1
EXHIBIT 10.17
SKYSTREAM CORPORATION
NONEXCLUSIVE INTERNATIONAL
VALUE ADDED RESELLER ("VAR") AGREEMENT
This Agreement, dated December 1, 1999, is made between SkyStream Corporation
("SKYSTREAM"), a California corporation doing business at 000 Xxxxx Xxxxxx,
Xxxxx X, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 and International Datacasting
Corporation, a corporation organized under the laws of Canada ("Reseller"),
doing business at 0000 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxx, Xxxxxx, X0X 0X0.
RECITALS
A. SKYSTREAM sells those certain digital broadcast networking products known
as the Integrator product family, as defined in Exhibit C ("Products" as
further defined below).
B. Reseller wishes to have certain non-exclusive rights to market and
distribute such Products worldwide in combination with Reseller's products.
THEREFORE, SKYSTREAM and Reseller agree as follows:
1. DEFINITIONS.
1.1 Dollars. "Dollars" means United States Dollars.
1.2 End User. "End User" means a customer of Reseller, who is authorized
by an end user software license agreement to use the Software on the
purchased Products for the End User's internal business purposes.
1.3 Effective Date. "Effective Date" means the date first written above.
1.4 Intellectual Property Rights. "Intellectual Property Rights" means
patent rights (including but not limited to rights in patent
applications or disclosures and rights of priority), copyright
(including but not limited to rights in audiovisual works and moral
rights), trade secret rights, and any other intellectual property
rights recognized by the law of each applicable jurisdiction.
-1-
2
1.5 Marks. "Marks" means SKYSTREAM's trademarks, trade names, service
marks, and/or service names.
1.6 Reseller Products. "Reseller Products" means the computer software
and/or hardware and related documentation that are distributed by
Reseller in combination with the Products.
1.7 Products. "Products" means SKYSTREAM Integrators, as listed in
Exhibit C, including accompanying Software and any additions and
enhancements provided for use with the units.
1.8 Software. "Software" means SKYSTREAM Integrator software as listed in
Exhibit C.
1.9 Source Code. "Source Code" means software in human-readable form,
including programmers' comments, data files and structures, header
and includes files, macros, object libraries, programming tools not
commercially available, technical specifications, flowcharts and
logic diagrams, schematics, annotations and documentation reasonably
required or necessary to enable an independent third party programmer
with reasonable programming skills to create, operate, maintain,
modify and improve the software without the help of any other person.
2. DISTRIBUTION OF PRODUCTS
2.1 Reseller Appointment. SKYSTREAM hereby appoints Reseller as a
nonexclusive reseller of the Products to End-Users for End User's
internal use in conjunction with Reseller Products.
2.2 Added Value. In the exercise of Reseller's rights under this
Agreement, Reseller will sell the Products to the End User usually in
combination with Reseller Products.
2.3 Relabeling. Subject to prior approval SKYSTREAM, Reseller may relabel
the Products with Reseller's name and logo.
2.4 Documentation. Subject to the terms of this Agreement, SKYSTREAM
grants Reseller a nonexclusive license during the term of this
Agreement to use, modify, create derivative works of and distribute
SKYSTREAM's documentation for the Products to the End User. SKYSTREAM
will make available SKYSTREAM's End User documentation to Reseller, as
it is updated and modified from time to time, without additional
charge. Reseller will provide copies of such modifications to
SKYSTREAM upon SKYSTREAM's request.
-2-
3
2.5 Marketing Collateral. SKYSTREAM agrees to sell, subject to availability,
copies of its marketing literature to Reseller on an at-cost basis.
SKYSTREAM reserves all rights associated with such marketing literature.
Reseller agrees to obtain prior written approval of SKYSTREAM's Vice
President of Marketing for all marketing literature it shall prepare that
pertain to the Products.
2.6 Grant of License. Subject to the terms of this Agreement, SKYSTREAM
grants Reseller a limited license to use the Software in connection with
the demonstration of the products and in connection with the configuration
and support of the Products for End Users. All such use shall be subject
to the terms of the End User Software License attached hereto as Exhibit
A.
2.7 No Sale of Services. Reseller will not use the Products in any manner to
provide service bureau, time sharing, or other computer services to third
parties.
2.8 No Reverse Engineering. Reseller will not disassemble, decompile, or
reverse engineer the Products.
2.9 Limited Rights. Reseller's rights in the Products will be limited to
those expressly granted in this Agreement.
2.10 Terms and Conditions of Sale. Except as modified herein, all sales to
Reseller are subject to SKYSTREAM's Terms and Conditions of Sale, a copy
of which is attached hereto as Exhibit B, and which is made a part of
this Agreement as if set forth herein.
2.11 Pricing to Reseller. The price paid by Reseller to SKYSTREAM shall be
established at the time of acceptance of Reseller's purchase order. [*].
SKYSTREAM reserves the right to adjust the prices paid by Reseller at
SKYSTREAM's discretion with 60 days notice. Nothing in this Agreement will
be construed to restrict Reseller's ability to set prices to its
customers.
3. SOFTWARE
3.1 Limited Distribution. Reseller is permitted to market and distribute
SKYSTREAM Software only in connection with the sale of the Products to
the End User.
3.2 End User Software License.
(a) Reseller agrees:
(i) to include the following language in all sales quotations and
offers to sell the Products:
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
-3-
4
"The [name of Product] is sold subject to the terms on an End
User Software License. The use of the [name of Product] is
contingent upon the acceptance by the purchaser of the terms
of the End User Software License."
(ii) to provide a copy of the End User Software License, in the
form attached hereto as Exhibit A, to any potential purchaser
who shall request a copy prior to sale;
(iii) to package and to install the Products in such a manner that
Reseller's customer is provided with a meaningful opportunity
to review and agree to the End User Software License before
installing or using any of the Products; and
(iv) to agree to accept for return and refund any unused Products
in the event that Reseller's customer does not agree to accept
any of the terms of the End User Software License or of the
terms of any other software license required to use the
Products.
In consideration of SkyStream's not requiring a written End-User Software
License signed by Reseller's customer as a precondition to the sale or
transfer of the Products, Reseller agrees to indemnify SkyStream for any
and all damages that may arise as a result of (i) Reseller's breach of
Section 3.2(a).
3.3 License Only. Notwithstanding the use herein of the word "sell" and
variants thereof, all Software is licensed to the Reseller and the End
User and is not sold. SKYSTREAM, or the licensors through which SKYSTREAM
obtained the rights to distribute Software, retain title to the Software,
whether the Software is separate or combined with any other products,
including Reseller Products, and Reseller shall transfer Software only to
the extent that such transfer is incidental to the resale or lease of the
Products. The End User is licensed by SKYSTREAM directly to use the
Software solely in conjunction with the use of the Products and further
subject to the terms of the End User Software License.
3.4 Proprietary Software. The Software is proprietary to SKYSTREAM and/or its
suppliers and is copyrighted. Without SKYSTREAM's prior written approval,
Reseller shall not separate the Software from the Products as shipped by
SKYSTREAM, nor shall Reseller disassemble, de-compile, reverse-engineer,
copy, modify, or otherwise change any of the Software or its form.
Reseller shall protect the Software from any disclosure or use in
violation of this Agreement. Reseller shall not be entitled to receive
Source Code.
-4-
5
3.5 Software Revisions. In the event SKYSTREAM, at its sole discretion,
provides Reseller with revised copies of the Software, Reseller shall,
according to SKYSTREAM's instructions, replace copies of the Software from
the Products with the revised Software. Reseller shall dispose of the
replaced Software in accordance with SKYSTREAM's instructions. SKYSTREAM
shall have the right to inspect Reseller's inventory of Software and
replaced Software at any time on reasonable notice.
