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EXHIBIT 10.17
[EXTENDED SYSTEMS LOGO] OEM PURCHASING AGREEMENT
FOR
EXTENDNET INTERNET ACCESS SERVER
THIS OEM PURCHASING AGREEMENT ("Agreement"), dated as of August 14, 1997 is by
and between Apexx Technology, Inc. ("Apexx"), an Idaho corporation having a
principal place of business at 000 X. 00xx Xxxxxx, Xxxxx, XX, XXX and Extended
Systems Incorporated, a Delaware corporation ("ESI") having a principal place of
business at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx, Xxxxx 00000. Apexx and ESI are each
a "Party" and are sometimes collectively referred to herein as the "Parties".
RECITALS
WHEREAS, ESI desires to buy from Apexx, and Apexx desires to sell to ESI
certain products manufactured by or for Apexx, subject to the terms and
conditions of this Agreement;
NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged and agreed, the parties hereto hereby agree as
follows:
1. Purchase of Products by ESI from Apexx.
(a) Purchase Rights. ESI shall, subject to the terms and
conditions set forth in this agreement, purchase Apexx
products as specified in Exhibit A ("Products"). ESI expressly
reserves the right to purchase similar products from other
vendors or to develop competitive products itself.
(b) New Product Notification. Apexx shall give to ESI thirty (30)
days notification prior to commercial shipment of any new
products offered by Apexx. Apexx and ESI will negotiate in
good faith to add additional Products to this Agreement by
addendum to Exhibit A. The Products are "original equipment
manufacturer" products, which will be sold by ESI. If Apexx
develops any product that is more efficient or less expensive
than the comparable product available under this Agreement,
ESI may substitute the newer Product for the comparable
Product for all subsequent purchases under this Agreement.
(c) Replacement Parts. ESI may also, pursuant to this Agreement,
purchase replacement parts, components, and documentation for
the Products (collectively "Parts") from Apexx at current
reasonable pricing provided by Apexx.
(d) Purchase Orders. ESI will submit to Apexx from time to time
purchase orders for Products (each, an "ESI Purchase Order" or
collectively "ESI Purchase Orders"), with all such ESI
Purchase Orders governing the specific terms and conditions of
such order, however, if a conflict arises between the terms of
any ESI Purchase Order and the terms of this Agreement, the
terms of this Agreement shall be given effect as to such
conflict and not the terms of such ESI Purchase Order, unless
agreed to in writing by both Parties.
(e) Manufacture of Products. All Products and Parts shall be new,
and shall be manufactured in accordance with the Product
specifications as stated in Exhibit A.
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(f) Order Placement and Delivery. Each delivery of Products or
Parts shall be initiated by a written or electronic Purchase
Order issued to Apexx by ESI. ESI agrees to furnish
instructions in writing to Apexx with regard to shipment and
delivery of Products. Apexx shall provide ESI with
acknowledgments of ship dates by facsimile within [*] ([*])
working days after receipt of Purchase Order. Likewise Apexx
shall provide ESI with notice of shipment by facsimile at
least [*] ([*]) working days in advance of such shipment. In
the event of a material, labor, or capacity shortfall which
may hinder shipment delivery dates of Products on ESI Purchase
Orders, said Products on Purchase Orders that are within the
[*] shall take priority over deliveries to all other Apexx's
customers and all Products on Purchase Orders that are greater
than the [*] shall be allocated proportionally to all order
commitments. Apexx shall provide to ESI the necessary product
information and documentation for ESI to generate customs
documentation for each shipment sufficient to comply with the
requirements of the customs authorities of the country of
receipt.
(g) Forecasting, Lead-time and Inventory Stocking. ESI will
provide to Apexx a non-binding [*] ([*]) day rolling forecast
of expected purchases. It is ESI's intention to place Purchase
Orders [*] ([*]) days prior to delivery. ESI may without
charge, decrease, or increase, any order not less than [*]
([*]) days prior to the Product delivery date. All purchase
orders become non-cancelable and non- changeable at [*] ([*])
days or less prior to the scheduled Product delivery date
unless agreed upon by both parties. In the case of purchase
orders with a requested ship date of less than [*] ([*])
days Apexx shall make every reasonable effort to ship the
given order to ESI's scheduled delivery date. In the event
that Apexx can not meet the scheduled delivery date Apexx
shall make delivery no later than ([*])[*] working days from
the requested shipment date for all units that are within the
forecast for that month. Delivery will be made F.O.B. Apexx
factory. Apexx will drop ship for ESI shipments [*] as
requested by ESI, and will provide ESI with a copy of shipping
documentation by facsimile on the date such orders are
shipped. Apexx will furnish ESI with such additional
information, which may be reasonably required for ESI to prove
that delivery of drop ship orders has occurred. ESI and Apexx
shall jointly develop a mutually agreed upon procedure for
execution of drop shipments. Apexx agrees to stock unique
parts or have stocked on Apexx's behalf by others for ESI
Products described in Exhibit A equal to [*] days supply of
the prior three month average daily sales rate or of the
forecasted next three month average daily sales rate whichever
is higher.
