[SUN MICROSYSTEMS LOGO]
CHANNEL AGREEMENT
Sun Channel Agreement #
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SUN CHANNEL AGREEMENT
MASTER TERMS
THIS SUN MICROSYSTEMS, INC. CHANNEL AGREEMENT MASTER TERMS ("Master Terms"), is
made as of the 1st day of February, 2000 ("Effective Date") between Sun
Microsystems, Inc., with its address at 000 Xxx Xxxxxxx Xx, Xxxx Xxxx, XX 00000
("Sun"), and Design Automation Systems, Inc. with its address at 0000 Xxxxxxxx
Xxxxx 000, Xxxxxxx, XX 00000 ("Partner", "Regional Systems Partner" or "National
Systems Partner").
The parties agree as follows:
1. SCOPE OF AGREEMENT
1.1 Exhibits and Schedules. These Master Terms describe the general terms
by which Partner may purchase Products and Services from Sun or from
a Sun authorized Master Reseller as set forth in an Exhibit. The
specific terms related to the purchase of Equipment, Software and
Services are described in the appropriate Product Exhibits or Service
Exhibits and Schedules (collectively referred to as "Exhibits"). Each
Exhibit and these Master Terms together constitute a separate
agreement ("the Agreement"). Exhibits may be added or deleted from
time to time by the agreement of the parties, but Partner is only
authorized to purchase Products or Services hereunder to the extent
that one or more applicable Exhibit(s) is executed and in force.
1.2 Order of Precedence. The provisions of any Exhibit will take
precedence over these Master Terms, to the extent that they are
inconsistent.
2. DEFINITIONS
2.1 EQUIPMENT means the hardware components (may also be referred to as
"hardware") of Product and includes the media on which Software is
pre-loaded.
2.2 PRODUCTS(S) means any Equipment and Software delivered by Sun
directly or indirectly to Partner under the Agreement.
2.3 SERVICES(S) means any consulting, educational and support services
provided directly or indirectly to Partner under the Agreement.
2.4 SOFTWARE means any binary software (and related documentation)
provided by Sun directly or indirectly to Partner under the
Agreement.
3. TERM AND TERMINATION
3.1 Term. These Master Terms commence on the Effective Date and will
continue until the expiration or termination of all Exhibits.
Each Exhibit shall detail the commencement date of the Exhibit
("Exhibit Effective Date").
3.2 Termination at Will. Either party may terminate these Master Terms
for convenience on written notice to the other party in the event
that all Exhibits have been terminated or have expired.
3.3 Termination for Cause. Either party may terminate these Master Terms
and any or all Exhibits:
(a) immediately, by written notice, upon material breach by the
other party of the Agreement, if such breach cannot be
remedied;
(b) by written notice, if the other party fails to cure any
material remediable breach of the Agreement within thirty (30)
days of receipt of written notice of such breach;
(c) automatically if Partner ceases to do business in the normal
course, becomes or is declared insolvent or bankrupt, is the
subject of any proceeding relating to the liquidation or
insolvency of Partner which is not dismissed within ninety (90)
days or makes an assignment for the benefit of its creditors;
(d) immediately by written notice if Partner undergoes any change
in ownership or control (whether by way of voting or contract
rights or otherwise) or in its business, which change Sun
considers material, in light of the fact that Partner has been
appointed by Sun because of its present financial, technical
and managerial conditions.
3.4 Termination by Sun. In addition to the general reasons set forth in
Sections 3.2 and 3.3 above, Sun may terminate these Master Terms and
any or all Exhibits, immediately by written notice if Partner:
(a) breaches any Sun Software license;
(b) breaches Section 5 (Confidential
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Information) of these Master Terms;
(c) breaches (or Sun reasonably believes Partner will breach) the
U.S. Export Administration Regulations, the U.S. Foreign Corrupt
Practices Act or similar laws or regulations of any other
government; or
(d) infringes or challenges the validity of any Sun copyright or Sun
Trademark (as defined herein).
3.5 Consequences of Termination or Expiration. Upon any expiration or
termination of the Agreement (or all of them), the following will
occur:
(a) all outstanding invoices and amounts owing from Partner to Sun
will thereupon become immediately due and payable;
(b) Sun will have the right of first refusal to repurchase Products
in Partner's inventory at the lower of net invoice price or the
then fair market value, as may be adjusted for any amounts due
but unpaid pursuant to Section 3.5(a). If Sun desires to exercise
this right, it will do so by written notice. Except in the case
of Sun's termination for material breach, for a period of ninety
(90) days from the date of termination or expiration, Partner may
sell and/or license under the terms of the Agreement any
inventory Sun elects not to repurchase;
(c) Sun will have the right to cancel by written notice all or part
of any unfulfilled order previously accepted by Sun. To the
extent that Sun does not cancel any such order, the Agreement
will continue to apply to such order;
(d) Partner will immediately return all Sun property under Partner's
control (including without limitation all Sun confidential
information, schematics, manuals, Software and Sun business
plans) and remove, cancel and/or cease to use the Sun Trademarks,
any signs or other advertising materials referring to Sun, or
Products or Services or to Partner as an authorized reseller of
Sun; and
(e) all of Partner's rights under the Agreement shall immediately
cease and Partner shall at no time in the future represent that
it is an authorized reseller of Sun or that it is in any way
associated with Sun or Products or Services.
3.6 Survival. Rights and obligations under the Agreement which by their
nature should survive, will remain in effect after termination or
expiration of the Agreement.
3.7 No Liability for Termination or Expiration. The right of termination
or expiration provided herein is absolute. Each party waives and
releases the other from any claim to compensation or indemnity related
to the permitted or lawful termination of the business relationship
established under the Agreement.
4. COMMERCIAL TERMS
4.1 Commercial terms for Partners who purchase Products or Services from a
Sun authorized Master Reseller will be determined by Partner's
agreement with such Master Reseller. This Section 4.1 applies only to
Partners who purchase Products or Services directly from Sun.
(a) Prices and Taxes. Prices and fees for Products and Services are
exclusive of all shipping and insurance charges, and do not
include sales tax or any other tax based upon the value of
Products and/or Services. Partner is responsible for payment of
all such charges and taxes.
(b) Payments. If Partner satisfies Sun's credit requirements, payment
terms are net thirty (30) days from (i) the date of invoice for
Products or Services, or (ii) where Partner is purchasing
Products, the date of shipment of Products, whichever is the
later. Otherwise terms are cash in advance of delivery. Sun in
its reasonable commercial judgment may place Partner on credit
hold, in which event, Sun will promptly inform Partner and may:
i) with respect to Product purchases, delay or reschedule Partner
orders, and ii) with respect to Services, discontinue delivery
upon thirty (30) days' written notice to Partner. Interest will
accrue from the date on which payment is due at the lesser of
fifteen percent (15%) per annum or the maximum rate permitted by
applicable law. Partner will not be required to pay the disputed
portion of any invoice, pending resolution of that dispute,
provided that written notice of the dispute has been forwarded to
Sun in writing within fifteen (15) days of the date of that
invoice.
