EXHIBIT 10.9
Form of Dealer Agreement between eOn and CSPR
MILLENNIUM PARTNER AGREEMENT
This Agreement is entered into as of the____ day of ______, 2002 (the "Effective
Date") between eOn Communications Corporation, having a place of business at
0000 Xxxxx Xxxxx XX, Xxxxxxxx, Xxxxxxx, 00000 ("eOn") and
_______________________________________________, a__________________
corporation, having its principal office located
at____________________________________ ("Millennium Partner").
Whereas eOn is engaged in the sale of telecommunications and customer
interaction management systems and software and wishes to appoint Millennium
Partner as an authorized organization for the sale and support of certain eOn
products within a specified geographical territory; and
Whereas Millennium Partner represents that, it is skilled and experienced at
marketing, selling, servicing and supporting products of the type for which it
is to be appointed as a Millennium Partner by eOn.
Now, therefore, in consideration of the premises and the mutual obligations
herein undertaken, the parties hereto, intending to be legally bound, agree as
follows:
I. DEFINITIONS.
As used in this Agreement, the following terms shall have the stated
meanings:
A. "Agreement" means this Millennium Partner Agreement, including
all Exhibits, referenced documents (if any) and any amendments
entered into by the parties by mutual written agreement.
B. "Price List" means eOn's Authorized Millennium Partner List
Price (as amended from time to time by eOn at its discretion)
in effect at the time each Millennium Partner order for
Products is accepted by eOn in accordance with the terms of
this Agreement.
C. "Point of Distribution eOn" means eOn's distribution facility
in the United States.
D. `Products" refer to the eOn Hardware and Software products
sold and/or licensed under this Agreement (as may be amended
from time to time by eOn at its discretion). The listing of
Products, which is current as of the date of execution of this
Agreement, is attached as Exhibit A, incorporated herein by
this reference, as amended from time to time by eOn.
E. "Qualifying Purchase" means the procurement of Products by
Millennium Partner for distribution by sale or (as applicable)
license in the Territory where (i) the Products were actually
delivered during the specified measurement period, or (ii) the
Products were not delivered but standard Purchase Orders (e.g.
Purchase Orders containing no terms in conflict with the terms
of this Agreement and requesting normal quantities and
delivery dates) were submitted to eOn at least thirty (30)
days prior to the requested delivery date and the requested
delivery date was within the specified measurement period.
Purchases by Millennium Partner of training literature,
documentation, support and similar items from eOn pursuant to
1
this Agreement also shall constitute Qualifying Purchases. The
amount of any Qualifying Purchase shall be determined by
utilizing the actual prices paid or payable by Millennium
Partner for the Products.
F. "Software" means the operating system computer programs and
related documentation supplied by eOn (whether developed by
eOn or acquired or licensed from third parties) under this
Agreement, whether delivered electronically or via magnetic
tape, floppy disk, hard disk, EPROM, semiconductor device or
other memory device, or system memory, including hardwired
logic instructions, microcode, and documentation used to
describe, maintain and use the programs. Any reference herein
to the "sale" by eOn or "purchase" by Millennium Partner or an
end-user of Software shall be deemed to mean the licensing of
such Software under eOn's standard license terms.
G. "Hardware" means the computer equipment and peripherals
supplied by eOn to Millennium Partner under this Agreement
H. "Territory" means the geographic locations defined in Exhibit
B, in which Millennium Partner is authorized to sell and
install the Products.
I. "End User" means a customer of Millennium Partner for the
license of Products in the Territory in accordance with this
Agreement.
J. "Change in Ownership" means sale or transfer of more than
twenty-five percent (25%) of the equity and/or the voting
control of Millennium Partner.
K. "Defaulting Party" means a party to this Agreement which fails
to fully perform any obligation to be performed by it
hereunder.
L. "Purchase Order"" means a written order delivered by
Millennium Partner to eOn conforming with the requirements
hereof.
M. "Trademarks" means all trademarks, trade names and service
marks owned by eOn at any time while this Agreement is in
effect.
N. "Program Year" means the twelve (12) month period beginning
August 1 through July 31.
II. APPOINTMENT.
A. eOn hereby appoints Millennium Partner and Millennium Partner
accepts a non-exclusive appointment to sell Products to
End-Users and provide support for such Products installed and
used in the Territory. Millennium Partner shall not market or
distribute the Products for installation outside the Territory
without eOn's prior written consent. Millennium Partner shall
defend, indemnify and hold eOn harmless from any claim, loss,
cost, damage or liability, including attorneys' fees, which
results from the unauthorized sale, license or installation of
the Products outside of the Territory by Millennium Partner.
eOn shall have no obligation to provide support of any kind to
Millennium Partner with respect to Products distributed by
Millennium Partner for installation outside of the Territory
in violation of the terms of this Agreement.
B. eOn is entering into this Agreement for the specific purpose
of facilitating the sale of and providing support for the
Products to end users. Millennium Partner agrees to promote,
offer to license and/or sell the Products only to end users
and not to third parties for resale by such third parties,
except with eOn's prior written consent.
C. Millennium Partner agrees to (i) license and pay for the
Products in accordance with the terms and conditions of this
Agreement, (ii) use appropriate efforts to solicit orders for,
promote and license the Products for installation in the
Territory, (iii) render to its customers high quality service
and support, and
2
(iv) provide to such customers the information and assistance
they require to make proper and effective use of the Products.
