EXHIBIT 10.17
June 6, 1994
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
President And Chief Executive Officer
Qualix Group, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Subject: Letter Agreement
Dear ▇▇. ▇▇▇▇:
This letter sets forth the terms and conditions under which Silicon
Graphics, Inc. ("SGI") and Qualix Group, Inc. ("Qualix") agree that SGI will
sell its inventory of various third party products (collectively "Products") to
Qualix upon SGl's closure of its Expressware business unit.
1. Purpose. Qualix shall purchase all inventory of the Products set forth on
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Exhibit 1 that are in SGI's inventory as of June 25, 1994, less the inventory
necessary for SGI to fulfill its backlog of orders. Such inventory shall be
in saleable condition in unopened packaging. Qualix shall issue a purchase
order for all such inventory on June 27, 1994. The prices at which Qualix
shall purchase such Products from SGI are set forth on Exhibit 1.
2. Option. Qualix shall also have the option to purchase any residual inventory
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remaining in SGI's inventory as of July 31, 1994. Such purchase shall be
governed by the terms and conditions of this letter with the exception that
Qualix shall pay the purchase price in full not later than thirty (30) days
after the date of SGI's invoice, which SGI will issue on shipment of Product.
3. Terms of Sale. The terms and conditions of sale set forth in this Letter
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Agreement ("Terms and Conditions") will be the sole terms and conditions that
will apply to any purchase order accepted by SGI. These Terms and Conditions
may in some instances conflict with terms and conditions affixed to the forms
or order blanks and/or otherwise specified by Qualix. Therefore, SGI will
accept Qualix's order solely on the express understanding and condition that
these Terms and Conditions will be the only terms and conditions that will
apply to such order, and SGI hereby objects to any conflicting or additional
terms and conditions of Qualix. Qualix will submit its orders for Product to
SGI in the form of a written purchase order that states the quantities and
descriptions of Product required, applicable purchase prices and license
fees, requested delivery dates and shipping instructions. After receipt of
Qualix's written order, SGI will accept or
[*] Confidential portion has been omitted and filed separately with the
Commission.
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
June 6, 1994
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reject (at SGI's sole discretion) Qualix's orders in writing at SGI's
principal place of business in Mountain View, CA.
4. Price and Terms of Payment. (a) Prices. The Product prices set forth on
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Exhibit 1 do not include transportation or installation charges, or any
sales, use, personal property or other taxes, however designated, levied or
based on such prices or on the sale or use of Product, including state and
local privilege or excise taxes based on the gross revenue from the purchase
of Product and any taxes or amounts in lieu thereof paid or payable by SGI
with respect to the foregoing, exclusive of taxes based on SGI's net income.
SGI will include any applicable taxes or other charges in SGI's invoice to
Qualix as a separate item, and Qualix agrees to pay such taxes or charges,
or, in the case of taxes, to supply appropriate tax exemption certificates in
a form satisfactory to SGI. (b) Terms of Payment. SGI will grant to Qualix
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net sixty (60) days payment terms. Such payment terms require that Qualix pay
the purchase price in full not later than sixty (60) days after the date of
SGI's invoice, which SGI will issue on shipment of Product. Although SGI may
extend credit to Qualix for a purchase, SGI reserves the right to change its
credit terms at any time when, in SGI's judgment, Qualix's financial
condition or payment record so warrants. Qualix acknowledges that in addition
to lost interest, the late payment of the purchase price may cause SGI to
incur costs and expenses, the exact amount thereof being extremely difficult
and impractical to fix. Such costs may include, but are not limited to,
processing and accounting expenses, late charges that may be imposed on SGI,
and costs for attempts to collect the purchase price. Therefore, SGI will
have the right to levy a late payment service charge of one and one half
percent (1.5%) per month upon any unpaid amounts beginning sixty (60) days
after the date of invoice, without any requirement of notice, provided,
however, that such charge will not exceed legally permissible limits. SGI and
Qualix hereby agree that such late charge represents a fair and reasonable
estimate of the costs to SGI related to such late payment, and Qualix will
pay any such late charge to SGI as liquidated damages pursuant to California
Civil Code Section 1671. (c) Purchase Money Security Interest. The parties
--------------------------------
agree that Qualix's order constitutes a security agreement, whereunder Qualix
grants to SGI a purchase money security interest in Product purchased
hereunder for the amount of the purchase price of such Product. SGI hereby
reserves such security interest, and, in order to perfect SGI's security
interest, Qualix agrees that (i) Qualix will execute financing statements
(i.e. UCC-1 forms) and amendments and supplements thereto, or other
instruments that SGI, as a secured party, is required to file in compliance
with the commercial code of any state or province, or any other law of the
United States or Canada, which is applicable to Product as collateral, and
(ii) SGI may file such financing statements and Qualix's order, or a carbon,
photocopy or other reproduction of Qualix's order, with the appropriate
governmental authorities at any time, alone or with other documents that SGI
determines to be necessary or desirable to perfect or protect the security
interest created hereby. Payment in full of the purchase price of any Product
will release the security interest on that Product.
