EXHIBIT 10.14
CIPRICO, INC.
SILICON GRAPHICS AGREEMENT
This Agreement is effective this 29th day of January, 1998("Effective Date") by
and between Ciprico, Inc., having a principal place of business at 0000 Xxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxxxx 00000 X.X.X. ("Ciprico") and Silicon Graphics Inc.
(hereinafter referred to as SGI) having its principal place of business at 0000
X. Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000.
Ciprico and SGI agree as follows:
1. RESELLER APPOINTMENT
Ciprico hereby appoints SGI as an authorized non-exclusive Reseller with
respect to the sale of Ciprico Products specified in Attachment A (the
"Products"). These products, as described in Exhibit A1 (Product
Specifications) will be updated by Ciprico from time to time in writing as
Ciprico generally releases additional or modified Product configurations,
options, software, upgrades, and the like.
2. TERM
The term of this Agreement shall commence on the date first written above
(the "Effective Date") and shall continue in full force and effect until
January 28, 2001 (the "Initial Term"). At the end of the initial term,
this Agreement shall automatically renew from year to year on the
anniversary date, unless earlier terminated as provided hereinafter.
3. RELATIONSHIP OF THE PARTIES
SGI and Ciprico acknowledge that both parties are independent contractors.
SGI and Ciprico shall in no way represent itself nor permit any party
acting on its behalf to represent itself as a joint venturer, agent,
employee or general representative of each others company. SGI
acknowledges that its only authorized representation to third parties is to
identify itself as a Ciprico Reseller.
4. CIPRICO'S RESPONSIBILITIES
Consistent with the terms of this Agreement, Ciprico agrees that it will do
the following:
4.1 Sell the Products to SGI for their resale or lease to end users or
other customers. SGI's resale or lease prices shall be under the sole
control of SGI.
4.2 Provide SGI with such product sales training, collateral, and sales
lead's, as SGI and Ciprico deem appropriate.
4.3 Keep SGI regularly advised of changes in published specifications of
the Products and provide SGI with at least 60 days prior written
notice.
4.4 Exchange information on product applications, product positioning, and
market research in our mutual product market segments.
4.5 Provide technical service training either at SGI's facilities or at
Ciprico headquarters at no charge, once per year. Provide a method
for technical
assistance and problem escalation for SGI's "Front Line"
support program. This is to include a "spare parts" method of
availability for SGI and it's customer base as referenced in
Attachment D. Provide expansive written and or web-based customer
support material.
4.6 Provide SGI with secure access to Ciprico sales web site.
4.7 Provide Product that meets worldwide agency standards i.e. UL, CUL,
TUV, Standard IEC950/Directive EN60950 approvals.
4.8 Ciprico agrees to adhere to the conditions of mutual non-disclosure
agreement as referenced in attached C paragraph 2.
5. SGI'S RESPONSIBILITIES
In accordance with the terms of this Agreement, SGI agrees that it will do
the following:
5.1 SGI agrees to adhere to the conditions of mutual non-disclosure
agreement as referenced in Attachment C.
5.2 Maintain an SGI staff of Ciprico trained "technical" support personnel
to support its customers.
5.3 Make a reasonable business effort to attain mutually agreed upon sales
objectives as specified in Attachment B. Ciprico and SGI will review
the sales objectives and pricing on a quarterly basis.
5.4 Refrain from modifying Ciprico's Products, trademarks or copyright
notices in any fashion or de-compiling, reverse engineering, or
otherwise extracting software code in human or machine readable form
from the Products without prior written approval of Ciprico.
5.5 SGI acknowledges that the Products are subject to the jurisdiction of
the United States and the Export Administration Regulation, Part
730-774, et seq.; that the subject SGI sale, transfer, export or
re-export of Products may require the prior written approval of the
United States Government; and that SGI assumes all responsibility for
obtaining the required authorization. SGI also agrees not to sell,
transfer, export or re-export Products to any party subject to a
denial of United States export privileges (refer to "Denied Persons
List" currently in effect; contained in Supplement 1 to Part 764, US
Export Administration Regulations).
5.6 Refrain from copying, duplicating, or otherwise reproducing software
contained in the Products without prior written approval of Ciprico.
6. PRICE AND DISCOUNTS
6.1 SGI prices for the Products are specified in Attachment A. All prices
for the Products are exclusive of any applicable value added taxes,
sales taxes, transport costs, custom duties and insurance costs for
which SGI shall be additionally liable. Ciprico is responsible for
taxes based on Ciprico's income.
6.2 Ciprico reserves the right to change prices at any time by giving not
less than thirty (30) days written notice to SGI. Such changes in
price will be subject to the price protection provision set forth in
Section 7.
