RESELLER AGREEMENT
This Reseller Agreement (the "Agreement") is made and entered into this 17th day
of June, 1999 ("Effective Date") by and between Elastic Networks, Inc.
("Elastic"), a Delaware corporation having its principal offices at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000-0000, and Darwin Networks (the
"Reseller"), a corporation of the State of Delaware having an office and place
of business at 0000 Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX.
1. DEFINITIONS.
The following terms are used in this Agreement with the meanings
thereafter ascribed.
"Application" means high-speed access connectivity, Internet access and
associated services.
"Customers" means Customers of Products procured by efforts of Reseller.
"ECE" or "Elastic Certified Engineer" means an individual certified by
Elastic in accordance with Elastic's then-current program who is responsible for
the configuration and initial administration of the Products and ongoing
customer support.
"ECI" or "Elastic Certified Installer" means an individual certified by
Elastic in accordance with Elastic's then-current program who is responsible for
the installation and initial configuration of the Products.
"Hardware" means any physical portion of a Product originally manufactured
by Elastic, including memory circuits and media upon which Software may be
delivered, but excluding Software.
"Marks" means the trademarks, service marks, trade names, logos, and other
descriptive devices of Elastic associated with the Products.
"Products" means the Hardware, Software, and other items described on
Exhibit A hereto as amended from time to time to reflect changes in the Product
offered by Elastic.
"Sell" means the sale of Hardware and other items and the right to grant
licenses to use the Software.
"Software" shall mean any set of one or more computer programs originally
created by Elastic which is composed of routines, subroutines, concepts,
processes, algorithms, formulas, ideas, or know how, and contained on a magnetic
tape, disc, semiconductor device or other memory device or system memory
consisting of (a) hard wired logic instructions which manipulate data in the
central processor and control input-output operations and errors diagnostic and
recovery routine, (b) instruction sequences in machine-readable code that
control call processing, or other operating function, peripheral equipment or
administration and maintenance functions and (c) associated documentation used
to describe, maintain and use the program.
"Territory" means the United States and Canada.
2. GRANT OF RIGHTS
2.1. Purchase Rights. Reseller may purchase the Hardware and be granted a right
to use the Software pursuant to the Software License set forth in Exhibit B for
its own use within the Territory and consistent with the Application on the
terms and conditions set forth herein provided that any such Products so used by
Reseller are not resold.
2.2. Distribution Rights. Elastic hereby grants to Reseller during the Term a
nonexclusive, nontransferable, and limited right to (a) market, distribute, and
Sell the Hardware; (b) transfer to Customers pursuant to the Software License
set forth in Exhibit B the right to use the Software; and (c) use the Marks to
describe the Products, subject to the provisions of Section 10 hereof, only in
the Territory and consistent with Application.
2.3. Reservation of Rights. Elastic reserves all rights not expressly granted
herein. Except as set forth herein or as required by applicable law, no express
or implied right of any kind is granted to Reseller or any other party.
2.4. Restrictions. Reseller shall not (a) Sell nor enter into any agreement to
Sell the Products outside the Territory, (b) ship, permit delivery of, or
transfer the Products, outside the Territory, or (c) permit use of the Products
in any manner that is inconsistent with the Application without the prior
written consent of Elastic. Reseller shall not, and shall not allow its
employees, its representatives, Customers, or any unauthorized party to, use,
reproduce, disassemble, decompile, modify, or reverse engineer, or create
derivative works based upon, the Products.
3. TERM
3.1. Term. Unless earlier terminated as provided in Section 12 below, this
Agreement shall be effective as of the Effective Date and shall remain in effect
for one (1) year following the Effective Date ("Initial Term"). The Initial Term
and any annual extension/s hereof ("Renewal Term") may be collectively referred
to as the "Term."
3.2. Renewal of Term. Unless earlier terminated as provided in Section 12 below,
the Term of this Agreement shall continue for successive one (1) year terms
following the Initial Term.
4. ORDER PROCEDURE
4.1. Order Submission. Reseller shall submit orders to Elastic in accordance
with procedures established by Elastic from time to time and published on
Elastic's web site ("Orders"). All Orders shall be submitted pursuant to, and
shall incorporate all of, the terms and conditions of this Agreement. No Order
shall be binding on Elastic unless accepted in writing or by delivery of
Products in whole or partial fulfillment thereof. Elastic shall have the right
to cancel any Order accepted by Elastic, or to delay the shipment of Products
ordered if Reseller fails to meet payment schedules or other credit or financial
requirements established by Elastic. Elastic reserves the right to vary, change,
or limit the amount or duration of credit to be allowed to Reseller.
