Exhibit 10.9
LIVINGSTON ENTERPRISES, INC.
U.S. AUTHORIZED RESELLER AGREEMENT
SOLUNET, INC.
-----------------------------------
Customer
891 ARABIA RD. S.E., SUITE 100
-----------------------------------
Street Address
PALM BAY, FL 32909
-----------------------------------
City State Zip Code
This agreement is made and entered into by and between Livingston
Enterprises, Inc. and Customer. Livingston and Customer agree that the
following provision shall govern the sale, licensing and discounting of
Equipment and Software ("Products") listed in Exhibit C or in any invoice
from Livingston to Customer under this Agreement.
1. Reseller Certification: The objective of this Agreement is to enhance
distribution of the Products by means of Customer's development of markets
and sales channels not addressed by Livingston. To effectuate this
objective, Customer agrees to the conditions set forth below.
A) Products acquired hereunder will be sold; (1) directly to End Users,
(2) located in the United States, (3) from the Location listed in
Exhibit A.
B) This appointment is non-exclusive, and Livingston expressly reserves
the right to appoint other authorized resellers and to make direct
sales to any end user.
2. Definition of Customer: For the purposes of this Agreement, the term
"Customer" shall include all subsidiaries in which Customer has an
ownership interest of greater than 50% and which are located in the
United States. Each subsidiary must be listed as an ordering location in
Exhibit A, attached hereto.
3. Terms and Conditions. Livingston's Terms and Conditions, attached hereto
as Exhibit B, shall apply to all purchases, whether discountable or not,
notwithstanding any variation as may appear on any order documents or other
business forms submitted by Customer. All order documents and amendments
thereto must reference this Agreement and are subject to acceptance by
Livingston.
4. Term. This Agreement shall become effective on the ______day of ________
19_____ and shall expire at the end of twelve (12) months, but this
agreement shall be renewed for additional periods of twelve (12) months
each, unless one party gives the other written notice of termination at
least thirty (30) days prior to the end of the current Annual Agreement
Period.
5. List Prices. List prices for Livingston's Products shall be determined
by using Livingston's current US Price List at the time Livingston accepts
Customer's order.
6. Terms of Payment. Payment terms are Net Thirty (30) days from the date
set forth on the invoice, which date shall not precede the date of shipment
of the Products. The foregoing terms are subject to Customer maintaining
credit arrangements satisfactory to Livingston. Otherwise, terms are C.O.D.
7. Provision of Discounts. Customer's net price for Products purchased under
this Agreement shall be the Livingston U.S. List Price in effect on the
date of Livingston's acceptance of the applicable order ("List Price") less
the then current and appropriate Reseller Discount. The Reseller Discount
for the term of this Agreement is specified in Exhibit C for each Product,
provided that:
A) Customer complies with all material provisions of this Agreement.
B) Each order for Products is initiated from one of Customer's Ordering
Locations listed in Exhibit A, attached hereto, as amended from time
to time.
C) Livingston reserves the right to change the List Price for any Product,
without prior notice at any time, and such changes shall be effective
immediately. A new Price List will be published and become effective on
the date specified on the Price List and will remain in effect until
superseded by a new Price List.
D) Although Livingston may publish a suggested sale price list, Customer
has the right to determine its own sale prices.
E) The Reseller Discount for any Product may be changed by Livingston upon
renewal of this Agreement by notifying Customer in writing any time
prior to the renewal date.
8. Licensing Provision.
A) Definitions
1. "Licensed Program" means each software program provided by
Livingston under this Agreement. Licensed Programs include Software
programs provided in machine readably, object, printed or
interpreted from, including modifications, enhancements and
translations thereof, and all copies and part of such Software
programs.
2. "Designated Equipment" means the Livingston products of Customer
or is end users identified by the serial number of the Equipment
with which, or for which, specified Software licenses are issued by
Livingston.
3. "Livingston Operating System" means the operating system software
developed by Livingston for use in its Equipment.
