Agreement Number: 271-RSLR-3511
Exhibit 10.65
RESELLER AGREEMENT ("AGREEMENT")
This Reseller Agreement (the "Agreement"), with an Effective Date commencing on
the latest date appearing next to the parties' signatures below (the "Effective
Date"), is between LEGATO SYSTEMS, INC., a Delaware corporation with an office
at 0000 Xxxx Xx Xxxxxx Xxxx, Xxxxxxxx Xxxx, XX 00000, and its subsidiary Legato
Systems Nederlands B.V., with an office at Xxxxxxxxxxx 00, 0000 XX Xxxxxxxxx,
Xxx Xxxxxxxxxxx ("Legato") and MTI TECHNOLOGY CORPORATION, a Delaware
corporation, with its principal place of business at 0000 X. Xx Xxxxx Xxxxxx,
Xxxxxxx, XX 00000 and its Subsidiaries ("Reseller").
1. DEFINITIONS
1.1 AUTHORIZATION CODE: means the code provided to the End-User by Legato for
permanent authorization to use the Software. The Authorization Code is provided
to End-User once the Enabler Code is registered with Legato.
1.2 CONFIDENTIAL INFORMATION: means all items identified as being confidential
by the disclosing party, including: (i) any portion of the Software, in object
and source code form, and any related technology, ideas, algorithms or any trade
secrets; (ii) either party's business or financial information and plans; and
(iii) the terms of this Agreement. "Confidential Information" will not include
information that the receiving party can show: (a) is or becomes generally known
or publicly available through no fault of the receiving party; (b) is known by
or in the possession of the receiving party prior to its disclosure, as
evidenced by business records, and is not subject to restriction; (c) is
lawfully obtained from a third party who has the right to make such disclosure,
(d) is independently developed by the receiving party without the use of the
disclosing party's Confidential Information or (e) that is disclosed under
operation of law.
1.3 DOCUMENTATION: means any user documentation, on any media, provided by
Legato for use with the Software.
1.4 DOMESTIC: means the location is either the United States or Canada.
1.5 ENABLER CODE: means the code provided to the End-User by Legato for
activation of the Software for thirty (30) days. The End-User uses the Enabler
Code prior to receiving the permanent Authorization Code.
1.6 END-USER: means the person or entity that agrees to the terms of Legato's
then-current, standard End-User License Agreement and is authorized to access
and use the Software.
1.7 END-USER LICENSE AGREEMENT: means Legato's then-current, standard End-User
License Agreement included with each copy of the Software
1.8 END-USER SUPPORT: means the remote support service offerings and provision
of Updates provided by Legato to End-Users who have entered into a support
agreement with Legato, and which can be sold directly by Legato or through
Reseller.
1.9 END-USER SUPPORT AGREEMENT: means the specific End-User document containing
terms and conditions which define the Legato-provided technical support offering
and Updates, as applicable, for each Legato support program, which document is
available on the PartnerNet website for each technical support offering.
1.10 INTERNATIONAL: means the location is not in the United States or Canada.
1.11 LEGATO GLOBAL PARTNER PROGRAM GUIDE ("THE GUIDE"): means the then-current
guide for the Territory, which contains the requirements for Reseller's
participation in Legato's authorized reseller programs.
1.12 MEDIA KIT: means the materials, consisting of the object code version of
Legato Software on CD ROM and Documentation, procured by Reseller for the
purpose of marketing, and distributing the Software to End-Users.
1.13 RESELLER: means the third party that agrees to resell Software and End-User
Support to End-Users in accordance with the terms of this Agreement.
1.14 RESELLER SUPPORT SERVICES: means support services provided by Reseller
directly to End-Users who do not purchase Legato support services in the
installation, configuration, operation, post-sales, and diagnosing of reported
problems associated with Software with terms comparable to those of Legato's
standard Support Services
1.15 SOFTWARE: means the Legato computer software programs which are licensed in
object code form, including any error corrections and Updates provided by
Legato.
1.16 SUBSIDIARY: means a company or legal entity which as of the
Effective Date owns and controls, is owned and controlled by, is under common
ownership and control with, MTI Technology Corporation, or in which MTI
Technology Corporation holds a material ownership interest and controls
significant management and decision making authority. For purposes of this
Agreement, the Subsidiaries are listed in Schedule D attached to this Agreement
and incorporated herein.
1.17 TERRITORY: means the geographic area(s) specified in Schedule A of
this Reseller Agreement.
1.18 TECHNICAL SUPPORT: means Xxxxx 0 Support, defined as a level of remote
support provided by Legato
================================================================================
MTI Reseller Agreement 1 Legato Confidential
100402 Worldwide
technical support staff to Reseller and consists of identification and
replication of problems; providing new fixes and workarounds to problems,
resolution of problems through formal problem resolution procedures; and
assistance requiring knowledge of Software. This support is required pursuant to
Section 5.10 and shall be delivered pursuant to the terms and conditions of an
Authorized Technical Support Agreement or an equivalent agreement executed by
the parties.
1.19 TRADEMARK(S): means the trademarks used by Legato from time to time in
connection with the Software. (A non-comprehensive list of Legato trademarks,
which may change from time to time, is available at
xxxx://xxx.xxxxxx.xxx/xxxxxxxxx_xxxx/xxxxxxxxxx.xxx.)
1.20 UPDATES: Releases, Revisions, Fixes, and improvements to the Software that
are generally provided by Legato to its customers upon payment of the annual
Updates fee. Updates do not include those new products, modules or extensions
for which Legato elects to charge separately.
1.21 VOLUME SOFTWARE LICENSE AGREEMENT: means a standard license agreement
between Legato and an End-User which sets forth the terms and conditions for the
End-User's use of the Software, which Reseller is required to deliver to Legato
for Reseller's participation in Legato's volume license procurement and discount
program.
1.22 VOLUME LICENSE PROGRAM REQUIREMENTS AND DISCOUNT: means the requirements
and discounts as specified in the Guide.
2. OWNERSHIP AND ADMINISTRATION OF SOFTWARE.
2.1 OWNERSHIP AND RETENTION OF RIGHTS.
2.1.1 Reseller acknowledges that Legato, and where applicable its
licensors, own and shall retain all right, title and interest in and to: (i) the
Software (including all copies, modifications, and derivative works thereof, by
whomever produced), and Documentation, including all intellectual property
rights embodied therein; (ii) all of the service marks, trademarks, trade names
or any other designations associated with the Software; Legato and/or Legato's
licensors; and (iii) all copyrights, patent rights, trade secret rights, and
other proprietary rights relating to the Software or Documentation. Reseller
further acknowledges and agrees that it shall have no rights with respect to any
of the foregoing other than the rights expressly set forth in this Agreement.
2.1.2 Title to all work product created by Legato under the terms of
this Agreement will remain the property of Legato. To the extent that Reseller's
employees, agents or contractors participate in creating any modifications to
the Software, Reseller assigns all intellectual property rights, in whatever
form they may exist, to such information, inventions, ideas, discoveries or
other matter provided to Legato under this Agreement, except where Legato is
advised otherwise by Reseller that the information provided to Legato
constitutes Reseller's existing intellectual property. To the extent that
information is Reseller's Confidential Information, it will be handled
consistent with the provisions of Section 11, Confidential Information.
2.2 SOFTWARE ACTIVATION. Legato employs Enabler Codes and Authorization Codes
that permit End-Users to use the Software. Legato administers the generation and
distribution of Enabler and Authorization Codes, which administration may be
modified by Legato from time to time. Legato provides an on-line e-Commerce
website for Resellers to procure some of the necessary Software Enabler Codes,
which permit registration and permanent Authorization of some of the Software.
Reseller shall use the e-Commerce website as the preferred method to obtain the
Enabler Codes for that Software available on the e-Commerce website. Reseller
acknowledges that all transactions submitted on the e-Commerce website are
binding against Reseller, and Reseller is obligated to pay Legato the fees
associated with the Software licenses. Reseller's use of the e-Commerce website
is subject to Reseller having a credit line with Legato sufficient to cover the
transactions, and to the Terms of Use contained on the website. Legato reserves
the right to revoke Reseller's use of the e-Commerce website if Reseller is in
breach of this Agreement or of the Terms of Use provided Reseller has been
notified of such a breach by Legato and Reseller has failed to cure pursuant to
Section 9.2. Each user of the e-Commerce website will have separate User
identifier and password, and Reseller will provide Legato with the necessary
information to establish each User identifier.
2.3 EVALUATION SOFTWARE. Reseller may authorize its potential End-Users to use
the Software for evaluation purposes. The Media Kit can be used by the potential
End-User for thirty (30) days, with a one (1) time option, provided to the
potential End-User only, to extend such evaluation period for an additional
thirty (30) days. If the potential End-User decides to permanently license the
Software, Reseller shall follow the procedures established in sub-section 2.2
above.
