Exhibit
10.25


 


GENERAL
TERMS


 


Company
Name: Archipelago Holdings, LLC.


General Terms Reference No:  AR-73976


 


These
Sun Terms and Conditions (“General Terms”) are made as of 2/1/03 (“Effective
Date”) between SUN MICROSYSTEMS, INC., a Delaware corporation with its address
at 901 San Antonio Road, Palo Alto, CA 94303 and Archipelago Holdings, L.L.C.
with its address at 100 S. Wacker Drive, Suite 2000, Chicago, Illinois 60606.


 


1                                 INTERPRETATION


 


The
purpose of the General Terms is to create a single mechanism under which
Archipelago Holdings, LLC and its Affiliated Companies (“Company”) may form
purchasing or other Agreements with Sun Microsystems, Inc. and its Affiliated
Companies (“Sun”).


 


1.1                                 In the General Terms:


“Affiliated
Company” means, in
relation to either party, any entity: (a) which is owned 50% or more by that
party; or (b) over which that party exercises management control; or (c) which
is under common control with that party; or (d) which owns 50% or more of that
party;


“Agreement” means each agreement entered into under the
General Terms, comprising the General Terms and an exhibit executed by Sun and
Company referencing the General Terms:


“Confidential
Information” means
any information disclosed by one party to another under any agreement which is
prior to or at the time of disclosure, identified in writing as confidential or
proprietary, and includes Company’s business plans, hardware configuration,
customer lists, data software, and architecture;


“Equipment”
means the hardware
(including components), software media and spare parts listed in the standard
product price lists published by Sun from time to time;


“Exhibit” means any exhibit to the General Terms as
executed by the parties from time to time;


“IPR” means intellectual property rights, including
patents, trademarks, design rights, copyrights, database rights, trade secrets
and all rights of an equivalent nature anywhere in the world;


“Products” means Equipment or Software:


“Services” means the services described in any service
Listing or SOW;


“Service
Listing” means any
offering in Sun’s Enterprise Services Service List, which is located at
http://www.sun.com/service/servicelist (a hard copy of each of which will be
made available to Company on request), together with such other standard service
offerings as the parties may agree from time to time; “SOW” means any statement
of work relating to Services;


“Software” means (i) any binary software programs listed
in the standard price lists published by Sun from time to time, (ii) any
updates, and (iii) any related user manuals or other documentation;


“Sun
Trademarks” means all
names, marks, logos, designs, trade dress and other brand designations used by
Sun in connection with Products and Services;


“Updates” means subsequent releases and error corrections
for Software previously licensed, as listed in the standard price lists
published by Sun from time to time.


 

















 


2                                          CONFIDENTAIL INFORMATION


 


2.1                                 A party receiving Confidential Information
(“the Recipient”) may use it only for the purposes for which it was provided
under the agreement.  Confidential
Information may be disclosed only to employees or contractors obligated to the
Recipient under similar confidentiality restrictions in each case only for the
purposes for which it was provided under the relevant Agreement


 


2.2                                 The Obligations of section 2.1 do not
apply to information which:


(a)            is
rightfully obtained by the Recipient without breach of any obligation to
maintain its confidentiality;


(b)           is
or becomes known to the public through no act or omission of the Recipient;


(c)            The
Recipient develops independently without using Confidential Information of the
other party; or


(d)           Is
disclosed in response to a valid court or governmental order, if the Recipient
has given the other party prior written notice and provides reasonable
assistance so as to afford it the opportunity to object.


 


3                                          RESTRICTED ACTIVITIES


 


3.1                                 Export
laws.  Products, Services and technical data
delivered by Sun may be subject to US export controls or the trade laws of
other countries.  Company will comply
with all such laws and obtain all licenses to export, re-export or import as
may be required after delivery to Company. 
Company will not export or re-export to entities on the most current
U.S. export exclusion lists or to any country subject to U.S. embargo or
terrorist controls as specified in the U.S. export laws.  Company will not use or provide Products,
Services, or technical data for nuclear, missile, or chemical biological weaponry
end uses.


 


3.2                                 Nuclear
applications.  Company acknowledges that Products and
Services are not designed or intended for use in the design, construction,
operation or maintenance of any nuclear facility.


 


4                                          SUN TRADEMARKS


 


4.1                                 Company may refer to Products and Services by
their associated names, provided that such reference is not misleading and
complies with Sun’s Trademark and Logo Policies, which are found at
http://www.sun.com/policies/trademarks


 


4.2                                 Company may not remove or alter any Sun
Trademarks, nor may it co-logo Products or Services.  Company agrees that any use of Sun Trademarks by Company will
inure to the sole benefit of Sun.


