EXHIBIT 10(a)
COMPUTER ASSOCIATES
Software superior by design.
Computer Associates International, Inc.
One Computer Associates Plaza
Islandia, NY 11788-7000
1-516-DIAL CAI (342-5224)
FAX 1-516-DIAL FAX (342-5329)
Monday, June 30, 1997
Mr. Marty Kittrell
President and Chief Financial Officer
Exide Electronics
8609 Six Forks Road
Raleigh, North Carolina 27615
Dear Marty:
This letter, when executed and returned by you to CA, will amend the attached
Reseller Agreement between Exide Electronics and Computer Associates
International, Inc. with an Effective Date of June 30, 1997.
* Exide will license Unicenter TNG for resale into Energy related focus markets
for use with Exide's Foreseer Agents at a 40% discount off of CA's published
prices;
* Exide will license $5,000,000 worth of TNG power units with a receivables due
date of June 30, 1998;
All of the above financial commitments will be non-contingent and will be due
and payable by both parties. Please sign your concurrence below to this
Agreement.
Very Truly Yours' Accepted by Exide Electronics
/s/RICHARD P. CHIARELLO /s/MARTY KITTRELL
Richard P. Chiarello Marty Kittrell
Senior Vice President, North Vice President & Chief Financial
American Sales Officer
Computer Associates International, Inc. Exide Electronics
CA Agreement No. _____
COMPUTER ASSOCIATES INTERNATIONAL, INC.
RESELLER AGREEMENT
THIS RESELLER AGREEMENT ("Agreement") is made and entered into on ____June 30_,
1997 (the "Effective Date") between COMPUTER ASSOCIATES INTERNATIONAL, INC. of
One Computer Associates Plaza, Islandia, New York 11788-7000 ("CA") and _EXIDE
ELECTRONICS_____ of ____8609 Six Forks Road, Raleigh, North Carolina 27615____
("Reseller").
The parties agree as follows:
1. SCOPE OF AGREEMENT; DEFINITIONS
1.1 SCOPE OF AGREEMENT. This Agreement provides for the marketing and
distribution by Reseller of the CA software products ("Products" as defined
below) identified on one or more Commercial Terms Schedules ("Commercial Terms")
attached to this Agreement as Exhibit I or subsequently executed by both parties
referencing this Agreement. The parties may, but shall be under no obligation
to, execute multiple Commercial Terms Schedules to provide for the distribution
by Reseller of more than one line of CA software products.
1.2 DEFINITIONS
"Demonstration Software" means the commercially available Products listed in the
Commercial Terms which are used internally by Reseller on the computer(s) listed
in the applicable Demonstration Software order form(s) for demonstration and
support purposes. Demonstration Software includes any Maintenance Releases or
New Versions thereof provided by CA to Reseller under this Agreement.
"Documentation" means technical manuals relating to the end use of the Products.
"End User" means a third party licensed to use the Products internally and not
for redistribution.
"End User Agreement" means CA's then standard form license agreement pursuant to
which an End User may use a Product distributed by Reseller pursuant to this
Agreement.
"First Level Support" means a level of technical support that shall be
substantially similar to CA's first level support services as described in CA's
then current Client Support Handbook.
"Maintenance Releases" means product temporary fixes, error corrections,
work-arounds or other maintenance tapes and corrections made available by CA to
End Users of the Products, but does not include (i) New Versions or (ii) new
products available from CA for an additional fee.
"New Versions" means a new version of the Products containing new features or
functions as well as error corrections, but does not include new products
available from CA for an additional fee.
"Operating Environments" means the hardware platform and operating system
combinations that correspond to specific versions of the Products generally
available from CA.
"Products" means all or any portion of the commercially available software
products specified in the Commercial Terms on the Operating Environments
specified in the Commercial Terms together with related Documentation and all
corrections, Maintenance Releases and New Versions thereof. If more than one
Commercial Terms Schedule is executed by the parties referencing this Agreement,
"Products" shall refer collectively to the software products listed in all
Commercial Terms Schedules.
"Second Level Support" means technical Support for the Products provided by CA
to Reseller as set forth in Section 4.2 of this Agreement.
