Contract Number: C 11494
VOICE SOLUTIONS RESELLER AGREEMENT
UNITED STATES AND CANADA
between
3Com Corporation
and
Air Nexus Inc
-------------
("Reseller)
This Reseller Agreement ("Agreement") is made effective as of Nov. 23, 1999(the
"Effective Date"), by and between 3Com Corporation, a Delaware corporation with
lit principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ("3Com") and Air Nexus Inc, a Texas corporation with its
principal place of business at ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇.
Whereas, 3Com develops, manufactures and markets Voice Solutions products,
including selected telephony hardware, related networking equipment and software
as listed on the Reseller Price List set forth in Appendix Aattached hereto (the
----------
"Products"); and whereas, the Reseller acts as value added reseller for
telecommunications hardware, telephony-related hardware and software products
and/or other related networking and computer products; and whereas, 3Com and the
Reseller desire the Reseller to act as an independent, non-exclusive Reseller of
the Products on the terms and conditions set forth in this agreement.
NOW, THEREFORE, in consideration of the covenants and agreements herein, 3Com
and Reseller agree as follows:
1. Minimum Purchase
Reseller intends to purchase from 3Com at least two hundred thousand dollars
($200,000) of Products per year (at the price invoiced to Reseller) during the
term of this Agreement, and to use its best efforts to promote the sale of the
Products to the satisfaction of 3Com. Reseller's failure to meet the minimum
purchase commitment level may result in termination of this Agreement.
2. Appointment as Authorized 3Com Reseller
2.1 Grant of Rights. 3Com hereby grants to Reseller, and Reseller
hereby accepts from 3Com, a nonexclusive right and license to distribute the
Products solely to end-users in the territory set forth on Appendix B.For
-----------
purposes of this Agreement, the term "end-user" means any person or entity who
obtains a 3Com Product solely to fulfill its own internal needs and not for
distribution or resale.
2.2 Reserved Rights. All rights not specifically granted to Reseller
hereunder are reserved by 3Com. Except as expressly provided hereunder in
connection with the distribution of the Products, 3Com does not convey any
intellectual property rights to Reseller hereunder. 3Com reserves the right to
discontinue developing, producing, licensing, or distributing any of the 3Com
Products and to modify, replace or add to the 3Com Products in its discretion at
any time. 3Com further reserves the right to modify the Product pricing set
forth on the Reseller Price List in Appendixat any time. The appointment of
--------
Reseller hereunder does not transfer or create a franchise, equity interest or
any other similar right, title or interest in any 3Com Product to Reseller.
3. Obligations of Reseller
3.1 Promotional Efforts, Sales, Service and Related Activities.
Reseller agrees to use commercially reasonable efforts to promote, sell and
service the Products in accordance with this Agreement and 3Com's distribution
policies as announced from time to time. Reseller agrees to provide a suitable
place of business with adequate and efficient sales and service personnel as is
appropriate to maximize the sale and support of the Products to Reseller's
customers. 3Com, Reseller will comply with the obligations applicable to "3Com
dealers" in the Terms and Conditions attached hereto as Appendix C(the "End-User
----------
Agreement"). Without limiting the generality of the foregoing, Reseller agrees
to honor all requests for repair or replacement made by end-users pursuant to
the terms of the End-User Agreement pertaining to the defective units.
3.2 Compliance with Laws. Reseller will comply with all applicable laws
and regulations in performing its duties hereunder and in any of its dealings
with respect to 3Com Products.
3.3 3Com Packaging. The Products will be packaged in accordance with
standard commercial practices for domestic shipment. Except as otherwise agreed
by the parties in writing, Reseller will distribute 3Com Products with the
End-User Agreement and all other packaging, warranties, manuals, disclaimers and
license agreements intact as shipped from 3Com.
4. Obligations of 3Com
4.1 Documentation. At no additional charge, 3Com will provide to
Reseller complete documentation for each Product and any additional materials
relating to Products made available directly by 3Com to resellers and end-users.
In the event Reseller desires additional documentation, 3Com. will provide such
documentation at prices to be mutually agreed upon by 3Com. and Reseller.
4.2 Assistance. 3Com will make available by telephone, 24 hours, 7 days
a week, a support representative to answer questions regarding 3Com Products,
clarify Product data, and make recommendations concerning operating 3Com
Products.
5. Order Procedure; Returns
5.1 Orders. Reseller may place orders for Products by faxing purchase
orders to the appropriate order entry location as specified by 3Com from time to
time in writing and stating the 3Com. Product number, quantity, applicable
price, requested delivery date, ▇▇▇▇ to and ship to addresses, special shipping
instructions (if any), partial/no partials allowed, and any special order
handling instructions. The minimum order amount is U.S. $250.00, except in the
case of Spares. 3Com may decline to make shipments to Reseller if Reseller is
delinquent in making payments to 3Com or is otherwise in breach of this
Agreement.
Purchase orders for Products should be submitted to the following location.
Ordering locations may change to best fit Reseller's needs. Reseller should
check with its ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Manager to insure orders are sent to the correct
location.
3Com Corporation
Attn.: Order Management
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Toll-Free phone (▇▇▇)▇▇▇▇▇▇▇ [(▇▇▇)▇▇▇-▇▇▇▇]
5.2 Booking Window. The standard booking window is sixty (60) days from
the date of order entry. This may be extended to one hundred twenty (120) days
with prior approval in writing from 3Com's Area Sales Manager and beyond 120
days with the approval of the Distribution Services Group ("DSG") Director or if
required due to product availability.
5.3 Rescheduling. Reseller may reschedule shipping within the booking
window. Shipments, delayed beyond the booking window will be cancelled and five
percent (5 %) cancellation charge will be assessed.
5.4 3Com Acceptance. Orders shall be subject to written acceptance by
3Com and delivery schedules established in accordance with Product availability
and Reseller's credit status. Requested delivery dates may be no less than five
(5) business days after 3Com's receipt of Reseller's purchase order. 3Com will
use commercially reasonable efforts to ship on the scheduled dates but will not
be liable for failure to do so. All delivery dates are contingent upon receipt
of any necessary credit documents or export licenses. If 3Com fails to make
Product available on the scheduled ship date, Reseller may reschedule or cancel
without charge.
5.5 CONTROLLING TERMS. Although Reseller may use its standard purchase
order and other forms, the terms and conditions of this Agreement will prevail
over Reseller's forms and any inconsistent, conflicting or different terms in
such form will be of no effect.
5.6 3COM CANCELLATION. 3Com reserves the right to cancel or suspend any
orders placed by Reseller and accepted by 3Com, or refuse or delay shipment
thereof, if Reseller fails (1) to make any payment as provided herein or in any
invoice; (2) to meet credit or financial requirements established by 3Com; or
(3) otherwise to comply with the terms and conditions of this Agreement.
5.7 RESELLER CANCELLATION. Once an order has been accepted by 3Com, it
may not be cancelled by Reseller unless (1) 3Com has failed to ship the order,
or any portion thereof, within thirty (30) days of the date of 3Com's
confirmation of such order; and (2) Reseller provides written notice of such
cancellation, and 3Com acknowledges such cancellation in writing; and (3) 3Com
has not yet shipped the order or portion thereof which Reseller desires to
cancel.
5.8 Returns. Return of Product to 3Com falls into two categories:
(a) Credit Return Authorizations (CRA) for the return of new/unused Product
under the discontinued products and limited product return (where available)
provisions of this Agreement, or necessitated by incorrect shipments. Only
credit is available for such returns. No refunds will be made. Reseller must
obtain a CRA number by contacting 3Com Order Management with all required
information.
(b) Return Material Authorizations (RMA) for the return of Product
under warranty or for non-warranty repair. No credit or refunds are allowed
except as otherwise provided for in the warranty.
(c) Shipping cartons that are not marked with a CRA or RMA number will
be rejected by 3Com. Materials must be packed securely to avoid physical damage
and electrostatic discharge. Products must be shipped to 3Com F.O.B.
Destination, within five (5) days of issuance of CRA or RMA number. 3Com accepts
no responsibility for damage to goods that are being returned to 3Com. Reseller
shall be responsible for insuring the Products and parts while in transit to
3Com.
No Product may be returned to 3Com other than as stated above.
6. PAYMENT TERMS, DELIVERY AND RISK OF LOSS
6.1 PURCHASE AGREEMENT. Reseller agrees to purchase and to pay for all
Products ordered from 3Com, at the purchase prices listed in the Reseller Price
List set forth in Appendix Aand on the payment terms set forth in this Section
----------
6. Prices are subject to change in accordance with Section 7. 1.
6.2 Delivery. 3Com Products will be shipped Ex Works (1990 Incoterms),
3Com's shipping docks, freight collect. Title and risk of loss shall pass to
Reseller upon delivery to the first common carrier, except that shipments to
destinations outside of the United States are subject to Section 6.7 -
Reservation of Title. Reseller will pay all costs relating to transportation,
delivery, duties and insurance. Reseller will be responsible for filing claims
relating to any lost or damaged goods. Any additional charges incurred due to
expediting will be borne by Reseller.
