World Cyberlinks Corp.
RESELLER AGREEMENT
This Agreement, effective as of the date signed below, is by and between WORLD
CYBERLINKS CORP., a New York corporation with offices at 000 X Xxxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000 ("World Cyberlinks"), and the "Reseller" listed below.
World Cyberlinks has developed proprietary docking stations as listed in Exhibit
A. Reseller is in the business of the development and distribution of computer
software and related products in fields appropriate for the use of such
products. The parties wish to enter an agreement authorizing Reseller to
distribute the Products, as defined below, in the United States.
1. PRODUCTS
For the purpose of this Agreement, the "Products" are World Cyberlinks
proprietary docking stations and software listed in Exhibit A, (a
description of said Products are also in Exhibit A) in the form as marketed
by World Cyberlinks, including documentation packaged with the Products.
The products may include any enhancements, new releases, updates or other
modifications that World Cyberlinks may release from time-to-time under the
same product name or names.
2. GRANT OF DISTRIBUTION RIGHTS
World Cyberlinks hereby grants to Reseller, and Reseller accepts from World
Cyberlinks, the nonexclusive, non-transferable right and license to
promote, advertise, market, and distribute, the Products only to end-users
and to use the Products and associated user documentation in the United
States. Reseller shall not grant sub-distributorships.
3. ORDERS AND PAYMENT
Reseller shall pay World Cyberlinks the amounts shown in World Cyberlinks
then-current price list, a copy of which is in Exhibit A, for units which
World Cyberlinks delivers pursuant to Reseller's purchase orders ("Orders")
under terms as provided in Exhibit B, which may be amended by World
Cyberlinks on thirty days' written notice. An Order shall specify (i)
quantity and description, (ii) date and location of delivery, (iii) end
user name and address, and (iv) other pertinent information.
4. SUPPORT
During the term of this Agreement, World Cyberlinks will (i) provide
Reseller access to World Cyberlinks telephone support during World
Cyberlinks normal business hours, (ii) provide training to Reseller as may
be mutually agreed from time to time and (iii) World Cyberlinks will
provide no end user customer support.
5. OBLIGATIONS OF RESELLER
(a) Reseller shall use its best efforts to promote the marketing of the
Products.
(b) Reseller shall be responsible for providing installation, training, and
support to its customers when desired by the customers and for warranty
service as set forth in Section 6(a) below.
(c) Reseller shall provide and maintain an adequate technically trained staff
and telephone service to provide prompt support to customers.
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(d) Reseller shall comply with all applicable laws, rules, and regulations in
its performance of this Agreement. In particular, Reseller shall not export
any Product, directly or indirectly, to any country outside the United
States without World Cyberlinks' prior written approval.
(e) Reseller shall promptly notify world Cyberlinks of any infringement of
World Cyberlinks proprietary rights that comes to Reseller's attention.
6. WARRANTY ONLY TO END-USERS - LIMITATION OF LIABILITY
(a) Each Product unit is packaged with World Cyberlinks warranty statement for
that Product. Such warranties shall apply only to the ultimate end-user
customer. Reseller may receive warranty claims and fulfill World Cyberlinks
warranty obligations to repair or replace defective products. Reseller
shall accept the return of units under warranty claims, convey such units
to World Cyberlinks, and, at World Cyberlinks expense, transmit replacement
copies to the end user, all as directed by Reseller.
(b) The foregoing warranties are exclusive and are in lieu of all other
warranties expressed or implied. NO OTHER WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS,
TITLE, AND AGAINST INFRINGEMENT, ARE MADE BY World Cyberlinks.
(c) World Cyberlinks entire liability and Reseller's exclusive remedy under
this Agreement shall be as follows: (i) in all situations involving
performance or nonperformance of the Products, Reseller's remedies are the
warranties in Section 6(a); (ii) For any claim concerning performance or
nonperformance by Reseller pursuant to or in any way related to the subject
matter of this Agreement, including personal injury or damage to physical
property to the extent caused by World Cyberlinks fault or negligence, or
for damages for any causes whatsoever and regardless of the form of action,
whether in contract or in tort including negligence, or any other legal
theory, Reseller's remedy shall be actual damages up to the amount of the
payments actually made to World Cyberlinks by Reseller hereunder in the
most recent twelve months prior to such damages occurring; (iii) IN NO
EVENT WILL World Cyberlinks BE LIABLE TO ANYONE FOR ANY LOST PROFITS OR FOR
ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF World Cyberlinks HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL World
Cyberlinks BE LIABLE FOR ANY CLAIM AGAINST RESELLER BY ANY OTHER PARTY.
