EXHIBIT 10.64
VERITAS SOLUTIONS PROVIDER AGREEMENT
(VERITAS LOGO)
Contract Number.
(ENTERPRISE AUTHORIZED ELITE SOLUTIONS PROVIDER)
This VERITAS SOLUTIONS PROVIDER AGREEMENT ("Agreement"), is entered into as of
the date of the last signature below ("Effective Date"), by and between VERITAS
SOFTWARE GLOBAL CORPORATION, a Delaware corporation having a place of business
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ("VERITAS") and MTI Technology
Corp. a [ILLEGIBLE] corporation, having a place of business at ▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("SOLUTIONS PROVIDER").
1. DEFINITIONS. The following terms as used in this Agreement shall have the
meanings assigned below. The terms may be used in the singular or in the
plural, as the context requires.
(a) "ANNUAL SALES TARGET" means the annual minimum sales target set
forth in Exhibit B (Program Requirements, Benefits and Terms),
comprising total license revenue, net of discounts, paid to VERITAS
for Solutions Provider's purchases of Qualified Product under this
Agreement.
(b) "DEMONSTRATION COPY" means a copy of Software with which Solutions
Provider may demonstrate Software capabilities to potential End
Users.
(c) "DIRECT SOURCING ADDENDUM" or "DSA means an attachment hereto which,
if executed between Solutions Provider and VERITAS, sets forth the
terms under which Solutions Provider shall exclusively order and
obtain Products, Professional Services and Support for distribution
to End Users.
(d) "END USER" means a licensee of Products who acquires such products
for its internal use rather than distribution or sublicensing.
(e) "END USER LICENSE" means the then-current software license terms
delivered by VERITAS with the Products, as modified by VERITAS from
time to time or, if applicable, the software license agreement
negotiated and signed between VERITAS and the End User for the
Products.
(f) "LICENSE KEY" means an alphanumeric code that enables an End User to
access and operate all or a portion of the Software.
(g) "LIMITED SOURCING ADDENDUM" or "LSA" means an attachment hereto
which, if executed between Solutions Provider and VERITAS, indicates
the Master Distributor from whom Solutions Provider shall
exclusively order and obtain Products, Professional Services and
Support for distribution to End Users.
(h) "MASTER DISTRIBUTOR" means an entity VERITAS authorizes under a
master distributor agreement to distribute Product, Professional
Services and Support to VERITAS resellers such as Solutions
Provider. The then-current Master Distributors are as listed in the
"Distributors" area on the VERITAS Solutions Provider partner
website, as updated from time to time.
(i) "PRICE LIST" means VERITAS' then-current list of End User prices for
available Products, related Support and Professional Services within
the applicable region.
(j) "PRODUCT" means each of the Software available on VERITAS' Price
List and specified in Exhibit A (Products) including media, related
User Documentation and Updates pertaining to such Software.
(k) "PROFESSIONAL SERVICES" means VERITAS' installation, implementation,
configuration, professional or consulting services packages (and
associated consultant expense packages), including End User training
for Products, available on VERITAS' Price List.
(l) "PROGRAM REQUIREMENTS" means the requirements for Solution
Provider's designated partner level within VERITAS' Partner Program,
set forth in Exhibit B (Program Requirements, Benefits and Terms).
(m) "QUALIFIED PRODUCT" means a Product so identified on Exhibit A
(Products). Only net license revenue to VERITAS from Solutions
Provider's purchases of Qualified Product may be counted towards the
Annual Sales Target, as further described in Exhibit B (Program
Requirements, Program Benefits and Terms).
(n) "QUALIFIED REVENUE" means the license fee revenue received by
VERITAS (net of any discounts) for Solutions Provider's purchases of
Qualified Product from source(s) authorized by VERITAS under
Solutions Provider's LSA or DSA, as applicable.
(o) "SALES PORTAL" means an electronic sales order placement and
reporting system designated by VERITAS.
(p) "SOFTWARE" means a VERITAS software product in object code form as
made available by VERITAS on its Price List.
(q) "SPECIFIED FULFILLMENT ADDENDUM" or "SFA means an attachment hereto
which, if executed between Solutions Provider and VERITAS, sets
forth the terms under which Solutions Provider may fulfill delivery
of Product and Support to a specific End User pursuant to such End
User's negotiated End User License and negotiated pricing with
VERITAS.
(r) "SUPPORT" means standard VERITAS' technical support for a Product,
as available on VERITAS' Price List and provided pursuant to
VERITAS' then-current technical support policy under VERITAS'
support contract with the End User.
(s) "TERM" means the term of this Agreement as set forth in Exhibit B
(Program Requirements, Benefits and Terms).
(t) "TERRITORY" means the geographic region(s) within which Solutions
Provider may distribute Products to End Users, as indicated in
Exhibit B (Program Requirements, Benefits and Terms).
(u) "UPDATES" means a subsequent release of Software which VERITAS makes
generally available to End Users who have current subscriptions to
Support for the Software. Updates may include error corrections and
enhancements, but shall not include any release, option or future
product which VERITAS licenses separately.
(v) "USER DOCUMENTATION" means any End User manuals, release notes,
installation notes, and other materials delivered by VERITAS with
the Products (in hard copy or electronic formats).
2. APPOINTMENT. Subject to the terms and conditions of this Agreement,
VERITAS hereby appoints Solutions Provider and Solutions Provider hereby
accepts appointment as a non-exclusive reseller of the Products,
Professional Services and first year Support as further described in this
Agreement. Solutions Provider's level within VERITAS' Partner Program is
as designated in the Exhibit B (Program Requirements, Program Benefits and
Terms) executed between VERITAS and Solutions Provider. VERITAS reserves
the right to distribute the Products, Professional Services and Support
directly and indirectly through all channels including through OEMs, other
resellers, or integrators.
3. TERM. The Term of this Agreement is as set forth in Exhibit B (Program
Requirements, Benefits and Terms), subject to termination under Section 10
("Termination") below.
VERITAS Solutions Provider Agreement
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4. SOLUTION PROVIDER RIGHTS AND LICENSES.
(a) PURCHASE AND DISTRIBUTION RIGHTS. Subject to Solution Provider's
compliance with this Agreement and the Program Requirements, during
the Term VERITAS grants Solutions Provider the non-exclusive,
non-transferable right in the Territory to (i) purchase the
Products, Support and Professional Services as set forth in the LSA
or DSA, as applicable, for resale to End Users, and to (ii)
distribute the Products, Support and Professional Services Solely to
End Users, under the terms of the End User License and the Technical
Support Terms and Conditions.
