EXHIBIT 10.14
[GRAPHIC OMITTED]
Sun Channel Agreement #CS-US-004-194-R
SUN CHANNEL AGREEMENT MASTER TERMS
THIS SUN MICROSYSTEMS, INC. CHANNEL AGREEMENT MASTER TERMS ("Master Terms"), is
made as of the 1st day of February, 2000 ("Effective Date") between Sun
Microsystems, Inc., with its address at 901 San Antonio Road, Palo Alto, CA
94303 ("Sun"), and EMTEC, Inc. with its address at 817 East Gate Drive, Mount
Laurel, NJ 08054 ("Partner", "Regional Systems Partner" or "National Systems
Partner").
The parties agree as follows:
1. SCOPE OF AGREEMENT
1.1 Exhibits and Schedules. These Master Terms describe the general terms by
which Partner may purchase Products and Services from Sun or from a Sun
authorized Master Reseller as set forth in an Exhibit. The specific terms
related to the purchase of Equipment, Software and Services are described
in the appropriate Product Exhibits or Service Exhibits and Schedules
(collectively referred to as "Exhibits"). Each Exhibit and these Master
Terms together constitute a separate agreement ("the Agreement"). Exhibits
may be added or deleted from time to time by the agreement of the parties,
but Partner is only authorized to purchase Products or Services hereunder
to the extent that one or more applicable Exhibit(s) is executed and in
force.
1.2 Order of Precedence. The provisions of any Exhibit will take precedence
over these Master Terms, to the extent that they are inconsistent.
2. DEFINITIONS
2.1 EQUIPMENT means the hardware components (may also be referred to as
"hardware") of Product and includes the media on which Software is
pre-loaded.
2.2 PRODUCT(S) means any Equipment and Software delivered by Sun directly or
indirectly to Partner under the Agreement
2.3 SERVICE(S) means any consulting, educational and support services provided
directly or indirectly to Partner under the Agreement.
2.4 SOFTWARE means any binary software (and related documentation) provided by
Sun directly or indirectly to Partner under the Agreement
3. TERM AND TERMINATION
3.1 Term. These Master Terms commence on the Effective Date and will continue
until the expiration or termination of all Exhibits.
Each Exhibit shall detail the commencement date of the Exhibit ("Exhibit
Effective Date").
3.2 Termination at Will. Either party may terminate these Master Terms for
convenience on written notice to the other party in the event that all Exhibits
have been terminated or have expired.
3.3 Termination for Cause. Either party may terminate these Master Terms and
any or all Exhibits:
(a) immediately, by written notice, upon material breach by the other party of
the Agreement, if such breach cannot be remedied;
(b) by written notice, if the other party fails to cure any material remediable
breach of the Agreement within thirty (30) days of receipt of written
notice of such breach;
(c) automatically if Partner ceases to do business in the normal course,
becomes or is declared insolvent or bankrupt, is the subject of any
proceeding relating to the liquidation or insolvency of Partner which is
not dismissed within ninety (90) days or makes an assignment for the
benefit of its creditors;
(d) immediately by written notice if Partner undergoes any change in ownership
or control (whether by way of voting or contact rights or otherwise) or in
its business, which change Sun considers material, in light of the fact
that Partner has been appointed by Sun because of its present financial,
technical and managerial conditions.
3.4 Termination by Sun In addition to the general reasons ad forth in Sections
3.2 and 3.3 above, Sun may terminate these Master Terms and any or all
Exhibits, immediately by written notice if Partner.
(a) breaches any Sun Software license;
(b) breaches Section 5 (Confidential
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Information) of these Master Terms;
(c) breaches (or Sun reasonably believes Partner will breach) the U.S.
Export Administration Regulations, the U.S. Foreign Corrupt Practices Act
or similar laws or regulations of any other government; or
(d) infringes or challenges the validity of any Sun copyright or Sun
Trademark (as defined herein).
3.5 Consequences of Termination or Expiration. Upon any expiration or
termination of the Agreement (or all of them), the following will occur
(a) all outstanding invoices and amounts owing from Partner to Sun will
thereupon become immediately due and payable;
(b) Sun will have the right of first refusal to repurchase Products in
Partner's inventory at the lower of net invoice price or the then fair
market value, as may be adjusted for any amounts due but unpaid pursuant
to Section 3.5(a). If Sun desires to exercise this right, it will do so by
written notice. Except in the case of Sun's termination for material
breach, for a period of ninety (90) days from the date of termination or
expiration, Partner may sell and/or license under the terms of the
Agreement any inventory Sun elects not to repurchase;
(c) Sun will have the right to cancel by written notice all or part of any
unfulfilled order previously accepted by Sun. To the extent that Sun does
not cancel any such order, the Agreement will continue to apply to such
order;
(d) Partner will immediately return a Sun property under Partner's control
(including without limitation all Sun confidential information,
schematics, manuals, Software and Sun business Plans) and remove, cancel
and/or come to use the Sun Trademarks, any signs or other advertising
materials referring to Sun, or Products or Services or to Partner as an
authorized reseller of Sun; and
(e) all of Partner's rights under the Agreement shall immediately cease
and Partner shall at no time in the future represent that it in an
authorized reseller of Sun or that it is in any way associated with Sun or
Products or Services.
3.6 Survival. Rights and obligations under the Agreement which by their nature
should survive, will remain in effect after termination or expiration of
the Agreement,
3.7 No Liability for Termination or Expiration. The right of termination or
expiration provided herein is absolute. Each party waives and releases the
other from any claim to compensation or indemnity related to the permitted
or lawful termination of the business relationship established under the
Agreement.
4 COMMERCIAL TERMS
4.1 Commercial terms for Partners who purchase Products or Services from a Sun
authorized Master Reseller will he determined by Partner's agreement with
such Master Reseller. This Section 4.1 applies only to Partners who
purchase Products or Services directly from Sun.
(a) Prices and Taxes. Prices and fees for Products and Services are
exclusive of all shipping and insurance charges, and do not include sales
tax or any other tax based upon the value of Products and/or Services.
Partner is responsible for Payment of all such charges and taxes.
(b) Payments. If Partner satisfies Sun's credit requirements, payment
terms are net thirty (30) days from (i) the date of invoice for Products
or Services, or (ii) where Partner Is purchasing Products, the date of
shipment of Products, whichever is the later. Otherwise terms are cash in
advance of delivery. Sun in its reasonable commercial judgment may place
Partner on credit hold, in which event Sun will promptly inform, Partner
and may: i) with respect to Product Purchases, delay or reschedule Partner
orders, and ii) with respect to Services, discontinue delivery upon thirty
(30) days' written notice to partner. Interest will accrue from the date
on which payment is due at the lesser of fifteen percent (15%) per annum
or the maximum rate permitted by applicable law. Partner will not be
required to pay the disputed portion of any invoice, pending resolution of
that dispute, provided that written notice of the dispute has been
forwarded to Sun in writing within fifteen (15) days of the date of that
invoice.
