1
Ex.10.15
PRODUCT RESALE AGREEMENT
No. WWTI-I
BETWEEN
LUCENT TECHNOLOGIES INC.
AND
WORLD WIDE TECHNOLOGY, INC.
* Certain material has been omitted from this exhibit pursuant to a request for
confidential treatment and filed separately with the Securities and Exchange
Commission.
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This Product Resale Agreement ("Agreement") is made by and between World Wide
Technology, Inc., a Missouri corporation, with offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Vendor") and Lucent Technologies Inc., a Delaware
corporation, with its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("Lucent").
WHEREAS, Lucent desires to sell certain 5ESS(R) electronic switch system
apparatus [*Confidential treatment will be requested.] ("Product(s)") and is
desirous of having another company stock and furnish equipment to Ameritech
Services, Inc. ("ASI"); and
WHEREAS, Vendor represents that it is a reseller of telecommunications equipment
and has in place the facilities and organization to stock and furnish such
equipment to ASI; and
WHEREAS, Lucent believes that ASI desires to make purchases of Product(s) from a
certified Minority Business Enterprise ("MBE"); and
WHEREAS, Vendor represents and warrants that it is a certified MBE and desires
to purchase Product(s) for the sole purpose of reselling such Product(s) to ASI.
NOW THEREFORE the parties agree as follows:
1. SCOPE OF AGREEMENT
(a) The terms and conditions of this Agreement shall apply to transactions
in which Lucent furnishes Product(s) to Vendor so that Vendor may
furnish such Product solely to and for ASI.
(b) In consideration of the covenants by Vendor contained herein, Vendor is
granted the right to obtain the Products [*Confidential treatment will
be requested.], plus such additional items as Lucent may from time to
time in writing agree to furnish to Vendor, solely for the purpose of
selling, or otherwise furnishing Product to ASI. Vendor shall only sell
or otherwise furnish Product to ASI against ASI orders placed with
Vendor. Products purchased by Vendor from Lucent pursuant to this
Agreement shall not be resold, assigned or delivered to any other
person or entity other than ASI and are sold solely on the
representation that such purchases are related to the sale and delivery
of Product to ASI. Any Products Vendor desires to purchase for work
competitively awarded by ASI shall be purchased through other
distribution channels or as may be mutually agreed by the parties.
(c) Vendor is also a participant in Lucent's Value Added Reseller ("VAR")
program and acknowledges and agrees that in performing for and on
behalf of ASI, Vendor is not participating in the VAR program and that
any purchases for or on behalf of ASI hereunder shall not be counted
towards any awards, discounts, credits or minimum purchase commitments
as may exist under the VAR program. Vendor agrees that it shall not
make any claim for any such benefits for the VAR program for any sales,
deliveries or efforts hereunder.
LUCENT PROPRIETARY
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(d) VENDOR AGREES THAT THE TERMS AND CONDITIONS OF PARAGRAPHS 1(a) THROUGH
1(c) ARE MATERIAL TO THE AGREEMENT AND ANY BREACH THEREOF BY VENDOR
SHALL BE A MATERIAL BREACH AND CAUSE FOR TERMINATION AS PROVIDED
HEREIN.
(e) No payment of any fee is required as a condition of such grant. Lucent
may, without the consent of Vendor, delete or add any Product available
to Vendor. Lucent agrees to provide notice to Vendor in the event such
additions and deletions to the Products available hereunder.
(f) Vendor acknowledges that this Agreement does not confer upon it an
exclusive right to market Product or any other items and Lucent
expressly reserves the right to contract with others to market Product
or any other items to ASI, and to itself engage in such marketing, in
competition with Vendor.
2. DEFINITIONS
For the purposes of this Agreement, the following terms and their definitions
shall apply.
a) "Documentation" shall mean materials useful in connection with the
Product.
b) "Product" shall mean those Lucent Products defined above and sold or
delivered to Vendor [*Confidential treatment will be requested.].
c) "ASI" shall mean Ameritech Services, Inc. as it exists on the day of
this Agreement and its current Affiliate(s) in the five (5) state
Ameritech region which are formally authorized by ASI to purchase
Products from Lucent.
d) "Licensed Material" shall mean Software in object code form for which
Lucent has the right to grant licenses or sublicenses for use by ASI.
Licensed Material also includes all Documentation associated with the
Software which is reasonably necessary to enable ASI to operate,
administer and maintain the system for which such Software is licensed.
No license to Source Code is granted hereunder.
e) "Software" shall mean a stored program in object code form consisting
of a set or sets of logical instructions and tables of information
which guide the functioning of a processor, but the term "Software"
does not mean or include Firmware.
f) "Firmware" shall mean hardware or other medium containing a pattern of
bits representing a Software program.
g) "Source Code" shall mean any version of Software incorporating,
high-level or assembly language that generally is not directly
executable by a processor.
