EXHIBIT 10.2
CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
ASTERISKS (*) DENOTE SUCH OMISSIONS
Sun
microsystems
SUN MICROSYSTEMS, INC.
SERVICE PROVIDER AGREEMENT
This "AGREEMENT" is effective on November 1, 1998, by and between Sun
Microsystems, Inc., ("Sun"), having a place of business at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and America Online, Inc. ("AOL") having a place of
business at ▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The General Commercial Terms
that govern the relationship between Sun and AOL follow in Section 1. Generally
applicable legal terms are contained in Section 2.
1.0 GENERAL COMMERCIAL TERMS
1.1 DEFINITIONS
(A) "EQUIPMENT" means the hardware components (may also be referred
to as "hardware") of Products and includes the media on which
Software is loaded.
(B) "Sun Products" or "Product(s)" means the Sun computer hardware
products sold to AOL and the software products licensed to AOL
under this Agreement.
(C) "SOFTWARE" means the software program components of Products in
machine-readable form and related documentation.
(D) "AOL" includes all entities in which AOL directly or indirectly
owns more than 50% of the voting securities together with all
other entities of which AOL directly or indirectly owns at least
19.9% of the voting securities and which operate an on-line
service utilizing an AOL-owned brand; provided that any such
entities agree in writing to be bound by the terms of this
Agreement.
(E) "AOL Services" includes integrated, end-to-end electronic
commerce and extended communities and communication services.
1.2 SCOPE. This Agreement governs AOL's authorization to purchase
certain Sun Products directly from Sun for internal use by AOL.
Authorized AOL buying locations are set out in Exhibit A;
provided that AOL may add buying locations upon written notice to
Sun. AOL may not resell Sun Products pursuant to this Agreement.
AOL may apply to become a Sun Authorized Value Added Reseller and
Sun will in good faith negotiate terms for an Agreement on a most
favored reseller basis. The parties Agreement entitled "Strategic
Alliance and End User Discount Agreement" dated September 24,
1997 is hereby immediately terminated; however, this termination
shall not affect any Sun Enterprise Services obligations set
forth therein, all of which will survive in accordance with the
terms set forth therein.
1.3 PURCHASE COMMITMENTS
(A) AOL commits to purchase Sun Products so that "net revenue" to Sun
(applicable list price of Sun Products minus the discount
provided herein) is as follows:
For November 1, 1998 until June 30, 2000: $100 Million
(the "First Period");
July 1, 2000 until June 30, 2001: $100 Million
(the "Second Period"); and,
July 1, 2001 until June 30, 2002: $100 Million
(the "Third Period").
(B) If AOL fails to purchase the amount of the commitments for any
Period set forth in Section 1.3(A), AOL shall pay Sun "Liquidated
Damages," as Sun's sole and exclusive remedy for AOL's failure to
meet its commitments under Section 1.3(A) as follows:
1) For the First Period, the Liquidated Damages shall
be forty percent (40%) of the shortfall of the
amounts committed in the First Period under Section
1.3(A);
2) For the Second and Third Periods, the Liquidated
Damages shall be ten percent (10%) of the first 20
Million Dollars ($20,000,000) of the shortfall of the
amounts committed in the Second and Third Periods
under Section 1.3(A) and forty percent (40%) of any
remaining portion of the shortfall.
For any Sun Product purchases in any Period in excess of the
minimum amount required for such Period, such excess can be
carried forward and applied to the minimums required in the next
Period. At AOL's request, AOL may apply any Liquidated Damages
assessed and paid as a credit against fifty percent (50%) of any
amounts purchased in excess of the commitments required under any
remaining Period under Section 1.3(A). If this Agreement is
extended pursuant to Section 1.15(A), then AOL purchases of Sun
Products in excess of the commitments of Period Three may be
applied against the Sun Product purchase commitments of all such
extensions. Sun Product purchased by AOL from Sun authorized
resellers will be applied against the minimum commitments for
each or any Period provided AOL submits written notification to
Sun of such purchases and Sun confirms the purchases. Purchases
made by AOL in November 1998 are governed by the terms of this
Agreement.
1.4 ACCOUNT PLAN. AOL will submit Account Plans to Sun. The initial
Account Plan will be submitted in February 1999; Account Plans
shall thereafter be submitted annually, commencing July of 1999.
The initial Account Plan will cover the remainder of the year
ending June 1999. Each further Account Plan will cover the then
applicable Commitment Period identified in Section 1.3 or any
extension period pursuant to Section 1.15. The Account Plan shall
set forth procurements planned for the applicable Period. The
Account Plan will state AOL's understandings and intentions, but
will have no other binding effect.
1.5 SUN DEVELOPMENT FUND.
Sun agrees to invest *** in the development of Sun's systems and
Java platforms on features and enhancements (including
client-side) in each of the following periods:
(i) from November 1, 1998 until December 31, 1999;
(ii) calendar year 2000, and
(iii) calendar year 2001
Sun will expend these funds pursuant to the "Joint Development
Agreement" being entered by the parties concurrently herewith. In
the event the Joint Development Agreement between the parties is
terminated, AOL will be entitled to a credit equal to thirty
percent (30%) of any of the unused funds specified herein which
credit may be applied against purchases of Sun Products.
1.6 SALES AND SERVICE SUPPORT.
In consideration of the purchase commitments as identified in
Section 1.3, Sun commits to provide service maintenance pricing
as follows:
(A) For Products Purchased and Installed in the continental United
States. For the first *** of aggregate purchases of Sun Products
purchased by AOL under the Agreement for its internal use (the
"Initial Installed Base") the maintenance fee will be *** per
annum on Products. The maintenance fee will only increase for
additional purchases as follows:
(i) for AOL purchases that result in an installed base of up
to *** systems beyond the Initial Installed Base (for
AOL's internal use), there will be no additional
maintenance fee;
(ii) when AOL has an installed base of more than *** systems
beyond the Initial Installed Base, the maintenance fee
will be increased by the rate of *** per annum.
(iii) the maintenance fee will be thereafter be increased by
the additional rate of *** per annum for each additional
*** systems in the Installed Base (i.e., at *** systems,
etc.) beyond the Initial Installed Base. For each and
every *** per annum increase in the maintenance fee, Sun
will place one additional full-time, dedicated support
person on-site at AOL and shall increase the on-site
spares to the appropriate levels. For purposes hereof,
the "Installed Base" hereunder will mean systems
purchased and installed hereunder, less systems taken out
of service by AOL.
(B) For Products Purchased and Installed outside the continental
United States. For Sun Products purchased and installed outside
of the continental United States, AOL, at its option, may receive
maintenance and Service Support for such Products either by:
(1) Entering a maintenance contract with Sun, at the Platinum
Level (as defined herein) where available, and paying Sun
*** of the applicable list price of the Sun Products; or
(2) Agreeing to pay Sun for a full-time, dedicated support
person on-site at AOL at a rate of *** per year plus the
local published uplift. AOL will provide Sun with prior
notice as to each of the locations where it will require
service on Sun Products.