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4.2 Records and Audits. During the term of the Agreement and for a period of
five (5) years thereafter, Partner will maintain accurate records as
necessary to verify compliance with the Agreement. Sun may audit these
records at any time after reasonable written notice to verify compliance.
Sun will conduct this audit through an independent auditor of Sun's choice
("Auditor"). Auditor will be bound to keep confidential the details of the
business affairs of Partner and to limit disclosure of the audit results
to only the sufficiency of the records, including, whether Partner is in
compliance with the terms of the Agreement and the amount, if applicable,
of any required additional payment or other payment adjustment. Except as
described below, Sun will bear all costs and expenses associated with the
exercise of its audit rights. Any errors in payments identified will be
corrected by Partner by appropriate adjustment in payment for the
quarterly period during which the error is discovered. In the event of an
underpayment of more than five Percent (5%), Partner will reimburse Sun
the amount of the underpayment, the reasonable charges of the Auditor in
performing the audit that identified the underpayment, and interest on the
overdue amount at the maximum allowable interest rate from the date the
obligation accrued.
5. CONFIDENTIAL INFORMATION
If either Party desires that information provided to the other party under the
Agreement be held in confidence, that party will, prior to or at the time of
disclosure, identify the information in writing as confidential or proprietary.
The recipient may not disclose such confidential or proprietary information, may
use it only fur purposes specifically contemplated in the Agreement, and must
treat it with the same degree of care as it does its own similar information,
but with no less than reasonable care. These obligations do not apply to
information which: a) is or becomes known by recipient without an obligation to
maintain its confidentiality; b) is or becomes generally known to the public
through no act or omission of recipient; or c) is independently developed by
recipient without use of confidential or proprietary information. This section
will not affect any other confidential disclosure agreement between the parties.
6. LIMITED WARRANTIES
6.1 Product and Service Warranties. Any warranties for Products and
Services will be specified in the Exhibit(s).
6.2 Year 2000 Warranty.
(a) Sun warrants that specified versions of Products identified on Sun's
external Website (Url: www.sun.com/y2000/opl.html) as being Year 2000
compliant ("Listed Products") will not produce errors in the processing of
date data related to the year change from December 31, 1999 to January 1,
2000. Date representation, including leap years, will be accurate when
Listed Products are used in accordance with their accompanying
documentation, provided that all hardware and software products used in
combination with Listed Products properly exchange date data with them.
(b) Versions of Products identified on Sun's external Web site as not yet
compliant, but which are scheduled to be made compliant, will become
Listed Products when remedial replacement parts, patches, software
updates or subsequent releases ("Y2K Fixes") amre issued and properly
installed.
(c) Other Products are not covered by these warranties.
(d) To the extent that Sun installs Y2K Fixes or performs other Services
under the Agreement for Partner, Sun respectively warrants that: (i)
upon installation of the Y2K Fixes, Products will become Listed
Products; and (ii) Services performed on Listed Products will not
result in them ceasing to be Listed Products.
(e) Partner's sole and exclusive remedy for Sun's breach of these
warranties will be for Sun at its option: (i) to use commercially
reasonable efforts to repair Listed Products or provide Y2K Fixes, as
the case may be; (ii) to supply functionally equivalent Year 2000
compliant products; or (iii) if (i) and (ii) are commercially
unreasonable, to refund to Partner its net book value respectively for
non-compliant Listed Products or products for which scheduled Y2K Fixes
were not provided.
6.3 DISCLAIMER OF WARRANTIES. UNLESS SPECIFIED IN THE AGREEMENT, ALL
EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES,
INCLUDING ANY IMPLIED WARRANTY OF
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MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-
INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT
SUCHDISCLAIMERS ARE HELD TO BE LEGALLY INVALID.
7. IMPORT AND EXPORT LAWS
All Products, Services and technical data delivered under the Agreement am
subject to U.S. export control laws and may be subject to export or import
regulations in other countries. Partner agrees to comply strictly with all such
laws and regulations and acknowledges that it has the responsibility to obtain
such licenses to export, re-export or import as may be required after delivery
to Partner.
8. NUCLEAR APPLICATIONS
Partner acknowledges that Products and/or Services are not designed or intended
for use in the design, construction, operation or maintenance of any nuclear
facility. SUN DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH
USES.
9. TRADEMARKS
9.1 Trademarks. "Sun Trademarks" means all names, marks, logos, designs, trade
dress and other brand designations used by Sun in connection with Products
and Services. Partner may refer to Products and Services by the associated
Sun Trademarks provided that such reference is not misleading and complies
with Sun's Trademark and Logo Policies. Partner may not remove or alter any
Sun Trademarks, nor may it co-logo Products. Partner agrees that any use of
Sun Trademarks by Partner will inure to the sole benefit of Sun or its
licensors. Partner agrees not to incorporate any Sun Trademarks into
Partner's trademarks, service marks, company names, internet addresses,
domain names, or any other similar designations.
9.2 Special Program Logos. Partner may use the special program logo, if any,
applicable to Partner's appointment, as established in any Exhibit only:
(a) as shown in the artwork provided by Sun; (b) in pre-sale marketing
materials and advertising, but not on goods, packaging, product labels,
documentation or other materials distributed with Products; (c) in a manner
no more prominent than Partner's corporate name and logo; and (d) otherwise
in accordance with the then current Sun Trademark and Logo Policies.
9.3 Use of Partner Information Sun has the right to disclose and publish
Partner's name, address and profile information in connection with
Sun's Partner programs.
10. INTELLECTUAL PROPERTY CLAIMS
Sun will indemnify Partner for its reasonable expenses and will defend or
settle at Sun's option and expense any legal proceeding brought against
Partner, to the extent that it is based on a claim that Products infringe a
trade secret, a trademark, a mask work, a copyright or a patent. Sun will
pay all damages and costs awarded by the court which finally determines the
case or are incurred in the settlement thereof, provided that Partner: (a)
gives written notice of the claim promptly to Sun; (b) gives Sun sole
control of the defense and settlement of the claim; (c) provides to Sun all
available information and assistance; and (d) has not compromised or
settled such claim. If any Products or Materials are found to infringe, or
in Sun's opinion are likely to be found to infringe, Sun may elect to: (a)
obtain for Partner the right to use such Products and/or Materials; (b)
replace or modify such Products and/or Materials so that they become
non-infringing; or if neither of these alternatives is reasonably
available, (c) remove such Products and/or Materials and refund Partner's
net book value for these Products and/or Materials. Sun has no obligation
under this Section 10 for any claim which results from: (a) use of Products
and/or Materials in combination with my equipment, software or data not
provided by Sun; (b) Sun's compliance with designs or specifications of
Partner, (c) modification of Products and/or Materials; or (d) use of an
allegedly infringing version of any Products and/or Materials, if the
alleged infringement could be avoided by the use of a different version
made available to Partner. THIS SECTION 10 STATES THE ENTIRE LIABILITY OF
SUN AND EXCLUSIVE REMEDIES OF Partner FOR CLAWS OF INFRINGEMENT.
