TABLE OF CONTENTS
ASSOCIATE AGREEMENT EXHIBIT 10.5
SECTION TITLE PAGE
1. Products; Services; Territory; Discount 1
2. Agreement to Supply 2
3. Purchase Orders; Order Acceptance; Credit 2
4. Payment; Service Charges for Payment Delinquency 4
5. Security Agreement 4
6. Term 5
7. Prices; Price Changes 6
8. Transportation 6
9. Inspection and Acceptance 6
10. Shipping and Billing 7
11. F.O.B.; Title and Risk of Loss 7
12. Shipping Interval 7
13. Associate's Services 8
14. Training 10
15. Reports 10
16. Termination 11
17. Rights Upon Termination 13
18. Cancellation of Purchase Orders;
Revocation of Acknowledgments 13
19. Non-Exclusive Market Rights 13
20. Infringement 14
21. Hardware Warranty 15
22. Software License and Software Warranty 17
23. Repair/Replacement of Products Not Covered
Under Warranty 20
24. Technical Support 21
25. Documentation 22
26. Advertising and Promotion 22
27. Force Majeure 22
28. Assignment 22
29. Tax 23
30. Govenment Contracts 23
31. Limitation of Liability 24
32. Limitation of Time Concerning Causes of Action 24
33. Choice of Law; Jury Waiver 24
34. Severability 25
35. Notices 25
36. Licenses 25
37. Trademarks 25
38. Non-Waiver 26
39. Survival of Obligations 26
40. Shortages 26
41. Limitation of Authority 26
42. Entire Agreement 26
APPENDICES (IF APPLICABLE)
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Key Telephone Products Appendix
NEAX-Registered Trademark-2000 IVS & NEAX-Registered Trademark-1000 IVS/VSP
Products Appendix
NEAX-Registered Trademark-2400 Products Appendix
Video Teleconferencing Products Appendix
ATM Products Appendix
Extended Warranty Products Appendix
Facsimile Appendix
Active Voice Appendix
Baypoint Innovations Products Appendix
VoicePoint-Registered Trademark- Teleconferencing Terminal Product Appendix
CTI Software Products Appendix
EXHIBITS
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Exhibit A, Electronic Data Interchange Agreement
Exhibit B, NECAM Leasing Services Product Appendix
Exhibit C, Customer Software License Agreement
ASSOCIATE AGREEMENT
WHEREAS, NEC AMERICA, INC. ("NECAM"), a New York Corporation, with a
principal place of business located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, and VICOM, INC., ("ASSOCIATE"), with offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, desire to enter into an agreement to govern
the purchase and sale of telecommunications products,
NOW, THEREFORE, in consideration of the mutual promises contained herein,
NECAM and ASSOCIATE agree as follows:
GENERAL TERMS & CONDITIONS APPLICABLE TO ALL PRODUCTS AND SERVICES
1. PRODUCTS; SERVICES; TERRITORY; DISCOUNT
(a) "PRODUCTS" and "SERVICES" as used herein shall mean products and
services listed in the PRODUCTS and SERVICES Appendices attached
hereto and made a part of this AGREEMENT. The "PRODUCTS" shall be
limited to the versions of hardware and software for the products
specified in such PRODUCTS Appendices. Notwithstanding anything
contained herein to the contrary, NECAM may refuse to accept orders
from ASSOCIATE for PRODUCTS which are the subject of such Appendices
herein unless and until ASSOCIATE can demonstrate to NECAM's
reasonable satisfaction that ASSOCIATE shall be able to provide
installation, maintenance and support services to ASSOCIATE's
customers for such PRODUCTS in accordance with NECAM's standards,
either by utilizing its own employees who have successfully completed
applicable NECAM training as provided herein, or by utilizing the
services of third parties who are authorized and certified by NECAM
(or a combination of both).
(b) (i) "PBX" as used herein shall mean hardware PRODUCTS as designated
in the attached NEAX-Registered Trademark- 2400 and
NEAX-Registered TradeMark- 2000 IVS & NEAX-Registered Trademark-
1000 IVS/VSP PRODUCT Appendices. (ii) "Applications" as used herein
shall mean computer software which resides and is executed outside
of the PBX hardware PRODUCTS.
(c) Proprietary models of the PRODUCTS developed by NECAM and/or its
affiliates for third parties shall not be subject to sale to
ASSOCIATE pursuant to this AGREEMENT. As used herein, the term
"proprietary" shall mean models of the products developed by NECAM
and/or its affiliates, based upon unique and/or special design or
cosmetic specifications.
(d) In its sole discretion, NECAM may add additional types or enhanced
versions of PRODUCTS or SERVICES to the scope of this AGREEMENT.
(e) NECAM reserves the right to:
(1) discontinue the manufacture or distribution of particular models
of various types of PRODUCTS, or
(2) change or modify specifications, features, models, housings,
and/or other aspects of PRODUCTS.
upon written notice to ASSOCIATE pursuant to Section 35;
(f) TERRITORY means the geographic area designated in each PRODUCT
Appendix.
(g) DISCOUNT means the discount designated in the applicable PRODUCT
Appendix.
2. AGREEMENT TO SUPPLY
(a) NECAM hereby appoints the ASSOCIATE as an NEC America, Inc.,
ASSOCIATE to sell and otherwise distribute PRODUCTS to end-user
customers and to provide installation, repair, maintenance, training
and related services solely in the TERRITORY designated on the
applicable PRODUCT Appendix. The ASSOCIATE agrees to aggressively
promote the sale and distribution of products within the TERRITORY,
including but not limited to achievement of the minimum purchase
requirements, which may be set forth in the applicable PRODUCT
Appendices. The ASSOCIATE further agrees to provide first-class
installation, maintenance, repair and related services for such
PRODUCTS as set forth herein in accordance with highest industry
standards.
(b) When ordering PRODUCTS, ASSOCIATE shall fill out and include with
such of its orders as NECAM may designate, a Customer Software
License Agreement, Exhibit C, or such other form, as NECAM, in its
sole discretion, shall require.
(c) ASSOCIATE shall not sell, distribute, install or maintain PRODUCTS
outside of the TERRITORY defined in the applicable PRODUCTS
Appendices without the prior written consent of NECAM.
3. PURCHASE ORDERS; ORDER ACCEPTANCE; CREDIT
(a) Each purchase order submitted by ASSOCIATE shall specify model types
and quantities and shall specify accessories and options or supplies
(if applicable). In addition, such orders shall include:
(1) A description of the ordered PRODUCTS, inclusive of any
numerical/alphabetical identification referenced in NECAM's
respective brochures, manuals or publications regarding such PRODUCTS.
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(2) The requested delivery date.
(3) The applicable price (reflecting any applicable discount).
(4) The location to which such PRODUCTS are to be shipped.
(5) A Customer Software License or such other form as may be
required pursuant to Section 2 (b) herein.
(6) If ordering PRODUCTS intended to be subject to government
contract provisions, the conspicuous notice required by Section
30(b) of this AGREEMENT.
(b) NECAM may accept Purchase Orders by electronic data exchange
provided the ASSOCIATE agrees in writing to the attached Electronic
Data Interchange Agreement, Exhibit A.
(c) The terms and conditions of this AGREEMENT shall apply to all
orders placed by ASSOCIATE or PRODUCTS described herein. In the
event of conflict between the terms or conditions of this Agreement
and terms or conditions which may appear on the face or reverse
side of the ASSOCIATE's orders form or NECAM's acknowledgment form,
including but not limited to price or discount terms or conditions'
the terms and conditions of this AGREEMENT shall control. NECAM
hereby expressly rejects any additional terms or conditions
contained in ASSOCIATE's order form, regardless of any language
contained in ASSOCIATE's order form stating that NECAM's acceptance
of the order constitutes NECAM's acceptance of the inclusion of
such additional terms or conditions. If this AGREEMENT is silent
as to a particular subject, the ASSOCIATE hereby agrees that the
terms and conditions, which appear on the reverse side of NECAM's
acknowledgement, shall control over the terms and conditions, which
appear in the ASSOCIATE's order form.
(d) Orders for PRODUCTS shall be considered accepted upon acknowledgment
by NECAM; PROVIDED, HOWEVER, that
(1) NECAM may revoke or alter its acknowledgment and acceptance at
any time within five (5) days after NECAM's acknowledgment, or
(2) NECAM may withhold shipment of PRODUCTS to ASSOCIATE at any time,
if ASSOCIATE has failed to make timely payment for any previous
NECAM invoice for PRODUCTS or SERVICES.
(e) Nothing in this AGREEMENT shall be deemed to have established, or have
prevented the establishment of, suitable credit arrangements between
NECAM and ASSOCIATE.
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Such credit arrangements and/or limitations shall be as reasonably
determined by NECAM from time to time, in its sole discretion.
