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EXHIBIT 10.12
SUN MICROSYSTEMS COMPUTER COMPANY
U.S. DIRECT ORIGINAL EQUIPMENT MANUFACTURER "(DIRECT OEM") AGREEMENT
This AGREEMENT is effective on December 9, 1996, ("Effective Date") by and
between Sun Microsystems Computer Company ("Sun"), a division of Sun
Microsystems, Inc., having a place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ and FileTek, Inc. ("Direct OEM") having a place of
business at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1. SCOPE
This Agreement governs Direct OEM's authorization to purchase certain Sun
Products ("Sun Products") directly from Sun, to permanently incorporate
those Sun Products into Direct OEM's final product as defined in Exhibit A
("Systems") and to resell those Systems in the United States. Authorized
Sun Products and buying locations are set out in Exhibit B. systems must
have substantially different functional characteristics than Sun Products
and the Sun list price of Sun Product(s) contained in any System must, in
all cases, account for less than *** of the list price of that System.
2. APPOINTMENT
Sun appoints Company as a nonexclusive Direct OEM. Direct OEM is
authorized to purchase only those Sun Products listed in Exhibit B. Sun
Products acquired hereunder must be sold or leased (hereinafter referred to
as "Authorized Sale") only as incorporated into Systems and, except as set
forth in Section 3, only to end users in the United States ("End Users").
Sun reserves the right to discontinue any Product upon *** days' notice,
but will use best commercially reasonable efforts to give Company not less
than *** days prior notice of the discontinuance of any Product purchased
under this Agreement, whether there is a backward compatible replacement or
not.
Sun agrees to offer Direct OEM the right to obtain any updates, additions,
substitutions, or other product and service options introduced by Sun from
time to time with respect to the Sun Products (collectively, "New
Products"), at discounts commensurate with the level of Direct OEM's
purchases and at the same terms and conditions as for current Equipment
Units. Sun agrees to notify Direct OEM no less frequently than every ***
months of its New Product plans, under an obligation of non-disclosure.
3. USE OF RESELLERS
Direct OEM may distribute Sun Products, as incorporated in Systems, to End
Users indirectly through resellers ("Resellers"), provided that Direct OEM
enters into and rigorously enforces a written contract under which each
Reseller agrees to resell Sun Products only as incorporated into Systems
directly to End Users; and comply with protections substantially
equivalent to those contained in Paragraphs 7 (except Subparagraphs 7(F)),
9, 10, 11, 12, 14, 15, and 17, herein, as they apply to Direct OEM,
provided that End User support and maintenance may be provided by Direct
OEM on Reseller's behalf.
4. DIRECT OEM REFERENCE GUIDE
Sun's Direct OEM policies are detailed in its OEM Reference Guide
("Guide"). Direct OEM represents that it has read the Guide carefully and
will comply with all applicable rules and procedures. Sun may modify the
Guide from time to time upon *** days' notice; provided, however, in the
event that the modification is to the detriment of Direct OEM, Direct OEM
shall have the right to terminate this Agreement as provided for in this
Agreement.
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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5. PROGRAMS
Direct OEM may participate in Sun's price protection and development
equipment programs ("Programs"), each as detailed in the Guide, and such
other Programs as Sun may, from time to time, introduce.
6. EXHIBITS
Except as set out in Sections 2 ("Appointment"), 8(c) ("Prices') and 11(a)
("License'), the attached Exhibits may be modified only upon the mutual
consent of the parties. The current version of each Exhibit is hereby
incorporated by reference.
7. DIRECT OEM'S OBLIGATIONS
A. Sale and Support. Direct OEM shall be responsible for ensuring that
each End User receives, with respect to Sun Products, (i) complete
pre- and post-installation support, including complete installation,
training, and continuous technical support and (ii) hardware and
software maintenance support. Direct OEM support options offered by
Sun are set out in the Guide.
B. Spare Parts. Direct OEM shall be entitled to purchase spare parts for
Sun Products as provided for in the Sun Service Agreement. The use of
spare parts purchased under the Sun Service Agreement is strictly
limited to (i) internal use by Direct OEM or its Resellers; (ii)
resale by Direct OEM to its Resellers or End Users for internal use;
or (iii) the service of Sun Products sold and installed by Direct OEM
or its Resellers under this Agreement.
