RESELLER AGREEMENT
BETWEEN
ALCATEL NETWORK SYSTEMS, INC.
AND
IWL COMMUNICATIONS, INC.
Legend: Confidential Treatment Requested. A series of XXX's has been
inserted in this exhibit to indicate redactions for which
confidential treatment has been requested. The redacted
portions of this exhibit have been separately filed with the
Commission.
RESELLER AGREEMENT
TABLE OF CONTENTS:
1. Term
2. Exhibit
3. Product
4. Ordering
5. Prices
6. Delivery
7. Terms of Payment
8. Supply
9. Patent and Trademark Indemnity
10. Indemnity
11. Technical Specifications; Technical Documentation
12. Software
13. Testing
14. Warranty
15. Excusable Delay
16. Confidential Information
17. Xxx-Xxxxxxxxxx
00. Governing Law
19. Assignment
20. Termination
21. Default
22. Effect of Termination
23. Sales After Termination
24. No Liability for Termination
25. Failure to Enforce
26. No Oral Agreements
27. Conduct of Business
28. Relationship of Parties
29. Use of Trademarks
30. Permits and Licenses
31. Termination of Prior Agreements
32. Headings
33. Consequential and Other Damages
34. Notices/Contract Administration
35. Exclusive Arrangement
36. Technical Assistance and Software Support
RESELLER AGREEMENT
Agreement made as of the 31st day of December, 1995, by and BETWEEN ALCATEL
NETWORK SYSTEMS, INC. a corporation duly organized and existing under the laws
of the State of Delaware with its principal office at 0000 Xxxxx Xxxx Xxxx,
Xxxxxxxxxx, XX, 00000, hereinafter called "ALCATEL" and IWL Communications, Inc.
with its principal office at 0000 XX0000 Xxxxxxxxxxx, XX 00000 hereinafter
called "BUYER".
WHEREAS, ALCATEL is desirous of appointing BUYER an exclusive reseller of
ALCATEL's products to the oil and gas industry, and
WHEREAS, BUYER is desirous of accepting such appointment.
THEREFORE, ALCATEL appoints BUYER as an exclusive reseller of ALCATEL's
products to the oil and gas industry and agrees to sell under the terms of
this Agreement to BUYER the ALCATEL products listed on Exhibit A, for resale
by BUYER. BUYER accepts such appointment and agrees to purchase product from
ALCATEL under the terms of this Agreement.
1. TERM
This Agreement will be in effect for a period of twelve (12) months
commencing on the date first set forth above unless terminated sooner by
either party in accordance with the provisions of this Agreement. This
Agreement may be extended beyond the initial term of the Agreement by
written agreement of the parties. This Agreement, and the discounts stated
herein, shall apply to all products for which orders have been placed prior
to the expiration of the term of this Agreement whether or not delivered as
of that date.
2. EXHIBITS
Exhibit A, Products and Pricing, attached hereto, is an integral part of
this Agreement and is hereby made a part hereof.
3. PRODUCTS
Products means the Products described in Exhibit A. Exhibit A may be
modified from time to time by ALCATEL on at least sixty (60) days prior
written notice to BUYER to reflect changes in specifications,
configurations, and other matters and
to reflect product line additions and deletions. BUYER will be promptly
furnished with current copies of Exhibit A when and if modified.
4. ORDERING
4.1 All purchases of products by BUYER shall be made by means of purchase
orders ("Orders") issued from time to time by BUYER for delivery to
locations specified by BUYER.
4.2 All Orders issued by BUYER, and acceptances by ALCATEL hereunder,
shall be deemed to incorporate the terms and conditions set out in
this Agreement. Any preprinted terms and conditions contained in any
Order or acceptance be deemed deleted and of no force and effect.
BUYER and ALCATEL may mutually agree, in writing, to additional
special or modified terms and conditions for specific Order(s) if the
scope of such Order(s) differs from the scope of this Agreement.
4.3 A particular Order issued with reference to this Agreement may be
amended from time to time by change orders in writing which shall set
forth the particular changes to be made, and the effect, if any, of
such changes on the price, quantity and delivery dates herein or
therein provided. BUYER may not defer delivery dates more than sixty
(60) days beyond ALCATEL's originally acknowledged delivery date.
Changes requested by BUYER shall not be binding on ALCATEL unless and
until acknowledged in writing by ALCATEL.
5. PRICES
5.1 The prices applicable to Orders issued and accepted hereunder shall be
ALCATEL list prices in effect on the date of this Agreement, or as
revised by ALCATEL under paragraph 5.4 below, less the applicable
discounts shown in Exhibit A.
5.2 All ALCATEL prices are FOB the ALCATEL point of supply. All products
shall be shipped freight prepaid and added to invoice. ALCATEL will
not insure shipments made unless specifically requested by BUYER.
BUYER shall be invoiced for the cost of any such insurance.