11. LIMITATION OF LIABILITY
Except for obligations under Section 10 (Intellectual Property Claims), or
Section 12 (Indemnity and Insurance) or breach of any applicable license
grant, and to the extent not prohibited by applicable law (i) each party's
aggregate liability to the other for claims relating to the Agreement,
whether for breach or in tort, including but not limited to negligence, will
be limited to the amount paid to Sun for Products, Services, or Materials
which are the subject matter of the claims, and (ii) neither party will be
liable for any indirect, punitive, special, incidental or consequential
damages in connection with or arising out of the Agreement (including loss of
business, revenue, profits, use, data or other economic advantage) however it
arises, whether for breach or in tort, even if that
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party has been previously advised of the possibility of such damage.
LIABILITY FOR DAMAGES WILL BE LIMITED AND EXCLUDED EVEN IF ANY EXCLUSIVE
REMEDY PROVIDED FOR IN THE AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
12. INDEMNITY AND INSURANCE
Except for claims arising under Section 10 (Intellectual Property Claims),
Partner will indemnify Sun and its suppliers from and against all claims,
liabilities, damages and costs (including legal fees and costs), relating to
(i) Partner's use or distribution of Products and Services under the
Agreement or (ii) any acts or omissions of Partner. Partner shall carry
liability insurance to protect Sun from all such clams, pay the premiums
therefore, and deliver to Sun, upon request, proof of such insurance (which
shall require thirty (30) days' written notice to Sun in event of
modification or termination).
13. FORCE MAJEURE
A party is not liable under the Agreement for nonperformance caused by
events or conditions beyond that party's control, if the party makes
reasonable efforts to perform. This provision does not relieve either party
of its obligation to make payments then owing
14. WAIVER OR DELAY
Any express waiver or failure to exercise promptly any right under the
Agreement will not create a continuing waiver or any expectation of
non-enforcement.
15. ASSIGNMENTS
Neither party may assign or otherwise transfer any of its rights or
obligations under the Agreement, without the prior written consent of the
other party, except that Sun may assign its right to payment, assign the
Agreement to an affiliated company, or subcontract the delivery of Services
or Products. If Sun elects to subcontract Service or Product delivery, Sun
will remain primarily responsible for delivery.
16. RELATIONSHIP OF THE PARTIES
An Agreement is not intended to create a relationship such as a partnership,
franchise, joint venture, agency, or fiduciary or employment relationship.
Neither party may act in a manner which expresses or implies a relationship
other than that of independent contractor, nor bind the other party.
17. NOTICES
All written notices required by the Agreement must be delivered in person or
by means evidenced by a delivery receipt or via email or website and will be
effective upon receipt.
18. SEVERABILITY
If any Provision of the Agreement is held invalid by any law or regulation
of any government or by any court or arbitrator, such invalidity will not
affect the enforceability of any other provisions.
19. GOVERNING LAW
Disputes which cannot be settled amicably will be, governed by the laws of
California and controlling US Federal law. Choice of law rules of any
jurisdiction and the United Nations Convention on Contracts for the
International Sale of Goods will not apply.
20. ENTIRE AGREEMENT
20.1 An Agreement (which includes the applicable Exhibit) is the parties'
entire agreement relating to its subject matter. It cancels and
supersedes all prior or contemporaneous oral or written communications,
proposals, conditions, representations and warranties and prevails over
any conflicting or additional terms of any quote, order,
acknowledgment, or other communication between the parties relating to
its subject matter.
20.2 No Modification to the Agreement will be binding, unless in writing and
signed by an authorized representative of each party.
20.3 The provisions of this Agreement are not altered by the terms and
conditions of any other agreement Partner may have with Sun.
21. SURVIVAL
Rights and obligations under this Agreement, which by their nature should
survive, will remain in effect after termination or expiration.
IN WITNESS WHEREOF THE DUTY AUTHORIZED REPRESENTATIVES OF THE PARTIES HAVE
EXECUTED THESE MASTER TERMS AS OF THE EFFECTIVE DATE.
SUN MICROSYSTEMS, INC PARTNER
BY: Joe Womack BY: John Howlett
TITLE: VP Americas eSun Partner Sales TITLE: CEO
DATE: 4-10-2000 DATE: 4-6-2000
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Sun Channel Agreement
ID#: CS-US-004194-R
Exhibit A
Software Products
(Partner)
This SMI Software Exhibit ("Software Exhibit") between Sun Microsystems, Inc.
and Partner is an attachment to the Master Terms between Sun and Partner and is
effective as of the date of execution by Sun ("Exhibit Effective Date). The
Master Terms are an integral part or this Software Exhibit and are incorporated
by reference herein.
1. DEFINITIONS
1.1 "BCL" means the Sun binary code license contained in Software or
related documentation.
1.2 "Channel Web" means Sun's proprietary software channel information
system."
1.3 "End User" means the entity licensed to use Software under a BCL. If
End User is a corporation or other entity, then, for license fee
purposes, "End User" includes each individual within such corporation
or entity licensed to use Software under the BCL.
1.4 "Error" means any reproducible failure of Software to perform its
intended function or any significant inaccuracy in its related
documentation.
1.5 "Error Correction" means a modification, procedure, patch or routine
intended to correct the practical adverse effect of an Error.
1.6 "Fees" means the fees set forth in the Price List.
1.7 "Guide" means the Sun Channel Program Guide or Guides relating to
Software ordered under this Software Exhibit.
1.8 "NFR Software" means Software designated on the Channel Web as "not for
resale" software.
1.9 "Price List" means the applicable Sun Price List current at the time of
execution of this Software Exhibit and any subsequent price changes
made by Sun under Section 3.4 of this Software Exhibit.
1.10 "Software", in addition to the definition in the Master Terms, includes
Error Corrections, Upgrades, NFR Software and Subscription Kits.
1.11 "Software Release" means a release of Software that is designated by
Sun in its sole discretion by a change in the digit(s) to the left of
the decimal point in die Software version number [(x),x, x].
1.12 "Subscription Kit" means tangible or electronically downloadable
materials designated in the Price List as a Sun Software Subscription
Program Product and delivered in kit form.