4. PAYMENT; SERVICE CHARGES FOR PAYMENT DELINQUENCY
(a) Payment for PRODUCTS and SERVICES is due sixty (60) days from date of
invoice.
(b) Payments received by NECAM after their due dates will be subject to a
monthly service charge, which service charge will accrue against
the sum of all late payments for such month, plus outstanding
amounts due from previous months (if applicable). The rate at which
the service charge will be computed will be:
(1) 2% above the Chase Manhattan Bank preferred lending rate in
existence as of the close of business on the last day of the
month for which NECAM's statement is rendered, compounded
monthly, or
(2) the highest interest rate permitted by applicable law,
whichever is less.
(c) Payments made be made via selected credit cards. However, ASSOCIATE
will be subject to a service charge in an amount equal to the actual
processing fees charged to NECAM by the credit card issuer.
(d) Any payment by the ASSOCIATE which is less than
(1) the sum of all amounts owed by ASSOCIATE to NECAM for the
purchase of PRODUCTS and SERVICES, plus
(2) the total of all outstanding service charges may be applied by
NECAM within its sole discretion, to ASSOCIATE's account
chronologically, by invoice date. For each such invoice,
payment may be applied first to the relevant service charge
and then to the principal amount of the invoice itself,
regardless of contrary instructions received from the ASSOCIATE.
Service charges are due and payable upon NECAM's issuance of a
service charge invoice.
(e) In addition to NECAM's remedy concerning late payment(s) provided in
Section 4(b), NECAM may withhold or delay shipment(s) of the
ASSOCIATE's order(s) for PRODUCTS and SERVICES until any payment
owed by the ASSOCIATE to NECAM which is overdue is made in full.
5. SECURITY AGREEMENT
(a) In order to secure payment of ASSOCIATE's payment obligations under
this AGREEMENT, ASSOCIATE grants to NECAM a security interest in the
following:
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(1) the PRODUCTS which ASSOCIATE purchases from NECAM,
(2) the proceeds of the sale, lease, installation, servicing,
repair or maintenance of all such PRODUCTS (including, but not
limited to, the related accounts)
(3) contract rights related to the sale or lease of any of the
PRODUCTS, and
(4) the list of all customers to whom ASSOCIATE has sold or leased
NECAM PRODUCTS or provided related installation, servicing,
repair or maintenance services.
(b) If ASSOCIATE defaults in its payment obligations to NECAM, NECAM may,
in its discretion, declare all such payment obligations immediately
due and payable, and in such event NECAM shall have all rights and
remedies of a secured party under the UCC.
(c) Also, in such event, ASSOCIATE shall cooperate fully with NECAM's
exercise of its rights under this Security Agreement, including but
not limited to the turnover of all information required by NECAM to
enforce its security interests hereunder, including all accounts
receivable and customer records, and the notification of customers
directing that payments on accounts receivable be sent directly to
NECAM or its designee.
(d) ASSOCIATE agrees to promptly sign and return to NECAM all documents
which are deemed by NECAM to be necessary or prudent to perfect or
otherwise protect the priority, validity and continuity of the
security interest granted by ASSOCIATE to NECAM in Section 5(a).
Such documents may include (but not necessarily be limited to) an
appropriate UCC-1 form. In the event ASSOCIATE fails to execute
such document(s), then, to the extent permitted by law, NECAM may
file such documents without obtaining ASSOCIATE's signature, as
ASSOCIATE's attorney-in-fact (but only for this limited purpose).
ASSOCIATE further agrees that NECAM may file a copy of this
ASSOCIATE AGREEMENT to perfect or protect the priority, validity
and continuity of such securty interest as may be permitted by
applicable law.
6. TERM
(a) This AGREEMENT will commence on the date signed by an authorized
representative of NECAM, and will continue until June 30, 2000,
unless terminated in accordance with the provisions if this
AGREEMENT.
(b) This AGREEMENT shall automatically renew each year, for an
additional one (1) year period, after the original term, unless
written notice of nonrenewal is provided by NECAM at least thirty
(30) days prior to the anniversary date or in accordance with
applicable state law requirements which may require a longer notice
period or by
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ASSOCIATE at least fifteen (15) days prior to the anniversary date.
The discounts applicable to the PRODUCTS listed on the Appendices
shall be adjusted effictive on the renewal date based on the
discount schedules set forth on such Appendices.
(c) NECAM reserves the right to revise the terms of this AGREEMENT,
including but not limited to, PRODUCT authorizations or the minimum
purchase requirements on the PRODUCTS Appendices or to redefine the
TERRITORY designated therein effective upon such renewal by providing
written notice pursuant to Section 35 of this AGREEMENT of such
deletion, revision or redefinition at least thirty (30) days prior
to the anniversary date.
(d) Upon receipt of such notice in Section 6(c) above, ASSOCIATE may
provide fifteen (15) days written notice of nonrenewal of the
AGREEMENT as provided in Section 6(b) above.
7. PRICES; PRICE CHANGES
(a) Prices for PRODUCTS and/or SERVICES to which discounts shall apply
(if such discounts are applicable, as provided for herein) shall
be as published and/or quoted by NECAM.
(b) NECAM shall be entitled to change prices for PRODUCTS or SERVICES
upon thirty (30) days of written notice to ASSOCIATE, pursuant to
Section 35 of this AGREEMENT, PROVIDED, HOWEVER, that such price
changes shall not be applicable to PRODUCTS or SERVICES for which a
written price quotation had been issued prior to the date of NECAM's
notice of such price change, and such written quotation offered to
maintain the quoted price available for a time period longer than
the time period between the date of NECAM's notice of price change
and the effective date of such price change.
8. TRANSPORTATION
NECAM shall ship from NECAM's facility capable of supplying ASSOCIATE via
the best way as arranged by NECAM, unless otherwise instructed by
ASSOCIATE. Transportation charges shall be prepaid by NECAM and added
to the invoice to be paid by ASSOCIATE as a separate item.
9. INSPECTON AND ACCEPTANCE
(a) All PRODUCTS ordered pursuant to this AGREEMENT shall be subject to
inspection by ASSOCIATE after delivery to determine their conformity
with the identification of material set forth in ASSOCIATE's purchase
order. If the PRODUCTS delivered are not listed on such purchase order,
ASSOCIATE shall the right to reject such PRODUCTS. ASSOCIATE shall have
a period of twenty (20) days following placement of the PRODUCTS within
possession of the carrier within which to inspect
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the PRODUCTS for conformity ASSOCIATE's purchase order and to provide
NECAM with written notice of acceptance or rejection. Unless such
written rejection is communicated to NECAM within such time period,
ASSOCIATE shall be deemed to have accepted the PRODUCTS. In the
event written notice of rejection is given, NECAM will promptly
undertake to remedy the delivery in a manner deemed by NECAM to be
appropriate under the circumstances. No PRODUCTS may be returned to
NECAM without its consent.
(b) Loss or damage to PRODUCTS which occurred during delivery of PRODUCTS
shall not be a permissible basis upon which to reject PRODUCTS; the
provisions of Section 11, "F.O.B., & RISK OF LOSS" shall be
applicable.
(c) Defects in PRODUCTS shall not be a permissible basis upon which to
reject PRODUCTS; ASSOCIATE shall invoke the provisions of the
applicable "WARRANTY" section hereto to remedy such defects.
10. SHIPPING AND BILLING
For Orders placed hereunder, NECAM shall:
(a) At the ASSOCIATE's discretion, ship to the ASSOCIATE's warehouse or
to the Customer's address specified on the Customer Software License
Agreement, Exhibit C, or such other form as may be required under
Section 2(b).
(b) Remit invoices, statements and notices to the address as designated
in Section 35 unless advised otherwise agreed to by NECAM.
11. F.O.B.; TITLE & RISK OF LOSS
(a) Shipments of all PRODUCTS sold to ASSOCIATE hereunder shall be made
F.O.B. NECAM's warehouse(s) or F.O.B. Port of Entry, whichever is
applicable in accordance with NECAM's prevailing policies for
various types of PRODUCTS.
(b) Title to PRODUCTS and risk of loss or damage to PRODUCTS shall pass
to ASSOCIATE when PRODUCTS are placed in the possession of the
carrier at the respective F.O.B. points of shipment. ASSOCIATE shall
be responsible for assertion of claims against carriers for loss or
damage to PRODUCTS; such loss or damage will not relieve ASSOCIATE
of its obligation to pay NECAM for the PRODUCTS.
12. SHIPPING INTERVAL
(a) Lead times for delivery of PRODUCTS applicable to each Order will be
determined by system size and specific configurations required, and
typical lead times shall be quoted by NECAM upon ASSOCIATE's request.
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(b) No firm delivery date for PRODUCTS shall be binding upon NECAM
unless such date is explicitly agreed to in a writing signed by an
officer or authorized representative of NECAM.
