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EXHIBIT 10.9
STRATEGIC ALLIANCE AND MARKETING AGREEMENT
This Agreement is entered into as of this 22nd day of October, 1998 (the
"Effective Date") by and between Xxxxxx Xxxxxxxxxxx (hereinafter "Unisys"), a
Delaware corporation, with offices at 0000 Xxxxxxxx Xxxxx, XxXxxx, Xxxxxxxx
00000, and Objective Communications, Inc., (hereinafter "Seller" or
"Objective"), a Delaware corporation, with offices at 00 Xxxxxxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000-0000.
RECITALS
The purpose of this document is to establish a strategic alliance and marketing
agreement ("Agreement") between Unisys and Objective. This Agreement outlines
the cooperative proposal activities, sales, marketing, delivery, support and
working relationship that Unisys and Objective will pursue in the U.S. Federal
Government (the "Government") market sector for the period covered by this
Agreement. Unisys and Objective agree to perform their respective obligations,
as set forth in this Agreement.
Unisys has need of particular types of hardware, software and related products
used in the production of video modems and related customer-premises video and
multimedia distribution and switching products, which are essentially Seller's
products as set forth in Seller's then-current standard Product and Price
Listing or as otherwise defined (hereinafter "Products") for its use and for
lease, rental, sublicense, and/or sale to others; and
Seller, among other things, is engaged in the design, manufacture, and sale of
said Products and elements thereof, and Seller is willing to sell such Products
to Unisys.
In consideration of the mutual covenants herein contained and intending to be
legally bound by the provisions of this Agreement, Unisys and Seller agree as
follows:
I. SCOPE
A. EXCLUSIVITY: Unisys shall be the exclusive reseller of Objective's Products to the United States
Courts. Unisys shall be the non exclusive reseller of Objective's Products to the Federal
Government* * * * * *
* * * * * *
* * * * * **
* *Unisys will:
1. Promote Objective's Products throughout the Unisys Federal customer base;
2. Provide Objective's Product and feature training to Unisys sales personnel;
3. Promote Objective's Products at key Industry Trade Shows;
4. Include Objective's Products in the Unisys / Microsoft Application Development Center of
Excellence;
5. Include Objective's Products, whenever possible and as mutually agreed by the parties,
on existing government contracts;* *
* * * * * *
* * * * *
* * * * *
* * *
*Text deleted pursuant to an application for Confidential Treatment under Rule
24b-2 of the Securities Exchange Act of 1934, as amended, and filed separately
with the Securities and Exchange Commission.
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B. PRODUCT SET: Unisys reserves the right to purchase any Product which
Seller offers to any other reseller pursuant to the terms of this
Agreement. Seller shall sell all new Products and Product
enhancements to Unisys if such Products are generally available for
sale to others. Unisys may productize and/or engage in proactive
marketing programs on any one or more of these Products.
Productization includes promoting the sale of the Products within the
Unisys sales force and to our customers and entering the Product data
and pricing in the on-line database for dissemination to the field
sales personnel.
C. SALE TO OTHERS: Unisys is authorized to sell and support the Products
for both end user and reseller customers of Unisys.
D. MAINTENANCE: Unisys is authorized to provide maintenance/support
services for Products to its customers regardless of whether or not
Unisys sold the customer the Products.
II. SALES AND MARKETING
A. MARKETING PROGRAMS: Unisys and Seller will work together to develop
marketing programs to promote visibility and customer awareness for
the Unisys/Seller relationship.
B. TRAINING: Seller will provide reasonable sales and configuration
training, at a location mutually agreed by the parties, at no charge
to Unisys. The training will be designed to familiarize Unisys sales,
marketing, technical and program management personnel with the
features and functionality of the Products. Unisys will be allowed to
videotape such training.
C. PRE-SALE SUPPORT: Seller shall provide pre-sale Product support,
including customer site support if needed. Seller shall advise Unisys
regarding availability of CD-ROM, Bulletin boards, telephone, and
Internet support and shall provide links to demo facilities.
D. MARKETING DEVELOPMENT FUNDS: Seller shall provide reasonable funds
for Unisys use to advertise and promote the sale of Objective's
Products in conjunction with Unisys contracts and solutions. Such
funds will be based on parameters to be mutually agreed by the
parties. Seller and Unisys may participate in co-advertising and
joint seminars.
