1
EXHIBIT 10.15
SKYSTREAM CORPORATION
NONEXCLUSIVE INTERNATIONAL
VALUE ADDED RESELLER ("VAR") AGREEMENT
This Agreement, dated May 16, 1999, is made between SkyStream Corporation
("SKYSTREAM"), a California corporation doing business at 000 Xxxxx Xxxxxx,
Xxxxx X, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 and Miralite Communications, a
California corporation ("Reseller"), doing business at 0000 XxxXxxxxx Xxxx.,
xxxxx 000 Xxxxxxx Xxxxx XX 00000.
RECITALS
A. SKYSTREAM sells those certain digital broadcast networking products known
as the Integrator product family, as defined in Exhibit C ("Products" as
further defined below).
B. Reseller wishes to have certain non-exclusive rights to market and
distribute such Products worldwide in combination with Reseller's products.
THEREFORE, SKYSTREAM and Reseller agree as follows:
1. DEFINITIONS.
1.1 Dollars. "Dollars" means United States Dollars.
1.2 End User. "End User" means a customer of Reseller, who is authorized
by an end user software license agreement to use the Software on the
purchased Products for the End User's internal business purposes.
1.3 Effective Date. "Effective Date" means the date first written above.
1.4 Intellectual Property Rights. "Intellectual Property Rights" means
patent rights (including but not limited to rights in patent
applications or disclosures and rights of priority), copyright
(including but not limited to rights in audiovisual works and moral
rights), trade secret rights, and any other intellectual property
rights recognized by the law of each applicable jurisdiction.
-1-
2
1.5 Marks. "Marks" means SKYSTREAM's trademarks, trade names, service
marks, and/or service names.
1.6 Reseller Products. "Reseller Products" means the computer software
and/or hardware and related documentation that are distributed by
Reseller in combination with the Products.
1.7 Products. "Products" means SKYSTREAM Integrators, as listed in Exhibit
C, including accompanying Software and any additions and enhancements
provided for use with the units.
1.8 Software. "Software" means SKYSTREAM Integrator software as listed in
Exhibit C.
1.9 Source Code. "Source Code" means software in human-readable form,
including programmers' comments, data files and structures, header and
includes files, macros, object libraries, programming tools not
commercially available, technical specifications, flowcharts and logic
diagrams, schematics, annotations and documentation reasonably
required or necessary to enable an independent third party programmer
with reasonable programming skills to create, operate, maintain,
modify and improve the software without the help of any other person.
2. DISTRIBUTION OF PRODUCTS
2.1 Reseller Appointment. SKYSTREAM hereby appoints Reseller as a
nonexclusive reseller of the Products to End-Users for End User's
internal use in conjunction with Reseller Products.
2.2 Added Value. In the exercise of Reseller's rights under this
Agreement, Reseller will sell the Products to the End User singularly
or in combination with Reseller Products.
2.3 Relabeling. Subject to prior approval by SKYSTREAM, Reseller may
relabel the Products with Reseller's name and logo.
2.4 Documentation. Subject to the terms of this Agreement, SKYSTREAM
grants Reseller a nonexclusive license during the term of this
Agreement to use, modify, create derivative works of and distribute
SKYSTREAM's documentation for the Products to the End User. SKYSTREAM
will make available SKYSTREAM's End User documentation to Reseller, as
it is updated and modified from time to time, without additional
charge. Reseller will provide copies of such modifications to
SKYSTREAM upon SKYSTREAM's request.
-2-
3
2.5 Marketing Collateral. SKYSTREAM agrees to sell, subject to
availability, copies of its marketing literature to reseller on an
at-cost basis. SKYSTREAM reserves all rights associated with such
marketing literature. Reseller agrees to obtain prior written approval
of SKYSTREAM's Vice President of Marketing for all marketing literature
it shall prepare that pertain to the Products.
2.6 Grant of License. Subject to the terms of this Agreement, SKYSTREAM
grants Reseller a limited license to use the Software in connection with
the demonstration of the products and in connection with the
configuration and support of the Products for End Users. All such use
shall be subject to the terms of the End User Software License attached
hereto as Exhibit A.
2.7 No Sale of Services. Reseller will not use the Products in any manner to
provide service bureau, time sharing, or other computer services to
third parties.
2.8 No Reverse Engineering. Reseller will not disassemble, decompile, or
reverse engineer the Products.
2.9 Limited Rights. Reseller's rights in the Products will be limited to
those expressly granted in this Agreement.
2.10 Terms and Conditions of Sale. Except as modified herein, all sales to
Reseller are subject to SKYSTREAM's Terms and Conditions of Sale, a copy
of which is attached hereto as Exhibit B, and which is made a part of
this Agreement as if set forth herein.
2.11 Pricing to Reseller. The price paid by Reseller to SKYSTREAM shall be
established at the time of acceptance of Reseller's purchase order. A
list of SKYSTREAM's current prices for sales to Reseller is attached
hereto as Exhibit D. SKYSTREAM reserves the right to adjust the prices
paid by Reseller at SKYSTREAM's discretion. Nothing in this Agreement
will be construed to restrict Reseller's ability to set prices to its
customers.
3. SOFTWARE
3.1 Limited Distribution. Reseller is permitted to market and distribute
SKYSTREAM Software only in connection with the sale of the Products to
the End User.
3.2 End User Software License.
(a) Reseller agrees:
(i) to include the following language in all sales
quotations and offers to
-3-
4
sell the Products;
"The [name of Product] is sold subject to the terms on an
End User Software License. The use of the [name of Product]
is contingent upon the acceptance by the purchaser of the
terms of the End User Software License."
(ii) to provide a copy of the End User Software License, in the
form attached hereto as Exhibit A, to any potential
purchaser who shall request a copy prior to sale;
(iii) to package and to install the Products in such a manner
that Reseller's customer is provided with a meaningful
opportunity to review and agree to the End User Software
License before installing or using any of the Products; and
(iv) to agree to accept for return and refund any unused
Products in the event that Reseller's customer does not
agree to accept any of the terms of the End User Software
License or of the terms of any other software license
required to use the Products.
(b) In connection of SkyStream's not requiring a written End-User
Software License signed by Reseller's customer as a precondition to
the sale or transfer of the Products, Reseller agrees to indemnify
SkyStream for any and all damages that may arise as a result of (i)
Reseller's breach of Section 3.2(a) or (ii) the failure for any
reason of a customer of Reseller to be bound by the terms of the End
User Software License.