4. MAINTENANCE, SUPPORT, AND TRAINING.
4.1 By Reseller. Reseller will be responsible for providing the following
support to the End User: installing the Products as needed; training the
End User; and providing all direct first level technical support to the End
User, including problem analysis and using its reasonable efforts to
provide solutions and error correction for the products consistent with
Reseller's standard service and support policies and procedures.
Reseller agrees to provide a substantially similar level of support to that
SkyStream provides to its direct customers, which must include, at a
minimum, 24x7 telephone support, and at least 2 hours of on-site training
to the End User. A copy of SkyStream's direct SkySupport service agreement
is attached in Exhibit E. Reseller agrees to use best efforts to ensure
that training of Reseller's personnel occurs within the first 90 days of
the execution of this Agreement. Reseller agrees to maintain a minimum of 2
fully trained service personnel at all times, which personnel must attend
training, to be paid for by Reseller, at least once every 12 months.
4.2 By SKYSTREAM. SKYSTREAM will not be responsible for providing support to
the End User. SKYSTREAM will provide Reseller with:
(i) commercially reasonable efforts to correct any non-conformity with
the Software Feature Specification Document for the applicable
version of the Software:
(ii) technical training, to consist of one training class given over one
and one-half (1 1/2) eight-hour days and which may be attended by up
to three Reseller personnel onsite at SKYSTREAM's Mountain View,
California office, provided that Reseller pays the travel and living
expenses of such personnel designated to receive the training, or at
Reseller's headquarters, provided that Reseller pays the travel and
living expenses of SKYSTREAM's training personnel; training class for
additional personnel will be quoted by SKYSTREAM separately;
(iii) upon continued payment of an annual Maintenance Fee (the "Maintenance
Fee") in the amount currently set forth on Exhibit D, as SKYSTREAM
may change from time to time, payable in full with each sale to
Reseller and
-5-
6
thereafter on the nearest of February 15, May 15, August 15 and
November 15 following the one year anniversary of the date of
each sale to Reseller, SKYSTREAM agrees to provide reasonable
access to SKYSTREAM's technical personnel for inquiries from
Reseller relating to the Products during standard SKYSTREAM
business hours, generally Monday through Friday from nine a.m. to
five p.m. Pacific Standard Time, and access to SKYSTREAM's
technical call center 24 hours a day, 7 days a week, where
SKYSTREAM agrees to respond to any Reseller inquiry within four
business hours of initial call placement. In the case of upgrades
to a previously purchased Product, the Maintenance Fee shall be
payable on the upgrade at the time of sale to Reseller and
thereafter at the time the Maintenance Fee is payable on the
Product for which the upgrade was purchased. Payment of this
recurring Maintenance Fee does not entitle Reseller or End User
to, and shall not be construed as either full or partial payment
for, software upgrades with new functionality as defined by
SKYSTREAM;
(iv) upon fourteen days notice, technical consulting services at a
location to be designated by Reseller, at SKYSTREAM's current
hourly rate for such services as may be adjusted by SKYSTREAM
from time to time, provided that Reseller shall also reimburse
SKYSTREAM for all associated travel and living expenses in
connection with such services. SKYSTREAM's current technical
consulting hourly rate is included on SKYSTREAM's price list for
sales to Resellers, a copy of which is attached hereto as Exhibit
D.
4.3 Repairs Support. SKYSTREAM shall provide repair or replacement support
for all equipment provided, at SKYSTREAM's then-current prices,
pursuant to this Agreement for a period of at least five (5) years
from delivery of a purchased unit, provided, however, that such
replacement support may consist of equipment with comparable
functionality as determined at SKYSTREAM's sole discretion.
4.4 Quality Control System. Upon reasonable notice, SkyStream agrees to
provide Reseller reasonable access to the manufacturing areas of
SkyStream's facility for purposes of observing SkyStream's quality
control procedures.
5. CONFIDENTIALITY.
5.1 Obligations. Each party agrees that it will not disclose to any third
party or use any Products or other Confidential Information disclosed
to it by the other party, except to carry out its rights and
obligations under this Agreement, and that it will take all reasonable
measures to maintain the confidentiality of all Confidential
Information in its possession or control, which will in no event be
less than the measures it uses to maintain the confidentiality of its
own information of similar importance. Confidential Information
includes all information designated by a party as
-6-
7
confidential or proprietary within a reasonable time of its disclosure
or which a reasonable person would expect to treat as confidential.
5.2 Exceptions. "Confidential Information" will not include information
that:
(i) is in or enters the public domain without breach of this
Agreement;
(ii) is lawfully obtained by the receiving party without breach of a
nondisclosure obligation;
(iii) is independently developed or already in the possession of the
receiving party as shown by the receiving party's
contemporaneous records; or,
(iv) is required by law to be disclosed, provided that the receiving
party gives prompt written notice of such requirement prior to
disclosure.
5.3 Injunctive Relief. Each party acknowledges that the improper
disclosure of the other's confidential information could cause
substantial harm to the other party that could not be remedied by the
payment of damages alone. Accordingly, either party will be entitled
to preliminary and permanent injunctive relief and other equitable
relief for any breach of this Agreement or misuse of Confidential
Information by SKYSTREAM, Reseller or the End User, as applicable.
6. INTELLECTUAL PROPERTY RIGHTS.
6.1 Notices. Reseller will not delete or in any manner alter the
Intellectual Property Rights notices of SKYSTREAM and its suppliers,
if any, appearing on the Products as delivered to Reseller.
6.2 Reseller's Duties. Reseller will take customary measures in the
marketing and distribution of the Products to protect SKYSTREAM's
Intellectual Property Rights in the Products, no less than the extent
to which Reseller protects its Intellectual Property Rights in
Reseller's Products, and will, to the extent lawful, report promptly
to SKYSTREAM any confirmed infringement of such rights of which
Reseller becomes aware.
6.3 Trademarks. Subject to the terms and conditions of this Agreement,
SKYSTREAM grants Reseller a nonexclusive license for the term of this
Agreement to use the Marks in Reseller's marketing of the Products,
provided that such use is in accordance with SKYSTREAM's trademark
usage guidelines then in effect. Such use must reference the Marks as
being owned by SKYSTREAM. Nothing in this Agreement grants Reseller
ownership or any rights in or to use the Marks, except in accordance
with this license, and Reseller's use of the Marks will inure to the
benefit of SKYSTREAM. The rights granted to Reseller in this license
will terminate upon any
-7-
8
termination or expiration of this Agreement. upon such termination or
expiration, Reseller will no longer make any use of any Marks.
SKYSTREAM will have the exclusive right to own, use, hold, apply for
registration for, and register the Marks during the term of, and
after the expiration or termination of, this Agreement; Reseller will
neither take nor authorize any activity inconsistent with such
exclusive right.
7. INFRINGEMENT INDEMNITY
7.1 Reseller Warranty.
(a) Reseller warrants that it owns all the rights to the
Confidential Information provided to SKYSTREAM, and that such
items are free of any restrictions, settlements, judgments, or
adverse claims. Reseller warrants that it has the full power and
authority to supply and to disclose such information to
SKYSTREAM.
(b) Reseller warrants that it has not improperly or unlawfully
acquired the information and processes submitted to SKYSTREAM.
7.2 Reseller Indemnification. Reseller agrees to indemnify SKYSTREAM
against, and to hold SKYSTREAM harmless of and from, any loss, cost,
damage, liability, suit, judgment, or expense, including legal fees
(collectively, "Harm") arising out of any breach of the warranties
set forth in Section 7.1.
