SOFTWARE INSTALLATION AGREEMENT
(FOR MICROSOFT SOFTWARE PRODUCTS)
THIS SOFTWARE INSTALLATION AGREEMENT (this "SOFTWARE INSTALLATION AGREEMENT") is
made as of November 1, 1999 ("Effective Date"), by and between:
HP: HEWLETT-PACKARD COMPANY
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
and
COMPANY: PINACOR, INC.
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx, XX 00000-0000
Please provide, on Exhibit D of this Agreement, all of the locations where
Microsoft software installation will occur.
HP and Pinacor, Inc. hereby agree as follows:
1. DEFINITIONS
1.1. "Customer Systems" shall mean the HP personal computer products as set
forth in Appendix A.
1.2. "Contract Manufacturing Agreement" shall mean the 3rd Party Installer
Agreement, to be executed between HP and Pinacor, Inc. under which
Pinacor, Inc. performs on behalf of HP certain assembly activities with
respect to the Customer Systems.
1.3. "MS" or "Microsoft" shall mean Microsoft Corporation.
1.4. "MS Product" shall mean the Microsoft software products as set forth in
Appendix B.
1.5. "Product" as used in the attached Appendix C shall have the same
meaning as "MS Product" for the purposes of this Software Installation
Agreement.
1.6. "Third Party Installer" or "COMPANY" shall mean Pinacor, Inc. as first
defined above.
1.7. "APM" shall mean Associated Product Materials, consisting of a
certificate of authenticity, an end user license agreement, a MS
product registration card, and/or other materials reasonably designated
by MS from time to time which HP may, or which Third Party Installer
may if authorized in writing by Microsoft, acquire from an Authorized
Replicator.
1.8. "Authorized Replicator " shall mean a third party approved by MS and HP
from which Third Party Installer may acquire Product(s) reproduced in
accordance with MS specifications.
1.9. "Product Deliverables" shall mean (i) Product software in object code
form, if applicable; (ii) installation utilities and related
documentation, if applicable; (iii) a single copy of Product end user
documentation; (iv) one or more units of Product hardware, if
applicable; and (v) any other deliverables identified in HP's License
Agreement with Microsoft or otherwise identified by MS as Product
Deliverables.
1.10. "XXXX" shall mean MS' standard end user license agreement for the
Product which shall consist of the applicable license and MS' standard
warranty terms for the specific Product.
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2. SCOPE
2.1 MS Product License. HP has been granted a license to load, preinstall
and distribute the MS Products pursuant to a certain license agreement
between HP and Microsoft. HP has also agreed to the terms and
conditions substantially as set forth in Appendix C with respect to
HP's use of any third party installer for the MS Products.
2.2 Third Party Installer. In order for Pinacor, Inc. to be authorized as a
Third Party Installer by HP and Microsoft, to load and pre-install the
MS Product on Customer Systems under the Contract Manufacturing
Agreement, Pinacor, Inc. hereby agrees to abide by the terms and
conditions imposed by Microsoft as set forth in the attached Appendix
C.
3. OTHER PROVISIONS
3.1 Breach. A breach of any provision of this Software Installation
Agreement, including all provisions incorporated by reference herein,
shall constitute a material breach of the Contract Manufacturing
Agreement between Pinacor, Inc. and HP.
3.2 Term. The term of this Software Installation Agreement shall commence
on the Effective Date referenced herein and will automatically renew on
an annual basis in conjunction with the U.S. Distributor or U.S. Direct
Reseller Agreement between Hewlett-Packard Company and Pinacor, Inc..
3.3 Third Party Beneficiary. Microsoft shall be a third party beneficiary
of this Software Installation Agreement and shall be entitled to
enforce the terms of this Software Installation Agreement in the event
HP fails to do so.
3.4 Limitation of Liability. Pinacor, Inc. agrees that IN NO EVENT, SHALL
HP OR MS HAVE ANY LIABILITY TO Pinacor, Inc. FOR CONSEQUENTIAL,
INCIDENTAL OR SPECIAL DAMAGES ARISING FROM ANY CLAIM OR ACTION
HEREUNDER, BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY.
