Pro-Supplier OEM Agreement

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[VERSION FAVORING SUPPLIER (PROVIDER OF TECHNOLOGY)] LICENSE AGREEMENT

WHEREAS, OEM develops and markets certain software and other computer-related products and services and desires to include Supplier's software product as a component of OEM's product or services.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following terms and conditions, which set forth the rights, duties, and obligations of the parties.

Contents

1. DEFINITIONS.

The following terms, when used with initial capital letters in this Agreement, shall have the following definitions, unless the context in which the term is used expressly provides otherwise.

"Bundled Products/Services" means the combination of the Supplier Products and OEM Products/ Services that OEM will market and sell as a single product offering.

"Derivative Works" means a revision, modification, translation, abridgment, condensation or expansion of Supplier Products or Documentation or any form in which Supplier Products or Documentation may be recast, transferred, or adapted, which, if prepared without the consent of Supplier, would be a copyright infringement.

"Distributor" means any third party which acquires possession of Supplier Products from OEM and is not a Supplier Reseller or End User and distributes such media, Supplier's end user license agreement, and OEM Product to a Reseller.

"Documentation" means those software user manuals, reference manuals and installation guides, or portions thereof, which are distributed in conjunction with the Supplier Products set forth in Exhibit A.

"End User" means an entity that acquires the Supplier Products for Internal Use and is not an affiliate of OEM's enterprise. "End User" does not include an entity that distributes, resells, sells, licenses, rents or leases Supplier Products to other parties in the regular course of business.

"Expiration Date" means the date identified as the expiration of the term of this Agreement, as set forth in paragraph 3 below.

"Internal Use" means use for purposes that do not directly produce revenue for the user. "Internal Use" does not include timesharing.

"Major and Minor Updates" means updates, if any, to the Supplier Products. Major Updates involve additions of substantial functionality while Minor Updates do not. Major Updates are designated by a change in the number to the left of the decimal point of the number appearing after the product name while Minor Updates are designated by a change in such number to the right of the decimal point. Supplier is the sole determiner of the availability and designation of an update as a Major or Minor Update. Major Updates exclude software releases which are reasonably designated by Supplier as new products. Where used herein "Updates" shall mean Major Updates or Minor Updates interchangeably.

"Marks" means Supplier's trademarks, service marks, logos, designations and insignias.

"OEM" means the customer identified as an Authorized OEM in this Agreement.

"Program Errors" means one or more reproducible(on a Supplier supported platform) deviations in the Supplier Products from the applicable specifications shown in the Documentation.

"Reseller" means any third party which is not a Distributor but acquires Supplier Products from OEM or an authorized Distributor and resells, licenses, rents, or leases to End Users.

"Supplier" means ___________.

"Supplier Products" means the Supplier Products identified in Exhibit A that OEM is authorized to sublicense, market or sell under this Agreement.

2. GRANT OF LICENSES.

(a) Licenses.

Subject to the terms and conditions of this Agreement, Supplier hereby grants and OEM hereby accepts, a nonexclusive and nontransferable license (i) to use and reproduce the Supplier Products (in executable, object code form only) on any tangible medium, provided that such reproduction occurs only at the location of OEM's principal office first set forth above unless an alternate location is otherwise specified in writing to Supplier; and (ii) to distribute Supplier Product copies, bundled and in conjunction with OEM's Product(s) only, to Distributors, Resellers and End Users, such distribution to be effected by sublicenses containing terms consistent with and no less restrictive than the terms hereof. The license granted to OEM hereunder specifically extends to OEM's use of the source code for the designated Supplier Products for purposes of software reproduction and incorporation into bundled application with OEM's products. Under no circumstances and notwithstanding any of the foregoing, may sublicenses granted by OEM include access to or use of Supplier's Product source codes. OEM is expressly prohibited from any marketing and/or distribution of Supplier Products unless each copy is bundled with OEM's Product(s). OEM and all Distributors and Resellers shall have the right to distribute the Supplier Products by license to End Users.

(b) Product Modification and Tampering.

OEM agrees not to modify, de-compile, reverse engineer, reverse compile, modify or perform any similar type of operation on any software or firmware acquired under this Agreement, in any fashion or for any purpose whatsoever, without the prior written consent of Supplier. OEM also agrees that any such works are Derivative Works and as such are the sole and exclusive property of Supplier or its licensor.

