Exhibit (c)(2)
Contract Expiration Date: January 21, 1999
ORIGINAL EQUIPMENT MANUFACTURER AGREEMENT
This Agreement is between Norand Corporation ("NORAND"), 000 Xxxxxx Xxxxxx X.X.,
Xxxxx Xxxxxx, XX 00000, and Western Atlas, Inc., including its subsidiaries
("WESTERN ATLAS"), located at 000 Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000.
BACKGROUND
A. Norand is in the business of selling computer hardware and associated hand
held terminal equipment, software and services for use with such computer
hardware.
B. Western Atlas is in the business of selling integrated manufacturing
systems, automated data collection systems and material management systems.
C. Western Atlas wishes to purchase computer hardware and systems software from
Norand for resale in the Territory (defined in Section 1.1 below).
AGREEMENT
1. APPOINTMENT OF WESTERN ATLAS
1.1 TERRITORY
On a non-exclusive basis, Western Atlas may sell and license Products (as
defined in Section 2) for use in healthcare, manufacturing, warehouse and
distribution applications worldwide in such geographic locations where the
Products are certified (the "TERRITORY"). Norand reserves the right to
appoint other original equipment manufacturers, distributors and resellers
in the Territory to sell Products and support customers using Products if
Norand determines that is advisable. In addition, Norand reserves the
right to make sales and provide service directly through its own employees,
sales representatives and other original equipment manufacturers,
distributors and resellers.
1.2 NOT AN AGENT
Western Atlas is not Norand's agent for any purpose. This Agreement is not
to be construed as a joint venture, partnership, agency, employer/employee
relationship or any other form of business obligation between Norand and
West-
ern Atlas to share profits or bear any losses of the other. Western Atlas
is acting solely as an independent contractor.
2. PRODUCTS
The products which may be purchased pursuant to this Agreement ("PRODUCTS")
are those listed on Schedule A, as may be amended from time to time by the
parties hereto. Any Products sold to Western Atlas pursuant to this
Agreement shall bear the "Intermec" name and/or logo as specified from time
to time by Western Atlas. Norand reserves the right, without incurring any
liability, to change prices, change the design or to discontinue the
manufacture or sale of any Products. Norand will give Western Atlas thirty
(30) days notice of any price changes or design changes to be made that
change form, fit or function of such products and ninety (90) days notice
of discontinuance of any Products. Norand will notify Western Atlas when
any product listed on Schedule A, but not yet released for sale, is so
released.
3. WESTERN ATLAS RESPONSIBILITIES
3.1 REASONABLE EFFORTS
Western Atlas agrees to use reasonable efforts to service customers in the
Territory.
3.2 VALUE ADDED
Western Atlas represents that it is a reseller of computer systems and
products and that it will purchase Products under this Agreement which it
will then remarket to third-party end-users in the regular course of its
business. The systems that Western Atlas sells will include additions or
integration of other equipment or software which Western Atlas
manufactures, acquires or develops.
3.3 SALES PROMOTION
Western Atlas will maintain a sales organization knowledgeable in the
Products. All Western Atlas sales personnel shall be certified by Norand
in accordance with Section 3.4.
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3.4 CUSTOMER SUPPORT
Western Atlas will provide the appropriate personnel, facilities and
equipment necessary to provide support in the use and sale of Products to
customers in the Territory. Western Atlas will have its personnel attend
product, sales and service training courses as may be offered by Norand
from time to time or as required by Norand of its sales employees,
including but not limited to, the requirements set forth in Schedule B
hereto. Western Atlas will make available adequate and competent technical
resources to promptly answer technical start-up questions, to counsel
end-users regarding the selection, integration and use of Products and
available software programs; to assist end-users with obtaining appropriate
FCC licenses; to survey the customer's facilities to determine the
appropriate quantity and configuration of Products for that facility;
install Products at the customer's facilities and act as the primary
resource for end-user's support requirements.
3.5 MAINTENANCE
Western Atlas shall have the right to sell its maintenance services to
purchasers of Products. Norand will also make available to Western Atlas
for sale to its customers that purchase Products Norand's maintenance
services in the Territory in accordance with Norand's then current Value
Added Reseller Maintenance Incentive Program.