E. CENTER OF EXCELLENCE: During the term of this Agreement, Seller
agrees to provide, at no charge to Unisys, the following Products and
related support:
1. Objective shall provide the following minimum
configuration for initial use and testing:
1 BDL-1020-0001-AGA VidPhone Switch - 20 User Bundle
20 BDL-6000-0101-WBM Win95 Station with AVD (NTSC)
1 BRD-0500-0001-AAA Conference Bridge
5 CBL-0015-0000-AAA Direct Access5 Extension Cable
1 GWY-1000-0001-AAA H.320 ISDN Gateway
1 Roll About Flat Panel VideoConferencing System
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2. Objective shall provide the technical support necessary to ensure
successful testing, use and demonstration of its Products during the
development phase and the operation of the Center of Excellence. At
a minimum, such support shall include:
- Technical points of contact
- Hardware support to repair / replace failed products or
components in a timely manner.
III. BUSINESS ADMINISTRATION
A. TERM OF AGREEMENT: This Agreement has an initial term of one (1) year
from the Effective Date and shall automatically renew for successive
one year terms unless earlier terminated. Either party may terminate
this Agreement with written notice issued at least ninety (90)
calendar days prior to the effective termination date. Any such
termination shall only affect continuation of this Agreement and may
not affect arrangements which were established as a result of this
Agreement.
B. ORDERING OF PRODUCTS:
Unisys authorized personnel may issue purchase orders for Products
under the provisions of this Agreement.
C. GOVERNMENT CONTRACT PROVISIONS:
If an order specifies that Products are for resale to a state, local
or federal government, Seller agrees to be bound by the specific
government contract provisions attached to or referred to in the
order which Unisys is required by law to include in its subcontracts.
Such orders are subject to Seller's acceptance.
D. ORDER CONTENT / ACCEPTANCE:
Each order shall specify quantities, prices, delivery schedules,
destination, and other similar matters necessary for the individual
transaction to be adequately described. Orders are deemed accepted by
Seller if issued in accordance with the provisions of this Agreement.
E. PURCHASE COMMITMENTS:
Unisys shall not be obligated to order or purchase any specific or
minimum quantity of Products under this Agreement. The sole
obligation and liability of Unisys to Seller shall be limited to the
actual quantities of Products specified by purchase orders issued
pursuant to this Agreement.
F. PRICING/TERMS: The net purchase price to Unisys is based on Seller's
then-current Standard Product and Price List as of the date of
shipment, less applicable discounts as set forth in Addendum A of
this Agreement. Seller shall use reasonable efforts to provide
Product and price change information to Unisys in electronic format
and in a timely manner so as to allow updates of the Unisys ordering
and sales support systems. The Unisys discount shall not change
except by mutual agreement of the parties. Payment terms are Net 30
days from receipt of a proper invoice. Unisys and Seller agree to
negotiate "bid specific" pricing on an as needed basis to effectively
meet customer needs or competition on specific sales opportunities.
G. TERMINATION/CANCELLATION/RETURNS: Unisys may cancel orders for
standard Products prior to shipment at no charge. Custom built or
configured Products may be canceled at terms mutually agreeable to
the parties. Either party may terminate this Agreement for default,
subject to the
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provision of written notice specifying such default and the allowance
of a sixty (60) day cure period after receipt of such notice to cure
the default. Unisys may return any non-defective properly packaged
Product for a full refund.
H. MOST FAVORED CUSTOMER: Seller warrants that the prices, payment terms
and other terms and conditions stated for the Products, spare parts,
and supplies covered by this Agreement are not less favorable than
prices, payment terms or other terms and conditions accorded to
Seller's most favored customer for like items in similar quantities.
If, at any time during the term of this Agreement, Seller provides to
such customer of Seller more favorable net prices, payment terms or
other terms and conditions for products and services which are
substantially comparable to those licensed or sold to Unisys
hereunder, Seller shall extend such prices, payment terms and other
terms and conditions to Unisys.
I. LOGISTICS: Seller shall provide to Unisys all current Product
lead-time information and update changes as needed. If lead-times
become non-competitive or fail to meet market demand, Seller and
Unisys will cooperate to reduce adverse impact on sales; an example
would be to establish forecasts of orders to manage availability, and
such order schedules would be modified to meet actual requirements in
a timely manner with sufficient notice to Seller prior to scheduled
delivery dates. Seller will promptly advise Unisys of any schedule
changes on all open orders. Seller agrees to pay Unisys liquidated
damages for late delivery in the amount of which the customer is
contractually entitled from Unisys, provided that Unisys had advised
Seller of the customer's inclusion of a liquidated damages provision
and Seller had agreed to such provision. Seller shall provide
expedited delivery capability to meet critical Products availability
dates as needed. Seller shall ship Products to domestic and
international destinations from the most cost effective
manufacturing/inventory location. Seller is not authorized to make
partial shipments unless Unisys requests or approves partial delivery
in writing.
