CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
THE PANDA PROJECT, INC.
RESELLER AGREEMENT
This Reseller Agreement ("Agreement") is between The Panda Project,
Inc., a Florida corporation ("The Panda Project"), and Siemens Nixdorf
Information Systems, Inc., a Massachusetts corporation, having its principal
place of business at 000 Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000 ("Reseller").
The term "Archistrat Products" as used in this Agreement shall mean
items described in the applicable Reseller price list published by The Panda
Project ("Price List"), as updated and revised by The Panda Project from time to
time, the current version of which will be provided to Reseller and deemed
attached as Exhibit A hereto and incorporated herein by this reference,
including all upgrades and enhancements thereto, and in any configuration or
system type in current production.
1. APPOINTMENT AS RESELLER
1.1 The Panda Project appoints Reseller as an Authorized Reseller for
Archistrat Products worldwide, and Reseller agrees to become a Reseller for the
Archistrat Products in such area, in accordance with the terms and subject to
the conditions set forth herein. Reseller acknowledges and agrees that nothing
in this Agreement shall prevent The Panda Project from engaging any other
reseller for the Archistrat Products in the United States or in any other
location. In addition, to the extent the Archistrat Products are sold under the
terms of this Agreement with software products, The Panda Project shall grant to
Reseller for delivery to the end user a limited, non-exclusive sublicense to use
such software products. Reseller shall at all times comply with any
authorization requirements mutually agreed to in writing and with all applicable
federal, state and local laws and regulations applicable to the performance of
the Reseller's services (the "Applicable Laws").
In addition to the above-referenced appointment, The Panda Project
appoints Reseller as the sole and exclusive Authorized Reseller for the
Archistrat Products identified hereinbelow (the "Exclusive Products") for and to
all Siemens Affiliates worldwide; provided, that the parties acknowledge and
agree that certain existing Panda resellers may from time to time offer and sell
Archistrat Products to Siemens Affiliates. The Panda Project will notify
Reseller of such sales as it becomes aware of them.
Furthermore, The Panda Project shall have the right to sell Archistrat Products
directly to Siemens Affiliates in the event The Panda Project notifies Reseller
of any such proposed sale and Reseller does not within 30 days thereafter notify
The Panda Project that Reseller has decided to sell the Archistrat Products to
such Siemens Affiliate. "Siemens Affiliates" for the purposes of this Agreement
shall mean any entity controlled by, controlling, or under common control of
Reseller (with "control" defined as 51% ownership). The Exclusive Products are:
4s Server, 4b Workstation product lines and all upgrades and enhancements
thereto.
1.2 Reseller is an independent contractor and not a legal
representative, employee or agent of The Panda Project for any purpose
whatsoever and Reseller shall determine and have sole control over the manner,
means and method of performance of its services under this Agreement. Reseller
represents that it is a reseller of computer products and that it shall purchase
the equipment and license the software products under this Agreement (or in the
case of other software products, other agreements) for incorporation into
systems which Reseller then markets to third-party users in the regular course
of its business. It is agreed that Reseller's systems may include the
significant addition of other equipment or software which Reseller manufactures,
acquires or develops for inclusion into Reseller's systems and that these
additions must represent functional and value enhancements to Archistrat
Products. The Panda Project makes no warranty with respect to any such additions
or enhancements.
2. TERM
The term ("Term") of this Agreement shall be 24 months, commencing on
the date The Panda Project executes this Agreement ("Effective Date"). This
Agreement will be automatically renewed at the conclusion of the initial
24-month period for successive 12-month periods unless either Reseller or The
Panda Project indicates by written notice to the other party not less than 30
days prior to the end of the Term or any such 12-month period that it does not
intend to renew. Notwithstanding the foregoing, this Agreement may be terminated
by either party pursuant to Section 13 of this Agreement.
3. DUTIES OF RESELLER
In addition to the other duties set forth in this Agreement, Reseller
shall have the following duties:
3.1 Reseller agrees that it shall exert reasonable efforts to market,
advertise, promote, sell, install, service and support Archistrat Products for
Reseller's customers in accordance with the terms of this Agreement. In
performing its marketing, promotional and selling functions under this
Agreement, Reseller shall not use any materials or advertisements which have not
been approved previously in writing by The Panda Project's authorized
representatives. The Panda Project shall provide to the Reseller at no cost
fifty (50) copies of the current versions of all available marketing materials
for the Archistrat Products. Thereafter, Reseller shall purchase such marketing
materials as it deems necessary at the List Price therefor. Reseller agrees that
prior to accepting a purchase order from a customer for Archistrat Products,
that it shall have provided to the customer written materials containing the
material features of the Product, including the material terms relating to the
warranty of the Archistrat Product. In addition, Reseller agrees to consult with
The Panda Project periodically with respect to The Panda Project's production
and delivery process for the Archistrat Products.
The Panda Project shall provide on loan at no cost to Reseller at
Reseller's location(s) of choice five (5) demonstration/seed server systems
(base models) ("Loaner Equipment") for the purposes of demonstrating the
Products and use as prospect lab equipment. Reseller agrees to pay for any
extras or upgrades. Reseller will at the end of six (6) months from the date of
this Agreement either pay for (at Reseller's price pursuant to Section 6.4) or
return the Loaner Equipment to The Panda Project in good condition, reasonable
wear and tear excepted. The parties may mutually agree on the terms of
additional Loaner Equipment. Any Loaner Equipment that is shipped to a
customer's premises for testing must be shipped for use in a configuration
approved by The Panda Project in writing and pursuant to an Evaluation Equipment
Agreement substantially in the form attached hereto as Exhibit E. The Panda
Project makes no warranty of any kind with respect to any Loaner Equipment.
3.2 Reseller shall perform all service on Archistrat Products sold and
installed by Reseller. In performing these duties under this Agreement, Reseller
shall ensure that any installation, support or warranty services will be
performed only by qualified personnel which have been certified to perform such
services by The Panda Project.
3.3 In connection with the support and warranty services which Reseller
is required to provide to its customers relating to the Archistrat Products,
Reseller shall maintain 24-hour toll-free telephone service to respond to
questions and schedule on-site
services, as necessary. Support services, including, without limitation,
telephone communications with customers and with The Panda Project's technical
support personnel and engineers, shall be provided by Reseller at its sole cost
and expense. Warranty services that are provided by Reseller on-site shall be
reimbursed by The Panda Project, within 30 days after receipt of invoices (with
labor charges to be reimbursed at the rates shown on Exhibit B).
3.4 The Panda Project shall provide the parts listed on The Panda
Project approved part list, a current copy of which is attached as Exhibit C and
which The Panda Project shall have the right to update and revise from time to
time at its sole discretion (the "Parts List"), on a consignment basis to
Reseller; such parts shall be supplied in kits in mutually agreed quantities.
