AGREEMENT#: 365
VALUE ADDED RESELLER AGREEMENT
THIS RESELLER Agreement for the purchase of Equipment and license of Programs
(hereinafter 'Agreement") Is between Summa Four, Inc,, a Delaware Corporation,
with Its principal place of business at 00 Xxxxxxx Xxxxxx, Xxxxxxxxxx. Xxx
Xxxxxxxxx 00000-0000 (hereinafter "Summa Four) and the Reseller whose name and
address Is set forth below (hereinafter "Reseller"),
Reseller: Computer Business Sciences, Inc.
Address: 00-00 Xxx Xxxxxxx Xx.
Xxxx: Xxx Xxxxxxx
Xxxxx: New York
ZIP: 11415
WHEREAS, Summa Four is engaged in the manufacturing, sale and license worldwide
of communications equipment, and WHEREAS, Re~ markets and distributes
communications equipment and other services and support to its Customers and
desires to purchase and license Summa Few products and to combine such products
with Reseller's products, WHEREAS, Summa Four and Reseller desire to establish a
matter set of terms and conditions pursuant to which Summ Four shall sell and/or
license certain of its products to Reseller for subsequent resale and/or
sublicense by Reseller together With Re value added products and services to
Its; customers.
NOW THEREFORE the Parties agrees as follows:
I. In this Agreement the following expressions have the following meanings
unless the context denotes otherwise:
"Purchase Order", "Order means the Reseller's purchase order which shall
be subject to the terms of this Agreement whether referenced or not.
"Equipment" means the hardware equipment and peripheral devices purchased
by Reseller under this Agreement including that Equipment which is
identified by the Product numbers in Summa Four's published Price
Schedule.
'Designated Equipment" means the Equipment upon which Programs shall be
Installed and which is designated with a single Summa Four system serial
number.
"Documentation" means the user manuals, handbooks, demonstration software
packages and other materials provided by Summa Four for use in conjunction
with the Equipment and the Programs.
"Programs" means the software programs In object code form provided to the
Reseller pursuant to this Agreement by Summa Four as licensor or
sub-licensor, Including any subsequent updates, Improvements or
modifications which may be delivered to Reseller hereunder.
"Products" means the Equipment, the Programs and the Documentation,
collectively. Summa Four reserves the right to modify. add to or delete
from this Agreement the Products which may be available hereunder.
'Value Added Reseller, "Reseller" means a purchaser of Products which adds
substantial value to such Products (including but not limited to
application programs, hardware equipment, support, services, functional
and/or performance enhancements, etc.) ("Value Added Products" and resells
such Value Added products to its end-user Customers.
2. Appointment
2.1 Subject to the terms and conditions of this Agreement, Summa Four hereby
appoints the Reseller as a limited and non-exclusive Reseller to resell
the Value Added Products and sublicense the Programs to Its end user
customers. The Reseller shall not appoint a secondary or sub-distributor
or any other reseller to distribute the Value Added Products without Summa
Four's prior written notice. With respect to any sales contemplated by
Reseller outside of the United States, the provisions of Article 21 hereto
shall apply.
2.2 It is understood and agreed by Reseller that Summa Four shall have and
shall retain and any of Summa Four's affiliates, subsidiaries,
distributors, agents or other resellers may have and may retain at all
times the right, directly or Indirectly, to promote, market, sell, license
or otherwise distribute Products in any manner and to any and all
customers at all times throughout the world.
3. Reseller Obligations
3.1 In recognition of the particular expertise necessary to market and
distribute the Products and in consideration of the right to remain on
authorized Reseller of this Products throughout the duration of this
Agreement Reseller warrants and undertakes that:
3.1.1 It has and shall maintain tie capacity, facility, resources and personnel
necessary to perform Its obligations under this Agreement,
3.1.2 It shall use its best efforts to purchase and license the minimum
quantities of the Products in accordance with Reseller's Business Plan
forecast set out In Attachment A to Schedule 11:
3.1.3 It shall actively promote the Products and resell Value Added Products
only to its end-users all in a manner which reflects favorably an the
Products and reputation of Summa Four,
3.1.4 It shall make available to Its customers professional, prompt and
workmanlike Installation, timing, warranty and maintenance services;
3.1.5 It shall advise Summa Four regarding pertinent market information
concerning Summa Four, the Products, market developments and customer
inquiries regarding Products;
3.1.6 It shall license all Programs as specified In this Agreement:
3.1.7 It shall submit upon the date hereof and each quarter thereafter a rolling
forecast of Resellers requirements for the Products for the following
twelve (12) month period;
3.1.5 Upon execution of this Agreement by Reseller, Reseller will piece an order
for at lead one (1) Product system for Its sole use in the development and
support of additional application features and/or demonstration purposes.
The configurations and prices for such system will be determined by mutual
agreement of the parties.