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
June 6, 1994
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5. Delivery; Risk of Loss and Title. SGI will deliver Product hereunder F.O.B.
--------------------------------
origin; (i.e., the time of delivery is the time when SGI delivers Product to
the carrier at SGI's facility). In the absence of specific written
instructions from Qualix, SGI will select the carrier, but such carrier will
not be the agent of SGI, nor will SGI have any liability with regard to such
shipment after delivery to the carrier. SGI will pack all Product so shipped
in accordance with standard commercial practices. Risk of loss and/or damage
to Product will pass to Qualix on such delivery. Title to Product (with the
exception of software, see Section 8(c) below) will pass to Qualix on such
delivery, subject to the security interest referred to in Section 2(c)
above. SGI may ship Qualix's order in one or more installment(s), unless
Qualix makes a specific prior written request that SGI not make partial
shipments under Qualix's order.
6. On July 1, ▇▇▇▇ ▇▇▇ shall forward its Expressware "800" number telephone
line to a number designated by Qualix. Qualix shall be responsible for all
sales and product inquiries resulting from in-bound calls, and for all costs
and expenses of maintaining such "800" number. SGI will use its reasonable
efforts to direct international in-bound sales inquiries to ▇▇▇▇▇▇.
▇. ▇▇▇ shall provide Qualix with a listing of contacts in SGI's sales offices
in the United States and Canada.
8. The parties will cooperate on marketing activities to be mutually agreed
upon and executed prior to July 1, 1994. SGI shall provide to Qualix all
sales leads generated by Expressware marketing activities prior to July
▇▇▇▇. ▇▇▇ shall use its reasonable efforts to forward any such leads for a
period of six months.
9. SGI shall promptly notify its sales force that Qualix will be selling
products previously sold by SGI's Expressware organization.
10. SGI shall provide Qualix with an introduction to SGI's telesales
organization.
11. SGI shall provide Qualix with an introduction to SGI's business development
organization.
12. SGI shall provide Qualix with introductions to SGI's vendors.
13. All sales are final. SGI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
14. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
-----------------------
OTHER PARTY FOR EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES OF ANY KIND, INCLUDING WITHOUT
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
June 6, 1994
Page 4
LIMITATION LOSS OF PROFIT, LOSS OF USE, SAVINGS OR REVENUE, WHETHER OR NOT A
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND
ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT OR THE
RELATIONSHIP OF QUALIX AND SGI. SGI'S LIABILITY ARISING OUT OF THESE TERMS
AND CONDITIONS OF SALE AND/OR SALE OR USE, INCLUDING WITHOUT LIMITATION ANY
AND ALL CLAIMS COMBINED, WILL NOT EXCEED THE AMOUNT OF THE PURCHASE
PRICE/LICENSE FEE OF PRODUCT. IN NO EVENT WILL SGI BE LIABLE FOR THE COST OF
PROCUREMENT OF SUBSTITUTE GOODS BY QUALIX OR ANY OTHER PERSON OR ENTITY. THE
LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
15. General. (a) Force Majeure. In no event will SGI be liable for delays or
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nonfulfillment of its obligations hereunder arising because of acts of God,
fire, labor disputes of any nature, accident, supplier failure or delay,
