CONFIDENTIAL
CONFIDENTIAL
DISTRIBUTOR AGREEMENT
BETWEEN
IPC INFORMATION SYSTEMS INC.
AND
TRADE WIND MARKETING PTY LTD
FOR
THE DISTRIBUTION OF PRODUCTS IN THE
TERRITORY OF AUSTRALIA
AGREEMENT REFERENCE:
IPC/D/ASPAC/08/99
CONFIDENTIAL
CONTENTS
Preamble and Recitals
Clauses 1. Definitions
2. Term
3 Appointment
4. Relationship of the Parties
5. The Products
6. Prices and payment
7. Ordering procedure and Conditions of Sale
8. Minimum Sales Figure
9. Intellectual Property Rights
10. Use of Trade Marks and trade names
11. Intellectual Property Rights Indemnity
12. Termination/Expiration
13. Confidentiality
14. Force Majeure
15. Distributor Indemnity
16. Limitation of Liability
17. Insurance
18. General
19. Applicable Law and Jurisdiction
Schedules 1. The Products
2. Distributor's Obligations
3. IPC Information Systems Inc.'s Obligations
4. IPC Information Systems Inc.'s Conditions of Sale
5. Training
6. Repair Return Procedure
7. Software License
CONFIDENTIAL
AGREEMENT FOR THE DISTRIBUTION OF PRODUCTS
THIS AGREEMENT is made on the 30th day of August, 1999
BETWEEN
IPC INFORMATION SYSTEMS INC., a company incorporated under the laws of Delaware,
USA whose principal office is at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000
hereinafter referred to as "IPC Information Systems Inc."
AND
TRADE WIND MARKETING PTY LTD ACE 052 100 455, trading as TRADE CENTRE PRODUCTS a
company having its registered office at Xxxxx 00 Xxxxxxxxx Xxxxx, 000 Xxxxxx
Xxxxxx, Xxxxxx XXX 0000, Xxxxxxxxx hereinafter referred to as "the Distributor".
WHEREAS
1. IPC Information Systems Inc. is engaged in the promotion, sale, lease
and licensing of certain telecommunications equipment including those
that are detailed in Schedule 1 hereto (hereinafter, the "Products").
2. The Distributor is engaged in the business of sales, installation,
maintenance of and support services for computer communications
products in Australia and wishes to sell the Products in the Territory
(as hereinafter defined).
3. While retaining its right to sell the Products both directly to
customers and, at its option, through other distributors in the
Territory, and to provide them with installation, maintenance and
support services in the Territory, IPC Information Systems Inc. wishes
to appoint the Distributor, subject to the terms, conditions and
schedules of this Agreement, to be a non-exclusive distributor for the
promotion, marketing, sale and general support of the Products as
detailed in Schedule 1 in the Territory.
NOW THEREFORE IT IS HEREBY AGREED as follows:
1 DEFINITIONS
1.1 In addition to those words and phrases defined elsewhere within this
Agreement, the following words shall be construed as having the
following respective meanings:
"Agreement" means the terms and conditions set out
in this document as it may be amended
from time to time in accordance with
Clause 18.6 hereof, including any
schedules and annexes hereto and any
other document expressly incorporated
into this Agreement;
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"Confidential Information" means any information in whatever form
recorded in writing, electronically or
otherwise which is designated in
writing by either party as being
confidential or which by its nature is
confidential including, without
limitation, information in respect of
the parties' business affairs or plans,
and for the avoidance of doubt, in the
case of IPC Information Systems, Inc.,
Confidential Information includes
information relating to Equipment or
Software, Intellectual Property Rights,
Documentation, financial data, business
plans, marketing strategies and other
competitively sensitive information,
information relating to customers and
contractual information, including the
terms of this Agreement;
"COP" means Carriage and Insurance Paid as
defined in the International Chamber of
Commerce Incoterms 1990 Edition;
"Equipment" means the hardware forming a part of
the Product, for which the Distributor
takes title and sells onto customers in
the Territory, as well as all spare,
replacement and maintenance parts and
supplies purchased from IPC Information
Systems, Inc. used in connection with
such Equipment;
"Initial Term" means the duration of the Agreement
prior to any extension and without
prejudice to any other term or
condition within this Agreement, as set
out in Clause 2. 1;
"Intellectual Property Rights" means patents, Trade Marks, service
marks, design rights (whether
registrable or otherwise), applications
for any of the foregoing, copyright,
know-how, trade secrets, trade or
business names and other similar rights
or obligations, whether or not
registrable, either in the United
States of America or the Territory;
"IPC Group Company" means any company which
controls or is controlled, directly or
indirectly, by IPC Information Systems
Inc. whether through the holding or
controlling of a majority of voting
rights or the right to appoint or
remove a majority of the board of
directors or otherwise;
"Minimum Sales Figure" means the amount specified in Clause 8
which represents the minimum value of
the orders to be placed by the
Distributor with IPC Information
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Systems Inc. for the Products as
detailed in Clause 8 herein;
"Notice Date" means the day on which notice of
termination of this Agreement is given
by either party to the other pursuant
to this Agreement, and in the event
this Agreement is terminated
automatically without the requirement
for advance notice, "Notice Date" shall
mean the date of termination;
"Party", "Parties" means IPC Information Systems Inc. or
its permitted successor and the
Distributor as parties to this
Agreement, individually or together as
the case may be;
"Prices" means the charges for the Products
levied by IPC Information Systems Inc.
on the Distributor;
"Products" means the product or products as
specified in Schedule 1, which the
Distributor will promote, sell, install
and maintain and generally support
under the terms of this Agreement,
consisting of Equipment and Software.
"Purchase Order" means a formal written order request
from the Distributor in accordance with
IPC Information Systems Inc.'s
Conditions of Sale, which shall become
an order between the Parties upon its
formal acceptance by IPC Information
Systems Inc.;
"Software" means any set of one or more computer
programs which is composed of routines,
subroutines, concepts, processes,
algorithms, formulas, ideas, or
know-how, all of which are,
confidential and proprietary to IPC
Information Systems Inc. and/or its
suppliers and may consist of (i) IPC
Information Systems Inc. or third-party
proprietary operating system or
proprietary application Software either
embedded in memory circuits within the
associated Equipment or provided to
Distributor on physical media; or (ii)
third-party operating system or
application Software which is
distributed to Distributor by IPC
Information Systems Inc. on physical
media " shrink-wrapped" by the
manufacturer. The term Software shall
also include (i)corrections, patches,
updates or revisions to Software
originally distributed; and (ii)
Software documentation which consists
of publications in human readable form
supplied with Software to explain the
construction, operation, and/or use of
the Software by Distributor or
customers. All Software
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distributed under this Agreement shall
be subject to the terms of Clause 9 and
the Software License set forth in
Schedule 7 hereto.
"Territory" means Australia.
"Trade Marks" means, without limitation, all
trade marks, service marks, trade
names, logos and the get up and trading
style of "IPC Information Systems Inc."
or any IPC Group Company as used in
connection with the Products and
related packaging, whether registered
or not;
1.2 Any reference in this Agreement to day(s), month(s) or year(s) shall be
construed as Gregorian calendar day(s), month(s) or year(s).
1.3 The headings in this Agreement are for convenience only and shall not
affect its interpretation.
1.4 Any reference in this Agreement to the plural shall include the
singular and vice versa.
1.5 Any reference in this Agreement to Clauses and Schedules are to Clauses
and Schedules hereto which together form an integral part of this
Agreement.