13. ASSOCIATE'S SERVICES
(a) NECAM's appointment of ASSOCIATE was and will continue to be
predicated upon ASSOCIATE's commitment to provide installation,
maintenance, repair and customer training services in accordance
with highest industry standards. As a minimum requirement to meet
the above commitment, ASSOCIATE agrees to:
(1) Maintain an adequate number of service centers in the
TERRITORY as reasonably determined by NECAM, equipped with
adequate numbers and types of spare parts, technical and
engineering manuals, product brochures and other similar items
relating to PRODUCTS; keep NECAM notified of the location(s)
of such service center(s), and permit NECAM to inspect such
location(s), without advance notice, during normal business
hours.
(2) Staff such service center with engineering and repair
personnel sufficient in number and skill, and provide them
with the means to be able to reach by ground transportation
any place within the TERRITORY to perform prompt repair
services for PRODUCTS within a period of two (2) hours of
receipt of a telephone call from a customer requesting such
repair service. Notwithstanding the foregoing, the ASSOCIATE's
precise obligations regarding response time shall be a matter
to be agreed upon between ASSOCIATE and its end-user customers.
(3) Permit NECAM personnel to inspect the quality of the
ASSOCIATE's installation, maintenance and repair services on
the site of any installed PRODUCT during normal business
hours. The ASSOCIATE agrees to use its best efforts to secure
the customer's consent for NECAM personnel to visit the
installation site, when such consent is required.
(4) Offer full maintenance services for PRODUCTS to all of the
ASSOCIATE's customers.
(5) Offer appropriate customer training services for PRODUCTS sold
or otherwise distributed by the ASSOCIATE to all of the
ASSOCIATE's customers. Such customer training shall include
training in the use of PRODUCTS and is the sole responsibility
of the ASSOCIATE.
(6) From time to time, as reasonably requested by NECAM, cause an
appropriate number of the ASSOCIATE's personnel to attend
training sessions conducted by NECAM, concerning PRODUCTS in
accordance with Section 14. NECAM reserves the right to
establish criteria, including but not limited to successful
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completion of such training sessions for the issuance of Technician
Identification Numbers identifying those employees of ASSOCIATE who
are certified with respect to particular PRODUCTS. No employee of
ASSOCIATE shall install, maintain or service PRODUCTS until such
employee is certified by NECAM with respect to the particular
PRODUCT. Technical support will be provided by NECAM only to those
ASSOCIATE employees possessing valid Technician Identification
Numbers. Technician Identification Numbers will be suspended or
terminated immediately upon the termination of said technician's
employment with the ASSOCIATE or upon termination or nonrenewal of
this AGREEMENT. In addition to generalized training on particular
systems, NECAM may require ASSOCIATE technicians to complete
specialized training to obtain certification to service particular
subsystems or peripheral products. NECAM may require such
specialized training and certification as a prerequisite to obtaining
telephone support from the National Technical Assistance Center
(NTAC). NECAM may, in its sole discretion, waive such certification
requirement in a particular instance, in which case NECAM may charge
its customary hourly rates for any telephone support provided.
(7) In ordering PRODUCT(S) and SERVICES, ASSOCIATE shall submit all
documentation as may be requested by NECAM, including, but not
limited to, such as may be required pursuant to the NECAM Leasing
Services Product Appendix (Exhibit B) and the Extended Hardware
Warranty Products Appendix.
(8) (i) Conduct business in a manner that reflects favorably at all times
on the Products and the good name, goodwill and reputation of NECAM;
(ii) avoid deceptive, misleading or unethical practices that are or
might be detrimental to NECAM, the PRODUCTS, end-users or the public,
including but not limited to disparagement of NECAM or PRODUCTS;
(iii) make no false or misleading representations with regard to
NECAM or the PRODUCTS; (iv) not publish or employ or cooperate in the
publication or employment of any misleading or deceptive advertising
material and; (v) to make no representations, warranties or
guarantees to customers or to the trade with respect to the
specifications, features or capabilities of PRODUCTS that are
inconsistent with the literature distributed by NECAM, including all
warranties and disclaimers contained in such literature, if any.
ASSOCIATE shall defend, indemnify and hold NECAM harmless from any
third party claims or lawsuits alleging that ASSOCIATE has violated
the terms of this Section 13(a)(8).
(9) ASSOCIATE will not disseminate, or use for purposes not specifically
permitted by NECAM, either during or after the termination of this
AGREEMENT, any information designated as "CONFIDENTIAL" and disclosed
by NECAM, and will restrict dissemination of such Confidential
Information to its own personnel on a "need-to-know" basis. ASSOCIATE
acknowledges that premature revelation of NECAM confidential
information
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can have serious and irreparable impact on NECAM's business;
therefore, in addition to all other remedies at law, the parties
agree that injunctive relief would be appropriate to prevent breach
of this provision.
(10) ASSOCIATE shall notify NECAM immediately if its identity or the
nature of its business is materially changed by bulk transfer of
assets, sale of its business, transfer of control of its outstanding
stock, merger, or otherwise.
(11) ASSOCIATE must have Internet access capability to access notices
which NECAM may post on its Web Page at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇.▇▇▇.
Notices shall be deemed effective on the date they are posted on the
Web Page.
(12) In order to support the above commitments, ASSOCIATE agrees to
comply with other reasonable requests by NECAM from time to time,
which are designated to promote ASSOCIATE's adherence to the highest
industry standards. Failure of the ASSOCIATE to comply with any of
the requirements of this Section shall subject the ASSOCIATE to
possible termination under Section 16, and shall entitle NECAM to
immediately invoke one or more of the remedies set forth in Section
16(c).
14. TRAINING
NECAM may make available to ASSOCIATE training courses for ASSOCIATE's
personnel in marketing, installation, operation and maintenance according
to published schedules. Non-refundable registration fees, training fees,
and training materials fees (if applicable) will be charged at NECAM's
prevailing rates. No discounts shall apply to such rates. ASSOCIATE shall
bear the cost of transportation, meals, lodging and any other incidental
expenses of ASSOCIATE's personnel to, from and during such training. If
mutually agreed upon by NECAM and ASSOCIATE, training may be held at an
off-site location (i.e., not at NECAM's headquarters facility) designated
by ASSOCIATE. In such a case, in addition to the above mentioned charges,
ASSOCIATE shall bear the cost of transportation, meals and lodging for
NECAM's instructor(s) as well as all costs and expenses incurred in the
handling and transportation of necessary demonstration equipment.
ASSOCIATE must comply with all applicable guidelines issued by NECAM with
respect to off-site training. The ASSOCIATE must provide adequate and
sufficient demonstration equipment or systems for its students. Except as
specifically agreed by NECAM in its sole discretion, NECAM will not provide
equipment or systems for off-site training. Only demonstration equipment
can be used for off-site training, and such demonstration systems and/or
equipment cannot subsequently be sold to an end-user as new equipment.
15. REPORTS
(a) In order to assist NECAM in its efforts to monitor ASSOCIATE's
performance hereunder, ASSOCIATE will, as may be required by NECAM:
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(1) Meet with NECAM's representative at the ASSOCIATE's principal
place of business, as frequently as may be reasonably required by
NECAM, for a review of the market conditions in the TERRITORY and
ASSOCIATE's performance under this AGREEMENT, including its
achievement of applicable PRODUCT purchases. Purchases of
PRODUCTS for resale outside the TERRITORY are not permitted
without NECAM's prior written consent and shall not be considered
in adjusting ASSOCIATE's discount pursuant to Section 6(b).
(2) Submit to NECAM, on a quarterly basis, an estimate of the
ASSOCIATE's PRODUCT needs for the next two (2) succeeding
quarters in the form required by NECAM.
(3) Submit to NECAM on or before the twentieth (20th) business day
following the end of each quarter, a written report in the form
required by NECAM stating the ASSOCIATE's sales of PRODUCTS
within the TERRITORY during the preceding calendar quarter and
the ASSOCIATE's stocks on hand of PRODUCTS as of the last day of
the preceding quarter.
(4) Submit to NECAM audited copies (or unaudited copies, if the
ASSOCIATE's financial statements are not audited) of the
ASSOCIATE's latest financial statements within sixty (60) days
following the end of the ASSOCIATE's fiscal year, and if
financial statements are also prepared quarterly on an unaudited
basis, also such unaudited quarterly statements, within sixty
(60) days following the end of each calendar quarter or sooner if
requested by NECAM.
(5) Submit to NECAM, on a quarterly basis, a list of all current
employees certified by NECAM to perform installation, maintenance
and repair services for each of the PRODUCTS listed on the
PRODUCT Appendices, or update, as requested, the list of such
certified employees maintained by NECAM.