7.3 SKYSTREAM Indemnification and Defense. Subject to the limitations
hereinafter set forth, Reseller agrees that SKYSTREAM has the right
to defend, or at its option to settle, and SKYSTREAM agrees, at its
own expense, to defend or at its option to settle, any claim, suit or
proceeding (collectively, "Action") brought against Reseller alleging
that the use or distribution of the Products infringes or
misappropriates any copyright or trade secret. SKYSTREAM shall have
sole control of any such Action or settlement negotiations, and
SKYSTREAM agrees to pay, subject to the limitations set forth in
Sections 7 and 8, any settlement costs or final judgment entered
against Reseller as a result of such infringement. Reseller agrees
that SKYSTREAM at its sole option shall be relieved of the foregoing
obligations unless Reseller notifies SKYSTREAM promptly in writing of
such Action and gives SKYSTREAM authority to proceed as contemplated
herein, and, at SKYSTREAM's expense, gives SKYSTREAM proper and full
information and assistance to settle and/or defend any such Action. If
the Products, or any part thereof, are, or in the opinion of
SKYSTREAM may become, the subject of any Action for infringement of
any intellectual property right, or if a judicial or other
governmental authority enjoins the use or distribution of Products as
a result of an Action defended by SKYSTREAM, then SKYSTREAM may, at
its option and expense; (i) procure for Reseller the right to
distribute or use, as appropriate, the Products; (ii) replace the
Products with other suitable Products; (iii) suitably modify the
Products; or (iv) if the foregoing
-8-
9
alternatives cannot be accomplished on a commercially reasonable
basis as determined in SKYSTREAM's sole discretion, require Reseller
to return such Products and refund the aggregate payments paid
therefor by Reseller, less a reasonable sum for use and damage.
Reseller shall indemnify and hold harmless SKYSTREAM from and against
any and all third party claims arising out of the distribution of
Products after SKYSTREAM has required Reseller to return such
Products or arising out of any exclusions to SKYSTREAM's
indemnification obligations set forth in Section 7.4. SKYSTREAM shall
not be liable for any costs or expenses incurred without its prior
written authorization.
7.4 SKYSTREAM limitations.
(a) Notwithstanding the provisions of Section 7.3 above, SKYSTREAM
assumes no liability for (i) any infringement claims (including
without limitation combination or process patents) arising out of
the combination of a Product or use with any other hardware,
software or other items not provided by SKYSTREAM to the extent
such infringement would not have occurred absent such combination
or use; (ii) the modification of the Products, or any part
thereof, unless such modification was made by SKYSTREAM; or (iii)
any infringement claims arising out of SKYSTREAM's compliance
with Reseller's specifications or designs.
(b) SKYSTREAM's obligation to indemnify Reseller does not extend to
any Action arising from a claim of infringement by the
manufacture, use or sale of Products that conform to any
technical standard adopted by an international organization such
as the International Organization for Standardization, the
International Electrotechnical Commission, and the CCITT/ITU,
including, without limitation, the MPEG, JPEG and H.261
standards.
7.5 Entire Liability. THE FOREGOING PROVISIONS OF THIS SECTION 7 STATE
THE ENTIRE LIABILITY AND OBLIGATION OF SKYSTREAM AND THE EXCLUSIVE
REMEDY OF RESELLER AND ITS CUSTOMERS WITH RESPECT TO ANY ALLEGED
INFRINGEMENT OF COPYRIGHTS, TRADEMARKS, PATENTS OR OTHER INTELLECTUAL
PROPERTY RIGHTS BY THE PRODUCTS.
8. LIMITATIONS OF LIABILITY.
8.1 Total Liability. Except as set forth in Section 7 each party's
liability for a breach of this Agreement under this Agreement will be
limited to the Payments received or due from Reseller under this
Agreement.
8.2 Exclusion of Damages. Except as set forth in Section 7 neither party
will be liable to the other for any special, incidental, or
consequential damages, whether based on
-9-
10
breach of contract, tort (including negligence), product liability, or
otherwise, and whether or not such party has been advised of the
possibility of such damage.
8.3 No Warranty. Except as set forth in Section 7 and except as set forth
in Section 13 of the Terms and Conditions of Sale, attached as Exhibit
B, SkyStream makes no warranty, express or implied, in connection with
the Products, including the results and performance thereof, including
without limitation any implied warranties of merchantability or
fitness for a particular purpose or noninfringement.
9. TERMINATION.
9.1 Term. The term of this Agreement will begin on the Effective Date and
will continue for a period designated in Exhibit D, unless it is
terminated earlier in accordance with the provisions hereof. This
Agreement may be renewed for additional periods upon the mutual
written agreement of the parties, although each party acknowledges
that the other is under no obligation to do so.
9.2 Events of Termination. Either party will have the right to terminate
this Agreement (i) for convenience and without cause, upon thirty (30)
days written notice to the other party, or (ii) if the other party
breaches any material term or condition of this Agreement and fails to
cure such breach within thirty (30) days after written notice.
9.3 Effect of Termination.
(a) Upon termination or expiration of this Agreement, Reseller will
(except as specified in subsection (b) below) immediately return
to SKYSTREAM or (at SKYSTREAM's request) destroy all Source Code,
Software (except for Software residing on a SKYSTREAM Product)
and other Confidential Information in its possession or control,
and an officer of Reseller will certify to SKYSTREAM in writing
that Reseller has done so.
(b) Upon termination or expiration of this Agreement, SKYSTREAM will
have the option, in its sole discretion, of:
(i) electing, at any time, to offer maintenance and support for
the Products directly to End Users in accordance with
SKYSTREAM's then applicable terms and conditions for such
services; or
(ii) permitting Reseller to continue to provide maintenance and
support for the Products to its End Users upon the terms and
conditions of Section 4.
-10-
11
9.4 Nonexclusive Remedy. The exercise by either party of any remedy under
this Agreement will be without prejudice to its other remedies under
this Agreement or otherwise.
9.5 Survival. The rights and obligations of the parties contained in
Sections 5, (Confidentiality), 6 (Intellectual Property Rights), 7
(Infringement Indemnity), 8 (Limitations of Liability), 9
(Termination) and 10 (General) will survive the termination or
expiration of this Agreement.
10. GENERAL
10.1 Publicity. Reseller agrees to use best efforts in the preparation of
a press release announcing the execution of this Agreement, [*]
10.2 Binding Effect. This Agreement will bind and inure to the benefit of
each party's permitted successors and assigns.
10.3 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of California applicable to
agreements between California residents entered into and to be
performed entirely within California, without reference to conflict
of law principles. Any dispute or claim arising out of this
Agreement will be resolved by binding arbitration in the county of
Santa Xxxxx in accordance with the complex commercial litigation rules
of the American Arbitration Association. The arbitrator will have the
power to grant any form of relief, including preliminary and
permanent injunctive relief, which a judge in California with
jurisdiction could fashion, and judgment on any award may be entered
in any court in California with jurisdiction. Nonetheless, the
parties may seek temporary or permanent injunctive relief from any
court in California with jurisdiction without breaching this Section
10.3 or otherwise abridging the authority of the arbitrator.
10.4 Severability. If any provision of this Agreement is found invalid or
unenforceable, that provision will be enforced to the maximum extent
permissible and the other provisions of this Agreement will remain in
force.
10.5 Force Majeure. Except for payments due under this Agreement, neither
party will be responsible for any failure to perform due to causes
beyond its reasonable control (each a "Force Majeure"), including,
but not limited to, acts of God, war, riot, embargoes, acts of civil
or military authorities, denial of or delays in processing of export
license applications, fire, floods, earthquakes, accidents, strikes,
or fuel crises, provided that such party gives prompt written notice
thereof to the other party. The
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
-11-
12
time for performance will be extended for a period equal to the duration
of the Force Majeure, but in no event longer than sixty days.
10.6 Notices. All notices under this Agreement will be deemed given when
delivered personally, sent by confirmed facsimile transmission, or sent by
certified or registered U.S. mail or recognized express courier, return
receipt requested, to the address as first shown on this Agreement or as
may otherwise be specified by either party to the other in accordance with
this section.