(C) Sun's obligations to provide sales, services and maintenance
support hereunder shall terminate upon the termination or
expiration of this Agreement, whichever is sooner. However, if
AOL desires to Continue service on Sun Product purchased
hereunder upon the earlier of the termination or expiration of
this Agreement, then Sun will continue to provide support on the
terms and conditions hereof, including fees, subject to
modifications of fees to reflect cost increases to Sun of
applicable labor and parts, for a period of up to four (4) years
following termination.
(D) The maintenance provided hereunder will be Sun's Platinum level
of support (as the terms of that offering, which are not
inconsistent with the terms of this section, are set forth in the
offering attachment hereto). In furtherance of this commitment,
Sun shall deploy its Mission Critical Readiness Team (MCRT); such
support includes Platinum level service plus AOL-dedicated
personnel in Sun's Customer Care Center, 24 x 7 x 365 escalations
and on-site spares. At least 8 dedicated support personnel will
initially be provided, some of which will be on-site at AOL (as
mutually determined by AOL and Sun), with appropriate increases
as provided herein and by Sun's highest level policies.
(E) Upon AOL's reasonable request, Sun agrees to replace Sun system
parts with AOL-owned third-party "Sun Certified Parts" and
further install such "Sun Certified Parts" in Sun systems
purchased hereunder and, within a reasonable proximity of the
original system, reinstall the removed Sun parts in other Sun
systems purchased by AOL hereunder. In the event that AOL-owned
"Sun Certified Parts" do not resolve a specific identified repair
issue, then AOL agrees to purchase from Sun the appropriate
parts. Installation will be included as part of all sales, as
part of the maintenance fee.
(F) AOL may use SPDF hands (as provided for in section 1.9 below)
toward payment on Sun Enterprise Services training classes and
training services. If AOL cannot or chooses not to so utilize
SPDF, or has exhausted all SPDF, Sun grants AOL a twenty-five
percent (25%) discount off the Sun Enterprise Services Price List
for published training and educational offerings. The discount
set forth above is in addition to free classes (i.e.. product
release and orientation classes) offered by Sun which will be
made available to AOL.
1.7 CORPORATE EXECUTIVE MEETINGS. So that Sun may provide the systems
and products and services required by AOL, the parties agree to
meet as often as needed by mutual consent, to discuss and
recommend methodologies and processes (including any application
re-engineering, tuning requirements, life-cycle costs, and target
cost-performance goals). In addition, AOL shall maintain and
provide to Sun a standing requirements list, in priority order,
of features requested by AOL. This list, with status, shall be
reviewed at each meeting.
1.8 PRICES AND DISCOUNTS.
(A) Prices and license fees for Products will be based on the
appropriate Sun Computer Systems Division ("CSD") Worldwide Price
List consisting of four geographic price lists that will be used
for all purchases of Sun Products. The appropriate Price List
will be determined by the "Country of Final Destination." Each
Country of Final Destination is covered by one of these price
lists, as specified in the Country Price List Table incorporated
in the Worldwide Price List Book.
(B) AOL's net price for Products or spare parts purchased and
licensed under this Agreement shall be the Sun applicable
Worldwide List Price at the time AOL's order is accepted, less a
discount of *** on Category A Products, *** on Category B
Products and *** on Category H Products.
(C) AOL is authorized to purchase "Development Equipment" consisting
of Sun Products priced pursuant to the applicable Worldwide Price
List at the time the order is accepted less a discount of *** on
Category A Products, *** on Category B Products and *** on
Category H Products. AOL is required to inform Sun in writing as
to the specific development project for which the Development
Equipment is to be used pursuant to procedures to be agreed upon
by the parties.
(D) Discounts provided herein 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 purchases 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 some code license fees. Price lists are
subject to change at any time.
(E) *** approximately 21 lines omitted ***
(F) Sun agrees to grant AOL most favored customer status, such that
no other commercial customer providing services similar to AOL
Services (excluding government, education, non-profit customers
and resellers to these customers) shall receive better pricing,
terms and conditions on an overall basis taking into account all
benefits, terms and conditions on an overall basis accruing to
AOL under this Agreement.
(G) In the event that Sun reduces its list price on any Sun Product,
such reduced list price will be utilized for calculating prices
on all of such Sun Products purchased by AOL within sixty (60)
days prior to such price reduction. AOL will receive a credit for
the price reduction which may be utilized for purchase of Sun
Products including for payments of invoices of any affected
product.
1.9 SERVICE PROVIDER DEVELOPMENT FUND ("SPDF") This section governs
AOL accrual, use, and reimbursement of SPDF.
(A) AOL will receive SPDF at a rate equal to two percent (2%) of its
net direct purchase of Sun Products.
(B) SPDF shall be utilized by AOL as follows:
50% of SPDF on SMI technology, training, services
50% of SPDF on Marketing Initiatives. SPDF may be
utilized for all marketing undertaken by AOL under
the Strategic Development and Marketing Agreement
being entered into by the parties concurrently
herewith.
(C) The policies and procedures governing the AOL's reporting, use
and reimbursement of SPDF are set forth on the web site (URL to
be determined).
(D) AOL agrees to pay all such taxes as required.
(E) All claims for reimbursement must be received by the designated
co-op agency within 6 months from the accrual date. Any funds not
claimed during this time period will be forfeited to Sun. AOL
shall be advised in writing of unused funds at least thirty (30)
days prior to the forfeiture due.
(F) Sun shall not be responsible in any way for any acts, errors or
omissions of the designated co-op agency.
1.10 SALES INFLUENCE PROGRAM. AOL shall receive influence credit
pursuant to the Sun Sales Influence Agreement attached hereto
when:
(i) AOL actually influences a sale of Sun Products to
customers who have not purchased Sun Products in the
twelve (12) months preceding the sale, and
(ii) as provided in Section 12 thereof.
1.11 PAYMENT TERMS. Prices and fees for Sun 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, services and/or Software. AOL is responsible for
payment of all such charges and taxes. AOL agrees to pay any fees
within 30 days from the date of invoice or shipment, whichever is
later. Sun reserves the right in its reasonable commercial
judgment to place AOL on credit hold, in which event Sun will
promptly inform AOL and may, a) with respect to Product
purchases, delay or reschedule AOL orders, and b) with respect to
Services, discontinue the delivery of Services upon 30 days'
notice to AOL if payment has not been received. Interest will
accrue from the date on which payment is due at the lesser of 15%
per annum or the maximum rate permitted by applicable law. AOL
will not be required to pay the disputed portion of any invoice,
pending resolution of that dispute, provided that Notice of the
dispute has been forwarded to Sun in writing within 15 days of
the date of the invoice.
1.12 ORDERS AND DELIVERY. AOL may submit written Product orders to Sun
at any time. However, acceptance of AOL's Product orders will
only be effective upon issuance of Sun's order acknowledgment
form. Sun will use reasonable efforts to meet the delivery
date(s) identified on the acknowledgment form. If AOL places a
purchase order with Sun and Sun cannot deliver Sun Products
within the greater of the Sun published lead time or eight (8)
weeks, and AOL cancels the order, reorders non-Sun computer
equipment of comparable functionality to the Sun Products ordered
and provides Sun with documentation evidencing the alternative
purchase, then Sun will credit against the applicable yearly
commitment identified in Section 1.3, the net amount of the
cancelled order. Unless otherwise specified an AOL's order, Sun
may not make partial deliveries or invoice each partial delivery.
