EXHIBIT 10.12
CITRIX SOLUTIONS NETWORK
GOLD RENEWAL MEMBERSHIP AGREEMENT
This Agreement ("Agreement") is between:
Citrix Systems, Inc. ("Citrix"), a Delaware corporation, located at 0000 XX
0xx Xxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, and Emtec, Inc., a Delaware
corporation, located at 00 Xxxxxxx Xxxxx, Xxxxxxxx, XX (the "Citrix Authorized
Solutions Provider" or "CSN Member").
Whereas, CSN Member desires to recommend or to provide comprehensive
computer solutions to its customers in the Territory in accordance with the CSN
Member program defined in this agreement; and
Citrix desires to supply Citrix products and provide services and support
on Citrix products to assist CSN Member in providing its customers with such
solutions;
Now, therefore, in consideration of the mutual promises contained herein,
the parties agree as follows:
1. CSN Member Obligations. Pursuant to this Agreement, CSN Member makes the
following promises and undertakes the following obligations to Citrix:
1.1 CSN Member shall procure those Citrix products elected on Exhibit A,
Product Line Authorization (hereinafter "Products"), from authorized
distributor; of Citrix products in accordance with the terms of the
license agreement provided with each Product provided that Citrix. has
received verification that CSN Member has Citrix certified employees
as set forth in Section 1.3 below. CSN Member may distribute the
Products in accordance with the license granted in Section 2.1 of this
Agreement.
1.2 CSN Member will complete the business plan provided by Citrix and
shall then forward it to its Citrix sales representative at the Citrix
address indicated above within thirty (30) days of the Effective Date
of this Agreement. Any CSN Member who does not comply with this
requirement within said thirty (30) days will not be eligible for
co-operative marketing money accrual as stated in Section 11.4.2 of
this Agreement.
1.3 Within ninety (90) days from the Effective Date of this Agreement, CSN
Member shall retain separate, full-time employees at the CSN Member's
above address who have attained the certification requirements set
forth in Exhibit A. Descriptions of each certified position is set
forth in Citrix's Training and Certification Requirements, as
previously provided by Citrix.
CSN Member will have access to Citrix Technical Support as described
in Section 11.3 of this Agreement and will be eligible to distribute
Products in accordance with Section 1.1 of this Agreement upon
fulfillment of these obligations. In the event that any one of these
certified Citrix professionals are terminated or terminate their
full-time employment with the CSN Member, the CSN Member is obligated
to notify its Citrix sales representative in writing and replace that
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certified Citrix. professional within ninety (90) days after the last
day of full-time employment of the prior Citrix certified
professional. FAILURE TO COMPLY WITH THIS OBLIGATION MAY, AT CITRIX'S
SOLE OPTION, RESULT IN THE TERMINATION OF THIS AGREEMENT OR SUSPENSION
OF THE CSN MEMBER PRIVILEGES AS STATED IN MS AGREEMENT UNTIL
COMPLIANCE IS OBTAINED.
1.4 CSN Member shall provide forecast information to its Citrix sales
representative at least once per month regarding sales leads,
referrals and services provided relating to the Products.
1.5 CSN Member represents and warrants that all the information provided
to Citrix hereunder, is, in all material respects, true and correct to
the best of its knowledge and belief, and will continue to be so
during the term of this Agreement. Should there be any changes in such
information during the course of this Agreement, CSN Member agrees to
promptly inform Citrix in writing, giving details of such changes.
1.6 Upon execution of this Agreement, the CSN Member shall pay the fees
set forth in Section 10 of the Agreement.
1.7 CSN Member shall post the CSN Member logo and associated text on their
company web site (if available) within thirty (30) days of the
Effective Date of this Agreement.
2. Citrix Obligations. Pursuant to this Agreement, Citrix grants the following
license, makes the following promises and undertakes the following
obligations to CSN Member:
2.1 Citrix grants to CSN Member a non-exclusive, non-transferable license
to distribute Products to end users in the Territory pursuant to the
license agreements included with such Products.