3.3 License Only. Notwithstanding the use herein of the word "sell" and
variants thereof, all Software is licensed to the Reseller and the End
User and is not sold. SKYSTREAM, or the licensors through which SKYSTREAM
obtained the rights to distribute Software, retain title to the Software,
whether the Software is separate or combined with any other products,
including Reseller Products, and Reseller shall transfer Software only to
the extent that such transfer is incidental to the resale or lease of the
Products. The End User is licensed by SKYSTREAM directly to use the
Software solely in conjunction with the use of the Products and further
subject to the terms of the End User Software License.
3.4 Proprietary Software. The Software is proprietary to SKYSTREAM and/or its
suppliers and is copyrighted. Without SKYSTREAM's prior written approval,
Reseller shall not separate the Software from the Products as shipped by
SKYSTREAM, nor shall Reseller disassemble, de-compile, reverse-engineer,
copy, modify, or otherwise change any of the Software or its form.
Reseller shall protect
-4-
5
the Software from any disclosure or use in violation of this Agreement.
Reseller shall not be entitled to receive Source Code.
3.5 Software Revisions. In the event SKYSTREAM, at its sole discretion,
provides Reseller with revised copies of the Software, Reseller shall,
according to SKYSTREAM's instructions, replace copies of the Software from
the Products with the revised Software. Reseller shall dispose of the
replaced Software in accordance with SKYSTREAM's instructions. SKYSTREAM
shall have the right to inspect Reseller's inventory of Software and
replaced Software at any time on reasonable notice.
4. MAINTENANCE, SUPPORT, AND TRAINING.
4.1 By Reseller. Reseller will be responsible for providing the following
support to the End User: installing the Products as needed; training the
End User; and providing all direct first level technical support to the
End User, including problem analysis and using its reasonable efforts
to provide solutions and error correction for the products consistent with
Reseller's standard service and support policies and procedures. Reseller
agrees to provide a substantially similar level of support to that
SkyStream provides to its direct customers, which must include, at a
minimum, 24x7 telephone support, and at least 2 hours of on-site training
to the End User. A copy of SkyStream's direct SkySupport service agreement
is attached in Exhibit E. Reseller agrees to use best efforts to ensure
that training of Reseller's personnel occurs within the first 90 days of
the execution of this Agreement. Reseller agrees to maintain a minimum of
2 fully trained service personnel at all times, which personnel must
attend training, to be paid for by Reseller, at least once every 6 months.
4.2 By SKYSTREAM. SKYSTREAM will not be responsible for providing support to
the End User. SKYSTREAM will provide Reseller with:
(i) commercially reasonable efforts to correct any non-conformity with
the Software Feature Specification Documents for the applicable
version of the Software;
(ii) technical training, to consist of one training class given over one
and one-half (1 1/2) eight-hour days and which may be attended by up
to three Reseller personnel onsite at SKYSTREAM's Mountain View,
California office, provided that Reseller pays the travel and living
expenses of such personnel designated to receive the training, or at
Reseller's headquarters, provided that Reseller pays the travel and
living expenses of SKYSTREAM's training personnel; training class for
additional personnel will be quoted by SKYSTREAM separately;
-5-
6
(iii) upon continued payment of an annual Maintenance Fee (the
"Maintenance Fee") in the amount currently set forth on Exhibit
D, as SKYSTREAM may change from time to time, payable in full
with each sale to Reseller and thereafter on the nearest of
February 15, May 15, August 15 and November 15 following the one
year anniversary of the date of each sale to Reseller, SKYSTREAM
agrees to provide reasonable access to SKYSTREAM's technical
personnel for inquiries from Reseller relating to the Products
during standard SKYSTREAM business hours, generally Monday
through Friday from nine a.m. to five p.m. Pacific Standard
Time, and access to SKYSTREAM's technical call center 24 hours a
day, 7 days a week, where SKYSTREAM agrees to respond to any
Reseller inquiry within four business hours of initial call
placement. In the case of upgrades to a previously purchased
Product, the Maintenance Fee shall be payable on the upgrade at
the time of sale to Reseller and thereafter at the time the
Maintenance Fee is payable on the Product for which the upgrade
was purchased. Payment of this recurring Maintenance Fee does
not entitle Reseller or End User to, and shall not be construed
as either full or partial payment for, software upgrades with
new functionality as defined by SKYSTREAM;
(iv) upon fourteen days notice, technical consulting services at a
location to be designated by Reseller, at SKYSTREAM's current
hourly rate for such services as may be adjusted by SKYSTREAM
from time to time, provided that Reseller shall also reimburse
SKYSTREAM for all associated travel and living expenses in
connection with such services. SKYSTREAM's current technical
consulting hourly rate is included on SKYSTREAM's price list for
sales to Resellers, a copy of which is attached hereto as
Exhibit D;
5. CONFIDENTIALITY.
5.1 Obligations. Each party agrees that it will not disclose to any third
party or use any Products or other Confidential Information disclosed
to it by the other party, except to carry out its rights and
obligations under this Agreement, and that it will take all
reasonable measures to maintain the confidentiality of all
Confidential Information in its possession or control, which will in
no event be less than the measures it uses to maintain the
confidentiality of its own information of similar importance.
Confidential Information includes all information designated by a
party as confidential or proprietary within a reasonable time of its
disclosure or which a reasonable person would expect to be treated as
confidential.
5.2 Exceptions. "Confidential Information" will not include information
that:
(i) is in or enters public domain without breach of this Agreement;
-6-
7
(ii) is lawfully obtained by the receiving party without breach of
a nondisclosure obligation;
(iii) is independently developed or already in the possession of
the receiving party as shown by the receiving party's
contemporaneous records; or,
(iv) is required by law to be disclosed, provided that the
receiving party gives prompt written notice of such
requirement prior to disclosure.
5.3 Injunctive Relief. Each party acknowledges that the improper
disclosure of the other's confidential information could cause
substantial harm to the other party that could not be remedied by
the payment of damages alone. Accordingly, either party will be
entitled to preliminary and permanent injunctive relief and other
equitable relief for any breach of this Agreement or misuse of
Confidential Information by SKYSTREAM, Reseller or the End User, as
applicable.
6. INTELLECTUAL PROPERTY RIGHTS.
6.1 Notices. Reseller will not delete or in any manner alter the
Intellectual Property Rights notices of SKYSTREAM and its
suppliers, if any, appearing on the Products as delivered to
Reseller.
6.2 Reseller's Duties. Reseller will take customary measures in the
marketing and distribution of the Products to protect SKYSTREAM's
Intellectual Property Rights in the Products, no less than the
extent to which Reseller protects its Intellectual Property Rights
in Reseller's Products, and will, to the extent lawful, report
promptly to SKYSTREAM any confirmed infringement of such rights of
which Reseller becomes aware.