C. Direct OEM Documentation Business Records and Reports. Direct OEM
shall furnish to its End Users, at the time of delivery of Sun
Products, an invoice stating the date of sale, and, if applicable, the
serial number of Sun Products sold. Direct OEM 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 Sun Products, including all documents relating to or
exchanged between Direct OEM and its End Users, its Resellers, and Sun
directly related to Sun Products. Sun may review these records upon
request, provided Sun gives Direct OEM reasonable advance notice of
Sun's desire to review such records.
D. Indemnity and Insurance. Direct OEM agrees to indemnify and hold Sun
harmless from and against all claims from Direct OEM's End Users or
third parties relating to Sun Products sold under this Agreement to
the extent that such claims arise out of any acts and/or omissions of
Direct OEM or its employees, authorized representatives or Resellers.
Direct OEM shall carry liability insurance to protect Sun from all
such claims naming Sun as an additional insured party, pay the
premiums therefor, and deliver to Sun, upon request, proof of such
insurance (which shall require thirty (30) days' written notice to Sun
prior to modification or termination).
E. Fair Representation. Direct OEM 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.
Direct OEM shall comply with all applicable laws and regulations in
performing under this Agreement.
F. No Indirect Purchases. Direct OEM shall purchase all Sun Products for
resale or lease directly from Sun unless an exception is granted by
Sun in writing. Direct OEM may elect upon *** notice, and Sun
reserves the right to require Direct OEM upon *** notice, to purchase
Product indirectly through a designated Sun Authorized Master
Reseller.
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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8. COMMERCIAL TERMS
A. Orders and Delivery. Direct OEM shall submit purchase orders in
writing, based upon the stated lead times given by Sun (as set forth
in the Guide) and acceptance will be effective only upon issuance of
Sun's order acknowledgment form, unless the parties agree in writing
to the use of electronic data interchange. Each order, excluding
orders for spare parts, shall be for a minimum of ***. Sun will use
reasonable efforts to meet target delivery dates identified on the
acknowledgment form. Title to Sun Products (except Software) and risk
of loss of or damage to Sun Products will pass to Direct OEM upon
delivery to the common carrier specified by Direct OEM in the purchase
order, FOB Sun's Product delivery center. Sun Products will be deemed
accepted upon receipt by Direct OEM; provided, however, Direct OEM
shall not be deemed to have accepted any Products shipped that are not
in accordance with Direct OEM's specifications for the Products,
including, but not limited to, hardware and firmware revision levels
acceptable to Direct OEM. Sun reserves the right to make product
substitutions and modifications that do not cause a material adverse
affect in overall product performance, provided, however, Sun shall
use reasonable efforts to, where possible, provide Direct OEM with
advance notice of such substitutions and/or modifications.
B. Rescheduling and Reconfiguration. Direct OEM may reschedule or
reconfigure all or part of any specific order once at no charge, as
long as a "change purchase order" (as set forth in the Guide) is
received by Sun at least *** days prior to the scheduled delivery date
for deskside products (including all servers) and at least *** days
prior to the scheduled delivery date for desktop products and the
rescheduled delivery date is within *** days of the original date. If
an order is rescheduled or reconfigured at Direct OEM's request on any
other basis, or if Sun reschedules the order because Direct OEM fails
to meet a payment obligation under this Agreement, Sun may charge
Direct OEM a restocking fee to cover Sun's incremental out-of-pocket
expenses associated with such rescheduling not to exceed ***. If
Direct OEM refuses shipment at its requested delivery location, Sun
may charge Direct OEM a restocking fee not to exceed ***.
C. Prices, Discounts and Taxes. Direct OEM's net price for Sun Products
or spare parts, purchased or licensed under this Agreement, shall be
as stated in Sun's U.S. Price List at the time Sun accepts Direct
OEM's order, less the appropriate total discount set forth in Exhibit
C, provided that in no case shall such discount exceed any maximum
stated in the U.S. Price List. Subject to the price change
provisions contained in the Sun OEM Reseller Reference Guide which are
expressly incorporated herein by reference, Sun reserves the right to
change the list price for any Product at any time. Direct OEM's total
discount is comprised of a base discount, which may be changed by Sun
upon *** notice, and an additional discount ***. Sun may adjust the
volume discount annually based on ***. Prices and license fees are
exclusive of all sales and other taxes based upon the value of Sun
Products and Direct OEM agrees to pay all such taxes as required.
Direct OEM and its Resellers shall be free to set their own resale
prices.
