EXHIBIT 10 (w)
GENERALTERMS
Company name: Pinnacle
Data Systems, Inc.
General Terms reference no: AR-67846
These Sun Terms and Conditions ("General Terms") are made as of the August 1,
2002 ("Effective Date") between SUN MICROSYSTEMS, INC., a Delaware corporation
with its address at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and Pinnacle Data
Systems, Inc., with its address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
1. INTERPRETATION
1.1 The purpose of the General Terms is to create a single mechanism under
which Pinnacle Data Systems, Inc. and its Affiliated
Companies ("Company") may form purchasing or other Agreements with Sun
Microsystems, Inc. and its Affiliated Companies ("Sun"). 1.2 In the General
Terms:
"Affiliated Company" means, in relation to either party, any entity: (a) which
is owned 50% or more by that party; or (b) over which that party exercises
management control; or (c) which is under common control with that party; or (d)
which owns 50% or more of that party;
"Agreement" means each agreement entered into under the General Terms,
comprising the General Terms and an Exhibit executed by Sun and Company
referencing the General Terms;
standard service offerings as the parties may agree from time to time;
"SOW" means any statement of work relating to Services;
"Software" means (i) any binary software programs listed in the standard price
lists published by Sun from time to time, (ii) any Updates, and (iii) any
related user manuals or other documentation;
"Sun Trademarks" means all names, marks, logos, designs, trade dress and other
brand designations used by Sun in connection with Products and Services;
"Updates" means subsequent releases and error corrections for Software
previously licensed, as listed in the standard price lists published by Sun from
time to time.
"Confidential Information" means any information 2- CONFIDENTIAL INFORMATION
disclosed by one party to another under any Agreement which is, prior to or at
the time of disclosure, identified in writing as confidential or proprietary;
"Equipment" means the hardware (including components), software media and spare
parts listed in the standard product price lists published by Sun from time to
time; "Exhibit" means any exhibit to the General Terms as executed by the
parties from time to time;
"IPR" means intellectual property rights, including patents, trademarks, design
rights, copyrights, database rights, trade secrets and all rights of an
equivalent nature anywhere in the world;
"Products" means Equipment or Software;
"Services" means the services described in any Service Listing or SOW;
"Service Listing" means any offering in Sun's Enterprise Services Service List,
which is located at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇/*▇▇//*▇▇ (a hard copy of
each of which will be made available to Company on request), together with such
other
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2.1 A party receiving Confidential Information ("the Recipient") may use it
only for the purposes for which it was provided under the Agreement.
Confidential Information may be disclosed only: (a) to employees or
contractors obligated to the Recipient under similar confidentiality
restrictions; and (b) in relation solely to Agreements involving software,
services or other activities on the part of iPlanet E-Commerce
Solutions, to employees or contractors of Netscape Communications
Corporation and other Affiliated Companies of America Online, Inc.;
in each case only for the purposes for which it was provided under the
relevant Agreement. 2.2 The obligations of section 2.1 do not apply to
information which: (a) is rightfully obtained by the Recipient without
breach of any
confidentiality;
is or becomes known to the public through no act or omission of the
Recipient;
(c) the Recipient develops independently without
using Confidential Information of the other
obligation to maintain its
13 Nov. Ol/CMF
GENERAL TERMS
party; or
(d) is disclosed in response to a valid court or governmental order,
if the Recipient has given the other party prior written notice
and provides reasonable assistance so as to afford it the
opportunity to object.
3. RESTRICTED ACTIVITIES
* denotes tilde
3.1 Export laws. Products, Services and technical data delivered by Sun
may be subject to US export controls or the trade laws of other
countries. Company will comply with all such laws and obtain all
licenses to export, re-export or import as may be required after
delivery to Company. Company will not export or re-export to entities
on the most current U.S. export exclusion lists or to any `country
subject to U.S. embargo or terrorist controls as specified in the U.S.
export laws. Company will not use or provide Products, Services, or
technical data for nuclear, missile, or chemical biological weaponry
end uses.
3.2 Nuclear applications. Company acknowledges that Products and Services
are not designed or intended for use in the design, construction,
operation or maintenance of any nuclear facility.
4. SUN TRADEMARKS
4.1 Company may refer to Products and Services by their associated names,
provided that such reference is not misleading and complies with Sun's
Trademark and Logo Policies, which are found at
hftp://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.
4.2 Company may not remove or alter any Sun Trademarks, nor may it co-logo
Products or Services. Company agrees that any use of Sun Trademarks by
Company will inure to the sole benefit of Sun.
4.3 Company agrees not to incorporate any Sun Trademarks into Company's
trademarks, service marks, company names, Internet addresses, domain
names, or any other similar designations.
5. PUBLICITY
5.1 Sun may use Company's name in promotional materials, including press
releases, presentations and customer references regarding the sale of
Products or Services. These permissions are free of charge for
worldwide use in any medium. Sun will obtain Company's prior approval
for publicity that contains claims, quotes, endorsements or
attributions by Company, such approval not to be unreasonably
withheld.
6. INTELLECTUAL PROPERTY CLAIMS
6.1 Each party ("the Indemnifying Party") will defend or settle, at its
option and expense, any legal proceeding brought against the other
("the Indemnified Party") to the extent that it is based on a claim
that materials (which term includes Products) developed and provided
by the Indemnifying Party infringe a third party's patent, trade
secret or copyright. The Indemnifying Party will indemnify the
Indemnified Party against all
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damages and costs attributable exclusively to such claim awarded by the court
finally determining the case, provided that
the Indemnified Party:
(a) gives written notice of the claim promptly to the Indemnifying
Party;
(b) gives the Indemnifying Party sole control of the defense and
settlement of the claim;
(c) provides to the Indemnifying Party, at the expense of the
Indemnifying Party, all available information and assistance; (d) does
not compromise or settle such claim; and (e) is not in material breach
of any Agreement.
