Exhibit 10.1
Note: The **** symbol
indicates that material has been omitted pursuant to a request for
confidential treatment. A copy of this document without
omissions has been filed separately with the Securities and
Exchange Commission.
SALES ALLIANCE
AGREEMENT
This Sales Alliance Agreement, effective as of
August 1, 2005, including all Exhibits (“ Agreement
”), is made by and between Software Spectrum, Inc .,
with offices at 3480 Lotus Drive, Plano, TX 75075 (“
Software Spectrum ”) and Intraware, Inc. , with
offices at 25 Orinda Way, Orinda, CA 94563 (“
Intraware ”).
WHEREAS, Software Spectrum, a
leading, single-source provider of IT solutions and services that
help companies around the globe enable, manage and secure their
enterprises, has entered into an agreement (“ Sun
Agreement ”) with an authorized distributor of Sun
Microsystems, Inc. (“ Sun ”), authorizing
Software Spectrum to resell the Sun software products identified in
Exhibit A and maintenance services for those products (collectively
“Sun Products”).
WHEREAS, Intraware has experience
and expertise in the sale of Sun Products to end user
customers.
WHEREAS, Software Spectrum and
Intraware agree that both parties will benefit by forming a sales
alliance whereby Intraware will obtain purchase orders for sales of
the Sun Products to end users and Software Spectrum will process
invoices and fulfill (either physically or electronically pursuant
to Section 7.2) such Sun Product orders.
NOW THEREFORE, intending to be
legally bound, and in consideration of the mutual promises and the
terms, conditions and covenants of this Agreement, the parties
hereby agree as follows.
1.
DEFINITIONS
1.1
“ Confidential Information ” shall have the same
meaning as the term is defined in the Mutual Non-Disclosure
Agreement, dated August 1, 2005, between Software Spectrum and
Intraware, subject to Section 8.1 below.
1.2
“ Qualified Customer ” shall mean a customer who
has been evaluated by the Director of Software Spectrum Accounts
Receivable or a designee and approved for business, based on
written standards which are provided to Intraware, are reasonable,
and impose restrictions no more stringent than those which apply to
customer qualification in Software Spectrum’s software
reselling business.
1.3
“ Qualified Order ” shall mean an order from a
Qualified Customer for Sun Products that meets the terms of the
Software Spectrum’s Global Customer Purchase Order Acceptance
Policy, which policy shall impose restrictions no more stringent
than those which apply to order acceptance in any other area of
Software Spectrum’s business.
1.4
“ Territory ” shall mean the same geographic
area as is set forth in the Sun Agreement.
2.
SCOPE
2.1
Products Expertise . Intraware has experience and
expertise in the sale of Sun Products.
2.2
Services Provided . Software Spectrum agrees to retain
the services of Intraware to obtain purchase orders for Sun
Products from Qualified Customers in the Territory as set forth
herein. During
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the term of this Agreement,
Intraware will submit to Software Spectrum all purchase orders for
Sun Products received by Intraware from Sun Product customers and
prospects.
2.3
Exclusivity . Software Spectrum agrees that Intraware
shall be its exclusive third party sales organization for Sun
Products, and Intraware agrees to sell Sun Products exclusively for
the benefit of Software Spectrum. The preceding sentence
shall not be construed to restrict Software Spectrum from selling
Sun Products directly through its own sales organization or through
independent sales representatives authorized by Software Spectrum
to sell software, software licenses, and/or services. Subject
to the preceding two sentences, it is agreed that the relationship
between the parties is non-exclusive, and each party is free to
pursue any other business opportunities or interests.
2.4
Independent Contractors . The relationship of the
parties is that of independent contractor. Neither party is
an employee, agent, partner, or joint venturer of the other party,
and Software Spectrum and Intraware shall inform their respective
employees of such. Neither party shall represent or imply,
directly or indirectly, that it has the authority to represent or
bind the other by contract or in any way to incur obligations of
any kind on behalf of the other party or take any action that would
lead any person to believe the party has such authority; provided,
however, that Intraware, in the course of providing services under
this Agreement, may submit binding quotes to customers for sales of
Sun Products, so long as such quotes to do not require Software
Spectrum to act in a manner inconsistent with its written customer
qualification standards or its written order acceptance policy
referred to in Sections 1.2 and 1.3 above, respectively
.
3.
TERM
AND TERMINATION
3.1
Term
. The term of this Agreement shall commence on August 1, 2005
(“ Effective Date ”) and shall remain in effect
for 24 months thereafter, unless terminated earlier as provided
herein. This Agreement will automatically renew for
additional one (1) year terms provided the Sun Agreement is also in
effect for the same renewal period.
3.2
Termination . Either party may terminate this
Agreement without cause upon 60 days written notice to the other
party. In addition, either party may terminate this Agreement
immediately if the other party: (i) commits a material breach of
this Agreement and does not cure the breach within 30 days after
receiving the non-breaching party’s written notice of the
breach or (ii) becomes insolvent, makes a general assignment for
the benefit of creditors, suffers or permits the appointment of a
receiver for its business or assets, or avails itself of or becomes
subject to any proceeding under any federal or state statute
relating to insolvency or the protection of rights of
creditors.
3.3
Sun
Agreement Termination . In the event the Sun Agreement
expires or terminates, then this Agreement shall terminate
concurrent with the expiration or termination date of the Sun
Agreement.
3.4
Customers . Upon any expiration or termination of this
Agreement, either party may pursue sales opportunities with Sun
Product customers and prospective customers without obligation to
the other party.