3.6 SALES FORECAST
Western Atlas will participate and cooperate with Norand fully in a monthly
forecast system to provide good faith qualitative and quantitative details
by month of projected sales and purchases of Products for the following
twelve calendar months. The forecast will include such information and be
in such form as Norand will from time to time require, including but not
limited to, the quantity and type of Products to be sold, projected
delivery dates and an assessment of the likelihood that the transaction
will be completed. The first such forecast to be provided by Western Atlas
pursuant to this Section shall be provided to Norand on or before April 1,
1997.
3.7 MONTHLY SALES AND SHIPMENT STATEMENT
Western Atlas will provide Norand with written reports each
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month detailing sales by location and monthly shipment information,
including the serial numbers of the Products sold. This report will be
used to initiate the warranty period hereunder, and, while delay in such
report will not serve to lengthen the warranty period, failure or delay in
making such report may diminish the warranty coverage. The report will
include such information and be in such form as Norand will from time to
time require. All such records will be maintained by Western Atlas for a
period of three years from the date of termination of this Agreement.
3.8 FUNCTIONAL REQUIREMENTS
Western Atlas agrees that it is responsible for the selection of the
Products and the determination of the suitability of the Products for the
purpose for which Western Atlas intends to use them.
3.9 INSPECTION
Western Atlas agrees to inspect the Products upon receipt to ascertain that
they are operable and function properly prior to resale.
3.10 INDEMNITY
Western Atlas agrees to defend and hold Norand, its employees, agents,
successors and assigns harmless from any liability, loss, damage, claims
and expense whatsoever, including but not limited to judgments and
attorneys fees, caused or alleged to be caused directly or indirectly by
the products or services, or both, sold by Western Atlas or by the
negligent, grossly negligent or willful acts of any agent, employee or
subcontractor of Western Atlas; provided, however, that Western Atlas'
obligations hereunder shall not arise to the extent that the claim or
damage is caused solely by: (a) the Products; or (b) the negligent,
grossly negligent or willful acts of Norand or its agents or employees.
4. NORAND RESPONSIBILITIES
4.1 SALES ASSISTANCE
Norand may provide sales assistance in the Territory (as mutually agreed
upon) and will provide brochures and materials at Norand's standard prices
for such items then in
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effect.
4.2 NORAND TRAINING, SUPPORT AND INTEGRATION
Norand shall make available to Western Atlas training programs, support
services and programs and system integration consulting at Norand's
standard prices for such services then in effect.
5. ORDERS AND RETURNS
5.1 AUTHORIZED ORDER FORM
The terms and conditions of this Agreement will be the only terms and
conditions which apply to all orders Western Atlas makes for Products,
unless Norand specifically agrees otherwise in writing. Any additional or
conflicting terms Western Atlas may propose with its orders will not apply.
All orders are subject to written acceptance by Norand.
5.2 ORDER INFORMATION
Western Atlas' orders must be in writing and identify the product or
service ordered, the shipping instructions, the requested delivery dates,
and the system number if applicable. Requested delivery dates must be
within one hundred and eighty (180) days of the date of order.
5.3 RESCHEDULING SHIPMENT
Western Atlas may reschedule shipment of an accepted order one time if
Western Atlas gives Norand written notice at least thirty (30) days before
the scheduled ship date; provided that, the requested rescheduling date is
within ninety (90) days of the original order date and Norand accepts the
new ship date requested. Such acceptance will not be unreasonably
withheld.
Western Atlas may cancel shipment of an accepted order if it gives Norand
written notice at least fifteen (15) business days before the scheduled
shipment date.
Cancellations, rescheduling and reconfigurations are subject to the
following charges:
Cancellation/Reconfiguration/
-----------------------------
If Notice is Received Rescheduling Charges
--------------------- --------------------
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More than 60 days 0%
31 to 60 days 5%
16 to 30 days 10%
15 days 15%
Prior to Date of
Scheduled Shipment
An accepted order may be rescheduled or reconfigured no more than once.
Except as permitted by Norand in its sole and absolute discretion,
cancellation, reconfiguration or rescheduling is not permitted less than
fifteen (15) business days before the scheduled shipment date.