1.13 "Territory" means the countries or geographic regions identified in
Schedule 1 to this Software Exhibit
1.14 "Update" means a release of a Software that is designated by Sun in its
sole discretion by a change in the digit(s) to the right of the tenths
digit in the Software version number [x, x, (x)].
1.15 "Upgrade" means Updates, Version Releases, or Software Releases that
Sun makes generally commercially available.
1.6 "Version Release" means a release of a Software that is designated by
Sun in its sole discretion by a change in the tenths digit in the
Software version number [x,(x),x].
2. APPOINTMENT OF PARTNER
2.1 Appointment. Sun appoints Partner as a nonexclusive "Authorized Software
Enterprise Partner" and grants Partner the nonexclusive and nontransferable
right to distribute Software to End Users in the Territory. Sun will
segregate Software into product specialty categories and provide Partner
with written notice of these categories. Certain Software, as identified in
the Guide, may only be purchased from Sun Authorized Distributors. Partner
will not advertise, sell, lease or ship Software outside the Territory
without Sun's prior written consent. Partner may not open Software prior to
delivery to End Users.
2.2 Guide. The Guide sets forth additional terms and information concerning
special promotions and programs relating to the Sun Software Channel
Program. Partner may participate in these promotions and programs, provided
that Partner is in compliance with its other obligations under the
Agreement, and any other agreement with Sun or its affiliated companies,
including payment and reporting obligations. Sun has the right to change
the Guide at any time without notice. Changes to the Guide may be provided
via the Channel Web and Partner agrees to be bound by these changes. For
partners who do not have regular access to the internet and Channel Web,
printed copies of changes to the Guide will be provided by Sun upon written
request.
2.3 Obligations. Partner agrees to: (a) actively market and support Software;
(b) follow up on any leads provided by Sun (which will be considered Sun
Confidential Information); (c) ensure that the marketing and support
efforts for Software are conducted by identified and trained personnel
within Partner who have knowledge of Software and meet the training
requirements in the Guide; (d) provide Sun on a quarterly basis with a
relationship planning document as described in the Guide; and (e) not
misrepresent Software or make any representation or warranty inconsistent
with the Master Terms, this Software Exhibit or a BCL.
3. COMMERCIAL TERMS
3.1 Direct Purchases Only. Commercial terms for Partners who purchase Software
from a Sun Authorized Distributor will be determined in Partner's agreement
with such Distributor. This Section 3 applies only to Partners purchase of
Software directly from Sun.
3.2 Reporting. Partner will provide to Sun a written point-of-sale report by
the fifth (5th) working day of each month that includes the name and
address of each End User, dollar volume, type and quantity of Software
distributed and other information described in the Guide. Partner
acknowledges that it will not receive marketing funds unless it has met all
point-of-sale requirements. In addition, on the first business day of each
calendar quarter, Partner will provide Sun a rolling six (6) month
non-binding forecast of Partner's annual projected shipments for each
Software distributed under this Agreement. With each forecast, Partner will
also provide a completed relationship management document as described in
the Guide. Upon request, Partner will provide Sun with audited financial
statements.
3.3 Returns. Commencing on the Exhibit Effective Date, on a quarterly basis
Partner may request to return for credit, a quantity
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of software (other than NFR Software) the net Fees for which will not
exceed ten percent (10%) of the cumulative net Fees for Software shipped to
Partner during the immediately preceding quarter. Before returning any
Software, partner must obtain from Sun a "Return Material Authorization"
(RMA). Partner must place an offsetting order with Sun for Software of
dollar value at least equal to any credit issued hereunder. No more than
one percent (1%) of all returned Software may be in opened packages.
Partner may not deduct the amount of any credit from outstanding invoices.
Partner will be responsible for paying all freight and shipping charges for
Software returned under this Section 3.3. Stock rotation 18 not available
for discontinued Software.
3.4 Payments. For all Software purchased under this Software Exhibit, Partner
will pay Sun an amount equal to the Fee, less the applicable discount set
forth in Schedule 1.
3.5 Price Changes. Sun reserves the right to change the Price List, discounts
and Fees for any Software at any time without approval of Partner. Changes
which result in a decrease in Fees will take effect immediately upon
announcement. In the event of a change which increases Fees, Sun will
provide Partner with thirty (30) days prior written notice. If, during the
term of this software Exhibit, Sun decreases the Fee for any Software,
partner will be entitled to a credit toward new orders for any software
placed within thirty (30) days after announcement by Sun. This credit will
be equal to the difference between the new Fee and the Fee paid by Partner
less any previous credits provided, for the affected Software multiplied by
the quantity of that Software in Partner's inventory as of the date of the
announcement. In order to claim this credit, Partner must, within thirty
(30) days of announcement of a change which decreases Fees, supply Sun with
a written report including: (a) the identification of all affected Software
which were in Partners inventory immediately prior to announcement of the
decrease; (b) the net Fee for this Software before and after the decrease
and (c) other information as Sun may reasonably request. Sun will issue the
credit to Partner within sixty (60) days from the date Sun receives the
report. All orders for Software scheduled for shipment or in transit to
Partner at the time of the announcement will be adjusted to the decreased
Fee.
3.6 Delivery and Title. Software purchase orders will be submitted to Sun by
Partner under the terms of this software Exhibit and subject to a minimum
of Five Thousand Dollars ($5,000) per order. Sun will deliver Software Ex
Works, Sun facilities. Partner assumes all risk of loss or damage upon
delivery of Software. Partner acknowledges that it does not take title to
Software, with the exception of media and printed materials, but rather
licenses Software under the terms of this Agreement.
3.7 Updates, Version Releases and Software Releases. Fees are for the Software
releases current as of the Effective Date. Except as provided in Section 4
of this Software Exhibit, Updates, Version Releases and Software Releases
may require additional payment and be subject to additional terms. Sun may,
without Partner's approval and without incurring any liability to Partner,
modify Software or discontinue its manufacture, sale or support upon thirty
(30) days prior written notice to Partner.
4. UPGRADES AND OBSOLESCENCE
4.1 Direct Purchases Only. This Section 4 applies only to Partner's purchase
of Software directly from Sun.
4.2 Upgrades. Subject to the terms below, Partner may upgrade unopened
Software in its inventory before the date Sun commences shipment of a new
Upgrade ("Commencement Date").
(a) Updates from the immediately proceeding Update version will be
provided to Partner at no charge.
(b) Upgrades to a Version Release or Software Release from the
immediately preceding Version Release or Software Release will be
provided to Partner at no charge unless Sun increases its Fees for the
new release. If Sun increases its Fees, the new release will be made
available to Partner at the incremental price difference between the
original Fee paid by Partner and the Fee for the new release.
