[LOGO] NEC America, Inc.
0000 X. Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000-0000
Tel. 000-000-0000
June 1, 1998
Voice Plus, Inc.
00000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
ATTENTION: Xxxxxxx Xxxx
The current term of your existing Associate Agreement will expire June 30,
1998. In accordance with Section 6, any revisions to be incorporated in the
Agreement upon renewal were to have been sent to you within thirty (30) days
prior to that date. However, several last minute changes have resulted in
delays in mailing the contract renewals.
Enclosed is the renewal Agreement with the following applicable product
appendices and exhibits. Any orders received after July 1, 1998 will be
deemed in accordance with this new agreement unless we receive written notice
to the contrary.
1. ATM Products Appendix (if applicable)
2. Video Teleconferencing Products Appendix (if applicable)
3. Key Telephone Products Appendix
4. NEAX-Registered Trademark-2000 IVS & NEAX1000 IVS/VSP products Appendix
5. NEAX-Registered Trademark-2400 Products Appendix (if applicable)
6. Active Voice Products Appendix
7. Customer Software License Agreement (Exhibit C)
8. CTI Products Appendix
Also enclosed is a new InProtect-SM- Extended Hardware Warranty Products
Appendix and the System Protection Plan Customer Contract and Site
Registration/Software License Agreement.
Please note that no changes have been made to either the territories defined
in your existing Agreement or the following product appendix and exhibits:
1. Centigram Products Appendix
2. Electronic Data Interchange Agreement (Exhibit A)
3. NECAM Leasing Services Product Appendix (Exhibit B)
If you should have any questions regarding the revisions to your agreement,
please feel free to contact Xxxx X. XxXxxxxx, Manager of Contract
Administration, at (000) 000-0000, or Xxx X'Xxxxx, Contract Administrator, at
(000) 000-0000.
We wish to thank you and your staff for the sales contribution and high
quality of representation of NEC products for the past year and for your
understanding regarding this contract renewal. We look forward to another
successful and mutually beneficial year.
Sincerely,
NEC AMERICA, INC.
CORPORATE NETWORKS GROUP
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Sales Vice President & A.G.M.
cc: Contract Administration
Regional Vice President
TABLE OF CONTENTS
ASSOCIATE AGREEMENT
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 & 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 14
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 21
26. Advertising and Promotion 21
27. Force Majeure 22
28. Assignment 22
29. Tax 22
30. Government Contracts 23
31. Limitation of Liability 23
32. Limitation of Time Concerning Causes of Action 24
33. Choice of Law; Jury Waiver 24
34. Severability 24
35. Notices 25
36. Licenses 25
37. Trademarks 25
38. Non-Waiver 25
39. Survival of Obligations 26
40. Shortages 26
41. Limitation of Authority 26
42. Entire Agreement 26
EXHIBITS
Exhibit A, Electronic Data Interchange Agreement
Exhibit B, NECAM Leasing Services Product Appendix
Exhibit C, Customer Software License Agreement
APPENDICES (IF APPLICABLE)
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
CTI Software Products Appendix
ATM Products Appendix
Extended Warranty Products Appendix
ASSOCIATE AGREEMENT
WHEREAS, NEC AMERICA, INC. ("NECAM"), a New York Corporation, with principal
offices at 0000 Xxxx Xxxxxx Xxxx Xxxx, Xxxxxx, Xxxxx 00000, and Voice Plus,
Inc., ("ASSOCIATE"), with offices at 00000 Xxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxxxx 00000, 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,
XXXXX 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) 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.
(c) In its sole discretion, NECAM may add additional types or enhanced
versions of PRODUCTS or SERVICES to the scope of this AGREEMENT.
(d) NECAM reserves the right to:
(1) discontinue the manufacture or distribution of particular
models of various types of PRODUCTS, or
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(2) change or modify specifications, features, models,
housings, and/or other aspects of PRODUCTS.
upon written notice to ASSOCIATE pursuant to Section 35;
(e) TERRITORY means the geographic area designated in each PRODUCT
Appendix.
(f) 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 in accordance with the minimum purchase
requirements, which may be set forth in 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, 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.
(2) The requested delivery date.
(3) The applicable price (reflecting any applicable discount).
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(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 for 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, ASSOCIATE hereby agrees that the terms and conditions,
which appear on the reverse side of NECAM's acknowledgment, 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 XXXXX'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. Such credit arrangements and/or
limitations shall be as reasonably determined by NECAM from time
to time, in its sole discretion.
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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) 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 XXXXX's issuance of a service charge invoice.
(d) In addition to XXXXX'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:
(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
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(4) the list of all customers to whom ASSOCIATE has sold or
leased NEC 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 the 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).
6. TERM
(a) This AGREEMENT will commence on the date signed by an authorized
representative of NECAM, and will continue until June 30, 1999
unless terminated in accordance with the provisions of 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 either party 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. The discounts applicable to the PRODUCTS listed on
the Appendices shall be adjusted effective 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 listings or the minimum
purchase requirements on the PRODUCTS Appendices or to redefine
the TERRITORY designated therein effective upon such
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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.
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 prior 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 XXXXX, 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. INSPECTION 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 have 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 the PRODUCTS for
conformity with 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.
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(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 herein to remedy such defects.
10. SHIPPING AND BILLING
For Orders placed hereunder, NECAM shall:
(a) At the ASSOCIATE's direction, ship to the ASSOCIATE's warehouse
or to the Customer's address specified on the Customer Software
License or such other form as may be required under Section 2(b).
(b) Remit invoices, statements and notices to the address 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.
(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.
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13. ASSOCIATE'S SERVICES
(a) XXXXX'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.
(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 XXXXX, 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 completion of such training sessions for the
issuance of Technician Identification Numbers identifying
those employees of ASSOCIATE who are certified with
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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
non-renewal of this AGREEMENT.
(7) In ordering PRODUCT(S) and services, ASSOCIATES 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) 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.
(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
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.
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(11) ASSOCIATE must have Internet access capability to access
notices which NECAM may post on its Web Page at
xxxx://xxx.xxx.xxx.xxx and xxxx://xxx.xxxxxxxx.xxx/
docs.nsf/system/.
(12) ASSOCIATE shall be required to check the notice section of
such Web page on a daily basis.
(13) In order to support the above commitments, ASSOCIATE agrees
to comply with other reasonable requests by NECAM from time
to time which are designed 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 6(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. Nonrefundable 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.
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:
(1) Meet with XXXXX'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).
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(2) Submit to NECAM on a quarterly basis an estimate of the
ASSOCIATE's PRODUCT needs for the next two 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 XXXXX.
(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.
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,
(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,
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(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 XXXXX'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 XXXXX's prior
written consent, or
(15) ASSOCIATE breaches the terms of Section 13(a)(7).
(b) The entire AGREEMENT or portions thereof relating to specific
types of PRODUCTS may be terminated by NECAM, in the event that:
(1) ASSOCIATE fails to provide any purchasing forecast required
by Section 15 of this AGREEMENT relating to such specific
type of PRODUCTS, or
(2) ASSOCIATE knowingly provides false information on a
"Customer Software License", or
(3) 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 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.
(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.
12
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.
(e) Upon any termination of this AGREEMENT, the parties shall have all
of the remedies of a seller and buyer under the applicable UCC, to
the extent such remedies have not been limited or otherwise
modified by this AGREEMENT.
(f) ASSOCIATE will not be entitled to compensation for loss of its
ASSOCIATE appointment if termination was accomplished in
accordance with the termination or nonrenewal provisions of this
AGREEMENT, or was otherwise legally justified.
17. RIGHTS UPON TERMINATION
(a) In the event of termination by NECAM, NECAM 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 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.
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19. NON-EXCLUSIVE MARKET RIGHTS
(a) NECAM reserves its right to:
(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 or such other form as
NECAM shall require, to conduct surveys or perform other
marketing and sales functions, as NECAM deems necessary or
appropriate.