6.2 If such materials are found to infringe, or in the reasonable opinion of the
Indemnifying Party are likely to be the subject of a claim, the Indemnifying
Party will at its option:
(a) obtain for the Indemnified Party the right to use such materials;
(b) replace or modify the materials so they become non-infringing; or
(c) if -neither (a) nor (b) is reasonably achievable, remove such
materials and refund their net book value. 6.3 Neither party has any
obligation to the extent any
claim results from:
(a) use of materials in combination with any third party equipment,
software or data;
(b) compliance by the Indemnifying Party with the designs or
specifications of the Indemnified Party; (c) modification of materials
other than at the
direction of the Indemnifying Party; or
(d) use of an allegedly infringing version of the materials, if the
alleged infringement could have been avoided by the use of a
different version made available to the Indemnified Party.
6.4 This section states the entire liability of each party (as
Indemnifying Party) and the exclusive remedies of each party (as
Indemnified Party) for claims that materials infringe a third party's
IPR.
7. LIMITATION OF LIABILITY
7.1 No limitation on certain categories of liability.
Each party acknowledges the full extent of its
own liability to the other, arising from:
(a) death or personal injury resulting from
negligent acts or omissions;
(b) breach of any applicable license grant; or (c) claims for non
payment;
and the non-excludable statutory rights of consumers (for example,
under laws providing for strict product liability) are not affected.
Limitations on other categories of liability. Subject to 7.1 above and
to the extent not prohibited by applicable law: (a) each party's
maximum aggregate liability for all claims relating to any Agreement,
whether for breach of contract,
breach of warranty or in tort, including negligence, will be
limited to two
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13Nov.011CMF
million US dollars (U.S. $2,000,000); and
(b) neither party will be liable for any indirect, punitive, special,
incidental or consequential damages in connection with or arising
out of the General Terms or any Agreement (including, without
limitation, loss of business, revenue, profits, goodwill, use,
data, electronically transmitted orders, or other economic
advantage), however they arise, whether in breach of contract,
breach of warranty or in tort, including negligence, and even if
that party has previously been advised of the possibility of such
damages.
7.3 Failure of essential purpose. Liability for damages will be limited
and excluded, even if any exclusive remedy provided for in the
Agreement fails of its essential purpose.
8. TERMINATION AND EXPIRATION
8.1 Termination for cause. Either party may terminate the General Terms or
any Exhibit immediately by written notice: (a) if the other party
commits a non-remediable material breach of the General Terms or
Exhibit (as the case may be); or (b) if the other party fails to cure
any remediable material breach within thirty (30) days of being
notified in writing of
such breach.
8.2 Termination without cause.
(a) Either party may terminate the General Terms immediately by
written notice if no Exhibit is in effect. (b) Either party may
terminate any Exhibit at any time upon expiration of ninety (90) days'
written notice.
8.3 Actions following termination or expiration. On termination or
expiration of the General Terms (for whatever reason), all Exhibits
shall automatically terminate with immediate effect. Following
termination or expiration of an Exhibit (for whatever reason), each
party will deliver to the other any property of the other in its
possession or control relating to that Exhibit, in good condition,
reasonable wear and tear excepted.
8.4 Effect of termination. Neither party will be liable for any damages
arising out of the termination or expiration of the General Terms or
any Exhibit, provided that such termination or expiration will not
affect any right to recover: (a) damages sustained by reason of
material
breach; or
(b) any payments which may be owing in respect of any Agreement.
9. ASSIGNMENT AND SUBCONTRACTING
9.1 Neither party may assign or otherwise transfer any of its rights or
obligations under the General Terms or any Exhibit without the prior
written consent of the other party, which consent will not be
unreasonably withheld, except that:
(a) both parties may assign their right to receive
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GENERAL TERMS
payment; and
(b) Sun may use subcontractors in the performance of its obligations,
in which case Sun will remain responsible for the performance by
such sub-contractors.
10. DISPUTE RESOLUTION
The parties will use reasonable efforts to resolve any dispute arising out
of the General Terms or any Exhibit through a meeting of appropriate
managers from each party. If the parties are unable to resolve the dispute,
either party may escalate the dispute to its executives. If an executive
level meeting fails to resolve the dispute within thirty (30) days after
escalation, either party may seek any available legal relief. This
provision will not affect either party's right to seek injunctive or other
provisional relief at any time.
11.GENERAL
11.1 Governing law.
(a) All disputes will be governed by the laws of California. The venue
for litigation will be the appropriate courts located in Santa
▇▇▇▇▇ County, California.
(b) Choice of law rules of any jurisdiction and the United Nations
Convention on Contracts for the International Sale of Goods will
not apply to any dispute under the Agreement.
11.2 Force majeure. A party is not liable under any Agreement for
non-performance caused by events or conditions beyond that party's
reasonable control, if the party makes reasonable efforts to perform.
This provision does not relieve either party of its obligation to make
payments then owing.
11.3 Notices. All written notices required by the General Terms or any
Exhibit must be delivered in person or by means evidenced by a
delivery receipt or acknowledgment and will be effective upon receipt.
Notices communicated by electronic mail or facsimile will be deemed to
be written.
11.4 Relationship. Neither the General Terms nor any Agreement is intended
to create a partnership, franchise, joint venture, agency, or a
fiduciary or employment relationship. Neither party may bind the other
party or act in a manner which expresses or implies a relationship
other than that of independent contractor.