The terms and conditions of the consignment of such parts shall be as set forth
herein and in the Consigned Inventory Agreement attached hereto as Exhibit D and
incorporated herein by reference (the "Consigned Inventory Agreement"). To the
extent Reseller is reasonably required to supply a replacement part (from such
consigned inventory or otherwise) to replace a part covered by The Panda
Project's limited warranty, Reseller shall notify The Panda Project at a number
to be designated by The Panda Project (or if The Panda Project designates in
writing a different entity, such other entity) of the problem and the required
part, by description and number based on the Parts List, and obtain a return
material authorization number ("RMA") from The Panda Project or such other
entity. The Panda Project (or another designee of The Panda Project) will
deliver such part to Reseller for installation or to replace the part supplied
by Reseller from the consigned inventory, as the case may be, in connection with
Reseller's warranty service. Reseller shall return the original part with proof
of purchase and the RMA to The Panda Project promptly following replacement at
The Panda Project's cost and expense, including the reasonable labor charges of
Reseller (at the rates shown on Exhibit B).
3.5 To the extent the parties have been unable to resolve a customer
problem and mutually determine that performance of services covered by The Panda
Project's limited warranty under Section 9.1 will require replacement of the
Archistrat Product, Reseller shall notify The Panda Project (or if The Panda
Project designates in writing a different entity, such other entity) of the
problem and obtain an RMA from The Panda Project or such other entity. The Panda
Project (or another designee of The Panda Project) will deliver the replacement
Archistrat Product to Reseller for installation and completion of the warranty
service. Reseller shall return the original product with proof of purchase
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and the RMA to The Panda Project promptly following replacement at The Panda
Project's cost and expense, including the reasonable labor charges of Reseller
(at the rates shown Exhibit B).
3.6 (a) To the extent Reseller requires replacement parts to replace
parts which Reseller has supplied to third parties from consigned inventory
pursuant to the Consigned Inventory Agreement other than (i) in connection with
services covered by The Panda Project's limited warranty or (ii) for replacement
of parts damaged while under consignment, Reseller shall notify The Panda
Project (or, if the Panda Project designates in writing a different entity, such
other entity) of the part based on the Parts List and The Panda Project (or
another designee of The Panda Project) will deliver the replacement part to
Reseller. The Panda Project shall invoice Reseller for the cost of the
replacement part, at the price shown on the Parts List (provided, Reseller shall
receive ************************************************ ************ following
the Triggering Event, as defined in Section 6.4 below) off the price shown on
the Parts List for parts purchased by Reseller for resale to Siemens Affiliates
and * *********************************************************** following the
Triggering Event, as defined in Section 6.4 below) off the price shown on the
Parts List for parts purchased by Reseller for resale to parties other than
Siemens Affiliates), and Reseller shall pay The Panda Project for such part
within thirty days of the date of the invoice.
(b) To the extent Reseller requires replacement parts or a
replacement Archistrat Product other than (i) in connection with services
covered by The Panda Project's limited warranty or (ii) for replacement of parts
damaged while under consignment, and any such replacement parts are not in
consigned inventory pursuant to the Consigned Inventory Agreement, Reseller
shall notify The Panda Project (or if The Panda Project designates in writing a
different entity, such other entity) of the part based on the Parts List or the
product and The Panda Project (or another designee of The Panda Project) will
deliver the replacement part or product to Reseller for installation and
completion. The Panda Project shall invoice Reseller for the cost of the (x)
replacement part, at the price shown on the Parts List (provided, Reseller shall
receive *********************************************** ************* following
the Triggering Event, as defined in Section 6.4 below) off the price shown on
the Parts List for parts purchased by Reseller for resale to Siemens Affiliates
and * ************************************************************ following the
Triggering Event, as defined in Section 6.4 below) off the price shown on the
Parts List for parts purchased by Reseller for resale to parties other than
Siemens Affiliates) or
(y) product, at the then applicable price pursuant to Section 6.4, and Reseller
shall pay The Panda Project for such part or product within 30 days of the date
of the invoice.
3.7 Should The Panda Project's examination and testing of parts or
products returned by Reseller pursuant to Section 3.4 or 3.5 not disclose any
defect covered by warranty, The Panda Project shall so advise Reseller and
dispose of or return the parts or products in accordance with Reseller's
instructions and at Reseller's sole expense, and Reseller shall reimburse The
Panda Project for transportation and testing expenses and expenses incurred by
The Panda Project pursuant to Section 3.4 or 3.5 at The Panda Project's then
current non-warranty repair rates.
4. FORECAST OF SALES OF ARCHISTRAT PRODUCTS
Within 60 days after the Effective Date, Reseller shall provide to The
Panda Project a reasonably detailed written business plan (the "Business Plan")
containing a forecast of anticipated orders of the Archistrat Products by
Reseller for the next 12 months and specifying the following information: (a)
monthly estimates of the number and types of systems expected to be ordered
setting forth any assumptions; and (b) any other information which Reseller
deems relevant to the forecasting process. In addition, Reseller shall meet with
a representative of The Panda Project designated by The Panda Project on the
third week of each month to review and revise the Business Plan, including
developing better estimates for the two months following the next month (the
"Confirmed Orders") and agreeing on a commitment schedule for the subsequent
month's period (the "Commitment Schedule"), which schedule will set forth the
minimum number and types of systems expected to be ordered during such period.
Based on customer orders received, Reseller shall forward to The Panda Project
purchase orders ("Reseller Purchase Orders") which shall specify (1) a purchase
order number and date; (2) the number and types of systems ordered (including
any specific requirements and bundled products); (3) the unit prices and
extended prices based on the Price List and whether or not the customer is a
Siemens Affiliate; (4) shipping information (including delivery points and
contact persons) provided, that The Panda Project shall have sole discretion
concerning method of shipment, identity of carrier and any other matters
relating to shipping; (5) date(s) of delivery; (6) that the terms and conditions
of this Agreement govern such Reseller Purchase Order; and (7) authorized
signature. The Panda Project shall manufacture Archistrat Products based on
Reseller Purchase Orders. The Panda Project shall apply the numbers set forth in
such Reseller Purchase Orders against the minimums contained in the Commitment
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Schedule. To the extent the amounts set forth in the Reseller Purchase Orders
for the month exceed the minimum amounts contained in the Commitment Schedule,
The Panda Project and Reseller acknowledge that The Panda Project may defer
delivery of such excess units; such orders shall be completed and delivered on a
sequential basis (i.e., first-in, first-out), and Reseller shall notify the
customers of such fact. The Panda Project reserves the right to supply all or a
portion of Reseller's forecast and the Reseller Purchase Orders, consistent with
availability and other factors as determined by The Panda Project at its sole
discretion. The Panda Project shall have no liability or obligation to Reseller
for partial or late delivery or for failure to deliver unless such partial or
late delivery or failure to deliver were for products contained in Reseller
Purchase Orders, in which event, if Reseller has incurred damages, Reseller may
claim as its sole remedy liquidated damages of 0.5% of the invoice price of the
delayed products for every complete week of delay up to an overall total of 10%
of such price.
5. ORDERING ARCHISTRAT PRODUCTS
5.1 Reseller shall order Archistrat Products pursuant to Reseller
Purchase Orders. Subject to Section 4 above, all Reseller Purchase Orders shall
be accepted by The Panda Project, provided, such Reseller Purchase Orders are in
conformance with this Agreement and do not contain inaccuracies. All Reseller
Purchase Orders shall be governed solely by the terms of this Agreement. No
additional or different provisions contained in the Reseller Purchase Orders or
other business forms or correspondence shall be of any force whatsoever.