4.2 Order Acceptance. Elastic may accept or reject any Order for any reason,
including without limitation, an Order which requires a ship date less than
thirty (30) days after Elastic's receipt of same.
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4.3 Order Cancellation. In the event Reseller cancels all or any part of an
Order within thirty (30) days of the ship date, Reseller shall pay to Elastic a
cancellation charge of ten percent (10%) of the Product price for each Product
that has been cancelled.
4.4 Non-Binding Forecast Of Orders. At or before the beginning of each month
during the Term, using the format in Exhibit E, Reseller shall provide to
Elastic a written non-binding forecast of the quantities of each Product
anticipated to be purchased from Elastic for delivery in each of the following
twelve months ("Forecast"). If at any time Reseller reasonably anticipates any
significant difference between the current Forecast and Reseller's actual
requirement for Products, Reseller will promptly notify Elastic and Elastic will
use its commercially reasonable efforts to meet Reseller's actual requirement
upon such prompt notice.
5. SHIPMENT
5.1. Shipment. Elastic shall ship to Reseller the number of Products specified
in the Order for which Elastic has received a properly completed Order that has
been accepted by Elastic. The date when such Products are shipped is hereinafter
the "Shipment Date."
5.2. Partial Shipment. Reseller shall be responsible for delivering Products to
Customers. The parties agree that (a) any failure to supply all Products ordered
in a single shipment or (b) any partial shipment or delivery of an Order in
installments shall not constitute a breach of this Agreement or give rise to any
remedy or right of or otherwise make Elastic liable or responsible in any manner
to Reseller, any Customer, or any third party.
5.3. Risk of Loss and Title. All Products or other products are shipped F.O.B.,
point of shipment. All risk of loss or destruction of, or damage to, the
Products shall transfer from Elastic to Reseller at the time the Order is
shipped on the Shipment Date. Title to the Hardware shall pass to Reseller upon
Reseller's final payment of the total Price.
6. PRICE; PAYMENT
6.1. Price. The price to be paid for the Products by Reseller shall be the
amount in United States Dollars stated in Exhibit A hereto ("Price List").
Elastic shall have the right at its sole discretion at any time to change its
Price List with sixty (60) days written notice to Reseller, and such new prices
shall apply to all shipments made after such notice period.
6.2. Payment Terms. Elastic will invoice Reseller as of the date that a full or
partial shipment is made. Any invoiced amount shall be due and payable thirty
(30) days after the date of the invoice. If an invoice contains one or more
amounts that are disputed, as well as one or more amounts that are not, Reseller
agrees it will not withhold any amount(s) which are not disputed. Elastic
reserves the right to refuse to grant credit to Reseller at any time and for any
reason and to require cash on delivery terms or cash with order terms.
6.3. Taxes and Duties. Elastic shall have no responsibility for the deduction,
withholding, collection, or payment of any and all taxes and duties of any kind,
anywhere, arising out of this Agreement, including but not limited to, sales,
use, and import taxes, levies and charges by federal, state or local government
authorities in the Territory or elsewhere, except for corporate taxes on the
income of Elastic. The payment of any and all taxes applicable to any
transaction under this Agreement is the sole responsibility of Reseller.
Reseller shall complete and execute the BLANKET SALES/USE TAX EXEMPTION
CERTIFICATE included herein as Exhibit C upon execution of this Agreement.
6.4. Interest. On any amounts not paid when due, Elastic shall be entitled to
receive interest at the rate of one and one-half percent (1-1/2%) per month or
the maximum legal amount, whichever is less. Reseller shall reimburse Elastic
for all costs of collection, including reasonable attorneys' fees and court
costs. Time is of the essence in all payment terms.
6.5 Reduction or set-off. Amounts due to Elastic under this Agreement are not
subject to reduction or set-off without the prior written consent of Elastic.
7. RESPONSIBILITIES
Reseller shall:
(a) Use its best efforts to promote the sale of Products throughout
the Territory for the consistent with Application.
(b) Provide Customers Xxxxx 0, Xxxxx 0 and Installation Support
using either its own ECI and ECE or the services of another organization
certified by Elastic to provide such support.
(c) Not make representations concerning the Products that exceed or
are inconsistent with the marketing materials and technical specifications
provided to Reseller by Elastic. Reseller has no and shall exercise no
authority to bind Elastic to any undertaking or performance with respect
to the Products.
(d) Comply with all laws and regulations which may govern this
Agreement and the promotion and sale of the Products.
(e) Promptly notify Elastic of any and all known or suspected actual
or attempted infringements of (i) the Products, any component or
peripheral thereof, or (ii) intellectual property in the Products or the
Marks.
(f) Immediately advise Elastic of any changes in standards,
specifications, and procedures with respect to the Products that may
become necessary from time to time during the term of this Agreement.