16. TERMINATION
(a) This AGREEMENT may be terminated, in full or in part, effective
immediately, without liability for said termination, upon the
occurrence of any of the following events:
(1) an ASSOCIATE files a voluntary petition in bankruptcy,
(2) an ASSOCIATE is adjudged bankrupt,
(3) a court assumes jurisdiction of the assets of an ASSOCIATE under
a federal reorganization act,
(4) a trustee or receiver is appointed by a court for all or a
substantial portion of the assets of an ASSOCIATE,
(5) an ASSOCIATE becomes insolvent or suspends its business,
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(6) an ASSOCIATE makes an assignment of its assets for the benefit of
its creditors except for the company's line of credit from its
lender in the normal course of business,
(7) the identity of an ASSOCIATE or the nature of its business is
materially changed by bulk transfer of assets, sale of its
business, transfer of control of its outstanding stock, merger,
or otherwise,
(8) ASSOCIATE fails to make payment for any NECAM invoice for
PRODUCTS within thirty (30) days of the due date for payment of
such invoice,
(9) any other AGREEMENT between ASSOCIATE and NECAM terminates or
expires, pursuant to the terms and conditions of such agreement,
(10) ASSOCIATE breaches any of the terms and conditions of Section 37
governing the use of NECAM's trade names or trademarks,
(11) ASSOCIATE sells PRODUCTS to any other resellers (including but
not limited to NECAM Distributors),
(12) ASSOCIATE sells, installs, maintains or SERVICES PRODUCTS outside
of its Authorized TERRITORY, without NECAM's prior written
consent, or
(13) ASSOCIATE subcontracts without NECAM's prior written consent to
an entity other than an Authorized ASSOCIATE,
(14) ASSOCIATE assigns any of its rights or responsibilities hereunder
except as permitted herein or with NECAM's prior written consent,
or
(15) ASSOCIATE breaches the terms of Section 13(a)(8).
(b) The entire AGREEMENT or portions thereof relating to specific types of
PRODUCTS may be terminated by NECAM, in the event that:
(1) ASSOCIATE knowingly provides false information on a "Customer
Software License Agreement, Exhibit C",
or
(2) ASSOCIATE fails to provide installation, maintenance, repair and
support SERVICES in accordance with NECAM's and industry
standards for such specific type of PRODUCTS.
(c) In the event of any default or failure on the part of a party in the
performance of any of its duties, obligations or responsibilities
under this AGREEMENT, other than default or failure specified in
paragraphs 16(a) or 16(b) above, the non-defaulting party may
terminate this AGREEMENT, provided that with respect to defaults
susceptible of immediate cure, the defaulting party had been given
fifteen (15) days' prior written notice of the default and failed to
cure the default within such fifteen (15) day period.
12
(d) Except in those cases where ASSOCIATE has been terminated because of a
breach of its obligations under Section 13, NECAM may complete any
order for PRODUCTS accepted by NECAM prior to termination and will
accept and complete any order for PRODUCTS where ASSOCIATE, prior to
the effective date of termination, has entered into a binding
contract for the resale of such PRODUCTS to an end-user.
Notwithstanding the foregoing, NECAM may condition acceptance and
completion of such orders on reasonable conditions which NECAM may
impose, including but not limited to prior payment in full for these
and any other previous orders, proof of a binding contract with an
end-user customer, and/or subcontracting of service obligations to an
Authorized ASSOCIATE.
17. RIGHTS UPON TERMINATION
(a) In the event of termination by NECAM, NECAM has the right to
accelerate all outstanding payment obligations and shall have all the
remedies of a seller under the New York Uniform Commercial Code,
including, but not limited to, the remedies provided for in Section
2-702, 2-703, 2-704 and 2-705 of such Code, where applicable.
(b) Neither party shall be liable to the other under any legal or
equitable theory for compensation, reimbursement for investments or
expenses, lost profits or incidental or consequential damages of any
other kind or character as a result of any termination or nonrenewal
of this AGREEMENT.
18. CANCELLATION OF PURCHASE ORDERS; REVOCATION OF ACKNOWLEDGMENTS
(a) In the event that NECAM shall fail to deliver material within ten
(10) days of a firm delivery date established pursuant to Section
12(b), then ASSOCIATE shall have the right to cancel such Order.
(b) In the event that ASSOCIATE shall be in material breach or default of
any terms, conditions or covenants of this AGREEMENT (including, but
not limited to, timely payment for PRODUCTS purchased), then (in
addition to all other rights and remedies contained herein, or at
law, equity or otherwise) NECAM shall have the right to suspend
delivery of PRODUCTS on all outstanding Orders, or revoke its
acknowledgment of any such Order.
19. NON-EXCLUSIVE MARKET RIGHTS
(a) NECAM reserves its right to:
13
(1) directly or through its subsidiaries, affiliates, agents or any
other type of distribution entity market, sell, license or
distribute any type of telecommunications products whether or not
listed in the PRODUCTS Appendices or provide installation, repair,
maintenance and related SERVICES for any such telecommunications
products, wherever NECAM deems necessary or appropriate.
(2) directly, or through its subsidiaries, affiliates, agents or any
other type of distribution entity distribute, install, license
and/or maintain (directly or indirectly) any such
telecommunications PRODUCTS.
(3) utilize the customer identification information contained on the
Customer Software License Agreement, Exhibit C, or such other
form as NECAM shall require, to conduct surveys or perform other
marketing functions, as NECAM deems necessary or appropriate.
NECAM will notify ASSOCIATE prior to commencement of such
marketing activities.
20. INFRINGEMENT
(a) In the event of a claim or suit against ASSOCIATE alleging (a) the
PRODUCT(S), as sold by NECAM infringes any patent issued by or
copyright registered in the country in which the PRODUCT(S) was sold
to ASSOCIATE, NECAM shall defend ASSOCIATE to the extent the claim or
suit concerns such infringement, provided ASSOCIATE gives NECAM prompt
notice of such claim or suit and continuous cooperation in such
defense.
(b) In any claim or suit against ASSOCIATE that is defended by NECAM
pursuant to paragraph (a), NECAM shall control the defense, shall pay
all litigation costs, including reasonable attorney's fees incurred
by NECAM in such defense, and shall indemnify ASSOCIATE for all
damages awarded by a court or settlement payments approved by NECAM,
provided the ASSOCIATE has incorporated the warranty exclusions and
liability limitations provided for in Sections 20, 21, 22 and 31 of
this AGREEMENT.
(c) If, in any claim or suit against ASSOCIATE that is defended by NECAM
pursuant to paragraph (a), as a result of a court order not subject to
further appeal or a settlement approved by NECAM, ASSOCIATE is
enjoined or otherwise prevented from using the PRODUCT(S) sold by
NECAM, NECAM, at its option, may (a) procure for ASSOCIATE the right
to continue using the PRODUCT(S), (b) replace or modify the
PRODUCT(S) to avoid infringement, or (c) repossess the PRODUCT(S) in
exchange for a refund of the depreciated value of the PRODUCT(S).
NECAM's option selected under this paragraph shall be ASSOCIATE's
sole remedy for any prospective effects of any court order or
settlement.
14
(d) NECAM's total cumulative liability under paragraphs (b) and (c) shall
be limited to the price paid to NECAM by ASSOCIATE for the
PRODUCTS(S) together with payment of all litigation costs or as
provided for in paragraph 20(b).
(e) Notwithstanding any other provision of this Article, NECAM shall not
be obligated to defend and shall not be liable for costs or damages
awarded in any claim or suit for infringement in which (a) the
PRODUCT(S) was made by NECAM pursuant to specifications supplied by
ASSOCIATE, or (b) the alleged infringement is based on use by
ASSOCIATE, without NECAM's permission, of the PRODUCT(S) as sold by
NECAM in combination with another item not sold by NECAM, where the
alleged infringement arises from the combination or from practice of
a method made possible by the combination, or (c) the alleged
infringement is based on the PRODUCT(S) as modified by ASSOCIATE
without NECAM's permission.
21. HARDWARE WARRANTY
(a) As to any hardware PRODUCTS purchased by the ASSOCIATE in accordance
with the terms of this AGREEMENT, NECAM warrants for fourteen (14)
months from the date of shipment to ASSOCIATE that the hardware
PRODUCTS:
(1) will conform to the applicable specifications for such hardware
PRODUCTS published by NECAM at the time of sale, and
(2) will be free from defects in material and workmanship, under
normal use and service when correctly installed and maintained,
(3) will be Year 2000 Compliant only to the extent specifically set
forth on the NEC Web Page at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇.▇▇▇.
(b) NECAM reserves the right to modify the duration or terms of the
warranty upon written notice to the ASSOCIATE.