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4.2 Records and Audits. During the term of the Agreement and for a period
of five (5) years thereafter, Partner will maintain accurate records
as necessary to verify compliance with the Agreement. Sun may audit
these records at any time after reasonable written notice to verify
compliance. Sun will conduct this audit through an independent auditor
of Sun's choice ("Auditor"). Auditor will be bound to keep
confidential the details of the business affairs of Partner and to
limit disclosure of the audit results to only the sufficiency of the
records, including, whether Partner is in compliance with the terms of
the Agreement and the amount, if applicable, of any required
additional payment or other payment adjustment. Except as described
below, Sun will bear all costs and expenses associated with the
exercise of its audit rights. Any errors in payments identified will
be corrected by Partner by appropriate adjustment in payment for the
quarterly period during which the error is discovered. In the event of
an underpayment of more than five percent (5%), Partner will reimburse
Sun the amount of the underpayment, the reasonable charges of the
Auditor in performing the audit that identified the underpayment, and
interest on the overdue amount at the maximum allowable interest rate
from the date the obligation accrued.
5. CONFIDENTIAL INFORMATION
If either party desires that information provided to the other party under
the Agreement be held in confidence, that party will, prior to or at the
time of disclosure, identify the information in writing as confidential or
proprietary. The recipient may not disclose such confidential or
proprietary information, may use it only for purposes specifically
contemplated in the Agreement, and must treat it with the same degree of
care as it does its own similar information, but with no less than
reasonable care. These obligations do not apply to information which:
a) is or becomes known by recipient without an obligation to maintain its
confidentiality; b) is or becomes generally known to the public through no
act or omission of recipient; or c) is independently developed by recipient
without use of confidential or proprietary information. This section will
not affect any other confidential disclosure agreement between the parties.
6. LIMITED WARRANTIES
6.1 Product and Service Warranties. Any warranties for Products and
Services will be specified in the Exhibit(s).
6.2 Year 0000 Xxxxxxxx.
(a) Sun warrants that specified versions of Products identified on
Sun's external Website (url: xxx.xxx.xxx/x0000/xxx.xxxx) as being
Year 2000 compliant ("Listed Products") will not produce errors
in the processing of date data related to the year change from
December 31, 1999 to January 1, 2000. Date representation,
including leap years, will be accurate when Listed Products are
used in accordance with their accompanying documentation,
provided that all hardware and software products used in
combination with Listed Products properly exchange date data with
them.
(b) Versions of Products identified on Sun's external Web site as not
yet compliant, but which are scheduled to be made compliant, will
become Listed Products when remedial replacement parts, patches,
software updates or subsequent releases ("Y2K Fixes") are issued
and properly installed.
(c) Other Products are not covered by these warranties.
(d) To the extent that Sun installs Y2K Fixes or performs other
Services under the Agreement for Partner, Sun respectively
warrants that:
(i) upon installation of the Y2K Fixes, Products will become
Listed Products; and
(ii) Services performed on Listed Products will not result in
them ceasing to be Listed Products.
(e) Partner's sole and exclusive remedy for Sun's breach of these
warranties will be for Sun at its option: (i) to use commercially
reasonable efforts to repair Listed Products or provide Y2K
Fixes, as the case may be; (ii) to supply functionally equivalent
Year 2000 compliant products; or (iii) if (i) and (ii) are
commercially unreasonable, to refund to Partner its net book
value respectively for non-compliant Listed Products or products
for which scheduled Y2K Fixes were not provided.
6.3 DISCLAIMER OF WARRANTIES. UNLESS SPECIFIED IN THE AGREEMENT, ALL
EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES,
INCLUDING ANY IMPLIED WARRANTY OF
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MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT,
ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO
BE LEGALLY INVALID.
7. IMPORT AND EXPORT LAWS
All Products, Services and technical data delivered under the Agreement are
subject to U.S. export control laws and may be subject to export or import
regulations in other countries. Partner agrees to comply strictly with all
such laws and regulations and acknowledges that it has the responsibility to
obtain such licenses to export, re-export or import as may be required after
delivery to Partner.
8. NUCLEAR APPLICATIONS
Partner acknowledges that Products and/or Services are not designed or
intended for use in the design, construction, operation or maintenance of
any nuclear facility. SUN DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF
FITNESS FOR SUCH USES.
9. TRADEMARKS
9.1 Trademarks. "Sun Trademarks" means all names, marks, logos, designs,
trade dress and other brand designations used by Sun in connection with
Products and Services. Partner may refer to Products and Services by
the associated Sun Trademarks provided that such reference is not
misleading and complies with Sun's Trademark and Logo Policies. Partner
may not remove or alter any Sun Trademarks, nor may it co-logo
Products. Partner agrees that any use of Sun Trademarks by Partner
will inure to the sole benefit of Sun or its licensors. Partner agrees
not to incorporate any Sun Trademarks into Partner's trademarks,
service marks, company names, internet addresses, domain names, or any
other similar designations.
9.2 Special Program Logos. Partner may use the special program logo, if
any, applicable to Partner's appointment, as established in any Exhibit
only: (a) as shown in the artwork provided by Sun; (b) in pre-sale
marketing materials and advertising, but not on goods, packaging,
product labels, documentation or other materials distributed with
Products; (c) in a manner no more prominent than Partner's corporate
name and logo; and (d) otherwise in accordance with the then current
Sun Trademark and Logo Policies.
9.3 Use of Partner Information. Sun has the right to disclose and publish
Partner's name, address and profile information in connection with
Sun's Partner programs.
10. INTELLECTUAL PROPERTY CLAIMS
Sun will indemnify Partner for its reasonable expenses and will defend or
settle at Sun's option and expense any legal proceeding brought against
Partner, to the extent that it is based on a claim that Products infringe a
trade secret, a trademark, a mask work, a copyright or a patent. Sun will
pay all damages and costs awarded by the court which finally determines the
case or are incurred in the settlement thereof, provided that Partner: (a)
gives written notice of the claim promptly to Sun; (b) give Sun sole
control of the defense and settlement of the claim; (c) provides to Sun all
available information and assistance; and (d) has not compromised or settled
such claim. If any Products or Materials are found to infringe, or in Sun's
opinion are likely to be found to infringe, Sun may elect to: (a) obtain for
Partner the right to use such Products and/or Materials; (b) replace or
modify such Products and/or Materials so that they become non-infringing; or
if neither of these alternative is reasonably available, (c) remove such
Products and/or Materials and refund Partner's net book value for these
Products and/or Materials. Sun has no obligation under this Section 10 for
any claim which results from: (a) use of Products and/or Materials in
combination with any equipment, software or data not provided by Sun; (b)
Sun's compliance with designs or specifications of Partner; (c) modification
of Products and/or Materials; or (d) use of an allegedly infringing version
of any Products and/or Materials, if the alleged infringement could be
avoided by the use of a different version made available to Partner. THIS
SECTION 10 STATES THE ENTIRE LIABILITY OF SUN AND EXCLUSIVE REMEDIES OF
Partner FOR CLAIMS OF INFRINGEMENT.
