EXHIBIT 10.7
BETWEEN Hewlett-Packard (Canada) Ltd.
AND Advanced Interactive Canada Inc.
This Solutions Partner Agreement is entered into between Hewlett-
Packard (Canada) Ltd., incorporated under the laws of Canada and
having a principal place of business located at 5150 Spectrum
Way, Mississauga, Ontario L4W 5G1 ("HP") and Advanced Interactive
Inc., incorporated under the laws of the State of Nevada and
having a principal place of business located at #2101 - 1177 West
Hasting Street, Vancouver, B.C., V6E 2K3 ("Solutions Provider").
1. SCOPE
a) HP manufactures and markets various computer, computer
peripheral, computer management software tools, software
development tools, and instrumentation products (HP
Products). Solutions Partner develops and/or markets
computer software products and associated support services
as part of an integrated solution (including HP hardware
products) that is remotely managed via the Internet (the
"Solution"), satellite, or telecommunications. Solutions
Partner agrees to market the Solutions Partner above
integrated solution to users of HP Products, and HP agrees
to assist Solutions Partner in this marketing program, to
the extent set forth in this Agreement.
b) HP and Solutions Partner are not agents or legal
representatives of each other and have no power or authority
to represent, act for, bind or commit each other with
respect to any products. Neither execution nor performance
of this Agreement shall be construed to have established any
joint venture or partnership.
c) HP and Solutions Partner agree that the Solutions Partner
will only market and sell the software portion Solution to
end user customers (including the SchoolWeb Caching Server)
to its customers exclusively on HP products, both
domestically and internationally, where HP products are made
available for the Solution. HP will use commercially
reasonable efforts to have international subsidiaries make
HP products available for the Solution, but HP cannot
guarantee that such products will be made available. HP
agrees to provide marketing assistance to Solutions Partner
through its Business Development and Sales force in Canada.
Marketing assistance will primarily consist of appointing an
account manager to: list the Solution as part of HP's
portfolio of products and services targeted at the Education
market; assist Solutions Partner in developing marketing
strategies; and to list Solutions Partner on HP's internal
web-sites for third party applications. Outside of Canada,
the HP account manager will act as a liaison to assist
Solutions Partner in developing similar relationships with
other HP entities.
d) The provision contained in Section 1.c) above to sell
software exclusively on HP products shall not apply to any
sales of software directly resulting from written quotations
to customers which were issued in the sixty (60) day period
preceding the effective date of this Agreement.
2. Solutions Partner RIGHTS AND OBLIGATIONS
a) Solutions Partner agrees to work exclusively with HP for the
provisioning of infrastructure products that include Intel-
based HP NetServers, notebook computers (HP OmniBook), and
palmtop devices (HP Jornada) as part of its integrated
solutions.
b) Solutions Partner will provide to HP a Business Plan that
includes, but is not limited to outlining, the international
locations (countries) where it plans to deploy the
integrated solution that will require support of the HP
hardware products deployed as part of this integrated
solutions offering.
c) Solutions Partner commits to develop ongoing enhancements
that extend and enrich the competitive capabilities of its
integrated solutions offering, and to collaborate with HP
(and/or any HP-designated solutions resource working on HP's
behalf) to expand the Solutions applicability to other
target markets.
d) Solutions Partner must offer support services to end-users
for the Solution. Support services for HP hardware products
must be provided by an HP approved support provider. Such
support will include providing updates to software, fixing
any bugs, and ensuring that any issues related to HP
hardware, or other solution components that it is made aware
of, are communicated to HP or the appropriate support
resource, as outlined in a Customer Services Agreement (CSA)
or Services Level Agreement (SLA). [does this paragraph mean
that HP is responsible for hardware support?]
e) Solutions Partner will consider HP Technology Finance (HPTF)
as its preferred Leasing partner, (as determined by
international geography)Solutions Partner.
f) Solutions Partner shall not make any claims about HP or its
Products, other than those based on current information
published by HP, and Solutions Partner shall not use HP's
name except as the hardware manufacturer.
g) From time to time, HP may authorize Solutions Partner, in
writing, to use one or more designated HP trademarks,
logotypes, trade names and insignias (HP Marks). Solutions
Partner is authorized, upon HP's execution of this
Agreement, to use the HP Mark known as the HP Channel
Partner Insignia. Solutions Partner may use HP Marks solely
in connection with the marketing of the Solutions Partner
solutions, which are to be integrated with and delivered on
HP hardware, covered by this Agreement. Any use of the HP
Marks must be in good taste, in a manner that preserves
their value as HP Marks, and in accordance with all
standards and guidelines provided by HP for their use.