5.2 Reseller agrees to use best efforts to purchase a minimum of
********************************* worth of the Products during the Term.
5.3 The Panda Project shall have the right to impose a cancellation or
reschedule charge for any order which is canceled or deferred by Reseller
(including cancellations resulting from termination of this Agreement) at a rate
of **** of the amount set forth in the Reseller Purchase Order, provided that
Reseller shall be liable for the invoice price with respect to any order that is
cancelled or deferred within 30 days prior to the date scheduled for delivery.
Reseller may reflect any such charges in the purchase orders executed by
Reseller's customers.
6. PAYMENT AND PRICES; TITLE; RISK OF LOSS
6.1 Payment in full for each Archistrat Product from Reseller shall be
due and payable within 30 days of the date of
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SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
The Panda Project's invoice (the "Due Date"), which invoice shall not be dated
prior to the delivery of the Archistrat Product. Any late payments shall bear
interest at the rate of 1% per month. In the event Reseller fails to make
payments after 30 days of the Due Date to The Panda Project for the Archistrat
Products ordered, The Panda Project reserves the right to require prepayment or
other payment arrangements satisfactory to The Panda Project prior to delivery
of other Archistrat Products.
6.2 Subject to Section 6.4, Reseller shall pay The Panda Project for
Archistrat Products in United States Dollars at the applicable prices specified
in the Price List in effect on the date the Reseller Purchase Order for such
products is received or such products are shipped by The Panda Project,
whichever is less, provided however, that if publication of a new Price List
results in an increase in the price of any Archistrat Product which is listed on
the preceding Price List, the increased price shall apply to any order for such
Archistrat Product placed by Reseller after the effective date of the Price List
which effective date shall not be any earlier than 60 days after receipt in
writing by Reseller of such price increase. Reseller Purchase Orders received by
The Panda Project prior to the effective date of any increased price shall not
be affected by the proposed price increase. The Panda Project shall have the
right to amend the Price List without the consent of Reseller. The prices of
Archistrat Products or enhancements thereto not previously listed on the Price
List from time to time shall be effective upon publication.
6.3 Reseller agrees to promptly pay any taxes resulting from this
Agreement or the activities contemplated hereunder, exclusive of taxes based on
the net income of The Panda Project. Reseller agrees to provide The Panda
Project with valid reseller-exemption documentation for each applicable taxing
jurisdiction to which Archistrat Products are shipped. In the event Reseller
fails to do so or such exemption is revoked, modified or not recognized,
Reseller will pay to The Panda Project all applicable state and local taxes and
duties.
6.4 Reseller shall receive *********************************
*************************** after the Triggering Event, as defined below) off
the list price shown on The Panda Project's Price List for all Archistrat
Products purchased by Reseller for resale to Siemens Affiliates. Reseller shall
receive ******************** **************************************** after the
Triggering Event, as defined below) off the list price shown on The Panda
Project's Price List for all Archistrat Products purchased by Reseller for
resale to parties other than Siemens Affiliates. As
used in this Agreement, the term "Triggering Event" shall mean the purchase by
Siemens from The Panda Project of 25 Archistrat 4s Servers under this Agreement.
For any special projects that call for deliveries over a period of time not
longer than 24 months from initial delivery and that involve substantially
higher volumes of the products, The Panda Project and Reseller shall negotiate
in good faith mutually agreeable special discounts in excess of the discounts
set forth hereinabove.
6.5 With respect to shipments within the continental United States,
title and risk of loss to each Archistrat Product shall pass to Reseller upon
delivery by The Panda Project F.O.B. the point of delivery specified in the
applicable Reseller Purchase Order. With respect to shipments outside the
continental United States, title and risk of loss to each Archistrat Product
shall pass to Reseller upon delivery by The Panda Project to the point of
delivery specified in the applicable Reseller Purchase Order, but The Panda
Project shall have the right to charge Reseller such incremental shipping and
transportation charges, including without limitation packing, freight, storage,
insurance and documentation charges, as The Panda Project shall reasonably deem
appropriate.
6.6 The Panda Project shall have the right at its expense to nominate
an independent certified or chartered public accountant, acceptable in the
reasonably exercised discretion of Reseller, who shall have access to the
records of Reseller and its affiliates, during reasonable business hours, solely
for the purpose of verifying amounts payable to The Panda Project under this
Agreement.
7. LICENSE
Reseller acknowledges that the software and firmware resident in the
Products is confidential, proprietary and/or copyrighted by The Panda Project.
The Panda Project hereby grants to Reseller a non-exclusive and royalty-free
license, under all patents, copyrights and proprietary interests owned or
controlled by The Panda Project to use and sell the Products. The Panda Project
may revoke any license if Reseller fails to meet any of its obligations
hereunder.
The software and firmware provided hereunder, including any subsequent
improvements or updates, are furnished to Reseller under a non-exclusive and
royalty-free license for use in a single Product. Reseller agrees that all
software and firmware shall not be sold or distributed or otherwise made
available to customers or other third parties separate from the Product in which
it is resident, nor copied or tampered with nor shall its removal be attempted.
Upon any default by Reseller under this Agreement, all licensed
software and firmware of The Panda Project's within Reseller's possession shall
be returned without copying by Reseller to The Panda Project, except for
software and firmware resident in Products previously purchased by Reseller or
its customers.
Reseller agrees that, in connection with the transfer of any Product to
its customer and in connection with any subsequent transfer by its customer to a
third party, it will contractually restrict all such transferees such that they
shall:
(i) limit the use of the software and firmware thereof to
that Product transferred by Reseller, and
(ii) not reverse assemble or reverse compile any of the
software or firmware.
8. DUTIES OF THE PANDA PROJECT
In addition to the other duties set forth in this Agreement, The Panda
Project shall have the following duties:
8.1 TRAINING
The Panda Project will provide a reasonable number of training courses
relating to Archistrat Products at Reseller's facilities in the United States
within sixty (60) days of the effective date of this Agreement; provided that
The Panda Project shall not be obligated to provide more than an aggregate of
sixteen (16) man-hours of its personnel time to all of such courses. The Panda
Project shall not charge Reseller for such courses; provided The Panda Project
shall not be responsible for any personnel, travel or other costs incurred by
Reseller in connection with such courses. The course outlines for such training
courses will be submitted to Reseller for approval and input. The Panda Project
agrees to provide training in subjects specifically requested by Reseller. Each
course shall be for no more than ten (10) students, and shall cover, in detail,
the installation, adjustment, operation, testing and maintenance of said
Products. Each course shall include a reasonable amount of hands-on experience
with the Products in addition to the classroom type of training. Further, when
new Products or enhancements are introduced, The Panda Project agrees, when
requested by Reseller, to provide Reseller with initial training courses, not to
exceed sixteen (16) man-hours of Panda personnel time, on said new Product or
enhancements. The Panda Project shall not charge
Reseller for such courses; provided The Panda Project shall not be responsible
for any personnel, travel or other costs incurred by Reseller in connection with
such courses.