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3. CONFIDENTIALITY
Vendor and Lucent shall keep this Agreement and any order issued hereunder
confidential, except as reasonably necessary for performance thereunder and
except to the extent disclosure may be required by applicable laws or
regulations, in which latter case the party making such disclosure shall
promptly inform the other, prior to making such disclosure.
4. RELATIONSHIP OF THE PARTIES
The relationship of the parties under this Agreement shall be and at all times
remain one of independent contractors and shall not create the relationship of
franchisor and franchisee, joint venturers or principal and agent. This
Agreement does not establish a franchise or agency. Vendor is not paying Lucent
any franchise fee pursuant to this Agreement. Vendor shall not have authority to
assume or create obligations on Lucent's behalf with respect to the Products
furnished by Lucent hereunder or otherwise, and Vendor shall not take any action
which has the effect of creating the appearance of having such authority.
All persons employed by Vendor shall be considered solely Vendor's employees or
agents, and Vendor shall be responsible for payment of all unemployment, Social
Security, and other payroll taxes including contributions from them when
required by law.
5. TERM
This Agreement is effective upon signature of the last party, and except as
otherwise provided herein, shall continue in effect for a period of one (1)
year. The term of this Agreement may be extended for one (1) year periods by
mutual agreement of the parties. The modification, termination or expiration of
this Agreement shall not affect the rights or obligations of either party under
any order accepted by Lucent before the effective date of the modification,
termination or expiration.
6. OBLIGATIONS ASSUMED BY LUCENT
Lucent shall:
(a) make available to Vendor Products as may be changed from time to time;
(b) provide or arrange for reasonable amounts of technical assistance.
Lucent will make training available in accordance with its standard
terms and conditions. Tuition and fees for such training shall be as
advertised and available from Lucent. Training will be provided at
Lucent's location(s) which normally provide(s) such training unless
otherwise mutually agreed in writing. In addition to tuition fees,
Vendor will bear all related lodging and transportation expenses for
its employees taking the training. If Vendor requests additional
technical assistance or training, Lucent will provide or arrange for it
upon such terms, conditions, and prices as the parties shall mutually
agree upon.
LUCENT PROPRIETARY
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7. OBLIGATIONS ASSUMED BY VENDOR
Vendor shall:
(a) obtain and maintain all government licenses, permits and approvals
which are necessary and advisable for the implementation of this
Agreement and comply with all applicable laws and regulations;
(b) refrain from taking any action which would cause Lucent to be in
violation of any law of any jurisdiction;
(c) promptly inform Lucent of any facts or opinions likely to be relevant
in relation to marketing of Products including, without limitation, all
suspected product defect safety problems or ASI complaints;
(d) provide Lucent with semi-annual summaries of sales of each Product
including number of units and dollars of sales to ASI by ASI order
number with monthly breakdowns. Lucent agrees to maintain the
confidentiality of such information between the two companies.
(e) on each anniversary of this Agreement, or as may be requested from time
to time, provide Lucent with a written certification by the Vendor or
other evidence as may be requested, that purchases of Product under
this Agreement are solely for the purpose of sale of Product to ASI.
*Confidential treatment will be requested.
(g) on each anniversary of this Agreement, or as may be requested from time
to time, provide Lucent with a written certification by the Vendor or
other evidence as may be requested, that end or remains a certified
MBE, as certified by an independent entity satisfactory to Lucent;
(h) provide requested data in reasonable detail on the overall market
potentials and other information related to the Product furnished
hereunder as an aid in measuring Lucent's market potential and planning
its efforts; and
(i) give Lucent, upon at least seventy-two (72) hours notice, access during
normal business hours to the premises of Vendor in order that Lucent
may inspect and verify compliance by Vendor with its obligations under
this Agreement.
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8. RECORDS AND AUDITS
Vendor shall maintain accurate records which relate to Products furnished
hereunder, including but not limited to quality control records, in accordance
with generally accepted accounting and quality control principles and practices
uniformly and consistently applied in a format that will permit audit. Unless
otherwise provided in this Agreement, Vendor shall retain such records for a
period of three (3) years from the date of final payment under the order to
which such records relate. To the extent that such records may be relevant in
determining if Vendor is complying with its obligations under the applicable
order, Lucent and its authorized representatives shall have access to such
records for inspection and audit during normal business hours upon at least
seventy-two (72) hours notice.
