STRATEGIC ALLIANCE AGREEMENT
----------------------------
This Strategic Alliance Agreement (this "Agreement") is hereby made and
entered into this 10th day of September, 1999 (the "Effective Date"), by and
among BOCA RESEARCH, INC., a corporation incorporated in the State of Florida,
United States, having a place of business at 0000 Xxxxx Xxxxx Xxxx, Xxxx Xxxxx,
Xxxxxxx 00000-0000 ("BOCA"), and NETWOLVES TECHNOLOGIES, INC., a corporation
incorporated in the State of New York, United States, having a place of business
at 000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxx Xxxx 00000 ("NETWOLVES"). BOCA
and NETWOLVES are individually referred to in this Agreement as a "Party" and,
collectively, as "Parties."
RECITALS
WHEREAS, BOCA designs, manufactures, and supports hardware products for and
to the specification of other companies, and provides related engineering and
homologation certification services, and BOCA manufactures a thin client or
network computer (a "Thin Client" computer) which is designed to serve primarily
as clients for a network client/server architecture and configured with only the
most essential equipment, typically excluding hard disk drives ("Thin Clients");
WHEREAS, NETWOLVES produces sophisticated, scalable software and hardware
technology (the "FoxBox Technology") that provides enterprise-wide connectivity,
distance learning, firewall security and productivity enhancing applications.
FoxBox Technology includes software providing server-side and client-side
facilities for Thin Client (or network) computers (the "FoxBox Thin Client
Software");
WHEREAS, NETWOLVES has produced general systems specifications for two (2)
new FoxBox chassis, for the FoxBox, and for NETWOLVES Thin Clients, to be used
with the FoxBox Technology, attached hereto as Exhibits B, C and E,
respectively, (collectively, the "Specifications");
WHEREAS, BOCA desires to manufacture FoxBox units and NETWOLVES Thin Client
units conforming to the Specifications and capable of interoperating with the
FoxBox Thin Client Software and to provide related engineering and homologation
certification services for NETWOLVES, and NETWOLVES desires BOCA to perform such
manufacturing and related services; and
WHEREAS, BOCA and NETWOLVES desire to further investigate participating in
joint Marketing, Sales, Engineering and Training activities to provide a
turn-key solution to the Internet Gateway Marketplace;
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the Parties hereto agree as follows:
OPERATIVE TERMS
ARTICLE 1
DEFINITIONS
For the purposes of this Agreement, the following terms shall have the
meanings specified below:
1.1 "Affiliate" shall mean any corporation, partnership, joint venture, or
other entity (i) in which either Party own or controls, or is owned or
controlled by, or in common ownership or control with either Party to the extent
of holding directly or indirectly stock or interest representing more than fifty
percent (50%) of the aggregate stock or other interest entitled to vote on
general decisions reserved to stockholders, partners, or other owners of such
entity; or (ii) if a partnership, as to which a Party (and/or any of its
Affiliates) is a general partner.
1.2 "Confidential Information" shall mean all information not known or
generally available without restrictions on use, including know-how, trade
secrets, intellectual property, operational methods, marketing plans or
strategies, product development techniques or plans, processes, designs and
design projects, inventions and research projects, and other business affairs,
including the terms and conditions of this Agreement and the negotiations
between the Parties with respect to this Agreement.
1.3 "Cost of Work" with respect to any particular work shall mean costs
necessarily incurred by BOCA in proper performance of the work. Such costs shall
be at rates not higher than any standard rates paid by BOCA to suppliers or
workers, except with prior consent of NETWOLVES. Cost of Work shall include the
following:
(a) Time. Actual labor costs for performing the work, including
allocable portions of (i) wages of construction workers directly employed
by BOCA to perform the work; and (ii) wages and salaries of BOCA's
supervisory and administrative personnel, when such workers and personnel
are engaged at factories, workshops or on the road and expediting
production or transportation of materials or equipment required for the
work;
(b) Materials. Costs of materials and equipment actually incorporated
into the completed work, including transportation of raw materials, but
exclusive of transportation of completed work; costs of materials in excess
of those actually installed, but required to provide reasonable allowance
for waste, spoilage or overrun and agreed to in advance by NETWOLVES,
provided, however, that unused excess materials, if any, shall be delivered
to NETWOLVES by BOCA at the time of final payments; costs including
transportation, installation, maintenance, dismantling and removal of
materials, supplies, temporary facilities, machinery or equipment required
in the performance of the work;
(c) Overhead. All factory direct and indirect expense other than Time
and Materials defined herein fairly allocable to the product or products,
or ten percent (10%) of the Materials Cost, whichever is less; and
(d) Miscellaneous Costs. Premiums for insurance and bonds that are
directly attributable to the Project; sales, use or similar taxes imposed
by governmental authority which are directly related to the work and for
which BOCA is responsible, including direct costs of subcontracting as
permitted in this Agreement..
The term "Cost of Work," as used herein, shall not include:
(i) Salaries and other compensations of BOCA personnel, except as
specifically provided herein;
(ii) Expenses of BOCA's principal office and offices, except as
specifically provided herein;
(iii) Overhead and general expenses, except as expressly provided
herein;
(iv) BOCA's capital expenses, including interest on BOCA's
capital employed for the work;
(v) Rental costs of machinery and equipment; or
(vi) Costs due to the fault or negligence of BOCA or anyone
directly employed by them, including the cost of correction of
damaged, defective or nonconforming work, disposal and replacement of
materials and equipment incorrectly ordered or supplied.
Trade discounts, rebates, refunds and amounts received from sales of
surplus materials and equipment shall accrue to NETWOLVES and BOCA shall attempt
to secure such discounts. Any amounts which accrue to NETWOLVES in accordance
with the foregoing shall be credited to NETWOLVES as a deduction from the Cost
of Work.
1.4 "Engineering Release Package" shall mean:
* Schematic ? Xxxx of Materials
* Work Instructions
* Firmware/Code
* Test Software
* Test Instructions
* Customer Software
* Assembly Instructions
* Component Specifications and Approved Vendor(s)
* Prototype
1.5 A "FoxBox Derivative" shall mean any FoxBox product and FoxBox
Technology, including the FoxBox Thin Client Software, or any parts or portions
thereof or work made from any part or portion therefrom, which the development,
manufacture, use or distribution thereof would infringe any intellectual
property rights of NETWOLVES.
1.6 A "FoxBox Unit" shall mean a computer conforming in all respects to the
FoxBox Specifications.
1.7 The "Industrial Release" shall be obtained when NETWOLVES and BOCA have
successfully completed all work necessary to put the NETWOLVES Thin Client Unit
or FoxBox Unit into manufacturing for release to the trade. The milestone shall
be marked by the transmission and acceptance of an engineering documentation,
xxxx of materials, program files, and prototype testing code conforming to the
Specifications. This release shall not be gated by the actual production but
rather the acceptance of the product for production by BOCA's manufacturing
facility.
1.8 "Know-How" shall mean all knowledge and tangible information whether
patentable or not and physical objects related to the joint product development,
including, but not limited to, formulations, materials, data, schematics,
designs, configurations, computer programs, drawings and sketches, testing and
test results, and regulatory information of a like nature whether or not capable
of precise, separate description prior to its publication, owned by BOCA and
NETWOLVES, which either party has the right to disclose or license to the other.
1.9 A "NETWOLVES Thin Client Unit" shall mean a Thin Client unit conforming
in all respects to the NETWOLVES Thin Client Unit Specifications and operable
with the NETWOLVES Thin Client Software.
1.10 A "Third Party" shall mean any party, except Affiliates of either
Party, who is not a party to this Agreement and shall specifically include
parties who integrate the Units into other products.
ARTICLE 2
ENGINEERING SERVICES
2.1 FoxBox Services.
(a) General Statement of Work. BOCA shall provide at no cost to NETWOLVES
engineering services and corresponding deliverables (the "FoxBox Services") as
set forth in Exhibit A with respect to the design and efficient manufacture of a
computer system conforming in all respects to the FoxBox Specifications set
forth in Exhibit C. The deliverables shall include an Engineering Release
package and a complete schematic design and specification to produce a FoxBox
Unit with particularity and detail sufficient to enable a manufacturer of
ordinary skill to manufacture FoxBoxes conforming with the FoxBox
Specifications. BOCA shall take all steps necessary to obtain FCC, CUL and UL
approvals for the FoxBox Unit. These services shall be provided to NETWOLVES at
no charge and shall be completed on or prior to November 1, 1999.