The Panda Project agrees to provide training courses in addition or
subsequent to the initial training courses described above at a cost to be
mutually agreed upon when requested to provide such by Reseller. For training
courses taught at locations other than Reseller's or The Panda Project's
facilities, Reseller agrees to reimburse The Panda Project for the travel and
living expenses of the instructor at The Panda Project's prevailing standard
rates. Travel and per diem expenses of the trainees will be paid by Reseller.
8.2 EMERGENCY SUPPORT
In the event of an emergency involving the Archistrat Products at
Reseller's facilities or Reseller's customers' site, The Panda Project will
provide to Reseller qualified factory technical support when such assistance is
required on a best efforts basis within twenty-four (24) hours, not to exceed
forty-eight (48) hours upon notice given; provided, that Reseller has sent
qualified service support to such site and has been unable to resolve the
problem under Article III or Section 8.3. The Panda Project shall designate one
or more contact persons who will be responsible for assuring that the emergency
support is provided. Whether the cost of the emergency assistance shall be borne
by The Panda Project or Reseller depends on whether the Products are under
warranty and in compliance with The Panda Project's specifications. If the
Product is in compliance with the specifications, or if the Product is not under
warranty, then Reseller will bear the cost and will be billed (except in
situations involving epidemic failures as described in Section 9.3 below) at The
Panda Project's then prevailing published rates. If the Product is under
warranty and not in compliance with The Panda Project's specifications, then The
Panda Project shall bear the cost of the emergency assistance.
8.3 TECHNICAL SUPPORT AND DOCUMENTATION
The Panda Project will provide the following support to Reseller's
plant or Reseller's customer site:
(A) Engineering Support, at no charge, to Reseller's
Engineering personnel in the form of telephone consultation by The Panda
Project's Engineering personnel during The Panda Project's normal working hours.
(B) Field Support, at no charge, to Reseller's Field
Engineering personnel in the form of telephone or telex consultation by The
Panda Project's support organizations and technical assistance specialists
during The Panda Project's normal working hours.
(C) It is recognized that Reseller may wish to undertake its
own major refurbishment or subassembly repair. The Panda Project agrees to
extend to Reseller the option to acquire at Reseller's sole expense the
technical expertise as defined below and as may be required to establish
internal repair capabilities. Reseller reserves the right to exercise this
option at any time during this Agreement and The Panda Project agrees to assist
Reseller in doing so through an equitable negotiation process. Reseller's
typical needs will consist of, but not be limited to:
(1) test specifications
(2) test routines
(3) repair procedures
(4) technical support/training as required
(5) piece part support
(6) tools and test equipment
(7) documentation updates
(8) schematics/logic diagrams
(9) illustrated parts breakdown
Concurrent with the date of this Agreement, The Panda Project will
provide Reseller with a list of all documentation/manuals available or planned
for general information, training and for maintenance of the Archistrat
Products. Such documentation shall include, but not be limited to, maintenance
manuals (which include site preparation, installation, operation, functional
description, preventative maintenance, maintenance procedures, logic block
diagrams for the Products), logic card manuals which include card layout,
technical memos or bulletin files, and copies of documentation covering any
product changes. The Panda Project hereby grants at no charge to Reseller the
right to reproduce, translate into other languages, and prepare derivative
works, distribute, sell, perform and display, in whole or in part, manuals and
documentation specified herein, solely for the purpose of performing Reseller's
responsibilities under this Agreement. Throughout the term of this Agreement,
The Panda Project shall provide Reseller with timely notification in writing of
changes to documentation which may be incorporated at Reseller's option. Any
user guides, marketing materials or other documentation used by Reseller in
connection with the Archistrat Product and not supplied by The Panda Project
shall be approved by The Panda
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Project prior to their use. The Panda Project makes no warranty with respect to
any such refurbishment or major subassembly repair. No right is or shall be
granted for Reseller to resell any such refurbished product.
8.4 REPLACEMENT PARTS
The Panda Project agrees to provide the parts listed on the Parts List
(or functional equivalents thereof) to Reseller in accordance with Section 16.11
for *************** after expiration or termination of this Agreement.
9. LIMITED WARRANTY
9.1 The Panda Project hereby warrants to Reseller that the Archistrat
Products delivered hereunder shall be free from defects in materials and
workmanship when given normal, proper and intended usage, for three years after
the date of delivery to Reseller. Replacement parts or replacement products
shall be warranted only for the remainder of such warranty period. The Panda
Project does not warrant error-free or uninterrupted operation of the Archistrat
Products. Such warranty is subject to the exclusions set forth in Sections 1.2,
3.1 and 8.3 and does not include warranty services to correct any damage caused
by improper installation, unsuitable physical or operating environment, improper
maintenance, removal of product identification labels, accidents, disaster,
misuse, abuse or modifications or additions approved in writing by The Panda
Project. The Panda Project assumes no responsibility to provide warranty
services outside of the 48 contiguous states of the United States unless
otherwise stipulated in a written purchase order. ALL OTHER WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED. Except as set forth in
Section 9.3 below, in all situations involving the performance or nonperformance
of Archistrat Products, Reseller's exclusive remedy will be to have The Panda
Project repair or replace the Archistrat Products as set forth in Article III or
Exhibit B. Reseller acknowledges and agrees that The Panda Project's aggregate
liability for all claims, losses, damages, costs, expenses, fines or penalties,
whether arising from contract, tort or any other legal or equitable theory, due
to the acts or omissions of The Panda Project hereunder shall not exceed the
lesser of (i) Reseller's actual damages resulting therefrom, or (ii) the amount
paid by Reseller to The Panda Project under this Agreement. In no event shall
either party be liable to the other for lost profits or other consequential,
incidental, indirect or special damages of any nature whatsoever, including,
without limitation, loss of
data, loss of profits, loss of business, or anticipatory profits, even if such
party has been apprised of the likelihood of such damages. The Panda Project's
liability, if any, under the warranty contained herein shall only be to
Reseller, but it is understood that Reseller shall have the right in its own
capacity to make the warranty contained herein to its customers.
9.2 Warranty services performed by Reseller and reimbursement terms for
such services are set forth in Paragraphs 3.2 - 3.5 and Exhibit B of this
Agreement.
9.3 If within twelve months after the date of this Agreement, an
epidemic of failures of functional specifications or of conformities of the
Archistrat Products, due to the same specifically identified and documented
defect or malfunction, occur at a rate greater than the applicable MTBF figures
published by The Panda Project or five percent (5%) of the same or similar type
products, whichever is less, and occur within any two (2) month period
regardless of whether the Products are in or out of warranty, The Panda Project
and Reseller shall consult with each other to determine whether such defects or
malfunctions result from manufacturing inadequacies or the use of unsuitable
materials by The Panda Project. If such determination is made, The Panda Project
agrees to provide, at its expense, the technical personnel and assistance
necessary to remedy the failed Archistrat Products and to prevent the problem
from occurring in future deliveries.