D. Payment. Provided that Direct OEM satisfies Sun's credit requirements,
payment terms are net thirty (30) days from the later of the date of
invoice or the date of shipment. Interest shall accrue from the date
on which payment is due at the rate of *** per annum. Notwithstanding
the foregoing, Direct OEM shall not be required to pay the disputed
portion of any invoice, pending resolution of that dispute; provided,
however, that Notice of the dispute has been forwarded to Sun in
writing, within thirty (30) days of the date of Direct OEM's receipt
of the disputed invoice. Following ten (10) days written notice to
Direct OEM, Sun reserves the right, in its reasonable commercial
judgment, to place Direct OEM on credit hold.
E. Limited Warranty.
(1) Hardware
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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a. Hardware Product warranties may differ depending on the
specific Sun Product purchased. Applicable terms and
conditions are as set forth in the then current SPARC Reseller
U.S. Price List. The applicable warranty commences upon the
date of installation at the End User site. In addition,
Direct OEM shall receive a shelf life warranty that the
Products are free from defects in materials and workmanship,
which expires upon installation of the system at the End User
site.
b. Direct OEM's exclusive remedies under this warranty are repair
and/or replacement as detailed in the Reseller Support
Reference Guide. If such repair and/or replacement is not
possible, Sun's entire liability under this warranty shall be
limited to refund of the net purchase price.
(2) Software
a. Software is warranted to substantially conform to its user
manual, as it exists at the date of delivery to the End User,
for a period of ninety (90) days from the date of installation
at the End User's site.
b. Sun's sole obligation under this warranty shall be limited to
using its best efforts to correct Software as soon as
practical after licensee has notified Sun of nonconformance.
c. Sun does not warrant that:
4) Operation of any of the Software shall be uninterrupted or
error free, or
5) Functions contained in the licensed Software shall operate
in combinations which may be selected for use by the
licensee or meet the licensee's requirements.
d. No Sun warranty shall apply to any Software that is modified
without Sun's written consent.
(3) Software Customization. All Software customization is provided
"AS IS", without a warranty of any kind.
(4) Misuse. No Sun warranty shall apply to any Hardware or Software
Product supplied hereunder which has been misused, altered or
repaired in a manner not approved or expressly directed by Sun, or
used with equipment or Software not supplied or not approved by
Sun.
(5) Changes. Sun reserves the right to change these warranties upon
Sun's reasonable efforts to provide *** days notice; provided,
however, any detrimental change in warranties shall not apply to
any Products previously purchased by Direct OEM, or for which
there is an outstanding valid quote by Sun to Direct OEM.
9. HIGH RISK ACTIVITIES
A. SUN PRODUCTS ARE NOT FAULT TOLERANT AND ARE NOT DESIGNED, MANUFACTURED
OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL EQUIPMENT IN
HAZARDOUS ENVIRONMENTS REQUIREING FAIL-SAFE PERFORMANCE, SUCH AS IN
THE OPERATION OF NUCLEAR FACILITIES, OR AIRCRAFT NAVIGATION OR
AIRCRAFT COMMUNICATION SYSTEMS, OR IN AIR TRAFFIC CONTROL, IN WHICH
THE FAILURE OF SUN PRODUCTS COULD LEAD DIRECTLY TO DEATH, PERSONAL
INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK
ACTIVITIES"). SUN SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED
WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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B. Direct OEM represents and warrants that it will not use, or knowingly
distribute or resell Sun Products for such High Risk Activities and
that it will ensure that its End Users and Resellers of Sun Products
are provided with notice substantially in the form of that contained
in A, above.
10. TRADEMARKS
"Sun Trademarks" shall mean all names, logos, designs, and other
designations or brands used by Sun in connection with Sun Products,
including Sun, Sun Microsystems, the Sun Logo and the Sun system enclosure
design elements. Direct OEM is granted no right or license to use any Sun
Trademarks, except that Direct OEM 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 Direct OEM's advertising or marketing
materials, in the form set out in the Guide. Sun shall have the right to
approve all such materials, and Direct OEM agrees, on request, to modify
any materials which do not comply with these provisions. Direct OEM may
not re-logo or co-logo Sun Products, or otherwise modify, conceal or remove
any Trademark or other proprietary rights notice without Sun's prior
written consent.