Elastic shall act in good faith to judge if modifications, revisions, and
additions in and to the production of the Products are necessary.
8. TRAINING
8.1. Training Sessions. During the term of this Agreement, Elastic will offer
training classes in the installation, maintenance, Xxxxx 0 Xxxxxxx, xxx Xxxxx 0
Xxxxxxx ("Xxxxxxxx"). Training will initially be conducted in Alpharetta,
Georgia at the principal offices of Elastic or at such other locations as may be
selected by Elastic. Reseller shall be responsible for the cost of Training and
all expenses incurred by Reseller and Reseller's employees incident to Training.
Elastic's charges for training classes and testing shall be posted from time to
time on Elastic's web site.
8.2. Technical Support Designees. Within five (5) days after the date of this
Agreement, Reseller shall designate one (1) or two (2) members of its technical
staff acceptable to Elastic to act as Reseller's sole representatives for
contact with Elastic regarding Training and Reseller's Level 1 Support and Level
2 Support obligations ("Technical Support Designees"). Reseller's failure to
designate and maintain at
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least one (1) competent Technical Support Designee during the Term shall be a
material breach of this Agreement and shall entitle Elastic, at its sole
discretion, to terminate this Agreement in accordance with Section 12.1 hereof.
The parties acknowledge that, on an occasional as-needed basis only, a temporary
Technical Support Designee may be substituted if neither Technical Support
Designee is available.
9. PRODUCT WARRANTY
9.1. Limited Warranty. Elastic warrants to Reseller that the Hardware and
Software purchased from Elastic will, for a period of [one (1) year] after the
Shipment Date of the Hardware and Software to Reseller (the "Warranty Period"),
(1) be free from material defects and (2) conform in all material respects to
Elastic's published Product specifications in effect on the date the Hardware
and Software is shipped to Reseller. The sole obligation of Elastic under this
warranty shall be to repair or replace (at the option of Elastic) any Hardware
and Software which contains a defect in material or workmanship or which fails
to conform in all material respects to such Product specifications. Elastic
shall have the right to confirm the existence of a defect or nonconformity by
testing the Hardware and Software. This limited warranty does not apply to items
normally consumed in operation, such as lamps and fuses or to any defect that
has been caused by Reseller or Customers and arises from mishandling, misuse,
neglect, or improper testing or repair. Reseller agrees to comply with Elastic's
then effective return merchandise authorization procedures ("RMA Procedures").
OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 9.1, ELASTIC MAKES NO
WARRANTIES WITH RESPECT TO THE PRODUCTS TO CUSTOMER OR TO RESELLER. THE WARRANTY
IN THIS SECTION 9.1 IS MADE EXPRESSLY IN LIEU OF ANY AND ALL EXPRESS, IMPLIED,
OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT, AND ALL SUCH OTHER WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
9.2. Diagnostics and Support.
(a) Level 1 Support. Reseller shall be responsible for providing or
purchasing Level 1 Support for each Customer. "Level 1 Support" means the
ability to: (1) provide general Product information to Customers; (2)
provide 800 support desk technical support of Products to Customers
twenty-four (24) hours per day, seven (7) days per week; (3) provide
general Product configuration and installation support to Customers; (4)
record and track reported Customer problems relating to Product issues and
actions taken to correct such problems; (5) distribute software upgrades,
patches, and new feature releases to Customers as appropriate; (6)
escalate problems that cannot be resolved by Xxxxx 0 Support to Level 2
Support; and (7) provide Elastic with a monthly summary of reported
Customer problems and related issues, and resolution status reports in a
form provided by Elastic. Elastic agrees to provide reasonable assistance
by fax, email, and telephone to Reseller's Technical Personnel during
Elastic's normal business hours of 8:30a.m. - 5:00 p.m. Eastern Standard
Time, excluding weekends and Elastic's holidays.
(b) Level 2 Support. Reseller shall be responsible for providing or
purchasing Level 2 Support for each Customer. "Level 2 Support" means the
ability to: (1) provide assistance to Customers to resolve
misconfigurations of Products; (2) isolate and simulate complex
configurations of Customers' networks; (3) identify and isolate subsystem
faults; (4) perform root cause analysis; (5) provide on-site support as
may be required by a Customer; (6) simulate Product problems in a lab
facility to facilitate problem resolution and provide Elastic with
sufficient information and the steps to reproduce the problem in its lab
facility; (7) escalate problems that cannot be resolved under Level 2
Support to Level 3 Support; and (8) provide remote modem access to
Customer site for Elastic. Elastic agrees to provide reasonable assistance
by fax, email, and telephone to Reseller's Technical Personnel during
Elastics' normal business hours of 8:30a.m. - 5:00 p.m. Eastern Standard
Time, excluding weekends and Elastic's holidays.
