[Confidential Treatment Requested]
VALUE ADDED RESELLER AGREEMENT
THIS AGREEMENT ("Agreement") is made this 1st day of July, 1996 by and
between HYBRID NETWORKS, INC. ("Hybrid") having its principal place of
business at 00000 Xxxx Xxxx, Xxxxxxxxx, XX 00000 and Internet Ventures ("VAR")
having its principal place of business at 00000 Xxxxxxxx Xxxx #0000, Xxx
Xxxxxxx, XX 00000.
RECITALS
WHEREAS, Hybrid is engaged in the design and manufacture of certain computer
networking systems and software ("Products"), and desires to appoint VAR as its
value added reseller for such Products within the territory hereinafter
specified; and
WHEREAS, VAR is experienced in system design, sale, installation and
maintenance of products compatible with Hybrid's Products, and desires to serve
as Hybrid's value added reseller within the territory hereinafter specified;
NOW THEREFORE, in consideration of the mutual agreements and covenants herein
contained, the parties, intending to be legally bound, agree as follows:
1. APPOINTMENT AS VAR
Hybrid hereby appoints VAR, and VAR hereby accepts appointment as a Hybrid
value added reseller to sell, install, maintain, carry inventory and provide
system design and site certification services for the Products, such
appointment to be fully subject to the terms and conditions hereinafter
provided. Notwithstanding anything contained herein to the contrary, Hybrid
maintains the right to sell Products directly or through third parties to
end-users in the territory described in Paragraph 5 of this Agreement without
any compensation due VAR.
2. TERM OF AGREEMENT
This Agreement shall come into force on the date first written above
("Effective Date") and shall remain valid for orders placed during the period
of 12 months beginning on the Effective Date ("Ordering Period") for delivery
during the period of 14 months beginning on the Effective Date ("Delivery
Period").
3. GRANT OF DISCOUNTS
The prices for any Products ordered from Hybrid by VAR shall be discounted
according to the schedule of prices as shown on Appendix A.
4. ORDERING
[**Confidential Treatment has been requested with respect to certain portions
of this exhibit. Confidential portions have been omitted from the public
filing and filed separately with the Securities and Exchange Commission].
Orders placed by VAR, in writing, for Products will be accepted by Hybrid
provided that:
a) VAR complies with all of the provisions of this Agreement;
b) the order is received and accepted by Hybrid during the Ordering Period
for delivery during the Delivery Period;
c) the order contains an express reference to this Agreement;
d) the value of any single order is no less than $5,000.00; and
e) the order specifies the Products ordered, purchase price(s), exact "ship-
to" and "xxxx-to" address and requested delivery schedule.
5. TERRITORY
VAR is hereby granted authority to sell, install, maintain, carry inventory
and provide system design and site certification services for Hybrid products
in the following territory:
North America
6. WARRANTY
6.1 Hybrid warrants all Products will be free from defects of material and
workmanship for a period of ninety (90) days under normal operating
conditions, from the date of delivery to VAR's customer, or for a period of
one hundred eighty (180) days from date of shipment by Hybrid, whichever
comes first.
Should a Product fail within this warranty period, Hybrid will repair or
replace, at its discretion, the defective Product when it is returned to
Hybrid, shipping prepaid. Replacement Products may be refurbished or contain
refurbished materials. Proof of date of delivery of the returned Product is
required.
This warranty will apply to all repaired or replaced Products for ninety (90)
days following delivery of the Product to VAR's customer or its
representative. This warranty does not apply if, in Hybrid's judgment,
the Product failure was caused by abuse or misuse by the VAR or customer,
accidental or otherwise.
Repair or modification by anyone other than Hybrid or an approved agent is
expressly prohibited and will result in voiding this warranty. The maximum
liability of Hybrid is limited to the purchase price of the Product covered
by the warranty.
EXCEPT FOR THE EXPRESS WARRANTY STATED HEREIN, HYBRID DISCLAIMS ALL
WARRANTIES OF PRODUCTS FURNISHED HEREUNDER, INCLUDING, WITHOUT LIMITATION,
ALL IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
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6.2 VAR shall have no right or authority, express or implied, directly or
indirectly, to alter, enlarge or limit the representations or guarantees
beyond those expressly contained in Paragraph 5.1. In the event that VAR
makes unauthorized representations or guarantees beyond those contained in
Paragraph 5.1 in connection with the sale, distribution, or handling of the
Products, VAR shall hold harmless and indemnify Hybrid for any expenses,
claims, damages or liability of any nature whatsoever arising from or related
to such unauthorized representations or guarantees, including without
limitation, attorney's fees.