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 1, 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 XXXXX.
(c) If, in any claim or suit against ASSOCIATE that is defended by
NECAM pursuant to paragraph 1, 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
14
under this paragraph shall be ASSOCIATE'S sole remedy for any
prospective effects of any court order or settlement.
(d) NECAM's total cumulative liability under paragraphs 2 and 3 shall
be limited to the price paid to NECAM by ASSOCIATE for the
PRODUCT(S).
(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 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, for a period of fourteen (14) months from date
of shipment to ASSOCIATE. NECAM reserves the right to
modify such warranty period on written notice to ASSOCIATE.
(3) will be Year 2000 Compliant only to the extent specifically
set forth on the NEC Web Page at xxxx://xxx.xxx.xxx.xxx.
(b) 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
(c) NECAM shall select which of the above warranty remedies to utilize
concerning any particular hardware PRODUCT.
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(d) 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 prevailing Material Return
Authorization ("MRA") policy and procedures, which are
incorporated herein by reference and are subject to change
by NECAM from time to time.
(e) 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.
(f) 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.
(g) 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.
(h) THE HARDWARE 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 DETERRENCE OF TOLL FRAUD, COMPUTER
VIRUSES OR OTHER UNAUTHORIZED OR IMPROPER USE OF THE HARDWARE
PRODUCTS.
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22. SOFTWARE LICENSE AND SOFTWARE WARRANTY
(a) As to any software PRODUCTS licensed to the ASSOCIATE in
accordance with the terms of this AGREEMENT, NECAM warrants 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, for fourteen (14) months from date of shipment
to ASSOCIATE. NECAM reserves the right to modify such
warranty period on written notice to ASSOCIATE.
(3) will be Year 2000 Compliant only as specifically set forth
on the NEC Web Page at xxxx://xxx.xxx.xxx.xxx.
(b) 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
(c) The choice of which of the above warranty remedies to utilize
concerning any particular software PRODUCT shall be NECAM's.
(d) 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,
(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 prevailing Material Return
Authorization policy and procedures, which are incorporated
herein by reference and are subject to change by NECAM from
time to time.
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(e) 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.
(f) 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.
(g) 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.
(h) 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 DETERRENCE OF TOLL FRAUD, COMPUTER
VIRUSES OR OTHER UNAUTHORIZED OR IMPROPER USE OF THE SOFTWARE
PRODUCTS.
(i) 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,
testing, installation, maintenance and repair of related
hardware PRODUCTS,
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(3) the right to reproduce and preserve, for back-up purposes
only, one (1) copy of each software PRODUCTS acquired by
ASSOCIATE from NECAM, and
(4) 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.
(j) The above license may be exercised by ASSOCIATE with respect to
specific software PRODUCTS only upon payment by ASSOCIATE of any
applicable licensing fee.
(k) 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.
(l) 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.
(m) ASSOCIATE agrees to notify NECAM promptly in the event any of
ASSOCIATE's end-user customers violates the conditions of its
sublicense.
(n) 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.
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(o) 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.
(p) 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 PRODUCTS NOT COVERED UNDER WARRANTY
(a) NECAM agrees, at its option, to repair PRODUCTS no longer under
warranty, or to replace such PRODUCTS with functionally equivalent
PRODUCTS, for a period of no less than five (5) years after such
PRODUCT has been manufacturer-discontinued. 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 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 PRODUCT to the ASSOCIATE at ASSOCIATE's
expense or (ii) offer to sell to ASSOCIATE replacement PRODUCTS at
NECAM's then current prices.
(c) Replacement and repaired 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.
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(d) All transportation charges for, and risk of in-transit loss or
damage to, out-of-warranty PRODUCTS returned to NECAM for repair
will be borne by ASSOCIATE. All transportation charges associated
with the return of such repaired and replaced 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.
(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 xxxxxx agrees to comply with XXXXX'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.
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 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
21
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 or 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 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 Manufacturers' and Retailers' Excise Taxes, State and Local Sales Taxes,
and/or Use Taxes.
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30. GOVERNMENT CONTRACTS
(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 the 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 acknowledgment 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 software
documentation to be acquired under licenses customarily provided
to the public. NECAM shall not be required to:
(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 XXXXX's liability
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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.
Each of the parties waives trial by jury and the right to trial by jury in any
and all actions or proceedings 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.
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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 xxxx://xxx.xxx.xxx.xxx
and xxxx://xxx.xxxxxxxx.xxx/xxxx.xxx/xxxxxx/.
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.
(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.
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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 XXXXX'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 the terms and conditions set forth in a Product Appendix, the
terms and conditions of such product Appendix shall control.
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.
26
WHEREBY this Agreement is effective upon the signature of NEC America, Inc.
as appearing below:
NEC AMERICA, INC.
BY: /s/ Xxxxxxx X. Xxxxxx
----------------------
NAME: XXXXXXX X. XXXXXX
--------------------
TITLE: ASSISTANT G.M. & SALES V.P.
-----------------------------
DATE: MAY 26, 1998
------------------------------
27
05/21/98
KEY TELEPHONE PRODUCTS APPENDIX
1. PRODUCTS
PRODUCTS include:
1) Electra Professional-Registered Trademark- Key telephone systems
2) Electra Professional Voice Processing Equipment
3) 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 list prices for
the Electra Professional and Electra Professional Voice Processing Equipment
PRODUCT(S). Excluded from such discount are certain items of Electra
Professional, Electra Professional 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
List Dollar Purchases Discount
--------------------- --------
1 - 199,999 25%
200,000 - 499,999 29%
500,000 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.
05/21/98
NEAX-Registered Trademark-2000 IVS & NEAX-Registered Trademark-1000
IVS/VSP PRODUCTS APPENDIX
1. PRODUCTS
PRODUCTS include:
1) NEAX-Registered Trademark-2000 IVS
2) 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
LIST DOLLAR PURCHASES DISCOUNT
--------------------- --------
1 - 199,999 25%
200,000 - 499,999 29%
500,000 - 999,999 33%
Over 1,000,000 36%
* List Dollar Purchases exclude Dterm Series II, Dterm Series III, Dterm
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 WIRELESS OR ADJUNCT PRODUCTS
(a) ASSOCIATE shall not sell, distribute or activate any NEAX-Registered
Trademark-2000 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-2000 Integrated Wireless or Adjunct product to
which such requirement applies.
(b) NECAM shall not be responsible for the failure of any NEAX-Registered
Trademark-2000 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.
EXTENDED HARDWARE WARRANTY PRODUCTS APPENDIX
1. SCOPE OF THE WARRANTY
In connection with the Extended Hardware Warranty offered by NECAM to
participating ASSOCIATE to be offered for resale to ASSOCIATE's
Customers ("Customers") in connection with each sale by Associate of an
NEC pbx or key system, NECAM agrees to provide ASSOCIATE with the
services described herein as to those hardware components covered by an
Extended Warranty provided by ASSOCIATE to its Customers. A sample copy
of such System Protection Plan Customer Contract and Site
Registration/Software License Agreement is attached hereto.
2. TERM
Such Extended Warranty shall commence on the date of system installation
as set forth on the Extended System Protection Plan Customer Contract or
sixty days from the date of shipment, whichever occurs first, and shall
be for a period of five years from such date. Such extended Warranty shall
be conditioned upon NECAM receiving a fully executed copy of the Extended
System Protection Plan Customer Contract, Site Registration/Software
License Agreement and an identification of the bar codes of all covered
components.
3. EQUIPMENT ELIGIBLE FOR COVERAGE
To be eligible for warranty coverage, the hardware components must
a. be purchased from a NECAM authorized distributor;
b. have all applicable bar codes properly registered with NEC America
by the authorized NECAM ASSOCIATE installing the system or
replacement component; and
c. receive all manufacturers recommended service and maintenance,
performed by a NECAM authorized distributor.