5.3 All ALCATEL price lists do not include Federal Manufacturers and
Retailers excise, state or local sales and/or use taxes, nor any
Federal, state or local taxes of a similar nature. Any such taxes, if
applicable to and payable by
ALCATEL in connection with the performance of this Agreement shall be
billed to and paid by BUYER as separate items on ALCATEL invoices.
5.4 ALCATEL's prices may be revised by ALCATEL upon sixty (60) days prior
written notice to BUYER. Price changes shall apply only to Orders
placed after the effective date of such change.
6. DELIVERY
6.1 The delivery point for the domestic shipments of products supplied
hereunder shall be FOB the ALCATEL point of supply.
6.2 Except as provided in Section 12 as to Software, title and risk of
loss or damage to the products contained in each shipment shall pass
to BUYER upon delivery thereof to the carrier. Shipping arrangements
with such carrier shall be handled by ALCATEL. ALCATEL shall pack the
products for shipment in accordance with its standard commercial
packing practices. In the event that in-transit damage results from
ALCATEL's failure to adequately package products, ALCATEL will repair
or replace the damaged products at no charge to BUYER.
6.3 The delivery dates applicable to Orders placed hereunder will be
generally in accordance with the applicable normal delivery intervals
or as specified in a particular Order, but in no event shall delivery
be specified greater than six (6) months after order date. If, prior
to acceptance of an Order, ALCATEL advises BUYER that it cannot meet a
delivery date shown in an Order, both parties will attempt to
negotiate a revised delivery date. In any event, the governing
delivery date will be the date shown on ALCATEL's acknowledgements.
6.4 Unless instructed otherwise by BUYER, ALCATEL shall, for Orders placed
hereunder: (1) ship Orders substantially complete, however partial
shipments may be made for usable units; (2) ship to the destination
designated in the Order in accordance with specific shipping
instructions; (3) see that all subordinate documents bear BUYER's
Order number; (4) enclose a packing memorandum with each shipment and
when more than one package is shipped, identify the one containing the
memorandum; (5) xxxx BUYER's Order number on all packages and shipping
papers; and (6) render separate invoices for each shipment or Order.
7. TERMS OF PAYMENT
Terms of payment are Net thirty (30) days after date of invoice.
8. SUPPLY
ALCATEL will make every reasonable effort to furnish a sufficient quantity
of said products to meet the resale requirements of BUYER.
9. PATENT & TRADEMARK INDEMNITY
ALCATEL, at its own expense, will defend any suit or proceeding against
BUYER insofar as it is based upon a claim of infringement of any United
States patent by ALCATEL's Products purchased hereunder provided BUYER
notifies ALCATEL promptly in writing of any such suit or proceeding and all
prior claims which relate to same, and gives ALCATEL full and complete
authority, information and assistance for defense of same and all
negotiations for its settlement or compromise. If, in ALCATEL's opinion,
any such Product is likely to become the subject of a claim of patent
infringement, or if a final injunction shall be obtained against BUYER's
use of any such ALCATEL's Product, or any of its parts, by reason of
infringement of any such patent, ALCATEL will, at its option and at its
expense, either procure for BUYER the right to continue using the Product,
replace or modify the same so that such Product becomes non-infringing, or
grant BUYER a credit for such Product less damage and depreciation for use,
and accept its return, provided ALCATEL so acts with regard to all such
Products to all customers generally. The depreciation shall be an equal
amount per year over the lifetime of the Product as established by ALCATEL.
However, ALCATEL shall have no liability to BUYER under this paragraph or
otherwise for any such patent infringement, or claim thereof, which is
based upon (i) the use of any Product in combination with any other Product,
device or equipment not supplied by ALCATEL, (ii) the use of any Product for
a purpose or application not intended by ALCATEL, it being understood that
the sole intended purpose or application of the Product shall be as set
forth in ALCATEL's published System Practices document, (iii) the furnishing
to BUYER of any information, data, service or applications assistance, or
(iv) for ALCATEL's compliance with BUYER's designs or specifications or (v)
any change or modification to the Product made by BUYER. No costs or
expenses shall be incurred for the account of ALCATEL without ALCATEL's
written consent. The foregoing states the entire liability of ALCATEL
with regard to patent infringement of ALCATEL's products. BUYER shall
indemnify ALCATEL for any loss, damage, expense or liability in any suit
or proceeding based upon any patent infringement claim brought against
ALCATEL
resulting from ALCATEL's compliance with BUYER's designs or specifications
and for any trademark infringement involving any marking or branding applied
by ALCATEL at the request of BUYER.
10. INDEMNITY
ALCATEL agrees to indemnify, defend and save BUYER harmless from any
liabilities, claims or demands (including the cost, expense and reasonable
attorney's fees on account therefore) that may be made: (1) by any third
person for injuries, including death to persons or damage to tangible
property resulting from Seller's negligent or otherwise wrongful acts or
omissions, or those of persons furnished by Seller hereunder; (2) by any
third person for injuries, including death to persons or damage to tangible
property, caused by any Product supplied by ALCATEL hereunder in a
defective and unreasonable dangerous condition; or (3) under Worker's
Compensation, or similar employer-employee liability acts, against BUYER by
persons provided by ALCATEL. BUYER agrees to notify ALCATEL promptly of any
written claims or demands against BUYER for which ALCATEL is responsible
hereunder.