6.3 EXPEDITED ORDERS. 3Com will make reasonable efforts to expedite
delivery of an "ASAP order" subject to Product availability, but is not
obligated to make such delivery on an expedited basis.
6.4 PAYMENT. Payment terms are net thirty (30) days from the date of
invoice. Reseller must give 3Com written notice of any discrepancies among the
purchase order, the invoice, and the Products received, within thirty (30) days
after receipt of the Products or the invoice, whichever occurs later. Payment is
not conditioned upon the Products meeting any acceptance testing procedures
Reseller may have. If there is any dispute as to a part of a shipment, Reseller
will pay for the undisputed part of that shipment. All payments to 3Com shall be
in United States dollars, free of any restrictions and less any Withholding Tax
(pursuant to Section 6.8 - Taxes). Reseller may not deduct any debit memos from
payment(s) made to 3Com on outstanding invoice(s), unless 3Com is forty-five
(45) days late in issuing a credit associated with such debit memo on a complete
and accurate claim submitted by Reseller. The forty-five (45) day period shall
commence upon 3Com's receipt of a complete and accurate claim from Reseller.
Anticipation of a credit due to Reseller from 3Com does not allow Reseller to
extend the agreed upon payment terms in order to apply such anticipated credit
to an outstanding invoice.
6.5 Credit. Credit limits and payment terms decisions are made, at
3Com's sole discretion, by an analysis of Reseller's current and historical
financial information, bank references, trade references, payment practices,
Reseller's business plan, etc. To facilitate 3Com's determination of credit
limits and payment terms, Reseller must provide current financial information to
3Com on an annual basis, or more frequently if so requested, unless such
information is readily available from public sources. 3Com may withdraw credit
upon notice to Reseller in the event 3Com determines, in its sole discretion,
that such credit would create an unreasonable credit risk. In the event an
adequate credit limit cannot be granted, is withdrawn or is pending initial
credit approval, deliveries will be available by negotiating alternative payment
terms such as cash in advance, irrevocable letter of credit with a bank of
3Com's choice, etc.
6.6 Interest. 3Com reserves the right to charge Reseller interest on
any delinquent balance . This interest is computed on a daily basis for each
day that the payment is delinquent, at the lesser of (i) eighteen percent (18%)
per annum or (ii) the maximum rate permitted by law.
6.7 RESERVATION OF TITLE (For Products Delivered Outside of United
States). In order to ensure that 3Com is paid for the Products sold or licensed
to Reseller, 3Com reserves title in the Products until paid for in full by
Reseller. 3Com hereby authorizes Reseller to transfer title to the Products in
the ordinary course of its business (except for Software, in which case only
title to the media shall pass), provided that in such case, any proceeds from
the disposition of such Products shall belong to 3Com to the extent of the sums
due by Reseller.
6.8 TAXES. Reseller is responsible for payment of all taxes of every
kind imposed in connection with the sale to Reseller of Products or services or
which 3Com may incur in respect of this Agreement (except for taxes imposed on
3Com's income), including all import duties, customs fees, levies or imposts,
and all sales, use, value added, gross receipts or other taxes of any nature,
and any penalties, interest and collection or withholding costs associated with
any of the foregoing items. All such amounts are in addition to other amounts
payable hereunder and this obligation shall survive termination or expiration of
this Agreement.
If applicable law requires Reseller to withhold any income taxes levied by the
authorities in Reseller's country of residence on payments to be made pursuant
to this Agreement ("Withholding Tax"), Reseller shall take advantage of the
reduced Withholding Tax provided for by the tax treaty then in force between
Reseller's country of residence and 3Coms country of residence, and shall be
entitled to deduct such Withholding TAX FROM THE PAYMENTS due to 3Com hereunder.
Reseller shall promptly effect payment of the Withholding Tax to the appropriate
tax authorities and shall transmit to 3Com within thirty (30) business days of
such payment official tax receipts or other evidence issued by the appropriate
tax authorities sufficient to enable 3Com to support a claim for income tax
credits in 3Com's country of residence. Reseller further agrees to assist 3Com,
upon request, if 3Com contests, by appropriate legal or administrative
proceedings, the validity or amount of the Withholding Tax. In the event 3Com
does not receive official tax receipts or other evidence within thirty (30)
days, 3Com shall have the right to invoice Reseller for such Withholding Tax and
Reseller agrees, to pay such amounts upon receipt of invoice.
Reseller may provide 3Com with a tax exemption certificate acceptable to the
taxing authorities in lieu of paying such taxes; however, Reseller shall
reimburse 3Com for any fines, penalties, taxes and other charges, including
expenses incurred by 3Com, due to Reseller's submission of invalid information.
6.9 DUTIES AND RELATED IMPORT Fees. Reseller is responsible for
fulfilling quota terms, obtaining import licenses, paying import license or
permit fees, duties and customs fees (including without limitation government,
import, excise, sales, use value-added and other taxes or fees), and preparing
and submitting all required documentation in connection with importing the
Products.
7. Price Changes; Product Changes; and Discontinued Products
7.1 Price Changes. 3Com may increase its published list prices on
thirty (30) days' notice. The increased prices will apply to all orders issued
after the effective date of the price increase as specified in the notice.
Orders issued after the notice date and before the effective date will be at the
old lower price provided they are scheduled for shipment within sixty (60) days
of the effective date. 3Com may decrease its published list prices at any time
with immediate effect and will attempt to provide notice of planned decreases
thirty (30) days in advance of such decrease. Price decreases will apply to all
orders in the 3Com backlog as of the notice date. Price changes in this Section
refer to actual list price changes and are not intended to include any changes
in price which occur as a result of exchange rate fluctuations or temporary
price changes pursuant to a promotion or 'other special offer.
7.2 PRODUCT CHANGES. 3Com reserves the right to change, improve or add
any new Product at any time. 3Com shall provide written notice of any major
changes to Products purchased under this Agreement that affect form, fit or
function prior to their implementation.
7.3 DISCONTINUED HARDWARE PRODUCTS. . 3Com. may discontinue Products at
any time on sixty (60) days' written notice of their discontinuance or their
removal from the 3Com Price List. In such event, Reseller may exchange
discontinued Products shipped to Reseller within ninety (90) days prior to the
notice date for the same number of units of the replacement Product if all of
the following conditions are met:
(a) the discontinued Products to be exchanged are new, unused and in
factory-sealed boxes;
(b) the discontinued Products are in Reseller's stock on the date of
the notice;
(c) the exchange takes place within one hundred eighty (180) days of
the effective date of the discontinuation;
(d) a non-cancellable order for an equal or greater quantity of the
replacement Product is submitted at the time of the exchange; and
(e) Reseller bears all shipping and other charges in connection with
the exchange and follows 3Com's instructions for disposal or return of the
discontinued Products.
If the new Product has a different list price than the discontinued
Product, Reseller will be invoiced or credited with the price difference, less
the applicable discount. Within seven (7) days after discontinuation notice,
Reseller may cancel all backlogged orders for the discontinued Product without
penalty.
If a Product is discontinued and not replaced with another Product, the
discontinued Products shipped to Reseller within ninety (90) days prior to the
notice of discontinuation may be returned to 3Com for up to one hundred eighty
(180) days after the effective date of the discontinuation, provided that:
(a) the discontinued Products are new, unused and in factory-sealed
boxes;
(b) the discontinued Products are in Reseller's stock on the date of
the notice; and
(c) Reseller bears all shipping and other charges in connection with
the return.
A credit memo for returned Products will be issued in the amount of the lesser
of (i) current list price less current discount, or (ii) the price invoiced to
and actually paid by Reseller.
7.4 DISCONTINUED SOFTWARE PRODUCTS. 3Com may discontinue software
Products at any time on sixty (60) days' written notice of their discontinuance
or their removal from the 3Com Price List. 3Com will give thirty (30) days'
notice of the First Customer Shipment ("FCS") of any new software version.
Orders for the old version placed prior to FCS will be filled for sixty
(60) days after FCS. Old software versions may be exchanged for the same number
of units of the replacement versions if all of the following conditions are met:
(a) the old version was shipped to Reseller within ninety (90) days
prior to the FCS of the new version;
(b) the old version is new, unused and in -factory-sealed boxes;
(c) the discontinued Products are in Reseller's stock on the date of
the notice;
(d) the exchange takes place within one hundred eighty (180) days of the
effective date of the discontinuation;
(e) a non-cancellable order for an equal or greater quantity of the new
version is submitted at the time of the exchange; and
(f) Reseller bears all shipping charges in connection with the exchange
and follows 3Com's instructions for disposal or return of the old version.