In the event that The Panda Project is unable to remedy the problem in
the Products, Reseller may, at its option, cancel any and all purchase orders or
portions thereof for Archistrat Products which are experiencing the epidemic
failures and Reseller may return, for full credit, the Archistrat Products which
have already been received by Reseller. Further, Reseller may cancel any and all
purchase orders or portions thereof for Archistrat Products which were used in,
or in conjunction with, the Archistrat Products experiencing the epidemic of
failures (e.g., spare parts, accessories, etc.), and Reseller may return freight
collect and for full credit, such Archistrat Products which have already been
received.
9.4 The Panda Project and Reseller may agree on alternative warranty
provisions from time to time by amendment to this Agreement.
10. TRADEMARKS AND RELATED MATTERS
10.1 No rights are granted to Reseller to use trademarks and trade
names of The Panda Project ("Trademarks") or trademarks or
trade names of third parties used in conjunction with the Archistrat Products
except to identify Archistrat Products purchased from The Panda Project pursuant
to this Agreement. Unless otherwise agreed by the parties, all Archistrat
Products will be sold under Panda Trademarks.
11. PATENTS AND COPYRIGHTS
11.1 The Panda Project will defend Reseller against a claim that
Archistrat Products infringe a United States patent or copyright or trade secret
and will pay resulting costs, damages, and attorneys' fees finally awarded by a
court, provided that (i) Reseller promptly notifies The Panda Project in writing
of the claim; and (ii) The Panda Project has sole control of the defense and all
related settlement discussions.
11.2 If the Archistrat Products or the operation thereof become or in
the opinion of The Panda Project are likely to become, the subject of such a
claim, Reseller will permit The Panda Project, at the sole option and expense of
The Panda Project, either to procure the right for the Reseller to continue
marketing and using the Archistrat Products or to replace or modify them so that
they become non-infringing but without any impairment in quality or
functionality.
11.3 The Panda Project shall have no liability for any claim based
solely upon the combination, operation or use of any Archistrat Product supplied
hereunder with equipment, data, or programming not supplied by The Panda
Project, or based upon any alteration or modification of the Archistrat
Products.
11.4 The foregoing states the entire obligation of The Panda Project to
Reseller with respect to infringement of patents and copyrights and trade
secrets.
12. CONFIDENTIAL INFORMATION
12.1 Confidential information shall mean all information designated as
such in writing by The Panda Project, whether by letter or by the use of an
appropriate proprietary stamp or legend, which relates to the present or future
development and business activities of The Panda Project, including, but not
limited to, all sales, promotional, advertising, and support programs and all
inventions, products, processes, methods and other technical information.
Without limiting the foregoing, all information referred to in Sections 7 and
8.3(C) above and Section 16.13 below is confidential information.
Notwithstanding the foregoing, information which is orally disclosed to Reseller
by The Panda Project, or is disclosed in writing without an appropriate letter,
proprietary stamp or legend, shall constitute confidential information if,
within ten (10) days after such disclosure, The Panda Project delivers to
Reseller a written document designating such information as confidential.
Reseller shall hold such confidential information in trust and confidence for
The Panda Project and shall not use or reproduce it except in furtherance of the
relationship set forth in this Agreement, nor publish, copy, disclose or
disseminate it, except to customers, employees or contractors who have a need to
know such information and are bound by written agreement to protect the
confidentiality of such information, or as may be authorized by The Panda
Project in writing. Upon the expiration or termination of this Agreement,
Reseller shall promptly deliver to The Panda Project all confidential
information or written or descriptive matter containing any such confidential
information.
13. TERMINATION
13.1 Reseller shall have the right to terminate this Agreement at any
time after the first six (6) months, for any reason or no reason whatsoever,
including breach by The Panda Project of its obligations under this Agreement,
at such party's sole discretion, said termination to be effective 30 days from
the date written notice of termination is received by the non-terminating party.
13.2 Upon the occurrence of any of the following enumerated
circumstances, termination of this Agreement by The Panda Project shall be
effective immediately upon receipt by Reseller of written notice of termination.
13.2.1 Reseller is adjudged or becomes bankrupt or insolvent,
is unable to pay its debts as they become due, has substantially all of its
assets seized or makes an assignment for the benefit of its creditors; or
13.2.2 Reseller is dissolved or liquidated; or
13.2.3 Reseller breaches any of its obligations under this
Agreement and such breach is not cured within 30 days after notice from The
Panda Project.
13.3 If The Panda Project terminates this Agreement, The Panda Project
may, upon mutual agreement of the parties, repurchase some or all of the
Archistrat Products in Reseller's inventory at prices to be agreed upon by The
Panda Project and Reseller, but in no event greater than the price invoiced to
and
actually paid by Reseller less any credits received by Reseller in respect to
such products and The Panda Project shall be responsible for any delivery
charges resulting from the delivery of these products to a location designated
by The Panda Project.
13.4 Notwithstanding any termination, all pending unfilled orders will
be filled and performed by the parties.
14. INDEMNIFICATION
Reseller agrees to indemnify and hold harmless The Panda Project and
its directors, officers, employees, representatives and agents (collectively,
the "The Panda Project Indemnitees") from and against all liabilities,
obligations, losses, damages, penalties, interest, claims, actions, suits,
investigations, proceedings, judgments, orders, or injuries (including death to
any person or damage to property) of whatever nature, and including court costs
and attorneys' fees and disbursements, whether suit is instituted or not, and,
if instituted, whether at any trial or appellate level, imposed on, incurred by
or asserted against The Panda Project Indemnitees or any of them, arising out
of, in connection with or based upon the acts, omissions or breach by Reseller
and its employees, officers, directors, agents and representatives of Reseller's
representations, warranties, covenants, duties and obligations under or pursuant
to this Agreement; provided, that Reseller shall not be obligated to indemnify
The Panda Indemnities with respect to any matter arising out of The Panda
Project's intentional misconduct, negligence or breach of warranty. These
indemnification obligations shall survive the termination of this Agreement.
With respect to claims for which indemnification is payable under this
Agreement, such indemnification shall be paid by Reseller on a current basis
upon receipt of such vouchers and other supporting documentation as may
reasonably be requested.
15. INSURANCE
15.1 At all times during the term of this Agreement, Reseller shall
maintain, in full force and effect with insurance carriers duly authorized to do
business in the states and countries where its services are to be performed, the
following types and minimum coverage limits of insurance (or such greater limits
as are required by the applicable laws): (i) commercial general liability
insurance for death, bodily injury, property damage and for personal injury
(including libel, slander defamation of character and violation of the right of
privacy) in limits of not less than $1,000,000 per occurrence; (ii)
comprehensive automobile liability (included hired, owned and non-owned
vehicles) in limits of not less than $1,000,000 per occurrence, for bodily
injury and property damage; and (iii) workers' compensation in compliance with
the applicable laws, including employer's liability in limits of not less than
$100,000 per accident. By appropriate riders or endorsements to such policies,
The Panda Project shall be included as an additional insured (with the exception
of the workers' compensation policy).