2 TERM
2.1 This Agreement shall commence on the date first mentioned above and,
subject to Clause 2.2 hereof, shall continue for an Initial Term of
twenty-four (24) calendar months. Thereafter, unless sooner terminated
in accordance with Clause 2.2 hereof, the duration of this Agreement
shall continue until such time as either party terminates this
Agreement by giving to the other party written notice of termination
which shall become effective sixty (60) calendar days after the Notice
Date.
2.2 This Agreement may only be terminated in the following
circumstances:2.2.1 Upon expiry of the Initial Term if either
party has given written notice of termination at least sixty
(60) calendar days prior to the expiration date of the Initial
Term, or at any time after expiry of the Initial Term upon sixty
(60) calendar days' prior written notice as provided in Clause
2.1 above; and If IPC Information Systems Inc. for a continuous
period of Ninety Days refuses to accept correctly submitted
Purchase Orders for Products or refuses to provide quotations
for Products, the Distributor shall have the right to terminate
this Agreement by giving not less than sixty (60) days' notice
in writing to IPC Information Systems Inc.
2.2.2 Pursuant to the provisions of Clauses 3, 8 and 12 below.
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3. APPOINTMENT
3.1 IPC Information Systems Inc. hereby appoints the Distributor on a
non-exclusive basis as IPC Information Systems Inc.'s distributor for
sale, installation and servicing of the Products in the Territory in
accordance with the terms and conditions of this Agreement and in such
capacity the Distributor shall perform the obligations as detailed in
this Agreement.
3.2 IPC Information Systems Inc. retains its right at all times to sell the
Products and anyother products or services in the Territory and to have
such delivered, installed, tested, maintained and supported, either:
(i) directly itself or by and through any other IPC Group Company;
or by
(ii) any third party/parties that IPC Information Systems Inc. may
appoint for that purpose
Provided only Than IPC Information Systems Inc. shall provide the
Distributor reasonable notice (not less that 60 days) of it's intention
to so do and provide the distributor the opportunity to negotiate an
alternative course of action, BUT nothing herein shall restrict its
rights to do so in any way or create any liability whatsoever of IPC
Information Systems Inc. to the Distributor.
(iii) Should either of the above options occur then IPC Information
Systems Inc. will discuss and review the following with the
Distributor.
a) Minimum Sales Figure
b) Clause 3.6
c) Expenditure incurred by the Distributor in respect to clauses
3.7, 3.8, 10.1.5 and 12.3.
3.3 Nothing herein confers any right upon the Distributor itself to appoint
(or to purport that it has appointed) any third party as a distributor
or sub-distributor of the Products in the Territory.
3.4 The Distributor warrants on a continuing basis throughout the term of
this Agreement that it is a registered legal entity in the Territory,
that it has the legal capacity and authority to enter into this
Agreement, and that it has validly and effectively executed and
delivered this Agreement.
3.5 The Distributor shall:
3.5.1 comply with all applicable laws and regulations in respect of
the import, distribution, installation, connection and
maintenance of the Products and the performance of the
Distributor's obligations hereunder, and the Distributor shall
indemnify IPC Information Systems Inc. against any liability
resulting from its failure to comply with such laws and
regulations;
3.5.2 not by itself or with others engage or participate in any
illegal, deceptive, misleading or unethical practices
including, but not limited to a practice which may result in
the disparagement of the Products or IPC Information Systems
Inc. or engage or participate in other practices which may be
detrimental to the Products, IPC Information Systems Inc. or
the public interest; and
3.5.3 provide IPC Information Systems Inc., at its request, with a
copy of audited or certified financial statements of
Distributor, including a balance sheet, income statement and
statement of changes in financial position, for the most
recent fiscal year of Distributor, together with unaudited
financial statements on a quarterly basis; and
3.5.4 permit IPC Information Systems Inc. and its authorized agents
at all reasonable times and with prior notice to enter any of
the Distributor's premises for the purpose of ascertaining
that Distributor is complying with its obligations under this
Agreement.
3.6 For as long as this Agreement remains in effect, and for a period of
one (1) year following the termination of this Agreement for any
reason, Distributor shall not, without the prior written consent
CONFIDENTIAL
of IPC Information Systems Inc., directly or indirectly, (i) own or
operate any business or engage in any activities relating to the
distribution or manufacture of telephone systems that compete with its
activities hereunder; or (ii) become interested as principal, owner,
shareholder, partner or agent of any person, firm, corporation or
entity engaged therein. Distributor acknowledges that any breach of
this provision by Distributor may result in irreparable injury to IPC
Information Systems Inc. and, therefore, that in addition to all other
remedies provided by law, IPC Information Systems Inc. shall be
entitled to both temporary and permanent injunctions and such other and
further equitable relief as may be available to prevent a breach or
threatened breach of this provision.
3.7 The Distributor shall obtain promptly, at its expense, all necessary
licences, certificates, permits, approvals, or other documents
(collectively, "Licenses") as may be required by any applicable laws
and regulations (i) for the enforceability of this Agreement, including
without limitation the performance of all of the Distributor's
obligations under this Agreement and the enforcement of IPC Information
Systems Inc.'s rights hereunder, and (ii) in order for the Products to
be imported into, sold and operated within the Territory. To the
maximum extent possible, such Licenses shall be issued in the name of
IPC Information Systems Inc. or another IPC Group Company designated by
IPC Information Systems Inc. The cost of obtaining all necessary
Licences shall be borne by the Distributor. The Distributor shall
provide IPC Information Systems Inc. with copies of all such documents
upon request.
3.8 IPC Information Systems Inc. shall upon request by the Distributor
provide reasonable technical assistance in obtaining any necessary
Licenses. However no action or inaction by IPC Information Systems Inc.
shall diminish the responsibility of the Distributor to acquire all
necessary Licences in respect of all the Products and, should the
Distributor fail to do so within sixty (60) days after the effective
date of this Agreement, or within sixty (60) days after any requirement
for a new or amended License come into effect, as the case may be, IPC
Information Systems Inc. shall be entitled to terminate the Agreement
with immediate effect without liability of IPC Information Systems Inc.
to the Distributor and without prejudice to any other remedies IPC
Information Systems Inc. may have under this Agreement.
3.9 The Distributor shall inform IPC Information Systems Inc. as soon as
reasonably possible of any change to any laws and regulations governing
the import, distribution, installation, connection or maintenance of
the Products within the Territory, as well as of any change (or likely
anticipated change) to any Licenses affecting any such matters. Where
any withdrawal or suspension of any Licences is caused by any action or
inaction of the Distributor, IPC Information Systems Inc. shall be
entitled to terminate the Agreement with immediate effect without there
being any liability of IPC Information Systems Inc. to the Distributor
and without prejudice to any other remedies IPC Information Systems
Inc. may have under this Agreement.
3.10 IPC Information Systems Inc. shall upon request by the Distributor
consider reasonable modifications to the Products required to meet
applicable laws or regulations in the Territory. If in the sole
discretion of IPC the additional cost or difficulty of modification is
such that the distribution of some or all of the Products in the
Territory is commercially adversely affected, IPC Information Systems
Inc. shall be entitled to (i) amend the Agreement to exclude the
affected Products, or (ii) terminate this Agreement with immediate
effect, in either case without any liability of IPC Information Systems
Inc. to the Distributor.
3.11 The day to day performance of IPC Information Systems Inc.'s
obligations under this Agreement shall be performed either by IPC
Information Systems Inc. itself or by and through any IPC Group Company
as IPC Information Systems Inc. may from time to time determine. Such
shall include any obligation arising under any Purchase Order.
