Exhibit 10.8
SUN MICROSYSTEMS COMPUTER CORPORATION
U.S. INDIRECT VALUE ADDED RESELLER ("IVAR") AGREEMENT
This Agreement is effective on July 10, 1992 )("Effective Date") by and
between Sun Microsystems Computer Corporation ("Sun"), a Delaware
corporation, having a place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and sign Automation Systems Inc. ("Reseller") having a place
of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1. SCOPE
This Agreement governs Reseller's authorization to purchase certain Sun
products ("Products") from a designated Sun Authorized master reseller
("Master Reseller") and to resell those Products in the United States to
end users other than the Federal Government ("End Users"). Products
(identified by "Product Tiers"), approved buying and selling locations,
and the identity of the designated Master Reseller are set out in Exhibit
A. Sun may discontinue any Product upon sixty (60) days' notice.
2. APPOINTMENT
Sun appoints Reseller as a non-exclusive indirect Value Added Reseller
("IVAR"). IVAR is authorized to purchase Products from its designated
Master Reseller. Products must be (i) sold, leased or rented
(collectively referred to as "sold") as part of a total solution
consisting of Products and the added value set forth in Exhibit B, (ii)
sold directly to End Users on a face-to-face basis, and (iii) installed
at an End User site in the United States ("Authorized Sale"). The sale of
Products to resellers and to the federal government is prohibited unless
consented to in writing by Sun. IVAR's primary business must at all times
be the sale and support of computer systems.
3. RESELLER DEVELOPMENT FUNDS
IVAR shall receive directly from Sun, Reseller Development Funds ("RDF")
equal to two and thirty-six hundredths percent (2.36%) of the value of
its purchases of Products computed at Sun's list price, excluding
Products purchased from SunExpress and Products not purchased for resale.
Sun may modify this Section upon ninety (90) days' Notice.
4. BUSINESS PLAN
IVAR agrees to market and support Products in compliance with a Business
Plan developed by IVAR and approved by Sun (attached as Exhibit C).
Either party may initiate a review of IVAR's selection of and/or
compliance with objectives, strategies, and tactics under the Business
Plan upon thirty (30) days' notice, provided that Sun shall initiate no
more than one review per calendar quarter. IVAR's failure to comply with
its tactics under the Business Plan shall constitute a material breach of
this Agreement.
5. IVAR REFERENCE GUIDE
Sun's IVAR policies are detailed in its VAR Reference Guide ("Guide").
IVAR represents that it has read the Guide and will comply with all
applicable rules and procedures. Sun may modify the Guide from time to
time upon sixty (60) days' Notice.
6. RESELLER COMMISSION PROGRAM
IVAR may participate in Sun's Reseller Commission Program as detailed in
the Guide.
7. EXHIBITS
The attached Exhibits may be modified only upon the mutual consent of the
parties, except that Sun may modify Exhibit D (Object Code License) at
any time. The current version of each Exhibit is hereby incorporated by
reference.
8. IVAR's OBLIGATIONS
A. SALE AND SUPPORT. IVAR shall use its best efforts to promote the sale
of Products, and shall purchase and maintain the demonstration
configuration identified in the Guide for each authorized Product
Tier at each authorized selling location, IVAR shall provide to each
End User, as detailed in the Guide and the Business Plan, (i)
complete pre- and post-installation support, including complete
installation, training, and continuous technical service and (ii)
hardware and software maintenance support. IVAR must submit and Sun
must approve a detailed, location specific support plan prior to
installing Products at any End User site located more than 200 miles
from an authorized selling location. The sale and direct support of
Products must be performed at all times by full-time employees who
are Sun trained and Sun certified, including at least one full time
Sun dedicated sales representative and one full time, Sun dedicated
systems engineer per authorized selling location. Training and
certification may be secured directly from Sun or from any Sun
Authorized training provider. Sun's support options are set out in
the Guide.