6. PRICES
6.1 PRICES
For the period beginning on the date hereof and continuing through January
19, 1998, Norand will sell Products to Western Atlas at a price based on
the sales forecast provided pursuant to Section 3.6 covering the
twelve-month period beginning on April 1, 1997, such price being no less
favorable than the lowest price then being charged by Norand for such
Products for sales to other purchasers based on sales volumes similar to
such forecast. For each period beginning on January 20 and ending on the
following January 19, commencing January 20, 1998, Norand will sell
Products to Western Atlas at a price based on the volume of purchases by
Western Atlas during the twelve-month period ending on the preceding
January 19, such price being no less favorable than the lowest price then
being charged by Norand for such Products for sales to other purchasers
with sales volumes similar to Western Atlas' volume purchases during such
twelve-month period. Prices are F.O.B. point of shipment and exclude all
transportation charges, duties and taxes. Western Atlas is responsible to
reimburse Norand for all duties and taxes (other than taxes on Norand's
income) which arise from the purchase and sale of Products, unless Western
Atlas provides Norand with written evidence that is satisfactory to Norand
of an exemption from such duties and taxes. Western Atlas is also
responsible for all transportation charges. Risk of loss shall pass to
Western Atlas F.O.B. point of shipment.
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6.2 PRICE CHANGES
Norand will use reasonable efforts to provide Western Atlas written notice
of any price changes ninety (90) days before the new prices become
effective. If the change is an increase, orders placed within ninety (90)
days of the written notice will be at the old price; provided Western Atlas
accepts shipment within sixty (60) days from date of order. Orders for
shipment more than sixty (60) days after the date of order will be at the
new prices. In addition, the old price will apply to shipments made under
an order accepted before the notice of the price increase is given;
provided that, the agreed upon scheduled ship dates are within one hundred
and eighty (180) days of the order date and Western Atlas does not
reschedule shipment. If a shipment under such an order is rescheduled, the
new prices will apply to all subsequent shipments under that order.
If the change is a price decrease, Norand will apply the new lower price to
all shipments made under orders accepted, but not shipped, before the date
of notice of the price change.
7. INVOICING AND PAYMENT
Prices and other charges will be invoiced on shipment. Subject to prior
credit approval by Norand, payment will be due within thirty (30) days from
the date of invoice. If deliveries are made in installments, each shipment
will be paid for when due without regard to the other scheduled deliveries.
Failure to make payment when due may result in delay of scheduled
shipments. All amounts not paid when due will be subject to the lesser of:
(a) a 1-1/2% per month delinquency charge and (b) the highest interest rate
permitted under applicable law. Norand reserves the right to withhold
shipment and to require prepayment or other payment arrangements on all
future shipments if Western Atlas does not pay any invoice when due. To
assist Norand in establishing and updating credit limits and payment terms,
Western Atlas agrees to provide Norand with financial information relating
to Western Atlas' business, including audited financial statements and
other credit related information as Norand may reasonably request. Western
Atlas also agrees to provide updated financial information prior to renewal
of this Agreement for any additional term. To secure any indebtedness now
or hereafter owed by Western Atlas to Norand, Western Atlas hereby grants
to Norand a continuing security interest in
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the Products whether now existing or hereafter acquired by Western Atlas
and all additions to, improvements on and substitutions for the Products
and all proceeds of the foregoing to secure any and all amounts owed Norand
by Western Atlas. Western Atlas authorizes Norand to file this Agreement
as a nonuniform financing statement and also agrees, upon request from
Norand, to sign and file appropriate documentation to perfect this security
interest.
8. ADVERTISING
Western Atlas agrees not to advertise Products in a false, misleading or
derogatory fashion and agrees to indemnify, defend and hold Norand harmless
for any claim, cause of action, suit, loss or liability (including court
costs and attorneys fees) based upon Western Atlas' advertisements.
Western Atlas will provide Norand with a copy of any advertisement upon
request and will cease and desist using any advertisement or forth of
advertisement which is not consistent with the requirements of this
Section.
9. LIMITED WARRANTIES AND REMEDIES
9.1 WARRANTY FOR NORAND EQUIPMENT
Norand warrants that Hardware will be free from defects in manufacturing
materials and workmanship for the warranty period applicable to the
Hardware as set forth in the Price Guide in effect when Western Atlas
places its order for such Hardware. The warranty period begins to run on
the date Norand ships the Hardware to Western Atlas. If an item of
Hardware has such a defect, Norand will repair it without charge or, if
Norand is not able to repair it, Western Atlas may return it to Norand and
Norand will credit the purchase price to Western Atlas' account for the
original price paid. Warranty repairs will be completed within 10 working
days and then returned to Western Atlas by prepaid surface freight carrier.
