Exhibit 10.23


 




[***] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 OF THE SECURITIES EXCHANGE ACT OF 1933, AS AMENDED. 




 


	
  [GRAPHIC]

  	
  VERITAS Solutions Provider
  Agreement

  
	
  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 350 Ellis Street, Mountain
View, CA 94043, (“VERITAS”) and STRATEGIC TECHNOLOGIES, a NORTH CAROLINA corporation,
having a place of business
at 301 GREGSON DRIVE CARY, NC 27511 (“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

version (03.20.02)




1

















 


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 mark 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 B, or terminate
this Agreement in accordance with the provisions of Section 10 (“Termination”).


(d)                    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 (03.20.02)




2

















 


(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

version (03.20.02)




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 PROVIDER’S 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

version (03.20.02)




4

















 


(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 of 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 Restricted Rights. The
Software and User Documentation are deemed to be “commercial computer software”
and “commercial computer software documentation”, respectively, as defined in
DFARS Section 227.7202 and FAR Section 12.212, or their successor provisions,
as applicable. Solutions Provider may resell the Product, Support and
Professional Services to the United States federal government (“U.S.
Government”) if it has executed a GSA Schedule Sales Addendum to its LSA or
DSA, as applicable. Any use, modification, reproduction release, performance,
display or disclosure of the Software and User Documentation by the U.S.
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 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 Clara 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 (03.20.02)




5

















 


ATTACHMENTS


 


	
  EXHIBIT A:

  	
   

  	
  PRODUCTS

  
	
  EXHIBIT B:

  	
   

  	
  PROGRAM REQUIREMENTS, PROGRAM BENEFITS AND TERMS

  
	
  EXHIBIT C:

  	
   

  	
  vLICENSE (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 PROVIDER: STRATEGIC TECHNOLOGIES

  
	
  By: 

  	
  

  /s/ John F. Brigden

  	
   

  	
  By: 

  	
  

  /s/ Pat Allen

  
	
  Name: 

  	
  JOHN F. BRIGDEN

  	
   

  	
  Name: 

  	
  PAT ALLEN

  
	
  Title: 

  	
  Vice President and General
  Counsel

  	
   

  	
  Title: 

  	
  VICE PRESIDENT & GENL
  MANAGER

  
	
  Date

  Signed:

  	
  6-1-02

  	
   

  	
  Date

  Signed:

  	
  4/4/02

  



[STAMP]


 


VERITAS Solutions
Provider Agreement

version (03.20.02)




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 B, 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:


 


	
  Street Address

  	
  City, State/Province
  & Postal Code

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


Attach
additional sheets as necessary


(c)       Volume and Reporting.




•                             Annual
Sales Target. Commit to and fulfill an Annual Sales Target of [***].
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 twenty-percent (20%) 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


3.                         NON-COMPLIANCE
WITH PROGRAM REQUIREMENTS. If Solutions Provider does not meet and maintain
compliance with these Program Requirements, then VERITAS may at its sols
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.


4.                       PROGRAM
BENEFITS. [***]


(a)                    [***]


•                             [***]


•                             [***]


•                            [***]


•                            [***]


•                            [***]


•                            [***]


 


Enterprise Authorized
Elite


 

















 


For use with
Enterprise Authorized ELITE Solutions Providers only.


(b)                   [***]


•                             [***]


•                             [***]


•                             [***]


•                             [***]


•                             [***]


•                             [***]


•                             [***]


•                             [***]


•                             [***]


•                             [***]


•                             [***]


(c)                    [***]


•                             [***]


•                             [***]


(d)                   [***]


•                             [***]


•                             [***]


(e)                    [***]


•                             [***]


•                             [***]


•                             [***]


•                             [***]


(f)                      [***]


AGREED AND ACCEPTED as of April 1, 2002:


 


	
  VERITAS
  SOFTWARE GLOBAL CORPORATION

  	
   

  	
  SOLUTIONS
  PROVIDER

  	
  STRATEGIC
  TECHNOLOGIES

  
	
  By: 

  	
  

  /s/ John F. Brigden

  	
   

  	
  By: 

  	
  

  /s/ Pat Allen

  
	
  Name:

  	
  JOHN F. BRIGDEN

  	
   

  	
  Name:

  	
  PAT ALLEN

  
	
  Title:

  	
  Vice President and General
  Counsel

  	
   

  	
  Title:

  	
  VICE PRESIDENT & GENL
  MANAGER

  
	
  Date

  Signed:

  	
  6-1-02

  	
   

  	
  Date

  Signed: 

  	
  4/4/02

  
						



[STAMP]


 


Enterprise Authorized
Elite


 

















 


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 vLicensesm, our new online licensing application, at http://vlicense.veritas.com.
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:


VERITAS Licensing Department at 925-931-2487


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: 925-931-2464 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 -i for HPUX). Do not
provide host name, it is not recorded.