11.5 Invalidity. If any provision of the General Terms or any 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 other provisions.
11.6 Survival. Rights and obligations under the General Terms and any
Exhibit which by their nature should survive, will remain in effect
after termination or expiration of the General Terms or the relevant
Exhibit.
11.7 No waiver. Any express waiver or failure to exercise promptly any
right under the General
13Nov.011CMF
GENERAL TERMS
Terms or any Exhibit will not create a continuing waiver or any
expectation of non-enforcement.
11.8 Modification. No modification to the General Terms or any Exhibit will be
binding, unless in writing and manually signed by an authorized
representative of each party.
11.9 Entire agreement. Each Agreement constitutes 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 contained in any quote,
purchase order, acknowledgment, or other communication between the parties
relating to its subject matter during its term.
IN WITNESS WHEREOF THE DULY AUTHORISED REPRESENTATIVES OF THE PARTIES HAVE~
EXECUTED THESE GENERAL TERMS AS OF THE EFFECTIVE DATE.
SUN MICROSYSTEMS, INC.
By: /s/▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇
Title: Sr. Director, Global OEM Business Office
Date: 8/19/02
.. I
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PINNACL DATA SYSTEMS, INC.
By:./s/▇▇▇▇ ▇. ▇▇▇▇
Name:▇▇▇▇ ▇. ▇▇▇▇
Title: CEO
Date: 8/7/02
13Nov.011CMF
iFORCE BUSINESS TERMS EXHIBIT
Company Name: Pinnacle Data Systems, Inc.
General Terms Reference No: AR-67846
Exhibit Reference No:AR-67.846
THIS EXHIBIT is an Exhibit to the Sun General Terms and Conditions ("General
Terms") referenced above, and is effective as of August 1, 2002 ("Exhibit
Effective Date").
The General Terms and the Guide (as defined below) are integral parts of this
Exhibit and are incorporated by reference. The General Terms, the Guide and this
Exhibit are together referred to as the "Agreement".
As specified and only to the extent expressly permitted in the Agreement,
Company is authorized to (i) purchase certain Products from Sun or a Sun
authorized channel partner, and (ii) distribute such Products to End Purchasers
or Sun authorized channel partners.
1. INTERPRETATION 1.1 In this Exhibit:
"Accreditation" means certification by Sun that Company meets the
Criteria;
"Accepted Order" has the meaning stated in section 3.1;
"Appendix" means any Appendix to this Exhibit;
"Criteria" means the selection criteria applicable to Company's Partner Type(s),
as set out in the Guide;
"Deliverable" means in relation to any Services, the specific items to be
delivered to Company or End Purchaser in connection with the applicable Service
Listing or SOW;
"the End Purchaser" means any party to whom Company markets or sells Products or
Services for internal use (and not for resale, marketing or leasing);
"Exhibit" means this Exhibit, including any Appendices and Schedules;
"the Guide" means the program guide(s) applicable to Company's Partner Type(s),
as modified by Sun 2. APPOINTMENT from time to time;
"the Guide Obligations" means the Sun policies and procedures, and the ongoing
obligations applicable to Company's Partner Type(s), as set out in the Guide;
"Order" means an order for Products or Services, which may be submitted by
Company to Sun in hard copy form ("Purchase Order") or in electronic form
("Electronic Order");
"Order Confirmation" means a written or electronic acknowledgment or invoice
issued by Sun in response to an Order;
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"POS Information" means the point of sale or other information required by Sun
and detailed in the Guide;
"Price List" means, in relation to any Order, as determined by reference to
section 4.1 of this Exhibit;
"Schedule" means any Schedule to this Exhibit.
1.2 Capitalized terms used but not defined in this Exhibit have the meanings
set out in the General Terms and the Guide. 1.3 In the event of any
inconsistency between the elements of the Agreement, the following order of
precedence will apply (in
descending order):
(a) the Schedules; (b) the Appendices;
(c) the main text of this Exhibit; (d) the General Terms; (e) the
applicable Price List, Service Listing or
SOW;
(f) the Guide;
(g) the Order Confirmation; (h) the Order.
2.1 Subject to the terms of the Agreement, Sun hereby appoints Company (but
not any Affiliated Company, unless such Affiliated Company has satisfied
Sun's Accreditation requirements and explicitly agrees to be bound by the
terms of this Agreement) on a non-exclusive basis, to act in the capacity
of such Partner Types, in such territories and for such term as are
specified in the Schedule, for so long as it continues to meet the
applicable Criteria.
2.2 The rights and responsibilities applicable to each Partner Type are more
particularly described in the Guide. Sun may add to or modify the Guide
15Jan20021CF
iFORCE BUSINESS TERMS EXHIBIT
at its sole discretion on a non-discriminatory basis and the
additional or modified rights and obligations shall come into effect
sixty (60) days after Company receives notice of such changes.
3. ORDERING
3.1 Ordering procedure
(a) Company may order Products or Services by: (i) submitting an
Electronic Order in the
manner directed by Sun; or
(ii)submitting a Purchase Order to Sun (and Company acknowledges
that Electronic Orders for certain Products or Services may
need to be supplemented by a Purchase Order); in each case
specifying the Products or Services ordered and referencing
the General Terms and applicable Letter of Authorization
numbers. By doing so, Company agrees that the Order is
governed by the Agreement.
(b) Sun may accept the Order by:
(i) issuing an Order Confirmation to Company; or
(ii)shipping Products or initiating performance of Services
pursuant to the Order.