As used herein, the term "HARDWARE" means the Products excluding the
Software.
For this warranty to apply:
a. Western Atlas must obtain a Repair Return Authorization from the
Norand Service Center within the warranty period;
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b. Norand must be given a written, detailed description of the
defect;
c. The item of Hardware must be promptly returned to the designated
Norand service center, freight prepaid by Western Atlas; and
d Upon examination of the item, Norand must agree that the defect
exists and is covered by this warranty.
9.2 WARRANTY FOR NORAND SOFTWARE
Norand warrants that Software will function in accordance with the user
manual provided with the Norand Software Products for one hundred eighty
(180) days from the date Norand ships to Western Atlas. If an item of
Software does not function as warranted, Norand will, without charge,
attempt to provide information to correct the program or the user manual.
If Norand is not able to provide this information, Western Atlas may return
the item of Software to Norand and Norand will credit the purchase price to
Western Atlas' account.
For this warranty to apply:
a. Norand must be given a written, detailed description of the
problem, within the warranty period; and
b. Norand must be able to reproduce the reported problem.
9.3LIMITATION OF WARRANTIES AND REMEDIES
The warranties set forth in Sections 9.1 and 9.2 do not apply to:
a. expendable items such as customer replaceable batteries and the
like, nor
b. defects or problems caused by causes outside of Norand's control;
such as, but not limited to, accident, misuse, neglect,
alteration, adjustments or repairs made by persons other than
authorized Norand personnel, unauthorized testing, use not within
specifications, or a product for which Norand is not responsible.
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The remedies set forth in Section 9.1 and 9.2 are the only remedies that
apply. THE WARRANTIES IN THIS SECTION REPLACE AND ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER
WARRANTIES ARE DISCLAIMED.
Norand does not warrant uninterrupted or error-free operation of products
provided under this Agreement.
Non-Norand hardware and software is provided by Norand without warranty on
an "AS IS, WITH ALL FAULTS" basis. However, the manufacturers, suppliers
or publishers of the non-Norand hardware or Software may provide their own
warranties.
9.4 LIMITATION ON PATENT INFRINGEMENT SUITS
Western Atlas agrees not to assert any claims during the term of this
Agreement against Norand alleging that any of the Products infringe any
patent owned or controlled by Western Atlas or any of its subsidiaries.
10. LIMITATIONS OF LIABILITY
Norand does not guarantee delivery of Products by any particular date. If
Norand accepts Western Atlas' order and fails to deliver ordered Products,
Western Atlas' sole remedy will be limited to refund of money paid to
Norand for the undelivered products.
NEITHER NORAND NOR WESTERN ATLAS WILL HAVE ANY LIABILITY OR RESPONSIBILITY
TO WESTERN ATLAS OR NORAND, AS THE CASE MAY BE, OR ANY OTHER PERSON OR
ENTITY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL
DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON
CLAIMS OF NORAND, WESTERN ATLAS OR WESTERN ATLAS' CUSTOMERS, AS THE CASE
MAY BE, (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL,
PROFITS, USE OF MONEY OR USE OF PRODUCT, INTERRUPTION IN USE OR
AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER
ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY,
BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT
OR OTHERWISE, EXCEPT
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ONLY IN THE CASE OF DEATH OR PERSONAL INJURY WHERE AND TO THE EXTENT THAT
APPLICABLE LAW REQUIRES SUCH LIABILITY. IN NO EVENT WILL THE AGGREGATE
LIABILITY INCURRED BY NORAND OR WESTERN ATLAS, AS THE CASE MAY BE, IN ANY
ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO NORAND BY
WESTERN ATLAS OR BY WESTERN ATLAS TO NORAND, AS THE CASE MAY BE, FOR THE
PURCHASE OF THE PRODUCT(S) THAT ACTUALLY CAUSED THE DAMAGE OR LOSS.
11. INTERNATIONAL SALES
Western Atlas represents and warrants that the Products and all other
software and technical data which Western Atlas receives under this
Agreement is for resale within the Territory, subject, where applicable, to
the consent of the United States government.