7. PRICE PROTECTION
7.1 In the event of a price increase, Ciprico will honor all orders with
acknowledged delivery dates at the old price.
7.2 In the event of a price reduction, SGI shall be entitled to the new
price on all open orders.
8. REPORTS
SGI agrees to provide Ciprico every three (3) months with a forecast for
Product covering the subsequent twelve (12) month period. It is understood
and agreed, however, that the forecast and amendments thereto do not
constitute in any way a promise of commitment or obligation of SGI with
respect to the quantity or type of Product to be purchased under this
Agreement.
9. DELIVERY AND ACCEPTANCE
9.1 The Products and services shall be ordered by purchase orders and
change orders thereto (hereinafter individually or collectively
"Orders") issued by SGI personnel. Each Order shall reference this
Agreement and shall specify quantity, configuration, prices, delivery
dates and destination, or service as applicable, and other such
matters necessary for the individual transaction to be adequately
described. All Orders, including those issued by SGI in anticipation
of the signing of this Agreement, and reasonable related instructions
which are consistent with the terms of this Agreement are deemed
accepted by Ciprico upon acknowledgment thereof and are covered
hereby.
Ciprico shall acknowledge receipt of each SGI Order within two (2)
business days after receipt and shall deliver Ordered Units in
accordance with the Delivery dates indicated on the Orders provided
such dates are consistent with the Order lead times, which is thirty
(30) days for Units. If, within two (2) business days of an SGI
Order, Ciprico determines that SGI Ordered Units can not be delivered
within thirty (30) days, due to shortages of Product or Software,
Ciprico will notify SGI of the revised Order lead time and SGI may
have the option to cancel the Ordered Units in writing to Ciprico
within two (2) business days of Ciprico notification. Ciprico shall
make reasonable efforts to comply with SGI Orders which request
Delivery of Units in less than thirty (30) days.
9.2 Shipment shall be made FOB (FCA - Free Carrier for International
orders) Ciprico's factory, Plymouth, Minnesota, U.S.A., freight
collect, and title thereto and risk of loss or damage shall pas to SGI
on delivery of Products to the carrier. SGI reserves the right to
select common carrier and method of shipment. If Ciprico is late in
shipping any Products at F.O.B. point as per Ciprico order
acknowledgement to SGI, SGI may require Ciprico to ship some or all of
such Products by air freight or other premium mode of transportation
and Ciprico shall pay the cost differential between the normal and
premium mode. If Ciprico is more than 20 days late in delivery
against an acknowledged order, SGI reserves the right to cancel the
order without charge.
9.3 SGI shall promptly and thoroughly inspect all Products upon arrival
and shall notify Ciprico in writing within fourteen (14) days of any
shipping discrepancies, packing shortages or other non-conformities of
the Products, which are reasonably discoverable upon such inspection.
Such inspection and/or lack of notification by SGI cannot limit
Ciprico's warranty obligation.
9.4 In the event that a Customer cancels or defers an order for Product
that it had
placed with SGI, SGI may cancel or defer an Order for an identical
product placed with Ciprico prior to Delivery, by providing to Ciprico
in writing a copy of the Customer's cancellation request or deferral.
If the SGI deferral request is received by Ciprico within a fourteen
(14) working day period of the calendar quarter end, SGI may be
subject to reasonable re-stocking charges as determined by Ciprico.
9.5 This Agreement states the terms and conditions applicable to the
Orders and replaces in their entirety both the pre-printed terms and
conditions appearing on any SGI Order forms and any additional terms
or changes appearing on Ciprico's acknowledgment of the Orders.
10. PAYMENT TERMS AND DEFAULT
The payment terms shall be Net 45 days after invoice date. The invoice
shall reference the detailed line items of the SGI Order placed hereunder.
SGI will be responsible for all original freight and shipping charges,
unless Ciprico is late delivering any Products at F.O.B. point, in which
case Ciprico shall be responsible for any additional freight and shipping
charges as noted in 9.2.
11. WARRANTY
Ciprico's sole and exclusive warranty to SGI is that all products to be
delivered hereunder will be free of defects in material and workmanship for
a period of one (1) year from the date of shipment to SGI or SGI designated
shipping area.
Ciprico warrants that it's product will meet the Ciprico Product
Specification for each product that SGI purchases or will purchase in the
future.
Ciprico will honor all warranties only on a "return to factory" basis
shipped at SGI expense. Ciprico's sole obligation (and exclusive remedy)
hereunder shall be to repair or replace any defective component and pay
transportation costs for such replacement at no charge to SGI, who shall at
it's own expense provide labor for removal of the defective product and
installation of it's replacement.
If Ciprico or SGI detects a recurring pattern of defects or a material
safety problem in any of the Products provided hereunder, Ciprico shall
investigate and determine the root cause of the defect. Upon finding that
a recurrent defect or a material safety problem exists, which may cause
substantial problem, Ciprico shall provide, in an orderly fashion, a
replacement solution to the recurrent defect or material safety problem.