2.4 ADMINISTRATION OF SOFTWARE. Legato may include on the media on which the
Software is delivered, additional computer programs which are not currently
licensed for use by either Reseller or End-User and to which the Enabler Code or
Authorization Code will not permit access. Inclusion of such additional computer
programs in no way implies a license from Legato. Access or use of such programs
is strictly prohibited unless Reseller or End-User licenses such programs and
the applicable Enabler or Authorization Code is provided thereto.
================================================================================
MTI Reseller Agreement 2 Legato Confidential
100402 Worldwide
3. RESALE RIGHTS AND LICENSE GRANT
3.1 RIGHT TO RESELL SOFTWARE LICENSES. Subject to the terms of this Agreement,
Legato hereby appoints Reseller as Legato's independent, authorized non-
exclusive reseller of the Software and Software products in the Territory and
hereby grants to Reseller during the term of this Agreement a non-exclusive,
non-transferable, royalty-free right and license, in the Territory only, to
resell, market, and distribute Legato's Software, to End-Users in the
marketplace, pursuant to the terms and conditions of Legato's End-User License
Agreement or Volume Software License Agreement.
3.2 RIGHT TO RESELL LEGATO UPDATES AND SUPPORT SERVICES. Subject to the terms of
the Reseller Agreement, Legato hereby grants to Reseller a non-exclusive, non-
transferable right, in the Territory only, to resell, market, and distribute
Legato's Updates and Support Services to End-Users in the marketplace, pursuant
to the terms and conditions of this Reseller Agreement.
3.3 LIMITED INTERNAL USE LICENSE GRANT. Legato hereby grants to Reseller a
free-of-charge, non-exclusive, non-transferable, royalty-free, non-sublicensable
license, in the Territory only, to demonstrate, to install, and to use the
Software and Documentation and Software for the purposes of demonstrating same
and providing Reseller Support Services to End-Users for the Software.
3.4 RESTRICTIONS ON USE. Reseller agrees: (i) not to create or attempt to create
by reverse engineering, disassembly, decompilation or otherwise, the source
code, internal structure, or organization of the Software, or any part thereof,
from any object code or information that may be made available to it, or aid,
abet or permit others to do so; (ii) not to remove any Software identification
or notices of any proprietary or copyright restrictions from any Software or any
support material; (iii) except for archival or back-up copies, not to copy the
Software, develop any derivative works thereof or include any portion of the
Software in any other software program; (iv) not to provide use of the Software
in a computer service, rental or commercial timesharing arrangement in which the
object is to use a single license of Software to provide a commercial service to
other organizations; (v) not to develop any other products containing any of the
concepts and ideas contained in Confidential Information that are not readily
apparent from normal use of the Software pursuant to the license(s) granted
hereunder; (vi) not to develop methods to enable unauthorized parties to use the
Software; and (vii) not to resell Support Services to another Reseller and not
to accept payment from another Reseller for Support Services unless expressly
agreed in writing by Legato.
4. PRICING, PAYMENT TERMS, TAXES, TARGETS AND REVIEWS
4.1 PRICE. Reseller will pay to Legato the then-current list price less the
applicable discount specified in Schedule A for all Software and End-User
Support ordered during the term of this Agreement. Legato shall have the right
at any time upon thirty (30) days notice to revise list prices. All prices are
exclusive of any tax.
4.2 PAYMENT TERMS. Reseller shall pay all invoices without offset within thirty
(30) days of the invoice date. Legato reserves the right to change payment terms
at any time based on Reseller's financial and credit history or status. In the
event that any undisputed invoice is not paid when due, Reseller shall be
subject to a late fee at the rate of 1.5% per month on the outstanding amount or
the maximum rate permitted by law, whichever is less. Payment for Domestic
orders will be in US dollars, and for International orders, payment will be in
Euros.
4.3 RESALE PRICE. Reseller is free to determine its own resale prices for
Software, Updates and Services. No employee or agent of Legato has any authority
to dictate or in any way inhibit Reseller's resale pricing discretion with
respect to the Software, Updates, and Services.
4.4 TAXES.
4.4.1 Reseller is responsible for payment of all taxes of every kind
imposed in connection with the sale to Reseller of Software licenses or services
or which Legato may incur in respect of this Agreement (except for taxes imposed
on Legato's income) including all import duties, customs fees, levies or
imposts, and all sales, use, value added, gross receipts or other taxes of any
nature and any penalties, interest and collection or withholding costs
associated with any of the foregoing items. All such amounts are in addition to
other amounts payable hereunder and this obligation shall survive termination or
expiration of this Agreement.
4.4.2 For shipments within the United States, Reseller may provide
Legato with a tax exemption certificate acceptable to the taxing authorities in
lieu of paying such taxes; however, Reseller shall reimburse Legato for any
fines, penalties, taxes and other charges, including expenses incurred by
Legato, due to Reseller's submission of invalid information.
4.5 TARGETS AND ANNUAL REVIEW. Reseller shall resell a minimum annual net amount
of Software licenses as specified in Schedule A of this Reseller Agreement.
Legato shall review Reseller's performance on a semi-annual basis. If upon the
yearly review, the Reseller has not attained its minimum annual target, then
Legato may, at its sole discretion, terminate this Reseller Agreement pursuant
to Section 8.2 herein or adjust the discount downward for the next year of the
Term to correspond to the discount for the net amount of Software actually
licensed. If Reseller attains at least the minimum sales
================================================================================
MTI Reseller Agreement 3 Legato Confidential
100402 Worldwide
target, then Reseller will receive the discount, which corresponds to the net
amount of Software actually licensed for the next year of the Term. If Reseller
exceeds the sales target listed in Schedule A, and Legato establishes another
tier of benefits within its published reseller program, then Legato agrees to
consider whether Reseller meets the published criteria for the next higher tier
of benefits. If Reseller meets the criteria, then Legato shall offer the next
tier of published benefits to the Reseller and agrees to modify this Agreement
to reflect such changes. The terms of this subsection do not modify or otherwise
limit the sales and/or technical qualification and certification requirements
set forth in paragraphs 5.8 and 5.9 below.
5. RESELLER RESPONSIBILITIES
5.1 PROMOTION OF SOFTWARE. Reseller shall: (i) promote, and solicit orders for,
the Software on a continuing basis; (ii) comply with good business practices and
all applicable laws and regulations; and (iii) diligently perform all other
duties as mutually agreed upon herein.
5.2 END-USER LICENSE. Reseller shall ensure that Legato's End-User License
Agreement is not tampered with or removed from the Software, and in all cases is
delivered to the End User with every item of Software.
5.3 PROPRIETARY NOTICES. Reseller must reproduce and include the copyright
notice and any other notices that appear on the original copy of Software or
Documentation on any copies made by Reseller on any media.
5.4 BUSINESS PLAN AND MONTHLY FORECASTING REQUIREMENTS. Reseller shall submit an
initial plan for its resale of Software, Updates and Services ("Business Plan")
to Legato. As an ongoing condition of this Agreement, Reseller shall submit
ninety- (90-) day rolling sales forecast reports, to be received by Legato's
currently assigned partner development manager no later than one week after the
last day of each month.
5.5 MEDIA KITS. Reseller shall order sufficient Media Kits to meet Reseller's
needs from time to time. Media Kits are not considered Software that is counted
toward Reseller's minimum target nor that may be returned for any reason.
5.6 PROBLEM RESOLUTION. Reseller shall keep Legato informed of significant
problems encountered with the Software and as to any resolutions arrived at for
those problems. Reseller shall communicate to Legato any modifications, design
changes or improvements to the Software suggested by or to Reseller. Reseller
assigns to Legato all intellectual property rights to any and all information,
inventions, ideas, discoveries or other matter pertaining to Legato's Software
or Documentation.
5.7 CREDIT APPLICATION. Reseller shall, as a condition of this Agreement,
provide credit information as may be reasonably requested from time to time by
Legato.
5.8 SALES QUALIFICATION. Reseller agrees to designate headcount for sales
qualification and comply with the Legato authorized sales qualification
requirements as set out in Schedule A and as further defined in the Guide within
one hundred twenty (120) days of the Effective Date of this Agreement, and must
be in compliance with the qualification requirements at all times thereafter,
with the exception that if a qualified employee of Reseller ceases to be
employed by Reseller, then Reseller shall have sixty (60) days to qualify a
replacement employee.