(c) Documentation License.

Subject to the terms and conditions of this Agreement, Supplier hereby grants and OEM accepts a nonexclusive and nontransferable right and license to use and reproduce the Documentation, and to distribute the Documentation solely in conjunction with the Supplier Products. Such reproductions shall occur only at OEM's principal office first set forth above, unless an alternative location is otherwise specified in writing to Supplier. Such distribution may be to Distributors, Resellers and End Users.

(d) Third Party License.

If all or any part of the Supplier Products or Updates delivered to OEM has been licensed to Supplier by a third party software supplier then, notwithstanding anything to the contrary contained in this Agreement, OEM is granted a sublicense to the third party software subject to the same terms and conditions as those contained in the Agreement between Supplier and such third party software supplier. In addition, Supplier reserves the right to substitute any third party software in the Supplier Products as long as the new third party software does not materially affect the functionality of the Supplier Products. Supplier represents that the current release of the Supplier Products contains no third party software which would require OEM to agree to any terms and conditions in addition to those set forth in this Agreement.

3. TERM.

The initial term of this Agreement shall be five (5) years, unless terminated earlier as provided herein, commencing on the date it is executed by an authorized Supplier signatory and will automatically renew for a second five-year period at the expiration of said initial term, as to the version of Supplier Products licensed to OEM as of the date of renewal. The availability and terms of any Licenses to OEM for versions of Supplier Products becoming available after the expiration of the initial term will be negotiated at the time said versions become available. The acceptance of any additional licenses by Supplier after the expiration of the renewed term will be construed as extending this Agreement beyond the renewal period on a month-to-month basis, with the month-to-month Agreement subject to termination at any time by either party upon thirty (30) days' prior written notice.

4.PRODUCTS AND VOLUMES.

(a) Eligible Products.

Supplier reserves the right at any time to make changes to any Supplier Products, including without limitation changes required (i) for security, or (ii) to facilitate performance in accordance with specifications..

(b) Volume Forecast.

OEM agrees to provide Supplier with a rolling six (6) month non-binding forecast of OEM's projected shipments for the product(s) licensed hereunder on the first business day of each calendar quarter.

5. SUPPORT, MARKETING AND DISTRIBUTION.

(a) Maintenance and Support.

Supplier shall provide OEM with maintenance and support according to the terms and conditions specified in Exhibit B.

(b) Nonexclusivity.

OEM understands that Supplier reserves the right to appoint other OEMs without restriction as to number or location.

(c) Use of Authorized OEM Title.

OEM may refer to itself, in connection with exercising its rights under this Agreement, as a "Supplier Authorized OEM," but solely in connection with marketing the Bundled Products/Services and only during the term of this Agreement.

(d) Public Announcements and Promotional Materials.

Supplier and OEM shall cooperate with each other so that each party may issue a press release other than as a customer reference concerning this Agreement, provided that each party must approve such press release prior to its release. Supplier shall have the right to use OEM's name as a customer reference. Supplier shall cooperate with OEM in its development of the initial marketing and sales materials used to promote the distribution of the Supplier Products.

(e) General Restrictions on Distribution.

OEM agrees to comply with and shall require its Distributors and/or Resellers to comply with all applicable laws, rules and regulations to preclude the acquisition of unlimited rights to technical data, software and documentation provided with the Supplier Product to a governmental agency, and ensure the inclusion of the appropriate "Restricted Rights" or "Limited Rights" notices required by the U.S. Government agencies or other applicable agencies.

(f) Software.

Software acquired under this Agreement is made available to OEM to market and sublicense only under the provisions of this Agreement. When marketing software, OEM agrees to exercise commercially reasonable efforts to ensure that each End User receiving the software through OEM or Distributor understands, and agrees to be bound by, the applicable Supplier Software License Agreement. (Exhibit C) For purposes of this Agreement, "Software" includes firmware and software stored in ROM's. OEM agrees to be bound by the applicable Software License Agreement with respect to all software put to Internal Use by OEM.

(g) Third Party Requirements.

In the event that Supplier is required by a third party software supplier to cease and to cause its OEMs to cease reproduction and distribution of a particular revision of the Supplier Products, OEM agrees to comply herewith provided Supplier provides OEM with thirty (30) days prior written notice and further provided that Supplier replaces such affected Supplier Product with a functionally equivalent Supplier Product as soon as commercially practicable.