11. TECHNICAL SPECIFICATIONS: TECHNICAL DOCUMENTATION
The technical specifications applicable to the Products supplied hereunder
shall be ALCATEL's standard specifications as they are amended from time to
time which are hereby incorporated herein by reference.
12. SOFTWARE
Alcatel assumes that the Customer is the end-user of the product and
therefore the Licensee. If end-user is other than Customer, a separate
Software License Agreement with Licensee will be required prior to delivery
of product.
A. Definitions
(1) The Software
All or any part of the specific collection of programs, or
machine-readable instruction modules, that are covered by the
terms and conditions of a software license, and delivered to
Licensee, inclusive of the Alcatel intellectual property therein,
whether or not the subject of any patent or copyright, issued or
pending.
(2) Licensed System
The logical grouping of hardware, upon which the software covered
by a specific license agreement is intended to be installed,
which is identified specifically within that license agreement,
and which may be:
(i) a single system controlled by a single main
processor or single redundant set of identical
processors, or
(ii) a number of systems of the same type that are
physically and logically connected into a network.
(3) Distribution Media
The collection of tape(s), cartridge tape(s), diskette(s), or
other storage devices, or combinations of media types, that
contain the licensed Software, as packaged by, and received from,
Alcatel.
(4) Current Version of the Software
The latest of all Major Releases, Intermediate Releases, or
Maintenance Releases from Alcatel which are applicable to the
system type of the Licensed System and which are approved by
Alcatel for shipment.
(5) Major Release
A version release of the Software designated by an increment of
the integer in the release number ("N" in N.xx.xx) and defined to
include substantial functionality not included in previous versions
of the same type of software.
(6) Intermediate Release
A version release of the Software designated by an increment of
the first decimal division of the release number ("NN" in
x.NN.xx), and defined to include refinement or enhancement of
features and functionality existing in previous versions of the
same type of software.
(7) Maintenance Release
A version release of the Software designated by an increment of
the second decimal division of the release number "NN" in
x.xx.NN), and defined to include remedial modifications of
features and functionality included in previous versions of the
same type of software for a specific Customer anomaly.
(8) Generation
The series of release versions of the Software applicable to the
Licensed System beginning with a Major Release and including all
subsequent
Intermediate Releases and Maintenance Releases prior
to, but not including, the next Major Release.
(9) Documentation
The instruction and reference manuals pertaining to the Software
and the Licensed System and the Customer Release Notes.
B. Title
Title to the Software described herein shall remain with Alcatel, or with
the various suppliers to Alcatel whose software or software components are
contained in the Software and whose rights of ownership are maintained
through restrictive agreements with Alcatel. Alcatel grants to Licensee,
and Licensee accepts, a non-exclusive, restricted right to use the
Software and Documentation, limited as described herein.
C. Limitations of License Grant
(1) The Software furnished hereunder is to be used only with the
system supplied by Alcatel and identified by type and location on the
attached Schedule A as the Licensed System. The Software and
Documentation are to be used only by the Licensee, for its own business
use, and only for the intended use of the Software and Documentation as
offered and furnished by Alcatel.
(2) This grant of Licensee's right to use the Software is now and
throughout the term of the license contingent upon the payment by
Licensee to Alcatel of fees as shown on the Schedule B hereto.
(3) Licensed use is limited to the executable software as delivered by
Alcatel to Licensee and does not permit modification or use of any
modified form of the Software, notwithstanding any claim by
Licensee of any defect in the Software, nor any other agreements
or covenants between Alcatel and Licensee regarding maintenance by
Licensee of other products or of unspecified products. Unless so
specified in the Schedule A hereto, Licensee may not duplicate the
Software, except to make a backup copy of the software for use in the
event of system failure. If Schedule A provides for duplication, for
any other purpose then Licensee shall account for and report to Alcatel
the details of such duplication as authorized.
(4) The Software and Documentation furnished are the property of
Alcatel and are to be considered proprietary information. Licensee
shall not disclose, provide or otherwise make available the
Software or Documentation, or any part thereof, in any form, to
any third party, before or after termination of this Agreement,
except as may be permitted in writing by Alcatel.
Licensee shall immediately notify Alcatel, in writing, of any knowledge
that any unlicensed party possesses the Software or Documentation.
Licensee shall safeguard said Software with the same degree of care and
diligence as Licensee affords to its own similar property.
D. Derived Products and Derived Dependent Products
(1) Any configuration, application, or arrangement of the Software and
its systems into networks, shall not be considered a derived
product with any distinction in ownership from that of the
Software as received by Licensee.
(2) Any distinct and separate element of software in the form of
instruction macros, test cases, simulation data, or similar forms
of intellectual property, which is produced by normal use of the
Software and is initially dependent upon the Software for
execution, shall be considered a derived product to which Alcatel
retains title and to which Licensee is granted an exclusive right
to use solely in its dependent form, and in conjunction with, the
Software and the Licensed System.