"Terms" means the period set forth in Section 6.1 of this Agreement.
"Territory" means the United States of America.
"Upgrade" means any change in the usage of the Products (including, without
limitation the transfer of Products to a computer in a higher price
classification, or an increase in power unit rating or users) that would result
in an increase in price as determined in accordance with CA's then current price
list.
2. APPOINTMENT AND GRANT OF LICENSES
2.1 APPOINTMENT. During the Term and subject to the terms and conditions of this
Agreement, CA hereby grants to Reseller, and Reseller hereby accepts, the
non-exclusive right and license to distribute the Products to End Users in the
Territory. The Products shall be distributed by Reseller under CA's trademarks
and in the same packaging as supplied by CA to Reseller. CA reserves the right
to establish or appoint any number of other resellers, private labelers,
distributors, dealers or third parties, in any area for any purpose and the
right to otherwise grant licenses to use the Products, directly or indirectly,
to end users. CA reserves the right to review and update the Products subject to
this Agreement and the supported Operating Environments at any time upon 30 days
notice to Reseller.
2.2 DEMONSTRATION LICENSES. Reseller may acquire Demonstration Software in
accordance with the terms and conditions set forth in the Commercial Terms.
Reseller must complete CA's then standard Demonstration Software order form and
deliver such order form to CA for each copy of the Demonstration Software
acquired by Reseller under this Agreement. Demonstration Software may not be
used by Reseller for production purposes or transferred or sublicensed to any
third party.
2.3 DISTRIBUTION LIMITATIONS
a) Reseller shall not have any right to establish or appoint any resellers or
dealers of the Products. Except as agreed by CA in writing, Reseller shall not
allow any third party to sublicense, copy, assign, transfer or distribute the
Products.
b) Except as specifically permitted in this Agreement, Reseller shall not (nor
shall it permit any third party to): (i) copy or manufacture the Products or any
portion thereof; (ii) translate, modify, adapt, enhance, extend, decompile,
disassemble or reverse engineer the Products; or (iii) use the Products to
provide any facility management or service bureau service or otherwise use the
Products to process the data of any third party. Reseller may provide other
software products and services in combination with the Products, provided that
no non-CA products shall be placed on Product diskettes or tapes. The
documentation for any such non-CA products may not be included in the
documentation binder for the Products.
c) Reseller agrees not to export or disclose, directly or indirectly, the
Products or related technical information, documents or materials (or any direct
product thereof) without the prior written consent, if required, of the Office
of Export Administration of the US Department of Commerce. Reseller agrees to
comply with any other applicable export laws and regulations.
d) Any Products provided to the US Government (or any of its agencies) shall be
provided with "Restricted Rights" and Reseller shall affix (if not already
affixed) to any media containing all or any portion of the Product a restricted
rights legend substantially similar to the following: "This Program is provided
with Restricted Rights. Use, duplication or disclosure by the Government is
subject to the restrictions set forth in DFARs 252.227-7013 (c) (1) (ii) and 48
CFR 52.227-19 (c) (1) and (2) or applicable successor provisions."
3. OBLIGATIONS OF THE RESELLER
3.1 MARKETING. Reseller shall use reasonable efforts to actively promote the
Products, and shall maintain the formal name of the Products (with its
appropriate trademark designations) in all advertising and other printed
materials relating to the Products. CA reserves the right to require Reseller to
furnish to CA in advance for review and approval any and all promotional,
advertising and other materials which refer to the Products or which use or
display any trademark, service mark, logo or trade name of CA. CA also reserves
the right to require Reseller to discontinue use of any promotional, advertising
or other materials referring to CA or the Products.
3.2 END USER AGREEMENTS. Reseller shall not deliver any Product to any End User
without the concurrent delivery of: (i) the then current End User Agreement for
the Product and (ii) CA's then current registration form for the Product. The
current versions of the End User Agreement and registration form have been
provided by CA to Reseller. CA may modify the End User Agreement and
registration form from time to time upon notice to Reseller. Reseller shall
promptly notify CA of any and all material breaches of the End User Agreement
that may or should come to its attention and will assist CA in all steps
necessary to terminate any breached license if the breach is not curable or if
it is not cured promptly after notice.