5.9 TECHNICAL CERTIFICATION. Reseller agrees to obtain Legato authorized support
certification as prescribed by Legato in order to provide support to its
End-Users within one hundred twenty (120) days of the Effective Date of this
Agreement or the date the certification testing is available to the Reseller,
whichever date is later. Any Technical Contact not certified within the longer
of such one hundred twenty (120)-day period or the date on which certification
testing is available to Reseller shall be removed from the list of Reseller's
certified employees and will be denied access and/or rights set forth hereunder
until Reseller provides written verification that such certification has
occurred. The technical certification requirements are set forth in Schedule A
and in the Guide. If Reseller fails to become certified in compliance with this
Section of the Agreement, Reseller's rights to resell Software licenses for
those Legato products may be revoked by Legato until Reseller has successfully
been certified in the Software in which it requires certification.
5.10 RESELLER REQUIRED SUPPORT TO END-USERS. Reseller agrees to offer Reseller
Support and/or offer for resale Legato's End-User Support to Reseller's
End-Users. If Reseller offers Reseller Support to its End-Users, then Reseller
is required to purchase Technical Support from Legato pursuant to an executed
Authorized Technical Support Provider Agreement or an equivalent agreement
executed by the parties. If Reseller's End-User purchases End-User Support
through Reseller, Reseller must provide Legato with a purchase order for the
selected technical service and/or Updates along with an End-User Support
Agreement signed by the End-User (available on Legato's website
xxxx://xxxxxxxxxx.xxxxxx.xxx/ or as otherwise designated.) Legato will
countersign the End-User Support Agreement and provide a copy of the signed
agreement to the End User.
5.11 ANNUAL ADJUSTMENT. If Reseller fails to comply with the sales
qualification, technical certification or revenue commitment, then Legato may
terminate this Agreement pursuant to Section 9 or adjust the discount for the
next year of the Term to correspond to the discount for
================================================================================
MTI Reseller Agreement 4 Legato Confidential
100402 Worldwide
the actual number of employees qualified and certified or the actual volume of
Software sold. Reseller agrees to execute a new Schedule A annually to reflect
any adjustment in discount, and acknowledges that in addition to the reasons set
forth in this subsection, Legato may adjust Reseller's discounts annually as
part of overall program changes. In addition, Legato may adjust pricing for
Technical Support pursuant to the executed Authorized Technical Support Provider
Agreement, and Reseller's participation in the Technical Support program is
contingent on Reseller paying the annual fees.
5.12 VOLUME LICENSE DISCOUNT PROGRAM. Legato agrees to provide Reseller
additional volume discounts to the extent that Reseller fulfills all of the
terms and conditions of the Volume License Discount ("VLD") program as set forth
in the Guide.
5.13 PRODUCT RETURNS. Legato will not accept Software returns from Reseller or
End-User, except for (i) Software returns (if any) authorized under Legato's
standard warranty under an End User License Agreement, or (ii) Software returns
received within 30 days from the date of delivery of the Software to Reseller
that result from Legato order processing errors that Reseller can document in
reasonable detail to Legato's satisfaction or (iii) Software order incorrectly
configured by Legato personnel resulting from joint Legato-Reseller sales
activities. The Return request should be routed to XXX@Xxxxxx.xxx for
processing.
6. LEGATO RESPONSIBILITIES
6.1 SUPPORT TO RESELLER. If Reseller purchases Technical Support from Legato,
Legato shall provide Technical Support to Reseller in accordance with the
provisions specified in the Authorized Technical Support Agreement executed by
the parties or an equivalent agreement executed by the parties. Reseller
acknowledges that under no circumstance shall Legato provide any support to any
End-User who purchases Reseller Support Services.
6.2 UPDATES AND SERVICES. Legato will provide Updates to End-Users for one year
from ship date, and to those who have purchased Updates thereafter. However, if
Reseller requests, Legato shall send Updates for Reseller's End-Users to
Reseller to distribute to the appropriate End-User(s).
6.3 LEGATO PROVIDED SERVICES TO END-USER. Legato will provide End-User Support
to End-Users who have purchased Legato End-User Support, which includes End-User
selected technical support and Updates, when applicable.
6.4 COLLATERAL. At its then prevailing rates, Legato will make available to
Reseller, Media Kits and other such marketing, promotional or other sales
materials as Legato may create and deem useful to assist Reseller in its
marketing efforts with respect to the Software.
6.5 TRAINING, QUALIFICATION AND CERTIFICATION. Legato will ensure that, when the
required curriculum, qualification and certification testing are available,
Legato authorized training, qualification and certification will be offered to
Reseller in the installation, use, operation and support of the Software.
6.6 COOPERATIVE MARKETING FUNDS. Legato agrees to accrue on a monthly basis the
percentage of Reseller's monthly net revenue from the sales of Software licenses
as specified in the Legato Global Partner Program Guide for Reseller to support
Legato authorized marketing and promotional activities by the Reseller. These
accrued funds belong to Legato. Unused funds expire and are not available for
reimbursement to Reseller six (6) months after being earned. Reseller must
obtain prior written approval from Legato as specified in Legato's then-current
Cooperative Marketing guidelines in order to qualify for reimbursement using any
portion of accrued co-op funds. All approved expenses will be reimbursed upon
receipt of written proof of performance, including, but not limited to, invoices
and/or receipts.
7. ORDERS AND DELIVERY
7.1 PURCHASE ORDERS. To the extent that Software is available for ordering on
Legato's e-Commerce website, Reseller shall place orders for such Software via
the website. For Software and End User Support Services not available on the
website, Reseller shall submit a signed paper purchase order which contains the
following information:
- Software identification including: part number; description;
quantity; list price; percent discount; and discounted price for
each Software and/or Service;
- Shipment instructions including destination and requested delivery
dates;
- End-User name and postal code;
- The Reseller Agreement number listed above and the statement
"This purchase order is governed solely by the terms and
conditions of Reseller Agreement Number: 271-RSLR-3511"
- Legato customer number, which will be provided to Reseller by Legato
within five days of the Effective Date of this Agreement.
7.1.1 All orders are subject to acceptance by Legato. Nothing
contained in any purchase order, acknowledgment, or invoice shall in any way
modify or amend the terms or conditions of this Agreement provided, however,
that such standard variable terms as quantity, delivery date, and shipping
instructions, as well as tax
================================================================================
MTI Reseller Agreement 5 Legato Confidential
0100402 Worldwide
exempt status, if applicable, shall be specified on each purchase order.
7.2 DELIVERY MEDIA. Upon acceptance of an order by Legato and the satisfaction
of all Legato prerequisites prior to delivery, Legato shall deliver to Reseller,
by full or partial shipment, in tangible form or via electronic delivery, the
Software, Documentation, or collateral as appropriate. All Software,
Documentation or collateral delivered in a tangible form shall be shipped FCA
Legato's dock. Delivery of all Updates shall be "CIP-Destination" for
destinations located in the United States and "DDU-Port of Entry" for non-U.S.
destinations. Fees associated with customs formalities are the responsibility of
Reseller. Legato will make reasonable efforts to meet the estimated delivery
date but shall not be liable for any failure to deliver for causes beyond its
control.
8. METHODOLOGY OF WORLDWIDE TERRITORY.
8.1 Reseller agrees that its International operations shall submit orders for
International delivery to Legato's subsidiary, Legato Systems Nederland B.V. in
The Netherlands as specified in Schedule C. Pricing for International orders is
based on Legato's International Price List. Legato Systems Netherlands BV shall
set up an e-Commerce account for use by Reseller's International operations when
ordering for International delivery. Reseller shall provide Legato with an
e-Commerce Enrollment form. To order Software and End-user Support not on the
e-Commerce system, Reseller agrees to submit a signed paper purchase order as
described in 7.1 to Legato Systems Nederland B.V. as outlined in Schedule C.
8.2 Reseller agrees that its Domestic operations shall submit orders for
Domestic delivery to Legato's US designated site. Pricing for Domestic orders is
based on Legato's US Price List. Legato Systems Inc. shall set up an e-Commerce
account for use by Reseller's Domestic operations when ordering for
International delivery. Reseller shall provide Legato with an e-Commerce
Enrollment form. To order Software and End-user Support not on the e-Commerce
system, Reseller agrees to submit a signed paper purchase order as described in
7.1 to Legato Systems Nederland B.V. as further described in Schedule C.
8.3 Target revenue shall be aggregated from all of Legato's systems and the
review of performance pursuant to Section 4.5 will be based on Reseller's total
purchases of Licenses worldwide as described in Schedule A.
9. TERM AND TERMINATION
9.1 TERM. This Agreement is effective from the Effective Date and shall remain
in effect, until terminated pursuant to the provisions of this Section 9.
9.2 TERMINATION FOR CAUSE. Either party has the right to terminate this
Agreement if the other party breaches or is in default of any material
obligation hereunder (including the failure to make any payment when due) which
default is incapable of cure or which, being capable of cure, has not been cured
within thirty (30) days after receipt of written notice from the non-defaulting
party or within such additional cure period as the non-defaulting party may
authorize in writing.