(b) DEMONSTRATION COPIES AND UPDATES. VERITAS may, at its sole
discretion, make Demonstration Copies available to Solutions
Provider on an as-requested basis. If VERITAS does provide
Demonstration Copies, then VERITAS grants Solutions Provider a
non-exclusive, non-transferable right for Solutions Provider to use
such Demonstration Copies, during the Term and in the Territory,
solely for the purpose of Solutions Provider's demonstrating
Software capabilities to potential End Users. VERITAS will provide
Updates to Solutions Provider's authorized Demonstration Copies
(upon Solutions Provider's request).
(c) RESTRICTIONS. Without limitation, Solutions Provider shall not
(1) use or duplicate the Software or User Documentation (including
Demonstration Copies) for any purpose other than as specified
in this Agreement, or make the Software available to
unauthorized third parties;
(2) cause or permit any party procuring the Product from Solutions
Provider to sublicense, timeshare, rent or lease the Product;
(3) use or permit Demonstration Copies to be used for its or a
third party's internal production use;
(4) resell Product and/or Support to End Users who have a
negotiated End User License signed with VERITAS, except
pursuant to an executed Specified Fulfillment Addendum;
(5) resell Product site licenses, service provider licenses
(including managed service provider, application service
provider, or other usage models not permitted under VERITAS'
standard unmodified End User License) except pursuant to a
Specified Fulfillment Addendum or other mutual written
agreement executed between the parties;
(6) cause or permit the reverse engineering, disassembly,
decompilation or other attempt (i) to defeat, avoid, bypass,
remove, deactivate or otherwise circumvent any software
protection mechanism in, or (ii) to derive the source code of
the underlying ideas, algorithms, structure or organization
from Products, except to the extent required by law; nor
(7) obtain Products from other than its VERITAS-authorized
source(s) under its LSA or DSA, as applicable, or distribute
Products, Support or Professional Services to individuals or
entities other than End Users.
(d) OTHER OFFERINGS. Future Products may be added to this Agreement upon
mutual agreement. VERITAS is not obligated to offer future Products,
Professional Services or Support programs at the same terms and/or
conditions stated in this Agreement. VERITAS has the right to
discontinue the distribution or availability of any Product upon
thirty (30) days prior written notice to Solutions Provider.
5. SOLUTION PROVIDER OBLIGATIONS.
(a) PROGRAM REQUIREMENTS. Solution Provider shall fulfill the applicable
Program Requirements, as they may be updated by VERITAS from time to
time, and maintain compliance with such Program Requirements during
the Term.
(b) MARKETING AND TRADEMARKS.
(1) Solutions Provider agrees to use reasonable commercial efforts
to market and distribute the Products, Professional Services
and Support. Solutions Provider may use the VERITAS Trademarks
solely to refer to VERITAS' Products, Professional Services
and Support in connection with Solutions Provider's
distribution, advertising and promotion for the Products,
Professional Services and Support as authorized under this
Agreement.
(2) Solutions Provider agrees not to use "VERITAS," either the
word ▇▇▇▇ or the VERITAS logo, or the applicable Product
trademarks (the "VERITAS Trademarks") as any portion of the
Solution Provider's tradename or trademark for its business,
services or other products. Solutions Provider will comply
with any marketing and trademark guidelines provided by
VERITAS from time to time, and in its marketing efforts
Solutions Provider will not engage in any deceptive,
misleading, illegal or unethical practices that may be
detrimental to VERITAS or to the Products, Professional
Services or support.
(3) Solutions Provider agrees to not remove and to include all
applicable copyright and trademark notices of VERITAS as they
appear on or in the Products and in all advertisements and
marketing materials provided or approved by VERITAS.
(4) Before publishing any press releases referencing VERITAS
Trademarks, Solutions Provider shall obtain VERITAS' prior
written consent, which shall not be unreasonably delayed or
denied. Otherwise, Solutions Provider agrees to obtain
VERITAS' approval before distributing any advertising or
marketing material for the Products and or for Support, if and
as requested by VERITAS.
(5) Neither Solutions Provider nor any of its employees,
consultants, representatives, agents or affiliates is
authorized to make any warranty or representation, express or
implied, on behalf of VERITAS.
(c) ANNUAL SALES TARGET. Solutions Provider's Annual Sales Target will
be as set forth in Exhibit B (Program Requirements, Benefits and
Terms). If Solutions Provider fails to meet such Annual Sales
Target, VERITAS may adjust Solutions Provider's level within the
VERITAS Partner Program, as further discussed in Exhibit 6, or
terminate this Agreement in accordance with the provisions of
▇▇▇▇▇▇▇ ▇▇ ("▇▇▇▇▇▇▇▇▇▇▇").
(▇) ORDERING. Solutions Provider shall execute either an Limited
Sourcing Addendum (LSA) or a Direct Sourcing Addendum (DSA) with
VERITAS. The LSA or DSA, as applicable, shall indicate the
authorized source(s) and terms under which Solutions Provider shall
obtain Product, Support and Professional Services for resale to End
Users.
(e) END USER LICENSE. VERITAS shall include its then-standard license
terms and conditions in the Product (and/or associated packaging)
made available to Solutions Provider. Solutions Provider shall
include, and shall not remove, such license terms and conditions
with each unit of the Product distributed.
(f) LICENSE KEYS. A Product may require the application of a License
Key. End Users shall obtain any necessary License Keys through
VERITAS' then-current License Key management processes, as modified
by VERITAS from time to time. As of the Effective Date, License Keys
may be obtained by completing VERITAS' vLicense request process, as
described in Exhibit C (vLicense Web Based License Key Fulfillment
Application). If an End User requests, Solutions Provider may use
the vLicense request process to obtain the License Key for the End
User, strictly on behalf of and for use by such End User with
Software licensed under its End User License.
VERITAS SOLUTIONS PROVIDER AGREEMENT
VERSION (05.15.02)
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(g) SUPPORT. Solutions Provider will make its best efforts to sell first
year annual Support for every license of Product distributed to the
End User. Such Support shall be provided to End Users pursuant to
VERITAS' then-current Technical Support Terms and Conditions,
available from VERITAS Customer Support and updated by VERITAS from
time to time. An End User shall not be entitled to access Support
until the End User completes and submits the support
registration/contact form included in the Technical Support Terms
and Conditions to VERITAS and VERITAS accepts such order.
(h) PROFESSIONAL SERVICES. Professional Service packages are fulfilled
by VERITAS Enterprise Consulting Services on an as-available basis.
If Solutions Provider resells VERITAS Professional Services,
Solutions Provider is responsible to ensure the End User is also
sold an associated consultant expense package. Solutions Provider is
responsible for all collections of Professional Services consultant
expenses from the End User as appropriate.