4 RELATIONSHIP OF THE PARTIES
4.1 The Distributor agrees that it is an independent contractor fully
responsible for its acts, omissions or defaults (including those of its
employees, subcontractors or agents) and the Distributor hereby
indemnifies IPC Information Systems Inc. against any loss suffered or
liabilities or expenses incurred by IPC Information Systems Inc. or any
IPC Group Company as a result of such acts,
CONFIDENTIAL
omissions or defaults. The Distributor agrees that in all
correspondence and other dealings relating directly or indirectly to
the Products supplied under this Agreement it shall clearly indicate
that it is acting as a distributor and it shall not hold itself out as
being part of IPC Information Systems Inc. or any other IPC Group
Company, or as an employee, agent, representative, partner, or part of
a joint venture with IPC Information Systems Inc. In particular, the
Distributor shall not use any IPC Information Systems Inc. trademark in
or on its letterhead or company stationery, without prior written
permission from IPC Information Systems Inc.
4.2 The Distributor has no authority or power to bind or contract or
negotiate in the name of or to incur any debt. or other obligation on
behalf of or create any liability against IPC Information Systems Inc.
in any way or for any purpose. The Distributor shall transact all
business pursuant to this Agreement on its own behalf and for its own
account.
4.3 If the Distributor comprises more than one legal person all agreements
with IPC Information Systems Inc. shall be joint and several.
5. THE PRODUCTS
5.1 IPC Information Systems Inc. reserves the right at any time to change
the specification or design of any of the Products. In such event, IPC
Information Systems Inc. will provide the Distributor, as soon as
reasonably practicable and prior to shipment of the Products, with
written notice of any changes made to the specification or design of
the Products. The Distributor undertakes to advise IPC Information
Systems Inc. as soon as reasonably possible of the effect of any such
changes on any License that may have been granted relating to the
distribution of the Products in the Territory. IPC Information Systems
Inc. shall not be under any obligation to make any changes to the
Products previously shipped or sold to the Distributor.
5.2 IPC Information Systems Inc. will use its reasonable endeavours not to
change specification or design of any Products that have already been
ordered by the Distributor pursuant to the procedure detailed herein,
unless such changes are, in IPC Information Systems Inc.'s opinion
essential, as determined in IPC Information Systems Inc.'s sole
discretion. In such circumstances and to the extent reasonably possible
IPC Information Systems Inc. shall use its reasonable endeavours to
effect such changes without materially diminishing the performance of
the Products.
5.3 The timing and introduction of any new product into the Territory shall
be in IPC Information Systems Inc.'s sole discretion and there shall be
no legal obligation upon IPC Information Systems Inc. to introduce any
new product into the Territory, notwithstanding that the same may
already have been introduced elsewhere. The Distributor agrees that it
will distribute all such new product unless it can obtain the agreement
of IPC Information Systems Inc. that there are sound reasons why such
new product should not be introduced into the Territory. Subject to
agreement to distribute the new product the Distributor shall promptly
acquire the necessary Licenses as are required in the Territory for
such new product and shall in addition conduct market research as
acceptable and reasonable for the new product in the Territory as may
be requested by IPC Information Systems Inc.
5.4 Upon the inclusion of any new product into this Agreement, IPC
Information Systems Inc. shall have the right to make reasonable
amendments to Schedule 1, the Minimum Sales Figure, and any other
amendments which may be necessary or appropriate as a result of such
inclusion.
6 PRICES AND PAYMENT
6.1 Subject to Clauses 6.2 and 6.3 below all Purchase Orders for the
Products shall be subject to the Prices as applicable at the date the
Purchase Order is accepted by IPC Information Systems Inc. Prices
quoted by IPC Information Systems Inc. shall remain valid for
acceptance, subject to all terms, conditions and assumptions detailed
in IPC Information Systems Inc.'s quotations, for a period of ninety
(90) days from the date of such quotation. Any quotation of which the
validity has expired shall be subject to further confirmation or
amendment by IPC Information Systems Inc.
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6.2 Unless and until advised by IPC Information Systems Inc., Prices for
the Products will be based on delivery CIP. Prices will exclude
value-added tax and all and any local taxes and duties, all of which
shall be for the sole account of the Distributor.
6.3 Payment for the Products shall be made by the Distributor in US Dollars
unless otherwise agreed on a case by case basis in writing by IPC
Information Systems Inc. Without prejudice to any other rights and
remedies, if the Distributor fails to pay for the Products in full by
the due date, IPC Information Systems Inc. may, without incurring any
liability whatsoever to the Distributor, refuse to deliver further
Products under that or any other Purchase Order (notwithstanding that
the due date for delivery of such Products may have arrived) until full
payment is made.
6.4 IPC Information Systems Inc. shall have the option to decide on a case
by case basis whether it is most appropriate to that particular sale to
accept payment against invoice or on other terms deemed appropriate by
IPC Information Systems Inc. due to the Distributor's financial
condition, payment history or other factors, including requiring
payment through an irrevocable letter of credit payable to a clearing
bank to be approved by IPC Information Systems Inc. with IPC
Information Systems Inc. clearly named as beneficiary. All and any
costs arising from any letters of credit or other alternative payment
arrangements shall be borne by the Distributor.
6.5 Payment is to be made, for new systems, as follows unless an
alternative agreement is made with IPC Information Systems Inc. prior
to acceptance of a Purchase Order.
20% of amount on placement of order
50% on complete shipment of order.
30% upon final acceptance by the customer or within 30 days of
being brought into service, whichever is sooner.
7. ORDERING PROCEDURE AND CONDITIONS OF SALE
7.1 The Distributor may request IPC Information Systems Inc. to provide a
written quotation for supply of the Products at any time. IPC
Information Systems Inc. reserves the right not to submit a quotation.
Refusal to provide a quotation will be taken into consideration by IPC
Information Systems Inc. when reviewing the Minimum Sales Figure.
7.2 The Distributor shall submit all Purchase Orders in writing. Purchase
Orders are subject to IPC Information Systems Inc.'s specific written
acceptance, except where the Purchase Order is an acceptance by the
Distributor of IPC Information Systems lnc.'s written quotation in all
respects as provided pursuant to Clause 7.1 above. IPC Information
Systems Inc. will inform the Distributor whether or not it will accept
the Purchase Order as soon as is reasonably practicable. If IPC
Information Systems Inc. accepts the Purchase Order, it will send the
Distributor a written acceptance stating the Distributor's Purchase
Order number, the price, the delivery date and this Agreement number.
Refusal to accept an order will be taken into consideration by IPC
Information Systems Inc. when reviewing the Minimum Sales Figure. No
Purchase Order may provide for delivery of the Product after notice of
termination of this Agreement has been given by either party, and if
notice of termination is given by either party at a time when any
Purchase Orders are outstanding, IPC Information Systems, Inc. shall
have the option to cancel any or all such outstanding Purchase Orders
by notice to Distributor.
7.3 All Purchase Orders submitted by the Distributor shall state the
following:
(i) Products model(s);
(ii) the quantities ordered;
(iii) the requested dates of availability;
(iv) the destination of the Products;
(v) reference to this Agreement number;
(vi) the method of shipment; and
(vii) the company's VAT (or taxation registration) number (where
applicable).
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7.4 Orders for the Product which are accepted by IPC Information Systems
Inc. shall be subject to IPC Information Systems Inc.'s Conditions of
Export Sale current at the time of acceptance of the Purchase Order.