9.3 TERMINATION FOR FAILURE TO COMPLY WITH SECTION 5.11. If Reseller fails to
comply or refuses to execute a new Schedule A as specified in Section 5.11, then
Legato may terminate the Agreement by providing written notification to Reseller
thirty (30) days prior to such termination date.
9.4 TERMINATION FOR CONVENIENCE. Either party may terminate this Agreement for
convenience by giving a ninety (90) day written notice to the other party.
9.5 TERMINATION FOR BANKRUPTCY. Either party may terminate this Agreement upon
the filing by or against the other party of any action under any federal, state
or other applicable bankruptcy or insolvency law.
9.6 ADDITIONAL CAUSE FOR TERMINATION. In addition to the aforementioned, this
Agreement shall terminate if Reseller:
9.6.1 fails to secure or renew any license, permit authorization or
approval necessary for the conduct of its business in its Territory;
9.6.2 violates the provisions of the license grant restrictions in
Section 3.4, or
9.6.3 ceases to do business or otherwise terminates its business
operations.
9.7 EFFECTS OF TERMINATION. Upon termination or expiration of this Agreement for
any reason whatsoever, all rights and licenses granted to Reseller hereunder,
including, without limitations those granted in Section 3, Section 6.6 and
Section 12, shall immediately terminate. Reseller shall (i) cease all use of
Software and Documentation provided under this Agreement and (ii) return or
destroy and certify such destruction in writing, all Software, Documentation,
Confidential Information and related materials and copies thereof to Legato.
Legato shall return or destroy and certify all such destruction in writing, all
Confidential Information of Reseller and all related materials and copies
thereof to Reseller. In addition to the foregoing, each party agrees that it
shall not, following termination of this Agreement, act in any way to damage the
reputation or goodwill of the other party or any of its products, including
without limitation, the Software.
9.8 NO HARM UPON TERMINATION. Except as otherwise expressly provided herein,
upon the expiration or termination of this Agreement neither party shall be
entitled to, and to the fullest extent permitted by law waives, any statutorily
prescribed or other compensation,
================================================================================
MTI Reseller Agreement 6 Legato Confidential
0100402 Worldwide
reimbursement or damages for loss of goodwill, clientele, prospective profits,
investments or anticipated sales or commitments of any kind.
9.9 RESPONSIBILITIES UPON TERMINATION. Nothing in this Agreement will affect:
(i) the rights and liabilities of either party with respect to Software licensed
to End-Users prior to termination; (ii) any indebtedness then owing by either
party to the other, or (iii) any liability for damages resulting from an
actionable breach.
9.10 SURVIVAL OF TERMS. The following terms shall survive any expiration or
termination of this Agreement: Sections: 1. Definitions; 2.1 Ownership and
Retention of Rights; 3.4 Restrictions on Use; 4. Pricing, Payment Terms, Taxes,
Targets; and Review; 9. Term and Termination; 10. Relationship of the Parties;
11. Confidential Information; 12.2 Defense of Trademarks; 13. Warranty and
Disclaimers; 14. Limitation of Liability; 15. Indemnification; 16. Audit Rights;
19. Enforcement of Agreement; 20. Construction and Interpretation; 2 1.
Miscellaneous; and 22. Entire Agreement.
10. RELATIONSHIP OF THE PARTIES
10.1 INDEPENDENT CONTRACTORS. The relationship of Legato and Reseller
established by this Agreement is that of independent contractors, and nothing
contained in this Agreement shall be construed: (i) to give either party the
power to direct or control the day-to-day activities of the other, or (ii) to
constitute the parties as joint venturers, co-owners or otherwise as
participants in a joint or common undertaking.
10.2 RESELLER'S EMPLOYEES. Reseller is solely responsible for all of its
employees and agents, its labor costs and expenses arising in connection
therewith and for any and all claims, liabilities or damages or debts of any
type whatsoever that may arise on account of Reseller's activities, or those of
its employees or agents in the performance of this Agreement.
10.3 NON-EXCLUSIVE RELATIONSHIP. Nothing in this Agreement shall be construed as
limiting either party's marketing or distribution activities or their right to
enter into similar agreements of any kind in any place.
11. CONFIDENTIAL INFORMATION
11.1 PROTECTION OF CONFIDENTIAL INFORMATION. Each party will protect the other's
Confidential Information from unauthorized dissemination and use the same degree
of care that such party uses to protect its own like information, but in no
event less than a reasonable degree of care. Neither party will disclose to
third parties the other's Confidential Information without the prior written
consent of the other party. Neither party will use the other's Confidential
Information for purposes other than those necessary to directly further the
purposes of this Agreement. Notwithstanding the foregoing, either party may use
or disclose Confidential Information to the extent such party is legally
compelled to disclose such Confidential Information provided, however, that
prior to any such compelled disclosure, the disclosing party will notify the
non-disclosing party and will cooperate fully with the non-disclosing party in
protecting against any such disclosure and/or obtaining a protective order
narrowing the scope of such disclosure and/or use of the Confidential
Information. The parties agree that any breach of this Section would cause
irreparable harm to the disclosing party for which monetary damages would not be
adequate and therefore, the parties agree that in the event of a breach of this
Section 11, the disclosing party shall be entitled to equitable relief in
addition to any remedies it may have hereunder or at law.
11.2 NOTIFICATION OF EMPLOYEES. Each party agrees to take appropriate action by
instruction, agreement or otherwise with its employees, agents and contractors
allowed access to the Confidential Information to satisfy its obligations under
this Section 11.
12. TRADEMARKS AND SERVICEMARKS
12.1 AUTHORIZED USE OF TRADEMARKS. Legato hereby grants, and Reseller hereby
accepts, a non-exclusive, non-transferable royalty-free license to use the
Trademarks and the goodwill associated therewith, in the Territory solely in
connection with marketing, distribution, and licensing of the Software and
Documentation in accordance with this Agreement. Reseller shall not use the
Trademarks or confusingly similar marks in connection with any goods or services
other than the Software, or in a manner that dilutes, disparages, or xxxxx the
reputation of Legato. Reseller agrees that all rights in the Trademarks and the
goodwill related thereto shall remain at all times the sole property of Legato
and all goodwill arising from Reseller's use of the Trademarks shall inure to
the benefit of Legato who will be the sole and exclusive owner of such goodwill.
Reseller agrees not to contest or attack Legato's exclusive rights in the
Trademarks. Reseller agrees at Legato's expense to assist in registration of the
Trademarks in the name of Legato or other party as Legato may designate, in
renewal and maintenance of such registration and in such recording of Reseller
as a user of the Trademarks as Legato may reasonably request. Whenever Reseller
uses the Trademarks in any manner, Reseller shall clearly indicate Legato's
ownership thereof, and shall use the Trademarks in accordance with Legato's
Trademark Usage Guidelines, then in effect. The Guidelines are published at
xxxx://xxx.xxxxxx.xxx/xxxxxxxxx_xxxx/xxxxx.xxx and may change from time to time.
12.2 DEFENSE OF TRADEMARKS. Reseller represents and agrees, on behalf of itself,
its assigns, and licensees, that it shall not claim any ownership right or
interest in any of Legato's intellectual property, including, but not limited
================================================================================
MTI Reseller Agreement 7 Legato Confidential
100402 Worldwide
to, Legato's trademarks, trade names, service marks, copyrights, patents, trade
secret rights, and any other proprietary rights relating to Legato's corporate
identity, or to the Software or Documentation, nor shall Reseller attempt to
register any rights relating to any of Legato's intellectual property. To the
extent that Reseller obtains any rights in any of Legato's intellectual property
not expressly granted in this Agreement, Reseller agrees to assign all right,
title, and interest in such intellectual property to Legato. Reseller agrees not
to contest the validity or enforceability of any patent, copyright, trademark,
trade secret, or similar intellectual property right of Legato relating to the
Software or Documentation. Reseller further agrees not to assert any patent,
copyright, trademark, trade secret, or similar intellectual property right
relating to the Software or Documentation against Legato.
13. WARRANTY AND DISCLAIMERS
13.l Legato represents, warrants and covenants to Reseller that: (a)
Legato has the right to grant the rights and licenses contemplated by this
Agreement, without the need for any licenses, releases, consents, approvals or
immunities not yet granted; (b) the media on which any Products are delivered to
Solutions Provider shall be free from material defects in workmanship and
materials; and (c) the Software does not contain any material bugs or defects
and do not contain or make available any viruses, worms, Trojan horses, web
bugs, time bombs, "spyware" or other harmful or invasive code or components.