(c) NECAM's liability for any hardware PRODUCT which is shown to be
defective during its warranty is limited to:
(1) replacing the hardware PRODUCT or part thereof with a
functionally equivalent hardware PRODUCT or part,
(2) repairing the hardware PRODUCT, or
(3) issuing credit for the hardware PRODUCT
(d) NECAM shall select which of the above warranty remedies to utilize
concerning any particular hardware PRODUCT.
15
(e) In the event that any hardware PRODUCT is shown to be defective
during the warranty period, the ASSOCIATE, or such Authorized
ASSOCIATE as may be providing SERVICE to the end-user to whom such
PRODUCT has been sold or leased, shall:
(1) notify NECAM promptly in writing of any claims,
(2) provide NECAM with an opportunity to inspect and test the
hardware PRODUCTS claimed to be defective, and
(3) if repair or replacement of the hardware PRODUCT is selected by
NECAM, return the hardware PRODUCT to NECAM only in accordance
with NECAM's then current Material Return Authorization ("MRA")
policy and procedures, which are incorporated herein by
reference and are subject to change by NECAM from time to time.
(f) The above warranty excludes coverage for hardware PRODUCTS which were
installed, repaired or maintained by an unauthorized service provider
or which were subjected to misuse, abuse, improper installation or
application, improper maintenance or repair, alteration, accident or
negligence in use, improper temperature, humidity or other
environmental condition (including, but not limited to, lightning or
water damage), storage, transportation or handling, unless caused by
NECAM or its authorized representative.
(g) NECAM's hardware PRODUCTS warranty extends only to ASSOCIATE and
ASSOCIATE is not authorized to assign this warranty to its customers
or to any other party. Rather, the ASSOCIATE agrees to extend a
hardware PRODUCTS warranty to its end-user customers which is no
greater in substance and scope than that extended by NECAM to
ASSOCIATE, and which shall incorporate the warranty exclusions and
liability limitations provided in Sections 21 (e), 21 (h) and 31.
(h) All hardware PRODUCTS warranty claims must be forwarded to NECAM by
an Authorized ASSOCIATE. NECAM will accept no hardware PRODUCTS
warranty claims from former ASSOCIATES whose ASSOCIATE AGREEMENTS
have expired or been terminated, or directly from ASSOCIATE's
customers. The warranty shall not operate to extend the term of
ASSOCIATE's AGREEMENT and shall terminate immediately upon
termination or nonrenewal of the AGREEMENT or of ASSOCIATE's
authorization to sell the covered warranty components. In such event,
ASSOCIATE hereby consents to the assignment of the warranty to a then
currently Authorized NECAM ASSOCIATE.
(i) THE HARDWARE PRODUCTS WARRANTY CONTAINED IN THIS AGREEMENT IS IN LIEU
OF ALL OTHER WARRANTIES, EXPRESS OR
16
IMPLIED, INCLUDING (BUT NOT LIMITED TO) ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, INCLUDING BUT
NOT LIMITED TO PREVENTION, DETECTION OR DETERRENCE OF TOLL FRAUD,
COMPUTER VIRUSES OR OTHER UNAUTHORIZED OR IMPROPER USE OF THE
HARDWARE PRODUCTS.
22. SOFTWARE LICENSE AND SOFTWARE WARRANTY
(a) As to any PBX and/or Applications software PRODUCTS licensed to the
ASSOCIATE in accordance with the terms of this AGREEMENT, NECAM
warrants PBX software of fourteen (14) months and Applications
software for one-hundred-fifty (150) days from date of shipment to
ASSOCIATE that the software PRODUCTS:
(1) will conform to the published specifications for such software
PRODUCTS, applicable at the time of licensing and
(2) will be free from defects in material and workmanship, under
normal use and service when correctly installed and maintained,
(3) will be Year 2000 Compliant only as specifically set forth on
the NEC Web Page at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇.▇▇▇.
(b) NECAM reserves the right to modify the duration or terms of the
warranty upon written notice to ASSOCIATES.
(c) NECAM's liability for any software PRODUCT which is shown to be
defective during its warranty period is limited to:
(1) replacing the PRODUCT or part thereof with a functionally
equivalent software PRODUCT or part,
(2) repairing the PRODUCT, or
(3) issuing credit for the software PRODUCT
(d) The choice of which of the above warranty remedies to utilize
concerning any particular software PRODUCT shall be NECAM's.
(e) In the event that any software PRODUCT is shown to be defective
during the warranty period, the ASSOCIATE or such Authorized
ASSOCIATE as may be providing SERVICE to the end-user to whom such
software PRODUCT has been licensed shall:
(1) notify NECAM promptly in writing of any claims,
17
(2) provide NECAM with an opportunity to inspect and test the
software PRODUCTS claimed to be defective, and
(3) (if repair or replacement of the software PRODUCTS is selected
by NECAM) return the software PRODUCTS to NECAM only in
accordance with NECAM's then current Material Return
Authorization policy and procedures, which are incorporated
herein by reference and are subject to change by NECAM from
time to time.
(f) Unless caused by NECAM or its authorized third party representatives,
the above warranty excludes coverage for software PRODUCTS which were
installed, repaired or maintained by an unauthorized service provider
or which were subjected to misuse, abuse, improper installation or
application, improper maintenance or repair, alteration, accident or
negligence in use, improper temperature, humidity or other
environmental condition (including, but not limited to, lightning or
water damage), storage, transportation or handling.
(g) Except as otherwise provided in writing, NECAM's software PRODUCTS
warranty extends only to ASSOCIATE and ASSOCIATE is not authorized to
assign this warranty to its customers. Rather, the ASSOCIATE agrees
to extend a software PRODUCTS warranty to its customers which is no
greater in substance and scope than that extended by NECAM to
ASSOCIATE, and which shall incorporate the warranty exclusions and
liability limitations provided in Section 22(d), 22(g) and 31. NECAM
shall not be liable for software PRODUCTS warranty terms extended by
the ASSOCIATE to its customers which are different from or greater
than those set forth above.
(h) Except as otherwise provided in writing, all software PRODUCTS
warranty claims must be forwarded to NECAM by an Authorized
ASSOCIATE. NECAM will accept no software PRODUCTS warranty claims
from former ASSOCIATES whose ASSOCIATE AGREEMENTS have expired or
been terminated or directly from ASSOCIATE's customers. The warranty
shall not operate to extend the term of ASSOCIATE's AGREEMENT and
shall terminate immediately upon termination or nonrenewal of the
AGREEMENT or of ASSOCIATE's authorization to sell the covered
warranty components. In such event, ASSOCIATE hereby consents to the
assignment of the warranty to a then currently Authorized NECAM
ASSOCIATE.
(i) THE SOFTWARE PRODUCTS WARRANTY CONTAINED IN THIS AGREEMENT IS IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (BUT
NOT LIMITED TO) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, INCLUDING BUT NOT LIMITED TO PREVENTION,
DETECTION OR
18
DETERRENCE OF TOLL FRAUD, COMPUTER VIRUSES OR OTHER UNAUTHORIZED OR
IMPROPER USE OF THE SOFTWARE PRODUCTS.
(j) NECAM hereby grants to ASSOCIATE a non-exclusive license in the
following rights in software PRODUCTS, which licensed rights may be
exercised by ASSOCIATE only when related to the resale by ASSOCIATE
within the TERRITORY or otherwise with NECAM's consent of related
hardware PRODUCTS purchased directly from NECAM:
(1) the right to distribute the software PRODUCTS,
(2) the right to use the software PRODUCTS for demonstration,
installation, maintenance and repair of related hardware
PRODUCTS as may be specified by NECAM,
(3) the right to grant sublicenses to end-users for the following
rights only:
(i) the right of the end-user to use the software PRODUCTS,
but only in conjunction with related hardware PRODUCTS
sold by an Authorized ASSOCIATE to the end-user,
(ii) the right of the end-user to make one (1) copy of the
software PRODUCTS for archival/back-up purposes,
(iii) the right of the end-user to transfer the end-user's
software PRODUCTS rights to a third party who acquires
title to the end-user's related hardware PRODUCTS,
provided such transferee assents in writing to the
conditions and limitations of the sublicense and pays
any applicable transfer fee.
(k) The above license may be exercised by ASSOCIATE with respect to
specific software PRODUCTS only upon payment by ASSOCIATE of any
applicable licensing fee.
(l) NECAM reserves all other rights, title and interest to the software
PRODUCTS, and neither ASSOCIATE nor its end-user customers shall
acquire any rights, title or interest in the software PRODUCTS other
than as specifically set forth in this Section.
(m) ASSOCIATE and ASSOCIATE's customers may not:
(1) sublicense or distribute the software PRODUCTS except as
authorized by this Section, or
(2) reverse compile, disassemble, alter, add to, delete from, or
otherwise modify the software PRODUCTS, except to the extent
that such modification capability is an intended feature of
the software PRODUCTS.
19
(n) ASSOCIATE agrees to notify NECAM promptly in the event any of
ASSOCIATE's end-user customers violates the conditions of its
sublicense.