The identification of the Products or Services in the Order and
any Order Confirmation, together with any applicable Service
Listings or SOWs and the Agreement, will constitute an "Accepted
Order" and create a binding commitment for the purchase of those
Products or Services.
4. PRICING AND PAYMENT TERMS
4.1 Applicable Price List. The Price List applicable to
an Order under this Exhibit depends on the Products or Services
ordered and on the country of delivery of Services or installation of
Products ("the Destination Country"). Unless otherwise specified in
the Schedule, the Price List is: (a) The Sun country Price List in
effect in the
country in which the Order is accepted if:
(i) both the Destination Country and such country accepting the
Order are within the European Economic Area, or (ii)all sales
under this Exhibit are related to a single country (i.e., the
country accepting the order and the
Destination Country are always the same country); else (b)
The Sun international Price List in effect in the Destination
Country; provided that the Sun country Price List in effect in
the Destination Country for the relevant Products or Services
will apply if such international Price List does not list the
relevant Products or Services.
4.2 Pricing and payment arrangements.
(a) For Products or Services which are discountable in the applicable
Price List, Sun agrees (subject to section 4.3) to grant Company
the discounts set out in the Schedule or the Guide.
(b) All payments will be made in the currency of the applicable Price
List (or as otherwise agreed in
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writing).
(c) Software license fees are non-refundable upon delivery of the
Software (except as set forth in section 9 below) and are not
contingent upon nor dependent on any further deliverables from
Sun, including, but not limited to, professional services.
(d) Where Company has appropriate credit arrangements with Sun,
Company shall pay all invoices within thirty (30) days of the
date of the invoice or, in case of Products, delivery (whichever
is the later). In all other cases, Company shall pay cash in
advance of shipment or performance.
(e) Company is not required to pay the disputed portion of any
invoice, pending resolution of that dispute, if written notice of
the dispute has been provided to Sun within fifteen (15) days of
receipt of the invoice.
4.3 Review of discounts. Sun has the right to
modify Price Lists and Discounts from time to time; such modifications
taking effect on the dates identified to Company. Company will
reimburse Sun for discounts extended to Company that are based on
volume, term of service or other criteria not earned by Company.
5. COMPANY OBLIGATIONS
5.1 Conformity to Criteria and Guide Obligations.
Company will comply at its own expense with the applicable Criteria
and the Guide Obligations for so long as this Agreement remains in
force.
5.2 POS Information. Company warrants:
(a) that all POS Information it provides will be obtained in
accordance with the procedures set out in the Guide; (b) that Company
has notified the End Purchaser of Sun's intended use of POS
Information (as stated in the Guide) and
obtained all necessary consents to such use.
5.3 Policies and Procedures/Fair Representation.
Company will:
(a) represent Sun fairly and will make no representations or
guarantees concerning Sun, Company's relationship with Sun, or
Sun's Products or Services, that are false, misleading, or
inconsistent with those representations set out in the Agreement,
promotional materials, literature, manuals and Price Lists
published and supplied by Sun from time to time; comply with all
applicable laws and regulations in performing its obligations
under this Agreement, including, without limitation, all
applicable data privacy laws and regulations;
(c) comply with the U.S. Foreign Corrupt Practices Act and other laws
implementing the Convention on Combating Bribery of Foreign
Public Officials in International Business Transactions, and
Company
15Jan20021CF
iFORCE BUSINESS TERMS EXHIBIT
warrants that neither it nor any person representing it will make,
offer, promise or authorize, directly or indirectly, any payment or
transfer of anything of value to an official, representative, or
employee of any governmental agency or instrumentality, any political
party or candidate for public office, or make any payment to anyone
who Company knows or should know will make a payment to any of the
foregoing, in order to promote or retain business or assist Company in
performing its obligations and/or providing information to Sun under
this Exhibit.
5.4 Indemnity. Company agrees to indemnify and hold
Sun, its employees and agents harmless from and against all claims from
End Purchasers and other third parties arising out of any acts and/or
omissions of Company and its employees or agents. Company shall carry
liability insurance at a sufficient level to protect Sun, its employees
and agents from all such claims naming Sun as additional insured.
5.5 Manuals, Tools and Information. Should Sun
make manuals and documentation (collectively "Materials") or tools and
information (collectively "Tools") available to Company, then such Tools
and Materials may be used only for the purposes of and in accordance with
this Agreement (including, without limitation, the following terms):
(a) All Tools and Materials are supplied "AS IS" and Sun disclaims all
warranties.
(b) All Tools and Materials are proprietary to Sun and, as between Company
and Sun, Sun is the sole owner of all right, title and interest,
including copyrights or other intellectual property rights, in and to
any and all ideas, concepts, expertise, programs, systems,
methodologies, data or other materials embodied in, underlying or
reduced to practice in such Tools and Materials along with any
enhancements, modifications or improvements thereto.
(c) Company will not make copies of Tools or Materials, except as
expressly authorized by Sun, and will return or destroy all Tools and
Materials in its possession within thirty (30) days of the termination
of this Exhibit or as otherwise requested by Sun.
(d) Company is prohibited from (I) developing any materials which
incorporate portions of the Tools or Materials; and (ii) from
modifying the Tools or Materials.
(e) Tools and Materials are confidential to Sun and its licensors and the
confidentiality provisions of the Agreement shall apply to the Tools
and Materials.
(f) Company shall promptly advise Sun in writing of any misappropriation
or misuse of the Tools or Materials of which Company becomes aware.