(b) Ownership of Work Product. NETWOLVES shall own all right, title and
interest to any intellectual property rights in and to the deliverables,
schematics and specification and any other property interest related to the
FoxBox Services. All works of authorship created by BOCA with respect to the
FoxBox Services shall be works made for hire created by BOCA for NETWOLVES and
all such right, title and interest therein and thereto shall pass to NETWOLVES
upon creation by operation of law. All other intellectual property related to
the FoxBox Services shall be assigned, and hereby are assigned by BOCA to
NETWOLVES. BOCA shall undertake all actions reasonably required by NETWOLVES,
including the execution of instruments of assignment, applications for letters
patent, applications for registration of other intellectual property rights or
other instruments reasonably necessary to perfect NETWOLVES' interest in and to
such intellectual property rights. BOCA shall not retain any intellectual
property rights whatsoever with respect to the FoxBox Services, and no other
rights shall vest in or pass to BOCA by reason of its participation in
undertaking to perform the FoxBox Services.
2.2 Thin Client Services.
(a) General Statement of Work. BOCA shall provide at no cost to NETWOLVES
engineering services and corresponding deliverables (the "Thin Client Services")
necessary to enable BOCA to manufacture a NETWOLVES Thin Client Unit conforming
in all respects to the NETWOLVES Thin Client Specifications set forth in Exhibit
E. The deliverables shall comprise, at least, an Engineering Release Package and
a working NETWOLVES Thin Client Unit prototype. BOCA shall take all steps
necessary to obtain FCC, CUL and UL approvals for the NETWOLVES Thin Client
Unit. These services shall be provided to NETWOLVES at no charge and shall be
completed on or prior to September 1, 1999.
(b) BOCA Ownership of Certain Work Product. Except for computer software
other than BOCA's computer BIOS, BOCA shall retain all right, title and interest
to any intellectual property rights in and to the deliverables and any other
property interest related to the Thin Client Services; provided, however, that
nothing set forth herein shall be construed to result in the transfer to BOCA
from NETWOLVES of any interest in any previously existing intellectual property
interest of NETWOLVES whatsoever, including any interest in or to the FoxBox,
FoxBox technology, the NETWOLVES Thin Client Specifications or the NETWOLVES
Thin Client Software.
(c) NETWOLVES Ownership of Certain Work Product. NETWOLVES shall own all
right, title and interest in and to any and all software delivered with or
designed for the NETWOLVES Thin Client by NETWOLVES other than BOCA'S existing
BIOS software. Such software shall be works made for hire created by BOCA for
NETWOLVES and all such right, title and interest therein and thereto shall pass
to NETWOLVES upon creation by operation of law. All other intellectual property
related to computer software delivered with or designed for the NETWOLVES Thin
Client other than BOCA's existing BIOS software shall be assigned, and hereby
are assigned by BOCA to NETWOLVES. BOCA shall undertake all actions reasonably
required by NETWOLVES, including the execution of instruments of assignment,
applications for letters patent, applications for registration of other
intellectual property rights or other instruments reasonably necessary to
perfect NETWOLVES' interest in and to such intellectual property rights.
Further, nothing in this Agreement shall be construed to preclude or limit
NETWOLVES' right or ability to engage the services of third parties to
independently produce a Thin Client conforming to NETWOLVES Thin Client
Specifications or a Thin Client unit interoperable with a FoxBox or the
NETWOLVES Thin Client Software.
2.3 Further Engineering Services. BOCA shall provide additional engineering
services (the "Further Engineering Services") necessary to meet any technically,
commercially, and reasonably feasible changes in functionality requested by
NETWOLVES. Unless otherwise agreed between the parties, such services shall be
provided at a fee of One Hundred Dollars ($100.00) per hour. All other
intellectual property related to the Further Engineering Services shall be
assigned, and hereby are assigned by BOCA to NETWOLVES. BOCA shall undertake all
actions reasonably required by NETWOLVES, including the execution of instruments
of assignment, applications for letters patent, applications for registration of
other intellectual property rights or other instruments reasonably necessary to
perfect NETWOLVES' interest in and to such intellectual property rights. BOCA
shall not retain any intellectual property rights whatsoever with respect to the
Further Engineering Services, and no other rights shall vest in or pass to BOCA
by reason of its participation in undertaking to perform the Further Engineering
Services.
2.4 Acceptance of Engineering Services. Engineering Services shall be
deemed accepted unless NETWOLVES presents BOCA a notice of nonacceptance within
forty-five (45) days upon the presentation of deliverables under the Agreement
setting forth with particularity the basis for such rejection. BOCA shall have
thirty (30) days thereafter to correct deficiencies identified by NETWOLVES in
such notice. Timely completion of the FoxBox Services and the Thin Client
Services shall be a condition precedent to NETWOLVES' obligations under this
Agreement.
2.5 Homologation Services. BOCA shall provide homologation for FoxBox
products and NETWOLVES Thin Client in those states noted by asterisk in Exhibit
D at its expense other than the NETWOLVES obligation to pay for the filing fees
and costs. As a Further Engineering Service, at the election of NETWOLVES, BOCA
shall provide assistance in the application for and obtaining of homologation
approvals in those other states listed in Exhibit D with respect to the
NETWOLVES Thin Client Units and FoxBox Units developed hereunder. NETWOLVES and
its vendors agree to pay all costs associated with such applications and pay the
Engineering Services to BOCA as defined under Section 2.3 above. NETWOLVES
agrees to provide all reasonable, necessary cooperation, assistance and
documentation to process such applications. BOCA shall make best efforts to
assure that all such homologation approvals may be obtained, but does not
represent or warrant that the respective governments will ultimately grant such
approvals. In the event BOCA shall sell any NETWOLVES Thin Client Units in any
jurisdiction wherein the NETWOLVES Thin Client homologation has been obtained
and NETWOLVES has paid the cost of same, BOCA shall reimburse such fees and
costs to NETWOLVES upon the sale of its first Unit. In the event NETWOLVES shall
sell any FoxBox Units in any jurisdiction wherein the FoxBox homologation has
been obtained and BOCA has paid the cost of same, NETWOLVES shall reimburse such
fees and costs to BOCA upon the sale of its first Unit.
ARTICLE 3
MANUFACTURING OF FOXBOX UNITS AND NETWOLVES THIN CLIENT UNITS
3.1 Sale of Conforming FoxBox Units to NETWOLVES. BOCA shall, within the
limitations contained in this Article, sell to NETWOLVES such quantities of
FoxBox Units conforming in all respects to the Specifications as NETWOLVES may
order. BOCA shall make best efforts to timely satisfy such orders and provide
quality assurance services subject to the provisions set forth below. Subject to
the approval of NETWOLVES, which approval shall not be unreasonably withheld,
BOCA reserves the right to subcontract the manufacturing of the FoxBox Units to
third parties, in its sole discretion, provided that the FoxBox Units shall at
all times meet the required quality and technical specifications set forth in
this Agreement; further provided that such subcontractor shall be expressly and
affirmatively bound in writing to comply with the warranty, ownership and
confidentiality provisions set forth in this Agreement and shall be bound to
defend, indemnify and hold harmless NETWOLVES from claims arising from the work
of said subcontractor; and still further provided that such appointment of a
subcontractor is consistent with BOCA's obligation to make best efforts to
minimize the cost of manufacture to NETWOLVES.
3.2 Sale of Conforming NETWOLVES Thin Client Units to NETWOLVES. BOCA
shall, within the limitations contained in this Article, sell to NETWOLVES such
quantities of NETWOLVES Thin Client Units conforming to the Specifications as
NETWOLVES may order. BOCA shall make best efforts to timely satisfy such orders
and provide quality assurance services subject to the provisions set forth
below. Provided that this Agreement shall not have been terminated, NETWOLVES
agrees to purchase, within two (2) years from the delivery of the NETWOLVES Thin
Client Services deliverables, two thousand (2,000) NETWOLVES Thin Client Units
from BOCA, provided, however, that any sales of NETWOLVES Thin Client Units by
BOCA within said period to third parties pursuant to its marketing rights
provided for in Section 5.1 shall be credited against such commitment within
said period. BOCA reserves the right to subcontract the manufacturing of the
NETWOLVES Thin Client Units to third parties, in its sole discretion, provided,
however, that such contractor shall be expressly and affirmatively bound in
writing to comply with the warranty, ownership and confidentiality provisions
set forth in this Agreement and shall be bound to defend, indemnify and hold
harmless NETWOLVES from claims arising from the work of said subcontractor; and
further provided that the NETWOLVES Thin Client Units shall at all times meet
the required quality and technical specifications set forth in this Agreement.
Such right to subcontract shall not be deemed to limit BOCA'S obligation to make
its best efforts to minimize the cost of manufacturing such product.