4. Obligations of Summa Four
2
4.1 Summa Four shall:
4.1.1 Provide to Reseller such sales aids, data sheets end product brochures In
such quantities as may be required In support Its customers and In no
event any less than that which Is provided to other resellers;
4.1.2 Provide to Reseller technical assistance, Product updates and other
Information with respect to the Products as generally provided to other
resellers and/or as otherwise agreed to In the attached consulting
addendum;
4.1.3 Make available training classes for the operation and support of the
Products at times, rates and charges which are available to other
resellers and/or as specified In the attached consulting addendum.
5. Purchase of Equipment and License of Programs
5.1 From time to time throughout the term of this Agreement, Reseller may
place purchase Orders for Products and upon receipt and acceptance by
Summa Four, Summa Four will acknowledge such Order and advice Reseller of
the scheduled shipment date. All such Purchase Orders shall reference the
Agreement number specified above,
52 Except as otherwise provided for heroin. Reseller acknowledges and accepts
responsibility for the selection and subsequent use of the Products and
the results obtained thereby. Reseller also accepts responsibility for the
selection, operation, and results obtained from any other third party
equipment, programs, or services used In conjunction with the Products.
Prices and Discounts
0.1 The prices, license Ins, and other charges for the Products are got forth
in Summa Fours then current published Price Schedule which may be amended
by Summa Four from time to time throughout the term of this Agreement.
Summa Four's current published Xxx Schedule Is attached hereto as Schedule
1. Such Products shall be discounted In accordance with Summa Four's then
current Reseller Discount Schedule. - Summa Four's current Reseller
Discount Schedule Is attached hereto as Schedule II. All orders accepted
by Summa Four before the effective date of any price Increase shall be
Invoiced at the price originally accepted by Summa Four if shipment of
such Order is completed within ninety (90) days of such price increase.
All prices are expressed and all payments must be made In U.S dollars.
6.2 Prices are exclusive of all extraneous or additional charges includng all
federal, state, local, municipal, or other excise, sales, value added,
use, occupation, or similar taxes now In force or enacted In the future,
all of which we the responsibility of and shall be paid by the Reseller.
To the extent Summa Four is required to pay any such charges or taxes.
Summa Four shall Invoice the Reseller for any such payments and Reseller
xxxxxX reimburse Summa Four for such payment; within thirty (30) days of
the date of the invoice therefore. It shall be the Reseller's
responsibility to provide prior written verification to Summa Four of any
applicable tax exemptions.
7. Payment Terms
Payment terms for Products shall be 50% of the value of the order upon
placement of the order and the remaining 50% prior to the shipment from
Summa Four.
7.2 If Reseller fails to pay any amounts when payment Is due, the Reseller
shall pay Summa Four a late payment fee which shall be the lesser of 1.5%
per month or the maximum rate allowed by law on such unpaid amounts,
together with all costs and expenses Incurred by Summa Four in collecting
such overdue amounts.
3
8. Delivery Lead Time
Summa Four's normal delivery lead time for standard released Products is
within (30) days after receipt and acceptance by Summa Four of an Order.
Nevertheless, Summa Four shall always provide Reseller an acknowledgment
of the actual scheduled shipment date. Summa Four will use reasonable
efforts to meet the Reseller's requested delivery date If less than thirty
(30) days and will advise the Reseller if additional charges are required
to facilitate such expedited delivery. Summa Four will meet acknowledged
scheduled shipment dates subject to the extent that such Products are
standard, released Products which had been previously forecasted in
Reseller's quarterly Product forecasts. In such event Summa Four also
reserves the right to make early and/or partial shipment of Products, to
Reseller.
9. Shipment, Risk of Loss and Title
9.1 Unless otherwise requested by Reseller and agreed by the Parties, Summa
Four will select the methods and routes of shipment. All Products under
this Agreement shall be shipped to the Reseller, FOB, Summa Four's
factory, Manchester, New Hampshire (unions designated otherwise by Summa
Four). All transportation, rigging, cartage, and handling charges shall be
paid directly by the Reseller. Summa Four may, however. Invoke the
Reseller for any such charges If Summa Four is required to make any
payments or prepayments directly to the carrier. Summa Four shall have no
liability In connection with any shipment or for any loss or damage to the
Products while In transit. Upon request, shipments may be insured by Summa
Four at the Reseller's expense, In any went the Reseller shall be
responsible for making claims with carriers, insurers, warehousemen, and
others for misdelivery, non-delivery, loss, damage, or delay.
9.2 Title to Equipment and risk of loss for the entire Order shall pass to the
Reseller upon shipment at the F.O.B. point stated above (title to Programs
shall always remain vested In Summa Four or Its; licensors), Nevertheless,
until all Products are fully paid for by the Reseller. the passing of
title pursuant to the Uniform Commercial Code shall be deemed conditional.
