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EXHIBIT 10.31
CITRIX SOLUTIONS NETWORK
GOLD RENEWAL MEMBERSHIP AGREEMENT
This Agreement ("Agreement") is between:
CITRIX SYSTEMS, INC. ("Citrix"), a Delaware corporation, located at 6400
NW 6th Way, Fort Lauderdale, Florida 33309, and FutureLink, a U.S. corporation,
located at 200 250 6th Ave. SE Calgary, Alberta, Canada ("CSN Member").
Whereas, CSN Member desires to recommend or to provide comprehensive
computer solutions to its customers in the Territory in accordance with the
Member program defined in this agreement; and
Citrix desires to supply Citrix software and provide services and support
on Citrix products to assist CSN Member in providing its customers with such
solutions;
Now, therefore, in consideration of the mutual promises contained herein,
the parties agree as follows:
1. MEMBER OBLIGATIONS. Pursuant to this Agreement, Member makes the following
promises and undertakes the following obligations to Citrix:
1.1 CSN Member shall procure Citrix products from authorized distributors
of Citrix products in accordance with the terms of the license
agreements provided with each product, provided however that CSN
Member may distribute the Citrix products in accordance with the
license granted in Section 2.1 of this Agreement.
1.2 When requested by Citrix, CSN Member shall provide information to
Citrix regarding sales leads, referrals and services provided by
Citrix relating to the Citrix products. The information shall be
compiled in the form requested by Citrix or such other form as may be
agreed upon by the parties and shall be forwarded to the Citrix
address indicated above.
1.3 CSN Member represents and warrants that all the information provided
to Citrix hereunder, is, in all material respects, true and correct to
the best of its knowledge and belief, and will continue to be so
during the term of this Agreement. Should there be any changes in such
information during the course of this Agreement, CSN Member agrees to
promptly inform Citrix in writing, giving details of such changes.
1.4 CSN Member warrants that at all times during the term of this
Agreement at least one (1) full-time member of its staff located at
CSN Member's principal place of business will be a Citrix Certified
Administrator Professional. CSN Member shall, within thirty (30) days
replace the CCA Professional on its staff, if said CCA no longer works
there.
1.5 Upon execution of this Agreement, Citrix Solutions Member shall pay
the fees set forth in the Section 10 that accompanies this Agreement.
2. CITRIX OBLIGATIONS. Pursuant to this Agreement, Citrix grants the following
license, makes the following promises and undertakes the following
obligations to CSN Member:
2.1 Citrix grants to CSN Member a non-exclusive, non-transferable license
to distribute Citrix products to end users in the Territory pursuant
to the license agreements included with such products.
2.2 CSN Member is entitled to the support options shown in Sections 11.3
and 11.4 of this Agreement.
2.3 Citrix will make available all benefits listed in Section 11 of this
Agreement.
3. TRADEMARKS.
3.1 During the term of this Agreement, CSN Member shall have the right to
identify itself as a "Citrix Solutions Provider" or a "Gold Solutions
Provider."
3.2 During the term of this Agreement, CSN Member may refer to Citrix
products using the Citrix product trademarks in compliance with local
laws and customs concerning the protection of trademarks and trade
names if the reference is not misleading and does not indicate or
imply Citrix's endorsement, testing, or approval of any other product
or of any service offered by CSN Member. The appropriate trademark
symbol (either "(TM)" [standard trademark] or (R) [registered
trademark] in a superscript following the product name) shall be used
whenever a Citrix product name is mentioned in any advertisement,
brochure, or material circulated or published in any form whatsoever
by CSN Member. The appropriate trademark symbol must be used in
conjunction with, at least, the first reference to each Citrix product
in all CSN Member's publications.
3.3 Citrix reserves the right to amend any Citrix trademark, service mark
or logo and agrees to notify CSN Member of any such amendments that
are relevant to CSN Member's business. CSN Member agrees to ensure
that its use of any such mark and/or logo is amended accordingly.
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3.4 CSN Member shall obtain Citrix's written approval prior to the
commencement of any other use of a Citrix trademark or trade name.
3.5 CSN Member shall not use any Citrix service mark during the term of
this Agreement or thereafter.
4. CONFIDENTIALITY.
4.1 Each party expressly undertakes to retain in confidence the terms and
conditions of this Agreement and all information transmitted to the
other that the disclosing party has identified in writing as
confidential.
4.2 Either party may disclose confidential information as required by
governmental or judicial order, provided such party gives the other
party prompt written notice prior to such disclosure and complies with
any protective order (or equivalent) imposed on such disclosure.