(3) The Software conveyed to Licensee under this Agreement is in
object code format. Alcatel expressly prohibits, and Licensee
agrees to refrain from, any attempt by Licensee or Licensee's
agent to disassemble, reverse compile, reverse engineer, or, in
any similar way, expose the actual instruction sequences,
internal logic, protocols, algorithms or other intellectual
property represented within the Software, which Alcatel
considers to be its proprietary information and trade secret
whether or not said intellectual property is included in any
patent or copyright. Any product derived from, or resulting
from, such effort by Licensee or any other party shall be
deemed the property of Alcatel, for which no right to use is
granted to Licensee herein and for which Alcatel shall bear no
obligations for support.
E. Assignment Restriction
(1) This Agreement, and the rights and obligations of Licensee
shall not be pledged, mortgaged, assigned, sub-licensed or
otherwise transferred or disposed of, including by operation of
law, in whole or in part, by Licensee except as expressly set
out in this Agreement, or as consented to in writing by Alcatel.
(2) A transfer in whole of Licensee's rights described herein, may
be made only in conjunction with a transfer of the entire
Licensed System. Licensee shall provide notice to Alcatel of
Licensee's intent to make such a transfer, and such notice
shall include, at a minimum, the identity of the recipient, the
new location of the Licensed System, and a detailed report of
the new
configuration and interconnection of the Licensed System. Any such
transfer shall be subject to the agreement of the transferee to
assume the obligations of Licensee and other restrictions contained
in this Agreement. In the event that Alcatel determines that the use
of the Software and Licensed System after the intended transfer is
not supportable by Alcatel, or is not comparable to the originally
licensed use, Alcatel shall provide Notice to Licensee that all of
its obligations to Licensee are void after said transfer and do not
pass to transferee.
F. Software Warranty and Indemnification
(1) Alcatel warrants that it has the lawful right to license and
distribute the Software as described herein, and that said
software is free of any encumbrances. Alcatel will indemnify
and hold Licensee harmless from any loss, cost, liability and
expense arising out of any breach or claimed breach of this
warranty.
(2) Alcatel warrants that the Distribution Media is free of defects in
materials or workmanship at the time of delivery to Licensee.
(3) Alcatel warrants that the Software will perform in accordance with the
published Alcatel specifications. The sole means of discharging
Alcatel' s obligations with respect to this warranty is contained in
the paragraph 36 herein entitled Technical Assistance and Software
Support. This coverage is initially provided to Licensee, in conjunction
with the licensing of the Software, for a period of one year at no
charge. However, a Intermediate Release carries a simple ninety (90) day
warranty. If Customer notifies Alcatel within the ninety day warranty
that the Release does not comply with Customer's expectations, the
Release can be returned to Alcatel for a full refund of the purchase
price of the Release. Such return will have no effect on any remaining
warranty of the Major Release.
(4) ALCATEL NETWORK SYSTEMS, INC. DISCLAIMS ALL OTHER WARRANTIES ON THE
SOFTWARE FURNISHED HEREUNDER, INCLUDING ALL IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. The
performance by Alcatel under the Standard Terms for Technical
Assistance and Software Support is in lieu of all such obligations or
liabilities on the part of Alcatel.
G. Software Maintenance
(1) Licensee agrees to report problems to the Technical Contact for
Alcatel as shown in Schedule A. Alcatel will maintain the Software,
and, from time to time, make additions, modifications or adjustments
to the Software at an
Alcatel facility. DELIVERY TO THE LICENSEE OF ADDITIONS, MODIFICATIONS
OR ADJUSTMENTS TO THE SOFTWARE IS LIMITED TO THE TERMS AND CONDITIONS
OF THE TECHNICAL ASSISTANCE AND SOFTWARE SUPPORT AS DESCRIBED HEREIN
OR IN A SEPARATELY EXECUTED TECHNICAL ASSISTANCE AND SOFTWARE SUPPORT
AGREEMENT (TASSA). Absent any TASSA being in force between Alcatel
and Licensee, or either a prepaid or renewal basis, delivery to Licensee
of updates to the Software will require payment of the then current
Alcatel prices for such software.
(2) Notice to Licensee of corrections or additions, modifications or
adjustments to the Software shall be sent to a designated
Customer contact. Alcatel will, at its own discretion, make such
additions, modifications or adjustments to the version of the
Software commonly known as the Current Release at the time that
the additions, modifications or adjustments are made, or to an
earlier version of the Software originally received by Licensee
under terms of this Agreement.
H. Source Code Delivery
If ALCATEL withdraws from its business related to the Software such that
it cannot or does not continue to provide support to the Licensee, and
without making arrangement with others for the purposes of that support,
that portion of the Source Code from which the Current Version of the
Software is derived and for which Alcatel holds ownership or Source Code
distribution rights will be made available to the Licensee. In that
situation that
Alcatel would make available its own Source Code, Alcatel will notify
the Licensee of any limits on source code delivery of third party
software included in the Software and provide to the Licensee contact
information for said third party.