10. Force Majeure
Neither Party will be liable for any failure to perform or delay In
performance of Its obligations hereunder (except Reseller's obligation to
make payments when due) caused by circumstances beyond its control
Including acts of God, fires, strikes, floods or other natural emergencies
or other unforseen and/or uncontrolliable events which makes performance
commercially impracticable.
11. Program License and Sublicense
11.1 In consideration of Reseller's payment of the appropriate license fees
-and charges, Summa Four hereby grants to Reseller (subject to the terms
and conditions of this Agreement) a non-exclusive non-transferable license
to use and/or sublicense the use of each Program to its customers only on
the Designated Equipment.
11.2 Title to Programs. Title to and ownership of Me Programs, including all
patents, copyrights. trade secrets and proprietary rights applicable
thereto, shall at all times remain solely and exclusively with Summa Four
(and/or Summa Four's third party licensor) and the Reseller agrees not to
take any action inconsistent with such title and ownership. Reseller
acknowledges and agrees that the Programs and Documentation are
proprietary to Summa Four, were developed at private expense and that no
portion of such Programs shall be construed as In the public domain.
11.3 Protection of Programs. Reseller and Reseller's customer shall protect
such Programs to no less extent" Reseller protects Its own proprietary
Programs. In any event and always in accordance with subarticle 11.6
below, Reseller and Its customers shall not, without the prior written
consent of Summa Four (which shall not be unreasonably withheld), disclose
or otherwise make available such Programs, In any form, to any third
person or entity. Neither Reseller nor Its customers shall translate,
reverse engineer, decompile or disassemble the Programs without the prior
written consent of
4
Summa Four. Reseller and/or Resellers customers may make one (1) copy of
each Program for back-up or archival purposes. Nevertheless, neither the
Reseller nor its customer shall remove or obscure any copyright patent,
trademark, trade secret, or similar notice affixed to any Program arid
shall reproduce and affix any such notice to any such copies of the
Programs.
11.4 Term of License. Summa Four may terminate any license of the Program
granted under this Agreement by written notice to the Reseller (who shall
notify its customer directly, If applicable) If the Reseller or its
customer falls to comply with any of the terms or conditions of this
Section 11. Within thirty (30) days after discontinued use of the Programs
by Reseller or Its end-user customer, as appropriate, or within ten (10)
days after Summa Four has terminated any license, the Reseller shall
return to Summa Four the original and all copies (Including partial
copies) of such Programs and certify, in writing, to Summa Four that it
has done so. The obligations of the Reseller and Its customers to protect
the proprietary nature of the Programs shall survive the termination of
any such license or this Agreement.
11.5 Equitable Relief. Summa Four reserves all rights and remedies It may have
In lww or In equity to enforce the terms of this Agreement, including but
not limited to injunctive relief and specific performance.
11.6 Sublicense Agreement. Resellers license to sublicense copies of Program to
Its customer Is expressly conditional upon the prior receipt by Reseller
of end-user software license terms, signed by a duly authorized officer of
each such customer, which, In total, constitute sublicense terms which are
no less comprehensive than the license terms of this Agreement.
11.1 Shrink-wrap Programs. Unless otherwise agreed by Summa Four, for all
Programs which may be "pre- packaged" or "shrink wrapped" by Summa Four
with preprinted license terms as an Integral part of such packaging,
Reseller shall sublicense and/or distribute all such Programs in its
original package and In the manner and form In which it was received from
Summa Four. In such event, the license term which form a part of such
Program will specifically apply to such Programs in lieu of the terms
hereof. Reseller shall make no modifications or alterations in the
packaging including the breaking of the seal of the Program license.
12. United Warranty
12.1 All warranty obligations of Summa Four as set forth in this Section 12 are
given by Summa Four solely to Reseller and may be enforced solely by
Reseller. In no event shall Summa Four have any direct warranty or support
obligations to any customers of Reseller unless Summa Four's then current
service and/or support agreements have been entered Into directly between
such customer and Summa Four.
12.2 Equipment. Summa Four warrants that upon shipment to Reseller, the
Equipment shall be In good working condition, free from defects in
material and workmanship and shall perform under normal use end operating
conditions in accordance with Summa Four's then current published
specifications for a period of one (1) year after the date of shipment.
Summa Four's sole obligation with respect to claims of non-conformance
made within this one (1) year warranty period described above shall be, at
Its option, to repair or replace any part of Equipment which Summa Four.
In Its sole discretion, determines to be defective. Reseller shall obtain
a return authorization number from Summa Four prior to returning any
Equipment to Summa Four under this warranty. Reseller shall prepay
shipping charges for Equipment returned to Summa Four for warranty
service, arid Summa Four shall pay freight charges for the return of the
Equipment to the Reseller, excluding customers duties or taxes, if any.