(h) Use of Supplier Marks and Trade Names.

OEM is authorized to use the Supplier Marks applicable to Supplier Products acquired under this Agreement in connection with its marketing of Bundled Products/Services, but only in accordance with Supplier's then current trademark usage policies and only during the term of this Agreement. OEM is not authorized to use any Supplier Trade Names without the prior written consent of Supplier. Upon the Expiration Date or termination of this Agreement, OEM agrees to cease all display, advertising and use of any and all Supplier Trade Names and Marks. OEM agrees not to alter, erase or overprint any notice provided by Supplier and not to attach any additional trademarks without the prior written consent of Supplier or affix any Supplier Marks to any non-Supplier product. OEM recognizes Supplier's ownership and title to the Trade Names and Marks and the goodwill attaching to the Trade Names and Marks. OEM agrees that any goodwill that accrues because of its use of the Trade Names and Marks shall inure to the benefit of Supplier. OEM agrees not to contest Supplier's Marks or Trade Names, or to make application for registration of any Supplier Marks or Trade Names without Supplier's prior written consent. OEM agrees not to use, employ or attempt to register any trademarks or Trade Names that are confusingly similar to Supplier's Marks or Trade Names.

(i) End User Satisfaction.

The Supplier Products marketed by OEM under this Agreement are technically complex and require high-quality, individualized pre-marketing and post-marketing support. This support is necessary to achieve and maintain high End User satisfaction. OEM agrees that high End User satisfaction is a condition of its continued authorization by Supplier. Although Supplier has granted OEM a worldwide license to market and sell Supplier Products under the terms of this Agreement, OEM agrees that it will not market and sell Supplier Products in areas where it does not have the ability to support the Supplier Products. In addition, in order to help ensure high End User satisfaction, OEM agrees:

· To report to Supplier promptly and in writing all suspected and actual problems with any Supplier Product;

· To maintain a shipment report identifying the Distributor, Reseller, or End User the Supplier Product sold, the date of sale, and the quantities of the Supplier Products sold;

· To retain all shipment reports for three (3) years after the date of sale, and assist Supplier, upon request, in tracing a product to an Distributor, Reseller, or End User in distributing critical product information, in locating a Supplier Product for safety reasons, or in discovering unauthorized marketing or infringing acts;

· To conduct business in a manner that reflects favorably at all times on the products, goodwill and reputation of Supplier;

· To avoid deceptive, misleading or unethical practices that are or might be detrimental to Supplier or the Supplier Products;

· To refrain from making any false or misleading representations with regard to Supplier or the Supplier Products;

· To refrain from making any representations, warranties or guarantees to customers with respect to the specifications, features or capabilities of the Supplier Products that are inconsistent with the literature distributed by Supplier; and

· To the extent required by Supplier, OEM agrees not to market OEM Products with Supplier Products, until the OEM Products have been tested and approved by Supplier or its authorized representatives.

6. FEES AND PAYMENT.

(a) Royalty and License Fees.

As license fees for the rights herein granted, OEM shall pay to Supplier royalties on OEM sales and related licensing or sublicensing of product incorporating or bundled with Supplier Products at the rates and on the terms and subject to the exceptions and options specified in Exhibit A hereto. Royalties shall accrue in the applicable corresponding quantity upon: (a) the initial date of OEM's Internal Use of a Supplier Product; (b) distribution by OEM of a copy of a Supplier Product to a Distributor, Reseller or End User; (c) authorization by OEM to increase the authorized number of copies; or (d) the initial date of OEM's internal use or shipment by OEM to a Distributor, Reseller, or End User of an Update. OEM shall pay Supplier such license fees accrued during each month, together with any maintenance fees, within thirty (30) days following the end of such month. Payment for the last month of each calendar quarter shall be accompanied by a monthly report as described in Section e below.

(b) Service Fees.

OEM shall pay to Supplier the service fees set forth in Exhibit A for maintenance and support services described in Exhibit B hereto.

(c) Financial Information and Payment.