3.5
Effect of Termination . As of the effective date of
the expiration or termination of this Agreement, Intraware shall
cease marketing and selling Products and providing services on
behalf of Software Spectrum, and neither party shall have any
further obligation to the other party except as otherwise specified
herein. Within 30 days of the expiration or termination of
this Agreement, each party shall return all tangible information,
data, and materials, including without limitation Confidential
Information, belonging to the other party and delete all electronic
information or data belonging to the other party. Sections
5.1.5 (Insurance), 7.3 (Payment) and 7.5 (Audit) (for three years
from the Effective Date), 8 (Confidentiality), 9.1 (No Transfer of
Rights), 10.2 (Warranty Disclaimer),
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11 (Indemnity), 12 (Limitation
of Liability), 13 (Notices) and 14 (General) shall survive the
expiration or termination of this Agreement.
4.
APPOINTMENT
4.1
Appointment . Software Spectrum hereby appoints
Intraware to provide services as described herein and obtain
purchase orders for Sun Products from Qualified Customers in the
Territory, as set forth in this Agreement.
4.2
Acceptance . Intraware hereby accepts such appointment
to provide services as described herein and obtain purchase orders
for Sun Products from Qualified Customers in the Territory, as set
forth in this Agreement.
5.
RESPONSIBILITIES
5.1
Mutual Responsibilities :
5.1.1
Dedicated Personnel . Each party will inform the
appropriate personnel in their organization of the existence of
this Agreement and appoint one or more business managers, who shall
serve as that party’s primary contact for day-to-day business
activities. Each party shall have to right to appoint a new
business manager from time to time and agrees to notify the other
party if they appoint a new business manager.
5.1.2
Public Announcements . Any individual or joint public
announcement regarding this Agreement or the relationship of
Software Spectrum and Intraware shall be, in each instance, subject
to both parties’ prior written consent, unless a party is
advised by counsel that a public announcement of this Agreement is
required by law, in which case the party required by law to make
the announcement shall submit the announcement to the other party
for approval and such approval shall not be unreasonably withheld
or delayed. In the event the parties are unable to agree on
an announcement required by law, then the party required to make
the announcement may, to the minimum extent required by law, make
the announcement without the consent of the other party.
5.1.3
Costs and Expenses . Except as otherwise specified
herein or mutually agreed to in writing, each party shall be solely
responsible for their own costs and expenses in the performance of
this Agreement. Each party shall be solely responsible for
the payment of compensation of its own employees, agents, and
contractors. Neither party shall be responsible for the
payment of any wages, expenses, workers’ compensation,
disability benefits, unemployment insurance, and any other employee
benefit, including, but not limited to, pension, 401(k), medical,
dental, and life insurance, vacation, sick days, and holidays, or
for withholding income taxes and social security for any employee,
agent or contractor of the other party.
5.1.4
Increase Sales . Software Spectrum and Intraware agree
to work together in good faith and exchange ideas and suggestions
to increase Sun Product sales.
5.1.5
Insurance . Software Spectrum and Intraware shall each
maintain insurance, with coverage limits, consistent with generally
accepted business practices for the software resale
industry.
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5.2
Software Spectrum Responsibilities:
5.2.1
Procedures . Software Spectrum will advise Intraware
sales personnel on, and provide them with copies of, Software
Spectrum’s standard order acceptance and customer
qualification policies and procedures, as described in Sections 1.2
and 1.3 above.
5.2.2
Orders and Order Fulfillment . Software Spectrum shall
be responsible for entering into any contracts with Qualified
Customers, processing and fulfillment of all Qualified Orders,
invoicing Qualified Customers, collecting payment from Qualified
Customers, and making payments to the Sun authorized distributor
under the Sun Agreement. With the exception of sales calls,
Software Spectrum shall also be solely responsible for answering
all customer inquires or questions. Software Spectrum may, in
its sole discretion, reject any Sun Product customers or orders
that do not meet Software Spectrum’s standard policies and
procedures referenced in Sections 1.2 and 1.3 above.
5.2.3
Order Limits . Software Spectrum shall only accept
Qualified Orders received from Qualified Customers.
5.2.4
Prices . Promptly after signing any Sun Agreement,
Software Spectrum shall provide Intraware with a copy of the price
list for Sun Products. Software Spectrum shall provide
Intraware with 30 days’ written notice or such period of time
Software Spectrum receives written notice from Sun, whichever is
less, of any change to Software Spectrum’s Sun Products price
list, provided, however, that any such change shall be delayed by
up to an additional 60 days or such period of time as is agreed to
by Sun, whichever is less, with respect to any quote which
Intraware may make to a Sun Product customer or prospect before
receiving notice of the price list change.
5.2.5
Marketing . Software Spectrum and Intraware agree to
work together in good faith to plan and conduct various Sun
marketing activities and events. Each such marketing activity
shall be subject to the parties’ mutual agreement.
5.2.6
Accepting Payments . Software Spectrum shall have no
authority to collect funds or accept payment on behalf of
Intraware. Software Spectrum shall immediately forward to
Intraware any and all money or remittance, in any form, that may be
owed to Intraware, but incorrectly paid to Software
Spectrum.
5.3
Intraware’s Responsibilities:
5.3.1
Procedures . Intraware agrees to co-operate with
Software Spectrum in meeting all of Software Spectrum’s
standard policies and procedures for account and order acceptance
which are referred to in Sections 1.2 and 1.3
above.
5.3.2
Personnel Commitment . It is the parties’ intent
to achieve sales goals set by Sun or set by an authorized Sun
distributor as a requirement for Software Spectrum to maintain
maximum product discount levels. Such intent shall be a
primary consideration of Intraware in assigning sales
representatives (each, a “Rep” ) to the
solicitation of Sun Product sales hereunder