Replacement Equipment shall be new or Iike new In performance (or the same
Item repaired if Identified and agreed to In the return authorization) and
shall be warranted for the remaining duration of the warranty term of the
non-conforming Equipment or ninety (00) days, whichever Is longer. All
replaced Equipment shall become the property of Summa Four. Any claims of
defects not made within such one (1) year period shall be deemed waived by
Reseller.
5
12.3 Programs Unless Otherwise specified by Summa Four, Summa Four warrants
that the Programs shall substantially conform to Summa Four's then
applicable Program specifications for a period of one (1) year after the
date of shipment to the Reseller. Summa Four's sole obligation with
respect to claims of material non-conformance shall be to use the effort
Identified In Article 3.3 of Addendum A hereto to Identify, Isolate and
thereafter Initiate remedial efforts to remedy the material non-Remedial
efforts may include bug fixes, patches, work wounds or other
recommendations which Summa Four may provide to Reseller. Any such
remedial efforts will be given a high priority status consistent with that
given to Summa Four's other high priority Resellers. Reseller acknowledges
that Summa Four does not warrant that a Program's performance shall be
uninterrupted or error free or that all non-conformances will be remedied.
12.4 Warranty Exclusions.
Summa Four's warranty obligations hereunder are expressly conditioned upon
(I)) the Products being property Installed, used and maintained at all
times by Reseller and or its customers; (II) the Products not being
subject to unusual mechanical stress or unusual electrical or
environmental condtions or other acts of God; (iii) the Products not being
subjected to misuse, accident or any unauthorized Installation/
deinstallation by Reseller and/or its customers or other third parties
end; (iv) the Products not being alter or modified, unldes authorized In
writing or performed by Summa Four. Summa Four does not warrant that the
Products will operate In any specific combination which may be selected
for use by Reseller or Its customers or that the operation of the Products
will be uninterrupted or error free, or that all non-conformance or
defects will be remedied. Additionally, Summa Four shall have no warranty
obligations for any failure of the Products to conform to the applicable
Product specifications resulting from the combination of any Product(s)
with hardware and/or software not supplied by Summa Four. If Summa Four
determines that any Products(s) reported as defective or non-conforming by
Reseller during the warranty period Is not defective or non-conforming,
Summa Four may, at Its option. charge labor provided and expenses incurred
by Summa Four In connection with such determination, at Summa Four's then
current rates or as otherwise agreed to in the consulting addendum.
12.5 THE WARRANTIES OF SUMMA FOUR AND REMEDIES OF RESELLER SET FORTH IN THIS
SECTION 12, LIMITED WARRANTY, ARE EXCLUSIVE AND ARE GIVEN BY SUMMA FOUR
AND ACCEPTED BY RESELLER IN LIEU OF ANY AND ALL OTHER WARRANTIES, WHETHER
EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL SUCH OTHER
WARRANTIES BEING HEREBY EXPRESSLY AND UNEQUIVOCALLY DISCLAIMED BY SUMMA
FOUR AND WAIVED BY RESELLER.
13. Limitation of Damages
13.1 Summa Four's liability for damages to the Reseller under this Agreement
for any cause or claim whatsoever regardless of the form of action,
whether for breach of warranty, contract or In tort (including negligence
and product liability) or otherwise, shall not exceed the greater of the
aggregate price paid for the Products which caused, or allegedly caused
the liability or $200,000. No action arising out of or In connection with
this Agreement may be brought by Reseller more than two (2) years after
the cause of action has occurred.
13.2 Furthermore, in no event will Summa Four be liable to Reseller or any
other person for loss of use of Products, data, or profits, or any other
special, indirect, incidental or consequential damages, arising out of or
in connection with the use or performance of any Products, even if Summa
Four has been advised of the possibility of such damages. Reseller shall
indemnify Summa Four against all such claims which may be asserted by
other third parties including its Customers.
14. Documentation
6
All documentation provided by Summa Four together with each system of
Products shall be delivered with such Products by Reseller to its
customers. All other Documentation which may be furnished to Reseller
under this Agreement is solely for Reseller's internal use. Reseller may
make copies of such Documentation only to satisfy its internal
requirements, provided that all such copies include the appropriate
copyright and proprietary information notices. No other copies or use of
such Documentation or any portion thereof, shall be made without the prior
written approval of Sum.. Four. All such Documentation, and copies thereat
shall be maintained In secure promises by Reseller and Reseller shall take
appropriate measures to prevent the unauthorized disclosure thereof.