I. Authorized User Requirement
Alcatel expects, and Licensee agrees, that the licensed system and
licensed software will be used, monitored, controlled and managed
sufficient to Licensee's needs, by a qualified and authorized user.
Any error or malfunction, caused by, or aggravated by, the failure to
comply with this requirement shall be construed as the responsibility
of the Licensee.
J. Distribution Media
(1) No claim of ownership of the specific Distribution Media, or
its underlying magnetic media, by Licensee shall alter the
requirements of Alcatel upon Licensee for storing or handling
the Distribution Media as described herein.
(2) The distribution media must be held safe, and available for
inspection, at the Installation Site described in the attached
Schedule A, if known. If the software is described in Schedule A
as network-downloadable or duplication of the software is
permitted by Alcatel to be performed by Licensee at various
sites in a network, then the Original Installation Site will be
that site at which the software was originally loaded from the
Distribution Media on to the first system. The Distribution
Media must then be held safe, and available for inspection, at
that Original Installation Site.
K. Documentation
One set of instruction and reference manuals will be provided free of
charge with each Licensed System. Additional sets may be purchased by
Buyer. Customer Release Notes will be included free of charge with each
and every Major, Intermediate, or Maintenance Release delivered to
Licensee.
L. Termination
(1) Except for termination as described hereunder, the grant of
license and the terms and conditions of this Agreement shall
continue and be renewed as long as the Licensed System upon
which the Software is running remains in service by Licensee.
(2) The license granted herein shall terminate 30 days after
notification of Licensee by Alcatel as to Licensee's
delinquency in making payments as outlined in Schedule B.
(3) Voluntary termination of this License Agreement and termination
of the use of the Software may be requested by the Licensee
with 90 days Notice to Alcatel.
(4) Termination for any other breach of the Agreement or material
violation of any of its terms, by the Licensee, shall occur
thirty days after written notice is sent by Alcatel.
Determination of any period of breach shall commence on the
date of the violation by Licensee without regard to Alcatel's
knowledge of the breach or Notice of the breach to Licensee.
(5) Within 72 hours of termination of the License, the Licensee
will ship to Alcatel, by insured commercial carrier, all media
copies of the Software, including both original Distribution
Media and any copies made for backup purposes, and all
Documentation provided by Alcatel associated with the Software.
Within the same period, Licensee will unload the Software, load
other software over the Software, or if necessary halt the
processor, on any and all systems on which the Software is
running. Any subsequent
evidence of Licensee's beneficial use of the Software after
termination, as defined herein, shall be in contravention of
the provisions hereof.
13. TESTING
If requested by BUYER, ALCATEL shall provide to BUYER a description of its
standard factory tests related to any of the products covered by this
Agreement. BUYER may request, and upon concurrence by ALCATEL, be
allowed to witness the factory tests on a non-interfering basis.
14. WARRANTY
Subject to the limitations stated herein, Material manufactured by ALCATEL
(exclusive of Software originated and supplied by ALCATEL) is warranted to
be free of defects in workmanship and material at the time of delivery to
the BUYER for a period of one (1) year. However, certain products have
longer warranty periods as shown below:
Period Product
------ -------
7 Years D448/424 Channel bank
5 Years 1631SX, 1633SX, 1630SX, 1603SM,
1612SM, 1624SM, 1648SM, 1501AN, 1503AN
3 Years DML-3X50, DMX-3003/N, DVS-1000,
LTS-1565/D/R/, LTS-21130/D/R/,
TM/ADM-50, FTS-150/600
2 Years MDR-4000e, MDR-4000i, MDR-4000s,
MDR-4000, RDI-3104, B302/303 APS,
DST-4000, MDR-3X18, MDR-5X02,
MDR-5111, T1 SPAN LINE,
1 Year All other products
Software warranty is described in paragraph 12,
subparagraph F, herein entitled Software Warranty and
Indemnification.
14.1 In the event the Material is not as warranted herein at the time of
delivery, ALCATEL agrees to, at its option, repair, correct or replace
with new or equivalent Material at its designated Warranty Repair
Center any defective Material so as to make the Material conform to
this warranty or take back the Material and refund the Price therefor,
less a reasonable adjustment for the BUYER's beneficial use of the
Material provided:
14.1.1 Notice of the claimed defect or unsuitability is given in
writing within twelve (12) months after delivery of the
Material or Software or within such longer or shorter
warranty term as designated for Material listed below:
14.1.2 The defective Material is returned to ALCATEL's designated
Warranty Repair Center Transportation prepaid and risk of
loss borne by BUYER, in accordance with ALCATEL's
instructions which shall be promptly given; and,
14.1.3 An inspection of the returned Material by ALCATEL at its
Warranty Repair Center indicates the defect was not caused
by abuse or improper use, maintenance, repair, installation
or alteration by other than ALCATEL or its authorized
Service Center; and
14.1.4 The Material has not been connected directly or indirectly
to any apparatus not registered to the extent required by,
or which otherwise is not in compliance with, the FCC Rules
and Regulations.
