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EXHIBIT 10.11
This Nonexclusive Unique Application Reseller Agreement (the "Agreement") is
entered into as of March 1, 1998 (the "Effective Date") between Autodesk, Inc.,
a Delaware corporation with principal offices at 000 XxXxxxx Xxxxxxx Xxx Xxxxxx,
Xxxxxxxxxx 00000 ("Autodesk") and Faro Technologies, a Delaware corporation with
principal offices at 000 Xxxxxxxxxx Xxxx Xx., Xxxx Xxxx, XX 00000 ("UAR").
THE PARTIES AGREE AS FOLLOWS:
DEFINITIONS.
"Software" shall mean the Autodesk software set forth on
Exhibit A and any subsequent release delivered to UAR by Autodesk as
mutually agreed upon by the parties in writing.
"Documentation" shall mean the reference manual customarily
supplied to Customers by Autodesk with the Autodesk retail version of
the Software.
"Customer" shall mean any third party licensee of the UAR
Product who obtains such UAR Product solely in order to fulfill its own
personal or business needs and not for further distribution or resale.
"UAR Product" shall mean the Software bundled in combination
with and accompanied by UAR's software as described in Exhibit A.
"Territory" shall mean the countries set forth in Exhibit B.
"Sales Channels" shall be those channels set forth in Exhibit
B.
"Market" shall mean the market set forth in Exhibit B.
All references in this Agreement to the "Sale" of or "selling"
or "purchase" of Software shall mean the sale of a license to use such
Software or Software Copies.
APPOINTMENT AND RESPONSIBILITIES OF UAR.
2.1 Appointment. Subject to the terms and conditions of this
Agreement, and in consideration of UAR's purchase commitment and other
obligations assumed below, Autodesk grants UAR a non-exclusive,
non-transferable license to reproduce and distribute, through UAR's
Sales Channels, promote, market and sublicense the Software, bundled
with UAR's software to form the UAR Product within the Territory and
Market as defined above. Without limitation to other remedies available
to Autodesk, in the event UAR breaches any of the provisions of this
authorization UAR shall pay to Autodesk, as liquidated damages and not
as a penalty, an amount (with respect to each such sale) equal to the
difference between the then-current Autodesk suggested retail price as
indicated on the applicable published price list in the country of sale
and the amount actually paid by UAR for each copy acquired by UAR under
this Agreement.
Autodesk reserves the unrestricted right to
distribute, promote, market and sublicense the Software and
Documentation (as provided to UAR or as distributed by Autodesk in the
Autodesk retail version of the Software) in the Territory, including
but not limited to through OEMs, VARs, and other third party resellers
(including other unique application resellers), as well as directly to
Customers.
Distribution of Software. UAR shall not distribute any
Autodesk Software or Documentation to any party separately or unbundled
from the UAR Product, or price quote or invoice the Autodesk Software
as a separate item, unless authorized by Autodesk for customer service
purposes. UAR acknowledges that
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any transfer of the Software or Documentation acquired pursuant to this
Agreement as a stand-alone product is expressly prohibited. For the
avoidance of doubt, failure of comply with this obligation shall
constitute a material breach of this Agreement and may lead to
immediate termination.
Promotion of UAR Products. UAR, shall, at its own expense,
actively promote the distribution of the UAR Product within the
Territory and shall assume all costs and obligations, including any
commissions, involved with sales and marketing of the UAR Product. UAR
shall not actively promote, advertise, market or solicit orders for UAR
Product, or open branches or maintain distribution depots for supply or
support of the UAR Product, outside the Territory.
Marketing. UAR shall, at its own expense:
(i) reference the Software as a component of the UAR
Product in UAR's brochures and feature the Software as a
component of the UAR Product in any applicable trade show that
it attends;
(ii) provide adequate contact with existing
Customers, including notifying Customers of bugs or errors in
the Software and corrections or fixes for such bugs or errors
as suggested by Autodesk to UAR;
(iii) assist Autodesk in assessing Customer
requirements for the Software as a component of the UAR
Product, including modifications and improvements thereto, in
terms of quality, design, functional capability, and other
features; and
promptly notify Autodesk of bugs or errors in the
Software discovered by UAR or reported to UAR by Customers.
End User Licensing. UAR shall deliver Software to Customers
and ensure that the standard Autodesk, Inc. Software License Agreement
accompanying the Software is provided to and complied with by each
Customer. UAR may not enter into any license agreement on behalf of
Autodesk or Autodesk Inc. UAR shall forward all Software License
Agreements acknowledgment forms or registration cards it receives to
Autodesk. Notwithstanding the foregoing, the UAR Product may contain a
separate license outlining the terms of UAR's Customer License with
respect to that portion of the UAR Product not comprising the Software.
Registration. UAR shall be responsible for Customer
registration of the UAR Product. To protect against unauthorized
copying or use of Software and to ensure compliance with the terms of
the Standard Autodesk Software License Agreement accompanying the
Software, UAR shall maintain an accurate accounting of the Autodesk
serial numbers incorporated into the UAR Product which must be
registered by UAR's Customers, and shall provide registration reports
to Autodesk as set forth in Paragraph 5.6 (Sales and Inventory
Reports). Nothing herein shall limit Autodesk's right to register
Customers directly.
3. REPRODUCTION.
3.1 Subject to the terms and conditions of this Agreement,
Autodesk grants to UAR, a limited, nonexclusive right to reproduce
copies of the Software. UAR may not sublicense its right to reproduce
such Software to any third party unless Autodesk consents in writing to
the sublicense. Such right to reproduce the Software does not include
the right to reproduce the Documentation.
3.2 UAR is solely responsible for reproduction of the Software
in accordance with industry standards of quality assurance.
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3.3 UAR may use its own company label on the UAR Product
media, provided however, that each copy of the media embodying the UAR
Product bears the Autodesk copyright notice.
3.4 UAR may, from time to time, reproduce copies of the
Software to be used for evaluation purposes so long as: (a) UAR
notifies Autodesk of its need to reproduce such evaluation copies and
the number of copies needed; and (b) the Software is destroyed and
permanently deleted from any of the test systems on which it is
installed. No royalty will be due on such evaluation copies.