B) Object Code License.
Livingston grants Customer and Customer accepts a personal,
nonexclusive, nontransferable worldwide license to reproduce,
distribute and sublicense the Licensed Programs in object code form
only and solely for use by its end users pursuant to the provisions of
this Agreement. Customer agrees not to disassemble, reverse-engineer or
modify any of the Licensed Programs.
C) Title.
The original and any copies of the Licensed Programs, in whole or in
part, including translations, compilations, partial copies,
modifications and updates, are the property of Livingston.
D) Record Keeping and Audits.
Customer agrees to maintain shipment records relating to the Licensed
Programs, which records may be audited on behalf of Livingston by an
independent auditor no more frequently that once per year and upon
reasonable notice to Customer. These records shall specify, at a
minimum the end user name and address of the location where the
Licensed Programs are used.
E) Distribution.
Customer may distribute the Licensed Programs to end users. Each end
user shall be required to enter into a license to use the Licensed
Programs for the end user's own internal business purposes, in
accordance with the terms of the Object Code License. The end user may
use the Licensed Programs for the term and in the manner provided for
in the Object Code License. The end user's rights and obligations set
forth therein are independent of this Agreement and shall survive the
termination of this Agreement.
F) Demonstration Use.
Livingston hereby grants, and Customer hereby accepts a nonexclusive
license to use those copies of the Licensed Programs developed by
Livingston, at each Customer sales office for demonstrations and
technical support of the Products. The original and any copies of such
Licensed Programs, in whole or in part, shall be the property of
Livingston. Customer shall enter into an Object Code License to cover
this demonstration use. Termination or expiration of this demonstration
license shall not result in automatic termination or expiration of this
Agreement.
G) Termination.
Livingston reserves the right to terminate individual licenses of
Customer or its end users for failure to comply with any of the
provisions of the Object Code License. Upon any such termination,
Customer, or the affected end user, shall return to Livingston or to
Customer, as the case may be, any Software that has been provided and
render unusable any Software place in a storage apparatus.
9. Default and Remedies.
A) Livingston shall have the right to terminate this Agreement immediately
should Customer refuse to make any payments required under this
Agreement.
B) Should Livingston be forced to put Customer on credit hold because of a
failure or refusal to pay, exceeding its credit limit or any other like
reason, Livingston shall have the right to cancel any orders already
accepted by Livingston, but not yet delivered to Customer.
C) Either party shall have the right to terminate this Agreement in the
event that the other party: (1) becomes bankrupt or insolvent, suffers
a receiver to be appointed or makes an assignment for the benefit of
creditors, or (2) fails to comply with any of the material provisions
of the Agreement and such condition is not remedied within thirty (30)
days after written notice thereof has been given by the other party.
D) In the event of default by Customer under Paragraph 9 A) or B),
Livingston may, in its discretion, refuse to make further shipments and
exercise any of all of its remedies under the law including, but not
limited to, acceleration of all outstanding invoices due to Livingston,
stoppage of shipments in transit and repossession of Products not paid
for which are in Customer's possession.
E) Paragraphs 6, 8 and 13 of this Agreement and Paragraphs 5, 8, 9, 11, 12
and 13 of Exhibit B, Terms and Conditions, shall survive any
termination of this Agreement.
10. Copyright and Trademark.
A) The licensed Programs are copyrighted and may be copied only as
permitted by this Agreement and the Object Code License. As a condition
of the licenses granted herein, Customer agrees to reproduce and apply
any copyright notices and any other proprietary rights notice (as set
forth on or in the Licensed Programs delivered by Livingston) to all
copies, in whole or in part, in any form, of the Licensed Programs
reproduced.
B) The trademarks and trade name under which Livingston markets its
Products are the exclusive property of Livingston. This Agreement give
Customer no rights therein, except the restricted license to reproduce
such trademarks in any publication on the Product's provided that
Livingston is referenced as the owner of the trademarks.