3.3 Initial Delivery. Subject to the availability of the parts being
delivered to BOCA by September 1, 1999:
(a) BOCA shall deliver thirty (30) NETWOLVES Thin Client Units acceptable
to NETWOLVES on or prior to September 15, 1999;
(b) BOCA shall deliver two hundred fifty (250) FoxBox Units acceptable to
NETWOLVES on or prior to September 15, 1999, as follows:
QUANTITY NETWOLVES SKU BOCA SKU
-------- ------------- --------
100 NETWOLVES FoxBox S2e NW2Ether
75 NETWOLVES FoxBox T1 NWCSUT1
50 NETWOLVES FoxBox DDR NWModem
20 NETWOLVES FoxBox 56K NWCSU56K
5 NETWOLVES FoxBox ISDN NWISDN
Provided, however, that in the event parts are not available by
September 1, 1999, BOCA shall deliver the products within twenty (20) days
following receipt of all required parts and/or components.
3.4 Reservation of Rights by NETWOLVES. Nothing set forth in this Agreement
shall be construed to constitute the grant of any exclusive right to BOCA to
manufacture FoxBox units or the assignment of any right, title or interest in or
to the FoxBox or any FoxBox technology. Nothing set forth herein shall be
construed to constitute the grant of any license in or to the FoxBox or any
FoxBox technology, apart from such license as may be necessary to accomplish the
fulfillment of each such order. Nothing set forth in this Agreement shall be
construed to constitute the grant of any exclusive right to BOCA to supply
NETWOLVES Thin Units to NETWOLVES except as expressly set forth in Article 3.2
above.
3.5 Price and Shipping.
(a) FoxBox Unit Pricing. Pricing for FoxBox Units shall be in accordance
with Exhibit F attached hereto or in accordance with such other pricing as to
which the parties may agree.
(b) Thin Client Pricing. With respect to delivery of conforming goods
delivered in response to an Order, NETWOLVES shall pay to BOCA an amount equal
to the lesser of (i) for the first delivery of NETWOLVES Thin Client Units
pursuant to this Agreement, BOCA's Cost of Work associated with the production
of such units, plus twenty-five percent (25%); (ii) for subsequent deliveries,
an amount equal to the average of BOCA's Cost of Work for the first delivery and
BOCA's Cost of Work for the delivery preceding such subsequent delivery, plus
twenty-five percent (25%); (iii) the maximum unit prices as set forth in Exhibit
F; or (iv) such lesser amount upon which the parties may agree in writing. BOCA
shall make reasonable and best efforts to minimize BOCA's Cost of Work at all
times during the term of this Agreement. However, in the event the price
determined pursuant to (i) above exceeds the Exhibit F price set forth in (iii)
above, BOCA shall not have the obligation to sell such additional NETWOLVES Thin
Client Units pursuant to this Agreement unless the parties reach a mutually
acceptable price pursuant to (iv) above; provided, however, that if BOCA does
not agree to sell NETWOLVES Thin Client Units pursuant to the provisions of this
sentence, then NETWOLVES shall likewise not be obliged to purchase such
NETWOLVES Thin Client Units.
All such units shall be delivered F.O.B. BOCA's plant in Florida
or such other place of shipment as the parties may agree. BOCA shall arrange and
pay for shipping of units in accordance with NETWOLVES' instructions and BOCA
shall further pay any customs, duties, costs, taxes, insurance premiums and
other expenses related to such shipping, which amounts shall be billed to
NETWOLVES without markup.
3.6 Delivery; Liquidated Damages for Late Delivery. BOCA shall deliver
conforming goods within ten (10) weeks after receipt of an order from NETWOLVES
(the "Delivery Date"), provided that BOCA shall be able to obtain all key
components for such deliveries in a timely manner through the exercise of its
commercially reasonable efforts. However, any such delays in obtaining said key
components shall extend the Delivery Date on a day-for-day basis For each full
week late of the Delivery Date, provided that NETWOLVES shall not have caused or
contributed to the delay, NETWOLVES may deduct five percent (5%) of the Cost of
Work from the price, as liquidated damages and not as a penalty. These
provisions shall be deemed a reasonable measure of the damages incurred
resulting from late delivery and the parties agree that they shall not be deemed
a penalty. In no case shall the deduction exceed fifteen percent (15%) of the
Cost of Work.
3.7 Terms of Payment/Accounting for Cost of Work. All purchase orders given
to BOCA by NETWOLVES shall be firm and noncancellable for any reason. NETWOLVES
shall pay to BOCA a deposit equal to twenty percent (20%) of the Price, payable
thirty (30) days following the placement of an order, provided, however, that
NETWOLVES need not pay such deposit to the extent that the aggregate of unpaid
deposits are less than two hundred and fifty thousand dollars ($250,000.00).
NETWOLVES shall pay the balance thirty (30) days following the receipt of an
invoice stating the Cost of Work for conforming goods delivered with respect to
such Order, but may take a two percent (2%) discount if payment is made within
ten days of receipt of such invoice. Upon request, BOCA shall provide NETWOLVES
with a statement of costs setting forth specifically the basis for computing a
Cost of Work associated with any invoice. In the event that NETWOLVES suffers a
substantial and material adverse change to its financial condition, then BOCA
may withdraw the Two Hundred Fifty Thousand Dollars ($250,000.00) trade credit
set forth in this paragraph; further provided, however, that NETWOLVES shall not
be obliged to purchase any NETWOLVES Thin Client Units under terms that do not
include such Two Hundred Fifty Thousand Dollars ($250,000.00) credit.
3.8 Acceptance of FoxBox Units. NETWOLVES may reject any portion of any
shipment of units that are not conforming in any material respects. To reject a
shipment, NETWOLVES shall give notice of intent to reject the shipment within
thirty (30) days of delivery together with a written indication of the reasons
for such possible rejection, and as promptly as reasonably possible thereafter,
give notice of final rejection and the full basis therefor. After notice of
intent to reject, the parties shall cooperate to determine whether rejection is
necessary or justified. If notice is not given, NETWOLVES shall be deemed to
have accepted delivered, provided, however, in the case of products having
latent defects upon which diligent examination could not have been discovered,
NETWOLVES must give notice of NETWOLVES' intent within thirty (30) days after
discovery of such defects. In any event, NETWOLVES shall be entitled to a refund
of the purchase price of properly rejected products at the time they are
ultimately rejected. BOCA shall use, its reasonable efforts, at NETWOLVES'
request, to provide replacement products that shall be purchased by buyer as
provided in this Agreement.
3.9 Quality Assurance by BOCA. BOCA agrees to monitor and assure strict
quality standards and adhere to the quality specifications to be developed and
agreed upon by both parties. BOCA will provide per lot shipment reporting on
out-of-box quality results and will provide additional available manufacturing
quality measurements and audits on request, within five (5) working days.
NETWOLVES, at NETWOLVES' expense, may at any time upon reasonable notice to BOCA
(not to exceed three (3) days) enter BOCA's property and inspect BOCA's
facilities and records to investigate BOCA's compliance with these Quality
Assurance provisions.
3.10 Accounting Records/Audit. BOCA shall keep full and detailed accounts
and exercise such controls as may be necessary for proper financial management
under this Agreement. NETWOLVES shall be afforded reasonable access to such
accounting records not more often than once each calendar quarter upon at least
three (3) days prior notice. NETWOLVES shall bear the expense of such review
unless a discrepancy of more than five percent (5%) in BOCA's favor is
discovered with respect to the computation of Cost of Work over any 90-day
period, in which case BOCA shall pay the expense of such review and shall
immediately pay NETWOLVES the amount of any overcharges resulting from such
erroneous computation of the Cost of Work, plus interest computed at the rate of
the lesser of three hundred (300) basis points over the three (3) month LIBOR
rate (LIBOR+3) on the date payment was due to BOCA or the highest applicable
legal rate, accruing from the date payment was due until paid in full.
ARTICLE 4
INTELLECTUAL PROPERTY
4.1 Reservation of Rights/No Implied Assignment of Rights. Each Party shall
retain all intellectual property and other priority rights in its respective
pre-existing works and inventions and all proprietary rights developed
independently of this Agreement. Except as expressly provided herein, nothing in
this Agreement shall be deemed to constitute the assignment or license of any
intellectual property or other proprietary right. Generally, BOCA shall retain
those rights it owns with respect to BOCA Thin Client machines and the entire
non-software work product of the Thin Client Engineering Services, and NETWOLVES
shall retain all rights it owns to its Specifications, FoxBox and FoxBox
Technology, including without limitation all FoxBox Thin Client Software.