11. LIMITATION OF LIABILITY
Except for obligations under Section 10 (Intellectual Property Claims), or
Section 12 (Indemnity and Insurance) or breach of any applicable license
grant, and to the extent not prohibited by applicable law (i) each party's
aggregate liability to the other for claims relating to the Agreement,
whether for breach or in tort, including but not limited to negligence, will
be limited to the amount paid to Sun for Products, Services, or Materials
which are the subject matter of the claims, and (ii) neither party will be
liable for any indirect, punitive, special, incidental or consequential
damages in connection with or arising out of the Agreement (including loss
of business, revenue, profits, use, data or other economic advantage)
however it arises, whether for breach or in tort, even if that
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party has been previously advised of the possibility of such damage. LIABILITY
FOR DAMAGES WILL BE LIMITED AND EXCLUDED EVEN IF ANY EXCLUSIVE REMEDY PROVIDED
FOR IN THE AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
12. INDEMNITY AND INSURANCE
Except for claims arising under Section 10 (Intellectual Property Claims),
Partner will indemnify Sun and its suppliers from and against all claims,
liabilities, damages and costs (including legal fees and costs), relating
to (i) Partner's use or distribution of Products and Services under the
Agreement or (ii) any acts or omissions of Partner. Partner shall carry
liability insurance to protect Sun from all such claims, pay the premiums
therefor, and deliver to Sun, upon request, proof of such insurance (which
shall require thirty (30) days' written notice to Sun in event of
modification or termination).
13. FORCE MAJEURE
A party is not liable under the Agreement for non-performance caused by
events or conditions beyond that party's control, if the party makes
reasonable efforts to perform. This provision does not relieve either party
of its obligations to make payments then owing.
14. WAIVER OR DELAY
Any express waiver or failure to exercise promptly any right under the
Agreement will not create a continuing waiver or any expectation of non-
enforcement.
15. ASSIGNMENTS
Neither party may assign or otherwise transfer any of its rights or
obligations under the Agreement, without the prior written consent of the
other party, except that Sun may assign its right to payment, assign the
Agreement to an affiliated company, or subcontract the delivery of Services
or Products. If Sun elects to subcontract Service or Product delivery, Sun
will remain primarily responsible for delivery.
16. RELATIONSHIP OF THE PARTIES
An Agreement is not intended to create a relationship such as a
partnership, franchise, joint venture, agency, or fiduciary or employment
relationship. Neither party may act in a manner which expresses or implies
a relationship other than that of independent contractor, nor bind the
other party.
17. NOTICES
All written notices required by the Agreement must be delivered in person
or by means evidenced by a delivery receipt or via email or website and
will be effective upon receipt.
18. SEVERABILITY
If any provision of the Agreement is held invalid by any law or regulation
of any government or by any court or arbitrator, such invalidity will not
affect the enforceability of any other provisions.
19. GOVERNING LAW
Disputes which cannot be settled amicably will be governed by the laws of
California and controlling US Federal law. Choice of law rules of any
jurisdiction and the United Nations Convention on Contracts for the
International Sale of Goods will not apply.
20. ENTIRE AGREEMENT
20.1 An Agreement (which includes the applicable Exhibit) is the parties'
entire agreement relating to its subject matter. It cancels and
supersedes all prior or contemporaneous oral or written
communications, proposals, conditions, representations and warranties
and prevails over any conflicting or additional terms of any quote,
order, acknowledgment, or other communication between the parties
relating to its subject matter.
20.2 No modification to the Agreement will be binding, unless in writing
and signed by an authorized representative of each party.
20.3 The provisions of this Agreement are not altered by the terms and
conditions of any other agreement Partner may have with Sun.
21. SURVIVAL
Rights and obligations under this Agreement which by their nature should
survive, will remain in effect after termination or expiration.
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IN WITNESS WHEREOF, THE DULY AUTHORIZED REPRESENTATIVES OF THE PARTIES HAVE
EXECUTED THESE MASTER TERMS AS OF THE EFFECTIVE DATE.
SUN MICROSYSTEMS, INC. PARTNER
By: By:
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Name: Name:
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Title: Title:
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Date: Date:
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[SUN MICROSYSTEMS LOGO] Sun Channel Agreement
#
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EXHIBIT A
Software Products
(Partner)
This SMI Software Exhibit ("Software Exhibit") between Sun Microsystems, Inc.
and Partner is an attachment to the Master Terms between Sun and Partner and is
effective as of the date of execution by Sun ("Exhibit Effective Date"). The
Master Terms are an integral part of this Software Exhibit and are incorporated
by reference herein.
1. DEFINITIONS
1.1 "BCL" means the Sun binary code license contained in Software or
related documentation.
1.2 "Channel Web" means Sun's proprietary software channel information
system."
1.3 "End User" means the entity licensed to use Software under a BCL. If
End User is a corporation or other entity, then, for license fee
purposes, "End User" includes each individual within such corporation
or entity licensed to use Software under the BCL.
1.4 "Error" means any reproducible failure or Software to perform its
intended function or any significant inaccuracy in its related
documentation.
1.5 "Error Correction" means a modification, procedure, patch or routine
intended to correct the practical adverse effect of an Error.
1.6 "Fees" means the fees set forth in the Price List.
1.7 "Guide" means the Sun Channel Program Guide or Guides relating to
Software ordered under this Software Exhibit.
1.8 "NFR Software" means Software designated on the Channel Web as "not
for resale" software.
1.9 "Price List" means the applicable Sun Price List current at the time
of execution of this Software Exhibit and any subsequent price
changes made by Sun under Section 3.4 of this Software Exhibit.
1.10 "Software", in addition to the definition in the Master Terms,
includes Error Corrections, Upgrades, NFR Software and Subscription
Kits.
1.11 "Software Release" means a release of Software that is designated by
Sun in its sole discretion by a change in the digit(s) to the left
of the decimal point in the Software version number [(x).x.x].
1.12 "Subscription Kit" means tangible or electronically downloadable
materials designated in the Price List as a Sun Software Subscription
Program Product and delivered in kit form.
1.13 "Territory" means the countries or geographic regions identified in
Schedule 1 to this Software Exhibit.
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1.14 "Update" means a release of a Software that is designated by Sun in
its sole discretion by a change in the digit(s) to the right of the
tenths digit in the Software version number [x.x.(x)].
1.15 "Upgrade" means Updates, Version Releases, or Software Releases that
Sun makes generally commercially available.
1.16 "Version Release" means a release of a Software that is designated by
Sun in its sole discretion by a change in the tenths digit in the
Software version number [x.(x).x].
2. APPOINTMENT OF PARTNER
2.1 Appointment. Sun appoints Partner as a nonexclusive "Authorized
Software Enterprise Partner" and grants Partner the nonexclusive and
nontransferable right to distribute Software to End Users in the
Territory. Sun will segregate Software into product specialty
categories and provide Partner with written notice of these
categories. Certain Software, as identified in the Guide, may only be
purchased from Sun Authorized Distributors. Partner will not
advertise, sell, lease or ship Software outside the Territory without
Sun's prior written consent. Partner may not open Software prior to
delivery to End Users.