RESTRICTIONS.
Modification.
For All Countries. Autodesk shall be responsible for
all reproduction of copies of the Software and Documentation
except as set forth in section 3 above. UAR shall not disable
features of the Software, modify, enhance or make derivative
works of the Software or Documentation or sublicense such
rights. UAR may, however, link its software to the Software
and revise the user interface of the Software. UAR also may
affix a label to the Software and Documentation identifying
UAR's name, address, phone number and identifying xxxx or
logo, provided that the label does not obscure any other
identifying xxxx or label of Autodesk. In no event shall UAR
alter or modify the contents of any magnetic or printed
material or offer to do so for any third party, without the
previous written consent of Autodesk. UAR agrees not to
reverse engineer, disassemble, or decompile the Software in
whole or in part. UAR acknowledges that Autodesk desires to
protect the integrity of the Software as a commercial
technology. UAR agrees that the licenses granted herein are
subject to UAR bundling the Software in its entirety, as
delivered by Autodesk to UAR and UAR specifically agrees not
to bundle a lesser subset of any Software files with the UAR
Product without Autodesk's prior written consent.
In the European Community. Notwithstanding the
foregoing, if the term Territory as defined in this Agreement
includes a country that is a member of the European Community,
UAR shall be entitled to reproduce one copy of the code of the
Software (i.e., to decompile the code) where such
decompilation is indispensable to obtain the information
necessary to achieve the interoperability of an independently
created computer program with such Software if the conditions
of Article 6.1 of the EC Council Directive 14 May 1991 on the
legal protection of computer programs (the "Directive") are
met, subject to the further condition precedent that UAR has
provided Autodesk with a written request for the information
purportedly required to achieve interoperability, and Autodesk
has been unable to provide said information within 45 days of
UAR's request. UAR hereby undertakes that no information
obtained from such decompilation shall be used in any manner
incompatible with Article 6.2 or 6.3 of the Directive.
Furthermore, UAR agrees to give at least 10 days prior written
notice to Autodesk of all decompilation permitted hereby and
to allow representatives of Autodesk to be present at all such
decompilation. UAR hereby undertakes that no decompilation
permitted in accordance with this Section 4.1 shall take place
nor shall any information obtained from any such decompilation
or resulting interoperable product be transferred outside the
member states of the European Community. Without limiting the
materiality of any other term of this Agreement, the failure
of UAR to comply with the provisions of this Section 4.1 shall
be considered a material breach of this Agreement.
Mail Order Sales.
In the United States. UAR shall not distribute the
UAR Product by Mail Order or to any Sales Channel that UAR has
reason to believe may distribute the UAR Product by Mail
Order. "Mail Order" shall be defined as invitation, through
advertising or otherwise, for orders
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by mail or telephone, where Customer service, product
demonstrations and installation services are not offered by
UAR to the Customer.
In the European Community. UAR shall not distribute
the UAR Product by Mail Order or to any Sales Channel that UAR
has reason to believe may distribute the UAR Product by Mail
Order unless it offers and makes available to Customers full
on-site service and support, and makes professional counsel,
advice and product demonstrations available to such Customers.
Software Purchases. Software for use in the UAR Product may
only be purchased under the terms of this Agreement. UAR may not
purchase Software for the UAR Product under any other agreements with
Autodesk.
TERMS OF DELIVERY OF SOFTWARE AND DOCUMENTATION
Delivery. Autodesk shall deliver to UAR copies of the Software
media (5 1/4, 3 1/2 floppy disk, CD-ROM or tape) and copies of the
necessary documentation, as ordered by UAR from time to time.
Orders. All orders for copies of Software and Documentation
shipped to UAR by Autodesk shall be in writing (including by
facsimile),shall indicate the geographic region where the UAR Product
is to be shipped to Customer, and shall be subject to the terms and
conditions of this Agreement. Any purchase order which purports to
supersede or otherwise modify this Agreement shall be of no force or
effect. Each copy of Software and Documentation shall be deemed
accepted by UAR upon receipt.
Shipping. All Software and Documentation delivered by Autodesk
shall be FCA Autodesk's manufacturing plant. All shipping charges,
special packing expenses, (including income, stamp, turnover, value
added taxes and/or withholding taxes related to any payments made to
Autodesk under this Agreement), duties, fees, insurance, charges, or
assessments of any nature levied by any governmental authority other
than U.S. in connection with this Agreement, whether levied against UAR
or Autodesk, shall be the responsibility of UAR and shall be paid
directly by UAR to the governmental authority concerned. Claims for
missing or damaged items shall not be reviewed by Autodesk unless
notified in detail and in writing to Autodesk within 10 business days
of the delivery noted on the carrier's invoice. If at any time UAR is
not in conformance with its obligations under the terms of this
Agreement, Autodesk reserves the right to cease delivering Software and
Documentation to UAR until such time as UAR is in compliance with such
obligations.
Payment. The price to UAR for each copy of the Software and
related Documentation shall be the then-current Price List price for
the appropriate geographic region within the Territory, for the
Autodesk version of the Software less the discount rate ("Discount
Rate") set forth in Exhibit C. UAR's Discount Rate is dependent upon
UAR's quarterly purchases (revenues) to Autodesk. Such Discount Rate
shall be adjusted quarterly based on UAR's previous quarter revenues.
Autodesk shall submit an invoice to UAR upon each shipment. In the
event that UAR Product is shipped to a geographic region different from
the geographic region indicated on the initial order, UAR's invoice
shall be adjusted accordingly. Upon approval of UAR's credit standing
by Autodesk, payment terms shall be thirty (30) days from the date of
the invoice. Pending such approval, payment shall be due immediately
upon delivery. Any invoiced amount not received within thirty (30) days
of the date of invoice shall be subject to a service charge of one and
one-half percent (1.5%) per month (or, if less, the maximum allowable
by applicable law). UAR shall pay all sales, property, excise, duties,
and other federal and local taxes (other than those based on Autodesk's
net income).