2.2 Citrix grants to CSN Member all the benefits set forth in Section 11
of this Agreement.
3. Trademarks.
3.1 During the term of this Agreement" CSN Member shall have the right to
identify itself as a "Citrix Authorized Solutions Provider."
3.2 During the term of this Agreement, CSN Member may refer to Products
using the Citrix product trademarks in compliance with local laws and
customs regarding the protection of trademarks and trade names if the
reference is not misleading and does not indicate or imply Citrix'
endorsement, testing, or approval of any other product or of any
service offered by CSN Member. The appropriate trademark symbol
(either'TM'[standard trademark] or'r'[registered trademark] in a
superscript following the product name) shall be used whenever a
Citrix Product name is mentioned in any advertisement, brochure, or
material circulated or published in any form whatsoever by CSN Member.
The appropriate trademark
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symbol must be used in conjunction with, at least, the first reference
to each Citrix Product in all CSN Member's publications.
3.3 Citrix reserves the right to amend any Citrix trademark, service xxxx
or logo and agrees to notify CSN Member of any such amendments that
are relevant to CSN Member's business. CSN Member agrees to ensure
that its use of any such xxxx and/or logo is amended accordingly.
3.4 CSN Member shall obtain Citrix' written approval prior to the
commencement of any other use of a Citrix trademark or trade name.
3.5 CSN Member shall not use any Citrix service xxxx during the term of
this Agreement or thereafter.
4. Confidentiality.
4.1 Each parry expressly undertakes to retain in confidence the terms and
conditions of this Agreement and all information transmitted to the
other that the disclosing parry has identified in writing as
confidential.
4.2 Either party may disclose confidential in Formation as required by
governmental or judicial order, provided such parry gives the other
parry prompt written notice prior to such disclosure and complies with
any protective order (or equivalent) imposed on such disclosure.
4.3 Neither party shall have an obligation to maintain the confidentiality
of information that (i) it received rightfully from a third party
prior to its receipt to the disclosing party; (ii) the disclosing
party has disclosed to a third party without any obligation to
maintain such information in confidence; or (iii) is independently
developed by the obligated party. Each party's obligation under this
Section shall survive the expiration or earlier termination of this
Agreement and shall extend to the earlier of such time as the
information protected hereby falls into the public domain through no
fault of the obligated party or five (5) years following termination
or expiration of this Agreement.
5. Term and Termination.
5.1 This Agreement shall take effect on the date of its execution by
Citrix ("Effective Date"), and unless terminated earlier as provided
herein, shall continue for a period of one year from the Effective
Date. Either party shall have the right to terminate this Agreement at
any time, without cause and without the intervention of the courts, on
the giving of thirty (30) days' prior written notice. Neither party
shall be responsible to the other for any costs or damages resulting
from the termination of this Agreement.
5.2 Upon expiration or termination of this Agreement, all rights and
licenses granted by this Agreement shall revert to Citrix and CSN
Member shall immediately cease use of all licenses and the CSN Member
logo, and shall cease to represent itself as a Citrix Authorized
Solutions Provider.
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6. New Products.
6.1 Notwithstanding any other provisions of this Agreement, Citrix may
elect at any time during the term of this Agreement to announce new
Citrix products to which the terms and conditions of this Agreement
may not apply. New versions (upgrades), minor product revisions
(updates), and maintenance releases of existing titles are not
considered new Citrix products.
7. Warranties/Limited Warranties.
7.1 Citrix warrants Products on the terms set out in the license agreement
accompanying each such Product. THESE LIMITED WARRANTIES ARE IN LIEU
OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED, IMPLIED, OR
STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, AND AGAINST INFRINGEMENT AND OF ALL
OTHER OBLIGATIONS, CONDITIONS, OR LIABILITIES ON CITRIX' PART EXCEPT
AS OTHERWISE PROVIDED BY APPLICABLE LAW.