IPC Information Systems Inc.'s Conditions of Sale shall override any
contrary or additional conditions proposed by the Distributor unless
agreed in advance in writing by IPC Information Systems Inc. for a
particular order. In the event that any contrary or additional
conditions are included in any Purchase Order, such shall be invalid
and shall not apply to IPC Information Systems Inc.
7.5 IPC Information Systems Inc.'s Conditions of Sale current at the
commencement of this Agreement are set out in Schedule 4. IPC reserves
the right to revise such Conditions of Sale from time to time and in
such even IPC shall provide to the Distributor a copy of the revised
Conditions of Sale which shall be substituted for current Schedule 4 at
IPC's option. In the event of any conflict between IPC Information
Systems Inc.'s Conditions of Sale and this Agreement, the then-current
Conditions of Sale shall prevail. For the purposes of this Agreement
each Purchase Order placed with IPC Information Systems Inc. by the
Distributor shall constitute a separate sale and contract in its own
right. Notwithstanding the termination of any Purchase Order this
Agreement shall remain in full force and effect until such time as the
Agreement has either expired or has been terminated in accordance with
the provisions herein.
7.6 The Distributor shall, upon signature of a contract or order for the
Products with a customer, provide IPC Information Systems Inc. if
reasonably so requested with a copy of the same.
8. MINIMUM SALES FIGURE
8.1 The Distributor shall purchase from IPC Information Systems Inc. during
the first twelve-(12) months of this Agreement, and thereafter during
each successive twelve (12) month period, quantities of the Products
equal to or greater than the respective applicable Minimum Sales Figure
amounts specified in Clauses 8.4 and 8.5.
8.2 For the purpose of determining the Distributor's performance in meeting
its obligations under Clause 8.1, an executed Purchase Order for the
Product shall constitute a purchase on the date of IPC Information
Systems Inc.'s acceptance of the Purchase Order. However, any Purchase
Order which is subsequently canceled for whatever reason shall not
contribute to the Minimum Sales Figure, and the actual sales figure
achieved by the Distributor shall be adjusted by the amount with which
any Purchase Order is subsequently increased or reduced in value for
whatever reason.
8.3 In the event that the Distributor fails to achieve the Minimum Sales
Figure applicable to any period under this Agreement, IPC Information
Systems Inc. may, at its discretion on written notice terminate this
Agreement for the Distributor's default.
8.4 The Minimum Sales Figure for the first twelve (12) month period of the
term of this Agreement is US Two Million Dollars ($2M.). This and all
subsequent Minimum Sales Figures are to be expressed in US Dollars and
exclude all taxes, duties and transportation costs.
8.5 Not less than sixty (60) days before the end of the period specified in
Clause 8.1 and each period of twelve (12) months thereafter during the
term of this Agreement, the parties shall co-operate in good faith to
agree a new minimum sales figure which shall constitute the Minimum
Sales Figure for the succeeding twelve (12) months. Both parties shall
use their reasonable efforts to mutually agree the Minimum Sales
Figure. However if after a period of thirty (30) days the parties fail
to agree then IPC Information Systems Inc. reserves the right, at its
discretion, either to specify the Minimum Sales Figure for the
Distributor or to terminate this Agreement.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 All Intellectual Property Rights in
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i) the Products;
ii) all documents and manuals supplied with the Products;
iii) the Software; and,
iv) all Trade Marks,
shall remain the absolute property of IPC Information Systems Inc. or
its licensors. No licence or other right is granted except as expressly
set out in this Agreement.
[NOTE: SOFTWARE LICENSING PROVISIONS ARE
SUBJECT TO REVISION BY IPC]
9.2 Upon payment in full of the applicable Purchase Price for Equipment and
Software, and subject to the terms of this Agreement and in particular
the Software License in Schedule 7 hereto, IPC Information Systems Inc.
grants to the Distributor:
9.2.1 a paid-up, non-exclusive, non-transferable personal licence to
use, solely in conjunction with the purchased Equipment, any
Software supplied to Distributor by IPC Information Systems
Inc. for such purpose, on the terms contained in Schedule 7,
Software License; and
9.2.2 a paid-up, non-exclusive, non-transferable license to grant
non-exclusive sublicenses of the right to use Software solely
in conjunction with the purchased Equipment, conditioned upon
the Distributor's obtaining from end user Customers an
executed End-User Software Sublicense in the form and
containing all the terms and conditions of the Software
License in Schedule 7.]
9.3 In addition to the Software described in clause 9.2 above, IPC
Information Systems Inc. may provide to the Distributor, on physical
media "shrink-wrapped" by the manufacturer, third-party operating
system or applications software. The license allowing the end-user to
use such shrink-wrapped Software is an agreement between the
manufacturer and the end-user, is contained within the shrink-wrap and
is activated when the end-user opens the shrink-wrap.
9.4 The Distributor is not permitted to:
i) modify, adapt, enhance or otherwise alter the Products or
their shape, appearance or technical specification; or
ii) gain access to, install, maintain or modify the Software or
attempt to do so
except as expressly set out in prior written instructions of IPC
Information Systems Inc.
9.5 Distributor's obligations under this Clause 9 and the Software License
in Schedule 7 shall survive the expiration or termination of this
Agreement, regardless of the reason for such expiration or termination.
10 USE OF TRADE MARKS AND TRADE NAMES
10.1 The Distributor undertakes that:
10.1.1 in all respects it shall strictly comply with IPC Information
Systems Inc.'s written instructions concerning the use of
Trade Marks on or in connection with the Products, and in
connection therewith the Distributor shall not display or use
the Trade Marks in any manner without the prior written
approval of IPC Information Systems Inc.;
10.1.2 it shall not without IPC Information Systems Inc.'s prior
written agreement, use any other trade marks on or in
connection with the Products and shall not remove, alter or
conceal any of IPC Information Systems Inc.'s Trade Marks;
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10.1.3 it shall not apply to the Products any other matter in writing
that is likely to injure the reputation of the Trade Xxxx so
long as any of the Trade Marks remain on the Products;
10.1.4 it will give notice of the undertakings in Clauses 10.1.1,
10.1.2 and 10.1.3 above to any purchaser of the Products from
it and it will require such purchaser to give notice in
writing of those undertakings to anyone to whom that purchaser
may supply the Products;
10.1.5 it shall not register or apply to register any Trade Xxxx or
another word or device likely to be confused with them without
first obtaining prior written approval from IPC Information
Systems Inc., provided however that the Distributor shall upon
the request of IPC Information Systems Inc. assist IPC
Information Systems Inc. in obtaining and maintaining
registrations of the Trade Marks and in maintaining the
validity and enforceability of the Trade Marks in the
Territory, and in connection therewith the Distributor will at
the request of IPC Information Systems Inc. execute such
registered user agreements or license agreements relating to
the Trade Marks in the Territory as IPC Information Systems
Inc. may reasonably request; and
10.1.6 Following delivery of notice of termination of this Agreement
it shall cease using any of the Trade Marks save as permitted
in Clause 10.2 below.
10.2 Following delivery of notice of termination of this Agreement and for
such period as the Distributor is permitted by the terms of this
Agreement to complete the distribution of any stock of Products then
held by it:
10.2.1 subject to all the terms of this Agreement the Distributor
shall be permitted to continue to use on or in connection with
the Product those Trade Marks applied by IPC Information
Systems Inc. to the Products; and
10.2.2 the Distributor shall cease all other use of the corporate
xxxx and logo of IPC Information Systems Inc. or any IPC Group
Company and shall cease immediately to represent that it is an
authorised distributor of IPC Information Systems Inc. or make
any similar representation.