(i) WARRANTY SERVICE AND RETURNS. If a Product qualifies for warranty
service under the warranty provisions of the applicable End User
License, Solutions Provider will return the Product to VERITAS for a
replacement media kit. Solutions Provider must first obtain a return
of materials authorization (RMA) number under VERITAS' then current
return policy and process. Solutions Provider shall obtain RMAs and
arrange for return of Product to VERITAS either through its Master
Distributor or directly with VERITAS, depending on whether Solutions
Provider has executed an LSA or a DSA under this Agreement,
respectively. In order to be eligible for warranty service, the
entire originally shipped contents of the defective Product
(including media) must be returned to VERITAS at VERITAS' cost,
accompanied by a dated sales receipt for the defective Product,
within thirty (30) days of Solutions Provider's receipt from the End
User. VERITAS will replace returned defective media kits on a
one-for-one basis. Solutions Provider will be responsible to arrange
for delivery of the replacement Product , if any, to the End User.
(j) REPORTING. Exhibit B (Program Requirements, Benefits and Terms) sets
forth whether and under what terms Solutions Provider shall submit a
monthly sales report to VERITAS.
(k) RECORDS/AUDIT.
(1) Solutions Provider agrees to maintain complete and accurate
records of its activities under this Agreement, including
without limitation usage and location of Demonstration Copies,
records of the number of copies of each Product and/or Support
contracts distributed to End Users, to whom they were
distributed and payments received therefor, and (if
applicable) the use of and Users of User Ids and Passwords
under Solutions Provider's DSA.
(2) Solutions Provider shall maintain and make available such
records for at least three (3) years following termination of
this Agreement. Solutions Provider shall permit VERITAS or
persons designated by VERITAS to audit Solution Provider to
confirm compliance with this Agreement. VERITAS shall give
Solutions Provider ten (10) days prior written notice before
commencement of any audit. Any such audit shall be conducted
during Solutions Provider's regular business hours in such a
manner as not to unreasonably interfere with normal business
activities of Solutions Provider.
(3) Solutions Provider shall pay VERITAS any underpayments
reported from such audit immediately upon receipt of invoice.
The costs of conducting such audit will be paid by VERITAS
unless the audit discloses that Solution Provider's
underpayment of fees due exceeds five percent (5%) of the fees
owed for the period audited, in which case Solutions Provider
shall pay for the costs of the audit.
(l) GOVERNMENT REQUIREMENTS. Solutions Provider shall obtain and
maintain all permits, licenses and government registrations
necessary or appropriate to perform its obligations under this
Agreement, and shall complete all filings and obtain any
governmental authorities required by applicable law, including
without limitations those necessary to enable Solutions Provider to
make payments to VERITAS. On VERITAS' request, Solutions Provider
shall provide VERITAS written assurances of such compliance.
6. OWNERSHIP OF PROPRIETARY RIGHTS. VERITAS retains all right, title and
interest in the Product, including in all copies, improvements,
enhancements, modifications and derivative works of the Products and all
patent, copyright, trade secret and trademark rights pertaining to the
Products. Solutions Provider will take all reasonable measures to protect
VERITAS' proprietary rights in the Products. Solutions Provider will
distribute the Products in the packaging and with the markings as provided
by VERITAS, and shall not alter or remove VERITAS' proprietary notices.
7. NON-DISCLOSURE. By virtue of this Agreement, Solutions Provider may be
exposed to certain information concerning VERITAS' Products, proposed new
software products, Program Requirements, License Keys, pricing and other
information not generally known to the public (including the terms and
conditions of this Agreement), all of which are the confidential and
proprietary information of VERITAS ("Confidential Information"). Solutions
Provider may use Confidential Information solely as necessary to order and
resell Products, Professional Services and Support under this Agreement.
Solutions Provider agrees that during and after the term of this Agreement
it will not disclose any Confidential Information without VERITAS' prior
written consent to any third party and will take all necessary
precautions, using in any event not less than a reasonable degree of care,
to protect and keep confidential the Confidential Information.
8. WARRANTY AND DISCLAIMER
(a) END USER. VERITAS warrants the Products TO THE END USER ONLY
pursuant to the terms and conditions of the End User License.
Solutions Provider shall be solely responsible for any claims,
warranties or representations made by Solutions Provider or
Solutions Provider's employees or agents which differ from the
warranty provided by VERITAS in its End User License.
(b) SOLUTIONS PROVIDER. Demonstration Copies (and the Sales Portal, if
applicable) are provided to Solutions Provider on an as-is basis.
VERITAS MAKES NO WARRANTIES TO SOLUTIONS PROVIDER RELATING TO THE
PRODUCTS, PROFESSIONAL SERVICES, SUPPORT OR SALES PORTAL. VERITAS,
TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ANY OTHER
WARRANTY, CONDITION, TERM, UNDERTAKING OR REPRESENTATION, EXPRESS OR
IMPLIED, RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION
ANY WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY OR ANY WARRANTY ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE.
9. INDEMNIFICATION.
(a) VERITAS agrees, at its expense, to defend any third party claim made
against Solutions Provider that the Products infringe a patent,
copyright or trade secret, and shall indemnify Solutions Provider
against any and all damages and losses finally awarded against the
Solutions Provider based upon such claims (or agreed upon by VERITAS
in settlement), provided that Solutions Provider: (1) provides
VERITAS prompt written notice of the claim to; (2) provides VERITAS
authority, assistance and information to perform its duties under
this Subsection 9(a); (3) grants VERITAS sole control of the defense
and all related settlement negotiations; and (4) has not compromised
or prejudiced VERITAS' position on the claim.
VERITAS SOLUTIONS PROVIDER AGREEMENT
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PAGE 3
(b) VERITAS shall have no obligation to defend or indemnify Solution
Provider for any claim that is based on (i) a modification of the
Product not provided by VERITAS; (ii) use of a superseded release of
the Products if VERITAS has made available to Solutions Provider a
current release of the Products; or (iii) the use of the Products in
combination with any software, hardware, data or other materials not
provided by VERITAS where such infringement would not have occurred
but for the combination.
(c) If the Products are held or may be held, in VERITAS' opinion, to
violate a third party's patent, copyright or trade secret rights,
VERITAS may: (1) obtain for Solutions Provider the right to continue
to resell the Products under the terms of this Agreement; (2) modify
the Products to be non-infringing; or (3) terminate Solution
Provider's rights and VERITAS' obligations under this Agreement with
respect to such Products.
NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, SECTION
9(a)-(c) STATE SOLUTION PROVIDER'S SOLE AND EXCLUSIVE REMEDY AND
VERITAS' SOLE AND EXCLUSIVE LIABILITY, REGARDING INFRINGEMENT OR
MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD
PARTY BY THE PRODUCTS.
(d) Solutions Provider shall indemnify and hold VERITAS harmless from
any claims or damages, inclusive of VERITAS' attorneys' fees,
resulting from (i) third party claims against VERITAS arising from
Solutions Provider's use of any product not provided by VERITAS but
used in combination with the Products, if such claim would have been
avoided by the exclusive use of the Products; and (ii) from Solution
Provider's (including its representatives) breach of any of Sections
5 (Solutions Provider Obligations), 6 (Ownership of Proprietary
Rights), 7 (Nondisclosure), 8 (Warranty and Disclaimer),
12(j)(Foreign Corrupt Practices Act) and 12(k)(Export controls) of
this Agreement.
10. TERMINATION
(a) TERMINATION. Either party may terminate this Agreement (i) for its
convenience upon thirty (30) days prior written notice to the other
party, or (ii) for the other party's breach upon ten (10) days prior
written notice, if such breach remains uncured at the end of the
notice period.
(b) EFFECT OF TERMINATION. Upon termination of this Agreement:
(i) All rights granted Solutions Provider hereunder shall
immediately terminate, and Solutions Provider shall
immediately cease reselling and distributing the Products,
Support and Professional Services, and cease using the
Trademarks and discontinue all representations that it is a
VERITAS Solutions Provider.
(ii) Solution Provider shall promptly destroy any Confidential
Information (including any copies or extracts thereof) and any
copies of the Products in its possession or control, including
Demonstration Copies and any undistributed License Keys, and
within ten (10) days of termination shall certify in writing
through a corporate officer that all such items have been
destroyed.
(iii) Termination shall not affect payment obligations accruing on
or before the effective date of termination, except that the
payment date of all payments due VERITAS shall automatically
be accelerated so that they shall become due and payable on
the effective date of termination, even if longer terms had
been provided previously.
(iv) Neither party shall be entitled to any compensation, damages
or payments in respect to goodwill that has been established
or for any damages on account of prospective profits or
anticipated sales, and neither party shall be entitled to
reimbursement in any amount for any training, advertising,
market development, investments or other costs that may have
been expended by either party before the termination of this
Agreement, regardless of the reason for, or method of,
termination of this Agreement. Solutions Provider hereby
waives its rights under applicable laws for any such
compensation, reimbursement, or damages.
(c) SURVIVAL. The following terms shall survive any expiration or
earlier termination of this Agreement:
Sections 1 (Definitions), 5(k) (Records/Audit), 7
(Non-Disclosure), 8 (Warranty and Disclaimer), 9
(Indemnification), 10 (Termination), 11 (Limitation of
Liability), 12 (Miscellaneous), and Solution Provider's
payment obligations accrued under this Agreement prior to the
effective date of termination.
11. LIMITATION OF LIABILITY
IN NO EVENT SHALL VERITAS OR ITS SUPPLIERS BE LIABLE TO SOLUTIONS PROVIDER
OR ANY PERSON FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE, LOSS
OF DATA, LOSS OF GOOD WILL, COVER AND RELIANCE, INTERRUPTION OF BUSINESS
OR ANY AND ALL OTHER SIMILAR DAMAGES OR LOSS WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE IN CONNECTION WITH
OR ARISING OUT OF THIS AGREEMENT, EVEN IF VERITAS, ITS SUPPLIERS OR ITS
AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT AS LIMITED BY APPLICABLE LAW, IN NO EVENT SHALL VERITAS' TOTAL
LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE)
IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID
BY SOLUTIONS PROVIDER TO VERITAS DURING THE SIX MONTHS PRECEDING THE
CIRCUMSTANCES FIRST GIVING RISE TO THE CLAIM OF LIABILITY, AND IF SUCH
DAMAGES RESULT FROM THE SOLUTIONS PROVIDERS USE OF A PRODUCT, SUPPORT OR
PROFESSIONAL SERVICES PROVIDED UNDER THIS AGREEMENT, SUCH LIABILITY SHALL
BE LIMITED TO FEES PAID FOR THE RELEVANT PRODUCT, SUPPORT OR PROFESSIONAL
SERVICES GIVING RISE TO THE LIABILITY.
THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY.
12. MISCELLANEOUS
(a) NOTICES. All notices (including address change notices) will be in
writing and will be sent to the address of the recipient set out on
the front page of this Agreement, (or such other address as the
recipient may designate by notice given in accordance with this
Section 12(a)). All notices permitted or required under this
Agreement shall be delivered in person or by certified or registered
express mail. Notices may also be sent by confirmed facsimile
transmission, provided such notice is also given by mail as
described in the preceding sentence. Notices shall be effective upon
receipt, and receipt shall be deemed upon personal delivery or upon
the fifth (5th) business day after deposit in the mail. If notice is
sent to VERITAS, it shall be sent to Attn: General Counsel/Legal.
(b) FORCE MAJEURE. Neither party shall be in default of any obligation
(other than a payment obligation) by reason of any failure to
perform or delay in performing due to unforeseen circumstances or to
causes beyond such party's reasonable control, including but not
limited to acts of God, war, riot, embargoes, acts of civil or
military authorities, fire, floods, accidents, strikes, or shortages
of transportation, facilities, fuel, energy, labor or materials.
VERITAS SOLUTIONS PROVIDER AGREEMENT
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(c) ASSIGNMENT. Either party may assign this Agreement in whole to (1) a
successor in interest to all or substantially all of its assets,
whether by sale, merger, or otherwise, or (2) to its parent or to a
wholly-owned subsidiary of such party or of its parent, on written
notice to the other. However, upon any assignment by Solutions
Provider, VERITAS reserves the right to terminate this Agreement on
ten (10) days prior written notice. For the purposes of this
provision, a change in the persons or entities who control fifty-
percent (50%) or more of the equity, securities or voting interest
of a party (whether in a single transactions or a series of
transactions) shall be considered an assignment.
(d) WAIVER. Any failure to enforce any provision of this Agreement shall
not constitute a waiver thereof or of any other provision. A waiver
of any breach or default shall not constitute a waiver of any other
right for subsequent or other breach or default. Any waiver to be
effective must be in writing signed by the waiving party.
(e) SEVERABILITY. If any provision or part of this Agreement is found by
a court of competent jurisdiction or other competent authority to be
illegal or unenforceable, it will be enforced to the maximum extent
permissible, and the legality and enforceability of the other
provisions of this Agreement will remain in full force and effect.