4.2 Freedom to Continue Respective Businesses. In particular, BOCA shall
remain free, without limitation, to make, use, sell or offer for sale any and
all BOCA Thin Client Units to third parties (but not any FoxBox packaging,
FoxBox Units or NETWOLVES Thin Client Software), regardless of whether it has
received any consent of NETWOLVES. Similarly, NETWOLVES shall remain free,
without limitation, to make, use, sell or offer for sale, or to authorize third
parties to make, use, sell or offer for sale any and all FoxBox Units, FoxBox
Technology (including the FoxBox Thin Client Software), the Specifications and
the entire work product of the FoxBox Engineering Services and Other Engineering
Services with third parties, regardless of whether it has received any consent
of NETWOLVES.
ARTICLE 5
MARKETING AGREEMENT AND OTHER OPPORTUNITIES
5.1 Both Parties shall undertake to negotiate a joint marketing agreement
in good faith as generally described in the Non-Binding Memorandum of
Understanding set forth in Exhibit G, provided, however, that each party
reserves the right, in each party's sole and exclusive discretion, to agree or
not to agree to enter into a definitive agreement proposed by the other party.
5.2 If the parties do not execute a definitive joint marketing agreement on
or prior to December 31, 1999, then BOCA may terminate this Agreement effective
upon written notice given on or prior to January 10, 2000, if such definitive
agreement was not executed on or prior to the date such notice was given;
provided, however, that BOCA may not terminate this Agreement under any
circumstances if NETWOLVES had previously offered to execute a commercially
reasonable written agreement containing, at least, the terms described in the
Non-Binding Memorandum of Understanding set forth in Exhibit G.
5.3 If BOCA makes a lawful election to terminate this Agreement pursuant to
Section 5.2, then NETWOLVES may elect, within NETWOLVES sole and exclusive
discretion, either to:
(a) Continue to use deliverables from the FoxBox Services, in which case,
NETWOLVES shall pay BOCA for the time and materials in providing the FoxBox
Services and NETWOLVES Thin Client Services;
(b) Refrain from using deliverables from the FoxBox Services, in which
case, NETWOLVES need not pay for time and materials in providing the FoxBox
Services. In such a case, however, neither BOCA nor NETWOLVES may subsequently
use or disclose deliverables from the FoxBox Services.
ARTICLE 6
CONFIDENTIALITY
6.1 Covenant Not to Use or Disclose. Each Party acknowledges that the
Confidential Information constitutes and shall constitute valuable assets and
trade secrets. Accordingly, when a Party (the "Receiving Party") receives
confidential information from the other Party (the "Owning Party"), the
Receiving Party shall (i) keep secret and retain in strict confidence any
Confidential Information received from the Owning Party; (ii) not disclose to
any Third Party any Confidential Information received from the Owning Party for
any reason whatsoever; (iii) not disclose any Confidential Information received
from the Owning Party to the Receiving Party's (and/or any of its Affiliates')
employees or sublicensees, except on a need-to-know basis and only after
instructing each such employee or sublicensee not to disclose or otherwise make
available any Confidential Information to any Third Party receiving a signed
Confidentiality Statement from each such sublicensee, and provided each such
employee is bound by appropriate confidentiality obligation under its labor
contract with the employer; and (iv) not make use of any Confidential
Information received from the Owning Party for its own purposes or for the
benefit of any Third Party except as authorized by this Agreement.
6.2 Additional Restrictions on Use of NETWOLVES Software. BOCA shall not
copy, in whole or in part, any NETWOLVES software or accompanying documentation;
modify, adapt or otherwise create derivative works from all or any part of any
NETWOLVES software or accompanying documentation; distribute all or any part of
the NETWOLVES software, decompile, disassemble or otherwise attempt to reverse
engineer the NETWOLVES software; or rent or lease the NETWOLVES software. All
rights in or to the FoxBox software are reserved.
6.3 Notice of Demand for Confidential Information. In the event of any
legal action or proceeding or asserted requirement under applicable law or
government regulations requesting or demanding the Receiving Party disclose this
Agreement or any Confidential Information, the Receiving Party shall immediately
notify the Owning Party in writing of such request or demand so that the Owning
Party may seek an appropriate protective order or take other protective
measures. The Receiving Party shall, upon the request of the Owning Party,
cooperate reasonably with the Owning Party in contesting such request or demand
at the expense of the Owning Party including, without limitation, consulting
with the Owning Party as to the advisability of taking legally available steps
to resist or narrow such request or demand. If in the absence of a protective
order or a waiver hereunder from the Owning Party, the Receiving Party, in the
reasonable written opinion of the Receiving Party's legal counsel, is compelled
to disclose this Agreement or any Confidential Information to any tribunal or
otherwise stand liable for contempt or suffer other penalty, the Receiving Party
may disclose this Agreement or such Confidential Information to such tribunal
without liability hereunder; provided, however, the Receiving Party (i) shall
give the Owning Party written notice of the Confidential Information to be so
disclosed as far in advance of its disclosure as is practicable; (ii) shall
furnish only that portion of this Agreement or the Confidential Information
which is legally required; and (iii) shall use best efforts to obtain an order
or other reliable assurance that confidential treatment will be accorded to such
portions of this Agreement or the Confidential Information to be disclosed as
the Owning Party designates.
6.4 Notice of Threatened Misappropriation. In the event the Receiving Party
becomes aware that any person or entity (including, but not limited to, any
Affiliate or employee of the Receiving Party) is taking, threatens to take, or
has taken any action which would violate any of the foregoing provisions of this
Agreement, the Receiving Party shall promptly and fully advise the Owning Party
(with written confirmation as soon as practicable thereafter) of all facts known
to the Receiving Party concerning such action or threatened action. The
Receiving Party shall not in any way aid, abet, or encourage any such action or
threatened action; and the Receiving Party agrees to use its best efforts to
prevent such action or threatened action, including, but not limited to,
assigning any cause of action it may have relating to the violation of the
foregoing provisions to the Owning Party; and the Receiving Party agrees to do
all reasonable things and cooperate in all reasonable ways as may be requested
by the Owning Party to protect the trade secrets and proprietary rights of the
Owning Party in and to the Confidential Information.
6.5 Confidentiality of Terms of Agreement. The terms and conditions of this
Agreement shall not be disclosed by either Party, except with the prior written
consent of the other Party, or as may be required by law or necessary to
establish its rights hereunder. Notwithstanding the foregoing, (i) each Party
shall have the right to disclose the terms and conditions of this Agreement, if
necessary, to any legal counsel of such Party as may be required to establish
its rights hereunder; and (ii) subsequent the execution of this Agreement, the
Parties may jointly or individually issue press releases or otherwise publicly
disclose the Parties' relationship, (x) provided such Party has obtained the
prior written approval of the content of such disclosure for the other Party and
(y) that such disclosure does not include information which would be prohibited
from disclosure by either Party pursuant to this Agreement or that certain
Confidentiality Agreement between the Parties. The approval of such press
release or other disclosure of the Parties' relationship shall be given by a
Party within ten (3) business days following the request by the other Party, or
in the event the approval is not given, the disapproving Party shall provide
commercially reasonable objections.
6.6 Return or Destruction of Materials. Upon termination of this Agreement
for any reason, nothing herein shall be construed to release either Party from
any obligation that matured prior to the effective date of such termination.
ARTICLE 7
INDEMNIFICATION
7.1 Intellectual Property. Each party agrees to indemnify, defend and hold
harmless the other party, its Affiliates, and its/their officers, employees from
and against any and all Third Party Claims as incurred by such party to the
extent that the other party's products or services provided and/or utilized
under this Agreement are alleged and ultimately determined to infringe any
patent, copyright or intellectual property right registered or otherwise
protected under the Laws of the United States or any other nation. Each party
will not indemnify the other party to the extent the infringement is caused by
(i) the misuse or modification of the other party's products or materials; or
(ii) the use of any such materials in combination with any product not approved
by or supplied by the other party to the extent that such combination caused the
infringement. BOCA shall be deemed to have approved all hardware and software
presently sold by NETWOLVES and all hardware and software with which NETWOLVES
products are customarily used. NETWOLVES shall be deemed to have approved all
hardware and software presently sold by BOCA and all hardware and software with
which BOCA products are customarily used. If BOCA Materials or any part thereof
is, or in BOCA's opinion is likely to be, held to constitute an infringing
product, then with BOCA Materials, (i) replace it with a non-infringing
equivalent with at least the same functionality and performance; (ii) modify it
to make it non-infringing in a manner that does not impair its functionality and
performance; or (iii) if none of the foregoing options are commercially
feasible, the Parties will negotiate in good faith to establish a mutually
agreeable alternative, taking due regard to NETWOLVES market obligations. If
NETWOLVES Materials or any part thereof is, or in NETWOLVES' opinion is likely
to be, held to constitute an infringing product, then with NETWOLVES Materials,
(i) replace it with a non-infringing equivalent with at least the same
functionality and performance; (ii) modify it to make it non-infringing in a
manner that does not impair its functionality and performance; or (iii) if none
of the foregoing options are commercially feasible, the Parties will negotiate
in good faith to establish a mutually agreeable alternative, taking due regard
to BOCA market obligations. Notwithstanding the foregoing an indemnifying party
shall not be obligated to indemnify the other under this section for an
infringement arising from the combination of the indemnifying party's products
or materials with other products or materials not provided, made used or sold by
the indemnifying party in cases where both: (i) such infringement would not have
occurred but for the use of the other products or materials; and (ii) such
infringement would still have occurred if a third party vendor's comparable
products or materials were substituted for the indemnifying party's products or
materials.