11. SOFTWARE
A. License. Direct OEM is granted a nonexclusive nontransferable limited
license to distribute and sublicense Sun 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. In the
case of Software licensed to run on board level Sun Products embedded
in Direct OEM's system, use of the Software shall be limited to the
performance of a repetitive or set of repetitive operations in the
control of a sequence of non-interactive, single-user application
events; provided, however, there may be user input (via keypad,
switches, buttons, or similar devices) and user output (via message
display or similar methodology) to or from the application program;
and the user is not permitted to change the computer program, nor call
up any other application program. At the time of execution of this
Agreement, Direct OEM is not currently using and has no plans to use
Board Level Products. Direct OEM shall require each of its End Users
to execute a sublicense containing, provisions substantially
equivalent to those set forth in Exhibit D (Binary Code License) or
Exhibit E (Embedded Board Binary Code License), as appropriate (which
may be modified by Sun from time to time) and shall provide copies to
Sun on request. Direct OEM 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). These records may be audited once per year by Sun.
B. Internal Use. The provisions of Exhibit D (Binary Code License) or,
if appropriate, Exhibit E (Embedded Board Binary Code License), shall
govern Direct OEM's internal use of Software, including use for
demonstration, development or training purposes.
C. Restriction. Title to all copies of Software is retained by Sun or
its Licensor. Direct OEM agrees not to decompile, disassemble, or
otherwise reverse engineer Software.
12. INTELLECTUAL PROPERTY CLAIMS
A. Sun will defend at its expense Direct OEM from any legal proceeding
brought against Direct OEM, to the extent that it is based on a claim
that the use of Sun Product infringes a copyright, a U.S. patent, or a
trade secret and will pay all damages and costs incurred in settlement
or awarded by a court of competent jurisdiction attributable to such
claim, provided that Direct OEM: (i) provides Notice of the claim
promptly to Sun; (ii) gives Sun sole control of the defense and
settlement of same; (iii) provides to Sun all commercially reasonably
available information, assistance and authority to defend; and (iv)
has not compromised or settled such proceeding without Sun's prior
written consent.
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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B. Should any Sun Products or any portion thereof become, or in Sun's
opinion be likely to become, the subject of a claim of infringement,
Sun shall, as Direct OEM's sole and exclusive remedy at Sun's expense,
elect to: (i) obtain for Direct OEM the right to use such Sun
Products; (ii) replace or modify the Sun Products at no cost so that
they become non-infringing, provided, however, that any such
replacement or modified Products shall be of equivalent performance,
features, form, fit and function as the infringing Products; or in the
event that items (i) and (ii) are not commercially reasonable, then
(iii) remove the Sun Products and grant Direct OEM credit for them, as
depreciated on a five-year, straight-line basis.
C. Sun shall have no liability for any infringement or claim which
results from: (i) use of Sun Products in combination with any non-Sun
provided equipment, software or date; (ii) Sun's compliance with
designs or specifications of Direct OEM; or (iii) use of an allegedly
infringing version of Sun Products, if such alleged infringement could
be avoided by the use of a different version made available by Sun;
provided, that such non-infringing version is made available to Direct
OEM in accordance with the provisions of Section 12(B) above.
D. THIS SECTION STATES THE ENTIRE LIABILITY OF SUN WITH RESPECT TO
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY SUN PRODUCTS AND
SUN SHALL HAVE NO ADDITIONAL LIABILITY WITH RESPECT TO ANY ALLEGED OR
PROVDEN INFRINGEMENT.
13. TERM AND TERMINATION
A. Term. This Agreement shall commence on the Effective Date and shall
remain in force until February 28, 2000, according to the following
schedule:
Effective Date: Expiration Date:
-------------- ---------------
March 1 - May 31 May 31,
June 1 - August 31 August 31,
September 1 - November 30 November 30,
December 1 - February 28 February 28,
It shall be automatically renewed on a yearly basis thereafter, unless
at least thirty (30) days prior to any year's Expiration Date, Sun or
Direct OEM tenders notice of intention not to renew.
B. Termination.
(1) This Agreement may be terminated by either party (i) without
cause, for any reason, on one hundred and twenty (120) days'
notice to the other party, (ii) immediately, by notice, upon
material breach by the other party, if such breach can only be
remedied by means of injunctive relief; (iii) by notice, if the
other party fails to make reasonable efforts 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 with the exception of Direct OEM's late payment, which
shall only be deemed to be reason for termination under this
section if there is a chronic pattern of ongoing late payments.