(h) Packaging. Apexx shall preserve, package, handle and pack all
Products so as to protect the Products from loss or damage, in
conformance with good commercial practice, ESI specifications,
government regulations, and other applicable standards. ESI
shall review and approve the Product packaging and packaging
procedures provided by Apexx. Apexx shall not change any
Product packaging without first obtaining written approval
from ESI prior to shipment of Product with any changed
packaging. Apexx shall be liable for any loss or damage due to
its failure to properly preserve, package, handle, or pack
Products; ESI shall not be required to assert any claims for
such loss or damage against the common carrier involved.
Apexx's liability in this paragraph is limited to the
replacement of loss or damaged products.
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(i) Country of Manufacture. Upon ESI's request, Apexx shall
provide ESI with an appropriate certification stating the
country of origin for Products and parts, sufficient to
satisfy the requirements of the customs authorities of the
country of receipt, and any applicable export licensing
regulations, including those of the United States. Apexx shall
xxxx each Product or the container if there is no room on the
Product, with the country of origin.
(j) Design Changes. Apexx may not modify any Products purchased
under this Agreement in any way that affects the Product's
form or function without prior written approval from ESI.
Apexx shall submit to ESI reasonable technical information
regarding such modification at least [*] ([*]) days prior to
implementing the modification, for approval by ESI. ESI may
suggest product improvements, bug fixes and customer
suggestions which Apexx shall respond to within [*] ([*]) days
with a written plan of action. Apexx reserves the right to
source components incorporated in the Product(s) from multiple
vendors, provided similar functional specifications, quality,
and qualification by Apexx. ESI may review and suggest changes
to material or vendor qualification programs used by Apexx to
select components used in the Products.
(k) Territory. ESI will have the right to sell the products listed
in Exhibit A worldwide through all ESI sales channels and
distribution.
(l) Export Regulations. ESI shall not export or re-export products
described in Exhibit A, directly or through others, to the
prescribed countries listed in Section 379.4 and associated or
successor sections of the U.S. Export Administration
Regulations unless properly authorized by the U.S. Government.
ESI agrees to indemnify Apexx for such violations of the
Export Administration Regulations.
2. Pricing of Apexx Products.
(a) Pricing and Price Changes. ESI agrees to purchase Apexx
products listed in Exhibit A, packaging, individual product
protective packaging, manuals, documentation, and auxiliary
components as may be required, from Apexx, at the prices
specified in Exhibit B ("Pricing") attached hereto, F.O.B.
factory. Apexx shall review with ESI the Product pricing on a
quarterly basis, at which time Apexx shall subsequently [*] on
the Product with ESI. Price reductions that are put into
effect by mutual agreement of both Parties shall apply to all
Purchase Orders issued by ESI after the date of such price
reductions and to all orders scheduled to ship. Apexx reserves
the right to increase prices upon [*] days ([*]) written
notice to ESI, if Apexx can document to ESI that the total
cost of components used in the given Product has increased
more than [*]%. Price increases that are put into effect by
mutual agreement of both Parties shall apply to all Purchase
Orders issued by ESI [*] ([*]) days after the notice date of
such changes. All price changes shall be effected by addendum
to Exhibit B reflecting the new pricing. In all cases Apexx
shall sell to ESI, Products [*].
ESI and Apexx agree to negotiate in good faith NEW pricing
following any ninety (90) day period that ESI's purchases
equal more than [*] ([*]) units.
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(b) Terms of payment. Terms for any purchase order shall be [*]%
net [*] ([*]) days, net [*] ([*]) days. Apexx shall invoice
ESI no earlier than the applicable shipping date for the
Products covered by such invoice. Invoices shall be
accompanied by proof of shipment. These terms of payment shall
be reflected on all invoices.
(c) Long Shipments. If Apexx ships more products than ordered, the
amount of the over shipment may either be kept by ESI for
credit against future Orders or returned to Apexx at Apexx's
expense.
(d) Short Shipments. Apexx shall grant a credit to ESI for any
short shipments claimed by ESI's customers on drop shipments
from Apexx, upon verification by Apexx.
3. Quality and Warranty
(a) Quality. Apexx shall maintain an objective quality program for
all Products and Parts supplied pursuant to this Agreement.