If the new software Product has a different price than the discontinued Product,
Reseller will be invoiced or credited with the price difference, less the
applicable discount. Within seven (7) days after discontinuation notice,
Reseller may cancel all backlogged orders for the discontinued Product without
penalty.
If a software Product is discontinued and not replaced with a new version, the
discontinued version shipped to Reseller within ninety (90) days prior to notice
of discontinuation may be returned to 3Com for up to one hundred eighty (180)
days after the effective date of the discontinuation, provided that:
(a) the software to be returned is new, unused and in factory-sealed boxes;
(b) the Products are in Reseller's stock on the date of the notice; and
(c) Reseller bears all shipping and other charges in connection with the
return.
A credit for returned software Products will be issued in the amount of the
lesser of (i) current list price less current discount, or (ii) the price
invoiced to and actually paid by Reseller.
7.5 BUNDLED PRODUCTS. If any Product includes both hardware and
software components, discontinuation will be treated based on the predominant
character of the components, as determined in 3Com's sole discretion.
8. Trademarks, Trade Names and Copyrights
8.1 "3Com Trademarks" means those trademarks, trade names, service
marks, slogans, designs, distinctive advertising, labels, logos, and other
trade-identifying symbols as are or have been developed and used by 3Com or any
of its subsidiaries or affiliate companies anywhere in the world.
8.2 Reseller acknowledges that all 3Com Trademarks are vested in 3Com
absolutely. 3Com authorizes Reseller to use the 3Com name or 3Com Trademarks
associated with the Products and services which Reseller is authorized to sell
or license within the Territory in the normal course of business during the term
of this Agreement for the sole purpose of the sale and distribution of Products
and services hereunder. Reseller shall comply with 3Com's then current trademark
usage and style guidelines when using the 3Com Trademarks. Reseller shall not
use 3Com Trademarks for any other purpose and only in such manner as to preserve
all rights of 3Com. When using 3Com Trademarks, Reseller must indicate that 3Com
is the owner of the 3Com Trademark(s) and that Reseller is using the 3Com
Trademarks with permission from and on behalf of 3Com. Reseller acquires no
right to 3Com Trademarks by its use.
8.3 Reseller shall not remove, alter or modify the serial or
identification numbers, labels, 3Com Trademarks or other trade-identifying
symbols from Products sold or licensed by 3Com under this Agreement. Reseller
shall provide all reasonable assistance, including execution of documents as
'requested by 3Com to protect its trademark rights in the Territory.
8.4 3COM SHALL HAVE THE SOLE AND EXCLUSIVE RIGHT TO bring legal action
in the Territory for infringement with respect to 3Com Trademarks. Reseller
shall assist 3Com in such legal proceedings. Reseller shall notify 3Com promptly
of any known infringements of 3Com Trademarks.
9. ASSIGNMENT
This Agreement shall not be assigned by either party without the prior written
consent of the other, except that 3Com may assign its rights and obligations
hereunder to any subsidiary or affiliate or in connection with a merger or other
business combination in which it is not the surviving entity. Any attempted
assignment in violation of this provision shall be null and void.
10. DURATION AND TERMINATION OF AGREEMENT
10.1 TERM. The Term of this Agreement shall be one (1) year,
commencing on the Effective Date and expiring on the Expiration Date unless
otherwise terminated as stated herein. If no Effective Date is stated, this
Agreement shall become effective on the date it is executed by the second party.
This Agreement may be extended for additional one (1) year terms if agreed to in
writing by both parties thirty (30) days prior to the end of its current term.
If, prior to the commencement of a subsequent one-year term, 3Com wishes to
change any provisions of this Agreement to conform to its then-current
practices, 3Com shall give written notice to Reseller at least sixty (60) days
prior to an annual anniversary. If Customer objects in writing to the changed
provisions, this Agreement will terminate on the upcoming anniversary, unless
the parties are still engaging in good faith negotiations regarding any changed
provisions, in which case the Agreement will be automatically extended for up to
ninety (90) days or until the parties reach agreement or determine that
agreement is unattainable. The new provisions will
be incorporated into an addendum which will be executed by both parties and will
become effective on the anniversary and remain in effect until changed at a
subsequent anniversary using the same procedure.
10.2 TERMINATION FOR CAUSE. Either party may terminate this
Agreement at any time upon written notice if the other party (i) is in material
breach of its obligations hereunder and fails to cure such breach within thirty
(30) days following written notice of such breach, or (ii) becomes insolvent or
files or has filed against it a petition under bankruptcy or insolvency law
which remains undismissed after ninety (90) days, makes an assignment for the
benefit of creditors or takes any similar action under applicable bankruptcy or
insolvency law.
10.3 TERMINATION FOR CONVENIENCE. Either party may terminate this
Agreement, without cause, on thirty (30) days' written notice.
10.4 Upon expiration or termination, each party shall return to
the other any materials of the other, including, without limitation, all
Confidential Information.
10.5 OBLIGATIONS UPON TERMINATION. Termination or expiration shall
not relieve either party of the obligation to pay any sums due hereunder. Other
obligations which shall survive for a period of five(5) years from the
termination of expiration of this Agreement include: security interest,
retention of title, indemnities and limitation of liability. Obligations
regarding export control regulations and U.S. governmental end users shall
survive indefinitely. The warranty and confidentiality provisions shall remain
in effect for their stated durations. Regarding warranty provisions, 3Com shall,
at its sole discretion, either provide Assistance to Reseller under Section 3.2
for the duration of any end-user warranties from End-User Agreements in effect
at the time of termination or upon notice from 3Com to do so, Reseller shall
refer, in the manner specified, all requests for warranty support under said
End-User Agreements directly to 3Com. Reseller shall cooperate with 3Com in
providing records evidencing end-user's entitlement to warranty coverage under
the End-User Agreement. Neither party shall be liable to the other for any
damages, expenditures, loss of profits or prospective profits or goodwill on
account of the termination or expiration of this Agreement pursuant to its
terms. Reseller expressly waives any and all rights provided by law or statute
for. any indemnity or compensation from 3Com by reason of termination or
non-renewal of this Agreement.
10.6 Cancellation of Pending Orders. All orders or portions
thereof remaining unshipped as of the effective date of termination shall
automatically be cancelled.
10.7 Use of Trademarks, etc. Reseller shall cease using any 3Com
trademark, logo or trade name.
10.8 Acceleration of Invoices. All outstanding invoices for the
Products shall automatically be accelerated and all such invoices shall become
due and payable.
11. RELATIONSHIP OF THE PARTIES
The parties' relationship is that of independent contractors. Reseller will not
have, and will not represent that it has any power, right or authority to bind
3Com, or to assume or create any obligation or responsibility, express or
implied, on behalf of 3Com or in 3Com's name, except as expressly provided.
Nothing stated in this Agreement shall be construed as constituting Reseller and
3Com as creating the relationships of employer/employee, franchiser/franchisee,
or principal/agent between the parties. Neither Reseller nor its employees or
agents are, or shall act as, employees of 3Com.
12. MARKETING DEVELOPMENT FUNDS (MDF) PROGRAM.
Reseller may be eligible to participate in 3Com's Marketing Development Funds
(MDF) program, as may be in effect from time to time. This is a separate program
and document from this Letter, and is not incorporated herein. This program may
be modified or terminated by 3Com upon fifteen (15) days notice to Reseller.
13. LIMITED PRODUCT WARRANTY
3Com warrants to Reseller that each product ordered by Reseller under the terms
of this Agreement will be packaged with a copy of the End-User Agreement
(Appendix C).The End-User Agreement accompanying each Product is 3Com's sole
-------
warranty for such Product.
Reseller shall pay to 3Com the discounted price of each replacement Product
shipped by 3Com pursuant to the End-User Agreement if 3Com does not receive the
defective Product being replaced within fourteen (14) days of the date of
shipment by 3Com. 3Com shall only be responsible for freight-out charges
relating to the shipment of replaced Products.
14. DISCLAIMER AND LIMITATIONS OF LIABILITY; INDEMNIFICATION BY THE RESELLER
14.1 DISCLAIMER OF WARRANTIES. AS SET FORTH IN THE END-USER
AGREEMENT, THE WARRANTY SET FORTH IN SECTION 13, DOES NOT EXTEND TO ANY PRODUCT,
WHICH HAS BEEN DAMAGED AS A RESULT OF (1) ACCIDENT, MISUSE OR ABUSE; (2) FAILURE
TO FOLLOW 3COM'S INSTALLATION, OPERATION OR MAINTENANCE INSTRUCTIONS; OR (3)
UNAUTHORIZED SERVICE OR PARTS.