(c) To receive Upgrades under this Section 4, Partner must provide Sun
with a written request for the Upgrade, obtain an RMA and return to Sun
all Software to be upgraded. Partner will pay all shipping charges for
returned Software and Upgrades ordered under this Section 4. Sun will
credit Partner with the total amount Partner paid for the returned
Software if the return is accompanied by a firm order for the immediate
delivery of Upgrades whose total payment amount at least equals that of
the returned Software. Partner Is limited to two (2) upgrade requests for
each Update, Version Release and Software Release. The first request must
be received by Sun within thirty (30) days of the Commencement Date and
the second request within ninety (90) days of the Commencement Date. If
Partner fails to make the requests within the time frame described,
Partner will no longer have the right to upgrade Software under this
Section 4.
(d) For a period of ninety (90) days after Sun discontinues offering
Software, Partner will have the right, shipping prepaid and retaining all
risk of loss, to return the unopened discontinued Software to Sun. Sun
will credit Partner with the total amount Partner paid for the
discontinued Software if the return is accompanied by a firm order for
the immediate delivery of other Software whose total payment amount at
least equals that of the returned Software
5. SUBSCRIPTION KITS
5.1 Distribution of Subscription Kits. Sun grants to Partner a
non-transferable, nonexclusive, limited license to distribute
Subscription Kits within the Territory. "Subscription Kit" means tangible
or electronically downloadable materials for Licensed Products designated
in the applicable Sun price list as a Sun Software Subscription products
and delivered in a kit form. Subscription Kits contain (i) a certificate
for the Sun Software Subscription services entitling an End User to
receive drop-shipments of upgrades for Licensed Products directly from
Sun; (ii) Sun Software Subscription services program terms; (iii) End
User registration and acceptance forms to be completed and returned to
Sun; and (iv) marketing collateral.
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5.2 Restrictions. Partner may not open any Subscription Kit prior to delivery
to End Users. Partner may not sell or distribute Subscription Kits unless
the End User has first provided satisfactory proof of its license for the
most current version of the licensed Products. Proof of End User's current
license will be satisfied by the End User showing Partner copies of its
license or install disk, cover page of the install disk manual or other
form of proof satisfactory to Sun that End User is licensed to the current
version level. Subscription Kits may be purchased only from Authorized
Distributors or Sun.
5.3 Returns. In the event an End User does not accept the terms provided in the
Subscription Kit and elects within fifteen (15) days of purchase to return
the Subscription Kit to Partner, Partner must accept return of the
Subscription Kit and refund the fees paid by End User. Partner may return,
shipping prepaid, to the Authorized Distributor from which the Subscription
Kit was purchased, the Subscription Kit returned by the End User for a
refund of the fees paid by Partner, provided, however, that: (i) the
Subscription Kit was properly returned to Partner by the End User within
fifteen (15) days of its purchase; and (ii) Partner requests and has
received a Return Material Authorization ("RMA") number from the Authorized
Distributor within five (5) business days of the subscription Kit's return
by the End User to Partner.
5.4 Other Programs. Any additional subscription offerings and requirements are
set forth in the Guide.
6. NOT FOR RESALE SOFTWARE
6.1 Purchase As part of the Sun Software Channel Program, Partner may obtain
not-for-resale copies of Licensed products ("NFR Software"). Licensed
Products available as NFR Software are designated on the Channel Web and
may be ordered only from Authorized Distributors and Sun. Partner may use
no more than one (1) copy of each NFR Software at each Partner business
location. Each location at which NFR Software is used must be staffed with
Partner employees who have met all applicable training, testing and
authorization requirements set forth in the Guide.
6.2 Labeling and Use. NFR Software must at all times be clearly labeled "Not
For Resale Software" and may be used only for purposes of internal staff
training, pre-sales support, Partner demonstrations and Sun approved
marketing.
6.3 Destruction of NFR Software Partner must destroy all NFR Software: (i) upon
notice that the NFR Software has been discontinued or is available as a new
revision release or (ii) if it is no longer being used on a regular basis
by Partner for the purposes described in Section 6. To obtain new revision
releases of NFR Software, Partner must provide Authorized Distributor or
Sun with written certification that the NFR Software has been destroyed.
6.4 Restrictions. Partner may not use the NFR Software for development of
software programs; nor copy, resell or distribute the NFR Software to any
third party. In addition to this Section 6, Partner's use of NFR Software
is further subject to the terms of the BCL which accompanies the software.
7. SUPPORT
During the term of this Agreement, Partner will provide prospective End
Users with complete pre-sale support, and End Users with post-sale support
as provided in the Guide.
8. SUN Software Channel Program Web Site
Subject to the following, Sun will provide Partner with an account login,
password and the site URL for the Channel Web.
8.1 Use of Web Contents. Title to and ownership in all products, including
software products, documents and other program information contained in
the Channel Web ("Web Contents") will solely and exclusively be and
remain in Sun and its licensors. Partner may use Web Contents only for:
(a) its internal evaluation purposes and (b) at its primary business
facility. If the software products accessed as part of Web Contents
contain third party code, Partner's use of the products may be subject to
additional terms. Partner is not authorized to make any modifications or
revisions to Web Contents nor distribute Web Contents to any third party.
Partner will indemnify Sun from all liability, expense, and damage of any
type arising from Partner's violation of this Section 8.1.
8.2 No Support for Web Contents. Partner acknowledges that Sun is not
obligated to make any of Web Contents available as a final Sun product. Sun
retains the right to make any modifications or changes to Web Contents at
any time without prior notice to Partner. Web Contents are provided
strictly on an "AS IS' basis. Partner acknowledges that no support will be
provided by Sun for the software product(s) contained in the Web Contents.
9. WARRANTIES AND DISCLAIMER
Sun warrants that for a period of ninety (90) days from Partner's receipt
of Software provided under this Software Exhibit, the media on which the
Software is furnished will be free of defects in materials and workmanship
under normal use. Partner's exclusive remedy and Sun's entire liability
under this limited warranty will be for Sun to replace the Software media
10. ADDITIONAL LIMITATIONS
IN NO EVENT WILL ANY ENTITY WORKING WITH SUN ON THE DEVELOPMENT AND SUPPLY
OF ANY LICENSED PRODUCT OR PART THEREOF BE LIABLE UNDER THIS AGREEMENT.
11. TERM AND TERMINATION.
This Software Exhibit will commence upon the Software
Effective Date. Union earlier terminated as provided in the Master Terms,
this Software Exhibit will remain in effect until the date established in
the following schedule:
Effective Date Expiration Date
--------------------------------------------------
March 1-August 31 August 31
September 1- February 28 February 28
In WITNESS WHEREOF, the parties have authorized their representatives to execute
this Software Exhibit effective as of the Effective Date written below.