AGREED:
HEWLETT-PACKARD Pinacor, Inc.
By: By:
Print Name: Print Name:
Title: Title:
HP/Pinacor, Inc. - MS SWINST.
2
APPENDIX A
to
Software Installation Agreement
CUSTOMER SYSTEMS
HPPRODUCTS
AS OF: November 01, 1999:
Reference Description
[LIST HP PRODUCTS] Product Families HP Brio PC's HP Vectra PC's HP Kayak
Workstations
The above HP Product list may change from time to time upon notice by HP.
0
XXXXXXXX X
to
Software Installation Agreement
MSPRODUCTS
[LIST MS PRODUCTS]
MS Windows 95
MS Windows 98
MS Windows NT
MS Windows NT 4.0
MS Office 2000
MS Office 2000 Professional
The above MS Product list may change from time to time upon notice by HP.
4
APPENDIX C
to
Software Installation Agreement
MS THIRD PARTY INSTALLER TERMS
1. THIRD PARTY INSTALLER CONDITIONS
The conditions listed below apply to the Third Party Installer.
The Third Party Installer shall:
(1) comply with Sections II(a), II(e), II(f) of HP's License Agreement
with Microsoft, and Sections 2(b), 2(e), 2(f), 2(h), 6(c), 7(a), 11, 13, 14 and
17(a) of HP's Business Terms Document with Microsoft, as set forth below;
(2) consent to venue and jurisdiction in the state and federal courts
sitting in the State of Washington with respect to any action brought by MS to
enforce its rights under the Installation Agreement;
(3) provide access to Third Party Installer premises to audit for
inspection team(s) sent on behalf of MS or HP, with reasonable notice, in order
that such team, accompanied by HP if HP so desires, may perform an audit of the
Third Party Installer's relevant books and records and/or an inspection of the
Third Party Installer's relevant procedures to determine compliance with the
terms of the Installation Agreement and the Agreement;
(4) halt reproduction of the Product upon notice from HP or MS of the
suspension, termination, or expiration of this Agreement;
(5) distribute the Customer Systems with Preinstalled Product Software
only to HP, HP Subsidiaries, HP resellers, HP distributors, and, upon MS's
written approval to HP, end-user customers, on behalf of HP;
(6) pay MS' or HP's attorneys' fees if, after reasonable efforts
otherwise, HP or MS employs attorneys to enforce any rights arising out of the
Installation Agreement and HP and/or MS are the prevailing party in connection
with such enforcement;
(7) report to HP or MS, upon HP or MS request and in the form provided
by HP or MS, information concerning Products installed including, without
limitation, the number of units of each Product installed and/or the number of
packages inserted, and the number of units of Product packages in inventory; and
(8) maintain the inventory of Product packages received from HP or the
Authorized Replicator on behalf of HP, if any, separate from inventory of
Product packages, if any, in the Third Party Installer's possession for other MS
OEMs (including the Third Party Installer, if the Third Party Installer is an MS
OEM), in order to distinguish each Product package from Product packages of
other MS OEMs. Authorized Replicator shall place HP's name on a conspicuous
location on each Product package delivered to the Third Party Installer by or on
behalf of HP.
II. LICENSE GRANT OF HPS LICENSE AGREEMENT.
(a) Subject to limitations in this Agreement and Third Party Installer's
compliance with all terms and conditions of this Agreement, HP grants to Third
Party Installer a non-exclusive, limited license to:
5
(i) install one (1) copy of Product software on a Customer System hard disk or
ROM ("Preinstalled Product Software") in accordance with instructions
accompanying the Product Deliverables; and
(ii) distribute with Customer System(s):
(A) one (1) copy of Preinstalled Product Software,
(B) one (1) copy of Product software on external media (i.e., diskette or
CD-ROM) as acquired from Authorized Replicator, and
(C) one (1) copy of Product end user documentation as acquired from Authorized
Replicator.