2.2 Guide. The Guide sets forth additional terms and information
concerning special promotions and programs relating to the Sun
Software Channel Program. Partner may participate in these promotions
and programs, provided that Partner is in compliance with its other
obligations under the Agreement, and any other agreement with Sun or
its affiliated companies, including payment and reporting
obligations. Sun has the right to change the Guide at any time
without notice. Changes to the Guide may be provided via the Channel
Web and Partner agrees to be bound by these changes. For Partners who
do not have regular access to the internet and Channel Web,
printed copies of changes to the Guide will be provided by Sun upon
written request.
2.3 Obligations. Partner agrees to: (a) actively market and support
Software; (b) follow up on any leads provided by Sun (which will be
considered Sun Confidential Information); (c) ensure that the
marketing and support efforts for Software are conducted by
identified and trained personnel within Partner who have knowledge of
Software and meet the training requirements in the Guide; (d) provide
Sun on a quarterly basis with a relationship planning document as
described in the Guide; and (e) not misrepresent Software or make any
representation or warranty inconsistent with the Master Terms, this
Software Exhibit or a BCL.
3. COMMERCIAL TERMS
3.1 Direct Purchases Only. Commercial terms for Partners who purchase
Software from a Sun Authorized Distributor will be determined in
Partner's agreement with such Distributor. This Section 3 applies
only to Partners purchase of Software directly from Sun.
3.2 Reporting. Partner will provide to Sun a written point-of-sale report
by the fifth (5/th/) working day of each month that includes the name
and address of each End User, dollar volume, type and quantity of
Software distributed and other information described in the Guide.
Partner acknowledges that it will not receive marketing funds unless
it has met all
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Sun Channel Agreement
Exhibit A Software Products
point-of-sale requirements. In addition, on the first business day of
each calendar quarter, Partner will provide Sun a rolling six (6)
month non-binding forecast of Partner's annual projected shipments for
each Software distributed under this Agreement. With each forecast,
Partner will also provide a completed relationship management document
as described in the Guide. Upon request, Partner will provide Sun with
audited financial statements.
3.3 Returns. Commencing on the Exhibit Effective Date, on a quarterly
basis Partner may request to return for credit, a quantity of Software
(other than NFR Software) the net Fees for which will not exceed ten
percent (10%) of the cumulative net Fees for Software shipped to
Partner during the immediately preceding quarter. Before returning any
Software, Partner must obtain from Sun a "Return Material
Authorization" (RMA). Partner must place an offsetting order with Sun
for Software of dollar value at least equal to any credit issued
hereunder. No more than one percent (1%) of all returned Software may
be in opened packages. Partner may not deduct the amount of any credit
from outstanding invoices. Partner will be responsible for paying all
freight and shipping charges for Software returned under this Section
3.3. Stock rotation is not available for discontinued Software.
3.4 Payments. For all Software purchased under this Software Exhibit,
Partner will pay Sun an amount equal to the Fee, less the applicable
discount set forth in Schedule 1.
3.5 Price Changes. Sun reserves the right to change the Price List,
discounts and Fees for any Software at any time without approval of
Partner. Changes which result in a decrease in Fees will take effect
immediately upon announcement. In the event of a change which
increases Fees, Sun will provide Partner with thirty (30) days prior
written notice. If, during the term of this Software Exhibit, Sun
decreases the Fee for any Software, Partner will be entitled to a
credit toward new orders for any Software placed within thirty (30)
days after announcement by Sun. This credit will be equal to the
difference between the new Fee and the Fee paid by Partner less any
previous credits provided, for the affected Software multiplied by the
quantity of that Software in Partner's inventory as of the date of the
announcement. In order to claim this credit, Partner must, within
thirty (30) days of announcement of a change which decreases Fees,
supply Sun with a written report including: (a) the identification of
all affected Software which were in Partner's inventory immediately
prior to announcement of the decrease; (b) the net Fee for this
Software before and after the decrease and (c) other information as
Sun may reasonably request. Sun will issue the credit to Partner
within sixty (60) days from the date Sun receives the report. All
orders for Software scheduled for shipment or in transit to Partner at
the time of the announcement will be adjusted to the decreased Fee.
3.6 Delivery and Title. Software purchase orders will be submitted to Sun
by Partner under the terms of this Software Exhibit and subject to a
minimum of Five Thousand Dollars ($5,000) per order. Sun will deliver
Software Ex Works, Sun facilities. Partner assumes all risk of loss or
damage upon delivery of Software. Partner acknowledges that it does
not take title to Software, with the exception of media and printed
materials, but rather licenses Software under the terms of this
Agreement.
3.7 Updates, Version Releases and Software Releases. Fees are for the
Software releases current as of the Effective Date. Except as provided
in Section 4 of this Software Exhibit, Updates, Version Releases and
Software Releases may require additional payment and be subject to
additional terms. Sun may, without Partner's approval and without
incurring any liability to Partner, modify Software or discontinue its
manufacture, sale or support upon thirty (30) days prior written
notice to Partner.
4 UPGRADES AND OBSOLESCENCE
4.1 Direct Purchases Only. This Section 4 applies only to Partner's
purchase of Software directly from Sun.
4.2 Upgrades. Subject to the terms below, Partner may upgrade unopened
Software in its inventory before the date Sun commences shipment of a
new Upgrade ("Commencement Date").
(a) Updates from the immediately proceeding Update version will be
provided to a Partner at no charge.
(b) Upgrades to a Version Release or Software Release from the
immediately preceding Version Release or Software Release will be
provided to Partner at no charge unless Sun increases its Fees
for the new release. If Sun increases its Fees, the new release
will be made available to Partner at the incremental price
difference between the original Fee paid by Partner and the Fee
for the new release.
(c) To receive Upgrades under this Section 4, Partner must provide
Sun with a written request for the Upgrade, obtain an RMA and
return to Sun all Software to be upgraded. Partner will pay all
shipping charges for returned Software and Upgrades ordered under
this Section 4. Sun will credit Partner with the total amount
Partner paid for the returned Software if the return is
accompanied by a firm order for the immediate delivery of
Upgrades whose total payment amount at least equals that of the
returned Software. Partner is limited to two (2) upgrade requests
for each Update, Version Release and Software Release. The first
request must be received by Sun within thirty (30) days of the
Commencement Date and the second request within ninety (90) days
of the Commencement Date. If Partner fails to make the requests
within the time frame described, Partner will no longer have the
right to upgrade Software under this Section 4.
(d) For a period of ninety (90) days after Sun discontinues offering
Software, Partner will have the right, shipping prepaid and
retaining all risk of loss, to return the unopened discontinued
Software to Sun. Sun will credit Partner with the total amount
Partner paid for the discontinued Software if the return is
accompanied by a firm order for the immediate delivery of other
Software whose total payment amount at least equals that of the
returned Software.