NECAM RESERVES THE RIGHT TO REFUSE WARRANTY COVERAGE ON ANY
HARDWARE COMPONENTS WHICH ARE NOT ELIGIBLE FOR WARRANTY COVERAGE
UNDER THIS AGREEMENT AND TO NOTIFY THE CUSTOMER OF SUCH REFUSAL.
1
4. SERVICE PROVIDED
NECAM SHALL REPAIR OR REPLACE ALL HARDWARE COMPONENTS FOUND TO BE
DEFECTIVE. PARTS WHICH ARE REPLACED SHALL BECOME NECAM'S PROPERTY. UPON
REGISTRATION OF THEIR BAR CODES WITH NECAM AND IDENTIFICATION OF THE BAR
CODES AND RETURN OF THE DEFECTIVE PARTS THEY REPLACE, ALL REPLACEMENT
COMPONENTS SHALL BE WARRANTED FOR THE REMAINING TERM OF THE EXTENDED
WARRANTY TERM. ASSOCIATE MAY REPLACE A DEFECTIVE COMPONENT WITH A
COMPONENT FROM ITS INVENTORY, PROVIDED SUCH COMPONENT IS EITHER NEW OR
HAS BEEN RECONDITIONED IN ACCORDANCE WITH ANY PROCEDURES OR REQUIREMENTS
OF NECAM. IF ASSOCIATE REPLACES A DEFECTIVE HARDWARE COMPONENT WITH A
COMPONENT FROM ITS INVENTORY, THEN NECAM SHALL RETURN TO ASSOCIATE
EITHER THE REPAIRED COMPONENT OR A REPLACEMENT COMPONENT. IN SUCH EVENT,
SUCH COMPONENT SHALL BE WARRANTED FOR WHATEVER TERM OF WARRANTY REMAINED
ON THE COMPONENT INSTALLED AS A REPLACEMENT COMPONENT IN THE CUSTOMER'S
SYSTEM. DEFECTIVE COMPONENTS WHOSE BAR CODES DO NOT CORRESPOND TO THE
BAR CODES PREVIOUSLY REGISTERED WITH NECAM WILL NOT BE REPAIRED OR
REPLACED BY NECAM AND WILL RESULT IN THE IMPOSITION OF THE THEN
APPLICABLE NECAM PROCESSING FEE.
5. WARRANTY
NECAM warrants that all repaired or replacement components will conform
to specifications applicable at the time of the effective date of such
warranty or such revised specifications as may be applicable.
ASSOCIATE's sole remedy for breach of this warranty is repair or
replacement of the defective hardware component or pro rata refund of
the price paid for such extended warranty. THIS IS THE EXCLUSIVE
WARRANTY RELATING TO HARDWARE COMPONENTS AND NO OTHER WARRANTIES,
EXPRESSED OR IMPLIED, SHALL APPLY. NECAM SPECIFICALLY DISCLAIMS THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
6. EXCLUSIONS FROM SERVICE
The following are not included under this Agreement:
a. Repair or replacement of components, which, in NECAM's opinion, are
required due to misuse, abuse, improper installation or
application, improper maintenance or repair, alteration, accident
or negligence in use, improper temperature, humidity or other
environmental condition (i.e. lightning, water, shock damage),
improper storage, transport or handling or failure of components or
supplies not furnished by NECAM.
2
b. Repair or replacement of components which are required due to
unauthorized attempts by persons not authorized by NEC America to
provide service to repair, maintain, or modify the hardware
components covered by this Agreement.
c. Repair or replacement of components which are not part of the
original system installed by the Associate and whose bar codes have
not been registered with NEC as covered by the Extended Warranty.
d. Repair or replacement of components which, when installed, were
neither new nor reconditioned in accordance with NECAM procedures
and requirements.
EXTENDED WARRANTY COVERAGE WILL BE AVAILABLE ON ADDED OR SUBSTITUTE
COMPONENTS ON PAYMENT OF THE APPLICABLE FEE SET BY NECAM.
Any service excluded by this Agreement and provided at the request
or with the agreement of the ASSOCIATE shall be paid for by
ASSOCIATE based on current rates for materials and labor in effect
when the service is provided.
7. TRANSFER AND ASSIGNMENT
a. This Extended Warranty is not transferable by ASSOCIATE and may be
enforced only by the original ASSOCIATE purchaser, except with the
written consent of NECAM and upon payment by an authorized NECAM
ASSOCIATE transferee of any applicable transfer fee and execution
of required documentation confirming the terms of such assignment.
b. This Extended Warranty shall not operate to extend the term of
ASSOCIATE's Associate Agreement and shall terminate immediately
upon termination or nonrenewal of the ASSOCIATE's Agreement or of
ASSOCIATE's authorization to distribute the covered hardware
components. In such event, ASSOCIATE hereby consents to the
assignment of this Agreement to a then currently authorized NEC
America ASSOCIATE.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL NEC AMERICA, INC. BE LIABLE FOR ANY DAMAGES RESULTING
FROM LOSS OF DATA, THE CONFIDENTIALITY OF DATA, LOSS OF SOFTWARE, LOSS
OF USE, LOSS OF REVENUE OR PROFITS, OR ANY INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES. THIS LIMITATION WILL APPLY REGARDLESS OF THE FORM
OF ACTION, WHETHER CONTRACT OR TORT.
3
9. MISCELLANEOUS
A. NECAM RESERVES THE RIGHT TO TERMINATE THIS EXTENDED WARRANTY
PROGRAM PROSPECTIVELY.
B. NECAM ALSO RESERVES THE RIGHT TO TERMINATE PROSPECTIVELY
ASSOCIATE'S PARTICIPATION IN THIS EXTENDED WARRANTY PROGRAM AT ANY
TIME UPON WRITTEN NOTICE TO ASSOCIATE.
C. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, ALL PROVISIONS OF THE
ASSOCIATE AGREEMENT, INCLUDING BUT NOT LIMITED TO SECTION 20
PERTAINING TO HARDWARE WARRANTY, SHALL APPLY TO ASSOCIATE'S
PARTICIPATION IN THIS PROGRAM.
4
NEC AMERICA, INC. CORPORATE NETWORKS GROUP SPONSORED
EXTENDED SYSTEM PROTECTION PLAN
CUSTOMER CONTRACT
(TERMS AND CONDITIONS BETWEEN NEC AMERICA ASSOCIATE AND CUSTOMER)
The following terms and conditions reflect the Extended System Protection
Plan's contract parameters between the NEC America, Inc. (NECAM) ASSOCIATE
and the CUSTOMER (end user). These terms and conditions must be provided to
the customer upon the sale of an NEC system provided with the Extended System
Protection Plan and must become a part of the contract between the ASSOCIATE
that is implementing the plan and the customer that is purchasing the plan. A
copy of these terms and conditions must be provided to the customer by the
ASSOCIATE in order for the plan to be valid with the NECAM Corporate Networks
Group (CNG)
ASSOCIATE NAME: START DATE:
------------------------ ----------------
CUSTOMER NAME: SITE NUMBER:
------------------------- ---------------
(Internal NECAM Use)
PERIOD OF COVERAGE
This Agreement shall commence on the date of system installation as stated on
a properly executed Site Registration/Software License Agreement or sixty
days from the date of shipment from NECAM to the ASSOCIATE, whichever occurs
first, and shall be for a term of five (5) years from such date.
EQUIPMENT ELIGIBLE FOR COVERAGE
To be eligible for warranty coverage under this Agreement, the new NEC system
hardware components and eligible station terminal equipment must meet the
following requirements.
1. The system and all of its components must be purchased from and
installed by a NECAM Corporate Networks Group authorized ASSOCIATE.
2. All components must have all applicable serial numbers (bar codes)
properly registered with NECAM by the authorized NECAM ASSOCIATE
installing the system or replacing the component.
3. The system must have been, and presently receiving manufacturer
recommended service and maintenance, performed by a NECAM authorized
ASSOCIATE.
