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Exhibit 10.2
SALES AND MARKETING SERVICES AGREEMENT
SALES AND MARKETING SERVICES AGREEMENT, dated as of February 28,
2001, and effective as of the Effective Date (as defined in Section 3) (this
"Agreement"), by and among NEC Corporation, a Japanese corporation with its
principal place of business at 0-0, Xxxxx 0-xxxxx, Xxxxxx-xx, Xxxxx 000-0000,
Xxxxx ("NEC"), HNSX Supercomputers Inc., a Delaware corporation with its
principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000-0000
("HNSX"), and Cray Inc., a Washington corporation with its principal place of
business at 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000-0000 ("Cray").
NEC, HNSX and Cray are sometimes hereinafter collectively referred to as the
"parties."
RECITALS
A. NEC and Cray are parties to a Distribution Agreement,
dated as of February 28, 2001 (the "Distribution Agreement"), pursuant to which
parties have agreed that Cray shall become the distributor of certain products
of NEC upon the terms and subject to the conditions set forth therein.
X. Xxxx is interested in obtaining from NEC and/or HNSX
certain services listed and described in Schedule A attached hereto commencing
from the Effective Date.
NOW, THEREFORE, the parties, in consideration of the premises and
the mutual covenants and agreements contained herein, and intending to become
legally bound, hereby agree as follows:
SECTION 1
AGREEMENT TO PROVIDE AND OBTAIN SERVICES
1.1 Definitions. Except as otherwise defined in this
Agreement, all capitalized terms shall have the meanings assigned to them in the
Distribution Agreement.
1.2 Scope of Services.
(a) NEC or HNSX shall provide to Cray the services
described on Schedule A (the "Services") for the period set forth on Schedule A
for each such Service, in accordance with the terms, limitations and conditions
set forth herein and on Schedule A.
(b) If Cray identifies any additional Service it
reasonably requires from NEC in order to perform the Distribution Agreement,
Cray may request such additional Service and Schedule A will be amended to
reflect any agreed additional service; provided, that this Section 1.2(b) shall
not require NEC to provide any additional Services without NEC's express written
consent, which NEC may withhold in its sole discretion.
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(c) Any amendment, supplement, variation, alteration or
modification to any Service as described on Schedule A shall be made in writing
and duly executed by each party.
1.3 Access. Each party shall take all actions and make
available on a timely basis all information and materials reasonably required
for the other parties to perform their obligations hereunder. No party shall be
liable for any claims, errors or omissions resulting from untimely or incorrect
information provided by another party. Each party shall give the other parties
access to its premises during regular business hours and at such other times as
are reasonably required, after prior consent has been obtained, to the extent
reasonably necessary for the other parties to perform their obligations
hereunder.
SECTION 2
SERVICES; PAYMENT; INDEPENDENT CONTRACTOR
2.1 Services to be Provided.
(a) Unless otherwise agreed in writing by the parties,
each party shall use commercially reasonable efforts to perform its obligations
hereunder. Notwithstanding anything to the contrary contained herein, no party
shall be in default of its obligations hereunder to the extent the inability to
perform such obligations arises out of the another party's failure to perform in
a timely manner such tasks as are required to be performed to enable the
performing party to perform such obligations.
(b) NEC and HNSX shall have the right to cease
temporarily for maintenance purposes the operation of the equipment or
facilities providing any Service whenever they determine in their reasonable and
good faith judgment such action is necessary. In the event such maintenance is
required, Cray shall be reasonably notified of such maintenance (which notice
may be given during or after any emergency maintenance). Notwithstanding the
above, NEC or HNSX shall give Cray as much advance notice of any shutdown as is
reasonably practicable. Where written notice is not feasible, oral notice may be
given. NEC and HNSX shall be relieved of their respective obligations to provide
any Service during the period that the necessary equipment or facilities are
shut down; provided, that NEC and HNSX shall use commercially reasonable efforts
to restart such equipment or reopen such facilities as promptly as practicable.
(c) HNSX shall be excused from performance of the
Services to the extent that its ability to perform the Services is reduced or
eliminated by loss of personnel to Cray, and HNSX shall have no obligation to
hire any replacements for departing personnel.
