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EXHIBIT 10.25
PURCHASE AND DISTRIBUTION SUBCONTRACT AGREEMENT
This Purchase and Distribution Subcontract Agreement ("Agreement") is
made as of 23 June, 1999 ("Effective Date"), between Intellisys Technology
Corporation ("ITC or Sales Agent") having a place of business at 00000 Xxx
Xxxxxxx Xxxxxxx, Xxxxx #000, Xxxxxxx, Xx 00000 and Xxxxxx.xxx Corporation
("Reseller") having a place of business at 0000 Xxxx Xxxxxxx Xxx., Xxxxxxxxx,
XX 00000 (each individually, a "Party," and collectively "Parties").
WHEREAS, ITC and Reseller wish to team together exclusively for the
Modification (# 0001 or contract NO. TIRNO-98-Z-00001) to the ITC Blanket
Purchase Agreement ("BPA") for the Microsoft Enterprise proposal and resulting
Agreement (Multiple Software Acquisition Project) for the Internal Revenue
Service ("Agency"), with ITC acting as the (Sales Agent) and Reseller acting as
a Reseller; and
WHEREAS, Xxxxxx.xxx holds a certain GSA Schedule contract(s) GS-35F-0287J
("Schedules") that ITC may incorporate into the Proposal and resulting
Agreement for the Internal Revenue Service modification dated May 14, 1999.
NOW, THEREFORE, the Parties agree as follows:
SUBCONTRACT
1. DEFINITIONS
1.1 "CONFIDENTIAL AND PROPRIETARY INFORMATION" means: (1) any written,
technical, financial, commercial, marketing, or other information that the
disclosing Party considers to be Confidential and Proprietary Information and
marks as such; and (2) any orally disclosed technical, financial, commercial,
marketing, or other information consider by the disclosing Party to be
confidential and proprietary information and committed to writing within thirty
(30) days of disclosure and identified as Confidential and Proprietary
Information; and (3) copies of such information described in (1) and (2) above
that are authorized herein. Information shall not be deemed to be Confidential
and Proprietary Information if the information: (1) is contained in a printed
publication generally available to the public without restriction; (2) becomes
publicly known without breach of this Agreement or through no wrongful act of
the receiving Party; (3) is approved in writing for disclosure without
restriction by a duly authorized officer of the disclosing Party; (4) was in
the receiving Party's possession before receipt from the disclosing Party; (5)
is rightfully received by the receiving Party from a third Party without a duty
of protection; or (6) is independently developed by the receiving Party without
the use of the disclosing Party's Confidential and Proprietary Information.
1.2 "ENTERPRISE LOT PRODUCTS" means Products (defined below) that are
licensed on the basis of a one-time payment that grants the licensee the right
to have a specified number of end users.
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1.3. "LICENSE AGREEMENT" means the license agreement and any subsequent
version thereof released and provided to the Agency by Reseller and previously
approved as to form by Microsoft, which identifies special terms and
conditions applicable to each Product.
1.4. "NON-ENTERPRISE ADDITIONAL PRODUCTS" means those Products that are
licensed to individual end users.
1.5. "PRODUCTS" means those Microsoft products that the Agency purchases
from Reseller through ITC and ITC's role as a Sales Agent Reseller.
1.6. "SOFTWARE LICENSES" means a right to use or access a copy of each
Product identified in Attachment B and C.
2. APPOINTMENT OF RESELLER
2.1. EXCLUSIVE APPOINTMENT. ITC appoints Reseller as ITC's exclusive
Sales Agent of Microsoft Products for ITC's BPA with the Agency. Absent default
or material breach by Xxxxxx.xxx or termination if the Reseller's agreement
with Microsoft is terminated, ITC shall not enter into a similar agreement with
any third Party to supply Microsoft Products under the ITC BPA. Reseller agrees
that it will not enter into a similar agreement to supply Microsoft Products
for another third party under such third party blanket purchase order agreement
with the Agency. Except as provided herein, nothing in this Agreement shall be
construed as preventing either Party from engaging in any other activity in the
ordinary course of business.
2.2. ESSENTIAL ELEMENT. Both Parties acknowledge that this Agreement and
its attachments are essential to any BPA that ITC enters into with the IRS, for
the Multiple Software Acquisition Project. Except as is specifically provided
herein related to ITC's right to collect any outstanding payment following
termination of this Agreement, ITC's rights to distribute Products to the
Agency under the BPA, and to effect payment from the Agency, are conditional
upon this Agreement being in full force and effect.