(c) Level 3 Support. At Reseller's request, Elastic shall provide
Level 3 Support to Reseller for Products. "Level 3 Support" means the
ability to resolve Product problems and bugs that cannot be prevented,
diagnosed, or corrected by Level 1 Support or Level 2 Support and are not
related to installation, configuration, integration, or unintended usage.
If Elastic determines that Reseller's request for Level 3 support should
not be included in Xxxxx 0 Xxxxxxx, Xxxxxxxx shall pay Elastic for all
labor at Elastic's Technical Support Rate as listed in the Exhibit A Price
List and as amended from time to time upon 60 days written notice to
Reseller and reimburse Elastic for all material and travel expenses.
9.3. Software Support. Elastic shall make available to Reseller Maintenance
Releases via Elastic's web site for downloading. Elastic shall support each
Major Release for "n"-2 Software releases ("Supported Release"), where "n" is
the Major Software Release currently available. Elastic, in meeting any support
obligations may require a Customer to upgrade to a Supported Release before
Elastic is required to provide such support. Any Software that is not within
"n"-2 Software releases must be upgraded to Elastic' then-current Major Release
to continue to be eligible for support by Elastic. If Reseller or a Customer
chooses not to remain within "n"-2 Major Releases of the currently available
Software, then Elastic may choose to discontinue service support for such
release. "Major Release" shall mean a release of Software that shall be
designated by Elastic as a change in the ones digit of the Software version
number [(x).x]. "Maintenance Release" shall mean an incremental release of
Software by Elastic that repairs post-production Software bugs, and may provide
additional Software features. Maintenance Releases shall be designated by
Elastic as a change in the tenths digit(s) of the Software version number
[x.(x)].
9.4. Elastic Extended Warranty and Maintenance Program. Elastic shall offer an
optional Elastic Extended Warranty and Maintenance Program ("EWMP") for Hardware
and Software. EWMP is offered on a per-Order basis so that it applies to all
Hardware and/or all Software purchased on a particular Order. Annual fees and
program provisions are as follows:
Hardware: Annual fee is 3% of the total per-Order Hardware price for
each year of EWMP desired. EWMP extends the standard Section 9.1 Warranty
Period for up
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Reseller Agreement Xx. Xxxxxx000000
to two additional years. The first year of EWMP may be purchased on the
original Order or at any time prior to expiration of the standard Warranty
Period. The second year of EWMP may be purchased on the original Order or
at any time prior to the expiration of either the standard Warranty Period
or prior to the expiration of first-year EWMP if this option was selected.
Software: Annual fee is 12% of the total per-Order Software price
for each year of EWMP desired. For Software, EWMP extends the standard
Section 9.1 Warranty Period and entitles Reseller to receive the latest
Major Releases at no additional cost. The first year of EWMP may be
purchased on the original Order or at any time prior the expiration of the
standard Warranty Period. Additional years of EWMP may be purchased at any
time prior to expiration of the then-current year of EWMP. Elastic may
choose to discontinue Software EWMP if: 1.) Reseller or its Customer
chooses not to remain within Supported Releases of the currently available
Software; and/or .2) Reseller or its Customer chooses not to obtain
upgraded Hardware required to run such Supported Releases.
At Elastic's request, Reseller agrees to provide information and
documentation deemed sufficient by Elastic to determine the validity of any
warranty claims or issuance by Reseller of Major Releases to Customers under
EWMP. Such information and documentation may include, but is not limited to,
copies of Customer receipts or other documents showing that EWMP fees were paid
and identifying the Products by name, quantity and serial number to which EWMP
applies. Elastic may refuse EWMP warranty claims and prohibit Reseller from
issuing Major Releases under EWMP if Reseller refuses to supply such information
and documentation upon request by Elastic.
9.5 Services Not Provided Under Limited Warranty or EWMP. Neither the Section
9.1 Limited Warranty nor enrollment in EWMP automatically entitle Reseller to
receive the following: releases of or updates to Software not included on Orders
for which Software EWMP was purchased; customization of, configuration of, or
labor to install Products; on-site Product support; support or replacement of
Product that is altered, modified, mishandled, destroyed, or damaged by natural
causes or damaged during unauthorized use; Services to resolve problems
resulting from Reseller's actions or causes beyond Elastic's control; Services
for non-Elastic software installed on any Product; or Hardware upgrades required
to run new or updated software. If Reseller requests Elastic to perform on-site
diagnostic and remedial maintenance, excluding when necessary under Level 3
Support escalations, Reseller shall pay Elastic for all labor cost at Elastic's
Technical Support Rate as listed in the Exhibit A Price List and as amended from
time to time upon 60 days written notice to Reseller and reimburse Elastic for
all material and travel expenses.