(2) Sun may terminate this Agreement immediately upon notice in the
event that (i) there is any material change in the management or
control of Direct OEM, or transfer of any substantial part of
Direct OEM's business and such change or transfer is, in the
reasonable judgment of Sun, to the material detriment of Sun;
(ii) Sun discovers that Direct OEM has made a material
misrepresentation or omission in its Reseller Application, (iii)
Direct OEM makes an
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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unauthorized sale, or (iv) Direct OEM fails to diligently enforce
any of the material provisions of any agreement with its Resellers
related to Sun or Sun Products.
C. Effect of Termination
(1) Upon any termination or expiration of this Agreement, unless the
parties have agreed that Direct OEM is to purchase Sun Products
from a Master Reseller as defined in Section 7(F) of this
Agreement, Direct OEM shall no longer be authorized to purchase
Sun Products. In the event of termination for cause, (as defined
in Section 13(B)(2) of this Agreement) all outstanding orders are
subject to cancellation or acceptance by Sun. Sun may repurchase
and require Direct OEM to sell to Sun any unused Sun Products in
Direct OEM's inventory at net invoice price.
(2) With the exception of those rights and obligations which by their
nature should survive, all rights and licenses granted to Direct
OEM 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.
14. LIMITATION OF LIABILITY
Except for express obligations to indemnify under this Agreement, and/or
breach of Sections 3 (Use of Resellers), 9 (High Risk Activity), 11
(Software) or 16 (Confidentiality) and even if the exclusive remedies
provided for in this Agreement fail of their essential purpose:
A. EACH PARTY'S LIABILITY TO THE OTHER FOR CLAIMS RELATED TO THIS
AGREEMENT, WHETHER FOR BREACH OF CONTRACT, WARRANTY OR IN TORT, SHALL
NOT EXCEED ***.
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, EITHER 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.
15. NO OTHER WARRANTIES
EXCEPT AS 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
HEREBY DISCLAIMED.
16. CONFIDENTIALITY
If either party desires that information provided to the other under this
Agreement be held in confidence, the party disclosing such information
agrees to identify such information as "Confidential" or "Proprietary"
("Confidential Information") by clearly marking all copies of such
information with an appropriate legend. All software under this agreement
shall be deemed to be Confidential Information. Neither party shall
disclose any Confidential Information to any third party and will use
Confidential Information only for purposes specifically related to this
Agreement. Upon completion of this Agreement, all Confidential Information
and copies shall be destroyed or returned to the party disclosing such
information. This Agreement shall not affect any confidential disclosure
agreement between the parties.
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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17. NO EXPORTATION
Direct OEM agrees that it shall resell Sun Products only to End Users in
the continental United States, Alaska, and Hawaii, unless Direct OEM has
been accepted into Sun's Passport Program and has executed a Passport
Addendum to this Agreement. Direct OEM recognizes that under Passport, the
prices it pays and discounts it receives may be different from those stated
in this Agreement, and that purchases and sales made outside the U.S. will
be subject to local terms and conditions. Sun 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. Direct OEM agrees to comply strictly with all such
regulations and acknowledges that it has the responsibility to obtain
licenses to export or re-export Sun Products.
18. GENERAL
A. Dispute Resolution. Any action related to this Agreement will be
governed by California law, excluding its choice of law principles.
B. 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. 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. Notwithstanding the foregoing, (1) Direct
OEM may assign all of its rights and obligations indivisibly in
connection with a sale or disposition of substantially all of the
assets of its business relating to the Sun Products to a single
acquiring entity; and (2) Sun may assign its rights to payment under
this Agreement to any affiliate or subsidiary 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 nonenforcement, of that or any other provision or right.
E. Force Majeure. A party is not liable for nonperformance of this
Agreement, to the extent to which the nonperformance 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 under this Agreement must be in writing and
delivered either in person or by a means evidenced by a delivery
receipt. Notice will be effective upon receipt.
If to Sun: Sun Microsystems Computer Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇/▇ ▇▇▇▇▇-▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN: Manager, Sales Contracts
If to Direct OEM: FileTek, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: Director of Contracts
G. Execution. This Agreement shall become binding only after it has been
signed by an authorized officer of Direct OEM and an authorized
officer of Sun.
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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H. Entire Agreement. This Agreement, including all attachments
incorporated by reference, is the parties' entire agreement relating
to Sun 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 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 an officer
of each party.
Sun and Direct OEM acknowledge that each has read and understood this Agreement
and consents to be bound by its terms.