insurrection or other causes beyond the reasonable control of SGI. (b)
Licensed Products. All SGI software products (collectively, "Software")
-----------------
are licensed by SGI to Qualix for Qualix's use pursuant to this Letter
Agreement and the terms and conditions in the Software License Agreement
that is included with Software. When used in reference to Software, the word
"purchase" and similar or derivative words are understood to mean "license"
and "Buyer" or similar or derivative words are understood to mean
"Licensee." Title to Software will remain with SGI and its suppliers,
notwithstanding anything to the contrary herein. (d) Export. Qualix
------
hereby agrees that it does not intend to, and will not knowingly, without
the prior written approval, if required, of the Office of Export
Administration of the U.S. Department of Commerce, Washington, D.C., 20230
or any other applicable U.S. Government agency, export, either directly or
indirectly, any Product or any portion of Product, to any country for which
such approval is required. (e) Assignment. Qualix may not assign its
----------
orders hereunder without the prior written permission of SGI; any attempt to
assign any rights, duties or obligations that arise under such orders
without SGI's permission will be null and void. (f) Resolution of
-------------
Disputes. These Terms and Conditions will be governed by and interpreted in
accordance with the laws of the State of California, excluding its choice of
laws rules. The parties hereby agree that any dispute regarding the
interpretation or validity of, or otherwise arising out of, these Terms and
Conditions, or relating to Products sold or licensed hereunder will be
subject to the exclusive jurisdiction of the California state courts of
Santa ▇▇▇▇▇ County, California (or, if there is exclusive federal
jurisdiction, the United States District Court for the Northern District of
California), and the parties agree to submit to the personal and exclusive
jurisdiction and venue of these courts. The parties hereby expressly waive
any right to a jury trial and agree that any proceeding hereunder shall be
tried by a judge without a jury. (g) Unenforceable Provisions. In the
------------------------
event that any of the terms and conditions hereof
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
June 6, 1994
Page 5
will be held by a court or other tribunal of competent jurisdiction to be
unenforceable, the remaining terms and conditions will remain in full force
and effect, provided that in such event the parties agree to negotiate in
good faith substitute enforceable provisions that most nearly effect the
parties' intent hereunder. (h) Complete Agreement. These Terms and
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Conditions constitute the entire agreement between the parties pertaining to
the subject matter hereof and Qualix's order, and any and all written or
oral agreements heretofore existing between the parties hereto are expressly
canceled. Qualix acknowledges that it has not relied on any representations
not expressly contained herein. Any modification of these Terms and
Conditions must be in writing and signed by both parties hereto. Any such
modification will be binding upon SGI only if and when signed by a duly
authorized employee of SGI.
Please indicate your acceptance of all the foregoing terms and
conditions with your signature below.
Sincerely,
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Vice President and General Manager