(d) Notwithstanding anything in this agreement, DEMONSTRATION AND EVALUATION
COPIES ARE DELIVERED ON AN "AS IS" BASIS AND World Cyberlinks MAKES NO
EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THEIR
USE OR PERFORMANCE.
7. COPYRIGHT AND TRADEMARKS
(a) Title and full ownership rights in the Products shall remain in World
Cyberlinks. It is expressly understood and agreed that the Products,
including but not limited to proprietary documentation, input formats,
generated output, modifications, and conversions, constitute valuable
proprietary products and trade secrets of World Cyberlinks embodying
substantial creative efforts and confidential information, ideas and
expressions which require protection against unauthorized use, transfer,
reproduction, or disclosure.
(b) During the term of this Agreement, Reseller may represent itself as a
"World Cyberlinks Authorized Reseller", and use the trademarks of World
Cyberlinks (the "Trademarks") in connection with Resellers' marketing and
distribution of the Products. Any such use of the Trademarks shall inure to
the benefit of World Cyberlinks. Reseller shall not seek to register, or
otherwise assert or obtain any interest in, the Trademarks, or any
confusingly similar marks anywhere in the world.
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(c) Reseller shall exercise due care to protect the trademarks, copyrights, and
trade secrets and other proprietary information of World Cyberlinks made
available to Reseller, and shall do nothing during or after the term of
this Agreement, which could adversely affect their validity or
unenforceability. Reseller shall not remove, alter, cover, or obfuscate any
copyright notice, trademark or other proprietary rights notice placed by
World Cyberlinks on the Products or any portion thereof.
8. TERM AND TERMINATION
This Agreement shall become effective on the date it is executed by both
parties. Either party may terminate this Agreement with or without cause,
for any reason or no reason, upon thirty (30) days' written notice to the
other party.
9. CERTAIN REMEDIES
In the event of termination for Reseller's breach or default, World
Cyberlinks may, without retaking Products delivered to Reseller (i) declare
all accrued and unpaid charges and fees and any other amounts (whether or
not then due and owing) immediately payable, and (ii) require by written
notice that Reseller immediately cease all use and distribution of the
Products until all events of default have been fully cured.
10. INDEMNIFICATION
Reseller agrees to indemnify and hold harmless World Cyberlinks and its
officers, directors and controlling persons from and against any and all
claims, liabilities or expenses (including court costs, attorneys' fees and
costs of settlement) incurred by any of them in connection with or arising
out of (i) any breach or alleged breach by the channel of any of its
representations, warranties or covenants in this Agreement; (ii) any claim
or liability relating to the content, quality or performance of the Product
or any warranty, return, support, maintenance or other obligations related
to the Product; (iii) any claim or liability relating to sales taxes
applicable to transactions involving the Product; or (iv) any other
obligation or responsibility expressly allocated to the channel under this
Agreement.
11. FORCE MAJEURE
Except for payments due under this Agreement, neither party will be
responsible for any failure to perform due to causes beyond its reasonable
control (each, a "Force Majeure"), including, but not limited to, acts of
God, war, riot, fire, floods, earthquakes, or accidents, provided that such
party gives prompt written notice thereof to the other party. The time for
performance will be extended for a period equal to the duration of the
Force Majeure, but in no event longer than sixty (60) days.
12. GENERAL
(a) All notices shall be in writing and given by personal delivery or certified
mail to the recipient's address set forth above, return receipt requested.
Mailed notice shall be deemed given the fifth business day after mailing.
(b) This Agreement shall not be assigned by either party without the advance
written consent of the other, provided that World Cyberlinks may assign to
a successor (without such consent) to all or a substantial portion of its
business, and World Cyberlinks may assign (without such consent) its right
to receive payments hereunder. This Agreement shall be binding upon and
inure to the benefits of the parties, their successors, and permitted
assigns.
(c) This Agreement constitutes the entire agreement between the parties with
respect to its subject matter; except as provided herein, all other prior
agreements, representations, statements, negotiations, and undertakings are
terminated and superseded hereby.
(d) After expiration or termination of this Agreement, all provisions relating
to payment shall survive until completion of required payments. In
addition, all provisions regarding ownership, warranty, liability,
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and limits thereon, confidentiality or protection of proprietary rights and
trade secrets, and assignment shall survive indefinitely.
(e) The parties shall at all times be independent contractors with respect to
each other in carrying out this Agreement.