5. SUBSCRIPTION KITS
5.1 Distribution of Subscription Kits. Sun grants to Partner a non-
transferable, nonexclusive, limited license to distribute Subscription
Kits within the Territory. "Subscription Kit" means tangible or
electronically downloadable materials for Licensed Products designated
in the applicable Sun price list as a Sun Software Subscription
products and delivered in a kit form. Subscription Kits contain (i) a
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Sun Channel Agreement
Exhibit A Software Products
certificate for the Sun Software Subscription services entitling an
End User to receive drop-shipments of upgrades for Licensed Products
directly from Sun; (ii) Sun Software Subscription services program
terms; (iii) End User registration and acceptance forms to be
completed and returned to Sun; and (iv) marketing collateral.
5.2 Restrictions. Partner may not open any Subscription Kit prior to
delivery to End Users. Partner may not sell or distribute
Subscription Kits unless the End User has first provided satisfactory
proof of its license for the most current version of the Licensed
Products. Proof of End User's current license will be satisfied by
the End User showing Partner copies of its license or install disk,
cover page of the install disk manual or other form of proof
satisfactory to Sun that End User is licensed to the current version
level. Subscription Kits may be purchased only from Authorized
Distributors or Sun.
5.3 Returns. In the event an End User does not accept the terms provided
in the Subscription Kit and elects within fifteen (15) days of
purchase to return the Subscription Kit to Partner, Partner must
accept return of the Subscription Kit and refund the fees paid by End
User. Partner may return, shipping prepaid, to the Authorized
Distributor from which the Subscription Kit was purchased, the
Subscription Kit returned by the End User for a refund of the fees
paid by Partner, provided, however, that: (i) the Subscription Kit
was properly returned to Partner by the End User within fifteen (15)
days of its purchase; and (ii) Partner requests and has received a
Return Material Authorization ("RMA") number from the Authorized
Distributor within five (5) business days of the Subscription Kit's
return by the End User to Partner.
5.4 Other Programs. Any additional subscription offerings and
requirements are set forth in the Guide.
6. NOT FOR RESALE SOFTWARE
6.1 Purchase. As part of the Sun Software Channel Program, Partner may
obtain not-for-resale copies of Licensed Products ("NFR Software").
Licensed Products available as NFR Software are designated on the
Channel Web and may be ordered only from Authorized Distributors and
Sun. Partner may use no more than one (1) copy of each NFR Software
at each Partner business location. Each location at which NFR
Software is used must be staffed with Partner employees who have met
all applicable training, testing and authorization requirements set
forth in the Guide.
6.2 Labeling and Use. NFR Software must at all times be clearly labeled
"Not For Resale Software" and may be used only for purposes of
internal staff training, pre-sales support, Partner demonstrations
and Sun approved marketing.
6.3 Destruction of NFR Software. Partner must destroy all NFR Software:
(i) upon notice that the NFR Software has been discontinued or is
available as a new revision release or (ii) if it is no longer being
used on a regular basis by Partner for the purposes described in
Section 6. To obtain new revision releases of NFR Software, Partner
must provide Authorized Distributor or Sun with written certification
that the NFR Software has been destroyed.
6.4 Restrictions. Partner may not use the NFR Software for development of
software programs; nor copy, resell or distribute the NFR Software to
any third party. In addition to this Section 6, Partner's use of NFR
Software is further subject to the terms of the BCL which accompanies
the software.
7. SUPPORT
During the term of this Agreement, Partner will provide prospective
End Users with complete pre-sale support, and End Users with post-
sale support as provided in the Guide.
8. SUN SOFTWARE CHANNEL PROGRAM WEB SITE
Subject to the following, Sun will provide Partner with an account login,
password and the site URL for the Channel Web.
8.1 Use of Web Contents. Title to and ownership in all products,
Including software products, documents and other program information
contained in the Channel Web ("Web Contents") will solely and exclusively
be and remain in Sun and its licensors. Partner may use Web Contents only
for: (a) its internal evaluation purposes and (b) at its primary business
facility. If the software products accessed as part of Web Contents
contain third party code, Partner's use of the products may be subject to
additional terms. Partner is not authorized to make any modifications or
revisions to Web Contents nor distribute Web Contents to any third party.
Partner will indemnify Sun from all liability, expense, and damage of any
type arising from Partner's violation of this Section 8.1.
8.2 No Support for Web Contents. Partner acknowledges that Sun is
not obligated to make any of Web Contents available as a final Sun
product. Sun retains the right to make any modifications or changes to Web
Contents at any time without prior notice to Partner. Web Contents are
provided strictly on an "AS IS" basis. Partner acknowledges that no
support will be provided by Sun for the software product(s) contained in
the Web Contents.
9. WARRANTIES AND DISCLAIMER
Sun warrants that for a period of ninety (90) days from Partner's receipt
of Software provided under this Software Exhibit, the media on which the
Software is furnished will be free of defects in materials and workmanship
under normal use. Partner's exclusive remedy and Sun's entire liability
under this limited warranty will be for Sun to replace the Software media.
10. ADDITIONAL LIMITATIONS
IN NO EVENT WILL ANY ENTITY WORKING WITH SUN ON THE DEVELOPMENT AND SUPPLY
OF ANY LICENSED PRODUCT OR PART THEREOF BE LIABLE UNDER THIS AGREEMENT.
11. TERM AND TERMINATION.
This Software Exhibit will commence upon the Software Effective Date.
Unless earlier terminated as provided in the Master Terms, this Software
Exhibit will remain in effect until the date established in the following
schedule:
Effective Date Expiration Date
-------------- ---------------
(Of the following year)
-----------------------
March 1 - August 31 August 31
September 1 - February 28 February 28
Page 3 of 5
Sun Channel Agreement
Exhibit A Software Products
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the parties have authorized their representatives to execute
this Software Exhibit effective as of the Effective Date written below.
SUN MICROSYSTEMS, INC. Partner
By: By:
--------------------------------- ------------------------------
Name: Name:
--------------------------------- ------------------------------
(printed or typed) (printed or typed)
Title: Title:
--------------------------------- ------------------------------
Effective Date: Date:
------------------------- ------------------------------
--------------------------------------------------------------------------------
Page 4 of 5
Sun Channel Agreement
Exhibit A Software Products
--------------------------------------------------------------------------------
Schedule I
to Software Exhibit
(Partner)
1. Territory: United States
2. Discount: Discount for Software on the Sun-Netscape Alliance Price List shall
be thirty-two percent (32%) off the MSRP as noted on such Price List.
--------------------------------------------------------------------------------
Page 5 of 5
[LOGO OF SUN MICROSYSTEMS APPEARS HERE]
SUN PARTNER AGREEMENT #____________
EXHIBIT B
EQUIPMENT PRODUCTS
This Sun Equipment Exhibit ("Equipment Exhibit") is effective on February 1,
2000 ("Equipment Exhibit Effective Date") between Sun Microsystems Inc. and
Partner, and is an attachment to the Master Terms between Sun and Partner. The
Master Terms are an integral part of this Equipment Exhibit and are incorporated
by reference.
