Agreement (including loss of business,
revenue, profits, use, data or other economic advantage)
however it arises, whether for breach or in tort, even if that
party has been previously advised of the possibility of such
damage.
12.0 FORCE MAJEURE
A party is not liable under this Agreement for nonperformance caused by
events or conditions beyond that party's control, if the party makes
reasonable efforts to perform. This provision does not relieve either
party of its obligation to make payments then owing.
13.0 WAIVER OR DELAY
Any express waiver or failure to exercise promptly any right under this
Agreement will not create a continuing waiver or any expectation of
non-enforcement.
14.0 ASSIGNMENT
Neither party may assign or otherwise transfer any of its rights or
obligations under an Agreement, without the prior written consent of
the other party, except that Sun may assign its right to payment,
assign an Agreement to an Affiliated Company, subcontract the delivery
of Services or Products, or any of these. If Sun elects to subcontract
Services or Product delivery, Sun will remain primarily responsible for
the-delivery of Services or Products.
15.0 NOTICES
All written notices required by this Agreement must be delivered in
person or by means evidenced by a delivery receipt and will be
effective upon receipt.
16.0 SEVERABILITY
If any provision of this Agreement is held invalid by any law or
regulation of any government or by any court or arbitrator, such
invalidity will not affect the enforceability of any other provisions.
17.0 CONTROLLING LANGUAGE
The English version of this Agreement controls, regardless of whether a
translation into any other language is made.
18. SURVIVAL
Rights and obligations under this Agreement which by their nature
should survive, will remain in effect after termination or expiration
hereof.
19.0 GOVERNING LAW
Disputes which cannot be settled amicably will be governed by the laws
of the Province of Ontario Choice of law rules of any jurisdiction and
the United Nations Convention on Contracts for the International Sale
of Goods will not apply.
20.0 ENTIRE AGREEMENT
20.1 This Agreement is the parties' entire agreement relating to
its subject matter. It supersedes all prior or contemporaneous
oral or written communications, proposals, conditions,
representations lions and warranties and prevails over any
conflicting or additional terms of any quote, order
acknowledgment, or other communication between the parties
relating to its subject matte during the term of this
Agreement.
20.2 No modification to this Agreement will be binding, unless in
writing and signed by an authorized representative of each
party.
TO SIGNIFY THEIR AGREEMENT TO THESE TERMS, THE PARTIES HAVE CAUSED THIS
AGREEMENT TO BE SIGNED BY THEIR AUTHORIZED REPRESENTATIVES. THE EFFECTIVE DATE
OF THIS AGREEMENT IS_______________________.
SUN MICROSYSTEMS OF CANADA INC. INFOCAST CORPORATION
By:/s/ Xxxxxx Xx Xxxxx By:/s/ Xxxxx Xxxxxx
------------------------------------- -----------------------------------
Name:Xxxxxx Xx Xxxxx Name:Xxxxx Xxxxxx
----------------------------------- ---------------------------------
Title:MGR Financial Planning Title:Co-Chairman, Infocast Corp.
---------------------------------- --------------------------------
Date: December 19, 1999 Date:December 9, 1999
---------------------------------- ---------------------------------
-8-
EXECUTIVE SERVICE PROVIDER ("SP") PROGRAM EXHIBIT
This Exhibit is effective on ____________________, 1999 ("Effective Date") by
and between SUN MICROSYSTEMS OF CANADA INC. ("Sun"), having a place of business
at 000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx X0X 0X0 and INFOCAST CORPORATION ("SP")
having a place of business at Xxxxx 0000, 000 - 0xx Xxxxxx XX, Xxxxxxx, Xxxxxxx,
X0X 0X0. This is an Exhibit to the Service Provider Agreement Master Terms
between the parties dated ________.
1.1 SCOPE
This Exhibit governs SP's authorization to purchase certain Sun Products
directly from Sun, and perform SP Services to SP's customers other than
governmental entities, departments, agencies and offices. Throughout the term of
this Exhibit, SP's primary business must be to provide facilities and/or
infrastructure for delivery of SP Services, including Web based applications and
IP services to Enterprise customers, consumers or other Service Providers. "SP
Services" are set forth in Attachment A. Authorized Sun Products and buying
locations are set out in Attachment B. In connection with the provision of SP
Services, SP will use Sun Products internally for purposes of providing the SP
Services. SP may not purchase Sun Products pursuant to this Exhibit unless those
Products are necessary for the provision of specified SP Services to SP's
customers or for SP's internal use. Unless SP is accepted into the "SunTone
Elite Program" and a Reseller Addendum is executed by Sun and SP, SP may not
resell Sun Product. If SP resells or transfers new or unused Sun Products to
third parties, this Exhibit will be terminated for material breach.