14.2 Any equipment, accessory, or part repaired or replaced by ALCATEL
pursuant to the terms of this warranty agreement shall continue to be
warranted for the remainder of the period as set forth above, plus the
length of time necessary for repair or replacement. Equipment Repair
Services provided the BUYER by ALCATEL outside the scope of the above
specific warranties are warranted by ALCATEL for a period of ninety
(90) days against defects in workmanship or material under and
subject to all of the applicable terms, limitations and conditions
given herein.
14.3 Any Material including Software supplied by, but not of, ALCATEL's
manufacture or origination shall be subject only to the warranty of
the manufacturer or supplier thereof which shall be conveyed to the
BUYER.
14.4 The warranty set forth in this section is in lieu of all other
warranties whether expressed or implied, including warranties of
merchantability and fitness for its intended or particular purpose. In
no event shall ALCATEL have any
liability for consequential damages or for loss, damage or expense
directly or indirectly arising from the use of the equipment, or the
inability to use them either separately or in combination with other
equipment, or from any other cause except as specifically contained
in the warranty agreement.
15. EXCUSABLE DELAYS
If the performance of any obligation under this Agreement or an Order
is interfered with by reason of any circumstances beyond the reasonable
control of the party affected, including, without limitation, fire,
explosion, power failure, acts of God, war, revolution, civil commotion,
acts of the public enemy or any law, order, regulation, ordinance or
requirement of any such governmental or legal body and strikes, then the
party affected shall be excused from such performance. The party so
affected shall use reasonable efforts to remove such causes of
non-performance; provided, however, in the context of labor unrest,
that a party shall not be obligated to accede to any demands being made
by employees or other personnel. In the event that such delay shall
extend shipment in excess of one-hundred and eight (180) days beyond
the agreed upon delivery date as defined in Section 6.3, unaffected
party may at its option cancel without penalty the affected Orders as
to any products not already shipped.
16. CONFIDENTIAL INFORMATION
16.1 Each party agrees that it shall not, and that it shall take
reasonable precautions to see that its employees do not,
communicate or give in any way whatsoever to any third party any
proprietary information furnished by the other, in writing, without
the prior consent in writing of the other party to this Agreement,
except as applies to Section 12, Software.
16.2 All proprietary documents will be so marked.
16.3 This obligation shall not apply to any such information (1) if
prior to its receipt by the other party it has been published or
is generally known to the public, (2) if after receipt by the other
party it becomes generally known to the public (other than through a
breach of this Agreement) or obtainable from bona fide sources, (3)
is known to the party at time of receipt, (4) is developed
independently, or (5) is required by law to be disclosed.
17. NON-DISCLOSURE
Unless otherwise required by law or regulatory agency, neither party shall
disclose to third parties the content of this Agreement, in whole or in
part, without the prior written consent of the other party.
18. GOVERNING LAW
The construction, interpretation, and performance of this Agreement shall
be governed by the laws of the State of Texas.
19. ASSIGNMENT
Neither party may assign or transfer this Agreement or any rights hereunder
without the prior consent of the other party, except for assignment by
ALCATEL to ALCATEL International Corporation and assignment of rights to
receive payments.
20. TERMINATION
The reseller relationship hereby created may be terminated only (a) by an
agreement in writing duly signed by the parties hereto; or (b) by either
party at will, with or without cause, upon not less than ninety (90) days'
notice in writing given by certified mail to the other party; or (c) by
either party hereto upon one (1) day's like notice in the event the other
party hereto attempts to assign this agreement or any rights thereunder
without the other party's written consent except as identified in
Section 19, or either party ceases to function as a going concern or
to conduct its operation in the normal course of business, or a receiver
is appointed or applied for by the party, or a petition under the Federal
Bankruptcy Act is filed by or against either party, or either party makes
an assignment for the benefit of creditors, or (d) as identified in
Section 21, Default.
21. DEFAULT
In the event of any material breach of this Agreement or an Order by
ALCATEL or BUYER which shall continue for thirty (30) days after written
notice of such breach shall have been given to the breaching party by the
aggrieved party, the aggrieved party shall be entitled, subject to any
limitations contained in this Agreement, to avail itself of any and all
remedies available at law or equity,
expressly including cumulatively without limitation the right to terminate
this Agreement.
22. EFFECT OF TERMINATION
Upon termination, BUYER agrees to cease holding itself out as an authorized
exclusive reseller of ALCATEL and shall immediately upon termination remove
any signs, names, insignias, logos, proprietary marks, and other
promotional, advertising, sales information, technical, and other materials
which identifies or appears to identify it with ALCATEL and return same to
ALCATEL.
23. SALES AFTER TERMINATION
The acceptance of any order from, or the sale of any Material to BUYER
after the termination or expiration of the reseller relationship hereby
created shall not be construed as a renewal or extension thereof nor as a
waiver of termination, but in the absence of a new written agreement all
such transactions shall be governed by provisions of ALCATEL's standard
terms of sale.