9. FORECASTS AND ORDERS
(a) Upon the execution of this Agreement, Vendor agrees to provide to
Lucent a rolling monthly forecast of the projected purchases of
Products by Product type. Vendor will use reasonable efforts to insure
these forecasts are as accurate as possible. However, these purchasing
forecasts are only projections or forecasts and are not to be construed
as commitments to purchase any forecasted amount.
(b) An order submitted by Vendor shall contain the information necessary
for the furnishing of the Products including, without limitation,
Lucent's contract number, the date of the order, the shipping
destination and reference to any applicable Lucent specifications and
information. Schedules and dates, including shipment dates, for the
furnishing of the Products, must be agreed to by Lucent prior to its
acceptance of the order. All orders submitted by Vendor shall be deemed
to incorporate and be subject to the terms and conditions of this
Agreement as well as any supplemental terms and conditions agreed to by
authorized representatives of the parties in writing. Lucent reserves
the right to reject any order for good reason.
(c) Vendor acknowledges that any estimates or forecasts of potential levels
of business between the parties made by Lucent during the negotiations
of this Agreement were good faith estimates only and agrees that Lucent
shall have no liability if such levels of business are not reached.
10. PRODUCT CHANGES
Lucent may at any time without advising Vendor make changes in the Products or
modify the drawings and specifications relating thereto, or substitute Products
of later design to fill an order, provided the changes, modifications or
substitutions under normal and proper use do not impact upon form, fit, or
function or are recommended to enhance safety. Lucent may use either new,
reconditioned, refurbished or remanufactured Products or parts in the furnishing
of Products, spares, replacement parts or repairs under this Agreement.
LUCENT PROPRIETARY
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11. PRODUCT NAME CHANGE
Vendor acknowledges that Lucent will be changing during the term of this
Agreement the identity of some of the Products to be furnished hereunder to
remove references to "AT&T" or abbreviations, contractions, or simulations
thereof. At such time as Lucent elects to institute a new trade name, logo,
trademark, trade device, service ▇▇▇▇, symbol, code and/or specification in
connection with all or any Products or Licensed Materials, Lucent shall notify
Vendor in writing ("Name Change Notice"). Said Name Change Notice shall include,
without limitation:
(a) the new trade name, logo, trademark, trade device, service ▇▇▇▇,
symbol, code, and/or specification selected by Lucent (in its sole and
absolute discretion); and
(b) instructions, guidelines, and/or other terms and conditions governing
the use by Vendor of such new trade name, logo, trademark, trade
device, service ▇▇▇▇, symbol, code and/or specification in connection
with this Agreement.
Effective as of that date, which shall be thirty (30) days after the date of any
Name Change Notice, any and all rights of Vendor under this Agreement
(including, without limitation, Clause 20, TRADEMARKS) to use any ▇▇▇▇ (as
defined in Clause 20) which contains any reference to "AT&T" or any
abbreviation, contraction or simulation thereof shall be terminated and null and
void and thereupon all rights of Vendor under this Agreement to use any ▇▇▇▇
shall apply to and be in accordance with the Name Change Notice.
* Confidential treatment will be requested
13. INVOICING AND TERMS OF PAYMENT
(a) Invoices for Products will be sent upon shipment, or as soon thereafter
as practical. Lucent may make partial shipments of Vendor's orders.
Such partial shipments shall be separately invoiced.
(b) [* Confidential treatment will be requested]
(c) [* Confidential treatment requested]
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(d) Delinquent payments are subject to a late payment charge of one and
one-half percent (1-1/2%) per month, or portion thereof, of the amount
due (but not to exceed the maximum lawful rate). Vendor shall notify
Lucent of any disputed invoices within six (6) months from the date of
invoice.
(e) Vendor shall be liable for and shall reimburse Lucent for all taxes and
related charges (including any interest and penalties), however
designated (excluding taxes on Lucent's net income) imposed upon or
arising from the provision of or the transfer, sale, license, or use of
Products, or other items provided by Lucent. Taxes reimbursable under
this clause shall be separately listed on the invoice.
(f) Lucent shall not collect the otherwise applicable tax if Vendor's
purchase is exempt from Lucent's collection of such tax and a valid tax
exemption certificate is furnished by Vendor to Lucent.
(g) In no event shall Vendor's payment, as set forth in this Clause 13,
INVOICING AND TERMS OF PAYMENT, be contingent on Vendor's resale of
Product(s) or product(s) to ASI.
