SELECT PARTNER AGREEMENT
FOR
PRODUCTS
BETWEEN
NEWBRIDGE NETWORKS INC.
AND
IWL COMMUNICATIONS. INC.
TABLE OF CONTENTS
Page
1. Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. SELECT Partner's Obligations. . . . . . . . . . . . . . . . . . 1
3. SELECT Partner's Representations and Warranties . . . . . . . . 2
4. Newbridge's Obligations . . . . . . . . . . . . . . . . . . . . 3
5. Territory . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5.1 Referral Accounts . . . . . . . . . . . . . . . . . . . . . . . 4
6. Demonstration Products/Price Terms. . . . . . . . . . . . . . . 5
7. Co-Operative Advertising. . . . . . . . . . . . . . . . . . . . 5
8. Product Specification Changes . . . . . . . . . . . . . . . . . 6
9. Software License. . . . . . . . . . . . . . . . . . . . . . . . 6
10. Industrial Secrets and Industrial Property Rights . . . . . . . 6
11. Patent, Copyright and Trade Secret Infringement . . . . . . . . 6
12. Product Warranty. . . . . . . . . . . . . . . . . . . . . . . . 7
13. Disclaimer of Employment Relationship . . . . . . . . . . . . . 8
14. No Assignment . . . . . . . . . . . . . . . . . . . . . . . . . 8
15. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . 8
16. Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . 9
17. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . 9
Exhibit A - Newbridge Networks Products
Exhibit B - Newbridge Discounts for Direct Products
Exhibit C - Newbridge Direct Purchase Request Form
Exhibit D - Newbridge International Direct Purchase Request Form
Exhibit E - Newbridge Finder's Fee Request Form
Exhibit F - Newbridge End User Software License Agreement
SELECT PARTNER AGREEMENT
This SELECT PARTNER AGREEMENT ("Agreement") is made effective as of 11TH ,
day of October, 1996, by and between, NEWBRIDGE NETWORKS INC., a corporation
organized and existing under the laws of the State of Delaware, with its
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter called "Newbridge"), and IWL COMMUNICATIONS. INC., a corporation
organized and existing under the laws of the State of TEXAS, with its
principal place of business at, ▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
(hereinafter called "SELECT Partner").
WHEREAS Newbridge desires to appoint the SELECT Partner to actively promote
sales or use of its products (hereinafter called "Products"), as more fully
set forth on Exhibit A attached hereto, and to provide a high level of
pre-sales and after-sales support to purchasers of such Products; and
WHEREAS the SELECT Partner desires to accept such appointment.
NOW THEREFORE, in consideration of the mutual premises and agreements
hereinafter contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
mutually covenant and agree with each other as follows:
1. TERM
A. This Agreement shall remain in effect for a period of one year from
its effective date. Thereafter, it shall remain in effect unless
terminated by either party upon at least ninety (90) days prior
written notice.
B. The SELECT Partner program, as set forth herein, shall be in effect
during each Newbridge fiscal year, May 1 through April 30 (hereinafter
called "Program Year") during the term of this Agreement. Newbridge
reserves the right to modify the SELECT Partner program for any
subsequent Program Year.
2. SELECT PARTNER'S OBLIGATIONS
SELECT Partner agrees:
A. To purchase annually a minimum of XXXXX, net of any discounts, of
the Newbridge Products listed on Exhibit A herein through one or
more of Newbridge's Distributors (hereinafter called "Distributors").
B. For those Newbridge Products not listed on Exhibit A herein or those
Products identified as "Non-Dist" in the Newbridge price list, SELECT
Partner may purchase such Products directly from Newbridge subject to
the following: (i) all such direct sales shall be subject to approval
and acceptance by Newbridge prior to the placement of any orders, (ii)
discounts for the Non-Dist Products are those shown in Exhibit B and
(iii) all direct sales will require the completion of a "DIRECT
PURCHASE REQUEST" form (Exhibit C).
C. To use its best efforts to actively sell or market the Products. This
obligation shall not affect the rights of the SELECT Partner or any
other SELECT Partner under Article 5 of this Agreement.
D. To develop a marketing business plan which shall promote the sales or
use of the Products through regular contact with customers in the
Authorized Area, as specified in Paragraph 5.A. Newbridge shall review
this plan on quarterly basis to ensure compliance.
E. To keep its customers in the Authorized Area advised of new Products,
as SELECT Partner may be advised of from time to time.
F. To cooperate with Newbridge, and to be supported by Newbridge, in
advertising and sales campaigns for the Products initiated by
Newbridge in the Authorized Area.
G. To provide, at its sole expense, an effective means of demonstrating
to potential and existing customers the capabilities of the Products.
H. To conduct advertising and sales campaigns with respect to the
Products using such kinds of appropriate promotional materials as are
consistent with SELECT Partner's obligation hereunder. SELECT Partner
shall display Products at those trade shows at which it exhibits
telecommunication products.
I. SELECT Partner shall not create any cartons, packaging or labels for
the Products without Newbridge's prior written consent. Newbridge
shall have the continuing right to inspect and review any of SELECT
Partner's advertising and sales material with respect to the Products,
and packaging with respect to the Products, and to disapprove same or
require such modifications as Newbridge deems advisable. In the event
Newbridge requires any changes, SELECT Partner, upon written notice,
shall modify such material and/or packaging to comply with Newbridge's
instructions.
J. To prominently display on all advertisements and sales materials
related to the Products, current Newbridge trademarks and logos,
supplied or approved by Newbridge.
K. To assign an individual who will act as SELECT Partner coordination
manager for Newbridge. This individual will assist Newbridge in the
creation and dissemination of all necessary reports, policies and
procedures in the fulfillment of this Agreement.
L. To extend to customers any warranty given by Newbridge to SELECT
Partner on Products. SELECT Partner itself may not extend additional
Newbridge warranties to customers and agrees to refrain from making
any claim, representation or warranty concerning the Products in
excess of those made by Newbridge.
M. To complete the prerequisites necessary to receive accreditation as an
"Authorized Service Agent for Newbridge Networks Inc." Such
prerequisites are detailed in Newbridge's SELECT Plus Partner
Certification Agreement, which is incorporated herein by reference.
SELECT Partner will be required to complete accreditation in a minimum
of one (1) of the eight (8) product categories listed below within six
(6) months from the effective date of this Agreement. Accreditation in
a particular product category provides Select Partner with the ability
to complete Installation and Maintenance support services for the
Products in that particular category only. Newbridge reserves the
right to terminate this Agreement if such accreditation is not
complete within the six (6) month time frame. The product categories
are as follows:
1. CHBNK - 3624,3630 & 3620
2. Small Mux - 3606, 3612
3. 3600
4. 3645
5. Frame Relay - 3600 FRE, 36120
6. ATM - 36150, 36170
7. NMS - 4602, 46020
8. LAN - ACC Routers
N. To refer customers requiring installation and/or maintenance services
to Newbridge for such services when; (i) SELECT Partner is not
accredited on the Products, and/or (ii) Products are purchased
directly from Newbridge SELECT Partner, at its option, may utilize
Newbridge personnel for installation and maintenance services on all
Products available through Distribution. Installation prices shall be
as set forth in Exhibit A.1.
2
3. SELECT PARTNER'S REPRESENTATIONS AND WARRANTIES
SELECT Partner represents and warrants that:
A. SELECT Partner is not involved in any litigation which would
materially affect SELECT Partner's performance under this Agreement,
excepting those matters previously disclosed to Newbridge by SELECT
Partner in writing.
B. SELECT Partner shall maintain a high degree of financial integrity and
ethical conduct in its relations with purchasers of the Products.
C. SELECT Partner is in good standing with at least one Distributor.
4. NEWBRIDGE'S OBLIGATIONS
A. Newbridge hereby designates SELECT Partner as a non-exclusive, factory
authorized, provider of the Products.