15.2 If any of the coverages are on a claims made basis, Reseller's
maintenance of such coverages shall survive the termination of this Agreement
until the expiration of the maximum statutory period of limitations in the state
where the services are performed for actions based in contract or in tort. Upon
the execution of this Agreement, Reseller shall furnish The Panda Project a
certificate of insurance from its insurance carriers reflecting the Reseller's
insurance coverages are consistent with all requirements under this Agreement
and providing that such insurance carriers will notify The Panda Project in
writing at least 30 days prior to any cancellation, termination, non-renewal or
modification to Reseller's policies. Reseller shall provide The Panda Project
with renewal or replacement certificate(s) not less than 30 days prior thereto.
16. GENERAL
16.1 Reseller shall not have the right to assign, delegate or
subcontract the services to be performed hereunder, or any part thereof, without
the prior written consent of The Panda Project, and notwithstanding such
assignment, delegation or subcontracting, Reseller shall not be released from
its duties and obligations hereunder.
16.2 This Agreement and the exhibits hereto constitute the entire
agreement between the parties hereto and supersede all prior agreements,
understandings and commitments. This Agreement can be modified only by a written
amendment executed by Reseller and The Panda Project, and shall not be
interpreted, supplemented or modified by any course of dealing or trade usage.
This Agreement has been negotiated freely and openly by the parties, and it
shall be interpreted without regard to any presumption or rule requiring
construction against the party causing this Agreement to be drafted.
16.3 Any obligations and duties which by their nature extend beyond the
expiration or termination of this Agreement shall survive any expiration or
termination and remain in effect,
including, without limitation, those set forth in Paragraphs 6.1-6.3, 7, 8.4,
9.1-9.3, 10.1, 11.1-11.4, 12, 13.2-13.4, 14, 15.1, 15.2, 16.2, 16.4, 16.5 and
16.7-16.13.
16.4 If any provision or provisions of this Agreement shall be held to
be invalid, illegal or unenforceable, such provision shall be enforced to the
fullest extent permitted by applicable law and the validity, legality, and
enforceability of the remaining provision shall not in any way be affected or
impaired thereby.
16.5 In the event a party is unable to perform any of its obligations
under this Agreement due to the occurrence of any event or contingency beyond
its reasonable control, the affected party's performance shall be extended for
the period of delay or inability to perform due to such occurrence.
16.6 Notices required or permitted hereunder shall be in writing and
deemed given and received when properly posted by registered or certified mail,
postage prepaid, first class in an envelope properly addressed (i) if to The
Panda Project, to 000 Xxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx, 00000 Attention:
President, Archistrat Systems Division, (ii) if to Reseller, to the address set
forth in the introduction of this Agreement Attention: Xxxxx Xxxxx; or to such
other addresses as Reseller or The Panda Project specify in writing to the other
party.
16.7 Except as otherwise provided herein, no waiver of any of the
provisions of the Agreement shall be valid or effective unless in writing and
signed by the waiving party; and no waiver of any breach or condition of the
Agreement shall be deemed to be a continuing waiver or a waiver of any other
breach or condition.
16.8 THIS AGREEMENT AND ALL TRANSACTIONS EXECUTED HEREUNDER SHALL BE
GOVERNED EXCLUSIVELY BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF FLORIDA WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
16.9 This Agreement is The Panda Project Confidential.
16.10 The Panda Project represents that the terms and conditions and
the prices for Archistrat Products contained in this Agreement are no less
favorable to Reseller than the most favorable terms and conditions and prices
offered to any other reseller or customer of The Panda Project for Archistrat
Products outside governmental channels which reseller or customer is performing
services or providing benefits to The Panda Project that are not materially more
extensive than those being performed by Reseller hereunder.
16.11 Subject to the provisions of Section 8.4, in the event of
termination of the Agreement for any reason, The Panda Project agrees to sell
spare parts to Reseller at the lowest prices offered to any other reseller or
customer outside governmental channels in order for Reseller to maintain
products for its customers; provided such reseller or customer is performing
services or providing benefits to The Panda Project that are not materially more
extensive than those being performed by Reseller.
16.12 Reseller understands that the products to be purchased and
programs to be licensed hereunder may require a validated export license.
Reseller agrees to assist The Panda Project to obtain any such required license
by supplying appropriate documentation requested by The Panda Project. Reseller
agrees to comply with U.S. Export Administration Regulations as in effect from
time to time and will not re-export any products without first gaining approval
from The Panda Project and until approval is obtained from the United States
Department of Commerce or other applicable authority. Reseller agrees to obtain
similar assurances from its customers. Reseller will also maintain the necessary
records to comply with United State Export Administration Regulations.
16.13 The parties acknowledge and agree that the ACT database supplied
to Reseller by Panda shall be the joint property of the parties and The Panda
Project shall have full and free access to any sales information relating to the
Archistrat Products.
16.14 In the event The Panda Project becomes subject to bankruptcy or
insolvency proceedings which are not dismissed within 45 days and fails to
supply Archistrat Products as provided hereunder for a period of 30 days after
written notice from Reseller, Reseller shall be granted a conditional license to
such documentation as is necessary to manufacture the Archistrat Products and
which The Panda Project has the right to license to Reseller. Such license shall
be for the limited purpose of permitting Reseller to manufacture Archistrat
Products to fill
Reseller Purchase Orders under this Agreement as of the date of such notice,
shall extend only for the period of time needed to fill such orders and shall be
nontransferable.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND
BY ITS TERMS AND CONDITIONS.
RESELLER
SIEMENS NIXDORF INFORMATION THE PANDA PROJECT, INC.
SYSTEMS, INC.