7. REPRESENTATIONS AND WARRANTIES OF VAR
7.1 VAR warrants and represents that:
a) it is a Value Added Reseller;
b) it is an experienced user of computer networking equipment and software
and will not require any significant assistance from Hybrid in
the incorporation of Products supplied by Hybrid; and
c) it will rely largely on its own skill and expertise in selection of
Products suitable for its purposes.
7.2 In a manner satisfactory to Hybrid and at VAR's sole expense, VAR
agrees to:
a) employ a competent and aggressive sales and technical support
organization;
b) maintain adequate manpower and facilities to assure prompt handling of
inquiries, orders and shipments of Products;
c) carry an adequate inventory in order to assure timely "off-the-shelf"
delivery;
d) assist VARs with system design and site certification;
e) sell, install and secure acceptance of Hybrid's Products;
f) keep Hybrid informed as to problems encountered and resolutions
and to communicate promptly to Hybrid any and all modifications,
design changes or improvements of the Products suggested by any
customer, or any employees or agent of customer, and VAR further
agrees that Hybrid shall be and remain the exclusive owner of such
information; and
g) submit a monthly sales forecast of Products covering the next three
months by the third week of each month.
8. TERMS AND CONDITIONS OF SALE
Terms of payment will be Net 30 days from date of invoice. All amounts are
payable to Hybrid Networks, Inc. at the address set forth on the invoice.
Delivery will be F.O.B. point of shipment. Shipments will be made to the place
or places specified on VAR's orders. VAR has a period of thirty (30) days
following date of shipment or ten (10) days after receipt of Product, whichever
is earlier, within which to notify Hybrid in writing of any discrepancies in
the shipment.
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If VAR fails to satisfy Hybrid on payment arrangements, Hybrid may refuse to
accept an order or may allow VAR to make other arrangements satisfactory to
Hybrid prior to shipment.
9. PROPRIETARY INFORMATION; NONDISCLOSURE
VAR acknowledges that, in the course of selling the Products and performing its
duties under this Agreement, it may obtain information relating to the Products
and to Hybrid which is of a confidential and proprietary nature ("Proprietary
Information"). Such Proprietary Information may include, but is not limited
to, trade secrets, know-how, invention techniques, processes, programs,
schematics, software source documents, data, customer lists, financial
information, and sales and marketing plans. VAR shall at all times, both
during the term of this Agreement and for a period of at least three (3)
years after its termination, keep in trust and confidence all such
Proprietary Information, and shall not use such Proprietary Information other
than in the course of its duties under this Agreement, nor shall VAR disclose
any of such Proprietary Information without Hybrid's written consent. VAR
further agrees to immediately return to Hybrid all Proprietary Information
(including copies thereof) in VAR's possession, custody, or control upon
termination of this Agreement at any time and for any reason.
10. TERMINATION
10.1 This Agreement will automatically terminate 1 year from the date first
written above. It may be sooner canceled as herein set forth and it may be
renewed or extended in writing by mutual agreement. Hybrid neither
represents nor implies its intention to grant such renewals or extensions.
10.2 Either party may terminate this Agreement immediately if the other
party becomes insolvent or if there is instituted by or against the other
party any proceedings in bankruptcy or if the other party shall make an
assignment for the benefit of creditors.
10.3 Either party may terminate this Agreement upon the breach of any
material warranty or representation or the default or non-performance by the
other party of its material obligations under this Agreement or any other
agreements or instruments executed and delivered in connection with this
Agreement, if such breach, default or non-performance continues uncured for a
period of thirty (30) days after the other party's receipt of written notice
thereof from the other party giving such notice.
10.4 Upon termination of this Agreement pursuant to Paragraph 9.2 and
Paragraph 9.3, all invoices submitted to VAR in respect of orders shall
immediately become due for payment and all outstanding orders for Products
shall automatically terminate insofar as they relate to Products not
delivered as of the date of termination.
11. MISCELLANEOUS
11.1 ROLE OF PARTIES; INDEPENDENT CONTRACTORS: Hybrid and VAR are and at
all times shall be and remain independent contractors as to each other, and
at no time shall either be deemed to
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be the agent of the other and no joint ventures, partnership, agency or other
relationship shall be created or implied hereby or herefrom. Except as is
expressly set forth herein, each party shall bear full and sole
responsibility for its own expenses, liabilities, costs of operation, and
the like.
11.2 ASSIGNMENT: This Agreement may not be assigned or transferred by VAR
without Hybrid's prior written consent, executed by an authorized official of
Hybrid.
11.3 BINDING EFFECT: Subject to subparagraph 11.2 above, this Agreement
shall be binding upon and shall insure to the benefits of the parties, their
successors and assigns.