B. Newbridge reserves the right to add or delete Products. Newbridge
shall have the right to incorporate alternative components as long as
those components are the functional equivalent of or are better than,
components previously used and such alternative components do not
alter form, fit or function of the Product.
C. Newbridge will provide local sales training conducted by the
appropriate Newbridge Sales Representative, to SELECT Partner's sales
representatives, at no charge to the Select Partner, at least once a
year. Such training shall highlight the features, applications and
benefits of the Products and will include reference copies of sales
material.
D. Newbridge will provide sales literature, including product line
brochures, data sheets, application notes and general information
books, to SELECT Partners, at no charge, in such quantities as
Newbridge deems advisable. Additional quantities will be available in
bulk at Newbridge's cost.
E. Newbridge shall provide SELECT Partner, at cost, with Newbridge
promotional materials, including, but not limited to tee-shirts, pens,
folios, mugs, etc. A brochure of all promotional items will be
supplied upon request.
F. Newbridge will provide SELECT Partners with price books and new
Product announcements or enhancements in the form of product
bulletins.
G. Newbridge will regularly distribute comparative information that
highlights the competitive advantages of the Products.
H. Newbridge will publish a quarterly newsletter specifically for SELECT
Partners. Such newsletter will feature application articles,
information on other SELECT Partners, and articles on new products,
markets and opportunities. SELECT Partners shall be encouraged to
contribute to this newsletter. Additionally, SELECT Partners shall
receive a copy of Newbridge's quarterly publication "International
News".
I. Newbridge shall provide sales leads from Newbridge advertising, sales
programs and telemarketing to specific SELECT Partners located in the
area in which a customer is located. The intent is to distribute
individual leads to the SELECT Partner with the best chance of closing
the sale due to specific account familiarities. Newbridge shall be
fair and equitable in its exercise of discretion hereunder.
J. Newbridge will provide SELECT Partners with priority access, on a
no-charge basis, to the Network Design Assistance Center (hereinafter
called "NDAC"). The NDAC will assist with Product configuration
questions, Product order information, and assist with other technical
issues.
3
K. Newbridge will maintain the confidentiality of customer information
provided by a SELECT Partner to Newbridge and exercise the same degree
of care in maintaining such confidentiality as Newbridge exercises
with respect to its own information of like importance.
L. Newbridge may provide special courses for SELECT PLUS Partners at
preferred rates.
M. Newbridge shall provide SELECT Partner with (i) priority call back to
the Newbridge National Technical Assistance Center ("NTAC") 24
hours/365 days per year; and (ii) access to the Newbridge Information
Retrieval Service (hereinafter called "NIRS Bulletins Board").
5. TERRITORY
A. Nothing in this Agreement shall be construed as conferring upon SELECT
Partner an exclusive distributorship, dealership, franchise or
territory for marketing the Products. A SELECT Partner may make sales
of the Products in any of the fifty (50) United States, the District
of Columbia and Puerto Rico (the "Authorized Area"), subject to SELECT
Partner's ability to fulfill its obligations under this Agreement.
B. Due to the need to maintain high standards for support of the
Products, Newbridge reserves the right to require SELECT Partner to
provide such information as Newbridge requires to determine SELECT
Partner's ability to adequately support the Products on all sales made
outside of the United States.
C. Equipment shall be delivered F.O.B. Origin for all US orders placed
direct with Newbridge and F.O.B. Point of Embarkation for all
international orders. Shipments to locations outside of the United
States will be accomplished through Newbridge Networks Corporation and
Newbridge reserves the right to select the means of transportation and
routing unless otherwise advised. SELECT Partner shall be responsible
for all shipping charges, import and customs duties and any applicable
taxes which may be imposed by the country of destination.
D. In the event that the Select Partner uncovers a sales opportunity
outside of the Authorized Area, such sales will be handled on a
case-by-case basis. For all sales made outside of the United States,
SELECT Partner will be required to obtain product configuration
approval from the appropriate Newbridge System Engineer prior to
presenting any quotation to a customer. Such approval can be obtained
by submitting a completed "Quote Request Form" to the appropriate
Newbridge Systems Engineer. All direct international sales will
require the completion of an "INTERNATIONAL DIRECT PURCHASE REQUEST"
form (Exhibit D) and approval from the appropriate Newbridge
individuals. Newbridge shall have the right to approve all
international sales and for all such sales, at least one intelligent
node on the customer's network must reside in the United States.
All sales made outside of the Authorized Area will be at prices
set forth in Exhibit B.
6. REFERRAL ACCOUNTS
A. SELECT Partner may refer certain customers directly to Newbridge for
the purchase of Newbridge products not available for sale through
Newbridge's distributors. In all such cases SELECT Partner shall be
entitled to receive a referral fee as outlined in paragraph E below.
All referral accounts will require the completion of a "FINDERS FEE
REQUEST" form (Exhibit E) and approval from the appropriate Newbridge
individuals.
B. SELECT Partner acknowledges that each customer referred to Newbridge
has not previously made contact with Newbridge for the purpose of
purchasing products and that all customers referred to Newbridge must
not be a Newbridge existing customer.
C. SELECT Partner shall be required to transfer complete account control,
including the right for future product(s) sales, to Newbridge in
exchange for payment of the referral fee.
4
D. During the term of SELECT Partner's responsibilities hereunder, SELECT
Partner will not sell competitive equipment or represent a competitive
manufacturer into the account where it has received a referral fee
from Newbridge.
E. Newbridge will pay to SELECT Partner a referral fee based on a
percentage of the net revenue received during the first two years
after the account referral date, according to the following schedule:
(For purposes hereof, net revenue shall be the invoiced value of
products shipped by Newbridge to the customer.)
REVENUE FEE
------- ---
▇▇▇▇▇ ▇▇▇▇▇%
▇▇▇▇▇ ▇▇▇▇▇%
▇▇▇▇▇ ▇▇▇▇▇%
F. Newbridge agrees to pay Representative the referral fee no later than
thirty (30) days after Newbridge receive payment from the customer.
7. DEMONSTRATION PRODUCTS / PRICE TERMS
A. Newbridge shall sell reasonable quantities of demonstration Products
to the SELECT Partner at a purchase price equal to Newbridge's then
current list price, less a XXXXXX discount.
B. The SELECT Partner shall order the customer demonstration Products by
issuance of a written purchase order directly to Newbridge. Each
purchase order shall include the quantity of Product, a requested ship
date for each item, the method of shipment and the location to which
the Product should be shipped. Newbridge shall have the exclusive
right to limit the amount of customer demonstration Products which a
SELECT Partner may purchase.
C. Newbridge will use its best efforts to meet the requested ship date in
SELECT Partner's purchase order but will not be liable to the SELECT
Partner or to any other person if it fails to meet the requested ship
date. Orders without requested ship date will be processed for
shipment according to the then current shipment schedule.
D. All prices are F.O.B. Newbridge shipping point. Freight will be
prepaid and billed and shown separately.
8. CO-OPERATIVE ADVERTISING
A. Newbridge shall provide co-operative advertising funds (hereinafter
"Co-op Dollars") to SELECT Partners. These funds shall accrue to such
SELECT Partner based upon the net dollar amount of Product purchased
from the Distributors and may be spent as set forth below.
B. Newbridge shall establish a Co-op Dollars account for each SELECT
Partner. Co-op Dollars shall be earned on an annual basis, the
Newbridge fiscal year, commencing May 1. Each SELECT Partner shall
earn Co-Op Dollars for annual purchases as follows:
VOLUME OF PURCHASES FROM DISTRIBUTORS CO-OP DOLLARS EARNED
------------------------------------- ----------------------
i) Up to XXXXXX per year XXXXX% of annual purchases
ii) Over ▇▇▇▇▇ ▇▇▇▇▇% of annual purchases
C. Newbridge will receive quarterly reports from Distributors indicating
the SELECT Partner invoiced dollar volume (net of any discounts).