 


4.3                                 Company agrees not to incorporate any Sun
Trademarks into Company’s trademarks, service marks, company names, Internet
addresses, domain names, or any other similar designations.


 

















 


5                                          PUBLICITY


 


Sun
will not publish nor use any advertising, sales promotions, press releases or
other publicity which use Company’s name, logo, trademarks or service marks
without the prior written approval of Company.


 


6                                         INTELLECTUAL PROPERTY CLAIMS


 


6.1                                 Sun (referred to in this Section 6 as
“the Indemnifying Party”) will defend or settle, at its option and expense, any
legal proceeding brought against Company (referred to in this Section 6 as
“the Indemnified Party”) to the extent that it is based on a claim that
materials (which term includes Products) developed and provided by the
Indemnifying Party infringe a third party’s patent, trade secret or
copyright.  The Indemnifying Party will
indemnify the Indemnified Party against all damages and costs attributable
exclusively to such claim awarded by the court finally determining the case,
provided that the Indemnified Party:


(a)            gives
written notice of the claim promptly to the Indemnifying Party;


(b)           gives
the Indemnifying Party sole control of the defense and settlement of the claim;


(c)            provides
to the Indemnifying Party, at the expense of the Indemnifying Party, all
reasonable information and assistance; does not compromise or settle such
claim; and


(d)           is
not in material breach of any accused infringing materials or of Indemnified
Party’s obligations under this Section 6.


 


6.2                                 If such materials are found to infringe, or
in the reasonable opinion of the Indemnifying Party are likely to be the
subject of a claim, the Indemnifying Party will at its option:


 


(a)           obtain
for the Indemnified Party the right to use such materials;


(b)          replace
or modify the materials so they become non-infringing; or


(c)           if
neither (a) nor (b) is reasonably achievable, remove such materials and refund
their net book value (if such materials are found to infringe and Sun cannot
achieve either (a) or (b) within 30 days of such finding or such longer period
of time agreed to by Company, upon Company’s written request, Sun will provide
such refund within 30 days of such written request or such longer period of
time agreed to by Company).


 


6.3                                 The Indemnifying Party has no obligation to
the extent any claim results from:


(a)            use
of materials in combination with any third party equipment, software or data;


(b)           compliance
by the Indemnifying Party with the designs or specifications of the Indemnified
Party;


(c)            modification
of materials other than at the direction of the Indemnifying Party; or


(d)           use
of an allegedly infringing version of the materials, if the alleged
infringement could have been avoided by the use of a different version made
available to the Indemnified Party; [***].


 


6.4                                 This section states the entire liability
of the Indemnifying Party and the exclusive remedies of the Indemnified Party
for claims that materials infringe a third party’s IPR.


 












*** Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.


 

















 


7.                                   LIMITATION OF LIABILITY


 


7.1                                 No limitation
on certain categories of liability.  Each party acknowledges the
full extent of its own liability to the other, arising from:


	
  (a)

  	
   

  	
  Death
  or personal injury resulting from negligent acts or omissions;

  
	
  (b)

  	
   

  	
  breach
  of any applicable license grant;

  
	
  (c)

  	
   

  	
  claims
  for non payment;

  
	
  (d)

  	
   

  	
  Section 6
  (Intellectual Property Claims) and 11.9 (Indemnification); or

  
	
   

  	
   

  	
  [***]

  



 


and the non-excludable statutory rights of consumers (for example,
under laws providing for strict product liability) are not affected.


 


7.2                                 Limitations on
other categories of liability.  Subject to 7.1 above and to the extent not
prohibited by applicable law:


(a)          each
party’s maximum aggregate liability for all claims relating to any Agreement,
whether for breach of contract, breach of warranty or in tort, including
negligence, will be limited to [***]million US dollars (U.S.$[***]) or, in the
case of purchases, to the amount paid to the other party during the previous
twelve (12) months for the product or service which is the subject matter of
the claim up to a maximum of [***]million US dollars ($[***]) ; and


(b)         neither
party will be liable for any indirect, punitive, special, incidental or
consequential damages in connection with or arising out of the General Terms or
any Agreement (including, without limitation, loss of business, revenue,
profits, goodwill, use, data, electronically transmitted orders, or other
economic advantage), however they arise, whether in breach of contract, breach
of warranty or in tort, including negligence, and even if that party has
previously been advised of the possibility of such damages.


