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EXHIBIT 10.8
SALES REPRESENTATION AGREEMENT
This Sales Representation Agreement ("Agreement"), dated as of 3rd day
of August, 2001 ("Effective Date"), is by and between Arris Interactive L.L.C.,
a limited liability company organized under the laws of Delaware, ("Arris") and
Nortel Networks Inc., a corporation organized under the laws of Delaware, on
behalf of itself, its parent, Nortel Networks Limited, and any other corporation
or other business entity in which Nortel Networks Limited or Nortel Networks
Corporation holds directly or indirectly more than a 50% ownership interest
which engages in the sale of Nortel Networks products and services (collectively
referred to as "Nortel Networks").
WITNESSETH:
WHEREAS, pursuant to a reorganization effective as of the Effective
Date, Arris, whose members formerly were Nortel Networks LLC and Antec
Corporation, ("Antec") is now owned by Antec and Arris Group, Inc.
WHEREAS, as of the Effective Date, Arris and Nortel Networks Inc. have
entered into an Assignment and Sale Agreement pursuant to which the sales
agreements between Nortel Networks Inc. and the Existing Customers (defined
below) covering Arris Products (defined below) have been assigned in part to
Arris.
WHEREAS, Arris and Nortel Networks Inc. desire to enter into an
arrangement wherein Nortel Networks will represent and solicit the sale by
Arris of Arris Products to Customers (defined below), including Existing
Customers.
NOW, THEREFORE, in consideration of the mutual terms and conditions
hereinafter set forth, the parties agree as follows:
ARTICLE I - DEFINITIONS
1.01 DEFINITIONS.
As used herein, the following terms shall be defined as follows:
"Arris" shall also mean, when referring to sales or solicitation for
sales, Arris and/or Arris' resale channels.
"Arris Products" shall mean the hardware and/or software products and
enhancements thereto manufactured and sold by Arris during the Term and any
related services offered by Arris during the Term.
"Affiliate" shall mean corporation or other legal entity that directly
or indirectly through one or more intermediaries, controls, or is controlled by
or is under common control with one or more other corporations or other legal
entities. The definitions of Excluded Customers, New Customers and Existing
Customers will extend to each such Customer's respective Affiliates, only
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to the extent that the Affiliates of each such Customer are permitted to place
Orders under a master sales contract with such Customer.
"Customer" shall mean any third party who may wish to purchase Arris
Products.
"Excluded Customers" shall mean those Customers listed in Annex A and
their Affiliates, which are existing Customers of Antec Corporation as of the
Effective Date. "Excluded Customers" shall also mean those Customers who become
Excluded Customers under Section 2.05.
"Existing Customers" shall mean those Customers with whom, prior to
the Effective Date, Nortel Networks has entered into sales agreements which
include the supply of Arris Products, which agreements either (i) have been
assigned, or are in the process of being assigned, to Arris as of the Effective
Date pursuant to the Assignment and Sale Agreement of even date herewith in
respect to the rights, obligations and duties under such agreements relating to
Arris Products; or (ii) are "Fully Retained Agreements," as that term is
defined in the Assignment and Sale Agreement, as listed in the Assignment and
Sale Agreement, and the Affiliates of such Customers. "Existing Customers"
shall also include Customers who become Existing Customers under Section 2.03.3.
"Existing International Customers" shall mean those Existing Customers
with their principal place of business located outside of the United States or
Canada, as listed in Annex B, and the Affiliates of such Customers.
"Existing North American Customers" shall mean those Existing
Customers with their principal place of business in the United States or
Canada, as listed on Annex C, and the Affiliates of such Customers.
"First Solicitation Contact" shall mean the first personal contact in
the form of an in-person business meeting with a Customer located outside North
America (other than Existing International Customers, Excluded Customers or New
Customers listed in Annex D as of the Effective Date) made by a sales person in
which the sales person actively promoted the sale of Arris Products.
"Net Sales Price" shall mean the total price charged by Arris for the
sale of Arris Products to a Customer less freight and insurance charges, taxes
and duties.