OEM agrees to maintain good financial standing with Supplier. At Supplier's request, OEM agrees to provide to Supplier financial information and evidence of financial security as reasonably required by Supplier. All payments shall be made in United States dollars, at Supplier's option, (i) at Supplier's address as indicated in this Agreement or at such other address as Supplier may from time to time indicate by proper notice hereunder or (ii) by wire transfer to a bank and account number designated by Supplier. Balances of all invoices not paid when due will accrue interest at the rate of 1-1/2% per month (18% annually) (or, if less, at the maximum rate allowed by law) calculated from the date due until paid.

(d) Taxes.

Prices are exclusive of all applicable taxes. OEM agrees to pay all taxes associated with the marketing, sublicensing, distribution and transfer of Supplier Products ordered under this Agreement, including but not limited to sales, use, excise, added value and similar taxes and all customs, duties or governmental impositions, but excluding taxes on Supplier's net income. Any tax or duty Supplier may be required to collect or pay upon the marketing or transfer of the Supplier Products shall be paid by OEM, and such sums shall be due and payable to Supplier upon delivery. If OEM claims a tax exemption, OEM must provide Supplier with valid tax exemption certificates.

(e) Point of Sale Reports.

OEM agrees to provide Supplier, by no later than thirty (30) calendar days after the end of each quarter, a Point of Sale report for the previous calendar quarter. "Point of Sale Report" means, for purposes of this Agreement, a report provided by OEM to Supplier that is in a Supplier-specified format and that includes, among other things, (i) a list of Supplier Products sold, (ii) the regional designation required by Supplier and (iii) the part numbers of the Supplier Products sold. The Point of Sale Report may only be used by Supplier to provide compensation to Supplier's sales force and to concentrate marketing activities to promote greater sales.

(f) Records Examinations.

OEM agrees to allow Supplier to examine its records to determine compliance or noncompliance with this Agreement. Any examination will be conducted only by an authorized representative of Supplier, and will occur during regular business hours at OEM's offices and will not interfere unreasonably with OEM's business activities. Examinations will be made no more frequently than quarterly, and Supplier will give OEM fifteen (15) business days or more prior written notice of the date of the examination and the name of Supplier's authorized representative who will be conducting the examination. The audit will be conducted at Supplier's expense unless the results of such audit establish that inaccuracies in the quarterly reports have resulted in underpayment to Supplier of more than (5%) of the amount due in any quarter, in which case OEM shall pay all amounts due and bear the expenses of the audit. All information obtained by Supplier's authorized representative conducting the audit will be maintained confidential by the representative. The examiner will give OEM and Supplier an examination report containing only the information necessary to indicate compliance or non-compliance with this Agreement.

7. INTELLECTUAL PROPERTY RIGHTS & INDEMNIFICATION.

(a) Indemnification.

Supplier agrees to indemnify, defend and hold OEM harmless from any and all damages, liabilities, costs and expenses incurred by OEM as a result of any claim, judgment or adjudication against OEM that provides that the Supplier Products, Trade Names or the Marks appropriately used by OEM in connection with marketing the Supplier Products infringe any U.S. trademark, U.S. copyright or U.S. patent of any third party, provided: (i) OEM promptly notifies Supplier in writing of the claim; (ii) Distributor agrees that Supplier will have the sole control of the defense of any action and all negotiations for settlement and compromise; and (iii) OEM provides Supplier with the assistance, information and authority necessary to perform the above. If OEM desires to have separate legal representation in any such action, OEM shall be responsible for the costs and fees of its separate counsel. In no event shall Supplier's liability to OEM under this section exceed the total amounts paid to Supplier by OEM hereunder.

(b) Actual or Potential Product Infringement.

Should the Supplier Products, or the operation of the Supplier Products, become, or in Supplier's opinion be likely to become, the subject of infringement of any U.S. trademark, U.S. copyright or U.S. patent, OEM agrees to permit Supplier, at its option and expense to procure for OEM the right to continue using the Supplier Products or, if possible and commercially reasonable to do so, to replace or modify them so that they become non-infringing. Supplier shall have no liability for infringement based on (a) use of other than the current release of the Licensed Products, or (b) modification of the Products by any party other than Supplier, or the combination or use of the Licensed Products with any other computer program, equipment, product, device, item or process not furnished by Supplier, if such infringement would have been avoided by the use of the Licensed Products alone and in their current unmodified form.

(c) Disclaimer.