24. NO LIABILITY FOR TERMINATION
Neither party, shall by reason of the termination or non-renewal of
reseller relationship of said products, be liable to the other for
compensation, reimbursement or damages on account of the loss of
prospective profits on anticipated sales, or on account of expenditures,
investments, leases or commitments in connection with the business or
goodwill of the other.
25. FAILURE TO ENFORCE
The failure of either party to enforce at any time or for any period of
time the provisions hereof shall not be construed to be waiver of such
provisions or of the right of such party thereafter to enforce each and
every such provision.
26. NO ORAL AGREEMENTS
Any amendments to this Agreement must be in writing and executed by both
parties.
27. CONDUCT OF BUSINESS
So that the relationship contemplated by this Agreement shall be mutually
advantageous and in recognition of the expertise and commitment necessary
for the effective marketing and support of the product, BUYER agrees to
continually use its best efforts to encourage and develop the full sales
potential for the products, to employ competent, well-trained sales
Personnel to meet the demands and needs for marketing and support of the
Products, and to encourage the purchase of the Products by its customers to
the best of BUYER's ability.
28. RELATIONSHIP OF PARTIES
This Agreement does not in any way create the relationship of joint
venture, partnership, or principal and agent between ALCATEL and BUYER. And
neither shall have the power or ability to pledge the credit of the other
nor to bind the other nor to contract in the name of or create a liability
against the other in any way for any purpose.
29. USE OF TRADEMARKS
During the term of this Agreement or any extension thereof, BUYER may use
the trademark of ALCATEL or any of ALCATEL's trademarks, insignias, logos
or proprietary marks in connection with BUYER's sales, advertisements, and
promotions of the product. BUYER acknowledges that those trademarks and
logos are valuable assets of ALCATEL and BUYER's use of such proprietary
marks shall be in accordance with ALCATEL's direction and policies. ALCATEL
reserves the right to review all publicity, publication and promotional
literature concerning the products covered by the Agreement. BUYER
specifically disclaims any right in any of the proprietary marks and shall
not use the proprietary marks as part of the business name of BUYER.
30. PERMITS AND LICENSES
It shall not be the responsibility of ALCATEL to obtain any or all
necessary licenses and permits for the installation and operation of the
equipment at the site at which it is to be installed.
31. TERMINATION OF PRIOR AGREEMENTS
This Agreement terminates and supersedes all prior agreements between the
parties.
32. HEADINGS
Headings of this Agreement are inserted solely for the purpose of
convenience of reference and are in no manner to be construed as a part of
the Agreement.
33. CONSEQUENTIAL AND OTHER DAMAGES
Subject to the provisions of Section 10, Indemnity, of this Agreement,
neither ALCATEL nor BUYER as the case may be, shall be liable for indirect,
special, incidental or consequential damages (including but not limited to
loss of revenues or loss of profits) resulting from its performance or
failure to perform any of its obligations under this Agreement or for any
other cause.
34. NOTICES/CONTRACT ADMINISTRATION
In matters relating to overall general administration of this Agreement,
notices and other communications shall be transmitted in writing to the
person and address listed below or to such other person and address as the
party to receive the notice or request shall have previously indicated in
writing.
TO: ALCATEL TO: BUYER
ALCATEL NETWORK SYSTEMS, INC. IWL COMMUNICATIONS, INC.
0000 Xxxxx Xxxx Xxxx 0000 XX 0000
Xxxxxxxxxx, XX 00000 Xxxxxxxxxxx, XX 00000
Attn: Manager, Contracts 401-107 Attn: Contracts Administrator
35. EXCLUSIVE ARRANGEMENT
ALCATEL hereby appoints BUYER as an exclusive representative for the sale
of fiber and radio system Products to companies in the oil and gas
industry. ALCATEL, in consideration of BUYER's agreements below, will
refrain from making direct sales calls and proposals, or accepting orders
from such companies during the term of this agreement unless BUYER violates
its agreements or
BUYER notifies ALCATEL that it will not submit a proposal on a specific
project at which point ALCATEL may respond to that specific project.
BUYER agrees to propose ALCATEL fiber or radio Products exclusively.
In order to maintain the exclusive status, BUYER agrees to contact,
make sales calls, propose and pursue purchase orders for the Products
from such companies, and BUYER will propose only ALCATEL Products in
so far as those Products meet the technical requirements of the end
customer or ALCATEL releases BUYER from its exclusive arrangement for a
specific project. The Product prices and discounts are based upon BUYER's
total proposal activity. Depending upon the amount of effort requested by
BUYER, there may be a charge for the activity, however the value of the
charge will be subject to mutual agreement between ALCATEL and BUYER.
ALCATEL and BUYER agree that if a Party breaks this exclusive arrangement
that Party shall pay the other Party XXXXXXX as compensation.
BUYER acknowledges that ALCATEL has authorized distributors that are not
part of this agreement and those distributors may or may not provide
quotations and accept orders from such oil and gas industry companies.