10.7 Independent Contractors. The parties to this Agreement are independent
contractors. There is no relationship of partnership, joint venture,
employment, franchise or agency between the parties. Neither party will
have the power to bind the other or incur obligations on the other's
behalf without the other's prior written consent.
10.8 Waiver. No failure of either party to exercise or enforce any of its
rights under this Agreement will act as a waiver of such rights.
10.9 Entire Agreement. This Agreement and its exhibits (A, B and C) are the
complete and exclusive agreement between the parties with respect to the
subject matter hereof, superseding and replacing any and all prior
agreements, communications, and understandings (both written and oral)
regarding such subject matter. This Agreement may only be modified, or any
rights under it waived, by a written document executed by both parties.
[Remainder of page Intentionally Left Blank]
-12-
13
The parties have caused this Agreement to be executed by their duly authorized
representatives as of the Effective Date.
RESELLER SKYSTREAM CORPORATION
Signature: /s/ XXXX XXXXX Signature: /s/ XXXXX X. XXXXX
--------------------------------- -----------------------
Name: Xxxx Xxxxx Name: Xxxxx X. Xxxxx
-------------------------------------- ----------------------------
Title: CFO Title: President & CEO
------------------------------------- ---------------------------
Date: Jan 11/2000 Date: 12/22/99
------------------------------------- ---------------------------
Facsimile: Facsimile:
------------------------------------- ---------------------------
[Signature Page to Nonexclusive VAR Agreement]
-13-
14
EXHIBIT A
SkyStream CORPORATION
END USER SOFTWARE LICENSE
SOFTWARE LICENSE AND WARRANTY
ATTENTION!
Use of the software program on the enclosed disks and/or installed on the
computer is subject to the terms of the License Agreement printed on the license
card, in the license booklet, or in the user documentation. You should not use
this software until you have read the License Agreement.
By using the software, you signify that you have read the License Agreement and
accept its terms.
LICENSE
SkyStream hereby grants to the Customer a limited, non-exclusive to use the
Software provided solely on the terms and conditions contained herein.
"Software" means each software program provided by SkyStream in machine
readable, object, printed or interpreted form.
LIMITATIONS ON USE
The Software is licensed to the Customer solely for Customer's internal use on
the purchased SkyStream equipment and may not be used for any other purpose or
application.
The customer is licensed to use the Software only on the designated SkyStream
equipment. The Software may not be used by Customer on any other computer, on
any other SkyStream or similar equipment, or at any other location, except as
agreed by SkyStream in writing.
Customer will not:
- Copy all or any part of the Software, except that Customer may make one copy
of the Software solely for backup purposes for its own exclusive use, provided
that customer shall reproduce and include on such backup copy SkyStream's
proprietary rights notices.
- Use, print, copy, modify or display the software, in whole or in part, except
as specifically authorized by this Agreement.
- Sublicense, assign, resell, or otherwise transfer the Software to any third
party. Any attempted such sublicense, sale, assignment or transfer shall be
void and shall be deemed a material breach of this agreement.
- Reverse engineer, duplicate or otherwise reproduce the Software.
15
Customer acknowledge that this Agreement does not grant to Customer, and
Customer will not acquire hereby, any rights to patents, copyrights, trade
secrets, trade names, trademarks (whether registered or unregistered), or any
other proprietary rights in or to the Software, all of which are expressly
retained by SkyStream.
Customer acknowledges that the laws and regulations of the United States may
restrict the export and re-export of the Software or media in any form without
appropriate United States and foreign government approval.
If Customer is a unit or agency of the United States Government or is acquiring
the Software and Documentation for any such unit or agency, the following apply:
o If the unit or agency is the Department of Defense (DOD), the Software and
its accompanying documentation are classified as "commercial computer
software" and "commercial computer software documentation," respectively,
and, pursuant to DFAR Section 227.7202, the Government is acquiring the
Software and such documentation with terms of this Agreement.
o If the unit or agency is other than DOD, the Software and its accompanying
documentation are classified as "commercial computer software" and
"commercial computer software documentation," respectively, and, pursuant
to FAR Section 12.212, the Government is acquiring the Software and such
documentation in accordance with terms of this Agreement.
WARRANTY
SkyStream makes no warranty, express or implied, in connection with the
Software, including the results and performance thereof, including without
limitation any implied warranties of merchantability or fitness for a
particular purpose or non-infringement.
LIMITATION OF LIABILITY
The maximum liability of SkyStream to Customer for damages relating to this
agreement for any and all causes whatsoever, and Customer's maximum remedy,
regardless of the form of action, whether in contract, tort or otherwise, shall
be limited to the total fees paid by Customer to SkyStream hereunder. In no
event shall SkyStream be liable for any lost data or content, lost profits, or
business interruption or for any indirect, incidental, special, consequential,
exemplary or punitive damages arising out of or relating to the Software
provided hereunder, even if SkyStream has been advised of the possibility of
such damages.
TECHNICAL SUPPORT
For technical support, contact SkyStream Customer Support through the World Wide
Web (xxx.xxxxxxxxx.xxx) or via e-mail (xxxxxxx@xxxxxxxxx.xxx).
2
16
EXHIBIT B
SKYSTREAM CORPORATION
TERMS AND CONDITIONS OF SALE
1. Applicability of Terms and Conditions of Sale
THE FOLLOWING TERMS AND CONDITIONS OF SALE ("AGREEMENT") APPLY TO ALL
QUOTATIONS FOR PRODUCTS ("PRODUCTS") ISSUED BY SKYSTREAM CORPORATION
("SKYSTREAM") TO BUYER, SKYSTREAM'S ACCEPTANCE OF ANY BUYER PURCHASE
ORDER IS EXPRESSLY CONDITIONED ON BUYER'S ASSENT TO THIS AGREEMENT. NO
TERMS OR CONDITIONS SET FORTH IN BUYER'S PURCHASE ORDER, TO WHICH NOTICE
OF OBJECTION IS HEREBY GIVEN, OR IN ANY FUTURE CORRESPONDENCE BETWEEN
BUYER AND SKYSTREAM SHALL ALTER OR SUPPLEMENT THIS AGREEMENT UNLESS BOTH
PARTIES HAVE AGREED IN WRITING TO MODIFY THIS AGREEMENT. Neither
SKYSTREAM's commencement of performance nor delivery shall be deemed or
construed as acceptance of Buyer's additional or different terms and
conditions.
2. Price
2.1 Unless otherwise stated in writing by SKYSTREAM, all prices quoted
are in U.S. Dollars and expire 30 days after the date of a
quotation.
2.2 Unless otherwise stated in writing by SKYSTREAM, all prices quoted
shall be exclusive of transportation, insurance, federal, state,
local, use, sales, property (ad valorem) and similar taxes or duties
now in force or hereafter enacted. Buyer agrees to pay all taxes,
fees or charge of any nature whatsoever imposed by any governmental
authority on, or measured by, the transaction between Buyer and
SKYSTREAM, in addition to the prices quoted or invoiced. In the
event that SKYSTREAM is required to collect the foregoing, such
amounts will appear as separate items on SKYSTREAM's invoice. Buyer
agrees to provide SKYSTREAM with a valid resale certificate for the
Products purchased for resale.
2.3 Notwithstanding anything to the contrary herein, in the event a
quotation is issued pursuant to a current written purchase agreement
between SKYSTREAM and Buyer, the quotation shall remain valid for
the period specified or until the expiration date of the ordering
period of any such purchase agreement, whichever occurs first.
3
17
3. Payment Terms
3.1 All invoices are payable thirty (30) days from date of invoice. No
discounts are authorized. Interest on late payments shall accrue at
the rate of one and one half percent (1.5%) per month or the highest
legal rate, whichever is lower. SKYSTREAM may at any time require
that shipments be made on a C.O.D. or cash-with-order basis.