(e) (i) Unless otherwise provided in the Agreement, Third Party Installer's
license to distribute the Product is limited to distribution only with those
Customer System(s) and only inside the Customer System package.
....(ii) Third Party Installer shall comply with additional provisions, if any,
identified by HP with respect to Product.
.... (iii) Third Party Installer may supplement but shall not modify or
translate Product end user documentation. Third Party Installer shall not remove
or modify the package contents of Product or APM.
(f) (i) Third Party Installer shall include APM with Product software
distributed on behalf of HP.
(ii) Third Party Installer must distribute one (1) copy of Product end user
documentation as may be required by MS with and inside the package of each
Customer System distributed with Product software and/or hardware.
2 PRODUCT TERMS OF HP'S BUSINESS TERMS DOCUMENT
(b) With respect to Supplements, ET may also grant to Third Party Installer one
or more non-exclusive, limited additional rights, including without limitation,
those set forth in a "Supplement Addendum" for such Supplement. If Third Party
Installer decides to exercise any such additional rights granted for a
particular Supplement, Third Party Installer agrees to fully comply with all of
the terms and conditions of the applicable Supplement Addendum.
(e) Unless otherwise provided in the Agreement, Third Party Installer shall
place Product packages inside Customer System packages and install Product
software on the hard disk drive or ROM of a Customer System solely on Third
Party Installer premises by Third Party Installer employees.
(f) Third Party Installer shell not reverse engineer, decompile or disassemble
any Product except as permitted by applicable law without the possibility of
contractual waiver. Except as necessary to install Preinstalled Product
software, Third Party Installer may not reproduce Product or any part of Product
Deliverables. Third Party Installer shall make no use of Product Deliverables
except as described in the License Grant Section of the License Agreement.
(h)Third Party Installer agrees that it shall not distribute Product in
encrypted form, except as otherwise specifically provided in this Agreement.
6. ADDITIONAL RESTRICTIONS.
(c) Where Third Party Installer distributes Preinstalled Product Software, Third
Party Installer shall place a notice over either the Customer System power
switch in the "off' position or the power inlet connector
6
which informs the end user that turning on the Customer System indicates
acceptance of the terms of the XXXX. Third Party Installer may use alternative
procedures previously approved in writing by HP, and/or other alternative
procedures, subject to HP review and approval, provided that (i) the end user is
required to take some affirmative action to use or install the Product software,
such as breaking a seal, (ii) the end user is advised that taking such action
indicates acceptance of the terms and conditions of the FULA; and (iii) the end
user has the opportunity to read the XXXX and the applicable warranty in its
entirety before taking such action.
7. INTELLECTUAL PROPERTY NOTICES.
(a) Third Party Installer will not remove any copyright, trademark or patent
notices that appear on the Product as delivered to Third Party Installer.
11. OBLIGATIONS UPON TERMINATION
(a) Within ten (10) days after termination or expiration of this Agreement,
Third Party Installer shall deliver to HP, or at HP' direction, destroy, all
units of Product for which a royalty has not been paid and all Product
Deliverables. There shall be no refund or adjustment for amounts paid for
Product(s) returned to HP in accordance with this Section 11 (a).
(b) Upon termination or expiration of this Agreement, all of Third Party
Installer's license rights herein shall cease and Third Party Installer shall
cease all distribution of Product. Sections 13 and 14 of this Agreement shall
survive termination or expiration of this Agreement.