13. Patent and Copyright Indemnity
15.1 If notified promptly In writing of any action (and all prior claim
relating to such action) brought against Reseller based on a claim that
any of the Product supplied infringes a United States patent copyright or
other intellectual property right Summa Four shall defend such action at
its expense and pay any costs or damages finally awarded against Reseller
In such action which am found to be attributable to such claim: provided
that Summa Four shall have sole control of the defense (with reasonable
assistance from Reseller) of any such action and all negotiations for its
settlement or compromise; and further provided Reseller or Its customers
shall promptly cease to use Products if so requested by Summa Four. If a
final injunction is obtained against the use of any of the Products by
reason of infringement of a patent copyright, or other intellectual
property right, or If In Summa Fours opinion any of the Product supplied
to Reseller hereunder Is likely to become the subject of a successful
claim of infringement of a patent, copyright, or other intellectual
property right Summa Four shall, at its option and expense, either procure
for Reseller the right to continue using such Product, replace or modify
the same so that it becomes non-infringing, or grant Reseller a reasonable
credit for the return of such Product.
18.2 Notwithstanding the foregoing, Summa Four shall not have any liability to
Reseller ort its customers under the foregoing provisions if the
Infringement or claim Is based upon (i) the use of any of the Products in
combination with other equipment or software which is not furnished by
Summa Four. or (II) use of the Products which have been modified to
Reseller's or its customers" designs, specifications or instructions. No
costs or expenses shall be Incurred on behalf of Summa Four without the
prior written consent of Summa Four. The foregoing provisions state the
entire liability of Summa Four with respect to infringement of patents,
copyrights, trademarks and other Intellectual property rights by any of
the products or any part thereof or by their operation.
16. Support Service
Reseller may elect to purchase service and support for the Products In
accordance with the then current Summa Four agreement therefore.
17. Customer Support
17.1 As an authorized Reseller of Summa Four Products. Reseller is required to
provide support for its end-user customers. At a minimum. all problems or
questions from Reseller's customers regarding Summa Four Products shall be
addressed directly by the Reseller (and not Summa Four) in accordance with
the Reseller Support Obligations attached hereto as Addendum A.
17.2 If not already done so at the time of execution of this Agreement as soon
as practicable thereafter, Summa Four and Reseller shall establish the
minimum level of required service and support expertise that will be made
available by Reseller directly to an of Its end-user customers throughout
the Term of this Agreement. Such support program (by way of example and
not, by limitation) may include the following: 1) requirements for the
annual completion of Summa Four's Reseller Support, Services and
Maintenance Certification Program and, 2) requirements for Reseller's
on-going and expected participation at specified Summa Four hardware arid
software training courses and, 3) the required spans parts Inventory that
Reseller shall purchase in order to support Reseller's customers.
7
18. Term and Termination
18.1 Term. The term of this Agreement shall commence on the Effective Date and
shall continue (unless terminated as hereinbefore provided) for twelve
(12) months thereafter ("Term"). After such Initial Term, this Agreement
will remain in effect unless and until either Party terminates this
Agreement upon thirty (30) days prior written notice to the other Party or
this Agreement Is terminated as hereinafter stated.
18.2 Termination. This Agreement may be terminated:
(i) At any time by either Party, If the other Party ha materially breached
Its obligations under this Agreement and if the defaulting Party has not
cured such default within thirty (30) days following the date upon which
the non-defaulting Party has given written notice specifying the facts
constituting the default;
(ii) At any time by either Party, upon notice, If the other Party flies
for or consents to any assignment for the benefit of creditors, files a
petition In bankruptcy or liquidation, is adjudicated bankrupt or
Insolvent or takes similar actions under laws of any jurisdiction for the
general benefit of creditors of an Insolvent or financially troubled
debtor.
(iii) By Summa Four upon the breach by Reseller of Articles 11 and/or 21
In the event Reseller fails to immediately caste "or remedy the breach;
(iv) By either Party, with or without cause, upon ninety (90) days written
notice. In the event Summa Four should choose to terminate this Agreement
without cause, Summa Four shall nevertheless honor any orders which May
have been previously accepted by Summa Four and which remain In the
backlog.
16.3 Effect of Termination. Upon termination of this Agreement for any reason,
all lights and obligations of the Parties under this Agreement shall
cease, except as follows:
(i)The Reseller's obligation for fees and other charges accrued prior to
the termination date shall become immediately due and payable.
(ii) To the extent that this Agreement IS terminated for reasons not
attributable to a breach by Reseller or Its customers, all sublicenses
previously granted by Reseller to its customers under this Agreement to
use the Programs and/or Documentation shall not be affected by the
termination of this Agreement.
(iii) The provisions of Sections 11, 11. 12, 13, 14.16 and 21 shall
survive the termination of this Agreement
19. Cancellation. The cancellation of any order previously acknowledged by
Summa Four will only be permitted with Summa Four's prior written approval
and payment by Reseller of cancellation charges as follows:
Cancellation Charge
Days Remaining Until Scheduled Shipment (Percentage of Purchase Price)
20 - 30 Days 20%
10 - 19 Days 40%
5 - 9 Days 60%
0-4 Days 100%
20. Reseller Subsidiaries
To the extent the Parties should choose to expand the Scope Of this
Agreement to accommodate transactions between Summa Four and any of
Reseller's subsidiaries, Addendum 8, Reseller ordering Locations may be
added to this Agreement by amendment hereto. In such event Reseller agrees
in be ultimately responsible for the prompt and faithful performance of
any such subsidiary in accordance with the terms of this Agreement.