EXCEPT AS STATED IN SECTION 13 HEREOF, 3COM AND ITS AFFILIATES,
DISTRIBUTORS AND SUPPLIERS, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AND TO THE
EXTENT PERMITTED BY APPLICABLE LAW, 3COM DISCLAIMS ALL OTHER WARRANTIES WHETHER
EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IF IMPLIED WARRANTIES MAY
NOT BE DISCLAIMED UNDER APPLICABLE LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED
IN DURATION TO 90 DAYS AFTER DELIVERY OF THE PRODUCT TO RESELLER. SOME STATES DO
NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE ABOVE
LIMITATION MAY NOT APPLY. THIS WARRANTY GIVES THE RESELLER SPECIFIC LEGAL
RIGHTS, AND THE RESELLER MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
14.2 EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY. The entire
liability of 3Com and its subsidiaries, affiliates and distributors (and the
directors, officers, employees, agents and representatives, distributors and
suppliers of all of them) and the exclusive remedy of Reseller and, insofar as
the End-User Agreement so provides, any End-User, for any damages shall be (1)
for failure of products during the Warranty Period, the remedies as set forth in
Section 2 of the End-User Agreement, (2) for infringement, the remedies stated
in section 14 hereof or, in the case of End-Users, as set forth in Section 5 of
the End-User Agreement, and (3) for claims other than set forth above, 3Com's
liability shall be limited to proven direct damages in an amount not to exceed
the total amount of payments previously made by Reseller to 3Com under this
Agreement. In the event that, notwithstanding this Section 14.2, 3Com is found
liable for damages based on failure of the Products during the Warranty Period,
3Com's total liability for each defective Product shall not exceed the
discounted price of such defective Product.
IN NO EVENT, REGARDLESS OF THEORY, SHALL 3COM BE LIABLE FOR INCIDENTAL,
CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF
REVENUE, LOSS OF BUSINESS, LOSS OF DATA OR OTHER FINANCIAL LOSS ARISING OUT OF
OR IN CONNECTION WITH THE SALE, INSTALLATION, USE, PERFORMANCE, FAILURE OR
INTERRUPTION OF ITS PRODUCTS OR SERVICES. NOTWITHSTANDING ANY OTHER PROVISION OF
THIS AGREEMENT, 3COM'S MAXIMUM LIABILITY HEREUNDER SHALL NOT EXCEED THE PURCHASE
PRICE OF THE PRODUCTS OR SERVICES PURCHASED OR LICENSED DURING THE TERM OF THIS
AGREEMENT. RESELLER HAS ACCEPTED THE DISCLAIMER OF LIABILITY AS PART OF A
BARGAIN TO LOWER THE PRICE OF THE PRODUCTS OR SERVICES AND UNDERSTANDS THAT THE
PRICE OF THE PRODUCTS OR SERVICES WOULD BE HIGHER IF 3COM WERE REQUIRED TO BEAR
ADDITIONAL LIABILITY. THIS DISCLAIMER. OF LIABILITY WILL NOT BE AFFECTED IF ANY
REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
14.3 INDEMNIFICATION BY THE RESELLER. Reseller shall indemnify and
defend 3Com against all claims, suits, losses, expenses, and liabilities
(including 3Com's reasonable attorney's fees) for personal injury, death, and
tangible property damage made against 3Com as a result of the negligence,
intentional wrongful acts, omissions where there is a duty to act, or
misrepresentations of Reseller or any person for whose actions Reseller is
legally liable. Reseller shall be solely responsible for any claims, warranties
or representations made by Reseller or its employees or agents which differ from
the warranty provided by 3Com in the limited warranty included in the packaging
of each Product sold or licensed hereunder, or which differ from written
documentation provided by 3Com.
15. PATENT AND COPYRIGHT INDEMNITY
15.1 Reseller acknowledges 3Com's representation that all
Intellectual Property Rights throughout the world are vested in 3Com absolutely,
and acknowledges that Reseller has no right, title or interest in any
Intellectual Property Rights.
15.2 3Com shall, at its own expense, defend or settle any suit or
proceeding that is instituted against Reseller to the extent such suit or
proceeding alleges that any Product sold by 3Com hereunder infringes any duly
issued patent or copyright of the United States or the Territory and shall pay
all damages awarded therein against Reseller or agreed upon in settlement by
3Com; provided that Reseller (i) gives 3Com immediate notice in writing of any
such suit, proceeding or threat thereof, (ii) permits 3Com sole control, through
counsel of 3Com's choice, to defend and/or settle such suit and (iii) gives 3Com
all the needed information, assistance and authority, at 3Com's expense, to
enable 3Com to defend or settle such suit.
15.3 The above provision shall not apply to and 3Com shall have no
liability or obligation for any infringement arising from: (i) any modification,
servicing or addition made to the Product by anyone other than 3Com, (ii) the
use of such Product as a part of or in combination with any devices, parts or
software not provided by 3Com, (iii) compliance with Reseller's design
requirements or specifications, (iv) the use of other than the then current
unaltered release of the software Product available from 3Com or (v) the use of
such Product to practice any method or process which does not occur wholly
within the Product. The above exclusions apply to the extent that the
infringement would have been avoided but for such modifications, combinations,
compliance with specifications, use of other than the current release or
practice of such method or process.
15.4 In the event the use or sale of any Product purchased from
3Com is enjoined, or in the event 3Com wishes to minimize its potential
liability hereunder, 3Com may, at its sole option and expense: (i) procure for
Reseller the right to use or sell such Product; (ii) substitute a functionally
equivalent, non-infringing unit of the Product; (iii) modify such Product so
that it no longer infringes but is substantially equivalent in functionality; or
(iv) if none of the foregoing are commercially feasible, take back such Product
and refund the purchase price paid by Reseller for such Product depreciated over
a five (5) year period using the straight line method. 3Com shall in no event be
obligated to accept new orders for Products which are subject to a claim of
infringement covered under this Section.
15.5 THIS SECTION STATES 3COM'S TOTAL RESPONSIBILITY AND
LIABILITY, AND THE RESELLER'S SOLE REMEDY, FOR ANY ACTUAL OR ALLEGED
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT FOR ANY PRODUCTS DELIVERED
HEREUNDER OR ANY PART THEREOF AND IS IN LIEU OF AND REPLACES ANY AND ALL OTHER
EXPRESS, IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS REGARDING INFRINGEMENT.
16. License to Software; Protection of 3Com's Proprietary Rights
16.1 Reseller acknowledges and agrees that the Product includes
certain software developed by or licensed to 3Com and that, from time to time,
3Com will furnish certain additional software to Reseller in connection with the
performance by Reseller of its obligations under this Agreement (such software
being referred to herein as the "Software"). Subject to the terms and conditions
contained herein and in Sections I (b) through I (f) of the End-User Agreement,
3Com grants Reseller a personal, non-transferable and non-exclusive license (i)
to distribute the Software, in object code form only, to end-users solely as an
integral component of the Products and (ii) to use the Software, in object code
form only, to configure the Products for end-users solely in accordance with the
system documentation accompanying the Software. Reseller agrees that all right,
title and interest to such Software shall at all times remain vested in 3Com.
Reseller shall have no right whatsoever to receive, review, or otherwise use or
have access to the source code of the Software, which Software is permitted to
be distributed by Reseller only in object code form as part of the Product. The
Software is the exclusive property of 3Com and 3Com licensors and contains
valuable proprietary information and trade secrets of 3Com and 3Com's licensors
developed at a great cost and expense. Except as expressly authorized by this
Agreement or under applicable law, Reseller is not permitted to copy or use the
Software in any manner. Without limiting the generality of the foregoing,
Reseller agrees that it will not do any of the following: (i) decompile, reverse
engineer, disassemble, or otherwise reduce the Software to a human-perceivable
form; (ii) transfer the Software from one computer to another, including other
servers and/or other storage devices; (iii) transfer the Software to any other
party, except when transferring it with the Product in accordance with the terms
of this Agreement; or (iv) modify, adapt, translate, rent, sublicense, lease,
loan, resell for profit, distribute, network or create derivative works based
upon the Software or any part thereof. Reseller shall include on all copies of
the documentation for the Software the copyright, trademark and the proprietary
rights notices of 3Com and take reasonable steps to ensure that Reseller's
employees, consultants or agents who are permitted access to the Software comply
with provisions of this Section 15. Reseller shall be liable and Reseller shall
indemnify 3Com for all damages, costs, expenses (including attorney's fees and
court costs), claims and other expenses in connection with any unauthorized
transfer, copying, duplication, reverse engineering, recompilation,
reproduction, or other form of unauthorized use or misappropriation (whether
directly or indirectly) by the Reseller or any of its employees, agents or
representatives of any Software or microprocessor component of the Product.