6.3 Trademarks. Subject to the terms and conditions of this Agreement,
SKYSTREAM grants Reseller a nonexclusive license for the term of
this Agreement to use the Marks in Reseller's marketing of the
Products, providing that such use is in accordance with SKYSTREAM's
trademark usage guidelines then in effect. Such use must reference
the Marks as being owned by SKYSTREAM. Nothing in this Agreement
grants Reseller ownership or any rights in or to use the Marks,
except in accordance with this license, and Reseller's use of the
Marks will inure to the benefit of SKYSTREAM. The rights granted to
Reseller in this license will terminate upon any termination or
expiration of this Agreement. Upon such termination or expiration,
Reseller will no longer make any use of any Marks. SKYSTREAM will
have the exclusive right to own, use, hold, apply for registration
for, and register the Marks during the term of, and after the
expiration or termination of, this Agreement; Reseller will neither
take nor authorize any activity inconsistent with such exclusive
right.
-7-
8
7. INFRINGEMENT INDEMNITY
7.1 Reseller Warranty.
(a) Reseller warrants that it owns all the rights to the
Confidential Information provided to SKYSTREAM, and that such
items are free of any restrictions, settlements, judgments, or
adverse claims. Reseller warrants that it has the full power
and authority to supply and to disclose such information to
SKYSTREAM.
(b) Reseller warrants that it has not improperly or unlawfully
acquired the information and processes submitted to SKYSTREAM.
7.2 Reseller Indemnification. Reseller agrees to indemnify SKYSTREAM
against, and to hold SKYSTREAM harmless of and from, any loss, cost,
damage, liability, suit, judgment, or expense, including legal fees
(collectively, "Harm") arising out of any breach of the warranties
set forth in Section 7.1.
7.3 SKYSTREAM Indemnification and Defense. Subject to the limitations
hereinafter set forth, Reseller agrees that SKYSTREAM has the right
to defend, or at its option to settle, and SKYSTREAM agrees, at its
own expense, to defend or at its option to settle, any claim, suit or
proceeding (collectively, "Action") brought against Reseller alleging
that the use or distribution of the Products infringes or
misappropriates any copyright or trade secret. SKYSTREAM shall have
sole control of any such Action or settlement negotiations, and
SKYSTREAM agrees to pay, subject to the limitations set forth in
Sections 7 and 8, any settlement costs or final judgment entered
against Reseller as a result of such infringement. Reseller agrees
that SKYSTREAM at its sole option shall be relieved of the foregoing
obligations unless Reseller notifies SKYSTREAM promptly in writing of
such Action and gives SKYSTREAM authority to proceed as contemplated
herein, and, at SKYSTREAM's expense, gives SKYSTREAM proper and full
information and assistance to settle and/or defend any such Action.
If the Products, or any part thereof, are, or in the opinion of
SKYSTREAM may become, the subject of any Action for infringement of
any intellectual property right, or if a judicial or other
governmental authority enjoins the use or distribution of Products as
a result of an Action defended by SKYSTREAM, then SKYSTREAM may, at
its option and expense: (i) procure for Reseller the right to
distribute or use, as appropriate, the Products; (ii) replace the
Products with other suitable Products; (iii) suitably modify the
Products; or (iv) if the foregoing alternatives cannot be
accomplished on a commercially reasonable basis as determined in
SKYSTREAM's sole discretion, require Reseller to return such Products
and refund the aggregate payments paid therefor by Reseller, less a
reasonable sum for use and damage. Reseller shall indemnify and hold
harmless SKYSTREAM from and against any and all third party claims
arising out of the
-8-
9
distribution of Products after SKYSTREAM has required Reseller to
return such Products or arising out of any exclusions to SKYSTREAM's
indemnification obligations set forth in Section 7.4. SKYSTREAM shall
not be liable for any costs or expenses incurred without its prior
written authorization.
7.4 SKYSTREAM limitations.
(a) Notwithstanding the provisions of Section 7.3 above, SKYSTREAM
assumes no liability for (i) any infringement claims (including
without limitation combination or process patents) arising out
of the combination of a Product or use with other hardware,
software or other items not provided by SKYSTREAM to the extent
such infringement would not have occurred absent such
combination or use; (ii) the modification of the Products, or
any part thereof, unless such modification was made by
SKYSTREAM; or (iii) any infringement claims arising out of
SKYSTREAM's compliance with Reseller's specifications or designs.
(b) SKYSTREAM's obligation to indemnify Reseller does not extend to
any Action arising from a claim of infringement by the
manufacture, use or sale of Products that conform to any
technical standard adopted by an international organization such
as the International Organization for Standardization, the
International Electrotechnical Commission, and the CCITT/ITU,
including, without limitation, the MPEG, JPEG and H.261
standards.
7.5 Entire Liability. THE FOREGOING PROVISION OF THIS SECTION 7 STATE THE
ENTIRE LIABILITY AND OBLIGATION OF SKYSTREAM AND THE EXCLUSIVE REMEDY
OF RESELLER AND ITS CUSTOMERS WITH RESPECT TO ANY ALLEGED
INFRINGEMENT OF COPYRIGHTS, TRADEMARKS, PATENTS OR OTHER INTELLECTUAL
PROPERTY RIGHTS BY THE PRODUCTS.
8. LIMITATIONS OF LIABILITY.
8.1 Total Liability. Except as set forth in Section 7 each party's
liability for a breach of this Agreement under this Agreement will be
limited to the Payments received or due from Reseller under this
Agreement.
8.2 Exclusion of Damages. Except as set forth in Section 7 neither party
will be liable to the other for any special, incidental, or
consequential damages, whether based on breach of contract, tort
(including negligence), product liability, or otherwise, and whether
or not such party has been advised of the possibility of such damage.
-9-
10
8.3 No Warranty. Except as set forth in Section 7 and except as set
forth in Section 13 of the Terms and Conditions of Sale,
attached as Exhibit B, SkyStream makes no warranty, express or
implied, in connection with the Products, including the results
and performance thereof, including without limitation any
implied warranties of merchantability or fitness for a
particular purpose or noninfringement.
9. TERMINATION.
9.1 Term. The term of this Agreement will begin on the Effective
Date and will continue for a period designated in Exhibit D,
unless it is terminated earlier in accordance with the
provisions hereof. This Agreement may be renewed for additional
periods upon the mutual written agreement of the parties,
although each party acknowledges that the other is under no
obligation to do so.
9.2 Events of Termination. Either party will have the right to
terminate this Agreement (i) for convenience and without cause,
upon thirty (30) days written notice to the other party, or
(ii) if the other party breaches any material term or condition
of this Agreement and fails to cure such breach within thirty
(30) days after written notice.