Such deliveries will not relieve AOL of its obligation to accept
other parts of its order. Title to Equipment, and risk of loss of
or damage to Products, will pass to AOL upon shipment by Sun, Ex
Works Sun's product delivery center. For purposes of AOL's
payment obligations hereunder, products will be deemed accepted
upon receipt by AOL. Sun's product offerings are continually
evolving. Accordingly, Sun reserves the right to make product
substitutions and modifications that do not cause a material
adverse effect in product performance.
1.13 RESCHEDULING, RECONFIGURATION, AND CANCELLATION CHARGES. AOL may
reschedule, reconfigure, refuse or cancel the whole or part of
any Product order once, at no charge, provided the written
request to do so is received by Sun at least sixty (60) days
prior to the scheduled delivery date and, in the case of
rescheduling or reconfiguration, the requested delivery date is
within sixty (60) days of the original delivery date. If an order
for a Product is rescheduled, reconfigured, refused, or cancelled
at AOL's request on any other basis, or if Sun reschedules the
Product order because AOL fails to meet an obligation under the
Agreement, then Sun may, upon written notice to AOL and
reasonable opportunity for AOL to cure, charge AOL a restocking
fee equal to ten percent (10%) of the applicable list price of
the rescheduled, refused, reconfigured or cancelled portion of
the order.
1.14 PRODUCT UPGRADES. The list price of Product upgrades is based
upon the return to Sun of specified parts from system(s) being
upgraded, as identified in the applicable End User Price List. If
Sun does not receive the specified parts within forty-five (45)
days of upgrade delivery to AOL, Sun will invoice AOL for the
non-returned parts. AOL agrees to pay Sun for such 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.
1.15 TERM AND TERMINATION
(A) Term.
This Agreement shall commence an November 1, 1998 and shall
remain in force until and through June 30, 2002. Upon written
request from AOL, this Agreement will be extended for up to three
(3) years, in separate one year increments, if AOL commits to
purchase 100 Million in Sun Products during each year this
Agreement is extended.
(B) Termination.
(1) This Agreement may be terminated by either party, by notice,
if the other party fails to cure any material remediable breach
of this Agreement within ninety (90) days of receipt of Notice of
such breach.
(2) If Sun terminates the "Strategic Development and Marketing
Agreement" as a result of the change of control of AOL as
provided in the Strategic Development and Marketing Agreement,
then Sun may immediately terminate this Agreement upon Notice.
(3) If AOL terminates the "Strategic Development and Marketing
Agreement" as a result of the change of control of Sun as
provided in the Strategic Development and Marketing Agreement,
then AOL may immediately terminate this Agreement upon Notice.
(C) Effect of Termination.
(1) Upon any termination or expiration of this Agreement, AOL
shall no longer be authorized to purchase Sun Products. In the
event of termination for cause, Sun will not be obligated to
accept any AOL orders that have not been previously accepted.
(2) Rights and obligations under this Agreement which by their
nature should survive, will remain in effect after termination or
expiration hereof. Neither party shall be liable to the other for
damages of any kind, on account of the termination or expiration
of this Agreement in accordance with its terms and conditions.
(D) Netscape Closing.
In the event the currently contemplated merger between AOL and
Netscape does not close, then:
(1) Section 1.3(B) shall be amended such that AOL's commitments
for the First, Second and Third Periods shall be 30 Million
Dollars ($30,000,000) for each Period so that the total
commitments over the three Periods shall be 90 Million Dollars
($90,000,000). In such event, Liquidated Damages for each Period
shall in all instances be based upon forty percent (40%) of any
shortfall below the revised commitment provided in this Section
1.15(D)(1). Section 12 of the Sales Referral Agreement attached
hereto will be nullified.
(2) In the event that both the contemplated merger between AOL
and Netscape does not close and the Joint Development Agreement
is terminated, then AOL will have the option to eliminate any
further Liquidated Damages for failure to meet the revised
commitments under Section 1.15(D)(1) and AOL will be entitled to
the credit for the unused finds specified in Section 1.5.
(3) In the event that AOL exercises the option set forth in
Section 1.15(D)(2), the provisions of Section 1.8(F) will be
nullified and the provisions of Section 1.8 will be renegotiated.
1.16 BINARY CODE LICENSE
(A) Grant and Restrictions: As set forth in Exhibit B (Binary Code
License), AOL is granted a non-exclusive and non-transferable
license ("License") for the use of Software provided with Product
in machine-readable form and accompanying documentation, by the
number of users for which the applicable fee has been paid.
Transfer of the License shall be pursuant to Exhibit C. Software
is copyrighted and title to all copies is retained by Sun, its
licensors or both. AOL will not make copies of Software or
accompanying documentation, other than a reasonable number of
copies of Software for archival purposes and, if applicable, AOL
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 will be
reproduced and applied. AOL will not modify, decompile,
disassemble, decrypt, extract or otherwise reverse engineer
Software.
(B) License to Develop: In the event that AOL 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 such Software will 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 AOL; AOL is not licensed
to develop printing applications or print, unless AOL has secured
a valid printing license; incorporation of portions of Motif(R)
in Developed Programs may require reporting of copies of
Developed Programs to Sun; and AOL agrees to indemnify, hold
harmless and defend Sun from and against any losses, expenses,
claims or suits, including attorney's fees, which arise or result
from distribution or use of Developed Programs, to the extent
that such claims or suits arise from the development performed by
AOL.
(C) Confidential Information: Software is confidential and
proprietary information of Sun, its licensors, or both. AOL
agrees to take reasonable steps to protect Software from
unauthorized disclosure or use.
(D) U.S. Government Restrictions: If AOL is acquiring Software or
accompanying documentation on behalf of the U.S. Government, it
will be subject to "Restricted Rights", as that term is defined
in the Federal Acquisition Regulations ("FARs") in paragraph
52.227-19(c)(2), or its equivalent paragraph in the DOD
Supplement to the FARs or its successor provisions.
(E) Termination: The License is effective until terminated. AOL may
terminate the License at any time by destroying Software and
accompanying documentation and all copies thereof. The License
will terminate immediately upon Notice from Sun if AOL fails to
comply with the terms of this License Section or the Confidential
Information obligations set forth above. Upon termination, AOL
will destroy all copies of Software and accompanying
documentation.
1.17 YEAR ▇▇▇▇ ▇▇▇▇▇▇▇▇
(A) Sun warrants that specified versions of Products identified on
Sun's external Web site (url: ▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇.▇▇▇▇) 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) Specified versions of Products identified on Sun's eternal Web
site as not yet compliant, but which have a compliance date
scheduled, will become Listed Products when a remedial patch,
update or subsequent release is issued, but in no event later
than June 30, 1999. Other Products are not covered by these
warranties.