12. TERM
12.1 INITIAL TERM
The initial term of this Agreement will commence upon the Effective Date
hereof, and, subject to Section 12.2, will expire on the date set forth on
the face page of this Agreement, unless sooner terminated or extended as
provided herein. The expiration or earlier termination of this Agreement
will not relieve either party of obligations incurred prior thereto.
12.2 EXTENSION OF TERM
The term of this Agreement shall automatically be extended for successive
one-year periods ending on the anniversary of the date set forth on the
cover page of this Agreement, provided that neither party has, on or before
60 days prior to the next scheduled renewal date, given notice to the other
of its intention not to renew the term of this Agreement.
12.3 TERMINATION
This Agreement may be terminated:
A. Immediately, if Western Atlas assigns this Agreement or any of
its rights hereunder; the
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term "assign" to include, without limiting the generality
thereof, a transfer of a majority interest in Western Atlas'
business, or a sale of substantially all of Western Atlas'
assets.
B. By either party upon one (1) day's written notice in the event
the other party ceases to function as a going concern or to
conduct its operations in the normal course of business, or a
receiver for it is appointed or applied for, or a Petition under
the Federal Bankruptcy Act is filed by or against it, or it makes
an assignment for the benefit of creditors.
C. By written notice from Norand to Western Atlas effective
immediately if Western Atlas violates Section 1.1, Section 13,
or Section 17.2 of this Agreement.
D. By written notice from Western Atlas to Norand effective
immediately if Norand violates Section 17.2.
E. By either party, upon thirty (30) days written notice if the
other party fails in any material respect to perform or observe
any of its obligations (except those obligations otherwise
specifically addressed in this Section 12.3) under this
Agreement and such party has failed to cure such default within
thirty (30) days after the date of such notice of default.
Orders which are accepted but not shipped on the date of such
notice shall be deemed canceled as of the date of such notice.
13. SOFTWARE PRODUCT LICENSING
Products consisting of software programs ("SOFTWARE") are licensed, not
sold. Norand authorizes Western Atlas to offer end-users, in conjunction
with Western Atlas' resale of other Products, a limited license for the use
of Software with the Products sold by Western Atlas to the end-user.
Western Atlas agrees to distribute such Software only in conjunction with
the sale of Western Atlas' proprietary products, upon a signed, written
license agreement containing provisions substantially in the form of
Schedule C of this Agreement and payment in accordance with this Agreement.
Software will be distributed in object code only. Western Atlas may not
otherwise distribute the Software. Norand shall have the right during
normal
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business hours and upon reasonable notice to audit Western Atlas' relevant
books and records for the sole purpose of verifying performance of Western
Atlas' obligations under this Agreement. Norand reserves the right to
change the terms and conditions of Schedule C from time to time upon giving
Western Atlas notice of such changes.
14. PATENT AND COPYRIGHT INDEMNIFICATION
If an action is brought against Western Atlas claiming that a Product
infringes a patent or copyright within the Territory, Norand will defend
Western Atlas at Norand's expense and, subject to this Section and Section
10, above, will pay the damages and costs finally awarded against Western
Atlas in the infringement action, but only if (a) Western Atlas notifies
Norand promptly upon learning that the claim might be asserted, (b) Norand
has sole control over the defense of the claim and any negotiation for its
settlement or compromise; and (c) Western Atlas takes no action, that in
Norand's judgment, is contrary to Norand's interest.
If a claim described in this Section 14 may be or has been asserted,
Western Atlas will permit Norand, at Norand's option and expense, to (a)
procure the right to continue using the Product, (b) replace or modify the
Product to eliminate the infringement while providing functionally
equivalent performance, or (c) accept the return of the Product in exchange
for a refund of the price that Western Atlas actually paid to Norand for
such Product, less depreciation based on a 3-year straight-line
depreciation schedule, and a pro rata share of any maintenance fees that
Western Atlas actually paid to Norand for the then-current maintenance
period of the product.
Notwithstanding the above, Norand will have no duty to indemnify Western
Atlas if the patent or copyright infringement claim contemplated in this
Section 14 results from (a) a correction or modification of the Product not
provided by Norand, (b) the failure to promptly install any update which
Norand may have provided to Western Atlas, or (c) the combination of the
Product with other software or hardware not provided by Norand.