"New Customer" shall mean either (i) the Customers located outside
North America listed in Annex D on the Effective Date; or (ii) a Customer
located outside North America to whom Nortel Networks first represents and
solicits the sale of Arris Products and submits a Sales Calls Report on or
after the Effective Date and prior to any solicitation of such Customer by
Arris as evidenced by an Arris Sales Call Report. Annex D shall be amended from
time to time during the Term (defined below) to add additional New Customers
determined under Section 2.05.
"Nortel Networks" shall also mean, in the context of each Customer or
Order, the applicable Nortel Networks entity that is responsible for the sale
of products and services in the
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national jurisdiction in which a Customer is located or an Order is obtained
pursuant to this Agreement.
"North America" shall mean the United States and Canada.
"Order" shall mean the document that establishes a Customer's binding
obligation to purchase Arris Products, including but not limited to, a written
purchase order issued by a Customer for the purchase of Arris Products. An
Order shall also include purchase orders for Arris Products received pursuant to
sales agreements assigned to Arris by Nortel Networks under the Assignment and
Sales Agreement, and Sales Contracts for Arris Products (as referred to in
Section 5.02).
"Party" shall mean either of Arris or Nortel Networks, as applicable.
"Primary Sales Channel" shall mean the requirement for Nortel Networks
to maintain regular contact with Existing Customers and New Customers, to be
the primary and substantial sales interface between Existing Customers and New
Customers and Arris and to actively promote the sale of Arris Products by Arris
to Existing Customers and New Customers, using adequately trained sales
personnel knowledgeable about the Arris Products. For New Customers, "Primary
Sales Channel" shall also mean the requirement for the assigned Nortel Networks
sales person for each New Customer to submit to Arris monthly Sales Call
Reports showing his/her on-going sales solicitation activities with such New
Customer for Arris Products. During the Term (defined below), pursuant to a
mutually agreed schedule for each Existing Customer and New Customer, Nortel
Networks will transition to Arris primary responsibility for the sales
interface with such Customers. Such agreed transition shall not be deemed to
constitute a failure of Nortel Networks to fulfill its obligation to be the
Primary Sales Channel to such Customers.
"Sales Call Report" shall mean the report, substantially in the form
set forth in Annex E, that personnel of Nortel Networks and Arris are required
to complete to record the First Solicitation Contact with Customers located
outside North America other than Excluded Customers, Existing International
Customers and New Customers listed in Annex D as of the Effective Date. Each
Sales Call Report must be completed and submitted to Arris within 30 calendar
days following the date of the First Solicitation Contact described in such
report. Upon Arris' request, Nortel Networks shall submit to Arris a Sales Call
Report, proposal for Arris Products, letter of intent for Arris Products or
similar documentation for any of the New Customers listed in Annex D as of the
Effective Date evidencing the fact that as of the Effective Date Nortel
Networks is acting as the Primary Sales Channel to such New Customers.
"Sales Collateral Material" shall mean brochures and other materials
created by Arris to be provided to Customers, which material describes Arris
Products, their features and functionality.
"Sales Commission" shall mean a percentage, as defined herein, of the
Net Sales Price.
1.02 UPDATING OF ANNEXES
The lists of Customers in Annexes A, B, C and D shall be updated from
time to time to reflect acquisitions and divestitures involving such Customers
which would result in a change to
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the Customers listed in such Annexes based on the definitions of the categories
of Customers to be included in such Annexes.
ARTICLE II - APPOINTMENT AND GRANT
2.01. APPOINTMENT. Arris hereby appoints Nortel Networks during the
Term as a non-exclusive sales representative of Arris to solicit worldwide the
sale by Arris of Arris Products to Existing North American Customers, Existing
International Customers, New Customers and other Customers located outside North
America, except Excluded Customers. This appointment is subject to the
limitations set forth below in this Agreement. The foregoing appointment shall
apply to each applicable Nortel Networks entity that is engaged in the sale of
Nortel Networks products and services in each applicable national jurisdiction
worldwide.