(C) AOL's sole and exclusive remedy for Sun's breach of these
warranties will be for Sun: (i) to use commercially reasonable
efforts to provide AOL promptly with equivalent Year 2000
compliant products; or (ii) if (i) is commercially unreasonable,
to refund to AOL its net book value for non-compliant Products.
(D) UNLESS SPECIFIED IN THIS SECTION, ALL EXPRESS OR IMPLIED
CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED
WARRANTY OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT SUCH
DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.
SECTION 2: GENERAL TERMS
2.1 AOL's OBLIGATIONS
(A) Indemnity and Insurance. Each Party will defend, indemnify, save
and hold harmless the other Party and the officers, directors,
agents, Affiliates, distributors, franchisees and employees of
such other Party from any and all third party claims, demands,
liabilities, costs or expenses, including reasonable attorney's
fees ("Liabilities resulting from the indemnifying Party's breach
of any duty, representation, warranty of this Agreement, except
where such Liabilities result from the gross negligence or
knowing and willful misconduct of such other Party. Each Party
agrees to (i) promptly notify the other Party in writing of any
indemnifiable claim and give the other Party the opportunity to
defend or negotiate a settlement of any such claim at such other
Party's expense, and (ii) cooperate fully with the other party,
at that other Party's expense, in defending or settling such
claim.
(B) Fair Representation. AOL shall display, demonstrate and represent
Sun Products fairly and shall make no representations concerning
Sun or its Sun Products which are false, misleading, or
inconsistent with those representations set forth in promotional
materials, literature and manuals published and supplied by Sun.
AOL shall comply with all applicable laws and regulations in
performing under this Agreement.
2.2 LIMITATION OF LIABILITY. Except for obligations under the Section
entitled "Aircraft Product and Nuclear Applications," any
applicable software license, and any damages caused by gross
negligence, and to the extent not prohibited by applicable law:
(A) Each party's aggregate liability to the other for claims relating
to this Agreement, whether for breach or in tort, shall be
limited to the amount paid by AOL for Product which is the
subject matter of the claims.
(B) Neither party be liable for any indirect, punitive, special,
incidental or consequential damages in connection with or arising
out of this 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 party has
been previously advised of the possibility of such damage.
(C) If a court concludes or the parties agree that an exclusive
remedy provided for in this Agreement fails of its essential
purpose, then Sun will have no liability for damages for the
breach or nonperformance of the Section(s) covered by the
exclusive remedy.
2.3 PRODUCT WARRANTY. Product warranties may vary depending on the
type of Sun Products purchased. Applicable terms and conditions
are as set out in the then current Sun applicable End Price List.
Software provided with Product is warranted to conform to
published specifications for a period of ninety (90) days from
the date of delivery. Sun does not warrant that; (i) operation of
any such Software will be uninterrupted or error free; or (ii)
functions contained in such Software will operate in combinations
which may be selected for use by the licensee or meet the
licensee's requirements. These warranties extend only to AOL as
an original purchaser. Sun reserves the right to change these
warranties at any time upon notice and without liability to AOL
or third parties.
(A) Limitation of Liabilities under Warranty: AOL's exclusive remedy
and Sun's entire liability under these warranties will be: (i)
with respect to Equipment, repair or at Sun's option,
replacement; and (ii) with respect to Software, using reasonable
efforts to correct such Software as soon as practicable after AOL
has notified Sun of such Software's nonconformance. If such
repair, replacement or correction is not reasonably achievable,
Sun will refund the purchase price/license fee.
(B) No Warranty: No warranty will apply to: (i) any and all Software
customization, such Software is provided "AS IS", and "WITH ALL
FAULTS"; or (ii) any Product that is modified without Sun's
written consent or which has been misused, altered, repaired or
used with Equipment or software not supplied or expressly
approved by Sun.
2.4 NO OTHER WARRANTIES. UNLESS SPECIFIED IN THIS AGREEMENT, ALL
EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO
THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.
2.5 CONFIDENTIAL INFORMATION. If Sun desires that information
provided to AOL under this Agreement be held in confidence, Sun
will identify the information as confidential or proprietary. AOL
may not disclose Sun's confidential or proprietary information
and may use it only for purposes specifically contemplated in
this Agreement. Sun will treat tangible business and financial
information, including but not limited to, any technical
operation, membership or capacity information, of AOL that has
been previously identified as confidential, with the same degree
of care as it does its own similar information. If either party
is regarded by law to disclose or produce confidential
information to a third party, then the producing/disclosing party
shall (i) notify the other party in a manner to allow the other
party to seek appropriate protections from or conditions upon the
required disclosure, and (ii) take other reasonable steps to
secure confidential status of the confidential information. The
foregoing obligations do not apply to information which: (i) is
or becomes known by recipient without an obligation to maintain
its confidentiality; (ii) is or becomes generally known to the
public through no act or omission of recipient, or (iii) 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.
2.6 IMPORT AND EXPORT LAWS. All Products and technical data delivered
under this Agreement are subject to U.S. export control laws and
may be subject to export or import regulations in other
countries. AOL 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 AOL. AOL agrees that it will not
export Products outside the United States for purposes of resale
unless AOL has been accepted into Sun's Passport Program and has
executed a Passport Exhibit to this Agreement. AOL recognizes
that under the Passport Program, the prices it pays may be
different from those stated in this Agreement, and that purchases
made outside the U.S. will be subject to local terms and
condition.
2.7 AIRCRAFT PRODUCT AND NUCLEAR APPLICATIONS. Products are not
designed or intended for use in on-line control of aircraft, air
traffic, aircraft navigation or aircraft communications; or in
the design, construction, operation or maintenance of any nuclear
facility. Sun disclaims any express or implied warranty of
fitness for such uses. AOL represents and warrants that it will
not use or resell the Sun Products for such purposes, and that it
will use its best efforts to ensure that its customers and
end-users of the Sun Products are provided with a copy of the
foregoing notice.
2.8 TRADEMARKS LOGOS AND PRODUCT DESIGNS
"Sun Trademarks" means all names, marks, logos, designs, trade
dress and other brand designations used by Sun in connection with
Products. AOL may refer to Products by the associated Sun
Trademarks, provided that such reference is not misleading and
complies with the then current Sun Trademark and Logo Policies.
AOL shall not remove, alter or add to any Sun Trademarks, nor
shall it co-logo Product. AOL is granted no right, title or
license to, or interest in, any Sun Trademarks. AOL acknowledges
Sun's rights in Sun Trademarks and agrees that any use of Sun
Trademarks by AOL shall inure to the sole benefit of Sun. AOL
agrees not to (i) challenge Sun's ownership or use of, (ii)
register, or (iii) infringe any Sun Trademarks, nor shall AOL
incorporate any Sun Trademarks into AOL's trademarks, service
marks, company names, internet addresses, domain names, or any
other similar designations. If AOL acquires any rights in any Sun
Trademarks by operation of law or otherwise, it will immediately
at no expense to Sun assign such rights to Sun along with any
associated goodwill, applications, and/or registrations.