5.6 Electronic ordering and services. For the
purposes of placing Electronic Orders and using
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electronic Tools and services, Company represents and warrants that:
(a) it will keep confidential any unique user identification and
password that Sun assigns to Company; and (b) all of Company's
employees or agents who submit orders or use Tools or services are
authorized by Company to do so.
5.7 Failure to comply with Company obligations. Without limiting the
materiality of other breaches of this Agreement, failure to comply
with any of the obligations in section 5 will constitute a material
breach of this Agreement.
6. IPR OWNERSHIP AND LICENSING
6.1 Pre-existing IPR. Each party shall retain its own
pre-existing IPR.
6.2 License terms.
(a) General scope of licenses. Sun agrees to grant to Company a
license to use Software and Deliverables to the extent permitted
in the Appendices.
(b) Audit rights. Sun or its independent audit firm may, upon
reasonable notice, examine and audit the records and systems of
Company to ensure compliance with any license granted by Sun. Any
audit will be performed during Company's regular business hours
and in a manner which avoids unreasonable interference with
Company's business operations.
(c) Injunctive relief. Company acknowledges that any breach or
threatened breach of any license involving unauthorized use of
Sun's intellectual property will result in irreparable harm to
Sun for which damages would not be an adequate remedy.
(d) Proprietary rights notices. Company may not alter or obscure any
proprietary rights notice appearing on any Sun-supplied
materials, and must include such notices on any copies.
7. EXPORT LAWS
7.1 Terminology. In this section:
(a) "Export Exclusion List" includes but is not limited to the United
States Treasury Department's Specially Designated Nationals List
and the United States Commerce Department's Entity and Denied
Persons Lists, in all cases as the same may be updated from time
to time, and including any equivalent or replacement lists;
(b) "Export Laws" means (i) all applicable U.S. export controls
including but not limited to the United States Export
Administration Act and Regulations (15 CFR Parts 730-774;
▇▇▇▇://▇▇▇.▇▇▇.▇▇▇.▇▇▇) and Foreign Assets Control Regulations
(▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇~ and (ii) local import/
export controls, in all cases
15Jan20021CF
iFORCE BUSINESS TERMS EXHIBIT
as the same may be updated from time to time, and including any
equivalent or replacement controls ; and (c) "Export Licenses" means
export, re-export, or import authorizations from the United States or
other governments.
7.2 Compliance with Export Laws. Products and
Services are subject to Export Laws. Company shall comply strictly
with all such laws, and in particular: (a) shall obtain any Export
Licenses for Products and Services after delivery by Sun as may be
required by the Export Laws; (b) shall not market, sell or otherwise
provide Products or Services to any person whom it knows or has reason
to know is
involved in the design, development, production or use of
missiles, chemical/biological, nuclear or other weapons of mass
destruction;
(c) shall not transfer, export or re-export Products and Services to
any entity identified on the most current U.S. government Export
Exclusion Lists, or to any country subject to U.S. embargo or
terrorist controls as identified in the U.S. Export Laws;and
(d) shall provide end use and End Purchaser information upon Sun's
request.
7.3 Export compliance audits. Sun may audit and
request copies of Company's order records to ensure compliance with
Export Laws, and Company shall implement any corrective action
recommended by Sun as a result of such audit findings.
7.4 Notif ication requirements. The following
provisions apply where the Guide so requires:
(a) Company acknowledges that U.S. export controls limit the
computational performance level of computers that may be
transferred, exported, or reexported to certain countries unless
authorized by the U.S. government. Company agrees that it will
not use Sun product to manufacture, develop, enhance, or upgrade
computers that exceed the performance limits as specified in the
most current U.S. Export Laws.
(b) Company shall include the following notice on packing lists,
commercial invoices, shipping documents and other documents
involved in the transfer, export or re-export of Sun products:
"These commodities, technology or software were exported from the
United States in accordance with the Export Administration
Regulations."
8. WARRANTY
8.1 Warranties. Company represents that when it
resells Products or Services ordered under this Agreement, it will
notify End Purchasers that they will receive the benefit of a warranty
in equivalent terms to the applicable warranty set out in the
respective Appendix.
8.2 NO IMPLIED WARRANTIES. EXCEPT AS SPECIFIED
IN THIS EXHIBIT, ALL EXPRESS OR IMPLIED
US iForceExhibit Rev1.0
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CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY
OR CONDITION OF MERCHANTABILITY, SATISFACTORY
QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ARE HEREBY
EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY LAW 9. TERMINATION
9.1 Termination of Exhibit. For the avoidance of doubt, the termination
provisions set out in the General Terms shall apply to this Exhibit
9.2 Additional provisions relating to termination
under this Exhibit.
(a) Either party may terminate an Accepted Order immediately by
written notice: (i) if the other party commits a non-remediable
material breach of such Accepted Order; or (ii) if the other
party fails to cure any remediable material breach within thirty
(30) days of being notified in writing of such breach.
(b) This Agreement will terminate automatically if Company 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 Company which is not
dismissed within ninety (90) days or makes an assignment for the
benefit of its creditors.
(c) Sun may terminate this Agreement immediately by written notice if
Company undergoes any change in ownership or control (whether by
way of voting or contract rights or otherwise) or in its
business, which change Sun considers material, in the light of
the fact that Company has been appointed by Sun because of its
present financial, technical and managerial conditions.
Sun may terminate Company's authorization to act as a given
Partner Type, or to do so in a given location, immediately by
written notice (i) if Company fails to meet the applicable
Criteria and Guide Obligations to a material degree, or (ii) if
Company fails to meet the applicable Criteria and Guide
Obligations to a non-material degree and fails to cure such
failure within thirty (30) days of being notified in writing of
the requirement to do so.