11 INTELLECTUAL PROPERTY RIGHTS INDEMNITY
11.1 IPC Information Systems Inc. shall, to the extent provided in this
Clause 11, indemnify the Distributor against all claims and proceedings
arising from infringement (or alleged infringement) of any Intellectual
Property Rights enforceable in the Territory or the United States of
America arising in connection with the distribution of the Products by
the Distributor in accordance with this Agreement. As a condition of
this indemnity the Distributor shall:
i) notify IPC Information Systems Inc. promptly in writing of any
allegation of infringement;
ii) make no admission relating to the infringement; and
iii) allow IPC Information Systems Inc. to conduct all negotiations
and proceedings and give IPC Information Systems Inc. all
reasonable assistance.
11.2 If at any time any allegation of infringement of such patent, design or
copyright is made, IPC Information Systems Inc. will to whatever limit
is practicable at its own expense (i) procure for the Distributor the
right to continue its activities under this Agreement, (ii) modify the
Products so as to avoid the infringement, or (iii) replace the Products
with non-infringing goods provided that any such modification or
replacement does not adversely affect the Products' performance in a
material respect.
11.3 The indemnity referred to above will not apply to any infringement or
alleged infringement:
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i) occasioned by the Distributor's or its customers' use of any
of the Products or any part thereof in combination with
equipment and/or software not supplied by IPC Information
Systems Inc. for use with such Products, or
ii) caused or contributed to by any specification issued by the
Distributor or its customer; or
iii) caused or contributed to by any act or omission of the
Distributor or its customer.
The Distributor shall indemnify IPC Information Systems Inc. in
proportion to the relative causation by the Distributor against all
claims and proceedings arising from any infringements incurred in
connection the matters described in this Clause 11.3.
11.4 The indemnity referred to in Clause 11.1 above shall be subject to the
extent of the indemnity being limited to one million ($1,000,000) US
Dollars in respect of all settlements or claims and proceedings in any
period of twelve (12) calendar months.
11.5 The indemnity referred to in Clause 11.1 above states IPC Information
Systems Inc.'s entire liability in respect of any infringement or
alleged infringement of third party intellectual property rights and is
in lieu of and replaces all other warranties in that respect including
implied warranties.
12 TERMINATION/EXPIRATION
12.1 Either party shall have the right by giving thirty (30) days' written
notice to the other to terminate this Agreement forthwith if the other
party commits:
12.1.1 a material or persistent breach of any term of this Agreement
and (if that breach is capable of remedy) fails to remedy such
a breach within thirty (30) days or such longer period as the
parties may mutually agree; or
12.1.2 any act of bankruptcy or compounds with its creditors; or a
petition or receiving order in bankruptcy is presented or made
against the other party; or a petition for an administration
order is presented in relation to the other party; or a
resolution or petition to wind up the other party is passed or
presented (otherwise than for reconstruction or amalgamation)
or a receiver or administrative receiver is appointed (or the
equivalent in all cases of any such event in the jurisdiction
of such other party); or
12.1.3 if a force majeure event as described in Clause 14 shall have
occurred and shall persist for a continuous period of three
months or for periods aggregating three months or more in any
six month period.
12.2 IPC Information Systems Inc. shall also have the right by giving
written notice to the Distributor to terminate this Agreement in the
circumstances detailed elsewhere in this Agreement forthwith and if:
12.2.1 there is an actual or threatened material change in the
ownership or control of the Distributor, or a material change
in its assets or transfer of a material portion of its assets
or business; or
12.2.3 the Distributor shall cease to function as a going concern or
to conduct its operation in the ordinary course of business
either generally or in any part of the Territory; or
12.2.4 the Distributor shall or shall threaten or attempt to sell,
assign, delegate or transfer any part of its rights or duties
under this Agreement without the prior written consent of IPC
Information Systems Inc.; or
12.2.5 there is any breach or threatened breach of Clauses 9, 10, 13
or the Software License.
12.3 The expiry or termination of this Agreement shall be without prejudice
to the rights of the parties accrued up to the date of such expiry or
termination or to the survival of those rights and obligations
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of the parties which are by their nature intended to survive expiry or
termination of this Agreement. The Distributor agrees that regardless
of the reason for termination of this Agreement, it shall not be
entitled, upon termination or expiration, to payment or compensation of
any kind upon such termination or expiration for (i) Distributor' s
prior efforts in promoting or creating goodwill for the Products or IPC
Information Systems Inc.; (ii) any of Distributor' s costs incurred in
the performance of this Agreement; (iii) any of Distributor, s costs
incurred as a result of termination; or (iv)any loss of profit and/or
potential profit caused by such termination.
12.4 Upon expiry or termination of this Agreement:
12.4.1 the Distributor shall discontinue using any of the Trademarks
or other intellectual property rights relating to the Product
and shall cease to distribute or otherwise deal with the
Product and shall not represent that it is an authorised
distributor of IPC Information Systems Inc.; and
12.4.2 the Distributor shall, within seven (7) days after the Notice
Date and at IPC Information Systems Inc.'s option, either
return or destroy all Software, documents, technical
information and any other data including any copies made of
the same (other than standard correspondence, letters and the
like) which have been supplied to it by IPC Information
Systems Inc. and are still in its possession or under its
control; provided that IPC Information Systems Inc. may
authorise the Distributor to retain any information which is
essential for the sale of unsold stock not repurchased
pursuant to Clause 12.5 below. An officer of the Distributor
shall, within the said seven (7) days, furnish IPC Information
Systems Inc. with a certificate certifying that the
Distributor has complied with its obligations in this Clause
12.4.2;
12.4.3 all orders for Products not already delivered as of the Notice
Date shall at the option of IPC Information Systems Inc. be
canceled;
12.4.4 all outstanding unpaid invoices in respect of the Products
shall become immediately due and payable as of the Notice
Date; and
12.4.5 the Distributor shall execute and deliver as promptly as
practicable following the Notice Date all documents reasonably
required by IPC Information Systems Inc. to accomplish and
evidence complete termination of this Agreement.
12.5 Within seven (7) calendar days after the Notice Date the Distributor
shall deliver to IPC Information Systems Inc.:
(i) a complete list of the customers of all Products and their
addresses, contact personnel and contact information;
(ii) a complete list of IPC Products, spare parts and other
associated inventory which are in the Distributor's stock,
including the part number, description of the item, quantity
held, dates of purchase and "landed cost" (i.e., net price
paid by the Distributor together with transportation costs and
customs duties paid by the Distributor in respect thereof),
which list shall separately list and identify unused and used
inventory; and
(iii) complete copies of all executory contracts relating to the
sale, installation or service of IPC Products, i.e., those
that have not been fully performed and completed as of the
Notice Date.
12.6 IPC Information Systems Inc. shall, within thirty (30) days after the
Distributor delivers the information described in Clause 12.5, have the
option to repurchase some or all of the Products in Distributor's
inventory. For Products that can be sold as new merchandise, the
repurchase price shall be based upon the " landed cost" . For Products
that cannot be sold as new merchandise, the repurchase price shall be
agreed upon by the parties. IPC Information Systems Inc.'s
determination with respect to classification of Products as "new" shall
be final. Distributor agrees to deliver such Products to IPC
Information Systems Inc. to such destination designation by IPC
Information Systems Inc. within ten (10) days after IPC Information
Systems Inc. has given Distributor notice
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of its exercise of such option, and the price therein specified shall
be paid, at IPC Formation Systems Inc., sole option, in cash or as a
credit against any indebtedness then owing by Distributor to IPC
Information Systems Inc. within ten (10) days after such delivery.