1.2 BUSINESS PLAN
SP must submit a Business Plan to, and which will be reviewed by, Sun. The
Business Plan will be attached to Attachment B. SP has represented to Sun that
the Business Plan accurately reflects the manner in which SP intends 1) to
utilize Product in conjunction with its SP services, 2) to market and support
Sun Products and 3) market SP's relationship with Sun. Either party may initiate
a review of the accuracy of SP's Business Plan upon thirty (30) days' Notice,
provided that Sun shall initiate no more than one review per calendar quarter.
13 ATTACHMENTS
The Attachments to this Exhibit may be modified only upon the mutual written
consent of the parties. The current version of each Attachments is attached to
this Exhibit and becomes a part hereof.
1.4 PRICES AND DISCOUNTS
SP's net price for Products or spare parts purchased and licensed under this
Exhibit shall be the price set forth in Sun's Canadian End User Price List at
the time SP's order is accepted, less a discount of twenty-seven (27%) on
Category A Products, twenty-two percent (22%) on Category B Products and nine
percent (9%) on Category H Products. Such discounts will not apply to those
Products which are listed as "non-discountable" in the appropriate price list,
nor may they be applied to exceed any listed maximum discount. Such discounts
will apply towards purchases of discountable spare parts, but such discounts
will not apply to purchases of training, installation (except where included in
the purchase price of the Products), consulting, repairs, maintenance work or
similar services and source code license fees. Each year, within thirty (30)
days of the anniversary of the Effective Date of this Exhibit, Sun will
determine SP's discount for the following year based on SP's (i) verifiable
purchases of Products from Sun and Sun authorized resellers during the current
term then ending and, (ii) Sun's then-current discount policies. Price lists and
discounts are subject to change at any time
1.5 SP DEVELOPMENT FUND ("SPDF"). This section governs SP accrual, use, and
reimbursement of SPDF.
a) SP will receive SPDF at a rate equal to one percent (1%) of
its net purchase of Sun Products from Sun directly.
b) Disbursement and use of SPDF shall be as follows: 50% Sun
technology; training, services 50% Marketing Initiatives
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c) Any additional policies and procedures governing the SP's
reporting, use and reimbursement of SPDF will be set forth on
the SP web site, when it becomes available.
d) SP agrees to pay any and all such applicable taxes as set
forth in Section 1.19.
e) To be eligible for reimbursement, all expenditures must be in
Canada.
f) All claims for reimbursement must be received by the
designated co-op agency within 6 months from the accrual date.
Any funds not claimed during this time period will be
forfeited to Sun. SP shall be advised of unused funds at least
thirty (30) days prior to the forfeiture date.
g) Sun shall not be responsible in any way for the acts, errors,
or omissions of the designated co-op agency.
h) Failure to comply with any foregoing obligations will
constitute a material breach of this Exhibit.
1.6 COMPETENCY TRAINING
SP may enroll in Sun's Certification Training Program established for
Sun Service Providers as those classes are established from
time-to-time and set forth on the SP Web site: to be advised.
1.7 SP's OBLIGATIONS
a) SP shall provide monthly productivity status reports ("PSR")
as directed by Sun on the SP web site. If SP does not provide
Sun with PSRs as set forth on the SP web site, Sun may cancel
SP's Business Development Fund accruals and may terminate this
Exhibit.
b) Indemnity. Each party shall indemnify and hold the other
harmless from and against all third party claims for personal
injury or death, as may arise from the negligent performance
or non performance of its obligations under this Exhibit
c) Fair Representation. SP shall display, demonstrate and
represent Sun Products fairly and shall make no
representations concerning Sun or its Sun Products which are
false, misleading, or inconsistent with those representations
set forth in promotional materials, literature and manuals
published and supplied by Sun. SP shall comply with all
applicable laws and regulations in performing under this
Exhibit
d) SUN SPARC Only. SP shall not sell, lease, or otherwise deal in
any product based on SPARC Architecture, unless such product
(i) is a Sun Microsystems of Canada Inc. Product or (ii) is a
"laptop system". A product is a "laptop" system if it is (i)
transportable, (ii) battery operated, (iii) under sixteen (16)
pounds total weight including case, and (iv) packaged without
a CRT. SP is not prohibited by this Exhibit from selling any
product that does not contain the SPARC Architecture.