9.3 Post-termination actions. The following provisions apply to this
Exhibit generally (in the event of termination in its totality) and to
the Company's activities in particular locations only (in the event of
termination of Company's authorization to act in a given location).
Upon termination:
(a) Company will immediately cease and desist from marketing or
distributing Products and Services under authority from Sun, and
will (I) return or, if agreed to by Sun, destroy all
15Jan20021CF
(b)
tools, materials and other Sun property provided to Company, at
Company's expense, within thirty (30) days, (ii) immediately pay
all amounts due and owing, and (iii) promptly notify Sun of the
Products in Company's inventory, as well as the net invoice price
and an estimate of the then fair market value of such inventory;
Sun will have the right of first refusal to repurchase Products in
Company'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 9.3 (a) (i i). Sun may exercise this
right by providing Company with written notice of its election to
do so within fifteen (15) days following the date that Company
complies with section 9.3(a)(iii). Except where termination is by
Sun for breach, and subject to the terms and obligations of this
Agreement, during the ninety (90) day period following
termination, Company may sell and/or license under the terms of
this Exhibit any products that Sun does not elect 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 terms of this
Agreement shall apply to it.
10. USE OF SUN TRADEMARKS AND LOGOS
10.1 Sun Trademark Rights. Company agrees that as between Company and Sun,
Sun is the sole owner of all right, title and interest in and to the
Sun Trademarks and all associated goodwill. Company is granted no
right, title or license to, or interest in, any Sun Trademark. Company
agrees not to challenge Sun's ownership or use, or the validity, of
the Sun Trademarks, or attempt to adopt or register any ▇▇▇▇ identical
or confusingly similar to any of the Sun Trademarks. Should Company
acquire (by operation of law or otherwise) any rights in any Sun
Trademark, it shall immediately at no expense to Sun assign to Sun all
such rights and associated goodwill, applications and registrations.
Company will cooperate with Sun and take all reasonable actions
required to assist Sun to secure, protect and maintain ownership
rights in the Sun Trademarks worldwide, at Sun's cost, including
giving prompt notice to Sun of any potential infringement thereof and
cooperating with Sun in the preparation, execution and recording of
legal documents necessary to register or otherwise protect the Sun
Trademarks.
10.2 Logo Usage. Sun grants to Company a limited, non-exclusive,
non-transferable, royalty-free, worldwide permission to use an
applicable Sun logo (the "Logo"), if any, to refer or relate to Sun's
program for Company's Partner Type(s) and only:
in the exact form provided by Sun; in pre-sale advertising and marketing
materials that prominently display Company's own
US iForceExhibit Rev1.0
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iFORCE BUSINESS TEkMS EXHIBIT
corporate name and logo, but not on product, packaging, documentation,
shipping containers, or other materials distributed with Products or
the rendering of Services;
(c) on Company's web site, as a link to the Sun Microsystems home page
(▇▇▇.▇▇▇.▇▇▇) or to an Internet URL to be provided by Sun's iForce program
manager;
(d) in a manner less prominent than Company's own corporate name and logo;
(e) in accordance with the Sun Trademark & Logo Usage Requirements and
with any graphics standards distributed by Sun; (f) in a manner that is
truthful and not misleading, and that does not use the Logo to imply any
relationship with, or
endorsement or sponsorship by, Sun that is not true; (g) in a manner
that avoids disparaging statements or implications about Sun or its
products or services; (h) on materials that are in compliance with all
applicable laws and governmental regulations; and (i) with the following
trademark legend on the page where the Logo appears (unless Company is
required to use a more specific
legend by any other agreement Company may have with Sun): "Sun, Sun
Microsystems, the Sun logo and iForce are trademarks or registered
trademarks of Sun Microsystems, Inc. in the U.S. and other countries
and are used with permission.
Company and its prod ucts/services are independent of Sun
Microsystems, Inc."
This grant does not extend to Company's subsidiaries, affiliates,
suppliers, distributors, dealers, agents, customers, or other third-party
entities. Company shall promptly modify any use of the Logo that does not
comply with this Agreement upon notice from Sun specifying the
non-compliance, which noncompliance shall be determined in Sun's
discretion. Sun may change the Logo, or create new logos to replace the
Logo currently in use. Upon reasonable notice from Sun, Company shall
promptly modify its use of the Logo to conform to any such changed or new
logo.
10.3 Injunctive Relief. Company agrees that a material breach of the
obligations in this section 10 is likely to cause irreparable harm to Sun
for which damages would not be an adequate remedy. Therefore, in addition
to its rights and remedies otherwise available at law, including, without
limitation, the recovery of damages for breach of this Agreement, Sun
shall be entitled to: (a) immediate equitable relief, specifically
including, but not limited to, both interim and permanent restraining
orders and injunctions; and (b) to such other and further equitable relief
15Jan20021CF
FORCE BUSINESS TERMS EXHIBIT
as the court may deem proper under the
circumstances.
Sun Proprietaty & Confidential
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iFORCE BUSINESS TERMS EXHIBIT
Appendix I to the Worce Business Terms Exhibit
Additional provisions relating to Products
Company Name: Pinnacle Data Systems, Inc.
General Terms Reference No: AR-67846
Exhibit Reference No: ▇▇-▇▇▇▇▇
▇▇▇▇▇▇▇▇ Reference No: Ar-67846 _
1. DELIVERY ARRANGEMENTS FOR PRODUCTS
1.1 Target delivery dates. In relation to Products, Sun will use
reasonable efforts to meet the delivery dates stated on its Order
Confirmation.