12.7 Within thirty (30) days after the Distributor delivers the information
described in Clause 12.5, the Distributor shall, at IPC Information
Systems Inc.'s request and sole discretion, use its best efforts to
effect an assignment or novation to IPC Information Systems Inc. or to
a person or persons designated by IPC Information Systems Inc. such of
Distributor's then existing and executory quotations, proposals and
contracts relating to the sale, installation or service of Products as
specified by IPC Information Systems Inc. in a written notice to the
Distributor. In order to facilitate such assignment or novation,
Distributor shall cause its contracts with its Customers to contain a
provision permitting the assignment or novation thereof to IPC
Information Systems Inc. or to IPC Information Systems Inc.' s designee
upon termination or expiration of this Agreement. IPC Information
Systems Inc. and the Distributor shall deliver a joint notice of such
assignment/nova/ion to all such customers in a form prepared by IPC
Information Systems Inc., and IPC Information Systems Inc. and
Distributor shall enter into any formal deeds or agreements deemed by
IPC formation Systems Inc. to be necessary or appropriate to effect
such assignment/nova/ion. Where there are either pre-payments or
amounts owing in respect of such executory contracts, IPC Information
Systems Inc. and the Distributor shall make a financial settlement at
the time of assignment/nova/ion.
12.8 In the event IPC Information Systems Inc. exercises its options under
Clauses 12.6 and/or 12.7, the sales, assignments/novations and payments
shall occur on a date designated by IPC Information Systems Inc. as
promptly as practicable after Distributor's compliance with Clause
12.5, and the Agreement shall be deemed terminated from and after that
date.
13. CONFIDENTIALITY
13.1 The parties agree to keep confidential any Confidential Information
supplied or disclosed to them by the other party or whenever obtained
under or in connection with this Agreement and shall not use or
disclose such information or any part of it to any person without prior
written consent.
13.2 The Distributor agrees to use any Confidential Information supplied or
disclosed to it by IPC Information Systems Inc. solely for the purpose
of the promotion and distribution of the Products.
13.3 In particular, the Distributor acknowledges that:
i) the Software,
ii) the ideas, principles and algorithms which underlie or are
contained within the Software and including any interface
information or information required for interoperability and,
iii) the operating manuals or other associated documentation
supplied with the Products
are all Confidential Information and valuable trade secrets of IPC
Information Systems Inc. and its licensors.
13.4 The restrictions in this Clause 13 shall not apply to information
which:
13.4.1 is in the public domain otherwise than by breach of this
Agreement;
13.4.2 was previously in the possession of the receiving party and
which was not acquired directly or indirectly from the
disclosing party;
13.4.3 is lawfully obtained from a third party who is free to
disclose the same; or
13.4.4 the receiving party is obliged by a court order to disclose.
CONFIDENTIAL
13.5 Where disclosure of information to a third party (including but not
limited to the Distributor's customers, employees and agents) is
necessary for the performance by the Distributor of its obligations
hereunder, the Distributor shall, prior to any such disclosure, procure
that such persons are bound by the provisions of this Clause 13 and, if
requested by IPC Information Systems Inc., shall obtain duly binding
undertakings from such persons in favour of IPC Information Systems
Inc.
to this effect.
13.6 If the Distributor becomes aware of any breach of confidence by any of
its customers, employees, and agents, it shall promptly notify IPC
Information Systems Inc. and give IPC Information Systems Inc. all
reasonable assistance in connection with any proceedings IPC
Information Systems Inc. may institute against any such persons.
13.7 Distributor acknowledges that any breach or threatened breach of this
Clause 13 may result in irreparable harm to IPC Information Systems
Inc. In that event, the Distributor agrees that in addition to all
other remedies provided by law, LPC Information Systems Inc. shall be
entitled to both temporary and permanent injunctions and further
equitable relief as may be available to prevent a breach or threatened
breach of this provision.
13.8 The obligations of the parties contained in this Clause shall continue
in force for a period of five (5) years from the date of expiry or
termination of this Agreement.
14 FORCE MAJEURE
14.1 Neither Party shall be liable for any breach of this Agreement (other
than the failure to pay money amounts owing) due to any cause beyond
its reasonable control including but not limited to: Act of God,
insurrection or civil disorder, war (whether declared or not) or
military operations, national or local emergency, acts or omissions of
government, highway authority or other competent authority, its
compliance with any statutory obligation or an obligation under a
statute, industrial disputes of any kind (whether or not involving
either party's employees), fire, lightning, explosion, flood,
subsidence, weather of exceptional severity, acts or omissions of
persons for whom neither Party is responsible (including, in
particular, telecommunication service providers).
14.2 If either Party is affected by a Force Majeure event, it will
immediately notify the other Party and shall take all reasonable steps
to alleviate the effects of such event.
15. DISTRIBUTOR'S INDEMNITY
15.1 Because IPC Information Systems Inc. will have no contractual
relationship with any customers to whom the Distributor sells the
Products, the Distributor undertakes to make appropriate arrangements
with such customers to ensure that the provisions of Clauses 9, 10, 11
and 13 have effect as between the Distributor and its customers and to
use its best endeavours to ensure that any such terms are enforced. The
Distributor agrees to indemnify IPC Information Systems Inc. against
all loss and damage resulting from the failure of any such customer to
observe any of these requirements.
15.2 The Distributor hereby agrees to indemnify IPC Information Systems Inc.
against all costs, claims, demands, actions and proceedings which may
be brought against IPC Information Systems Inc. by any third party
(other than such as may relate to (i) an Intellectual Property
infringement to which Clause 11 applies or (ii) any liability assumed
by IPC Information Systems Inc. in accordance with Clause 16) arising
out of or in connection with the performance or non-performance by
Distribution of its obligations under this Agreement.
16 LIMITATION OF LIABILITY
16.1 IPC Information Systems Inc. accepts liability for its own negligence
to the extent stated in Clause 11 and this Clause 16, but not
otherwise. Except where expressly contained in this Agreement IPC
Information Systems Inc. has no obligation duty or liability in
contract, tort (including negligence) or otherwise.
CONFIDENTIAL
16.2 IPC Information Systems Inc. does not exclude or restrict liability for
death or personal injury resulting from its own negligence.
16.3 In any event IPC Information Systems Inc.'s liability in contract, tort
(including negligence) or otherwise arising by reason of or in
connection with this Agreement or howsoever otherwise shall be limited
to two million US Dollars ($2,000,000).
16.4 In any event in no circumstances shall IPC Information Systems Inc. be
liable in contract, tort (including negligence) or otherwise for loss
(whether direct or indirect) of profits, business or anticipated
savings, or for any indirect or consequential loss or damage whatever.
16.5 Each provision of this Clause 16 is to be construed as a separate
limitation applying and surviving even if for any reason one or other
of the said provisions is inapplicable or held unreasonable in any
circumstances and shall remain in force notwithstanding
17 INSURANCE
17.1 The Distributor shall at its own expense effect and maintain in place
throughout the duration of this Agreement such insurance as it deems
appropriate in respect of its obligations under this Agreement but such
insurance which shall be on a claims occurring basis shall include as a
minimum:
a) xxxxxxx'x compensation insurance to comply with the
requirements of any Government legislation; and,
b) public liability insurance in respect of bodily injury and
damage to property with an indemnity limit of not less than
two million US Dollars ($2,000,000).