3.2 Until the purchase price and all other charges payable to SKYSTREAM
hereunder have been received in full, SKYSTREAM hereby retains, and
Buyer hereby grants to SKYSTREAM, a security interest in the
Products delivered to Buyer and any proceeds therefrom. Buyer agrees
to promptly execute all documents reasonably requested by SKYSTREAM
to perfect and protect such security interest. In the event Buyer
fails promptly to execute such documents, Buyer hereby appoints
SKYSTREAM its attorney-in-fact for the sole purpose of executing such
documents, which appointment shall be a power coupled with an
interest and shall be irrevocable.
3.3 Should Buyer become delinquent in the payment of any sum due
hereunder, SKYSTREAM shall not be obligated to continue performance
hereunder, including without limitation shipment of any previously
accepted orders.
3.4 Buyer warrants to SKYSTREAM that it is financially solvent on the
date on which it places an order and expects to be solvent on the
date of receipt of shipment. SKYSTREAM reserves the right to change
the credit terms provided herein, when in SKYSTREAM's opinion the
financial condition or previous payment record of Buyer so warrants.
4. Delivery Dates
4.1 All shipments are subject to SKYSTREAM's availability schedule.
SKYSTREAM will use commercially reasonable efforts to meet any
delivery date(s) requested in Buyer's order; provided however, that
SKYSTREAM will not be liable under any circumstances for its failure
to meet such delivery date(s). Any delivery dates provided by
SKYSTREAM to Buyer are best estimates only.
4.2 SKYSTREAM shall have the right to make partial shipments and payment
therefore shall be made in the manner described in Section 3.1 above.
4.3 SKYSTREAM shall have the right to make shipments at any time before
or after the requested delivery date and payment therefore shall be
made in the manner described in Section 3.1 above.
4
18
5. Packing
All Products shall be packed, if appropriate, for shipment and storage in
accordance with standard commercial practices. All packing will conform to
requirements of carrier's tariffs. When special or export packaging is
requested or, in the opinion of SKYSTREAM, required under the
circumstances, the cost of such special import packaging, if not set forth
on the invoice, will be separately invoiced.
6. Shipment & Acceptance
6.1 F.O.B. Point. All prices are F.O.B. (as defined in the Uniform
Commercial Code as implemented by the state of California, U.S.A.)
SKYSTREAM's Mountain View location unless otherwise agreed to in
writing. Buyer will pay all transportation and insurance charges after
delivery to the F.O.B. point. Unless otherwise indicated by SKYSTREAM,
Buyer is obligated to obtain insurance covering damage to the goods
being shipped.
6.2 Method of Shipment. Subject to this Section 6.2, SKYSTREAM will ship
in accordance with Buyer's shipping instructions. In the absence of
specific instructions or if Buyer's instructions are deemed
unsuitable, SKYSTREAM reserves the right to ship by the most
appropriate method.
6.3 Title and Risk of Loss. Title to the Products and risk of loss and
damage shall pass to Buyer upon delivery to the F.O.B. point.
6.4 Acceptance. Products shall be deemed to have been accepted by Buyer
unless Buyer provides written notice to SKYSTREAM to the contrary
within thirty (30) days from the date of delivery to the F.O.B. point.
Such written notice shall request a Return Material Authorization
("RMA") number and the terms and conditions that apply to warranty
returns under Section 13.2 shall apply to returns under this Section
6.4.
7. Changes and Cancellations
7.1 Subject to the additional charges set forth below and to Section 7.2,
standard Product orders may be canceled per the following schedule:
DAYS PRIOR TO SCHEDULED PERCENTAGE OF ORDER
SHIPMENT DATE TO F.O.B. POINT WHICH MAY BE CANCELED
0-30 days 0%
31-60 days 25%
61-90 days 50%
91+ days 100%
5
19
In the event that Buyer cancels any order more than thirty (30) days but
fewer than ninety (90) days prior to the scheduled delivery date (to the
F.O.B. point) for such order, Buyer shall promptly pay to SKYSTREAM a
restocking/cancellation fee equal to fifteen percent (15%) of the purchase
price for the Products subject to such order.
7.2 Standard Product orders may be rescheduled per the following schedule:
----------------------------- ----------------------------------
DAYS PRIOR TO SCHEDULED PERCENTAGE OF ORDER WHICH MAY BE
SHIPMENT DATE TO F.O.B. POINT RESCHEDULED
0-30 days may not be rescheduled
31-60 days 25% may be rescheduled up to four weeks out
61-90 days 50% may be rescheduled up to four weeks out
91+ days 100% may be rescheduled
Orders may only be rescheduled once. Rescheduled orders may not be later
canceled.
7.3 Non-standard Products (customer special and certain designated
Products) may have different cancellation and reschedule terms, and
require advance payment.
7.4 If Buyer terminates individual orders in whole or in part because of
SKYSTREAM's failure to timely deliver, Buyer's sole remedy shall be
entitlement to cancel the undelivered quantity of any individual
order.
7.5 No cancellation of any purchase order for default shall be effective
unless SKYSTREAM has failed to correct such alleged default within
thirty (30) days after receipt by SKYSTREAM of a written notice by
Buyer of such default.
8. Software
"Software" shall mean each software program provided by SKYSTREAM in
machine-readable, object, printed, or interpreted form. SKYSTREAM shall
retain all right, title and ownership of any Software provided to Buyer or
its end users. SKYSTREAM sells its products to Buyer only to the extent
that such products consist of non-software items on the terms specified
herein. Use of the terms "sell," "purchase," "purchase price" and similar
terms are to be interpreted in accordance with this Section. Use of
Software is governed by the provisions of the Software License, a copy of
which Buyer has received and executed.
6
20
9. Confidential Information
9.1 It is understood that during the term of this Agreement, parties may
receive Confidential Information belonging to the other party. If any
Confidential Disclosure Agreements have been executed, such Agreements
are incorporated herein by reference.
9.2 Confidential Information shall include information submitted in
writing, and covers, but is not limited to, Software, designs,
performance data, system bugs, and test programs.
9.3 The parties shall protect the disclosed Confidential Information, by
using the same degree of care, but not less than a reasonable degree
of care, to prevent the unauthorized use, dissemination or publication
of the Confidential Information, as the recipient party uses to
protect its own Confidential Information of a like nature. Both
SKYSTREAM and Buyer shall restrict the dissemination of such
Confidential Information only to those personnel of each who require
access thereto, in order to perform this Agreement.
9.4 The obligation to protect the Confidential Information shall survive
for three (3) years following the expiration or termination of this
Agreement.
9.5 The obligation to protect the Confidential Information shall not
extend to information which:
(a) Was already lawfully known or acquired by the receiving party
prior to the receipt from the disclosing party;
(b) Is or becomes generally known to the public through no wrongful
act of the receiving party;
(c) Is received from a third party without similar restriction and
without breach of these or similar conditions; or
(d) Is independently developed by the receiving party by personnel
without access to the Confidential Information.
10. Intellectual Property Warranty and Indemnity
10.1 Buyer warrants that it owns all the rights to the information and
processes including specifications, designs, instructions and
Confidential Information provided to SKYSTREAM, and that such items
are free of any restrictions, settlements, judgments, or adverse
claims. Buyer warrants that it has the full power and authority to
supply and to disclose such information to SKYSTREAM.
7
21
10.2 Buyer warrants that it has not improperly or unlawfully acquired the
information and processes submitted to SKYSTREAM.
10.3 Buyer agrees to indemnify SKYSTREAM against, and to hold SKYSTREAM
harmless of and from, any loss, cost, damage, liability, suit,
judgment, or expense, including legal fees (collectively, "Harm")
arising out of any breach of the warranties set forth in Section 10.1
or Section 10.2.