8
21. International Transactions
21.1 All Products are of United States origin. In the event Reseller should
elect to export Products from the U.S., Reseller acknowledges that the
export of such Products from the United States may be Subject to
regulation by the U.S. Export Administration Act of 1979, as amended, and
the rules and regulations promulagated thereunder, which restrict exports
and re-exports of certain computer hardware, software media, technical
data, and direct products of technical date, Reseller agrees to comply
with all U.S. Export Administration Regulations as aare in effect from
time to time (including, without limitation, all record-keeping
requirements Imposed thereunder), and will not export or reexport the
Products in violation of such Regulations.
21.2 Indemnification. Reseller agrees to indemnify and hold Summa Four harmless
from any and all fines, damages, losses, costs and expenses (including
reasonable attorneys fees) incurred by Summa Four. as a result of the
breach of this Section 21 by the Reseller.
21.3 Territory. This Agreement contemplates only domestic U.S. transactions
between the Parties. An such, nothing In this section 21 should give rise
to the presumption that Reseller has been granted the right to resell,
distribute or transfer Products and/or Value Added Products to its
customers outside of the United States. To the extent the Parties agree to
extend the applicability of this Reseller Agreement to include
International transactions by Reseller or between Reseller's International
subsidiaries and Summa Four, the parties shall amend this Agreement by
Including Addendum C, International Transactions, hereto.
22. Independent Contractors
The relationship between Summa Four and Reseller shall at all times be
that of Independent Contractors. Nothing contained in this Agreement shall
be construed as creating a joint venture, partnership or any other legal
relationship between the Parties other than that of buyer/seller. In no
event and under no circumstances shall Reseller represent or purport to
represent Summa Four or make any warranties, commitments or other
representations on its behalf.
23. Notices
All notices given by either Party to the other Party under this Agreement
shall be In writing and personally delivered or sent by registered or
certified mail, return receipt requested to the other Party at its address
set forth above. The date of personal delivery or the date of receipt, as
the case may be, shall be deemed to be the date on which such notice is
given.
24. Assignment
Reseller may not assign this Agreement or any of Its rights Or obligations
thereunder, without the prior written consent of Summa Four.
26. General
25.1 Section headings are for descriptive purposes only and shall not control
or alter the meaning of this Agreement.
26.2 The failure of either Party, in any one or more Instances to enforce any
of the items of this Agreement shall not be construed as a waiver of
future enforcement of that or any other term.
25.3 If any provision(s) of this Agreement shall, for any reason, be held to be
illegal or unenforceable such provision shall be deemed separable from the
remaining provisions of this Agreement and shall in no way affect or
impair the validity or enforceability of the remaining provisions of this
Agreement.
9
25.4 Summa Four makes no representations to the Reseller except as expressly
set forth herein. The Reseller further agrees that this Agreement,
(together with any addendums Or schedules hereto), is to complete and
exclusive understanding of the Parties regarding the subject hereof and
that this Agreement supersedes and cancels all previous and
contemporaneous written and/or oral agreement and communications relating
to the subject matter of this Agreement. The terms of this Agreement shall
apply notwithstanding any proposed variations or additions which may be
contained in any Reseller Purchase Order or other communications submitted
by the Reseller. This /agreement may only be modified by written
correspondence signed by an authorized representative of both Parties.
25.5 The validity, construction and interpretation of this Agreement and the
rights and duties of the Parties hereto shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts.
26. The following Schedules and Addendums we attached hereto and made a part
of this Agreement as of the Effective Date above:
Schedule I - Price Schedule Yes
Schedule It - Reseller Discount Schedule Yes
Appendix A to Schedule II No
Addendum A - Reseller Support Obligations Yes
Addendum 8 - Reseller Ordering Locations ___
Addendum C - International Transactions ___
Other - Consulting Addendum ___
Reseller acknowledges and agrees that it has read this Agreement and understands
and agrees to be bound by its terms and conditions.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed by its
duly authorized representatives.
RESELLER SUMMA FOUR, INC.
Authorized Signature Authorized Signature
/s/ Xxxxx Xxxxx /s/ Xxxxxx X. Heggerich
------------------------ -------------------------
Xxxxx Xxxxx Xxxxxx X. Heggerich
President Director, contracts
3/19/97 3/19/97
10
SCHEDULE II
TO
RESELLER AGREEMENT
RESELLER DISCOUNT SCHEDULE
I. Reseller Forecast; Initial Forecast; Discounts
A) Reseller's business plan and Product. purchase foam Is attached
hereto as Attachment A. In accordance therewith, Reseller forecasts
that in the Initial Term, Reseller shall purchase and take delivery
of that quantity of Products, whose aggregate list price shall be no
less than $3,000,000.