 


7.3                                 Failure of
essential purpose.  Liability for damages will be limited and
excluded, even if any exclusive remedy provided for in the Agreement fails of
its essential purpose.


 


8.                                       TERMINATION AND EXPIRATION


 


8.1                                 Termination
for cause.  Either party may terminate the General Terms
or any exhibit immediately by written notice:


(a)            if
the other party commits a non-remediable material breach of the General terms
or Exhibit (as the case may be); or


(b)           if
the other party fails to cure any remediable material breach within thirty (30)
days of being notified in writing of such breach.


 


8.2                                 Termination
without cause.


(a)            Either
party may terminate the General Terms at any time upon expiration of thirty (3)
days’ written notice if no Exhibit is in effect.


(b)           Either
party may terminate any exhibit at any time upon expiration of ninety (90)
days’ written notice.


 


8.3                                 Actions
following termination or expiration.  On termination or expiration
of the General Terms (for whatever reason), all exhibits shall automatically
terminate with immediate effect. 
Following termination or expiration of an Exhibit (for whatever reason),
each party will deliver to the other any property of the other in its
possession or control relating to that Exhibit, in good condition, reasonable
wear and tear excepted.


 












*** Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.


 

















 


8.4                                 Effect of
termination.  Neither party will be liable for any damages
arising out of the termination or expiration of the General Terms or any
exhibit, provided that such termination or expiration will not affect any right
to recover:


(a)           damages
sustained by reason of material breach; or


(b)          any
payments which may be legally owing in respect of any Agreement.


 


9                                          ASSIGNMENT AND SUBCONTRACTING


 


9.1                                 Neither party may assign or otherwise
transfer any of its rights or obligations under the General Terms or any
Exhibit without the prior written consent of the other party, which consent
will not be unreasonably withheld, except that:


(a)           both
parties may assign their right to receive payment; and


(b)          Sun
may use subcontractors in the performance of its obligations, in which case Sun
will remain responsible for the performance by such sub-contractors.


 


10                                  DISPUTE RESOLUTION (THIS SECTION DELETED)


 


11                                  GENERAL


 


11.1                           Governing law.


(a)           All
disputes will be governed by the laws of Illinois


(b)          Choice
of law rules of any jurisdiction and the United Nations Convention on Contracts
for the International Sale of Goods will not apply to any dispute under the
Agreement.


 


11.2                           Force majeure.  A
party is not liable under any Agreement for non-performance caused by events or
conditions beyond that party’s reasonable control, if the party makes
reasonable efforts to perform.  This
provision does not relieve either party of its obligation to make payments then
owing.


 


11.3                           Notices.  All
written notices require by the General Terms or any exhibit must be delivered
in person or by means evidenced by a delivery receipt or acknowledgment and
will be effective upon receipt.  Notices
communicated by electronic mail or facsimile will be deemed to be written.


 


11.4                           Relationship. 
Neither the General Terms nor any Agreement is intended to create a
partnership, franchise, joint venture agency, or a fiduciary or employment
relationship.  Neither party may bind
the other party or act in a manner which expresses or implies a relationship
other than that of independent contractor.


 


11.5                           Invalidity.  If
any provision of the General Terms or any Agreement is held invalid by any law
or regulation of any government or by any court or arbitrator, such invalidity
will not affect the enforceability of other provisions.


 


11.6                           Survival. 
Rights and obligations under the General Terms and any Exhibit which by
their nature should survive, will remain in effect after termination or
expiration of the General Terms or the relevant Exhibit.


 

















 


11.7                           No Waiver.  Any
express waiver or failure to exercise promptly any right under the General
Terms or any Exhibit will not create a continuing waiver or any expectation of
non-enforcement.


 


11.8                           Modification.  No
modification to the General Terms or any Exhibit will be binding, unless in
writing and manually signed by an authorized representative of each party.


 


11.9                           Indemnification.  In
proportion to its fault, each party (referred to in this Section 11.9 as the
"the Indemnifying Party") will indemnify and hold harmless the other
party (referred to in this Section 11.9 as "the Indemnified Party")
from third party claims for personal injury, tangible property to the extent caused
by the negligence or willful misconduct of the Indemnifying Party, provided
that the Indemnified Party:


(a)          gives
written notice of the claim promptly to the Indemnifying Party;


(b)         gives
the Indemnifying Party sole control of the defense and settlement of the claim/


(c)          provides
to the Indemnifying Party, at the expense of the Indemnifying Party, reasonable
information and assistance; and


(d)         does
not compromise or settle such claim;


 


11.10                     Entire
agreement.  Each Agreement constitutes the parties’ entire
agreement relating to its subject matter. 
It cancels and supersedes all prior or contemporaneous oral or written
communications, proposals, conditions, representations and warranties and
prevails over any conflicting or additional terms contained in any quote,
purchase order, acknowledgment, or other communication between the parties
relating to its subject matter during its term.