2.02. SALES COMMISSIONS RELATING TO EXISTING CUSTOMERS.
2.02.1 Arris shall pay to Nortel Networks a Sales Commission, as
determined under this Agreement, (i) for all Arris Products shipments made to
Existing North American Customers on or before March 31, 2002 pursuant to Orders
received from Existing North American Customers on or before December 31, 2001;
and (ii) for all Arris Products shipments made to Existing International
Customers on or before March 31, 2004 pursuant to Orders received from Existing
International Customers on or before December 31, 2003.
2.02.2 In addition, the parties acknowledge and agree that, for a
transition period prior to completion of the corporate reorganization described
at the outset of this Agreement, when Existing North American Customers and
Existing International Customers want to place new Orders for Arris Products
with Nortel Networks, Nortel Networks with Arris' concurrence has requested
such Customers to place such Orders directly with Arris. Arris agrees that it
will also pay to Nortel Networks a Sales Commission, as determined under this
Agreement, for Arris Products shipments made to Existing North American
Customers and Existing International Customers as a result of Orders received
prior to the commencement of the Term from such Customers under the
circumstances described in the preceding sentence and Nortel Networks
appointment as Arris' non-exclusive sales representative pursuant to Section
2.01 and the other terms and conditions of this Agreement shall apply in
connection with such Orders.
2.03 SALES COMMISSION RELATING TO NEW CUSTOMERS.
2.03.1 Arris shall pay to Nortel Networks a Sales Commission, as
determined under this Agreement, for all Arris Products shipments made to New
Customers on or before March 31, 2004 pursuant to Orders received from New
Customers on or before December 31, 2003.
2.03.2 Notwithstanding Section 2.03.1, if Nortel Networks solicits to
sell or sells to a New Customer a third party's products that compete with
Arris Products, in lieu of soliciting the sale of any Arris Products to such
New Customer, that Customer shall cease to be a New Customer. Nortel Networks
shall not be entitled to a Sales Commission with respect to Arris Products
shipments made to a Customer after such Customer ceases to be a New Customer
under the circumstances described in this Section 2.03.2.
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2.03.3 If a New Customer submits an Order with a price of at least
U.S.$1 million within a 12-month period of becoming a New Customer, such New
Customer shall become an Existing Customer commencing on the date the $1
million target is met. If a master sales contract is entered into as part of
such Order, such new Existing Customer shall include all the Affiliates of such
Existing Customer which are permitted to place Orders under such master sales
contract. For New Customers listed in Annex D on the Effective Date, such
12-month period shall begin on the Effective Date. For New Customers listed in
Annex D after the Effective Date such 12-month period shall begin on the date
such New Customers are added to Annex D.
2.04. If Arris has a reasonable basis to believe that Nortel
Networks is not acting as the Primary Sales Channel to any New Customer or
Existing Customer, Arris shall notify Nortel Networks in writing, including a
reasonable description of the failure of Nortel Networks to fulfill its
obligation to be the Primary Sales Channel to such New Customer or Existing
Customer. Upon receipt of such a notice, Nortel Networks at its option shall
either (i) agree to transfer the New Customer or Existing Customer to Arris
effective within 30 days of Arris' notification, in which event the Customer
will cease to be a New Customer or Existing Customer on such transfer date; or
(ii) identify to Arris the scope of Nortel Networks solicitation activities for
the sale of Arris Products to such New Customer or Existing Customer and agree
with Arris on such appropriate additional solicitation activities and
corrective actions that Nortel Networks shall undertake to meet its obligation
to be the Primary Sales Channel to such New Customer or Existing Customer.
Nortel shall have 60 calendar days from the date of Arris' notification to
substantially comply and maintain compliance with such additional solicitation
activities and corrective actions. If Nortel Networks fails to substantially
comply or maintain compliance with its obligations as the Primary Sales Channel
and such additional solicitation activities and corrective actions within such
60 day period then such New Customer or Existing Customer will be deemed
transferred to Arris at the end of such 60 day period and shall cease to be a
New Customer or Existing Customer on such transfer date. Nortel Networks shall
not be entitled to a Sales Commission on shipments of Arris Products made to a
Customer after such Customer ceases to be Existing Customer or New Customer
under the circumstances described in this Section 2.04.