2.9 ADDITIONAL GENERAL TERMS
(A) Dispute Resolution. Any action related to this Agreement will be
governed by California law, excluding choice of law rules.
(B) Relationship of the Parties. This Agreement is not intended to
create a relationship such as a partnership, franchise, joint
venture, agency 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.
(C) Assignment. Neither party may assign or otherwise transfer any of
its rights or obligations under this Agreement, without the prior
written consent of the other party, except that Sun may assign
its right to payment and may assign this Agreement to an
affiliated company.
(D) Waiver or Delay. Any express waiver or failure to exercise
promptly any right under this Agreement will not create a
continuing waiver or any expectation of non-enforcement.
(E) Force Majeure. A party is not liable under this Agreement for
non-performance caused by Force Majeure events or conditions
beyond that party's control if the party makes reasonable efforts
to perform. This provision does not relieve AOL of its obligation
to make payments then owing.
(F) Notices. All written Notices required by this Agreement must be
delivered in person or by means evidenced by a delivery receipt
and will be effective upon receipt.
(G) Execution. This Agreement shall become binding only after it has
been signed by an authorized officer of AOL and an authorized
officer of Sun.
(H) Entire Agreement.
(i) This Agreement is the parties' entire agreement relating
to subject matter. It 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 during
the term of this Agreement.
(ii) No modification to this Agreement will be binding unless
in writing and signed by an authorized representative of
each party.
(I) Point of Contact. Both parties agree to appoint and maintain a
single person to serve as the point of contact for all day to day
communications regarding the performance and implementation of
this Agreement (the "Contact Person"). Sun's initial Contact
Person is ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇. AOL's initial Contact Person is ▇▇▇▇▇
▇▇▇▇▇. A party's Contact Person may be changed upon written
notice to the other party.
(J) Injunctive Relief. It is understood and agreed upon that,
notwithstanding any other provisions of this Agreement, breach of
this Agreement by a party may cause irreparable damage for which
recovery of money would be inadequate and that either party shall
be entitled to timely injunctive relief to protect such party's
rights under this Agreement in addition to any and all remedies
at law.
(K) Return of Information. Upon the expiration or termination of this
Agreement, each party will, upon the written request of the other
party, return or destroy (at the option of the party receiving
the request) all Confidential Information, documents, manuals and
other material specified by the other party.
(L) Headings. The paragraph headings appearing in this Agreement are
inserted only as a matter of convenience and in no way define,
limit, construe, or describe the scope or extent of such
paragraph or in any way affect this Agreement.
(M) Acknowledgment. The parties hereto each acknowledge that the
provisions of this Agreement were negotiated to reflect an
informed, voluntary allocation between them of all risks (both
known and unknown) associated with the transactions contemplated
hereunder. The limitations and disclaimers related to warranties
and liabilities contained in this Agreement are intended to limit
the circumstances and extent of liability. The provisions of such
sections (and this Section) will be enforceable independent and
severable from any other enforceable or unenforceable provision
of this Agreement.
(N) Reference Customer. Sun will be entitled to use AOL as a
reference customer and to refer to AOL any materials in which
Sun's clients and customers are mentioned, subject in each case
to AOL's approval. AOL grants Sun the right to use AOL's name and
logos and related other trade marks, trade names and service
marks in connection with any such materials.
(O) Exhibits. The attached Exhibits may be modified only upon the
mutual written consent of the parties. The current version of
each Exhibit is hereby incorporated by reference.
Sun and AOL acknowledge that each has read and understood this Agreement and
consents to be bound by its terms. Agreed to this 23rd day of November, 1998.
SUN MICROSYSTEMS, INC.: AMERICA ONLINE INC.:
By:/s/ ▇. ▇.Raduchez By:/s/ ▇▇▇▇ ▇▇▇▇
Name: ▇. ▇. Raduchez Name: ▇▇▇▇ ▇▇▇▇
Title: Chief Strategy Officer Title: Senior Vice President,
Network Operations
Date: 11/23/98 Date: 11/23/98
EXHIBIT A
AOL AUTHORIZED BUYING LOCATIONS
[TO BE PROVIDED BY AOL]
[NOT INCLUDED AS AN EXHIBIT TO ORIGINAL
AGREEMENT. EXHIBIT WILL BE PUBLICLY FILED
BY THE COMPANY ONCE IT HAS BEEN PREPARED.]
EXHIBIT B
END USER BINARY 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(R)* 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 indemnify, 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 to the extent such claims or suits arise from the development performed
by Customer.
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 REGARDLESS 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 fails 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 UPON notice
from Sun if Customer MATERIALLY 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 52.227-19(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, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇.
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. Severability. If any of the above provisions are held to be in violation of
applicable law, void, or unenforceable in any jurisdiction, then such provisions
are herewith waived to the extent necessary for the License to be otherwise
enforceable in such jurisdiction. However, if in Sun's opinion deletion of any
provisions of the License by operation of this paragraph unreasonably
compromises the rights of liabilities of Sun or its licensors, Sun reserves the
right to terminate the License and refund the fee paid by Customer as Customer's
sole and exclusive remedy.
13. 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, acknowledgment, 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.
EXHIBIT C
LICENSED SOFTWARE TRANSFER NOTIFICATION/AGREEMENT
TO: Sun Microsystems, Inc.
Attn: Contracts Department, M/S UPAL01-455
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
TRANSFER NOTIFICATION:
In connection with the sale of used Sun workstations ("Equipment")
Licensee undertakes to notify Sun Microsystems, Inc., of the transfer
of certain Licensed Software in conjunction with such sale, to the
party herein named below under "Transfer Agreement" ("Transferee").
Licensee warrants that Licensee has not retained any copies of the
Licensed Software transferred in conjunction with the sale of used
Equipment to Transferee and hereby relinquishes all rights in the
Licensed Software previously granted by Sun.
Licensed Software Transferred: Used Equipment Sold
Licensed Software:
Equipment Serial Number:
a. a.
b. b.
c. c.
d. d.
Signed:
Name:
Title:
Company:
Address:
Date:
TRANSFER AGREEMENT:
EXHIBIT C
(CONTINUED)
Transferee herein acknowledges receipt of the Licensed Software in conjunction
with the purchase of the Equipment herein set forth above.
Transferee further agrees to the terms and conditions governing the transfer and
use of the Licensed Software as contained in Sun's Binary Code License, attached
hereto. The term "LICENSEE" as contained in the Binary Code License shall be
deemed to apply to Transferee.
Signed:
Name:
Title:
Company:
Address:
Date:
ATTACHMENT
SUN PLATINUM SERVICES OFFERING
This SunSpectrum Support Program Module describes the specific terms by which
Customer purchases SunSpectrum support services from Sun and by which Sun,
through its Enterprise Services Division, delivers SunSpectrum support services
to Customer. To the extent not inconsistent with the following terms, the
provisions of the Service Provider Agreement between Sun and AOL are
incorporated by reference. The terms of this Program Module apply to systems
listed on a Schedule or Quote ("Schedule") which references this Program Module,
and are identified on Sun's then current Enterprise Services Price List for
SunSpectrum support ("system(s)"). This Program Module is effective as of the
date indicated on the applicable Schedules and continues in effect until the
expiration or termination of all Schedules to this Program Module.
