Exhibit 10.3
NEC AMERICA, INC. ULTRACOM DEALER
AGREEMENT
This Agreement is made as of this June 8, 2001, by and between NEC America,
Inc., located at 0 Xxxxxx Xxxxxxx, Xxxxxxx, XX 00000 hereinafter referred to as
"NECAM", and MFC BUSINESS COMMUNICATIONS having its principal office at 0000 XX
00xx Xxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxx 00000 hereinafter referred to as
"Dealer".
In consideration of the other mutual agreements and promises contained in this
Agreement, NECAM and Dealer agree as follows:
1. APPOINTMENT OF DEALER:
NECAM hereby appoints and designates the Dealer as an authorized dealer of the
attached Equipment Appendix and authorizes Dealer to market and sell the
Equipment (and "Services"), according to the terms and conditions of this
Agreement. NECAM agrees to sell to Dealer Services or Equipment for resale in
the Territory on a non-exclusive basis. The Territory, in which Dealer may act
as authorized dealer of the Equipment, shall mean the geographic area in the
Equipment Appendix.
2. MANUFACTURER AGREES:
A. To support the Dealer in its effort to promote the sale of the Equipment.
B. To provide reasonable technical and/or sales training assistance for the
Dealer's personnel at the Dealer's request in accordance with NECAM's
published guidelines which are hereby incorporated by reference and may be
changed from time to time.
3. THE DEALER AGREES:
A. To use its best efforts to promote, market, service, install and distribute
the Equipment of NECAM in a manner reflecting credit on the parties to this
Agreement.
B. To maintain at least one NECAM trained technician on the i-Series system
throughout the term of this Agreement.
C. To adhere to the payment and price terms prescribed in this Agreement.
D. Purchase and maintain an i-Series system for demonstration or office use.
E. Market the Equipment only to end-user customers. Sale of Equipment to
others for the purpose of resale shall constitute a material breach of this
Agreement.
F. Incorporate NECAM's Limitations of Liability to its end-user customers.
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G. Extend an Equipment warranty to its end-user customers which is no greater
in scope than that extended by NECAM to Dealer.
4. ADDITIONAL TERMS AND CONDITIONS:
A. Order Entry. All orders may be placed using the standard Purchase Order
forms of Dealer. The terms and conditions of this Agreement shall apply to
all orders placed by Dealer for Equipment 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 Dealer'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.
B. Pricing/Discount. Dealer's cost for each item of the Equipment shall be
NECAM's current list price as published from time to time at a discount
level as shown in the Equipment Appendix. Prices are exclusive of federal,
state, and local taxes.
C. Payment Terms. Payment shall be due, in full, thirty (30) days from date
of invoice. Invoice date shall be the date the Equipment is shipped or
later. In no event shall the invoice date precede the shipping date.
Overdue payments shall carry 18% per annum interest charges or the legal
maximum rate, whichever is lower. In addition to NECAM's remedy concerning
late payment(s) provided herein, NECAM may withhold or delay shipment(s)
of the Dealer's order(s) for Equipment and Services until any payment owed
by the Dealer to NECAM which is overdue is made in full.
D. Freight. F.O.B. Kent, Washington and Shelton, Connecticut. Equipment will
be shipped to Dealer's specified delivery point F.O.B. destination for all
orders, freight prepaid and added to the invoice. Title and risk of loss
for Equipment shall pass to Dealer, F.O.B. origin. Notwithstanding the
above, NECAM reserves all other rights, title and interest to the software
Equipment, and neither Dealer nor its end-user customers shall acquire any
rights, title or interest in the software Equipment other than as
specifically set forth.
E. Non-Assignability. The rights and obligations created hereunder cannot be
assigned by either party either voluntarily or by operation of the law
without the prior written consent of the other party. Any unauthorized
transfer or attempt to transfer or assign shall automatically terminate
this Agreement.
F. Relationship of Parties. This Agreement does not in any way create the
relationships of joint venture, partnership, or principal and agent between
NECAM and Dealer, and neither shall have the power or ability to pledge the
credit of the other, nor to bind the other, nor to contract in the name of
or create a liability against the other in any way for any purpose.