Initial Purchase. Upon execution of this Agreement, UAR shall
purchase the quantity of Software Copies set forth in Exhibit C. Such
initial purchase shall determine UAR's Discount Rate for the first
quarter of this Agreement.
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Sales and Inventory Reports and Audit Rights. UAR shall
provide Autodesk with a quarterly point-of-sale report for each of the
Sales Channels set forth in Exhibit B, showing, at a minimum, date
shipped, quantity of UAR Product sold and used internally, the Autodesk
serial numbers and the corresponding UAR serial numbers, the Customers'
names and addresses, quantities sold to such Customers (if any), as
well as the quarter-end inventory position on hand for the UAR Product.
This report must be forwarded within fifteen (15) days of the close of
each quarter. Within the first five (5) days of every quarter, UAR
shall provide Autodesk with a ninety (90) day rolling forecast showing
prospective orders for each Sales Channel and intended date when such
orders shall be submitted to Autodesk. UAR shall maintain complete and
accurate records of the information required by this section. Autodesk
shall be entitled, at any time during the term of this Agreement, to
audit the books and records of UAR for purposes of compliance with the
terms of this Agreement and verifying such sales and inventory reports.
Any such audit shall be conducted by Autodesk or its representatives
during normal business hours, and UAR shall cooperate fully with
Autodesk or its representatives in any such audit. In the event such
inspection or audit discloses any underpayment, UAR shall promptly pay
Autodesk such amount, together with interest accrued daily at a rate
per annum equal to the highest allowable rate under California law on
the unpaid balance until paid in full.
Software Purchases from Authorized Resellers in the European
Community. Software for use in the UAR Product may be purchased from
Autodesk Authorized Dealers ("AAD's"), Autodesk Authorized Systems
Centres ("ASC's") and other Authorized Resellers within the European
Community which are authorized by Autodesk to offer the Software
product versions specified in this Agreement in the Territory, at
independently set prices, but always subject to the resale requirements
specified in this Agreement. For the avoidance of doubt, the parties
acknowledge that AADs, ASCs and other Authorized Resellers are free to
set their own Software prices. UAR may not purchase Software for the
UAR Product under any other agreements with Autodesk.
If at any time UAR is not in conformance with its obligations
under the terms of this Agreement, Autodesk reserves the right to cease
delivering Software and Documentation to UAR until such time as UAR is
in compliance with such obligations.
6. CUSTOMER SERVICE.
Customer Support. UAR shall provide direct on-site Customer
pre-sale and post sale service and support for the UAR Product and the
Software as a component of the UAR Product. However, UAR may contract
with its Sales Channel to provide on-site installation and support
services solely through sales, installation and support personnel
employed directly by UAR or its Sales Channel. UAR shall maintain
adequate facilities and on staff full time sales and technical support
personnel sufficiently knowledgeable with respect to the Software such
that UAR shall be capable of fully supporting the Software as a
component of the UAR Product. At no time during the term of this
Agreement, shall UAR represent to any Customer that Autodesk is
available to directly answer questions about the Software as a
component of the UAR Product.
Autodesk Support to UAR. Autodesk shall, during normal
business hours, provide to UAR telephone assistance and response to
written requests received by telecopy concerning Software errors and
possible work arounds for the Software. Such support is specifically
designed to assist UAR as a reseller of the Software and UAR is not to
make such UAR support accessible to its Customers at any time.
Error Notifications. UAR shall promptly notify Autodesk of
bugs or errors in the Software or Documentation. Autodesk shall not be
obligated to correct any such errors discovered by UAR or reported to
UAR by Customers.
Autodesk Developer Support. UAR shall register with Autodesk
Developer Marketing to
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participate in the Autodesk Developer Network Program at the then
current fees.
UPGRADES BY UAR.
In the event Autodesk creates bug fixes or New Releases
("Upgrades") of the Software, Autodesk will notify UAR in writing
(including through CompuServe) and UAR will advise Autodesk as to
whether UAR wishes to receive such Upgrade. Once any such Upgrade is
made available to UAR, if UAR decides to integrate the Upgrade into the
UAR Product, UAR shall be responsible for providing such Upgrade as a
component of the revised UAR Product to its Customers. UAR will ensure
that the copy of the Software as a component of the UAR Product is
destroyed either by UAR or by Customer at the time the Upgrade is
installed. Any such Upgrade shall be subject to the terms of this
Agreement. Unless other arrangements are made with Autodesk in writing,
such Upgrade will not be delivered to Customers as stand-alone product
but rather will be integrated into the new version of the UAR Product
and delivered as an upgrade to the UAR Product already in the
possession of UAR's installed base of Customers.
WARRANTIES.
Standard Limited Warranty. Autodesk will provide no warranty
or continuing support for the Software to Customers or the Sales
Channel and UAR agrees that UAR shall be solely responsible for
providing warranty and continuing support to UAR's Customers and Sales
Channel. Autodesk warrants to UAR, for a period of ninety (90) days
from delivery by Autodesk to UAR, that the copies of the Software
delivered to UAR (as a standalone product) will perform substantially
in accordance with the Documentation. As Autodesk's entire liability
and UAR's exclusive remedy under this warranty, Autodesk shall replace
free of charge any defective diskette, hardware lock or manual which is
returned to Autodesk within 90 days after delivery and which is
accepted by Autodesk as defective and may at its discretion make
reasonable efforts to correct any demonstrated error in the Software.
UAR shall honor and shall require its Customers to honor the warranty
against defective media, documentation and hardware locks indicated
above and shall return any such defective items to Autodesk for credit
or exchange pursuant to the return policies established by Autodesk
from time to time. UAR SHALL NOT MAKE OR PASS ON TO ANY PARTY ANY
WARRANTY OR REPRESENTATION CONCERNING THE SOFTWARE AND DOCUMENTATION ON
BEHALF OF AUTODESK.