THE ASSOCIATE RESERVES THE RIGHT TO REFUSE WARRANTY COVERAGE ON ANY HARDWARE
COMPONENTS OR TERMINAL EQUIPMENT WHICH ARE NOT ELIGIBLE FOR WARRANTY COVERAGE
UNDER THIS AGREEMENT.
SERVICE PROVIDED BY ASSOCIATE
The authorized NECAM ASSOCIATE shall repair or replace all hardware
components and terminal equipment found to be defective to ensure that such
components are performing in good working order. Parts which are replaced
shall become the ASSOCIATE's property. ASSOCIATE shall register the serial
numbers (bar codes) of all replaced components. Replacement components may be
new or reconditioned in accordance with all procedures or
requirements of NECAM. All replacement components shall be warranted for the
remaining term of this Extended System Protection Plan.
WARRANTY
The NECAM ASSOCIATE warrants that all services will be provided in a
xxxxxxx-like manner. The customer's sole remedy for breach of this warranty
is repair or replacement of the defective hardware component or pro rata
refund of the price paid for such warranty.
THIS IS THE EXCLUSIVE WARRANTY RELATING TO HARDWARE COMPONENTS AND SELECTED
NEC TERMINALS AND NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, SHALL APPLY. THE
ASSOCIATE SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
EXCLUSIONS FROM THIS WARRANTY
The following services are not included under this NECAM Extended System
Protection Plan:
1. Component replacement and/or services which, are required due to
misuse, abuse, alteration, accident or negligence in use, improper
temperature, humidity or other environmental condition (i.e.
lightning, water, shock damage, improper storage, transport or
handling, or failure of components or supplies not furnished by
ASSOCIATE.
2. Component replacement and/or services which are required due to
unauthorized attempts by persons not authorized by NECAM to provide
service to repair, maintain, or modify the hardware components covered
by this Agreement.
3. Repair or replacement of third-party components or peripherals that
are installed with, mounted within, attached to, or integrated with
the new NEC system and is not manufactured by NEC, NECAM, and/or CNG.
4. NECAM ASSOCIATE labor and materials that are required in the servicing
of the NEC system and the replacement of components covered under the
Extended System Protection Plan.
5. Any services provided or components replaced that are excluded by this
Agreement and provided at the request or with the agreement of the
Customer shall be paid for by Customer based on current rates for
materials and labor in effect when the service is provided.
TRANSFER AND ASSIGNMENT
This Extended System Protection Plan agreement is not transferable by
Customer and may be enforced only by the original end-user purchaser, except
with the consent of ASSOCIATE and upon payment, by transferee, of any
applicable transfer fee and execution of required documentation confirming
the terms of such assignment. The customer shall have the right to terminate
or assign this Agreement immediately upon any material change in the status
of ASSOCIATE as an authorized NECAM ASSOCIATE with respect to the covered
hardware components. In such event, ASSOCIATE hereby consents to the
assignment of this Agreement to a then currently authorized NECAM ASSOCIATE.
In the event of breach by ASSOCIATE of any of its obligations under this or
any other agreement between customer and ASSOCIATE, Customer shall also have
the right to effectuate the assignment of this Agreement to another
authorized ASSOCIATE upon payment of any applicable transfer fee to NECAM and
acceptance of such assignment by such other ASSOCIATE. ASSOCIATE hereby
consents in such event to the assignment of this Agreement.
LIMITATION OF LIABILITY
The Customer should keep for their own protection copies of all software and
data files that could be affected by a hardware malfunction.
IN NO EVENT SHALL ASSOCIATE OR NECAM BE LIABLE FOR ANY DAMAGES RESULTING FROM
LOSS OF DATA, THE CONFIDENTIALITY OF DATA, LOSS OF SOFTWARE, LOSS OF USE,
LOSS OF REVENUE OR PROFITS, OR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES. THIS LIMITATION WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER
CONTRACT OR TORT.
GENERAL PROVISIONS
This Extended System Protection Plan agreement sets forth the entire
understanding of the parties with respect to the subject matter of the
extended hardware warranty. Any amendment must be in writing signed by the
parties.
WHEREFORE, the parties have executed this agreement by their duly authorized
representatives.
CUSTOMER: ASSOCIATE:
--------------------------- ------------------------
Signature: Signature:
-------------------------- ------------------------
Name: Name:
------------------------------- -----------------------------
Title: Title:
------------------------------ ----------------------------
Date: Date:
------------------------------- -----------------------------
NEC AMERICA, INC. NEW TELECOMMUNICATIONS SYSTEM
SITE REGISTRATION SOFTWARE LICENSE AGREEMENT
EXTENDED SYSTEM PROTECTION PLAN
This Site Registration Form and the attached Software License Agreement must be
completed before your customer's system site can qualify for the standard NECAM
one-year warranty and the CNG Extended System Protection Plan. One of these
forms must be completed for each site in a multiple site configuration.
ASSOCIATE (LICENSOR) INFORMATION
ASSOCIATE NAME: NUMBER:
---------------------------- -------------
LOCATION: PHONE:
---------------------------------- -------------
CUSTOMER (LICENSEE) INFORMATION
CUSTOMER NAME:
--------------------------------------------------------------
ADDRESS:
--------------------------------------------------------------------
CITY: STATE: ZIP:
------------------------ ------------------ --------
PHONE: FAX:
---------------------------- --------------------------------
SALES CONTACT: PHONE:
------------------------- -------------------------
TECHNICAL CONTACT: PHONE:
--------------------- -------------------------
FAX: EMAIL:
----------------------------------- -------------------------
TYPE OF BUSINESS:
-----------------------------------------------------------
SYSTEM LOCATION (IF DIFFERENT):
---------------------------------------------
ADDRESS:
--------------------------------------------------------------------
CITY: STATE: ZIP:
----------------------- ----------------- -------
SITE CONTACT: PHONE:
-------------------------- -------------------------
FAX: EMAIL:
----------------------------------- -------------------------
SWITCH ROOM PHONE:
----------------------------------------------------------
SYSTEM INFORMATION
TYPE/MODEL OF NEC SYSTEM INSTALLED:
-----------------------------------------
BASIC SYSTEM CONFIGURATION:
STATIONS: LINES:
------------------------ -------------------------
SOFTWARE TYPE/VERSION: IN-SERVICE DATE:
---------------- ---------------
--------------------------------------------------------------------------------
FOR NECAM OFFICIAL USE ONLY
SITE REGISTRATION #: LICENSE SERIAL #:
-------------- ----------------------
AUTHORIZED BY: DATE:
-------------------- ---------------------------------
ACTIVE VOICE PRODUCTS APPENDIX
1. PRODUCTS/SOFTWARE
PRODUCTS/SOFTWARE include:
(a) NEAXMail-TM- AD-16
(b) NEAXMail-TM- AD-40
(c) NEAXMail-TM- AD-8
(d) NEAXMail-TM- C-70
(e) NEC ElectraMail-Registered Trademark-
(f) NEC ElectraMail-TM- AD-8
(g) Active Voice Repartee-Registered Trademark-
(h) PhoneMax-Registered Trademark-
(i) Lingo-TM-
2. PRICE
Prices applicable to the purchase of PRODUCTS shall be the prices set forth in
NECAM's then-current Price Bulletin.
3. CONTINUING AVAILABILITY OF PRODUCTS
NECAM agrees, at its option, to repair PRODUCTS no longer under warranty, or to
replace such PRODUCTS with functionally equivalent PRODUCTS, subject to
availability from Active Voice. PRODUCTS to be repaired or replaced under this
Section are to be returned to a location designated by NECAM.
4. TERRITORY
TERRITORY SHALL MEAN THE TERRITORY DESIGNATED IN THE KEY TELEPHONE PRODUCTS
APPENDIX AND/OR THE NEAX-Registered Trademark-2000 IVS PRODUCTS APPENDIX.
Repartee is a registered trademark of Active Voice Corporation.
ElectraMail is a registered trademark of NEC America, Inc.