 


 


IN
WITNESS WHEREOF THE DULY AUTHORISED REPRESENTATIVES OF THE PARTIES HAVE
EXECUTED THESE GENERAL TERMS AS OF THE EFFECTIVE DATE.


 


	
  SUN
  MICROSYSTEMS, INC.

  	
  COMPANY

  
	
  BY:

  	
  /s/ANTHONY
  BENSON

  	
   

  	
  BY:

  	
  /s/STEVE
  RUBINOW

  	
   

  
	
  NAME:  Anthony Benson

  	
  NAME:  Steve Rubinow

  
	
  TITLE:  Director, Finance

  	
  TITLE:  CTO

  
	
  DATE:  3/12/03

  	
  DATE:  2/28/03

  
	
   

  	
   

  
	
   

  	
  PT
  3/12/03, per SR approval on 3/12/03

  
						



 

















 


PURCHASING
EXHIBIT


 


Company
Name: Archipelago Holdings, LLC.


General Terms Reference No:  AR-73976


Exhibit
reference no:  AR-73976  EUS


 


THIS
EXHIBIT (“Exhibit”) is an Exhibit to the General Terms referenced above, and is
effective as of 2/1/03 (“Exhibit Effective Date”).  The General Terms are an integral part of this Exhibit and are
incorporated by reference.  The General
Terms and this Exhibit are together referred to as the “Agreement”.  To purchase Products or Services from Sun
under this Agreement, Company and Sun must execute the appropriate Product or
Service terms, which are contained in Appendix 1 (for Services) and Appendix 2
(for Product).


 


1                                          INTERPRETATION


 


1.1                                 In this Exhibit:


“Appendix” means any Appendix to this Exhibit;


“Deliverable(s)” means in relation to any Services, the
specific item(s) to be delivered in connection with the applicable Service
Listing or SOW;


“Order” means an order for Products or Services,
which may be submitted by Company to Sun in hard copy form (“Purchase Order”)
or in electronic form (“Electronic Order”);


“Order
Confirmation” means a
written or electronic acknowledgement or invoice issued by Sun in response to
an Order;


“Price
List” means, in
relation to any Order, the applicable Price List determined in accordance with
section 3 of this Exhibit, as the same may be modified by Sun from time to
time;


“Schedule” means any Schedule to this Exhibit.


 


1.2                                 Capitalized terms used but not defined in
this Exhibit have the meanings set out in the General Terms.


 


1.3                                 In the event of any inconsistency between the
elements of the Agreement, the following order of precedence will apply (in
descending order):


(a)           the
Schedules;


(b)          the
Appendices;


(c)           the
main text of this Exhibit;


(d)          the
General terms;


(e)           the
applicable Price List, Service Listing or SOW;


(f)             the
Order Confirmation; and


(g)          the
Order.


 


The
parties agree that any pre-printed terms appearing on the face or reverse side
of any Order, Price List, Service Listing, SOW, Order Confirmation, or invoice
issued by either party that conflict with the terms provided in the Agreement
are not binding on the parties, even if signed and returned.  For the avoidance of doubt, (i) neither the
Order nor the Order Confirmation will modify the applicable discounted price
for Products or services established hereunder and (ii) if an Order is accepted
by Sun, the corresponding Order Confirmation will not change the description of
the Products or Services specified in such Order.


 

















 


2                                          ORDERING


 


2.1                                 Ordering
procedure


(a)           Company
may order Products or Services by:


(i)                         submitting an Electronic Order in the manner directed by Sun; or


(ii)                      submitting a Purchase Order to Sun (and Company acknowledges that
electronic Orders for certain Products or Services may require to be
supplemented by a Purchase Order);


(iii)                   in each case specifying the Products or Services required.  By doing so, Company agrees that the Order
is governed by the agreement.


 


(b)          Sun
may accept the Order by:


(i)                         issuing an Order Confirmation to Company; or


(ii)                      shipping the Products or initiating performance of the Services
required in the Order.


 


(c)           The
identification of the Products or Services in the Order and any Order
Confirmation, together with any applicable Service Listings in effect at the
time of such Order Confirmation or any SOWs and the Agreement, will constitute
an “accepted Order” and create a binding commitment for the purchase of those
Products or Services.