8. Limitation of Liability.
8.1 Subject to applicable law, neither Citrix nor anyone else who has been
involved in the creation, production, or delivery of the products or
services that are the subject of this Agreement shall be liable for
any indirect, consequential or incidental damages (including damages
for loss of business profits, business interruption, loss of business
information, and the like) arising out of the use of or inability to
use the Citrix Products, or provision of, or failure to provide,
support, even if Citrix has been advised of the possibility of such
damages. Because some jurisdictions do not allow the exclusion or
limitation of consequential or incidental damages, the: above
limitation may not apply. In any event, except as otherwise provided
by law, the liability of Citrix or its suppliers, whether for
negligence, breach of contract, breach of warranty, or otherwise,
shall, in the aggregate, not exceed the amount paid to Citrix by CSN
Member hereunder.
9. Purchase Commitment; Territory.
9.1 The benefits offered to CSN Member pursuant to Section 11 am based
upon a commitment by CSN Member to achieve an annual minimum or equal
to One Hundred Fifty Thousand Dollars ($150,000) worth of Product
purchases from Citrix authorized distributors and Fifteen Thousand
Dollars ($15,000) worth of Citrix support service agreement purchases
from Citrix at CSN Member's cost. During the term of this Agreement,
CSN Member shall inform Citrix if, for any twelve-month period
beginning on the date of execution of this Agreement or, in subsequent
years, on the anniversary of such date, the CSN Member shall not
achieve this committed volume. The achievement of the committed volume
will be demonstrated at the close of each annual period by submission
to Citrix of copies of Distributor invoices for Products,
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9.2 CSN Member Territory: United States of America, Canada and Bermuda.
10. Fees, Payment Terms.
10.1 Fees - Current Year
A fee, as set forth below, for the Products and support services
provided by Citrix pursuant to this Agreement shall be submitted to
Citrix with CSN Member's signed copy of this Agreement. Payment by
credit card or check must be received in full by Citrix before CSN
Member receives CSN Member status and receives any privileges
contained in this Agreement. All payments shall be made in United
States Dollars.
There will be no fee if CSN Member meets its quota of One Hundred
Thousand Dollars ($100,000) in Citrix Product purchases from Citrix
authorized distributors (at the CSN Member's cost) during the term of
the previous CSN Member Agreement.
The fee will be Three Thousand One Hundred and Ninety Five Dollars
($3,195) if the CSN Member achieves between Fifty Thousand Dollars
($50,000) and One Hundred Thousand Dollars ($100,000) in Product
purchases from Citrix authorized distributors (at the CSN Member's
cost) during the term of the previous CSN Member Agreement.
The fee will be Four Thousand Nine Hundred and Ninety Five Dollars
($4,995) if the CSN Member achieves less than Fifty Thousand Dollars
($50,000) in Product purchases from Citrix authorized distributors (at
the CSN Member's cost) during the term of the previous CSN Member
Agreement.
It is the CSN Member's responsibility to submit the proof of Product
purchases from authorized distributors.
10.2 Fees - Subsequent Year
CSN Member may elect to renew this Agreement for one (1) additional
twelve (12) month term in accordance with the following. The
applicable fee is payable no later than the anniversary of the
Effective Date of this Agreement. If CSN Member does not remit payment
by the anniversary of the Effective Date, then this Agreement will be
terminate.
There will be no fee if CSN Member meets its quota of One Hundred
Fifty Thousand Dollars ($150,000) in Product purchases from Citrix
authorized distributors (at the CSN Member's cost) AND Fifteen
Thousand Dollars ($15,000) in Citrix service agreement purchases from
Citrix (at CSN Member's cost) during the term of this agreement.