B. SPARE PARTS. The use of spare parts purchased under the authority
granted by this Agreement is strictly limited to (i) resale to an
IVAR's End User for internal use, or (ii) the service of Products
sold and installed by IVAR under this Agreement, except that IVAR may
use such parts to service all of an End User's systems if IVAR has
sold and installed at least twenty-five percent (25%) of the systems
for which service is being provided.
C. IVAR DOCUMENTATION, BUSINESS RECORDS, AND REPORTS. IVAR shall furnish
to its End Users, at the time of delivery of Products, a sale receipt
stating the date of sale, and, if applicable, the serial number of
Products sold. IVAR shall, during the term of this Agreement and for
five (5) years thereafter, keep and maintain complete and accurate
business records with respect to its purchase and sale of all
Products, including, all documents relating to or exchanged between
IVAR and its End Users. Master Reseller and Sun. Sun may review these
records upon request.
IVAR shall provide monthly Productivity Status Reports ("PSRs") to
Sun as detailed in the Guide. Upon the initial failure to timely
submit a complete PSR, Sun will put IVAR on notice that it is in
breach of its obligation. If IVAR fails to remedy this initial breach
or subsequently fails to timely submit a PSR, Sun may cancel RDF
accruals and suspend participation in other programs. Any subsequent
failure to remedy or timely submit a PSR may result in immediate
termination of this Agreement.
D. INDEMNITY AND INSURANCE. IVAR agrees to indemnify and hold Sun
harmless from and against all claims from IVAR's End Users or third
parties arising out of any acts and/or omissions of IVAR or its
employees or representatives. IVAR shall carry liability insurance to
protect Sun from all such claims, pay the premiums therefor, and
deliver to Sun, upon request, proof of such insurance (which shall
require thirty (30) days' written notice to Sun in event of
modification or termination).
E. FAIR REPRESENTATION. IVAR shall display, demonstrate, and represent
Products fairly and shall make no representations concerning Sun or
its Products which are false, misleading, or inconsistent with those
representations set forth in promotional materials, literature and
manuals published and supplied by Sun. IVAR shall comply with all
applicable laws and regulations in performing under this Agreement.
F. "SUN SPARC ONLY". I-VAR shall not sell, lease, or otherwise deal in
any product based on SPARC Architecture, unless such product (i) is a
Sun Product or (ii) is a "laptop system". A product is a "laptop"
system if it is (i) transportable, (ii) battery operated, (iii) under
sixteen (16) pounds total weight including case, and (iv) packaged
without a CRT. IVAR is not prohibited by this Agreement from selling
any product that does not contain the SPARC Architecture.
G. IVAR shall purchase all Sun Products for resale from its designated
Master Reseller unless an exception is granted by Sun in writing.
Purchase terms and conditions as may be agreed upon between IVAR and
designated Master Reseller shall govern the purchase of Products. All
Product warranties or claims against such warranties shall be between
IVAR and its designated Master Reseller. Sun will permit IVAR to
change the identity of its designated Master Reseller only once per
year, by Notice (which shall include the effective date of the
transition), during the thirty (30) days' period prior to each year's
Expiration Date
H. LIMITED WARRANTY. IVAR must provide a warranty to its End Users at
least equivalent to the warranty provided by Master Reseller. IVAR
agrees to indemnify Sun for any liability or damages caused by IVAR's
provision of any other warranty.
I. Failure to comply with any of the foregoing obligations will
constitute a material breach of this Agreement.
9. HIGH RISK ACTIVITIES
A. PRODUCTS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED, MANUFACTURED OR
INTENDED FOR USE OR RESALE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS
ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, SUCH AS IN THE OPERATION
OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS,
AIR TRAFFIC CONTROL, LIFE SUPPORT, OR WEAPONS SYSTEMS ("HIGH RISK
ACTIVITIES"). SUN SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED
WARRANTY OF FITNESS FOR SUCH HIGH RISK ACTIVITIES.
B. IVAR represents and warrants that it will not use, or knowingly
distribute or resell, Products for such High Risk Activities and that
it will ensure that its customers and End-Users of Products are
provided with the notice in A. above.