D. eOn agrees to provide the Products and related support
services in accordance with the terms and conditions of this
Agreement. eOn reserves the right, upon ninety (90) days prior
written notice to Millennium Partner, to cease manufacturing
or distributing any or all Products and, without prior notice,
to alter or change the design, construction or functionality
of the Products. In the event, eOn ceases to manufacture or
distribute Products, any orders that were accepted by eOn
prior to the ninety-first (91) day of such notice of cessation
will be filled in accordance with the terms of the accepted
orders.
E. While this Agreement is in effect and at all times thereafter,
eOn shall have the unrestricted right at its sole discretion
to sell and/or license Products in the Territory directly and
indirectly and to appoint other Millennium Partners in the
Territory.
III. TERM AND TERMINATION.
A. The term of this Agreement shall commence on the Effective
Date and continue for two (2) years thereafter, unless earlier
terminated as provided herein.
B. This Agreement may be terminated at any time by mutual,
written agreement of the parties. Termination of this
Agreement other than by mutual agreement shall be in
accordance with the provisions of one or more of the following
Subsections:
1. If either party fails to comply with any provision of
this Agreement or fails to perform any obligation
under this Agreement, the other party may notify the
Defaulting Party in writing of the default and the
Defaulting Party shall have a period of thirty (30)
days from receipt of notice to cure the default. If,
at the end of said thirty (30) day period the
Defaulting Party has not cured the default, the other
party may immediately terminate this Agreement or in
the case of the Millennium Partner being the
Defaulting Party, eOn may convert Millennium Partner
to the appropriate Millennium Partner tier based upon
the nature of the default by giving written notice to
that effect to the Defaulting Party.
2. This Agreement may be terminated by either party,
upon written notice of termination to the other, in
the event (i) a bankruptcy, reorganization, or
insolvency proceeding is initiated against the other
party and is not dismissed within thirty (30) days
thereafter, (ii) a receiver is appointed for the
other party, or (iii) a substantial part of the
business assets of the other party are the subject of
an attachment, sequestration or other related
judicial proceeding.
3. This Agreement may be terminated immediately by eOn
by written notice to Millennium Partner if Millennium
Partner acquires or is acquired by any business
entity which sells or develops products or services
competitive with the business activities of eOn
(Products or services) or its parent, subsidiaries or
affiliates.
C. In the event of termination of this Agreement pursuant to
Section III B, the terminating party shall have the right upon
prior written notice to the other party within ten (10) days
of termination, to the other, to require full performance by
both parties of any Purchase Orders accepted by eOn prior to
termination. Upon Agreement termination, except with respect
to any such Purchase Orders, all Purchase Orders shall be
effective.
D. Immediately upon Agreement termination, all amounts owing by
either party to the other shall become immediately due and
payable notwithstanding prior terms of sale, and the owing
party shall remit immediately to the other party all sums due
and owing to such party.
E. Termination of this Agreement for any reason shall not relieve
either party from any liability that at the time of
termination has already accrued to the other party hereto or
which thereafter may accrue in respect
3
of any act or omission prior to termination, or from any
obligation which is expressly stated herein to survive
termination.
F If termination is pursuant to Section III B.3 where eOn
believes the acquiring party will gain access to confidential
and proprietary information of eOn, Millennium Partner shall
be able to maintain but not expand previously sold and
installed Products.
G. The parties recognize that termination of this Agreement in
accordance with its terms may result in loss or damage to
either party but hereby agree that except as expressly set
forth in this Agreement, neither party will be liable to the
other for any loss or damage resulting from such termination
(including, without limitation, special, consequential or
indirect loss or any loss of prospective profits or any
damages occasioned by loss of goodwill) or by reason of
expenditures, investments, leases or commitments made in
anticipation of the Agreement continuation.
H. Upon termination of this Agreement, Millennium Partner shall
immediately return to eOn or destroy (and certify in writing
to eOn that destruction has occurred) all eOn marketing and
product literature, technical documentation and other eOn
publications not required for the ongoing service and support
of Millennium Partner's installed base of Products in
accordance with the terms hereof.
I. Upon termination of this Agreement, Millennium Partner shall
immediately terminate any and all use of the Trademarks.
J. The provisions of this Agreement relating to Trademarks,
Confidentiality, Limitation of Liability, General Indemnity,
and Attorneys' Fees shall survive any termination or
expiration of this Agreement.
IV. ORDERS; FEES AND CHARGES.
A. Submission of Orders. Millennium Partner shall, from time to
time, submit written Purchase Orders for Products referencing
this Agreement, the Products and quantity ordered, price for
the Products including any applicable discounts, and the
requested shipment dates. No Purchase Order shall constitute
an obligation of eOn until accepted by eOn. eOn shall endeavor
to accept Purchase Orders within ten (10) business days of
receipt. All Purchase Orders are deemed accepted by eOn upon
shipment of the Products by eOn. The terms and conditions of
this Agreement shall govern all Purchase Orders and any
additional terms and conditions on Millennium Partner's
Purchase Order form whether consistent or inconsistent with
the provisions hereof shall have no force or effect.
B. Fees and Charges. The amounts to be paid by Millennium Partner
to eOn for Products are the applicable price set forth in the
Authorized Millennium Partner Price List, less applicable
discounts, more particularly described in Exhibit B. All
prices shall be Point of Distribution eOn. eOn may increase or
decrease prices on the Price List at any time and from time to
time by providing a minimum of thirty (30) days' prior written
notice of Price List changes to Millennium Partner. Millennium
Partner shall determine for itself the price at which
Millennium Partner sells and/or licenses (as applicable)
Products to end-users.