No Other Warranty. EXCEPT FOR THE LIMITED WARRANTY TO UAR
DESCRIBED IN SUBPARAGRAPH 8.1 ("STANDARD LIMITED WARRANTY"), AUTODESK
GRANTS NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE
REGARDING SOFTWARE AND DOCUMENTATION. AUTODESK DOES NOT WARRANT THE
PERFORMANCE OF THE SOFTWARE WHEN USED IN CONJUNCTION WITH THE UAR
PRODUCT. FURTHERMORE, AUTODESK EXPRESSLY EXCLUDES ANY IMPLIED WARRANTY
OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR
NON-INFRINGEMENT.
CONTACT PERSONS.
The contact persons for the parties shall be:
Autodesk: Xxxxx Xxxxxxxx
000 Xxxxx Xxxxx Xx.
Xxxxx, XX 00000
tel: 000-000-0000
fax: 000-000-0000
UAR: Xxxx Xxxxxx
Faro Technologies
000 Xxxxxxxxxx Xxxx Xx.
Xxxx Xxxx, XX 00000
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tel: 000-000-0000
fax: 000-000-0000
OWNERSHIP OF PROPRIETARY RIGHTS.
UAR acknowledges that the Software and Documentation are
proprietary to Autodesk and that Autodesk retains exclusive ownership
of the Software and Documentation and all proprietary rights associated
with the Software and Documentation. UAR shall take all reasonable
measures to protect Autodesk's proprietary rights in the Software and
Documentation. Except as provided herein, UAR is not granted any other
rights or license to patents, copyrights, trade secrets or trademarks
with respect to the Software and Documentation. UAR shall promptly
notify Autodesk in writing upon its discovery of any unauthorized use
or infringement of the Software and Documentation or Autodesk's patent,
copyright, trade secret, trademark or other intellectual property
rights. UAR shall not (and shall require that its Customers do not)
remove, alter, or cover any copyright notices or other proprietary
rights notices placed on or in any copy of the Software or
Documentation by Autodesk. UAR shall not sell to any Customer if UAR
has notified Autodesk that such Customer may be involved in potential
unauthorized use of Software or Documentation or other infringement of
Autodesk's proprietary rights.
CONFIDENTIALITY.
Confidentiality Required. Through its relationship with
Autodesk UAR shall have access to certain information and materials
concerning Autodesk's business, plans, Customers, technology, and
products that are confidential and of substantial value to Autodesk,
which value would be impaired if such information were disclosed to
third parties ("Confidential Information"). UAR shall not disclose any
such Confidential Information to any third party and shall take every
reasonable precaution to protect such information. UAR shall not
publish any technical description of Software and Documentation beyond
the description published by Autodesk. In the event of termination of
this Agreement, there shall be no use or disclosure by UAR of any
confidential information of Autodesk.
Exceptions to Confidentiality. UAR's confidentiality
obligations do not extend to Confidential Information which (i) becomes
publicly available without the fault of UAR; (ii) is rightfully
obtained by UAR from a third party with the right to transfer such
information; or (iii) is independently developed by UAR and without
reference to Autodesk's Confidential Information. UAR shall have the
burden of proving the existence of any condition in this Paragraph.
12. CONFLICTS OF INTEREST.
Within the European Community.
Notice and Managing Confidential Information. UAR
shall not promote the products of other companies if it will
create a conflict of interest in handling Autodesk's
confidential or proprietary information. In the event UAR
begins to distribute one or more competing software programs,
UAR shall immediately notify Autodesk and take the following
steps to ensure that Confidential Information shall not be
misused or misappropriated for the purpose of promoting,
marketing or benefiting the competing software program(s):
UAR shall establish and maintain at all
times a separate teams of sales and technical
personnel dedicated exclusively to the promotion,
marketing and support of Software whose names shall
be furnished to Autodesk, each of whom shall have
signed a non-disclosure agreement in substantially
the same form as one provided by Autodesk upon
request for this purpose.
UAR shall establish and maintain at all
times such procedures as may be necessary to ensure
that no personnel other than those whose names have
been
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communicated to Autodesk pursuant to 12.1.1., and in
particular no personnel responsible for promotion,
marketing, sales and support of competing software
programs have access to Confidential Information for
any purpose.
UAR shall not reassign personnel dedicated
to Software to any position in which they have
responsibility for marketing, promotion or support of
competing software programs unless Autodesk is
notified of each such intended reassignment at least
three (3) months in advance. From the date of such
notice, UAR undertakes to withhold all Confidential
Information from the personnel to be reassigned
unless disclosure is expressly approved by Autodesk.
In handling and distributing Confidential
Information, UAR shall ensure that each copy of
Confidential Information is marked according to
guidelines furnished by Autodesk, that no unnecessary
copies of Confidential Information are made or
disseminated, and that all copies of Confidential
Information are retrieved and destroyed promptly when
the purpose for which they were provided has been
fulfilled.
Outside the European Community. UAR shall not promote
the products of other companies if it will create a conflict
of interest in handling Autodesk's confidential or proprietary
information.
13. TRADEMARKS.
During the term of this Agreement, UAR shall have a
non-exclusive, non-transferable right to indicate to the public that it
is an authorized UAR of Autodesk's Software and Documentation as a
component of the UAR Product and to advertise such Software and
Documentation as a component of the UAR Product within the Territory
under the Autodesk trademarks and slogans adopted by Autodesk from time
to time ("Trademarks"). UAR shall include the Autodesk Trademarks in
any literature, promotion or advertising concerning the UAR Product.
UAR shall not affix any Autodesk Trademark to products other than the
UAR Product. UAR shall not contest, oppose or challenge Autodesk's
ownership of the Trademarks. All representations of Autodesk Trademarks
that UAR intends to use shall be exact copies of those used by
Autodesk, or shall first be submitted to the appropriate Autodesk
personnel for approval of design, color, and other details and such
approval shall not be unreasonably withheld. If any of the Autodesk
Trademarks are to be used in conjunction with another trademark on or
in relation to the UAR Product, then the Autodesk Trademarks shall be
presented equally legibly, equally prominently, but nevertheless
separated from the other so that each appears to be a trademark in its
own right, distinct from the other xxxx. Effective upon the termination
of this Agreement, UAR shall cease to use all Autodesk Trademarks.
PROPRIETARY RIGHTS INDEMNITY.