2.05. A Customer located outside North America, which is not an
Existing International Customer, an Excluded Customer, or a New Customer on the
Effective Date, will become a New Customer on the date of First Solicitation
Contact by Nortel Networks with such Customer as set forth on a Sales Call
Report unless Arris has completed a Sales Call Report showing an earlier First
Solicitation Contact by Arris with such Customer, in which case such Customer
shall become an Excluded Customer. Completed Sales Call Reports shall be
conclusive to establish the date of First Solicitation Contact with a Customer
that is not an Existing Customer or a New Customer on the Effective Date.
2.06. Arris hereby grants Nortel Networks a non-transferable,
non-exclusive right and license during the Term to use the trademarks, service
marks and trade names owned by and used by Arris in connection with the Arris
Products in connection with Nortel Networks' representation and solicitation of
the sale of Arris Products pursuant to this Agreement.
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ARTICLE III - COMMISSION AND PAYMENT
3.01 Subject to Section 2.03.2 and Section 2.04, Arris shall pay
to Nortel Networks Sales Commissions as follows:
3.01.1 Arris shall pay Nortel Networks a Sales Commission as set
forth in Annex C for all Arris Products shipments made to Existing North
American Customers on or before March 31, 2002 pursuant to Orders received by
Arris on or after the Effective Date through December 31, 2001 from Existing
North American Customers. The Parties shall cooperate in scheduling shipments
of Arris Products to Existing North American Customers in accordance with
Arris' standard lead times and otherwise consistent with the ordinary course of
Arris' business processes, except as otherwise agreed by Arris.
3.01.2 Arris shall pay Nortel Networks a Sales Commission as set
forth in Annex B for all Arris Products shipments made to Existing
International Customers on or before March 31, 2004 pursuant to Orders received
by Arris on and after the Effective Date through December 31, 2003 from
Existing International Customers. The Parties shall cooperate in scheduling
shipments of Arris Products to Existing International Customers in accordance
with Arris' standard lead times and otherwise consistent with the ordinary
course of Arris' business processes, except as otherwise agreed by Arris.
3.01.3 Arris shall pay Nortel Networks a Sales Commission of ten
percent (10%) for all Arris Products shipments made to New Customers on or
before March 31, 2004 pursuant to Orders received by Arris on and after the
Effective Date through December 31, 2003 from New Customers. The Parties shall
cooperate in scheduling shipments of Arris Products to New Customers in
accordance with Arris' standard lead times and otherwise consistent with the
ordinary course of Arris' business processes, except as otherwise agreed by
Arris.
3.01.4 Arris shall pay Nortel Networks a Sales Commission of ten
percent (10%) for Arris Products shipments made to other Customers located
outside North America, which are not Existing International Customers, Excluded
Customers or New Customers, pursuant to Orders received by Arris on and after
the Effective Date through December 31, 2003 from any such other Customers
located outside North America, if such Orders resulted from Nortel Networks
solicitation activities hereunder and Nortel Networks acted as the Primary
Sales Channel for the sales which are subject such Sales Commission.
3.01.5 In no event shall any Sales Commission be payable by Arris to
Nortel Networks for Orders received by Arris from Excluded Customers.
3.02. Arris shall pay Nortel Networks Sales Commissions on a
calendar monthly basis within thirty (30) days following the close of each
month. The amount of Sales Commissions due and payable in each calendar month
shall be the total Sales Commissions calculated in accordance with this
Agreement with respect to all Net Sales Price amounts on shipments which qualify
for Sales Commissions payments which either (i) were actually paid by Existing
Customers, New Customers or other Customers to Arris during such calendar month;
or (ii) were due and payable during such calendar month but were not paid due to
bona fide problems with the functioning of
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the Arris Products. Notwithstanding the preceding sentence, if Arris extends
installment purchase or other long term payment terms to a Customer, the Sales
Commissions due Nortel Networks for such sale shall be paid by Arris to Nortel
Networks thirty (30) days following the close of the month in which the Net
Sales Price for such sale would have been due and payable by the Customer to
Arris pursuant to Arris' standard payment terms in the Sales Contract without
such long term payment terms. From time to time upon reasonable prior notice to
Arris, Nortel Networks shall have the right during normal business hours to
audit Arris' applicable books and records to confirm the amount of Sales
Commissions due and payable by Arris to Nortel Networks.