9.6. Limitation of Liability. In no event will Elastic, its subsidiaries, its
associated companies, or its licensors be liable to Reseller under this
Agreement or otherwise, or to any Customer regardless of the form of claim or
action, in an aggregate amount that exceeds the total Price paid to Elastic in
respect of the Products giving rise to the claim or action purchased pursuant to
this Agreement. In no event will Elastic, its subsidiaries, its associated
companies, or its licensors be liable to Reseller or any third party for
special, consequential, exemplary, incidental, or indirect damages or costs
(including legal fees and expenses) or loss of goodwill or profit in connection
with the supply, use or performance of or inability to use the Products or any
services provided hereunder, or in connection with any claim arising from this
Agreement, even if Elastic, its subsidiaries, its associated companies, or its
licensors have been advised of the possibility of such damages or costs. EXCEPT
AS PROVIDED IN THIS SECTION 9, IN NO EVENT WILL ELASTIC, ITS SUCCESSORS OR
ASSIGNS, ITS SUBSIDIARIES, OR ITS AFFILIATES BE LIABLE TO RESELLER OR ANY THIRD
PARTY IN WARRANTY, CONTRACT, NEGLIGENCE, STRICT TORT OR OTHERWISE, REGARDING ANY
DEFECTS IN THE DESIGN, DEVELOPMENT, PRODUCTION, OR PERFORMANCE OF THE PRODUCTS
UNDER THIS AGREEMENT OR OTHERWISE. No action arising out of this Agreement,
regardless of form, may be brought by either party or any other third party more
than two (2) years after the date the cause of action has accrued.
9.7. Prohibitions on Use. The Products are intended for connection to the room
telephone wiring and to the "subscriber" side of the Federal Communications
Commission ("FCC") Part 68 Registered telephone services switch (the PABX). In
no event shall Reseller or Customers directly connect the Products to the
telephone company central office wiring which would require Registration as
"Terminal Equipment" pursuant to 47 Code of Federal Regulations Part 68 of the
FCC Rules.
10. TRADEMARKS
10.1. Ownership. Reseller acknowledges that Elastic is the owner of all right,
title, and interest in and to the Marks. Reseller covenants not to file or
prepare any application for registration of any of the Marks without the prior
approval and direction of Elastic. Reseller agrees not to adopt, use, file for
registration, or register any trademark, service xxxx, or tradename (with
respect to the Marks or otherwise) without the prior written consent of Elastic.
10.2. No Impairment. Reseller agrees not to commit any acts, directly or
indirectly, which may contest, dispute, or otherwise impair the rights, title,
or interest of Elastic in or to the Marks. Reseller agrees not to claim or
assert any rights, title, or interest in or to the Marks in any way.
10.3. Use of Marks. Reseller will not adopt for use any Marks in any manner
whatsoever, other than as may be specifically authorized in this Agreement.
Reseller shall not use the Marks in conjunction with any other trademarks, trade
names, service marks, logos, or other similar designations without Elastics'
prior written approval. The parties agree that all use by Reseller of the Marks
shall be in such a manner as to inure at all times to the benefit of Elastic,
and shall not in any manner create the impression that the Marks belong to and
are owned by Reseller or any other party. Reseller shall not modify, delete,
remove, alter, cover, or obscure the Marks or the copyright or other proprietary
notices placed on or embedded in the Products, documentation, or any related
materials, whether obtained from Elastic or otherwise.
10.4. Marketing Materials. Reseller shall include the Marks in any literature,
promotional materials, or advertising which it produces or distributes
concerning the Products. Reseller shall provide to Elastic samples of all
literature, promotional materials, and advertising material which contains the
Marks, for review and approval by Elastic prior to first use.
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Reseller will not use any such Marks other than directly with respect to the
promotion and sale of the Products, and shall use such Marks in accordance with
applicable law.
10.5. Other Products and Services. If Reseller offers any other products or
services in connection with the Products, any display or other use of the Marks
must conform the standards set forth herein. All such combinations with the
Marks must be approved in writing by Elastic prior to actual use by Reseller,
and Reseller shall cooperate with Elastic in monitoring the nature and quality
of Reseller's use of the Marks with such products and services.
10.6. Marks of Reseller. Reseller may include its own trademarks, trade names,
service marks, logos and other similar designations in connection with the sale
of the Products; provided, however, all such combinations with the Marks require
Elastic' prior written approval.