Autodesk shall defend, at its expense, any action brought
against UAR which alleges that the Software or Documentation infringes
a United States copyright or patent, provided that UAR promptly
notifies Autodesk in writing of any claim, gives Autodesk sole control
of the defense and settlement thereof, and provides all reasonable
assistance in connection therewith. If the Software and Documentation
is finally adjudged to so infringe, Autodesk shall, at its option, (a)
procure for UAR the right to continue using the Software and
Documentation as a component of the UAR Product; (b) modify or replace
the Software and Documentation so there is no infringement; or (c)
accept return of the copies of the Documentation in UAR's inventory and
refund the purchase price. Autodesk shall have no liability regarding
any claim arising out of the use of the Software and Documentation in
combination with other products, including the UAR Product, if the
infringement would not occur but for such combination. THE FOREGOING
STATES UAR'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF
INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND.
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UAR shall defend, at its expense, any action brought against
Autodesk for any claim which alleges the UAR Product infringes a United
States copyright or patent. Autodesk shall provide all reasonable
assistance in connection with any claim therewith.
TERM AND TERMINATION.
Term. The term of this Agreement shall be effective as of the
Effective Date, set forth above, and shall continue until October 1,
1998 unless terminated earlier as set forth herein. The term shall be
automatically renewed for one (1) year periods, thereafter, unless
thirty (30) days prior to any October 1, anniversary date, either party
notifies the other in writing of their intention not to renew the
relationship.
Termination for Cause. Autodesk may terminate this Agreement
upon thirty (30) days written notice of a material breach.
Termination for Convenience. This Agreement may be terminated
without administrative or judicial resolution by either party for any
reason or no reason, by giving the other party written notice sixty
(60) days in advance.
Termination for Insolvency. Either party may terminate this
Agreement immediately, upon written notice, (i) upon the institution by
or against the other of insolvency, receivership or bankruptcy
proceedings or any other proceedings for the settlement of the other's
debts, (ii) upon the other's making an assignment for the benefit of
creditors or (iii) upon the other's dissolution or ceasing to conduct
business in the normal course.
Fulfillment of Orders Upon Notice of Termination. Upon
delivery of notice of termination pursuant to this Paragraph 15 ("Term
and Termination"), Autodesk shall not be obligated to fulfill any
unfulfilled orders or any orders received by Autodesk subsequent to the
date of delivery of notice of termination. In Autodesk's sole
discretion Autodesk may continue to fulfill orders if UAR (i) submits
prepayments for any such order and (ii) pays all credit balances then
outstanding prior to any shipment of Software or Documentation by
Autodesk.
Return of Materials. All Autodesk Confidential Information,
data, photographs, samples, literature, and sales aids of every kind
shall remain the property of Autodesk. Within thirty (30) days after
the termination of this Agreement, UAR shall return all such items as
Autodesk may direct, at Autodesk's shipping expense.
Survival of Certain Terms. The provisions of Paragraph 5.4
("Payment"), Paragraph 6.1 ("Customer Support"), Paragraph 8
("Warranties"), Paragraph 10 ("Ownership of Proprietary Rights"),
Paragraph 11 ("Confidentiality"), Paragraph 13 ("Trademarks"),
Paragraph 14 ("Proprietary Rights Indemnity"), Paragraph 15 ("Term and
Termination"), Paragraph 16 ("Consequential Damages Waiver") and
Paragraph 17 ("Limitation of Liability") shall survive the termination
of this Agreement for any reason. All other rights and obligations of
the parties shall cease upon termination of this Agreement.
CONSEQUENTIAL DAMAGES WAIVER.
THE PARTIES AGREE THAT IN NO EVENT WILL AUTODESK BE LIABLE TO
UAR OR ANY OTHER PARTY, UNDER ANY THEORY OF LIABILITY, WHETHER IN AN
ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER
LEGAL THEORY, HOWEVER ARISING, FOR ANY COSTS OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES BY UAR OR FOR ANY LOSS OF USE,
INTERRUPTION OF BUSINESS, OR INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER OR NOT AUTODESK HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH
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DAMAGE. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
17. LIMITATION OF LIABILITY.
AUTODESK'S AGGREGATE LIABILITY UNDER THE TERMS OF THIS
AGREEMENT SHALL BE LIMITED TO THE TOTAL PAYMENTS MADE BY UAR TO
AUTODESK FOR THE SOFTWARE AND DOCUMENTATION SHIPPED BY AUTODESK TO UAR
FOR INCLUSION IN THE UAR PRODUCT IN THE MOST RECENT FULL CALENDAR YEAR
PRECEDING IMPOSITION OF SUCH LIABILITY. THIS LIMITATION SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
AUTODESK DOES NOT EXCLUDE LIABILITY FOR DEATH OR PERSONAL INJURY
ARISING FROM ITS NEGLIGENCE EXCEPT THE TO THE EXTENT PERMISSIBLE BY
APPLICABLE LAW.
GENERAL PROVISIONS.
Assignment. UAR shall not assign this Agreement, in whole or
in part, without the prior written approval of Autodesk. To obtain
prior written approval to assign this Agreement in the case of a change
of ownership, UAR must submit information regarding the proposed
assignee, as specified by Autodesk, at least thirty (30) days prior to
the proposed date of assignment. Autodesk will review the information
and accept or reject the proposed assignment, in writing, in Autodesk's
sole discretion. For the purposes of this Paragraph, a change in the
persons or entities who control 50% or more of the equity securities or
voting interest of UAR shall be considered an assignment of this
Agreement. Notwithstanding the foregoing, Autodesk's rights and
obligations under this Agreement, in whole or in part, may be assigned
by Autodesk and Autodesk may sell, pledge or otherwise transfer its
right to receive payments under this Agreement.
Injunctive Relief. It is expressly agreed that a material
breach of this Agreement by UAR shall cause irreparable harm and a
remedy at law would be inadequate. In addition to any and all remedies
available at law, Autodesk shall be entitled to an injunction or other
equitable remedies in all legal proceedings in the event of any
threatened or actual violation of any or all of the provisions of this
Agreement.
Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California. The parties hereby
submit to the exclusive personal jurisdiction of and venue in the
Superior Court of the State of California, County of Marin, and the
United States District Court for the Northern District of California in
San Francisco.
Legal Expenses. The prevailing party in any legal action
brought by one party against the other arising out of this Agreement
shall be entitled, in addition to any other rights and remedies it may
have, to reimbursement for its expenses, including court costs, expert
witness fees and reasonable attorney's fees.
Independent Contractors. The relationship of Autodesk and UAR
established by this Agreement is that of independent contractors, and
nothing contained in this Agreement shall be construed to create an
agency relationship between the parties or to allow UAR to create or
assume any obligation on behalf of Autodesk for any purpose whatsoever.
Severability. In the event that any provision of this
Agreement shall be unenforceable or invalid under any applicable law or
be so held by applicable court decision, such unenforceability or
invalidity shall not render this Agreement unenforceable or invalid as
a whole.
Waiver. The failure of either party to require performance by
the other party of any provision hereof shall not affect the full
right to require such performance at any time thereafter; nor shall the
11
waiver by either party of a breach of any provision hereof be taken or
held to be a waiver of the provision itself.
Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of
which together shall constitute one instrument.
Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties relating to the subject
matter herein. This Agreement merges and supersedes all prior or
contemporaneous agreements, discussions and understandings between the
parties, oral or written, regarding such subject matter. No
modification to, or amendment of, this Agreement, shall be effective
unless in writing and signed by the party to be bound.
19. COMPLIANCE WITH LAWS
UAR shall comply with all laws and regulations of the
Territory applicable to the marketing, license and support of the
Software, execution or performance of this Agreement, as well as with
all export laws, regulations and controls of the Territory and of the
United States of America.
Foreign Corrupt Practices Act. In conformity with the United
States Foreign Corrupt Practices Act and with Autodesk's established
corporate policies regarding foreign business practices, UAR and its
employees and agents shall not directly or indirectly make an offer,
payment, promise to pay, or authorize payment, or offer a gift, promise
to give, or authorize the giving of anything of value for the purpose
of influencing an act or decision of an official of any government
(including a decision not to act) or inducing such a person to use his
influence to affect any such governmental act or decision in order to
assist UAR in obtaining, retaining or directing any business.
Export Controls. In conformity with laws and regulations of
the United States relating to international trade, UAR and its
employees, agents or third parties shall not disclose, export or
reexport, directly or indirectly, any Software, documentation, or
technical data provided under this Agreement to any country or party
which Autodesk has advised is ineligible to receive such items under
U.S. laws and regulations. Until otherwise advised by Autodesk, the
following countries and parties are embargoed:
Cuba, Iran, Iraq, Libya, North Korea, Sudan, and
Syria;
Any party controlled by or acting for the governments
of any of the countries listed in "a" above, or any other
party identified on the U.S. Treasury Department's listing of
"Specially Designated Nationals and Blocked Persons";
Any party on the U.S. Commerce Department's Table of
Denial Orders;
Any party engaged in the design, development,
production, stockpiling or use of nuclear weapons; missiles;
chemical or biological weapons, agents, or precursors; or
conventional weapons (including any party identified by the
U.S. State Department or the U.S. Commerce Department's Entity
List.)
Any other party, if the circumstances indicate the
likelihood of further transfer to or for the benefit of any of
the above embargoed countries or parties.
Restricted Rights. The Software shall not be exported from the
United States contrary to the regulations of the United States
Government. The Software is provided with RESTRICTED RIGHTS. Use,
duplication, or disclosure by the Government is subject to restrictions
as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data
and Computer Software clause at DFARS 252.227-7018, and
12
in subparagraphs (a) through (d) of the Commercial Computer-Restricted
Rights clause at FAR 52.227-19, and in similar clauses in the NASA FAR
Supplement, when applicable.
Indemnification. UAR agrees to indemnify Autodesk against any
claim demand, action, proceeding, investigation, loss, liability, cost
and expense, including attorney's fees, suffered or incurred by
Autodesk and arising out of or related to any violation (whether
intentional or non-intentional) by UAR, its employees, agents,
representatives, dealers of this Section 19.
"Autodesk" "UAR"
AUTODESK, INC. FARO TECHNOLOGIES
By:/s/ Xxxx Xxxx By:/s/ Xxxxxxx X. Xxxxxx
---------------------------------------------------- -------------------------------------------------
Xxxx Xxxx Xxxxxxx X. Xxxxxx
---------------------------------------------------- -------------------------------------------------
Printed Name Printed Name
Manager of Autodesk Developer Channel Executive Vice President
---------------------------------------------------- -------------------------------------------------
Title Title
---------------------------------------------------- -------------------------------------------------
Date Date
13
EXHIBIT A
SOFTWARE AND UAR PRODUCT
1. THE SOFTWARE:
AutoCAD, AutoSurf, 3D Studio Max, Mechanical Desktop
NOTE: ALL COPIES OF SOFTWARE FOR SALES OUTSIDE OF THE U.S AND CANADA MUST
BE THE INTERNATIONAL HARDWARE LOCKED VERSIONS.
UAR PRODUCT:
AnthroCAM
AnthroCAM provides "all in one" 3D CAD and Inspection software
program. It is a solution which combines CAD files with prismatic
part measurement. It combines the ability of FaroArm 3D digitizer
to (1) reverse engineer parts into AutoCAD, using a seamless
driver directly into the AutoCAD database to create a CAD file and
design; and, once the parts have been manufactured, (2) inspect
(quality control), and the (3) compare the measurements against
the CAD design file. Whereas a manufacturer typically uses one
system to reverse engineer a manufactured part and then a
different system to inspect and measure the part, AnthroCAM
enables a manufacturer to use the same FaroArm 3D digitizer
software for both processes and provides the additional capability
to compare the information from the inspection process with the
original design information. Inspection software tends to use
menus of prismatic parts, whereas AnthroCAM, while it does offer
that facility, enables the user to pull in an AutoCAD with
AutoSurf drawing and use the drawing as a template for inspection.