2.2 Payment. Invoices for Services shall be due 30 days after
receipt by the payor. All amounts due on invoices shall be paid in United States
Dollars by wire transfer to an account specified by the payee. Invoiced amounts
not paid when due shall be subject to late charges for each month and portion
thereof that the invoice is overdue, with such late charges
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calculated at the lesser of (i) 18% per annum and (ii) the maximum rate allowed
by applicable law.
2.3 Independent Contractor. All Services required of NEC and
HNSX shall be performed by them as independent contractors, and employees of NEC
and HNSX providing Services shall at all times be under NEC's and HNSX's sole
direction and control. Neither NEC, HNSX nor any other person or entity
performing any Services hereunder on behalf of NEC or HNSX shall be deemed for
any purpose to be the agent, servant, employee or representative of Cray in the
performance of this Agreement. Nothing in this Agreement shall be construed to
mean that NEC or HNSX is a partner or a joint venturer of Cray. The relationship
under this Agreement of NEC and HNSX on the one hand and Cray on the other hand
with respect to the Services shall be that of an independent contractor.
SECTION 3
TERM
The term of this Agreement shall be conditioned upon and commence
upon on the date (the "Effective Date") of the closing under the Stock Purchase
Agreement and shall terminate upon the earlier of (i) the expiration of the
Distribution Agreement, and (ii) any termination pursuant to Section 5.2 or 5.3;
provided that with respect to each Service listed in Schedule A, this Agreement
shall terminate as set forth in Section 5.1.
SECTION 4
LIABILITIES
4.1 Consequential and Other Damages. Neither NEC nor HNSX
shall be liable for, and Cray expressly waives any right to recover, whether in
contract, in tort (including, but not limited to, negligence and strict
liability) or otherwise, any punitive, exemplary, special, indirect, incidental
or consequential damages whatsoever, which in any way arise out of, relate to,
or are a consequence of, NEC's or HNSX's performance or nonperformance
hereunder, or the provision of or failure to provide any Service hereunder,
including, but not limited to, loss of profits, business interruptions and
claims of customers.
4.2 Limitation of Liability. In any event, the liability of
any NEC Indemnitee (as defined in Section 4.4) which liability shall be several
and not joint, with respect to this Agreement or anything done in connection
herewith, including, but not limited to, the performance or breach hereof, or
from the sale, delivery, provision or use of any Service or product provided
under or covered by this Agreement, whether in contract, tort (including, but
not limited to, negligence and strict liability) or otherwise, shall not exceed
the aggregate of all fees then paid by Cray to NEC under the Maintenance
Agreement, dated as of the date hereof, between NEC and Cray, within the twelve
months immediately preceding the date of Cray's claim relating thereto.
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4.3 Obligation to Reperform. In the event that Cray becomes
aware of any material breach of this Agreement by NEC or HNSX with respect to
any error or defect in the provision of any Service, and Cray notifies NEC and
HNSX of said breach, NEC or HNSX (as applicable) shall promptly make
commercially reasonable efforts to correct such error or defect.
4.4 Indemnity. Cray shall indemnify and hold harmless NEC and
HNSX, their respective subsidiaries, affiliates, successors and assigns,
directors, officers, shareholders, agents and employees (collectively, the "NEC
Indemnitees"), from and against any and all claims, demands, complaints,
liabilities, losses, damages, costs and expenses (collectively, "Losses")
arising from or relating to the presence of Cray employees, agents or
subcontractors on NEC's or HNSX's premises; provided, however, that no NEC
Indemnitee shall be entitled to indemnification hereunder to the extent its
claim for indemnification shall be finally adjudged to be attributable to its
gross negligence, bad faith or willful misconduct, as may be finally determined
by arbitration pursuant to Section 6.13. Subject to Sections 4.1 and 4.2, NEC
shall indemnify and hold harmless Cray, its subsidiaries, affiliates, successors
and assigns, directors, officers, shareholders, agents and employees
(collectively, the "Cray Indemnitees"), from and against any and all Losses
arising from or relating to the presence of NEC or HNSX employees, agents or
subcontractors on Cray's premises; provided, however, that no Cray Indemnitee
shall be entitled to indemnification hereunder to the extent its claim for
indemnification shall be finally adjudged to be attributable to its gross
negligence, bad faith or willful misconduct, as may be finally determined by
arbitration pursuant to Section 6.13.