THE ABOVE STATES THE ENTIRE LIABILITY OF SUPPLIER WITH RESPECT TO INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADEMARKS OR ANY OTHER FORM OF INTELLECTUAL PROPERTY RIGHT BY ANY PRODUCT SUPPLIED BY SUPPLIER.

(d) Proprietary Nature of Products and Ownership.

No title to or ownership of software acquired under this Agreement or proprietary technology in hardware acquired under this Agreement is transferred to OEM. Notwithstanding any provision of this Agreement to the contrary, Supplier, or the licensor through which Supplier obtained the rights to distribute the Supplier Products, owns and retains all title and ownership of all intellectual property rights in the Supplier Products, including all software, firmware, software master diskettes, copies of software, master diskettes, documentation and related materials that are acquired, produced or shipped by Supplier under this Agreement, and all modifications to and derivative works of software acquired under this Agreement that are made by OEM, Supplier or any third party. Supplier does not transfer any portion of such title and ownership, or any of the associated goodwill, to OEM, and this Agreement shall not be construed to grant OEM any right or license, whether by implication, estoppel or otherwise, except as expressly provided. OEM agrees to be bound by and observe the proprietary nature of the Supplier Products acquired under this Agreement. OEM agrees to take appropriate action by instruction or agreement with its employees, agents, and contractors who are permitted access to the Supplier Products to fulfill OEM's obligations under this Agreement. Except as set forth in this Agreement, or as may be permitted in writing by Supplier, OEM agrees not to provide Supplier Products or any part or copies thereof to any third party without the prior written consent of Supplier.

8. CONFIDENTIAL INFORMATION.

The parties agree that any Confidential Information provided under this Agreement shall be held and maintained in strict confidence. Each party agrees to protect the confidentiality of such information in a manner consistent with the way a reasonable person would protect similar Confidential Information. "Confidential Information" means the information and materials noticed or marked by Supplier or OEM as confidential and proprietary. "Confidential Information" does not include information that (i) is already known to the receiving party at the time it is disclosed and has not been obtained wrongfully, (ii) becomes publicly known without fault of the receiving party, (iii) is independently developed by the receiving party, (iv) is approved for release in writing by the disclosing party, (v) is disclosed without restriction by the disclosing party to a third party, or (vi) is disclosed pursuant to legal obligations beyond the control of the disclosing and receiving parties.

9. WARRANTIES.

(a) Statements of Limited Warranty.

Supplier provides, to End Users only, warranties for software in the Software License Agreement that accompanies each software product. Each Supplier Statement of Limited Warranty and each Software License Agreement distributed with the Supplier Products is incorporated into this Agreement by reference. Supplier extends the warranties contained in the applicable Statement of Limited Warranty or Software License Agreement through OEM to End Users. OEM is responsible to provide, or cause to be provided, a copy of the applicable Statement of Limited Warranty or Software License Agreement to End Users for their review at the time of installation. Supplier does not warrant non-Supplier products. They are provided by Supplier on an "AS IS" basis. Any warranty service for non-Supplier products will be provided by the manufacturer of the products in accordance with the applicable manufacturer's warranty.

(b) Warranty Representations.

OEM is not authorized to make any warranty commitment on Supplier's behalf, whether written or oral, other than those contained in the applicable Statement of Limited Warranty or Software License Agreement. Supplier may authorize OEM to market Supplier Products for which warranty service is provided by (1) OEM, (2) Supplier, (3) a Supplier selected third party, (4) the manufacturer of a non-Supplier product, or (5) some combination of these providers of warranty service.

(c) Warranty Service Responsibilities.

OEM agrees to validate, or cause to be validated, all warranty claims presented to OEM, and maintain the capability to provide reasonable warranty services upon request by Supplier.

10. LIMITATION OF WARRANTIES.

THE WARRANTIES DESCRIBED IN THE APPLICABLE SUPPLIER STATEMENT OF LIMITED WARRANTY OR SOFTWARE LICENSE AGREEMENT AND SECTION 10 ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

11. LIMITATION OF REMEDIES.

SUPPLIER'S ENTIRE LIABILITY AND OEM's EXCLUSIVE REMEDY FOR ANY CLAIMS CONCERNING THIS AGREEMENT AND SUPPLIER PRODUCTS ACQUIRED UNDER THIS AGREEMENT ARE SET FORTH IN THIS SECTION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER SUPPLIER NOR OEM WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) SUSTAINED OR INCURRED IN CONNECTION WITH THIS AGREEMENT AND THE SUPPLIER PRODUCTS THAT ARE SUBJECT TO THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.