1.8 TERM AND TERMINATION
A. Term. This Exhibit shall commence on the Effective Date and
shall remain in force until the date established according to
the following schedule:
Effective Date: Expiration Date:
(of each following year)
March 1 - May 31 May 31
June 1 - August 31 August 31
September 1 - November 30 November 30
December 1 - February 28 February 28
It shall be automatically renewed on a yearly basis
thereafter, unless at least thirty (30) days prior to any
year's Expiration Date, Sun or SP tenders Notice of intention
not to renew.
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B. Termination.
a) This Exhibit and/or any Exhibit hereto may be
terminated by either party (i) without cause, for any
reason, on ninety (90) days' Notice to the other
party, (ii) immediately, by notice, upon material
breach by the other party, if such breach cannot be
remedied; (iii) by Notice, if the other party fails
to cure any material remediable breach of this
Exhibit within thirty (30) days of receipt of Notice
of such breach, or (iv) immediately, by Notice, upon
the second commission of a previously remedied
material breach.
b) Sun may terminate this Exhibit immediately, by Notice
in the event of (i) the direct or indirect taking
over or assumption of control of SP or of
substantially all of its assets by any government,
governmental agency or other third party; (ii) Sun
discovers that SP has made a material
misrepresentation or omission in its SP Application;
and (iii) SP makes an unauthorized resale.
C. Effect of Termination.
a) Upon any termination or expiration of this Exhibit,
SP shall no longer be authorized to purchase Sun
Products. In the event of termination for cause, all
outstanding orders are subject to cancellation or
acceptance by Sun. Sun may repurchase and require SP
to sell to Sun any unused Sun Products in SP's
inventory at net invoice price.
b) Rights and obligations under this Exhibit which by
their nature should survive, will remain in effect
after termination or expiration hereof. Neither party
shall be liable to the other for damages of any kind,
on account of the termination or expiration of this
Exhibit in accordance with its terms and conditions.
1.9 NO EXPORT
SP agrees that it will not export Products outside Canada unless SP has been
accepted into Sun's Passport Program and has executed a Passport Exhibit to this
Exhibit. SP recognizes that (i) under the Passport Program, the prices it pays
and the discounts it receives may be different from those stated in this
Exhibit, and that purchases made outside Canada will be subject to local terms
and conditions, and (ii) Sun Enterprise Services will not be obligated to
provide Support Program Modules for services for Products exported hereunder.
1.10 TRADEMARKS LOGOS AND PRODUCT DESIGNS
"Sun Trademarks" means all names, marks, logos, designs, trade dress and other
brand designations used by Sun in connection with Products. SP may refer to
Products by the associated Sun Trademarks, provided that such reference is not
misleading and complies with the then-current Sun Trademark and Logo Policies.
SP shall not remove, alter or add to any Sun Trademarks, nor shall it co-logo
Product. SP is granted no right, title or license to, or interest in, any Sun
Trademarks. SP acknowledges Sun's rights in Sun Trademarks and agrees that any
use of Sun Trademarks by SP shall inure to the sole benefit of Sun. SP agrees
not to (i) challenge Sun's ownership or use of, (ii) register, or (iii) infringe
any Sun Trademarks, nor shall SP incorporate any Sun Trademarks into SP'S
trademarks, service marks, company names, internet addresses, domain names, or
any other similar designations. If SP acquires any rights in any Sun Trademarks
by operation of law or otherwise, it will immediately at no expense to Sun
assign such rights to Sun along with any associated goodwill, applications,
and/or registrations.
SP may use the Service Provider program logo only: (i) as shown in the artwork
provided by Sun; (ii) in pre-sale marketing materials and advertising, but not
on goods, packaging, product labels, documentation or other materials
distributed with Products; (iii) in a manner no more prominent than SP's
corporate name and logo; and (iv) otherwise in accordance with the then current
Sun Trademark and Logo Policies.
1.11 ORDERS AND DELIVERY
SP may submit written Product orders to Sun at any time. However, acceptance of
SP's Product orders will only be effective upon issuance of Sun's order
acknowledgment form. Any subsidiary of SP which is at least 50% owned by SP and
which desires to be an ordering location must agree to bound by the terms of
this Exhibit in writing and must be listed as an ordering location in Attachment
B to this Exhibit. Additional ordering locations may be added by written
request. Sun will use reasonable efforts to meet the delivery date(s) identified
on the acknowledgment
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form. Unless otherwise specified on SP's order, Sun may make partial and invoice
each delivery. Such deliveries will not relieve SP of its obligation to accept
other parts of its order. Title to Equipment, and risk of loss of or damage to
Products, will pass to SP upon shipment by Sun, Ex Works Sun's product delivery
center. Products will be deemed accepted upon receipt by SP. Sun's product
offerings are continually evolving. Accordingly, Sun reserves the right to make
product substitutions and modifications that do not cause a material adverse
effect in overall product performance.