C. Taxes. The amount of any present or future sales, revenue,
excise, VAT, use or other taxes, import or export duties,
fees, or other charges of any nature, imposed by any public
authority (national, state, local or other) applicable to the
Products, or the manufacture or sale thereof, shall be added
to the purchase price and shall be paid by Millennium Partner,
or in lieu thereof, Millennium Partner shall provide eOn with
a tax exemption certificate acceptable to the applicable tax
authority.
D. Rescheduling. In the event eOn agrees to reconfigure or change
Products, delay shipment, or cancel a Purchase Order for the
Products at Millennium Partner's request, eOn shall be
entitled to impose
4
reasonable reconfiguration, change, delay or restocking
charges in accordance with eOn's published prices and standard
practices.
V. PAYMENT TERMS.
A. eOn will invoice Millennium Partner upon placement of an order
for Product or delivery of services. Invoices are due and
payable upon issuance. Any invoice not paid in full within
forty-five (45) days of the invoice date shall bear interest
at the rate of 1.5% per month or the maximum lawful rate,
whichever is less. All prices are and all payments shall be
made in United States dollars.
VI. PURCHASE OBLIGATION; SHIPMENT AND RISK OF LOSS; CREDIT.
A. During each twelve (12) month Program Year of this Agreement,
Millennium Partner shall make total Qualifying Purchases equal
to or exceeding the level specified in Exhibit B of this
Agreement. The level of Qualifying Purchases will be prorated
accordingly for new Millennium Partners whose appointment
occurs after August 1 of a given Program Year. If Millennium
Partner fails to make the Qualifying Purchases during any
twelve (12) month period, eOn may, at its option, immediately
terminate this Agreement or may convert Millennium Partner to
the appropriate Millennium Partner level by giving written
notice to that effect, to the Millennium Partner.
B. Purchase Forecasts. Millennium Partner shall provide eOn with
a good faith non-binding, monthly forecast of the quantity of
Products Millennium Partner expects to purchase each month
during the following six (6) months or as deemed appropriate.
C. Shipment, Risk of Loss
1. Shipment. eOn will make reasonable efforts to deliver
the Products to a common carrier by the requested
shipment date set forth in the applicable Purchase
Order. All freight, insurance, handling, forwarding
agent's fees, taxes and storage, and all other
charges applicable to the Products from the time they
are placed in the possession of a carrier at eOn's
dock shall be borne by Millennium Partner. eOn may
ship Products in advance of the requested shipment
date provided that Millennium Partner's written
consent shall be required for any shipment which
precedes the requested shipment date by more than
five (5) business days. Products may be shipped in a
single shipment or in multiple shipments. eOn shall
have no liability to Millennium Partner as a result
of shipment delays or failure to ship Products on the
requested shipment date which delays or failures are
not solely caused by eOn.
2. Risk of Loss. Millennium Partner shall insure all
Products in transit. Possession of and risk of loss
for the Products shall pass to Millennium Partner
upon delivery to a common carrier at Point of
Distribution eOn. Upon receipt of Products by
Millennium Partner, Millennium Partner or its agents
shall carefully inspect all Products. Millennium
Partner shall notify eOn within five (5) business
days of receipt of any defects in Products discovered
by Millennium Partner.
D. 1. eOn shall determine, in its sole discretion, the
amount (if any) and terms of credit to grant to
Millennium Partner for Product purchases, as a case
by case exception to the payment provisions of the
Agreement. Any such credit granted may be increased
or reduced in amount or discontinued at any time by
eOn upon written notice to Millennium Partner.
2. In the event that eOn becomes entitled to terminate
this Agreement or in the event that Millennium
Partner:
5
i. fails to issue or maintain any required letters of
credit;
ii. fails to provide any required guarantees or security;
iii. allows its account with eOn to become past due; or
iv. requests delivery of Products which would cause the
total amount owed by Millennium Partner to exceed the
credit limits established by eOn, then in addition to
all other remedies available to eOn,
eOn may withhold further deliveries of Products until
Millennium Partner corrects the circumstances which caused eOn
to withhold delivery.
E. Acceptance and endorsement by eOn of any check, draft or other
instrument from Millennium Partner for less than the full
amount eOn claims to be due and payable shall not be deemed to
be an admission of payment in full notwithstanding any
conditions to the contrary which are noted thereon.
VII. SOFTWARE UPDATES, ENHANCEMENTS AND ENGINEERING CHANGE ORDERS.
A. Software Updates. Software Updates are defined as a change
that corrects software errors that could cause a failure of a
Product, which are generally made available by eOn to current
licensees of the Product who are under a maintenance agreement
with eOn. eOn will make Software Updates, along with
appropriate notification and Release Notes, available to
Millennium Partner during the term of this Agreement. Software
Updates will be provided to Millennium Partner after
termination of this Agreement subject to the terms hereof.
B. Software Enhancements. Software enhancements are changes to a
Product that increase the functionality or improve performance
where such improvements are not required to prevent failure of
the Product. Upon release of any Software Enhancement to the
Product which such release is generally made available by eOn
to current licensees of the Product who are under a
maintenance agreement with eOn, eOn will make such Software
Enhancement and accompanying Release Notes available to
Millennium Partner at its then current published prices for
Software Enhancement, less applicable discounts and prompt
payment terms.
VIII. END USER INFORMATION AND SURVEYS.
A. Upon request from eOn and subject to the Confidentiality
provisions of this Agreement, Millennium Partner shall provide
eOn with the company name and installation address of end
users to enable eOn to maintain a database of all end users of
the Products for the purpose of service and support compliance
by eOn. A completed Millennium Customer Registration Form will
be returned to eOn by the Millennium Partner for each system
sold.