J. PACKING: Products shall be suitably packed and shipped in accordance
with standard commercial packing, the requirements of common
carriers, and in such manner as to assure against damage from
transportation, weather, and other environmental conditions. The
Unisys purchase order number and part numbers, and any other
information required by the customer, must be plainly marked on all
invoices, inner-packages, outer packing, bills of lading, and
shipping orders. See Addenda C and D for further information and
requirements.
K. SHIPPING:
1. Unisys may, from time to time, direct the use of specific carriers
or premium modes of transportation and arrange for direct billing of
freight charges to Unisys. If such Unisys direction relative to
premium modes of transportation is necessitated by Seller's failure
to perform in accordance with established schedules, Seller shall
bear any resulting increase in transportation and packing costs.
2. All orders must ship complete. No partial shipments are authorized
unless Unisys provides explicit written authorization to do so. No
invoices should be submitted, nor will they be processed for payment
until the order ships complete unless otherwise authorized.
L. EXPORT: Unisys may request that Seller export Products to Unisys
organizations or Unisys customers located outside of the United
States, in which case Seller shall be the exporter of record. Seller
shall then be responsible for compliance with applicable export
regulations, including obtaining requisite export and/or re-export
licenses, if any, in Seller's name covering said shipment
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to the consignee (customer). Unisys shall provide Seller
documentation necessary for Seller's use in application for export
licenses or permits enough in advance of scheduled delivery dates so
that Seller's associated shipping schedules shall not be impacted by
government processing time. Any customs or duty charges will be the
responsibility of Unisys.
M. ADMINISTRATION/NOTICES: All official notices shall be in writing and
shall be sent by certified mail, return receipt requested, or by wire
communications (i.e., telex, twx, facsimile, etc.), to the respective
Contract Administrator, at the address noted below, or as may be
changed from time to time by notice similarly given. Written and
other forms of notices applicable to orders shall be sent to Unisys
procurement personnel at the addresses noted in the orders affected.
1. For Unisys
General administration and liaison shall be
performed by Xxxxxxx Xxxxxxxxx, Manager
Contracts and Pricing (referred to herein as
"Unisys Contract Administrator"), or her
designee or successor.
Marketing liaison shall be performed by Xxxxx
Xxxxx (referred to herein as "Unisys Marketing
Administrator"), or his designee or successor.
2. For Seller
General administration and liaison shall be
performed by Xxxxxx Xxxxx, Vice President
Administration & Finance (referred to herein as
"Seller's Contract Administrator"), or his
designee or successor.
Marketing liaison shall be performed by Xx
Xxxxxxx, Director, Business Development
(referred to herein as Seller's Marketing
Administrator"), or his designee or successor.
.
3. The Marketing Administrators may clarify, explain, provide further
details, handle necessary marketing matters, implement marketing
aspects, and develop administrative procedures, but shall have no
authority to affect or change any of the terms and conditions of this
Agreement. The exercise of Unisys rights of termination or
cancellation and the exercise of other general rights of Unisys are
reserved to Unisys Contract Administrator.
IV. PRODUCT SUPPORT
A. Express Warranties:
1. Seller warrants that:
a. The Products shall be free of defects in material and
workmanship for a period of the greater of twelve (12) months from
the date of installation or fourteen (14) months from date of
invoice;
b. The Products shall be of new manufacture, in
conformance with applicable specifications and regulatory agencies'
requirements, free of defects in design, and free of any claim,
encumbrance or lien; and
c. The Products shall be free of latent defects. As used
herein, latent defects are defects that meet the following criteria:
(i) such defects are not apparent to either party during
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customary manufacturing or quality testing and/or inspection, (ii)
such defects result solely from defective material, workmanship, or
design and are not caused by misuse or misapplication of the Product,
and (iii) such defects occur in at least three percent (3%) of a
specific model of Product sold to Unisys during the life of the
Product but limited to a maximum of ten (10) years after the initial
delivery to Unisys of such Product,
2. Seller shall repair or replace Products which are not in
conformance with any of the foregoing warranties, and such obligation
to repair or replace shall apply to the future performance of the
Products so as to keep them in operating condition during each
warranty term.