3.3 ORDERS
a) Prior to distributing any Products to any End User, Reseller shall place an
order with CA on CA's then standard Reseller order form. Reseller shall provide
CA with such information as CA may require about how a prospective End User
proposes to use the Products, including, but not limited to, the power rating of
the CPU(s) on which the Products will be operated, the make, model and serial
number of the CPU on which the Products will be used and/or the number of
authorized users on such Reseller order forms. Reseller shall not deliver the
Products to any End User unless the version of the Products delivered has been
authorized by CA for the usage identified by the End User. Reseller understands
anD agrees that CA may delay or withhold issuance of authorization keys for the
Products in the event Reseller or its End User fails to provide the necessary
information to issue the authorization key. No provisions in Reseller's purchase
orders, license agreements or in any other business forms employed by Reseller
shall add to or supersede the terms and conditions of this Agreement, which
shall exclusively govern the relationship of the parties.
b) All orders for the Products (or any Upgrade) shall be pursuant to a Reseller
order form and subject to acceptance by CA at its principal place of business.
In addition to any other right or remedy, CA may, at its option, refuse any
order placed by Reseller, cancel any accepted order or delay shipment thereof,
if Reseller is delinquent in any payments to CA or if Reseller is otherwise in
breach of this Agreement. CA reserves the right to issue only temporary
authorization keys until payment for the license has been received.
c) Upon receipt of orders from Reseller that comply with all requirements of
this Agreement, CA will, unless Reseller is delinquent in its payments or in
breach of its agreements with CA, make reasonable efforts to fill all orders for
the Products, and issue associated authorization keys, to Reseller or its End
Users. CA shall not be liable to Reseller, or to any other person, for CA's
failure to fill any orders, or for any delay in delivery or error in filling any
orders for any reason whatsoever. CA shall have no obligation to export any
Products from the United States. Risk of loss to the Products shall pass to
Reseller on delivery to the specified F.O.B. destination.
3.4 REPRESENTATIONS. Reseller shall not make (i) any representation or warranty
whatsoever on behalf of CA; (ii) any representation or warranty concerning the
quality, performance or other characteristics of the Products other than those
which are consistent in all respects with, and do not expand the scope of, the
warranties set forth in this Agreement; or (iii) any commitment to modify any of
the Products.
4. CUSTOMER SUPPORT AND UPDATES
4.1 RESELLER FIRST LEVEL SUPPORT. If Reseller is authorized by CA (in the
Commercial Terms) to provide First Level Support for all or any of the Products,
Reseller shall ensure that the number of employees specified in the Commercial
Terms complete the required minimum training for each of the Products and
Operating Environments as necessary to be certified by CA as an authorized
provider of First Level Support services. If Reseller provides First Level
Support, it shall provide First Level Support substantially similar to that
described in CA's Client Support Handbook. CA may provide First Level Support
and other support services directly to End Users, but shall not have any
obligation to do so unless the End User has entered into a maintenance agreement
directly with CA. If CA directly supports an End User, CA shall be entitled to
retain the full amount of maintenance revenue received from such End User.
4.2 SECOND LEVEL SUPPORT. CA shall provide Reseller with Second Level Support
(in accordance with CA's Client Support Handbook) from CA's North American
support centers for Products properly licensed to Reseller's End Users
purchasing First Level Support Services from Reseller for the fees set forth in
the Commercial Terms and provided that Reseller follows the following
procedures:
a) Qualified, trained Reseller technical staff shall review all reported errors
to determine if the error occurs in the Products or in other hardware or
software products not supplied by CA. If Reseller determines that the error
occurs in the Products, Reseller may then submit the error to CA;
b) Reseller shall submit detailed descriptions of any reported errors. If CA is
not able to replicate the errors, Reseller shall provide any additional
information required by CA (which may include a sample program enabling
replication of the error). Reseller will also make its personnel available to
assist in problem identification and resolution; and
c) CA shall provide Reseller with Maintenance Releases made generally available
by CA during the Term of this Agreement. Reseller shall be responsible for
distributing Maintenance Releases to End Users only for computers properly
licensed to use the applicable Products and under a current support contract;
and
d) CA may provide Reseller with New Versions made generally available by CA
during the Term of this Agreement on the terms and conditions set forth in the
Commercial Terms. Reseller may distribute New Versions only to End Users
properly licensed to use the applicable Products in accordance with this
Agreement.