11.4 FORCE MAJEURE: Notwithstanding anything contained in this Agreement to
the contrary, neither party shall be liable to the other for failure to
perform any obligation under this Agreement (nor shall any charge or
payments be made in respect thereof) if prevented from doing so by reason of
acts of God, strikes, labor unrest, embargoes, civil commotion, rationing or
other governmental orders or requirements, acts of civil or military
authorities, or other contingencies if and to the extent such cause is beyond
the reasonable control of such party and all requirements as to notice,
another performance required hereunder within a specified period, shall be
automatically extended to accommodate the period of any such cause which
shall interfere with such performance.
11.5 DISCLAIMER AND LIMITATION OF LIABILITY: In no event will Hybrid be
liable for special, indirect or consequential damages or any damages
whatsoever resulting from loss of use, data or profits arising out of or in
connection with the contract between VAR and VAR's customer. Hybrid's
liability for damage to property shall be limited to physical damage directly
caused by the sole negligence of Hybrid and in no event shall exceed the
value of the order between Hybrid and VAR.
11.6 NOTICES: Any notice required to be given by either party to the other
party shall be in writing and shall be deemed given if personally delivered,
if sent by facsimile (with receipt acknowledged) to the facsimile number the
other party set forth below or if mailed postage prepaid, to:
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If to HYBRID: If to VAR
00000 Xxxx Xxxx _________________________
Xxxxxxxxx, XX 00000 _________________________
ATTN.: Xxxxx Xxxxx ATTN.: __________________
Fax no. 408/000-0000 Fax no. _________________
or such other address as the party to which the notice is sent shall have
provided to the other party by written notice in accordance with this Section
11.6.
11.7 ANNOUNCEMENTS: No announcement to the press or to any third party of
the transactions contemplated herein or to the provisions of this Agreement
shall be made by either party unless the same shall be approved in advance in
writing by both VAR and Hybrid.
11.8 SEVERABILITY OF PROVISIONS: If any provision of this Agreement is held
invalid, the remainder of this Agreement shall not be affected thereby.
11.9 ENTIRE AGREEMENT: This Agreement states the entire agreement as of
this date between VAR and Hybrid with respect to the subject matter hereof
and supersedes all pre-existing oral, letter or other agreements or
commitments with respect hereto. This Agreement may be modified only by
agreement in writing executed by both parties hereto.
11.10 COUNTERPARTS: This Agreement shall be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument and shall be effective
when each of the parties hereto shall have duly executed this Agreement.
11.11 GOVERNING LAW: This Agreement shall be governed by, and construed and
enforced in accordance with, applicable federal law and the laws of the State
of California.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
day and year first above written:
INTERNET VENTURES HYBRID NETWORKS, INC.
By: /s/ XXXXXX XXXXXXX
________________________________ _____________________________________
Xxxxxx X. Xxxxxxxxx
Its: ________________________________ Vice President, Marketing & Sales
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APPENDIX A
HYBRID PRICE LIST
PRODUCT LIST PRICE VAR PRICES
------- ---------- ----------
BASIC TIER 2 TIER 3
Model 111 RLA 995 [ ** ]
Tier 2: firm orders of 2,500 units [ ** ]
Tier 3: firm orders of 5,000 units [ ** ]
Series 1000 Point of Presence 38,500 [ ** ]
XXXXX 0 workstation w/monitor
HSB 210 S-bus card
HEM 1110 encoder modulator
Hybridware-TM- software
7" rack w/power strip
Ethernet hub and transceiver
10 port terminal server
C6M modulator
System integration
Series 2000 Point of Presence 41,500 [ ** ]
XXXXX 0 workstation w/monitor
HSB 210 S-bus card
HEM 2004 encoder modulator
Hybridware-TM- software
7" rack w/power strip
Ethernet hub and transceiver
10 port terminal server
C6M modulator
System integration
Additional RF Channel 5,995 [ ** ]
HSB 210 S-bus card
HEM 2004 encoder modulator
C6M modulator
System integration
7" rack w/power strip 1,052 [ ** ]
Ethernet hub and transceiver 742 [ ** ]
10 port terminal server 2,691 [ ** ]
20 port terminal server 3,284 [ ** ]
30 port terminal server 3,985 [ ** ]
C6M modulator 2,173 [ ** ]
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[**Confidential Treatment has been requested with respect to certain portions
of this exhibit. Confidential portions have been omitted from the public
filing and filed separately with the Securities and Exchange Commission].
[HYBRID LETTERHEAD]
ADDENDUM TO VAR AGREEMENT
Between Internet Ventures and Hybrid Networks
The VAR agreement, dated July 1, 1996 is in force for 90 days beginning July
1, 1996. The balance of the 12 month term is contingent upon entering into a
first installation of at least 100 users.
HYBRID NETWORKS, INC.
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Vice President, Marketing & Sales