3. Products repaired or replaced under the original warranty shall be
warranted for the longer of the remainder of the warranty period on
the original Products or three (3) months from reshipment of the
repaired or replacement Products by Seller.
4. Seller represents and warrants that it has title and the right to
sell Products free and clear of all liens and encumbrances and the
right to grant the software misappropriation or patent or copyright
infringement in connection with the sale and licensing of the
Products to Unisys.
5. Seller's warranties, together with its service guaranties, shall
run to Unisys and end users. Unisys inspection, approval, acceptance,
use of, or payment for Products shall in no way affect Unisys
warranty rights, whether or not a breach of warranty had become
evident at the time. Seller shall honor customer warranty claims
during the warranty period. However, Unisys reserves the rights to
sell Product warranty uplifts or maintenance services to its clients
and deliver such services directly to its clients during said
warranty period.
B. Remedies for Breach of Warranty
1. Any Product, which fails within the first thirty (30) days
after installation, shall be considered Dead on Arrival
("DOA"). DOA Products shall be replaced by Seller
immediately upon notification of such occurrence and prior
to the return of such DOA Products. For other than DOA
occurrences, Unisys may return to Seller any Products in
breach of any warranty, and Seller shall reship the
repaired or replacement Product to Unisys within thirty
( 30 ) days whenever possible and no later than ninety
( 90 ) days after receipt of the nonconforming Products
returned by Unisys.
2. Unisys or its authorized agent shall submit warranty
claims to Seller in writing, within a reasonable time,
stating the nature and date of the claim.
3. Special billing procedures for replacement Products may be
established as needed based upon mutual agreement of the
parties.
4. Seller shall bear all freight charges associated with
warranty claims for shipments to and from Unisys
locations.
5. Seller shall have the risk of loss, destruction, or damage
to all returned Products while in Seller's possession and
while in transit during return to Seller and reshipment to
Unisys.
6. Unisys rights under this Article are cumulative and
nonexclusive and in addition to all other rights and
remedies that Unisys may have in law or equity.
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C. Product Support
Unisys shall be authorized to perform first level support and
maintenance for the Products in a manner, which meets or exceeds
Seller's service provision standards whether or not Unisys sold the
Products to the customer. Seller shall provide secondary support to
Unisys, at Unisys request, in supporting and maintaining the
Products, at no charge to Unisys when the Products are under warranty
and at mutually agreed charges for time and material when the
Products are under extended warranty or maintenance.
D. Seller-Provided Technical Training
1. Unisys and Seller recognize the importance of training for
the successful support of all Products. Unisys agrees to
provide adequate staff and facilities to properly support
Seller's Products.
2. Seller shall, when requested by Unisys, provide sufficient
initial training sessions to train sixteen (16) people at
no additional charge. These initial training sessions will
cover installation procedures, configuration, operation,
trouble shooting and repair of the Products.
3. Seller shall provide all manuals and course materials for
the training specified in Paragraph 2, above. Seller
grants Unisys the right to reproduce, modify, translate,
and distribute manuals and course materials and the right
to disclose the information contained therein for its own
training purposes.
Seller shall provide camera ready copy and/or electronic
media of such manuals and course materials, as well as
course outlines, lesson guides, training aids, and other
related materials, as available, for Unisys use in setting
up its own training courses. Such manuals and course
materials furnished to Unisys, and all copies thereof made
by Unisys, shall become the property of Unisys.
4. The preferred methodology for delivering training provided
under Paragraph 2, above, is CBT (Computer Based
Training), Video, or Self-Study for first level support,
with more in-depth training reserved for second level
support. Should Instructor-led training be required, it
shall be done at times and locations mutually agreeable to
the parties; provided, however,
a. if the training is to be performed at Seller's
facility, Seller shall furnish all things required for
such training and Unisys shall bear the cost of travel and
living expenses of its personnel.
b. if the training is to be performed at other than
Seller's facility, Unisys shall provide adequate training
facilities and Seller shall bear the cost of travel and
living expenses for its personnel.
5. If improvements or enhancements are made or new Products
(s) are added to this Agreement, and training for same is
reasonably required by Unisys, Seller shall provide the
type of training noted in Xxxxxxxxx X-0, above, as well as
manuals and course materials,
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for sixteen (16) people, at no charge or cost to Unisys
except as set forth in Paragraph b, of D-4 above.