7.2 General. Except for claims of infringement of a patent, copyright or
intellectual property right, each party (the "Indemnifying Party") shall at all
times during the term of this Agreement and thereafter, indemnify, defend, and
hold the other party ("the "Indemnified Party"), its Affiliates, and its/their
officers and employees harmless against any and all Claims, actions, demands,
liabilities, losses, damages, costs, payments, and expenses (including
reasonable attorneys' fees and expenses) (collectively, "Claims"), arising out
of the death of or injury to any person or persons or out of any damage to real
or personal property and against any other Claim of any kind whatsoever
resulting from any occurrence caused by and attributable to the Indemnifying
Party, its subcontractors', or its agents' acts or omissions during the
performance of this Agreement. If both parties are or may be obligated to each
other as a result of different actions taken by each party or actions taken
jointly by both parties, then each party agrees to contribute to the amount of
such Claims as is appropriate to reflect the relative fault of such party in
connection with the events that resulted in such Claims. The relative fault of
each party shall be determined by reference to, among other things, each party's
relative intent, knowledge, access to information, and opportunity to correct or
prevent the circumstances resulting in such Claims.
7.3 Procedures Relating to Indemnification.
(a) Scope. The procedures set forth in this Article 7.3 shall apply with
respect to any actual or potential Claim, any written demand, the commencement
of any action, or the occurrence of any other event which involves any matter or
related series of matters against which NETWOLVES or BOCA (an "Indemnified
Party") is indemnified by a Party hereto (the "Indemnifying Party") under
Article 7.1 or Article 7.2 hereof.
(b) Notice. Upon receiving notice in writing of the commencement of any
Claim from a Third Party, the Indemnified Party shall give written notice of
such Claim, in reasonable detail, to the Indemnifying Party no later than thirty
(30) days after receiving such notice, stating the amount involved, if known,
together with copies of any written documents initiating or asserting such a
Claim. The failure to so notify, or any delay in so notifying, shall not relieve
the Indemnifying Party hereunder unless and only to the extent that the
Indemnifying Party did not otherwise learn of such Claim and such failure or
delay results in the forfeiture by the Indemnifying Party of substantial rights
and defenses, and will not in any event relieve the Indemnifying Party from any
obligations to the Indemnified Party other than the indemnification obligation
provided in Article 7.1 or Article 7.2 hereof, as the case may be.
(c) Assumption of Defense. The Indemnifying Party shall be entitled to
assume the defense of any Claim for which indemnification is sought hereunder
with counsel of its choice and at its expense (in which case the Indemnifying
Party shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the Indemnified Party except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
Indemnified Party. Notwithstanding an election by the Indemnifying Party to
assume the defense of such Claim, the Indemnified Party shall have the right to
employ separate counsel and to participate in the defense of such Claim; and the
Indemnifying Party shall bear the reasonable fees, costs, and expenses of such
separate counsel if (i) the use of counsel chosen by the Indemnifying Party to
represent the Indemnified Party would present such counsel with a conflict of
interest; (ii) the Indemnifying Party shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party within
a reasonable time after notice of the institution of such Claim; or (iii) the
Indemnifying Party shall authorize the Indemnified Party to employ separate
counsel at the Indemnifying Party's expense.
(d) Settlements. The Indemnifying Party shall not be liable under the
provisions of Article 7.1 or Article 7.2 hereof, as the case may be, for any
amount paid by the Indemnified Party to settle, compromise, or otherwise resolve
(hereinafter "Settle" or "Settlement") any Claims if the Settlement is entered
into without the written consent of the Indemnifying Party, which consent may
not be withheld unless such Settlement is unreasonable in light of such Claims
against, and defenses available to, the Indemnified Party. If the Indemnifying
Party withholds its consent to a proposed Settlement, and the Claim in question
is not Settled as proposed, the Indemnifying Party will indemnify the
Indemnified Party in accordance with Article 7.1 or Article 7.2 hereof, as the
case may be. The Indemnifying Party agrees that it will not, without the prior
written consent of the Indemnified Party (which consent may not be withheld
unless such Settlement is unreasonable in light of such Claims against, and
defenses available to, the Indemnified Party), Settle any pending or threatened
Claim unless such Settlement includes an unconditional release of the
Indemnified Party from all liability arising out of or related to such Claim, or
transactions, or conduct in connection therewith.
(e) Cooperation. The Parties agree to cooperate, share information (subject
to the need to preserve any applicable privilege), and consult in good faith to
the fullest extent possible, at the Indemnifying Party's expense, in connection
with any Claim in respect of which indemnification is sought under this
Agreement.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES
8.1 Warranty. BOCA represents and warrants the following:
(a) All Engineering Services performed under this Agreement shall be
performed in a good and workmanlike manner in accordance with industry
standards.
(b) All Deliverables arising from Engineering Services shall conform in all
respects to the Specifications.
(c) BOCA has and shall have all right, title and interest necessary to make
the assignments of intellectual property and other proprietary rights where
required under this Agreement, and BOCA has and shall have the all powers
necessary to transfer such rights and to execute all instruments required under
this Agreement with respect to such rights.
(d) All FoxBox Units, when shipped
by BOCA, shall be interoperable with NETWOLVES Thin Client Units and the FoxBox
Thin Client Software, shall conform in all respects to the Specifications, and
shall be Homologized for the states set forth in Exhibit D.
(e) All NETWOLVES Thin Client Units, when shipped by BOCA, shall be
interoperable with the FoxBox Units and the FoxBox Thin Client Software, shall
conform in all respects to the Specifications, and shall be Homologized for the
states set forth in Exhibit D.
(f) All FoxBox Units, NETWOLVES Thin Client Units and any software embedded
therein shall correctly operate and process date data prior to, during and after
January 1, 2000.
8.2 Intellectual Property Rights of Third Parties. Both parties warrant to
the other that neither has or shall have knowledge that the FoxBox Units or the
NETWOLVES Thin Client Units shall infringe on the intellectual property rights
of any third party.
8.3 Remedies. NETWOLVES' remedy for breach of the foregoing warranties, in
addition to such other remedies that may be available at law or equity, shall be
the prompt repair or replacement of nonconforming goods, or the immediate refund
of monies paid for such goods.
8.4 Disclaimer of Certain Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN
THIS AGREEMENT, BOCA AND NETWOLVES MAKE NO REPRESENTATIONS OR WARRANTIES,
EXPRESSED OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
OTHERWISE WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.
8.5 Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE
LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE
DAMAGES, LOSS OF EARNINGS, PROFIT, OR GOODWILL SUFFERED BY ANY PERSON OR ENTITY,
INCLUDING THE OTHER PARTY, CAUSED DIRECTLY OR INDIRECTLY BY THE WORK PERFORMED
PURSUANT TO THIS AGREEMENT, BY ANY LICENSE OR SUBLICENSE GRANTED HEREUNDER, OR
BY EACH PARTY'S PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT, EVEN IF SUCH
PARTY IS NOTIFIED BY THE OTHER PARTY OR ANY THIRD PARTY OF THE POSSIBILITY OF
SUCH DAMAGES.
ARTICLE 9
UNITED STATES REGULATIONS AND EXPORT CONTROLS
9.1 Compliance. Both Parties agree to comply with all applicable laws,
rules, regulations and orders of federal, state, local and foreign governments.
Both parties are subject to United States laws and regulations controlling the
export of technical data, computer software, prototypes and other commodities
(including all Export Administration Regulations of the United States Department
of Commerce), and that BOCA's obligations hereunder are contingent on NETWOLVES'
compliance with applicable United States export laws and regulations. The
transfer of certain technical data and commodities may require a license from
the certain agencies of the United States Government and/or written assurances
by NETWOLVES that NETWOLVES shall not export data or commodities to certain
foreign countries without prior approval of such agency. NETWOLVES agrees that
it shall not, directly or indirectly, export or re-export, or knowingly permit
the export or re-export of, the Licensed Technology to any country for which the
United States Export Administration Act, any regulation thereunder, or any
similar United States law or regulation, requires an export license or other
United States government approval, unless the appropriate export license or
approval has been obtained. BOCA shall provide NETWOLVES with reasonable support
and cooperation to enable NETWOLVES to obtain the required licenses or approvals
NETWOLVES agrees that it will be solely responsible for any violations of such
by NETWOLVES.