1) CUSTOMER REQUIREMENTS:
(A) SUPPORT REQUESTS: Customer may designate certain of its employees
as "Contacts" for each eight (8) hour shift during the period in
which Telephone Assistance is provided by Sun. Only Contacts may
initiate support requests. Each Contact must possess or, at
Customer's expense, acquire the necessary expertise and training
(as from time to time defined by Sun) to diagnose and resolve
system software malfunctions with direction by Sun.
(B) CUSTOMER'S DUTIES: Customer will perform routine system
preventative maintenance and cleaning. Prior to requesting
support from Sun, Customer must comply with all published
operating and troubleshooting procedures for the systems. If such
efforts are unsuccessful in eliminating the malfunction, Customer
will then promptly notify Sun of the malfunction. Customer must
establish and maintain a procedure external to systems for
reconstruction of lost or altered files, data, or programs.
Customer must provide Sun support personnel with: (a) reasonable
and safe access to systems; (b) adequate working space and
facilities at the installation site necessary to service systems;
and (c) cooperation in maintaining a site activity log. Customer
acknowledges that the examination, replacement, and handling of
hardware components can be hazardous. Support tasks should only
be performed by qualified service personnel with the appropriate
technical training and experience to recognize these hazards
(e.g., electrostatic discharge) and who observe all protection
procedures and precautions. Customer agrees to use qualified
service personnel and to employ adequate safety precautions in
the performance of its obligations hereunder.
(C) MOVEMENT OF COVERED SYSTEMS: All services will be delivered at
the installation site(s) indicated on the Schedule(s) referencing
this Program Module. Support of systems moved by Customer to a
new installation site is subject to local availability and will
be subject to additional fees. If requested by Customer, Sun may
supervise any movement of systems in accordance with the terms
and conditions of the SunMOVES Program Module. If Sun does not
supervise the movement of systems, Sun may require that it
inspect and recertify the systems as a condition of continued
support of those systems.
(D) REMOTE SUPPORT REQUIREMENTS: To obtain remote services, including
without limitation Remote Systems Monitoring and Remote Dial-In
Analysis, Customer must procure and maintain a Sun-specified
gateway, and Customer is responsible for any costs associated
with procuring and maintaining that gateway. Customer will be
responsible for all outbound telecommunications charges related
to the remote services. If remote services are not permitted or
facilitated by Customer, Sun reserves the right to decline to
deliver remote services and/or to assess additional charges on
Customer for the delivery of services which would otherwise be
provided remotely.
1) ADDITIONAL SYSTEMS: Customer may add systems to a Schedule at Sun's then
current per system fee, at any time upon notice to Sun, subject to the rights of
Sun set forth in INSPECTIONS. Sun will provide services for systems added to a
Schedule for a period coterminous with the term of the Schedule, and Sun shall
pro rate the fee for such services. Customer will receive an add-on Schedule
reflecting the additional covered systems and associated additional fee.
2) PRICES: Prices for Services hereunder are set forth in the SP Agreement.
3) INSPECTIONS: Systems are subject to inspection by Sun prior to the
commencement of support, and any costs for required repairs or updates will be
charged to Customer at Sun's current published time and material rates.
4) LICENSE: Software updates, version releases and product releases
(collectively "enhancement releases"), maintenance releases, patches, and
SunSolve(TM) knowledge database provided hereunder may only be used, or accessed
by, systems listed on a Schedule. Use of software enhancement releases,
maintenance releases, and patches is governed by the applicable software license
obtained with the original product. On line versions of support databases may
only be accessed by Contacts for the sole purpose of diagnosing and resolving
problems on systems listed on a Schedule. Use of educational software and
videotape products is governed by, and the Customer agrees to be bound by, the
license agreement accompanying each individual product.
5) EXCLUSIONS: Sun's obligation to provide support services under this Program
Module is contingent upon proper use and care of systems. Sun has no obligation
to provide support under this Program Module, should such support be required
because of: (a) improper use, abuse, accident, or neglect; (b) causes external
to the system, such as failure to maintain environmental conditions within the
operating range specified by the manufacturer of the systems; or (c) failure to
maintain software and systems at Sun-specified minimum configuration or release
level. Any support delivered by Sun as a result of such events will be invoiced
separately and paid at Sun's then current published time and material rates.
Operating supplies and accessories, such as magnetic tapes and anti-glare
coatings on video display monitors, and unsupported options are not covered by
this Program Module. Sun will have no obligation to provide support under this
Program Module if Customer fails to meet its obligations under Section 10
(Payment Terms) of the Master Terms of Service.
6) LEVELS OF SUPPORT:
(A) 7 X 24 TELEPHONE ASSISTANCE: Unlimited, toll-free assistance for
Sun supported software, hardware, and network problems 24 hours
per day, 7 days a week, including Sun holidays.
(B) 7 X 24 ON-SITE ASSISTANCE: On-site hardware support assistance 24
hours per day, 7 days per week, including Sun holidays.
(C) CUSTOMER-DEFINED PRIORITY AND RESPONSE TIME: When Contact calls
for support assistance, Contact will assign a priority rating to
the call: URGENT, SERIOUS or NOT CRITICAL:
* URGENT (system unusable) - Live transfer of service request.
Personnel arrive at the installation site within an average of
two (2) hours of service request for on-site hardware support
assistance.
* SERIOUS (system seriously impaired) - Live transfer of
service request. Personnel arrive at the installation site
within an average of four (4) hours for on-site hardware
support assistance.
* NOT CRITICAL - Live transfer of service request. Personnel
arrive at the installation site after an average of one (1)
business day or at a later mutually convenient time for
on-site hardware support assistance.
(D) SITE ACTIVITY LOG: On-site service performed will be recorded in
a site activity log.
(E) REMOTE DIAL-IN ANALYSIS: Remote examination and diagnosis of
systems through the Customer provided gateway.
(F) REMOTE SYSTEMS MONITORING: Sun's remote systems monitoring tools
will periodically collect data from designated systems of
Customer. Customer gives Sun ongoing permission to access the
supported system, strictly for the purpose of fulfilling Sun's
support responsibilities. Customer agrees to obtain an
appropriate gateway per the remote services requirements of
Section 1(d) above, and this gateway will include a Sun-specified
telecommunications line dedicated to remote systems monitoring.
Sun reserves the right to limit the use and availability of this
feature at any time. The remote systems monitoring tools may be
configured for the Customer's requirements.
(G) SOLARIS ENHANCEMENT RELEASES: Unless otherwise specified by Sun,
Customer will receive periodic delivery of one (1) copy of
Solaris enhancement releases.
(H) PATCHES AND MAINTENANCE RELEASE ACCESS: Unless otherwise
specified by Sun, Customer will receive patches and maintenance
releases for Solaris software.