9.3 Effect of Termination.
(a) Upon termination or expiration of this Agreement,
Reseller will (except as specified in subsection (b)
below) immediately return to SKYSTREAM or (at
SKYSTREAM's request) destroy all Source Code, Software
(except for Software residing on a SKYSTREAM Product)
and other Confidential Information in its possession or
control, and an officer of Reseller will certify to
SKYSTREAM in writing that Reseller has done so.
(b) Upon termination or expiration of this Agreement,
SKYSTREAM will have the option, in its sole discretion,
of:
(i) electing, at any time, to offer maintenance and
support for the Products directly to End Users
in accordance with SKYSTREAM's then applicable
terms and conditions for such services; or
(ii) permitting Reseller to continue to provide
maintenance and support for the Products to its
End Users upon the terms and conditions of
Section 4.
9.4 Nonexclusive Remedy. The exercise by either party of any remedy
under this Agreement will be without prejudice to its other
remedies under this Agreement or otherwise.
-10-
11
9.5 Survival. The rights and obligations of the parties contained in
Sections 5, (Confidentiality), 6 (Intellectual Property Rights), 7
(Infringement Indemnity), 8 (Limitations of Liability), 9
(Termination) and 10 (General) will survive the termination or
expiration of this Agreement.
10. GENERAL.
10.1 Publicity. Reseller agrees to use best efforts in the preparation of
a press release announcing the execution of this Agreement.
10.2 Binding Effect. This Agreement will bind and inure to the benefit of
each party's permitted successors and assigns.
10.3 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of California applicable to
agreements between California residents entered into and to be
performed entirely within California, without reference to conflict of
law principles. Any dispute or claim arising out of this Agreement
will be resolved by binding arbitration in the county of Santa Xxxxx
in accordance with the complex commercial litigation rules of the
American Arbitration Association. The arbitrator will have the power
to grant any form of relief, including preliminary and permanent
injunctive relief, which a judge in California with jurisdiction could
fashion, and judgment on any award may be entered in any court in
California with jurisdiction. Nonetheless, the parties may seek
temporary or permanent injunctive relief from any court in California
with jurisdiction without breaching this Section 10.3 or otherwise
abridging the authority of the arbitrator.
10.4 Severability. If any provision of this Agreement is found invalid or
unenforceable, that provision will be enforced to the maximum extent
permissible and the other provisions of this Agreement will remain
in force.
10.5 Force Majeure. Except for payments due under this Agreement, neither
party will be responsible for any failure to perform due to causes
beyond its reasonable control (each a "Force Majeure"), including,
but not limited to, acts of God, war, riot, embargoes, acts of civil
or military authorities, denial of or delays in processing of export
license applications, fire, floods, earthquakes, accidents, strikes,
or fuel crises, provided that such party gives prompt written notice
thereof to the other party. The time for performance will be extended
for a period equal to the duration of the Force Majeure, but in no
event longer than sixty days.
10.6 Notices. All notices under this Agreement will be deemed given when
delivered personally, sent by confirmed facsimile transmission, or
sent by certified or registered U.S. mail or recognized express
courier, return receipt requested, to the address as
-11-
12
first shown on this Agreement or as may otherwise be specified by
either party to the other in accordance with this section.
10.7 Independent Contractors. The parties to this Agreement are
independent contractors. There is no relationship of partnership,
joint venture, employment, franchise, or agency between the parties.
Neither party will have the power to bind the other or incur
obligations on the other's behalf without the other's prior written
consent.
10.8 Waiver. No failure of either party to exercise or enforce any of its
rights under this Agreement will act as a waiver of such rights.
10.9 Entire Agreement. This Agreement and its exhibits (A, B and C) are
the complete and exclusive agreement between the parties with respect
to the subject matter hereof, superseding and replacing any and all
prior agreements, communications, and understandings (both written
and oral) regarding such subject matter. This Agreement may only be
modified, or any rights under it waived, by a written document
executed by both parties.
[Remainder of Page Intentionally Left Blank]
-12-
13
The parties have caused this Agreement to be executed by their duly authorized
representatives as of the Effective Date.
RESELLER SKYSTREAM CORPORATION
Signature: /s/ XXXXX KNICKERBECKER Signature: /s/ XXX XXXXXXX
------------------------- -------------------------
Name: Xxxxx Knickerbecker Name: Xxx Xxxxxxx
------------------------------ ------------------------------
Title: V.P. Sales Title: VP Sales
----------------------------- -----------------------------
Date: 5/13/99 Date: 5/26/99
------------------------------ ------------------------------
Facsimile: Facsimile:
------------------------- -------------------------
[Signature Page to Nonexclusive VAR Agreement]
-13-
14
EXHIBIT A
SKYSTREAM CORPORATION
END USER SOFTWARE LICENSE
SOFTWARE LICENSE AND WARRANTY
ATTENTION!
Use of the software program on the enclosed disks and/or installed on the
computer is subject to the terms of the License Agreement printed on the
license card, in the license booklet, or in the user documentation. You should
not use this software until you have read the License Agreement.
By using the software, you signify that you have read the License Agreement and
accept its terms.
LICENSE
SkyStream hereby grants to the Customer a limited, non-exclusive license to use
the Software provided solely on the terms and conditions contained herein.
"Software" means each software program provided by SkyStream in machine
readable, object, printed or interpreted form.
LIMITATIONS ON USE
The Software is licensed to the Customer solely for Customer's internal use on
the purchased SkyStream equipment and may not be used for any other purpose or
application.
The customer is licensed to use the Software only on the designated SkyStream
equipment. The Software may not be used by Customer on any other computer, on
any other SkyStream or similar equipment, or at any other location, except as
agreed by SkyStream in writing.
Customer will not:
-- Copy all or any part of the Software, except that Customer may make one copy
of the Software solely for backup purposes for its own exclusive use,
provided that customer shall reproduce and include on such backup copy
SkyStream's proprietary rights notice.
-- Use, print, copy, modify or display the software, in whole or in part,
except as specifically authorized by this Agreement.
-- Sublicense, assign, resell, or otherwise transfer the Software to any third
party. Any attempted such sublicense, sale, assignment or transfer shall be
void and shall be deemed a material breach of this agreement.
-- Reverse engineer, duplicate or otherwise reproduce the Software.
15
Customer acknowledges that this Agreement does not grant to Customer, and
Customer will not acquire hereby, any rights to patents, copyrights, trade
secrets, trade names, trademarks (whether registered or unregistered), or any
other proprietary rights in or to the Software, all of which are expressly
retained by SkyStream.
Customer acknowledges that the laws and regulations of the United States may
restrict the export and re-export of the Software or media in any form without
appropriate United States and foreign government approval.