13. NONDISCLOSURE AGREEMENT.
COMPANY shall keep confidential: (a) installation utilities and related
documentation included in the Product Deliverables; (b) other materials included
in the Product Deliverables which are not made generally available to end users
which HP labels as HP Confidential or Proprietary, if possible; (c) the terms
and conditions of this Agreement; and (d) other non-public information and
know-how disclosed to COMPANY by HP. As used in the preceding sentence "if
possible" means that HP will use all reasonable efforts to identify in writing
and/or xxxx with an appropriate legend or marking, any materials included in the
Product Deliverables which HP considers confidential. Notwithstanding the above,
for the purposes of this Agreement, any object code programs or other Product
Deliverables that HP makes generally available to end users shall not be
considered confidential. Further notwithstanding the above, COMPANY may disclose
the terms and conditions of this Agreement in confidence to its immediate legal
and financial consultants as required in the ordinary course of COMPANY's
business.
14.AUDITS AND INSPECTIONS.
(a) During the term of this Agreement and for three (3) years thereafter, Third
Party Installer agrees to keep all usual and proper records and books of account
and all usual and proper entries relating to each Product licensed sufficient to
substantiate the number of copies of Product and the number of Customer Systems
distributed by or for Third Party Installer. Third Party Installer shall
maintain on Third Party Installer premises such records for itself .
(b) In order to verify statements issued by Third Party Installer and Third
Party Installer's compliance with the terms of this Agreement, HP may cause (i)
an audit to be made of Third Party Installer's relevant books and records and/or
(ii) an inspection to be made of Third Party Installer's facilities and
procedures. Any audit and/or inspection shall be conducted during regular
business hours at Third Party Installer's facilities, with reasonable notice.
Any audit shall be conducted by an independent certified public accountant
selected by HP (other than on a contingent fee basis).
(c) Third Party Installer agrees to provide HP' designated audit or inspection
team access to the relevant Third Party Installer's records and facilities.
7
(d) Prompt adjustment shall be made to compensate for any errors or omissions
disclosed by such audit Any such audit shall be paid for by HP or MS unless
material discrepancies are disclosed. "Material" shall mean a discrepancy of
five percent (5%) of reported Product shipments compared to actual Product
shipments. If material discrepancies are disclosed, Third Party Installer agrees
to pay HP or MS for the costs associated with the audit. In no event shall
audits be made more frequently than semi-annually unless the immediately
preceding audit disclosed a material discrepancy.
17.GENERAL.
(a) Third Party Installer agrees that it will not export or re-export Product to
any country, person, entity orend user subject to U.S.A. export restrictions.
Restricted countries currently include, but are not necessarily limited to,
Cuba, the Federal Republic of Yugoslavia (Serbia and Montenegro, U.N. Protected
Areas and areas of Republic of Bosnia and Herzegovina under the control of
Bosnian Serb forces), Iran, Iraq, Libya, North Korea, and Syria. Third Party
Installer warrants and represents that neither the U.S.A. Bureau of Export
Administration nor any other federal agency has suspended, revoked or denied
Third Party Installer's export privileges.
8
APPENDIX D
to
Software Installation Agreement
Locations where Microsoft software will be installed
Location(s):
Name: _________________________________________________________________________
Address 1:_____________________________________________________________________
Address 2: ____________________________________________________________________
City: _____________________________________State: ____________zip: ____________
Telephone: (_____) ________ - ______________________
Name: _________________________________________________________________________
Address 1:_____________________________________________________________________
Address 2: ____________________________________________________________________
City: _____________________________________State: ____________zip: ____________
Telephone: (_____) ________ - ______________________
Name: _________________________________________________________________________
Address 1:_____________________________________________________________________
Address 2: ____________________________________________________________________
City: _____________________________________State: ____________zip: ____________
Telephone: (_____) ________ - ______________________
Name: _________________________________________________________________________
Address 1:_____________________________________________________________________
Address 2: ____________________________________________________________________
City: _____________________________________State: ____________zip: ____________
Telephone: (_____) ________ - ______________________
Name: _________________________________________________________________________
Address 1:_____________________________________________________________________
Address 2: ____________________________________________________________________
City: _____________________________________State: ____________zip: ____________
Telephone: (_____) ________ - ______________________
Name: _________________________________________________________________________
Address 1:_____________________________________________________________________
Address 2: ____________________________________________________________________
City: _____________________________________State: ____________zip: ____________
Telephone: (_____) ________ - ______________________
9
EXHIBIT U37D
OMNIBOOKS PRODUCTS - DISTRIBUTORS
SUMMARY
A. Discount Schedule
DISCOUNTS
A
20%
B. The capital letter referenced left of the Product number on the Product
List indicates the applicable Discount column A above.