G. Warranty. Standard warranty is twenty-six (26) months from the date of
shipment from NECAM's warehouses unless noted on the Equipment Appendix.
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(a) NECAM reserves the right to modify the duration or terms of the
warranty upon written notice to the Dealer.
(b) NECAM's liability for any hardware Equipment which is shown during its
warranty period to not be in compliance with the specifications which
were in effect at the time of sale is limited to:
(1) replacing the hardware Equipment or part thereof with a
functionally equivalent hardware Equipment or part,
(2) repairing the hardware Equipment, or
(3) issuing credit for the hardware Equipment H.
Trademarks.
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(a) Other than as set forth below, Dealer acquires no right, title or
interest in any trademark, trade name or other intellectual property
right of NECAM or its affiliates.
(b) So long as this Agreement remains in effect, Dealer may use the trade
names and trademarks specified by NECAM on a non-exclusive basis for
advertising and promotion of the Equipment consistent with reasonable
guidelines established by NECAM, as may be amended from time to time.
(c) Dealer shall not remove any trade name or trademark of NECAM or its
affiliates from any Equipment without NECAM's prior express written
consent.
I. Force Majeure. Neither party shall be responsible for delays or failures in
performance resulting from acts of God, labor strikes, acts of war or civil
disruption, government regulations imposed after the fact, public utility
failures, or natural disasters.
J. Governing Law. This Agreement shall be governed by the laws of the State of
New York. Each of the parties agrees that any dispute 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
shall be resolved in an action or proceeding in a court of competent
jurisdiction. Each of the parties waives trial by jury and the right to
trial by jury in any and all such actions or proceedings.
K. Term. This Agreement will commence on the date signed by an authorized
representative of NECAM, and will continue until June 30,2002, unless
terminated in accordance with the provisions of this Agreement.
(a) THIS AGREEMENT SHALL AUTOMATICALLY RENEW EACH YEAR, FOR AN ADDITIONAL
ONE (1) YEAR PERIOD, AFTER THE ORIGINAL
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TERM, UNLESS WRITTEN NOTICE OF NONRENEWAL IS PROVIDED BY NECAM AT
LEAST THIRTY (30) DAYS PRIOR TO THE ANNIVERSARY DATE OR IN ACCORDANCE
WITH APPLICABLE STATE LAW REQUIREMENTS WHICH MAY REQUIRE A LONGER
NOTICE PERIOD OR BY DEALER AT LEAST FIFTEEN (15) DAYS PRIOR TO THE
ANNIVERSARY DATE. The discounts applicable to the Equipment listed on
the Appendices shall be adjusted effective on the renewal date based
on the discount schedules set forth on such Appendices.
(b) NECAM reserves the right to revise the terms of this Agreement,
including but not limited to, Equipment authorizations or the minimum
purchase requirements on the Equipment Appendices or to redefine the
Territory designated therein effective upon such renewal by providing
written notice of this Agreement of such deletion, revision or
redefinition at least thirty (30) days prior to the anniversary date.
(c) Upon receipt of such notice in Section K(b) above, Dealer may provide
fifteen (15) days written notice of nonrenewal of the Agreement as
provided in Section K(a) above.
L. Equipment/Services.
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(a) NECAM reserves the right to:
(1) discontinue the manufacture or distribution of particular models
of various types of Equipment and /or the provision of Services
or
(2) change or modify specifications, features, models, housings,
and/or other aspects of Equipment and/or the provision of
Services
M. Termination.
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(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) a Dealer files a voluntary petition in bankruptcy,
(2) a Dealer is adjudged bankrupt,
(3) a court assumes jurisdiction of the assets of a Dealer 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 a Dealer,
(5) a Dealer becomes insolvent or suspends its business,
(6) a Dealer 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,
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(7) the identity of a Dealer or the nature of its business is
materially changed by bulk transfer of assets, sale of its
business, transfer of control of its outstanding stock, merger,
or otherwise,
(8) Dealer fails to make payment for any NECAM invoice for Equipment
or Services within thirty (30) days of the due date for payment
of such invoice.