(a) Software.

Supplier's liability and OEM's exclusive remedy for software acquired under this Agreement are set forth in the applicable Software License Agreement. The Software License Agreement that applies is the Software License Agreement in effect at the time when the event occurs that causes the damage.

(b) Third Party Claims.

Supplier will not be liable for any claim by OEM based on any third party claim, except as stated in Sections 8 and 10 of this Agreement.

(c) Aggregate Liability.

Supplier's liability for direct damages to OEM for any cause whatsoever, except as otherwise stated in this Section, and regardless of the form of action, shall not exceed the amount received by Supplier from OEM during the previous twelve (12) months for the Supplier product giving rise to such claim. This limitation does not apply to the payment of the costs, damages and attorney's fees referred to in Sections 8.a and 13.g, or to claims by OEM for personal injury or damage to real property or tangible personal property caused by Supplier's negligence.

12. TERMINATION.

(a) Termination for Cause.

Either party may terminate this Agreement for the substantial breach by the other party of a material term. The terminating party will first give the other party written notice of the breach and a reasonable period of at least thirty (30) days in which to cure the alleged breach. If a cure is not achieved during the cure period, then the non-breaching party may terminate this Agreement upon written notice.

(b) Termination by Supplier.

Supplier may terminate this Agreement if OEM fails to meet its payment obligations under this Agreement and this failure continues for ten (10) days following receipt of written notice from Supplier.

(c) Insolvency, Assignment, or Bankruptcy.

Either party may terminate this Agreement upon written notice to the other party if the other party (i) is not paying its debts as such debts generally become due, (ii) becomes insolvent, (iii) files or has filed against it a petition (or other document) under any Bankruptcy Law or similar law that is unresolved within sixty (60) days of the filing of such petition (or document), (iv) proposes any dissolution, liquidation, composition, financial reorganization or recapitalization with creditors, (v) makes a general assignment or trust mortgage for the benefit of creditors, or (vi) if a receiver, trustee, custodian or similar agent is appointed or takes possession of any of its property or business.

(d) Acceleration of Payment.

Upon termination of this Agreement by Supplier under Section 13.a, 13.b or 13.c, the due dates of all outstanding invoices to OEM for Supplier Products will automatically be accelerated so that they become due and payable on the effective date of termination, even if longer terms had been provided previously.

(e) Effect of Termination on Obligations.

Termination of this Agreement will not affect any pre-termination obligations of either party under this Agreement, and any termination is without prejudice to the enforcement of any undischarged obligations existing at the time of termination. Regardless of any other provision of this Agreement, Supplier will not by reason of the termination of this Agreement be liable for compensation, reimbursement, or damages on account of the loss of prospective profits on anticipated sales, or on account of expenditures, investments, leases, or commitments in connection with OEM's business or goodwill, or otherwise. Within thirty (30) calendar days after termination of this Agreement, Licensee shall either deliver to Supplier or destroy all copies of Supplier Products and Documentation and any other materials provided by Supplier to Licensee hereunder in its possession or under its control, and shall furnish to Supplier an affidavit signed by an officer of Licensee certifying that, to the best of its knowledge, such delivery or destruction has been fully effected. Notwithstanding the foregoing, and provided Licensee fulfills its obligations specified in this Agreement with respect to such items, Licensee may continue to use and retain copies of the Supplier Products and Documentation to the extent, but only to the extent, necessary to support and maintain Supplier Products rightfully distributed to End Users by Licensee prior to termination of this Agreement.

13. GENERAL PROVISIONS.

(a) Force Majeure.

If either party is prevented from performing any portion of this Agreement (except the payment of money) by causes beyond its control, including labor disputes, civil commotion, war, governmental regulations or controls, casualty, inability to obtain materials or services or acts of God, such defaulting party will be excused from performance for the period of the delay and for a reasonable time thereafter.

(b) Jurisdiction.

This Agreement will in all respects be governed by and construed in accordance with the laws of the State of Utah of the United States of America, and will not be construed in accordance with or governed by the United Nations Convention for International Sales of Goods.