Newbridge shall provide a Co-Op Dollars report to SELECT Partners on a
quarterly basis.
5
D. Newbridge will disburse Co-Op Dollars as follows:
i) On a XXXXX basis (i.e., dollar for dollar with
non-Co-op Dollar funds expended by SELECT Partner) if SELECT Partner
elects tn purchase co-operative advertising including advertisement
creation and placements; direct mail campaigns that include
advertisement creation and mailing costs; and sponsorship of events
and seminars; or
ii) As a credit against charges incurred by SELECT Partner if SELECT
Partner elects to purchase bulk quantities of Product brochures;
installation and training course fees; dial-in bulletin board access;
additional quantities of promotional items with the Newbridge
name/logo; and catalogue production cost assistance if Products are
included.
E. Subject to the provisions of subparagraph D and subparagraph E of this
Article, a SELECT Partner may borrow Co-op Dollars in an amount not
to exceed the greater of $XXXXX or XXXX of the Co-op Dollars which
would have been earned during Newbridge's last fiscal year.
F. All requests for disbursement of Co-op Dollars must be in writing and
shall be subject to Newbridge approval.
G. All Co-op Dollars shall be used within XXXXX of the close of
the Newbridge fiscal year in which they were earned.
9. PRODUCT SPECIFICATION CHANGES
Newbridge has the right to make any changes to any of its Products as it
deems necessary or desirable without prior notice to the SELECT Partner,
except those changes affecting form, fit or function of which Newbridge
shall give SELECT Partner advance, prior written notice.
10. SOFTWARE LICENSE
A. All software products which are a part of this Agreement shall be
subject to Newbridge's "End User License Agreement" (EXHIBIT F) and
any software license shall be granted by Newbridge and/or Newbridge's
suppliers directly to the end user. SELECT Partner is hereby granted a
non-exclusive right to offer Newbridge and/or Newbridge supplied
software, for which a license fee is paid, to end user customers, only
in conjunction with SELECT Partner's sale of the software products
relicensed under this Agreement. SELECT Partner agrees that all such
software shall be treated as the exclusive proprietary property of
Newbridge and/or Newbridge's suppliers, as appropriate. SELECT Partner
shall take those steps as may be necessary to hold this software in
confidence for the benefit of Newbridge or Newbridge's suppliers, as
appropriate, and make the software available solely in conjunction
with the Products for which the software is furnished. The SELECT
Partner shall not provide or make the software available to any person
except to its employees on a "need-to-know" basis and shall issue
adequate instruction to persons as may be necessary to satisfy SELECT
Partner's obligation under this section.
B. SELECT Partner agrees that it will require each customer to execute
Newbridge's standard "End User License Agreement" as a part of any
contract package for all orders which contain Newbridge and/or
Newbridge supplied software. Any transfer of the software products is
limited to the customer's internal use solely on either or both of the
primary NetworkStation and the redundant NetworkStation included with
customer's communications network.
11. INDUSTRIAL SECRETS AND INDUSTRIAL PROPERTY RIGHTS
A. Industrial Secrets. SELECT Partner acknowledges that Newbridge has
developed and uses valuable technical and non-technical information,
patents, trade secrets and the like in the Products purchased under
this Agreement. SELECT Partner warrants that neither it nor any of
its employees will knowingly convert to their own use or to the use of
any other party any industrial secrets, trade secrets, patent,
manufacturing or other process, copyright or the like owned by
6
Newbridge and obtained by SELECT Partner and its personnel by reason
of this Agreement or otherwise, provided such information is
designated in writing or marked as proprietary to Newbridge at time of
disclosure to SELECT Partner.
B. Industrial Property Rights. SELECT Partner recognizes and acknowledges
the great value of the goodwill associated with the name and
trademarks of Newbridge and the identification of the Products
therewith. SELECT Partner will make its best effort to not obscure,
effect or permit the removal or alteration of any patent numbers,
trade names or marks, warning labels, serial numbers, or the like
affixed to any Product or package.
12. PATENT, COPYRIGHT AND TRADE SECRET INFRINGEMENT
A. Newbridge shall indemnify, defend, and otherwise hold SELECT Partner
harmless from all costs, losses, damages or liability, including
reasonable attorney's fees, (excluding any consequential, incidental
and punitive damages) arising from any judgment made against SELECT
Partner, to the extent that such judgment is based on a finding that
the Products furnished by Newbridge under this Agreement infringe any
U.S. patent, copyright or trade secret. Newbridge shall defend any
suit alleging such infringement which is brought against SELECT
Partner or any of its customers, and shall pay all reasonable legal
costs and expenses incurred and satisfy all judgments and decrees
against SELECT Partner, provided that SELECT Partner notifies
Newbridge within ten (10) business days of the date any such claim
becomes known to SELECT Partner and SELECT Partner provides such
assistance and cooperation to Newbridge as is reasonably requested at
Newbridge's expense.
B. In the event SELECT Partner or its customers are enjoined from their
use of Newbridge's Products due to a proceeding based upon any
infringement of any U.S. patent, copyright or trade secret, Newbridge
shall either:
i) promptly render the Product non-infringing and capable of
providing services as intended, or
ii) procure for SELECT Partner the right to continue using the
Product, or
iii) replace the Product with non-infringing goods, or
iv) remove the Product and refund the purchase price and
transportation costs thereof.
C. The foregoing constitutes the entire liability of Newbridge with
respect to infringement of patents, copyrights and trade secrets for
Products purchased pursuant to this Agreement. Such liability does not
include consequential, incidental and punitive damages, including, but
not limited to, loss of profits or damage to business or business
relations.
13. PRODUCT WARRANTY
A. WARRANTY TO SELECT PARTNER Newbridge hereby represents and warrants;
(i) Newbridge has all right, title, ownership interest and/or
marketing rights necessary to provide the Products to Select Partner;
(ii) the Products are new or warranted as new, and free from defects
in material and workmanship; and (iii) that upon payment in full, all
Hardware Products shall be delivered free and clear of liens, claims
or encumbrances of any kind.
B. Select Partner shall have the right to return to Newbridge for credit
or replacement any DOA Product that is returned to Select Partner
within thirty (30) days after the initial delivery date to the End
User. Newbridge shall bear reasonable costs of shipping, via ground
transportation, and risk of loss for shipment of DOA Products to
Newbridge's location and respective replacement product back to Select
Partner or Select Partner's customer. The Select Partner should not
accept returns on Products for Emergency Replacement Service unless
agreed to by Newbridge.
7
C. WARRANTY TO END USERS Newbridge's warranties to End Users of the
Products are only as provided in Exhibit G of this Agreement. Newbridge
makes no warranties to Select Partner beyond these warranties.
Newbridge agrees that Select Partner shall be entitled to pass through
to Resellers and to End Users of the Products the Product warranties
set forth in Exhibit G herein. Select Partner shall have no authority
to alter or extend any of the warranties of Newbridge expressly
contained or referred to in this Agreement without prior approval of
Newbridge.