15. INTEGRATED LASER SCANNING TERMINALS
Norand is authorized by license to sell the integrated laser scanning
terminals Norand offers for use as a one-
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piece unit to read bar codes and process data. Western Atlas agrees not to
make any changes to these terminals and to use them for only these
purposes. The licensor under Norand's license has the sole right to
enforce these provisions. If Western Atlas makes an authorized transfer of
these terminals to another party, that party must agree to these conditions
in writing.
16. PUBLIC ANNOUNCEMENTS
Neither party to this Agreement may make any public announcements with
respect hereto without the approval of such announcement by the other party
hereto, which consent shall not be unreasonably withheld.
17. GENERAL
17.1 GOVERNING LAW
This Agreement and performance hereunder will be governed by and construed
in accordance with the laws of the State of Iowa, U.S.A.
17.2 CONFIDENTIALITY
Western Atlas and its employees and Norand and its employees each agree to
not directly or indirectly, use, divulge or reveal to any person any
Confidential Information without the prior written consent of Norand or
Western Atlas, as the case may be. For purposes of this Agreement, the
term "CONFIDENTIAL INFORMATION" shall mean information which is not known
outside of Norand's business or Western Atlas' business, as the case may
be, and from which Norand or Western Atlas, as the case may be, obtains an
economic benefit because it is not known outside of Norand's business or
Western Atlas' business, as the case may be, and which is disclosed by
Norand to Western Atlas or Western Atlas to Norand, as the case may be, or
becomes known to Western Atlas or Norand, as the case may be, as a
consequence of this Agreement or any actions taken under this Agreement,
including but not limited to all drawings, specifications, parts lists,
lists of other resellers of Products, the Price Guide and other price
lists, channel marketing programs and other types of information or data
relating to Norand's business or Western Atlas' business, as the case may
be.
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Xxxxxxx Xxxxx also agrees not to reverse engineer, disassemble or decompile
any of the Products. Western Atlas and Norand also each agree to comply
with all reasonable regulations which Norand may ask Western Atlas to
follow or Western Atlas may ask Norand to follow, as the case may be, to
preserve the confidential nature of such Confidential Information and to
enforce such regulations against their respective officers, employees and
agents and otherwise assure that the Confidential Information is protected.
In the event of a breach or a threatened breach by Western Atlas or Norand
of any provision of this Section, Norand or Western Atlas, as the case may
be, will be entitled to an injunction restraining Western Atlas or Norand,
as the case may be, from any use or disclosure, or threatened use or
disclosure, in whole or in part, of the other's Confidential Information.
Nothing herein will be construed as prohibiting Norand or Western Atlas
from pursuing any other remedies for such breach or threatened breach,
including the recovery of damages.
In addition, Western Atlas and Norand each agree not to disclose the
financial terms of this Agreement, including discounts, without the prior
written consent of the other, except as required by law.
Upon termination of this Agreement, Western Atlas and Norand each agree to
promptly return all Confidential Information belonging to the other or to
certify to the other that such information has been destroyed.
17.3 NOTICES
Notices required or allowed to be given hereunder will be deemed given on
the date deposited, postage prepaid, for delivery by the U.S. Postal
Service, to the parties at the following respective addresses:
IF TO NORAND: IF TO WESTERN ATLAS:
Norand Corporation Western Atlas, Inc.
000 Xxxxxx Xxxxxx X.X. 000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000 Xxxxxxx Xxxxx, XX 00000
Attention: Legal Services Attn: General Counsel
with copy to:
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Intermec Corporation
0000 00xx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
Addresses may be from time to time modified by like notice. Routine
periodic notices (such as price and product changes and the like) may be
given by first class mail, all other notices must be given by certified
mail, return receipt requested.
17.4 ENTIRE AGREEMENT
Each party acknowledges that it has read this Agreement, fully understands
it, and agrees to be bound by its terms and further agrees that it,
including the Schedules, Price Guide and any addenda hereto, is the
complete and exclusive statement of the agreement between the parties,
which supersedes and merges all prior proposals, understandings and all
other agreements, oral and written, between the parties, relating to the
subject matter of this Agreement. This Agreement cannot be modified or
altered except by a written instrument duly executed by both parties. In
the event of any conflict between the provisions of this Agreement, the
Schedules, the Price Guide and any addenda hereto, the following order or
precedence will apply: Addenda, if any, the Agreement, Schedules, and then
the Price Guide.