11. CONFIDENTIALITY AND OWNERSHIP
11.1. Proprietary Information. Each party may disclose to the other party
certain Trade Secrets and Proprietary Information of such party or its
associated companies, suppliers, or customers. For purposes of this Agreement,
"Trade Secrets" means information which: (a) derives economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use; and (b) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy. "Proprietary
Information" means information, other than Trade Secrets, that is of value to
its owner and is treated as confidential, including but not limited to the terms
and conditions of this Agreement. "Owner" refers to the party disclosing
Proprietary Information hereunder, whether such party is Elastic or Reseller and
whether such disclosure is directly from Owner or through Owner's employees or
agents and "Recipient" refers to the party receiving any Proprietary Information
hereunder, whether such party is Elastic or Reseller and whether such disclosure
was received directly or through Recipient's employees or agents.
11.2. Confidentiality. Recipient agrees to hold Proprietary Information and
Trade Secrets disclosed by Owner in strictest confidence and not to, directly or
indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report,
publish, disclose, cause to be disclosed, or otherwise transfer such Proprietary
Information or Trade Secrets to any third party, or utilize such Proprietary
Information or Trade Secrets for any purpose whatsoever other than as expressly
contemplated by this Agreement. With regard to the Trade Secrets, this
obligation shall continue for so long as such information constitutes a trade
secret under applicable law. With regard to the Proprietary Information other
than Trade Secrets, this obligation shall continue for the Term and for a period
of five (5) years thereafter. The foregoing obligations shall not apply if and
to the extent that Recipient establishes that the information communicated was:
(a) Already known to Recipient, without obligations to keep such
information confidential, at the time of Recipient's receipt from Owner,
as evidenced by documents in the possession of Recipient prepared or
received prior to disclosure of such information;
(b) Received by Recipient in good faith from a third party lawfully
in possession thereof and having no obligation to keep such information
confidential; or
(c) Publicly known at the time of Recipient's receipt from Owner or
has become publicly known other than by a breach of this Agreement.
11.3. Ownership. Reseller acknowledges and agrees that Elastic is the sole owner
and shall retain all right, title, and interest in and to the Products and its
Proprietary Information and all localizations, modifications, improvements, and
derivative works, and related written matter and all copies and portions
thereof, including but not limited to all worldwide patents, patent
applications, copyright, trademarks, trade secrets and other intellectual
property rights and interests. Reseller agrees that, except for the limited
license granted under Section 2, it shall not assert any right, title, or
interest therein.
12. TERMINATION
12.1. Termination. Either party may terminate this Agreement effective upon the
expiration of the Initial Term or any Renewal Term by giving ninety (90) days
prior written notice to the other. Elastic may terminate this Agreement upon the
occurrence of any of the following events: (a) Reseller shall not pay when due
any sum owed hereunder and such non-payment continues for more than fifteen (15)
days after written demand by Elastic, (b) Reseller shall breach or fail to
perform any provision of the CONFIDENTIAL DISCLOSURE provisions of this
Agreement, (c) Reseller shall breach or fail to perform any other provisions of
this Agreement and the same is not cured within forty-five (45) days after
notice of such breach or failure has been given to Reseller, or (d) Reseller
shall become insolvent or shall make an assignment for the benefit of its
creditors or there shall be filed by or against Reseller any bankruptcy,
receivership, reorganization, or other like proceeding under any present or
future debtor relief law or law relating to financial institutions. Elastics'
right to terminate this Agreement shall be exercised by a written notice to
Reseller; and the termination of this Agreement shall be effective immediately
upon the giving of such notice. Any termination of this Agreement shall be in
addition to, and not in lieu of, any other rights or remedies available to
Elastic at law or in equity, and all such rights and remedies shall be
cumulative.
12.2. Obligations upon Termination. Upon the expiration or termination of this
Agreement for any reason: (a) Reseller shall immediately return to Elastic all
Elastic property, including but not limited to Proprietary Information of
Elastic; and (b) all invoices and any other moneys due to Elastic by Reseller
shall remain due and payable in accordance with the terms hereof.
12.3. Survival of Terms. Upon termination or expiration of this Agreement: (a)
all provisions which by their nature and context are intended to survive
termination of this Agreement, including without limitation Sections 2.4, 6.3,
9, 10, 11, and
12.4, Elastic will hereafter stand wholly freed and discharged, and Reseller
hereby expressly releases and discharges Elastic of and from any and all
obligations or liability whatsoever, whether arising hereunder or from, or in
connection with, any manner or thing relating to, or in any manner connected
with, the subject matter of this Agreement. The foregoing right of termination
and the additional right of nonrenewal at the end of this term are absolute, and
neither Elastic nor Reseller will be liable to the other because of the
termination or nonrenewal hereof for compensation, reimbursement, or damages on
account of expenditures, investments, leases or commitments in connection with
the business or good will of Elastic or
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Reseller, or for any other reason whatsoever. Reseller will not be relieved,
however, of any obligations for unpaid balances for Products shipped prior to
termination or expiration. The termination of this Agreement will operate as a
cancellation, as of the date thereof, of all orders which have not been shipped
by Elastic to Reseller, thereafter, neither party will be under any obligation
to the other with respect to orders so canceled.