2.3. PARTIES' RESPONSIBILITIES. In addition to the other terms and
conditions of this Agreement, the Parties have set forth their responsibilities
with respect to the provision of Products to the Agency in Attachment A.
Reseller agrees to perform the obligations set forth under the heading
"Reseller Responsibilities" and ITC agrees to perform the obligations set forth
under the heading "ITC Responsibilities."
3. PRODUCTS AND PRICING
3.1. ENTERPRISE LOT PRODUCTS. The prices listed on Attachment B are from
Xxxxxx.xxx to be sold through ITC as the Sales Agent to the IRS as Enterprise
Lot Products only. ITC shall identify the prices for Enterprise Lot Products in
the BPA as a one-time purchase price for a fixed number of seats and not as
unit prices for individual products. To the extent permitted in the applicable
GSA schedule, the prices of Enterprise Lot Products are not refundable and
cannot be prorated.
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3.2. NON-ENTERPRISE ADDITIONAL PRODUCTS. Attachment C lists the prices
from Xxxxxx.xxx to ITC as the Sales Agent for Software Licenses for
Non-Enterprise Additional Products to be sold to the Agency pursuant to ITC's
BPA. The prices listed are good for the term of this Agreement but only as long
as these products are commercially available. Software Licenses for
Non-Enterprise Additional Products that are no longer commercially available
are not authorized for distribution under this Agreement, unless specifically
authorized by Reseller. Prices for newer versions of Software Licenses for
Non-Enterprise Additional Products will be negotiated between the Parties and
added to Attachment C as amendments to this Agreement. ITC will be responsible
for negotiating corresponding price increases as modifications to the BPA with
the Agency, and ensuring that the Agency purchases all new Non-Enterprise
Additional Products at the most current product version and corresponding
price, as stated in the BPA, as modified. New Software Licenses for
Non-Enterprise Additional Products may not be purchased at the obsolete version
and corresponding price even if Microsoft's "Upgrade Advantage" is
simultaneously purchased with the new license. If Microsoft offers any Product
to the general public at no charge, Reseller shall offer such Product to ITC
for distribution to the Agency at no charge under the same terms, provided that
the Agency may have to pay for any media requirements.
4. LICENSES
4.2. ENTERPRISE LOT PRODUCTS. Provided Reseller has received payment for
the Enterprise Lot Product in accordance with the Special Payment Terms in
Section 5.3 below, Reseller is authorized, on behalf of the Agency, to provide
the following:
4.1.1. DURING THE TERM. During the term of this Agreement, the Agency
shall have the right to install on, use, or access from, one
copy, in English, of the latest version that is or becomes
commercially available during the term of this Agreement of the
Software Licenses identified in Attachment B. The Agency is
entitled at any time during the term of the Agreement to install
on, use, or access form a License, the total quantity of Software
Licenses for all Agreement Years provided payment has been
received pursuant to the Special Payment Terms in Section 5.3
below, through the current Agreement Year, except in the event of
early termination or non-exercise of the Option Years. The rights
of the Agency to install, access or use the Products pursuant to
this Section 4.1.1 shall be subject, in all cases, to the use
rights contained in the most current version of the License
Agreement. Further, the Agency is entitled to 130,000 BackOffice
Client Access Software Licenses at any time during the term of
the Agreement, provided payment has been received pursuant with
the Special Payment Terms.
4.1.2. UPON EXPIRATION. In the event that this Agreement naturally
expires at the end of Option Year Four, the Agency is entitled to
receive a fully-paid up, irrevocable and perpetual license for
the Enterprise Lot Products, in the numbers identified in
Attachment B, for the latest version of each Product that is or
becomes commercially available during the term of this
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Agreement. Instead of the individual Client Access Software Licenses
identified in Attachment B, the Agency is entitled to 130,000 BackOffice
Client Access Software Licenses for the latest version that is or
becomes commercially available during the term of the Agreement.