Upon ESI's request Apexx shall furnish related documents as
ESI reasonably requests concerning quality assurance. Apexx
shall maintain a quality standard defined as follows on
hardware/component related, out of box, Apexx shall verify
failures on a quarterly basis:
aa) System hardware defect level(s) not to exceed [*] PPM.
((The number of defective products/The number of products
delivered)*[*])
ab) An initial Annualized Failure Rate (AFR) rolling [*]
month target not to exceed [*]% with reaching an
established goal of <=[*]% within [*] months
((((The number of failures in the past three months/The number
of units under warranty)*[*])/[*])*[*])
Failure to meet the aforementioned established quality goals
shall be cause for written explanation /corrective action to
ESI as part of an ongoing compliant quality assurance and
corrective action program.
ESI shall have the right to inspect, with 2 working days
advance notification, at Apexx's facilities, and any vendor or
supplier components and the manufacturing processes used by
Apexx for those components in ESI product.
ESI's inspection may be for any reason reasonably related to
this Agreement, including to assure Apexx's compliance with
ESI's requirements. Apexx shall perform final test and
inspection of the products and certify that all products
comply with the requirements in Exhibit A.
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(b) Limited Warranty. Apexx warrants its products to be free from
defects in material, workmanship and performance, under normal
use and service and that each Product shall perform or operate
in compliance with the specifications in Exhibit A for a
period of [*] ([*]) months (hereinafter "Warranty Period")
from the date the product is shipped from Apexx's factory.
Apexx warrants that all Products shall comply with all
applicable governmental certificates as noted in Exhibit A.
Apexx warrants its products in the event of an Epidemic
Failure, defined as any failure of a same or similar nature
which occurs to more than [*]% of an quarters population of
Products or Parts within [*] ([*]) years after the ship date
from Apexx's factory. Upon ESI's request, Apexx shall furnish
a Corrective Action Report on any failures or defects. Apexx
shall keep specific production information corresponding to
each product purchased by ESI for a period of [*] ([*]) years.
This information will include but is not limited to serial
number, component and assembly manufacturer, component and/or
assembly lot code information.
(c) Product Return Policies.
Warranty Return. In the case of any product, which is still
under Warranty, ESI may return the product to Apexx, and Apexx
shall replace or repair the warranted Product as it deems
appropriate. Apexx shall, at its own expense be responsible
for shipping expenses to return defective units, by Apexx
crediting ESI for the shipping expenses ESI incurred. All
returned products must have a valid Return Materials
Authorization issued by Apexx.
Epidemic Failure Return. ESI shall return such products to
Apexx for repair or replacement within ten (10) business days
of Apexx's receipt of such products. Apexx shall, at its own
expense be responsible for shipping expenses to return
defective units, by Apexx crediting ESI for the shipping
expenses ESI incurred.
Software/Firmware Updates and Repackaging Returns. ESI may
return products in quantities of [*] to Apexx for
refurbishment, including updates to the latest version of
Apexx's software/firmware. Apexx agrees to complete
refurbishment within [*] ([*]) business days of receipt of
such products. ESI shall be responsible for shipping charges
related to such returns. Apexx shall bear the expense of
refurbishment to the extent of [*] ([*]) percent of the
previous [*] months shipment of products to ESI. The parties
agree to negotiate in good faith if returns under this
paragraph exceed [*] ([*]) percent of the previous [*] ([*])
months purchases.
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4. Manufacturing Rights
ESI has the right to manufacture Apexx products in Exhibit A in the event
that APEXX defaults on the terms of this agreement and the default is not
corrected within [*] ([*]) days of receipt of written notice from ESI. In
the case the default is not corrected within the [*] ([*]) day period,
APEXX will deliver all necessary documentation to ESI for ESI to
manufacture Apexx products. APEXX shall provide the documentation and up
to [*] hours of consultation to ESI manufacturing representatives at no
cost to ESI to assure a smooth transition. Apexx may charge ESI at a rate
of $[*] per hour plus reasonable travel expenses for additional
consultation regarding manufacturing transition or ongoing manufacturing
support. APEXX shall not warranty hardware manufactured by ESI. In the
case of Apexx defaulting and ESI manufacturing Apexx products in Exhibit
A, ESI shall pay to Apexx or its successor a royalty of [*]% of ESI's
Average Selling Price per unit manufactured by ESI for a period of [*]
from date of notice. Said royalty is the total payment due to Apexx or its
successor for manufacturing rights and software licenses. In the case of
ESI manufacturing Apexx products under this paragraph ESI acknowledges
that title for Apexx's software does not transfer to ESI.