9.2 Disclaimer of Representation. BOCA neither represents that an export
license shall not be required nor that, if required, it shall be issued.
Further, if such license is issued, revocation of such export license or
modification thereof that prevents BOCA from performing all or part of its
obligations under this Agreement shall not be deemed a breach of this Agreement
to the extent such revocation or modification is not attributable to BOCA; or,
if such revocation or modification is attributable to BOCA, is remedied by BOCA
on an expedited basis and at least within sixty (60) days.
ARTICLE 10
NON-USE OF TRADEMARKS
Neither Party shall use the trade names, trademarks, or service marks of
the other party or any adaptation thereof, in any advertising, promotional or
sales literature without prior written consent obtained from the other party in
each case.
ARTICLE 11
TERMINATION
11.1 Termination for Convenience. If BOCA has not timely presented
acceptable deliverables for the FoxBox Services or deliverables for the Thin
Client Services in accordance with the provisions of this Agreement, then
NETWOLVES may terminate this Agreement for convenience, effective upon giving
Notice of Termination.
11.2 Termination for Cause. Upon any material breach or default of this
Agreement by any Party (the "Breaching Party"), the non-breaching Party shall
have the right to terminate this Agreement and the rights, privileges, and
license granted hereunder by sixty (60) days' notice to the Breaching Party.
Such termination shall become effective unless the Breaching Party shall have
cured any such breach or default by diligently pursuing remedial action prior to
the expiration of the sixty (60) day period; provided that, if the Breaching
Party shall be in breach or default of the same provision twice within any six
(6) month period, the non-breaching Party shall have the right to terminate this
Agreement immediately without providing the Breaching Party the sixty (60) days'
notice and cure period.
11.3 Effect of Termination. Upon termination of this Agreement for any
reason, each Party shall, at the option of the other Party, return or destroy
all Confidential Information and Know-How in its possession owned by the other
Party.
ARTICLE 12
TERM
The term of this Agreement shall be for a period of two (2) years from the
date of this Agreement unless sooner terminated pursuant to the provisions of
this Agreement.
ARTICLE 13
PUBLIC ANNOUNCEMENTS AND PROMOTIONAL MATERIALS
NETWOLVES and BOCA shall cooperate with each other so that each party may
issue a press release concerning this Agreement within ninety (90) days
following the execution of this Agreement, provided that each party may approve
any such press release prior to its release. Such press release shall include a
quote attributable to the executive officer of each party.
ARTICLE 14
GENERAL PROVISIONS
14.1 Notices. All notices, demands or other communications given under this
Agreement shall be in writing and shall be mailed by first-class, registered, or
certified mail, return receipt requested, postage prepaid, or transmitted by
hand delivery (including delivery by courier), telegram, telex, or facsimile
transmission, addressed as follows:
(i) If to BOCA:
----------
Boca Research, Inc.
Attention: Executive Vice President & General Manager
0000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
--------------
Xxxxxx X. Xxxxxxxxxx
Spinner, Dittman, Xxxxxxxxxx & Xxxxxxx
000 X. Xxxxxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) If to NETWOLVES:
---------------
NetWolves Corporation
Attn: Xxxxxx X. Xxxxxxxx, Xx., Chief Information Officer
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
--------------
Xxxxxx X. Xxxxxxxxx
Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address which each Party may designate by notice in writing.
Each such notice, demand, or other communication which shall be mailed,
delivered, or transmitted in the manner described above shall be deemed given
for all purposes at such time as it is delivered to the addressee (with the
return receipt, the delivery receipt, the affidavit of messenger, or (with
respect to a telex) the answer back being deemed conclusive (but not exclusive)
evidence of such delivery), or at such time as delivery is refused by the
addressee upon presentation.
14.2 Governing Law. The construction and interpretation of this Agreement
and the rights of the Parties shall be governed by the laws of the State of
Florida without regard to its conflicts of laws provisions. The parties consent
to personal jurisdiction and venue in the state and federal courts located in
Florida over any dispute arising from or in connection with this Agreement not
otherwise submitted to arbitration. Each Party hereby consents to the personal
jurisdiction of the state and federal courts in Florida in any such dispute
arising from or relating to this Agreement. Each Party further agrees that
services of process may be made, in addition to any other method permitted by
law, by certified mail, return receipt requested, sent to the applicable address
set forth herein. Any award or injunctive relief granted in any dispute may be
enforced by either Party in either the courts of the State of Florida or in the
United States District Courts in Florida.
14.3 Assignment. This Agreement shall be binding upon and shall inure to
the benefit of the Parties hereto and their respective successors and assigns as
permitted hereunder. No person or entity other than the Parties hereto is or
shall be entitled to bring any action to enforce any provision of this Agreement
against any of the Parties hereto, and the covenants and agreements set forth in
this Agreement shall be solely for the benefit of, and shall be enforceable only
by, the Parties hereto or their respective successors and assigns as permitted
hereunder. Except for assignment to an Affiliate, a successor in interest or to
the purchaser of all or substantially all of the assets of a party, neither this
Agreement nor any rights hereunder shall be assignable by any Party without the
prior written consent of the other Party hereto, which consent shall not be
unreasonably withheld.
14.4 Further Assurances. Each Party agrees to take or cause to be taken
such further actions, to execute, deliver and file or cause to be executed,
delivered and filed such further documents, and to obtain such consents, as may
be necessary or reasonably requested in order to fully effectuate the purposes,
terms, and conditions of this Agreement.
14.5 Entire Agreement; Amendment. This Agreement constitutes the entire
agreement between the Parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the Parties with respect to such matters. No amendment to this Agreement
shall be made except by an instrument in writing signed on behalf each Party.
14.6 Severability. If any court or arbiter of applicable jurisdiction
determines that any of the agreements, covenants, and undertakings set forth
herein, or any part thereof, is invalid or unenforceable, the provision shall,
to the extent possible, be restated to reflect the original intention of the
Parties, and the remainder of this Agreement shall be given full effect, without
regard to the invalid or restated portions.
14.7 Waiver. The failure of either Party to assert a right hereunder or to
insist upon compliance with any term or condition of this Agreement shall not
constitute a waiver of that right or excuse a similar subsequent failure to
perform any such term or condition by the other Party.
14.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same agreement.
14.9 Compliance with Laws. In performing under this Agreement, both Parties
agree to comply with all applicable laws, rules, and regulations of any
governmental entity.
14.10 Force Majeure. Neither Party shall not be liable to the other Party
for any loss or damage done to delays or failure to perform resulting from an
event of "force majeure," including without limitation, acts of God; accident;
war; fire; lockout; strike or labor dispute; riot or civil commotion; act of the
public enemy; enactment, rule, order, or act of civil or military authority;
unforeseeable judicial action; or unforeseeable inability to secure adequate
materials, labor, or facilities.
14.11 Permits and Licenses. The Parties agree that BOCA shall be
responsible for obtaining all necessary United States federal and state permits,
licenses, and other government approvals relating to the work performed under
this Agreement; and NETWOLVES shall be responsible for obtaining all necessary
permits, licenses, and other government approvals relating to the work performed
in other countries with regards to their FoxBox Units. The Party responsible for
obtaining government approvals agrees to indemnify the other for any loss
incurred due to the asserted or established failure to comply with the
responsible Party's respective obligation to obtain such applicable government
approvals. Each Party agrees to reasonably assist the other, at the responsible
Party's expense, in obtaining all such necessary government approvals.
IN WITNESS WHEREOF, the Parties have hereunto set their hands and seals and
duly executed this Agreement the day and year set forth above.
BOCA RESEARCH, INC.
By: /s/Xxxxxxx X. Xxxxx 9/10/99
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President - BOCA Global
NETWOLVES TECHNOLOGIES
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Chief Information Officer
Officer of the Company
TABLE OF EXHIBITS
EXHIBIT A FOXBOX ENGINEERING SERVICES
EXHIBIT B FOXBOX CASE REDESIGN REQUIREMENTS
EXHIBIT C FOXBOX SPECIFICATIONS
EXHIBIT D HOMOLOGATION STATES
EXHIBIT E NETWOLVES THIN CLIENT SPECIFICATIONS
EXHIBIT F MAXIMUM UNIT PRICES
EXHIBIT G MEMORANDUM OF UNDERSTANDING
EXHIBIT A
FOXBOX ENGINEERING SERVICES
1. Chassis Designs. BOCA shall take all steps necessary to design two (2)
FoxBox chassis (a single rack mount unit and a four rack mount unit) that are
acceptable to NETWOLVES in accordance with the NETWOLVES FoxBox Chassis
Specifications, attached hereto as Exhibit B, and to prepare detailed schematics
and such other documentation as may be necessary for the manufacture and
assembly of a conforming chassis.