(I) SUNSOLVE LICENSE: Customer is granted a license to use SunSolve,
subject to the license terms above under LICENSE.
(J) SUNSOLVE EARLYNOTIFIER SERVICE: Periodic notice from Sun
containing information on newly discovered problems and bugs.
(K) PERSONAL TECHNICAL ACCOUNT SUPPORT; SERVICE ACCOUNT MANAGEMENT:
Customer account will be assigned to a Sun Account Advocate who
will assist Customer in assessing critical support issues and
help coordinate Sun's response. The assigned Sun Account Advocate
may also provide available information on known bugs, potential
system problems, and currently available patches, as well as
maintain pertinent account information in Sun's Customer Account
Management Database. These services are provided to Customer
during Sun's local business hours, excluding Sun holidays.
(L) ACCOUNT SUPPORT PLAN: Sun's local customer support management
will provide the process for the design of an Account Support
Plan for Customer.
(M) ACCOUNT SUPPORT REVIEW: Monthly account review of Customer's
service activity and requirements if requested by Customer.
(N) SUN VENDOR INTEGRATION PROGRAM (Sun VIP): Provision of
multivendor software problem management; includes coverage for
approved ISVs (as may be designated by Sun from time to time)
with whom Customer maintains a valid service contract with
equivalent hours of coverage and response times.
(O) SKILLS ASSESSMENT: Sun will assist Customer annually in
evaluating the skills of up to ten (10) of Customer's technical
personnel with responsibility for systems administration.
(P) MISSION CRITICAL SUPPORT TEAMS: For Customer defined URGENT
problems, telephone assistance will be provided by a separate
team of experienced Sun personnel. Availability of such personnel
may be limited during peak call periods and non-business hours,
during which times backup Sun Solution Center engineers will be
available to handle service requests.
(Q) SYSTEM AVAILABILITY GUARANTEE: For properly configured,
maintained and administered systems, Sun will commit to maintain
certain levels of System Availability, as defined in Exhibit A,
SunSpectrum System Availability Guarantee.
(R) SOFTWARE RELEASE PLANNING: Provision of assistance to Customer in
evaluating new Solaris releases and Customer's need for migration
from any of the following versions of Solaris: Solaris 2.X
through the most current version of Solaris. The service is
subject to Customer complying with Sun's requests for information
and data relevant to providing this service.
(S) SOFTWARE PATCH MANAGEMENT ASSISTANCE: Provision of assistance to
Customer in evaluating whether patches for selected Sun software
products should be applied to Customer's systems. This service is
subject to Customer complying with Sun's requests for information
and data relevant to providing this service.
(T) FIELD CHANGE ORDER ("FCO") MANAGEMENT ASSISTANCE: Provision of
assistance to Customer in evaluating the service impact of Field
Change Orders for selected Sun hardware products. This service is
subject to Customer complying with Sun's requests for information
and data relevant to providing this service.
(U) INSTALLATION SERVICES: For systems installed outside the
continental United States, Customer's choice of one installation
service from among: SunBasic Start?, DeskStart?, ServerStart?,
and SPARCstorage(TM) ArrayStart?. The particular installation
service selected by Customer will be listed on a Schedule.
(V) ADDITIONAL FEE SERVICES: Subject to an additional per service
fee, Customer may purchase the additional services:
* SUN UNBUNDLED SOFTWARE ENHANCEMENTS: Periodic delivery of
one (1) copy of enhancement releases. Enhancements may
not be available for all software products.
* ADDITIONAL MEDIA AND DOCUMENTATION: One additional copy
of media and documentation for Solaris enhancement
releases and/or Sun unbundled software enhancements
obtained under this Program Module.
* ADDITIONAL CONTACTS: Customer may designate additional
Contacts meeting the requirements set forth above under
CUSTOMER REQUIREMENTS, SUPPORT REQUESTS.
* ACCOUNT SUPPORT REVIEW: Semi-annual account review of
Customer's service activity and requirements if requested
by Customer.
* ADDITIONAL MEDIA AND DOCUMENTATION: One additional copy
of media and documentation for Solaris enhancement
releases and/or Sun unbundled software enhancements
obtained under this Program Module.
THE PARTIES ARE NOT REQUIRED TO EXECUTE THIS DOCUMENT UNLESS CUSTOMER WISHES TO
HAVE A SIGNED PROGRAM MODULE.
THE PARTIES HAVE READ THIS PROGRAM MODULE AND AGREE TO BE BOUND HEREBY. THIS
PROGRAM MODULE IS EFFECTIVE AS OF --/--/--.
SUN MICROSYSTEMS, INC. CUSTOMER: America Online, Inc.
By: /s/ ▇. ▇. Raduchez By: /s/ ▇▇▇▇ ▇▇▇▇
Print: ▇. ▇. Raduchez Print: ▇▇▇▇ ▇▇▇▇
Title: Chief Strategy Officer Title: Sr. Vice President, Network
Network Operations
ATTACHMENT
SALES REFERRAL AGREEMENT BETWEEN AMERICA ONLINE, INC.
AND SUN MICROSYSTEMS, INC.
This Agreement is entered into and effective November 1, 1998 by and between
America OnLine, Inc. ("AOL") and Sun Microsystems, Inc. (hereafter referred to
as "Sun"). The Service Provider Agreement between Sun and AOL effective November
1, 1998 is incorporated by reference.
1. TERM
The AOL/Sun Sales Referral Program (hereinafter referred to as "SRP") will
have the same term as the Service Provider Agreement and will terminate
upon termination or expiration of the Service Provider Agreement.
2. ELIGIBLE PRODUCTS, SERVICES AND SOFTWARE
Sun Products listed on the then current United States Computer Systems
Division Price List are eligible for the Program fees as specified in this
Agreement. (Such Sun Products are hereinafter referenced as "Eligible
Products".) This Program is for Sun sales influenced by AOL in the United
States. If AOL desires to participate in SRP-type programs outside of the
United States, Sun agrees to negotiate those agreements with AOL.
3. ELIGIBLE SALES/APPLICATION SOLUTIONS
Eligible Products sold directly to an end user in the United States by Sun
that are a direct result of the sale of Application Solutions (as defined
below) shall be considered an "Eligible Sale" under this Agreement. A
"sale" under this Agreement shall be considered "Eligible" only if AOL
initiates the sales opportunity, recommends Eligible Products to the end
user, and drives the sale of the Eligible Products to an end user who has
not purchased Sun Products in the past twelve (12) months. Sun will
determine, its sole opinion, whether a sale is an Eligible Sale within the
meaning of this Agreement.
"Applications Solutions" means AOL Services deployed in the employment and
utilization of technology to solve a specific business problem or develop a
business solution. AOL's "Application Solutions" within the meaning of this
Agreement are set forth on Exhibit A. Other AOL Services can apply for
program eligibility, via written request to Sun. At the written consent of
Sun, the additional applications will become eligible for SRP credit
through the term of the existing agreement.
Eligible Sales, as determined by the Sun end user sales representative,
shall not include any follow-on sales of Eligible Products to a Sun
customer.