D. COMPLETE WARRANTY THE WARRANTIES SET FORTH ABOVE ARE COMPLETE AND
ARE IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR REPRESENTATIONS,
EXPRESS OR IMPLIED BY STATUTE, USAGE, CUSTOM OF THE TRADE OR
OTHERWISE. NOTWITHSTANDING ANY OTHER OR PRIOR STATEMENT, WRITTEN OR
ORAL, NEWBRIDGE MAKES NO OTHER WARRANTIES REGARDING ITS PRODUCT(S) OR
THE MATERIALS AND SERVICES CONTEMPLATED HEREUNDER. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, NEWBRIDGE EXPRESSLY DISCLAIMS
WARRANTIES OR REPRESENTATIONS OF WORKMANSHIP, MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, DURABILITY, THAT A LICENSED PROGRAM WILL
MEET ALL OF CUSTOMER'S NEEDS OR THAT THE OPERATION OF THE LICENSED
SOFTWARE WILL BE ERROR FREE. THESE WARRANTIES ARE INVALID IF
DISTRIBUTOR SELLS THE PRODUCTS OUTSIDE THE TERRITORY.
14. DAMAGES AND LIABILITY
UNDER NO CIRCUMSTANCES WILL NEWBRIDGE BE LIABLE FOR INCIDENTAL,
CONSEQUENTIAL, INDIRECT, RESULTING, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND
(INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR DAMAGE TO BUSINESS OR
BUSINESS RELATIONS), HOWEVER CAUSED, ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS AGREEMENT OR ANY ORDER FOR EQUIPMENT ARISING HEREUNDER OR THE
PURCHASE OR USE OF EQUIPMENT OR SERVICES FURNISHED BY NEWBRIDGE TO
CUSTOMER. IN NO EVENT WILL NEWBRIDGE'S TOTAL LIABILITY, IN DAMAGES OR
OTHERWISE, EXCEED THE AMOUNTS ACTUALLY RECEIVED BY NEWBRIDGE FOR FURNISHING
THE PARTICULAR SERVICE OR UNIT OF PRODUCT WHICH IS THE SUBJECT OF A CLAIM
OR DISPUTE. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THE EQUIPMENT OR SERVICES FURNISHED BY NEWBRIDGE MAY BE
BROUGHT BY CUSTOMER MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION HAS
ACCRUED OR SUCH SHORTER STATUTORY PERIOD AS MAY BE APPLICABLE.
15. DISCLAIMER OF EMPLOYMENT RELATIONSHIP
Neither Newbridge's nor SELECT Partner's officers, employees or agents
shall be deemed officers, direct or indirect employees, or agents of the
other and neither Newbridge nor SELECT Partner shall represent that its
relationship with respect to the other is other than as an independent
contractor. Nothing in this Agreement shall create in either party any
right or authority to incur any obligations on behalf of, or to bind in any
respect, the other party.
16. TERMINATION
A. Either party to this Agreement shall have the right to terminate this
Agreement as of the date either party to this Agreement breaches any
of its representations and warranties or any other material term of
this Agreement.
B. This Agreement may be terminated by Newbridge as follows:
i) SELECT Partner attempts to assign its rights or delegate its
obligations under this Agreement to a third party without the
prior written consent of Newbridge; or
ii) there is a change, directly or indirectly, in the control or
material ownership the SELECT Partner; or
8
iii) if the SELECT Partner makes a general assignment for the benefit
of creditors, is not generally paying its debts as they become
due, files a petition in bankruptcy, is adjudicated a bankrupt or
insolvent, files a petition seeking any reorganization,
arrangement, liquidation, or similar relief under any present or
future statute, law or regulation, or files an answer admitting to
or fails to contest the material allegations of a petition filed
against it in any such proceeding, or seeks, consents to or
acquiesces in the appointment of any trustee, receiver, custodian
or liquidator of any material part of its properties.
C. Termination for cause under subparagraphs A and B (i), (ii) and (iii)
of this Article 15 will be effective fifteen (15) days after written
notice is received by either party from the other, unless such breach
shall be remedied within such period to the satisfaction of the party
complaining of such breach.
D. Neither party shall, by reason of the termination of this Agreement,
be liable to the other for compensation, reimbursement or damages on
account of the loss of prospective profits on anticipated sales, or on
account of expenditures, investments, leases or commitments entered
into or made in connection with the business or goodwill of the other.
E. The provisions of paragraph 2.L., 8, 9, 10 and 11 shall survive any
termination of this Agreement.
17. FORCE MAJEURE
Neither Newbridge nor SELECT Partner shall be deemed to be in default of
any provision of this Agreement for any failure in performance resulting
from acts or events beyond its reasonable control, including acts of God,
acts of civil or military authority, civil disturbance, strikes, fires or
other catastrophes.
18. MISCELLANEOUS
A. Governing Law. This Agreement shall be governed by the substantive law
of the Commonwealth of Virginia.
B. Severability. The provisions of this Agreement shall bc deemed
severable. If any provision of this Agreement shall be held
unenforceable by any court of competent jurisdiction, the remaining
provisions shall remain in full force and effect.
C. Merger. All understandings and agreements made between the parties
are merged into this Agreement which fully and completely expresses
the agreement of the parties with respect to the subject matter
hereof.
D. Amendments. This Agreement shall not be amended or modified except in
writing signed by the parties hereto. No course of dealing or usage of
trade by or between the parties shall be deemed to effect any such
amendment or modification.
E. Headings. All headings and captions contained herein are for
convenience and ease of reference only and are not to be considered in
the construction or interpretation of any provision of this Agreement.
F. Notices. Any notice required to be sent or given to SELECT Partner or
Newbridge shall be sent by certified or registered mail, return
receipt requested, addressed as follows:
SELECT Partner: IWL COMMUNICATIONS. INC.
▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Attention: J ▇▇▇▇▇ ▇▇▇▇▇▇▇
9
NEWBRIDGE: Newbridge Networks Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Contracts and Administration
G. Waivers. Any consent by any party to, or waiver of, a breach by the
other, whether express or implied, shall not constitute a consent to,
or a waiver of any other, different or subsequent breach.
H. Non-Solicitation. Each party agrees that during the term of the
Agreement it will not solicit, entice, persuade or induce any
individual who currently is, or at any time during the term of this
Agreement shall be, an employee of either party, to terminate or
refrain from renewing such individuals employment.
H. In no event shall SELECT Partner or Newbridge be liable for indirect,
special, incidental or consequential damages arising out of or in
connection with this Agreement, whether in contract, tort (including
negligence), strict liability or otherwise.
I. SELECT Partner shall not assign or transfer any rights or obligations
under this Agreement without the prior written consent of Newbridge.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
NEWBRIDGE NETWORKS INC. IWL COMMUNICATIONS. INC.
-------------------------------
(SELECT PARTNER)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------- ---------------------------
for
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------ --------------------------
Title: Sr. V.P. Sales- Title: Executive Vice President
America's Region -------------------------
-----------------------
Date: 10-11-96 Date: 7/21/96
------------------------ --------------------------
Accepted for Newbridge Networks Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------
10
EXHIBIT A
NEWBRIDGE NETWORKS PRODUCTS
16XX MAINSTREET TERMINAL ADAPTERS
26XX MAINSTREET DATA TERMINATION UNITS
35XX MAINSTREET TAP SYSTEM
3600 MAINSTREET BANDWIDTH MANAGER
3606 MAINSTREET LITTLE MUX
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ MULTIPLEXER
3620 MAINSTREET REMOTE ACCESS CONTROLLER
3624 MAINSTREET INTELLIGENT T-1 CHANNEL BANK
3630 MAINSTREET PRIMARY RATE MULTIPLEXER
4601 MAINSTREET NETWORK MANAGEMENT SOFTWARE
VIVID ATM LAN PRODUCTS
PRODUCTS THAT CAN BE DROP-SHIPPED THROUGH
DISTRIBUTION WITH PRIOR APPROVAL FROM NEWBRIDGE
3645 MAINSTREET HIGH CAPACITY BANDWIDTH MGR
36120 MAINSTREET FRAME RELAY SWITCH
36150 MAINSTREET ATM NET
36170 MAINSTREET ATMNET BACKBONE SWITCH
EXHIBIT A.1
INSTALLATION SERVICES/PRICES
Newbridge Network Services has identified three distinct Service Zones in the
Continental United States for the purposes of Installation Services. These
are defined as follows:
Zone "A": Any location between 1-100 miles driving distance of a
Newbridge Service Center.