If Customer is a unit or agency of the United States Government or is acquiring
the Software and Documentation for any such unit or agency, the following apply:
o If the unit or agency is the Department of Defense (DOD), the Software and
its accompanying documentation are classified as "commercial computer
software" and "commercial computer software documentation," respectively,
and, pursuant to DFAR Section 227.7202, the Government is acquiring the
Software and such documentation with terms of the Agreement.
o If the unit or agency is other than DOD, the Software and its accompanying
documentation are classified as "commercial computer software" and
"commercial computer software documentation," respectively, and pursuant to
FAR Section 12.212, the Government is acquiring the Software and such
documentation in accordance with the terms of this Agreement.
WARRANTY
SkyStream makes no warranty, express or implied, in connection with the
Software, including the results and performance thereof, including without
limitation any implied warranties of merchantability or fitness for a
particular purpose or non-infringement.
LIMITATION OF LIABILITY
The maximum liability of SkyStream to Customer for damages relating to this
agreement for any and all causes whatsoever, and Customer's maximum remedy,
regardless of the form of action, whether in contract, tort or otherwise, shall
be limited to the total fees paid by Customer to SkyStream hereunder. In no
event shall SkyStream be liable for any lost data or content, lost profits, or
business interruption, or for any indirect, incidental, special, consequential,
exemplary or punitive damages arising out of or relating to the Software
provided hereunder, even if SkyStream has been advised of the possibility of
such damages.
TECHNICAL SUPPORT
For technical support, contact SkyStream Customer Support through the World
Wide Web (xxx.xxxxxxxxx.xxx) or via e-mail (xxxxxxx@xxxxxxxxx.xxx).
16
EXHIBIT B
SKYSTREAM CORPORATION
TERMS AND CONDITIONS OF SALE
1. Applicability of Terms and Conditions of Sale
THE FOLLOWING TERMS AND CONDITIONS OF SALE ("AGREEMENT") APPLY TO ALL
QUOTATIONS FOR PRODUCTS ("PRODUCTS") ISSUED BY SKYSTREAM CORPORATION
("SKYSTREAM") TO BUYER. SKYSTREAM'S ACCEPTANCE OF ANY BUYER PURCHASE ORDER
IS EXPRESSLY CONDITIONED ON BUYER'S ASSENT TO THIS AGREEMENT. NO TERMS OR
CONDITIONS SET FORTH IN BUYER'S PURCHASE ORDER, TO WHICH NOTICE OF
OBJECTION IS HEREBY GIVEN, OR IN ANY FUTURE CORRESPONDENCE BETWEEN BUYER
AND SKYSTREAM SHALL ALTER OR SUPPLEMENT THIS AGREEMENT UNLESS BOTH PARTIES
HAVE AGREED IN WRITING TO MODIFY THIS AGREEMENT. Neither SKYSTREAM's
commencement of performance nor delivery shall be deemed or construed as
acceptance of Buyer's additional or different terms and conditions.
2. Price
2.1 Unless otherwise stated in writing by SKYSTREAM, all prices quoted are
in U.S. Dollars and expire 30 days after the date of a quotation.
2.2 Unless otherwise stated in writing by SKYSTREAM, all prices quoted
shall be exclusive of transportation, insurance, federal, state,
local, use, sales, property (ad valorem) and similar taxes or duties
now in force or hereafter enacted. Buyer agrees to pay all taxes, fees
or charge of any nature whatsoever imposed by any governmental
authority on, or measured by, the transaction between Buyer and
SKYSTREAM, in addition to the prices quoted or invoiced. In the event
that SKYSTREAM is required to collect the foregoing, such amounts will
appear as separate items on SKYSTREAM's invoice. Buyer agrees to
provide SKYSTREAM with a valid resale certificate for the Products
purchased for resale.
2.3 Notwithstanding anything to the contrary herein, in the event a
quotation is issued pursuant to a current written purchase agreement
between SKYSTREAM and Buyer, the quotation shall remain valid for the
period specified or until the expiration date of the ordering period
of any such purchase agreement, whichever occurs first.
3. Payment Terms
17
3.1 All invoices are payable thirty (30) days from date of invoice. No
discounts are authorized. Interest on late payments shall accrue at
the rate of one and one half percent (1.5%) per month or the highest
legal rate, whichever is lower. SKYSTREAM may at any time require that
shipments be made on a C.O.D. or cash-with-order basis.
3.2 Until the purchase price and all other charges payable to SKYSTREAM
hereunder have been received in full, SKYSTREAM hereby retains, and
Buyer hereby grants to SKYSTREAM, a security interest in the Products
delivered to Buyer and any proceeds therefrom. Buyer agrees to
promptly execute all documents reasonably requested by SKYSTREAM to
perfect and protect such security interest. In the event Buyer fails
promptly to execute such documents, Buyer hereby appoints SKYSTREAM
its attorney-in-fact for the sole purpose of executing such documents,
which appointment shall be a power coupled with an interest and shall
be irrevocable.
3.3 Should Buyer become delinquent in the payment of any sum due
hereunder, SKYSTREAM shall not be obligated to continue performance
hereunder, including without limitation shipment of any previously
accepted orders.
3.4 Buyer warrants to SKYSTREAM that it is financially solvent on the date
on which it places an order and expects to be solvent on the date of
receipt of shipment. SKYSTREAM reserves the right to change the credit
terms provided herein, when in SKYSTREAM's opinion the financial
condition or previous payment record of Buyer so warrants.
4. Delivery Dates
4.1 All shipments are subject to SKYSTREAM's availability schedule.
SKYSTREAM will use commercially reasonable efforts to meet any
delivery date(s) requested in Buyer's order; provided however, that
SKYSTREAM will not be liable under any circumstances for its failure
to meet such delivery date(s). Any delivery dates provided by
SKYSTREAM to Buyer are best estimates only.
4.2 SKYSTREAM shall have the right to make partial shipments and payment
therefore shall be made in the manner described in Section 3.1 above.
4.3 SKYSTREAM shall have the right to make shipments at any time before or
after the requested delivery date and payment therefore shall be made
in the manner described in Section 3.1 above.
5. Packing
All Products shall be packed, if appropriate, for shipment and storage in
accordance with standard commercial practices. All packing will conform to
requirements of carrier's
18
tariffs. When special or export packaging is requested or, in the
opinion of SKYSTREAM, required under the circumstances, the cost of
such special import packaging, if not set forth on the invoice, will be
separately invoiced.
6. Shipment & Acceptance
6.1 F.O.B. Point. All prices are F.O.B. (as defined in the Uniform
Commercial Code as implemented by the state of California,
U.S.A.) SKYSTREAM's Mountain View location unless otherwise
agreed to in writing. Buyer will pay all transportation and
insurance charges after delivery to the F.O.B. point. Unless
otherwise indicated by SKYSTREAM, Buyer is obligated to obtain
insurance covering damage to the goods being shipped.