6. Seller shall, as requested by Unisys, provide additional
training courses and/or training as noted herein for
additional Unisys personnel.
E. Software Update/Upgrade Distribution
Seller shall make available object code and user documentation for
all software maintenance releases, patches, bug fixes, updates and/or
upgrades in accordance with the following priority of option
preferences:
1. Electronic Bulletin Board (Dial-Up) - Preferred.
2. Seller maintains current software release status
directly with Unisys customers based upon Seller's drop
ship customer record.
3. Seller provides packaged deliverable Product for
distribution by Unisys.
4. Seller provides gold master copies of materials for
Unisys reproduction and distribution.
F. Spare Parts
Parts pricing shall be established at a discount equal to or greater
than the discounts available from published list prices for Products
under this Agreement. Seller shall ship parts in stock within one
( 1 ) days after receipt of order and lead time plus five (5) days
for parts not in stock. Seller agrees to provide spares and/or repair
services for a period of three (3) years after the end of Product
life or the termination of this Agreement, whichever period is
longer, at prices consistent with those afforded to other similarly
situated resellers during the applicable time period.
G. Information
Seller will provide to Unisys a reasonable number of sets of Product
documentation as needed to provide support to its customers, and the
limited right to reproduce such documents from time to time for use
within its support organization.. Seller must maintain a Product
quality database, including records substantiating Product compliance
with regulatory requirements and, upon reasonable request, allow
Unisys to examine such database. Seller must have a problem
prioritization and tracking system with response time commitments for
problem resolution as mutually agreed by the parties.
H. Diagnostic Software
When applicable, Seller shall, at no cost to Unisys, provide Unisys
with sufficient copies of existing Diagnostic Software for the
Products. Seller hereby grants to Unisys non-exclusive and
non-transferable license to copy and reproduce the Diagnostic
Software solely for the purpose of the Unisys maintenance
organization to meet the demands of the service delivery. The terms
of this license shall continue until such time that Unisys no longer
provides Product support services to its end-users.
I. Configuration Control
Seller shall provide Unisys at least ninety (90) days notice of any
change in the Products which affects form, fit, function, regulatory
approvals, interface, interchangeability, reliability, or
maintainability.
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J. Escrow
Seller agrees that Unisys shall have the option to require Seller to
place source code and other technical documentation into escrow,
should it become evident that Seller will no longer be able to
perform pursuant to this Agreement. This right is deemed to include
firmware which is downloadable to "flash" memory.
V. LEGAL PROVISIONS
This Article contains standard legal terms and conditions relating to the
purchase and resale of Products under this Agreement.
A. CONFIDENTIAL INFORMATION AND DISCLOSURE
1) Any information which either party may disclose to the other party
shall not be deemed to be confidential and shall be acquired free
from any restriction, unless the information is proprietary to the
disclosing party and, if it is disclosed in tangible form, the
disclosing party marks such information as being confidential to it
by marking such information as "Proprietary", "Restricted", or
"Confidential." Any confidential information disclosed orally shall
be identified as confidential at the time of disclosure and
thereafter reduced to tangible form with a copy, prominently marked
as aforesaid, delivered to the receiving party within ten (10) days
of the verbal disclosure. When a writing contains both confidential
and nonconfidential information, the disclosing party shall
specifically note the information, which is confidential.
However, notwithstanding the above, the identities, addresses, and
other specific information regarding Unisys customers provided by
Unisys to Seller shall be deemed Unisys confidential information.
2) Each party shall exercise the same degree of care to avoid the
publication or dissemination of the confidential information of the
other party as it affords to its own confidential information of a
similar nature which it desires not to be published or disseminated,
but in any case not less care than a reasonable person would
exercise.
3) Confidential information disclosed under this Agreement shall only be
used by the receiving party in the furtherance of this Agreement or
the performance of its obligations hereunder.
4) The obligations of the parties with respect to confidential
information shall survive the termination or cancellation of this
Agreement. However, neither party shall be obligated to protect
confidential information of the other party which:
a. is rightfully received by the receiving party from
another party without restriction, or
b. is known to or developed by the receiving party
independently without use of the confidential information,
or
c. is or becomes generally known to the public by other
than a breach of duty hereunder by the receiving party, or
d. has been or is hereafter furnished to others without
restriction on disclosure, or
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e. is known or available to the receiving party by
inspection or analysis of products available in the
market.