All costs incurred by SGI in performing the replacement, including labor
costs if an off site action is required, will be borne by Ciprico. Ciprico
may change the terms of the standard warranty at any time, effective upon
thirty (30) days written notice to SGI.
Ciprico acknowledges Year 2000 Compliance as referenced in Attachment C.
EXCEPT AS EXPRESSLY PROVIDED IN THE APPLICABLE STANDARD WARRANTY POLICY,
CIPRICO MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESSED OR
IMPLIED, EITHER BY LAW OR BY STATUTE, WITH RESPECT TO THE PRODUCTS, WHETHER
AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER
MATTER. THE WARRANTY REMEDIES DESCRIBED IN THIS PARAGRAPH REPRESENTS SGI'S
EXCLUSIVE REMEDIES FOR BREACHES OF WARRANTY.
12. PRODUCT CHANGES AND DISCONTINUANCE OF PRODUCT
Ciprico will provide SGI with the opportunity, in advance, to provide input
to Ciprico planned Product marketing activity specifically addressed at the
sale of Product. Ciprico will give SGI the opportunity to participate in
discussions with regard to Product changes and will notify SGI promptly
before any significant product changes. Ciprico also shall notify SGI at
least ninety (90) days prior to the discontinuance of manufacture or sale
of any Products.
13. LIMITATION OF LIABILITY
13.1 EXCEPT FOR MATTERS ARISING OUT OF SECTION 14, CIPRICO'S LIABILITY ON
ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF, OR
RESULTING FROM THE PRODUCTS OR SERVICES FURNISHED HEREUNDER, SHALL IN
NO CASE EXCEED THE PRICE OF THE SPECIFIC PRODUCT OR SERVICE WHICH
GIVES RISE TO THE CLAIM. EXCEPT AS TO TITLE, ANY SUCH LIABILITY SHALL
TERMINATE UPON EXPIRATION OF THE STANDARD WARRANTY POLICY PROVIDED FOR
IN CIPRICO'S THEN-EFFECTIVE WARRANTY POLICY. IN NO EVENT SHALL
CIPRICO HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL
DAMAGES OF ANY DESCRIPTION, INCLUDING BUT NOT LIMITED TO LOST PROFITS
OR DAMAGE TO REPUTATION.
13.2 Neither SGI nor Ciprico shall, by reason of the discontinuance or
change of any Products or the termination or non-renewal of
Resellership of Products be liable to the other for compensation,
reimbursement or damages on account of the loss of prospective profits
on anticipated sales, or on account of expenditures, investments,
leases, or commitments in connection with the business or good will of
SGI or Ciprico.
13.3 SGI hereby waives application of any provision of law now existing or
hereafter in force in any jurisdiction where SGI's offices are located
which restricts or imposes conditions upon Ciprico's right to
terminate or not to renew this Agreement or which would require
Ciprico to pay any sums to SGI upon such termination or non-renewal.
14. PATENT INDEMNTITY
Ciprico will defend at its own expense, and indemnify SGI against any
action brought against SGI to the extent that it is based on a claim that
the Products supplied by Ciprico or the operation of such Products for
their intended use pursuant to Ciprico's specifications, infringe a patent,
copyright, trademark, trade secret or other intellectual property owned by
anyone other than Ciprico; and Ciprico shall pay those costs and damages
finally awarded against SGI or which result from a settlement thereof. SGI
must provide prompt notice of any claim and reasonably cooperate in
defense, giving Ciprico the right to control any litigation.
15. TERMINATION
15.1 The SGI Agreement hereby created may be terminated as follows:
A. Either party may terminate this Agreement without cause, by
providing the other party written notice not less than ninety
(90) days prior to termination, such written notice identifying
the party's intent to withdraw from their obligations and
responsibilities under this Agreement. Termination will not
affect open SGI purchase orders.
B. Should either party violate any provision of this Agreement, this
Agreement will terminate without further notice if the defaulting
party fails to fully cure such default within thirty (30) days
after the giving of written notice by the non-defaulting
identifying the breach and demanding that it be cured, except
that the cure period for a default on any payment due for
Products shall be fifteen (15) days.
C. By either party, upon one day's written notice in the event that
the other Party becomes insolvent, ceases to function as a going
concern or to conduct its operations in the normal course of
business, files or has filed against it a petition in bankruptcy,
or makes an assignment for the benefit of creditors, or has a
receiver or trustee appointed for any material part of its
properties.
16. ASSIGNMENT
Neither SGI nor Ciprico may assign or delegate its obligations hereunder to
any third party without the prior written consent of either party. This
Agreement shall be binding upon and inure to the benefit of the permitted
successors and assigns of the parties hereto.