(f) INJUNCTIVE RELIEF. It is expressly agreed that a violation of
VERITAS' intellectual property rights, or Solution Provider's
obligations with respect to Confidential Information, shall cause
irreparable harm to VERITAS for which a remedy at law would be
inadequate. Therefore, in addition to any and all remedies available
at law, VERITAS shall be entitled to an injunction or other
equitable remedies in all legal proceedings in the event of any
threatened or actual violation of any or all of the provisions
hereof.
(g) RELATIONSHIP BETWEEN THE PARTIES. Each of the parties is an
independent contractor as to the other. Nothing contained herein
shall be construed as creating any agency, partnership,
franchiseeship, or other form of joint enterprise between the
parties.
(h) HEADINGS. The section headings appearing in this Agreement are
inserted only as a matter of convenience and in no way define,
limit, construe or describe the scope or extent of such section or
in any way affect such section.
(i) U.S.GOVERNMENT RIGHTS. The Software and User Documentation are
deemed to be "commercial computer software" and "commercial computer
software documentation", respectively, as defined in FAR Section
12.212 and DFARS Section 227.7202, or their successor provisions, as
applicable. Any use, modification, reproduction release,
performance, display or disclosure of the Software and User
Documentation by the US. Government shall be solely in accordance
with the terms of the End User License. Solutions Provider agrees
that each copy of the Product distributed to the U.S. Government
pursuant to the FAR and DFARS will bear the restricted rights legend
specified therein.
(j) FOREIGN CORRUPT PRACTICES ACT. Solutions Provider (including its
officers, directors, employees and agents) shall not pay, offer,
promise or authorize the payment, directly or indirectly, of any
monies or anything of value to any official or employee of any
foreign government, including any government-owned or controlled
entity, or of a public international organization, or any political
party, party official, or candidate for political office, for the
purpose of improperly inducing or rewarding favorable treatment or
advantage in connection with this Agreement or with Solutions
Provider's relationship with VERITAS.
(k) EXPORT CONTROLS. Each party agrees to comply with all applicable
laws, rules, and regulations in connection with its activities under
this Agreement. Solutions Provider will not export or re-export
(directly or indirectly) the Products or other technical data
without complying with U.S. Export Administration Act of 1979, as
amended, and the regulations promulgated thereunder.
(l) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of California, exclusive of
any provisions of the United Nations Convention on Contracts for
Sale of Goods, including any amendments thereto, and without regard
to principles of conflicts of law. Any legal action or proceeding
relating to this Agreement shall be instituted in a state or federal
court in Santa ▇▇▇▇▇ County, California. VERITAS and Solutions
Provider agree to submit to the jurisdiction of, and agree that
venue is proper in, these courts in any such legal action or
proceeding.
(m) STATUTE OF LIMITATIONS. Except for VERITAS' claims for unpaid fees
or breach of confidentiality or infringement of any intellectual
property right, any action arising out of or relating to this
Agreement or products or services provided hereunder must be
commenced within two (2) years from the date on which the
circumstances giving rise to the claim were known or reasonably
should have been known.
(n) COUNTERPARTS. This Agreement may be signed in two counterparts which
together shall form a single agreement as if both parties had
executed the same document. Signed copies of this Agreement
(including any of its addenda, attachments, and exhibits, and any
purchase order forms submitted hereunder) provided via facsimile
transmission will be deemed binding the same extent as original
documents.
(o) SOLUTIONS PROVIDER AUTHORITY. Solutions Provider warrants that it
has full authority to enter into and perform this Agreement, and the
person signing this Agreement on Solution Provider's behalf has been
duly authorized and empowered to do so. Solutions Provider
acknowledges that it has read this Agreement, understands it and
agrees to be bound by it.
(p) ENTIRE AGREEMENT. It is expressly agreed that the terms of this
Agreement, including any addenda hereto, shall supersede (1) any
VERITAS Partner Program guidelines or frequently-asked-question(FAQ)
information, or (2) any different, inconsistent or preprinted terms
in any invoice, order form, acknowledgement or confirmation issued
by Solutions Provider, regardless of whether such document is signed
and returned by VERITAS. As to Solutions Provider, in the event of
any conflict between this Agreement and any unsigned or "shrinkwrap"
license included in any Product package, media or electronic version
provided by VERITAS, the terms of this Agreement shall govern and
any such Product shall be licensed to Solutions Provider under the
terms of this Agreement. This Agreement including its addenda is the
complete and exclusive agreement between the parties with respect to
the subject matter hereof, and supersedes any previous or
contemporaneous agreement, proposal, commitment, or representation,
whether oral or written, and any other communications between the
parties in relation to such subject matter. Any modifications to
this Agreement shall be made in writing and must be duly signed by
authorized representatives of each party or they shall be void and
of no effect. This Agreement does not constitute an offer by VERITAS
and it shall not be effective until signed by both parties.
VERITAS SOLUTIONS PROVIDER AGREEMENT
VERSION (05.15.02)
PAGE 5
ATTACHMENTS
EXHIBIT A: PRODUCTS
EXHIBIT B: PROGRAM REQUIREMENTS, PROGRAM BENEFITS AND TERMS
EXHIBIT C: vLlCENSE (WEB BASED LICENSE KEY FULFILLMENT APPLICATION)
EXHIBIT D: LIMITED SOURCING ADDENDUM (LSA)
Or DIRECT SOURCING ADDENDUM (DSA) (as applicable and as executed between Solutions Provider and VERITAS)
AGREED AND ACCEPTED as of the Effective Date:
VERITAS SOFTWARE GLOBAL CORPORATION SOLUTIONS MTI TECHNOLOGY CORP.
PROVIDER -----------------------------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------- -------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President Title: Chief Financial Officer
and General Counsel ----------------------------------
----------------------------
Date Date
Signed: 1-9-03 Signed: December 13, 2002
---------------------------- --------------------------------
[VERITAS LEGAL STAMP OMITTED]
VERITAS Solutions Provider Agreement
version (05.15.02)
Page 6
FOR USE WITH ENTERPRISE AUTHORIZED ELITE SOLUTIONS PROVIDERS ONLY.
EXHIBIT A
PRODUCTS
This EXHIBIT A, PRODUCTS ("Exhibit A") is an attachment to the VERITAS Solutions
Provider Agreement between VERITAS and Solutions Provider ("Agreement"). All
capitalized terms not otherwise defined in this Exhibit A shall have the
meanings given in the Agreement, including its other attachments.
1. PRODUCT DESIGNATIONS. VERITAS' designation of standard Products as either
"Enterprise" or "Commercial" products are as found on the VERITAS Partner
Network website, as updated by VERITAS from time to time.