ARTICLE IV - TERM
This Agreement shall become effective on the Effective Date and shall
continue through December 31, 2003 ("Term"). The Term may be renewed or
extended only by mutual written agreement of the Parties.
ARTICLE V - OBLIGATIONS OF NORTEL NETWORKS
5.01. Nortel Networks accepts the appointment as sales representative of
Arris to solicit the sale by Arris of Arris Products to Customers in accordance
with this Agreement; provided, however, that Nortel Networks does not, in any
manner, guarantee that its representation and solicitation activities will
result in any volume of sales of Arris Products to Customers.
5.02. All Orders for the sale of Arris Products to Customers shall be
entered into directly between Arris and such Customers and, as between Nortel
Networks and Arris, Arris shall be solely responsible for performing all the
duties and obligations under such Orders. When soliciting Customers for the
sale of Arris Products, Nortel Networks will present and propose as the
governing terms of sale Arris' standard Sales Contract form (including Arris'
software license terms) in Annex F, as such Sales Contract form may be revised
by Arris from time to time during the Term, as the exclusive terms which shall
govern each sale of Arris Products to Customers unless Arris and a Customer
otherwise agree. When soliciting Customers for the sale of Arris Products,
Nortel Networks will present and propose Arris' standard prices for Arris
Products in effect from time to time during the Term and such discounts from
such standard prices as Arris may approve. Notwithstanding the preceding
sentence, if Nortel Networks is soliciting the sale of the Arris Products to a
Customer in conjunction with an offer by Nortel Networks to directly sell
Nortel Networks products and services to the same Customer as part of an
overall communications solution, the Parties agree to work together in good
faith to seek to agree upon (i) a pricing proposal for the Arris Products and
the Nortel Networks products and services offer that will be competitive with
the offerings of other communications products and services suppliers who are
competing with the solution offered by Nortel Networks and Arris; and (ii) the
Sales Commission rate payable by Arris to Nortel Networks in connection with
such teaming opportunity.
5.03. When a Customer has questions concerning the pricing by Nortel
Networks for the Arris Products and services or the terms and conditions of the
Sales Contract, Nortel Networks shall contact Arris' designated point of
contact for direction. Nortel Networks shall not discuss, negotiate or change
any of Arris' terms and conditions of sale in the Sales Contract or the prices
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for the Arris Products authorized by Arris to be quoted to a Customer as
provided in Section 5.02 without the agreement of Arris.
5.04. Nothing in this Agreement shall be construed as creating between
Arris and Nortel Networks a joint venture, partnership or any relationship
other than that of independent contracting parties. Nortel Networks is not
authorized to conclude agreements on behalf of, or for the account of, Arris or
to receive or to pay any monies for Arris' account. Nortel Networks will
provide its own offices and sales solicitation organization.
5.05. Nortel Networks shall make no representations or statements
concerning the Arris Products other than the information contained in Sales
Collateral Material or Arris' written proposals to Customers.
5.06. In connection with the Existing Customers and any other sales by
Arris to Customers of Arris Products resulting from Nortel Networks
representation and solicitation activities under this Agreement, Nortel
Networks will act as the first point of contact (via a designated Nortel
Networks 1-800 telephone number) for any calls by the Customer concerning
issues relating to the functioning, malfunctioning, or operation of either the
Nortel Networks products or the Arris Products. In such circumstances, if
Nortel Networks determines that an issue relates to an Arris Product, Nortel
Networks will transfer the call to Arris' point of contact for a response or,
if appropriate, the Parties will cooperate to seek to resolve the issue.