17. SEVERANCE
In the event any part of this Agreement is held by the final order of any
court, tribunal or administrative agency having jurisdiction over the
Agreement or the subject matter hereof to be invalid, contrary to the law
or public policy, or otherwise unenforceable, such part or parts shall be
severed herefrom and shall not affect any other part or parts of this
Agreement.
18. NOTICES
All notices required or permitted by this Agreement shall be addressed to
the recipient at the address designated above, or any other address
hereafter designated in writing by such party, shall be written in the
English language, and shall be either hand delivered, mailed by certified
mail or express mail return receipt requested. Such notices shall be
deemed given when mail is delivered, or hand delivered, as the case may be.
19. NO THIRD PARTY BENEFICIARIES
The parties do not intend that anyone other than Ciprico, SGI and their
permitted successors and assigns have any rights relating to or arising out
of this Agreement. Without listing the generality of the foregoing, no
other distributor, SGI or representative of Ciprico shall have any rights
relating to or arising out of this Agreement.
20. U.S. EXPORT REGULATIONS
SGI agrees to adhere to all provisions of the U.S. Laws and Regulations in
effect from time to time regarding export licenses and the control and
regulation of the export and re-export of products or technical data
supplied to SGI. In the event that SGI does not or cannot comply with all
substantive provisions required to obtain an Individual Validated Export
license or in the event Ciprico's export privileges are restricted or
withdrawn, Ciprico will not be responsible for damages of any kind to SGI.
21. FORCE MAJEURE
Ciprico and or SGI shall not be deemed in breach hereof on account of any
delay in delivery or other performance caused in whole or in part by, or
otherwise materially
related to, the occurrence of any contingency beyond Ciprico's and or SGI's
control, including but not limited to: war or hostility; crime, tort or
unlawful act; failure or delay in land, water or air transportation; act of
any government or agency, subdivision or branch thereof; judicial action;
strikes or other labor disputes; accident, fire, explosion, flood, storm or
other acts of God; shortage of labor, fuel, power, inventory or machinery;
technical failure; delay or failure to perform by any supplier; or, in
general, any contingency whatsoever (whether similar or dissimilar to those
set forth herein) where Ciprico and SGI have exercised ordinary care in the
provision thereof.
22. ENTIRE AGREEMENT AND NONWAIVER
This Agreement shall supersede and make inoperative as of this date any
oral or written sales agency, Resellership or similar agreement heretofore
entered into between the parties hereto with respect to the Products. This
Agreement contains the entire and only agreement between the parties hereto
with respect to the Products or any other materials hereafter supplied by
Ciprico to, and no modification or waiver of any of the provisions hereof,
or any representation, promise or addition hereto, or waiver of any breach
hereof, shall be binding upon either party unless made in writing and
signed by the party to be charged thereby. No waiver of any particular
breach shall be deemed to apply to any other breach, whether prior or
subsequent to the waiver. Without limiting the generality of the
foregoing, no term (except quantity and product description) appearing on
SGI's purchase order or other order document shall be binding upon Ciprico
unless specifically accepted by SGI in a writing signed by its Vice
President-General Manager and by Ciprico in a writing signed by its
President, or its appropriate Vice-President-General Manager.
23. CONTROLLING LAW AND JURISDICTION
This Agreement will be deemed to have been made in the State of Minnesota,
U.S.A. and shall be governed by, construed and interpreted under the laws
of the State of Minnesota (but not its conflict of law rules). With
respect to the enforcement of this Agreement or any legal action brought on
account of or in connection with this Agreement, SGI hereby consents that
the jurisdiction of the U.S. District Court for the State of Minnesota and
agrees that Ciprico may effect valid service of process on SGI by certified
mail at SGI's last known address or by any other means authorized under and
pursuant to applicable law before the commencement of action before such
court.
24. REGISTRATION AND APPROVAL
If this Agreement or the relationship established hereunder must be
approved and/or registered with any governmental authority with
jurisdiction over SGI, SGI shall bear all costs and expenses thereof, but
all documents submitted to such governmental authorities must be approved
in advance by Ciprico.
Agreed to by:
SGI: CIPRICO, INC.:
By: /s/ Xxxx Xxxx Xxxxxx By: /s/ Xxxxxx X. Kill
----------------------------- --------------------------
TYPED NAME Xxxx Xxxx Xxxxxx TYPED NAME Xxxxxx X. Kill
TITLE: Executive Vice President -SSBU TITLE: President and CEO
ADDRESS: 0000 X. Xxxxxxxxx Xxxx. ADDRESS: 0000 Xxxxxx Xxxxx, Xxx. #00
Xxxxxxxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
U.S.A.