NEAXMail is trademarked by NEC America, Inc.
PhoneMax is a registered trademark of Active Voice Corporation.
Lingo is a registered trademark of Active Voice Corporation
CTI SOFTWARE PRODUCTS APPENDIX
1. PRODUCTS
PRODUCTS include:
1) Phonekits-TM-
2) PhoneLine-Registered Trademark-
3) Support Express-TM-
4) PhoneMax-TM-
2. TERRITORY
TERRITORY SHALL MEAN THE TERRITORY DESIGNATED IN THE KEY TELEPHONE PRODUCTS
APPENDIX AND/OR THE NEAX-Registered Trademark-2000 IVS PRODUCTS APPENDIX.
SOFTWARE WARRANTY
THE FOLLOWING WARRANTIES SHALL APPLY:
Active Voice and CallWare products are all warranted for 14 months from the date
of shipment to the end-user.
All SpanLink Communications, Inc. global products are warranted for 14 months
from the date of acceptance.
Algo Communications products are warranted for 18 months from the date of
shipment or 12 months from installation, whichever is longer.
CCOM products are warranted 90 days from the date of shipment to the end-user.
PRODUCT WARRANTY:
(a) LIMITED WARRANTY: NECAM warrants that the Software described in this
Appendix shall perform, operate, and function as set forth in
appropriate Documentation and that Software will function in
accordance with the appropriate specification(s) for the period
described above.
(b) WARRANTY EXCLUSIONS: The above limited warranty does not apply to any
Product which (i) has been materially altered, except by the
manufacturer or under manufacturer's direction, or (ii) has not been
installed, operated, repaired or maintained in accordance with any
installation, handling, maintenance or operating instruction supplied
by manufacturer, (iii) has been subject to unusual physical or
electrical stress, negligence or accident, or (iv) is used with
hardware or software other than those provided for in the
specifications provided.
(c) NO OTHER WARRANTY: EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE,
LICENSOR GRANTS NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED,
BY STATUTE OR OTHERWISE REGARDING THE PRODUCTS, THEIR FITNESS FOR ANY
PARTICULAR PURPOSE, THEIR QUALITY, THEIR MERCHANTABILITY OR OTHERWISE.
(d) LIMITATION OF LIABILITY: Manufacturer's liability, and XXXXX's remedy,
under the foregoing warranty shall be to correct the non-conformity
or, if the non-conformity is not correctable, to replace the Product
or fully refund any amounts paid for such Product.
NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOST PROFITS, OR FOR ANY
SPECIAL, CONSEQUENTIAL INCIDENTAL OR INDIRECT DAMAGES FOR BREACH OF
WARRANTY.
(e) STANDARD LIMITED WARRANTY TO DISTRIBUTORS, RESELLERS AND END-USERS:
NECAM shall pass on to each of its distributors, resellers, end-users
or other customers, NECAM's standard limited warranty with each
Product.
SUPPORT POLICY
TO BE ISSUED AT A LATER DATE IN ACCORDANCE WITH SECTION 1(c) OF THE ASSOCIATE
AGREEMENT
PRICING
DISTRIBUTOR NET PRICING SHALL APPLY TO ALL PRODUCTS
NEC Stock # Description NET Price
----------------------------------------------------------------------------
PHONEMAX
0223030 PhoneMax 2.0 CD - 1 User $ 109.00
0223031 PhoneMax 2.0 CD - 10 Users $ 840.00
0223032 PhoneMax 2.0 CD - 24 Users $ 1,870.00
0223033 PhoneMax 2.0 CD - 50 Users $ 3,350.00
0223034 PhoneMax 2.0 CD - 100 Users $ 5,800.00
0223035 PhoneMax 2.0 CD - Upgrade $ 79.00
SUPPORT EXPRESS
0223431 Support Express, 1 User $ 1,856.90
0223449 Support Express, 1 Additional User $ 926.90
0223433 Support Express, 5 Users $ 4,336.90
0223435 Support Express, 5 Additional Users $ 3,096.90
0222005 Support Express, Site License $ 24,800.00
EVALUATION COPIES
0222019 Support Express, 30 day Working Eval. $ 6.17
OPTIONS
0223028 SE ExpLink to Remote Control $ 616.90
0223029 Support Express Telephony Link $ 616.90
HELP LINK
0222008 HelpLink Base License, 50 nodes $ 618.45
0222009 HelpLink 50 Additional User Licenses $ 589.00
0222010 HelpLink 100 Additional User Licenses $ 1,100.50
0222011 HelpLink 200 Additional User Licenses $ 2,015.00
0222012 HelpLink 400 Additional User Licenses $ 3,620.80
0222013 HelpLink 1000 Additional User Licenses $ 7,743.80
0222014 HelpLink 2000 Additional User Licenses $ 14,818.00
DEALER KIT
0223436 Support Express, 1 User Dealer Kit $ 995.00
PHONELINE
0223000 PhoneLine - 5 Users $ 700.00
0223001 PhoneLine - 10 Users $ 1,050.00
0223002 PhoneLine - 25 Users $ 1,925.00
0223003 PhoneLine - 50 Users $ 2,975.00
0223004 PhoneLine - 100 Users $ 3,725.00
0223005 PhoneLine - 250 Users $ 7,875.00
0223006 PhoneLine - 500 Users $ 13,375.00
0223007 PhoneLine - 1000 Users $ 21,125.00
NEC AMERICA SOFTWARE LICENSE AGREEMENTS
THE FOLLOWING LICENSE AGREEMENT SETS FORTH THE TERMS UNDER WHICH NECAM LICENSES
THE FOLLOWING PRODUCTS TO END-USER CUSTOMERS.
A. SUPPORT EXPRESS AND PHONEKITS
NECAM PERSONAL COMPUTER PROGRAM LICENSE AGREEMENT
PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE OPENING THIS
DISKETTE PACKAGE.
OPENING THE PACKAGE INDICATES THAT YOU HAVE ACCEPTED THESE TERMS AND CONDITIONS.
IF YOU DO NOT AGREE WITH THEM, YOU SHOULD IMMEDIATELY RETURN THE PACKAGE
UNOPENED. YOU WILL BE REIMBURSED OR CREDITED ACCORDING TO THE POLICY OF THE
AUTHORIZED NECAM DEALER OR NECAM REPRESENTATIVE FROM WHOM YOU OBTAINED THE
PACKAGE. UNDER NO CIRCUMSTANCES SHOULD YOU ACCEPT A PROGRAM DISKETTE PACKAGE
THAT HAS ALREADY BEEN OPENED.
NECAM provides this program and licenses its use to you, the licensee, pursuant
to the following terms. (From this point on, references to "you" means "the
licensee", references to "NECAM" means "NEC America, Inc.", and references to
the "program" means the program recorded on the diskette in this package and any
other programs or enhancements to programs which you hereafter may acquire from
NECAM unless such acquisition is subject to another written license agreement.)
You assume responsibility for the selection of the program to achieve your
intended results. Further you are responsible for the installation, use and
results obtained from the program.
LICENSE
Pursuant to this license agreement, you may:
1. Install and use one copy of the program on a single computer. If the
program includes functionality that enables your single computer to act as
a network server, any number of computers or workstations may access or
otherwise utilize the basic network services of that server.
2. Also store or install a copy of the program on a storage device, such as a
network server, used only to install or run the program on your other
computers over an internal network; however, you must acquire and dedicate
a license for each separate computer on which the program is installed or
run from the storage device. A license for the program may not be shared or
used concurrently on different computers.
You are granted a non-transferable and non-exclusive license to use the
program in machine readable object code form. Such a license shall include
the right to operate the program but shall not include a right of, and shall
be conditional on refraining from, copying (except for one backup copy),
reproducing, modifying, displaying, marketing, sub-licensing, giving, reverse
engineering, decompiling, transferring, or distributing the program, or any
part thereof, neither making the program available to any person, whether on
a time sharing basis or otherwise, or of creating a derivative of the program.
