EXHIBIT 10(cc)
ATTACHMENT Q
CHANNEL INSTALLATION AGREEMENT FOR MICROSOFT PRODUCTS
This Channel Installation Agreement for Microsoft Products ("Channel
Installation Agreement") is made on the 15th day of JANUARY, 1998, by and
between COMPAQ COMPUTER CORPORATION, a Delaware corporation ("Compaq"), having
an office at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and COMPUCOM, a
DELAWARE corporation ("Participant"), having an office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, Participant wishes to participate in Compaq's Channel Configuration
Program ("CCP");
WHEREAS, Participant participation in Compaq's CCP is conditioned upon
Participant's entry in this Channel Installation Agreement;
NOW, THEREFORE, Participant agrees to abide by the terms of this Channel
Installation Agreement as follows.
1. Participant agrees to provide Compaq with information sufficient to
satisfy requirements of the Compaq Channel Installation Partner Evaluation
Worksheet. Information will be truthful, accurate, and complete at the time of
submission, and will be updated from time to time if the information changes.
Participant understands that this information will be provided to Microsoft as
part of Compaq's obligation under certain Microsoft license agreements.
2. Participant agrees that Microsoft or Compaq shall have the right to
conduct, directly or through a mutually agreed-upon third party, an inspection
of Participant's premises and business procedures prior to acceptance as a
participant in Compaq's CCP Program.
3. Participant shall preinstall on each System no more than one (1) copy of
one of the Microsoft Products listed in Attachment Q-l.
4. Participant shall place inside the System packaging, Microsoft Product
packages (also known as "Associated Product Materials" or "APM"), consisting of
an end-user license agreement ("▇▇▇▇"), registration card, Microsoft Product
manual, and as an optional item, Microsoft Product software on external media,
all as acquired by Compaq from an MICROSOFT Authorized Replicator and provided
to Participant.
5. Participant shall distribute Product (as preinstalled as described in (3)
above and as included in System packaging as described in (4) above) to end
users.
6. Participant shall not reverse engineer, decompile or dissassemble any
Microsoft Product.
7. Participant shall distribute Microsoft Product to end users only pursuant
to an end user license agreement ("▇▇▇▇").
8. Participant will ensure that the packaging and labels of each copy of
Microsoft Product bears the copyright, trademark or patent notices for the
Microsoft Product that appear on the applicable release of the Microsoft Product
as provided to Compaq pursuant to Section 2 of Compaq's license agreement.
Participant will not remove any copyright, trademark or patent notices that
appear on the Microsoft Product as delivered by MICROSOFT. Participant shall
cause to appear on the title page of each volume of its documentation, and at
any other location where any copyright, patent or trademark notice appears, the
MICROSOFT and third party copyright, patent or trademark notices that appear in
the release of Microsoft Product documentation from which Participant's
documentation is derived.
9. Within ten (10) days after termination or expiration of this Agreement,
Participant shall return to MICROSOFT or certify the destruction of all full or
partial copies of each Microsoft Product in Participant's possession or under
its control. Participant, however, may retain an adequate number of copies of
each Microsoft Product and the Microsoft Product documentation to be used solely
for support purposes.
10. Participant expressly undertakes to retain in confidence all information
and know-how transmitted to Participant by Compaq or MICROSOFT that MICROSOFT
has identified as being proprietary and/or confidential or that, by the nature
of the circumstances surrounding the disclosure, ought in good faith to be
treated as proprietary and/or confidential, and will make no use of such
information and know-how except under the terms and during the existence of this
Agreement. Participant agrees to use the same degree of care to protect
MICROSOFT confidential information as Participant takes to protect its own
confidential information of like importance. However, Participant shall have no
obligation to maintain the confidentiality of information that (i) it received
rightfully from another party prior to its receipt from MICROSOFT or Compaq;
(ii) MICROSOFT has disclosed to a third party without any obligation to maintain
such information in confidence; or (iii) has been or is independently developed
by Participant. Further, Participant may disclose confidential information as
required by governmental or judicial order, provided Participant gives MICROSOFT
prompt notice of such order and complies with any protective order (or
equivalent) imposed on such disclosure. Participant shall treat all Microsoft
Product adaptation materials (including source code) as confidential information
and shall not disclose, disseminate, or distribute such materials to any third
party without Microsoft's prior written permission. Participant shall treat the
terms and conditions of this Agreement as confidential; however, Participant may
disclose such information in confidence to its immediate legal and financial
consultants as required in the ordinary course of Participant's business.
Participant's obligation under this Section 10 shall extend to the earlier of
such time as the information protected hereby is in the public domain through no
fault of Participant or five (5) years following termination or expiration of
this Agreement.
11. During the term of this Agreement, Participant agrees to keep all usual and
proper records and books of account and all usual and proper entries relating to
each Microsoft Product preinstalled as consistent with generally accepted
accounting principles.