10.4 Subject to the limitations hereinafter set forth, Buyer agrees that
SKYSTREAM has the right to defend, or at its option to settle, and
SKYSTREAM agrees, at its own expense, to defend or at its option to
settle, any claim, suit or proceeding (collectively, "Action") brought
against Buyer alleging that the use or distribution of the Products in
the United States infringes or misappropriates any copyright or trade
secret. Notwithstanding the above, SKYSTREAM's obligations with
respect to any claims to the object code within Products are subject
to the Software License. SKYSTREAM shall have sole control of any such
Action or settlement negotiations, and SKYSTREAM agrees to pay,
subject to the limitations set forth in Section 14, any final judgment
entered against Buyer as a result of such infringement in any such
Action defended by SKYSTREAM. Buyer agrees that SKYSTREAM at its sole
option shall be relieved of the foregoing obligations unless Buyer
notifies SKYSTREAM promptly in writing of such Action and gives
SKYSTREAM authority to proceed as contemplated herein, and, at
SKYSTREAM's expense, gives SKYSTREAM proper and full information and
assistance to settle and/or defend any such Action. If the Products,
or any part thereof, are, or in the opinion of SKYSTREAM may become,
the subject of any Action for infringement of any intellectual
property right, or if a judicial or other governmental authority
enjoins the use or distribution of Products as a result of an Action
defended by SKYSTREAM, then SKYSTREAM may, at its option and expense:
(i) procure for Buyer the right to distribute or use, as appropriate,
the Products; (ii) replace the Products with other suitable Products;
(iii) suitably modify the Products; of (iv) if the foregoing
alternatives cannot be accomplished on a commercially reasonable basis
as determined in SKYSTREAM's sole discretion, require Buyer to return
such Products and refund the aggregate payments paid therefor by
Buyer, less a reasonable sum for use and damage. Buyer shall
indemnify and hold harmless SKYSTREAM from and against any and all
third party claims arising out of the distribution of Products after
SKYSTREAM has required Buyer to return such Products or arising out of
any exclusions to SKYSTREAM's indemnification obligations set forth in
Section 10.5. SKYSTREAM shall not be liable for any costs or expenses
incurred without its prior written authorization.
8
22
10.5 Notwithstanding the provisions of Section 10.4 above, SKYSTREAM
assumes no liability for (i) any infringement claims (including
without limitation combination or process patents) arising out of the
combination of a Product or use with other hardware, software or other
items not provided by SKYSTREAM to the extent such infringement would
not have occurred absent such combination or use; (ii) the
modification of the Product, or any part thereof, unless such
modification was made by SKYSTREAM; or (iii) any infringement claims
arising out of SKYSTREAM's compliance with Buyer's specifications or
designs.
10.6 SKYSTREAM's obligation to indemnify Buyer does not extend to any
Action arising from a claim of infringement by the manufacture, use or
sale of Products that conform to any technical standard adopted by an
international organization such as the International Organization for
Standardization, the International Electrotechnical Commission, and
the CCITT/ITU, including, without limitation, the MPEG, JPEG and H.261
standards.
10.7 THE FOREGOING PROVISIONS OF THIS SECTION 10 STATE THE ENTIRE LIABILITY
AND OBLIGATION OF SKYSTREAM AND THE EXCLUSIVE REMEDY OF BUYER AND ITS
CUSTOMERS WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF COPYRIGHTS,
TRADEMARKS, PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS BY THE
PRODUCTS.
10.8 SKYSTREAM shall have the right but, except as provided by Section
10.4, not the obligation, to exclusively settle any claim, suit or
proceeding brought against Buyer so far as it is based on an
allegation that any Product or service furnished hereunder infringes a
patent, copyright or other intellectual property right of any country.
Buyer shall provide SKYSTREAM with prompt notice of any such claim,
suit or proceeding.
11. Intellectual Property Rights
11.1 Buyer hereby grants SKYSTREAM a license under any patent required to
enable SKYSTREAM to perform its obligations pursuant to this
Agreement. This license shall extend for the duration of this
Agreement.
11.2 No provision in this Agreement shall be interpreted as a grant by
SKYSTREAM to Buyer of a license to use SKYSTREAM's service-marks or
trade marks.
11.3 The Products are offered for sale and are sold by SKYSTREAM subject in
every case to the condition that such sale does not convey any license
expressly or by implication, to manufacture, reverse engineer,
duplicate or otherwise copy or reproduce any of the Products or any
part thereof.
9
23
12. Termination by SKYSTREAM
12.1 In the event of any proceedings, voluntary or involuntary, in
bankruptcy or insolvency by or against Buyer, or in the event of the
appointment, with or without Buyer's consent, of an assignee for the
benefit of creditors, or of a receiver, SKYSTREAM may elect to
immediately cancel any purchase order previously accepted by
SKYSTREAM.
12.2 In the event Buyer has materially breached this Agreement, including
but not limited to failure to comply with credit terms, and has not
cured such breach within 30 days after receiving notice thereof by
SKYSTREAM, SKYSTREAM may immediately cancel any purchase order
previously accepted by SKYSTREAM.
13. Limited Warranty
13.1 The Products are warranted against defects in material and workmanship
for a period of ninety (90) days from the date of shipment to the
F.O.B. point provided that the foregoing warranty shall not apply to
defects that reasonably could have been discovered by Buyer during the
30 day period following delivery to the F.O.B. point. This limited
warranty does not cover the results of accident, abuse, neglect,
improper testing, vandalism, acts of God, use contrary to
specifications or instructions, or repair or modification by anyone
other than SKYSTREAM or SKYSTREAM's authorized agents. SKYSTREAM SHALL
HAVE NO OBLIGATION UNDER THIS WARRANTY, AND MAKES NO REPRESENTATION AS
TO PRODUCTS WHICH HAVE BEEN MODIFIED BY BUYER OR ITS CUSTOMERS. The
foregoing warranty extends only to Buyers who are SKYSTREAM customers,
and not Buyer's customers or other users of Buyers' Products. The
foregoing warranty does not apply to any used or modified Products, or
software within the Products, which is subject to the Software
License.
13.2 If the Product does not conform to the foregoing warranties, Buyer
may, at its own risk and expense, return the allegedly defective
Product directly to SKYSTREAM during the Warranty Period. In order to
do so, Buyer must first notify SKYSTREAM in writing of the alleged
defect and request a return material authorization ("RMA") number.
Within five (5) days of its receipt of the RMA number, Buyer shall
ship to SKYSTREAM the allegedly defective Product, freight prepaid, to
SKYSTREAM, and shall include a notation of the RMA number. Any
Products returned to SKYSTREAM without an authorized RMA number may be
returned to Buyer, freight collect. Upon receipt of the Product,
SKYSTREAM, at its option, will repair or replace the Product and ship
the repaired or replaced Product to Buyer at
10
24
SKYSTREAM's expense and risk, or refund the purchase price. If
SKYSTREAM determines that any returned Product conformed to the
warranties, SKYSTREAM will return the Product to Buyer at Buyer's
expense and risk, along with a written statement setting forth the
basis for SKYSTREAM's conclusion that the returned Product was not
defective, and Buyer agrees to pay SKYSTREAM's reasonable costs of
handling and testing.
13.3 THE REMEDIES PROVIDED HEREIN ARE BUYERS' SOLE AND EXCLUSIVE REMEDIES
FOR BREACH OF WARRANTY BY SKYSTREAM. SKYSTREAM SPECIFICALLY DISCLAIMS
ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY
IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY OR NONINFRINGEMENT. NO PERSON IS AUTHORIZED TO MAKE
ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PERFORMANCE OF THE
PRODUCTS OTHER THAN AS PROVIDED IN THIS SECTION.