4.5 Notification and Procedures. In connection with any
indemnity hereunder, the indemnified party shall: (i) promptly notify the
indemnifying party of any claim or proceeding, or threatened claim or
proceeding; (ii) permit the indemnifying party to take full control of such
claim or proceeding; (iii) cooperate in the investigation and defense of such
claim or proceeding; (iv) not compromise or otherwise settle such claim or
proceeding without the prior written consent of the indemnifying party, which
consent shall not be unreasonably withheld, conditioned or delayed; and (v) take
all reasonable steps to mitigate any loss or liability in respect of any such
claim or proceeding. In any action in which the indemnifying party assumes
control, the indemnifying party shall not enter into any settlement without the
prior written consent of the indemnified party, which shall not be unreasonably
withheld, conditioned or delayed.
SECTION 5
TERMINATION
5.1 Termination of Particular Services. This Agreement shall
terminate in part with respect to any individual Service on the earlier of the
date (i) that such Service terminates in accordance with Schedule A hereto; (ii)
Cray cancels such Service by written notice to NEC and HNSX; (iii) NEC and HNSX
cancel such Service in accordance with the terms of Schedule A; and (iv) the
parties agree in writing to cancel such Service.
5.2 Termination for Breach. This Agreement may be terminated
by Cray if NEC or HNSX materially breaches any provision of this Agreement and
such breach is not cured
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within thirty (30) days after written notice from Cray, or if such breach is not
susceptible to cure within thirty (30) days, then within a reasonable time
thereafter provided that NEC or HNSX, as applicable, begins such cure and
diligently pursues such cure within such thirty (30) days. This Agreement may be
terminated by NEC and HNSX if Cray materially breaches any provision of this
Agreement and such breach is not cured within thirty (30) days after written
notice from NEC or HNSX, or if such breach is not susceptible to cure within
thirty (30) days, then within a reasonable time thereafter provided that Cray
begins such cure and diligently pursues such cure within such thirty (30) days.
5.3 Termination Upon Certain Events. NEC may terminate this
Agreement immediately if (i) Cray files a petition in bankruptcy or makes a
general assignment for the benefit of creditors or otherwise acknowledges
insolvency, (ii) Cray is adjudged bankrupt or goes into liquidation, (iii) a
receiver is appointed for the benefit of Cray, (iv) NEC terminates the
Distribution Agreement or (v) there shall occur a Change of Control of Cray.
"Change of Control" means (a) (x) the merger or consolidation of Cray into or
with one or more entities, (y) the merger or consolidation of one or more
entities into or with Cray or (z) a completed tender offer or other business
combination if, in the case of (x), (y) or (z), the stockholders of Cray prior
to such merger, consolidation or business combination do not retain at least a
majority of the voting power of the surviving entity or (b) the involuntary
sale, conveyance, exchange or transfer to another entity of (I) the voting
capital stock of Cray if, after such sale, conveyance, exchange or transfer, the
stockholders of Cray prior to such sale, conveyance, exchange or transfer do not
retain at least a majority of the voting power of Cray or (II) all or
substantially all of the assets of Cray.
5.4 Sums Due. In the event of a termination of this Agreement,
each party shall be entitled to all outstanding amounts due to it from Services
provided by it under this Agreement up to the date of termination.
SECTION 6
MISCELLANEOUS
6.1 Succession and Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties named herein and their respective
successors and permitted assigns. No party may assign either this Agreement or
any of its rights, interests or obligations hereunder without the prior written
approval of the other parties; provided, however, that (i) without the consent
of the other parties, a party may assign any or all of its rights and delegate
any or all its obligations hereunder to any entity controlling, controlled by or
under common control with such party, in which event the assigning party shall
remain fully liable for the performance of all its obligations hereunder and
(ii) subject to Section 5.3, a successor in interest by merger, by operation of
law, or by assignment, purchase or other acquisition of all or substantially all
the business of a party may acquire the respective rights and obligations of
such party under this Agreement. Any prohibited assignment shall be null and
void.