1.12 RESCHEDULING, RECONFIGURATION, AND CANCELLATION CHARGES
SP may reschedule, reconfigure, refuse or cancel the whole or part of any
Product order once, at no charge, provided the written request to do so is
received by Sun at least thirty (30) days prior to the scheduled delivery date
and, in the case of rescheduling or reconfiguration, the requested delivery date
is within thirty (30) days of the original delivery date. If an order for a
Product is rescheduled, reconfigured, refused, or cancelled at SP's request on
any other basis, or if Sun reschedules the Product order because SP fails to
meet an obligation under this Exhibit, Sun maycharge SP a restocking fee equal
to ten percent (10%) of the list price of the rescheduled, refused, reconfigured
or cancelled portion of the order.
1.13 PRODUCT UPGRADES
The list price of Product upgrades is based upon the return to Sun of specified
parts from system(s) being upgraded, as identified in the Sun Canadian End User
Price List. If Sun does not receive the specified parts within thirty (30) days
of upgrade delivery to SP, Sun will invoice SP for the non-returned parts. SP
agrees to pay Sun for such nonreturned parts the difference between the list
price of the purchased upgrade(s) and the list price of the upgraded system(s)
if purchased new.
1.14 RESALE OF EQUIPMENT:
a) INITIAL INTERNAL USE ONLY: Equipment purchased by Customer, at
the discounts provided under this Exhibit, is for the internal
use of Customer only, and may not be resold for a period of
twelve (12) months from the date of delivery, and may not be
resold as "new" at any Time. In the event that Customer
resells Equipment in violation of this provision, and in
addition to any other remedies available to Sun, Customer
agrees to pay to Sun, upon written demand, a sum equal to the
difference between the then current Sun U.S. End User Computer
Systems list price and the price actually paid for the resold
Equipment.
b) FUTURE RESALE CONDITIONS: In the event that Customer resells
Equipment in used condition at least twelve (12) months after
the date of delivery, Customer may transfer the associated
operating system Software license to the purchaser of
Equipment, provided Customer (i) executes and has the
purchaser of Equipment execute the Licensed Software Transfer
Notification/Exhibit (the "Transfer Exhibit") attached to this
Exhibit as Exhibit C and; (ii) returns an executed copy of the
Transfer Exhibit to Sun at the address therein specified.
1.15 PRODUCT WARRANTY
Product warranties may vary depending on the type of Sun Products purchased.
Applicable terms and conditions are as set out in the then-current Sun U.S. End
User Price List. Software provided with Product is warranted to conform to
published specifications for a period of ninety (90) days from the date of
delivery. Sun does not warrant that; (i) operation of any such Software will be
uninterrupted or error free; or (ii) functions contained in such Software will
operate in combinations which may be selected for use by the licensee or meet
the licensee's requirements. These warranties extend only to SP as an original
purchaser. Sun reserves the right to change these warranties at any time upon
notice and without liability to SP or third parties.
a) Limitation of Liability under Warranty: SP's exclusive remedy
and Sun's entire liability under these warranties will be: (i)
with respect to Equipment, repair or at Sun's option,
replacement; and (ii) with respect to Software, using
reasonable efforts to correct such Software as soon as
practicable after SP has notified Sun of such Software's
nonconformance. If such repair, replacement or correction is
not reasonably achievable, Sun will refund the purchase
price/license fee. Unless SP has executed an on-site service
Exhibit, repair or replacement will be undertaken at a service
location authorized by Sun. /
b) No Warranty: No warranty will apply to: (i) any and all
Software customization, such Software is provided "AS IS", and
"WITH ALL FAULTS"; or (ii) any Product that is modified
without
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Sun's written consent or which has been misused, altered,
repaired or used with Equipment or software not supplied or
expressly approved by Sun.
1.16 BINARY CODE LICENSE
a) Grant and Restrictions: SP is granted a non-exclusive and
non-transferable license ("License") for the use of Software
provided with Product in machine-readable form and
accompanying documentation, by the number of users for which
the applicable fee has been paid. Software is copyrighted and
title to all copies is retained by Sun, its licensors or both.