14. Limitation of Liability
NEITHER SKYSTREAM NOR ITS SUPPLIERS SHALL BE LIABLE TO BUYER FOR ANY
DAMAGES WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY
(i) FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES OF ANY
SORT EVEN IF SKYSTREAM OR ITS SUPPLIERS HAVE BEEN INFORMED OF THE
POSSIBILITY OF SUCH DAMAGES; (ii) FOR COST OF PROCUREMENT OF SUBSTITUTE
GOODS, TECHNOLOGY OR SERVICES; OR (iii) FOR LOSS OR CORRUPTION OF DATA OR
INTERRUPTION OF USE. SKYSTREAM SHALL NOT BE LIABLE FOR ANY AMOUNTS IN
EXCESS OF THE TOTAL AMOUNT ACTUALLY PAID TO SKYSTREAM HEREUNDER FOR THE
PARTICULAR PRODUCTS THAT ARE SUBJECT TO A CLAIM. THESE LIMITATIONS SHALL
APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT
APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE
LAW PROHIBITS SUCH LIMITATION.
15. Import/Export
Buyer agrees that it will not in any form export, re-export, resell, ship
or divert directly or indirectly any Product or technical data or Software
furnished hereunder to any country for which the United States Government
or any government agency
11
25
requires an export license or other governmental approval without first
obtaining such license or approval.
16. Restricted Use
SKYSTREAM's Products may produce a reduction and loss of data and therefore
are not sold for use in medical equipment, avionics, nuclear applications,
or other high risk applications where malfunctions or loss of data could
result directly in personal injury to human beings. Buyer agrees to not to
use, to contractually bind its customers not to use, and to forbid all
third parties from using the Products in such applications, and Buyer
agrees to indemnify SKYSTREAM and to hold SKYSTREAM harmless from and
against any liability arising out of Buyer's failure to contractually bind
its customers in the manner previously described.
17. Term This Agreement will govern in perpetuity all of Buyer's purchases of
Products.
18. Publicity
Buyer consents to the use of Buyer's name and purchase order data for use
by SKYSTREAM at SKYSTREAM's discretion for the purpose of preparing press
releases and promotional materials. Buyer agrees to use best efforts in
assisting in the preparation of any such press releases or promotional
materials.
19. Miscellaneous
19.1 Any notice required to be given hereunder shall be given in writing at
the address of each party set forth in an attached quotation or
purchase agreement, or to such other address as either party may
substitute by written notice to the other.
19.2 Any attempt by Buyer to assign or transfer any of the rights, duties,
or obligations herein shall render such attempted assignment or
transfer null and void.
19.3 SKYSTREAM's failure to exercise any of its rights hereunder shall not
constitute or be deemed a waiver or forfeiture of such rights.
19.4 No U.S. Government Procurement Regulations shall be binding on either
party unless specifically agreed to in writing prior to incorporation
herein.
19.5 Stenographic, typographical and clerical errors are subject to
correction.
19.6 Governing Law and Jurisdiction. This Agreement will be governed by and
construed in accordance with the laws of the State of California
applicable to agreements entered into, and to be performed entirely,
within California
12
26
between California residents, without reference to conflict of law
principles. Any dispute or claim arising out of this Agreement will
be resolved by binding arbitration in the city and county of Santa
Xxxxx in accordance with the complex commercial litigation rules of
the American Arbitration Association. The arbitrator will have the
power to grant any form of relief, including preliminary and
permanent injunctive relief, which a judge in California with
jurisdiction could fashion, and judgment on any award may be entered
in any court in California with jurisdiction. Nonetheless, the
parties may seek temporary or permanent injunctive relief from any
court in California with jurisdiction without breaching this Section
19.6 or otherwise abridging the authority of the arbitrator.
19.7 In the event any proceeding or lawsuit is brought by either party to
enforce its rights hereunder, the prevailing party shall be entitled
to recover its costs, including expert witness fees and reasonable
attorneys' fees.
19.8 All disputes between the parties of any kind arising out of or
related to this Agreement shall be brought within one (1) year after
the accrual of the dispute.
19.9 THE TERMS AND CONDITIONS SET FORTH HEREIN REPRESENT THE ENTIRE
AGREEMENT BETWEEN SKYSTREAM AND BUYER WITH RESPECT TO THE SUBJECT
MATTER AND BUYER AGREES THAT ALL PRIOR QUOTATIONS, INVOICES,
NEGOTIATIONS, UNDERSTANDINGS, REPRESENTATIONS AND/OR AGREEMENTS OF
THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, EXCLUDING THE
SOFTWARE LICENSE, WHETHER ORAL OR WRITTEN, ARE MERGED HEREIN AND
SUPERSEDED IN THEIR ENTIRETY. BUYER ACKNOWLEDGES THAT IT HAS NOT
ENTERED INTO THIS AGREEMENT IN RELIANCE ON ANY WARRANTY OR
REPRESENTATION BY ANY PERSON OR ENTITY EXCEPT FOR THE WARRANTIES AND
REPRESENTATIONS SPECIFICALLY SET FORTH HEREIN. No change or
modification of any of the terms or conditions herein shall be valid
or binding on either party unless in writing and signed by an
authorized representative of each party.
19.10 Neither party shall be liable to the other for its failure to perform
any of its obligations hereunder during any period in which such
performance is delayed by circumstances beyond its reasonable control
including, but not limited to, fire, flood, earthquake, war, embargo,
strike, riot, inability to secure materials and transportation
facilities, or the intervention of any governmental authority.
13
27
EXHIBIT C
PRODUCTS TO BE COVERED UNDER THIS AGREEMENT:
PRODUCT DESCRIPTION
DBN-24
DBN-25
DBN-26
JetStream Server
JetStream Client
SOFTWARE RELEASES TO BE COVERED UNDER THIS AGREEMENT:
V1.3
V3.0
V3.1
V3.2
EXHIBIT D
PRODUCT PRICING MATRIX
PRODUCTS AND UPGRADE PRICING WITH INITIAL INTEGRATOR PURCHASE
[Insert price list]
UPGRADE PRICING AFTER INITIAL INTEGRATOR HAS BEEN PURCHASED
[Insert upgrade price list]
14
28
ANNUAL MAINTENANCE FEES
[*]% of the invoiced price to the Reseller on a per unit, per year basis.
SkySupport service is renewed automatically every 21 months, unless otherwise
noted by the Reseller.
HOURLY CONSULTING RATE FOR CHARGEABLE SERVICES
$[*] per hour, not including travel or lodging expenses
RESELLER'S TERM
Term. The term of this Agreement will begin on the Effective Date and will
continue for a period of one year unless it is terminated earlier in accordance
with the provisions hereof. This Agreement may be renewed for additional periods
upon the mutual written agreement of the parties, although each party
acknowledges that the other is under no obligation to do so.
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
15
29
[SKYSTREAM LOGO]
EXHIBIT E
SKYSUPPORT(TM)
SERVICE PLAN
--------------
For DIRECT Customers
Providing World-Class Customer
Service and Support for the
SkyStream Integrator Family of
Products
This document overrides any and all previous documents in circulation. SkyStream
reserves the right to change information contained in this document without
notice to any non-SkySupport customers
30
Version 2.2
February 1999
31
SKYSUPPORT
CUSTOMER SERVICE PLAN FOR DIRECT CUSTOMERS
SkySupport is a customer service plan that offers world-class support to
SkyStream customers domestically and internationally. SkyStream offers a program
whereby the greatest effort is placed in fast response time to any issues that
emerge, 24 hours a day, and 7 days a week. SkyStream also employs proactive
efforts to keep SkySupport customers abreast of any new product developments or
code changes.
Because of the evolutionary architecture of the SkyStream Integrator series,
customers may find it useful to gradually add hardware or software features to
the base product, such as upgrading a data encapsulator (DBN-24) to a data
injection (DBN-25) or DUB-Simulcrypt conditional access product (DBN-26).