14. DELIVERY, TITLE AND RISK OF LOSS
Shipments of Product shall be made FOB destination and title and risk of loss to
such Products shall pass to Vendor upon delivery to the Vendor. Shipments of
Licensed Materials shall be made FOB destination and risk of loss to such
Licensed Materials shall pass to Vendor upon delivery to the Vendor. Title to
Licensed Materials shall remain in Lucent. Vendor shall notify Lucent promptly
of any claim with respect to loss which occurred while Lucent bears the risk of
loss, of which Vendor has knowledge, and shall cooperate in every reasonable way
to facilitate the settlement of any claim. For the purposes of this Section,
"delivery" shall mean the point at which Lucent or Lucent's supplier or agent
turns over possession of the Products and/or Licensed Material ordered pursuant
to this Agreement to Vendor, Vendor's warehouse, Vendor's carrier (as may be
designated in the order), or Vendor's agent and not necessarily the final
destination shown on the order, prepaid and added to the invoice as may be
specified on individual orders. When Vendor requests Lucent to arrange the
transportation of the Product, Lucent shall ship all Products freight collect.
If Lucent is instructed to ship Product prepaid and add, Lucent shall select a
carrier based on the best rate, as negotiated by Lucent, and Vendor shall pay
Lucent's transportation costs in accordance with the standard factors then in
effect.
15. INSURANCE
(a) Any and all insurance and/or bonds that may be required under the laws,
ordinances and regulations of any governmental authority including
Worker's Compensation and
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Employer's Liability (individually and collectively "Workers Compensation") is
and shall be the sole responsibility of Vendor.
Without in any way limiting Vendor's obligations as set forth in Clause
[* Confidential treatment will be requested] below, Vendor shall
maintain at least the following insurance:
(1) Comprehensive General Liability (Bodily Injury and Property
Damage) Insurance including the following supplementary
coverage:
(i) Contractual Liability Insurance to cover liability
assumed under this Agreement;
(ii) Product and Completed Operations Liability Insurance;
and
(iii) Broad Form Property Damage Liability Insurance.
(2) In addition, if automobiles will be used by Vendor, Vendor
shall maintain Automobile Bodily Injury and Property Damage
Liability Insurance. Such insurance shall extend to owned,
non-owned and hired automobiles used in the performance of any
order and shall comply with all applicable laws, rules, and
regulations.
(3) The limit of the liability for such insurance as described in
subparagraphs (a) (1) and (a) (2) above shall not be less
than:
(i) one million dollars ($1,000,000) combined single
limit per occurrence, or
(ii) two hundred fifty thousand dollars ($250,000) for
bodily injury or death per occurrence and one hundred
thousand dollars ($100,000) for property damage per
occurrence.
(b) The insurance specified in paragraph (a) above shall:
(1) Provide that said insurance is primary coverage with respect
to all insureds.
(2) Contain a Standard Cross Liability Endorsement which provides
that the insurance applies separately to each insured, and
that the policies cover claims or suits by one insured against
the other.
(3) Not be terminated, canceled or substantially changed without
thirty (30) days prior written notice to Lucent.
(4) Identify in writing any deductible amount and type of
deductible.
(c) Vendor shall provide Lucent with certification, when requested by
Lucent, by a properly qualified representative of the insurer, of the
names of the insured, the type and amount
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of insurance, the location and operations to which the insurance
applies, the expiration date and the insurer's agreement to provide
written notice to Lucent at least thirty (30) days prior to the
effective date of any termination, cancellation, lapse or material
change in the policy.
(d) Vendor's obligations to maintain the insurance and to provide policy
endorsements as required herein shall survive the termination of this
Agreement, and Vendor agrees to maintain such insurance and
endorsements for a period of one (1) year beyond the written notice of
termination by either party.
(e) Vendor agrees to indemnify and save harmless Lucent from and against
any losses, damages, claims and liability that arise out of or result
from injuries or death to persons or damage to property caused by
Vendor's acts or omissions in any way arising out of Vendor's
performance under this Agreement, including claims from Lucent's
customers for warranty service, representations made by Vendor and
incidental and consequential damage. At Lucent's request, Vendor agrees
to defend Lucent against such claims, demands, or suits at Vendor's
expense. Lucent agrees to notify Vendor within a reasonable time of any
written claims or demands against Lucent for which Vendor is
responsible under this paragraph.
16. USE OF INFORMATION
All Information which bears a proprietary legend or notice restricting its use,
copying, or dissemination shall remain the property of the furnishing party
("Information"). The furnishing party grants the receiving party the right to
use such Information only as follows: such Information (1) shall not be
reproduced or copied, in whole or in part, except for use as authorized in this
Agreement; and (2) shall, together with any full or partial copies thereof; be
returned or destroyed when no longer needed. When Lucent is the receiving party,
Lucent shall use such information only for the purpose of performing under this
Agreement. When Vendor is the receiving party, Vendor shall use such Information
only (1) to evaluate or order Lucent's Products or (2) to install, operate and
maintain the particular Products for which it was originally furnished. Unless
the furnishing party consents in writing, such Information shall be held in
confidence by the receiving party, except for that part, if any, which is known
to the receiving party free of any confidential obligation, or which becomes
generally known to the public through acts not attributable to the receiving
party. The receiving party may disclose such Information to other persons, upon
the furnishing party's prior written authorization, but solely to perform acts
which this clause expressly authorizes the receiving party to perform itself and
further provided such other person agrees in writing (a copy of which writing
will be provided to the furnishing party at its request) to the same conditions
respecting use of Information contained in this clause and to any other
reasonable conditions requested by the furnishing party.