B. Millennium Partner will assist eOn in periodic end-user
surveys (a customer satisfaction survey) in the Territory to
determine satisfaction with the Products and with Millennium
Partner's and eOn's service/support. eOn shall notify
Millennium Partner in writing at least thirty (30) days prior
to commencing any such survey and will report the results to
Millennium Partner. Millennium Partner shall immediately
correct any service deficiencies in accordance with the
standards established herein.
IX. OTHER MILLENNIUM PARTNER OBLIGATIONS.
A. For new Millennium Partners, ( with no prior Millennium
reseller relationship with eOn), Millennium Partner will
purchase and license from eOn, within thirty (30) days of the
Effective Date of this Agreement, the Products set forth in
Exhibit C. Products are to be used by Millennium Partner for
training, technical support, and sales demonstrations.
6
B. Upon request from other eOn Millennium Partners or resellers,
Millennium Partner will provide prompt assistance in the
implementation and support of systems involving Products
installed in the Territory. Millennium Partner will be
compensated for such assistance and support in accordance with
eOn's then current Millennium Partner compensation rates, as
applicable.
C. Insurance. During the term of this Agreement, Millennium
Partner will maintain in full force and effect with a company
and in such form as is reasonably acceptable to eOn, insurance
coverage of the type and in the amounts set forth in Exhibit
D, incorporated herein by this reference.
D. General Indemnity. Millennium Partner will indemnify and hold
eOn harmless from and against any and all losses, damages,
claims, liabilities, costs and expenses (including reasonable
attorneys' fees) resulting from: (i) any breach by Millennium
Partner of this Agreement or any agreements between Millennium
Partner and its customers relating to Products or service and
support thereof; (ii) any claims raised by Millennium
Partner's subsidiaries or affiliates or customers in
connection with or arising out of the subject matter of this
Agreement or any agreements between Millennium Partner
(including its subsidiaries or affiliates) and its customers;
or (iii) any claims that may be made by reason of any act or
omission of Millennium Partner or its subsidiaries or
affiliates.
X. EON SALES SUPPORT.
A. eOn will assign a Regional Sales Manager (RSM) to support
Millennium Partner and serve as the Millennium Partner's
primary contact with eOn.
B. eOn RSM's and other eOn personnel as appropriate, will provide
periodic sales training classes (covering both the Products
and selling skills) for Millennium Partner's employees to be
conducted at eOn's facilities, or at other locations, at eOn's
discretion.
XI. OTHER MILLENNIUM PARTNER BENEFITS.
A. During the Agreement term, Millennium Partner is authorized to
use the following eOn service xxxx in connection with the
marketing, sale and support of the Products as specified in
this Agreement: eOn(R) Authorized Millennium Partner.
Millennium Partner agrees to make regular and consistent use
of the xxxx in promotional materials, advertising, building
signs, business cards, letterhead and the like in a manner
acceptable to eOn.
B. eOn may at its discretion, make available additional marketing
programs to eOn Millennium Partners in good standing who meet
specific program criteria and qualifications.
XII. OTHER OBLIGATIONS.
A. eOn will use all reasonable efforts to maintain and
disseminate accurate descriptive information regarding the
Products. If Millennium Partner becomes aware of any as
inaccurate or incomplete information relating to Products,
Millennium Partner will promptly advise eOn in writing of the
inaccuracy or incompleteness. eOn will, at its expense,
provide revised Product literature with the corrected
information.
B. eOn shall supply Millennium Partner with reasonable quantities
of eOn's standard promotional materials for the Products in
the English language. Such materials shall include data
sheets, catalogs, brochures, and reprints of its advertising
art and shall be made available at eOn's then current
published prices for such materials. These materials may be
translated into other languages by Millennium Partner provided
that Millennium Partner reproduces eOn's copyright notice and
includes the language "Adapted and reproduced with the
permission of eOn Communications Corporation" with eOn's
copyright notice.
C. Training. eOn shall periodically provide training classes for
Millennium Partner's personnel (and personnel of other
Millennium Partners and/or resellers) in the installation,
configuration and service of
7
the Products. Millennium Partner's employees shall be entitled
to attend such classes on a first come-first served basis in
accordance with rules and procedures established by eOn. All
expenses for Millennium Partner's personnel attending eOn
training classes, including travel, salary and accommodations,
shall be borne by Millennium Partner. Millennium Partner shall
pay eOn's then current published charges for attending such
classes, less any applicable discounts. In the event
Millennium Partner desires that eOn provide training for
Millennium Partner's personnel at a location other than eOn's
training facility, Millennium Partner shall so advise eOn and
eOn shall make reasonable efforts to accommodate Millennium
Partner's needs (subject to mutual agreement on timing,
location and on how related costs and expenses will be borne
by each of them).
D. Service and Support
1. End User Service and Support. Millennium Partner
agrees to provide high quality service and support on
a consistent basis and at reasonable rates to all end
users of Products purchased from Millennium Partner
for the life of the Products. Millennium Partner
shall at all times employ sufficient numbers of
qualified and trained personnel to provide such
service and support for Millennium Partner's customer
base of Products. At a minimum, Millennium Partner
shall employ at least one full-time customer service
employee who has successfully completed eOn's
technical training for the Products (or is otherwise
certified by eOn as qualified to install, configure,
maintain, service and support the Products in the
Territory). Millennium Partner will cause additional
customer service personnel to be trained in
proportion to the size of Millennium Partner's
customer base of Products, based on Millennium
Partner's experience and eOn's recommendations.