4.3 Neither party shall have an obligation to maintain the confidentiality
of information that (i) it received rightfully from a third party
prior to its receipt to the disclosing party; (ii) the disclosing
party has disclosed to a third party without any obligation to
maintain to such information in confidence; or (iii) is independently
developed by the obligated party. Each party's obligation under this
Section shall survive the expiration or earlier termination of this
Agreement and shall extend to the earlier of such time as the
information protected hereby falls into the public domain through no
fault of the obligated party or five (5) years following termination
or expiration of this Agreement.
5. TERM AND TERMINATION.
5.1 This Agreement shall take effect on the date of its execution by
Citrix ("Effective Date"), and unless terminated earlier as provided
herein, shall continue for a period of one year from the Effective
Date. Either party shall have the right to terminate this Agreement at
any time, without cause and without the intervention of the courts, on
the giving of thirty (30) days' prior written notice. Neither party
shall be responsible to the other for any costs or damages resulting
from the termination of this Agreement.
5.2 Upon expiration or termination of this Agreement, all rights and
licenses granted by this Agreement shall revert to Citrix and CSN
Member shall immediately cease use of all licenses and the Citrix
Solutions Provider logo, and shall cease to represent itself as a
Citrix Solutions Provider.
6. NEW PRODUCTS.
6.1 Notwithstanding any other provisions of this Agreement, Citrix may
elect any time during the term of this Agreement to announce new
Citrix products to which the terms and conditions of this Agreement
may not apply. New versions (upgrades), minor product revisions
(updates), and maintenance releases of existing titles are not
considered new Citrix products.
7. WARRANTIES/LIMITED WARRANTIES.
7.1 Citrix warrants Citrix products on the terms set out in the license
agreement accompanying each such product. THESE LIMITED WARRANTIES ARE
IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED, IMPLIED, OR
STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, AND AGAINST INFRINGEMENT AND OF ALL
OTHER OBLIGATIONS, CONDITIONS, OR LIABILITIES ON CITRIX'S PART EXCEPT
AS OTHERWISE PROVIDED BY APPLICABLE LAW.
8. LIMITATION OF LIABILITY.
8.1 Subject to applicable law, neither Citrix nor anyone else who has
been involved in the creation, production, or delivery of the products
or services that are the subject of this Agreement shall be liable for
direct, indirect, consequential or incidental damages (including
damages for loss of business profits, business interruption, loss of
business information, and the like) arising out of the use of or
inability to use the Citrix products, or provision of, or failure to
provide, support, even if Citrix has been advised of the possibility
of such damages. Because some jurisdictions do not allow the exclusion
or limitation of consequential or incidental damages, the above
limitation may not apply. In any event, except as otherwise provided
by law, the liability of Citrix or its suppliers, whether for
negligence, breach of contract, breach of warranty, or otherwise,
shall, in the aggregate, not exceed the amount paid to Citrix by CSN
Member hereunder.
9. PURCHASE COMMITMENT; TERRITORY.
9.1 The benefits offered to Citrix Gold Solutions Providers pursuant
to this agreement are based upon a commitment by CSN Member to achieve
an annual distribution to end users of a minimum of One Hundred
Thousand Dollars ($100,000) of Citrix products. During the term of
this Agreement, CSN Member shall inform Citrix if, for any
twelve-month period beginning on the date of execution of this
Agreement or, in subsequent years, on the anniversary of such date,
the CSN Member shall not achieve this committed volume. The
achievement of the committed volume will be demonstrated at the close
of each annual period by submission to Citrix of copies of paid
invoices for Citrix products.
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9.2 CSN Member Territory: United States of America, Canada, Puerto
Rico, Bermuda, The Bahamas and Jamaica.
10. FEES, PAYMENT TERMS.
10.1 A fee in the amount of 0 for the products and services provided
by Citrix pursuant to this Agreement shall be submitted to
Citrix with CSN Member's signed copy of this Agreement.
11. CITRIX AGREES TO PROVIDE THE FOLLOWING PRODUCTS AND SERVICES TO CITRIX
GOLD SOLUTIONS PROVIDERS:
11.1 Not-for-Resale Softeware for Internal Use - Citrix will provide
each CSN Member an update to the current version of the one (1)
not-for-resale copy of each Citrix product procured by CSN
Member hereunder solely for internal use to provide support to
end users.
11.2 Citrix Tool Box - The tool box will include marketing, sales and
technical information and materials useful in the promotion of
Citrix-based solutions.
11.3 Support Engineer - Citrix will assign a Citrix support engineer
to provide technical support by telephone and/or on-line to each
CSN Member. Such technical support shall:
11.3.1 Be provided only to a CSN Member's Citrix Certified
Administrator Professional;
11.3.2 Consist of access to a Citrix support engineer on
weekdays (other than nationally recognized holidays)
between the hours of 8:00 AM and 9:00 PM (EST) for
reporting problems encountered in the use of Citrix
products and the provision of workarounds released by
Citrix to address reported problems; and
11.3.3 Require the submission by email of a problem report
which includes a description of the software bug and a
test case which demonstrates the bug on the then
current penultimate release of the Citrix product.