4.1.3. EARLY TERMINATION OR NON-EXERCISE OF THE OPTIONS. Reseller may terminate
this Agreement for cause upon thirty (30) days prior written notice
advising the defaulting Party of the nature of the default, provided
that such default is not thereafter cured within such thirty (30) day
period. In the event of early termination prior to the natural
expiration of the Agreement, or in the event of non-exercise of the
Option Years One, Two, Three or Four, the Agency is entitled to the
latest version of the Software Licenses for the Enterprise Lot Products
for only the quantity and the version of the specific products deployed
and installed by the termination date, up to the maximum quantities
identified on the Termination Schedule (Attachment D), for the Agreement
Year during which termination has occurred, regardless of remaining
benefit available under Upgrade Advantage, where payment has been
received. At the end of Option Year Four, the Agency is entitled to the
quantities identified on the Termination Schedule (Attachment D), up to
the quantities identified for Option Year Four regardless of whether the
total quantities are installed and/or deployed. The quantities for each
Agreement Year in the Termination Schedule (Attachment D), are not
additive to the previous year and reflect the cumulative quantities for
that Agreement Year. If such right to receive upgrades is terminated
during the term, the upgrade Advantage payment shall not be prorated or
refunded. A termination date will be specifically identified to Reseller
in the formal termination notice.
In the event that the second Enterprise payment (i.e., the payment for
Option Year One) is not received in accordance with Section 5.3, the
Agency is entitled to the latest version of the Software License for
Enterprise Lot Products for only the quantity and the version of the
specific Products deployed and installed by the termination date, up to
the maximum quantities identified on the Termination Schedule
(Attachment D) for the Base Year regardless of the remaining benefit
available under Upgrade Advantage where payment has been received for
the Base Period in accordance with Section 5.3.
4.2 NON-ENTERPRISE ADDITIONAL PRODUCTS
4.2.1. DURING THE TERM. During the term of this Agreement, provided Reseller
has received payment, the Agency shall have the right to install on,
use, or access from, one copy, in English, of the Software Licenses for
the Non-Enterprise Additional Products purchase from Attachment C.
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4.2.2. UPON EXPIRATION OR TERMINATION
(a) If this Agreement expires at the end of Option Year Four, the
Agency is entitled to receive a fully-paid up, irrevocable and perpetual
license for the Non-Enterprise Additional Products in the numbers for
which Reseller has received payment during the term of this Agreement.
(b) If this Agreement is terminated, or options are not exercised,
at any time prior to expiration of Option Year Four, the Agency is
entitled to receive a fully-paid up, irrevocable and perpetual license to
use for the Non-Enterprise Additional Products, in the numbers for which
Reseller has received payment during the term of this Agreement. The terms
of Section 4.1.3 above shall apply in the event of early
termination/non-exercise of options.
4.3. NON-ENTERPRISE ADDITIONAL PRODUCTS. Microsoft's Upgrade Advantage
for Non-Enterprise Additional Products may only be purchased by the Agency where
the full term of the Upgrade Advantage period will fall within the term of this
Agreement. ITC shall ensure that an adequate period of performance is available
under the BPA to support full term of the Upgrade Advantage period. All Upgrade
Advantages will terminate upon expiration or termination of this Agreement.
Reseller will not be obligated to provide any remaining benefits under Upgrade
Advantage directly to the Agency.
5. ORDERING, TRUE UP REPORTS AND PAYMENT TERMS.
5.1. ENTERPRISE LOT PRODUCT ORDERING. Upon receipt of the IRS purchase
orders at the renewal dates for the option years listed in 7.3, ITC
agrees to issue a written invoice to the IRS on behalf of the
Reseller. ITC will concurrently send a copy of the IRS invoice to the
reseller. On the invoice ITC agrees to include the following
Reseller remittance address for wire payment from the IRS:
Mellon Bank
Pittsburgh, PA
ABA #043 000 261
Credit: Xxxxxxx Xxxxx Account #101-1730
At the same time Xxxxxx.xxx will send an invoice to ITC for the full
dollar amount listed on the IRS purchase order. ITC in turn will send
an invoice to Xxxxxx.xxx (Attn: Accounts Payable) for ITC's
commission as the Sales Agent. Xxxxxx.xxx agrees to wire ITC's Sales
Agent commission under payment terms equal to those with the IRS,
with the exception of the payment timeframe.
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If Xxxxxx.xxx does not wire ITC's Sales Agent commission to ITC within
three working days of receiving payment from the IRS then ITC shall
have the right to immediately terminate this agreement. If the IRS
does not submit a purchase order to ITC within 15 days of the
designated renewal dates listed in 7.3 and Microsoft terminates their
agreement with Xxxxxx.xxx then Xxxxxx.xxx shall have the right to
immediately terminate this agreement, unless ITC informs the reseller
in writing that the option will be exercised by IRS upon receipt of
funds, in accordance with para. 7.3.