1. DEFINITIONS
A. "Approved buying and selling locations" means those location addresses
whose identity is set out in Attachment A.
B. "End User" means the entity purchasing Equipment for its own use.
C. "Guide" means the Sun Partner Reference Guide.
D. "Master Reseller" means a designated Sun Authorized master reseller.
E. "Price List" means the applicable Sun Price List current at the time
of execution of this Equipment Exhibit and any subsequent price
changes made by Sun.
F. "Sun Funds" means Sun Enterprise Development Funds.
2. APPOINTMENT OF PARTNER
A. Appointment.
(1) Sun appoints Partner as a non-exclusive Partner ("Partner").
Partner is authorized to purchase available Product directly from
Sun or from its designated Master Reseller. Product must be (i)
sold, leased or rented (collectively referred to as "sold"); (ii)
sold directly to End Users via personal contact, web or directly
to End Users via personal contact, web or telesales basis; and
(iii) installed and supported on a face to face basis at an End
User site in the United States ("Authorized Sale"). Partner is
permitted to outsource services up to ten percent (10%) of its
purchases of Product under this Exhibit B.
(2) The sale of Products to any entity other than an End User is
prohibited. The sale of Products to the Federal Government is
prohibited unless Partner executes a Government System (GSI)
Agreement. Partner's primary business must at all times be the
sale and support of computer systems and related services.
B. Guide. Sun's Partner's policies are detailed in its Partner Reference
Guide located at xxxx://xxxxxxx.xxx.xxx/XX/. Partner represents that
it has read the Guide and will comply with all applicable rules and
procedures. Sun may modify the Guide from time to time upon thirty
(30) days' Notice.
3. SUN FUNDS
Partner will receive from Sun, Sun Funds on certain sales of Products
computed at Sun's list price, excluding Products not purchased for resale
and Products that Partner's Master Reseller did not purchase from Sun. Sun
may modify this Section upon thirty (30) days' Notice.
4. BUSINESS PLAN
Partner has submitted a Business Plan to, and which has been reviewed by,
Sun (attached as Attachment B). Partner has represented to Sun that the
Business Plan accurately reflects the manner in which it intends to market
and support Products. Either party may initiate a review of the accuracy of
Partner's Business Plan upon thirty (30) days' notice, provided that Sun
shall initiate no more than one review per calendar quarter.
5. ATTACHMENTS
The Attachments may be modified only upon the mutual consent of the
parties, except that Sun may modify Attachment C (Object Code License) at
any time. The current version of each Attachment is hereby incorporated by
reference.
6. PARTNER'S OBLIGATIONS
A. Sale and Support. Partner shall use its best efforts to promote the
sale of Products, and shall purchase and maintain the demonstration
equipment identified in the Guide for each authorized selling
location. Partner shall provide to each End User, as detailed in the
Guide and the Business Plan; (i) complete pre- and post-installation
support, including complete installation, training, and continuous
technical service and (ii) hardware and software maintenance support.
Partner must meet the additional Competency requirements detailed in
the Guide prior to selling or installing Products more than 200 miles
from an authorized selling location. The sale and direct support of
Products must be performed at all times by full-time employees who are
Sun trained and Sun certified, including at least one full time Sun
dedicated sales representative and one full time, Sun dedicated
systems engineer. Training and certification may be secured directly
from Sun or from any Sun Authorized training provider. Sun's support
options are set out in the Guide. Certification requirements are
detailed in the Guide.
B. Spare Parts. The use of spare parts purchased under the authority
granted by this Agreement is strictly limited to (i) resale to an
Partner's End User for internal use, or (ii) the service of Products
sold and installed by Partner under this Agreement, except that
Partner may use such parts to service all of an End User's systems if
Partner has sold and installed at least twenty-five percent (25%) of
the systems for which service is being provided.
C. Upgrades. The list price of upgrades is based upon the return to Sun
of specified parts from the system(s) being upgraded, as set out in
the U.S. Price List. Partner is
Page 1 of 6
Sun, Sun Microsystems Inc., ("Sun"), and the Sun Logo are trademarks of
Sun Microsystems, Inc. Products bearing SPARC trademarks are based
upon an architecture developed by Sun Microsystems, Inc.
responsible for assuring that the specified parts are received by Sun
within thirty (30) days after shipment of the upgrade to Partner. If the
specified parts are not timely received, Master Reseller or Sun will
invoice and Partner agrees to pay Master Reseller or Sun (net 30 days)
for the non-returned parts, the difference between the list price of the
purchased upgrade(s) and the list price of the upgraded system(s) if
purchased new.
D. Partner Documentation Business Records, and Reports. Partner shall
furnish to its End Users, at the time of delivery of Products, a sales
receipt stating the date of sale, and, if applicable, the serial number
of Products sold. Partner shall, during the term of this Agreement and
for five (5) years thereafter, keep and maintain complete and accurate
business records with respect to its purchase and sale of all Products,
including, all documents relating to or exchanged between Partner and
its End Users, Master Partner and Sun. Sun may review these records upon
request.
Partner shall provide monthly Productivity Status Reports ("PSRs") to
Sun. All PSR reports shall be Java-based PSR reports only, in accordance
with the Java-based PSR guidelines beginning at
url:xxxx://xxxxxxx.xxx.xxx/XX/xxxxxxxx/xxxxxxxxxxx.xxxx. Upon the
initial failure to timely submit a complete PSR, Sun may cancel Sun Fund
accruals and suspend participation in other programs. Any subsequent
failure to remedy or timely submit a PSR may result in immediate
termination of this Agreement.
E. Indemnity and Insurance. Partner agrees to indemnify and hold Sun
harmless from and against all claims from Partner's End Users or third
parties arising out of any acts and/or omissions of Partner or its
employees or representatives. Partner shall carry liability insurance to
protect Sun from all such claims, pay the premiums therefor, and deliver
to Sun, upon request, proof of such insurance (which shall require
thirty (30) days' written notice to Sun in event of modification or
termination).
F. Fair Representation. Partner shall display, demonstrate, and represent
Products fairly and shall make no representations concerning Sun or its
Products which are false, misleading, or inconsistent with those
representations set forth in promotional materials, literature and
manuals published and supplied by Sun. Partner shall comply with all
applicable laws and regulations in performing under this Agreement.
G. Sun SPARC Only. Except as otherwise provided in writing by Sun, Partner
shall not sell, lease, or otherwise deal in any product based on SPARC
Architecture, unless such product (i) is a Sun Product or (ii) is a
"laptop system". A product is a "laptop system" if it is (i)
transportable, (ii) battery operated, (iii) under sixteen (16) pounds
total weight including case, and (iv) packaged without a CRT. Partner
is not prohibited by this Agreement from selling any product that does
not contain the SPARC Architecture.
H. Partner shall purchase all Sun Products for resale directly from Sun or
from its designated Master Reseller unless an exception is granted by
Sun in writing. Purchase terms and conditions as may be agreed upon
between Partner and designated Master Reseller shall govern the purchase
of Products from the Master Reseller. Sun will permit Reseller to change
the identity of its designated Master Reseller only once per year, by
Notice (which shall include the effective date of the transition),
during the thirty (30) days' period prior to each year's Expiration
Date.