(o) ASSOCIATE hereby agrees to execute (and secure end-users' execution
of) any additional documents relating to software PRODUCTS as
reasonable required by NECAM from time to time, to protect the
respective rights, title and licensing interest of NECAM or third
parties to the software PRODUCTS. ASSOCIATE agrees to utilize
standard sublicensing forms, if provided by NECAM, for the purpose
of licensing or sublicensing software PRODUCTS to its end user
customers.
(p) ASSOCIATE's license shall continue in effect unless terminated by
NECAM due to:
(1) a breach by the ASSOCIATE of the terms of this Section,
(2) mutual agreement, or
(3) termination or expiration of this AGREEMENT,
provided, however, that termination of such licenses shall not act
to rescind sublicenses granted by the ASSOCIATE in accordance with
the terms of this AGREEMENT prior to termination of the ASSOCIATE's
license.
(q) ASSOCIATE agrees to use best efforts to protect software PRODUCTS
from reproduction, modification or distribution except as
specifically authorized by this AGREEMENT and to notify NECAM
promptly if the ASSOCIATE learns of any attempt to do so.
THE SOFTWARE LICENSE PROVISIONS CONTAINED IN THIS SECTION APPLY ONLY TO
SOFTWARE OWNED BY NECAM OR ITS AFFILIATES. IN THE EVENT THAT NECAM
PROVIDES SOFTWARE OWNED (IN WHOLE OR IN PART) BY A THIRD PARTY, NECAM
MAY BE REQUIRED TO OBTAIN ASSOCIATE'S ASSENT TO DIFFERING OR ADDITIONAL
TERMS AND CONDITIONS IN ORDER TO LAWFULLY GRANT A LICENSE TO ASSOCIATE
FOR SUCH SOFTWARE. THEREFORE, NECAM RESERVES THE RIGHT TO WITHHOLD
PROVISION OF SUCH SOFTWARE UNTIL ASSOCIATE'S ASSENT IS OBTAINED.
23. REPAIR OR REPLACEMENT OF HARDWARE PRODUCTS NOT COVERED UNDER WARRANTY
(a) NECAM agrees, at its option, to repair hardware PRODUCTS, excluding
personal computers/servers and Applications no longer under warranty,
or to replace such hardware PRODUCTS with functionally equivalent
hardware PRODUCTS, for a
20
period of no less than five (5) years after such hardware PRODUCTS
have been manufacturer-discontinued. Hardware PRODUCTS to be
repaired or replaced under this Section are to be returned by an
Authorized ASSOCIATE to a location designated by NECAM.
(b) If a hardware PRODUCT is returned to NECAM for repair as provided
in this Section, and is determined to be beyond repair, NECAM may,
at its option (i) return such hardware PRODUCT to the ASSOCIATE at
ASSOCIATE's expense or (ii) offer to sell to ASSOCIATE replacement
hardware products at NECAM's then current prices.
(c) Replacement and repaired hardware PRODUCTS shall be warranted as
set forth in Section 21. The repaired PRODUCT hardware warranty
period shall be six (6) months from the date of repair, or such
other period as NECAM may specify in writing.
(d) All transportation charges for, and risk of in-transit loss or
damage to, out-of-warranty hardware PRODUCTS returned to NECAM for
repair will be borne by ASSOCIATE. All transportation charges
associated with the return of such repaired and replaced hardware
PRODUCTS to ASSOCIATE shall be borne by ASSOCIATE and shall be
prepaid by NECAM and listed as a separate item on NECAM's invoice
for repair. ASSOCIATE shall bear the risk of in-transit loss and
damage for shipments of repaired or replaced hardware PRODUCTS.
(e) Prices for out-of-warranty repairs made pursuant hereto shall be
NECAM's prevailing charges. Discounts do not apply to such repair
charges.
(f) ASSOCIATE hereby agrees to comply with NECAM's Material Return
Authorization ("MRA") procedures, as may be amended by NECAM from
time to time.
24. TECHNICAL SUPPORT
(a) ASSOCIATE shall be entitled to ongoing technical support, including
field service and assistance, provided, however, that the
availability or performance of this technical support service shall
not be construed as altering or affecting NECAM's warranty
obligations as set forth in this AGREEMENT.
(b) Ongoing technical support via telephone will be available to
ASSOCIATE from NECAM at NECAM's then current charges. NECAM's
field service technical support shall be available to ASSOCIATE,
including emergency (service affecting) twenty-four (24) hour
technical assistance as determined by NECAM. Such field service
technical support shall be subject to availability of NECAM's
technical support personnel. Charges, if any, for such field
service technical support will be NECAM's then prevailing charges.
No discounts shall apply to such charges.
21
(c) PROFESSIONAL SERVICES: The general complexity and multi-technology
characteristics of converging technology products may make it
necessary for NECAM to provide additional customizing, optimizing
and consulting services to the end-users of these products. If
provided by NECAM, such services, collectively known as
"Professional Services", will be offered for sale through
ASSOCIATES. Fees for such services will be at NECAM's then
prevailing rates.
While the sale of Professional Services will be conducted through
ASSOCIATES, the actual delivery of these services will require a
direct contract between NECAM and the corresponding end-users.
25. DOCUMENTATION
From time to time, NECAM may make available to ASSOCIATE various types of
documentation. Certain types of documentation may be made available to
ASSOCIATE via electronic media. Charges, if any, for documentation will
be at NECAM's prevailing charges.
26. ADVERTISING AND PROMOTION
Under the provisions of NECAM's applicable Cooperative Advertising
Program. ASSOCIATE may be eligible to accrue funds in an account to be
used for advertising, media and/or promotion efforts utilized to promote
the sale of PRODUCTS. These funds will be made available based upon the
terms and conditions of NECAM's Cooperative Advertising Program, as may be
amended from time to time, the provisions of which are hereby incorporated
by reference as if fully set forth herein.
27. FORCE MAJEURE
NECAM shall not be responsible for any losses resulting if the fulfillment
by NECAM of any terms of provisions of this AGREEMENT or any order is
delayed or prevented by revolution or other disorders, war, acts of
enemies, strikes, fires, floods, transportation delays or shortages, labor
disputes, riots, insurrections, accidents, storms, inability to obtain
materials or supplies, excessive demand for PRODUCTS over the available
supply, customs duties or surcharges, any interruption for any reason in
the manufacture of PRODUCTS by NECAM's suppliers, any act of God, the
action of any government, or other cause not within NECAM's control,
whether of the class of causes set forth above or not.
28. ASSIGNMENT
(a) Except as otherwise provided herein, the rights and obligations of
the parties hereunder shall not be assigned, subcontracted, delegated
or otherwise transferred without the prior written consent of the
other party, PROVIDED THAT NECAM may assign or delegate
22
its rights and obligations hereunder, in whole for in part, to its
parent or subsidiary upon prior written notice to the ASSOCIATE.
(b) The limitation on assignment does not apply to an assignment confined
solely to monies due or to become due under this AGREEMENT, provided
ASSOCIATE or NECAM is given thirty (30) calendar days prior written
notice of such assignment. Assignment of monies shall be void to the
extent that it attempts to impose upon ASSOCIATE or NECAM obligations
to the assignee additional to the payment of such monies, or to
preclude ASSOCIATE or NECAM from dealing solely and directly with
the other in all matters pertaining hereto, including negotiation of
amendments or settlement of amounts due.
29. TAX
Prices for PRODUCTS are exclusive of the following taxes, which shall be
added by NECAM to its invoice and payable by ASSOCIATE, unless ASSOCIATE
provides proof to NECAM of a valid exemption from the applicability of
such tax(es): Federal Excise Taxes which may be imposed, State and Local
Sales Taxes, and/or Use Taxes.
(a) The parties hereby acknowledge that NECAM typically has not sold
certain types of PRODUCTS which are included within the scope of this
AGREEMENT for resale under government contracts. Accordingly,
notwithstanding any other provision(s) of this AGREEMENT, and without
incurring any liability to ASSOCIATE or third party, NECAM hereby
reserves the right to reject any ASSOCIATE Order for PRODUCTS to
which government contract provisions will apply.
(b) In the event that ASSOCIATE orders PRODUCTS to which Government
contract provisions are intended to apply, ASSOCIATE's order must
conspicuously state such fact on its face, for the purpose of
notifying NECAM and permitting NECAM to opportunity to consider
whether to accept or reject such order. If such order fails to have
such fact conspicuously stated on its face, then (notwithstanding
Section 3 (a)(6) or any other provision of this AGREEMENT) NECAM
shall be AUTOMATICALLY deemed to have rejected such order, and any
acknowledgement which NECAM may have issued for such order shall be
deemed void and of no effect.