You acknowledge that you are using only a license to use the program and not
any title or ownership of the program or any part thereof.
COPYRIGHT
THE PROGRAM IS COPYRIGHTED AND EXCEPT AS PERMITTED BY THIS AGREEMENT YOU MAY NOT
DUPLICATE THE PROGRAM OR DISCLOSE IT TO ANY OTHER PARTY IF YOU TRANSFER
POSSESSION OF ANY COPY OF THE PROGRAM OR DISCLOSE THE PROGRAM TO ANOTHER PARTY,
YOUR LICENSE IS AUTOMATICALLY TERMINATED.
TERM
This License Agreement is effective until terminated. You may terminate it
voluntarily at any time. Voluntary termination by you must be accompanied by
complete destruction of the licensed program and copies thereof. XXXXX's
Licensor of this program may terminate this License without notice upon your
failure to abide by this Agreement.
FULL WARRANTY OF MEDIA
NECAM warrants to you that the diskette media is free from defects in materials
and workmanship and that it will replace any defective media at no charge, if
any such defect is discovered and the media is returned to NECAM within ninety
(90) days of its purchase. (Any such return should be made, postage paid to
NECAM at the address on this License Agreement, Attention: Software Warranty
Department, together with written notification of the defect).
DISCLAIMER OF SOFTWARE WARRANTIES AND LIABILITIES
NECAM SOFTWARE IS DISTRIBUTED AND LICENSED "AS IS". ALL WARRANTIES, EITHER
EXPRESS OR IMPLIED, ARE DISCLAIMED AS TO THE SOFTWARE AND ITS QUALITY,
PERFORMANCE, OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU, THE CONSUMER, BEAR THE
ENTIRE RISK RELATING TO THE QUALITY OF THE SOFTWARE AND IF THE SOFTWARE PROVES
TO HAVE ANY DEFECTS, YOU ASSUME THE COST OF ANY NECESSARY SERVICING OR REPAIRS.
NECAM MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SOME STATES MAY NOT ALLOW
THE EXCLUSION OF IMPLIED WARRANTIES, SO THAT THE ABOVE EXCLUSION MAY NOT APPLY
TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE
OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
LIABILITY
NECAM'S SOLE OBLIGATION TO YOU SHALL BE THE REPAIR OR REPLACEMENT OF A
NON-CONFORMING PROGRAM. SHOULD THIS REMEDY FAIL OF ITS PURPOSES, NECAM SHALL
HAVE THE OPTION TO REFUND THE LICENSE FEE.
IN NO EVENT SHALL NECAM, ITS LICENSORS, AND/OR ITS DISTRIBUTORS BE RESPONSIBLE
FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES OR LOST PROFITS EVEN IF NECAM HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT
APPLY TO YOU.
This agreement supersedes all prior written or oral agreements, if any, and is
not assignable. It may be amended only expressly in writing signed by both
parties.
YOUR RIGHTS AND NECAM'S RESPONSIBILITIES AS COVERED IN THIS PROGRAM LICENSE
AGREEMENT BECOME EFFECTIVE ONLY WHEN THE "TO BE RETURNED" SECTION OF THE PROGRAM
LICENSE AGREEMENT REGISTRATION CARD (ENCLOSED WITH THE SOFTWARE), FULLY FILLED
IN AND SIGNED BY YOU, HAS BEEN RECEIVED BY NECAM WITHIN FOURTEEN (14) DAYS OF
ITS PURCHASE.
THE REGISTRATION CARD MAY PRESENT ADDITIONAL TERMS AND CONDITIONS. IT IS YOUR
RESPONSIBILITY TO READ ANY SUCH ADDITIONAL TERMS AND CONDITIONS (A COPY WILL BE
PROVIDED TO YOU BY YOUR DEALER) AND TO DETERMINE THAT THEY ARE ACCEPTABLE TO YOU
BEFORE YOU OPEN THIS PACKAGE.
NO SUPPORT OF THIS PROGRAM OF ANY KIND CAN OR WILL BE AVAILABLE UNTIL THE RETURN
SECTION OF THE PROGRAM LICENSE AGREEMENT REGISTRATION CARD HAS BEEN RECEIVED BY
NECAM.
THE FOLLOWING LICENSE AGREEMENT SHALL APPLY TO:
B. PHONELINE
NECAM PERSONAL COMPUTER PROGRAM LICENSE AGREEMENT
PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE OPENING THIS
DISKETTE PACKAGE.
OPENING THE PACKAGE INDICATES THAT YOU HAVE ACCEPTED THESE TERMS AND CONDITIONS.
IF YOU DO NOT AGREE WITH THEM, YOU SHOULD IMMEDIATELY RETURN THE PACKAGE
UNOPENED. YOU WILL BE REIMBURSED OR CREDITED ACCORDING TO THE POLICY OF THE
AUTHORIZED NECAM DEALER OR NECAM REPRESENTATIVE FROM WHOM YOU OBTAINED THE
PACKAGE. UNDER NO CIRCUMSTANCES SHOULD YOU ACCEPT A PROGRAM DISKETTE PACKAGE
THAT HAS ALREADY BEEN OPENED.
NECAM provides this program and licenses its use to you, the licensee, pursuant
to the following terms. (From this point on, references to "you" means "the
licensee", references to "NECAM" means "NEC America, Inc.", and references to
the "program" means the program recorded on the diskette in this package and any
other programs or enhancements to programs which you hereafter may acquire from
NECAM unless such acquisition is subject to another written license agreement.)
You assume responsibility for the selection of the program to achieve your
intended results. Further you are responsible for the installation, use and
results obtained from the program.
LICENSE
Pursuant to this license agreement, you may:
3. Install and use one copy of the program per user.
4. Also store or install a copy of the program on a storage device, such as a
network server, used only to install or run the program on your other
computers over an internal network; however, you must acquire and dedicate
a license for each separate computer on which the program is installed or
run from the storage device. A license for the program may not be shared or
used concurrently on different computers.
You are granted a non-transferable and non-exclusive license to use the program
in machine readable object code form. Such a license shall include the right to
operate the program but shall not include a right of, and shall be conditional
on refraining from, copying (except for one backup copy), reproducing,
modifying, displaying, marketing, sub-licensing, giving, reverse engineering,
decompiling, transferring, or distributing the program, or any part thereof,
neither making the program available to any person, whether on a time sharing
basis or otherwise, or of creating a derivative of the program. You acknowledge
that you are using only a license to use the program and not any title or
ownership of the program or any part thereof.
COPYRIGHT
THE PROGRAM IS COPYRIGHTED AND EXCEPT AS PERMITTED BY THIS AGREEMENT YOU MAY NOT
DUPLICATE THE PROGRAM OR DISCLOSE IT TO ANY OTHER PARTY IF YOU TRANSFER
POSSESSION OF ANY COPY OF THE PROGRAM OR DISCLOSE THE PROGRAM TO ANOTHER PARTY,
YOUR LICENSE IS AUTOMATICALLY TERMINATED.
TERM
This License Agreement is effective until terminated. You may terminate it
voluntarily at any time. Voluntary termination by you must be accompanied by
complete destruction of the licensed program and copies thereof. XXXXX's
Licensor of this program may terminate this License without notice upon your
failure to abide by this Agreement.
FULL WARRANTY OF MEDIA
NECAM warrants to you that the diskette media is free from defects in materials
and workmanship and that it will replace any defective media at no charge, if
any such defect is discovered and the media is returned to NECAM within ninety
(90) days of its purchase. (Any such return should be made, postage paid to
NECAM at the address on this License Agreement, Attention: Software Warranty
Department, together with written notification of the defect).