5. LICENSES AND UPGRADE FEES
5.1 LICENSE FEES. The price charged by CA to Reseller for licenses of the
Products acquired by Reseller from CA during the term of this Agreement shall be
the then prevailing suggested list price for the version of the Product (or
Upgrade) ordered by Reseller, less the discount then available to Reseller under
the Commercial Terms. Alternatively, Reseller may elect to acquire Product
licenses from a distributor of the Products that is authorized by CA to
distribute the Products to CA Resellers ("Authorized Distributor"). If Reseller
elects to purchase Product licenses from an Authorized Distributor, the prices,
payment and shipment terms and other commercial terms shall be agreed between
Reseller and the Authorized Distributor. The price payable by Reseller (for
licenses purchased from CA) includes freight charges to destinations in the
United Stares and represents the price F.O.B. Reseller's facility.
5.2 SUPPORT FEES. Reseller shall pay CA the applicable fees for Second Level
Support and/or New Versions as set forth in the Commercial Terms.
5.3 UPGRADE FEES. For each Upgrade sold by Reseller, Reseller shall order the
Upgrade from CA and pay Upgrade fee set forth in the Commercial Terms.
5.4 PROGRAM FEES. Reseller agrees to pay the program fees set forth in the
Commercial Terms as well as any fees due to CA under the Commercial Terms for
training, education and other services provided by CA to Reseller.
6. GENERAL TERMS AND CONDITIONS
6.1 TERM OF AGREEMENT. The Initial Term of this Agreement shall commence on the
Effective Date and shall continue for a period of seventy-two (72) months from
such date, unless sooner terminated as hereinafter provided. After the Initial
Term, this Agreement may be renewed on an annual basis if mutually agreed by
both parties in writing prior to the end of the Term and subject to Reseller's
payment of the applicable renewal fees set forth in the Commercial Terms. "Term"
shall mean the Initial Term together with any agreed renewal periods.
6.2 RECORDS AND REPORTS. During the Term and for a period of at least one year
following termination of this Agreement, Reseller shall keep full, true and
accurate records and accounts in accordance with generally accepted accounting
practices to show the amount of license and support fees payable to CA under
this Agreement. These records and accounts shall include, at a minimum, for each
Product distributed: (i) the End User name and address; (ii) the date of
shipment, Products shipped and brand and model of the licensed computer; (iii)
the number of users or power units licensed; (iv) a copy of each End User order;
and (v) records concerning Product support provided to End Users and the Terms
of such support contracts. CA shall have the right, on notice to Reseller, to
examine such records or to have such records examined by CA's designated
certified public accountants during normal business hours to determine
Reseller's compliance with the terms of this Agreement. CA shall bear the
expenses of the audit; however, in the event any such audit reveals that
Reseller has understated the amount of fees that it is obligated to pay under
this Agreement by more than five percent (5%) of the amount reported during the
period audited, Reseller shall pay, in addition to any other fees contractually
due, all reasonable costs associated with the audit. Such audit right shall
survive the termination of this Agreement for a period of one year.
6.3 PAYMENTS
a) Terms of payment on all invoices from CA shall be net thirty (30) days. All
payments shall be made in US Dollars to CA's address for payment indicated on
CA's invoice to Reseller or such other address as advised by CA on at least 10
days written notice. In addition to such other rights as CA may have, Reseller
shall pay a monthly late charge equal to the lesser of one and one-half percent
(1.5%) of the outstanding amount or the maximum amount allowed by law on any
invoice rendered by CA that is not paid when due.
b) All prices listed in the Commercial Terms are exclusive of all taxes,
including sales, use or value added taxes where applicable. Upon presentation of
invoices by CA, Reseller shall pay any and all applicable tariffs, duties or
taxes (other than franchise and income taxes for which CA is responsible)
imposed or levied by any government or agency, including, without limitation,
federal, state and local sales, use, value added and personal property taxes.