ESI and Apexx agree to investigate and negotiate in good faith to find the
most cost effective manufacturing option, following any ninety (90) day
period that ESI's purchases equal more than [*] ([*]) units.
5. Copyright and Grant Of License
Apexx grants ESI the right to license the Apexx software contained in the
products described in Exhibit A subject to the terms and conditions of
this Agreement. Apexx further grants to ESI, as long as ESI is in
compliance with this Agreement, a non-exclusive, non-transferable license
to use, sell, or otherwise distribute all software associated with APEXX's
products described in Exhibit A.
ESI acknowledges that the Apexx SOFTWARE which is licensed with the
PRODUCT is protected by copyright laws and international copyright
treaties, as well as other intellectual property laws and treaties. The
Apexx SOFTWARE includes the TEAMPage control interface, installation
utilities and system software, whether localized for ESI or not, which is
copyright Apexx Technology, Inc. The Apexx SOFTWARE is licensed to ESI and
it's customers, not sold.
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6. Technical Support ESI shall provide all end user technical support, and
Apexx shall have no responsibility for the same. In the event ESI is
unable to diagnose and resolve an issue, ESI's designated support liaison
for that area will escalate the technical support call to Apexx's
technical support liaison. Apexx shall provide secondary telephone support
to ESI's designated support liaison to assist in resolving escalated
support issues. Apexx will make every reasonable effort to resolve open
support calls within [*] ([*]) hours. ESI shall make every reasonable
effort to develop at least one competent support liaison personnel who are
proficient in support of the Apexx OEM Products under this Agreement. At
the discretion of both Apexx and ESI, Apexx may work on support issues
directly with either ESI distributor or end-user customer. Apexx will
maintain a support log of all open and closed calls and report to ESI on a
monthly basis the nature and resolution of any support calls escalated to
Apexx. Apexx will provide to ESI full access to support notes and
database, and application notes. Apexx will provide one initial support
training session at a mutually agreed upon time and place and a complete
training package for ESI support staff. Further, Apexx will provide one
support training session at a mutually agreed upon time and place per six
month period.
7. Private Labeling
Manuals and Literature
Apexx shall provide ESI with current electronic copies of product
manuals and all other literature needed for shipping of products.
Apexx shall also provide all future updates to product manuals
and literature thirty (30) days prior to incorporation into
shipping version of products. ESI or ESI designees will modify
the electronic copy and return to Apexx for review. Apexx shall
purchase, manage and source the printing of the manual and any
product literature which ships inside the Product package. Apexx
shall grant ESI the rights to copy and duplicate Apexx literature
in whole or part.
Installation and Utility software
Apexx will make all modifications needed to private label all
shipping Installation and Utility software.
TeamPage Modifications
Apexx shall provide ESI with current electronic copies of
TeamPage text conversion files and graphics files to be modified
by ESI or ESI designees to Apexx specifications. Resulting files
will be returned to Apexx for incorporation into shipping version
of product software.
8. Software Upgrades
Apexx shall maintain the software for the ESI-label Product consistent
with updates to Apexx versions of the Product including but not limited to
design improvements, feature enhancements, quarterly releases and bug
fixes. Apexx shall also make, at least quarterly, lists available to ESI
reflecting Apexx's requested product improvements, bug fixes and customer
suggestions.
9. Term and Termination
(a) Term. This Agreement shall commence on the date hereof and
shall continue for an initial term ending on the [*]
anniversary of the date of this Agreement; provided, however
that this agreement will automatically renew each year for an
additional one year unless either party provides written
notice to the other Party of such Party's desire to terminate
this agreement at the end of the applicable term at least
ninety (90) days prior to the expiration of the then
applicable term.
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(b) Early Termination. If either Party fails to perform any of its
obligations provided in this Agreement and does not complete
its performance in spite of the other party's demand to do so,
the other Party may, without incurring any liability on its
part, terminate all or any part of this Agreement. In no event
shall either party terminate this Agreement unless written
notice detailing the non-performance is given to the other
Party. Thereafter, the other Party shall have thirty (30) days
to correct such non-performance.
(c) Bankruptcy. Except as may be prohibited by the U.S. bankruptcy
laws, in the event of any insolvency or inability to pay debts
as they become due by a party hereto, or voluntary or
involuntary bankruptcy proceeding by or against a party
hereto, or appointment of a receiver or assignee for the
benefit of creditors, the other party may elect to cancel any
unfulfilled obligations hereunder.