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6.2 Construction. This Agreement is the result of negotiation
between sophisticated parties and no provision hereof shall be construed against
a party solely because that party was responsible for drafting the provision.
6.3 Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof.
6.4 Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof.
6.5 Amendment and Waiver. No waiver of any violation or
nonperformance of this Agreement in one instance will be deemed to be a waiver
of any subsequent violation or nonperformance. All waivers must be in writing
and signed by the party making such waiver. This Agreement may not be modified
or amended except in writing signed by each party.
6.6 Notice. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telecopier,
courier or personal delivery:
(i) If to Cray:
Cray Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
With a copy to:
Stoel Rives LLP
000 XX Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxx
(ii) If to HNSX (with a copy to NEC):
HNSX Supercomputers Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
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Telecopy: (000)-000-0000
Attention: Xxxxx Xxxxxx
With a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
(iii) If to NEC:
NEC Corporation
0-00, Xxxxxxxxxx
Xxxxx Xxxx
Xxxxx 000-0000 Xxxxx
Telecopy: 00-00-000-0000
Attention: General Manager, Supercomputer
Marketing Promotion Division
With a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
All such notices, demands and other communications shall be
deemed to have been duly given when delivered by hand, if personally delivered;
when delivered by a recognized international express courier service, if
delivered by courier; five (5) business days after being deposited in the mail,
postage prepaid, if mailed; and when receipt is mechanically acknowledged, if
telecopied. Any party may by notice given in accordance with this Section 6.6
designate another address or person for receipt of notices hereunder.
6.7 Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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6.8 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
6.9 Choice of Law. This Agreement will be governed by the
internal laws of the State of New York without regard to the conflicts of laws
principles thereof.
6.10 Force Majeure. If the whole or any part of the performance
by NEC and HNSX of any part of their obligations under this Agreement is
prevented, hindered or delayed or otherwise made impracticable by reason of
strikes, labor troubles, floods, fires, accidents, earthquakes, riots,
explosions, wars, hostilities, acts of government, customs barriers or taxes,
export/import control regulations, interruption or shortage of or delay in
transportation, inability to obtain key raw materials, components or supplies or
other cause of like or different character beyond the reasonable control of NEC
or HNSX, NEC and HNSX shall be excused from such performance during the
continuance of such contingency and for so long as such contingency shall
continue to prevent, hinder or delay such performance. If the contingency
specified in this Section 6.10 shall continue for more than six (6) months from
its occurrence, any party may terminate this Agreement (subject to Section 5.4)
forthwith without any liability by giving a written notice to the other parties.
6.11 No Third-Party Beneficiaries. Except as provided in
Section 4.4, nothing in this Agreement shall confer any rights upon any person
or entity other than the parties and each party's respective successors and
permitted assigns.
6.12 Confidentiality. This Agreement shall be covered by the
confidentiality provisions in Section 10.11 of the Stock Purchase Agreement,
which shall survive the termination or expiration of this Agreement for a period
of two years.
6.13 Dispute Resolution. Any dispute, controversy or claim
arising out of or in connection with this Agreement that the parties are unable
to resolve amicably shall be determined and settled by arbitration in London, UK
in accordance with the rules then in effect of the International Chamber of
Commerce; and the parties hereby consent to the jurisdiction thereof. Any award
rendered shall be final and conclusive upon the parties and a judgment thereon
may be entered in a court having competent jurisdiction.
6.14 Survival. Sections 4.1, 4.2, 4.4, 4.5, 5.4 and 6 shall
survive the expiration or termination of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Sales and
Marketing Services Agreement as of the date first written above.
CRAY INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and CEO
NEC CORPORATION
By: /s/ Xxxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Senior Vice President
HNSX SUPERCOMPUTERS INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: President and CEO
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SCHEDULE A
to
SALES AND MARKETING SERVICES AGREEMENT
A. Marketing Coordination Board. As soon as practicable following the
Effective Date, the parties shall establish a Marketing Coordination Board (the
"Board") composed of one representative of each party. The Board shall exist
throughout the term of this Agreement and shall coordinate all aspects of the
performance of this Agreement, which performance the parties intend to commence
as soon as practicable following the Effective Date.