16.2 No rights to manufacture, duplicate or otherwise copy or reproduce
-any Products are granted by this Agreement.
16.3 3Com has the right to license any company, within or outside the
Territory, to manufacture Products.
16.3.1 3COM HEREBY GRANTS RESELLER A NON-EXCLUSIVE LICENSE DURING the
term and in the Territory of this Agreement to sub-license to eventual End Users
the object code of software Products listed in Appendix A in accordance with the
terms of 3Com's software license agreement that accompanies such software.
17. CONFIDENTIAL INFORMATION
During the course of this Agreement, each party may disclose to the other
certain proprietary information (both patentable and unpatentable, including but
not limited to, trade secrets, know how, software, source codes, techniques,
future product plans, marketing plans, customers, inventions, discoveries,
improvements, and research and development data) ("Confidential Information") of
a character regarded by the disclosing party as confidential.
Each party and each of its employees or consultants to whom disclosure is made
shall hold all Confidential Information and the terms of this Agreement in
confidence and shall not disclose such information to any third party or apply
it to uses other than the recipient's performance of this Agreement.
Such Confidential Information, if disclosed in writing shall be marked or
identified as confidential or a similar designation, or if orally or visually
disclosed, shall be identified as the confidential information of the disclosing
party at the time of disclosure and then summarized in writing and provided to
the recipient in such written form within thirty (30) days after such oral or
visual disclosure.
17.1 Obligation of Confidentiality. Each party agrees that for a
period of three (3) years from receipt of Confidential Information from the
other party hereunder, it shall use the same degree of care that it utilizes to
protect its own information of a similar nature, but in any event not less than
reasonable care, to prevent the unauthorized use or the disclosure of such
Confidential Information to third parties. The Confidential Information shall be
disclosed only to employees and consultants of a recipient with a "need to know"
who are instructed to and agree in writing to not disclose third party
Confidential Information, and who shall use the Confidential Information only
for the purpose set forth above. A recipient may not alter, decompile,
disassemble, reverse engineer, or otherwise modify any Confidential Information
received hereunder and the mingling of the Confidential Information with
information of the recipient shall not affect the confidential nature or
ownership of the same as stated hereunder.
17.2 OWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential
Information is, and shall remain, the property of the disclosing party. Nothing
herein shall be construed as granting or conferring any rights by license or
otherwise in the Confidential Information except as expressly provided herein. A
recipient hereunder acquires only a limited right to use the Confidential
Information solely for the purpose of performing its obligations under this
Agreement.
17.3 RETURN OF CONFIDENTIAL INFORMATION. Upon the written request
of the disclosing party, or upon the expiration or termination of this
Agreement, the recipient shall promptly return all copies of the Confidential
Information, in whatever form or media, to the disclosing party. or, at the
direction of such party, destroy the same. The recipient shall certify in
writing to the other such return or destruction within ten (10) days thereafter.
17.4 EXCEPTIONS TO OBLIGATION OF CONFIDENTIALITY. This Agreement
shall impose no obligation of confidentiality upon a recipient with respect to
any portion of the Confidential Information received hereunder which is:
(a) now or hereafter, through no unauthorized act or failure to act on
recipient's part, generally known or available;
(b) lawfully known to the recipient without an obligation of confidentiality
at the time recipient receives the same from the disclosing party, as evidenced
by written records;
(c) hereafter lawfully furnished to the recipient by a third party without
restriction on disclosure;
(d) furnished to others by the disclosing party without restriction on
disclosure; or
(e) independently developed by the recipient without use of the disclosing
party's Confidential Information.
Nothing in this Agreement shall prevent the receiving party from disclosing
Confidential Information to the extent the receiving party is legally compelled
to do so by any governmental investigation or judicial agency pursuant to
proceedings over which such agency has jurisdiction; provided, however, that
prior to any such disclosure, the receiving party shall (i) assert the
confidential nature of the Confidential Information to the agency, (ii)
immediately notify the disclosing party in writing of the agency's order or
request to disclose and (iii) cooperate fully with the disclosing party in
protecting against any such disclosure and/or obtaining a protective order
narrowing the scope of the compelled disclosure and protecting its
confidentiality.
17.5 Reseller shall not disclose, advertise or publish the terms
or conditions of this Agreement without the prior written consent of 3Com.
18. GENERAL
18.1 WAIVER. Any waiver of a default in performance hereunder
shall be deemed a waiver of the particular instance only and shall not be deemed
a consent to any continuing default. The exercise of any right or remedy
provided in the Agreement shall be without prejudice to the fight to exercise
any other fight or remedy provided by law or equity. If any provision of this
Agreement is found to be invalid, illegal or unenforceable, a modified provision
shall be substituted which carries out as nearly as possible the original intent
of the parties and the remaining provisions shall in no way be affected thereby.
18.2 NOTICES. Notices shall be given in writing to the addresses
on the first page of this Agreement, or to such other address as shall be given
by either party to the other in writing. Notices regarding price changes,
product discontinuance, product changes, and logistics center changes may be
made via email to the person(s) specified by Reseller from time to time. Any
notice. involving non-performance, termination, or renewal shall be sent by
recognized overnight courier or within the United States, via certified mail,
return receipt requested. All other-notices may be sent by (i) recognized
overnight courier or (ii) by fax or email and confirmed by first class mail. All
notices shall be deemed to have been given and received on the earlier of actual
delivery or three (3) days from the date of postmark.
18.3 ATTORNEY'S FEES. In any action to enforce this Agreement the
prevailing party shall be awarded all court costs and reasonable legal fees
incurred.
18.4 DISPUTE RESOLUTION. The parties will attempt in good faith to
promptly resolve any dispute, controversy, or claim ("Dispute") arising out of
or relating to this Agreement through negotiations between the parties before
resorting to other remedies available to them. Any such Dispute shall be
referred to appropriate senior executives (e.g. director or V.P. level) of each
party who shall have the authority to resolve the matter. Discussions and
correspondence relating to trying to resolve such Dispute shall be treated as
confidential information developed for the purpose of settlement and shall be
exempt from discovery or production and shall not be admissible in subsequent
mediation, other alternate dispute resolution ("ADR"), or litigation. If the
senior executives are unable to resolve the Dispute within thirty (30) days from
the date of the written communication requesting referral to the executives, and
either party wishes to pursue its rights relating to such Dispute, then the
Dispute will be mediated by a mutually acceptable mediator appointed pursuant to
the mediation rules of JAMS/Endispute within thirty (30) days after written
notice by one party to the other demanding non-binding mediation. Neither party
may unreasonably withhold consent to the selection of a mediator or the location
of the mediation. Both parties will share the costs of the mediation equally,
except that each party shall bear its own costs and expenses, including
attorney's fees, witness fees, travel expenses, and preparation costs. The
parties may also agree to replace mediation with some other form of nonbinding
or binding ADR. If the parties agree upon binding arbitration, the power of the
arbitrator(s) shall be limited to that possessed by a Superior Court Judge in
California and the arbitrator(s) shall be prohibited from awarding damages or
remedies in excess of those allowed by the provisions of this Agreement.
Any Dispute which the parties cannot resolve through mediation within two (2)
months of the date of the initial demand for it by one of the parties may then
be submitted to a court for resolution. The use of any ADR procedures will not
be construed under the doctrine of laches, waiver or estoppel to adversely
affect the rights of either party.
Any Dispute regarding the following is not required to be negotiated or
mediated:, non-payment or late payment; breach of any obligation of
confidentiality; infringement, misappropriation, or misuse of any intellectual
property right; any other claim where interim relief from the court is sought to
prevent serious and irreparable injury to one of the parties or to others.
18.5 GOVERNING LAW. This Agreement shall be construed in
accordance with and all disputes hereunder shall be governed by the laws of the
State of California, EXCLUDING its conflict of law rules AND THE UNITED NATIONS
CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. With the exception
of the Dispute Resolution provision, above, the Superior Court of Santa ▇▇▇▇▇
County and/or the United States District Court for the Northern District of
California shall have non-exclusive jurisdiction and venue over all
controversies in connection herewith.
18.6 SECTION HEADINGS. The section headings contained herein are
for reference only and shall not be considered substantive parts of this
Agreement.