DISCLAIMER OF SOFTWARE WARRANTIES AND LIABILITIES
NECAM SOFTWARE IS DISTRIBUTED AND LICENSED "AS IS". ALL WARRANTIES, EITHER
EXPRESS OR IMPLIED, ARE DISCLAIMED AS TO THE SOFTWARE AND ITS QUALITY,
PERFORMANCE, OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU, THE CONSUMER, BEAR THE
ENTIRE RISK RELATING TO THE QUALITY OF THE SOFTWARE AND IF THE SOFTWARE PROVES
TO HAVE ANY DEFECTS, YOU ASSUME THE COST OF ANY NECESSARY SERVICING OR REPAIRS.
NECAM MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SOME STATES MAY NOT ALLOW
THE EXCLUSION OF IMPLIED WARRANTIES, SO THAT THE ABOVE EXCLUSION MAY NOT APPLY
TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE
OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
LIABILITY
NECAM'S SOLE OBLIGATION TO YOU SHALL BE THE REPAIR OR REPLACEMENT OF A
NON-CONFORMING PROGRAM. SHOULD THIS REMEDY FAIL OF ITS PURPOSES, NECAM SHALL
HAVE THE OPTION TO REFUND THE LICENSE FEE.
IN NO EVENT SHALL NECAM, ITS LICENSORS, AND/OR ITS DISTRIBUTORS BE RESPONSIBLE
FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES OR LOST PROFITS EVEN IF NECAM HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT
APPLY TO YOU.
This agreement supersedes all prior written or oral agreements, if any, and is
not assignable. It may be amended only expressly in writing signed by both
parties.
YOUR RIGHTS AND NECAM'S RESPONSIBILITIES AS COVERED IN THIS PROGRAM LICENSE
AGREEMENT BECOME EFFECTIVE ONLY WHEN THE "TO BE RETURNED" SECTION OF THE PROGRAM
LICENSE AGREEMENT REGISTRATION CARD (ENCLOSED WITH THE SOFTWARE), FULLY FILLED
IN AND SIGNED BY YOU, HAS BEEN RECEIVED BY NECAM WITHIN FOURTEEN (14) DAYS OF
ITS PURCHASE.
THE REGISTRATION CARD MAY PRESENT ADDITIONAL TERMS AND CONDITIONS. IT IS YOUR
RESPONSIBILITY TO READ ANY SUCH ADDITIONAL TERMS AND CONDITIONS (A COPY WILL BE
PROVIDED TO YOU BY YOUR DEALER) AND TO DETERMINE THAT THEY ARE ACCEPTABLE TO YOU
BEFORE YOU OPEN THIS PACKAGE.
NO SUPPORT OF THIS PROGRAM OF ANY KIND CAN OR WILL BE AVAILABLE UNTIL THE RETURN
SECTION OF THE PROGRAM LICENSE AGREEMENT REGISTRATION CARD HAS BEEN RECEIVED BY
NECAM.
EXHIBIT C
CUSTOMER SOFTWARE LICENSE AGREEMENT
This Customer Software License Agreement is between ______________________,
______________ an authorized NEC America, Inc., Associate or Authorized Reseller
(hereinafter "LICENSOR") and __________________, (hereinafter "LICENSEE").
1. DEFINITIONS
1.01 "CPU" means a central processing unit in the System or SubSystem as
described by the Software License Attachment.
1.02 "Computer Program" means any instruction or instructions in object-code
format for controlling the operation of a CPU.
1.03 "Licensed Product" means:
a: The Computer Program furnished hereunder to the LICENSEE as set
forth Schedule A attached.
b: The Computer Program manuals, documentation and any other material
for the licensed Computer Program.
THE TERM "LICENSED PRODUCT" DOES NOT MEAN OR INCLUDE THE SOURCE-CODE FORMAT FOR
THE COMPUTER PROGRAM SET FORTH ON SCHEDULE A.
2. GRANT OF RIGHTS
2.01 LICENSOR hereby grants the LICENSEE, and the LICENSEE hereby accepts, a
personal, non-transferable and non-exclusive right to use the LICENSED PRODUCT
on one (1) CPU at a time, or a single system where multiple CPU's are provided
in the configuration set forth on Schedule A, solely for its internal business
purposes. The LICENSEE understands that the Licensed Product furnished to the
LICENSEE is furnished solely for use in conjunction with the related hardware
PRODUCTS sold by LICENSOR to LICENSEE. The LICENSEE has no right to use the
Licensed Product so furnished on any CPU other than that such CPU or for any
purpose not specified herein.
2.02 No right, title or interest to the intellectual property in the Licensed
Product is hereby transferred to the LICENSEE, except as expressly granted
herein.
2.03 The LICENSEE shall not copy the Licensed Product except as necessary for
archival/back-up purposes. When the LICENSEE makes any copy of the Licensed
Products, such copy must include the copyright notice appearing on the Licensed
Product furnished to the LICENSEE.
2.04 The LICENSEE shall not transfer possession of the Licensed Product, nor
any rights conferred herein to any third party, except to a third party who
acquires title to the LICENSEE'S related hardware PRODUCTS, provided such
transferee has executed and provided to NEC America, Inc., a signed copy of
this Agreement and has tendered to NEC America, Inc., the then current license
transfer fee.
2.05 LICENSEE hereby assures LICENSOR that LICENSEE does not intend to, and
will not knowingly, without prior written consent, if required, of the Office of
Export Administration of the United States Department of Commerce, Washington
D.C. 20230, transmit, directly or indirectly the Licensed Product to Iran, Iraq,
Syria, the People's Republic of China or any Group Q,S,Y or Z country specified
in Supplement No. 1 to Section 770 of the Export Administration Regulations
issued by the United States Department of Commerce or to any other country to
which such transmission is restricted by such Regulations.
2.06 LICENSEE hereby agrees that it shall not reverse compile, disassemble,
alter, add to, delete from, or otherwise modify the LICENSED PRODUCT, except to
the extent that such modification capability is an intended feature of the
LICENSED PRODUCT.
3. LIMITED WARRANTY AND REMEDIES
3.01 For a period of fourteen (14) months from date of shipping at the
LICENSEE'S site specified in Schedule A, LICENSOR warrants that the Licensed
Product will conform to published performance specifications applicable as of
the date of this agreement and will be free from defects in workmanship, under
normal use and service, when correctly installed and maintained.
3.02 LICENSOR'S liability for any LICENSED PRODUCT which is shown to be
defective during its warranty period is limited to:
a: replacing the LICENSED PRODUCT or part thereof with a functionally
equivalent LICENSED PRODUCT or part,
b: repairing the LICENSED PRODUCT, or
c: issuing credit for the LICENSED PRODUCT
The choice of which of the above warranty remedies to utilize concerning any
particular LICENSED PRODUCT shall be LICENSOR'S.
3.03 In the event that any LICENSED PRODUCT is shown to be defective during
the warranty period, the LICENSEE shall:
a: notify LICENSOR or any other authorized NECAM Associate or
Authorized Reseller providing service to LICENSEE Promptly in
writing of any claims,
b: provide LICENSOR or such other authorized NECAM Associate or
Authorized Reseller and/or NEC America, Inc., with an opportunity
to inspect and test the LICENSED PRODUCTS claimed to be defective,
and
c: (if repair or replacement of the LICENSED PRODUCT is selected)
return the LICENSED PRODUCT to LICENSOR or such other authorized
NEC Associate, or Authorized Reseller or NEC America, Inc., in
accordance with instructions provided.
3.04 The above warranty excludes coverage for LICENSE 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, lighting or water damage), storage, transportation or handling.
3.05 THE LICENSED PRODUCT 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 DETERRENCE OF TOLL FRAUD,
COMPUTER VIRUSES OR OTHER UNAUTHORIZED OR IMPROPER USE OF THE SOFTWARE PRODUCTS.
3.06 LICENSOR's liability for any LICENSED PRODUCT malfunction, shall be
limited to performing one of the remedies specified herein, provided that the
malfunctioning LICENSED PRODUCT is covered by the applicable warranty. LICENSOR
and LICENSEE hereby agree that if such limitation is declared invalid by a court
of competent jurisdiction, then LICENSOR'S liability shall be limited solely to
a U.S. dollar amount equal to the cost of the malfunctioning LICENSED PRODUCT to
the LICENSEE. These remedies shall be exclusive and shall be the LICENSEE'S
sole remedies against LICENSOR or NEC America, Inc., or any of its affiliates,
Associates, or Authorized Reseller or suppliers for LICENSED PRODUCT
malfunction.