Zone "B": Any location between 101-200 miles driving distance of a
Newbridge Service Center.
Zone "C": Any location in the Continental US. that is more than 200 miles
driving distance from a Newbridge Service Center.
NEWBRIDGE SERVICE CENTER LOCATIONS--NORTH AMERICA
Atlanta, GA Houston, TX Orlando, FL Seattle, WA
Bakersfield, CA Iselin, NJ Philadelphia, PA St. Louis, MO
Boston, MA Long Island, NY Phoenix, AZ Toronto, CAN
Calgary, CAN Los Angeles, CA Pittsburgh, PA Vancouver, CAN
Chicago, IL Miami/ Portland, OR Warwick, RI
Ft. Lauderdale, FL
Cincinnati, OH Minneapolis, MN Raleigh, NC Washington, DC
Cleveland, OH Montreal, CAN Sacramento, CA
Dallas, TX New Haven, CT San Diego, CA
Denver, CO New York, NY San Francisco CA
Herndon, VA Ottawa, CAN Scranton, PA
INSTALLATION AND COMMISSIONING
Installation is the function of unpacking, assembling and mounting the
Newbridge equipment at the Customer location. This includes ground, power and
interconnection cabling to the demarcation points as well as the
implementation of all inter-rack cabling. Commissioning is the set of
programming, testing and cutover activities carried out by Newbridge
personnel on the Customer premises. The standard cutover support allocation
included in Installation and Commissioning is dependent on the type of
equipment being installed, as shown below:
EXPECTED INSTALL TIME AFTER HOURS CUTOVER SUPPORT
Small Node XXXX XXXX
Single Shelf 3600 XXXX XXXX
Dual Shelf 3600 XXXX XXXX
3645; 36150 or XXXX XXXX*
36170 (8- & 16-port)
*This number is average (per Peripheral shelf). The extent of after-hour
cutover support for these products is a function of the size and complexity
of the node configuration.
Services offered, as shown above, under the standard Installation and
Commissioning include on-site after-hour cutover support of Customer voice
and data circuits provided that function can be performed on the same day as
the installation of the equipment. Any additional time or support required on
a day other than the date of installation requires Extended Cutover Support
(Part Number 91-0008-01).
Newbridge will only install and commission equipment that has previously been
staged (SIAT).
All installation work performed by Newbridge Networks Inc. is warranted to be
free from workmanship defects in accordance with Newbridge installation
specifications for a period of sixty (60) days. This warranty requires that
the node(s) be accessible via a dial-up modem.
Pricing for Installation and Commissioning is based on a percentage of the
equipment list price, and minimum per site charges apply, as shown below.
Standard installations are performed between the hours of 8 a.m. and 5 p.m.
(local time), Monday through Friday. Installations to be performed outside of
those times will be billed at one and a half times the standard installation
rate. Installations to be performed on Newbridge holidays will be
accommodated on a best effort basis and will he billed at twice the standard
installation rate.
INSTALLATION RATES FOR NETWORKS
ZONE PRICE MINIMUM MINIMUM
ADD ON NEW INSTALL
A XXX XXX XXXX
B XXX XXX XXXX
C XXX XXX XXXX
SPECIAL INSTALLATION PRICING CONSIDERATIONS
Special Pricing considerations are applicable when quoting 4602 Delegate
Workstations, 3645 Nodal equipment, and the 8-port and 16-port versions of the
36150 and 36170. Prices are as follow:
4602 Delegate Station(s) Flat Rate Installation
-----------------------------------------------
ZONE PRICE
A XXX
B XXX
C XXX
3645: 36150/70 (8- & 16-Port) Installation
------------------------------------------
ZONE PRICE
A XXX
B XXX
C XXX
NOTES
(1) SELECT PARTNERS ARE ENTITLED TO RECEIVE A XXXXXXX DISCOUNT OFF THE ABOVE
INSTALLATION RATES WHEN THE SELECT PARTNER CONTRACTS DIRECTLY WITH NEWBRIDGE
FOR SUCH INSTALLATION SERVICES.
(2) NNINS5100, Newbridge Networks Incorporated Installation Policy, details
the tasks to be performed by both Newbridge and the Customer under the
installation agreement.
(3) A minimum two (2)-week lead time from Network Services' receipt of the
Project Information Package (PIP) to the requested installation date is
MANDATORY for Domestic nodal installations. A one (1) week lead time is
required for card additions or reconfigurations to an existing node.
(4) A minimum three (3) week lead time from Network Services' receipt of
Project Information Package (PIP) to the requested installation date is
MANDATORY for all International installations.
SPECIAL NOTE: A CUSTOMER MAY ACCELERATE THE INSTALLATION SCHEDULE OF A
DOMESTIC NODE BY PURCHASING EXPEDITED INSTALLATION SERVICES (PART NUMBER
91-5106-01). NODES TO BE INSTALLED OUTSIDE OF THE CONTINENTAL UNITED STATES
OR CANADA MUST ADHERE TO THE THREE (3) WEEK LEAD TIME.
EXPEDITED INSTALLATION SERVICES
This offering is a premium service performed in conjunction with standard
Installation and Commissioning that offers priority treatment for domestic
installations. Under this service, an installation is placed in a priority
status and the minimum mandatory lead time from PIP receipt to installation
date is decreased from two (2) weeks to four (4) working days.
Upon receipt of the PIP, IWR and Purchase Order, the request will be
immediately assigned to both a Project Engineer and Installation Coordinator
for priority processing.
Pricing for this service is a flat rate fee per node in addition to the
standard Installation and Commissioning charges:
Small Node XXX
Large Node (minus 3645) XXX
3645;36150 or 36170 (8- & 16-port) XXX
SPECIAL NOTE: THIS SERVICE DOES NOT IMPLY ANY GUARANTEE OF A FOUR (4) DAY
RESPONSE BUT RATHER A PRIORITY PLACEMENT IN THE WORK QUEUE AND A BEST EFFORT BY
NETWORK SERVICES TO COMPLETE THE INSTALLATION IN A MINIMAL AMOUNT OF TIME.
EXTERNAL FACTORS AFFECTING EXPEDITED INSTALLATIONS INCLUDE THE ACCURACY AND
COMPLETENESS OF THE PIP, IWR, AND CUSTOMER PURCHASE ORDER, AS WELL AS SITE
READINESS, LINK READINESS, AND EQUIPMENT AVAILABILITY. EXPEDITED INSTALLATIONS
ARE ONLY AVAILABLE FOR DOMESTIC NODE INSTALLATIONS.
INSTALLATION RATE STRUCTURE WHEN NEWBRIDGE CONTRACTS SELECT
PARTNER FOR SERVICES AND RECOMMENDED RATE STRUCTURE
FOR INTER-SELECT PARTNER INSTALLATIONS.
The pricing outlined below represents the price a SELECT Partner will receive
from Newbridge when Newbridge contracts with a SELECT Partner for
installation services. The pricing also represents Newbridge's recommendation
for inter-Select Partner installation charges. Pricing for Installation is
based on a percentage of the equipment list price, and minimum per site
charges apply, as shown below. Standard installations are performed between
the hours of 8 a.m. and 5 p.m. (local time), Monday through Friday.
Installations performed outside of these times will be paid at one and a half
times the standard installation rate. Installations performed on SELECT
Partner holidays will be paid at twice the standard installation rate.