18.7 FORCE MAJEURE. Neither party shall be liable to the other for
any alleged loss or damage resulting from any delay of performance caused by
acts of the other, acts of civil or military authority, governmental priorities,
earthquake, fire, flood, epidemic, quarantine, energy CRISIS, STRIKE, LABOR
TROUBLE, WAR, RIOT, accident, shortage, delay in transportation, or any other
causes beyond the reasonable control of the delayed party
18.8 ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding of the parties with respect to the subject matter hereof, may be
modified only in a writing signed by both parties, and shall supersede any and
all other agreements between them regarding such subject matter. Amendments to
-------------
this Agreement at the time that it is executed may be made only by a document
-------------------------------------------------------------------------------
signed by both parties.
-------------------------
18.9 DUE EXECUTION. Each person executing this Agreement on behalf of a
party represents and warrants that he or she has been duly authorized to execute
this Agreement on behalf of the party.
18.10 PAYMENTS TO THIRD PARTIES. By signing this Agreement,
Reseller guarantees to 3Com that no portion of any compensation received from
the sale of 3Com Products will be paid directly or indirectly to any third
parties who are employees of or have any business or official interest in the
affairs of a customer placing an order which is the basis on which compensation
is paid. Violation of the terms of this guarantee shall be considered cause for
immediate termination (without any cure period) of this Agreement. This
provision does not preclude Reseller from participating in organized promotional
activities approved by 3Com
18.11 U.S. GOVERNMENTAL END Users. All 3Com technical data and
computer software is commercial in nature and developed solely at private
expense. Software is delivered as "Commercial Computer Software" as defined in
DFARS 252.227-7014 (June 1995) or as a commercial item as defined in FAR 2. 10 1
(a) and as such is provided with only such rights as are provided in 3Com's
standard commercial license for such software. Technical data is provided with
limited rights only as provided in DFAR 252.227-7015 (Nov. 1995) or FAR
52.227-14 (June 1987), whichever is applicable. Reseller agrees not to remove,
deface or modify any portion of any legend provided on any licensed software or
documentation delivered to it under this Agreement.
18.12 Choice of Language. The original of this Agreement is in
English and Reseller waives any right to have it written in any other language.
Section headings are for convenience only.
19. Export Restrictions
19.1 GENERAL. Reseller acknowledges that all Products, Spares,
technical data, computer software, documentation or other materials supplied
hereunder (collectively "Technical Data") and the product thereof are subject to
all pertinent import and export laws, rules and regulations of the United States
and the Territory, specifically including the provisions of the U.S. Export
Administration Regulations ('EAR'). This Agreement is also specifically subject
to U.S. Department of Commerce regulations relating to restrictive trade
practices or boycotts. In no event shall 3COM BE BOUND by any terms and
conditions that contravene such pertinent laws. Reseller agrees TO COMPLY WITH
ALL such laws and regulations applicable to the Technical Data and, without
limiting the generality of the foregoing, Reseller agrees that, unless prior
written authorization is received from the U.S. Department of Commerce, it shall
not knowingly export or re-export, directly or indirectly, any Technical Data
(or part thereof), or any process or service which is the direct product of the
Technical Data to (i) any person or firm on the "Denied Parties List" published
by the U.S. Department of Commerce, or to any person or firm on the "Specially
Designated Nationals" list published by the U.S. Department of the Treasury, or
(ii) the following nations or nationals thereof- Cuba, Iran, Iraq, Libya, North
Korea, Republic of Serbia, Sudan and Syria. All lists of countries contained in
this entire Section 12 are accurate as of May 1999. They are subject to change
by the U.S. Government and these lists shall be considered updated to be
consistent with then-current U.S. law.
19.2 NON CIVILIAN/PROLIFERATION RESTRICTIONS.
19.2.1 Reseller hereby certifies that, unless prior written
authorization is received by Reseller from the U.S. Department of Commerce, it
shall not transfer, export or re-export, directly or indirectly, any Technical
Data (or part thereof), or any process or service which is the direct product of
the Technical Data received under License Exception TSR to any of the following
nations or nationals thereof- Albania, Armenia, Azerbaijan, Belarus, Bulgaria,
Cambodia, Cuba, Estonia, Georgia, Iran, Iraq, Kazakhstan, Kyrgystan, Laos,
Latvia, Libya, Lithuania, Moldova, Mongolia, North Korea, People's Republic of
China, Republic of Serbia, Romania, Russia, Sudan, Syria, Tajikistan,
Turkmenistan, Ukraine, Uzbekistan, Vietnam.
19.2.2 Reseller acknowledges that certain Technical Data supplied
hereunder from 3Com are exported under U.S. Export Administration Regulations
license exceptions that prohibit the transfer, export or re-export of such
Technical Data to military end users for known military uses or to agents or any
intermediate entities in the chain of supply. In addition to conventional
military activities, Reseller understands that military uses include any
proliferation activities and that both uses would require export license
approval from the U.S. Government prior to such sale or export in the following
destination countries: Albania, Armenia, Azerbaijan, Belarus, Bulgaria,
Cambodia, Estonia, Georgia, Kazakhstan, Kyrgystan, Laos, Latvia, Lithuania,
Moldova, Mongolia, People's Republic of China, Romania, Russia, Tajikistan,
Turkmenistan, Ukraine, Uzbekistan, and Vietnam.
19.2.3 Reseller acknowledges that it will not transfer, export or
re-export, without U.S. Government permission, any Technical Data that (i) is
destined for any missile technology project, or (ii) will be used in the design
development, production or use of missiles, or (iii) will be used in the design
development, production, stockpiling or use of chemical or biological weapons,
if any such activities are located in any of the following proliferation risk
countries: Afghanistan, Algeria, Andorra, Angola, Armenia, Azerbaijan, Bahrain,
Belarus, Bulgaria, Burma, Cambodia, People's Republic of China, Comoros,
Djibouti, Egypt, Georgia, India, Israel, Jordan, Kazakhstan, Kuwait, Kyrgystan,
Lebanon, Micronesia, Moldova, Mongolia, Oman, Pakistan, Qatar, Russia, Saudi
Arabia, Taiwan, Tajikistan, Turkmenistan, Ukraine, United Arab Emirates,
Uzbekistan, Vanuatu, Vietnam, and Yemen.
19.2.4 RESELLER acknowledges that specific U.S. Government approval is
required prior to transfer, export or re-export of Technical Data if Reseller
knows that such Technical Data will be used for nuclear end-uses in any country
other than the following nations: Australia, Belgium, Canada, Denmark, France,
Germany, Greece, Iceland, Italy, Japan, Luxembourg, the Netherlands, New
Zealand, Norway, Portugal, Spain, Turkey, United Kingdom and the United States.
3Com may require Reseller to execute an Export/ Re-Export Letter and/or other
export paperwork on an annual basis or more frequently when required and may
require details on an End User or application when necessary to facilitate the
qualification of a transaction for the above-referenced license restrictions.
Reseller is responsible for obtaining and providing to 3Com International Import
Certificates and/or other support documentation required by 3Com in order to
apply for U.S. export licenses.
19.3 RESPONSIBILITY FOR EXPORT LICENSING. 3Com agrees to use
commercially reasonable steps to obtain, at 3Com's expense, all documentation
required by the United States Export Administration Regulations and/or other
authorities to permit the exportation of Technical Data to Reseller. 3Com shall
have no liability or obligation to Reseller if the responsible government
authorities decline to issue any such export licenses. ALL ORDERS ISSUED
PURSUANT TO THIS AGREEMENT ARE SUBJECT TO THE OBTAINING OF SAID LICENSES.
19.4 EXPORTER OF RECORD. If Reseller chooses to use a freight
forwarder or agent, other than a 3Com preferred freight forwarder to export
Technical Data from the United States, Reseller or its properly authorized agent
or forwarder must hold a properly executed power of attorney to prepare and sign
Shipper's Export Declarations as exporter of record from the United States.
19.5 ENCRYPTED PRODUCTS. Certain Technical Data provided by 3Com
under this Agreement may require that Reseller report all sales, transfers,
exports and re-exports to the Bureau of Export Administration, U.S. Department
of Commerce, Washington, D.C., USA, identifying the specific End User name,
address, country of ultimate destination and quantities shipped, before
encrypted Technical Data may be purchased or licensed under 3Com's export
licensing approval arrangements with the U.S. Government. With respect to
certain technical data that 3Com will communicate to Reseller and require
Reseller's written acceptance of additional government imposed requirements or
responsibilities prior to release and shipment of orders. These purchases or
licenses will be allowed only if they are in full compliance with U.S. law, and
if Reseller evidences compliance with all export reporting requirements.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
3COM CORPORATION Air Nexus Inc
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Printed Name: ▇▇▇▇ ▇▇▇▇▇▇ Printed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: SALES CONTROLLER Title: President
Date: 11-23-99 Date: 11-11-99
APPENDIX A
See attached price list
3Com Voice Solutions VAR Channel Price List
3COM VOICE SOLUTIONS PRODUCTS GROUP
3Com Voice Solutions VAR Channel Price List
Estimated
3Com 3C Old NBX Product Name Product Discription "Steet" Pice VAR Price
Part Part No.