13.2 WARRANTY DISCLAIMER. EXCEPT FOR THE WARRANTY SET FORTH ABOVE AND THE
WARRANTY MADE DIRECTLY TO END-USERS PURSUANT TO THE END-USER LICENSE AGREEMENT
(AS MODIFIED BY THE FINAL SENTENCE OF THIS SECTION 13.1) LEGATO MAKES NO
WARRANTIES WITH RESPECT TO ANY PRODUCT, LICENSE OR SERVICE AND DISCLAIMS ALL
STATUTORY OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF
DEALING OR USAGE OF TRADE AND ANY WARRANTIES OF NONINFRINGEMENT. LEGATO DOES NOT
WARRANT THAT THE SOFTWARE WILL MEET ANY REQUIREMENTS OR THAT THE OPERATION OF
PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. RESELLER WILL HANDLE AND BE
RESPONSIBLE FOR ALL WARRANTY RETURNS FROM ITS END-USERS AND WILL BE ENTITLED TO
CREDIT FOR AMOUNTS PAID TO LEGATO FOR PROPERLY RETURNED COPIES OF THE SOFTWARE
THAT ARE NOT REPLACED.
13.3 VIRUS. Legato represents that to the best of its knowledge the Software is
"virus" free at the time Legato ships the original Software.
13.4 DISCLAIMER OF OTHER REPRESENTATIONS. All representations or warranties made
or agreements executed by Reseller pursuant to this Agreement shall be
Reseller's sole responsibility.
14. LIMITATION OF LIABILITY
14.1 LIMITATION OF LIABILITY. EXCEPT FOR BREACH OF SECTIONS 2.1, 11.1 AND 12,
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER PARTY WILL
IN ANY EVENT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT
UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE
THEORY FOR: (I) ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
HOWEVER CAUSED AND WHETHER OR NOT ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH
DAMAGES; OR (II) DAMAGES FOR LOST PROFITS OR LOST DATA; OR (III) COST OF
PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. NOTWITHSTANDING
ANYTHING IN THIS AGREEMENT TO THE CONTRARY OR THE FAILURE OF ESSENTIAL PURPOSE
OF ANY LIMITATION OF LIABILITY OR LIMITED REMEDY, EACH PARTY'S ENTIRE AGGREGATE
LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER
HEREOF, UNDER ANY LEGAL THEORY, WHETHER IN CONTRACT, TORT, INDEMNITY OR
OTHERWISE, SHALL BE LIMITED TO THE AMOUNTS RECEIVED BY LEGATO UNDER THIS
AGREEMENT FOR THE PARTICULAR SOFTWARE THAT CAUSED THE LIABILITY DURING THE SIX
(6) MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE.
15. INDEMNIFICATION
15.1 INDEMNIFICATION BY RESELLER. Reseller shall indemnify and defend Legato,
its subsidiaries, its officers, directors, agents and employees against any
action, and shall pay the full amount of defending such action, including
without limitation any judgment entered in or settlement of such action and all
reasonable attorneys' fees and costs to the extent that such action arises from
or is related to Reseller's modification, use or distribution of the Software
not in accordance with this Agreement, provided that (i) Legato promptly
notifies Reseller of any and all threats, claims or proceedings potentially
implicating the indemnity obligations set forth in this Section 15.1; (ii)
Reseller is given (at Reseller's cost) reasonable assistance and the opportunity
to assume sole control over the
================================================================================
MTI Reseller Agreement 8 Legato Confidential
100402 Worldwide
oc-245107
defense and all negotiations for a settlement or compromise; and (iii) in the
event of an action arising from or related to Reseller's modification of the
Software, no action would arise but for such modification. Reseller will not be
responsible for any settlement it does not approve in writing.
15.2 IP INDEMNIFICATION BY LEGATO. Legato shall defend any action brought
against Reseller, its officers, directors, subsidiaries, agents and employees,
and shall pay all costs, liabilities, damages and legal fees finally awarded
against Reseller or its subsidiaries in, or paid in settlement of, such action,
to the extent that such action is based on a third-party claim that use by
Reseller or its subsidiaries of the Software within the scope of the licenses
granted hereunder directly infringes any patent or trademark issued by a nation
that is a signatory to and enforces the Paris Convention as of the Effective
Date or any copyright or trade secret or other intellectual property, provided
that (i) Reseller promptly notifies Legato of any and all threats, claims or
proceedings potentially implicating these indemnity obligations and (ii) Legato
is given reasonable assistance and the opportunity to assume sole control over
the defense and all negotiations for a settlement or compromise. Legato will not
be responsible for any settlement it does not approve in writing (which approval
will not be unreasonably withheld or delayed).
15.2.1 INFRINGEMENT REMEDIES: If the Software is, or in Legato's opinion is
likely to become, the subject of a valid claim, suit, or proceedings alleging
infringement, Legato may either: (i) procure, at no cost to Reseller, the right
to continue using the Software; (ii) replace or modify the Software, at no cost
to Reseller, to make it non-infringing, or (iii) terminate the license for the
infringing Software and grant a refund credit thereon as depreciated on a
straight-line sixty (60) month basis.
15.2.2 DISCLAIMER. THE FOREGOING PROVISIONS STATE THE ENTIRE LIABILITY AND
OBLIGATIONS OF LEGATO WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCT.
15.2.3 EXCEPTIONS. The foregoing indemnity obligation of Legato does not apply
with respect to Software or portions or components thereof: (i) not supplied by
Legato, (ii) made in whole or in part in accordance to Reseller specifications,
(iii) which are modified after shipment by Legato, if the alleged infringement
would not have occurred but for such modification, (iv) combined with other
products, processes or materials where the alleged infringement would not have
occurred but for such combination, or (v) insofar as Reseller continues
allegedly infringing activity after being notified thereof or after being
informed of reasonable modifications that would have avoided the alleged
infringement.
16. AUDIT RIGHTS
16.1 Reseller shall keep accurate books, records and copies pursuant to this
Agreement and to all transactions related to Reseller Support for a period of
two (2) years from the expiration or termination of this Agreement. Legato shall
have the right, upon written notice, to appoint a mutually acceptable, third
party auditor to examine, no more frequently than one ( 1 ) time annually, at
Legato's own expense, the applicable books, records and agreements relating to
such transactions in order to verify the accuracy of such reports.
17. COMPLIANCE WITH APPLICABLE LAWS
17.1 EXPORT AND IMPORT CONTROLS. Reseller acknowledges that the Software and the
technical data received from Legato in accordance with the terms hereunder may
be subject to export and import controls of the United States or another
government authority in the Territory. In the performance of its obligations,
each party shall at all times strictly comply with all laws, regulations and
orders, and agrees to commit no act which, directly or indirectly, would violate
any United States or any other applicable law, regulation or order.
17.2 AUTHORIZATIONS. Each Party shall at its own expense make, obtain, and
maintain in force at all times during the term of this Agreement, all filings,
registrations, reports, licenses, permits and authorizations (collectively
"Authorizations") required under applicable law, regulation or order required
for it to perform its obligations under this Agreement.
17.3 CORRUPT PRACTICES. Legato and Reseller agree to conform with the United
States Foreign Corrupt Practices Act and will not offer any payment or other
gift or promise, or authorize the giving of anything of value, for the purpose
of influencing an act or decision of an official of any Government or of an
employee of any company in order to assist Legato or Reseller in obtaining,
retaining, or directing any business.
17.4 COMPLIANCE WITH LAWS. The parties shall be mutually responsible, as
applicable, for complying with the laws and regulations applicable in the
Territory, or any nation, or political subdivision thereof, in which they engage
in business in performing respective responsibilities hereunder. Each party will
bear its applicable expenses and costs related to compliance with such laws and
regulations.
18. GOVERNMENT MATTERS
18.1 GOVERNMENT RESTRICTED RIGHTS. The Software is commercial software, licensed
on the open market at market prices, and was developed entirely at private
expense and without the use of any Government funds. If Reseller is distributing
any Legato material or Software to or on behalf of any unit or agency of any
government, then
================================================================================
MTI Reseller Agreement 9 Legato Confidential
100402 Worldwide
Reseller will ensure that the Software is distributed to any such government
entity only in accordance with the terms and conditions set forth in the
End-User License Agreement.
19. ENFORCEMENT OF AGREEMENT
19.1 GOVERNING LAW. This Agreement shall be governed by the laws of the State of
California, as applied to agreements entered into and to be performed entirely
within California between California residents, without regard to the principles
of conflict of laws or the United Nations Convention on Contracts for the
International Sale of Goods.
19.2 JURISDICTION. The U.S. federal and state courts of the State of California
located in Santa Xxxxx County shall have jurisdiction and venue for all actions
arising from or relating to this Agreement. The parties expressly waive any
objection to the jurisdiction, venue, or convenience of such courts.
19.3 ASSIGNMENT. Except as set forth in this Section 19.3, neither this
Agreement nor any rights or obligations hereunder, in whole or in part, shall be
assignable or otherwise transferable by any party. Any unauthorized attempt to
assign or transfer this Agreement or any rights or obligations hereunder shall
be null and void. Notwithstanding the foregoing, either party may assign or
transfer this Agreement to (i) any of its majority-owned subsidiaries or
affiliates, or (ii) to an entity that acquires a controlling interest in such
party as the result of a merger or sale of substantially all of Legato's assets
or capital stock.