2. AUTHORIZED RESALE.
(a) PRODUCTS. During the Term, during such time as Solutions Provider
satisfies all Program Requirements set forth in Exhibit B (Program
Requirements, Program Benefits, and Terms), VERITAS Solutions
Provider is authorized to resell the following VERITAS Products (and
related Support and Training):
- VERITAS Products designated by VERITAS as "ENTERPRISE"
software product; and
- VERITAS Products designated by VERITAS as "COMMERCIAL"
software product
(b) INTERIM SELLING. Notwithstanding Section 2(a) above, during the
first six (6) months of the initial Term of the Agreement, if
Solutions Provider has not yet completed the education and
certification requirements described in Exhibit 6, Section
3(d)(Training and Certifications) of the Agreement, Solutions
Provider may purchase and resell the Products described in Paragraph
2(a) above (and related Support and Training) provided Solutions
Provider is making good faith efforts and progress to satisfy the
Program Requirements, as determined solely by VERITAS in its good
faith estimation.
3. QUALIFIED PRODUCTS. Only those ENTERPRISE products which Solutions
Provider obtains from the authorized sources indicated on Solutions
Provider's LSA or DSA, as applicable, are Qualified Products for purposes
of determining the Qualified Revenue counting towards Solutions Provider's
Annual Sales Target, as further described in Exhibit B, Section
2(b)(Annual Sales Target).
4. PRODUCT SOURCING.
(a) Solutions Provider shall, as indicated by VERITAS, execute either a
Limited Sourcing Addendum (LSA) or Direct Sourcing Addendum (DSA)
with VERITAS under the Agreement.
(b) The LSA or DSA, as applicable, indicates the authorized source(s)
from which Solutions Provider shall exclusively obtain Products,
Support and Training for resale to End Users
ENTERPRISE AUTHORIZED ELITE
FOR USE WITH ENTERPRISE AUTHORIZED ELITE SOLUTIONS PROVIDERS ONLY.
EXHIBIT B
PROGRAM REQUIREMENTS, PROGRAM BENEFITS AND TERMS
This EXHIBIT B ,PROGRAM REQUIREMENTS, PROGRAM BENEFITS AND TERMS supplements the
terms of the VERITAS Solutions Provider Agreement by and between VERITAS and
Solutions Provider ("Agreement"). All capitalized terms not otherwise defined in
this Exhibit B shall have the meanings given in the Agreement, including its
other attachments. The effective date of this Exhibit B is the Effective Date of
the Agreement.
1. PROGRAM LEVEL: ENTERPRISE AUTHORIZED ELITE
2. TERM. The initial Term of the Agreement is the period between the
Effective Date, through MARCH 31, 2003. Thereafter, the Agreement will
automatically renew on April 1 of each year, and the Term shall be
extended, for subsequent twelve (12) month renewal periods unless either
party terminates the Agreement in accordance with Section 10 thereof.
3. PROGRAM REQUIREMENTS: Solutions Provider is required to fulfill the
following Program Requirements:
(a) AUTHORIZED SOURCING. Procure Product, Support and Professional
Services only through authorized VERITAS source(s) as designated on
Solutions Provider's LSA or DSA, as applicable.
(b) SALES TERRITORY. The Territory within which Solution Provider is
authorized to market and distribute the Products, Support and
Professional Services to End Users is: 200-mile radius around each
of the following Solutions Provider offices:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ / ▇▇▇▇▇▇▇▇ & Postal Code
-------------- ------------------------------------
Attach additional sheets as necessary
(c) VOLUME AND REPORTING.
- Annual Sales Target. Commit to and fulfill an Annual Sales
Target of Three Million Dollars ($3,000,000 USD). Satisfaction
of the Annual Sales Target is based upon the Qualified Revenue
VERITAS receives during the applicable 12-month Term.
- Revenue Forecast. Submit to VERITAS an initial business plan,
including a revenue forecast for sales of Qualified Products
for the first six (6) months following the Effective Date of
this Agreement. Solution Provider shall provide VERITAS its
forecast within thirty (30) days from the date this Agreement
is signed. Solutions Provider shall update the forecast
fifteen (15) days after the beginning of each calendar
quarter.
(d) TRAINING AND CERTIFICATIONS.
- Sales Training. Ensure that seventy-five percent (75%) of Solutions
Provider's sales staff completes free web-based VERITAS' Sales
Specialist Training and passes test.
- Consultant Training. Complete necessary training for four (4)
individuals to become VERITAS Certified Professionals; any courses
which require payment will be provided at VERITAS Price List less a
fifteen-percent (15%) discount.
- Hardware Platform/Storage Knowledge. Solutions Provider must be
authorized to resell at least three (3) of the following Hardware
Platform/Storage partner technologies:
- SUN, HP-UX, IBM AIX, McData, HDS, Oracle, and STK
- Authorization to sell is as granted by the applicable
above-named Hardware Platform/Storage technology partner
- Sales Champions. Have a defined Storage practice measured by
maintaining a Sales Champion (a sales representative or other sales
advocate) who has revenue goals and commission objectives or bonuses
based on sale of VERITAS Product.
- Education. Commit to annual education requirement measured by either
- Sales Champion attendance at annual VERITAS Sales Champion
conference; and
- Sales Engineer attendance at four (4) VERITAS-delivered Tech
Seminars or Training seminars delivered by one of the Hardware
Platform/Storage partners identified above.
ENTERPRISE AUTHORIZED ELITE
FOR USE WITH ENTERPRISE AUTHORIZED ELITE SOLUTIONS PROVIDERS ONLY.
(e) END USER VALUE-ADD.
- Pre-Sales Assistance. Commit to and maintain a business model
under which a minimum of fifteen-percent (15%) of Solutions
Provider's revenue derives from Pre-Sales Consulting Services
fees for End User technology implementations.
- Geographic Presence. Have sales and technical resources
dedicated to a Solutions Provider office location within Two
Hundred (200) mile radius of End User location. (See Paragraph
3(b)(Sales Territory) above)
(f) ORGANIZATIONAL SUPPORT.
- Operations Reviews. Participate in a quarterly operations
review with VERITAS' Area and Channel executives at VERITAS'
request. Solutions Provider agrees to provide executive level
support in such quarterly operations review. VERITAS will
provide Solutions Provider with thirty (30) days advance
notice of the date of each quarterly operations review
- Marketing Programs. Commit to and implement four (4) VERITAS
marketing programs annually
- Executive Participation. Participate in the annual Executive
Partner Summit (Solutions Provider participant: Vice President
or above)
(g) VERITAS CLUSTER SERVER (VCS) AUTHORIZATION - ADDITIONAL PROGRAM
REQUIREMENTS. To sell VCS, Solutions Provider must either (1) have
completed the below additional Program Requirements, or (2) sell the
VERITAS ProLaunch consulting service for VCS to accompany each sale.