 


2.2                                 Renewal of
Accepted Orders for Services.  Subject to Section 3.2 (b) below Company
may renew a renewable accepted Order for Services for successive one (1) year
periods by submitting a new Order in accordance with this section at least
thirty (30) days prior to the expiration date. 
Certain renewable Accepted Orders designated by Sun will be
automatically renewed for successive one (1) year periods upon the anniversary
of the then current effective period.


 


2.3                                 Electronic
ordering.  For the purposes of placing Electronic
Orders, Company shall:


(a)           keep
confidential any unique user identification and password which Sun assigns to
Company; and


(b)          authorize
all of Company’s employees who submit orders.


 


3                                          PRICING AND PAYMENT TERMS


 


3.1                                 Applicable
Price List.  The Price List applicable to an Order under
this Exhibit depends on the Products or services ordered an on the country of
delivery of Services or installation of Products (“the Destination
Country”).  Unless otherwise specified
in a Schedule, the Price List is:


(a)          The
Sun Country Price List in effect in the country in which the Order is accepted
if:


(i)                         both the Destination Country and such country accepting the Order are
within the European Economic Area, or


(ii)                      all sales under this exhibit are related to a single country (i.e., the
country accepting the order and the Destination Country are always in the same
country); else


(b)         The
Sun international Price List in effect in the Destination Country; provided
that the Sun country Price List in effect in the Destination Country for the
relevant 


 

















 


Products
or Services will apply if such international Price list does not list the
relevant Products or Services.


 


3.2                                 Pricing and
payment arrangements.


(a)          For
Products or Services which are discountable in the applicable Price List, Sun
agrees (subject to section 3.3) to grant Company the discounts set out in
a Schedule to this Exhibit or the applicable quote.


(b)         Sun
may modify the prices and/or discounts set forth in a renewable Accepted Order
for Services upon renewal of any such accepted Order, or annually for Accepted
Orders with a term of more than one year.


(c)          All
payments will be made in the currency of the applicable Price List (or as
otherwise agreed in writing).


(d)         Where
company has appropriate credit arrangements with Sun, Company shall pay all
invoices within thirty 930) days of the date of invoice or, in case of
Products, delivery (whichever is the later). 
In all other cases, Company shall pay cash in advance of shipment or
performance.


(e)          Company
is not required to pay the disputed portion of any invoice, pending resolution
of that dispute, if written notice of the dispute has been provided to Sun
within twenty five (25) days of the date of receipt of the invoice.


 


3.3                                 Review and
reimbursement of discounts.  Within thirty (30) days of each anniversary
of this Exhibit, Sun will determine Company’s discounts for the following year,
based on Sun’s applicable discount policies. 
Company will reimburse Sun for discounts extended to Company that are
based on volume, term of service or other criteria not earned by Company.


 


4                                          IPR OWNERSHIP AND LICENSING


 


4.1                                 Pre-existing
IPR.  Each party shall retain its own pre-existing
IPR.


 


4.2                                 License terms.


(a)          General scope of licenses.  Sun
agrees to grant to Company a license to use Software and Deliverable in the
terms set out in the Appendices.


(b)         Audit rights.  No
more than once annually, unless Sun has possession of information leading it to
reasonably believes a violation of its IPR is occurring, Sun or its independent
audit firm may, upon reasonable notice, examine and audit the records and
systems of Company to ensure compliance with any license granted by Sun.  Any audit will be performed during Company’s
regular business hours and in a manner which avoids unreasonable interference
with Company’s business operations.


(c)          Injunctive relief. 
Company acknowledges that any breach of any license involving
unauthorized use of Sun’s intellectual property will result in irreparable harm
to Sun for which damages would not be an adequate remedy.


(d)         Proprietary rights notices. 
Company may not materially alter or obscure any proprietary rights
notice appearing on any Sun-supplied materials, and must include such notices
on any copies.


 


5                                          COMPANY OBLIGATIONS


 


5.1                                 Incorporation
of Company obligations.  Company shall fulfill all applicable Company
obligations under the Agreement, and acknowledges:


 

















 


(a)           that
performance of this Agreement by sun is conditional upon Company’s fulfillment
of such obligations;


(b)          that
any additional services which Sun provides as a result of Company’s failure to
do so will be billed separately, at Sun’s applicable time and materials rates
(Sun will not perform such additional services without obtaining prior consent
from Company);


 


Regardless of Section (a)
and (b), Sun will not suspend the performance of support Services under the
Agreement that Sun is able to perform exercising reasonable efforts without
providing Company with a minimum of [***].