4. FEE SCHEDULE FOR DIRECT SALES
AOL's fee for Eligible Sales by Sun shall be *** of the Sun U.S. Computer
System's list price for all Eligible Products. The then current list price
is defined as of the time of order placement.
5. PROCESS AND PAYMENT
The following sets forth SRP process, which both parties shall adhere to
under this Agreement:
A. In order to qualify as an "Eligible Sale," AOL will submit to Sun, under
an appropriate Non-Disclosure Agreement, a list of "Target Accounts." The
Target Account list will identify AOL's customers or potential customers to
which AOL will be recommending Eligible Product and potentially making a
Request for Eligible Sale (as defined below). AOL will not be eligible for
payment under this program for sale of Sun product into accounts that are
not on the Target Account list. The Target Account list may be amended by
AOL upon the consent of Sun; however, for AOL to be eligible for payment
hereunder, the new account must be on the eligible list for at least 120
days. Request for amendment to the Target Account list must be in writing
to the Sun Contacts identified below and an account will be deemed on the
Target Account as of the date of Sun's written confirmation of the
amendment of the Target Account List. The Target Account list is Exhibit B
to the Agreement.
B. In order to qualify as an "Eligible Sale" AOL will submit to the Sun
designee a "Request for Eligible Sale" which will include:
1. the name and location of end user;
2. the sales opportunity identified by AOL;
3. the AOL Application Solution sold to the end user;
4. the Sun Sales Team engaged in the opportunity;
5. a copy of the Agreement between AOL and the end user;
6. a description of how AOL initiated and drove the sale of Sun
hardware to the end user.
C. Sun's sales representatives will determine whether the Sun hardware sale
qualifies as an "Eligible Sale" and will notify AOL.
D. Sun will make Quarterly payments of SRP Program fees (if any) to AOL
within thirty (30) days after the close of each of Sun's fiscal year
quarters. Initial start-up of payment process may extend payment by an
additional fifteen (15) days for the first one hundred and twenty (120)
days after execution of Agreement.
E. In the event that the end user returns Eligible Product for credit for
which AOL has previously received a corresponding SRP Program fee, Sun will
be reimbursed for such fee unless the cause was a failure of Eligible
product to perform according to Sun's specifications. In addition, if the
end user fails to make payment for Sun Eligible Products for which AOL has
received a corresponding SRP Program fee predominantly caused by a failure
of AOL's Applications Solutions, Sun will be reimbursed for such fee.
6. GEOGRAPHIC COVERAGE
The SRP Program will be valid for all Eligible Sales in North America.
7. Each party is an independent contractor and is free to set its own prices
for all products that each party licenses or sells to end user customers
for its own accounts.
8. AMERICA ONLINE CONTACTS
Program Administrator:
Contract Manager:
Product Manager:
9. SUN CONTACTS
Sales Manager:
Program Administrator:
Contract Manager:
Product Manager:
10. This Agreement is not exclusive and either party may enter into similar
arrangements with one or more third parties.
11. (A) The parties may provide one another certain proprietary
information under this Agreement, including but not limited to
the following: pricing, end user lists and marketing information.
The parties shall adhere to the terms and conditions of the GA
between the parties herein, as it pertains to such proprietary
information hereunder.
(B) Sun shall make the following efforts to ensure that its personnel
▇▇▇▇ as "Sun Confidential Proprietary" any pricing information
and proposal specific configuration specifications provided to
AOL hereunder (the "Sensitive Information").
Sun shall prepare a Description/Announcement of this Agreement
that generally describes the terms and conditions of the
Agreement, including specifically Sun's policy that it ▇▇▇▇ or
label Sensitive Information as "Confidential and Proprietary".
This SRP Description/Announcement will be provided in writing:
(i) to the Sun U.S. Sales Force within thirty (30) calendar days
of the date of execution of this Agreement; (ii) when Sun's Sales
Force makes any inquiry regarding the Agreement; and (iii) on a
semi-annual basis, to the Sun Sales Force generally.
If Sun complies with the special efforts set forth above and, in
spite of such efforts, Sun in good faith and in the normal course
of business delivers to AOL Sensitive Information without marking
or labeling such Information as "Sun Confidential and
Proprietary", then AOL will be liable for the unauthorized
disclosure of such Information if such disclosure is made to a
competitor of Sun and is made consciously, deliberately and in
bad faith, with the intent of identifying clearly to the
competitor that the Sensitive Information belongs to Sun.
12. Notwithstanding any of the provisions of Sections 2, 3, 4, 5 and 6, Sun
will pay AOL a commission of *** of the applicable list price of all Sun
Products and Services (excluding any "Software and Associated Services" as
defined in the Strategic Development and Marketing Agreement) sold by Sun
in connection with any "AOL EC Service Opportunity" as defined in the
Strategic Development and Marketing Agreement. Payments will be made
pursuant to the first sentence of Section 5(D) of the SRP Agreement. If
Payment is made pursuant to this paragraph, then no other payments will be
made under this Agreement with respect to such sales.
In the event that the currently contemplated merger between AOL and
Netscape closes but subsequently the Strategic Development and Marketing
Agreement is terminated due to a breach thereof by AOL, then this Section
12 will be nullified.
In the event that AOL is deemed an agent under applicable law or this
program creates by operation of law any further Sun obligations, payments
or other responsibilities in addition to those set forth in this Agreement,
then AOL waives any such additional claims, responsibilities, payments,
penalties or obligations. To the extent these additional payment
obligations cannot be waived, Sun is entitled to apply any such payments as
a credit against any amounts AOL is entitled to under any agreements or
other obligation between Sun and AOL.
Agreed to and accepted, this 23rd day of November, 1998.
SUN MICROSYSTEMS, INC. AMERICA ONLINE, INC.
By:/s/ ▇. ▇. Raduchez By: /s/ ▇▇▇▇ ▇▇▇▇
Name: ▇. ▇. Raduchez Name: ▇▇▇▇ ▇▇▇▇
Title: Chief Strategy Officer Title: Sr. Vice President,
Network Operations
Date: 11/23/98 Date: 11/24/98
SALES REFERRAL PROGRAM ("SRP") AGREEMENT
EXHIBIT A
This is Exhibit A as referenced in the foregoing Agreement and sets forth AOL's
Applications Solutions. AOL may add or delete from this list in a timely manner.
SRP payment shall not be made on the sales of Sun Price listed Products against
applications not reviewed and accepted by Sun.
[TO BE PROVIDED BY AOL]
[NOT INCLUDED AS AN EXHIBIT TO ORIGINAL
AGREEMENT. EXHIBIT WILL BE PUBLICLY FILED
BY THE COMPANY ONCE IT HAS BEEN PREPARED.]
SALES REFERRAL PROGRAM ("SRP") AGREEMENT
EXHIBIT B
TARGET ACCOUNTS
[TO BE PROVIDED BY AOL]
[NOT INCLUDED AS AN EXHIBIT TO ORIGINAL
AGREEMENT. EXHIBIT WILL BE PUBLICLY FILED
BY THE COMPANY ONCE IT HAS BEEN PREPARED.]