(d) Right of Succession. In the event of bankruptcy, insolvency,
or any other condition that leaves Apexx unable to continue to
reliably manufacture and support it's products. ESI shall have
the right to manufacture and maintain the products that
includes all software described in the product specification
Exhibit A to this agreement. If ESI manufactures the product
under this paragraph it shall pay to Apexx or its successor a
royalty of [*]% of [*] per unit ESI manufactures for a period
of [*] from the date of succession. Said royalty is the total
payment due to Apexx or its successor for manufacturing rights
and software licenses. The right of ESI under this paragraph
shall apply notwithstanding any other provision in this
agreement. Apexx shall maintain back-up source code, and
development environment tools in a mutually agreed to escrow
account for such purpose.
10. Risk of Loss.
The Parties agree that Apexx shall bear the loss for the destruction of
any completed or partially completed Products which may occur prior to
delivery thereof ("delivery" being defined as F.O.B. Apexx factory), and
that ESI shall bear the loss from the destruction or breakage of any
Products after F.O.B Apexx factory, unless such loss is occasioned by some
act or omission of duty on the part of Apexx, and subject, in any event,
to Section 1(h) above.
11. Strikes and Lockouts: Excuse for Nonperformance.
This Agreement is subject to strikes and lockouts or refusal of employees
to work. Impossibility of performance by reason of any legislative,
executive or judicial act of any government or state, any disaster or act
of God, or any other similar or dissimilar cause which cannot be prevented
by either Party or by the exercise of proper diligence, shall excuse
performance of this Agreement. Bankruptcy or insolvency of either Party
shall operate to cancel this Agreement and shall not operate as an
anticipatory breach thereof, and no rights by or against any trustee in
bankruptcy shall arise by reason of or under the terms of this Agreement
nor from any failure of either Party to continue to perform under this
Agreement after the filing of any petition in bankruptcy or insolvency.
The Parties agree that the Party who is unable to perform its obligations
hereunder because of any of the reasons set forth in this Section 9 shall
give prompt written notice to the other Party of such inability to
perform. Nothing in this paragraph shall alter or impair ESI's rights
under paragraph 9 (d).
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12. Confidentiality.
The Parties hereby acknowledge and agree that this Agreement and the terms
of this Agreement and all Information furnished by either Party to the
other Party with respect to Products, any ESI furnished technical
information or Apexx furnished technical information, and other products
and product plans shall be deemed confidential (collectively the
"Confidential Matters"). As used herein, "Information" shall include all
information concerning the Confidential Matters, including without
limitation, all information, designs, drawings, plans, pricing,
specifications, patent applications, and all other information pertaining
or relating to the Confidential Matters. Each Party agrees that it will,
except as required by any state or federal regulations, keep all
Information and the terms and provisions of this Agreement confidential
and will not: (a) disclose or permit the disclosure of any of such
Information to any person or entity (including without limitation, any of
its employees, agents, representatives and affiliates, but not including
any employees of either Party on a need-to-know basis, but only after such
Party informs such employees of the existence of this confidentiality
provision); it being hereby agreed by each Party that they will each exert
reasonable efforts to insure that such employees comply with the terms of
this confidentiality provision); or (b) use or permit the use of the
Information in any way detrimental to the other Party. From time to time,
either Party may wish to publicly disclose the existence of this contract
for promotional, legal or other reasons. In such cases, a request will be
presented in written form to the other Party for approval of disclosure.
Such approval shall not be unreasonably withheld.
13. Indemnity.
(a) against any claims, demands, liabilities, or expenses
(including attorney's fees and costs) for any injury, damage,
or liability of any type including, but not limited to, any
personal or bodily injury or property damage, arising out of
or resulting in any way from any defect in Products. This duty
to indemnify ESI shall be in addition to the warranty
obligations of Apexx.
(b) Infringement Claims. Apexx shall defend, indemnify and hold
ESI harmless from and against all damages and costs incurred
by ESI arising from the infringement of any patents,
copyrights, trademarks, trade secrets, or other proprietary
rights in the manufacture of the Products; provided that, ESI
promptly notifies Apexx of the charge of infringement or legal
proceeding. If there is a claim made or threatened, Apexx may,
at its expense and option, either procure the right to
continue using any part of Product, replace same with a
non-infringing Product, or modify Product such that it is
non-infringing; provided that, if within ninety (90) days
after a claim has been made, Apexx has not procured such
right, replaced the Product, or modified the Product so that
it does not infringe, ESI may return the Product to Apexx for
a full credit against future purchases or for a cash refund,
at ESI's option. In addition, upon the written request of
Apexx, ESI shall immediately cease selling any Apexx Products
which may be the subject of indemnification under this Section
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(c) Except to the extent Apexx is responsible for a claim under
the above subparagraphs of this paragraph 13, ESI shall
indemnify, hold harmless and at Apexx's request defend Apexx
from and against and any and all claims, liabilities, damages
and expenses (including the actual fees of attorneys and other
professionals and all related costs and expenses) arising out
of or in connection with ESI's false or fraudulent use,
reproduction, representations or distribution of the software
and Products in Exhibit A.