By using AutoCAD with AutoSurf, it enables full curve and
surfacing capabilities. The AnthroCAM software solution is used in
conjunction with Faro Technologies Inc.'s line of protable 3D
Digitizers as well as other Coordinate Measuring Machines (CCM)
manufactured by independent CMM suppliers.
NOTE: Bundling of AutoCAD or AutoCAD modules with hardware requires prior
approval of European Channels Manager, European Market Group Manager and Vice
President, European Operations.
14
EXHIBIT B
AUTHORIZED SALES CHANNELS, MARKET AND TERRITORY
A. SALES CHANNELS
UAR IS AUTHORIZED TO DISTRIBUTE THE UAR PRODUCT DIRECTLY TO CUSTOMERS.
IN THE EVENT THE TERM "TERRITORY" AS DEFINED BELOW INCLUDES THE EUROPEAN
COMMUNITY, UAR IS AUTHORIZED TO DISTRIBUTE THE UAR PRODUCT THROUGH THE
AUTODESK AUTHORIZED DEALERS AND AUTODESK AUTHORIZED SYSTEMS CENTERS WHICH
ARE ACCREDITED IN THE EUROPEAN COMMUNITY TO SELL THE SOFTWARE IDENTIFIED IN
EXHIBIT A.
UAR MAY SELL THE SOFTWARE THROUGH THE FOLLOWING SALES CHANNEL PROVIDED EACH
RESELLER IN SAID SALES CHANNEL AGREES TO COMPLY WITH THE QUALITATIVE
OBLIGATIONS CONTAINED IN THIS AGREEMENT, INCLUDING THOSE RELATED TO AND PRE
AND POST SALE CUSTOMER SERVICE AND SUPPORT.
RESELLERS:
(IF APPLICABLE, PLEASE ATTACH A LIST OF RESELLERS TO THIS EXHIBIT B)
THE FOREGOING LIST OF RESELLERS MAY NOT BE MODIFIED WITHOUT AUTODESK's
WRITTEN CONSENT. FURTHERMORE, UPON AUTODESK's REQUEST, UAR AGREES TO CEASE
DISTRIBUTION OF THE UAR PRODUCT THROUGH ANY OR ALL OF THE FOREGOING
RESELLERS IF AUTODESK CONCLUDES, AT ITS SOLE REASONABLE DISCRETION, THAT
THE AFFECTED RESELLERS ARE NOT MEETING AUTODESK's QUALITATIVE STANDARDS.
B. MARKET
Departments within manufacturing facilities which are performing inspection
and quality control of manufactured parts.
C. TERRITORY-
Worldwide
*UAR's authorized Sales Channels market and territory may be modified from
time to time upon written agreement between the parties.
15
EXHIBIT B-1
FARO TECHNOLOGIES, INC.
NORTH AMERICAN DISTRIBUTOR LIST
(FOR GENERAL RELEASE)
Faro Technologies Great Lakes Metrology
000 Xxxxxxxxxx Xxxx Xxxxx 0000 Xxxxxxxx Xxxx Xx.
Xxxx Xxxx, XX 00000 Xxxxx Xxxx, XX 00000
contact: Xxxx Xxxxxx tel: 000-000-0000
tel: 000-000-0000 fax: 000-000-0000
fax: ###-##-####
Xx. Xxx XxXxxx
OEM Partners: Great Lakes Metrology
7435 North Lafayette
Xx. Xxx Xxxxxxxx, President Xxxxxxxx Xxxxxxx, XX 00000
Thermwood Corporation tel: 000-000-0000
X.X. Xxx 000 fax: 000-000-0000
Xxxx, Xxxxxxx 00000
tel: 000-000-0000 Mr. Xxxx Xxxx
fax: 000-000-0000 QC Inspection Services, Inc.
00000 Xxxxxxxx Xxx., Xxx. 00
Xx. Xxxx Xxxxxxx, Marketing Coordinator Xxxxxxxxxx, XX 00000
Zonic Corporation tel: 000-000-0000
00 Xxxxxxx Xxxxx fax: 000-000-0000
Xxxxxxx, XX 00000
tel: 000-000-0000 Xx. Xxx Xxxxxxxx
fax: 000-000-0000 The Tool & Gage House
000 Xxxxxx Xx.
Xxxxxxxxx, XX 00000
Distributors: tel: 000-000-0000
USA fax: 000-000-0000
Xx. Xxx XxXxxxxx
CADcad Technologies CANADA
000 Xxxxxxxx Xxx. Ste. A-2
Xxxxxx Xxxxxxx, XX 00000 Xx. Xxxx Xxxxxxx
tel: 000-000-0000 AD3R Technologies, Inc.
fax: 000-000-0000 0000 Xxxxxx-Xxxxx, X00
Xxxxxxxxx, Xxxxxx X0X 0X0
Xx. Xxx Xxxxxxxx, President Canada
Design and Software Int'l tel: 000-000-0000
000 Xxxxx Xx., Xxx. 0 fax: 000-000-0000
Xxxxxxxxx, XX 00000
tel: 000-000-0000
fax: 000-000-0000
MEXICO
Xx. Xxxxxxx Xxx, President
Direct Dimensions, Inc.
000 Xxxxxxx Xxxxxxx, Xxx. 000
Xxxxxxx Xxxx, XX 00000
tel: 000-000-0000
16
EXHIBIT B-1 (CONT.)
FARO TECHNOLOGIES, INC.
INTERNATIONAL DISTIBUTOR LIST
(FOR GENERAL RELEASE)
European Sales Offices: Territory: India
Xxxxxxx Xxxxxx
Faro France
000 xx Xxxxxx et Xxxxx Xxxxx
00000 Xx. Xxxx xx Xxxxx
Xxxxxx
tel: 000-00-00-00-00-00
fax: 000-00-00-00-00-00
Christian Baugut
Faro Duetschland
Xxxxxxx. 00
00000 Xxx
Xxxxxxx
tel: 011-49-7-31-14-10-130
fax: 011-49-7-31-14-10-129
Mr. Xxxxxxxx Avdiisky
Faro Moscow
Xxxxxxxxx Xxx. 00
Xxxxxx
Russian Federation
tel: 0000-000-0000
fax: 0000-000-0000
Territory: Russia
Distributors:
AFRICA
Xx. Xxx Xxxxx
CAD/CAM Systems
X.X. Xxx 000000
Xxxxxxx, 0000
Xxxxxxxxxxxx, Xxxxx Xxxxxx
tel: 00-00-000-0000
fax: 00-00-000-0000
Territory: South Africa
ASIA
Mr. P. Xxxxxx Xxxxxxx
EDS Technologies Pvt. Ltd.