Solutions Partner shall not use any HP Mark or symbol in a
way that may imply that Solutions Partner is an agency or
branch of HP. Upon HP's request, Solutions Partner will
discontinue the use of any HP Mark or symbol. Any rights or
purported rights in any HP Marks acquired through Solutions
Partner's use belong solely to HP. All rights to use HP
Marks will cease upon expiration or termination of this Agreement.
h) Solutions Partner certifies that any information provided to
HP in writing, including descriptions of the Solutions
Partner integrated solution portfolio, is true and accurate.
Solutions Partner hereby authorizes HP to contact any
references provided to HP. Solutions Partner agrees to
furnish HP with any other specific information reasonably
requested by HP in furtherance of this Agreement. Solutions
Partner further agrees that HP has no obligation to treat as
confidential any materials, information or documents
submitted to it by Solutions Partner, which are not
submitted pursuant to a separately executed confidential
disclosure agreement.
i) Solutions Partner will be responsible for ensuring that
proper notice of any existing copyright or other proprietary
right in the Solution and associated documentation or
training manuals properly appear thereon.
3. HP RIGHTS AND OBLIGATIONS
a) HP commits to supply hardware products and associated
support services, either from an HP authorized reseller or
directly from HP, as determined by each local HP entity
which supports the geography in which the end user is
located or as may be outlined in any applicable agreements
with the Solutions Partner. This Agreement to supply and
service HP products may vary, depending on the international
geography in which the said services are to be executed,
subject to prevailing rules associated with non-resident
suppliers in that region.
b) HP agrees, from time to time, to provide the Solutions
Partner with marketing materials including white papers,
brochures, flyers, and data or spec sheets describing HP
Products, in order to assist the Solutions Partner in
positioning and marketing their integrated solution.
c) HP will use commercially reasonable efforts to provide
Solutions Partner with an introduction to customers and
prospects, in the defined vertical markets related to the
Solutions Partner's integrated solutions. This may include
executive-level presentations, joint marketing
communications, and/or participation in conferences, trade
shows, and other prospect-facing initiatives.
d) HP Technology Finance (HPTF) shall have the first right to
provide competitive and responsive Leasing quotations and/or
services to the Solutions Partner as a valued business
partner, where appropriate, as determined by international
geography
e) HP agrees to describe the Solutions Partner and the
Solutions Partner's integrated solution offering in PR,
publications, including product literature, electronic
catalogs or databases, which may also describe similarly
situated products and services from other solutions
partners. Solutions Partner agrees that HP may publish or
otherwise use any non-confidential information submitted by
Solutions Partner in order to achieve this purpose. HP will
make reasonable efforts to ensure that the materials and
descriptions related to the Solutions Partner's integrated
solutions, as provided for communications purposes, are
accurate based on available information. Upon expiration or
termination of this Agreement, HP may immediately
discontinue distributing such information.
f) HP may provide demo/development equipment to Solutions
Partner, which if so provided, will be subject to the terms
of the Demo/Development Agreement.
4. REPRESENTATIONS AND WARRANTIES
a) Solutions Partner warrants it owns or has the legal right to
distribute the Solutions Partner applications, tools,
products, and all portions thereof which are or will form
part of the Solution.
b) Solutions Partner further warrants that the Solutions
Partner's integrated solution, and all portions thereof,
either alone or in connection with an HP system, do not
infringe or violate any patent, copyright, trademark, trade
secret, or other proprietary right of any third party.
c) To the best of its knowledge, each party warrants that its
performance of its obligations under this Agreement does not
conflict with any other agreement between it and a third party.
d) Solutions Partner represents and warrants that it
is not currently a party to, nor will it during the term of
this Agreement, enter into a similar agreement with a
company which HP considers to be a competitor of HP, in HP's
sole discretion acting reasonably, and which agreement
requires Solutions Partner to promote an HP competitor as
the preferred hardware provider of Solutions Partner products.
e) Solutions Partner owns or has the right to distribute the
integrated solution described herein and has the right to
make it available to HP for evaluation and, if mutually
agreeable, to distribution by and/or through HP.
f) Each party hereby agrees to defend and indemnify the other
party for any alleged infringement of Intellectual Property
Rights of a third party based on materials provided or
supplied by that party hereunder.