A. Sub Contracted rates for NEW INSTALLATIONS shall be reimbursed as follows:
SMALL MUX EQUIPMENT LARGE MUX EQUIPMENT
(3606,3612,3624,3620,3630) (3600,3645)
RATE SITE MINIMUM RACK & STACK SITE MINIMUM
Zone A XXX XXX XXX XXX
Zone B XXX XXX XXX XXX
Zone C XXX XXX XXX XXX
B. Sub Contracted rates for ADD-ON INSTALLATIONS shall be reimbursed as
follows:
SMALL MUX EQUIPMENT LARGE MUX EQUIPMENT
(3606,3612,3624,3620,3630) (3600,3645)
RATE SITE MINIMUM RACK & STACK SITE MINIMUM
Zone A XXX XXX XXX XXX
Zone B XXX XXX XXX XXX
Zone C XXX XXX XXX XXX
NOTE: All installs & upgrades shall be performed at the above Flat
Rates based on equipment list price, inclusive of all expenses
incurred.
EXHIBIT B
PRICING/DISCOUNT SCHEDULE FOR PURCHASES MADE DIRECTLY
FROM NEWBRIDGE AND FOR SALES MADE OUTSIDE OF THE UNITED STATES
1. NEWBRIDGE DIRECT PRODUCTS PRICING
The discount to the SELECT Partner for products purchased directly from
Newbridge shall be XXX% from Newbridge's US list price. Workstation
equipment, non-Newbridge manufactured equipment, maintenance and training
are not subject to a discount.
2. NEWBRIDGE PRODUCT PRICING FOR SALES MADE OUTSIDE OF THE UNITED STATES.
Prices for sales made by the SELECT Partner to customers located outside of
the United States will be based upon the Newbridge International price list
which governs the location where the Products will be installed, at
discounts shown below.
International Price list Discount
Region 1 Products to be installed in the United States, XXX%
Canada and South America. (NSA Region)
Region 2 Products to be installed in Europe, the XXX%
Middle East, and Africa. (EMEA Region)
Region 3 Products to be installed in Asia, Pacific XXX%
Region (APR Region)
EXHIBIT C
DIRECT PURCHASE REQUEST FORM
NEWBRIDGE Select Partner
--------------------------------------------------------------------------------
Direct Purchase Request
--------------------------------------------------------------------------------
SELECT PARTNER Information
Name:
----------------------------------------------------------------------
Address:
----------------------------------------------------------------------
----------------------------------------------------------------------
SELECT Acct. Mgr. Phone #:
-------------------------- ------------------------
MNI Acct. Mgr. Date:
-------------------------- ------------------------
--------------------------------------------------------------------------------
END USER Information
Company Name:
------------------------------------------------------------------
Address:
----------------------------------------------------------------------
Contacts: Phone #:
------------------------------------ ------------------------
--------------------------------------------------------------------------------
PROJECT Information
Products to be purchased from NNI:
------------------------- ------------------------- -------------------------
Estimated total dollar value of project:
--------------------------------------
--------------------------------------------------------------------------------
APPROVALS
Director, Reseller Sales: Date:
------------------------------------ ------------
Asst. Vice President/
Area Director: Date:
---------------------------------------------- ------------
Network Services: Date:
-------------------------------------------- ------------
Credit Approval: Date:
-------------------------------------------- ------------
--------------------------------------------------------------------------------
EXHIBIT D
INTERNATIONAL DIRECT PURCHASE REQUEST FORM
NEWBRIDGE Select Partner
--------------------------------------------------------------------------------
International Direct Purchase Request
--------------------------------------------------------------------------------
SELECT PARTNER Information
Name:
----------------------------------------------------------------------
Address:
----------------------------------------------------------------------
----------------------------------------------------------------------
SELECT Acct. Mgr. Phone #:
-------------------------- ------------------------
NNI Acct. Mgr. Date:
-------------------------- ------------------------
--------------------------------------------------------------------------------
END USER Information
Company Name:
------------------------------------------------------------------
Address:
----------------------------------------------------------------------
Contacts: Phone #:
------------------------------------ ------------------------
--------------------------------------------------------------------------------
PROJECT Information
Products to be purchased from NNI:
-------------- --------------- ---------------
Countries that product will be installed:
--------------------------------------
Estimated total dollar value of project:
--------------------------------------
--------------------------------------------------------------------------------
APPROVALS
Director, Reseller Sales: Date:
------------------------------------ ------------
Asst. Vice President/
Area Director: Date:
---------------------------------------------- ------------
Network Services: Date:
-------------------------------------------- ------------
Credit Approval: Date:
-------------------------------------------- ------------
--------------------------------------------------------------------------------
EXHIBIT E
FINDER'S FEE REQUEST FORM
NEWBRIDGE Select Partner
--------------------------------------------------------------------------------
Finder's Fee Request
--------------------------------------------------------------------------------
SELECT PARTNER Information
Name:
----------------------------------------------------------------------
Address:
----------------------------------------------------------------------
----------------------------------------------------------------------
SELECT Acct. Mgr. Phone #:
-------------------------- ------------------------
NNI Acct. Mgr.
Date:
-------------------------- ------------------------
--------------------------------------------------------------------------------
END USER Information
Company Name:
------------------------------------------------------------------
Address:
----------------------------------------------------------------------
Contacts: Phone #:
------------------------------------ ------------------------
--------------------------------------------------------------------------------
PROJECT Information
Description of Opportunity:
-------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Products
------------------------------------------------------------------------
Estimated total dollar value of project:
--------------------------------------
--------------------------------------------------------------------------------
APPROVALS
Director, Reseller Sales: Date:
------------------------------------ ------------
Vice President: Date:
---------------------------------------------- ------------
Contracts: Date:
-------------------------------------------- ------------
--------------------------------------------------------------------------------
\
SELECT PARTNER AGREEMENT
EXHIBIT F
END USER LICENSE AGREEMENT
END USER LICENSE AGREEMENT
THIS AGREEMENT is made this ______ day of_________________, 19____, between
NEWBRIDGE NETWORKS INC., a Delaware corporation with principal offices
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ("Newbridge") and
_____________________________, having principal offices located at
_______________("Customer").
1. LICENSE
1.1 All software provided to Customer shall be licensed subject to the terms
and conditions of this Agreement and, as applicable, the terms set forth in
the third party "shrink-wrapped" license packed with the software. Newbridge
grants to Customer and Customer accepts a non-exclusive, non-transferable
license to use any software and related documentation provided by Newbridge
pursuant to this Agreement ("Licensed Software") for Customer's own internal
use, solely in conjunction with hardware supplied or approved by Newbridge.
In case of equipment failure, Customer may use the Licensed Software on a
back-up system, but only for such limited time as is reasonably required to
rectify the failure.
1.2 Customer acknowledges that Newbridge may have encoded within the Licensed
Software an "application key", establishing the usage and functionality
(e.g., the number of equivalent nodes and workstations or other features) of
the software as it has been licensed to the Customer. The usage or
functionality of such Licensed Software may be expanded only upon payment to
Newbridge of an applicable upgrade fee. The above referenced application key
shall be conveyed to Customer upon installation of the Licensed Software or
upgrade.
2. PROTECTION AND SECURITY OF LICENSED SOFTWARE
2.1 Customer acknowledges and agrees that the Licensed Software contains
proprietary and confidential information of Newbridge and its third party
suppliers and agrees to keep such information confidential. Customer agrees
not to allow access to the Licensed Software except by its employees having a
need for such access, in keeping with it's intended use as set forth herein.
Such employees shall have been advised of the confidential and proprietary
nature of information contained in the Licensed Software and shall have
agreed to protect same.
2.2 All right, title and interest in and to the Licensed Software, other than
that expressly granted to Customer herein, shall remain vested in Newbridge
or its third party suppliers. Customer shall not, and shall not permit others
to: copy, translate, modify, create derivative works from, reverse engineer,
decompile, encumber or otherwise use the Licensed Software, except as is
specifically authorized under this Agreement. All appropriate copyright and
other proprietary notices and legends shall be retained on all Licensed
Software supplied by Newbridge, and Customer shall maintain and reproduce
such notices on any full or partial copies made.