The fee will be Three Thousand One Hundred and Ninety Five Dollars
($3,195) if the CSN Member achieves between Seventy Five Thousand
Dollars ($75,000) and One Hundred and Fifty Thousand Dollars
($150,000) in Product purchases
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from Citrix authorized distributors (at the CSN Member's Cost) OR
between Seventy Five Hundred Dollars ($7,500) and Fifteen Thousand
Dollars ($15,000) in Citrix service agreement purchases from Citrix
(at CSN Member's cost).
The fee will be Four Thousand Nine Hundred and Ninety Five Dollars
($4,995) if the CSN Member achieves less than Seventy Five Thousand
Dollars ($75,000) in Product purchases from Citrix authorized
distributors (at the CSN Member's cost) OR less than Seventy Five
Hundred Dollars ($7,300) in Citrix service agreement purchases from
Citrix (at CSN Member's cost).
The applicable fee is payable no later than the anniversary of the
Effective Date of this Agreement. If CSN Member does not remit payment
by the anniversary of the Effective Date, then this Agreement will be
terminate.
11. Citrix-Provided Products and Services.
11.1 Technical Support - Citrix will provide technical support by telephone
to each CSN Member. Such technical support shall:
11.1.1 Be provided to two (2) Citrix Certified Professionals (a Citrix
Certified Administrator or Citrix Certified Enterprise
Administrator); and,
11.1.2 Consist of access to a Citrix support engineer on weekdays
(other than nationally recognized holidays) between the hours
of 8:00 AM and 9:00 PM (EST) for reporting problems encountered
in the use of Products and the provision of workarounds
released by Citrix to address reported problems; and
11.1.3 Require the submission by email of a problem report which
includes a description of the software error and a test case
which demonstrates the error on the then current or penultimate
release of the Product.
11.1.4 Citrix reserves the right to revoke technical support in the
event that the CSN Member does not comply with the requirements
in Section 1.5 of this Agreement.
11.1.5 Technical support may be obtained for additional contacts at
Citrix's published rates in effect at time of order.
11.2 Marketing Development Programs
11.2.1 Marketing Development Funds - Citrix will provide up to Fifteen
Hundred Dollars ($1,500) in Marketing Development Funds, These
funds may be used to reimburse expenditures by CSN Member for
pre-approved demand generation activities (including but not
limited to seminars, mailings, advertising) during the term of
this Agreement. Marketing Development Funds that are
pre-approved by Citrix for demand generation activities must be
claimed within ninety (90) days upon completion of the
activity. If the claim is not submitted within said
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ninety (90) days, the prior approval will be null and void,
however the Marketing Development Funds shall remain available
for future activities. All unused Marketing Development Funds
shall expire one (1) year from the Effective Date.
Notwithstanding the foregoing, reimbursements pre-approved by
Citrix during the last quarter of the term of this Agreement
shall remain valid for ninety (90) days from such approval.
11.2.2 Co-operative ("Co-op") Marketing Monies - Citrix will set aside
Co-op Marketing Monies for the CSN Member in increments as are
set forth in the Citrix Marketing Development Fund Guidelines.
Marketing Development Funds are to be: used before Co-op monies
for all Citrix pre-approved marketing activities. Accrued Co-op
Marketing Monies must be claimed for a pre-approved Citrix
demand generation activity within six (6) months of accrual or
forfeited.
11.3 Volume Bonus Award
Volume Bonus Award Program - For every Fifty Thousand Dollars
($50,000) in Products purchased by CSN Member through authorized
distributors (as demonstrated by submission to Citrix of copies of
paid distributor invoices for Products), CSN Member will receive
Product as described in the terms of the Volume Bonus Award Program
document.
Citrix Support Service purchases can also be used towards Volume Bonus
Award claims. Citrix will allow Gold CSN Members to take 10% of the
CSN Member purchase price of any Citrix support agreements and apply
it toward their Volume Bonus Awards.
CSN Member must claim Volume Bonus Awards within the Agreement year.