Sun Microsystems Partner
Joe Womack John Howlett
VP, Americas, eSun Partner Sales CEO
2-1-00 4-6-00
3
Schedule 1
To Software Exhibit
(Partner)
1. Territory: United States
2. Discount: Discount for Software on the Sun-Netscape Alliance Price List
shall be thirty-two (32%) off the MSRP as noted on such Price List.
4
Sun Partner Agreement# CS-US-004194-R
SUN EXHIBIT B
EOUIPMENT PROGRAM
This Sun Equipment Exhibit ("Equipment Exhibit") is effective on February 1,
2000 ("Equipment Exhibit Effective Date") between Sun Microsystems Inc. and
Partner, and is an attachment to the Master Terms between Sun and Partner. The
Master Terms are an integral part of this Equipment Exhibit and are incorporated
by reference.
1. DEFINITIONS
A. "Approved buying and selling locations means those location addresses
whose identity is set out in Attachment A.
B. End User means the entity purchasing Equipment for its own use.
C. "Guide" means the Sun Partner Reference Guide.
D. "Master Reseller" means a designated Sun Authorized Master Reseller
E. "Price List" means the applicable Sun Price List current at the time of
execution of this Equipment Exhibit and any subsequent price change made
by Sun.
F. "'Sun Funds" means Sun Enterprise Development Funds.
2. APPOINTMENT OF PARTNER
A. Appointment
(1) Sun appoints Partner as a non-exclusive Partner ("Partner"). Partner
is authorized to purchase available Product directly from Sun or from its
designated Master Reseller. Product must be (i) sold, leased or rented
(collectively referred to as "sold"); (ii) sold directly to End Users via
personal contact, web or telesales basis; and (iii) installed and
supported on a face to face basis at an End User site in the United
States ("Authorized Sale"). Partner is permitted to outsource services up
to ten percent (10%) of its purchases of Product under this Exhibit B.
(2)The sale of Products to any entity other than an End User is
prohibited. The sale of Products to the Federal Government is prohibited
unless Partner executes a Government System (GSI) Agreement. Partner's
primary business must at all times be the sale and support of computer
systems and related services.
B. Guide. Sun's Partner's policies are detailed in its Partner Reference
Guide located at http://channel.esun.com/US/. Partner represents that it
has read the Guide and will comply with all applicable rules and
procedures. Sun may modify the Guide from time to time upon thirty (30)
days Notice.
3. SUN FUNDS
Partner will receive from Sun, Sun Funds on certain sales of Products computed
at Sun's list price, excluding Products not purchased for resale and Products
that Partner's Master Reseller did not purchase from Sun. Sun may modify this
Section upon thirty (30) days' Notice.
4. BUSINESS PLAN
Partner has submitted a Business Plan to, and which has been reviewed by Sun
(Attached as Attachment B). Partner has represented to Sun that the Business
Plan accurately reflects the manner in which it intends to market and support
Products. Either party may initiate a review of the accuracy of Partners
Business Plan upon thirty (30) days', notice, provided that Sun shall initiate
no more than one review par calendar quarter.
5. ATTACHMENTS
The Attachments may be modified only upon the mutual consent of the two parties,
except that Sun may modify Attachment C (Object Code License) at any time. The
current version of each Attachment is hereby incorporated by reference.
6. PARTNER'S OBLIGATIONS
A. Sale and Support. Partner shall use its best efforts to promote the sale of
Products, and shall purchase and maintain the demonstration equipment
identified in the Guide for each authorized selling location. Partner shall
provide to each End User, as detailed in the Guide and the Business Plan;
(i) complete Pre- and post-Installation support, including complete
installation, training, and continuous technical service and (ii) hardware
and software maintenance support. Partner must meet the additional
Competency requirements detailed in the Guide prior to selling or
installing Products more than 200 miles from an authorized selling
location. The sale and direct support of Products must be performed at all
times by full-time employees who are Sun trained and Sun certified,
including at least one full time Sun dedicated sales representative and one
full time Sun dedicated systerns engineer. Training and certification may
be secured directly from Sun or from any Sun Authorized training provider.
Sun's support options are set out in the Guide. Certification requirements
are detailed in the Guide.
B. Spare Parts. The use of spare parts purchased under the authority granted
by this Agreement is strictly limited to (i) resale to an Partner's End
User for internal use, or (ii) the service of Products sold and installed
by Partner under this Agreement, except that Partner may use such parts to
service all of an End User's systems if Partner has sold and installed at
least twenty-five percent (25%) of the systems for which service is being
provided.
C. Upgrades. The list price of upgrades is based upon the return to Sun of
specified parts from the systems being upgraded, as set out in the U.S.
Price List. Partner is
responsible for assuring that the specified parts; are received by Sun
within thirty (30) days after shipment of the upgrade to Partner. If the
specified parts are not timely received, Master Reseller or Sun will
invoice and partner agrees to pay Master Reseller or Sun (net 30 days)
for the non-returned parts, the difference between the list price of the
purchased upgrade(s) and the list price of the upgraded system(s) if
purchased new.
D. Partner Documentation Business Records, and Reports. Partner shall furnish
to its End Users at the time of delivery of Products, a sales receipt
stating the date of sale, and, if applicable, the serial number of Products
sold. Partner shall, during the term of this Agreement and for five (5)
years thereafter, keep and maintain complete and accurate business records
with respect to its purchase and sale of all Products, Including, all
documents relating to or exchanged between Partner and its End Users,
Master Partner and Sun. Sun may review these records upon request.
Partner shall provide monthly Productivity Status Reports ("PSRs") to Sun.
All PSR reports shall be Java-based PSR reports only, in accordance with
the Java-based PSA guidelines beginning at url:
http://channel.sun.com/US/policies/newpsrguide.html. Upon the initial
failure to timely submit a complete PSR, Sun may cancel Sun Fund accruals
and suspend participation in other programs. Any subsequent failure to
remedy or timely submit a PSR may result in immediate termination of this
Agreement.
E. Indemnity and insurance. Partner agrees to indemnify and hold Sun harmless
from and against all claims from Partners End Users or third Parties
arising out of any acts and/or omissions of Partner or its employees or
representatives. Partner shall carry liability insurance to protect Sun
from all such claims, pay the premiums therefore, and deliver to Sun, upon
request proof of such insurance (which shall require thirty (30) days
written notice to Sun in event of modification or termination).
F. Fair Representation. Partner shall display, demonstrate, and represent
Products fairly and shall make no representations; concerning Sun or its
Products which are false, misleading, or inconsistent with those
representations set forth in promotional materials. Literature and manuals
published and supplied by Sun. Partner shall comply with all applicable
laws and regulations in performing under this Agreement.