C. Products purchased under this Exhibit shall be included in determining
whether the volume level under Exhibit U20D to the Distributor's Agreement
with HP has been satisfied.
D. Sourcing Restrictions
Products on this Exhibit may be sourced from HP or any HP Authorized
Distributor. Please refer to the HP Product Categories document for more
information.
E. Selling Restrictions
Selling Restrictions are described in HP Product Categories document.
F. Program Matrix
----------------------------------------------------------------------
CAT. QD MO PP SA DR
----------------------------------------------------------------------
O2 o o (a) o
----------------------------------------------------------------------
QD: Qualified Distribution
o Products are designated as "Qualified Distribution Products". The Reseller
must have submitted the appropriate Qualified Distribution Application and
received approval to order such products.
MO: Minimum Order
o Minimum Order, release and ship to volume is $1,000.
PP: Price Protection
o HP's standard Price Protection policy applies; please refer to the HP
Operations Policy Manual for additional information.
SA: Stock Adjustment
(a) Products must be returned from, Distributor within thirty (30) days of
original shipment by HP. Eligible Products returned for stock adjustment
may not exceed fifteen percent (15%) of the previous quarters net dollars
of invoiced shipments. Restocking charges will apply to returns in any one
(1) quarter exceeding five percent (5%) of shipments. Such Products are
eligible for stock adjustment restocking charges of three percent (3%) of
list price value of the returned Products.
DR: Defective Return
o Eligible defective and customer satisfaction returns may not exceed three
percent (3%) of the net dollars of invoiced shipments during the previous
quarter. (Except that if the total number of defective units exceeds the
returns cap percentage, HP shall honor the Product warranty for those
units.) Please refer to the HP Operations Policy Manual for additional
information.
The HP Products on the Exhibit are U.S. versions only.
EXHIBIT U74A
OMNIBOOK TOPVALUE PRODUCTS
DISTRIBUTORS
A. Discount Schedule
DISCOUNT
A
20%
B. The capital letter referenced left of the Product number on the Product List
indicates the applicable Discount column A above.
C. Products purchased under this Exhibit will be included in determining whether
the volume level under Product Exhibit U20D to the Distributor's Agreement with
HP has been satisfied.
D. Sourcing Restrictions
Products on this Exhibit may be sourced from HP or any HP Authorized
Distributor. Please refer to the HP Product Categories document for more
information.
E. Selling Restrictions
Selling Restrictions are described in HP Product Categories document.
F. Program Matrix
----------------------------------------------------------------------
CAT. QD MO PP SA DR
----------------------------------------------------------------------
O3 o (a) (a) o
----------------------------------------------------------------------
QD: Qualified Distribution
o Products are designated as "Qualified Distribution Products" (QD). The
Reseller must have submitted the appropriate Qualified Distribution
Application and received approval to order such products.
MO: Minimum Order
o Minimum Order, release, and ship to volume is $1,000.
PP: Price Protection
(a) Price Protection will be calculated based on fourteen (14) days' inventory;
please refer to the U.S. Personal Computing TopValue Program Distributor
Addendum for additional information.
SA: Stock Adjustment
(a) Products are not eligible for Stock Adjustment.
DR: Defective Return
o Eligible defective and customer satisfaction returns may not exceed three
percent (3%) of the net dollars of TopValue invoiced shipments during the
previous quarter. (Except that if the total number of defective units
exceeds the returns cap percentage, HP shall honor the Product warranty for
those units.) Please refer to the U.S. Personal Computing TopValue Program
Distributor Addendum for additional information.
The HP Products on the Exhibit are U.S. versions only.
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