SUN MICROSYSTEMS COMPUTER COMPANY: DIRECT OEM:
BY: /S/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ BY: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------- ----------------------------------
NAME: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ NAME: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
TITLE: ASSOCIATE GENERAL COUNSEL TITLE: VP DEVELOPMENT
DATE: 12/9/96 DATE: 12/9/96
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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EXHIBIT A
SYSTEMS
1.0 Description of Systems
FileTek's StorHouse(TM) system provides a massive, managed on-line
detail Atomic Data Store. The Data Warehouse can then provide this
detail data on-line and available for extract or query via industry
standard SQL. Unique to the StorHouse Atomic Data Store system is the
concurrent on-line support of RAID, optical library robotic storage ,
and tape library robotic storage.
The Sun UltraSPARC processor will become the central processor in the
FileTek Storage Machine(TM) architecture. The majority of FileTek's
proprietary system code will execute on the Sun UltraSPARC platform.
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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EXHIBIT B
1.0 Authorized Sun Products: U.S. PRICE LIST
2.0 Authorized Buying Locations: ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇,
AND OTHER LOCATIONS AS MUTUALLY AGREED TO BY THE PARTIES.
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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EXHIBIT C
DISCOUNTS
CATEGORY A DISCOUNT PROGRAM
BASE DISCOUNT ***
VOLUME DISCOUNT
***
Category A TOTAL DISCOUNT: ***
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Category B DISCOUNT: ***
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*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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EXHIBIT D
END USER BINARY CODE LICENSE
1. LICENSE TO USE. Customer is granted a non-exclusive and non-transferable
license ("License") for the use of [________](TM) * software in
machine-readable form, together with accompanying documentation
("Software"), by the number of users 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; 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;
incorporation of portions of Motif(R) in Developed Programs may require
reporting of copies of Developed Programs to Sun; and Customer agrees to
indemnify, hold harmless and defend Sun and its licensors (including the
payment of attorneys' fees) from and against any claims or suits, 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
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. 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. 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. Software is warranted to substantially
conform to its user manual, as it exists at the date of delivery to the End
User, for a period of ninety (90) days from the date of delivery. Sun's
sole obligation under this warranty shall be limited to using its best
efforts to correct Software as soon as practical after licensee has
notified Sun of nonconformance. Sun does not warrant that: 1) operation of
any of the Software shall be uninterrupted or error free, or 2) functions
contained in the licensed Software shall operate in combinations which may
be selected for use by the licensee or meet the licensee's requirements.
No Sun warranty shall apply to any Software that is modified without Sun's
written consent. These warranties extend only to Customer as the original
licensee.
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.
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
14
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 REGARDLES SOF THEORY OF
LIABILITY ARISING OUT OF THE USE 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 charged by Sun for
software.
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
without notice from Sun if Customer 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, it
shall 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 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. 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 (i) 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.
- 14 -
15
EXHIBIT E
EMBEDDED BOARD
END USER BINARY CODE LICENSE
1. LICENSE TO USE. Customer is granted a non-exclusive and non-transferable
license ("License") for the use of [______](TM) * software in
machine-readable form, together with accompanying documentation
("Software") by the number of users for which the corresponding has been
paid. Permitted use is hereby expressly limited to the performance of a
repetitive or set of repetitive operations in the control of a sequence of
non-interactive, single-user application events; provided, however, there
may be user input (via keypad, switches, buttons, or similar devices) and
user output (via message display or similar methodology) to or from the
application program; and Customer is not permitted to change the computer
program, nor call up any other application program.
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; 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;
incorporation of portions of Motif(R) in Developed Programs may require
reporting of copies of Developed Programs to Sun; and Customer agrees to
indemnify, hold harmless and defend Sun and its licensors (including the
payment of attorneys' fees) from and against any claims or suits, 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
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. 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. 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. Software is warranted to substantially
conform to its user manual, as it exists at the date of delivery to the End
User, for a period of ninety (90) days from the date of delivery. Sun's
sole obligation under this warranty shall be limited to using its best
efforts to correct Software as soon as practical after licensee has
notified Sun of nonconformance. Sun does not warrant that: 1) operation of
any of the Software shall be uninterrupted or error free, or 2) functions
contained in the licensed Software shall operate in combinations which may
be selected for use by the licensee or meet the licensee's requirements.
No Sun warranty shall apply to any Software that is modified without Sun's
written consent. These warranties extend only to Customer as the original
licensee.
- 15 -
16
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.
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 REGARDLES SOF THEORY OF
LIABILITY ARISING OUT OF THE USE 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 charged by Sun for
software.
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
without notice from Sun if Customer 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, it
shall 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 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. 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 (i) 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.
- 16 -