12.4. Indemnification.
(a) Gross Negligence or Willful Misconduct: Neither party hereto shall be
responsible for gross negligence or willful misconduct of the other, and each
party hereto shall indemnify, defend, and hold harmless the other against any
and all liabilities, damages, losses, costs, and expenses (excluding
consequential, punitive or special damages) to the extent resulting from,
arising out of, or relating to a claim by any third party arising out of such
gross negligence or willful misconduct.
(b) In addition to any other obligations of indemnity provided in this
Agreement, Reseller agrees to indemnify, defend, and hold harmless Elastic, its
affiliates, and their directors, officers, shareholders, employees and agents
from and against any claims, liabilities, losses, damages, causes of action, or
injuries, together with all costs and expenses, including reasonable attorneys'
fees, to the extent arising out of or resulting from: (a) Any actions or
omissions on the part of Reseller in distributing or marketing the Products; (b)
any statements, claims, representations or warranties made by Reseller relating
to the Products other than as authorized by Elastic in writing or made in
Elastics' own writings; (c) the infringement or claim thereof of any patent,
copyright, trademark, service xxxx, tradename, trade secret, proprietary and
confidential information right, or any other property right of a third party
arising from the use by Reseller of any symbol, insignia, name or identifying
characteristic identifying the Products other than a Xxxx; (d) Reseller's
failure to comply fully with all the obligations set forth in this Agreement;
and (e) any failure on Reseller's part to pay any taxes, duties or assessments
due.
MISCELLANEOUS
13.1. Elastic Generated Screens ("EGS") are graphical-user-interface pages that
originate in Elastic Software and appear on the screens of users when Elastic
Software is utilized including without limitation, initial log-in pages and
maintenance screens. EGS may contain Marks, which shall not be removed, altered
or repositioned without prior written permission from Elastic. EGS may not be
altered in any way, except as allowed by Elastic product documentation or other
prior written approval from Elastic. Elastic will specify the guidelines and
restrictions under which such changes may be made, including specification of
which screens or portions of screens may be changed. Elastic reserves the right
to withdraw approval for changes to EGS if Elastic determines its specified
guidelines and restrictions are not followed.
13.2. Entire Agreement. This Agreement and its Exhibits represent the entire
understanding between the parties hereto and supersede all other written or oral
agreements heretofore made by or on behalf of Elastic or Reseller, and may be
changed only by agreements in writing signed by the authorized representatives
of the parties. All future Orders from Reseller to Elastic shall be governed by
the terms and conditions referenced herein and shall become effective upon
acceptance by an authorized Elastic officer. Acknowledgment by Elastic of a
Reseller's or Customer's Order shall not constitute acceptance of any additional
or different terms and conditions entered thereon.
13.3. Force Majeure. Except for obligations of confidentiality and payment,
neither party shall be in default under this Agreement if such default arises,
directly or indirectly, out of causes reasonably beyond the direct control or
foreseeability of such party, including without limitation default by
subcontractors or suppliers, acts of God or of the public enemy, USA or foreign
governmental acts in either a sovereign or contractual capacity, labor, fire,
flood, epidemic, restrictions, strikes, and/or freight embargoes.
13.4. Governing Law. This Agreement has been made, executed and delivered in the
State of Georgia, USA in which state the offices of Elastic are located.
Accordingly, the parties invoke the laws of the State of Georgia, without regard
to the principles of conflicts of law thereof, regarding the protection of their
rights and enforcement of their obligations hereunder and they mutually
stipulate and agree that this Agreement is in all respects (including without
limitation all matters of interpretation, validity, performance and the
consequences of breach) to be exclusively construed, governed and enforced in
accordance with the internal laws (excluding all conflict of laws rules) of the
State of Georgia and any applicable federal laws of the United States of
America, as from time to time amended and in effect. In any civil action by
either party relating to this Agreement, the prevailing party shall recover from
and be reimbursed by the other party for all costs, reasonable attorneys' fees,
and related expenses.
13.5. Headings. The headings used herein are for reference and convenience only
and shall not enter into the interpretation hereof.
13.6. Notices. All notices required by or relating to the Agreement shall be in
writing and shall be sent to the parties to this Agreement at their addresses
set forth herein or to such other address as either party may substitute by
written notice to the other, delivered in person, or by facsimile and confirmed
by international air express courier. All notices shall be deemed delivered upon
the earlier of actual receipt or three (3) days after deposit of such notice
with the international air express courier, properly addressed, postage prepaid.