If ITC is in receipt of a timely order from the IRS but fails to submit an
invoice to the IRS with Xxxxxx.xxx remittance address within five business
days of its execution of this Agreement or within the timeframes set forth
in para. 5.3, then Reseller shall have the right to immediately terminate
this Agreement and initiate collections activities immediately.
5.2 NON-ENTERPRISE ADDITIONAL PRODUCT ORDERING. Upon receipt of a written
IRS purchase/delivery order for Non-Enterprise Additional Products,
ITC agrees to issue a written invoice to the IRS on behalf of the
Reseller. On the invoice ITC agrees to include the following Reseller
remittance address for wire payment from the IRS:
Mellon Bank
Pittsburgh, PA
ABA # 043 000 261
Credit: Xxxxxxx Xxxxx Account #101-1730
At the same time ITC will fax a copy of the invoice to Xxxxxx.xxx,
with a copy of the IRS order attached, and Xxxxxx.xxx will send a
purchase order to ITC for the full dollar amount listed on the IRS
purchase order. ITC in turn will send an invoice to Xxxxxx.xxx (Attn:
Accounts Payable) for ITC commission as the Sales Agent. Xxxxxx.xxx
agrees to pay ITC's Sales Agent commission according to the Special
Payment Terms listed in 5.3.
When Xxxxxx.xxx receives a copy of the IRS purchase order and
applicable invoice from ITC, Xxxxxx.xxx will process the order and
issue the IRS an electronic license for the Microsoft product.
5.3. SPECIAL PAYMENT TERMS. For non-credit card orders, ITC will submit IRS
orders to the Reseller for items under this BPA. For credit card orders, the
Agency will order from the Reseller directly via the Reseller web-site.
Enterprise Lot Products will not be ordered via credit card. For credit card
orders, Reseller shall collect payment from the Agency via the credit card
company, and is responsible for forwarding to ITC the ITC commission for the
order on the 15th day of the following month. The Reseller shall mail checks to
ITC at the following address. Each check shall provide evidence of
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the credit card order transaction value and date, and items ordered, with unit
prices clearly shown.
ITC Remittance Address:
IntelliSys Technology Corporation
Attn: Accounts Receivable
00000 Xxx Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
For all Xxxxxx.xxx products ordered by the Agency under this BPA, whether
ordered directly by Agency via credit card or ordered through ITC, the Reseller
is responsible for reporting its GSA schedule product sales to GSA. For
non-credit card orders, ITC will inform the Reseller of the prices at which
items were sold to the Agency by attaching the Agency's delivery order to
Reseller's copy of the ITC invoice to IRS. Reseller is responsible for paying
GSA its 1% industrial funding fee on all sales of Reseller's GSA schedule items
under this BPA, in accordance with the terms of Reseller's GSA schedule
contract.
The prices below are the fixed annual prices at which the Agency will
purchase Enterprise Lot Products from the Reseller via ITC as the Sales Agent
(These prices include the industrial funding fee that Xxxxxx.xxx will pay to
GSA).
CLIN Agreement Year Desktops and Price per Desktop Payment
--------------------------------------------------------------------------------
0001 Base Period Desktops plus other products $ 8,754,000
0002 Option Yr. 1 Desktops plus other products $30,048,508
Payment 1: May 1, 2000 $15,024,254
Payment 2: January 15, 2001 $15,024,254
0003 Option Yr. 2 (Oct. 1, 2001) Desktops plus other products $27,372,935
0004 Option Yr. 3 (Oct. 1, 2002) Desktops plus other products $29,668,524
0005 Option Yr. 4 (Oct. 1, 2003) Desktops plus other products $24,616,626
Total Base Period and Options 1-3 (51.5 Months):
$95,843,967
Total Base Period and Options 1-4 (63.5 Months):
$120,460,593
Upon ITC's receipt of a signed and fully funded delivery order from the Agency
to exercise the next due Option Year, ITC shall exercise the Reseller's Option
Year and issue an invoice to the IRS on behalf of the Reseller with the
Reseller's remit to address
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no later than five (5) business days after receipt of the Agency's order or the
fifteenth business day after the renewal date of the option year whichever is
later.
6. CONFIDENTIAL INFORMATION
6.1 LIMITATION ON USE. A Party that receives another Party's Confidential
and Proprietary Information agrees to only use such information for purposes of
this Agreement. If, in order to utilize the Confidential and Proprietary
Information as set forth in this Agreement, it becomes necessary for the
receiving Party to copy, in whole or in part, any of the Confidential and
Proprietary Information, the receiving Party may do so but for no other
purpose(s).