Any claimed exemption from such tariffs, duties or taxes must be supported by a
tax exemption certificate and other proper documentary evidence delivered to CA.
6.4 PROPRIETARY INFORMATION AND NON-DISCLOSURE
a) CA (or its licensers) retains ownership of all intellectual property rights
(including patents, copyrights and trademarks) in and relating to the Products.
The Products, the Documentation and other proprietary information provided by CA
to Reseller hereunder contain and constitute trade secrets, information and data
proprietary to and copyrighted by CA. Neither Reseller or its employees shall
cause or allow such information or data to be disclosed to third parties or
duplicated except as expressly allowed in this Agreement. Any customizations,
enhancements, improvements, translations, derivative works or other
modifications of the Products made by Reseller shall belong to CA and CA shall
have all right, title and intellectual property interest to such work. CA shall
have no obligation to support any customizations, extensions or modifications
made to the Products by any third party unless otherwise agreed by CA in
writing.
b) Reseller acknowledges and agrees that the unauthorized disclosure, use or
copying of the Products may cause CA serious financial loss. Accordingly, in the
event of any unauthorized disclosure, use or copying of the Products, Reseller
agrees that CA shall have the right to obtain injunctive or other equitable
relief without the posting of any bond.
c) Reseller may use the trademarks, trade names, service marks and logos that
relate to CA or the Product (the "Marks") solely in connection with this
Agreement; provided that Reseller clearly identifies CA's ownership of such
Marks. The Marks remain the exclusive property of CA and Reseller will not
register the Marks or take any action that jeopardizes CA's proprietary rights
in the Marks. Reseller agrees to cooperate with CA's instructions and quality
control procedures relating to the Marks and shall only use the Marks in
unaltered form. CA reserves the right to require Reseller to discontinue use of
any advertising or marketing materials relating to CA, the Marks or the
Products.
6.5 LIMITED WARRANTY
a) Both parties represent and warrant that they have the right to enter into
this Agreement. CA warrants that the then current, unmodified version of the
Products will substantially perform the functions or generally conform to the
then current version of their published Documentation for a period of ninety
(90) days from delivery to the End User. If it is determined that the Products
do not perform as warranted, CA's only responsibility will be to use reasonable
efforts, consistent with industry standards, to cure the defect. CA does not
represent that the Products are error free or will satisfy all of Reseller's or
its End User's requirements. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ALL OTHER WARRANTIES,
CONDITIONS AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, VERBAL, STATUTORY OR
OTHERWISE, AND WHETHER ARISING UNDER THIS AGREEMENT OR OTHERWISE ARE HEREBY
EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CA SHALL NOT BE BOUND BY
OR LIABLE FOR ANY REPRESENTATIONS OR WARRANTIES, WHETHER WRITTEN OR ORAL, WITH
RESPECT TO THE PRODUCTS MADE BY RESELLER OR ITS AGENTS, EMPLOYEES OR
REPRESENTATIVES.
b) Except for the Indemnification set forth below in Section 6.6, CA'S maximum
liability for damages under this Agreement (regardless of the form of action,
whether in contract or tort) shall not exceed the amount paid by Reseller to CA
for the Products or services as to which the claim relates.
c) IN NO EVENT SHALL CA BE LIABLE TO RESELLER OR ANY OTHER PARTY, WHETHER IN
CONTRACT OR TORT, FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL LOSS
OR DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE OR DATA),
THAT MAY ARISE FROM THE USE, OPERATION OF MODIFICATION OF THE PRODUCTS, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES BEING INCURRED.