13.7. Relationship of Parties. Nothing in this Agreement shall constitute or be
deemed to constitute a partnership between the parties hereto or Reseller as
agent of Elastic or its affiliates, for any purpose whatsoever, and Reseller
snail have no authority or power to bind Elastic or its affiliates, or to
contract in the name of or create a liability against Elastic or its affiliates,
in any way or for any purpose.
13.8. Remedies. Reseller acknowledges and agrees that each provision in this
Agreement providing for the protection of copyrights, Proprietary Information,
and other proprietary rights is material to this Agreement. The parties
acknowledge that any threatened or actual breach of copyrights or other
proprietary rights by Reseller shall constitute immediate, irreparable harm to
Elastic, for which money damages would be inadequate compensation and for which
Elastic shall be entitled to equitable remedies awarded by a court of competent
jurisdiction.
PROPRIETARY & CONFIDENTIAL
PAGE 6 OF 13
Reseller Agreement No. Darwin061699
13.9. Severability. If any provision herein is declared invalid or
unenforceable, the other provisions shall remain in full force and effect, and
this Agreement shall be deemed to be amended to replace, to the extent legally
possible, the rights and obligations contained in the invalid or unenforceable
provision. Invalidity or unenforceability of any provision is not a failure of
consideration hereunder.
13.10. Transfer and Assignment. The Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, their heirs, personal
representatives, successors and assigns provided however, that neither this
Agreement, nor the obligations of Reseller, may be transferred or assigned
without the prior written consent of Elastic, which shall not be unreasonably
withheld. Elastic shall respond to any such request for transfer or assignment
within 30 days.
13.11. Waiver. Failure by either party to enforce at any time any of the
provisions of the Agreement shall not constitute a waiver of such provision nor
in any way affect the validity of the Agreement or any part thereof or the right
of the other party thereafter to enforce the provisions hereof. Elastic retains
the right to offset or retain any amount due or may become due to Reseller for
payment of commissions against amounts due to Elastic under this Agreement.
13.12. Insurance. During the term of this Agreement, Reseller shall
maintain all insurance and/or bonds required by any applicable law, including
but not limited to workers' compensation insurance as prescribed by the laws of
all states in which work pursuant to this Agreement is performed. During the
first six months of this Agreement, Reseller shall maintain employer's liability
insurance with limits of at least $1 million per occurrence and comprehensive
general liability insurance (including products liability coverage, contractual
liability, advertising liability, and comprehensive automobile liability
coverage) with each coverage having limits of at least $2 million per
occurrence. Such insurance shall name Elastic as an additional insured with a
cross liability endorsement. At the time this Agreement is executed Reseller
shall furnish Elastic with a certificate of insurance evidencing that such
insurance is in effect. This certificate shall also state that Elastic shall be
notified by Reseller's insurance carriers within thirty (30) days of any
cancellation, expiration, material change, or exhaustion of limits with respect
to the aforementioned insurance. Reseller shall require any subcontractors and
agents involved with the performance of work pursuant to this Agreement, to
agree to maintain insurance coverage and to furnish certificates or other
adequate proof thereof to Elastic upon written request. By the start of the
seventh month and for the remaining term of the Agreement, Reseller shall
maintain employer's liability insurance with limits of at least $ 5 million per
occurrence and comprehensive general liability insurance (including products
liability coverage, contractual liability, advertising liability, and
comprehensive automobile liability coverage) with each coverage having limits of
at least $5 million per occurrence. Reseller shall furnish Elastic with a
revised certificate of insurance evidencing that such coverage is in effect and
identifying Elastic as a named insured to be notified as specified above for the
initial coverage.
Exhibits A, B, C and D are attached hereto and made a part hereof.
IN WITNESS WHEREOF, Elastic and Reseller have each caused this Agreement
to be executed by their duly authorized representatives, effective as of the day
and year first written above.
ELASTIC NETWORKS, INC. DARWIN NETWORKS
By: /s/ Xxxxxxx Xxxxxxxx 6/30/99 By:
----------------------------------- --------------------------------
Xxxxxxx Xxxxxxxx, Vice-President,
Sales and Marketing
--------------------------------------- -----------------------------------
NAME & TITLE PRINTED NAME & TITLE PRINTED
UNTIL EXECUTED BY ELASTIC NETWORKS, INC. IN ALPHARETTA, GEORGIA, USA
THIS AGREEMENT CONSTITUTES AN OFFER, WHICH EXPIRES JUNE 30, 1999.
PROPRIETARY & CONFIDENTIAL