19.4 NO WAIVER. Failure by either party to enforce any provision of this
Agreement will not be deemed a waiver of future enforcement of that or any other
provision, nor will any single or partial exercise of any right or power
hereunder preclude further exercise of any other right hereunder.
19.5 EQUITABLE RELIEF. The parties agree that a breach of this Agreement
adversely affecting Legato's intellectual property rights in the Software or
Documentation may cause irreparable injury to Legato for which monetary damages
may not be an adequate remedy and Legato shall be entitled to equitable relief
in addition to any remedies it may have hereunder or at law.
19.6 SEVERABILITY. If for any reason a court of competent jurisdiction finds any
provision of this Agreement, or portion thereof, to be unenforceable, that
provision of the Agreement will be enforced to the maximum extent permissible so
as to effect the intent of the parties, and the remainder of this Agreement will
continue in full force and effect.
19.7 FORCE MAJEURE. Nonperformance of either party shall be excused to the
extent performance is rendered impossible due to causes beyond such party's
reasonable control.
20. CONSTRUCTION AND INTERPRETATION
20.1 COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, all of which together shall
constitute one and the same instrument.
20.2 SECTION HEADINGS. The Section headings contained herein are for convenience
of reference only and shall not be considered as substantive parts of this
Agreement. The use of the singular or plural form shall include the other form
and the use of the masculine, feminine or neuter gender shall include the other
genders.
20.3 INTERPRETATION. In construing or interpreting this Agreement, the word "or"
shall not be construed as exclusive, and the word "including" shall not be
limiting The parties agree that this Agreement shall be fairly interpreted in
accordance with its terms without any strict construction in favor of or against
either party and that ambiguities shall not be interpreted against the drafting
party.
21. MISCELLANEOUS
21.1 NO OTHER RIGHTS. Nothing contained in this Agreement shall be construed as
conferring by implication, estoppel or otherwise upon either party hereunder any
license or other right except the licenses, rights and uses expressly granted
hereunder to a party hereto.
21.2 ATTORNEYS FEES. The prevailing party in any action to enforce this
Agreement shall be entitled to recover costs and expenses including, without
limitation, reasonable attorneys' fees.
21.3 BARGAINED FOR BASES. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY
DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL
BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT
AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER
THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
22. ENTIRE AGREEMENT.
22.1 RESELLER. The provisions of this Agreement, including any Schedules,
Appendices, Attachments or Exhibits, constitute the entire agreement between the
parties with respect to the subject matter hereof, and this Agreement supersedes
all prior agreements or representations, oral or written, regarding such subject
matter, including Reseller Agreement #271-RSLR-1375
================================================================================
MTI Reseller Agreement 10 Legato Confidential
100402 Worldwide
oc-245107
dated 3 April 1996, Worldwide Reseller Agreement #271-RSLR-1446 dated 11
September 1998, and Master Fulfillment Agent Agreement #271-MFAA-1302 which
expired 15 June 2001. This Agreement may not be modified or amended except in a
writing signed by a duly authorized representative of each party. Each party
agrees that use of pre-printed forms, including, but not limited to e-mail,
purchase orders, acknowledgements or invoices, is for convenience only and all
pre-printed terms and conditions stated thereon, except as specifically set
forth in this Agreement, are void and of no effect. Unless otherwise expressly
set forth in an Addendum, Exhibit, Attachment or Schedule, as so designated, in
the event of conflict between this Reseller Agreement and any Addendum, Exhibit,
Attachment or Schedule, the terms of this Reseller Agreement shall prevail.
22.2 SCHEDULES. The following Schedules are made part of this Agreement:
22.2.1 A - Targets, Territory, Qualification and Certification
Requirements, Pricing and Discounts, Sales Referral Fees and Volume
License Discounts
22.2.2 B - Master Fulfillment Terms and Conditions
22.2.3 C - International Ordering Information
22.3 NOTICES. Any notice, report, approval or consent required or permitted
hereunder shall be in writing and will be deemed to have been given if: (i)
delivered personally; (ii) mailed by registered air mail postage prepaid; or
(iii) sent by facsimile followed by a hard-copy confirmation, to the respective
addresses of the parties set forth below or as may be otherwise designated by
like notice from time to time.
If to Legato:
LEGATO SYSTEMS, INC
0000 Xxxx Xx Xxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
XXX
Attention: General Counsel
Telephone: 000 000-0000
Facsimile: 000 000 0000
Cc: Legato Systems Nederland X.X.
Xxxxxxxxxxx 00,
2132 JE Hoofddorp,
The Netherlands
Attn: Mr. Xxxxxx Xxxxxxx
Authorized Representative
If to Reseller:
MTI TECHNOLOGY CORPORATION
0000 X. Xx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
XXX
Attention: Xxxx X. Xxxxxxx,
Chief Financial Officer
Telephone No.: 000 000 0000
Facsimile No.: 000 000 0000
Email: xxxxxxxx@xxx.xxx
Cc: MTI Technology Ireland Ltd.
Unit 5
Blanchardstown Corp Park
Bally Coolin, Xxxxxx 00 Ireland
Attention: Xxxx Xxxxxx
Email: xxxxxxx@xxx.xxx
LEGATO SYSTEMS, INC. RESELLER: MTI TECHNOLOGY CORPORATION
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
----------------------------------- -----------------------------------
AUTHORIZED REPRESENTATIVE AUTHORIZED REPRESENTATIVE
Name: Xxxx Xxxxxxxx Name: Xxxxxx X. Xxxxxxxx, Xx.
----------------------------------- -----------------------------------
Title: Vice President, Corporate Controller Title: President & CEO
----------------------------------- -----------------------------------
Date: Dec. 18, 2002 Date: Dec. 13, 2002
----------------------------------- -----------------------------------
LEGATO SYSTEMS, NEDERLAND B.V.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
AUTHORIZED REPRESENTATIVE
DATE
12/16/02
APPROVED
LEGATO
CONTRACTS
[INITIALS]
---------
BY
================================================================================
MTI Reseller Agreement 11 Legato Confidential
0100402 Worldwide
Name: Xxxxxx Xxxxxxx
-----------------------------------
Title: Authorized Representative
-----------------------------------
Date: 23-12-2002
-----------------------------------
================================================================================
MTI Reseller Agreement 12 Legato Confidential
0100402 Worldwide
Ex 10.65
SCHEDULE A
TARGETS, TERRITORY, QUALIFICATION AND CERTIFICATION REQUIREMENTS,
PRICING AND DISCOUNTS, SALES REFERRAL FEES,
AND VOLUME LICENSE DISCOUNTS
Unless defined otherwise herein, capitalized terms used in this Schedule shall
have the same meaning as set forth in the Agreement.
1. ANNUAL MINIMUM NET TARGET COMMITMENT. Reseller agrees to an annual Minimum
Net Revenue Target Commitment of US$2,500,000.00. Reseller's net revenue
target commitment is based on actual cumulative net revenue received by
Legato for Reseller's and its Subsidiaries' sale of Software licenses
during any year of the Term, and does not include sales of Updates, End
User Support, Technical Support, professional services, collateral, or
Media Kits. Legato's "net revenue" is defined as gross xxxxxxxx plus
re-bills, less credits of any kind.
2. TERRITORY. Territory as defined herein shall mean: WORLDWIDE.
3. QUALIFICATION AND CERTIFICATION REQUIREMENTS. Reseller agrees to meet the
qualification and certification requirements as set forth in this
Agreement in Sections 5.8 and 5.9.
SALES QUALIFICATIONS (BY PRODUCT GROUP)
---------------------------------------
Salespeople 6PESP]
Pre-Sales Systems Engineers 6PESP]
TECHNICAL CERTIFICATION (BY GROUP)
----------------------------------
Systems Engineers 4[PESP]
4. RESELLER PRICING AND DISCOUNTS. Legato's pricing to Reseller shall be as
follows. If the order is for Domestic delivery, the pricing shall be
discounted off Legato's then-current US published price list. If the order
is for International delivery, the pricing shall be discounted off
Legato's then-current EMEA published price list.
DISCOUNT/ TYPE OF
DESCRIPTION PRICING RESELLER
--------------------------- --------- ----------------------------------------------------------- --------
SELECT
SOFTWARE LICENSES 42% OFF LEGATO'S THEN-CURRENT PUBLISHED PRICE LIST PESP
--------------------------- --------- ----------------------------------------------------------- --------
END-USER SUPPORT INCLUDES:
END-USER SELECTED
TECHNICAL
SUPPORT 15% Discount off Legato's then current published list price All
Discount off Legato's standard software Update fee charged
UPDATES to End-Users based on the then-current US published price
AFTER YEAR 1 - list.