 


5.2                                 Cooperation. 
Company will cooperate with Sun and will provide reasonable safe and
timely access to its premises and computer equipment, including remote access,
adequate working space, facilities and any other services, personnel,
information or materials that Sun personnel may reasonably require to perform
sun’s obligations.


 


5.3                                 Compliance
with data privacy laws.  Each party will comply with all applicable
laws regarding collection and use of data under this Agreement.  Company consents to Sun’s use and processing
of Company’s data to the extent required by Sun in order to fulfill its
obligations under this Agreement and each party will ensure that, where it
provides the other with data relating to another, it has obtained that other’s
consent to the use and processing of such data.


 


6                                          WARRANTY


 


6.1                                 Warranties.  Sun
warrants Products and Services in the terms set out in the respective Appendix.


 


6.2                                 NO IMPLIED
WARRANTIES.  EXCEPT AS SPECIFIED IN THIS EXHIBIT OR IN AN
APPENDIX, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES,
INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY
QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ARE HEREBY
EXCLUDED TO THE MAXIMUM EXTENT PERMITED BY LAW.


 


7                                          TERMINATION


 


7.1                                 General.  For
the avoidance of doubt, the termination provisions set out in the General Terms
shall apply to this Exhibit.


 


7.2                                 Additional
provisions relating to termination.  Without limiting sections 7.1,
the following additional provisions shall apply to termination of this Exhibit
and of Accepted Orders made under this Exhibit:


(a)          either
party may terminate an Accepted Order immediately by written notice: (i) if the
other party commits a non-remediable material breach of such Accepted Order; or
(ii) if the other party fails to cure any remediable material breach within
thirty (3) days of being notified in writing of such breach;


(b)         neither
party may terminate an Accepted Order during its initial term;


(c)            Subject to the terms of a mutually executed written SOW, Company may
terminate a renewed Accepted Order by giving sixty (60) days’ prior written
notice to Sun, and Sun may terminate such order upon [***] prior written
notice;


 


 












*** Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.


 

















 


(d)         Sun
will deliver to Company any Deliverables, whether finished or unfinished,
subject to receipt of payment for any services rendered through the date of
termination or expiration; and


(e)          Where
the Exhibit has been terminated by Sun under Section 7.2(a), Company will
destroy all copies of Software.


 


 


IN
WITNESS WHEREOF THE DULY AUTHORISED REPRESENTATIVES OF THE PARTIES HAVE
EXECUTED THESE GENERAL TERMS AS OF THE EFFECTIVE DATE.


 


	
  SUN
  MICROSYSTEMS, INC.

  	
  COMPANY

  
	
  BY:

  	
  /s/Anthony
  Benson

  	
   

  	
  BY:

  	
  /s/Steve
  Rubinow

  	
   

  
	
  NAME:  Anthony Benson

  	
  NAME:  Steve Rubinow

  
	
  TITLE:  Director, Finance

  	
  TITLE:  CTO

  
	
  DATE:  3/12/03

  	
  DATE:  2/28/03

  
	
   

  	
   

  
	
   

  	
  PT
  3/12/03, per SR approval on 3/12/03

  
						



 

















 


Appendix 1
to the Purchasing Exhibit

Additional provisions relating to Services


 


1                                          REMOTE SERVICES


 


1.1                                 By purchasing any Services which are
delivered remotely, Company:


(a)          agrees
that Sun may access Products remotely at Company’s site, and may process and
store Product data in order to remotely monitor, manage and service Products
(all such data will be treated by Sun as Company Confidential Information,
except that Company permits disclosure for the purposes of fulfilling this
Agreement);


(b)         commits
to procure and maintain a Sun-specified bridge or gateway appropriate to the
systems or networks involved, at Company’s expense; and


(c)          assumes
responsibility for all telecommunications and internet access charges related
to the remote Services.


 


1.2                                 If Company fails to permit or facilitate
remote Services, Sun may decline to deliver such Services and assess additional
charges or other conditions for the delivery of Services which would otherwise
be provided remotely, or revoke any applicable warranties.


 


2                                          SYSTEM SUPPORT


 


2.1                                 Company Sites. 
Systems support will be delivered to the Company’s sites and for the
systems indicated on the relevant Order Confirmation (respectively, “Company
Sites” and “Covered Systems”).  Company
will give Sun at least thirty (30) days’ written notice prior to relocating
Covered Systems, which notice must specify the new site.  Support of relocated systems is subject to
local availability and may be subject to additional fees, and to inspection and
recertification of the relocated systems at Sun’s applicable time and materials
rates.