System Model: ______________________________(PLEASE PRINT 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 GE Access 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: STRATEGIC TECHNOLOGIES

  
	
  By:

  	
  

  /s/ John F. Brigden

  	
   

  	
  By:

  	
  

  /s/ Pat Allen

  
	
  Name:

  	
  JOHN F. BRIGDEN

  	
   

  	
  Name:

  	
  PAT ALLEN

  
	
  Title:

  	
  Vice President and General
  Counsel

  	
   

  	
  Title:

  	
  Vice President & GENL
  MANAGER

  
	
  Date

  Signed:

  	
  6-1-02

  	
   

  	
  Date

  Signed:

  	
  4/4/02

  



 


	
  [STAMP]

  	
  Enterprise Authorized Elite

  



 

















FOR
USE WITH U.S. ELITE OR PREMIER VPP SOLUTIONS PROVIDERS ONLY


 


	
  [GRAPHIC]

  	
  Amendment to Solutions Provider
  Agreement

  (Renewals/Direct Sourcing)

  Authorization No. 20050121 — 09E

  



 


This AMENDMENT TO SOLUTIONS PROVIDER AGREEMENT (“Amendment”)
supplements the terms of the VERITAS Solutions Provider Agreement in affect as
of the Effective Date, by and between VERITAS Software Global LLC (or its
predecessor VERITAS Software Global Corporation) and the Solutions Provider
named below (“Agreement”). The effective date of this Amendment (“Effective
Date”) is the date of the last party’s signature below. All capitalized
terms not otherwise defined in this Amendment shall have the meanings given in
the Agreement, including its attachments and/or the terms of then-current
Program Guide incorporated by reference into such Agreement. In the event of
conflict between the express terms of this Amendment and the Agreement, this
Amendment shall prevail.


1 DEFINITIONS.


1.1 “Renewal
Support” means a renewal period of VERITAS Extended or VERITAS
Basic levels of Support, other than the initial period of Support.


1.2 “Quote” means
a VERITAS’ price quotation provided to an End User for Renewal Support of such
End User’s Software licenses.


2. AUTHORIZATION. Subject to
the terms and conditions herein, VERITAS grants Solutions Provider the
non-exclusive, non-transferable, right to distribute the Renewal Support in the
Territory, for Enterprise Products as indicated by VERITAS from time to time.
This authorization shall apply only during the period during which Solutions
Reseller maintains status as either an Elite or Premier level partner in the
VERITAS Partner Program.


3. INDEPENDENCE OF ACTION.


3.1  VERITAS
Quotes. Solutions Provider understands that End Users retain the
absolute right to choose from whom they will source their Renewal Support.
VERITAS typically provides Quotes directly to End Users. If an End User wishes
to obtain Renewal Support from Solutions Provider, and/or to have Solutions
Provider otherwise involved in managing the End User’s Renewal Support subscriptions,
then the End User must notify VERITAS directly and in writing to request
release of its renewal information to Solutions Provider, via VERITAS’
then-current notification process. Only after receipt of such direct End User
request will VERITAS disclose the End User’s installed base renewal information
and Quotes to Solutions Provider. Solutions Provider acknowledges that the End
User may revoke its authorization at any time. For evidence of doubt, any
renewal periods of Support for which a price has already been contractually
determined between VERITAS and an End User, such as Site License renewal years,
are not “Renewal Support” which Solutions Provider can resell under this
Amendment.


3.2 Deadline for
Renewal. If the End User authorizes disclosure of its installed
base renewal Information/Quotes to Solutions Provider, Solutions Provider will
make all commercially-reasonable efforts to sell the End User Renewal Support
before the expiration of the End User’s applicable subscription for initial
term Support. Solutions Provider understands, however, that the primary
objective for both VERITAS and Solutions Provider is to assure that the End
User remains current on Renewal Support. Therefore, VERITAS reserves the right
to sell such Renewal Support directly to the End User in the following cases:


(a) where the End User indicates a preference to
source directly; or the later of either


(b) where Solutions Provider was involved in proposing
the End User’s Support Renewal, before the initial Support term expires, but
Solutions Provider does not sell such Renewal Support within 30 calendar days
following such Support subscription’s expiration, or


(c) where Solutions Provider becomes involved after
the End User’s initial term Support subscription has already lapsed or is
imminently about to lapse, but Solutions Provider does not sell such Renewal
Support within 30 days following expiration of VERITAS’ renewal Quote.


In any event, Solutions Provider understands that its price to acquire
Support Renewals for resale will at VERITAS’ discretion include fees for any
back-support and/or re-instatement fees due, if any, under VERITAS’
then-current technical support policies and (if applicable) contract with such
End User.