The Distributor shall ensure that each subcontractor used in relation
to this Agreement shall similarly effect and maintain insurance of the
type referred to above.
17.2 The Distributor shall at IPC Information Systems Inc.'s request provide
evidence to IPC Information Systems Inc.'s reasonable satisfaction that
such insurance has been obtained and is in place. Should IPC
Information Systems Inc. not be satisfied that such insurance is in
place then IPC Information Systems Inc. may arrange appropriate
insurance cover against any risk to which such failure may occur. All
and any premiums for such insurance shall be to the sole account of the
Distributor.
17.3 The Distributor shall notify IPC Information Systems Inc. as soon as it
becomes aware of any event arising in connection with this Agreement
which the Distributor believes may give rise to any claim under any
insurance policy falling within the terms of this Clause 17.
17.4 The provisions of this Clause 17 shall not be deemed in any way to
limit the Distributor's liability under this Agreement.
18 GENERAL
18.1 Entire Agreement
This Agreement constitutes the entire understanding between the parties
on the subject of the Distributor relationship and supersedes all prior
agreements and understandings between the parties, whether written or
oral, relating to the subject matter.
18.2 Invalidity
If any provision of this Agreement is found to be invalid or
unenforceable by a court having jurisdiction of the matter, the
invalidity or unenforceability of the provisions shall not affect the
valid and enforceable provisions of this Agreement. The parties shall
endeavour to replace any invalid or unenforceable provisions in such a
way that the new clause shall differ as little as possible from the
scope and intention of the invalid or unenforceable provisions, taking
into account the object and the purpose of this Agreement. If such
mutual Agreement cannot be reached within sixty
CONFIDENTIAL
(60) days after such finding of invalidity or unenforceability, either
Party shall have the right to terminate the Agreement forthwith on
thirty (30) days' written notice.
18.3 Assignment
Neither party shall be entitled to assign or otherwise delegate its
rights and obligations under this Agreement without the prior written
consent of the other party except that the Distributor agrees that IPC
Information Systems Inc. may assign or novate such rights and
obligations to any IPC Group Company or to any company where IPC
Information Systems Inc. has effective control.
18.4 Waiver
Failure or neglect by either party to enforce any of the provisions of
this Agreement shall not be construed nor shall be deemed to be a
waiver of such party's rights nor prejudice such party's rights to take
subsequent action.
18.5 Authentic Text
The text of this Agreement in the English language is the authentic
text and any difficulties or uncertainties in interpretation arising
shall be solved solely by reference to this text.
The notes and marginal terms, clause and sub-clause headings in this
Agreement shall not be deemed to be part thereof nor affect the meaning
or interpretation of this Agreement.
In the event of any conflict between the Schedules attached to this
Agreement and the Agreement, the latter shall prevail.
18.6 Amendment
This Agreement may only be amended in writing duly signed by both
parties. Any such amendment will only come in to force when both
parties have agreed and signed a variation to this Agreement.
18.7 Notices
Any notice required to be served on one party by the other shall be
given by personal delivery or sent by registered international airmail
with postage prepaid, recognized international courier service, or
facsimile transmission to the party to be notified at the address set
out below (or such other address as the addressee shall have for the
time being notified to the party giving notice):
For IPC Information Systems Inc.:
The Finance Director
IPC INFORMATION SYSTEMS INC.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
XXX
Facsimile No.: x0 (000) 000-0000
For the Distributor:
The Marketing Director
Trade Wind Marketing Ply Ltd.
Xxxxx 00 Xxxxxxxxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxx
Xxx Xxxxx Xxxxx 0000
Xxxxxxxxx
Facsimile No: x00-0-0000-0000
CONFIDENTIAL
Any such notice shall be deemed to be given, in the case of hand
delivery or recognized international courier service, upon receipt; in
the case of electronic facsimile, upon receiving confirmation by the
sending machine of receipt at the designated facsimile number, and in
the case of in the case of airmail, seven (7) days after dispatch.
19 APPLICABLE LAW AND JURISDICTION
19.1 The construction, validity and performance of this Agreement shall be
governed in all respects by the substantive law of the State of New
York, USA applicable to agreements to be made and performed therein.
The parties hereby submit to the nonexclusive jurisdiction of the
courts of the State of New York and the federal courts of the USA
located therein.
19.2 Arbitration
(a) Any bona fide dispute arising out of or relating to this
Agreement or the breach, termination or validity thereof,
which has not been resolved within sixty (60) days of notice
thereof by the party claiming a dispute, shall be finally
settled by arbitration conducted in accordance with the
International Arbitration Rules of the American Arbitration
Association by three independent and impartial arbitrators, of
whom each party shall appoint one.
(b) The place of arbitration shall be the State of New York,
County of New York, U.S.A. and all proceedings shall be in
English. The arbitration shall be governed by the substantive
law of the State of New York, exclusive of its conflict of
laws rules, and the law applicable to the arbitration
procedure shall be the United States Arbitration Act, 9 U.S.C.
Section 1 et seq. Judgment upon the award rendered by the
arbitrators may be entered by any court having jurisdiction
thereof.
(c) The parties agree that (i) the award of the arbitrators shall
be the sole and exclusive remedy between them regarding any
claims, counterclaims, issues or accountings presented or pled
to the arbitrators; that is shall be made and shall promptly
be payable in U.S. dollars free of any tax, deduction or
offset; and that any costs, fees, or taxes, incident to
enforcing the award shall, to the maximum extent permitted by
law, be charged against the party resisting such enforcement;
and (ii) the procedures specified in this Article 19.2 shall
be the sole and exclusive procedures for the resolution of
disputes between the parties arising out of or relating to
this Agreement; provided however, that a party may seek a
preliminary injunction, attachments or other provisional
judicial relief if such action is necessary to avoid
irreparable damage or to preserve the status quo. Despite such
action, the parties will continue to participate in good faith
in the procedures specified in this Article 19.2.
IN WITNESS whereof the Parties have caused this Agreement to be executed on the
date first written above.
On behalf of : IPC INFORMATION SYSTEMS INC.:
Signed by : /s/ X.X. Xxxxxxxx
----------------------
Name : X.X. Xxxxxxxx
Title: : MANAGING DIRECTOR ASIA/PACIFIC
------------------------------
On behalf of : TRADE WIND MARKETING PTY LTD.
-----------------------------
Signed by : /s/ X.X. Xxxxxx
-----------------------------
Name : X.X. Xxxxxx
-----------------------------
Title : DIRECTOR
-----------------------------
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CONFIDENTIAL
SCHEDULE 1 TO THE AGREEMENT
THE PRODUCTS
The following is the range of Products that IPC Information Systems Inc. will
make available to the Distributor for sale in the Territory under this
Agreement.
Within the table below, items 1 to 3 inclusive are Hardware including operating
Software and item 4 is Software.
1. Switches 3. Peripherals
Alliance 100, 200 & 300 Cleardeal 8 channel & 4 channel
MX Bridge Range of Products
Nice Voice Recorders
2. Consoles 4. Software
MX Tradephone CTI Suite of Products
Slimline Control/Pagination Module
Classic Control/Pagination Module
CONFIDENTIAL
SCHEDULE 2 TO THE AGREEMENT
DISTRIBUTOR'S OBLIGATIONS
The Distributor undertakes to perform the following obligations in accordance
with this Agreement. This listing is not intended to be exclusive but to set
operational standards to be followed. The activities detailed in this Schedule
are in addition to any other obligations as detailed elsewhere in this
Agreement.