11.4 On-line Technical Support - CSN Member shall be provided
on-line technical support via CompuServe forum and/or BBS and
FTP sites.
11.5 Market Development Program - Citrix will provide up to Fifteen
Hundred Dollars ($1,500) in matching Market Development
Funds and Volume Bonus rewards. These funds may be used to
reimburse expenditures by CSN Member for pre-approved marketing
activities such as seminars, mailings and advertising. During
the term of this Agreement, CSN Member will continue to be
eligible to participate in the Market Development programs
offered by Citrix to CSN Member. All funds expire if not used
during the term of this Agreement.
11.6 Volume Bonus Program - For every Fifty Thousand Dollars
($50,000) in Citrix products acquired by CSN Member from a
Citrix authorized Distributor (as demonstrated by submission
to Citrix of copies of paid invoices for Citrix products), CSN
Member will receive product as described in the terms of the
Volume Bonus Award Program.
11.7 Sales Lead Program - During the term of this Agreement, CSN
Member will be eligible to participate in Citrix generated
sales leads and referrals programs offered by Citrix to
CSN Member in CSN Member's designated market place.
11.8 Web Page Listing - Citrix will list CSN Member on the Citrix
Web Page within sixty (60) days of Member completing all
requirements of membership.
11.9 Citrix Sales Representative - Citrix will assign a Citrix sales
representative to assist CSN Member in the marketing of
products.
11.10 Citrix Corporation Evaluation Program - Citrix grants to CSN
Member a non-exclusive, non-transferable license to sublicense
a limited number of copies of Citrix products to end users for
evaluation purposes only in accordance with the terms of the
Citrix Evaluation Program. The terms of the Citrix Evaluation
Program are available upon request and may be amended by Citrix
at any time.
11.11 On-Site Sales Training - Citrix will provide on-site sales
training to the Platinum Solutions Provider 6 times throughout
the term of this agreement.
12. GENERAL.
12.1 Except as expressly granted herein, no license regarding the
use of Citrix's copyrights, patents, trademarks or trade names
is granted or will be implied.
12.2 If a particular provision of the Agreement is terminated or
held by a court of competent jurisdiction to be invalid,
illegal, or unenforceable, this Agreement shall remain in full
force and effect as to the remaining provisions.
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12.3 No waiver of any breach of any provisions of this Agreement shall
constitute a waiver of any prior, concurrent, or subsequent breach
of the same or any other provisions hereof, and no waiver shall be
effective unless made in writing and signed by an authorized
representative of the waiving party.
12.4 Neither this Agreement, nor any terms and conditions contained
herein, shall be construed as creating a partnership, joint
venture, franchise or agency relationship between Citrix and CSN
Member.
12.5 CSN Member agrees that it shall inform its customers that CSN
Member is an independent business from Citrix, and shall not hold
itself out as an agent of Citrix, or attempt to bind Citrix to any
third-party agreement. CSN Member shall defend, indemnify, and hold
harmless Citrix from and against all liabilities, claims, costs,
fines, and damages of any type (including attorney's fees) arising
out of or in any way related to CSN Member's delivery of training
services and/or product support to its customers.
12.6 This Agreement, and any rights or obligations hereunder, shall not
be assigned or sublicensed by CSN Member, without prior written
consent from Citrix.
12.7 This Agreement shall be governed by the laws of the State of
Florida and CSN Member consents to jurisdiction and venue in the
state and federal courts sitting in the State of Florida. If either
Citrix or CSN Member employs attorneys to enforce any rights
arising out of or relating to this Agreement, the prevailing party
shall be entitled to recover costs and attorney's fees.
12.8 The making, execution and delivery of this Agreement have been
induced by no representations, statements, warranties or agreements
other than those herein expressed.
12.9 No term or provision of this Agreement may be changed, waived,
discharged or terminated except by a writing signed by duly
authorized officers of the parties hereof. The terms of any other
documents or electronic communications exchanged (including the
terms set forth on any purchase order) shall be of no force or
effect unless incorporated herein as a modification or addition to
the terms of this Agreement.
12.10 This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior
and contemporaneous communications including all prior and current
Citrix Authorized Reseller and Citrix Authorized Premier Reseller
Agreements. It shall not be modified except by a written agreement
dated subsequent to the Effective Date of the Agreement and signed
on behalf of CSN Member and Citrix by their respective duly
authorized representatives.
CSN MEMBER
Company Name: FutureLink
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Authorized Signature:
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Name (printed)
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Title: President
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Date: 4/20/99
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ACCEPTED BY CITRIX SYSTEMS
Authorized Signature: /s/ MICHELLE KEEFER
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Name (printed) Michelle Keefer
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Title: Manager, Channel Operations
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Effective Date: 7/16/99
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