(c) Survival of Terms.

The provisions of this Agreement that by their nature extend beyond the Expiration Date or other termination of this Agreement will survive and remain in effect until all obligations are satisfied. Confidentiality provisions of Section 9. shall remain in effect until the Confidential Information is no longer Confidential.

(d) Waiver.

No waiver of any right or remedy on one occasion by either party will be deemed a waiver of that right or remedy on any other occasion.

(e) Superior Agreement.

This Agreement will not be supplemented or modified by any course of dealing or usage of trade. Variance from or addition to the terms and conditions of this Agreement in any purchase order or other written notification from OEM will be of no effect, unless otherwise expressly provided for in this Agreement. This Agreement may be amended or modified only by a writing signed by each party.

(f) Assignment.

This Agreement is not assignable by OEM, in whole or in part, without Supplier's prior written consent. Notwithstanding, Supplier will not unreasonably withhold consent to an assignment of this Agreement or any part of this Agreement to a parent, subsidiary or affiliate. Any attempted assignment without Supplier's written consent will be null and void.

(g) Attorneys' Fees.

Each party agrees to pay the other's reasonable attorneys' fees and costs of litigation if the original party, for any cause whatsoever, brings suit against the other party and the other party is finally adjudicated not to have liability.

(h) Notice.

Unless otherwise agreed to by the parties, all notices required under this Agreement (except those relating to product pricing, changes and upgrades) will be deemed effective when received and made in writing by either (i) registered mail, (ii) certified mail, return receipt requested, (iii) overnight mail, addressed and sent to the address indicated in the Composite Signature Agreement and to the attention of the party executing this Agreement or that person's successor, or (iv) by telephone facsimile transfer appropriately directed to the attention of the party executing this Agreement or that person's successor.

(i) Severability.

If any term, provision, covenant or condition of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect as if this Agreement had been executed with the invalid portion eliminated. The parties further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision.

(j) Independent Contractors.

Each party acknowledges that the parties to this Agreement are independent contractors and that it will not, except in accordance with this Agreement, represent itself as an agent or legal representative of the other.

(k) Compliance with Laws.

OEM represents and warrants that all consents of governmental officials necessary for this Agreement to become effective have been obtained, or will be obtained, before OEM distributes any Supplier Products under this Agreement. OEM will comply, at its own expense, with all statutes, regulations, rules, ordinances, and orders of any governmental body, department or agency that apply to or result from OEM's obligations under this Agreement. OEM agrees to not export Supplier Products, directly or indirectly, separately or as part of a system, without first obtaining proper authority to do so from the appropriate governmental agencies or entities, as may be required by law. In particular, OEM assures Supplier that, absent any required prior authorization from the Office of Export Licensing, U.S. Department of Commerce, 14th and Constitution Avenue, Washington, D.C. 20230, OEM will not export or reexport (as defined in Section 779 of the Export Administration Regulations, as amended ("Regulations")) the Supplier Products, any technical data or other confidential information, or direct product of any of the foregoing, to Afghanistan, Iraq, Iran, Syria, the People's Republic of China, Yugoslavia, or any Group Q, S, W, Y, or Z country specified in Supplement No. 1 to Section 770 of the Regulations.

(l) Government Rights.

OEM agrees (i) to identify the Supplier Products in all proposals and agreements with the United States Government or any contractor for the United States Government; and (ii) to identify or to mark the software products provided pursuant to any agreement with the United States Government or any contractor for the United States Government as necessary to obtain protection substantially equivalent to that afforded commercial computer software and related documentation developed at private expense and provided with Restricted Rights as defined in DOD FAR Supplement 48 C.F.R. 252.227-7013(c)(1)(ii) in effect as of May 18, 1987 or any successor regulation.

(m) Headings.

The headings provided in this Agreement are for convenience only and will not be used in interpreting or construing this Agreement.

SIGNATURES

Executed as of the date first above written.

SUPPLIER:

________________________

(name of organization)


By _____________________

Name:

Title:

Address:

OEM:

________________________

(name of organization)


By _____________________

Name:

Title:

Address:

Pro-Supplier OEM Agreement Exhibit A

Pro Supplier OEM Agreement Exhibit B

Pro Supplier OEM Agreement Exhibit C

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