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17. INFRINGEMENT
In the event of any claim, action, proceeding or suit by a third party against
Vendor alleging an infringement of any United States patent, United States
copyright, or United States trademark, or a violation in the United States of
any trade secret or proprietary rights by reason of the use, in accordance with
Lucent's or other applicable specifications, of any Product, Licensed Material
(software or related documentation), if any, or other item furnished by Lucent
to Vendor under this Agreement, Lucent, at its expense, will defend Vendor,
subject to the conditions and exceptions stated below. Lucent will reimburse
Vendor for any cost, expense or attorney's fee, incurred at Lucent's written
request or authorization, and will indemnify Vendor against any liability
assessed against Vendor by final judgment on account of such infringement or
violation arising out of such use.
If Vendor's or ASI's use shall be enjoined or in Lucent's opinion is likely to
be enjoined, Lucent will, at its expense and at its option, either (a) replace
the affected Product, Licensed Material or other item furnished pursuant to this
Agreement with a suitable substitute free of any infringement or violation, (b)
modify it so that it will be free of the infringement or violation, or (c)
procure for Vendor or ASI a license or other right to use it. If none of the
foregoing options is practical, Lucent will accept the return of the enjoined
Product, Licensed Material or other item and refund to Vendor any amounts paid
to Lucent less a reasonable charge for any actual period of use by Vendor.
Vendor shall give Lucent prompt written notice of all such claims, actions,
proceedings or suits alleging infringement or violation and Lucent shall have
full and complete authority to assume the sole defense thereof; including
appeals, and to settle same. Vendor shall, upon Lucent's request and at Lucent's
expense, furnish all information and assistance available to Vendor and
cooperate in every reasonable way to facilitate the defense and/or settlement of
any such claim, action, proceeding or suit.
No undertaking of Lucent under this section shall extend to any such alleged
infringement or violation to the extent that it: (a) arises from adherence to
design modifications, specifications, drawings, or written instructions which
Lucent is directed by Vendor or ASI to follow, but only if such alleged
infringement or violation does not reside in corresponding commercial Product or
Licensed Material of Lucent's design or selection; or (b) arises from adherence
to instructions to apply Vendor's or ASI's trademark, trade name, or other
company identification; or (c) resides in a Product or Licensed Material which
is not of Lucent's origin and which is furnished by Vendor or ASI to Lucent for
use under this Agreement; or (d) relates to use of Products, Licensed Materials
or other items provided by Lucent in combinations with other Products, Licensed
Materials or other items, furnished either by Lucent or others, which
combination was not installed, recommended or otherwise approved by Lucent. In
the foregoing cases (a) through (d), Vendor will defend and save Lucent
harmless, subject to the same terms and conditions and exceptions stated above
with respect to Lucent's rights and obligations under this clause.
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* Confidential treatment will be requested
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* Confidential treatment will be requested
LUCENT PROPRIETARY
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* Confidential treatment will be requested
20. TRADEMARKS
Vendor will not, without Lucent's express written permission, use in marketing,
advertising, publicity, or otherwise any trade name, trademark, trade device,
service ▇▇▇▇, symbol, code, or specification or any abbreviation, contraction,
or simulation thereof ("▇▇▇▇") of the Lucent companies nor shall Vendor claim
any ownership therein. Vendor shall not remove, deface, alter or otherwise
obscure any ▇▇▇▇ of the Lucent companies which is on a Product sold under this
Agreement nor shall Vendor place any ▇▇▇▇ of any other company on any such
Product. Any such usage shall inure to the benefit of the Lucent company ▇▇▇▇
owner. As used in this Clause the term "Lucent" means Lucent Technologies Inc.,
▇▇▇▇ Labs and its Affiliated companies.
21. LEGISLATION AND GOVERNMENTAL REGULATIONS
Vendor shall at all times comply with all applicable requirements of federal,
state and local laws, ordinances, administrative rules and regulations. Vendor
shall contractually require its subcontractors, distributors and agents to
comply with all such legal requirements as well, and Vendor shall indemnify,
defend and hold harmless Lucent for any damages, losses, costs, or penalties
incurred by Lucent by virtue of such noncompliance by Vendor or its
subcontractors, distributors, or agents. If requested by Lucent, Vendor shall
advise Lucent in writing of the identity and addresses of its subcontractors,
distributors and agents in connection with the Products.