2. Product Documentation. eOn shall provide Millennium
Partner with eOn's standard documentation for the
Products in the English language. Such documentation
shall be suitable for the management, installation,
maintenance, and configuration of the Products. eOn
also shall provide Millennium Partner with periodic
updates to the documentation as necessary to maintain
the accuracy of the documentation as changes are made
to the Products. Millennium Partner shall pay eOn's
then current published prices for all such
documentation.
3. Technical Assistance. eOn shall provide centralized
technical assistance and consultation via the
telephone or other electronic means to Millennium
Partner regarding the Products in accordance with
eOn's then current standard practices and published
charges for such services.
XIII. CONFIDENTIALITY.
A. Company and eOn for their mutual benefit pursuant to a working
relationship which has been or may be established anticipate
that they may have access to or disclose or deliver to each
other certain information relating to the other party and
which is of a confidential or proprietary nature, hereinafter
referred to as "Confidential Information."
B. Confidential Information may be in any form, including without
limitation, oral, written, graphic, demonstrative, machine
recognizable or sample form, whether or not such material has
been identified as proprietary or confidential. Confidential
Information may also include but not be limited to, technical
and business information on Company or eOn relating to:
1. current and proposed products;
2. current and proposed developments;
3. technical, engineering and test data;
4. financial information;
5. sales and marketing plans and business
strategies;
6. present and potential customers and vendors.
8
C. Each party agrees that at all times it shall keep in
confidence all Confidential Information of the other party,
which may be disclosed from time to time; and each party
agrees that it will exercise the same degree of care to
preserve and safeguard the other party's Confidential
Information as it takes to protect its own Confidential
Information of similar importance.
D. Each party agrees that it shall not publish, disseminate, copy
or disclose to any person any Confidential Information of the
other party without written approval of such party, and shall
not use such Confidential Information for any purpose other
than the contractual and prospective business arrangements
between the two parties. Confidential Information may be
disclosed to recipient's affiliates, contractors, and
subcontractors only upon separate written approval by
disclosing party, and all such affiliates, contractors, and
subcontractors shall be bound in writing to comply with the
conditions set forth in this Agreement.
E. Each party hereby agrees to indemnify the other for any loss,
damage or injury, however arising and including attorneys'
fees, arising from the disclosure of Confidential Information
in violation of this Agreement, or arising from any claim that
its possession and use of the Confidential Information or
other information, in each case disclosed to it pursuant to
this Agreement, violates the proprietary rights of a third
party.
F. In no event shall either party be deemed to have any right or
interest in or to any Confidential Information of the other
party. This Agreement does not offer or grant to the receiving
party any right in or license under any present or future
patent, patent application, trademark, copyright or trade
secret of the disclosing party, and the disclosure of any
confidential or proprietary information to the receiving party
hereunder shall not constitute any representation, warranty,
assurance, guarantee or inducement by the disclosing party to
the receiving party with respect to the infringement of
patents or other rights of third parties.
G. Each party agrees, if requested, to return to the other party
all Confidential Information belonging to such other party
(including all copies hereof), or to destroy all such
Confidential Information and certify such destruction to the
requesting party.
H. Nothing in this Agreement shall be construed to impose a
confidentiality obligation upon either party in connection
with information:
1. Which was in the public domain at the time
of transmission or thereafter enters the
public domain without breach of this
Agreement by the receiving party; or
2. Which was known and can be shown to be known
to the receiving party at the time of
transmission; or
3. Which is disclosed with the written approval
of the disclosing party; or
4. Which was independently developed by the
receiving party and can be shown to have
been independently developed; or
5. Which becomes known by legal means to the
receiving party from a source other than the
disclosing party without breach of this
Agreement by the receiving party; or
6. Which is required to be disclosed by
judicial action so long as prior written
notice of a party's intention to disclose
pursuant to judicial shall have been given
to the other party.
9
XIV. SOFTWARE LICENSE; TRADEMARKS.
A. Nonexclusive License. eOn hereby grants to Millennium Partner
a personal, nontransferable and nonexclusive license for and
during the Agreement term to use the Software within
Millennium Partner's business organization with and as part of
the Products for evaluation, demonstration and support of its
End-User's as specified herein. Title to all Software,
including modifications, adaptations, translations and
derivatives, all know-how and all proprietary rights shall at
all times remain with eOn and/or its suppliers. Millennium
Partner shall neither have nor assert ownership of the
Software either for itself or on behalf of any third party.
B. Software License Limitations. The Software and documentation
are protected under applicable patent, copyright and/or trade
secret laws and contain confidential and proprietary
information of eOn and its licensors. Millennium Partner shall
abide by the terms of any proprietary notices or markings, and
shall use the documentation and Software only for purposes
contemplated by this Agreement, and shall not disclose to
others or reproduce Software, unless specifically authorized
by eOn. Millennium Partner shall be liable for all loss or
damage to eOn from any failure to so abide or from any
unauthorized disclosure of the documentation or Software to
any other party. Millennium Partner shall not duplicate,
modify, disassemble, de-compile, reverse engineer, re-host,
retarget or perform competitive analysis on the Software.
Millennium Partner's right to distribute shall also extend to
any revisions to Software as are supplied by eOn and accepted
by Millennium Partner during the term of this Agreement.
C. Use of Trademarks by Millennium Partner. Millennium Partner
may, with eOn's prior written consent, use certain Trademarks
in connection with the business of marketing and selling the
Products for installation in the Territory, subject to the
terms and conditions set forth herein, and shall not use the
Trademarks in any other manner without the express written
consent of eOn.
1. Millennium Partner shall submit to eOn for the prior
written approval of eOn in each case all proposed
advertising and other promotional literature or
material in which Millennium Partner desires to use
any of the Trademarks or eOn's name. All advertising
and other material utilizing any Trademarks shall
include such statements or other identifying
references as may be requested by eOn.