B) In consideration of such forecast, all hardware Products on Purchase
Orders placed by Reseller during the initial Term shall be
discounted at a discount percentage of 40%. Programs and services
are not entitled to any discount unless specifically noted as being
eligible therefor on Summa Four's then currant price list.
C) Should this Agreement be extended either monthly or for additional
terms after the Initial Term the discount percentage which shall be
applied to Hardware Products an all subsequent Reseller Purchase
Orders accepted by Summa Four shall be that then current discount
which Summa Four grants to other Reseller's which is associated with
the actual level of Aggregate List Price Dollar purchases of
Products shipped to Reseller in the preceding Term. Summa Four's
current Discount Schedule is detailed below.
II. Discount schedule
Aggregate Dollar Volume
of Reseller Purchases In Discount Percentage
Preceding Year On Hardware Purchases
-------------- ---------------------
(in $thousands)
LESS than $100 0%
$100-500 25%
$500-1500 30%
$1500-3000 35%
$3000+ 40%
ADDENDUM A
RESELLER SUPPORT OBLIGATIONS
1.0 RESELLER RESPONSBILITIES
RESELLER will be the primary customer contact point for questions, problems and
assistance concerning the Products whether or not Products an under warranty or
extended support from Summa Four. RESELLER shall provide support Services to its
customers for the Products which shall include but not necessarily be limited to
the following:
a) telephone Customer response line to respond to questions regarding
installation and use of the Products;
b) telephone customer response line to respond to customer's suspected
code defects and documentation error regarding installation and
operation of the Products;
c) Product maintenance through Maintenance Modifications to customers;
d) RESELLER personnel are Summa Four support trained:
e) Have available an adequate supply of recommended spare parts;
f) RESELLER to contact Summa Four Technical Support and obtain the
appropriate Return Authorization (RA) prior to returning defective
components, and
g) RESELLER will provide general technical assistance and levels 1& 2
support as set in Section 3.1 and 3.2 below.
2.0 SUMMA FOUR RESPONSIBILITIES
Summa Four will provide Level 3 and general technical assistance as set forth In
Article 3.3, below.
3.0 WORK SPECIFICATIONS
3.1 RESELLER's customers will initiate requests for support by contacting
RESELLER directly. The RESELLER representative will contact the request
originator and initiate remedial action on the problem. RESELLER will
perform the following Level I and Level 2 support responsibilities:
Level I support is defined as a problem which is completely disabling a
previously working service or one which is preventing Reseller's customer
from using 4 service. Level I Support includes, but is not limited to:
-2-
a) create the Problem Description (PD);
b) call the customer and obtain a description of the problem and verify
its severity;
c) search the RESELLER data base for known problems,
d) provide available resolution If known problem;
e) recommend local RESELLER assistance as required;
f) it no resolution, pass PD to Level 2; and update PD, documenting
Level I actions;
Level 2 support Is defined as a problem which is imputing a Reseller
customer's ability to provide a stable service, or which is preventing the
launch of a now service for which them is no viable workaround Second level
support includes, but Is not limited to:
a) receive the PD from Level 1;
b) analyze the problem symptoms and gather additional date from
customer as required;
c) search the RESELLER database for known problems.
d) provide available resolution if known problem;
e) recommend local RESELLER assistance as required,
f) recreate problem on RESELLER Test System, if possible or at customer
site via remote seem;
g) determine if error is. due to Improper installation of the Products
by the customer;
h) determine if suspected error Is due to peripheral or other 3rd party
equipment or software at the customer location or as part of the
Integrated system;
i) attempt bypass at circumvention for high impact problems, i.e.,
Severity I and 2;
j) if no resolution and problem appears to be a newly discovered code
or documentation error, create Escalated Problem Description (EPD)
record,
-3-
k) if suspected error appears to be in a Licensed Program(s), notify
Summa Four of the EPD providing problem description and supporting
documentation and materials.
l) at Summa Four's request, RESELLER will assist in obtaining
additional information or materials from customer to support EPD,
problem Source Identification and problem resolution;
m) update EPD documenting Level 2 actions; and
n) RESELLER will provide detailed product and problem information to
Summa Four as a prerequisite to Invoking Level 3 Support. Such
information should include, but not limited to, system serial
number, location, problem description and print out of error log,
updated EPD and a list describing what RESELLER attempts were made
to fix problem.
3.3 Summa Four will perform the following Xxxxx 0 support responsibilities to
the extent such Products are under warranty to RESELLER or covered under
an extended support Agreement with RESELLER.