The obligation not to use or disclose said confidential information
shall end; either, two (2) years after the date of receipt of said
confidential information, or years after the termination of this
Agreement, whichever is later, except with respect to software for
which the obligation shall continue until the occurrence of any of
the events listed in Subparagraphs a through e, above.
5) Unisys shall be permitted to disclose said confidential information
to subsidiaries, Affiliates, third parties and subcontractors for
their use in the furtherance of this Agreement in accordance with the
rights and licenses granted; provided, however, that subsidiaries,
Affiliates, third parties and subcontractors agree to protect such
information to the extent provided herein.
6) Nothing contained in this Section V.A., or elsewhere, shall be
construed as preventing Unisys from marketing, selling, leasing,
renting, or sublicensing the Products in the same manner as it may
then market, sell, lease, rent, or sublicense its other Products.
Unisys and subsidiaries, Affiliates and third parties may disclose
Seller's confidential information to end users for the purposes of
training, operation, maintenance and marketing of the Products;
provided, however, that they shall require such end users to keep
confidential any Seller confidential information so transferred to
the same extent Unisys requires confidentiality with regard to its
own confidential information under similar circumstances.
B. DISCLAIMER
EXCEPT AS EXPRESSLY STATED HEREIN, NEITHER PARTY HAS MADE ANY WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, CONCERNING
THE PRODUCTS TO BE PROVIDED HEREUNDER, THE SCOPE OR DURATION OF ANY MARKETING
EFFORT WHICH Unisys MAY UNDERTAKE, OR THE SUCCESS OF ANY SUCH MARKETING EFFORT.
NEITHER PARTY HAS RELIED ON ANY EXPRESS OR IMPLIED REPRESENTATION OF THE OTHER
PARTY, WRITTEN OR ORAL, AS AN INDUCEMENT TO ENTERING INTO THIS AGREEMENT.
C. LIMITATION OF LIABILITY
EXCEPT AS PROVIDED IN SECTION V.D. HEREOF, NEITHER PARTY SHALL BE LIABLE FOR ANY
INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT
LIMITED TO, LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
D. INFRINGEMENT/INDEMNITY
Seller agrees to indemnify and hold harmless Unisys, its subsidiaries,
Affiliates and subcontractors, and third party reseller customers, and end user
customers of any of the aforesaid (the "Indemnified Parties") from any claim,
liability, damage or expense including but not limited to legal expenses, of
whatever kind for or on account of patent infringement, copyright infringement,
misappropriation of trade secrets or violation of other proprietary rights in
connection with or relating to the use, copying, reproduction, distribution,
selling, licensing or other disposition of the Products. Seller agrees to defend
or settle all suits and proceedings arising out of any of the foregoing
provided, however, that Unisys shall give Seller prompt
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written notice of all suits or threats of suit and other such claims concerning
patent or copyright infringement or misappropriation of trade secrets or other
intellectual property against any of the Indemnified Parties. Unisys, at its own
expense, shall have the right to participate in Seller's defense of any such
action through Unisys' own counsel. In the event that Seller fails, after
notice, to adequately defend or settle any action which it is obligated to
defend or settle under this Section V.D., Unisys shall have the right of
prosecuting and defending such action or actions and to collect such costs and
expenses (including attorney's fees) from Seller and further shall have the
right to charge Seller with any and all awards, damages, and court costs in such
action or actions and to collect such awards, damages, and court costs from
Seller. If any Product is held to be an infringement or misappropriation for
which indemnification is to be provided by Seller, and its use is enjoined,
Seller shall, at Seller's option and expense, either:
1. Procure for the Indemnified parties the right to continue
to utilize the Product pursuant to the license granted
herein, or
2. Replace or modify the Product in such a way that they
shall not continue to constitute such infringement or
misappropriation.
Seller shall not be liable under this Section V.D. if the Product has been
modified by any of the Indemnified Parties and such modification is solely the
cause of any such infringement or misappropriation, unless such modifications
were made in accordance with Seller's instructions or with Seller's approval.
E. TRADEMARKS AND TRADE NAMES
Nothing contained in this Agreement shall be construed as licensing either party
to use any trademark or trade name owned or used by the other party without the
prior written consent of the other party. However, Unisys, its subsidiaries,
Affiliates and third parties shall have the unrestricted use of the terms stated
in this Agreement (and any other or subsequent term used by Seller to identify
the Products) in connection with the use, marketing, copying, distribution,
sale, rental, lease, licensing, and sublicensing of the Products. When marketing
the Products, Unisys, its subsidiaries and Affiliates shall have the right to
use their own trademarks or trade names when referring to the Products.