14. [*] Reporting
ESI shall provide quarterly product [*] reports indicating [*] the
Products shipped, whether under OEM purchase or manufacturing
license, subtotaled by [*], for any [*] requested by Apexx. Apexx
shall handle this information as ESI company confidential.
15. Taxes
ESI will not hold Apexx responsible for export duties or export
taxes, which may be assessed with regard to the Products, sold and
licensed under this Agreement.
16. Miscellaneous.
(a) Parties in Interest. This Agreement and all terms, covenants
and conditions contained herein shall inure to the benefit of and
shall be binding upon the undersigned Parties and their respective
heirs' executors, administrators, trustees, successors and assigns.
Neither Party may assign or transfer any of its rights or
obligations hereunder without prior written consent of the other
Party, which consent shall not be unreasonably withheld; provided,
however, that any Party may assign this Agreement to any entity in
which such party has a controlling equity interest.
(b) Notices. All notices, requests, demands and other
communications hereunder shall be In writing and shall be deemed to
have been delivered on the date on which it is hand-delivered or
delivered by facsimile, or on the third business day following the
date on which it is pulled, first-class, postage prepaid, and
registered or certified with return receipt requested, for purposes
of notice, the addresses of the parties shall be:
If to ESI: Extended Systems, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxx 00000
Xxxxxx X. Xxxxxx, Corporate Counsel
Ph: 208/322-7575
Fx: 208/327-5011
with copy to Extended Systems, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxx 00000
Xxxxx X. Xxxx, CFO
Ph: 208/322-7575
Fx: 208/327-5011
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If to Apexx: Apexx Technology, Inc.
000 X 00xx Xxxxxx
Xxxxx, XX 00000
Attention: President
Ph: 208/336-9400
Fx: 208/336-9445
Any Party may change its address for notice by written notice given to the other
Party in accordance with this Section.
(c) Survival. Any debts, obligations, covenants or liabilities
accrued hereunder between the Parties hereto shall survive the
expiration or termination of this Agreement for whatever
reason.
(d) Entire Agreement. This Agreement constitutes the entire
agreement between the Parties regarding the subject matter
hereof and supersedes all prior agreements and understandings,
both written and oral, between the Parties with respect to the
subject matter hereof. Each of the Parties agrees to take such
actions as may be necessary or desirable to implement and
retain the intent and spirit of this Agreement, and omit to
take such actions which could hinder the furtherance of such
intent and spirit.
(e) Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws
effective during the term, such provision shall be fully
severable and this Agreement shall be construed and enforced
as if such illegal invalid or unenforceable provision never
comprised a part hereof, and the remaining provisions hereof
shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or
by its severance here from. Furthermore, in lieu of such
illegal, invalid or unenforceable provision, there shall be
added automatically as part of this Agreement a provision as
similar in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and
enforceable.
(f) Governing Law. Any dispute regarding the enforcement,
interpretation or validity of this Agreement shall be governed
by the laws of the State of Idaho. The parties hereby agree
that any dispute relating to the products sold hereunder in
this Agreement shall be subject to the exclusive jurisdiction
of the courts within the State of Idaho, unless otherwise
mutually agreed to in writing by the Parties..
(g) Heading. The headings in the Agreement are for convenience of
reference only and shall not be limit or otherwise affect the
meaning of this Agreement.
(h) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and
all of this shall constitute one and the same instrument by
only one of which need be produced.
(i) Attorney Fees. In the event of litigation between the Parties
arising out of this agreement, the prevailing Party shall be
entitled to reasonable attorney fees from the non prevailing
Party.
12
[EXTENDED SYSTEMS LOGO] OEM PURCHASING AGREEMENT
FOR
EXTENDNET INTERNET ACCESS SERVER
EXECUTED as of the date first above written.
EXTENDED SYSTEMS INCORPORATED.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Title: CEO/ President
-------------------------------------
Witness: /s/ Xxxxx Xxxxx
-----------------------------------
APEXX TECHNOLOGY INCORPORATED
By: /s/ Xxx Xxxxxxxxxxxxx
----------------------------------------
Title: President
-------------------------------------
Witness: /s/ Xxxx Xxxxxxxx
-----------------------------------
13
[EXTENDED SYSTEMS LOGO] OEM PURCHASING AGREEMENT
FOR
EXTENDNET INTERNET ACCESS SERVER
EXHIBIT A
PRODUCT SPECIFICATIONS AND MODEL OPTIONS
Specifications.