B. NEC Support. The parties anticipate that HNSX will require NEC's
assistance to perform certain of its obligations hereunder and that NEC shall
use commercially reasonable efforts to provide such assistance; provided, that
in no event shall NEC be liable for any obligations of HNSX hereunder.
C. Marketing Support During the Initial Period.
During the twelve (12) month period following the Effective Date
(the "Initial Period"), NEC and HNSX will provide Cray with the following
assistance in connection with the marketing, sale, installation and support by
Cray of the Products.
1. Pre-Sales and Marketing Support.
NEC and HNSX shall provide pre-sales and marketing support
to Cray during the Initial Period on the terms and conditions set forth below:
1.1 Sales Product Training. Beginning within 30 days of
the Effective Date, HNSX shall, without charge to Cray, train a reasonable
number of Cray sales and marketing personnel in the descriptions,
specifications, features and functions of the Products. Training shall take
place at Cray facilities except where access to the Products at HNSX facilities
is required. Cray shall bear the cost of travel, lodging and per diem expenses
for Cray personnel receiving training. Cray shall provide appropriate training
materials and tools (e.g. classroom aids, presentations and other materials);
provided, that HNSX shall work with Cray to provide the content of the
materials.
1.2 Pre-Sale Support. At the request of Cray and at
times to be mutually agreed, HNSX shall provide pre-sale marketing support to
Cray's sales and marketing personnel to assist in the promotion of the Products.
This support may, as mutually agreed, (a) be provided electronically or through
direct visits with Cray personnel to prospect and customer sites, and (b)
include product presentations, product roadmap reviews, applications
descriptions and/or technical capability explanations.
1.3 Benchmarking and Performance Optimization. HNSX
will provide benchmarking and performance optimization assistance in support of
Cray sales activities. HNSX and a designated Cray representative shall develop
mutually agreeable schedules and
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effort specifications/task definition for the accomplishment of this activity.
Cray shall be responsible for prioritizing Cray employees' requests for use of
this support.
1.4 ISV Application Benchmarking. Cray shall bear
primary responsibility for ISV application benchmarking. Upon request by Cray
and on a priority schedule established by NEC, NEC will assist in this activity.
NEC shall assign to Cray any site licenses held by NEC that are necessary in
connection with this Section 1.4 (subject to obtaining necessary third party
consents) and Cray shall be responsible for obtaining any necessary site
licenses that are not held by NEC.
1.5 Benchmark Systems. NEC shall make available the
SX-5 Series systems installed at NEC facilities in The Woodlands, Texas and, as
reasonably available (subject to other NEC commitments), SX-5 and SX-5X Series
systems installed in Japan for the performance of benchmarks by Cray. The
parties will discuss in good faith and mutually agree on the scheduling of these
benchmarks based on overall system usage commitments, effort definition and
support resource availability.
1.6 Promotional Activities. The Board will plan and
implement a sales promotional program for the Products, including new product
announcements, trade show schedules, advertisements, public/press relations,
conference/seminar participation and sponsorship programs.
1.7 Marketing and Collateral Material. NEC shall advise
Cray of the Product sales collateral material available or planned for
development. Cray may then (a) request a reasonable supply of the material "as
is", (b) request that the Cray logo be applied for a new printing or (c) request
mechanicals or an electronic version for printing by Cray, in either case at
Cray's expense. The collateral material shall be in English and shall be at
least equivalent in scope to those provided to NEC's other distributors and
customers. Through the Board Cray may participate with NEC in development of
sales collateral material format, content and appearance.
1.8 Promotional Activities Cost Sharing. NEC and Cray
shall share the costs of the activities conducted pursuant to Sections 1.6 and
1.7 (the "Promotional Costs") as follows: (i) NEC shall pay the first $* of
Promotional Costs, (ii) NEC and Cray shall each pay one-half of the next $* of
Promotional Costs, and (iii) Cray shall pay all subsequent Promotional Costs.