Level 3 support is defined as a problem which is affecting (but not
preventing) the customer's ability to operate or support their network and
which may be addressed by Summa four in a subsequent Program maintenance
release, Typically a functional or configuration matter that can be
worked-around Level 3 support includes but may not be limited to:
a) receive the EPD from RESELLER, supporting documentation and
materials and issue a call ticket number, 30 minute telephone
response time an a 7 day by 24 hours to emergency calls. The Summa
Four support center is staffed Xxx to 5pm, Monday through Friday
Eastern Time for all other call requests;
b) analyze the problem symptoms and diagnose the suspected error;
c) notify RESELLER Level 2 Support if additional information materials
or documentation is required;
d) attempt to recreate the problem on Text System, if required;
e) assist RESELLER In attempting to develop a workaround or
circumvention for high Impact problems e.g., Severity 1 and 2;
f) determine if maintenance modifications are required to the Licensed
Program(s);
-4-
g) if maintenance modifications are required to the Licensed
Program(s), and such modifications are agreed to be provIded, Summa
Four will provide code correction to RESELLER;
h) return call documentation to RESELLER with one of the defined PD
Closing Cods assigned, including describing the resolution of in
the, event a code error was found, provide the rational for the
closing of the ticket number;
i) Provide final documentation for the purpose of updating or closing
the trouble ticket, when appropriate;
j) receive from RESELLER technical questions (regardless of whether
severity Level 1, 2 or 3) and supporting documentation and
materials;
k) analyze the technical questions and provide answers;
l) provide technical backup support to RESELLER an Products including
assistance in Problem Determination, Problem Source Identification
and Problem Diagnosis. In addition Summa Four shall provide
assistance in answering questions that may arise concerning the
operation and use of the Licensed Program(s) that cannot be resolved
by RESELLER;
m) In accordance with Summa Four's then current standard operating
procedures, Summa Four may provide a corrected version of the
Licensed Program(s) that includes all maintenance modifications to
the Licensed Program(s), if available, Additional corrected versions
of the Licensed Program will be provided as determ ined by Summa,
Four and based upon the severity of the problem.
n) Summa Four will maintain procedures to endeavor to ensure that new
fixes are compatible with previous fixes;
p) packaging of maintenance modifications and migration code will be
done as mutually agreed to by RESELLER and Summa Four; and
q) If on site Summa Four support is requested by RESELLER, Summa Four
will respond an a best efforts basis but within two business days,
and RESELLER will be billed at the then current ad published rates
and charges. Such response time is limited to critical, Severity I
problems.
-0-
XXXXXXXX "X"
TO
RESELLER AGREEMENT
RESELLER ORDERING LOCATIONS
In accordance with section 19 of the above referenced Agreement, the following
Reseller subsidiaries may place orders under this Agreement. As such, each such
subsidiary shall be subject to the terms and conditions of this Agreement:
1.____________________________________________________________
2.____________________________________________________________
3.____________________________________________________________
4.____________________________________________________________
5.____________________________________________________________
-6-
ADDENDUM C
TO
RESELLER AGREEMENT
INTERNATIONAL TRANSACTIONS
In accordance with Section 20.3 of the above referenced Agreement, the following
International subsidiaries of Reseller which are identified on Addendum A may
place orders subject to the following additional conditions:
1. All Products shall be shipped by Summa Four, EXW Summa Four's
Factory, Manchester, New Hampshire.
2. In addition to Reseller's responsibility for all costs, expenses and
charges identified in Section 2.1 of the above referenced Agreement
Reseller also agrees to be liable for all other costs and expenses
associated with the export or import of such Products (excluding the
cost to obtain any required export licenses from the United States)
Including any duties, value added taxes (VAT) or Other local
charges,
3. Notwithstanding the payment terms of Section 7 and unless otherwise
agreed by Summa Four all payments shall be made In U.S. dollars
through a confirmed, irrevocable sight letter of credit drawn art a
U.S. bank (of Summa Four's choice) in form and substance
satisfactory to Summa Four.
4. Reseller acknowledges that all Products and/or Proprerty Information
which may be provIded hereunder are of United States Origin and are
licensed for toe only In the country of original destination and as
such, are subject to all applicable United States Government Laws
and regulations governing or relating to the export of such Products
from the U.S.
Furthermore, Reseller acknowledges that it shall comply fully with
all such export/re-export related laws and regulations (including
local country regulation or other applicable multinational
conventions) which may be applicable to the Reseller's import use,
resale or re-export of such Products from rich country of original
destination.
5. Reseller's obligations stated above shall survive termination or
expiration of this Agreement
-7-
a. Type Approvals. Reseller acknowledges that Summa Pour makes no
representations or warranties tot the Products comply with any local
country telecommunications approvals safety or other standards (Type
Approvals) which may be established from time to time by the local
PTT or other authorities.
-8-