6.2 LIMITATION ON DISCLOSURE. The receiving Party agrees that for a
period of two years from the date of receipt or expiration or termination of
this Agreement which ever is later, the receiving Party shall not disclose the
Confidential and Proprietary Information to a third Party, without the prior
written consent of the disclosing Party; provided, however, that ITC can
provide Reseller's Confidential and Proprietary Information to the Agency as
needed with an appropriate legend. Receiving Party shall use the same degree of
care to avoid publication or dissemination of the Confidential and Proprietary
Information as the receiving Party employs with respect to its own information
of similar importance, but not less than reasonable care, and shall only
disclose the Confidential and Proprietary Information to those employees and
consultants with a "need to know." Receiving Party shall take appropriate
action by way of instructions or written agreements with its employees
receiving Confidential and Proprietary Information to advise such employees of
all obligations under this Agreement.
6.3 EQUITABLE RELIEF. Both Parties as disclosing Parties represent that
unauthorized disclosure of Confidential and Proprietary Information would cause
irreparable injury to the interests of the disclosing Party. If a receiving
Party fails to meet its obligations to protect the Confidential and Proprietary
Information, the disclosing Party may seek interim or permanent injunctive
relief.
6.4 DUTY UPON EXPIRATION OR TERMINATION OF AGREEMENT. Upon expiration or
termination of this Agreement, the receiving Party shall return to the
disclosing Party the disclosing Party's Confidential and Proprietary
Information, including copies thereof. With the prior written consent of the
disclosing Party, the receiving Party may elect not to return the Confidential
and Proprietary Information, including copies thereof, if the receiving Party
shall destroy same and provide the disclosing Party with a written
certification of an officer of the receiving Party attesting to the destruction.
7. TERM OF AGREEMENT AND APPROPRIATION OF FUNDS
7.1 TERM OF AGREEMENT. This Agreement shall be effective as of the
Effective Date and shall terminate on April 30, 2000, unless otherwise
terminated or extended as provided below. The maximum potential term of this
Agreement, if all Option Years are exercised, is one (1) Base Period of 10.5
months, with three (3) one (1)
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year options to renew, and one seventeen (17) month option to renew ("Option
Years") for a total of sixty three and a half months unless the Agency
terminates earlier in writing the portion of ITC's BPA, relating to the sale of
Products identified herein. In no event shall the total of the Base Year and
all Option Years exceed sixty-three and a half consecutive months, unless
modified in writing by mutual agreement of the Parties.
7.3. EXTENSION PROCEDURES. As long as ITC is not then in breach of any
material provision of this Agreement, ITC may extend the term of this Agreement
beyond the Base Period, for up to four Option Periods, three option periods of
12 months each duration, and one option period of 17 months duration, beginning
on the first day following the expiration date of the Base Period. In order to
exercise the option, ITC must give Reseller preliminary notice, in writing, not
less than sixty (60) days prior to the expiration date, of its intention to do
so. Extension of the term of this Agreement will obligate ITC to pay the next
required annual installment payment for Enterprise Lot Products, as described
in Section 5.3 above, unless superseded as set forth below. If the Agency does
not extend ITC's BPA, ITC must notify Reseller no later than three (3) business
days after ITC's receipt of written notice from the Agency that Agency will not
exercise the next option. If no written notice is received by ITC but Agency
fails to timely exercise the Option and orally informs ITC that it will not
exercise the option, ITC shall inform the Reseller in writing no later than
three (3) business days after receipt of oral notification from the Agency.
Such notice shall supersede ITC's preliminary extension notice, and this
Agreement shall expire at midnight of the last day of the current Agreement
Year, unless terminated earlier as provided herein. The "termination date" as
referred to in paragraph 4.1.3 of this agreement, will be the last day of the
current Agreement Year, whether or not this is specifically stated in ITC's
Option Notification letter to the Reseller. If Agency does not timely exercise
the Option due to lack of sufficient funds, but informs ITC of its intention to
exercise the Option upon receipt of adequate funding, ITC shall provide the
information to the Reseller in writing, no later than three (3) business days
after receipt of the information from the Agency. In the event this situation
occurs, the Agreement will not be deemed to be terminated. If Reseller does not
receive notification from ITC of the Agency's intention not to extend or the
Agency's intent to extend upon receipt of adequate funding, as provided above,
the option extension will be deemed to be in effect and ITC must provide an
invoice to the IRS with the Xxxxxx.xxx remittance information for the annual
installment within fifteen (15) business days after the first day of the first
month of the Option Year, at which time Reseller will send a purchase order to
ITC for such installment.