22. TERMINATION OF ORDERS
Vendor may, upon notice to Lucent, and upon terms that will compensate Lucent
from all loss, terminate any order or portion thereof, issue a "hold" on an
order, or suspend performance under the Agreement in whole or in part, except
with respect to Products which have already been shipped or services which have
already been performed. Vendor's liability to Lucent for any
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such termination, "hold" or suspension shall include, but not be limited to, the
price of all services performed and of Products delivered or held for
disposition, loss of profits, incurred costs (including charges made by Lucent
suppliers), work in progress, and an allocation of general and administrative
expenses.
23. TERMINATION OF AGREEMENT
(a) Either party may terminate this Agreement without cause or reason
whatsoever upon sixty (60) days prior written notice to the other
setting forth the effective date of such termination. The termination
of this Agreement shall not affect the obligations of the parties with
respect to any orders previously entered into hereunder, and the terms
and conditions of this Agreement shall continue to apply to such orders
as if this Agreement had not been terminated.
Upon termination of this Agreement without cause pursuant to this
paragraph neither party shall be liable to the other, either for
compensation or for damages of any kind or character whatsoever,
whether on account of the loss by Lucent or Vendor of present or
prospective profits on sales or anticipated sales, or expenditures,
investments, or commitments made in connection therewith or in
connection with the establishment, development or maintenance or
Vendor's business, or on account of any other cause or thing
whatsoever, provided that termination shall not prejudice or otherwise
affect the rights or liability of the parties with respect to Products
theretofore sold hereunder, or any indebtedness then owing by either
party to the other.
(b) Either party may terminate this Agreement, immediately, upon
twenty-four (24) hours written notice:
(i) if the other party files a petition in bankruptcy, or is
adjudicated bankrupt, or makes a general assignment for the
benefit of creditors, or becomes insolvent, or is otherwise
unable to meet its business obligations for a period of six
(6) months. Such party shall promptly and fully inform the
other party of the imminence or occurrence of any event
described in this subparagraph; or
(ii) in the event of change in the controlling ownership of Vendor
or in the event of a sale or assumption of all or
substantially all of the assets of Vendor on or after the
effective date of this Agreement, if such change, sale or
assumption is unacceptable by Lucent.
(iii) in the event the agreement between Vendor and ASI terminates
in which event Vendor shall notify Lucent of said termination
immediately and in writing.
(c) Either party may terminate this Agreement if the other party breaches
any of the material terms and conditions of this Agreement and the
other party fails to cure such breach within thirty (30) days after
written notice thereof from the non-breaching party.
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(d) Notwithstanding any other terms and provisions of this Agreement or
other arrangements agreed to by the parties, termination of this
Agreement shall automatically accelerate the due date of all invoices
for Products such that they shall become immediately due and payable on
the effective date of termination.
(e) Upon notice of termination, Lucent shall be entitled to reject all or a
part of any orders received from Vendor after notice but prior to the
effective date of termination.
Notwithstanding any credit terms made available to Vendor prior to that time,
any Product shipped after notice of termination and prior to effective date of
termination shall be paid for by certified or cashier's check prior to shipment.
Upon termination or non-renewal of this Agreement, Vendor shall immediately:
(1) Discontinue any and all use of marks (as defined in the Clause
TRADEMARKS) except to identify the Products, including but not
limited to such use in advertising or business material of
Vendor;
(2) Remove and return to Lucent or destroy at Lucent's request,
any and all promotional material supplied without charge by
Lucent;
(3) Return, upon request, all Lucent Information as described in
the paragraph Use of Information except that which Lucent
agrees is necessary to operate and maintain previously
furnished Products;
(4) Cease holding itself out, in any other manner, as a Vendor
capable of purchasing or obtaining Products for or on behalf
of ASI directly from Lucent; and
(5) Notify ASI and others who may, at the initiation of Vendor,
identify, list or publish Vendor's name as a Vendor capable of
purchasing or obtaining Products for or on behalf of ASI
(including but not limited to publishers of other business
directories) to discontinue such listings.
24. SURVIVAL OF OBLIGATIONS
The respective obligations of Vendor and Lucent under this Agreement which by
their nature would continue beyond the termination, cancellation or expiration
hereof shall survive such termination, cancellation or expiration.