2. Millennium Partner acknowledges that all right,
title, and interest in and to all the Trademarks in
connection with the marketing and sale of Products
lies solely with eOn. Millennium Partner agrees not
to engage in any activities or commit any acts,
directly or indirectly, which may contest, dispute,
or otherwise impair such right, title, or interest of
eOn therein. Millennium Partner shall neither acquire
nor claim any right, title or interest in or to
Trademarks adverse to the rights of eOn whether by
virtue of this Agreement or through any use by
Millennium Partner of the Trademarks which may be
permitted by eOn through advertising and sale of the
Products or otherwise. The parties agree that any and
all uses of such Trademarks by Millennium Partner as
may be permitted by eOn herein or in writing from
time to time shall be in such manner as to inure at
all times to the benefit of eOn.
3. Millennium Partner shall not utilize in connection
with any of the Products, including the promotion,
distribution, and sale of any of the Products, any
trademark other than the Trademarks without obtaining
the prior written authorization of such use from eOn.
4. If any trademarks, trade names or service marks of
Millennium Partner are used by Millennium Partner in
combination with the Trademarks in such manner as to
be distinctive, such distinctive features and
associated goodwill thereof shall become the property
of and inure to the benefit of eOn, and Millennium
Partner shall, without any payment or other
consideration, execute such documents as are
necessary to assign all rights thereto to eOn.
10
5. If Millennium Partner learns of any infringing use of
the Trademarks, Millennium Partner shall promptly
report the details thereof to eOn and shall cooperate
with eOn in pursuing any remedies available to eOn or
Millennium Partner.
6. Millennium Partner agrees to immediately discontinue
all use of Trademarks upon termination or expiration
of this Agreement, except in connection with the sale
of Products purchased prior to termination or
expiration.
XV. PRODUCT WARRANTIES.
A eOn Limited Warranties
1. eOn warrants to Millennium Partner that the Products
will substantially perform in accordance with eOn's
user documentation. eOn will repair or replace any
hardware component which fails to conform to the
foregoing warranty at no charge to Millennium Partner
provided that eOn is notified of the nonconformity
during the warranty period. Defective hardware must
be returned to eOn (transportation charges prepaid)
during the warranty period for repair or replacement.
This warranty shall not apply to any Products which
have been altered or which have been repaired by
anyone other than eOn or eOn certified personnel,
which have not been maintained in accordance with any
handling or operating instructions supplied by eOn,
or which have been subjected to unusual physical or
electrical stress, misuse, abuse, negligence or
accidents.
2. eOn does not warrant that operation of Products will
be uninterrupted or error free, or that Software is
invulnerable to fraud or "hacking" and eOn hereby
disclaims all liability on account thereof.
3. EON FURNISHES THE ABOVE WARRANTIES IN LIEU OF ALL
OTHER WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. ANY AND ALL WARRANTIES SHALL BE
VOID AS TO SYSTEM COMPONENTS DAMAGED OR RENDERED
UNSERVICEABLE BY: (1) THE ACTS OR OMISSIONS OF
NON-EON PERSONNEL, OTHER THAN SUBCONTRACTORS EMPLOYED
BY EON. (2) MISUSE, THEFT, VANDALISM, LIGHTNING,
NEGLIGENCE, ACCIDENT, FIRE, WATER OR OTHER PERILS.
(3) MOVING, RELOCATION, ALTERATION OF OR ADDITIONS TO
THE SYSTEM NOT AUTHORIZED BY EON. NO OTHER
WARRANTIES, WRITTEN, OR ORAL, STATUTORY, EXPRESS OR
IMPLIED SHALL APPLY TO THE SYSTEM. THE WARRANTIES IN
THIS SECTION XV., ARE THE ONLY WARRANTIES MADE BY EON
WITH RESPECT TO THE SYSTEM OR OTHERWISE.
B. Millennium Partner Warranties To Its Customers.
1. Millennium Partner shall make no representations to
third parties regarding the performance or functional
capabilities or characteristics of the Products
beyond those stated in eOn's then current warranty
statement, or as otherwise expressly authorized by
eOn in writing.
2. eOn makes no warranty to Millennium Partner's
customers.
3. Millennium Partner shall indemnify and hold eOn
harmless from and against any claims, losses, costs,
damages or liabilities which result from Millennium
Partner's failure to comply with the provisions of
Subsection B.1 or which are based on warranties
provided by Millennium Partner to its customers with
respect to the Products.
11
XVI. INTELLECTUAL PROPERTY INDEMNIFICATION.
A. Notwithstanding Section XVIII A., and subject to the
provisions hereof, eOn shall defend, at its expense, any
action brought against Millennium Partner based on a claim
that a Product, when used in accordance with the terms of this
Agreement, infringes a patent or copyright in within the
Territory, provided eOn is notified promptly in writing by
Millennium Partner of the claim, is given sole control of the
defense and settlement, and is provided all reasonable
assistance by Millennium Partner in connection therewith. eOn
shall pay any costs, settlements and damages finally awarded
against Millennium Partner in connection with the claims. If
any Product is finally adjudged to so infringe, or in eOn's
opinion such a claim is likely to succeed, eOn will, at its
option: (i) procure for Millennium Partner the right to
continue using the Product in the Territory; (ii) modify or
replace the infringing Product so there is no infringement; or
(iii) refund the purchase price thereof to Millennium Partner,
less a reasonable allowance for depreciation and use.