1.2 Changing delivery arrangements.
(a) Sun may make Product substitutions and
modifications that do not cause a material
adverse affect in overall Product performance;
(b) Subject to Company's agreement, Sun may make and invoice for
partial deliveries; and
(c) Company may, when purchasing direct from Sun, 3.3
re-schedule or re-configure all or part of an Order
in accordance with the applicable provisions of
the Guide.
1.3 Title and risk. Unless otherwise specified in a 3.4
Schedule or otherwise agreed by Sun in writing, Title
to Equipment and risk of loss of or damage to
Products will pass from Sun upon delivery, which will
be made in accordance with Incoterms 2000, as
specified in Sun's price list and then current delivery
terms table located at http.-Ilwww.sun.com/Sa/*s/d`e//*very
termsfindexhtml , and Products will be deemed accepted
upon such delivery. In the United States, the relevant
Incoterm is Ex Works Sun's Product Delivery Center.
2. CHARGING ARRANGEMENTS FOR PRODUCTS
2.1 Charges and invoices. The charges for Products are
as set out in the Price List.
2.2 Taxes and expenses. The stated charges for Products are exclusive of
all sales and other taxes based upon the value of the Products.
Company is responsible for payment of all such taxes.
3. LICENSE TERMS FOR SOFTWARE PRODUCTS 3.1 License grant. Sun grants to
Company a non
exclusive and non-transferable license to use 4.2
Software provided to Company hereunder for its
internal use only, subject to:
(a) any restrictions set out in the Order or Order
Confirmation as to the permitted number of users 4.3
and CPUs; and
(b) any supplemental license terms accompanying the Software.
3.2 Permission to distribute. To the extent of its authorization as set
out in the Schedule, and subject to payment of the applicable fee, Sun
grants Company a non-exclusive and non-transferable license to
distribute Software to End Purchasers in the territory to which such
authorization applies, as part of the sale of the hardware system on
which Company
PDSIForceExhibitver2.sdw
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obtained the Software. Company shall require each of its End Purchaser
licensees to enter into a license agreement that is consistent with
the rights and obligations in th is section, and that incorporates in
substance, and is no less protective of Sun than, the terms and
conditions of the Sun binary code license provided with the Software.
Company shall keep records identifying each licensed End Purchaser and
the capacity of the license granted.
Reservation of rights. Software is confidential and copyrighted, all
rights therein not expressly granted to Company are reserved to Sun,
and Sun retains title to all copies. License restrictions. Except to
the extent permitted by applicable law, Company may not make copies of
Software, other than for archival purposes, or modify, decompile, or
reverseengineer Software.
4. PRODUCT WARRANTIES
4.1 Warranty. Sun warrants that all Equipment as at the date of delivery
will be free from material defects in materials and workmanship for
the period shown on the web-page at
http.,▇▇▇▇▇.▇▇▇.▇▇▇/▇▇▇▇/*▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇ ("the Warranty Web
Page") (a hard copy of which is available on request). Sun furthermore
warrants that Software listed on the Warranty Web Page as at the date
of delivery, for the period shown on the Warranty Web Page, will
contain the features described in the applicable users manual, as it
exists at the date of delivery to Company. Otherwise Software is
provided "AS IS".
Changes to Warranty Web Page. Any changes to the warranty details
specified on the Warranty Web Page from time to time will not apply to
Products ordered prior to such change. Exclusive remedy. Company's
sole and exclusive remedy and Sun's entire liability for breach of the
above warranty will be (a) the repair or, at Sun's option and expense,
replacement of defective Equipment; and (b) the provision of Software
support as shown on the Warranty Web Page. Parts or components which
are replaced under applicable warranty may be new or like-new. Title
in all defective parts which are removed from Equipment under
applicable warranty shall transfer back to Sun.
19JU120021 JS
FORCE BUSINESS TERMS EXHIBIT
Appendix 1 to the Force Business Terms Exhibit
Additional provisions relating to Products
4.4 Products excluded from warranty. No warranty will
apply to any Product which has been:
Company, where such
exclusion is permitted under applicable local law.
(a) modified, altered or adapted without Sun's written 5. REPORTING
REQUIREMENTS FOR INTERNATIONAL consent; TRANSACTIONS
(b) maltreated or used in a manner other than in 5.1 Company will report all
Product exports and re accordance with the relevant manual; exports by
providing a monthly report to Sun by
the 15t' day of each month with (i) the name of the buying office of Company,
(ii) the name of the Sun selling office, (iii) Product type, (iv) serial
number(s), (v) new country of installation and (vi) date of export for each
Product exported from the original country of installation.
A sample monthly report is available from Sun on request.
(c) installed or repaired by any third party in a manner which fails to meet
Sun's quality standards;
(d) used with equipment or software not covered by the warranty, to the extent
that the problems are attributable to such use; or (e) sold to or procured by
Company from any entity
not authorized by Sun to distribute Products to
By: /s/▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇
Title: Sr. Director, Global OEM Business Office
Date: 8/19/02
.. I
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Page 4 -of - 4
PINNACL DATA SYSTEMS, INC.
By:./s/▇▇▇▇ ▇. ▇▇▇▇
Name:▇▇▇▇ ▇. ▇▇▇▇
Title: CEO
Date: 8/7/02
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Page 8 -of - 8
1 9JU120021 JS
Company Name: Pinnacle Data Systems, Inc.