6.2 Method of Shipment. Subject to this Section 6.2, SKYSTREAM will
ship in accordance with Buyer's shipping instructions. In the
absence of specific instructions or if Buyer's instructions are
deemed unsuitable, SKYSTREAM reserves the right to ship by the
most appropriate method.
6.3 Title and Risk of Loss. Title to the Products and risk of loss
and damage shall pass to Buyer upon delivery to the F.O.B.
point.
6.4 Acceptance. Products shall be deemed to have been accepted by
Buyer unless Buyer provides written notice to SKYSTREAM to the
contrary within thirty (30) days from the date of delivery to
the F.O.B. point. Such written notice shall request a Return
Material Authorization ("RMA") number and the terms and
conditions that apply to warranty returns under Section 13.2
shall apply to returns under this Section 6.4.
7. Changes and Cancellations
7.1 Subject to the additional charges set forth below and to
Section 7.2, standard Product orders may be canceled per the
following schedule:
DAYS PRIOR TO SCHEDULED PERCENTAGE OF ORDER WHICH
SHIPMENT DATE TO F.O.B. POINT MAY BE CANCELED
0-30 Days 0%
31-60 days 25%
61-90 days 50%
91+ days 100%
In the event that Buyer cancels any order more than thirty (30) days but fewer
than ninety (90) days prior to the scheduled delivery date (to the F.O.B.
point) for such order, Buyer
19
shall promptly pay to SKYSTREAM a restocking/cancellation fee equal
to fifteen percent (15%) of the purchase price for the Product subject to
such order.
7.2 Standard Product orders may be rescheduled per the following schedule:
DAYS PRIOR TO SCHEDULED PERCENTAGE OF ORDER WHICH
SHIPMENT DATE TO F.O.B. POINT MAY BE RESCHEDULED
----------------------------- --------------------------
0-30 days may not be rescheduled
31-60 days 25% may be rescheduled up to four weeks out
61-90 days 50% may be rescheduled up to four weeks out
91+ days 100% may be rescheduled
7.3 Non-standard Products (customer special and certain designated
Products) may have different cancellation and reschedule terms, and
require advance payment.
7.4 If Buyer terminates individual orders in whole or in part because of
SKYSTREAM's failure to timely deliver, Buyer's sole remedy shall be
entitlement to cancel the undelivered quantity of any individual
order.
7.5 No cancellation of any purchase order for default shall be effective
unless SKYSTREAM has failed to correct such alleged default within
thirty (30) days after receipt by SKYSTREAM of a written notice by
Buyer of such default.
8. Software
"Software" shall mean each software program provided by SKYSTREAM in
machine-readable, object, printed, or interpreted form. SKYSTREAM shall
retain all right, title and ownership of any Software provided to Buyer or
its end users. SKYSTREAM sells its products to Buyer only to the extent
that such products consist of non-software items on the terms specified
herein. Use of the terms "sell," "purchase," "purchase price" and similar
terms are to be interpreted in accordance with this Section. Use of
Software is governed by the provisions of the Software License, a copy of
which Buyer has received and executed.
9. Confidential Information
9.1 It is understood that during the term of this Agreement, parties may
receive Confidential Information belonging to the other party. If any
Confidential Disclosure Agreements have been executed, such
Agreements are incorporated herein by reference.
20
9.2 Confidential Information shall include information submitted in
writing, and covers, but is not limited to, Software, designs,
performance data, system bugs, and test programs.
9.3 The parties shall protect the disclosed Confidential Information, by
using the same degree of care, but not less than a reasonable degree
of care, to prevent the unauthorized use, dissemination or
publication of the Confidential Information, as the recipient party
uses to protect its own Confidential Information of a like nature.
Both SKYSTREAM and Buyer shall restrict the dissemination of such
Confidential Information only to those personnel of each who require
access thereto, in order to perform this Agreement.
9.4 The obligation to protect the Confidential Information shall survive
for three (3) years following the expiration or termination of this
Agreement.
9.5 The obligation to protect the Confidential Information shall not
extend to information which:
(a) Was already lawfully known or acquired by the receiving party
prior to the receipt from the disclosing party;
(b) Is or becomes generally known to the public through no wrongful
act of the receiving party;
(c) Is received from a third party without similar restriction and
without breach of these or similar conditions; or
(d) Is independently developed by the receiving party by personnel
without access to the Confidential Information.
10. Intellectual Property Warranty and Indemnity
10.1 Buyer warrants that it owns all the rights to the information and
processes including specifications, designs, instructions and
Confidential Information provided to SKYSTREAM, and that such items
are free of any restrictions, settlements, judgments, or adverse
claims. Buyer warrants that it has the full power and authority to
supply and to disclose such information to SKYSTREAM.
10.2 Buyer warrants that it has not improperly or unlawfully acquired the
information and processes submitted to SKYSTREAM.
10.3 Buyer agrees to indemnify SKYSTREAM against, and to hold SKYSTREAM
harmless of and from, any loss, cost, damage, liability, suit,
judgment, or expense,
21
including legal fees (collectively, "Harm") arising out of any breach of
the warranties set forth in Section 10.1 or Section 10.2.
10.4 Subject to the limitations hereinafter set forth, Buyer agrees that
SKYSTREAM has the right to defend, or at its option to settle, and
SKYSTREAM agrees, at its own expense, to defend or at its option to
settle, any claim, suit or proceeding (collectively, "Action") brought
against Buyer alleging that the use or distribution of the Products in
the United States infringes or misappropriates any copyright or trade
secret. Notwithstanding the above, SKYSTREAM's obligations with respect
to any claims to the object code within Products are subject to the
Software License. SKYSTREAM shall have sole control of any such Action
or settlement negotiations, and SKYSTREAM agrees to pay, subject to the
limitations set forth in Section 14, any final judgment entered against
Buyer as a result of such infringement in any such Action defended by
SKYSTREAM. Buyer agrees that SKYSTREAM at its sole option shall be
relieved of the foregoing obligations unless Buyer notifies SKYSTREAM
promptly in writing of such Action and gives SKYSTREAM authority to
proceed as contemplated herein, and, at SKYSTREAM's expense, gives
SKYSTREAM proper and full information and assistance to settle and/or
defend any such Action. If the Products, or any part thereof, are, or in
the opinion of SKYSTREAM may become, the subject of any Action for
infringement of any intellectual property right, or if a judicial or
other governmental authority enjoins the use or distribution of Products
as a result of an Action defended by SKYSTREAM, then SKYSTREAM may, at
its option and expense: (i) procure for Buyer the right to distribute or
use, as appropriate, the Products; (ii) replace the Products with other
suitable Products; (iii) suitably modify the Products; or (iv) if the
foregoing alternatives cannot be accomplished on a commercially
reasonable basis as determined in SKYSTREAM's sole discretion, require
Buyer to return such Products and refund the aggregate payments paid
therefor by Buyer, less a reasonable sum for use and damage. Buyer shall
indemnify and hold harmless SKYSTREAM from and against any and all third
party claims arising out of the distribution of Products after SKYSTREAM
has required Buyer to return such Products or arising out of any
exclusions to SKYSTREAM's indemnification obligations set forth in
Section 10.5. SKYSTREAM shall not be liable for any costs or expenses
incurred without its prior written authorization.