The period covered by this agreement is as follows:
Base Period (10.5 months): June 15, 1999 -- April 30, 2000
Option Year One (17 months): May 1, 2000 -- September 30, 2001
Option Year Two (12 months): October 1, 2001 -- September 30, 2002
Option Year Three (12 months): October 1, 2002 -- September 30, 2003
Option Year Four (12 months): October 1, 2003 -- September 30, 2004
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7.4. APPROPRIATION OF FUNDS. If any of the Agency's performance and
obligation to pay Xxxxxx.xxx for Products that Reseller sells through ITC under
this Agreement is contingent upon availability of funding, ITC agrees that it
shall not reproduce any Products unless sufficient funds for such Products have
been duly obligated by the Agency in the form of a written, funded and signed
delivery order to ITC. ITC agrees that, due to the uncertainty of future
appropriations, any payments for Products ordered under this Agreement shall be
made in full at the time as designated within this Agreement, with no option to
defer all or part of such payment.
8. TERMINATION.
8.1. TERMINATION FOR CAUSE WITH NOTICE. Either Party may terminate this
Agreement for cause upon thirty (30) days prior written notice advising the
defaulting Party of the nature of the default, provided that such default is not
thereafter cured within such thirty (30) day period. The Party providing the
notice shall specifically identify a termination date in the notice.
8.2. TERMINATION FOR INSOLVENCY. Either Party may terminate this
Agreement immediately if Reseller or ITC files a petition for bankruptcy, or is
adjudged bankrupt, or makes an assignment for the benefit of creditors, or files
a petition, or otherwise seeks relief under or pursuant to any bankruptcy,
insolvency or reorganization statute or proceeding, in accordance with the laws
of the applicable jurisdiction, or if it discontinues its business, or if a
custodian, receiver, or trustee were appointed for it, or a substantial portion
of its business or assets.
8.3. IMMEDIATE TERMINATION FOR CAUSE. Either Party shall also have the
right to terminate this Agreement, effective upon the giving of notice to the
other Party and after providing a reasonable opportunity to cure, if the other
Party (i) willfully violates or knowingly permits others to violate Microsoft
Corporation's intellectual property rights or (ii) assigns or transfers, either
voluntarily or by operation of law, any or all of its rights and obligations
under this Agreement without having obtained the prior consent of the other
Party. If the Agency engages in (i), above, then ITC shall use its best efforts
to have the Agency promptly cease such conduct.
8.4. TERMINATION IF RESELLER'S AGREEMENT WITH MICROSOFT IS TERMINATED.
Reseller shall have the right to terminate this Agreement immediately if
Reseller's agreement with Microsoft, pursuant to which Reseller has the right to
provide the Agency with Products, is terminated, provided that: (1) the
termination is not due, either in whole or in part, to Reseller's acts,
omissions, or to other Reseller conduct; and (ii) Reseller has used its best
efforts to preclude such termination.
8.5. TERMINATION FOR CONVENIENCE. ITC may terminate this Agreement for
its convenience by providing written notice to Reseller. ITC's sole liability to
Reseller in the event of Termination for Convenience is payment for reasonable
and actual costs incurred to the date of termination plus a reasonable profit
thereon. Consequential damages, anticipatory profits, and loss of business
opportunity are expressly waived by Reseller and
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excluded in any termination claim. Reseller's termination claim must be
submitted within thirty (30) days of the date of termination.
8.6. EFFECT OF TERMINATION.
8.6.1. RIGHT TO PAYMENT OF MONEY. Rights to payment of money which have
accrued prior to termination of the Agreement or for product distributed after
termination as provided in the following sentence shall survive termination.
Termination of this Agreement shall automatically terminate any amendments
hereto, unless otherwise agreed by the Parties.
8.6.2. ITC NOTICE OBLIGATION. Immediately following the termination of
this Agreement: (i) ITC shall inform the Agency in writing that ITC may no
longer provide Products under the Agreement, and if ITC fails to provide such
written notice, Reseller shall have the right, but not the obligation, to send
such notice, (ii) ITC shall file its next due purchase order with Reseller,
(iii) ITC shall enter into an escrow agreement with Reseller and a bona fide
financial institution selected by Reseller which shall provide for all remaining
payments due to Reseller, due to be received by ITC from the Agency, pursuant to
the terms of this Agreement, (iv) ITC shall assign all of its rights to the
proceeds from the BPA to the bona fide financial institution selected by
Reseller.