(c) If the software PRODUCTS will be supplied to a unit or agency of the
United States government by ASSOCIATE, NECAM will supply commercial
computer software or commercial computer documentation to be acquired
under licenses customarily provided to the public. NECAM shall not be
required to:
23
(1) Furnish technical information related to commercial computer
software or commercial computer software documentation that is
not customarily provided to the public; or
(2) Relinquish to, or otherwise provide, the Government rights to
use, modify, reproduce, release, perform, display, or disclose
commercial computer software or commercial computer software
documentation except as mutually agreed to by the parties.
(3) With regard to commercial computer software and commercial
computer software documentation, the Government shall have only
those rights specified in the license contained in any addendum
to the contract, or alternatively, any shrink-wrap license
delivered with the software. (See 48 CFR 12.212).
31. LIMITATION OF LIABILITY
NECAM's liability for PRODUCT malfunction shall be limited to performing
one of the remedies under the hardware or software PRODUCT warranties,
provided that the malfunctioning PRODUCT is covered by the applicable
warranty. NECAM and ASSOCIATE hereby agree that if such limitation is
declared invalid by a court of competent jurisdiction, then NECAM'S
liability shall be limited solely to a U. S. dollar amount equal to the
cost of the malfunctioning PRODUCT to the ASSOCIATE. THESE REMEDIES SHALL
BE EXCLUSIVE AND SHALL BE THE ASSOCIATE'S SOLE REMEDIES AGAINST NECAM OR
ANY OF ITS AFFILIATES FOR PRODUCT MALFUNCTION.
IN NO EVENT SHALL NECAM BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL
OR SIMILAR DAMAGES, SUCH AS (BUT NOT LIMITED TO) "DOWNTIME", EXCESS COSTS
OR LOST BUSINESS REVENUES RESULTING FROM NECAM'S BREACH OF ANY OF THE
PROVISIONS OF THIS AGREEMENT, NECAM'S TORTIOUS CONDUCT IN OR RELATED TO
THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, A PRODUCT MALFUNCTION OR
FROM UNAUTHORIZED OR IMPROPER USE OF PRODUCTS INCLUDING BUT NOT LIMITED
TO TOLL FRAUD OR COMPUTER VIRUSES.
32. LIMITATION OF TIME CONCERNING CAUSES OF ACTION
Any cause of action based upon an alleged breach of this AGREEMENT or
otherwise related to the parties, rights, obligations and/or performance
thereunder must be commenced within one (1) year of the accrual of the
cause of action.
33. CHOICE OF LAW; JURY WAIVER
The construction, interpretation and performance of this AGREEMENT shall
be governed by and construed in accordance with the domestic laws of the
State of New York.
24
Each of the parties waives trial by jury and the right to trial by jury
in any and all actions or proceeding in any court between them or to
which they may be parties, whether arising out of, under or by reason
of this AGREEMENT, or any acts or transactions, hereunder to the
interpretation or validity thereof, or under, or by reason of any other
contract, agreement, loan, or transaction of, any kind between them, or
to which they may be parties, of any kind, nature, or description
whatsoever.
34. SEVERABILITY
If any of the provisions of this AGREEMENT shall be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate
or render unenforceable the entire AGREEMENT, but rather the entire
AGREEMENT shall be construed as if not containing the particular
invalid or unenforceable provision or provisions, and the rights and
obligations of NECAM and ASSOCIATE shall be construed and enforced
accordingly.
35. NOTICES
All communications and notices required by or relating to this
AGREEMENT shall be deemed to have been duly given (1) upon receipt by
the addressee when sent via registered mail, overnight mail, or via
facsimile directed to the attention of the individual signing this
agreement at the address specified in the preamble hereto or (2) when
posted by NECAM on its Web Page at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇.▇▇▇.
Except as with respect to notices posted by NECAM on its Web page as
set forth above, the addresses to which notices or communications may
be given by either party may be changed by written notice given by such
party to the other pursuant to this Section.
36. LICENSES
Except as specifically set forth herein, or unless otherwise expressly
agreed in writing, no licenses, expressed or implied, under any
patents, copyright, trade names or trade secrets are granted by one
party to the other.
37. TRADEMARKS
(a) Other than as set forth below, ASSOCIATE acquires no right,
title or interest in any trademark, tradename or other
intellectual property right of NECAM or its affiliates.
(b) So long as this AGREEMENT remains in effect, ASSOCIATE may use
the trade names and trademarks specified by NECAM on a
non-exclusive basis for advertising and promotion of the
PRODUCTS consistent with reasonable guidelines established by
NECAM, as may be amended from time to time.
25
(c) ASSOCIATE shall not remove any trade name or trademark of NECAM
or its affiliates from any PRODUCT without NECAM's prior
express written consent.
38. NON-WAIVER
No course of dealing or failure of either party to strictly enforce any
term, right or conditions of this AGREEMENT shall be construed as a
waiver of such term, right or condition.
39. SURVIVAL OF OBLIGATIONS
The respective parties' obligations under this AGREEMENT which by their
nature would continue beyond the termination, cancellation or expiration
of this AGREEMENT, shall survive such termination, cancellation or
expiration of this AGREEMENT.
40. SHORTAGES
NECAM will endeavor to fully satisfy ASSOCIATE's specific requirements
for respective types of PRODUCTS at all times, and to ship Orders which
NECAM has accepted within customary respective shipment time periods.
However, in the event of PRODUCTS shortage(s), NECAM reserves the right
to allocate the supply of, and/or assign priorities to the shipment of,
NECAM's then-available stock of such PRODUCTS based upon all of the
circumstances and NECAM's assessment of the respective order
requirements and respective shipping date requirements of all
purchasers of PRODUCTS.
41. LIMITATION OF AUTHORITY
It is expressly understood that this AGREEMENT does not give ASSOCIATE
any right or authority to act for or represent NECAM or its affiliates
or to pledge their credit or contract any liability whatsoever on their
behalf. It is understood that this AGREEMENT does not confer upon
ASSOCIATE any authority to warrant any PRODUCTS sold hereunder, or to
make any adjustments on NECAM's behalf in connection with PRODUCTS
without NECAM's express consent.
42. ENTIRE AGREEMENT
This AGREEMENT constitutes the entire understanding between NECAM and
the ASSOCIATE and replaces and supersedes any prior agreements between
NECAM and the ASSOCIATE, and/or any prior agreements between either of
them and the other's predecessor(s) concerning any of the subject
matters contained herein. In the event of any conflict between the
"General Terms & Conditions Applicable to All PRODUCTS and SERVICES"
and the terms and conditions set forth in a Product Appendix, the terms
and conditions of such PRODUCT Appendix shall control.
26
This AGREEMENT may not be changed, modified or amended except as provided for
herein or by an instrument in writing signed by both NECAM and the ASSOCIATE.
WHEREBY this Agreement is effective upon the signature of NEC America, Inc. as
appearing below:
NEC AMERICA, INC.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
TITLE: GENERAL MANAGER,
BUSINESS SYSTEMS SALES DIVISION
-------------------------------
DATE: 5/28/99
-------------------------------
27
KEY TELEPHONE PRODUCTS APPENDIX
1. PRODUCTS
PRODUCTS include:
(a) Electra Professional-Registered Trademark- and Electra
Elite-Registered Trademark- Key telephone systems
(b) Electra Professional and Electra Elite Voice Processing
Equipment
(c) Spare parts for manufacture discontinued Electra Key telephone
systems
2. DISCOUNTS
(a) During the first year of the term of this AGREEMENT, NECAM
shall grant to ASSOCIATE a twenty-five percent (25%) discount
off of NECAM's MSRP for the Electra Professional, the Electra
Elite, Electra Professional Voice Processing Equipment and
Electra Elite Voice Processing Equipment PRODUCT(S). Excluded
from such discount are certain items of Electra Professional,
Electra Elite, Electra Professional Voice Processing Equipment
and the Electra Elite Voice Processing Equipment PRODUCT(S) and
discontinued Electra Key telephone systems that are offered at
a net (non-discountable) price.
Such discount(s) will be increased during such original or
renewal term if ASSOCIATE'S purchases exceed the Net Dollar
Purchase amount listed below as qualifying for such higher
discount(s).
(b) On April 1 of each year during the term of this AGREEMENT,
NECAM will conduct an annual review of the performance of
ASSOCIATE under this AGREEMENT. ASSOCIATE's purchases during
the preceding twelve (12) month period (April 1 through March
31) of each year in which this AGREEMENT is in effect shall be
used to determine ASSOCIATE's discounts for the next successive
twelve (12) month period. For purposes of determining
ASSOCIATE's discounts after the first year of the term of this
AGREEMENT, the following discount schedule shall apply:
ELECTRA PROFESSIONAL & ELECTRA ELITE
NET DOLLAR PURCHASES DISCOUNT
-------------------- --------
1-149,999 25%
150,000-349,999 29%
350,000 or Over 33%
In the event that this Agreement does not commence on April 1,
the above discount schedules shall be pro-rated for the first
year of the term of this AGREEMENT. NECAM reserves the right
to change or modify the above discount schedules upon written
notice to ASSOCIATE.