3. TERM
3.1 The license shall become effective upon delivery of the Licensed Software
to Customer.
3.2 Newbridge may terminate this Agreement and/or any license issued
hereunder: (a) upon written notice to Customer if any amount payable to
Newbridge is not paid within thirty (30) days of the date on which payment is
due; (b) if Customer becomes bankrupt, makes an assignment for the benefit of
its creditors, or if its assets vest or become subject to the rights of any
trustee, receiver or other administrator; (c) if bankruptcy, reorganization
or insolvency proceedings are instituted against Customer and not dismissed
within 15 days; or (d) if Customer breaches a material provision of this
Agreement and such breach cannot be rectified or is not rectified within 15
days of receipt of written notice of the breach from Newbridge.
3.3 Upon termination of any license, Customer shall return or destroy all
copies of the respective Licensed Software. All obligations of Customer
arising prior to termination, and those obligations relating to
confidentiality and non-use, shall survive termination of this Agreement or
of the license.
4. SUPPORT AND UPGRADES
Customer shall receive software support and upgrades for the Licensed
Software only to the extent provided for in the applicable Newbridge software
support program then currently in effect, and upon payment of any applicable
fees.
5. CHARGES
Upon shipment of the Licensed Software, Newbridge will invoice Customer for
all fees, and any taxes, duties and other charges. Customer will be invoiced
for any increased usage and functionality upon issuance by Newbridge of a new
software application key. All amounts shall be due and payable within thirty
(30) days of receipt of invoice. Interest may, at Newbridge's discretion, be
charged on the balance of any overdue amount at a level not to exceed 1 1/2%
per month (19.6% per annum) or highest rate allowed by law.
6. INDEMNIFICATION
Newbridge shall defend and indemnify Customer in any action to the extent
that such action is based upon a claim that the Licensed Software furnished
by Newbridge infringes any patent, copyright, trade secret or other
intellectual property right, provided that Customer: notifies Newbridge
within ten (10) days of its discovery of the existence or imminence of such
claim, gives Newbridge sole control of the litigation or settlement of the
claim, and provides all such assistance as Newbridge may reasonably require.
Notwithstanding the foregoing, Newbridge shall have no liability if the claim
results from any modification or unauthorized use of the Licensed Software by
Customer or use of the Licensed Software in combination with any software or
equipment not supplied or expressly approved by Newbridge, in which event
Customer shall defend and indemnify Newbridge against such claim.
7. WARRANTIES
7.1 Newbridge warrants, for a period of 90 days from the date of shipment,
that the Licensed Software, as originally delivered to Customer, will operate
substantially in accordance with the functional description set out in the
user manual supplied with the Licensed Software, when the Licensed Software
is used in accordance with the user manual. Newbridge's sole liability and
Customer's sole remedy for a breach of this warranty shall be Newbridge's
good faith effort to rectify the nonconformity or, if after repeated efforts
Newbridge is unable to rectify the non-conformity, Newbridge shall accept
return of the Licensed Software and shall refund to Customer all amounts paid
in respect thereof. This warranty is available only once in respect of any
Licensed Software, and is not renewed by the payment of fees for additional
equivalent nodes or other increased use.
7.2 NEWBRIDGE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OR REPRESENTATIONS OF
WORKMANSHIP, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY,
OR THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE ERROR FREE.
7.3 Customer acknowledges and agrees that the Licensed Software supplied
under this contract are intended for standard commercial uses and are not
specifically designed, manufactured or intended for use or resale in critical
applications or hazardous environments requiring fail-safe performance and in
which the failure of Licensed Software could lead directly to death, personal
injury, or severe physical or environmental damage (including, without
limitation, the operation or on-line control of nuclear facilities, aircraft
navigation or communication systems, air traffic control, direct life support
machines, or weapons systems). Such undertakings are considered "High Risk
Activities". Suitability of Licensed Software for use in one or more High
Risk Activities would require additional appropriate development and design
engineering by Newbridge including but not limited to the addition of
appropriate redundancy and/or contingency procedures. Newbridge and its
suppliers explicitly disclaim any express or implied warranty of fitness for
High Risk Activities and customer hereby agrees to release and hold Newbridge
harmless from liability resulting out of or in connection with implementation
of these Licensed Software in High Risk Activities.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL THE TOTAL COLLECTIVE LIABILITY OF NEWBRIDGE, ITS EMPLOYEES,
DIRECTORS, OFFICERS OR AGENTS FOR ANY CLAIM, REGARDLESS OF VALUE OR NATURE,
EXCEED THE AMOUNT PAID PURSUANT TO THIS AGREEMENT FOR THE LICENSED SOFTWARE
THAT IS THE SUBJECT MATTER OF THE CLAIM. IN NO EVENT SHALL THE TOTAL
COLLECTIVE LIABILITY OF NEWBRIDGE, ITS EMPLOYEES, DIRECTORS, OFFICERS OR
AGENTS FOR ALL CLAIMS EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO NEWBRIDGE
HEREUNDER. WITH THE EXCEPTION OF DAMAGES FOR THE MISUSE OR MISAPPROPRIATION
OF SOFTWARE, PROPRIETARY PROPERTY OR CONFIDENTIAL INFORMATION, NO PARTY SHALL
BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT
SUCH DAMAGES ARE FORESEEABLE, AND/OR THE PARTY HAD BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
9. GENERAL
9.1 Under no circumstances shall either party be liable to the other for any
failure to perform its obligations (other than the payment of any monies
owing) where such failure results from causes beyond that party's reasonable
control.
9.2 This Agreement constitutes the entire agreement between Newbridge and
Customer with respect to the subject matter referenced and supersedes all
prior oral and written communications. No alteration or amendment to this
Agreement shall be valid unless the same shall be in writing and signed by
authorized representatives of both parties.
9.3 If any provision of this Agreement is held to be invalid, illegal or
unenforceable, it shall be deemed severed and the remaining provisions shall
continue in full force and effect.
9.4 The Licensed Software may contain freeware or shareware obtained by
Newbridge from one or more third party source(s). No license fee has been
paid by Newbridge for the inclusion of any such freeware or shareware, and no
license fee is charged to Customer for its use. CUSTOMER ACKNOWLEDGES AND
AGREES THAT THE THIRD PARTY SOURCE(S) PROVIDE(S) NO WARRANTIES AND SHALL HAVE
NO LIABILITY WHATSOEVER IN RESPECT OF CUSTOMER'S POSSESSION AND/OR USE OF THE
FREEWARE OR SHAREWARE.
9.5 Newbridge shall have the right, at its own expense and upon reasonable
written notice to Customer, to periodically inspect Customer's premises and
such documents as it may reasonably require, for the exclusive purpose of
verifying Customer's compliance with its obligations under this Agreement.
9.6 Any notice provided hereunder shall be sent to the party's respective
address listed above, or to any other such address as may be specified from
time to time. Notices shall be deemed to have been received five days after
deposit with a post office when sent by registered or certified mail, postage
prepaid and receipt requested.
9.7 If the Licensed Software is being acquired by or on behalf of any unit or
agency of the United States Government, the following provision shall apply:
If the Licensed Software is supplied to the Department of Defense, it shall
be classified as "Commercial Computer Software" and the United States
Government is acquiring only the rights specified in this License Agreement
as defined in DFARS 227.7202-1(a) and 227.7203-3(a). If the Licensed Software
is supplied to any other unit or agency of the United States Government,
rights will be defined in Clause 52.227-19(c)(2) of the FAR, or if acquired
by NASA, Clause 18-52.227-86(d) of the NASA Supplement to the FAR.