Paragraph 2(b) (Interim Selling) of Exhibit A (Products) does not
apply to this provision.
- Two (2) of Solutions Provider's Sales Engineers must attend
VERITAS' free 3-day technical VCS training course delivered
through Channel Education Services, and pass the exam at the
end of the course
- Upon completion of the training and exam requirement and
delivery of confirming certificate, Solutions Provider will be
authorized to resell VCS
- If Solutions Provider loses one of the Sales Engineers trained
on VCS as above, to maintain authorized VCS reseller status a
replacement Sales Engineer must complete VCS training and pass
exam within 90 days
4. NON-COMPLIANCE WITH PROGRAM REQUIREMENTS. If Solutions Provider does not
meet and maintain compliance with these Program Requirements, then VERITAS
may at its sole discretion:
- adjust Solutions Provider's program level designation within
the VERITAS Partner Program (including corresponding Annual
Sales Target, Program Requirements, and program benefits) by
terminating this Exhibit B and having Solutions Provider
execute a replacement Exhibit B for the appropriate program
level; and/or
- adjust Solutions Provider's applicable discount, if Solutions
Provider has a DSA in effect with VERITAS, or
- terminate the Agreement in accordance with Section 10 of the
Agreement.
5. PROGRAM BENEFITS. Subject to Solutions Provider's ongoing fulfillment of
the Program Requirements and other Agreement terms, VERITAS agrees to
provide the following benefits to Solutions Provider as an Enterprise
Authorized Elite Solutions Provider. At its sole discretion, VERITAS may
change the program benefits at any time.
(a) FUNDING OPPORTUNITIES.
- Market Development Funds. Eligibility for access to Marketing
Development Funds (MDF), at VERITAS discretion and subject to
requirements of then-current VERITAS MDF policy
- Business Development Fund Rebate. Three percent (3%) of the
Qualified Revenue, calculated and paid as described as
follows:
- For each of the first two (2) calendar quarters of the
initial Term, Solutions Provider shall receive an amount
equal to three-percent (3%) of Qualified Revenue VERITAS
received during such quarter. If Solutions Provider has
a DSA with VERITAS, such Qualified Revenue shall be
calculated from Qualified Product purchases made by
Solutions Provider. If Solutions Provider has an LSA
with VERITAS, such Qualified Revenue shall be calculated
from Qualified Product purchases made by Solutions
Provider's Master Distributor to fulfill Solutions
Provider orders.
- Beginning with the third quarter of the initial Term,
VERITAS may review Solutions Provider's sales volume
from time to time to assess Solutions Provider's
progress towards fulfilling its Annual Sales Target.
Progress will be determined by extrapolating an
annualized total based on averaged monthly totals of
Qualified Revenue received thus far during the annual
contract term to date.
- If Solutions Provider's total annualized Qualified
Revenue to VERITAS for Qualified Product purchases falls
below the Annual Sales Target, VERITAS may adjust or
eliminate Solutions Provider's rebate based on revenue
performance levels for the quarter reviewed (See Section
3 above (Non-Compliance with Program Requirements).
- Rebate payments will be paid within thirty (30) days of
the end of each calendar quarter; by check if Solutions
Provider had a LSA in effect during such quarter, or by
credit memo for VERITAS Product purchases if Solutions
Provider had an DSA in effect during such quarter.
ENTERPRISE AUTHORIZED ELITE
FOR USE WITH ENTERPRISE AUTHORIZED ELITE SOLUTIONS PROVIDERS ONLY.
(b) MARKETING AND SALES SUPPORT.
- Eligibility for access to sales leads at VERITAS' discretion
- Ability to request evaluation software online, for End User
assessment
- Ability to request Demonstration Copy software on-line, for
sales demo purposes
- Designated contacts for VERITAS Sales and Marketing support
- Access to web-based sales tools which VERITAS may make
available
- Invitation to quarterly VERITAS Marketing Updates via webcast
- VERITAS Partner Program welcome package that includes a plaque
and resource kit
- Access to Pre-sales email support via ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
- Access to VERITAS' restricted login partner website
- Monthly electronic Partner Newsletter
- Access to a partner email suggestion box
(c) EVENT PARTICIPATION.
- Invitations to attend VERITAS Regional Channel Conferences
- Invitation to attend the annual VERITAS Executive Partner
Summit
(d) NEW PRODUCT INFORMATION.
- VERITAS launch information on new Products and partner
programs
- Nomination to participate in Beta Product Programs selected by
VERITAS
(e) TECHNICAL SUPPORT.
- Thirty (30) Free incidents annually of 24x7 phone-based
technical support on all VERITAS Products
- Option to purchase additional incidents of 24x7 phone-based
support at a discounted price
- Free email support on all Products
- Access to technical web tools made available over VERITAS
partner website including: VERITAS knowledge base, Technotes,
FAQs and Downloadable Patches
(f) TRAINING. (As available).
- Free Sales and Pre-Sales Technical Instructor-led Training
with priority seating
- Free Sales Training via CD or web
- Discounted Technical Training (Certification pre-requisites)
AGREED AND ACCEPTED as of April 1,2002:
VERITAS SOFTWARE GLOBAL CORPORATION SOLUTIONS PROVIDER:
MTI TECHNOLOGY CORPORATION
-----------------------------------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
------------------------------- -------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
----------------------------- -----------------------------
Vice President
Title: and General Counsel Title: Chief Financial Officer
---------------------------- ----------------------------
Date Dated
Signed: 1-9-03 Signed: Dec 13, 2002
---------------------------- ---------------------------
[VERITAS LEGAL SEAL]
ENTERPRISE AUTHORIZED ELITE
Mfagan (05.15.02)
MTI TECHNOLOGY CORPORATION
SALES OFFICES
12-17-02
1. Southern California Office (Corporate HQ)
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
714.970.0030
2. DC/Mid-Atlantic Office
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
703.406.0100
3. NY/NJ Office
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
732.888.9191
4. Dallas Office
Attn: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
972.335.1711
5. Chicago Office
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
630.325.4151
6. Atlanta Office
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Royal Centre Two
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇. ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
770.752.1600
7. Detroit Office
Attn: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
248.350.8840
8. North Carolina Office
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
919.845.0404
9. Boston Office
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
781.599.8186
10. St Louis Office
Attn: ▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
636.477.6686
11. Northern California
Attn: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
12. Phoenix (Home Office)
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇
480.325.9067
13. Cincinnatti Office
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
513.563.3045
14. Pennsylvania (Home Office)
Attn: ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
FOR USE WITH ENTERPRISE AUTHORIZED ELITE SOLUTIONS PROVIDERS ONLY.