11. Relationship of the Parties.
Customer's relationship with Livingston during the term of this Agreement
shall be that of an independent contractor. Customer shall not have, and
shall not represent that it has, any power, right or authority to bind
Livingston, or to assume or create any obligation or responsibility,
express or implied, on behalf of Livingston or in Livingston's name, except
as herein expressly permitted. Nothing stated in this Agreement shall be
construed as constituting Customer and Livingston as partners, or as
creating the relationships of employer and employee, franchisor and
franchisee, master and servant, or principal and agent between the parties
hereto.
12. Assignment.
Neither party may assign or otherwise transfer this Agreement or any right
under it, or any orders issued under it, without the prior written consent
of the other party, which consent shall not be unreasonably withheld.
13. General.
A) This agreement, including all Exhibits, constitutes the entire
agreement between the parties with respect to the subject matter
hereof, and supersedes all prior proposals, negotiations and
communications, oral or written, between the parties with respect to
the subject matter hereof and no deviation from these provisions shall
be binding unless in writing and signed by the party to be charged.
B) This Agreement will be governed by the Laws of the State of California
(except that body of law controlling conflicts of law). Any suit
hereunder shall be brought in the federal or state courts in the
Northern District of California and Customer hereby submits to the
personal jurisdiction thereof.
C) All rights and remedies conferred under this Agreement or by any other
instrument or law shall be cumulative, and may be exercised singularly
or concurrently. Failure by either party to enforce any provision shall
not be deemed a waiver of future enforcement of that or any other
provision. In the event that any portion of this Agreement shall be
held to be unenforceable, the remaining portions of this Agreement
shall remain in full force and effect.
D) All notices required or permitted under this Agreement shall be in
writing and shall be deemed to have been given upon personal delivery
or upon deposits in the mail, first-class, with postage prepaid. The
addresses of the parties (until written notice of change shall have
been given) shall be as follows:
Livingston: Customer:
Livingston Enterprises, Inc. SOLUNET, INC.
6920 Koll Center Parkway #209 ----------------------------
Pleasanton, California 94566 891 ARABIA RD. S.E.
----------------------------
Attn: Manager, Contracts SUITE 100
----------------------------
PALM BAY, FL 32909
----------------------------
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
LIVINGSTON ENTERPRISES, INC. CUSTOMER
BY: BY: /s/ Michael Wertheimer
-------------------------- --------------------------
NAME: NAME: MICHAEL WERTHEIMER
-------------------------- --------------------------
TITLE: TITLE: V.P. SALES
-------------------------- --------------------------
DATE: DATE: 4/21/93
-------------------------- --------------------------
EXHIBIT A
CUSTOMER'S ORDERING LOCATIONS
Name: Name:
-------------------------- --------------------------
Address: Address:
-------------------------- --------------------------
-------------------------- --------------------------
Name: Name:
-------------------------- --------------------------
Address: Address:
-------------------------- --------------------------
-------------------------- --------------------------
Name: Name:
-------------------------- --------------------------
Address: Address:
-------------------------- --------------------------
-------------------------- --------------------------
Name: Name:
-------------------------- --------------------------
Address: Address:
-------------------------- --------------------------
-------------------------- --------------------------
EXHIBIT B
TERMS AND CONDITIONS
1. Definitions.
"Equipment" shall mean the hardware components of Livingston's Products;
"Software" shall mean each software program provided by Livingston in
machine readable, object, printed or interpreted from.
"Product(s)" shall mean any configuration of hardware and software,
including documentation, sold or licensed by Livingston.
2. Acceptance of Orders.
All orders placed with Livingston by Customer for Products shall be subject
to acceptance by Livingston at its principal place of business. Acceptance
of Products shipped by Livingston is acceptance of these Terms and
Conditions.
3. Prices and Taxes.
Prices are exclusive of, and Customer is responsible for, all sales, use
and like taxes. Livingston will invoice Customer for all applicable taxes,
unless Customer supplied an appropriate tax exemption certificate in a form
satisfactory to Livingston.