 


2.2                                 Problem
Avoidance.  Company will perform routine system
preventative maintenance and cleaning. 
Prior to requesting support from Sun, Company will comply with all
applicable operating and troubleshooting procedures, as posted on a Sun
knowledge database or as otherwise provided by Sun.  If such efforts are unsuccessful in eliminating the malfunction,
Company will Promptly notify Sun. 
Company will establish and maintain a procedure external to Covered
Systems so that Company can reconstruct lost or altered files, data, or
programs.


 


2.3                                 Qualified
Personnel.  Requests for hardware and software support
may be made only by Company personnel who:


(a)           possess
the necessary expertise and training (as from time to time defined by Sun) to
diagnose and resolve system and software malfunctions with direction by Sun;
and


(b)          are
designated as “Contacts” in accordance with the applicable Service listing or
SOW.


 


2.4                                 Additional
Systems.  Company may add systems to an Accepted Order
for a period coterminous with the term of the accepted Order at Sun’s applicable,
pro-rated, per-system fee, upon written notice to Sun and subject to Sun’s
rights of inspection.  Sun will provide
to Company an add-on Order Confirmation reflecting the additional Covered
Systems and associated additional fee.


 

















 


2.5                                 Eligible Systems
- Automatic Eligibility.  Systems support is available only for
systems which are covered by a valid software license and are in good working
condition.  Systems placed under an
Accepted Order for systems support prior to the expiration of:


(a)           Sun’s
warranty; or


(b)          An
existing Sun support agreement, automatically will be deemed to be in good
working condition.


 


2.6                                 Eligible
Systems - Eligibility after Observation Period.  With respect
to any system that does not qualify for support under sub-section 2.5, sun
may require that the system pass an inspection.  In that event, Sun may place such system under observation, and
support coverage will only commence once the system has operated for ninety
(90) consecutive days (the “Observation Period”) without experiencing a system
failure.  Systems requiring support
during the Observation Period will receive such support on a time and materials
basis.


 


2.7                                 Eligible
Systems - Other.  With respect to any system that does not
qualify for support under sections 2.5 or 2.6, Sun reserves the right to
determine whether any problem occurring during the first ninety (90) days of
support coverage is attributable to a condition predating the commencement of
support coverage, and to bill Company at Sun’s applicable time and materials
rates to correct such problem and return such system to eligible condition.


 


2.8                                 Exclusions. 
Services do not include services required due to:


(a)          use
not in accordance with the user manual and applicable published specification
and industry standards, abuse, accident, or neglect;


(b)         alterations,
modifications, or attempts to repair Covered Systems that Sun has not
authorized;


(c)          causes
external to a Covered System, such as (but not limited to) failure to maintain
environmental conditions within the operating range specified by the
manufacturer;


(d)         attachment
of a Covered System to equipment, software, or other items not listed on Sun’s
then current enterprise Services Price List;


(e)          relocations
or attempts to relocate Covered Systems; or


(f)            failure
to maintain software and Covered Systems at Sun-specified minimum release
levels or configurations necessary to keep a Covered System within the terms of
Sun’s applicable end of life support policy, or to properly install remedial
replacement parts, patches, software updates or subsequent releases as directed
by Sun;


and
any Services Sun delivers as a result of any such event will be invoiced
separately at Sun’s applicable or negotiated time and materials rates, and are
subject to the applicable Agreement.


 


3                                          ON-SITE MATERIALS


 


3.1                                 Company will segregate and safeguard as the
property of Sun all Suntools, parts, spares, equipment and materials placed on
a Company site and for which title is not transferred to Company (“On-Site
Materials”).


 


3.2                                 On-Site Materials may only be used by
authorized persons consistent with the terms of the applicable Service Listing
or SOW.  Company will have no right or
interest in the 


 

















 


On-Site
Materials, and will not grant any liens or security interests therein.  Company assumes all risk of loss or damage
to On-Site Materials that may occur prior to their return and receipt by Sun.


 


3.3                                 Within ten (10) days after termination or
expiration of any accepted Order, Company will deliver to Sun any On-Site
Materials related to such accepted Order, with a bill of lading, freight
charges prepaid and fully insured.


 


4                                          NON-SOLICITATION


 


4.1                                 Without the prior written consent of the
other, neither party will not recruit any personnel assigned by the other to
work directly in connection with the performance of any Services designated as
consulting services in a service Listing or SOW (“Consulting Services”) until
one (1) year after completion of the applicable Services.