ARTICLE VI -- ADDITIONAL OBLIGATIONS OF ARRIS
6.01. If Arris elects to make an offer to sell Arris Products to a
Customer either directly or through another sales representative in conjunction
with or concurrently with an offer by a competitor of Nortel Networks to sell
its products to such Customer and Nortel Networks is also soliciting the sale
of Arris Products to the same Customer in conjunction with Nortel Networks
products and services, Arris agrees not to offer the Arris Products to such
Customer directly or indirectly in conjunction with or concurrently with such
competitor of Nortel Networks at more favorable prices and/or terms and
conditions than Arris offers the Arris Products to such Customer through Nortel
Networks solicitation of such Customer in conjunction with Nortel Networks
offer of its products to such Customer.
6.02. During the Term Arris shall provide to Nortel Networks, at no
charge, reasonable quantities of Sales Collateral Materials for use by Nortel
Networks in representing and soliciting the sale by Arris to Customers of Arris
Products.
6.03. During the Term Arris shall provide to Nortel Networks at no charge
at an Arris or Nortel Networks facility, as mutually agreed but located in
Europe after December 31, 2001, training for up to 15 Nortel Networks sales and
marketing personnel per calendar quarter concerning the Arris Products. Nortel
Networks shall bear all costs for travel and living expenses for all of its
trainees and for the Arris trainers.
6.04. In the event that Nortel Networks is soliciting the sale by Arris
of Arris Products in conjunction with Nortel Networks sale of Nortel Networks
products and services and the Customer insists that it will purchase the Arris
Products only as part of a single Order with Nortel
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Networks covering both the Arris Products and the Nortel Networks products and
services, then, notwithstanding Section 5.02, Nortel Networks shall enter into
such single Order with the Customer. If the terms and conditions of such Order
are not materially inconsistent with Arris' Sales Contract and Arris has agreed
to the price for the Arris Products in the Order, if such price is below Arris'
standard pricing for like volume, the Order shall be treated as described in
Sections 6.04.1 through 6.04.7. If the terms and conditions of such Order are
materially inconsistent with Arris' Sales Contract resulting in economic
detriment as compared to Arris' Sales Contract and/or Arris has not agreed to
the price for the Arris Products in the Order if such price is below Arris'
standard pricing for like volume, Nortel Networks and Arris shall in good faith
agree to an adjustment in the Sales Commission payable by Arris to Nortel
Networks in connection with the Order to compensate Arris for the economic
detriment or lower price and upon such agreement the Order shall be treated as
described in Sections 6.04.1 through 6.04.7.
6.04.1 As between Arris and Nortel Networks all rights, obligations
and duties under such Order relating to the Arris Products shall be deemed
assigned to Arris and Arris shall (i) be solely responsible to perform all such
obligations and duties under the Order relating to the Arris Products; and (ii)
bear the economic risk (including without limitation, all liability for
nonperformance) and receive the economic benefit (including all revenues) of
the Arris Products rights, obligations and duties under such Order.
6.04.2 Nortel Networks will act as the billing agent for Arris with
respect to amounts due under the Order for Arris Products and shall remit to
Arris all such amounts billed to and paid by the Customer under the Order,
including any interest collected, within 30 days following Nortel Networks
receipt of payment from the Customer. Arris shall bear the risk of non-payment
of such amounts. The Parties shall cooperate in good faith to seek to resolve
issues relating to the Order which cause the Customer to withhold amounts due
either Party. If despite reasonable collection effects the Customer does not
pay amounts due for Arris Products within 120 days of the due date and there is
no reasonable basis to believe that such nonpayment is because of problems with
the Arris Products, Arris may issue a written request to Nortel Networks to
commence a collection action against such Customer for the unpaid amount past
due from such Customer for Arris Products. Within 30 days following such
notice, Nortel Networks at its option shall (i) authorize Arris in writing to
commence a collection action against the Customer in Nortel Networks name at
Arris' sole expense for such past due amount; or (ii) Nortel Networks shall pay
to Arris the past due amount in which event Nortel Networks shall be the
successor to Arris with respect to the right to collect from the Customer and
retain for the benefit of Nortel Networks such past due amount.