25. FORCE MAJEURE
Except with respect to Vendor's obligation to make timely payments, neither
party shall be liable to the other party for any loss, damage, delay or failure
of performance resulting directly or indirectly from any cause which is beyond
its reasonable control, including, but not limited to the elements;
extraordinary traffic conditions, riots; civil disturbances, wars; states of
belligerency or acts of the public enemy; labor disputes; strikes, work
stoppages, inability to secure raw
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materials, product or transportation facilities; or the laws, regulations, acts
or failure to act of any governmental authority, including but not limited to
denial of a U.S. Export License, hereinafter referred to as "Force Majeure". A
Party shall promptly notify the other party of the occurrence of a Force Majeure
event and the notifying party shall be excused from any further performance of
these obligations affected by the Force Majeure event for as long as such Force
Majeure event continues and such party uses and continues to use its best
efforts to recommence performance. Failure of either party to perform under this
Agreement because of the endurance of a Force Majeure event for more than three
(3) months will represent grounds by either party for its termination of the
portion of this Agreement affected by the Force Majeure event.
26. ASSIGNMENT
Except as provided in this clause, neither party shall assign this Agreement or
any right or interest under this Agreement, nor delegate any work or obligation
to be performed under this Agreement, (an "Assignment") without the other
party's prior written consent. Nothing shall preclude a party from employing a
subcontractor in carrying out its obligations under this Agreement, but a
party's use of such subcontractor shall not release the party from its
obligations under this Agreement. An attempted assignment or delegation in
contravention of this clause shall be void and ineffective. Lucent has the sole
right to assign this Agreement and to assign its rights and delegate its duties
under this Agreement, in whole or in part, at any time and without Vendor's
consent, to any corporate parent or to any present Affiliate or to any
combination of the foregoing, provided that Lucent give prompt written notice of
such assignment to Vendor.
27. SEVERABILITY
If any provision in this Agreement, or any portion thereof is subsequently held
to be invalid or unenforceable under any applicable statute or rule of law, then
that provision or portion notwithstanding, this Agreement shall remain in full
force and effect and such provision or portion shall be deemed omitted and this
Agreement shall be construed as if such invalid or unenforceable provision or
portion had not been contained herein.
28. RELEASE VOID
Neither party shall require release or waivers of any personal rights from
representatives of the other in connection with visits to its premises and both
parties agree that no such releases or waivers shall be pleaded by them in any
action or proceeding.
29. NON-WAIVER
No waiver of the terms and conditions of this Agreement, or the failure of
either party to strictly enforce any term or condition of this Agreement on one
or more occasions shall be construed as a waiver of the same or of any other
term or condition of this Agreement on any other occasion.
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30. CHOICE OF LAW
The construction, interpretation and performance of this Agreement shall be
governed by the laws of the State of New York, except for its conflicts of law
provisions.
31. TECHNOLOGY OWNERSHIP
Lucent retains sole ownership of the design, assembly, testing rights and
information, regardless of Vendor's contribution to the value of those rights,
design and information. Lucent's sale of the Products to Vendor; Lucent's grant
to Vendor of the right to assemble, package, and sell the Product, conveys no
ownership rights whatsoever in any Product or the Product.
32. NOTICES
All notices, requests, approvals and other communications ("Notices") required
or allowed under this Agreement shall be in writing and addressed as set forth
below or to such other person and/or address as either party may designate by
written Notice pursuant hereto. Such Notices shall be deemed to have been given
when received. Notices may be delivered by hand or sent by prepaid certified or
registered airmail, confirmed facsimile or electronic mail, provided a copy is
also forwarded by prepaid registered airmail.
Lucent Technologies Inc.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: F. R. Bobka
VENDOR:
World Wide Technologies
Director-Business Operations
▇▇▇▇▇▇ Tojd
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
33. PURCHASE MONEY SECURITY INTEREST
(a) Subject to Lucent's prior written notice hereunder to Vendor of
Lucent's intent to file purchase money security documents as set forth
in the following and Vendor's failure to resolve any default(s) leading
to such action within ten (10) days of Lucent's notice, Lucent reserves
and Vendor agrees that Lucent shall have a purchase money security
interest in all Products heretofore sold or hereafter sold to Vendor by
Lucent under this Agreement, until any and all payments and charges due
Lucent under this Agreement including, without limitation, shipping and
installation charges, are paid in full. Lucent shall have the right, at
any time during the Term and without notice to Vendor, to file in any
state or local jurisdiction such financing statements (e.g., UCC1
financing statements) as Lucent deems necessary to perfect its purchase
money security interest
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hereunder. Vendor agrees to execute and deliver to Lucent all such
financing statements and other documents as Lucent deems necessary to
perfect its purchase money security interest hereunder. Notwithstanding
the foregoing obligation, Vendor hereby irrevocably appoints Lucent as
its attorney-in-fact for purposes of executing and filing such
financing statements and such other documents prepared by Lucent or its
designated agent for purposes of perfecting Lucent's security interest
hereunder. Vendor also agrees that this Agreement may be filed by
Lucent in any state or local jurisdiction as a financing statement (or
as other evidence of the Lucent's purchase money security interest).