9. MISCELLANEOUS
9.1. NO ASSIGNMENT. Neither Party shall assign or otherwise transfer
this Agreement or its rights or obligations hereunder, voluntarily,
involuntarily, or by operation of law; provided, however, that an initial
public offering or change of name by ITC shall not constitute an impermissable
assignment. Any purported assignment or transfer made in contravention of this
Section 9.1 shall be null and void from its inception. This Agreement shall be
binding upon, shall inure to the benefit of and shall be enforceable by the
respective successors and permitted assigns of the Parties hereto.
9.2 ENTIRE AGREEMENT. This Agreement and the attachments referenced
herein contains the entire agreement between the Parties as to the subject
matter hereof, and all previous understandings, agreements, and communications
before the date hereof, whether express or implied, oral or written, relating to
the subject matter of this Agreement, are fully and completely extinguished and
superseded by this Agreement. The terms and conditions of this Agreement and the
attachments referenced herein shall control over any provisions in any ITC
Purchase Order. This Agreement, including the attachments referenced herein,
shall not be altered, amended, modified, or otherwise changed except by a
writing duly signed by all the Parties hereto.
9.2 LIMITATION ON LIABILITY. To the extent allowed by applicable law,
in no event shall either Party be liable for any special, consequential,
incidental, indirect, or punitive damages of any kind, or any lost profits,
lost revenues, or lost business arising from or relating to this Agreement
(whether based on the legal theory of contract or tort
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or any other theory), even if a Party has been advised of the possibility of
such damages, however caused.
9.3 WAIVER OF BREACH. Except as otherwise provided in this Agreement, any
failure of any of the Parties to comply with any obligation, covenant, agreement
or condition herein may be waived by the Party entitled to the benefits thereof
only by a written instrument signed by the Party granting such waiver, but such
waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure.
9.4 NOTICES. All notices and other communications provided for hereunder
shall be in writing and delivered by hand or sent by first class mail or sent by
facsimile (with such facsimile to be confirmed promptly in writing sent by first
class mail), sent as follows:
(i) If to ITC, addressed to:
Xxxxxx X. Xxxxxxx
Executive Vice President, Chief Financial Officer
IntelliSys Technology Corporation
00000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
(i) If to Reseller, addressed to:
Attn: Xxxxxxx Xxxxx
Vice President of Enterprise and Government Sales
Xxxxxx.xxx Corporation
0000 X. Xxxxxxx Xxx.
Xxxxxxxxx, XX 00000
or to such other address or addresses or facsimile number or numbers as any of
the Parties may most recently have designated in writing to the other Parties by
such notice. All such communications shall be deemed to have been given or made
when so delivered by hand or sent by facsimile, or three business days after
being so mailed.
9.5. CUMULATIVE REMEDIES. The rights and remedies provided by this
Agreement are cumulative and the use of any one right or remedy by any Party
shall not preclude or waive its right to seek any or all other remedies. Said
rights and remedies are given in addition to any other rights the Parties may
have by law, statute, ordinance or otherwise.
9.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, applicable to contracts
executed and to be performed entirely in such state. Each Party irrevocably and
unconditionally submits, for to the exclusive jurisdiction of any state or
federal court sitting in the County
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13
of Santa Xxxxx in any suit, action or proceeding arising out of or relating to
this Agreement and for recognition or enforcement of any judgment relating
thereto. Each Party irrevocably and unconditionally (i) waives any objection
which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding and (ii) accepts, with regard to any such action or
proceeding, the personal jurisdiction of such courts and waives any defense or
objection that it might otherwise have to such courts' exercise of personal
jurisdiction with respect to it. Any and all service of process shall be
effective against any Party if given by registered or certified mail, return
receipt requested, or by any other means of mail which requires a signed
receipt, postage prepaid.
9.7 SEVERABILITY. In the event that any of the provisions of this
Agreement are held to be unenforceable or invalid by any court of competent
jurisdiction, the validity and enforceability of the remaining provisions will
not be affected thereby.
9.8 HEADINGS. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
9.9 COUNTERPARTS. This agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which constitute one and the same
agreement. Execution of this Agreement by facsimile signature shall be
effective.
This Agreement is not legally binding until executed by both Parties. IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly
executed as of the date first above written.