12. MICROSOFT may cause an audit to be made of the applicable Participant
records and facilities in order to verify Participant's compliance with the
terms of this Agreement and to verify royalty reports issued by Participant and
prompt adjustment shall be made to compensate for any errors or omissions
disclosed by such audit. Any such audit shall be conducted by an independent
certified public accountant of national stature (e.g., Deloitte) selected by
MICROSOFT (other than on a contingent fee basis) and shall be conducted during
regular business hours at Participant's offices and in such a manner as not to
interfere with Participant's normal business activities. Any such audit shall be
paid for by MICROSOFT unless Material discrepancies are disclosed. "Material"
shall mean the lesser of Fifty Thousand Dollars (US$50,000.00) or five percent
(5%) of the amount that should have been reported, but not less than Ten
Thousand Dollars (US$10,000.00). If Material discrepancies are disclosed,
Participant agrees to pay MICROSOFT for the costs associated with the audit not
to exceed Twenty Thousand Dollars (US$20,000.00). In no event shall audits be
made more frequently than annually unless the immediately preceding audit
discloses a Material discrepancy.
13. Neither the right to examine and audit nor the right to receive an
adjustment shall be affected by any statement to the contrary, appearing on
checks or otherwise, unless expressly agreed to in writing by the party having
such right.
14. In the event that MICROSOFT makes any claim with respect to an audit, upon
Participant's written request MICROSOFT will make available to Participant the
records and reports pertaining to such audit prepared by MICROSOFT' independent
auditor.
15. Any Microsoft Product which Participant distributes or licenses to or on
behalf of the United States of America, its agencies and/or instrumentalities
(the "Government"), are provided to Participant with RESTRICTED RIGHTS. Use,
duplication or disclosure by the Government is subject to restriction as set
forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer
Software clause at DFAR 252.227-7013, or as set forth in the particular
department or agency regulations or rules which provide MICROSOFT protection
equivalent to or greater than the above-cited clause. Participant shall comply
with any requirements of the Government to obtain such RESTRICTED RIGHTS
protection, including without limitation, the placement of any restrictive
legends on the Microsoft Product software, Microsoft Product documentation, and
any license agreement used in connection with the distribution of the Microsoft
Product. Manufacturer is Microsoft Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. Under no circumstances shall MICROSOFT be obligated to
comply with any Governmental requirements regarding the submission of or the
request for exemption from submission of cost or pricing data or cost accounting
requirements. For any distribution or license of the Microsoft Product that
would require compliance by MICROSOFT with Governmental requirements relating to
cost or pricing data or cost accounting requirements, Participant must obtain an
appropriate waiver or exemption from such requirements for the benefit of
MICROSOFT from the appropriate Governmental authority before the distribution
and/or license of the Microsoft Product to the Government.
16. Participant consents to venue and jurisdiction in the state and federal
courts sitting in the State of Washington with respect to any action brought by
MICROSOFT to enforce its rights under the Installation Agreement.
17. Participant shall provide access to its premises to audit and inspection
team(s) sent on behalf of MICROSOFT or Compaq, with or without notice, in order
that such team may perform an audit of the Channel Installer's books, records,
and Compaq's Channel Configuration Program (CCP) database, and/or an inspection
of the Channel Installer's procedures to determine compliance with the terms of
the Installation Agreement and the Agreement.
18. Participant shall halt preinstallation and shipment of the Microsoft
Product upon notice from Compaq or MICROSOFT, 10 business days after notice
defined in section (9) of this Channel Installation Agreement, of the
suspension, termination, or expiration of this Agreement.
19. Participant shall pay MICROSOFT' or Compaq's attorneys' fees if Compaq or
MICROSOFT employs attorneys to enforce any rights arising out of the
Installation Agreement.
20. Participant shall maintain the inventory of Microsoft Product packages
received from Compaq or the Authorized Replicator on behalf of Compaq, if any,
separate from inventory of Microsoft Product packages, if any, in the Channel
Installer's possession for other MICROSOFT OEMs.
21. Participant agrees and understands that MICROSOFT is a third party
intended beneficiary of this Installation Agreement, with full rights to enforce
such agreement.
22. Participant agrees to indemnify, defend, and hold Compaq harmless from and
against any and all claims, costs, expenses (including legal fees and litigation
expenses), losses, and damage to property resulting from Participant's, its
agents', subcontractors', or employees' conduct under this Channel Installation
Agreement.
23. This Channel Installation Agreement shall be read in conjunction with,
shall become an integral part of, and its terms shall have the same meaning as,
the terms of the CCP Agreement to be entered into between Compaq and
Participant. Where the terms of this Channel Installation Agreement and the CCP
Agreement are inconsistent, the terms of this Channel Installation Agreement
will control.
IN WITNESS WHEREOF, the parties have executed this Installation Agreement as of
the date set forth above.
COMPAQ PARTICIPANT-COMPUCOM SYSTEMS
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇▇
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Signature Signature
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
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Name Name
V.P. MFG Strategy & Technology V.P. Product Services
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Title Title
2-9-98 Jan. 15, 1998
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Date Date
ATTACHMENT Q-1
LIST OF AUTHORIZED MICROSOFT PRODUCTS
1. MS-DOS 6.22/Windows for Workgroups 3.11
2. Windows 95
3. Windows NT Workstation 4.0