However, Products purchased within the last thirty (30) days of the
agreement year may be claimed within the first thirty (30) days of the
new agreement year. After that, any purchases from the prior agreement
yew are no longer eligible for a Volume Bonus Award claim.
11.4 Sales Lead Program - During the term of this Agreement, CSN Member
will be eligible to participate in Citrix generated sales leads and
referrals programs offered by Citrix to Citrix Gold Solutions
Providers in CSN Member's designated market place. Citrix reserves the
right to audit sales leads follow-up by the CSN Member.
11.5 Web Page Listing - Citrix will list CSN Member on the Citrix Web Site
within thirty (30) days of CSN Member completing all requirements of
membership.
11.6 Citrix Sales Representative - Citrix will assign a Citrix sales
representative to assist CSN Member in the marketing of Products.
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11.7 Citrix Corporation Evaluation Program - Citrix grants to CSN Member a
non-exclusive, non-transferable license to sublicense a limited number
of copies of Products to end users for evaluation purposes only in
accordance with the terms of the Citrix Evaluation Program. The terms
of the Citrix Evaluation Program are available upon request and may be
amended by Citrix at any time.
12. General.
12.1 Except as expressly granted herein, no license regarding the use of
Citrix' copyrights, patents, trademarks or trade names is granted or
will be implied.
12.2 If a particular provision of the Agreement is terminated or held by a
court of competent jurisdiction to be invalid, illegal, or
unenforceable, this Agreement shall remain in full force and effect as
to the remaining provisions.
12.3 No waiver of any breach of any provisions of this Agreement shall
constitute a waiver of any prior, concurrent, or subsequent breach of
the same or any other provisions hereof, and no waiver shall be
effective unless made in writing and signed by an authorized
representative of the waiving party.
12.4 Neither this Agreement, nor any terms and conditions contained herein
shall be construed as creating a partnership, joint venture, franchise
or agency relationship between Citrix and CSN Member.
12.5 CSN Member agrees that it shall inform its customers that CSN Member
is an independent business from Citrix, and shall not hold itself out
as an agent of Citrix or attempt to bind Citrix to any third-party
agreement. CSN Member shall defend, indemnify, and hold harmless
Citrix from and against all liabilities, claims, costs, fines, and
damages of any type (including attorney's fees) arising out of or in
any way related to CSN Member's delivery of training services and/or
Product support to its customers.
12.6 This Agreement, and any rights or obligations hereunder, shall not be
assigned or sublicensed by CSN Member, without prior written consent
from Citrix.
12.7 This Agreement shall be governed by the laws of the State of Florida
and CSN Member consents to jurisdiction and venue in the state and
federal courts sitting in the State of Florida. If either Citrix or
CSN Member employs attorneys to enforce any rights arising out of or
relating to this Agreement, the prevailing party shall be entitled to
recover costs and attorney's fees.
12.8 The making, execution and delivery of this Agreement have been induced
by no representations, statements, warranties or agreements other than
those herein expressed.
12.9 No term or provision of this Agreement may be changed, waived,
discharged or terminated except by a writing signed by duly authorized
officers of the parties hereof. The terms of any other documents or
electronic communications exchanged (including the terms set forth on
any purchase order) shall be of no
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force or effect unless incorporated herein as a modification or
addition to the terms of this Agreement.
12.10 This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior and
contemporaneous communications including all prior and current Citrix
Authorized Reseller and Citrix Authorized Premier Reseller Agreements.
It shall not be modified except by a written agreement dated
subsequent to the Effective Date of the Agreement and signed on behalf
of CSN Member and Citrix by their respective duly authorized
representatives.
IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date set
forth below.
CITRIX SYSTEMS, INC. CSN MEMBER
0000 XX 0xx Xxx ------------------------
Xxxx Xxxxxxxxxx, XX 00000
By: By:
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Name: Name:
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Title: Title:
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Effective Date: Effective Date:
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