IAT Building, XXX Xxxxx
00, Xxxxxx Xx.
Xxxxxxxxx, 000 000 Xxxxx
tel: 00-00-000-0000
fax: 00-00-000-0000
16
17
AUSTRALIA
Xx. Xxx Xxxxx
CAD Australia
000 Xxxx Xx.
Xxxx Xxx, Xxxxxxxx 0000
Xxxxxxxxx
tel: 000 00 0 0000 0000
fax: 000 00 0 0000 0000
Territory: Australia
EUROPE
Mr. Janne Xxxxxx
Xxxxxxx & Xxxxxx Energi AB
Department Inspect
Xxxxxxxxxxxxx 0
X-000 00 Xxxxxxxx, Xxxxxx
tel: 00-0-000-0000
fax: 00-0-000-0000
Territory: Sweden
Xx. Xxxxxx Xxxxx
Xxxxx Xxxxxxx
Xxxxxxx 0x
Xxxxxx 00000, Xxxxx
tel: 000-00-000-0000
fax: 00-00-000-0000
Territory: Italy
Mr. Xxxxx Steenacker
Xxxxx Metrology Systems
Xxx X. Xxxxxxx, 00
X-0000 Xxxxxxxxxxxxx, Xxxxxxx
tel: 00-00-000000
fax: 00-00-000000
Territories: Belgium, Netherlands &
Luxembourg
Xx. Xxxxx Xxxxx
Ultra Fast Machining, Ltd.
000-000 Xxxxxx Xx.
Xxxxxxxxx, Xxxxxxxxx, XX0 00X,
Xxxxxxx
tel: 00-000-000-0000
fax: 00-000-000-0000
Territory: UK
EXHIBIT B-1 (CONT.)
FARO TECHNOLOGIES, INC.
INTERNATIONAL DISTIBUTOR LIST (CONT.)
17
18
(FOR GENERAL RELEASE)
PACIFIC RIM
Xx. X.X. Xxxx
BBN Tektrade
0000-00 Xxxxxx-Xxxx Xxxxxx-xx
Xxxxx, Xxxxx 137-070
tel: 00-0-000-0000
fax: 00-0-000-0000
Xx. Xxxxxxx Xxxxxx
XXX
0 Xxxxxx Xxxxx-xxxxxxxxxx
Xxxxx, Xxxxx, Xxxxx
tel: 00-000-000000
fax: 00-000-000000
Territory: Japan
Mr. Gotaro Gamo
Sumisho Electronics Co. Ltd.
CAE Division #1, Sales Dept. #2
Tsuruya Xxxx.
0-00 Xxxxxxxxxxx-xxx, Xxxxxxxx-xx
Xxxxx, 000 Xxxxx
tel: 00-00-0000-0000
fax: 00-00-0000-0000
Xx. Xxxxxxxxx Xxxxxx
Trilux Corporation/Anzen
Xxxxx-Xxxxxxxxxxxxxxxx 0-Xxxxxx
Xxxx-xx Xxxxx 000
Xxxxx
tel: 00-00-00-00-000
fax: 00-00-00-00-000
Territory: Japan
SOUTH AMERICA
Xx. Xxxxxxxxx Xxxxxxxx
Grupo J
TBA
TBA
Territory: Brazil
18
19
EXHIBIT C
DISCOUNT RATES
THE DISCOUNTS INDICATED BELOW SHALL BE DEDUCTED FROM THE APPLICABLE PUBLISHED
AUTODESK SUGGESTED RETAIL PRICE FOR THE RELEVANT SOFTWARE PRODUCT IN EFFECT AT
THE TIME AUTODESK ACCEPTS UAR'S ORDER, AND IS APPLICABLE ONLY FOR ORDERS
SUBMITTED DIRECTLY TO AUTODESK. ATTACHED FOR YOUR INFORMATION IS THE AUTODESK
PRICE LIST APPLICABLE AT THE TIME OF CONTRACT SIGNATURE. AUTODESK RESERVES THE
RIGHT TO CHANGE THE PUBLISHED SUGGESTED RETAIL PRICE FOR ITS SOFTWARE WITHOUT
NOTICE TO UAR.
1. DISCOUNT. Based on UAR's Quarterly Purchase Commitment the price to UAR for
each copy of the Software shall be the then-current suggested retail price
of the Software for the appropriate geographic region within the Territory,
less the discount per the schedule below:
Quarterly UAR Discount Rate
Purchase
Commitment
---------------------------------------------
$0 - $25,000 35%
---------------------------------------------
$25,001 - 40%
---------------------------------------------
$100,001 - 42%
---------------------------------------------
$250,000 + 44%
---------------------------------------------
UAR'S DISCOUNT RATE SHALL BE ADJUSTED QUARTERLY BASED ON UAR'S
PURCHASES DURING THE PRECEDING FISCAL QUARTER.* SHOULD UAR FAIL TO
MEET THE MINIMUM QUARTERLY PURCHASE COMMITMENT FOR A SPECIFIED UAR
DISCOUNT RATE THE FOLLOWING QUARTER, UAR'S DISCOUNT RATE WILL BE
LOWERED ONE DISCOUNT LEVEL.
* Autodesk's fiscal quarters are as follows:
February- April
May- July
August- October
November- January
INITIAL PURCHASE. Upon execution of this Agreement, UAR shall purchase zero (0)
Software copies ($5,000 minimum) from Autodesk. Such purchase shall
establish UAR's Discount Rate for the first fiscal quarter of this
Agreement.
19