2. Detailed Schematics and Directions for FoxBox Manufacture. BOCA shall
take all steps necessary to prepare detailed schematics and such other
documentation (the "Documentation") as may be necessary for manufacture and
assembly of a computer conforming in all respects to the FoxBox Specification,
attached hereto as Exhibit C. The Documentation shall be sufficiently complete
and set forth with sufficient particularity to enable a person of ordinary skill
in the art to manufacture a computer conforming in all respects to the FoxBox
Specification. The Documentation shall include, without limitation, the
following:
* All documents necessary to apply for and to achieve UL Certification
(1950 3d Edition) for any computer manufactured in accordance
therewith.
* Detailed schematic drawings of all FoxBox Unit components.
* Specifications package for all FoxBox Unit components.
* Work instructions for Mass Production of the FoxBox Units.
* Enhanced drawings and sourcing for customized cables, LEDs and other
components unique to the FoxBox Units
3. Homologation Services. BOCA shall take all steps necessary to prepare
detailed schematics and such other documentation as necessary for Homologation
of the FoxBox computers manufactured in accordance therewith with the states
identified in Exhibit D, attached hereto. BOCA shall then provide all Regulatory
approval support and shall be responsible for obtaining all approvals necessary
for NETWOLVES to sell FoxBox Units in each state listed in Exhibit D. These
services shall include: detailed assessment of the requirements for each piece
of equipment by individual country; arranging for a proper local applicant for
approval where required; collection and assimilation of all materials and
documentation required for compliance; review of test data to ensure agency
compliance; on-site testing support where required; assuring that all necessary
supporting documentation has been provided and properly prepared; preparing type
approval application or compliance folders for local agencies' specific formats;
attending pre-submission and coordination meetings with the regulatory agencies
as necessary; modification of the application (if necessary) based on agency
comments, feedback and recommendations; submission of the completed application
or maintenance of a compliance folder; careful coordination with agency
officials through and until receipt of approvals; and notification of the
application approval and delivery of the approval certificate.
4. Prototypes and Sourcing. BOCA shall provide NETWOLVES with prototypes
and sourcing for production with respect to each of the above elements.
EXHIBIT B
FOXBOX CASE REDESIGN REQUIREMENTS
1. Overall Design Goal.
(a) Design two separate cases.
i. 5 Rack mount units high.
A. Expandable (access to all PCI/ISA card slots on
motherboard).
B. Higher Wattage, internal power supply.
ii. 1 Rack mount unit high.
A. One combo PCI/ISA slot set horizontally for Modem, T1/56K
card, 2nd Ethernet card, etc.
B. Possibly external power supply.
C. Similar in shape and size to Cisco 2500 series case.
2. Fasteners.
(a) No self tapping screws. They are difficult to install and they can
potentially leave small slivers of metal inside of the unit.
(b) Utilize identical screw in as many locations as possible. This will
speed assembly line construction.
3. Faceplate.
(a) Possibly molded plastic if less expensive than metal.
(b) Use printed stickers vs. silkscreening for logos. This would be
advantageous for potential OEM's.
(c) Snap on faceplate/bezel.
(d) Construct the LED's as a single assembly to snap into the faceplate.
(e) Three openings.
i. Two hard drive openings into which standard 3.5" hard drives can
be inserted onto rails with power/data cable mate.
ii. One opening for an internal tape backup - specific tape system
needs to be chosen.
4. Case Frame.
(a) Two Frames.
i. 5 Rack Mount Units (RMU) high.
A. possibly framed similar to a PC with a slide-over outer
covering.
ii. 1 Rack Mount Unit high.
A. Similar to Cisco 2500 series.
(b) Solid bottom plate onto which the motherboard plate will attach.
(c) Optional Mounting Brackets for 19" rack.
(d) 5 RMU case Must have mounting system for ATX power supply.
5. Power Supply.
(a) Must be phased to an ATX form factor for 5 RMU unit.
(b) Possibly external for 1 RMU unit, or custom internal.
6. Mounting Brackets.
(a) Screw into box cover -> into nuts welded on cover.
(b) Alternate method of attachment so FoxBox can be mounted flat (bottom
against the wall) onto a wall.
7. Motherboard Plate.
(a) Pre-attach mounting hardware for motherboard to ease assembly
(standoffs and key slots).
(b) Have all mounting points utilize same screw.
(c) Mounting plate motherboard attachment holes may need to change on
occasion to support motherboard revisions.
8. Ports and Switches.
(a) Move console port to front of case.
(b) Move ATX power switch to front.
(c) Remove reset switch.
9. Hard Drive System.
(a) Hard drives mounted on rails for easy insertion and removal.
(b) Connector assembly on rail kit and at the back of the drive bay so
cables do not slide in and out.
(c) Face plate pops off and drives can be removed/inserted.
10. Packaging.
(a) Potentially decrease width of packaging for use in automatic tape
machines.
11. Certifications.
(a) The case design MUST be fully compliant with all guidelines in UL 1950 3rd
edition.
EXHIBIT C
FOXBOX SPECIFICATIONS
The FoxBox is an Internet communications gateway providing enterprise-wide
connectivity, distance learning, firewall security and productivity enhancing
applications. All FoxBoxes produced by BOCA shall be functionally equivalent or
superior to existing FoxBox products sold by NETWOLVES. FoxBoxes shall be
delivered complete, packaged and ready for commercial distribution in accordance
with NETWOLVES' written instructions.
Except as set forth below, FoxBox Units shall conform in all respects with
the following documents: FoxBox Quick Start Guide; FoxBox Administrator's
Manual; FoxBox Configuration Guide; FoxBox Technical Reference Guide; FoxBox
Client Configuration Guide; FoxBox Virtual Private Networking Module; FoxBox
Advanced Access Control Module; SEC E-mail Archive (Security & Exchange
Commission); and Citrix Application Note: Connecting to a WinFrame Server.
All FoxBox Units shall be interoperable with the FoxBox Thin Client
software and hardware conforming with the Thin Client Specifications. All
hardware must be supported by the FreeBSD Operating system, and capable of
executing the following software at least as well as existing NETWOLVES
hardware: Apache1.3.3; Bind 8.12; Fetchmail 4.7.8; FreeBSD 2.2.8; IMAP 4.5 Beta;
IP Filter 3.2.10; ISC DHCP 2.0b1p16; MRTG 2.5.3; Perl 5.003; PHP 3.0.6;
PostgreSQL 6.4.2; Sendmail 8.9.3; Squid 2.1Patch2; Samba 2.0; SNMPD 3.5.3; SSH;
and SUDO 1.5.6p2.