B. eOn shall have no liability regarding any claim arising out
of: (a) use of other than the then current, unaltered release
of the Product, unless the infringing portion is also in the
then current, unaltered release; (b) use of the Product in
combination with non-eOn software, data or equipment if the
infringement was caused by such use or combination; (c) any
modification or marking of the Product not specifically
authorized in writing by eOn; or (d) third party software.
C. THE FOREGOING STATES THE ENTIRE LIABILITY OF EON AND THE
EXCLUSIVE REMEDY FOR MILLENNIUM PARTNER RELATING TO
INFRINGEMENT OF ANY PATENTS, COPYRIGHTS, MASK WORK RIGHTS,
TRADE SECRETS OR OTHER INTELLECTUAL PROPERTY RIGHTS BY THE
PRODUCTS AND THE PROVISIONS THEREOF ARE IN LIEU OF ANY OTHER
EXPRESSED, IMPLIED OR STATUTORY WARRANTY AGAINST INFRINGEMENT.
D. Millennium Partner shall hold eOn harmless from and against
any expense or loss resulting from infringement of patents,
copyrights, trademarks or other intellectual property rights
arising from compliance with Millennium Partner's designs,
specifications or instructions or resulting from Millennium
Partner's combination of the Products with devices or elements
not provided by eOn. License of the Products by eOn does not
convey any license, by implication, estoppel or otherwise,
under patent claims covering combinations of the Products with
other devices or elements.
XVIII. LIMITATION OF LIABILITY.
A. EON'S ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL BE FOR
DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT ACTUALLY
RECEIVED BY EON FROM MILLENNIUM PARTNER IN THE TWELVE MONTH
PERIOD IMMEDIATELY PRECEDING THE CLAIM. EXCEPT WITH RESPECT TO
CLAIMS BY EON FOR DAMAGES RELATING TO THE MISAPPROPRIATION OF
EON'S INTELLECTUAL PROPERTY, INFRINGEMENT, OR MISUSE OF EON'S
CONFIDENTIAL INFORMATION, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES OR FOR COMMERCIAL LOSS, WHETHER OR NOT FORESEEABLE,
ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT OR ITS
PERFORMANCE, PARTIAL PERFORMANCE OR NONPERFORMANCE.
XIX. ARBITRATION
Any disputes under this Agreement shall be resolved by binding
arbitration ("Arbitration"). In the event of a dispute, either
party hereto may make written demand on the other party hereto
that the matter be submitted to Arbitration pursuant to the
rules of the American Arbitration Association. Prior to
submission of the dispute to Arbitration, and within twenty
(20) days of the written demand, the
12
demanding party shall provide the other party with a written
notice setting forth the matters disputed and that party's
proposed resolution of those matters. If within twenty (20)
days thereafter, the other party does not agree to the
proposed resolution, the demanding party may proceed with the
Arbitration according to the rules of the American Arbitration
Association. The determination of the arbitrator shall be
conclusive of all matters, both factual and legal. The costs
of any Arbitration, including attorney's fees, shall be
awarded to the prevailing party.
XX. GENERAL.
A. All notices, orders, acceptances and communications between
the parties hereunder shall be in writing in the English
language (by mail, facsimile, telex or telegraph), postage or
transmission costs prepaid, and shall be addressed to the
parties at their Notice Addresses. All such notices, orders,
acceptances and communications shall be deemed properly given
when received by the party to whom it is addressed. Until
changed by written notice given in accordance with the terms
hereof, the notice address (the "Notice Address") of each
party shall be the address following such party's name in the
introduction to this Agreement.
B. This Agreement shall be governed by and construed in
accordance with the substantive laws of the United States,
without regard to the conflict of laws provisions thereof and
without regard to the UN Convention on Contracts for the
International Sale of Goods. Millennium Partner acknowledges
that the Products are subject to certain limitations under
United States export control laws and regulations. Millennium
Partner shall not re-export the Products outside the Territory
and shall obtain an agreement from its customers and end-users
not to re-export the Products outside the Territory without
first obtaining any necessary licenses from applicable
governmental authorities.
C. Millennium Partner may not assign or transfer in whole or in
part any of Millennium Partner's rights or delegate any of
Millennium Partner's obligations under this Agreement, without
the prior written consent of eOn. In the event of any Change
of Ownership, Millennium Partner shall immediately provide eOn
with written notice thereof.
D. The relationship of the parties is that of independent
contractors. No partnership, joint venture, franchise, agency,
employment, fiduciary or other similar relationship is created
by this Agreement. Neither party has any express or implied
authorities to incur any obligation for or in any manner
otherwise make any commitments on behalf of the other party.
Millennium Partner shall employ its own personnel and shall be
responsible for them and their acts and eOn shall not be
liable to Millennium Partner, its employees, or third parties
for any losses, injuries, damages, or the like occasioned by
Millennium Partner's activities in connection with this
Agreement, except as expressly provided herein. Millennium
Partner shall be solely responsible for, and shall indemnify
and hold eOn harmless from all claims, damages, or lawsuits
arising out of the acts or omissions of Millennium Partner,
its employees, servants, or agents in connection with this
Agreement.
E. Any failure by either party to enforce at any time any of the
provisions, including without limitation, the termination
provisions of this Agreement, shall not be construed to be a
waiver of such provision or of the right of either party
thereafter to enforce such provision.
F. In the event either party institutes legal action (including
arbitration) to enforce its rights under this Agreement, the
prevailing party in such action shall be entitled to recover
reasonable attorneys' fees and other costs of prosecuting the
action in the amount allowed by the court or arbitrators.