Applications and Markets Division
Silicon Graphics, Inc.
The undersigned, on behalf of Qualix Group, Inc. agrees to all the
terms and conditions set forth in this Letter Agreement and represents that s/he
has the authority to do so.
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Signed Date
---------------------------------
Print Name and Title
EXHIBIT 1
SILICON GRAPHICS, INC.
EXPRESSWARE INVENTORY ON HAND
QUANTITY, LIST-PRICE & TOTAL COST
Qualix Unit Qualix
Part Number DESCRIPTION Purchase Price List-Price Qty Purchase Price Ext Price
S4-MATH-2.0 MATHEMATICA SGL MACH LIC, 4D, 2.0 [*] [*] [*] [*] [*]
S4-MATHFNL-2.0 MATHEMATICA NTWK LIC, IRIS 4D, 2.0 [*] [*] [*] [*] [*]
S4-MATHNLI-2.0 MATHEMATICA NTWK LIC INCR, 4D., 2.0 [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 063A [*] [*] [*]
SC4-FNL-2.0 IMSL FORTRAN NUMERICAL LIB FIXED SY [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 063B [*] [*] [*]
OPT-MOUSE OPTICAL MOUSE FROM MOUSE SYSTEMS [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 063D [*] [*] [*]
S5-FGFULLC-3.0 FIGARO C FULL-USE LIC 3.0, PER IRIS [*] [*] [*] [*] [*]
S5-FGFULLF-3.0 FIGARO F FULL-USE LIC, PER IRIS [*] [*] [*] [*] [*]
S5-PCI-3.0 FIGARO 3.0 PHIGS CHD INTPR, PER IRIS [*] [*] [*] [*] [*]
S5-PSO-3.0 FIGARO 3.0 PRPHL SUPPORT, PER IRIS [*] [*] [*] [*] [*]
S5-FGFULLF-3.0 FIGARO F FULL-USE LIC 3.0, INDIGO [*] [*] [*] [*] [*]
S8-PC1-3.0 FIGARO 3.0 PHIGS CHD INTPR, INDIGO [*] [*] [*] [*] [*]
SR8-FGFULL-3.0 RIGHT TO USE, FIGARO 3.0, IRIS INDIGO [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 063F [*] [*] [*]
QUORUM-5101 EXCEL COMPETITIVE UPGD-1 USER LIC [*] [*] [*] [*] [*]
QUORUM-8001 EQUAL ONLY-1 USER LICENSE [*] [*] [*] [*] [*]
QUORUM-9001 EQUAL W/WORD & EXCEL-1 USER LIC [*] [*] [*] [*] [*]
QUORUM-9010 EQUAL W/WORD & EXCEL - 10 USER LIC [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 063L [*] [*] [*]
SC4-EMACS-2.2 TEXT EDITOR [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 063N [*] [*] [*]
▇▇-▇▇▇▇▇-▇▇ FRAMEMAKER 4 SHARED LICENSE [*] [*] [*] [*] [*]
▇▇-▇▇▇▇▇-▇▇ FRAMEMAKER, 4PERSONAL LICENSE [*] [*] [*] [*] [*]
M4-FRN-3.0 MANUAL OPT, FRAMEMAKER DOCS, 3.0 [*] [*] [*] [*] [*]
M4-FRNDEV-3.0 MANUAL OPT, FRAMEMAKER DEV, 3.0 [*] [*] [*] [*] [*]
M4-FRNFIL-3.0 MNL KIT, FRAME FILTERPAK, 3.0 [*] [*] [*] [*] [*]
M4-FRNGER-3.0 MANUAL OPT, FRAMEMAKER DOCS, GERMAN [*] [*] [*] [*] [*]
M4-FRNUK-3.0 MANUAL OPT, FRAMEMAKER U.K, 3.0 [*] [*] [*] [*] [*]
M4-FRNUPKIT-3.0 MNL KIT, UPGRD 2.1 TO 3.0, FRAMEMAKER [*] [*] [*] [*] [*]
S4-FRNUP-3.0 UPGRADE, FRAMEMAKER 2.1 TO 3.1 [*] [*] [*] [*] [*]
S4-FRNUPIN-3.0 UPGRADE, FRAMEMAKER 2.1 TO 3.1, INTL [*] [*] [*] [*] [*]
SC4-FRM-3.0 CD OPT FRAMEMAKER 3.1 FLTG LIC [*] [*] [*] [*] [*]
SC4-FRM-3.1 FLOATING LISCENSE [*] [*] [*] [*] [*]
SC4-FRMFIL-3.0 FRAME FILTERPAK, CD/NNLS,3.0 [*] [*] [*] [*] [*]
SC4-FRMIN-3.0 CD OPT, FRAMEMAKER 3.1, INTL FLTG LIC [*] [*] [*] [*] [*]
SC4-FRMINFX-3.0 CD OPT FRAMEMAKER 3.1 INTL FIXEDLIC [*] [*] [*] [*] [*]
SC4-FRMPL-3.1 PERSONAL LISCENSE [*] [*] [*] [*] [*]
SC8-FRMFX-3.0 CD OPT, FRAMEMAKER, 3.1, FIXED LIC [*] [*] [*] [*] [*]
SC8-FRMINFX-3.0 CD OPT FRAMEMAKER 3.1 INTL FIXEDLIC [*] [*] [*] [*] [*]
SCA-FRMFX-3.0 FRAMEMAKER FIXED UNIVERSITY LISC [*] [*] [*] [*] [*]
SCA-FRMITL-3.0 FLOATING TO FIXED INTL UNIVERSITY [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 063R [*] [*] [*]
S4-ISLAND5-3.0 ISLAND GRAPHICS 5-PAK SW OPT, 3.0 [*] [*] [*] [*] [*]
E-1
[*] Confidential portion has been omitted and filed separately with the
Commission.