4. INFRINGEMENT
4.01 LICENSOR represents and warrants that no patent, copyright, trade secret,
trademark, trade name or other proprietary rights has been or will be infringed
by the LICENSEE's use of the LICENSED PRODUCT pursuant to this license.
4.02 If such infringement is alleged or does occur, LICENSEE shall be defended
against any and all claims arising from such allegations of findings of
infringement. LICENSOR shall, at its expense and sole decision, as the sole
remedy to which LICENSEE shall be entitled:
a: procure for LICENSEE the right to use the LICENSED PRODUCT, or
b: replace such LICENSED PRODUCT with a comparable, non-infringing
product, or
c: modify such LICENSED PRODUCT to be non-infringing, or
d: terminate the LICENSE for the LICENSED PRODUCT and refund the
LICENSE fee for such LICENSED PRODUCT or LICENSEE.
5. TERM AND TERMINATION
5.01 This Agreement shall take effect on the date LICENSED PRODUCT is shipped
by NECAM, and shall remain in effect until terminated as provided below.
5.02 If the LICENSEE should breach any of its obligations under this
Agreement, LICENSOR may (in addition to any other remedies available at law or
in equity) terminate this Agreement upon written notice to LICENSEE.
5.03 Upon termination of this Agreement, the LICENSEE shall immediately
discontinue the use of the LICENSED PRODUCT and shall return all copies of the
LICENSED PRODUCT to LICENSOR.
6. MISCELLANEOUS
6.01 This Agreement, including the addenda listed below, sets forth the
entire agreement and understanding between the parties, neither party shall
be bound by any conditions, definitions, warranties, understandings or
representations with respect to such subject matter other than as expressly
provided herein or as duly set forth on or subsequent to the date hereof in
writing and signed by a proper and duly authorized representative of the
party to be bound thereby.
The following Addenda/Exhibits are a part of this Agreement:
Addenda/Exhibits Licensor Licensor
Initials Initials
Schedule A
--------------------- -------- ---------
Schedule B
--------------------- -------- ---------
--------------------- -------- ---------
6.02 IN NO EVENT SHALL LICENSOR OR NEC AMERICA, INC., OR ANY OF ITS
AFFILIATES, ASSOCIATES, AUTHORIZED RESELLERS OR SUPPLIERS BE LIABLE FOR
CONSEQUENTIAL, SPECIAL, INCIDENTAL OR SIMILAR DAMAGES, SUCH AS (BUT NOT LIMITED
TO) "DOWNTIME", EXCESS COSTS OR LOST BUSINESS REVENUES RESULTING FROM A LICENSED
PRODUCT MALFUNCTION FROM UNAUTHORIZED OR IMPROPER USE OF LICENSED PRODUCT
INCLUDING BUT NOT LIMITED TO TOLL FRAUD OR COMPUTER VIRUSES OR FROM LOSS OF USE
OF LICENSED PRODUCT DUE TO INFRINGEMENT CLAIMS.
7. STATISTICAL INFORMATION
7.01 NECAM requests that the LICENSEE complete the Statistical Information
contained within that section on Schedule A to this agreement. This information
may be used by NECAM for marketing purposes.
WHEREFORE, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT THROUGH THEIR
AUTHORIZED REPRESENTATIVES.
LICENSOR: LICENSEE:
------------------------- -------------------------
BY: BY:
------------------------- -------------------------
NAME: NAME:
------------------------- -------------------------
TITLE: TITLE:
------------------------- -------------------------
NEC AMERICA, INC.
SCHEDULE A
SOFTWARE LICENSE ATTACHMENT
SYSTEM ADD-ONS AND SUPPORT SERVICES
(One Attachment Per Software Product)
Product Name:
-----------------------------------------------------------
Feature Package:
-----------------------------------------------------------
Product Capacity:
-----------------------------------------------------------
Other:
-----------------------------------------------------------
Licensed From:
-----------------------------------------------------------
(NECAM Associate)
-----------------------------------------------------------
City St Zip
---------------------- ----------- ---------------
Licensed To:
-----------------------------------------------------------
-----------------------------------------------------------
City St Zip
---------------------- ----------- ---------------
Location of Product:
-----------------------------------------------------------
(if different)
-----------------------------------------------------------
City St Zip
---------------------- ----------- ---------------
Sales Contact:
-----------------------------------------------------------
-----------------------------------------------------------
City St Zip
---------------------- ----------- ---------------
Phone No.
--------------------------------------------------
Fax No.
----------------------------------------------------
Email:
-----------------------------------------------------
Tech Contact:
-----------------------------------------------------------
-----------------------------------------------------------
City St Zip
---------------------- ----------- ---------------
Phone No.
--------------------------------------------------
Fax No.
----------------------------------------------------
Email:
-----------------------------------------------------
Switchroom Phone No.
---------------------------------------
Licensee Signature:
-----------------------------------------------------------
Print Name:
-----------------------------------------------------------
Title:
-----------------------------------------------------------
Date:
-----------------------------------------------------------
License Serial No:
-----------------------------------------------------------
ACD II, III, or IV
-------------------------------------------------------------
Package or Module ACD
----------------------------------------------------------
Redundancy or Non-redundancy
---------------------------------------------------
ACD IV-100 Pkg.
----------------------------------------------------------------
ACD IV-200 Pkg.
----------------------------------------------------------------
ACD IV-100 Module
--------------------------------------------------------------
ACD IV-200 Module
--------------------------------------------------------------
ACD IV-300 Module
--------------------------------------------------------------
ACD IV-400 Module
--------------------------------------------------------------
ACD IV-500 Module
--------------------------------------------------------------
This schedule lists the system add-ons and support services that are covered
under this Software License Agreement and are not standard with the system.
The extra items listed on this schedule are included in the new system
installation and are therefore covered by this license agreement.
DEVELOPER TOOLS
If software developer tools (toolkits) were included with the system and are
covered under this Software License Agreement.
SPARE PARTS
If spare parts and/or peripheral equipment were included with the system and
are covered under this Software License Agreement.
CUSTOMIZATION CHARGES
The system hardware or system software customization charges were applied to
the system and are covered under this Software License Agreement.
OTHER DELIVERABLES
The other deliverables were included in the system installation and are
covered under this or another Software License Agreement.
ENGINEERING CONSULTING SERVICES
The engineering consulting or support services were implemented with the new
system and is covered under this Software License Agreement.
ON-SITE TECHNICAL SUPPORT
NECAM agrees to arrange to provide on-site technical support in accordance
with the rates.
SCHEDULE B
(CUSTOMER) HEREBY ACKNOWLEDGES THAT THE USE AND OPERATION OF ANY
INTENTIONAL RADIATOR EQUIPMENT REQUIRING A PART15.311 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 FCC RULES AND REGULATIONS AND UTAM REQUIREMENTS
AND INSTRUCTIONS WITH RESPECT TO INTERFERENCE TO 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.
NECAM SHALL NOT BE RESPONSIBLE FOR THE FAILURE OF ANY NEAX WIRELESS PRODUCT
TO CONFORM TO PUBLISHED SPECIFICATIONS, WHICH FAILURE IS ATTRIBUTABLE TO
ENVIRONMENTAL OR STRUCTURAL CAUSES BEYOND NECAM'S CONTROL. EACH AGREEMENT
BETWEEN ASSOCIATE OR AUTHORIZED RESELLER AND AN END-USER SHALL INCLUDE AN
ANALOGOUS DISCLAIMER IN A FORM SATISFACTORY TO NECAM.
NEC Stock No. 200900
Revision 4/98
NEC CUSTOMER SERVICE COPY