Other Name (dba):_
Parent Co. Name (if applicable):
General Terms Reference No.: AR-67846
--------
Exhibit Reference No.: - AR-67846
--------
Authorization Letter Reference No.: _AR-fi7R4fi=QTp
---------------
This OEM/OTP Letter of Authorization is between Sun Mircosystems, Inc. ("Sun")
and the party identified above as Company ("Company"), and together with all
other Letters of Authorization related to the Exhibit referenced above,
comprises a Schedule that identifies the scope of Company's appointment as an
iForce Business Partner. Sun and Company, or one or more of their respective
affiliates, have entered into the General Terms and Exhibit referenced above,
and Sun and Company desire to confirm their acceptance of such agreements.
By signing this Letter of Authorization, Sun and Company agree that: (1) each
will be bound to the other, just as their respective affiliates are bound, by
the applicable Guide(s), and the General Terms and the Exhibit referenced above,
with regard to the appointment set out in this Letter of Authorization; and (2)
such General Terms and Exhibit govern the sale/license of products and services
by Sun to Company, except for the modifications set forth in Sections H. and 1.
below, which modifications will apply only to this appointment.
A. Authorization period: August 1, 2002 to subject to the termination
rights in the General Terms and Exhibit referenced above.
B. Authorized Locations:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
C. Company's Individual Contact Details:
Name/Title: ▇▇▇▇ ▇▇▇▇ / Chairman and CEO
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
&~L04P_709_rlol:~ 4-312.5'
Phone: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
Email: ▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
D. Scope of Appointment: Company (but none of its affiliates) is appointed as a:
Systems and components OEM I I
OEM Technology Provider ("OTP") P(I
E. Sources of Products: For the purpose of the iForce Partner Program
benefits listed below, and subject to any related program restrictions,
Company is authorized to source Products from the parties identified
below:
(i) As an OEM: Company may distribute Products purchased from: Sun or
the following Channel Development Provider or OTP
(ii) As an OTP: Company may distribute Products purchased from Sun and
the following Channel Development Provider:
Nu Horizons Electronics Corporation.
F. Discounts on Products Purchased from Sun: The discounts set forth below
apply when Company purchases Products from Sun. The discounts are based
upon the Destination Country indicated below and the intended use of
the Product; provided that when both the Destination Country and the
country in which Sun accepts the Order
Sun Proprietary & Confidential
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are within the European Union, the parties will utilize the Price List
and discounts set forth below as if the Destination Country was the
country in which Sun accepts the order (e.g., for product ordered in
France but expected to be delivered by the iForce Partner in Germany,
the Price List and discount are determined as if France is the
Destination country).
For Product purchased for distribution:
Destination Country Not Applicable
Price List U.S. Price List
Product Category
Category A: 32%
Category B: 25%
Category D: non-discountable
Category H: 17%
Category J: n/a
Category M: 20%
Category P: n/a
General Notes related to Product Discounts: (i) Sun retains the right to modify
these discounts pursuant to the terms of the Exhibit referenced above. (ii)
All discounts for purchases in countries other than those stated in this
Letter are subject to prior written approval by Sun. (iii) Certain Products
may not fall into any of the product categories listed above; the discounts,
if any, applicable to such Products may differ from the discounts set forth
above.
G. Discounts on Services Purchased from Sun. Services discounts may be available
for Company's purchase of Services, subject to the Price List, discount
eligibility criteria, and standard discount level applicable to Company's
purchase.
Notes related to Services Discounts: (i) Sun retains the right to modify these
discounts pursuant to the terms of the Exhibit. (ii) All discounts for
purchases in countries other than those stated in this Letter are subject to
prior written approval by Sun.
H. Warranty. Notwithstanding anything to the contrary in this Agreement or any
agreement between Company and its Channel Development Provider or OTP, Company
is not permitted to extend, offer or pass on any warranty direct from or on
behalf of Sun to any Reseller, End Purchaser or third party.
1. Use of Resellers. "Reseller" means an entity that distributes OEM Products
(as defined in the Guide) under a contractual obligation to Company as set forth
herein. Company may distribute Sun Products, as incorporated in OEM Products, to
End Purchasers indirectly through Resellers, provided that Company enters into
and rigorously enforces a written contract under which each Reseller agrees to:
(a) resell Sun Products only as incorporated into OEM Products
directly to End Purchasers;
(b) comply with the terms of Section I (Warranty) above and Section
3.0 of the OEM Section of the Guide (OEM's Relationship With
Sun); Sections 3.2 (Permission to Distribute), 3.3 (Reservation
of Rights) and 3.4 (License Restrictions) of Appendix 1 to the
iForce Business Terms Exhibit; Sections 5 (Company Obligations),
7 (Export Laws), 8.2 (No Implied Warranties) and 10.1 (Sun
Trademark Rights) of the iForce Business Terms Exhibit; and
Sections 3 (Restricted Activities), 4 (Sun Trademarks), 6
(intellectual Property Claims), and 7 (Limitation of Liability)
of the General Terms; as all these Sections apply to Company,
and;
(c) identify Sun as a third party beneficiary of those End Purchaser
obligations related to Sun or Sun Products.
Sun Proprietary & Confidential
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IN WITNESS WHEREOF THE DULY AUTHORISED REPRESENTATIVES OF THE PARTIES HAVE
EXECUTED THIS LETTER OF AUTHORIZATION.
SUN
By: /s/▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇
Title: Sr. Director, Global OEM Business Office
Date: 8/19/02
.. I
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Sun Proprietary & Confidential
Page 4 -of - 4
PINNACL DATA SYSTEMS, INC.
By:./s/▇▇▇▇ ▇. ▇▇▇▇
Name:▇▇▇▇ ▇. ▇▇▇▇
Title: CEO
Date: 8/7/02
23. Jul. 2002 0 7:53 AM/ CN