4. ORDER AND DELIVERY.


4.1 Orders.
Orders shall be placed to the ordering address indicated by VERITAS from time
to time, using an order form (purchase order) in a form reasonably acceptable
to VERITAS using sufficient detail to enable VERITAS to accept and accurately
fulfill the order. At minimum, each such Solutions Provider order shall include
the End User’s name and delivery street address, shall reference the Quote
number, and shall otherwise comply with VERITAS’ then-current Order Booking
requirements, as published to Solutions Provider from time to time. VERITAS
shall use reasonable efforts to promptly deliver accepted orders, but shall not
be liable to Solutions Provider or to any other person for damages arising from
VERITAS’ failure, delay or error in filling or delivering any orders,


 


	
  Amendment to Solutions Provider Agreement (U.S.
  Direct Renewals)

  	
  VERITAS Confidential

  	
   

  



 


1

















 


FOR USE WITH U.S. ELITE OR PREMIER VPP SOLUTIONS PROVIDERS
ONLY


for any reason whatsoever:


4.2 Delivery.
Delivery of all items shall be F.O.B. VERITAS’ manufacturing facility from
which the Software is shipped. All shipments will be made subject to credit
approval.


5. FEES AND PAYMENT.


5.1 Fees.
[***]


5.2 Payment.
Solutions Provider will pay for Renewal Support fees in U.S. dollars within
thirty (30) days from the date of invoice. This payment obligation is
non-cancelable and any sums when paid will be non-refundable. Solutions
Provider is responsible for all taxes or duties for Renewal Support provided
under this Amendment, excluding taxes based on VERITAS’ net income. Fees due
from Solutions Provider shall not be subject to set off for any claims against
VERITAS or any returns. Any amounts payable by Solutions Partner hereunder
which remain unpaid thirty days after date of invoice shall be subject to a
late charge equal to one percent (1 1/2%) per month or the highest rate
permissible by law on the unpaid balance until paid in full. In addition, if
Solutions Provider is overdue on any payments to VERITAS hereunder, VERITAS
reserves the right upon five (5) days prior notice to suspend the fulfillment
of all or part of accepted but undelivered Product orders.


6. CREDIT AND TAXES.


6.1 Credit and
Credit References. VERITAS reserves the right to terminate or
modify the terms of credit when, at its sole discretion, VERITAS believes that
its payments may be at risk. Upon signature of this Amendment and at the
beginning of each renewal year, Solutions Provider will deliver to VERITAS
three (3) of Solutions Provider’s trade references and its primary bank
reference, which VERITAS agrees to keep in confidence as Solutions Provider’s
confidential information under the Agreement.


6.2 Taxes and
Duties. Solutions Provider is responsible, in addition to any
payments due under this Agreement, for all taxes, customs duties, import fees
or other similar charges, and all other mandatory payments to government
entities imposed with respect to the Renewal Support provided under this
Amendment, excluding tax imposed on VERITAS’ net income and withholding taxes
(subject to the condition of providing withholding tax payment receipts, as
further described in this provision). VERITAS shall bill applicable taxes as a
separate item on Solutions Provider’s invoices; taxes are not included in the
purchase price. If a transaction is exempt from tax, Solutions Provider shall
provide VERITAS with a valid exemption certificate or other evidence of such
exemption in a form acceptable to VERITAS. If Solutions Provider is required by
law to withhold any tax from a payment, Solutions Provider shall provide to
VERITAS original or certified copies of all tax payment receipts or other
evidence of payment of taxes by Solutions Provider with respect to such
transactions. If Solutions Provider fails to provide VERITAS with such tax payment
receipts, if applicable, then Solutions Provider shall reimburse for any fines,
penalties, taxes and other governmental agency charges resulting from such
failure.


IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their authorized representatives as of the date of last signature
below (“Effective Date”)


 


	
  Accepted by:

  	
   

  	
  Executed
  by: SOLUTIONS PROVIDER

  
	
   

  	
   

  	
  STRATEGIC
  TECHNOLOGIES INC.

  
	
  VERITAS
  SOFTWARE GLOBAL LLC

  	
   

  	
  [print
  company name]:

  
	
  By: 

  	
  

  /s/ Edward Malysz

  	
   

  	
  By: 

  	
  

  /s/ L. Garnett

  
	
  Name: 

  	
  Edward Malysz

  	
   

  	
  Name: 

  	
  L. Garnett

  
	
  Title: 

  	
  Assistant Secretary

  	
   

  	
  Title: 

  	
  DIRECTOR, BUSINESS
  OPERATIONS

  
	
  Signed:

  	
  1/27/05

  	
   

  	
  Signed:

  	
  JANUARY 20, 2005

  
							



[STAMP]


 


	
  Amendment to Solutions Provider Agreement (U.S.
  Direct Renewals)

  	
  VERITAS Confidential

  	
   

  



 


2