17.5 ENFORCEABILITY
If any provision of this Agreement will be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions will in no way be affected or impaired thereby.
17.6 NO WAIVER
The failure of either party to exercise in any respect any right provided
for herein will not be deemed a waiver of any right hereunder.
17.7 SURVIVAL
The provisions of Sections 7, 8, 10, 14 and 15 of this Agreement will
survive termination hereof.
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17.8 EFFECTIVE DATE
This Agreement will be effective on the date when it is accepted by Norand
and signed by Norand's authorized representative (the "EFFECTIVE DATE").
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed below by
their authorized representatives.
Accepted By:
NORAND CORPORATION WESTERN ATLAS INC.
BY: BY:
------------------------------- -------------------------------
Signature Signature
Name: N. Xxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxx
--------------------------------- -------------------------
Title: Chairman, President and Title: Senior Vice President and
Chief Executive Officer Chief Financial Officer
Date: Date:
--------------------------------- ----------------------------
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__________________________________SCHEDULE "A"
PRODUCTS 1.
PEN*KEY 6100
PEN*KEY 6600
OWL Radio Network, including
- 6700 Access Point
- Radio Network Software
- Gateway hardware and software
- Emulation software, if required
- 900 radio cards
- Norand 2.4 radio cards, when available
- Norand Synthetic UHF radio cards, when available
Any charge coupled device product modular engines
Accessories, software and spare parts
____________________
1 Including improvements, upgrades, replacements and enhancements of any
Product.
A-1
SCHEDULE "B"
TRAINING PROGRAM REQUIREMENTS 2.
I. LEVEL ONE CERTIFICATION -- CERTIFIED WIRELESS SPECIALIST
I.A. Western Atlas must complete the following courses:
1. Introduction to Products (RF101)
2. UHF Systems
3. SST Systems
4. Hands-on Configuration
5. Troubleshooting RF Systems
6. TCP/IP or 3270/5250
7. PEN*KEY-TM-
II. LEVEL TWO CERTIFICATION -- CERTIFIED WIRELESS ENGINEER
II.A. Western Atlas must complete the following courses in addition to
completion of the courses set forth in Paragraph A above:
1. UHF Site Survey
2. SST Site Survey
3. Local Area Networking
4. Ethernet From A to Z
5. Taken Ring
6. TCP/IP and 3270/5250
____________________
2. Courses and course content are subject to change at the sole
discretion of Norand.
B-1
SCHEDULE "C"
Western Atlas agrees that it will obtain written agreements containing
substantially the following provisions before delivering any Norand Software to
another person.
1. Certain software programs provided under this Agreement are provided under
license from Norand Corporation ("Norand Corporation"). Norand Software is
licensed, not sold. Western Atlas, Inc. ("Western Atlas") hereby grants
________________________ (Buyer) a non-exclusive right and license to use
Norand Software on the Products covered by this Agreement. No other right
or license is granted nor implied.
________________________ (Buyer) agrees to not modify, copy, distribute or
otherwise disclose Norand Software without the prior written consent of
Norand. Buyer further agrees not to reverse engineer, disassemble, or
decompile the Products, including but not limited to the Norand Software.
This license shall expire when ________________________ (Buyer) no longer
owns or ceases to use the Products with which ________________________
(Buyer) is licensed to use.
2. Western Atlas warrants that Norand Software will function in accordance
with the user manual provided with the Norand Software for ninety (90) days
from date of shipment. If an item of Norand Software does not function as
warranted, Western Atlas will, without charge, attempt to provide
information to correct the program or the user manual. If Western Atlas is
not able to provide this information, ________________________ (Buyer) may
return the item of Norand Software to Western Atlas and Western Atlas will
refund ________________________ (Buyer's) money.
THE WARRANTIES IN THIS SECTION REPLACE ALL OTHER WARRANTIES OF NORAND
SOFTWARE, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
3. IN NO EVENT WILL WESTERN ATLAS NOR NORAND BE LIABLE FOR ANY SPECIAL,
INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE, INCLUDING WITHOUT LIMITATION,
ANY LOST PROFITS OR SAVINGS, AND ANY LOSS OR DAMAGE CAUSED BY THE LOSS OF
USE OF ANY DATA OR INFORMATION OR ANY INACCURATE DATA OR INFORMATION.
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