Overview.
Product is to be an Extended Systems OEM version of Apexx's Team
Internet product. The product will be identified as Extended
System's "ExtendNet Internet Access Server" or "ExtendNet IAS".
All software, product enclosures, manuals, labeling, packaging
and product references will identify it as such. ExtendNet IAS
models include System Hardware, System Software, and Client
Software and Model Options as listed.
Hardware.
System Hardware.
[*]
Packaging and Miscellaneous Parts.
Packaging
External Box for protection of Internal Box during shipment
Internal Box
Internal Tray
[*] CONFIDENTIAL TREATMENT REQUESTED
14
[EXTENDED SYSTEMS LOGO] OEM PURCHASING AGREEMENT
FOR
EXTENDNET INTERNET ACCESS SERVER
External and Internal Box Labels with Serial Number Labels
Protective Anti-Static bag for case
Foam Packaging Materials for product shipping protection
Miscellaneous Parts
TCP/IP Installation disk for Windows 3.1 Users (ESI
version)
Manual
Quick Install
Warranty Card with Model Number label
Software.
All software has an unlimited user license.
System Software.
[*]
Client Software.
Utility Software
[*]
3rd Party Software
Microsoft Internet Mail for Windows users
Microsoft Internet News for Windows users
Microsoft Internet Explorer v3.0 for Windows users
TCP/IP for Windows 3.x Users
Features
Dial Management
[*]
Mail Server (POP3/SMTP)
Supported Mail Delivery Schemes
[*]
DHCP Server
Security Firewall
[*]
Remote Technical Support
Allows Software Upgrades from Internet FTP Site
Supported Clients
[*] CONFIDENTIAL TREATMENT REQUESTED
15
[EXTENDED SYSTEMS LOGO] OEM PURCHASING AGREEMENT
FOR
EXTENDNET INTERNET ACCESS SERVER
Windows v3.x
Windows for Workgroups
Windows 95
Windows NT
Apple Macintosh System 7 or higher MacOS (MacTCP or Apple
Open Transport) DOS-based TCP/IP applications All UNIX
variants with TCP/IP support
Client Status Utility for Windows Clients
monitor TEAM Internet's status
connection status
users connected
data transfer speeds
Supported Clients
Windows v3.1
Windows for Workgroups
Windows 95
Windows NT
Networks Supported
Novell NetWare 3.x and 4.x, running TCP/IP protocol along
with IPX Microsoft Windows NT, Windows 95, and Windows for
Workgroups networks Windows peer-to-peer and Windows NT
server-based networks MacOS with TCP/IP support (MacTCP or
Apple Open Transport)
Model Options
Power
Model Number Internal Card Options Cord Notes
---------------------------------- ------------------------------- ---------- ---------
ESI Apexx Communications Network
-------------------- ------------ ----------------- ------------- ---------- ---------
1200A-N1-I1-EUR/GRM [*] Euro-ISDN 10Mbs Combo EUR
1200A-N1-I1-UK [*] Euro-ISDN 10Mbs Combo UK
1200A-N1-I1-AUS [*] Euro-ISDN 10Mbs Combo AUS
1200A-N2-I1-EUR/GRM [*] Euro-ISDN 10/100 EUR
1200A-N2-I1-UK [*] Euro-ISDN 10/100 UK
1200A-N2-I1-AUS [*] Euro-ISDN 10/100 AUS
1200A-N1-I3-JP [*] NTT-ISDN 10Mbs Combo JP
1200A-N2-I3-JP [*] XXX-XXXX 00/000 XX
1200A-N1-M1-GRM [*] 33.6K GR 10Mbs Combo EUR