Customers can also purchase feature additions or an add-on card for additional
functionality. SkyStream offers all SkySupport customers the opportunity to
upgrade their products, even after the units are installed in the field.
The SkySupport customer service plan is available to all direct customers of
SkyStream. The plan is supported on a per-unit basis, and is renewed annually.
SkySupport customers are also eligible to purchase product upgrades or training
for additional charges. This renewable 1-year plan (after ship date) shall
include the following three categories of support:
1. ULTRA-FAST RESPONSE TIME
2. PRODUCT UPGRADES
3. SKYSTREAM'S PRODUCT TRAINING PROGRAM
The SkySupport Service Plan is initially ordered at same time that the equipment
is purchased. SkySupport service is renewed automatically, unless otherwise
noted by the customer, every 12 months at the standard service rate (per the
most recent price list).
32
SKYSUPPORT 3-POINT CUSTOMER SERVICE PLAN
1. ULTRA-FAST RESPONSE TIME
- GUARANTEED ADVANCED PARTS REPLACEMENT, SHIPPED OVERNIGHT ON THE NEXT BUSINESS
DAY
SkyStream will ship advance replacement parts the next business day.
- TELEPHONE SUPPORT, 24 HOURS PER DAY, 7 DAYS PER WEEK (24x7)
Access to SkyStream Customer Service technical support personnel with a
guaranteed response time of within 4 hours of initial call.
- ELECTRONIC MAIL INQUIRIES AND RESPONSES
- REMOTE DIAGNOSTIC SERVICE (RDS)
SkyStream customer service can observe and analyze the configuration and
traffic pattern at the client's site and provide feedback to resolve
problems. Customer needs to provide SkyStream support personnel with
authorization to access the SkyStream products over a remote network for
monitoring and troubleshooting purposes.
- DOCUMENTATION
Access to product manuals, user's guides, application notes, FAQ's and
web-based troubleshooting guide on SkyStream's website via secure SkySupport
password.
33
2. PRODUCT UPGRADES
SkyStream's products have a unique architecture that allows them to receive
hardware or software upgrades while installed in the field. Upgrades can range
from simple software patches to significant feature upgrades, all of which are
best treated under the SkySupport plan. Product Upgrades come in three
different categories, and will be clearly marked in all price lists:
LEVEL 1 UPGRADE: BUG FIXES
All software bug fixes will be documented and made accessible to all SkyStream
customers. Bug fixes are software patches that repair a known problem in the
current released code. Level 1 upgrades will be available at [*], as long as
customers are using supported software releases. Typically, SkyStream will
provide support for the 2 most recent releases of its software. Customers using
unsupported versions of software will need to upgrade to the latest version to
receive code fixes, and non-SkySupport customers may need to pay [*] to upgrade.
Registered SkySupport customers will be pro-actively notified via email of any
upgrade within 30 days of production release date.
LEVEL 2 UPGRADE: FEATURE IMPROVEMENTS
Level 2 upgrades include all software improvements. Software improvements are
released on an ongoing basis to improve on an existing set of functions. See the
SkyStream price list to determine which features fall into this category. These
upgrades will be provided to SkySupport customers for [*] as long as customers
are using supported software releases.
LEVEL 3 UPGRADE: FEATURE ADDITIONS AND HARDWARE UPGRADES
Feature additions and hardware add-on card upgrades will be sold via SkyStream's
upgrade price list. Feature additions include software code upgrades that add
significant functionality to the existing product specification. See the
SkyStream price list to determine which features fall into this category. Only
authorized SkySupport personnel will administer Level 3 upgrades. Registered
SkySupport customers will be pro-actively notified via email of any upgrade
within 30 days of production release date.
SkyStream's Integrator family uses a flexible architecture that allows customers
to purchase a base system for immediate requirements, with an interest to
upgrade its functionality to a new platform in the future. For example, if a
customer purchases a DBN-35 ATSC IP Data Injector, and later wishes to upgrade
the product to support CAS Injection, he can do so by paying only an upgrade fee
as opposed to buying a new system (see upgrade price list for upgrade prices).
Customers interested in upgrading their unit must provide SkyStream with 90 days
advance notice. ONLY SKYSUPPORT CUSTOMERS WILL HAVE ACCESS TO ANY LEVEL 3
UPGRADES.
NOTE: Level 3 Upgrades are only available on same-family products (i.e. DBN 2X
is a family of products, where 4, 5, 6, or other future product).
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
34
Product Upgrades SkySupport Customers
-------------------------------------------------------------
LEVEL 1: BUG FIXES
Software Patches [ * ]
Hardware Fixes [ * ]
LEVEL 2: FEATURE
IMPROVEMENTS
Software - feature improvements [ * ]
LEVEL 3: FEATURE
ADDITIONS/HARDWARE
UPGRADES
Software - new feature additions Available for additional
charge-see price list
Hardware - new feature additions Available for additional
charge - see price list
DBN-24 to DBN-25 Available for additional
charge - see price list
DBN-25 to DBN-26 Available for additional
charge - see price list
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
35
3. SKYSTREAM'S PRODUCT TRAINING PROGRAM
SkyStream offers all customers basic system operations training to the SkyStream
Integrator product family. This session will accompany any new product
installation when an authorized SkyStream field support engineer performs the
installation. For more detailed product training, SkyStream offers an additional
system maintenance training session for customer engineering or operations
personnel who require more technical knowledge and hands-on skills to work
directly with the SkyStream equipment.
There are two training modules available:
MODULE 1: SKYSTREAM SYSTEM OPERATIONS TRAINING
SkyStream provides comprehensive on-site training on the new system at the time
of system installation. Customer operations and production staff receive
training on
- System Overview/Setup
- System Operations
- Routine maintenance of the system
MODULE 2: SKYSTREAM SYSTEM MAINTENANCE TRAINING
SkyStream offers advanced training to customers that support and maintain their
SkyStream system. This training provides customers with the technical knowledge
and hands-on skills needed to use, configure, support and troubleshoot the
SkyStream system. This training is delivered at SkyStream's Corporate Training
Facility in Mt. View, CA.
36
SKYSUPPORT PRICING - FEBRUARY 1999
SERVICE ORDER NUMBER COST
------- ------------ ----
1-year SkySupport S901001 [ * ] price per unit
On-Site Installation S901004 [ * ] (N.A.), [ * ] per day (Int'l)
LEVEL 1 PRODUCT UPGRADES
------------------------
Bug fixes [ * ] [ * ]
LEVEL 2 PRODUCT UPGRADES
------------------------
Hardware Add-on cards refer to upgrade price list refer to upgrade price list
Software feature additions refer to upgrade price list refer to upgrade price list
LEVEL 3 PRODUCT UPGRADES
------------------------
DBN-24 to DBN-25 S101002 refer to upgrade price list
DBN-25 to DBN-26 S111003 refer to upgrade price list
DBN-24 to DBN-26 S101003 refer to upgrade price list
Other Feature Additions refer to upgrade price list refer to upgrade price list
SKYSTREAM PRODUCT TRAINING
--------------------------
System Operations Training [ * ] [ * ] (SkySupport only)
System Maintenance Training S901101 [ * ] per person
ADDITIONAL TERMS:
1. SkySupport must be purchased at time of order placement, and must cover the
full amount of the order (i.e. if customer buys 2 DBN-xx units, he must also
buy 2 units of SkySupport).
2. SkySupport must also be purchased for any upgrades when they are ordered, and
will be added to the basic SkySupport agreement when it is to be renewed.
3. SkyStream will register all units by serial number. Customer service calls
must be verified by actual serial number of affected unit.
4. All existing SkySupport customers' terms will be honored until expiration of
the current annual service plan. Renewals will be assessed at the new rate,
listed above.
5. All returns will be handled by RMA process. SkyStream will issue an RMA
number that must accompany any product repair or return unit.
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