10. TRADEMARKS
"Sun Trademarks" shall mean all names, logos, designs, and other
designations or brands used by Sun in connection with Products, including
Sun, Sun Microsystems, the Sun Logo and the Sun system enclosure design
elements. IVAR is granted no right or license to use, any Sun Trademarks,
except that IVAR has the right to use the Sun Value Added Reseller logo and
to refer to Sun products and technologies by their associated Sun
Trademarks in IVAR's advertising or marketing materials, in the form set
out in the Guide. Sun shall have the right to approve all such materials,
and IVAR agrees, on request, to modify any materials which do not comply
with these provisions. IVAR may not re-logo or co-logo Products, or
otherwise modify, conceal or remove any Trademark or other proprietary
rights notice without Sun's written consent.
11. S0FTWARE
A. LICENSE. IVAR is granted a non-exclusive nontransferable limited
license to distribute and sublicense Products consisting of software
in machine readable form ("Software") to run on Sun CPUs sold to End
Users in accordance with the terms of this Agreement. IVAR shall
require each of its End Users to execute a sublicense containing, at
a minimum, the provisions set forth on Exhibit D and shall provide
copies to Sun on request. IVAR shall keep records specifying the End
User, its location, the serial numbers of the CPU(s) on which the
Software was licensed, and the license capacity (single user or
multi-user). The records may be audited once per year by Sun.
B. INTERNAL USE. The provisions of Exhibit D (Object Code License) shall
govern IVAR's internal use of Software, including use for
demonstration, development or training purposes.
C. RESTRICTIONS. Title to all copies of Software is retained by Sun or
its Licensor. IVAR agrees not to decompile, disassemble, or otherwise
reverse engineer Software.
12. TERM AND TERMINATION
A. TERM. This Agreement shall commence on the Effective Date and shall
remain in force until the date established according to the following
schedule:
EFFECTIVE DATE: EXPIRATION DATE:
(of each following year):
January 1 - March 31 March 31
April 1 - June 30 June 30
July 1 - September 30 September 30
October 1 - December 31 December 31
It shall be automatically renewed on an annual basis thereafter, unless at least
thirty (30) days prior to any year's Expiration Date, Sun or IVAR tenders Notice
of intention not to renew.
B. TERMINATION
(1) This Agreement (which, for purposes of termination by Sun, may be
construed as referring to individual authorized buying or selling
locations) may be terminated by either party (i) without cause, for
any reason, on ninety (90) days' Notice to the other party, (ii)
immediately, by Notice, upon material breach by the other party, if
such breach cannot be remedied; (iii) by Notice, if the other party
fails to cure any material remediable breach of this Agreement within
thirty (30) days of receipt of Notice of such breach, or (iv)
immediately by Notice upon the second commission of a previously
remedied material breach.
(2) Sun may terminate this Agreement immediately, by Notice in the event
that (i) there is any material change in the management or control of
IVAR, or transfei of any substantial part of IVAR's business, (ii)
Sun discovers that IVAR has made a material misrepresentation or
omission in its Reseller Application, or (iii) IVAR makes an
unauthorized sale.
C. EFFECT OF TERMINATION. Upon any termination or expiration of this
Agreement, IVAR shall no longer be authorized to purchase Products
from Master Reseller. With the exception of those rights and
obligations which by their nature should survive, all rights and
licenses granted to IVAR under this Agreement shall immediately cease
and terminate. 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.
13. LIMITATION OF LIABILITY
Except for express obligations to indemnify under this Agreement, and/or
breach of Sections 9 (High Risk Activity), 11 (Software), or 15
(Confidentiality):
A. Each party's liability to the other for claims related to this
Agreement, whether for breach or in tort, shall be limited to
$10,000, and
B. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE IN CONNECTION WITH OR
RELATED TO THIS AGREEMENT (INCLUDING LOSS OF PROFITS, USE, DATA, OR
OTHER ECONOMIC ADVANTAGE), HOWSOEVER ARISING, WHETHER FOR BREACH OF
THIS AGREEMENT, INCLUDING BREACH OF WARRANTY, OR IN TORT, EVEN IF
THAT PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE.