G. All provisions of this Agreement shall be considered as
separate terms and conditions, and in the event any one shall
be held illegal, invalid, or unenforceable, all the other
provisions hereof shall remain in full force and effect, as if
the illegal, invalid, or unenforceable provisions were not a
part hereof.
13
H. Either party's performance of any part of this Agreement will
be excused to the extent that such performance is hindered,
delayed or otherwise made impractical by: 1) the acts or
omissions of the other party; 2) fires, floods, riots,
strikes, labor disputes, freight embargoes, transportation
delays, inability to secure fuel, material, supplies,
equipment or power at commercially reasonable prices, acts of
nature, acts of God or of the public enemy or acts of any
federal, state or local government; or 3) any other cause
(whether similar or dissimilar to those listed) beyond the
reasonable control of the party whose performance is affected.
If any such event occurs, the party whose performance is
affected will notify the other party of the nature of the
condition and the extent of the delay, and will make a
reasonable, good faith effort to resume performance as soon as
practicable.
I. All of the Millennium Partner's obligations of confidentiality
and all of eOn's representations and warranties set out in
this agreement as well as the provisions concerning indemnity
against third party claims, royalties and infringement,
intellectual property rights and accounts and audit shall
survive the expiry of the agreement or the termination of the
agreement, as shall any other provision of the agreement
which, by the nature of the rights or obligations set out
therein, might reasonably be expected to be intended to so
survive.
J. If any provision of the Agreement is declared by a court
competent jurisdiction to be invalid, illegal or
unenforceable, such provision shall be severed from the
Agreement and all other provisions of the Agreement shall
remain in full force and effect.
K. Millennium Partner agrees to allow eOn to issue a press
release regarding execution of this Agreement and/or the sales
to end-customers. The press release language and timing of
release will be by mutual agreement of eOn and Millennium
Partner. The Millennium Partner also agrees to serve as
reference site and will, with reasonable advance notice,
provide comments regarding the responsiveness and performance
of eOn and its products to other potential eOn customers
and/or partners.
L. This Agreement shall be governed by and construed according to
the laws of the state of Georgia, without regard to the
conflict of laws provisions thereof.
M. Any headings and titles used in this Agreement are for
convenience only. They are not part of this Agreement and
shall not be referred to in interpreting and construing terms
and conditions hereof.
N. The body of this Agreement, and all Exhibits referred hereto
are a part of this Agreement and are incorporated herein by
reference, and together constitute the sole and entire
agreement of the parties with respect to the subject matter
hereof. This Agreement supersedes and replaces any prior or
contemporaneous discussions, proposals and representations,
and may be modified only by written instrument and signed by
the party sought to be bound.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
eOn Communications Corporation Millennium Partner
By: By:
---------------------------- -----------------------------
Name: Name:
-------------------------- ---------------------------
Title: Title:
------------------------- --------------------------
Date: Date:
-------------------------- ---------------------------
14
EXHIBIT A
EON COMMUNICATIONS CORPORATION PRODUCT LISTING
MILLENNIUM PBX
MILLENNIUM CALL CENTER
MILLENNIUM VOICE PROCESSING SYSTEM
MILLENNIUM CTI
MILLENNIUM DESKTOP
MILLENNIUM NAVIGATOR
15
EXHIBIT B
EON COMMUNICATIONS CORPORATION MILLENNIUM PARTNER PRICING AND TERRITORY
MILLENNIUM PARTNER IS HEREBY APPOINTED AS AN EON COMMUNICATIONS AUTHORIZED
MILLENNIUM PARTNER AT THE _____________________________ LEVEL.
MILLENNIUM PARTNER'S PRODUCT COSTS FROM EON ARE ESTABLISHED AS THE CURRENT EON
AUTHORIZED MILLENNIUM PARTNER PRICE LIST, LESS A DISCOUNT OF_____________%
(PERCENT).
initialed by eOn: initialed by Millennium Partner:
--------- -----------
MILLENNIUM PARTNER'S AUTHORIZED TERRITORY IS DEFINED AS:
Generally a one hundred (100) mile radius of Millennium Partner's principal
business address, along with other territory considerations hereof:
initialed by eOn: initialed by Millennium Partner:
--------- -----------
16
EXHIBIT C
EON COMMUNICATION CORPORATION SALES DEMONSTRATION SYSTEMS
1. An operational eOn Communications Millennium system, including
analog and digital telephone interfaces.
2. An appropriate number of digital or analog telephone sets
3. Optionally, other eOn Millennium applications (eVPS,
Navigator, Millennium CTI, etc.), as appropriate.
17
EXHIBIT D
MILLENNIUM PARTNER INSURANCE COVERAGE REQUIREMENTS
Millennium Partner will keep in full force and effect Commercial General
Liability Insurance, including:
PRODUCT LIABILITY AND COMPLETED OPERATIONS COVERAGE IN AMOUNTS OF NOT LESS THAN
$100,000 PER PERSON,
$500,000 PER OCCURRENCE FOR PERSONAL INJURY OR DEATH AND PROPERTY DAMAGE,
AUTOMOBILE LIABILITY AND PROPERTY DAMAGE INSURANCE ON VEHICLES USED IN
MILLENNIUM PARTNER'S BUSINESS,
WORKMEN'S COMPENSATION INSURANCE, AS REQUIRED BY THE LAW OF THE STATE OR STATES
IN WHICH MILLENNIUM PARTNER OPERATES.
Millennium Partner shall furnish eON with certificates of insurance indicating
the insurance carried by Millennium Partner and shall have its policies endorsed
to require that the insurance company give eOn ten (10) days notice in the event
of cancellation or non-renewal of any of these policies.
18