5. TERM AND TERMINATION
a) This Agreement shall terminate exactly one year from its
effective date unless terminated earlier as provided below.
It is anticipated by the parties that the specific Solutions
Partner integrated solution included within this Agreement
may change during the one year term but such changes shall
not effect this Agreement's termination date.
b) HP may terminate any Exhibit or this entire Agreement, at
any time for any reason or for no reason, upon 60 (sixty)
days written notice to Solution Provider.
c) Solution Provider may terminate any Exhibit or this entire
Agreement, at any time for any reason or for no reason, upon
180 (on hundred and eighty) days written notice to HP.
d) In addition to any other remedies unavailable at law, HP may
terminate this Agreement on 10 days prior written notice
where Solutions Partner is in breach of its obligations set
out in Sections 1.c and 2.a of this Agreement.
e) Upon expiration, HP may extend this Agreement for
successive one year terms upon thirty (30) days written
notice prior to the expiry date.
6. LIMITATION OF LIABILITY
Except for claims of intellectual property infringement or
breach of confidentiality obligations, in no event shall
either party be liable to the other for consequential,
incidental or special damages arising from any claim or
action, incidental or collateral to, or directly or indirectly
related to or in any way connected with, the subject matter of
this Agreement whether based on contract, tort, statute,
implied duties or obligations or other legal theory.
7. GENERAL
a) Neither party will be liable for performance delays or for
non-performance, due to causes beyond its control.
b) Neither party may amend this Agreement or assign or
transfer any rights or obligations hereunder without prior
written consent of the other party.
c) Neither party's failure to enforce any provision of this
Agreement will be deemed a waiver of that provision or of
the right to enforce it in the future.
d) Solutions Partner will conduct all its activities
relating to its business with HP in accordance with the
highest standards of ethics and fairness as well as in
compliance with applicable law. HP may immediately
terminate this Agreement if Solutions Partner fails to do so.
e) This Agreement shall be governed in accordance with the laws
of the Province of British Columbia and, as applicable, Canada.
f) To the extent that any provision of this Agreement is
determined to be illegal or unenforceable, the remainder of
the Agreement will remain in full force and effect. The
offending provision will be deemed amended by the parties so
as to make it enforceable and to the extent possible, have
consequences which are substantially the same as what was
intended by the parties.
g) Choice of Language. The parties acknowledge that they have
requested and are satisfied that this Agreement be drawn up in
the English language. Les parties aux pr,sentes reconnaissent
que chacune d'elle a exig, que cette Annexe soit r,dig,e en
anglais, et s'en d,clarent satisfaites.
h) All notices that are required under this Agreement will be
in writing and will be considered given as of twenty-four
(24) hours after sending by electronic means, facsimile
transmission, overnight courier, or hand delivery, or as of
five (5) days of certified mailing and appropriately
addressed to
Solutions Partner : HP:
Hewlett-Packard (Canada) Ltd.
5150 Spectrum Way
Mississauga, Ontario
L4W 5G1, Canada
Attention: Contracts Manager
i) This Agreement constitutes the entire understanding between
HP and Solutions Partner , and supersedes any previous
communications, representations or agreements between the
parties, whether oral or written, regarding transactions
hereunder. Solutions Partner 's additional or different
terms and conditions will not apply.
j) This Agreement shall remain in full force and effect in the
event of any sale, whether in whole or in part, merger,
consolidation or other re-organization of Solution Provider,
or in the event of any significant change in management
control of Solution Provider's operations.
k) Solutions Partner agrees, by signing below, that Solutions
Partner has read and agrees to all provisions contained in
this Agreement.
8. ATTACHMENTS
The following attachments form part of this Agreement:
Effective the 8th day of March, 2002
AUTHORIZED SIGNATURES:
Solutions Partner
Advanced Interactive Inc. Hewlett-Packard (Canada) Ltd.
/s/ Karim Lakhani /s/ Jim Ranalli
Karim Lakhani Jim Ranalli
President Senior Contracts Consultant