Qualix Unit Qualix
Part Number DESCRIPTION Purchase Price List-Price Qty Purchase Price Ext Price
Total for PRODUCT_REFERENCE = 063S [*] [*] [*]
S4-PVMAVECP-1.0 PV WAVE AND POINT & CLICK COMB PKG [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 063V [*] [*] [*]
S4-WINGZ-1.0 WINGZ SOFTWARE OPTION, 1.0 [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 063W [*] [*] [*]
M4-UINX-2.0.1 MNL KIT,UIM/X 2.0.1 [*] [*] [*] [*] [*]
SC4-UIMX-2.0.1 UIN/X,CD/MNLS 2.0.1 [*] [*] [*] [*] [*]
SC4-UINXUP-2.5 UIN/X UPGRADE FROM 2.0 TO 2.5 [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 063X [*] [*] [*]
S8-EXCLAIM-1.0 EXCLAIM SPREADSHEET SW 1.0,.INDIGO [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 064B [*] [*] [*]
S4-ZMAIL10-1.0 Z-MAIL 10 ▇▇▇, ▇▇▇▇ 4D +, INDIGO, 1.0 [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 064C [*] [*] [*]
SC4-SCAN-4.X PIXEL!SCAN-IMAGE SCANNING [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 064F [*] [*] [*]
S4-ADK-1.0 SPACEBALL APPL DEV KIT/SOURCE CODE [*] [*] [*] [*] [*]
S4-ADS-1.0 SPACEBALL APPLICATION DRIVERS/DEMO [*] [*] [*] [*] [*]
SB-2003 SPACEBALL 2003 [*] [*] [*] [*] [*]
SB-2003-DEV SPACEBALL, IMC ADV 3D INTER, DEVEL [*] [*] [*] [*] [*]
SB-2003-IN SPACEBALL 2003 INTERNATIONAL CONFIG [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 064G [*] [*] [*]
P-STVIEW STEREOVIEW OPT FOR GT, GTX, VGX, PI [*] [*] [*] [*] [*]
P-STVIEW-2 STEROVIEW EYEWEAR/1 EMITTER [*] [*] [*] [*] [*]
P-STVIEW-INDY STEREOVIEW EYEWEAR FOR INDY ONLY [*] [*] [*] [*] [*]
P-SVGLS EYEWEAR, STEREOVIEW [*] [*] [*] [*] [*]
X5-PSTVIEW X5-PSTVIEW STEREOVIEW CABLES [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 064J [*] [*] [*]
X-REM REMOVABLE DISK STORAGE SUBSYS IND [*] [*] [*] [*] [*]
▇▇-▇▇▇▇▇▇▇ ▇-▇▇▇ ▇▇▇▇ EXPANSION CABINET [*] [*] [*] [*] [*]
K4-BAYCAB2 4-BAY, NON-REM, EXP CAB, INDIGO2, CHALN [*] [*] [*] [*] [*]
K4-BAYREM 4-BAY REMOVABLE STORAGE SUBSYSTEM [*] [*] [*] [*] [*]
K4-BAYREM2 4-BAY, REM STOR FOR INDOGO2, CHAL M [*] [*] [*] [*] [*]
K8-TAPE-D10 PACKAGE DATA TAPES FOR K8-TAPE [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 064L [*] [*] [*]
03150-3.0 SOFTPC-LICENSE EXTENSION (RTU) [*] [*] [*] [*] [*]
03165-XX SOFTWINDOWS RESPONSE PLUS [*] [*] [*] [*] [*]
03800-1.0 SOFTWINDOWS 1 FLOATING LICENSE [*] [*] [*] [*] [*]
03850-1.0 SOFTWINDOWS LICENSE [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 064S [*] [*] [*]
QCRAY QUEUE CRAY ENVION INTERFACE [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 064Z [*] [*] [*]
S4-KA16-5.X APPLESHARE FILESVR 16 USERS IRIX5.X [*] [*] [*] [*] [*]
S4-KA2-4.X APPLESHARE FILE SERVER IRIX4.X [*] [*] [*] [*] [*]
S4-KA6-4.X APPLESHARE FILE SERVER SW IRIX 4.X [*] [*] [*] [*] [*]
S4-KSP-4.X POSTSCRIPT PRINTER SHARING IRIX4.X [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 065B [*] [*] [*]
SGTPS-D TRANSFER PRO WITH FLOPPY DISK MEDIA [*] [*] [*] [*] [*]
SGTPS-T TRANSFER PRO WITH 1/4" TAPE MEDIA [*] [*] [*] [*] [*]
E-2
[*] Confidential portion has been omitted and filed separately with the
Commission.
Qualix Unit Qualix
Part Number DESCRIPTION Purchase Price List-Price Qty Purchase Price Ext Price
Total for PRODUCT_REFERENCE = 065J [*] [*] [*]
__ZL-94D-32-911 SOFTNET UTILITIES [*] [*] [*] [*] [*]
__ZL-94L-05-911 SOFTNET CLIENT 5 USERS [*] [*] [*] [*] [*]
Total for PRODUCT_REFERENCE = 065P [*] [*] [*]
GRAND TOTAL [*] [*] [*]
End of report. 75 Details encountered.
E-3
[*] Confidential portion has been omitted and filed separately with the
Commission.