No.
------- --------- ----------------- -------------------- ------------- ------------
3C1O110 ▇▇▇-▇▇▇▇-▇▇ NBX Call Processor [Description] $800.00 $ 545.00
-------- ----------- ------------------- ------------------- -------------- ----------
3C1O111 ▇▇▇-▇▇▇▇-▇▇ NBX Chassis-APX30M/4 [Description] $700.00 $ 440.65
--------- ----------- ------------------- ------------------ -------------- -----------
3C10112 ▇▇▇-▇▇▇▇-▇▇ NBX Chassis-APX20H/6 [Description] $3,000.00 $ 1,500.00
3C1O113 ▇▇▇-▇▇▇▇-▇▇ NBX Chassis-APX80H/12 [Description] $7,900.00 $ 3,900.00
3C1O114 ▇▇▇-▇▇▇▇-▇▇ NBX Analog Line Card [Description] $1,100.00 $ 695.00
3C1O115 ▇▇▇-▇▇▇▇-▇▇ NBX10base-T Hub Card [Description] $400.00 $ 250.00
3C1O118 ▇▇▇-▇▇▇▇-▇▇ NBX T1 Bundle Promotion [Description] $4,500.00 $ 3,000.00
3C10121 ▇▇▇-▇▇▇▇-▇▇ NBX Business Phone (Black) [Description] $ 349.00 $ 235.00
3C10122 ▇▇▇-▇▇▇▇-▇▇ NBX Business Phone (White) [Description] $ 349.00 $ 235.00
3C10123 ▇▇▇-▇▇▇▇-▇▇ NBX DSS/BLF Adjunct(Black) [Description] $ 379.00 $ 250.00
3C1O124 ▇▇▇-▇▇▇▇-▇▇ NBX DSS/BLF ADJUNCT (White) [Description] $ 379.00 $ 250.00
3C10125 ▇▇▇-▇▇▇▇-▇▇ NBX POWER ADAPTER [Description] $ 60.00 $ 40.00
3CIO131 ▇▇▇-▇▇▇▇-▇▇ NBX IP Serve Site License [Description] $2,000.00 $ 1,200.00
3C10132 ▇▇▇-▇▇▇▇-▇▇ NBX IP On-The-Fly Site [Description] $2,500.00 $ 1,500.00
License
3C10133 ▇▇▇-▇▇▇▇-▇▇ IP On-The-Fly upgrade [Description] $ 600.00 $ 400.00
from IP Serve
3C1O134 ▇▇▇-▇▇▇▇-▇▇ APX UPGRADE TO 20H/ 6P [Description] $2,500.00 $ 1,500.00
from 30M/ 4P
3C10135 ▇▇▇-▇▇▇▇-▇▇ APX Upgrade to 8OW12P [Description] $7,100.00 $ 4,260.00
from 30M/4P
3C10136 ▇▇▇-▇▇▇▇-▇▇ APX Upgrade to 80H/ [Description] $4,200.00 $ 2,520.00
12P from 20H/ 6P
3C10141 7OG-0030-01 NBX ConneXtions 2- [Description] $1,700.00 $ 1,000.00
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇-▇▇▇▇-▇▇ NBX ConneXtions 4- [Description] $3,400.00 $ 2,000.00
Port License
3C10143 ▇▇▇-▇▇▇▇-▇▇ NBX ConneXtions 8- [Description] $6,800.00 $ 4,000.00
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇-▇▇▇▇-▇▇ NBX ConneXtions 16- [Description] $13,600.00 $ 8.000.00
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇-▇▇▇▇-▇▇ NBX pcXset 3 user [Description] $ 500.00 $ 300.00
license
3C10152 ▇▇▇-▇▇▇▇-▇▇ NBX pcXset 10 user [Description] $1,500.00 $ 900.00
license
3C1O153 ▇▇▇-▇▇▇▇-▇▇ NBX pcXset 25 user [Description] $3,400.00 $ 2,000.00
license
3C10154 7O0-0059-01 NBX pcXset unlimited [Description] $6,000.00 $ 3,500.00
users license
PENDING ▇▇▇-▇▇▇▇-▇▇ NBX R1.1 RESOURCE [Description] $ 30.00 $ 30.00
UPGRADE KIT
APPENDIX B
TERRITORY
Territory: Houston, TX and surrounding areas
Reseller is hereby expressly prohibited from publishing any pricing for the 3Com
Product on the World Wide Web.
APPENDIX C
See Attached End User Agreement
IMPORTANT: READ BEFORE USING THIS PRODUCT.
3COM END USER SOFTWARE LICENSE AGREEMENT
TERMS AND CONDITIONS AND LIMITED WARRANTY
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING THE 3Com
PRODUCT ACCOMPANYING THIS AGREEMENT (THE "PRODUCT"). BY USING THE PRODUCT YOU
ARE ACCEPTING AND AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE NOT WILLING
TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU SHOULD PROMPTLY RETURN THE
UNUSED PRODUCT AND PACKAGING TO THE DEALER THAT SOLD THE PRODUCT TO YOU, AND YOU
WILL RECEIVE A REFUND OF THE PURCHASE PRICE. THIS AGREEMENT REPRESENTS THE
ENTIRE AGREEMENT CONCERNING THE PRODUCT BETWEEN YOU AND 3Com CORPORATION 3Com
AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING
CONCERNING THE PRODUCT BETWEEN YOU AND 3Com.
3Com AND YOU, THE PURCHASER, AGREE THAT THE FOLLOWING TERMS AND CONDITIONS
(SOMETIMES REFERRED TO HEREIN AS THIS "AGREEMENT") SHALL GOVERN YOUR PURCHASE OF
THE PRODUCT FROM AN AUTHORIZED 3Com DEALER. THE TERM "PRODUCT" INCLUDES (I) THE
EQUIPMENT ACCOMPANYING THESE TERMS AND CONDITIONS AND (II) THE SOFTWARE INCLUDED
IN SUCH EQUIPMENT OR OTHERWISE FURNISHED TO YOU IN CONNECTION WITH YOUR PURCHASE
AND/OR USE OF SUCH EQUIPMENT (THE "SOFTWARE). THIS AGREEMENT COVERS PRODUCTS FOR
USE ONLY IN THE UNITED STATES AND CANADA.
1. Software License.
------------------
(a) License Giant.SUBJECT TO the terms and conditions contained herein, 3Com
--------------
grants you a personal, non-transferable and non-exclusive license to use the
Software, in object code form only, for your internal business needs on a single
Product in accordance with the accompanying system documentation (the
'Documentation'). This license grant shall be limited to use with the equipment
for which the Software was obtained, or, on a temporary basis, on back-up
equipment when the original equipment is inoperable. Use of the Software on
multiple processors is prohibited unless otherwise agreed to in writing by 3Com.
(b) Restrictions.Except as expressly authorized by this Agreement or under
-------------
applicable law, you are not permitted to copy or use the Software in any manner.
Without limiting the generality of the foregoing, you agree that you will riot
do any of the following: (i) decompile, reverse engineer, disassemble, or
otherwise reduce the Software to a human-perceivable form; (ii) transfer the
Software from one computer to another, including other servers and/or other
storage devices; (iii) transfer the Software to any other party, except when
transferring it with the Product in accordance with the terms of this Agreement
or (iv) modify, adapt, translate, rent, sublicense, lease, loan, resell for
profit, distribute, network or create derivative works based upon the Software
or any part thereof.
Ownership of Software.Title to and ownership of the Software shall remain
------------------------
with 3Com and its suppliers. This license is not a sale of the Software or any
copy.
(d) Third Party Applications.Any third party supplier of computer programs
---------------------------
included in the Software is a third party beneficiary of the provisions of this
Section 1. and such third party may protect its rights in the Software against
violations of this license.
(e) ConfidentialYou agree to maintain the Software in confidence and to not
------------
disclose the Software to any third party without the express written consent of
3Com. You further agree to take all reasonable precautions to preclude access of
unauthorized persons to the Software.
(f) Termination3Com may terminate this Section I and the licenses granted
-----------
hereby upon the breach by you of any the provisions of this Section 1. Upon such
termination, you agree to return the Product, including the Software and all
copies and portions thereof, to 3Com.