By: By:
Title: Title:
Date: Date:
__________________
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
EXHIBIT A
CONFIDENTIAL
THE PANDA PROJECT/Trademark/
OFFICIAL PRICE LIST
ARCHISTRAT/Registered trademark/ SYSTEMS PRICE LIST
---------------------------------------------------------------------------------------------------------------------------------
ARCHISTRAT/Registered DESCRIPTION DEALER LIST QTY EXTENDED
trademark/ PART NUMBER PRICE PRICE PRICE
------------------------ ------------------------------------- ------ ----- --- --------
SERVER (Must select)
TBD Archistrat 4s Base Unit $**** $****
PLATFORM (Must select one platform: 1 CPU card &
1 Bridge card)
48260040 Intel Pentium 100 MHz CPU card $**** $****
48260098 Intel Pentium 166 MHz CPU card $**** $****
48260033 Intel Bridge card $**** $****
48260090 DEC Alpha CPU card w/L3 Cache 2 MB $**** $****
48260088 DEC Bridge Alpha card $**** $****
MEMORY (SELECT AT LEAST ONE)
48260029 32MB Memory Module $**** $****
48260030 64MB Memory Module $**** $****
TBD DIMMS, 32 MB Memory $**** $****
TBD DIMMS, 64 MB Memory $**** $****
VIDEO (SELECT ONE)
48260056 Boca PCI SVGA 2 MB Video Card $**** $****
48260119 Dynamic Pictures V192 3D Video Card $**** $****
SCSI CONTROLLERS (SELECT ONE)
48260123 Adaptec PCI Fast/Wide SCSI Controller $**** ****
48260121 Mylex PCI Dual-Channel Fast/Wide RAID $**** $****
Adapter w/ 4 MB EDRAM
SEPTEMBER 16, 1996
PRICES SUBJECT TO CHANGE
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
HARD DRIVES (SELECT AT LEAST ONE)
48220032 2 GB Fast/Wide SCSI-2 HD - 7200RPM $**** $****
48220033 4 GB Fast/Wide SCSI-2 HD - 7200RPM $**** $****
CIRCLE ONE: XXXXX XXXXX XXX
XXXXX XXXXX XXX
COMMUNICATIONS (SELECT ONE)
48260072 Cogent EM110TX PCI Ethernet Adapter $**** $****
48260073 Cogent EM400 Quartet Ethernet Adapter $**** $****
OPTIONAL PARTS
MODEM
48260118 Boca Research 28.8 V.341 $**** $****
SOFTWARE
48270079 Windows NT 3.51 Workstation $**** $****
DISPLAY
48200002 Nokia Multigraph 447X 21" Monitor $**** $****
Total
*ARCHISTRAT/Registered trademark SYSTEM BASE UNIT INCLUDES:
**4X CD-ROM
**3.5" FLOPPY DRIVE
**CACHE MEMORY - 16KB INTERNAL & 512KB EXTERNAL
**EXPANSION SLOTS - SIX 32/64 BIT PCI & FOUR 16 BIT ISA SLOTS TOTAL
**UPPER DRIVE BAYS - FOUR BAY TOTAL
**LOWER DRIVE BAYS - 12 LOW PROFILE OR 10 HALF BAYS
**I/O PORTS
**BACKPLANE
**KEYBOARD, MOUSE, AND 400 WATT POWER SUPPLY
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
EXHIBIT B
WARRANTY REIMBURSEMENT PROGRAM
On-site warranty services that are provided by the Reseller shall be
reimbursed by Panda within 30 days after receipt of warranty repair
documentation and the defective product, in accordance with the reimbursement
schedule set forth below:
REIMBURSEMENT SCHEDULE
ITEM(S) OF REPAIR/REPLACEMENT REIMBURSEMENT AMOUNT
----------------------------- --------------------
Power Supply $ ***** 1
Back Plane $ ***** 1
All Other Components $ ***** 1
Diagnostics Charge 2 $*****/hour with cap of $*****
1 Includes all chargeable labor and overhead costs.
2 Applies only to repairs where Reseller service technician is unable to resolve
problem and Panda Technical Support determines appropriate amount for
reimbursement under the warranty coverage.
WARRANTY REIMBURSEMENT PROCEDURES
The following procedures must be followed to receive The Panda Project, Inc.
warranty reimbursement:
1. All warranty reimbursements MUST be submitted on the standard "Computer
Industry" Parts Exchange/Warranty Reimbursement Form to be provided by The Panda
Project.
2. The Parts Exchange/Warranty Reimbursement Form must be completed in full with
proof of purchase attached to the form.
3. All service parts used must be shipped to and received by The Panda Project
at the below listed address for reimbursement payment to be processed. A copy of
the Parts Exchange/Warranty Reimbursement Form MUST accompany all parts
shipments:
B-1
EXHIBIT B
WARRANTY REIMBURSEMENT PROGRAM (CONTINUED)
THE PANDA PROJECT, INC.
ATTN: WARRANTY PARTS RETURN/REIMBURSEMENT
0000 XXXXXXX XXXXX, XXX 00
XXXX XXXXX, XXXXXXX 00000
4. Warranty reimbursement will be paid only when the Parts Exchange/Warranty
Reimbursement Form has been completed AND the replaced service part has been
received by The Panda Project.
B-3
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
EXHIBIT C
THE PANDA PROJECT, INC. CONFIDENTIAL
SPARE PARTS LIST
----------------- ------------------------------------------------------ --------------------- ------------
48010000 Battery $***
----------------- ------------------------------------------------------ --------------------- ------------
48200004 Keyboard PANDA $***
----------------- ------------------------------------------------------ --------------------- ------------
48200005 Mouse $***
----------------- ------------------------------------------------------ --------------------- ------------
48220004 DAT Drive HP $***
----------------- ------------------------------------------------------ --------------------- ------------
48220009 Hard Drive 2GB Fast SCSI-7200 SEAGATE
----------------- ------------------------------------------------------ --------------------- ------------
48220010 Hard Drive 4GB FAST scsi-7200 SEGATE $***
----------------- ------------------------------------------------------ --------------------- ------------
48220025 CD-ROM Drive SONY $***
----------------- ------------------------------------------------------ --------------------- ------------
48220026 3.5 Floppy Drive SONY $***
----------------- ------------------------------------------------------ --------------------- ------------
48220032 2 GB Fast & Wide SCSI hard drive SEGATE $***
----------------- ------------------------------------------------------ --------------------- ------------
48220033 4 GB Fast & Wide SCSI hard drive SEGATE $***
----------------- ------------------------------------------------------ --------------------- ------------
48230002 60 MM Fan $***
----------------- ------------------------------------------------------ --------------------- ------------
48230007 400 W. Power Supply TEKTRIS $***
----------------- ------------------------------------------------------ --------------------- ------------
48230012 80 MM Fan $***
----------------- ------------------------------------------------------ --------------------- ------------
48240061 12 V DC Motor $***
----------------- ------------------------------------------------------ --------------------- ------------
48260001 Backplane System Board (REV 5.X OR HIGHER) PANDA $***
----------------- ------------------------------------------------------ --------------------- ------------
48260025 SCSI Controller, Adapter PCI ADAPTEC $***
----------------- ------------------------------------------------------ --------------------- ------------
48260029 32MB Memory Module IBM $***
----------------- ------------------------------------------------------ --------------------- ------------
48260030 64MB Memory Module IBM $***
----------------- ------------------------------------------------------ --------------------- ------------
48260032 Network Interface Card, D-Link D-Link $***
----------------- ------------------------------------------------------ --------------------- ------------
48260033 Bridge Card PANDA $***
----------------- ------------------------------------------------------ --------------------- ------------
48260040 100 MHz. CPU Card PANDA $***
----------------- ------------------------------------------------------ --------------------- ------------
48260056 Video Adapter Card BOCA RES. $***
----------------- ------------------------------------------------------ --------------------- ------------
48260072 Fast Ethernet Adapter 00/000 XXXXXX $***
----------------- ------------------------------------------------------ --------------------- ------------
48260073 Ethernet Adapter, 4-Ch TX400 Quartet COGENT $***
----------------- ------------------------------------------------------ --------------------- ------------
48260086 DEC Alpha bridge board PANDA $***
----------------- ------------------------------------------------------ --------------------- ------------
48260090 DEC Alpha CPU board w/L3 cache PANDA $***
----------------- ------------------------------------------------------ --------------------- ------------
48260098 166 MHz. CPU Card PANDA $***
----------------- ------------------------------------------------------ --------------------- ------------
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
----------------- ------------------------------------------------------ --------------------- ------------
48260118 Modem, 28.8 BOCA RES. $***
----------------- ------------------------------------------------------ --------------------- ------------
48260119 Video Adapter Card DYN.PIC $***
----------------- ------------------------------------------------------ --------------------- ------------
48260121 Mylex RAID controller w/ 4 MB EDRAM MYLEX $***
----------------- ------------------------------------------------------ --------------------- ------------
48260123 Adaptec 2940W SCSI controller ADAPTEC $***
----------------- ------------------------------------------------------ --------------------- ------------
48280004 Staircase Signal Cable PANDA $***
----------------- ------------------------------------------------------ --------------------- ------------
48280007 HDD Signal Cable PANDA $***
----------------- ------------------------------------------------------ --------------------- ------------
48280019 Speaker Assembly 2/Cable PANDA $***
----------------- ------------------------------------------------------ --------------------- ------------
48280042 Power Cable PANDA $***
----------------- ------------------------------------------------------ --------------------- ------------
48280055 Fast & Wide SCSI cable PANDA $***
----------------- ------------------------------------------------------ --------------------- ------------
EXHIBIT D
CONSIGNED INVENTORY AGREEMENT
CONSIGNOR: The Panda Project Inc.