DOMESTIC AND INTERNATIONAL
ORDERS 33 1/3%
All
Discount off Legato's standard software Update fee charged
UPDATES to End-Users based on the then-current US published price
AFTER YEAR 1 - list. This option applies specifically to pre-qualified MTI
PROVIDED TO SPECIFIC customers specified in a list attached as Attachment A-1 to
INTERNATIONAL CUSTOMERS 40% this Schedule A. ALL
================================================================================
MTI Reseller Agreement Legato Confidential
100402 13 Worldwide
oc-245107
5. SALES REFERRAL FEES. Reseller may refer an opportunity with a customer to
Legato, and Legato will determine, in its sole discretion, if it wants to
establish a direct relationship with the customer for the opportunity. In
the event that Legato enters into a direct relationship with the customer
for the opportunity, Legato will compensate Reseller with a Sales Referral
Fee as set forth in the Legato Global Program Guide, provided that
Reseller meets the requirements set forth in the Legato Global Partner
Program Guide.
6. VOLUME LICENSE DISCOUNT. Reseller will be entitled to additional discounts
subject to the terms set forth in the Guide.
7. THIS SCHEDULE A IS IN EFFECT FOR A PERIOD OF ONE YEAR FROM THE EFFECTIVE
DATE UNLESS TERMINATED EARLIER PURSUANT TO SECTION 9.
LEGATO SYSTEMS, INC:
By: /s/ Xxxx Xxxxxxxx
---------------------------------------
AUTHORIZED REPRESENTATIVE
Name: Xxxx XXXXXXXX
---------------------------------------
Title: Vice PRESIDENT, Corporate Controller
---------------------------------------
Date: Dec. 18. 2002
---------------------------------------
RESELLER: MTI TECHNOLOGY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------------------
AUTHORIZED REPRESENTATIVE
Name: Xxxxxx X. Xxxxxxx, Xx.
---------------------------------------
Title: President & CEO
---------------------------------------
Date: Dec. 13, 2002
---------------------------------------
LEGATO SYSTEMS NEDERLAND B.V.
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
AUTHORIZED REPRESENTATIVE
Name: Xxxxxx Xxxxxxx
---------------------------------------
Title: Authorized Representative
---------------------------------------
Date: 23-12-2002
---------------------------------------
Date
12/16/02
APPROVED
LEGATO
CONTRACTS
/s/
---
BY
================================================================================
MTI Reseller Agreement Legato Confidential
100402 14 Worldwide
oc-245107
ATTACHMENT A-1
TO
SCHEDULE A
PREQUALIFIED "GRANDFATHERED" ACCOUNTS AND UPDATE RATES
Following are European accounts to be grandfathered in at previously agreed-to
rates
EDS Inland Revenue (HQ in UK) - all Worldwide locations
fixed price. $120K per annum
Alcatel (HQ in France) - All worldwide locations and corporate subsidiaries
E+ - All worldwide locations ( HQ in Germany)
================================================================================
MTI Reseller Agreement Legato Confidential
100402 15 Worldwide
oc-245107
SCHEDULE B
MASTER FULFILLMENT AGREEMENT
TERMS AND CONDITIONS
This Master Fulfillment Agreement, including attached Fulfillment Orders (the
"Fulfillment Agreement"), with an Effective Date commencing on the latest date
appearing next to the parties' signatures below (the "Effective Date"), is
entered into by and between Legato and Reseller ("Fulfillment Party"). Unless
defined otherwise herein, capitalized terms used in this Fulfillment Agreement
shall have the same meaning as set forth in the Agreement. This Fulfillment
Agreement is governed by the terms and conditions of the Agreement and is
incorporated as an integral part of the Agreement by reference.
1 DEFINITIONS
1.1 CONFIDENTIAL INFORMATION: in addition to the definition of
Confidential Information the Agreement, for the purpose of this Schedule,
Confidential Information shall also mean any Confidential information of each
End User and the existence and terms of any software license agreement entered
into between Legato and the End-User ("SLA").
1.2 DEPLOYMENT TERM: means the period of time specified in the
applicable Fulfillment Order and/or the terms of such SLA, during which the
End-user has the right to copy and deploy the Software within the Enterprise and
only in exact object code copies.
1.3 ENTERPRISE: means End-User's physical site(s) set forth in the
applicable Fulfillment Order where the End-user is entitled to deploy the
Software Product.
1.4 FULFILLMENT ORDER: means the request and approval for Software,
substantially in the form of Exhibit 1 attached hereto as agreed to by Legato
and Fulfillment Party for each End User Volume License Discount transaction.
When the parties determine that a new Fulfillment Order is required, a separate
Fulfillment Order must be mutually agreed to and executed. Each such new
Fulfillment Order shall become a new, consecutively numbered Exhibit to this
Agreement starting with Exhibit 1 for the first Fulfillment Order.
1.5 FULFILLMENT PARTY: means the Reseller as identified in this
Agreement.
2. PAYMENT TERMS AND TAXES
2.1 PRICE. Fulfillment Party will pay to Legato the price specified in
any executed Exhibit 1 hereto. All prices are exclusive of any tax.
2.2 PAYMENT TERMS. Fulfillment Party shall pay all invoices as specified
in Section 4 of the Agreement.
2.3 TAXES. Fulfillment Party shall be responsible for the payment of all
taxes as specified in Section 4 of the Agreement.
3. FULFILLMENT PARTY RESPONSIBILITIES
3.1 USAGE MONITORING. Fulfillment Party shall take all reasonable steps
necessary to monitor End-User's usage of the Software Product as specified in
Exhibit 1 hereto, and to advise Legato, where applicable, when End-User has
reached the quantity limits permitted therein.
4. ORDERS AND DELIVERY
4.1 FULFILLMENT PARTY'S ACCEPTANCE OF ORDERS. Fulfillment Party shall
not accept orders in Legato's name nor under terms varying from those
established hereunder.
5. ASSIGNMENT OF THE FULFILLMENT AGREEMENT
5.1 ASSIGNMENT OF THE SCHEDULE. Fulfillment Party may not assign any
rights or obligations contained in this Schedule, in whole or in part, without
Legato's written consent (which shall not be unreasonably withheld). Any
unauthorized attempt by Fulfillment Party to assign or transfer this Agreement
or any rights or obligations hereunder shall be null and void.
6. SCHEDULE EXPIRATION OR TERMINATION.
6.1 This Schedule is in effect until termination of the Agreement
pursuant to Section 9 of the Agreement or the expiration of all Fulfillment
Orders connected hereto.
LEGATO SYSTEMS, INC:
By: /s/ Xxxx Xxxxxxxx
---------------------------------------
AUTHORIZED REPRESENTATIVE
Name: Xxxx Xxxxxxxx
---------------------------------------
Title: Vice President, Corporate Controller
---------------------------------------
Date: Dec. 18, 2002
RESELLER: MTI TECHNOLOGY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
---------------------------------------
AUTHORIZED REPRESENTATIVE
Name: Xxxxxx X. Xxxxxxxx, Xx.
---------------------------------------
Title: President & CEO
---------------------------------------
Date: Dec. 13, 2002
---------------------------------------
LEGATO SYSTEMS NEDERLAND B.V.
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
AUTHORIZED REPRESENTATIVE
[STAMP]
Date
12/16/02
APPROVED
LEGATO
CONTRACTS
/s/ (ILLEGIBLE)
---------------
BY
================================================================================
MTI Reseller Agreement Legato Confidential
100402 Worldwide
oc-245107
16
Name: Xxxxxx Xxxxxxx
---------------------------------------
Title: Authorized Representative
---------------------------------------
Date: 23-12-2002
---------------------------------------
================================================================================
MTI Reseller Agreement Legato Confidential
100402 Worldwide
oc-245107
17
EXHIBIT 1 FULFILLMENT ORDER
TO MASTER FULFILLMENT AGREEMENT
1. END-USER: The End-User , with an address of
has been granted the right to use the Software in accordance with the terms of
an [SLA] entered into between Legato and End User, [If written signed license
agreement is entered into with the End-User please replace the word "SLA" with
the following statement: Legato Number: - SLA - by and between such
End-User and Legato, dated, Date of SLA.] Reseller agrees to enter into an
agreement with End-User which at a minimum contains (i) Sections 2, 3, 4 and 5
from this Fulfillment Order, and (ii) the eCommerce Credit Limit specified in
Section 6.1 of this Fulfillment Order. Reseller is free to determine its own
resale prices for Software, Updates and Services.
2. DEPLOYMENT TERM: The Deployment Term shall commence on Either Effective
Date or Beginning date of SLA and expire on Add Expiration Date.