6.04.3 New purchases of Arris Products placed by the Customer under
the Order will be accepted by Nortel Networks for the benefit of Arris and
Arris will be solely responsible for performance of such new purchase orders
and will bear the economic risk and receive the economic benefit of such new
purchase orders as described in Section 6.04.1 above.
6.04.4 Nortel Networks will use reasonable commercial efforts to
obtain forecasts from the Customer of the Customer's requirements for Arris
Products but Arris accepts that such forecasts may be non-binding.
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6.04.5 For the benefit of Arris title to the hardware portion of
Arris Products and licenses to use the software portion of Arris Products will
transfer from Arris to the Customer pursuant to and under the terms of the
Order.
6.04.6 Nortel Networks will be paid a Sales Commission in accordance
with Section 3.01 of this Agreement with respect to the Net Sales Price portion
of the Order.
6.04.7 If appropriate at a subsequent date the Parties will seek to
obtain the Customer's consent to assign to Arris the rights, obligations and
duties under the Order relating to the Arris Products, and if such consent is
obtained, Nortel Networks will assign to Arris the rights, obligations and
duties under the Order relating to the Arris Products.
ARTICLE VII - CONFIDENTIAL INFORMATION
7.01. The Parties acknowledge that during the course of this
Agreement one Party may disclose to the other Party Confidential Information.
"Confidential Information" shall, for purposes of this Agreement, be deemed to
be all information, materials and data which one Party advises the other Party
in writing is of such character, or which a Party knows or reasonably should
know is customarily treated as such within the communications industry,
including, solely by way of illustration and not in limitation: software
programs, product ideas and designs; production plans; cost and pricing
information; marketing and sales analyses, plans and data; financial data; and
all matters pertaining to personnel.
7.02. The receiving Party shall hold secret and not disclose to any
third party any of the Confidential Information of the disclosing Party except
as authorized in writing by the disclosing Party; provided that in no event
shall such restrictions apply to Nortel Networks disclosure to Customers of
information concerning Arris Products, the prices therefore and Arris' terms
and conditions of sale therefore which information is reasonably required for
Customers to make procurement decisions. The receiving Party shall use the
disclosing Party's Confidential Information only in furtherance of this
Agreement.
7.03. The restrictions in Sections 7.01 and 7.02 shall not apply to
any portion of the disclosing Party's Confidential Information which: (i)
becomes available to the public from a source other than the receiving Party;
(ii) is obtained by the receiving Party without similar restrictions on use or
disclosure from a third Person who did not receive it, directly or indirectly,
from the disclosing Party; (iii) is documented as being known to the receiving
Party prior to its disclosure by the disclosing Party; or (iv) is documented as
being independently developed by the receiving Party without reference to the
disclosing Party's Confidential Information.
7.04. The receiving Party shall not make or have made or permit to
be made, any copies of the Confidential Information except those copies which
are necessary for the use of the Confidential Information in furtherance of
this Agreement, and all such copies shall include the same proprietary and
confidentiality notices or legends which appear on the disclosing Party's
Confidential Information as originally provided under this Agreement.
7.05. The receiving Party shall use the same degree of care as is
used to protect its own confidential information of a similar nature, but no
less than reasonable care, to prevent the
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unauthorized use, dissemination or publication of the Confidential Information
of the disclosing Party. Title and ownership of the Confidential Information of
the disclosing Party is and shall remain in the disclosing Party. Upon the
expiration of this Agreement or the earlier request of the disclosing Party,
the receiving Party shall immediately return or destroy (and certify such
destruction to the disclosing Party) the Confidential Information of the
disclosing Party, and all copies thereof.
ARTICLE VIII - LIMITATION OF LIABILITY AND INDEMNIFICATION
8.01. Except for Arris' indemnity obligations pursuant to Section
8.02, neither Party shall be liable to the other for any special,
consequential, indirect or incidental damages, including without limitation,
loss of revenue, loss of profits or loss of business arising out of or relating
to this Agreement.