SP will not make copies of Software or accompanying
documentation, other than a single copy of Software for
archival purposes and, if applicable, SP may, for its internal
use only, print the number of copies of on-line documentation
for which the applicable fee has been paid, in which event all
proprietary rights notices on Software will be reproduced and
applied. Except as specifically authorized below, SP will not
modify, decompile, disassemble, decrypt, extract, or otherwise
reverse engineer Software.
b) License to Develop: In the event that SP desires to develop
software programs which incorporate portions of Software
("Developed Programs"), the following provisions apply, to the
extent applicable: Developed Programs are to have an
application programming interface that is the same as that of
Software; fonts within such Software will remain associated
with their toolkit or server; Developed Programs may be used
and distributed, but only on computer equipment licensed to
utilize Solaris operating system software, unless an
additional Developer's License Exhibit has been executed by
Sun and SP; SP is not licensed to develop printing
applications or print, unless SP has secured a valid printing
license; incorporation of portions of Motif in Developed
Programs may require reporting of copies of Developed Programs
to Sun; and SP agrees to indemnify, hold harmless and defend
Sun from and against any losses, expenses, claims or suits,
including attorney's fees, which arise or result from
distribution or use of Developed Programs, to the extent that
such claims or suits arise from the development performed by
SP.
c) Confidential Information: Software is confidential and
proprietary information of Sun, its licensors, or both. SP
agrees to take adequate steps to protect Software from
unauthorized disclosure or use.
d) Termination: The License is effective until terminated. SP may
terminate the License at any time by destroying Software and
accompanying documentation and all copies thereof. The License
will terminate immediately upon Notice from Sun if SP fails to
comply with the terms of this License Section or the
Confidential Information obligations set forth above. Upon
termination, SP will destroy all copies of Software and
accompanying documentation.
1.17 OTHER GENERAL TERMS
a) Injunctive Relief. It is understood and agreed upon that,
notwithstanding any other provisions of this Exhibit, breach
of this Exhibit by a party may cause irreparable damage for
which recovery of money would be inadequate and that either
party shall be entitled to timely injunctive relief to protect
such party's rights under this Exhibit in addition to any and
all remedies at law.
b) Return Of Information. Upon the expiration or termination of
this Exhibit, each party will, upon the written request of the
other party, return or destroy (at the option of the party
receiving the request) all Confidential Information,
documents, manuals and other material specified by the other
party.
c) Headings. The paragraph headings appearing in this Exhibit are
inserted only as a matter of convenience and in no way define,
limit, construe, or describe the scope or extent of such
paragraph or in any way affect this Exhibit.
d) Acknowledgment. The parties hereto each acknowledges that the
provisions of this Exhibit were negotiated to reflect an
informed, voluntary allocation between them of all Asks (both
known and unknown) associated with the transactions
contemplated hereunder. The limitations and disclaimers
related to warranties and liabilities contained in this
Exhibit are intended to limit the circumstances and extent of
liability. The provisions of such sections (and this Section)
will be enforceable independent and severable from any other
enforceable or unenforceable provision of this Exhibit.
Page 5 of 10
e) Reference Customer. Sun will be entitled to use SP as a
reference customer and to refer to SP in any materials in
which Sun's clients and customers are mentioned, subject in
each case to SPs prior approval. Either-party may use the
other's name and logos and related other trade marks, trade
names and service marks in connection with any such materials
with prior written approval of the other party.
f) Exhibits. The attached Exhibits may be modified only upon the
mutual written consent of the parties. The current version of
each Exhibit is hereby incorporated by reference.
TO SIGNIFY THEIR AGREEMENT TO THESE TERMS, THE PARTIES HAVE CAUSED THIS EXHIBIT
TO BE SIGNED BY THEIR AUTHORIZED REPRESENTATIVES. THE EFFECTIVE DATE OF THIS
EXHIBIT IS __________________________.
SUN MICROSYSTEMS OF CANADA INC. INFOCAST CORPORATION
By:/s/ Xxxxxx Xx Xxxxx By:/s/ Xxxxx Xxxxxx
------------------------------------- -----------------------------------
Name:Xxxxxx Xx Xxxxx Name:Xxxxx Xxxxxx
----------------------------------- ---------------------------------
Title:MGR Financial Planning Title:Co-Chairman, Infocast Corp.
---------------------------------- --------------------------------
Date: December 19, 1999 Date:December 9, 1999
---------------------------------- ---------------------------------