F. FORCE MAJEURE
Neither Unisys nor Seller shall be liable to the other for delays in the
performance of or completion of this Agreement if such delay is caused by
strikes, riots, wars, government regulations, acts of God, fire, flood or other
similar causes beyond its control; provided, however, if such delay exceeds
sixty (60) days, the other party shall have the option, exercisable by written
notice, to terminate this Agreement by notice in accordance with Section III.M
hereof.
G. ASSIGNMENT AND BENEFITS
All the terms and conditions of this Agreement shall be binding upon, inure of
the benefit of, and is enforceable by the respective successors and permitted
assigns of the parties hereto. Except as specifically stated in this Agreement,
neither this Agreement nor any of the rights, interests or obligations of any
party hereunder shall be assigned or delegated by either party hereto without
the prior written consent of the other. Such consent shall not be withheld
unreasonably. Any unauthorized assignment or delegation shall be null and void.
Notwithstanding the foregoing, either party may assign or otherwise transfer its
rights and obligations to successors in interest (whether by purchase of stock
or assets, merger, operation of law, or otherwise) of that portion of its
business related to the subject matter hereof.
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H. DISPUTE RESOLUTION
1) This Section H shall govern any dispute between the parties arising
from or related to the subject matter of this Agreement that is not
resolved by agreement between the Contract Administrators.
2) The parties shall make a good-faith effort to amicably settle by
mutual agreement any dispute that may arise between them under this
Agreement. The parties agree to settle all disputes, controversies or
claims which relate in any way to this Agreement finally and
conclusively by arbitration. The arbitration shall be conducted in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association ("AAA") then in effect. Any such arbitration
shall be conducted in Virginia by one arbitrator selected from a
panel of persons having experience with and knowledge of electronic
computers and the computing business. The arbitrator selected will be
an attorney. The arbitrator shall be chosen by both parties; if the
parties are unable to agree, the arbitrator shall be selected by the
AAA. Judgment upon the award may be entered in any court having
jurisdiction thereof or having jurisdiction over the applicable party
or its assets. Either party will be free to apply at any time to a
court of competent jurisdiction for interim or conservatory relief
and will not be deemed to have breached this agreement to arbitrate
or to have infringed the powers of the arbitrator in doing so.
I. GENERAL PROVISIONS
1) Governing Law
This Agreement shall be construed, governed and interpreted in
accordance with the laws, but not the rules relating to the choice of
law, of the Commonwealth of Virginia.
2) Captions/Headings
The captions and headings of the Articles, sections, and paragraphs
contained herein have been inserted for the convenience of the
parties and shall not be construed as a part of or modifying any
provision of this Agreement.
3) Waiver
The failure of either party to insist, in any one or more instances,
upon the performance of any of the terms, covenants or conditions of
this Agreement or to exercise any right hereunder shall not be
construed as a waiver of the future performance of any such term,
covenant or condition or the future exercise of such right.
4) Severability
If any court should find any particular provision of this Agreement
void, illegal, or unenforceable, then that provision shall be
regarded as stricken from this Agreement and the remainder of this
Agreement shall remain in full force and effect.
5) Independent Contractors
It is agreed that the relationship between the parties is that of
independent contractors, and nothing contained in this Agreement
shall be construed or implied to create the relationship of partners,
joint venturers, agent and principal, employer and employees, or any
relationship other than that of independent contractors. At no time
shall either party make any commitments or incur any charges or
expenses for or in the name of the other party.
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6) Conflict of Interest
Seller agrees that it shall not engage directly or indirectly, either
for itself, or with or for any other person or corporation, in any
work or undertaking which shall conflict with or create any legal
impediment against Seller's performance of its obligations under this
Agreement and the rights and licenses granted to Unisys hereunder.
Seller represents that there is no such present conflict of interest
or any such legal impediment.
7) Divestiture
Notwithstanding other provisions of this Agreement to the contrary,
subsidiaries, Affiliates, and other business units of Unisys which
are, in whole or in part, divested by Unisys during the term of this
Agreement shall, nevertheless, retain all rights pursuant to this
Agreement which such divested entity had in the Products prior to
such divestiture. The rights and obligations of such divested
entities regarding the Products shall be the same as, but limited to,
Unisys rights and obligations directly applicable to the use,
payments and Seller support of the Products, and such divested
entities shall have no other rights or obligations pursuant to this
Agreement. All sales by such divested entities shall be contributory
toward the achievement of any quantity and volume pricing discounts,
and payments shall be at the then applicable net prices for the
Products. Unisys shall notify Seller of such divested entities.