 


4.2                                 “Recruit” means to initiate personal contact
for the purposes of firing, but does not include responding to an unsolicited
application, receiving unprompted responses to advertisements, or receiving
candidates who are, without Company involvement, presented to Company by a
recruiting firm.


 


4.3                                 If either party hires personnel in violation
of this provision, upon condition that the non-violating party issues written
demand within 30 days of such violation, the violating party will pay the
non-violating party liquidated damages in an amount equal to the hired employee’s
total compensation for the six (6) months preceding the date of hiring.


 


5                                         IPR OWNERSHIP AND LICENSE TERMS FOR SERVICE DELIVERABLES.


 


5.1                                 Deliverables. 
Subject to section 4.1 of the main text of the exhibit, Sun shall
own all IPR in the Deliverables.  Rights
not expressly granted under any Accepted Order are reserved to Sun.  Company’s rights to use Deliverables are set
out in section 5.2. [***]


 


5.2                                 License terms


(a)          General scope of licenses.  Sun
grants to Company a world-wide royalty-free, non-exclusive and non-transferable
license to use Deliverables for its internal use only (which, for the avoidance
of doubt, is conditioned upon Company’s payment of applicable fees), subject
to:


(i)                         any restrictions set out in the Order or Order Confirmation as to the
permitted number of users and CPRs; and


(ii)                      any supplemental license terms accompanying the deliverable.  Additional license rights or restrictions
may be specified in the express terms of a mutually agreed upon and executed
written Statement of Work


(b)         Use of tools and Updates. 
Tools may be accessed only by authorized Company contacts for the sole
purpose of diagnosing and resolving problems on Covered Systems.  The provision of an Update will not alter
any warranty on the Software previously licensed, and such Updates may be used
or accessed only in connection with the use of Covered Systems.


(c)          License restrictions. 
Except as prohibited by applicable law or as otherwise provided by the
express terms of a mutually executed written SOW, Company may not;


 












*** Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.


 

















 


(i)                         make copies of Deliverable, other than for backup archival purposes
(for the avoidance of doubt, subject to the other restrictions and limitations
set forth herein); or


(ii)                      modify, decompile, or reverse-engineer Deliverables.


 


6                                          SERVICE WARRANTIES


 


6.1                                 Warranty.  Sun
Warrants that Services will be performed I a good and workmanlike manner.


 


6.2                                 Exclusive
remedy.  Company’s sole and exclusive remedy and
Sun’s entire liability for breach of the above warranty will be re-performance
of Services.


 


6.3                                 Claims.  Any
claim for breach of the above warranty must be made in writing and notified to
Sun within 90 days of performance of the Services at issue.


 


For
the avoidance of doubt, Sun agrees to perform Services in accordance with the
applicable Service List or SOW.


 


7                                          CHARGING ARRANGEMENTS FOR SERVICES


 


7.1                                 Charges and
invoices.  The charges for Services are as set out in
the Price List or the applicable SOW (if not in the Price List).  Charges for systems support Services shall
be invoiced monthly, quarterly or annually in advance as agreed between the
parties as stated in the Accepted Order. 
Invoices for other Services shall be rendered upon completion of such
Services or monthly in the event the duration of services exceeds one month.


 


7.2                                 Items not
included in charges.  The stated charges are exclusive of the
following items (for which Company is responsible):


(a)          all
sales and other taxes based upon the value of the Services;


(b)         reasonable
travel expenses in the amount actually incurred by Sun;


(c)          reasonable
and necessary out-of-pocket expenses associated with consulting Services;


(d)         costs
incurred by Company or its employees in connection with their participation in
educational services;


(e)          transportation
and insurance charges; and


(f)            the
costs of operating supplies and accessories.


 


8                                          MISCELLANEOUS


 


8.1                                 Service
availability.  Services may not be available in certain
locations, and Deliverables may vary between locations.  Services are subject to availability of
qualified Sun personnel and facilities and may be subject to additional costs
or terms or to payment of minimum applicable fees.  Sun may modify the Service Listings at any time, but will
continue to provide Deliverables as set out in the relevant Service Listing in
effect on the date the relevant Order Confirmation was issued until expiration
or renewal of the 


 

















 


relevant
Accepted Order.  Sun may make Service
substitutions and modifications that do not cause a materially adverse effect
in overall Service performance.


 


8.2                                 Limitations on
use of Service.  Company acknowledges that Services are
solely for Company’s internal use, and Company may not provide, lease, or
resell Services, directly or indirectly, to any third party, unless, and only
to the extent that, Company is authorized by Sun in writing to do so.