4. Delivery.
A. Unless otherwise specified by Customer, delivery will be made FOB
Livingston's facilities, freight charges prepaid and billed within the
contiguous limits of the United States, including Alaska and Hawaii.
B. Title to the Equipment will pass to Customer upon delivery of the
Equipment by Livingston to a carrier, and upon that delivery, Customer
will be responsible for, and will bear the entire risk of loss or
damage to the Products, regardless of when acceptance occurs. In no
event shall title pass to Customer for any Software, except title shall
pass to Customer for the media on which the Software is recorded.
C. The scheduled delivery date shall be that date acknowledge by
Livingston. Livingston shall considered any date requested by Customer.
D. Livingston shall use its best efforts to meet the scheduled delivery
date.
5. Proprietary Rights
Livingston retains for itself all proprietary rights in and to all designs,
engineering details, schematics, drawings and other similar data pertaining
to the Equipment and which is provided to Customer under this Agreement.
Proprietary Information which Livingston may furnish to Customers shall be
in Customer's possession pursuant only to a restrictive, nontransferable,
nonexclusive license under which Customer may use such Proprietary
Information solely for the purposes of operating the Equipment, or
integrating the Equipment into a system, and for no other purpose. Customer
shall not, without the express written consent of Livingston, provide,
disclose, transfer or otherwise make available any Proprietary Information,
or copies thereof, to any third party. Customer shall take appropriate
action by instructions, agreement or otherwise with those of its employees
and third party agent having access to any Proprietary Information, in
accordance with the provisions of these Terms and Conditions. Customer
agrees to protect any Proprietary Information with the same standard of
care which it uses to protect its own like information.
6. Sale Conveys No license: The Equipment is offered for sale, and is sold
by Livingston subject, in every case, to the condition that such sale does
not covey any license, expressly or by implication, estoppel or otherwise,
under any patent claim with respect to which Livingston can grant licenses
covering the Equipment or any assembly, circuit combinations, method or
process therein, except that Customer may use the Equipment containing
patented devices in the normal course of Customer's business. Livingston
expressly reserves all its right under such patient claims.
7. Inspection and Acceptance.
A) Acceptance shall be accomplished by using test procedures and/or
programs established by Livingston which are applicable to the
products. Such acceptance shall be at the time of completion of final
test at Livingston's facilities.
B) Software. Software is warranted in accordance with the Object Code
License for the specific product. This Object Code License will be
shipped to the LICENSEE with the Product.
C) General. The stated warranties apply only to the initial end user and
are contingent upon proper treatment and use of the Products and
maintenance of a safe and suitable site. EXCEPT FOR THE EXPRESS
WARRANTIES STATED HEREIN, LIVINGSTON DISCLAIMS ALL WARRANTIES, EXPRESS
OR IMPLIED, ON PRODUCTS FURNISHED HEREUNDER, INCLUDING WITHOUT
LIMITATION THE WARRANTIES OF DESIGN, MERCHANTABILITY OF FITNESS FOR A
PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR
TRADE PRACTICE.
8. Limitation of Liability.
LIVINGSTON'S LIABILITY UNDER OR FOR BREACH OF THIS AGREEMENT WILL BE
LIMITED TO REFUND OF THE PURCHASE PRICE OR LICENSE FEE. IN NO EVENT WILL
LIVINGSTON BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY
CUSTOMER. IN NO EVENT WILL LIVINGSTON BE LIABLE FOR ANY SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGE, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY,
NEGLIGENCE OR OTHERWISE.
9. Software License.
Livingston shall retain all right, title and ownership of any Software
provided to Customer or its end users. Use of Software is governed by the
provisions of the Object Code License.
10. Substitutions and Modifications.
Livingston shall have the right to make substitutions and modifications
in the specifications of the Products, provided that such substitutions or
modifications will not materially adversely affect overall Products
performance.