FOR INTELLISYS TECHNOLOGY CORPORATION: FOR XXXXXX.XXX:
/s/ XXXXXX X. XXXXXXX /s/ XXXXXXX X. FARGO
------------------------------------- -----------------------------------
SIGNATURE: SIGNATURE:
XXXXXX X. XXXXXXX Xxxxxx X. Fargo
------------------------------------- -----------------------------------
NAME: NAME:
EXEC. VP, CFO VP, Enterprise & Govt Sales
------------------------------------- -----------------------------------
TITLE: TITLE:
6/23/99 6/23/99
------------------------------------- -----------------------------------
DATE: DATE:
ATTACHMENTS:
Attachment A: Statement of Work
Attachment B: Enterprise Lot Product and ITC's Sales Agent Table
Attachment C: Non-Enterprise Additional Products and ITC's Sales Agent Table
Attachment D: Termination Schedule
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14
ATTACHMENT A
STATEMENT OF WORK
RESELLER RESPONSIBILITIES:
Xxxxxx.xxx authorizes the incorporation of the Xxxxxx.xxx items included in
Attachment B and Attachment C into the current BPA and ITC has with the IRS.
Xxxxxx.xxx also agrees to offer additions to the non-enterprise products of new
releases and upgrades from Microsoft.
1. Xxxxxx.xxx will be responsible for installing Enterprise Download Manager
servers throughout the IRS for the electronic deployment of Microsoft
updates and upgrades. These servers will be set up free of charge (IRS is
responsible for supplying the hardware).
2. Xxxxxx.xxx will be responsible for downloading updates and upgrades of the
Microsoft products listed on Attachments B and C to the various server
locations within the IRS. New updates and upgrades will be put up on the
download server within 24 hours of receiving the master copy of media from
Microsoft.
3. Xxxxxx.xxx agrees to record the data corresponding to all downloading by
the IRS, so that the Parties can track the IRS's actual software usage.
4. Xxxxxx.xxx agrees to set up ITC/Xxxxxx.xxx co-branded web pages to
merchandise the non-enterprise Microsoft Contract Line Items (CLINS) to the
IRS. This co-branded store will be linked off of the ITC web site for the
life of this Agreement.
5. Xxxxxx.xxx is responsible for receiving and handling all web based credit
card transactions for the Non-Enterprise Additional Products that the IRS
purchases under this Agreement.
6. ITC will be paid a margin for every sale of Microsoft enterprise or
non-enterprise product according to the terms of the Agreement. The margin
will be figured by the equation:
Price to IRS times ITC commission percentage = ITC margin
7. Reseller will be responsible for setting up and maintaining a news server
for the IRS to keep them continually informed about new releases, updates
and Microsoft licensing issues.
8. Xxxxxx.xxx will be responsible for, and bear the costs of, any physical
shipments of Microsoft media that is required under the terms of the IRS
agreement.
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9. Xxxxxx.xxx is responsible for reporting all of its GSA schedule sales under
this agreement to GSA and paying GSA the Xxxxxx.xxx 1% Industrial Funding Fee.
10. Xxxxxx.xxx shall comply with the terms and conditions of its GSA schedule
contract in performing this agreement. In the event of a conflict between the
terms of the GSA schedule contract, the BPA, and this agreement, Xxxxxx.xxx is
responsible for promptly bringing such conflicts to the attention of ITC.
ITC RESPONSIBILITIES:
1. ITC is responsible for accepting all the non-web/non-credit-card Microsoft
orders from the Agency.
2. ITC will place all non web/non credit-card orders with Xxxxxx.xxx in
accordance with the terms of this agreement.
3. For non-credit card orders, ITC will be responsible for reporting the end
sale prices of the Enterprise Lot Product and Non-Enterprise Additional Product
orders to Xxxxxx.xxx.
4. ITC is responsible for accepting all orders from the Agency by telephone or
email. ITC will then forward these orders to Xxxxxx.xxx with a copy of the ITC
invoice to IRS, in accordance with paragraph 5.1 of the Agreement.
5. ITC is responsible for all primary customer support to the Agency.
6. ITC will be responsible for fulfilling the MSE requirement from the Agency.
This will be done without any involvement (including financial) involvement from
Xxxxxx.xxx.
7. ITC will be responsible for fulfilling the Help Desk/Premier support
requirement from the Agency. This will be done without any involvement
(including financial) involvement from Xxxxxx.xxx.
8. ITC grants and agrees to grant Xxxxxx.xxx all trademark rights reasonably
necessary for Xxxxxx.xxx to set up the co-branded web pages from the co-branded
store.
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