FoxBox Units shall further include the following components:
FoxBox DDR Model:
----------------
1. 19" Rackmountable Case (8 pieces)
2. Power Supply 230 Watt UL approved Double Throw
3. Tyan Trinity (S1590S) Mother Board
4. Cyrix M2 300 Mhz processor with fan
5. 32MB DIMM PC-100 SDRAM
6. Accton 10 Mbit PCI Ethernet card
7. Western Digital 4.3. GB Hard Drive with IDE cable
8. FoxBox Packaging
9. Power Cord
10. 15` Blue (cat 5) Straight thru Ethernet
11. Boca Research -- V.90 modem
12. Standard Phone Cord
FoxBox ISDN Model:
-----------------
1. 19" Rackmountable Case (8 pieces)
2. Power Supply 230 Watt UL approved Double Throw
3. Tyan Trinity (S1590S) Mother Board
4. Cyrix M2 300 Mhz processor with fan
5. 32MB DIMM PC-100 SDRAM
6. Accton 10 Mbit PCI Ethernet card
7. Western Digital 4.3. GB Hard Drive with IDE cable
8. FoxBox Packaging
9. Power Cord
10. 15` Blue (cat 5) Straight thru Ethernet
11. US Robotics Courier Imodem ISDN TA
12. RJ-45 Silver Satin Cable
FoxBox 56K Model:
----------------
1. 19" Rackmountable Case (8 pieces)
2. Power Supply 230 Watt UL approved Double Throw
3. Tyan Trinity (S1590S) Mother Board
4. Cyrix M2 300 Mhz processor with fan
5. 32MB DIMM PC-100 SDRAM
6. Accton 10 Mbit PCI Ethernet card
7. Western Digital 4.3. GB Hard Drive with IDE cable
8. FoxBox Packaging
9. Power Cord
10. 15` Blue (cat 5) Straight thru Ethernet
11. RS-232 (8 bit) Sync Serial Card
12. 56K CSU/DSU
13. 10` RS-232 cable (25 pin to 25 pin M/M)
FoxBox T1 Model:
---------------
1. 19" Rackmountable Case (8 pieces)
2. Power Supply 230 Watt UL approved Double Throw
3. Tyan Trinity (S1590S) Mother Board
4. Cyrix M2 300 Mhz processor with fan
5. 32MB DIMM PC-100 SDRAM
6. Accton 10 Mbit PCI Ethernet card
7. Western Digital 4.3. GB Hard Drive with IDE cable
8. FoxBox Packaging
9. Power Cord
10. 15` Blue (cat 5) Straight thru Ethernet
11. V.35 card (8 bit) Sync Serial Card
12. T1 CSU/DSU
13. X.00 Xxxxxxxxxx Xxxxx
XxxXxx X0X Model:
----------------
1. 19" Rackmountable Case (8 pieces)
2. Power Supply 230 Watt UL approved Double Throw
3. Tyan Trinity (S1590S) Mother Board
4. Cyrix M2 300 Mhz processor with fan
5. 32MB DIMM PC-100 SDRAM
6. Accton 10 Mbit PCI Ethernet card
7. Western Digital 4.3. GB Hard Drive with IDE cable
8. FoxBox Packaging
9. Power Cord
10. 15` Blue (cat 5) Straight thru Ethernet
11. Accton 10Mbit PCI Ethernet Card
12. 15` Red (cat 5) Crossover cable
EXHIBIT D
HOMOLOGATION STATES
Asia/Pacific: Mid-East/Africa:
------------ ---------------
Australia/New Zealand Bahrain
Hong Kong (China) Xxxxx
Xxxxx Xxxxxx
Xxxxxxxxx Xxxxxxx
Xxxxx Xxxxx
Xxxxx South Africa
Malaysia
Singapore
Taiwan
Thailand
Europe: Latin America:
------ -------------
Belgium Argentina
Denmark Brazil
Finland Chile
France Costa Rica
*Germany Ecuador
Holland *Mexico
Italy *Panama
Norway Venezuela
Spain
Sweden North America:
*United Kingdom *Canada
EXHIBIT E
NETWOLVES THIN CLIENT SPECIFICATIONS
The diskless workstation (Fox pup) is a thin client designed to support
rich audio and video through our ESCN product. It shall be relatively small and
durable with limited moving parts. All hardware shall be supported by FreeBSD
3.2 operating system.
1. Motherboard
a. Netboot Capable.
b. Support for a 300mhz K6-AMD or GXM-National.
c. Support for Memory up to 128 Megs.
2. Memory
a. Type is DIMM.
b. Size should be no less than 64 Megs, however, the more the
better.
3. Drives
a. No Hard Drive or Floppy Drive.
4. Sound
a. Any True Sound Blaster chip set.
5. Video
a. Should be supported by FreeBSD and have excellent performance in
an X-window environment. See attached list for compatible video
cards.
b. The video card should have at least 4 Megs of video on the card.
6. Network Card
a. 10/100 Megabit Ethernet. See attached list for compatible network
cards.
b. Should have a TCP/IP Boot prom (uses the bootp protocol)
installed.
7. I/O
a. PS/2 Keyboard.
b. PS/2 Mouse.
c. One available PCI slot for expansion.
8. Monitor
a. 14" Minimum.
9. Peripherals
a. PS/2 Keyboard.
b. PS/2 Mouse.
c. External Speakers (may be mounted on or inside monitor).
10. Case
a. Max. dimensions: Width = 13", Depth = 10", Height = 3".
b. Desired headphone xxxx mounted on the front of the case.
Below are a few video cards believed to be supported by FreeBSD:
S3 with one of the following S3 chipsets: 911, 924, 801/805, 928, 732
(Trio32), 764, 765, 775, 785 (Trio64*), 000, 000, 000, 000 xxx X00 (Xxxxxx00Xx).
Mach32 series: Graphics Ultra+, Graphics Ultra Pro, Graphics Wonder,
Graphics Ultra XLR, Graphics Ultra AXO, VLB mach32-D, PCI mach32-D, ISA mach32.
Mach64 series: Graphics Xpression, Graphics Pro Turbo, Win Boost, Win
Turbo, Graphics.
Pro Turbo 1600, Video Xpression, 3D Xpression, Video Xpression+, 3D
Xpression+, All- In-Wonder, All-In-Wonder PRO, 3D Pro Turbo, ATI-TV, XPERT@Play,
XPERT@Work, XPERT XL.
Below are a few Ethernet cards believed to be supported by FreeBSD:
SMC Xxxxx 00 XX0000 Xxxxxxxx interface, and most other WD8003E, WD8003EBT,
WD8003W, WD8013W, WD8003S, WD8003SBT and WD8013EBT based clones.
SMC Elite Ultra and 9432TX based cards are also supported.
DEC EtherWORKS III NICs (DE203, DE204 and DE205).
DEC EtherWORKS II NICs (DE200, DE201, DE202 and DE422).
DEC DC21040/DC21041/DC21140 based NICs:
ASUS PCI-L101-TB
Xxxxxx XXX0000
Cogent EM960PCI
Compex CPXPCI/32C
D-Link DE-530
DEC DE435
Danpex EN-9400P3
JCIS Condor JC1260
Linksys EtherPCI
SMC EtherPower 10/100 (Model 9332)
SMC EtherPower (Model 8432) SMC
EtherPower (2)
Intel EtherExpress
Intel EtherExpress Pro/100B 100Mbit
Novell NE1000, NE2000 and NE2100 ethernet interface
3Com 3C501 cards
3Com 3C503 Etherlink II
0Xxx 0x000 Xxxxxxxxx/x
0Xxx 0X000 Xxxxxxxxx 00/XX
0Xxx 0X000, 0X000 Xxxxxxxxx III
3Com 3C90x cards
NOTE: FreeBSD does not currently support PnP (plug-n-play) features present
on some ethernet cards. If your card has PnP and is giving you problems, try
disabling the PnP features.
EXHIBIT F
MAXIMUM UNIT PRICES
NETWOLVES PRODUCT BOCA SKU PRICE
----------------- -------- -----
Fox Box DDR Unit NWMODEM $ 660.00
FoxBox ISDN Unit NWISDN $ 850.00
FoxBox 56K Unit NWCSU56K $1,295.00
FoxBox T-1 Unit NWCSUT1 $1,541.87
XxxXxx 00X Xxxx XX0XXXXX $ 646.00
NetWolves Thin Client Unit NWTC $ 500.00
EXHIBIT G
MEMORANDUM OF UNDERSTANDING
This Non-Binding Memorandum of Understanding (this "Memorandum") between
Boca Research, Inc. ("BOCA") and NetWolves Technologies, Inc. ("NETWOLVES") sets
forth the understanding of the parties concerning an intent to negotiate in good
faith a joint marketing agreement; provided, however, that each party shall
determine in their sole and exclusive discretion, respectively, the
acceptability or non-acceptability of such joint marketing agreement. Nothing
set forth in this Memorandum shall be binding upon the parties, and all binding
terms, if any, shall be set forth, if at all, in a definitive agreement
subsequently executed by both parties.
The parties contemplate that a definitive joint marketing agreement may
include the following terms:
1. NETWOLVES shall license BOCA the right to manufacture equipment
comprising Fox Box Technology on an OEM, private label basis.
2. Such right shall be limited to the following sales channels: Xxxxxx,
Merisel and Tech-Data, and shall be geographically limited to Domestic United
States markets.
3. The fee for such license paid to NETWOLVES by BOCA for each such unit
shall be a fixed price per unit in accordance with the following schedule, which
shall be the announced NETWOLVES' Suggested Retail Price (the "NSRP") for such
unit, less an amount equal to a percentage of the NSRP for such unit as set
forth in the following table:
Unit Quantity Licensed in
Most Recent Twelve Months Percentage Discount
1 to 1,000 33%
1,001 to 2,000 35%
2,001 to 3,000 37%
3,001 to 5,000 40%
5,001 to 10,000 45%
10,001 or more 48%
BOCA may further deduct from the fee for each unit sold BOCA's actual Cost of
Work, exclusive of overhead, with respect to that unit. To the extent such
additional deductions are taken BOCA shall give an accounting therefor.
4. If BOCA does not sell (or make payment of prices for) at least three
thousand (3,000) units within any twenty-four (24) month period after the
execution of the definitive agreement, then NETWOLVES shall have the right to
terminate the definitive agreement.
5. The term of the Agreement shall be coextensive with the term of the
Strategic Alliance Agreement; provided, however, that NETWOLVES shall retain the
right to terminate the definitive agreement for convenience if BOCA shall fail
to comply with NETWOLVES policies reasonably promulgated from time to time and
applicable to similar distributors and OEM arrangements.