6.6 INDEMNIFICATION
a) CA, at its expense, shall defend any action brought against Reseller to the
extent that is based on a claim that any Product infringes a third party's
copyright or a patent duly issued by the United States of America. CA shall pay
all damages and costs finally awarded against Reseller in such action, provided
that CA is notified in writing of the existence of such claim against Reseller
within seven (7) days of Reseller's first learning of the same; and provided
that CA is given full authority to control the defense, costs and settlement of
the claim and that CA receives reasonable cooperation and assistance from
Reseller. CA will not be obligated to defend or otherwise indemnify Reseller in
any lawsuit or as to any claim which arises from or relates to any combination
of the Product with another product not supplied by CA, or if such claim is
based upon a use of the Product for a purpose for which it was not designed or
if the Product has been modified by any party other than CA. In lieu of the
foregoing indemnification obligations, CA shall have the option, at its expense,
either to procure for an End User the right to continue using the Product or to
replace or modify the Product so that it is no longer infringing, or, if such
options are not reasonably available, to refund to Reseller the amount actually
paid by Reseller to CA for the Product. The foregoing states the entire
obligation of CA with respect to the infringement of intellectual property
rights of any third party.
b) Reseller shall indemnify and hold CA harmless from and against all claims,
judgments, awards, costs, expenses, damages and liabilities (including
reasonable attorney's fees) of whatsoever kind and nature that may be asserted,
granted or imposed against CA directly or indirectly arising from or in
connection with (i) any claims that any software supplied by Reseller (other
than any unmodified Products provided by CA) infringes any third party
intellectual property rights; (ii) any misrepresentation made by Reseller
regarding CA or the Products; and (iii) any warranty, condition, representation,
guarantee or indemnity granted by Reseller with respect to the Products in
addition to the limited warranty specified in the Section 6.5 of this Agreement
titled "Limited Warranty."
6.7 DEFAULT AND TERMINATION
a) If this agreement expires or is terminated by either party, for any reason,
Reseller will immediately pay all sums due and owing to CA. All Product licenses
properly distributed by Reseller shall survive termination of this Agreement.
b) Either party may terminate this Agreement, with or without cause, on thirty
(30) days written notice to the other party.
c) If Reseller fails to pay any sum of money due and owing under this Agreement
within ten (10) days of written notice thereof from CA, CA shall have the right
to terminate this Agreement without further notice to Reseller. If either party
breaches any of the terms, conditions or provisions of this Agreement, and fails
to cure such breach within thirty (30) days after written notice thereof, the
other party shall have the right to terminate this Agreement without any further
notice.
d) This Agreement may be immediately terminated by CA if: (i) Reseller violates
any of the conditions of Section 6.4; (ii) Reseller shall cease business, file
for bankruptcy, be adjudged bankrupt or insolvent or commit any other act of
bankruptcy; (iii) there is a sale or transfer, whether by operation of law or
otherwise, of the direct or indirect control of Reseller; or (iv) there is an
attempt by Reseller to assign this Agreement or any right or obligation
hereunder CA's prior written consent.
e) In the event of a party's uncured breach of this Agreement, the non-breaching
party may, in addition to the right to withhold its performance under and/or
terminate this Agreement, avail itself of all other rights, remedies and causes
of action available at law, in equity or otherwise, against such party for
damages as a result of such breach. Unless otherwise provided in this Agreement,
remedies shall be cumulative and there shall be no obligation to exercise a
particular remedy.
f) Except as set forth below in Section 6.7 (g), on expiration or termination of
this Agreement, Reseller shall immediately return to CA, at Reseller's expense,
all copies of the Product not yet distributed, all demonstration copies of the
Product, all Documentation and all Product brochures, marketing collateral and
materials, together with a certified statement by a duly authorized officer of
Reseller stating that all such Products and materials and any other confidential
information of CA have been returned to CA.
g) In the event of any termination of this Agreement (other than termination by
CA under Sections 6.7 (c) or (d) above), Reseller shall be entitled to: (i)
retain one Demonstration Software license solely for purposes of providing
support to End Users for the remainder of any then current support contracts;
and (ii) to distribute, for a period not to exceed ninety (90) days, any
Products already paid for and held in its inventory as of the termination date,
subject to its continuing compliance with all terms of this Agreement,
including, but no limited to, the requirements of Section 3.
h) Any expiration or termination of this Agreement shall not prejudice, limit or
restrict any other rights or remedies either party may have arising prior to
such expiration or termination. CA shall be under no obligation to refund any
amounts paid to CA by Reseller for any undistributed copies of the Product held
by Reseller upon any expiration or termination of this Agreement, including,
without limitation any copies of the Product returned by Reseller to CA pursuant
to Section 6.7 (f) above, except in the event that CA terminates this Agreement
without cause under Section 6.7 (b).
i) In addition to this Section 6.7, Sections 6.4, 6.5, 6.6 and 6.8 shall survive
termination of this Agreement.