10.5 Notwithstanding the provisions of Section 10.4 above, SKYSTREAM assumes
no liability for (i) any infringement claims (including without
limitation combination or process patents) arising out of the
combination of a Product or use with other hardware, software or other
items not provided by SKYSTREAM to the extent such infringement would
not have occurred absent such combination or use; (ii) the modification
of the Products, or any part thereof, unless such modification was made
by SKYSTREAM; or (iii) any infringement claims arising out of
SKYSTREAM's compliance with Buyer's specifications or designs.
22
10.6 SKYSTREAM's obligation to indemnify Buyer does not extend to any
Action arising from a claim of infringement by the manufacture, use
or sale of Products that conform to any technical standard adopted by
an international organization such as the International Organization
for Standardization, the International Electrotechnical Commission,
and the CCITT/ITU, including, without limitation, the MPEG, JPEG and
H.261 standards.
10.7 THE FOREGOING PROVISIONS OF THIS SECTION 10 STATE THE ENTIRE
LIABILITY AND OBLIGATION OF SKYSTREAM AND THE EXCLUSIVE REMEDY OF
BUYER AND ITS CUSTOMERS WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF
COPYRIGHTS, TRADEMARKS, PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS
BY THE PRODUCTS.
10.8 SKYSTREAM shall have the right but, except as provided by Section
10.4, not the obligation, to exclusively settle any claim, suit or
proceeding brought against Buyer so far as it is based on an
allegation that any Product or service furnished hereunder infringes
a patent, copyright or other intellectual property right of any
country. Buyer shall provide SKYSTREAM with prompt notice of any such
claim, suit or proceeding.
11. Intellectual Property Rights
11.1 Buyer hereby grants SKYSTREAM a license under any patent required to
enable SKYSTREAM to perform its obligations pursuant to this
Agreement. This license shall extend for the duration of this
Agreement.
11.2 No provision in this Agreement shall be interpreted as a grant by
SKYSTREAM to Buyer of a license to use SKYSTREAM's service marks or
trade marks.
11.3 The Products are offered for sale and are sold by SKYSTREAM subject
in every case to the condition that such sale does not convey any
license expressly or by implication, to manufacture, reverse
engineer, duplicate or otherwise copy or reproduce any of the
Products or any part thereof.
12. Termination by SKYSTREAM
12.1 In the event of any proceedings, voluntary or involuntary, in
bankruptcy or insolvency by or against Buyer, or in the event of the
appointment, with or without Buyer's consent, of an assignee for the
benefit of creditors, or of a receiver, SKYSTREAM may elect to
immediately cancel any purchase order previously accepted by
SKYSTREAM.
12.2 In the event Buyer has materially breached this Agreement, including
but not limited to failure to comply with credit terms, and has not
cured such breach
23
within 30 days after receiving notice thereby by SKYSTREAM,
SKYSTREAM may immediately cancel any purchase order previously
accepted by SKYSTREAM.
13. Limited Warranty
13.1 The Products are warranted against defects in material and
workmanship for a period of ninety (90) days from the date of
shipment to the F.O.B. point provided that the foregoing
warranty shall not apply to defects that reasonably could have
been discovered by Buyer during the 30 day period following
delivery to the F.O.B. point. This limited warranty does not
cover the results of accident, abuse, neglect, improper
testing, vandalism, acts of God, use contrary to specifications
or instructions, or repair or modification by anyone other than
SKYSTREAM or SKYSTREAM's authorized agents. SKYSTREAM SHALL
HAVE NO OBLIGATION UNDER THIS WARRANTY, AND MAKES NO
REPRESENTATIONS AS TO PRODUCTS THAT HAVE BEEN MODIFIED BY BUYER
OR ITS CUSTOMERS. The foregoing warranty extends only to Buyers
who are SKYSTREAM customers, and not Buyer's customers or other
users of Buyers' Products. The foregoing warranty does not
apply to any used or modified Products, or software within the
Products, which is subject to the Software License.
13.2 If the Product does not conform to the foregoing warranties,
Buyer may, at its own risk and expense, return the allegedly
defective Product directly to SKYSTREAM during the Warranty
Period. In order to do so, Buyer must first notify SKYSTREAM in
writing of the alleged defect and request a return material
authorization ("RMA") number. Within five (5) days of its
receipt of the RMA number, Buyer shall ship to SKYSTREAM the
allegedly defective Product, freight prepaid, to SKYSTREAM, and
shall include a notation of the RMA number. Any Products
returned to SKYSTREAM without an authorized RMA number may be
returned to Buyer, freight collect. Upon receipt of the
Product, SKYSTREAM, at its option, will repair or replace the
Product and ship the repaired or replaced Product to Buyer at
SKYSTREAM's expense and risk, or refund the purchase price. If
SKYSTREAM determines that any returned Product conformed to the
warranties, SKYSTREAM will return the Product to Buyer at
Buyer's expense and risk, along with a written statement
setting forth the basis for SKYSTREAM's conclusion that the
returned Product was not defective, and Buyer agrees to pay
SKYSTREAM's reasonable costs of handling and testing.