1.9 Proposal Development. HNSX shall assist Cray in the
development of sales proposals, including recommendations regarding equipment
and software configurations (collectively, "Sales Proposals") for use within the
Exclusive Territory. Cray may request HNSX's assistance with the development of
Sales Proposals for use outside the Exclusive Territory, which request HNSX may
fulfill in its sole discretion.
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* Confidential material has been intentionally omitted at this point pursuant to
a request for confidential treatment, and such material has been filed
separately with the Securities and Exchange Commission.
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2. Post-Sale Support.
NEC and HNSX shall provide the following post-sale support
to Cray during the Initial Period on the terms and conditions set forth below.
2.1 Site Physical Planning. HNSX shall provide a field
service engineer to assist Cray and customer personnel in physical and
environmental planning for installation sites.
2.2 Installation Support. HNSX shall provide
installation assistance to Cray including unpacking, equipment positioning,
cable stringing, power-up and performance of test and diagnostic routines and
software installation.
2.3 Software Training. HNSX and Cray shall develop a
mutually agreed schedule for training of post sale software analysts. Training
will include SUPER-UX Operating System, Compilers, Tools, Libraries and
Programming Aids.
2.4 Consultation on Applications Conversion and
Optimization. HNSX will consult with Cray as reasonably needed to assist in the
conversion and optimization of customer applications.
2.5 Technical Documentation. NEC shall provide to Cray
reasonable quantities of available technical documentation in English in either
electronic or hard copy form, including installation manuals, hardware and
software technical specifications and programming documentation.
D. Continuing Marketing Support.
After the Initial Period, and during the term of the
Distribution Agreement, NEC shall provide Cray with sales and marketing
assistance on the terms and conditions set forth below:
1.1 Competitiveness. As part of NEC's formal high
performance computer development function, Cray and NEC will meet to discuss
products and market requirements for current and future products.
1.2 Benchmark System Availability. Cray will purchase
from NEC a SX-5X to be used for benchmarking purposes. If Cray requires
benchmarking capacity on a larger system, NEC will, subject to advance
scheduling and task effort specification, make available a NEC system resource
and support person either remotely or on location. In the event that Cray needs
to benchmark a SX-5X prior to the date on which NEC delivers Cray's SX-5X, NEC
shall make available (subject to other NEC commitments) a SX-5X system installed
in Japan for the performance of benchmarks by Cray. The parties will discuss in
good faith and mutually agree on the scheduling of these benchmarks based on
overall system usage commitments, effort definition and support resource
availability. The cost of system usage, telecommunications, courier service and
travel, lodging and per diem for Cray personnel incurred in connection with the
activities conducted under this Section 1.2 will be borne by Cray.
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1.3 Prospect/Customer Visits to Japan. NEC will
accommodate visits by Cray prospects and customers to NEC facilities on a
scheduled, best efforts basis, subject to availability of NEC personnel. Travel,
per diem and lodging costs will be borne by Cray.
1.4 Promotional Activity Coordination. At least yearly,
NEC will provide Cray with its promotional agenda and schedule.
1.5 Marketing and Promotional Literature. NEC will
provide to Cray without charge a reasonable number of copies of marketing and
promotional brochures, product briefs, product descriptions, marketing aids and
the like relating to the Products at such time and in such languages as NEC
makes them generally available to its direct high performance computing system
sales and marketing organizations throughout the world.
1.5.1. Cray may use the marketing and promotional
literature to prepare Cray-specific marketing and promotional literature.
1.5.2. Cray shall take all appropriate legal measures to
protect NEC's copyright and other rights in the marketing and promotional
literature provided to Cray under this Agreement, and the use of such literature
shall be governed by Section 13 (Trademarks) of the Distribution Agreement to
the extent that it contains NEC trademarks.
1.5.3. If Cray adds to or otherwise modifies the marketing
and promotion literature, Cray should provide to NEC a reasonable number of
copies of the modified or added literature.
2. Post-SX-5X Sales and Marketing Support. In the event that
NEC introduces a successor supercomputer system to the SX-5X, the parties
anticipate that they will engage in sales and marketing support activities
similar to the type contemplated by this Agreement with respect to such system
upon commercially reasonable terms to be mutually agreed.