11. Export.
Regardless of any disclosure by Customer to Livingston of the ultimate
destination of the Products, Customer will
not export, directly or indirectly, any Livingston Product without first
obtaining an export license from the US Department of Commerce or any other
agency or department of the United States Government, as required.
12. Patent, Trade Secret and Copyright Indemnification.
A) Livingston will defend, at its expense, any action brought against
Customer to the extent that it is based on a claim that the use of
Equipment, within the scope of this Agreement, infringes any United
States patent, trade secret or copyright, and Livingston will indemnify
Customer from any costs, damages and fees finally awarded against
Customer in such action which are attributable to such claim, provide
that Customer notifies Livingston promptly in writing of the claim; and
provide further that, Customer permits Livingston to defend, compromise
or settle the claim and provides all available information, assistance
and authority to enable Livingston to do so, provided Livingston
reimburses Customer for such activity. Customer shall have no authority
to settle any claim on behalf of Livingston.
B) Should Equipment become, or in Livingston's opinion be likely to
become, the subject of a claim of infringement of a patent, trade
secret or copyright, Livingston may (i) procure for Customer, at no
cost to Customer, the right to continue to use the Equipment, (ii)
replace or modify the Equipment, at no cost to Customer, to make such
noninfringing, provided that the same function is performed by the
replacement or modified Equipment, or (iii) if the right to continue to
use cannot be procured or the Equipment cannot be replace or modified,
terminate the right to use such Equipment, remove the Equipment and
grant Customer credit thereon as depreciated on a straight-line five
(5) year bases.
C) Livingston shall have no liability for any claim of patent, trade
secret or copyright infringement based on the (i) use of other that the
then-latest version of the Equipment from Livingston, if such
infringement could have been avoided by the use of the latest version
of the Equipment and such latest version has been made available to
Customer, but Customer, with knowledge of actual or possible
infringement, chose to retain the prior version, or (ii) use of
combination of the Equipment with software, hardware or other materials
not provided by Livingston.
D) THIS ARTICLE STATES THE ENTIRE LIABILITY OF LIVINGSTON WITH RESPECT TO
INFRINGEMENT OF ANY PATENTS, TRADE SECRETS OR COPYRIGHTS BY THE
EQUIPMENT OR ANY PARTS OR USE THEREOF AND LIVINGSTON SHALL HAVE NO
ADDITIONAL LIABILITY WITH RESPECT TO ANY ALLEGED OR PROVEN
INFRINGEMENT.
13. Force Majeure.
If the performance of this Agreement, or any obligation hereunder except
the making of payments hereunder is prevented, restricted or interfered
with by reason of fire, flood, earthquake, explosion or other casualty or
accident, strikes or labor disputes, inability to procure or obtain
delivery of parts, supplies or power, war or other violence, any law,
order, proclamation, regulations, ordinance, demand or requirement of any
governmental agency, or any other act or condition whatsoever beyond the
reasonable control of the affected party, the party so affected, upon
giving prompt notice to the other party, shall be excused from such
performance to the extent of such prevention, restriction or interference;
provided, however, that the party so affected shall take all reasonable
steps to avoid or remove such cause of nonperformance and shall resume
performance hereunder with dispatch whatever such causes are removed.
EXHIBIT C
PRODUCTS AND DISCOUNTS
PRODUCT NO. DESCRIPTION DISCOUNT (%)
- ----------- ----------- ------------
- ----------- ----------- ------------
ALL 40%
- -------------- --------------------------------------- --------------
- -------------- --------------------------------------- --------------
- -------------- --------------------------------------- --------------
- -------------- --------------------------------------- --------------
- -------------- --------------------------------------- --------------
- -------------- --------------------------------------- --------------
- -------------- --------------------------------------- --------------
- -------------- --------------------------------------- --------------
- -------------- --------------------------------------- --------------
- -------------- --------------------------------------- --------------
- -------------- --------------------------------------- --------------
- -------------- --------------------------------------- --------------
- -------------- --------------------------------------- --------------