3. TERRITORY
TERRITORY SHALL MEAN THE FOLLOWING:
ASSOCIATE's territory shall remain the same as stated in ASSOCIATE's
previous contract renewal.
NEAX-REGISTERED TRADEMARK-2000 IVS & NEAX-REGISTERED TRADEMARK-1000
IVS/VSP PRODUCTS APPENDIX
1. PRODUCTS
PRODUCTS include:
(a) NEAX-REGISTERED TRADEMARK-2000 IVS
(b) NEAX-REGISTERED TRADEMARK-1000 IVS/VSP
2. DISCOUNTS
(a) During the original term of this AGREEMENT, NECAM shall grant
to ASSOCIATE a twenty-five percent (25%) discount off of
NECAM's list prices for the NEAX2000 IVS and the NEAX1000
IVS/VSP PRODUCT(S). Excluded from such discount are certain
items of the NEAX2000 IVS and the NEAX1000 IVS/VSP PRODUCT(S)
that are offered at a net (non-discountable) price.
Such discount will be increased during such original or renewal
term if ASSOCIATE'S purchases exceed the Net Dollar Purchases
amount listed below as qualifying for such higher discount.
(b) On April 1 of each year during the term of this AGREEMENT,
NECAM will conduct an annual review of the performance of
ASSOCIATE under this AGREEMENT. ASSOCIATE's purchases during
the preceding twelve (12) month period (April 1 through March
31) of each year in which this AGREEMENT is in effect shall be
used to determine ASSOCIATE's discount for the next successive
twelve (12) month period. For purposes of determining
ASSOCIATE's discounts after the first year of the term of this
AGREEMENT, the following discount schedule shall apply:
NEAX-REGISTERED TRADEMARK-2000 IVS & NEAX-REGISTERED TRADEMARK-1000 IVS/VSP
NET DOLLAR PURCHASES DISCOUNT
-------------------- --------
1-149,999 25%
150,000-349,999 29%
350,000-749,999 33%
Over 750,000 36%
* List Dollar Purchases exclude Dterm-Registered Trademark-
Series II, Dterm-Registered Trademark- Series III,
Dterm-Registered Trademark- Series E and Electra Professional
terminal equipment on NEAX-Registered Trademark-2000 IVS and
the NEAX-Registered Trademark-1000 IVS/VSP schedule.
In the event that this Agreement does not commence on April 1,
the above discount schedule shall be pro-rated for the original
term. NECAM reserves the right to change or modify the above
discount schedule upon written notice to ASSOCIATE.
3. SPECIAL CONDITIONS APPLICABLE TO NEAX-REGISTERED TRADEMARK-2000
INTEGRATED OR ADJUNCT WIRELESS PRODUCTS
(a) ASSOCIATE shall not sell, distribute or activate any
NEAX-Registered Trademark-2000 Integrated or Adjunct Wireless
Product unless the end-user customer has acknowledged and
agreed in writing that the use and operation thereof will
comply with all applicable Federal Communication Commission
(FCC) rules and regulations and all requirements and
instructions of UTAM, Inc., including without limitation, rules
with respect to interference and relocation. Each agreement
between ASSOCIATE and such end-user shall include the following
provision:
[Customer] hereby acknowledges that the use and operation of
any intentional radiator equipment requiring a Part 15.311 FCC
label and subject to UTAM clearing fees, the operation of which
makes use of any part of the unlicensed personal communications
services ("UPCS") frequency spectrum ("UPCS Radiating Part"),
is subject to FCC rules and regulations and UTAM requirements
and instructions with respect to interference with licensed
fixed microwave facilities and to the relocation of any such
UPCS Radiating Part. [Customer] agrees that [its] use or
operation of any UPCS Radiating Part shall comply with all
rules, regulations, requirements and instructions.
Associate shall submit proof in a form satisfactory to NECAM of
end-user's written agreement to such provision with each
purchase order for any NEAX-Registered Trademark-2000
Integrated of Adjunct Wireless Product to which such
requirement applies.
(b) NECAM shall not be responsible for the failure of any
NEAX-Registered Trademark-2000 Integrated or Adjunct Wireless
Product to conform to published specifications, which failure
is attributable to environmental or structural causes beyond
NECAM's control. Each Agreement between ASSOCIATE and an
end-user shall include an analogous disclaimer in a form
satisfactory to NECAM.
4. TERRITORY
TERRITORY SHALL MEAN THE FOLLOWING:
ASSOCIATE's territory shall remain the same as stated in ASSOCIATE's
previous contract renewal.
Rev. 6/99
NEAX-REGISTERED TRADEMARK-2400 PRODUCTS APPENDIX
1. PRODUCTS
PRODUCTS include:
NEAX-Registered Trademark-2400 ICS (Integrated Communication System)
NEAX-Registered Trademark-IMX (Integrated Multimedia eXchange)
1) IMG Configuration (ICS) and (IMX)
2. DISCOUNTS
(a) During the first year of the term of this AGREEMENT, NECAM shall
grant to ASSOCIATE a twenty-five percent (25%) discount off of
NECAM's MSRP for NEAX-Registered Trademark-2400 ICS and IMX
PRODUCT(S). Excluded from such discount are certain items of
NEAX-Registered Trademark-2400 ICS and IMX PRODUCT(S) that are
offered at a net (non-discountable) price.
Such discount(s) will be increased during such original or
renewal term if ASSOCIATE'S purchases exceed the Net Dollar
Purchase amount listed below as qualifying for such higher
discount(s).
(b) On April 1 of each year during the term of this AGREEMENT,
NETCAM will conduct an annual review of the performance of
ASSOCIATE under this AGREEMENT. ASSOCIATE's purchases during
the preceding twelve (12) month period (April 1 through March
31) of each year in which this AGREEMENT is in effect shall be
used to determine ASSOCIATE's discounts for the next successive
twelve (12) month period. For purposes of determining
ASSOCIATE's discounts after the first year of the term of this
AGREEMENT, the following discount schedule shall apply:
NEAX-REGISTERED TRADEMARK-2400 PRODUCT(S)
NET DOLLAR PURCHASES DISCOUNT
-------------------- --------
1-749,999 25%
750,000-1,499,999 30%
1,500,000-2,499,999 33%
2,500,000-4,999,999 35%
5,000,000-7,499,999 38%
7,500,000 or Over 40%
In the event that this Agreement does not commence on April 1,
the above discount schedule shall be pro-rated for the first
year of the term of this Agreement. NECAM reserves the right to
change or modify the above discount schedule upon written notice
to ASSOCIATE.
3. SPECIAL CONDITIONS APPLICABLE TO NEAX-REGISTERED TRADEMARK-2400
INTEGRATED WIRELESS OR ADJUNCT PRODUCTS
(a) ASSOCIATE shall not sell, distribute or activate any
NEAX-Registered Trademark-2400 Integrated Wireless or Adjunct
product unless the end-user customer has acknowledged and agreed
in writing that the use and operation thereof will comply with
all applicable Federal Communication Commission (FCC) rules and
regulations and all requirements and instructions of UTAM, Inc.,
including without limitation, rules with respect to interference
and relocation. Each agreement between ASSOCIATE and such
end-user shall include the following provision:
[Customer] hereby acknowledges that the use and operation of any
intentional radiator equipment requiring a Part 15.311 FCC label
and subject to UTAM clearing fees, the operation of which makes
use of any part of the unlicensed personal communications
services ("UPCS") frequency spectrum ("UPCS Radiating Part"), is
subject to FCC rules and regulations and UTAM requirements and
instructions with respect to interference with licensed fixed
microwave facilities and to the relocation of any such UPCS
Radiating Part. [Customer] agrees that [its] use or operation
of any UPCS Radiating Part shall comply with all rules,
regulations, requirements and instructions.
Associate shall submit proof in a form satisfactory to NECAM of
end-user's written agreement to such provision with each
purchase order for any NEAX-Registered Trademark-2400 Integrated
Wireless or Adjunct product to which such requirement applies.
(b) NECAM shall not be responsible for the failure of any NEAX-Registered
Trademark-2400 Integrated Wireless or Adjunct Product to conform to
published specifications, which failure is attributable to
environmental or structural causes beyond NECAM's control. Each
Agreement between ASSOCIATE and an end-user shall include an
analogous disclaimer in a form satisfactory to NECAM.
4. TERRITORY
TERRITORY SHALL MEAN THE FOLLOWING:
ASSOCIATE's territory shall remain the same as stated in ASSOCIATE's
previous contract renewal.