8) Counterparts
This Agreement may be executed in any number of counterparts, each of
which together shall constitute one and the same instrument.
9) Publicity
Seller shall not, except as may be required by law or federal
regulation, or except with the prior written permission of Unisys,
publicly advertise this Agreement or disclose its contents.
10) Risk of Loss
Until such time as the deliverable items have been delivered to the
Unisys designated ship to address or the applicable end user
location, all risk of loss shall be Seller's.
11) Entire Compensation
Except as may be specifically provided otherwise in this Agreement,
Seller's performance and fulfillment of its other obligations under
this Agreement, and the granting of licenses and rights to Unisys
shall be at no additional cost or charge to Unisys.
12) Personal Injury/Property Damage
Each party (the "Indemnifying Party") shall hold harmless and defend
the other party (the "Indemnified Party") from any claim of personal
injury or property damage arising from any act or omission of the
Indemnifying Party. The obligations of the Indemnifying Party under
this Indemnification provision are conditional upon: (a) the
Indemnified Party providing prompt written notice to the Indemnifying
Party of any claim referred to above and any related action, suit, or
other proceeding; (b) the Indemnified Party's permitting the
Indemnifying Party to defend or settle such claim, action, suit, or
proceeding (provided the Indemnified Party must approve in its sole
discretion any settlement terms that obligate the Indemnified Party);
and (c) the Indemnified Party provided the Indemnifying Party (at the
Indemnifying Party's expense) all reasonable assistance in
14
defending or settling the claim, action, suit, or proceeding. Upon
request by Unisys, Seller shall furnish evidence of insurance
coverage for such injury and damage.
13) Notice of Delay
Whenever any occurrence (e.g., an event of Force Majeure or a filling
under a bankruptcy law) is delaying or threatens to delay Seller's
timely performance under this Agreement, Seller shall promptly give
notice thereof, including all relevant information with respect
thereto, to Unisys.
14) Compliance with Law
In the performance of this Agreement, the parties shall comply with
all applicable laws, executive orders, regulations, ordinances,
rules, proclamations, demands and requisitions of national
governments or of any state, local or other governmental authority
which may now or hereafter govern performance hereunder including all
laws, executive orders, regulations, ordinances, rules and
proclamations regarding Equal Employment Opportunity, the exporting
of technology, and withholding for income taxes.
15) Foreign Offset Credits
If any foreign government offset credits result from the performance
of this Agreement, it is agreed that they shall be the sole property
of Unisys.
16) Survival of Provisions
In addition to the rights and obligations which survive as expressly
provided for elsewhere in this Agreement, the Articles and Addenda
which by their nature should survive, shall survive and continue
after any termination or cancellation of this Agreement.
17) Entire Agreement
This Agreement states the entire agreement between the parties with
respect to the subject matter hereof and shall supersede all previous
proposals, negotiations, representations, commitments, writings,
agreements and other communications, both oral and written, between
the parties. This Agreement may not be released, discharged, changed
or modified, except by an instrument in writing signed by a duly
authorized representative of each of the parties.
This Agreement has been duly signed by the parties hereto as of the
Effective Date.
OBJECTIVE COMMUNICATIONS, INC. XXXXXX XXXXXXXXXXX
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------------- --------------------------
Title: Vice President, Administration and Finance Title: Director, Contracts
------------------------------------------- -----------------------
Date: October 22, 1998 Date: November 5, 1998
-------------------------------------------- ------------------------
15
WORLDWIDE MASTER RESELLER AGREEMENT
ADDENDUM A
UNISYS PRICES/DISCOUNTS
The Unisys discount percentage on * * . products shall be based on the *
* * * * Schedule listed below ** * * * * * *
* * * * * * Discounts will be based on * * *
* * * . * * * * * * * *
* * * * * * * * *
* * *. * * * *. The September 1998 Objective Price
List is attached * * * * to Addendum A.
* * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * *
* * * * ** * * * ** * * * *
* * * * ** * * * ** * * * *
*Text deleted pursuant to an application for Confidential Treatment under Rule
24b-2 of the Securities Exchange Act of 1934, as amended, and filed separately
with the Securities and Exchange Commission.