(f) This Agreement shall be deemed to have been made in, and shall be governed
by and construed in accordance with the laws of The State of New York,
exclusive of its rules governing choice of law and conflict of laws. Both
parties agree to settle any dispute under this Agreement through the
binding arbitration services of the Suffolk County, New York Chamber of
Commerce or other disinterested third party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as an
instrument under seal by their duly authorized representatives:
WORLD CYBERLINKS CORP. RESELLER
By: /s/ Xxxx Xxxxxxx Company: Riverbed Technologies, Inc.
-----------------
Signature
Name: Xxxx Xxxxxxx Address: 0000 Xxxxxxxx Xxxx Xxxxx
Title: President Xxxxx 000
Date: October 16, 0000 Xxxxx Xxxxxx, XX 00000
State of Incorporation: Delaware
By: /s/ E. Xxxxx Xxxxxxx, III
----------------------------
Signature
Name: E. Xxxxx Xxxxxxx, III
Title: President & CEO
Date: 12-22-98
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Exhibit A
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List of Products and Prices and Description
------------------------- COST ------------------------
PRODUCT DISCOUNT CHANNEL SUGGESTED LIST
ConXem Dock 30% off Channel $399.00 $599.00
EtherHub 20% off Channel $1,400.00 $2,000.00
Docking Station
---------------
ConXem(TM) Docking Station
--------------------------
o Multiple units can dock at the same time with concurrent functionality and
without conflicts
o Hot dock initiates TCP/LP connection
o Mobile computers can work on any docking station on the network connected
to the server
o Requires CPU and Multiple port I/O board providing up to 64 connections per
server.
ConXem(TM) EtherHub
-------------------
o IP connection from the ConXem cradle directly to the network.
o Connection of up to 4 cradles (16 PalmPilots).
o Direct nodal access to the PalmPilots
o Remote access dial up
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Exhibit B
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Orders, Shipment, and Payment Terms
NEW RESELLER INFORMATION. Shipments are subject to World Cyberlinks receipt of a
signed Reseller Agreement and a copy of Reseller's current business license.
RESELLER ORDERS. All Orders shall be subject to acceptance by World Cyberlinks.
Each Order placed by the Reseller shall be deemed to incorporate all the terms
and conditions of this Agreement, and any terms and conditions of such Orders
which are in addition to or inconsistent with the terms and conditions of this
Agreement shall automatically be deemed stricken from such Order. World
Cyberlinks assumes no responsibility for Reseller errors in selecting Products.
DISCOUNT. In return for fulfilling its responsibilities under this Agreement,
the Reseller is granted discounts from the price list in exhibit A.
TERMS. 30 day net payment terms may be granted by World Cyberlinks based upon
satisfactory credit evaluation and, if required, the receipt of satisfactory
guarantees. Invoiced terms shall govern Reseller's payment obligation to World
Cyberlinks. Delinquent balances will be subject to finance charges of 1.5% per
month, but not in excess of the lawful maximum, and may result in revocation of
net payment terms.
TAXES. Reseller shall pay all sales, use, and excise taxes, import duties,
tariffs, custom fees, and any other governmental assessments related to receipt
or distribution of the Products by Reseller. If Reseller is exempt from any of
the aforementioned taxes, duties, tariffs, fees, or assessments, Reseller shall
provide World Cyberlinks with written documentation of such exemption,
including, but not limited to, a copy of any valid tax exemption certificate(s).
SHIPPING. Goods are shipped FOB warehouse. Unless otherwise requested, World
Cyberlinks will ship goods UPS surface. Expedited Delivery requests will be
subject to additional charges. Unless the Reseller has specifically requested no
partial shipments, World Cyberlinks will partial ship and back order any
out-of-stock item.
RETURNED MERCHANDISE. All merchandise returned to World Cyberlinks must have a
Return Material Authorization (RMA) number issued by the World Cyberlinks order
entry department, at their sole discretion. When calling for an RMA number,
please have the following information available:
a. World Cyberlinks' invoice number and date shipped; b. The type of Products;
c. The serial number of the unit; and d. The reasons for the
RMA request.
If an RMA number has been assigned, it must be prominently displayed ON THE
SHIPPING LABEL ONLY. Merchandise should be returned to World Cyberlinks freight
pre-paid in the original boxes and packing materials. Returned units must be
complete, including all documentation, etc. Returned Products that arrive at
World Cyberlinks without an RMA number prominently displayed on the shipping
label will not be accepted and shall be returned freight charges collect.
RESTOCKING FEES. Merchandise returned or refused delivery will be subject to a
15% restocking fee.
OTHER FEES. Reseller shall pay all legal, court and attorney fees on any action
arising out of or related to this Agreement in connection with any breach of
Reseller's obligations to World Cyberlinks.