No Simultaneous Order. The intention of the parties, and the goal of
this Agreement, is that Partner will not issue the same purchase orders
for Products from both Sun and Master Reseller with the intention that
one order be canceled in favor of the other order. Partner must not
issue orders directly to Sun and to a Master Reseller at the same time
for the same Products. Failure to comply with this section will be
considered a material breach, and may result in immediate termination of
the Agreement. This section does not otherwise affect terms and
conditions regarding cancellations of, or changes to, orders that may
exist in the Agreement or in any agreement with a Master Reseller.
I. Limited Warranty. Partner must provide a warranty to its End Users at
least equivalent to the warranty provided by Sun. Partner agrees to
indemnify Sun for any liability or damages caused by Partner's provision
of any other warrant.
J. Failure to comply with any of the foregoing obligations will constitute
a material breach of this Agreement.
7. LIMITED WARRANTY
7.1 Partner shall arrange for all End users to be notified that they will
receive the following warranty ("the Warranty") directly from Sun. This
Warranty will be included in Sun product packaging. The duration of the
Warranty, applicable response times, start dates and other Warranty details
are specified at xxxx://xxxxxxx.xxx.xxx/xxxxxxx/xxxxxxxxxxxxxx/ ("the
Warranty Web Page") and are applicable as at the date an order is accepted,
or at End User's option, the Effective Date of this Agreement. Any
subsequent changes to Warranty details specified on the Warranty Web Page
will not apply to Products purchased by End Users prior to any change.
Partner is responsible for notifying its end users that they will receive
the following warranty ("The Warranty") directly from Sun.
7.2 Subject to 7.1 above, Sun warrants that:
(a) the Hardware will be free from defects in materials and
workmanship.
(b) The Software will be warranted either according to the warranty set
set forth in 7.2 (c) below or the warranty set out at the Warranty Web-
Page, whichever is greater, for such software specifically mentioned
therein.
(c) the media on which Software is furnished (if any) will, for a
period of ninety (90) days from the date of purchase, as evidenced by a
copy of the receipt, be free from defects in materials and workmanship
under normal use. Except for the foregoing, software is provided "AS
IS".
7.3 Partner's sole and exclusive remedy and Sun's entire liability for
breach of the warranties specified in this Section 7, will be, at Sun's
option, the repair, replacement of, or refund of the actual cost paid for
the Products (less reasonable wear and
Page 2 of 6
Sun, Sun Microsystems Inc., ("Sun"), and the Sun Logo are trademarks of Sun
Microsystems, Inc. Products bearing SPARC trademarks are based upon an
architecture developed by Sun Microsystems, Inc.
tear) and/or to replace the media for Software or refund the associated
license fee paid.
7.4 This Warranty is contingent upon proper treatment and use of the
Products and maintenance of a safe and suitable site. No warranty will
apply to any Product that has been (i) modified, altered or adapted without
Sun's written consent, (ii) maltreated or used in a manner other than in
accordance with the Product manual or, (iii) repaired by any third party in
a manner which fails to meet Sun's maintenance requirements and quality
standards. Product problems attributable to the use of the Products with
equipment or software not supplied or expressly approved by Sun are not
covered under warranty. Any services provided for Product or problems which
are out of warranty will be billed for on a time and materials basis.
8. COMMERCIAL TERMS FOR PRODUCTS
Prices and Discounts. For Products on Sun's then current, applicable U.S.
Computer Systems Price List, Sun agrees to grant to Partner the following
discounts when Partner purchases directly from Sun: thirty-two percent
(32%) on Category A Product, twenty-five percent (25%) on Category B
Products and seventeen percent (17%) on Category H Products. Such discounts
will not apply to those Products which are listed as "non-discountable" in
the appropriate price list, nor may they be applied to exceed any listed
maximum discount. Such discounts will apply towards purchases of
discountable spare parts, but such discounts will not apply to purchases of
training, installation (except where included in the purchase price of the
Products), consulting, repairs, maintenance work or similar services and
source code license fees.
Orders and Delivery. When Partner purchases direct from Sun, Partner shall
submit purchase orders in writing or electronically via Sun's eCommerce
site in accordance with the requirements defined on that site. Order
acceptance will only be effective upon issuance of Sun's order
acknowledgement. Each order must be for a minimum of five hundred dollars
($500.00) Sun will use reasonable efforts to meet target delivery dates
identified on the order acknowledgement. Title to Products (except
Software) and risk of loss or damage to Products will pass to Partner upon
shipment, FOB Sun's Product Delivery Center. Sun reserves the right to make
Product substitutions and modifications that do not cause a material
adverse effect in overall Product performance.
Rescheduling and Reconfiguration. Partner may, when purchasing direct from
Sun, reschedule or reconfigure all or part of any specific orders once at
no charge, as long as a "Change Purchase Order" is received by Sun at least
thirty (30) days prior to the scheduled delivery date and the rescheduled
delivery date is within sixty (60) days of the original date. If an order
is rescheduled or reconfigured at Partner's request on any other basis, or
if Sun rescheduled the order because Partner fails to meet an obligation
under this Agreement, Sun may charge Partner a restocking fee equal to ten
percent (10%) of the list price of the rescheduled or reconfigured portion
of the order. If Partner refuses shipment at its requested delivery
location, Sun may charge Partner a restocking fee of twenty-five percent
(25%) of the list price of the shipment.
9. ASSIGNMENT OF PURCHASING RIGHTS
Partner may receive an assignment of purchase rights from an approved third
party when the third party receives a purchase order from its end user so
that Partner may procure Product for said third party. A separate
assignment agreement ("Assignment Agreement") must be signed by Sun,
Partner and third party authorized signatories.
10. TERM AND TERMINATION
Term. This Agreement shall commence on the Equipment Exhibit Effective Date
and shall remain in force until the date established according to the
following schedule:
Effective Date: Expiration Date:
(of each following year)
March 1 - August 31....................August 31
September 1 - February 28..............February 28
It shall be automatically renewed on an annual basis thereafter, unless at
least thirty (30) days prior to any year's Expiration Date, Sun or Partner
tenders Notice of Intention not to renew.
11. STATUTE OF LIMITATIONS
No claim or action, regardless of form, arising out of this Agreement may
be brought by either party more than two (2) years after the claim or cause
of action has arisen, or in the case of non-payment, more than two (2)
years from the date payment was due.
12. GOVERNING LAW
Any claim or cause of action must be brought solely and exclusively in the
courts of the state of California.