9.8 Customer shall comply with all export regulations pertaining to the
Licensed Software in effect from time to time. Without limiting the
generality of the foregoing, Customer expressly warrants that it will not
directly or indirectly export, re-export, or transship the Licensed Software
in violation of any export laws, rules or regulations of Canada, the United
States or the United Kingdom.
9.9 No term or provision of this Agreement shall be deemed waived and no
breach excused unless such waiver or consent is in writing and signed by the
party claimed to have provided such waiver or consent. No waiver by either
party of any right, failure to perform or of any breach by the other party
hereunder, shall be deemed to be a waiver of any other right hereunder or of
any other breach or failure by such other party, whether of a similar nature
or otherwise.
9.10 This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Virginia. The application of the United
Nations Convention on Contracts for the International Sale of Goods is hereby
expressly excluded.
IN WITNESS WHEREOF, the undersigned certify their authority to bind the
respective parties hereto and have executed this Agreement.
NEWBRIDGE NETWORKS INC.:
By: By:
------------------------------ ------------------------------
--------------------------------- ----------------------------------
Name Name
--------------------------------- ----------------------------------
Title Title
EXHIBIT G
END USER WARRANTY
HARDWARE PRODUCT WARRANTY
A. Newbridge warrants the following with respect to the Hardware Product:
(1) that the Hardware Product is free from defects in material and
workmanship;
(2) that upon payment in full all Hardware Product shall be delivered free
and clear of liens, claims or encumbrances of any kind.
B. The above warranties shall extend to the original retail purchaser (or
commercial lessee) of 3624 and 3630 series Equipment for a period of sixty
(60) months from the date of shipment; the above warranties shall extend to
the original retail purchaser (or commercial lessee) of all other Equipment
for a period of fourteen (14) months from the date of shipment.
C. With respect to products sold but not manufactured by Newbridge, Newbridge
will assign to Customer all warranties allowed by the manufacturer.
D. If Newbridge installs the Hardware Product, Newbridge will warrant the
installation against defects in material and workmanship for a period of
sixty (60) day from the date of installation and provide all parts and
on-site labor (including transportation costs of Newbridge's technician(s))
necessary to restore the Hardware Product to proper operating condition at
no charge to Customer. The warranty period for repair parts and labor and
for replaced Equipment shall be the remainder of the warranty for the
repaired or replaced item or ninety (90) days, whichever is greater.
E. Except as specifically provided under section D above, Newbridge's
liability under warranty shall be limited to either repair or replacement
of the defective Product in accordance with Article 9 below. Newbridge
shall incur no obligation under this warranty if (i) the allegedly
defective Product is returned to Newbridge more than thirty (30) days after
the expiration of the applicable warranty period, or if (ii) Newbridge's
verifiable tests disclose that the alleged defect is not due to defects in
material or workmanship.
LIMITED SOFTWARE WARRANTIES
Newbridge warrants for a period of 90 days from the date of shipment that the
Licensed Software as originally shipped to Customer, when used in accordance
with the user manual supplied with the Licensed Software, will operate
substantially in accordance with applicable functional descriptions set forth in
such manual. Newbridge's sole liability and Customer's sole remedy pursuant to
this warranty shall be Newbridge's good faith efforts to rectify the
nonconformity or, if after repeated efforts Newbridge is unable to rectify the
non-conformity, Newbridge shall accept return of the Licensed Software and shall
refund to Customer all amounts paid to Newbridge in respect thereof. This
warranty is available only once in respect of any Licensed Software, and is not
renewed by the payment of fees for additional equivalent nodes or other enhanced
use.
SERVICE AND MAINTENANCE WARRANTY
The services provided under this agreement shall be performed in a workmanlike
manner, using qualified maintenance technicians, familiar with the equipment and
its operation and, upon timely payment in full, no liens or encumbrances shall
accrue from the performance of the services provided hereunder. In the event
that, within ninety (90) days from the provision of any service hereunder, the
maintenance material or services provided are found not to conform to any
Newbridge specification, Newbridge will correct or replace the defective
maintenance material or service provided hereunder at no charge to the Customer.
WARRANTY LIMITATIONS AND EXCLUSIVITY
THE WARRANTIES SET FORTH ABOVE ARE COMPLETE AND ARE IN LIEU OF ALL OTHER
WARRANTIES, CONDITIONS OR REPRESENTATIONS, EXPRESS OR IMPLIED BY STATUTE,
USAGE, CUSTOM OF THE TRADE OR OTHERWISE. NOTWITHSTANDING ANY OTHER OR PRIOR
STATEMENT, WRITTEN OR ORAL, NEWBRIDGE MAKES NO OTHER WARRANTIES REGARDING ITS
PRODUCT(S) OR THE MATERIALS AND SERVICES CONTEMPLATED HEREUNDER. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, NEWBRIDGE EXPRESSLY DISCLAIMS
WARRANTIES OR REPRESENTATIONS OF WORKMANSHIP, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, DURABILITY, THAT A LICENSED PROGRAM WILL MEET ALL OF
CUSTOMER'S NEEDS OR THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE ERROR
FREE.
NO HIGH RISK USE
Customer acknowledges and agrees that the Products supplied under this
contract are intended for standard commercial uses and are not specifically
designed, manufactured or intended for use or resale in critical applications
or hazardous environments, requiring fail-safe performance and in which the
failure of Products could lead directly to death, personal injury, or severe
physical or environmental damage (including, without limitation, the
operation or on-line control of nuclear facilities, aircraft navigation or
communication systems, air traffic control, direct life support machines, or
weapons systems). Such undertakings are considered "High Risk Activities".
Suitability of Products for use in one or more High Risk Activities would
require additional appropriate development and design engineering by
Newbridge including but not limited to the addition of appropriate redundancy
and/or contingency procedures. Newbridge and its suppliers explicitly
disclaim any express or implied warranty of fitness for High Risk Activities
and customer hereby agrees to release and hold Newbridge harmless from
liability resulting out of or in connection with implementation of these
Products in High Risk Activities.
REPAIR AND RETURN PROCEDURES
If Customer has entered into a mutually executed agreement with Newbridge,
maintenance services, procedures and costs shall be as specified in that
Agreement. To the extent not covered by such an agreement, Newbridge will
process requests for the repair of Product according to the following policy:
A. No Product shall be returned without prior Newbridge authorization.
Newbridge's Service Representatives will be provided all necessary
information from Customer for processing the return and issuing a Return
Authorization (RA) number.
B. Damaged, inoperative or malfunctioning Equipment must be returned by
Customer in static protective material, securely packaged to prevent damage
in transit with the RA Number written on the outside of the package, and
shipped prepaid to:
Newbridge Networks Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attn: Repair Services
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
C. Newbridge will either repair or, at its option, replace defective Product
under warranty within fifteen (15) working days of receipt. Newbridge will
return repaired Equipment via surface freight. The cost of expedited
freight, if provided, shall be at Customer's expense. The Warranty for
repaired or replaced Products shall be the remainder of the original
warranty period of ninety (90) days from the date of repair or replacement,
whichever is greater.
D. Product found to be operable after testing (e.g. no trouble found),
according to Newbridge's current manufacturing standards, shall be subject
to Newbridge's then-current handling charge.
E. Repairable out-of-warranty Product will be repaired at Newbridge's
then-current repair charges within fifteen (15) working days of receipt
of the Product and Customer's applicable purchase order or other written
authorization to repair. The Warranty for out-of-warranty serviced Products
shall be ninety (90) days from the date of service.
F. When used and handled in accordance with the manufacturer's instructions
the Hardware Product (including any laser device) is safe in normal use and
transportation. Newbridge is available to answer inquiries regarding the
proper use, recycling or disposal of any product or component.