G. Sun SPARC Only. Except as otherwise provided in writing by Sun, Partner
shall not sell, lease, or otherwise deal in any product based on SPARC
Architecture, unless such product (i) is a Sun Product or (ii) is a "laptop
system". A product is a "laptop" system if it is (i) transportable, (ii)
battery operated, (iii) under sixteen (16) pounds total weight including
case, and (iv) packaged without a CRT. Partner is not prohibited by this
Agreement from selling any product that does not contain the SPARC
Architecture.
H. Partner shall purchase all Sun Products for resale directly from Sun or
from its designated Master Reseller unless an exception is granted by Sun
In writing. Purchase terms and conditions as may be agreed upon between
Partner and designated Master Reseller shall govern the purchase of
Products from the Master Reseller. Sun will permit the reseller to change
the identity of its designated Master Reseller only once per year, by
Notice (which shall include the effective date of the transition), during
the thirty (30) days' period prior to each year's Expiration Date.
No Simultaneous Orders. The Intention of the parties, and the goal at this
Agreement, is that Partner will not issue the same purchase orders for Products
from both Sun and Master Reseller with the intention that one order be cancelled
in favor of the other order. Partner must not issue orders directly to Sun and
to a Master Reseller at the same time for the same Products. Failure to comply
with this section will be considered a material breach, and may result in
immediate termination of the Agreement. This section does not otherwise affect
terms and conditions regarding cancellations of, or changes to, orders that may
exist in the agreement or in any agreement with a Master Reseller.
I. Limited Warranty Partner must provide a warranty to its End Users at least
equivalent to the warranty provided by Sun. Partner agrees to Indemnify Sun for
any liability or damages caused by Partner's provision of any other warranty.
J. Failure to comply with any of the foregoing obligations will constitute a
material breach of this Agreement.
7. LIMITED WARRANTY
7.1 Partner shall arrange for all End Users to be notified that they will
receive the following warranty ("the Warranty") directly from Sun. This Warranty
will be included in Sun product packaging. The duration of the Warranty,
applicable response times, start dates, and other warranty details are specified
at http://channel.sun.com/service/globalwarranty/ ("the Warranty Web Page") and
are applicable as at the date an order is accepted, or at End User's option, the
Effective Date of this Agreement. Any subsequent changes to Warranty details
specified on the Warranty Web Page will not apply to Products purchased by End
Users prior to any change. Partner is responsible for notifying its end users
that they will receive the following warranty ("the Warranty") directly from
Sun.
7.2 Subject to 7.1 above, Sun warrants that:
(a) The Hardware will be free from defects in materials and workmanship.
(b) The Software will be warranted either according to the warranty set forth in
7.2 (c) below or the warranty set out at the Warranty Web-Page, whichever is
greater, for such software specifically mentioned therein.
(c) the media on which Software is furnished (if any) will, for a period of
ninety (90) days from the date of purchase, as evidenced by a copy of the
receipt, be free from defects in materials and workmanship under normal use.
Except for the foregoing, Software is provided "AS IS."
7.3 Partner's sole and exclusive remedy and Sun's entire liability for breach of
the warranties specified in this Section 7, will be, at Sun's option, the
repair, replacement of, or refund of the actual cost paid for the Products (less
reasonable wear and
tear) and/or to replace the media for Software or refund the associated license
fee paid.
7.4 This Warranty is contingent upon proper treatment and use of the products
and maintenance of a safe and suitable site. No warranty will apply to any
Product that has been (i) modified, altered or adapted without Sun's written
consent, (ii) maltreated or used in a manner other than in accordance with the
Product manual or, (iii) repaired by any third party in a manner which fails to
meet Sun's maintenance requirements and quality standards. Product problems
attributable to the use of the Products with equipment or software not supplied
or expressly approved by Sun are not covered under warranty. Any services
provided for Product or problems which are out of warranty will be billed for on
a time and materials basis.
8. COMMERCIAL TERMS FOR PRODUCTS
Prices and Discounts. For Products on Sun's then current, applicable U.S.
Computer Systems Price List, Sun agrees to grant to Partner the following
discounts when Partner purchases directly from Sun: thirty-two percent (32%) on
Category A product, twenty-five percent (25%) on Category B Products and
seventeen percent (17%) on Category H Products. Such discounts will not apply to
those Products which are listed as "non-discountable" in the appropriate price
list, nor may they be applied to exceed any listed maximum discount. Such
discounts will apply towards purchase of discountable spare parts, but such
discounts will not apply to Purchases of training, installation (except where
included in the purchase price of the Products), consulting, repairs,
maintenance work or similar services and source code license fees.
Orders and Delivery. When Partner purchases direct from Sun, Partner shall
submit purchase orders in writing or electronically via Sun's eCommerce site in
accordance with the requirements defined on that site. Order acceptance will
only be effective upon issuance of Sun's order acknowledgement. Each order must
be for a minimum of five hundred dollars ($500.00) Sun will use reasonable
efforts to meet target delivery dates identified on the order acknowledgement.
Title to Products (except Software) and risk of loss or damage to Products will
pass to Partner upon shipment, FOB Sun's Product Delivery Center. Sun reserves
the right to make Product substitutions and modifications that do not cause a
material adverse affect in overall Product performance.
Rescheduling and Reconfiguration. Partner may, when purchasing directly from
Sun, reschedule or reconfigure all or part of any specific orders once at no
charge, as long as a "Change Purchase Order" is received by Sun at least thirty
(30) days prior to the scheduled delivery date and the rescheduled delivery do
is within sixty (60) days of the original date. If an order is rescheduled or
reconfigured at Partner's request on any other basis, or if Sun rescheduled the
order because Partner fails to meet an obligation under this Agreement, Sun may
charge Partner a restocking fee equal to ten percent (10%) of the list price of
the rescheduled or reconfigured portion of the order. If Partner refuses
shipment at its requested delivery location, Sun may charge Partner a restocking
fee of twenty-five percent (25%) of the list price of the shipment.
9. ASSIGNMENT OF PURCHASING RIGHTS
Partner may receive an assignment of purchase rights from an approved third
party when the third patty receives a purchase order from its end user so that
Partner may procure Product for said third party. A separate assignment
agreement ("Assignment Agreement") must be signed by Sun, Partner and third
party authorized signatories.
10. TERM AND TERMINATION
Term. This Agreement shall commence on the Equipment Exhibit Effective Date and
shall remain in force until the date established according to the following
schedule:
Effective Date: Expiration Date:
(of each following year)
March 1 - August 31............. August 31
September 1 - February 28....... February 28
It shall be automatically renewed on an annual basis thereafter, unless at least
thirty (30) days prior to any year's Expiration Date, Sun or Partner tenders
Notice of Intention not to renew.
11. STATUTE OF LIMITATIONS
No claim or action, regardless of form, arising out of this Agreement may be
brought by either party more than two (2) years after the claim or cause of
action has arisen, or in the case of non-payment, more than two (2) years from
the date payment was due.