(b) In addition to any other remedy available to Lucent as provided herein,
by common law and by statute, Lucent may exercise its right to reclaim
all Products sold to Vendor pursuant to U.C.C. Section 2-702 or such
other applicable provision as it may exist from state to state, upon
discovery of Vendor's insolvency, provided Lucent demands in writing
reclamation of such Products before ten (10) days after receipt of such
Products by Vendor, or if such 10 day period expires after the
commencement of a bankruptcy case, before twenty (20) days after
receipt of such Products by the Vendor.
34. SETTLEMENT OF DISPUTES
The following procedures shall apply after the Effective Date to any dispute or
disagreement between the parties arising out of this Agreement, provided,
however, that this Clause shall not apply to indemnification claims arising
under this Agreement nor to actions for injunctive relief by one party against
the other.
(a) Either party may give written notification of such dispute or
disagreement to the other party, if the other party is Vendor, to the
President and CEO of Vendor, or if the other party is Lucent, to the
Vice President Sales, ASI Region ("RVP") (together being the Senior
Executive Officers or "SEOs") and
(b) The SEOs shall communicate with each other promptly with a view to
resolving such dispute or disagreement within sixty (60) days of
commencing their negotiations (or such extended period as the SEOs
agree is appropriate in any case).
(c) The giving of any notice regarding any dispute or disagreement
hereunder shall toll the running of all applicable statutes of
limitation until the later of (a) ninety (90) days following the giving
of such notice or (b) thirty (30) days following the termination of
discussions between the SEOs.
35. GRANT OF LICENSE
(a) The license for Licensed Materials with "Tear-Me" or "Tear-Open"
licenses shall be as provided in those licenses and shall be provided
by Vendor in their unopened original package to the end-user.
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(b) For all other Licensed Materials which are provided to Vendor for its
own use, Lucent retains title to the Licensed Materials and grants
Vendor a personal, non-transferable (except as provided in paragraph
(c) below) and non-exclusive license to use Licensed Materials in the
territory on a single designated processor for its own business
operations. The Licensed Materials shall not be copied in whole or in
part except as necessary for authorized use and each copy shall bear
the same copyright and proprietary marks as the original. Vendor shall
not reverse engineer, decompile or disassemble any Software to obtain
corresponding Source Code.
(c) Lucent grants to Vendor the right to sublicense Licensed Materials to
ASI only, provided Vendor obtains a written license agreement from its
sublicensee which provides that it accepts the license under the terms
provided in the GPA between ASI and Lucent.
36. CLAUSE HEADINGS
The clauses headings contained in this Agreement are for the convenience only
and are not intended to affect the meaning or interpretation of this Agreement.
* Confidential treatment will be requested
38. AGREEMENT
(a) The terms and conditions contained in this Agreement supersede all
prior oral or written understandings between the parties and shall
constitute the entire Agreement between them concerning the subject
matter of this Agreement and shall not be contradicted, explained or
supplemented by any course of dealing between Lucent or any of its
Affiliates and Vendor or any of its Affiliates. Lucent's employees,
statements and its advertisements or descriptions other than its
published specifications do not constitute warranties or other
contractual obligations and shall not be relied upon by Vendor as such.
There are no understandings or representations, express or implied, not
expressly set forth in this Agreement. No terms or conditions contained
in any order or other form originated by Vendor shall apply except for
quantity, description, and delivery schedule terms. Notwithstanding
anything herein to the contrary, the parties intend that any agreement
between the parties not otherwise identified herein not related to the
Vendor status shall continue unaffected by this Agreement.
(b) This Agreement shall not be modified or amended except by a writing
signed by the parties to be charged, and no changes or additions to
this Agreement shall be binding upon Lucent unless signed by an
authorized representative of Lucent.
(c) Both parties acknowledge they are sophisticated business entities with
access to legal and financial counsel of their choosing and that each
has had the opportunity to comment
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upon and seek modifications to this Agreement. Therefore, the rule of
law of construction of ambiguities against the drafter shall not apply.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives.
LUCENT TECHNOLOGIES INC. WORLD WIDE TECHNOLOGY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------- ---------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------- -------------------------------
Title: Sales Director Title: Director - Telco Unit
-------------------------- ------------------------------
Date: 4-1-99 Date: 4-5-99
--------------------------- ------------------------------
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* Confidential treatment will be requested
DRAFT - FOR REVIEW ONLY
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* Confidential treatment will be requested
DRAFT - FOR REVIEW ONLY
LUCENT PROPRIETARY