(9) any other agreement between Dealer and NECAM terminates or
expires, pursuant to the terms and conditions of such agreement,
(10) Dealer breaches any of the terms and conditions governing the use
of NECAM's trade names or trademarks,
(11) Dealer sells Equipment to any other resellers (including but not
limited to NECAM dealers),
(12) Dealer sells, installs, maintains or services Equipment outside
of its Authorized Territory, without NECAM's prior written
consent, or
(13) Dealer subcontracts without NECAM's prior written consent to an
entity other man an Authorized Dealer,
(14) Dealer assigns any of its rights or responsibilities hereunder
except as permitted herein or with NECAM's prior written consent,
or
(15) Dealer does not (i) conduct business in a manner that reflects
favorably at all times on the Equipment 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 Equipment, end-users or the public,
including but not limited to disparagement of NECAM or Equipment;
(iii) make no false or misleading representations with regard to
NECAM or the Equipment; (iv) not publish or employ or cooperate
in the publication or employment of any misleading or deceptive
advertising material; (v) to make no representations, warranties
or guarantees to customers or to the trade with respect to the
specifications, features or capabilities of Equipment that are
inconsistent with the literature distributed by NECAM, including
all warranties and disclaimers contained in such literature, if
any and; (vi) or violates NECAM's Ethics Policy which is hereby
incorporated by reference and may be amended from time to time.
Dealer shall defend, indemnify and hold NECAM harmless from any
third party claims or lawsuits alleging that Dealer has violated
the terms of this Section.
(16) Dealer provides false or misleading information on the Dealer
Application or any supplement thereto.
(b) The entire Agreement or portions thereof relating to specific types of
Equipment or specific portions of Dealer's authorized Territory may be
terminated by NECAM, in the event that:
ULTRACOM/NECAM 06/07/01 Page 5 of 11
(1) Dealer fails to provide installation, maintenance, repair and
support Services in accordance with NECAM's and industry
standards for such specific type of Equipment or within specific
portions of Dealer's authorized Territory.
(c) hi the event of any default or failure on the part of a party hi the
performance of any of its duties, obligations or responsibilities
under this Agreement, other than default or failure specified in
paragraphs (a) or (b) above, the non-defaulting party may terminate
this Agreement, provided mat 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) In NECAM's sole opinion, NECAM may complete any order for Equipment
accepted by NECAM prior to termination and may accept and complete any
order for Equipment where Dealer, prior to the effective date of
termination, has entered into a binding contract for the resale of
such Equipment to an end-user. Notwithstanding the foregoing, NECAM
may condition acceptance and completion of such orders on reasonable
conditions which NECAM may impose, including but not limited to prior
payment in full for these and any other previous orders, proof of a
binding contract with an end-user customer, and/or subcontracting of
service obligations to an Authorized Dealer.
N. Infringement.
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(a) In the event of a claim or suit against Dealer and/or end-user
alleging (a) the Equipment and/or Services as sold or licensed by
NECAM infringe any patent issued by or copyright registered in the
country in which the Equipment and/or Services were sold or licensed
to Dealer, NECAM shall defend Dealer and/or end-user to the extent the
claim or suit concerns such infringement, provided Dealer and/or
end-user give NECAM prompt notice of such claim or suit and continuous
cooperation in such defense.
(b) In any claim or suit against Dealer and/or end-user that is defended
by NECAM pursuant to paragraph (a) above, NECAM shall control the
defense, shall pay all litigation costs, including reasonable
attorney's fees incurred by NECAM in such defense, and shall indemnify
Dealer and/or end-user for all damages awarded by a court or
settlement payments approved by NECAM, provided the Dealer has
incorporated in its agreement with the end-user the warranty
exclusions and liability limitations provided for in this Agreement.
(c) If, in any claim or suit against Dealer and/or end-user that is
defended by NECAM pursuant to paragraph (a) above, as a result of a
court order not subject to further appeal or a settlement approved by
NECAM, Dealer is enjoined or otherwise prevented from selling or
end-user is enjoined from using the Equipment or Services sold or
licensed by NECAM, NECAM, at its option, may (a) procure for Dealer
the right to continue selling or for end-user the right to continue
using the Equipment or Services, (b) replace or modify the Equipment
or Services to avoid infringement, or (c) repossess
ULTRACOM/NECAM 06/07/01 Page 6 of 11
the Equipment or discontinue the Services in exchange for a refund of
the depreciated value of the Equipment or Services. NECAM's option
selected under this paragraph shall be Dealer's and/or end-user's sole
remedy for any prospective effects of any court order or settlement.