Additionally in international tenders, other units of Alcatel Alsthom
might be a competitor to BUYER using non-ALCATEL Products.
36. TECHNICAL ASSISTANCE AND SOFTWARE SUPPORT (TASSA)
A. SERVICES PROVIDED
(1) Routine Telephone Assistance, is provided by the designated
Technical Assistance Center (TAC) for the covered Software, the
address and telephone number of which are shown on Schedule A,
during normal business hours of 8:00 AM to 5:00 PM (local time
for the designated TAC), Monday through Friday. Such Routine
Telephone Assistance includes assistance in investigating,
diagnosing, and troubleshooting problems of any nature which
exist within, or are reasonably believed to exist within, the
covered Software product. Routine Telephone Assistance also
includes guidance and assistance in installation, turn-up,
operation, configuration and management of the covered Software
product.
(a) The TASSA charges are based on a model of TAC inquiries
covering the range of functions described under routine
telephone assistance above. In the event Alcatel's TAC
receives an excessive number of inquiries, not associated
with the isolation and resolution
(i) New Major Releases of the Software applicable to the system
on which the covered Software is operating.
(ii) Premium Features applicable to the system on which the
covered Software is operating, and supported by a release
of the Software that is either due and deliverable to
Licensee under this Agreement or under separate purchase
orders and license agreements.
(iii) Technical assistance on Licensee's premise provided by TAC
personnel or other technically qualified Alcatel personnel,
selected at the discretion of Alcatel.
(iv) Technical assistance provided by TAC over the telephone
which is not during normal business hours as described for
Routine Telephone Assistance, and not of an emergency nature
as described under Emergency Telephone Assistance.
The discounts available to Licensee under this Agreement for future
Major Releases and Premium Features will vary and will be announced in
conjunction with the announcement of such product releases. Discounts
applicable to Licensee on billable technical services provided by
Alcatel are ten percent (10%). The description, herein, of discounts
which may be applicable to optional, billable software products does
not constitute an obligation by Alcatel to produce or deliver any such
products.
B. RESPONSE TIME
Requests for service will receive a telephone response in one hour or
less in most cases, whether during normal business hours or after
business hours. During peak workload, such as high-traffic holiday
periods which are widely known in the industry, delays may occur which
are beyond the control of Alcatel. Alcatel will always make a
significant effort to respond within a one hour timeframe.
C. SERVICES NOT COVERED
Services requested by Licensee and provided by Alcatel which are
beyond those defined herein, or beyond the limits of the services
defined herein, shall be at Alcatel's current prices as may be
published for structured services or for time and materials.
Alcatel reserves the right to waive applicable charges for such
non-covered services, at its discretion.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed
by a duly authorized officer as of the day and year first written above.
ALCATEL NETWORK SYSTEMS INC. IWL COMMUNICATIONS, INC.
BY: /s/ X. X. Xxxxxxx, Xx. BY: /s/ Xxxxxxxx Xxxxxxxx
------------------------------ ----------------------------------
NAME: X. X. Xxxxxxx, Xx. NAME: Xxxxxxxx Xxxxxxxx
TITLE: Director, Contracts TITLE: President
EXHIBIT A
PRODUCT AND PRICING
1. For projects to be installed within the United States;
A. Prices for products ordered by BUYER shall be based upon the ALCATEL's
list prices in effect on the date of receipt of purchase order less
applicable discount as shown below.
B. RADIO DISCOUNT FIBER OPTIC DISCOUNT
----- ------- ----------- --------
MDR-3X18 XXX DML-3X50 XXX
DMX-3003 XXX
MDR-410XE 2,6,U6,11 XXX DMX-3003N XXX
MDR-420XE 2,6,U6,11 XXX LTS-1565/D/R XXX
MDR-430XE 2,6,U6,11 XXX LTS-21130/D/R XXX
ADM-50 XXX
MDR-5X02 XXX FTS-150 XXX
MDR-5X06 XXX TM-50 XXX
MDR-560X XXX 1603 SM XXX
1624 SM XXX
1648 SM XXX
1610 OA XXX
MDR-6X02-2, 4, 8 XXX
MDR-6702-12, 16 XXX CARRIER
MDR-6X06-2, 4, 8, 12, 16 XXX -------
MDR-6X10-2, 4, 8, 12, 16 XXX D448* XXX
1740 VC (DTV45) XXX
1745 VC XXX
17130V XXX
RDI-3104 XXX 17140V XXX
RESALE-LTS XXX
MCS-11 XXX
TSM-1500 XXX
DIG X-CONN
----------
1633SX XXX
1631SX XXX
1630SX XXX
*NOTE: NOT UNDERERITERS LAB. INC. (UL) APPROVED
C. ALCATEL and BUYER agree that engineering support services between the
parties shall be priced at $XXXX per day plus travel expenses. The
parties shall mutually agree upon the scope and duration of the
service before these services are rendered.
2. For projects to be installed outside the United States, ALCATEL shall
provide equivalent discounts to BUYER within seventy two (72) hours of
receipt of request from BUYER and identification of the destination country.