14. DISCLAIMER OF WARRANTY
EXCEPT AS SPECIFIED IN THIS AGREEMENT, ALL EXPRESS OR IMPLIED
REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE
HEREBY EXCLUDED.
15. CONFIDENTIALITY
If Sun desires that information provided to IVAR under this Agreement be
held in confidence, Sun agrees to identify such information as
"Confidential" or "Proprietary" ("Confidential Information"). All Software
is Confidential Information. IVAR will not disclose Confidential Information
and will use it only for purposes specifically related to this Agreement.
This Agreement shall not affect any confidential disclosure agreement
between the parties.
16. NO EXPORTATION
IVAR agrees that it shall resell Products only to End Users in the
continental United States, Alaska, and Hawaii, unless IVAR has been accepted
into Sun's Passport Program and has executed a Passport Addendum to this
Agreement. Products, including technical data, are subject to the U.S.
Export Administration Act and its associated regulations and may be subject
to export or import regulations in other countries. IVAR agrees to comply
strictly with all such regulations and acknowledges that it has the
responsibility to obtain licenses to export or re-export Products.
17. GENERAL
A. DISPUTE RESOLUTION. Any action related to this Agreement will be
governed by California law, excluding choice of law rules, and will
be brought exclusively in the United States District Court for
Northern California or the California Superior Court for the County
of Santa ▇▇▇▇▇. The parties hereby submit to the personal
jurisdiction and venue of such courts.
Agreement No.: ▇▇▇▇
▇. RELATIONSHIP. The parties are independent contractors under this
Agreement and no other relationship is intended, including a
partnership, franchise, joint venture, agency, employer/ employee, or
master/servant relationship. Neither party shall be authorized to bind
the other, or act in a manner which expresses or implies a relationship
other than that of independent contractor.
C. ASSIGNMENT. IVAR may not assign or otherwise transfer any of its
rights or obligations under this Agreement, without the prior written
consent of Sun.
D. WAIVER OR DELAY. Any waiver of any provision of this Agreement, or a
delay by either party in the enforcement of any right hereunder, shall
neither be construed as a continuing waiver, nor create an expectation
of non-enforcement, of that or any other provision or right.
E. FORCE MAJEURE. A party is not liable for non-performance of this
Agreement, to the extent to which the non-performance is caused by
events or conditions beyond that party's control, and the party gives
prompt Notice and makes all reasonable efforts to perform.
F. NOTICE. All Notices (upper-case "N") under this Agreement must be in
writing and delivered either in person or by a means evidenced by a
delivery receipt, to the address specified, below. Notice will be
effective upon receipt.
If to Sun: Sun Microsystems Computer Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, M/S MIL06-20
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Manager, Sales Contracts
If to IVAR: Design Automation Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
G. EXECUTION. This Agreement shall become effective only after it has
been signed by an authorized officer of IVAR and an authorized
officer of Sun.
H. ENTIRE AGREEMENT. This Agreement, including all attachments
incorporated by reference, is the parties' entire agreement relating to
Products and, (i) supersedes all prior or contemporaneous oral or
written communications, proposals and representations with respect to
its subject matter; and (ii) prevails over any conflicting or additional
terms of any quote, order, acknowledgement, or similar communication
between the parties during the term of this Agreement. No modification
to this Agreement will be binding, unless in writing and signed by a
duly authorized representative of each party.
SUN AND IVAR ACKNOWLEDGE THAT EACH HAS READ AND UNDERSTOOD THIS AGREEMENT AND
CONSENTS TO BE BOUND BY ITS TERMS.
SUN MICROSYSTEMS IVAR: DESIGN AUTOMATION SYSTEMS, INC.
COMPUTER CORPORATION:
By: /s/ ▇▇▇▇▇ Cladden By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ Cladden Name: ▇▇▇▇ ▇. ▇▇▇▇
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Title: Director, USFO Contract Management Title: President
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Date: 7/10/92 Date: 7-1-92
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