1200A-N1-M2-GRM [*] 56K x2 GR 10Mbs Combo EUR
1200A-N1-M3-GRM [*] 56K flex GR 10Mbs Combo EUR
1200A-N2-M1-GRM [*] 33.6K GR 10/100 EUR
1200A-N2-M2-GRM [*] 56K x2 GR 10/100 EUR
1200A-N2-M3-GRM [*] 56K flex GR 10/100 EUR
1200A-N1-M1-UK [*] 33.6K UK 10Mbs Combo UK
1200A-N1-M2-UK [*] 56K x2 UK 10Mbs Combo UK
1200A-N1-M3-UK [*] 56K flex UK 10Mbs Combo UK
1200A-N2-M1-UK [*] 33.6K UK 10/100 UK
1200A-N2-M2-UK [*] 56K x2 UK 10/100 UK
1200A-N2-M3-UK [*] 56K flex UK 10/100 UK
[*] CONFIDENTIAL TREATMENT REQUESTED
16
[EXTENDED SYSTEMS LOGO] OEM PURCHASING AGREEMENT
FOR
EXTENDNET INTERNET ACCESS SERVER
1200A-N1-M1-SW [*] 33.6K SW 10Mbs Combo EUR
1200A-N1-M2-SW [*] 56K x2 SW 10Mbs Combo EUR
1200A-N1-M3-SW [*] 56K flex SW 10Mbs Combo EUR
1200A-N2-M1-SW [*] 33.6K SW 10/100 EUR
1200A-N2-M2-SW [*] 56K x2 SW 10/100 EUR
1200A-N2-M3-SW [*] 56K flex SW 10/100 EUR
1200A-N1-C0-EUR [*] None 10Mbs Combo EUR
1200A-N1-C0-UK [*] None 10Mbs Combo UK
1200A-N1-C0-AUS [*] None 10Mbs Combo AUS
1200A-N1-M1-AMR [*] 33.6K AMR 10Mbs Combo AMR
1200A-N1-M2-AMR [*] 56K x2 AMR 10Mbs Combo AMR
1200A-N1-M3-AMR [*] 56K flex AMR 10Mbs Combo AMR
1200A-N2-M1-AMR [*] 33.6K AMR 10/100 AMR
1200A-N2-M2-AMR [*] 56K x2 AMR 10/100 AMR
1200A-N2-M3-AMR [*] 56K flex AMR 10/100 AMR
1200A-N1-I2-AMR [*] Ext. AMR ISDN 10Mbs Combo AMR
1200A-N2-I2-AMR [*] Ext. AMR ISDN 10/100 AMR
1200A-N1-F1-AMR [*] 56K Frame AMR 10Mbs Combo AMR
1200A-N2-F1-AMR [*] 56K Frame AMR 10/100 AMR
Communications Options
Xxxx-XXXX
XXX-XXXX
00.0X XX
00X x0 XX
56K flex GR
33.6K UK
56K x2 UK
56K flex UK
33.6K SW
56K x2 SW
56K flex SW
None
33.6K AMR
56K x2 AMR
56K flex AMR
Ext. AMR ISDN
56K Frame AMR
Network Options
10/100
10Mbs Combo
Power Cord Options
EUR
UK
AUS
AMR
JP
[*] CONFIDENTIAL TREATMENT REQUESTED
17
[EXTENDED SYSTEMS LOGO] OEM PURCHASING AGREEMENT
FOR
EXTENDNET INTERNET ACCESS SERVER
EXHIBIT B PRICING
ESI Model # Apexx Model # OEM Price Notes
------------------------------ ------------- --------- --------------------------------
1200A-N1-I1- [*] $[*]
EUR/GRM/UK/AUS/FR/I/J/NL/SE/CH
1200A-N2-I1- [*] $[*]
EUR/GRM/UK/AUS/FR/I/J/NL/SE/CH
1200A-N1-I3-JP [*] To be Negotiated at a later time
1200A-N2-I3-JP [*] To be Negotiated at a later time
1200A-N1-M1- [*] $[*]
EUR/GRM/UK/AUS/FR/I/J/NL/SE/CH
1200A-N2-M1- [*] $[*]
EUR/GRM/UK/AUS/FR/I/J/NL/SE/CH
1200A-N1-M2- [*] To be Negotiated at a later time
EUR/GRM/UK/AUS/FR/I/J/NL/SE/CH
1200A-N2-M2- [*] To be Negotiated at a later time
EUR/GRM/UK/AUS/FR/I/J/NL/SE/CH
1200A-N1-M3- [*] To be Negotiated at a later time
EUR/GRM/UK/AUS/FR/I/J/NL/SE/CH
1200A-N2-M3- [*] To be Negotiated at a later time
EUR/GRM/UK/AUS/FR/I/J/NL/SE/CH
1200A-N1-C0- [*] $[*] For Non-EU and Non-US sales
EUR/GRM/UK/AUS/FR/I/J/NL/SE/CH
1200A-N1-M1-AMR [*] $[*]
1200A-N2-M1-AMR [*] $[*]
1200A-N1-M2-AMR [*] $[*]
1200A-N2-M2-AMR [*] $[*]
1200A-N1-M3-AMR [*] $[*]
1200A-N2-M3-AMR [*] $[*]
1200A-N1-I2-AMR [*] $[*]
1200A-N2-I2-AMR [*] $[*]
1200A-N1-F1-AMR [*] $[*]
1200A-N2-F1-AMR [*] $[*]
[*] CONFIDENTIAL TREATMENT REQUESTED