12. GOVERNING LAW
Any claim or cause of action must be brought solely and exclusively in the
courts of the state of California.
IN WITNESS WHEREOF, THE DULY AUTHORIZED REPRESENTATIVES OF THE PARTIES HAVE
EXIECUTED THIS AGREEMENT, AS OF THE DATE FIRST ABOVE WRITTEN
Sun Microsystems Partner
Joe Womack John Howlett
VP, Americas, eSun Partner Sales CEO
2-1-00 4-6-00
ATTACHMENT A
AUTHORIZED LOCATIONS/MASTER RESELLER
Headquarters
EMTEC, Inc., 817 East Gate Drive, Mt. Laurel, NJ 08054
EMTEC, Inc., 70 Jackson Drive, Cranford, NJ 07016
EMTEC, Inc., 2990 Gateway Drive, Norcross, GA 30071
MASTER RESELLER
MOCA
ATTACHMENT B
BUSINESS PLAN
Attached
ATTACHMENT C
END USER OBJECT CODE LICENSE
SUN IS WILLING TO LICENSE THE OPERATING SYSTEM SOFTWARE TO YOU ONLY UPON THE
CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE
AGREEMENT. READ THE TERMS AND CONDITIONS OF THIS LICENSE CAREFULLY BEFORE
USING THE SOFTWARE. BY USING THE SOFTWARE, YOU AGREE TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THIS
AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE OPERATING SYSTEM SOFTWARE.
1. License to Use. Customer is granted a non-exclusive and non-transferable
license ("License") for the use of the applicable Solaris* operating system
software in machine-readable form, together with accompanying documentation
("Software"), by the number of users and with the class of computer hardware
for which the corresponding fee has been Paid.
2. License to Develop. In the event that Customer desires to develop
software programs which incorporate portions of Software ('Developed
Programs"), the following provisions apply, to the extent applicable:
Developed Programs are to have an application programming interface that is
the same as that of Software; fonts within Software are to remain associated
with their toolkit or server; Developed Programs may be used and
distributed, but only on computer equipment licensed to utilize Solaris
operating system software, unless an additional Developer's License
Agreement has been executed by Sun and Customer, Customer is not licensed to
develop printing applications or print, unless Customer has secured a valid
printing license, and Customer agrees to Indemnity, hold harmless and defend
Sun from and against any claims or suits, including attorneys' fees, which
arise or result from distribution or use of Developed Programs.
3. Restrictions. Software is copyrighted and title to all copies is retained
by Sun and/or its licensors. Customer shall not make copies of Software,
other than a single copy of Software for archival purposes and, if
applicable, Customer may, for its internal use only, print the number of
copies of on-line documentation for which the applicable fee has been paid,
in which event all proprietary rights notices on Software shall be
reproduced and applied. Except as specifically authorized in Paragraph 2
above, Customer shall not modify, decompile, disassemble, decrypt, extract,
or otherwise reverse engineer Software, except to the extent any of the
foregoing limitations are unenforceable under applicable law. Software is
not designed or licensed for use in on-line control equipment in hazardous
environments such as operation of nuclear facilities, aircraft navigation or
control, or direct life support machines.
4. Confidentiality. Software is confidential and proprietary information of
Sun and/or its licensors. Customer agrees to take adequate steps to protect
Software from unauthorized disclosure or use.
5. Warranty. Sun warrants that the media on which Software is
furnished will be free of defects in materials and workmanship under
normal use for a period of ninety (90) days from the date of
purchase, as evidenced by a copy of the receipt. Otherwise, Software
is provided "'AS IS", without a warranty of any kind. This warranty
extends only to Customer as the original licensee. Customer's
exclusive remedy and Sun's entire liability under this warranty will
be the correction of defects in media or replacement of the media,
or, if correction or replacement is not reasonably achievable by Sun,
the refund to Customer of the license fee paid, upon return of
Software.
6. Disclaimer of Warranty. EXCEPT AS SPECIFIED IN THIS LICENSE
AGREEMENT, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND
WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE HEREBY
EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW.
7. Limitation of Liability. IN NO EVENT WILL SUN BE LIABLE FOR ANY LOST
REVENUE, PROFIT OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR
PUNITIVE DAMAGES HOWEVER CAUSED AND REGUARDLESS OF THEORY OF LIABILITY ARISING
OUT OF THE USE OF OR INABILITY TO USE SOFTWARE EVEN IF SUN HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. In no event shall Sun's liability to Customer,
whether in contract. tort (including negligence), or otherwise, exceed the
license fee paid by Customer for Software. The foregoing limitations shall
apply even if the above stated warranty falls of its essential purpose.
8. Termination. This License is effective until terminated. Customer may
terminate this License at any time by destroying all copies of Software
including any documentation. This License will terminate immediately without
notice from Sun if Customer fails to comply with any provision of this
License. Upon termination, Customer must destroy all copies of Software.
9. Export Regulations. Software, including technical data, is subject to
U.S. export control laws, including the U.S. Export Administration Act and
its associated regulations, and may be subject to export or import
regulations in other countries. Customer agrees to comply strictly with all
such regulations and acknowledges that it has the responsibility to obtain
licenses to export, re-export or import Software.
10. U.S. Government Restricted Rights. If Customer is acquiring Software
including accompanying documentation on behalf of the U.S. Government the
following provisions apply. If Software is supplied to the Department of
Defense ("DOD"), Software is subject to "Restricted Rights," as that term is
defined in the DOD Supplement to the Federal Acquisition Regulations
("DFAR") In paragraph 252.227-7013(c)(1). If Software is supplied to any
unit or agency of the United States Government other than DOD, the
Government's rights in Software will be as defined in paragraph 52.227-1
9(c)(2) of the Federal Acquisition Regulations ("FAR"). Use, duplication,
reproduction, or disclosure by the Government is subject to such
restrictions or successor provisions. Contractor/Manufacturer Is. Sun
Microsystems Computer Company, 2650 Garcia Ave., Mountain View, CA 94043.
11. Governing Law. This Agreement is made under, shall be governed by and
construed in accordance with the laws of the state of California, U.S.A.
excluding its choice of law provisions.
12. Integration. This Agreement is the entire agreement between Customer and
Sun relating to Software and: (i) supersedes all prior or contemporaneous
oral or written communications, proposals and representations with respect
to its subject matter, and (ii) prevails over any conflicting or additional
terms of any quote, order acknowledgement or similar communication between
the parties during the term of this Agreement. No modification to this
Agreement will be binding, unless in writing and signed by a duly authorized
representative of each party.
*Solaris is a registered trademark of Sun Microsystems, Inc. Part No. 801-3229-10
Sun Microsystems Inc. Rev.A. May 1994