EXHIBIT C
VLICENSE
(WEB-BASED LICENSE KEY FULFILLMENT APPLICATION)
SOFTWARE LICENSE KEY REQUEST FORM / REGISTRATION FORM
YOU CAN NOW OBTAIN A LICENSE KEY FOR YOUR VERITAS PRODUCT BY ACCESSING
VLICENSE(SM), OUR NEW ONLINE LICENSING APPLICATION, AT
▇▇▇▇://▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇.▇▇▇. YOU WILL NEED A VALID EMAIL ADDRESS AND THE
INFORMATION ON THIS FORM. SEE THE NEW WEB SITE FOR ITS ADDITIONAL
LICENSING CAPABILITIES.
You may choose to request your license key by faxing this completed form
to:
VERLTAS LICENSING DEPARTMENT at ▇▇▇-▇▇▇-▇▇▇▇
License keys will be issued via e-mail, unless otherwise requested.
License keys are issued in the order they are received during standard
business hours (6am to 6pm PST Monday through Friday, excluding holidays).
If you have questions pertaining to this form, please call the License Key
Hotline: ▇▇▇-▇▇▇-▇▇▇▇ from 6:30 am to 4:30 pm PST.
Leave space for Item notes (dynamic)
Leave space for Item notes (dynamic)
Customer Number:
Platform: Tier:
Product Name:
Product Number:
Order #:
Serial Number From:
Serial Number To:
VERITAS Delivery ID: Picking Line Detail ID:
System HostID: (PLEASE PRINT CLEARLY)
(see output of sysdef -h for Solaris, uname-for HPUX). Do not provide host name,
it is not recorded.
System Model: (PLEASE PRlNT CLEARLY)
(see output of "uname-i" for Solaris, "model" for HPUX) For Fujitsu machines,
please include model type listed on hardware, i.e.: GP7000F Model 2000. (For HP
machines, please include complete output i.e.: 9000/800/N4000-36.)
Company license is registered to (Customer's full legal name):
Integrator/Consultant Company Name (if applicable):
Contact Info: Last Name First Name Title
Email address: Alternate Email:
Telephone: Fax:
Software Installed at: Address
(Please indicate company name of installation location if different (e.g. if
this is C/O or co-location)
City State ZIP/Postal Code Country
Date purchased Purchased from (Check one): VERITAS ( ) or Reseller ( )
ENTERPRISE AUTHORIZED ELITE
FOR USE WITH ENTERPRISE AUTHORIZED ELITE SOLUTIONS PROVIDERS ONLY.
EXHIBIT D
LIMITED SOURCING ADDENDUM
(LSA)
This EXHIBIT D, LIMITED SOURCING ADDENDUM ("LSA") supplements the terms of the
VERITAS Solutions Provider Agreement by and between VERITAS and Solutions
Provider ("Agreement"). All capitalized terms not otherwise defined in this LSA
shall have the meanings given in the Agreement, including its other attachments.
The effective date of this LSA ("Effective Date" hereof) is the date of the last
party's signature below.
1. SOLUTION PROVIDER PARTNER PROGRAM LEVEL: ENTERPRISE AUTHORIZED ELITE
2. TERM. The initial Term of this LSA shall commence on the Effective Date
and shall continue in effect until March 31, 2003 unless earlier
terminated in accordance with the terms of the Agreement.
3. MASTER DISTRIBUTOR(s). During the initial Term and any renewal period,
Solutions Provider agrees to purchase VERITAS Products exclusively as
follows:
(a) Commercial Products. Solutions Provider shall obtain Commercial
products for resale to End Users only from those Master Distributors
identified by VERITAS as "Distributors" authorized to distribute
Commercial products. The list of authorized Commercial products
Distributors is available on VERITAS' website, as updated from time
to time.
(b) Enterprise Products. The Master Distributors authorized to
distribute Enterprise products are identified on VERITAS' website,
as updated from time to time. Solutions Provider has reviewed the
list of authorized Enterprise products Master Distributors, and
based on its own assessment of its needs hereby selects AVNET as the
sole Master Distributor from which Solutions Provider shall
exclusively obtain Enterprise Products for resale to End Users.
4. ALTERNATE SOURCING CHANNELS. Solutions Provider understands that if it
obtains standard VERITAS Products available on VERITAS' Price List from
sources other than the Master Distributors designated in Paragraph 3
above, its resale of such Products shall not be counted as a sale of
Qualified Products for purposes of meeting Program Requirements, such that
revenue proceeds from such purchases shall not be credited towards
fulfillment of Solutions Provider's Annual Sales Target.
5. RENEWALS. Unless otherwise terminated under the Agreement, this LSA shall
automatically renew on April 1st of each year for subsequent periods of
twelve (12) months each, unless Solutions Provider notifies VERITAS (at
any point during the period March 1-March 31st of the then-current Term)
of its intent to choose another authorized Enterprise products Distributor
as its Master Distributor, in which case the parties shall execute a new
LSA reflecting such substitution.
6. TERMINATION. This LSA shall terminate or expire with the Term of the
Agreement, unless otherwise terminated in accordance with Paragraph 7
(Disputes), below.
7. DISPUTES AND REQUEST FOR REPLACEMENT MASTER DISTRIBUTOR.
(a) If during a Term a dispute arises between Master Distributor and
Solutions Provider which cannot be resolved after the reasonable
good faith efforts of Master Distributor and Solutions Provider
(such as, for example, where Solutions Provider is not receiving the
contemplated level of marketing or sales support from such Master
Distributor, or such Master Distributor is not otherwise fulfilling
its commitments to Solutions Provider), then Solutions Provider may
apply to revoke its designation of its chosen Master Distributor.
(b) In such cases, Solutions Provider shall submit its request for
Master Distributor re-designation in writing to VERITAS. Such
request shall indicate the basis of Solutions Provider's request and
its desired replacement Enterprise product Master Distributor,
selected by Solutions Provider from VERITAS' then-current authorized
list. VERITAS shall make its commercially reasonable efforts to
review and respond to such request promptly.
Acknowledged and agreed as of the Effective Date:
VERITAS SOFTWARE GLOBAL CORPORATION SOLUTIONS PROVIDER: MTI Technology Corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VICE PRESIDENT Title: CFO
AND GENERAL COUNSEL
Date Date
Signed: 1-9-03 signed: Dec 13, 2002
ENTERPRISE AUTHORIZED ELITE