(d) NECAM's total cumulative liability under paragraphs (b) and (c) above
shall be limited to the price paid to NECAM by Dealer for the
Equipment and/or Services together with payment of all litigation
costs as provided for in paragraph (b) above.
(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
Equipment were made or Services were rendered by NECAM pursuant to
specifications supplied by Dealer and/or the end-user, or (b) the
alleged infringement is based on use by Dealer and/or the end-user,
without NECAM's permission, of the Equipment and/or Services 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 Equipment and/or Services as modified by
Dealer and/or end-user without NECAM's written permission.
O. Government Contracts.
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(a) The parties hereby acknowledge that NECAM typically has not sold
certain types of Equipment which are included within the scope of this
Agreement for resale under government contracts. Accordingly,
notwithstanding any other provisions) of this Agreement, and without
incurring any liability to Dealer or third party, NECAM hereby
reserves the right to reject any Dealer Order for Equipment to which
government contract provisions will apply.
(b) In the event that Dealer orders Equipment to which Government contract
provisions are intended to apply, Dealer'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 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 Equipment will be supplied to a unit or agency of the
United States government by Dealer, 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
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(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).
P. Non-Exclusive Market Rights
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(a) NEC AM 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 Equipment 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 Equipment.
(3) utilize customer identification information contained in such
form as NECAM shall require, to conduct surveys or perform other
marketing functions, as NECAM deems necessary or appropriate.
NECAM will notify Dealer prior to commencement of such marketing
activities.
Q. Limitation of Liability.
------------------------
NECAM's liability for Equipment malfunction or Service malfeasance shall
be limited to performing one of the remedies under the hardware or
software Equipment or Service warranties, provided that the
malfunctioning Equipment or Service malfeasance is covered by the
applicable warranty. NECAM and Dealer hereby agree that if such
limitation is declared invalid by a court of competent jurisdiction, then
NECAM's liability shall be limited solely to a U. S. dollar amount equal
to the cost of the malfunctioning Equipment and/or Service to the Dealer.
These remedies shall be exclusive and shall be the Dealer's sole remedies
against NECAM or any of its affiliates for Equipment malfunction and/or
SERVICE malfeasance.
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 ITS BREACH OF ANY OF THE
PROVISIONS OF THIS AGREEMENT, ITS
ULTRACOM/NECAM 06/07/01 Page 8 of 11
TORTIOUS CONDUCT IN OR RELATED TO THE PERFORMANCE OF ITS OBLIGATIONS
HEREUNDER, A EQUIPMENT MALFUNCTION, SERVICE MALFEASANCE OR FROM
UNAUTHORIZED OR IMPROPER USE OF EQUIPMENT INCLUDING BUT NOT LIMITED TO
TOLL FRAUD OR COMPUTER VIRUSES.
R. Notices. All notices required or contemplated under this Agreement shall be
by hand delivery, overnight, registered or first class mail and addressed
to the parties as follows:
TO MANUFACTURER
NEC America, Inc. 0
Xxxxxx Xxxxxxx Xxxxxxx,
XX 00000
TO DEALER
MFC BUSINESS COMMUNICATIONS
0000 XX 00xx Xxxxxx, Xxxxx 000 Xxxxxxx Xxxxx,
Xxxxxxx 00000
This Agreement shall be binding upon and inure to the benefit of the parties
hereof, and their successors and assigns.
NEC America, Inc. (NECAM) MPC BUSINESS COMMUNICATION
By: (Dealer)
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxx
---------------------------- ---------------------------
(Authorized Signature) (Authorized Signature)
Name: Xxxxxx X. Xxxxxx Name: /s/ Xxxxxxx Xxxxx
Title: General Manager ---------------------------
Ultra Business Sales Division
Director of Sales
Date: ---------------------------
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