IN WITNESS WHEREOF, THE DULY AUTHORIZED REPRESENTATIVES OF THE PARTIES HAVE
EXECUTED THIS AGREEMENT, AS OF THE DATE FIRST ABOVE WRITTEN
SUN MICROSYSTEMS INC.: PARTNER
By: By:
--------------------------------- -------------------------------
Name: Name:
------------------------------- -----------------------------
(print or type) (print or type)
Title: Title:
------------------------------ ----------------------------
Date: Date:
------------------------------- -----------------------------
Page 3 of 6
Sun, Sun Microsystems Inc., ("Sun"), and the Sun Logo are trademarks of Sun
Microsystems, Inc. Products bearing SPARC trademarks are based upon an
architecture developed by Sun Microsystems. Inc.
ATTACHMENT A
AUTHORIZED LOCATIONS/MASTER RESELLER
Headquarters
MASTER RESELLER
Page 4 of 6
Sun, Sun Microsystems Inc., ("Sun"), and the Sun Logo are trademarks of Sun
Microsystems, Inc. Products bearing SPARC trademarks are based upon an
architecture developed by Sun Microsystems, Inc.
ATTACHMENT B
BUSINESS PLAN
Attached
Page 5 of 6
Sun, Sun Microsystems Inc., ("Sun"), and the Sun Logo are trademarks of Sun
Microsystems, Inc. Products bearing SPARC trademarks are based upon an
architecture developed by Sun Microsystems, Inc.
ATTACHMENT C
END USER OBJECT CODE LICENSE
SUN IS WILLING TO LICENSE THE OPERATING SYSTEM SOFTWARE TO YOU ONLY UPON THE
CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT.
READ THE TERMS AND CONDITIONS OF THIS LICENSE CAREFULLY BEFORE USING THE
SOFTWARE. BY USING THE SOFTWARE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THIS AGREEMENT, YOU ARE NOT
AUTHORIZED TO USE THE OPERATING SYSTEM SOFTWARE.
1. License to Use. Customer is granted a non-exclusive and non-transferable
license ("License") for the use of the applicable SolarisR(TM) operating
system software in machine-readable form, together with accompanying
documentation ("Software"), by the number of users and with the class of
computer hardware for which the corresponding fee has been paid.
2. License to Develop. In the event that Customer desires to develop software
programs which incorporate portions of Software ("Developed Programs"), the
following provisions apply, to the extent applicable: Developed Programs are to
have an application programming interface that is the same as that of Software;
fonts within Software are to remain associated with their toolkit or server,
Developed Programs may be used and distributed, but only on computer equipment
licensed to utilize Solaris operating system software, unless an additional
Developer's License Agreement has been executed by Sun and Customer; Customer is
not licensed to develop printing applications or print, unless Customer has
secured a valid printing license; and Customer agrees to indemnify, hold
harmless and defend Sun from and against any claims or suits, including
attorney's fees, which arise or result from distribution or use of Developed
Programs.
3. Restrictions. Software is copyrighted and title to all copies is retained
by Sun and/or its licensors. Customer shall not make copies of Software, other
than a single copy of Software for archival purposes and, if applicable,
Customer may, for its internal use only, print the number of copies of on-line
documentation for which the applicable fee has been paid, in which event all
proprietary rights notices on Software shall be reproduced and applied. Except
as specifically authorized in Paragraph 2 above, Customer shall not modify,
decompile, disassemble, decrypt, extract, or otherwise reverse engineer
Software, except to the extent any of the foregoing limitations are
unenforceable under applicable law. Software is not designed or licensed for use
in on-line control equipment in hazardous environments such as operation of
nuclear facilities, aircraft navigation or control, or direct life support
machines.
4. Confidentiality. Software is confidential and proprietary information of
Sun and/or its licensors. Customer agrees to take adequate steps to protect
Software from unauthorized disclosure or use.
5. Warranty. Sun warrants that the media on which Software is furnished will
be free of defects in materials and workmanship under normal use for a period of
ninety (90) days from the date of purchase, as evidenced by a copy of the
receipt. Otherwise, Software is provided "AS IS," without a warranty of any
kind. This warranty extends only to Customer as the original licensee.
Customer's exclusive remedy and Sun's entire liability under this warranty will
be the correction of defects in media or replacement of the media, or, if
correction or replacement is not reasonably achievable by Sun, the refund to
Customer of the license fee paid, upon return of Software.
6. Disclaimer of Warranty. EXCEPT AS SPECIFIED IN THIS LICENSE AGREEMENT, ALL
EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW.
7. Limitation of Liability. IN NO EVENT WILL SUN BE LIABLE FOR ANY LOST
REVENUE, PROFIT OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTIAL OR
PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY ARISING
OUT OF THE USE OF OR INABILITY TO USE SOFTWARE, EVEN IF SUN HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. In no event shall Sun's liability to Customer,
whether in contract, tort (including negligence), or otherwise, exceed the
license fee paid by Customer for Software. The foregoing limitations shall apply
even if the above stated warranty fails of its essential purpose.
8. Termination. This License is effective until terminated. Customer may
terminate this License at any time by destroying all copies of Software
including any documentation. This License will terminate immediately without
notice from Sun if Customer fails to comply with any provision of this License.
Upon termination, Customer must destroy all copies of Software.
9. Export Regulations. Software, including technical data, is subject to U.S.
export control laws, including the U.S. Export Administration Act and its
associated regulations, and may be subject to export or import regulations in
other countries. Customer agrees to comply strictly with all such regulations
and acknowledges that it has the responsibility to obtain licenses to export,
re-export, or import Software.
10. U.S. Government Restricted Rights. If Customer is acquiring Software
including accompanying documentation on behalf of the U.S. Government, the
following provisions apply. If Software is supplied to the Department of Defense
("DOD"), Software is subject to "Restricted Rights," as that term is defined in
the DOD Supplement to the Federal Acquisition Regulations ("DFAR") in paragraph
252.227-7013(c)(1). If Software is supplied to any unit or agency of the United
States Government other than DOD, the Govenment's rights in Software will be as
defined in paragraph 52.227-19(c)(2) of the Federal Acquisition Regulations
("FAR"). Use, duplication, reproduction, or disclosure by the Government is
subject to such restrictions or successor provisions. Contractor/Manufacturer
is: Sun Microsystems Computer Company, 0000 Xxxxxx Xxx., Xxxxxxxx Xxxx, XX
00000.
11. Governing Law. This Agreement is made under, shall be governed by and
construed in accordance with the laws of the State of California, U.S.A.
excluding its choice of law provisions.
12. Integration. This Agreement is the entire agreement between Customer and
Sun relating to Software and: (i) supersedes all prior or contemporaneous oral
or written communications, proposals and representations with respect to its
subject matter; and (ii) prevails over any conflicting or additional terms of
any quote, order, acknowledgement, or similar communication between the parties
during the term of this Agreement. No modification to this Agreement will be
binding, unless in writing and signed by a duly authorized representative of
each party.
*Solaris is a registered trademark Part No. 000-0000-00
of Sun Microsystems, Inc. Rev. A, May 1994
Sun Microsystems, Inc.
Page 6 of 6
Sun, Sun Microsystems Inc.,("Sun"), and the Sun Logo are trademarks of Sun
Microsystems, Inc. Products bearing SPARC trademarks are based upon an
architecture developed by Sun Microsystems, Inc.