6.8 MISCELLANEOUS
a) The laws of the State of New York shall govern the construction and
enforceability of this Agreement. The parties agree that any action arising
under or relating to this Agreement or the Products shall lie within the
exclusive jurisdiction of the State and Federal Courts located in New York, New
York. Reseller consents to the exercise of jurisdiction by any such court and
agrees that process may be served on Reseller in any such action by mailing same
to Reseller at the address set forth above. If either party is compelled to seek
judicial enforcement of its rights under this Agreement, the prevailing party in
any such action shall be entitled to recover its costs incurred in such action,
including reasonable attorney's fees.
b) Each provision of this Agreement is severable from the entire Agreement, and
in the event that any provision is declared invalid or unenforceable, that
provision shall be amended if possible to be enforceable, but in any event, the
remaining provisions hereof shall remain in effect.
c) All notices and demands of any kind or nature which any party to this
Agreement may be required or may desire to serve upon any other in connection
with is Agreement shall be in writing and may be served personally or by prepaid
certified United States mail (return receipt requested) or by private mail
service (e.g., Federal Express) if a confirmation of delivery is obtained, in
either case to the addresses shown on page 1 of this Agreement. Any party hereto
may from time to time, by notice in writing served upon the other parties as
aforesaid, designate a different mailing address or a different person to which
following such service all further notices or demands are thereafter to be
addressed.
d) The parties shall be deemed for all purposes to be independent contractors.
This Agreement shall not constitute either party the employee, legal
representative or agent of the other, nor shall either party have the right or
authority to assume, create, or incur any liability or any obligation of any
kind, express or implied, against or in the name of or on behalf of the other
party.
e) No waiver by either party of any default shall operate as a waiver of any
other default or of a similar default on a future occasion. No waiver of any
term or condition shall be effective unless in writing and signed by the party
against whom enforcement of the waiver is sought. Neither party shall be
responsible for any failure to perform any obligation hereunder (except a
failure to pay) due to causes beyond its reasonable control.
f) This Agreement (including any attached Exhibits and subsequently executed
Commercial Terms Schedules referencing this document) is the complete and
exclusive statement of the understanding between the parties and supersedes all
prior agreements and representations between them relating to the subject matter
of this Agreement. The following order of precedence shall control in the event
of a conflict between the terms and conditions of this Agreement and the terms
and conditions of any Commercial Terms Schedule: (i) the Commercial Terms
Schedule for the applicable Product; and (ii) the terms of this Agreement.
Amendments to this Agreement shall not be effective unless they are in writing
and signed by authorized representatives of both parties. Reseller may not
assign this Agreement or any of its rights hereunder by operation of law or
otherwise.
IN WITNESS WHEREOF, the undersigned authorized representatives of the parties
have affixed their signatures as of the Effective Date.
RESELLER Computer Associates International, Inc.
Name: Exide Electronics
By: /s/MARTY KITTRELL By: /s/RICHARD P. CHIARELLO
(Authorized Signature) (Authorized Signature)
Vice President & Senior Vice President,
Chief Financial Officer North American Sales
(Title) (Title)
June 30, 1997 June 30, 1997
(Date) (Date)
EXHIBIT I
COMMERCIAL TERMS SCHEDULE
(UNICENTER)
This Commercial Terms Schedule is attached and incorporated by reference into
the Reseller Agreement between Computer Associates and Reseller. Capitalized
terms not defined in these Commercial Terms shall have the same meaning as set
forth in the Agreement.