8.02. Arris shall indemnify, defend and hold harmless Nortel Networks
with respect to any claims, suits or proceedings threatened or brought by any
Customer (including Existing Customers and New Customers) or other third party
(and any resulting liabilities, damages costs or expenses, including attorneys
fees) arising out of or relating to (i) Arris' acts or omissions in connection
with any offer to sell Arris Products to Customers; or (ii) the sale of Arris
Products to Customers or the performance or non-performance of any Order for
Arris Products; or (iii) Nortel Networks performance under Section 5.06; or
(iv) the rights, obligations and duties relating to Arris Products under any
sale between Nortel Networks and Customers as described in Section 6.04 or the
performance or non-performance of any such Order for Arris Products; or
(v) any collection action commenced by Arris as described in Section 6.04.2 or
as described in Section 1.2.a of the Assignment and Sale Agreement.
8.03. Neither Party shall be responsible for any delay or failure of
performance under this Agreement caused by events or circumstances beyond such
Party's control and which may not be overcome by due diligence.
ARTICLE IX - BREACH
If either Party fails to perform any material term or condition of this
Agreement and such breach continues for more than 30 days following written
notice by the non-breaching party to the breaching party, then the
non-breaching party may pursue cumulatively each and every remedy available at
law or equity, subject to the limitations set forth elsewhere in this Agreement.
ARTICLE X - MISCELLANEOUS
10.01. This Agreement may be executed in one or more counterparts, each
of which when executed shall be deemed to constitute an original but all of
which when taken together shall constitute one and the same instrument.
10.02. This Agreement shall be governed by, and interpreted in
accordance with, the laws of the State of Georgia, without regard to the
conflict of law principles thereof.
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10.03. The Parties hereby irrevocably waive any and all rights to a
trial by jury in any proceeding arising out of or relating to this Agreement.
10.04. This Agreement shall be binding upon and inure to the benefit
of the Parties and their respective successors and permitted assigns.
Notwithstanding the foregoing, the Parties agree that they shall not assign
this Agreement or any of their rights, duties or obligations hereunder without
the prior written consent of the other Party, except that an assignment to an
Affiliate of a Party shall require prior notice to the other Party, but not
consent.
10.05. Except as otherwise provided herein, each Party hereto will
bear all expenses incurred by it in connection with its performance under this
Agreement.
10.06. All notices, requests and other communications hereunder to a
Party shall be in writing and shall be deemed given on the date of delivery,
if personally delivered, three business days after being mailed by registered
or certified mail (return receipt requested) or one business day after being
sent by receipted overnight courier to such Party at its address set forth
below or such other address as such Party may specify by notice to the other
Party hereto.
If to Arris:
Arris Interactive L.L.C.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: President
If to Nortel Networks:
Nortel Networks Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx X
Xxxxxxxxxx, XX 00000
Attention: VP Marketing, Local Internet
With a copy to:
Legal Department
Nortel Networks Inc.
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Attention: Lead Counsel, Supply Management
10.07. This Agreement sets forth the entire agreement and
understanding between the Parties with respect to the subject matter hereof,
and merges all prior discussions between them, and neither Party hereto shall
be bound by any conditions, definitions, representations or understandings with
respect to such subject matter other than as expressly provided herein.
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10.08. No agreement or understanding amending, revising or otherwise
changing the terms and conditions hereof shall be binding unless in writing and
signed for each Party by a duly-authorized representative.
10.09. The failure on the part of either party to exercise any right
hereunder shall not constitute a waiver of any such right.
10.10. The provisions of this Agreement shall be held in confidence by
the Parties and only disclosed as may be agreed to by the Parties or as may be
required by applicable law. Neither Party shall make public statements or issue
publicity or media releases with regard to this Agreement without the prior
written approval of the other Party such approval not to be unreasonably
withheld.
10.11. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad that it is enforceable.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the Parties hereto have caused this Sales Representation
Agreement to be executed by their duly authorized representatives as of the
Effective Date.
ARRIS INTERACTIVE L.L.C. NORTEL NETWORKS INC.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxx
------------------------------- --------------------------------
Name: Name:
----------------------------- ------------------------------
Title: Title:
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