13.3 THE REMEDIES PROVIDED HEREIN ARE BUYERS' SOLE AND EXCLUSIVE
REMEDIES FOR BREACH OF WARRANTY BY SKYSTREAM. SKYSTREAM
SPECIFICALLY DISCLAIMS ALL OTHER EXPRESS, IMPLIED OR STATUTORY
WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE, IMPLIED WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE, MERCHANTABILITY OR NONINFRINGEMENT. NO
PERSON IS
24
AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION
CONCERNING THE PERFORMANCE OF THE PRODUCTS OTHER THAN AS PROVIDED
IN THIS SECTION
14. Limitation of Liability
NEITHER SKYSTREAM NOR ITS SUPPLIERS SHALL BE LIABLE TO BUYER FOR ANY
DAMAGES WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY
(i) FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES OF ANY
SORT EVEN IF SKYSTREAM OR ITS SUPPLIERS HAVE BEEN INFORMED OF THE
POSSIBILITY OF SUCH DAMAGES; (ii) FOR COST OF PROCUREMENT OF SUBSTITUTE
GOODS, TECHNOLOGY OR SERVICES; OR (iii) FOR LOSS OR CORRUPTION OF DATA OR
INTERRUPTION OF USE. SKYSTREAM SHALL NOT BE LIABLE FOR ANY AMOUNTS IN
EXCESS OF THE TOTAL AMOUNT ACTUALLY PAID TO SKYSTREAM HEREUNDER FOR THE
PARTICULAR PRODUCTS THAT ARE SUBJECT TO A CLAIM. THESE LIMITATIONS SHALL
APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT
APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICATION
LAW PROHIBITS SUCH LIMITATION.
15. Import/Export
Buyer agrees that it will not in any form export, re-export, resell, ship
or divert directly or indirectly any Product or technical data or Software
furnished hereunder to any country for which the United States Government
or any government agency requires an export license or other governmental
approval without first obtaining such license or approval.
16. Restricted Use
SKYSTREAM's Products may produce a reduction and loss of data and therefore
are not sold for use in medical equipment, avionics, nuclear applications,
or other high risk applications where malfunctions or loss of data could
result directly in personal injury to human beings. Buyer agrees to not to
use, to contractually bind its customers not to use, and to forbid all
third parties from using the Products in such applications, and Buyer
agrees to indemnify SKYSTREAM and to hold SKYSTREAM harmless from and
against any liability arising out of Buyer's failure to contractually bind
its customers in the manner previously described.
17. Term. This Agreement will govern in perpetuity all of Buyer's purchases of
Products.
18. Publicity
25
Buyer consents to the use of Buyer's name and purchase order data for use
by SKYSTREAM at SKYSTREAM's discretion for the purpose of preparing press
releases and promotional materials. Buyer agrees to use best efforts in
assisting in the preparation of any such press releases or promotional
materials.
19. Miscellaneous
19.1 Any notice required to be given hereunder shall be given in writing at
the address of each part set forth in an attached quotation or
purchase agreement, or to such other address as either party may
substitute by written notice to the other.
19.2 Any attempt by Buyer to assign or transfer any of the rights, duties,
or obligations herein shall render such attempted assignment or
transfer null and avoid.
19.3 SKYSTREAM's failure to exercise any of its rights hereunder shall not
constitute or be deemed a waiver or forfeiture of such rights.
19.4 No U.S. Government Procurement Regulations shall be binding on either
party unless specifically agreed to in writing prior to incorporation
herein.
19.5 Stenographic, typographical and clerical errors are subject to
correction.
19.6 Governing Law and Jurisdiction. This Agreement will be governed by and
construed in accordance with the laws of the State of California
applicable to agreements entered into, and to be performed entirely,
within California between California residents, without reference to
conflict of law principles. Any dispute or claim arising out of this
Agreement will be resolved by binding arbitration in the city and
county of Santa Xxxxx in accordance with the complex commercial
litigation rules of the American Arbitration Association. The
arbitrator will have the power to grant any form of relief, including
preliminary and permanent injunctive relief, which a judge in
California with jurisdiction could fashion, and judgment on any award
may be entered in any court in California with jurisdiction.
Nonetheless, the parties may seek temporary or permanent injunctive
relief from any court in California with jurisdiction without
breaching this Section 19.6 or otherwise abridging the authority of
the arbitrator.
19.7 In the event any proceeding or lawsuit is brought by either party to
enforce its rights hereunder, the prevailing party shall be entitled
to recover its costs, including expert witness fees and reasonable
attorneys' fees.
19.8 All disputes between the parties of any kind arising out of or related
to this Agreement shall be brought within one (1) year after the
accrual of the dispute.
26
19.9 THE TERMS AND CONDITIONS SET FORTH HEREIN REPRESENT THE ENTIRE
AGREEMENT BETWEEN SKYSTREAM AND BUYER WITH RESPECT TO THE SUBJECT
MATTER AND BUYER AGREES THAT ALL PRIOR QUOTATIONS, INVOICES,
NEGOTIATIONS, UNDERSTANDINGS, REPRESENTATIONS AND/OR AGREEMENTS OF
THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, EXCLUDING THE
SOFTWARE LICENSE, WHETHER ORAL OR WRITTEN, ARE MERGED HEREIN AND
SUPERSEDED IN THEIR ENTIRETY. BUYER ACKNOWLEDGES THAT IT HAS NOT
ENTERED INTO THIS AGREEMENT IN RELIANCE ON ANY WARRANTY OR
REPRESENTATION BY ANY PERSON OR ENTITY EXCEPT FOR THE WARRANTIES AND
REPRESENTATIONS SPECIFICALLY SET FORTH HEREIN. No change or
modification of any of the terms or conditions herein shall be valid
or binding on either party unless in writing and signed by an
authorized representative of each party.
19.10 Neither party shall be liable to the other for its failure to
perform any of its obligations hereunder during any period in which
such performance is delayed by circumstances beyond its reasonable
control including, but not limited to, fire, flood, earthquake, war,
embargo, strike, riot, inability to secure materials and
transportation facilities, or the intervention of any governmental
authority.
27
EXHIBIT C
PRODUCTS TO BE COVERED UNDER THIS AGREEMENT:
PRODUCT DESCRIPTION
DBN-xx To be determined
SOFTWARE RELEASES TO BE COVERED UNDER THIS AGREEMENT:
Release x, y and successor versions thereof
28
EXHIBIT D
PRODUCT PRICING MATRIX
PRODUCTS AND UPGRADE PRICING WITH INITIAL INTEGRATOR PURCHASE
[Insert price list]
UPGRADE PRICING AFTER INITIAL INTEGRATOR HAS BEEN PURCHASED
[Insert upgrade price list]
ANNUAL MAINTENANCE FEES
[*]% of the invoiced price to the Reseller on a per unit, per year basis.
SkySupport service is renewed automatically every 12 months, unless otherwise
noted by the Reseller.
HOURLY CONSULTING RATE FOR CHARGEABLE SERVICES
$[*] per hour, not including travel or lodging expenses
RESELLER'S TERM
Term. The term of this Agreement will begin on the Effective Date and will
continue for a period of [specify time] unless it is terminated earlier in
accordance with the provisions hereof. This Agreement may be renewed for
additional periods upon the mutual written agreement of the parties, although
each party acknowledges that the other is under no obligation to do so.
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
29
EXHIBIT E
[ATTACH SKYSUPPORT DOCUMENT HERE]