1. PRODUCTS AND OPERATING ENVIRONMENTS.
A. PRODUCTS. The Products which are the subject of this Agreement are the
following object code software programs owned or licensed by CA: UNICENTER TNG.
The term "Products" shall include only software products generally available
from CA on the Operating Environments that are supported by CA and shall not
include beta, pre-release, foreign language or other special release products.
No right to use, modify or distribute the source code of the Products or any
mainframe version of the Products is granted under this Agreement.
B. OPERATING ENVIRONMENTS. Reseller may only remarket the Product on the
Operating Environments for which Reseller sales and technical employees undergo
and successfully complete the training and Certification program described in
Section 4.A below.
2. PROGRAM FEES
A. Training is available from CA at CA's standard rate per person, per day for
regularly scheduled training conducted at a CA training facility. Reseller shall
bear its own travel and subsistence expenses in connection with such training.
3. PRODUCT PRICES
A. In the event that Reseller purchases Products (and Upgrades thereto) from an
Authorized Distributor, the prices payable by Reseller and other commercial
terms (such as Products and quantities ordered, delivery dates, etc.) shall be
agreed by Reseller and the applicable Authorized Distributor of the Products.
B. The price charged by CA to Reseller for the Products ordered directly from CA
shall be CA's then prevailing suggested list price for the version of the
Products (or Upgrade) ordered by Reseller, less a forty percent (40%) discount.
C. Subject to completing the necessary training and certification set forth
below in Sections 4A, 4B and 4C of these Commercial Terms, Reseller may offer
First Level Support for the Products and may receive Second Level Support from
CA as set forth in the Agreement. For each End User receiving First Level
Support from Reseller, Reseller shall pay CA an annual Second Level Support fee
equal to thirty two percent (32%) of CA's then current list price for
Maintenance for all Products licensed by the End User. The Second Level Support
fee for the first year shall be paid together with Reseller's initial order for
the Products. Maintenance renewals shall be reported and payable by Reseller to
CA quarterly no later than fifteen (15) days following the end of each calendar
quarter during the Term of this Agreement based on all Maintenance renewals
during the prior quarter.
D. New Versions of the Products generally available from CA are provided as part
of Maintenance services provided by CA to Reseller and its End User. New
Versions may not be provided by Reseller to any End User not then in active
maintenance status and, if the End User is receiving First Level Support from
Reseller, Reseller shall have paid CA the above Second Level Support fee.
4. TRAINING AND CERTIFICATION REQUIREMENTS
Reseller acknowledges that proper usage, sales and marketing of the Product is
largely dependent on appropriate training of Reseller's sales and technical
staff. Reseller agrees to implement the following minimum training program to
ensure sufficient technical knowledge of the Product by its staff:
A. Initial Certification requires that at least two Reseller employees complete
a minimum of 2 days of Product sales and marketing training.
B. Within 6 months of execution of this Agreement, Reseller is also required to
have at least two employees technically certified for the Product Technical
certification of an employee requires the following:
1. The employee must successfully complete the TNG Basis course;
2. The employee must successfully complete a five day mentoring program
with CA;
3. The employee must also successfully complete the TNG Advanced course.
C. Prior to offering First Level Support on any Operating Environment and
thereafter during any period Reseller continues to offer First Level Support to
End Users, Reseller must have at least two employees that have successfully
completed the Technical Certification for the Product.
D. In the event that trained staff are reassigned to other duties or leave the
employ of Reseller, Reseller shall promptly cause other employees to undergo the
necessary minimum training programs.
The parties have executed this Commercial Terms Schedule (Exhibit I) effective
as of the date set forth below. In the event of conflict between the terms of
this Exhibit I and the Agreement the terms of this Exhibit I shall control with
respect to the subject matter hereof. This Exhibit I and the Agreement
represents the entire agreement of the parties.
Reseller: Computer Associates International, Inc.
Name: Exide Electronics
By: /s/MARTY KITTRELL By: /s/RICHARD P. CHIARELLO
Vice President & Senior Vice President,
Chief Financial Officer North American Sales
June 30, 1997 June 30, 1997