2. Limited Warranty.If the Product does not operate in accordance with
------------------
3Com's standard specifications or Documentation during the Warranty Period, you
must promptly notify the authorized 3Com dealer from whom you purchased the
Product. You must provide your authorized 3Com dealer with proof of purchase
price and dated invoice. During the Warranty Period, upon being contacted, your
authorized 3Com dealer (or another authorized 3Com dealer designated by 3Com)
will, at its option, either repair or replace the Product, provided it is
delivered at your expense to an authorized 3Com service facility designated by
3Com or your authorized 3Com dealer. Your authorized 3Com dealer (or another
authorized 3Com dealer designated by 3Com) will provide you with a replacement
Product if either the NCP (Network Call Processor) Card fails and/or If 25% of
the system (lines and/or stations) becomes inoperable at ANY TIME DURING THE
Warranty Period. You have the right as your exclusive remedy to return the
Product to your authorized 3Com dealer (or another authorized 3Com dealer
designated by 3Com) for a refund of the purchase price from such authorized 3Com
dealer if such authorized 3Com dealer is unable to repair or replace the Product
pursuant to the terms of this warranty. You shall bear all shipping, packing,
and insurance costs and all other costs, excluding labor and parts, necessary to
effectuate repair, replacement or refund under this warranty.
The "Warranty Period" shall commence on the date that the Product was purchased
by the authorized 3Com dealer from whom you purchased the Product and shall
expire on the second anniversary thereof. At the time of purchase, your
authorized 3Com dealer will notify you in writing of the commencement date and
the expiration date of the Warranty Period.
Purchased or replacement parts and products may be new, remanufactured or
refurbished. Any removed parts and/or Products shall become the property of
3Com.
Coverage under this warranty program shall require the authorized 3Com dealer to
contact the 3Com Customer Service Department to generate a Return Merchandise
Authorization (RMA) Number for any Product(s) the 3Com Service Representative
deems defective.
3. Warranty Exclusions.EXCEPT AS STATED IN SECTION 2 HEREOf, 3Com AND ITS
---------------------
AFFILIATES, DISTRIBUTORS, DEALERS AND SUPPLIERS, MAKE NO WARRANTIES, EXPRESS OR
IMPLIED, AND TO THE EXTENT PERM17TED BY APPLICABLE LAW. 3Com DISCLAIMS ALL OTHER
WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON4NFRIINGEMENT,
IF IMPLIED WARRANTIES MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THEN ANY
IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 90 (NINETY) DAYS AFTER DELIVERY OF
THE PRODUCT TO YOU. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED
WARRANTY LASTS SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES
YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE
TO STATE.
THE WARRANTY SET FORTH IN SECTION 2 HEREOF, DOES NOT EXTEND TO ANY PRODUCT,
WHICH HAS BEEN DAMAGED AS A RESULT OF (1) ACCIDENT, MISUSE OR ABUSE; (2) YOUR
FAILURE TO FOLLOW 3Com'S INSTALLATION, OPERATION OR MAINTENANCE INSTRUCTIONS; OR
(3) UNAUTHORIZED SERVICE OR PARTS.
4. Post-Warranty Service.3Com, highly recommends purchasing an extended
-----------------------
warranty for all 3Com Products to significantly reduce unexpected repair costs
after the Warranty Period. You can purchase a post-warranty service contract
from your authorized 3Com dealer Please contact your authorized 3Com dealer for
post-warranty service on all 3Com Products.
5. Infringement.3Com shall defend you, at 3Com's expense, from and against any
-------------
claim brought by a third party alleging that the Product infringes any: (i)
United States patent issued on or before the commencement date of the Warranty
Period; (ii) United States trademark issued on or before the commencement date
of the Warranty Period; (iii) copyright, or (iv) trade secret, and shall
indemnify you against all damages and costs assessed against you that are
payable as part of a final judgment or settlement. The indemnification
obligation of this Section 5 shall not apply to any claim arising out of (i) the
combination of the Product with other products not claimed to be owned or
developed by or on behalf of 3Com; (ii) the modification of the Product, or any
part thereof, unless such modification was made by or on behalf of 3Com; (iii)
any software or other technology not claimed to be owned by 3Com; or (iv) any
infringement caused by your action.
if you seek indemnification pursuant to this Section 5 from or against the
assertion of any claim by a third person (a *Third Person Assertion'). you shall
give prompt notice to 3Com. Within twenty (20) business days of receipt of
notice from you pursuant to this Section 5, 3Com shall have the right
exercisable by written notice to you, to assume the defense of a Third Person
Assertion. If 3Com assumes such defense, 3Com may select counsel. If 3Com
controls the defense of a Third Person Assertion, 3Com shall have the right to
consent to the entry of judgment with respect to, or otherwise settle, such
Third Person Assertion with your prior written consent, which consent shall not
be unreasonably withheld. You shall reasonably cooperate in the defense of any
Third Person Assertion.
6. Exclusive Remedies and Limitations of Liability,THE ENTIRE LIABILITY OF
--------------------------------------------------
3Com AND ITS AFFILIATES, DISTRIBUTORS, DEALERS AND SUPPLIERS (AND THE DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES OF ALL OF THEM) AND YOUR EXCLUSIVE
REMEDIES FOR ANY DAMAGES SHALL BE (1) FOR FAILURE OF PRODUCTS DURING THE
WARRANTY PERIOD, THE REMEDIES STATED IN SECTION 2 HEREOF: (2) FOR INFRINGEMENT,
THE REMEDIES STATED IN SECTION 5 HEREOF; AND (3) FOR CLAIMS OTHER THAN SET FORTH
ABOVE, 3Com LIABILITY SHALL BE LIMITED TO PROVEN DIRECT DAMAGES IN AN AMOUNT NOT
TO EXCEED THE ORIGINAL DISCOUNTED PURCHASE PRICE OF THE PRODUCT.
3Com SHALL IN NO EVENT BE LIABLE FOR THE FOLLOWING TYPES OF DAMAGES: (1)
INCIDENTAL DAMAGES; (2) SPECIAL OR CONSEQUENTIAL DAMAGES; (3) LOST PROFITS,
SAVINGS OR REVENUES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOSS OF DATA,
MESSAGES, OR TELEPHONE CALLS, AND (4) CHARGES FOR COMMON CARRIER
TELECOMMUNICATIONS SERVICES OR FACILITIES ACCESSED THROUGH OR CONNECTED TO
PRODUCTS. TO THE EXTENT PERMITTED BY LAW. SUCH DAMAGES ARE HEREBY EXCLUDED BOTH
FOR PROPERTY DAMAGE, AND TO THE EXTENT NOT UNCONSCIONABLE, FOR PERSONAL INJURY
DAMAGE.
THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE CAUSE OF
ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO
YOU.
7. Third Party Products.The decision to acquire hardware, software (in any
-----------------------
form), supplies or service (other than the Product accompanying this Agreement)
from parties other than 3Com (*Third Party Products") is yours, even if 3Com
helps you identify~ evaluate or select them. EXCEPT AS SPECIFICALLY AGREED TO IN
WRITING, 3Com IS NOT RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS LIABILITY FOR,
PERFORMANCE OR QUALITY OF THIRD PARTY PRODUCTS OR THEIR SUPPLIERS; arty claim
that you have in connection with the Third Party Products and ANY REMEDIES FOR
such claim will be against the supplier of such Third Party Products.
8. AssignmentYou may not assign this Agreement (including the licenses
----------
granted hereby), either in whole or in part, whether by operation of law or
otherwise, without the prior written consent of 3Corn. Any attempt to assign
your rights, duties or obligations under this Agreement without such consent
shall be null and void. Subject to the foregoing, the rights and liabilities of
the parties under this Agreement will bind and inure to the benefit of the
parties' respective successors and permitted assigns.
9. ▇▇▇▇▇▇▇.▇▇▇ acknowledge that you have read this Agreement, understand it,
--------
and that by using the Product you agree to be bound by the terms and conditions
of this Agreement. You assume full responsibility for the use of the Software
and agree to use the Software legally and responsibly. This Agreement shall be
governed by the substantive laws of the State of California, without regard to
conflicts of law principles, except as to copyright matters, which are governed,
by federal law. This Agreement is deemed entered into, by both parties, in Santa
Clara, California. In the event that any provision of this Agreement shall be
held by a court or other tribunal of competent jurisdiction to be unenforceable,
such provision shall be enforced to the maximum extent permissible and the
remaining provisions of this Agreement shall remain in full force and effect.
All rights in the Software not specifically granted in this Agreement are
reserved by 3Com, and, except for the express licenses granted herein, no other
licenses are granted by 3Com by implication, estoppel or otherwise. You agree
not to export the Product, without the express written consent of 3Com.