3. SOFTWARE PRODUCT: Legato shall provide to Fulfillment Party the software
product(s) specified in Section 4 below [in the form of a gold master] (or via
e-Commerce through Fulfillment Party's e-Commerce account or directly) [K
Manager: choose one] to provide to the above specified End-User for deployment
in the Enterprise during the Deployment Term. Reseller acknowledges and agrees
to communicate to End-User that the End-User may procure, download or otherwise
obtain only the specific Software products listed in this Fulfillment Order
regardless of other Software availability on Legato's eCommerce web site or on
any Legato provided media.
4. DELIVERY: Upon execution of this Fulfillment Order by, Legato will deliver
the Software via an electronic transmission or via compact disk. Legato will
establish an eCommerce account for the End-User or Fulfillment Party with
instructions for using the eCommerce system to procure authorization and enabler
codes such that, at any time after receipt of the instructions, the Software
will be available for download, initialization and operation without any further
action by Legato.
5. SOFTWARE TO BE PROVIDED TO END USER: [List Software]
6. LICENSE AND SERVICE FEES.
6.1 LICENSE FEES AND ECOMMERCE CREDIT LIMIT. For a total noncancelable,
non-refundable license fee of US$ .00,Fulfillment Party or its authorized
End-User shall be entitled to download Software license enabler codes valued at
US$ ("eCommerce Credit Limit"), based on Legato's then current applicable
list price for the Software, during the Deployment Term. Reseller will be
invoiced by Legato as follows:
DATE FEES DUE AND PAYABLE AMOUNT
------------------------- ------
US$
==========
6.2 END-USER SUPPORT SERVICE AND UPDATE FEES. Fulfillment Party agrees to pay
fees to Legato as specified below for CONTRACT MANAGER: DEPENDING ON THE
TRANSACTION YOU MAY NEED TO DELETE TECHNICAL SUPPORT REFERENCES FROM THIS
PROVISION End-User Support and Updates, as applicable. The renewal rate for
End-User Support and Update fees is % of Legato's then current list price
for all Software products deployed at the time of renewal, including any
existing installed base Software products. End User Support is available to
Fulfillment Party if Updates have been purchased and payments are current.
DATE FEES DUE AND PAYABLE AMOUNT
------------------------- ------
Total End User Support and Update during the US$
Deployment Term ==========
CONSULTING SERVICE FEES. Fulfillment Party agrees to pay Legato the amount
specified below for Consulting Services:
DATE FEES DUE AND PAYABLE AMOUNT
------------------------- ------
Total fee for Consulting Services US$
==========
LEGATO FULFILLMENT PARTY
LEGATO SYSTEMS, INC. MTI TECHNOLOGY CORPORATION
------------------------------------- -------------------------------------
================================================================================
MTI Reseller Agreement Legato Confidential
100402 Worldwide
oc-245107
18
/s/ Xxxxxx X. Xxxxxxxx, Xx.
------------------------------------- -------------------------------------
(BY) (BY) PRINT NAME
President/CEO
------------------------------------- -------------------------------------
(TITLE) (TITLE)
12/13/02
------------------------------------- -------------------------------------
(DATE) (DATE)
================================================================================
MTI Reseller Agreement Legato Confidential
100402 Worldwide
oc-245107
19
SCHEDULE C
INTERNATIONAL ORDERING INFORMATION
Legato Systems Nederland B.V
Xxxxxxxxxxx 00,
0000 XX Xxxxxxxxx,
Xxx Xxxxxxxxxxx
To send orders: xxxxx-xxxx@xxxxxx.xxx
To send faxes 000-00-00-000-0000
Persons to contact: Xxxxxx Xxxxxx 011-31-23-554-8835
Xxxxxxxx Xxxxx Ruz 011-31-23-554-8837
Xxxxxxx Xxxxxxxx 011-31-23-554-8838
These are all OM reps and their hours are 9:OO am-6:00 pm (The Netherlands time
zone)
Fulfillment is: Yoongthong Dekker 011-31-23-554-8836
================================================================================
MTI Reseller Agreement Legato Confidential
100402 Worldwide
oc-245107
20
EXHIBIT D
LIST OF SUBSIDIARIES
MTI Technology BV (Irish Branch)
Xxxx 0
Xxxxxxxxxxxxxx Xxxx Xxxx
Xxxxxxxxxxx, Xxxxxx 00
Ireland
MTI Technology GmbH
Xxxx-Xxx-Xxxxxxxx
Xxxx 00
00000 Xxxxxxxxx
Xxxxxxx
MTI Technology France SA
7-Avenue de Pommerots
XX 00 00000 Xxxxxx
Xxxxxx
MTI Technology Ltd
Xxxx 00X
Xxxxxxxxx Xxxxx Xxxxxxx Xxxx
Catteshall Lane
Godalming
Surrey GU7 1XE
England
MTI Technology SA (Switzerland)
c/o MTI Technology Corporation
US Headquarters
================================================================================
MTI Reseller Agreement Legato Confidential
100402 Worldwide
oc-245107
21
LEGATO CONFIDENTIAL
LEGATO DOMESTIC ECOMMERCE ENROLLMENT FORM
COMPANY NAME:
----------------------------------------------------------------
COMPANY ADDRESS:
----------------------------------------------------------------
CITY:
-------------------------
STATE/PROVINCE:
-------------------------
COUNTRY:
-------------------------
ZIP/POSTAL CODE:
---------------
PHONE NUMBER (INCLUDE AREA/COUNTRY CODE):
-------------------------
FAX NUMBER:
-------------------------
PRIMARY BUSINESS CONTACT ALTERNATE BUSINESS CONTACT
------------------------ --------------------------
Name: Name
Phone: Phone:
E-Mail Address: E-Mail Address:
Receive E-Mail Order Confirmation: Y/N
PRIMARY PURCHASING CONTACT ALTERNATE PURCHASING CONTACT
-------------------------- ----------------------------
Name: Name
Phone: Phone:
E-Mail Address: E-Mail Address:
Receive E-Mail Order Confirmation: Y/N Receive E-Mail Order Confirmation: Y/N
Requestor's Name (Please Print):
Requestor's Signature: Date:
Use of the Legato eCommerce web-site is governed solely by the Terms of Use
contained on the web-site.
--------------------------------------------------------------------------------
FOR LEGATO INTERNAL USE ONLY:
Legato Account Manager (name and phone number):
---------------------------
E-Commerce User Id:
-------------------------------------------------------
E-Commerce Login Id:
------------------------------------------------------
LEGATO SIGNATURES:
Accounting:
--------------------------------------------------------------
Sales Operations:
---------------------------------------------------------
Customer Operations:
------------------------------------------------------
IS:
-----------------------------------------------------------------------
Product Operations:
-------------------------------------------------------
PLEASE RETURN COMPLETED FORMS TO:
EMAIL ADDRESS: XXX@XXXXXX.XXX FAX: 000-000-0000 PHONE: 000-000-0000
--------------------------------------------------------------------------------
LEGATO INTERNATIONAL ECOMMERCE ENROLLMENT FORM
COMPANY NAME:
----------------------------------------------------------------
COMPANY ADDRESS:
----------------------------------------------------------------
CITY:
-------------------------
STATE/PROVINCE:
-------------------------
COUNTRY:
-------------------------
ZIP/POSTAL CODE:
---------------
PHONE NUMBER (INCLUDE AREA/COUNTRY CODE):
-------------------------
FAX NUMBER:
-------------------------
PRIMARY BUSINESS CONTACT ALTERNATE BUSINESS CONTACT
------------------------ --------------------------
Name: Name
Phone: Phone:
E-Mail Address: E-Mail Address:
Receive E-Mail Order Confirmation: Y/N
PRIMARY PURCHASING CONTACT ALTERNATE PURCHASING CONTACT
-------------------------- ----------------------------
Name: Name
Phone: Phone:
E-Mail Address: E-Mail Address:
Receive E-Mail Order Confirmation: Y/N Receive E-Mail Order Confirmation: Y/N
Requestor's Name (Please Print):
Requestor's Signature: Date:
Use of the Legato eCommerce web-site is governed solely by the Terms of Use
contained on the web-site.
--------------------------------------------------------------------------------
FOR LEGATO INTERNAL USE ONLY:
Legato Account Manager (name and phone number):
---------------------------
E-Commerce User Id:
-------------------------------------------------------
E-Commerce Login Id:
------------------------------------------------------
LEGATO SIGNATURES:
Accounting:
---------------------------------------------------------------
Sales Operations:
---------------------------------------------------------
Customer Operations:
------------------------------------------------------
IS:
-----------------------------------------------------------------------
Product Operations:
-------------------------------------------------------
PLEASE RETURN COMPLETED FORMS TO:
EMAIL ADDRESS: XXX@XXXXXX.XXX FAX: 000-000-0000 PHONE: 000-000-0000
--------------------------------------------------------------------------------