000 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
CONSIGNEE: Siemens Nixdorf Information Systems, Inc.
000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xx. 00000
1.0 SCOPE
The terms expressed below form the key elements of an agreement between
Siemens Nixdorf Information Systems, Inc. ("Siemens") and The Panda Project,
Inc. ("Panda"), establishing a service parts consignment inventory program for
the various items utilized in the servicing of Archistrat computer servers and
workstations.
2.0 TERM
The term of this agreement shall be concurrent with the Term of the
Reseller Agreement. This agreement will be considered in full force unless
terminated as per the termination terms of the Reseller Agreement. A three (3)
month pilot program will be used to demonstrate the viability of the process.
After such three-month pilot program, the parties shall consult to determine the
feasibility of continuing the program.
In the event this agreement is terminated, all service parts inventory
is to be returned to Panda within 10 working days, freight collect. All
inventory not returned to Panda after this time will be considered Siemens'
inventory and payment will be due as noted in Section 6.0.
3.0 SERVICE PARTS INVENTORY LEVELS
Subject to the terms of the Reseller Agreement, Panda will stock
service parts on consignment at Siemens. Panda and Siemens will assign a
specific person from each company that will be responsible for the levels of
inventory, the accuracy of the inventory and demand requirements for the
inventory. Should a need arise to adjust any of the levels or type of inventory
required to support customer service requirements, a mutually agreeable
adjustment will be made to this agreement and an official change made.
D-1
4.0 INVENTORY LOCATION/SECURITY
Siemens will provide a security location at:
Cerplex
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xx. 00000
Siemens will conduct all physical inventories and stock inventory under
lock and key to safeguard the inventory. It is the responsibility of Siemens to
maintain the security of this location. Panda will retain access privileges and
periodically conduct security audits of this location to insure compliance. All
breaches in security must be reported to Panda immediately and a full security
report and inquiry will be conducted between Panda and Siemens.
Siemens will be responsible for theft, loss or damages while the
inventory resides in the consignment location as previously stated. The dollar
amount of any loss will be determined by the current Panda standard cost at the
time of the loss.
Siemens will physically count inventory using Panda service part
numbers on a regular basis and a full cycle count program will be utilized for
this location. Any discrepancies between book quantity on hand and the actual
quantity on hand will be resolved to both parties satisfaction within
forty-eight (48) hours.
Siemens will also maintain its own inventory control procedures and
records for the consigned service parts inventory and will allow Panda to audit
these records as required. Siemens will submit their formal cycle count
procedures that are currently in place. They are considered part of this
agreement.
Siemens represents and warrants that it has, and during the term of
this agreement will have, adequate insurance to cover all consigned inventory
hereunder against loss for its full replacement value.
5.0 PURCHASE ORDERS
Panda will provide a purchase order showing all parts that are expected
to be received at the consignment location. Upon receipt of the service parts,
Siemens will inspect for freight damage, conduct a physical count to the packing
slip counts and notify Panda of any discrepancies or shipment issues within
forty-eight (48) hours from receipt. Should any of the consigned service parts
in inventory require any further inspection, this will be defined by Siemens'
Quality Engineer and should be covered under Siemens' receiving inspection
criteria for the specific parts identified. Siemens will maintain a service
parts receiving log for all incoming shipments.
D-3
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
6.0 GENERAL
Any inventory that has not been returned to Panda as directed by this
agreement will be subject to billing by Panda. Pricing will be determined as set
forth in the Reseller Agreement. In addition to this, any consigned service
parts inventory will be subject to a handling charge of ***** of the list price
of the parts, as discounted pursuant to Section 3.6 of the Agreement.
Siemens shall, at Panda's request, execute and cooperate in the filing
of an appropriate statement under the Uniform Commercial Code evidencing the
consignment relationship created hereby.
7.0 REPORTING
A weekly service parts inventory report of the consigned location will
be required by Panda. It should clearly show the Panda service part numbers,
description of the product, quantity on hand and the date of the last cycle
count. Other reports will be required for DOA/Defective bad service parts
replaced on service hard calls. All in and out inventory must have inventory
tracking reports.
D-5
EXHIBIT E
EVALUATION EQUIPMENT AGREEMENT
The undersigned ("Customer") hereby acknowledges that the products
listed below (the "Equipment") will be delivered to ______________, located at
______________________, for an evaluation period not to exceed 60 days from the
date of receipt of equipment. The following terms and conditions are agreed upon
by both parties regarding the term, conditions and confidentiality of the
evaluation and use of the Equipment.
1. Customer agrees that the Equipment is on loan to Customer for the
sole purpose of performance testing, software compatibility, etc. The Equipment
is to be returned to Siemens Nixdorf in good condition, reasonable wear and tear
excepted. Customer further agrees that if, at the end of the test period, the
Equipment is not returned to Siemens Nixdorf, or Customer has not requested
additional time in writing, then Siemens Nixdorf will invoice the Customer at
the then current Siemens Nixdorf published list price of the Equipment. Siemens
Nixdorf will not invoice the Customer published list price if the Customer has
chosen Siemens Nixdorf and issued a purchase order for the Equipment. Siemens
would then invoice the Customer at the agreed upon purchase price. Siemens
Nixdorf has no responsibility whatsoever for Customer's results or claims
arising from test process. Testing is at Customer's risk and expense.
2. Siemens Nixdorf agrees to pay freight for the Equipment delivered to
Customer with the right to select the method and carrier for shipment. Customer
agrees to pay freight for the Equipment upon return to Siemens Nixdorf in the
event Customer does not elect to purchase the Equipment. Customer has no
ownership rights with respect to the Equipment.
3. Evaluation testing, test data and performance data on the Equipment
tested at Customer's site is confidential and proprietary information governed
by the terms of that certain nondisclosure agreement between the parties.
Siemens Nixdorf Information Systems, Inc.
Defined Equipment
Qty. Model Serial No. Description
E-1
The below authorized agents of Siemens Nixdorf Information Systems, Inc. and
Customer agree to the terms and conditions stated herein regarding the defined
Equipment.
SIEMENS NIXDORF INFORMATION CUSTOMER
SYSTEMS, INC.
By:_________________________ By:________________________
E-3