A. SALES ADMINISTRATION AND MARKETING
1. On the first working day of each quarter, to provide a month by month
forecast of prospects and orders for the subsequent six (6) months. In
addition to these forecasts, the Distributor shall at the same time
supply to IPC Information Systems Inc. a written monthly report
detailing:
- sales prospects and sales achieved/orders received by the
Distributor; - market intelligence and, in particular,
competitors activities, and market sizepenetrat ion;
- win/loss sales reports (loss reports to include reason for
loss and details of the once prospective customer);
- customer complaints, praise and enquiries;
- location and use of any of the Products sold in connection
with this Agreement, including any physical moves or changes
in use;
- the numbers and nature of repairs and other after sales
services provided by the Distributor;
- inventory of stock of the Products held by the Distributor as
appropriate;
- if applicable, suggested Products enhancements;
- if applicable, advice regarding local law, environmental
conditions, safety standards, business practices and all other
necessary approvals which might affect the sales of the
Products or their use including, but not limited to, those
approvals required for network connection of the Products;
- any other information relating to the Products, customers or
the performance of this Agreement which is likely to be of
benefit to either IPC Information Systems Inc., the
Distributor or their customers.
2. To identify to IPC Information Systems Inc. at the commencement of this
Agreement (and subsequently at the start of each twelve (12) month
period subsequent to the initial twelve month duration of the
Agreement) the respective annual sales target.
3. To consult with and obtain the prior written authorization of IPC
Information Systems Inc. in the event of any customer requirement which
in any way is not expressly covered by the specific terms and
conditions of this Agreement. IPC Information Systems Inc.'s
authorization shall be obtained prior to any representation,
undertaking or opinion which is not expressly permitted by the terms
and conditions of this Agreement, being given either orally or in
writing by the Distributor to any third party or customer.
4. To provide, upon reasonable request, copies to IPC Information Systems
Inc. of bids, quotations and tenders relating to the Products as
submitted by the Distributor to any potential customer.
5. To fund visits to IPC Information Systems Inc.'s premises in the United
States of America, or an alternative suitable location, for its staff
to attend sales reviews, at least on an annual basis.
6. To hold at the Distributor's premises and at the Distributor's expense
facilities and Products, based upon an agreed Product demonstration
list, to demonstrate the operation of the Products to potential
customers. The Distributor, when requested by IPC Information Systems
Inc. or a third party, shall provide at the Distributor's expense a
demonstration of the Products at the Distributor's premises.
7. To nominate a named room manager who shall have specific responsibility
for customer demonstrations and demonstration room management.
CONFIDENTIAL
8. As appropriate to the market in the Territory, to translate and print
local language versions of all product information including literature
describing the Products as well as user guides and associated
documentation. The Distributor shall do this at its own expense.
9. To procure and maintain mobile demonstration equipment at the
Distributor's expense for demonstrating the Products at third party
premises or sites should IPC Information Systems Inc. or such third
party request such a demonstration or should IPC Information Systems
Inc. request that the Distributor perform such a demonstration at a
trade show or some other promotional event.
10. To advertise and promote the Products at the Distributor's expense and
in such a manner and through such a media as shall increase the sale of
the Products in the Territory provided that the text of all proposed
advertising and promotional material shall be subject to IPC
Information Systems Inc.'s prior approval. The Distributor shall hold a
marketing budget and agree a marketing plan for the sale of the
Products with IPC Information Systems Inc. at the commencement of this
Agreement and thereafter at the start of each twelve (12) month period
following the initial twelve (12) month duration of this Agreement.
B. SALES PRACTICE
1. To ensure that all efforts and resources are applied as necessary in
order to exceed the sales targets and volumes agreed between the
Distributor and IPC Information Systems Inc. To take a flexible
approach to pricing, particularly in the case of IPC Information
Systems Inc.'s global customers, and reflecting the competitive nature
of both the worldwide and local markets.
2. To conduct sales presentations as and when requested by IPC Information
Systems Inc. or a third party.
3. To refrain from establishing or maintaining branches or distribution
depots for the sale of the Products outside the Territory except as
otherwise might be formally agreed in writing between the Distributor
and IPC Information Systems Inc. separate to and outside this
Agreement. However, the Distributor undertakes to notify IPC
Information Systems Inc. promptly of any opportunities arising for the
supply of the Products - or any related items or service - to a third
party in any area outside the Territory which is not covered by this
Agreement.
4. To ensure that all the sales staff of the Distributor involved in the
sale of the Products are dedicated to the distribution of the Products,
are trained to the standard required by and agreed with IPC Information
Systems Inc., consisting of individuals with a skill set to fit IPC
Information Systems Inc.'s current range of Products and other
products. Such individuals must have a sufficient understanding of the
English language and other local languages to enable them to perform
the Distributor's obligations hereunder.
5. To demonstrate to IPC Information Systems Inc. the potential to
distribute additional and future products and services, not limited to
the Product range detailed herein.
6. To provide IPC Information Systems Inc. with local quotations for
installation activities at rates which the Distributor can demonstrate
are competitive in the Territory.
7. To agree with IPC Information Systems Inc. a service plan for use with
IPC Information Systems Inc.'s global customers in the Territory,
holding quarterly reviews with those customers and providing IPC
Information Systems Inc. with regular feedback through the use of
customer questionnaires and the like.
C. CUSTOMER SERVICE
1. To operate during local business hours (08.00-17.00) a service centre
with a 'help desk' to act as a central point of contact for fault
reporting and to designate a named single point of contact for
installation and warranty services to be provided by the Distributor.
This help desk shall consist of an acceptable fault tracking system.
Such point of contact and all other installation and support staff
shall be suitably trained, qualified and experienced to ensure that all
support services shall be
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performed in a timely and efficient manner to the customers' complete
satisfaction. Escalation procedures shall be established for both
technical and managerial contact, within and outside of local office
hours.
2. To deliver and install the Products on customers' premises in
accordance with standards defined by IPC Information Systems Inc. To
perform pre-agreed acceptance tests. To provide and perform first line
maintenance cover and support for the Products in order to fulfil
warranty obligations and continuing maintenance cover if included by a
customer in their order. The Distributor shall provide all tools
(including standard computer based project management tools, such as
"Microsoft Project") necessary to perform these services.
3. To provide project management, installation (at pre-agreed prices),
and, if ordered under a separate agreement, maintenance and support for
IPC Information Systems Inc.'s customers in the Territory.
4. To maintain adequate levels of stock of the Products, replacement parts
therefor and recommended test equipment as may be necessary to meet
demand for the Products or as may be prescribed by IPC Information
Systems Inc. from time to time and as detailed in section D of this
Schedule 2.
5. To provide on site customer training, to the satisfaction of IPC
Information Systems Inc. and all customers, in order to ensure the
ability of customers to maintain and use the Products effectively.
6. As detailed in Clause 3 of this Agreement, to obtain all necessary
Licenses in the name of IPC Information Systems Inc. to the extent
possible, and if any are obtained in the name of the Distributor, they
shall be transferred to IPC Information Systems Inc. if permitted by
local law upon termination or expiry of this Agreement .
7. To maintain in a format advised by IPC Information Systems Inc. a
record of faulty parts and their replacements (whether replaced under
warranty or maintenance provisions) supplied to and returned from
customers and to supply a copy of this record to IPC Information
Systems Inc. with the monthly report previously referred to in Section
Al above.
8. To conduct site and room surveys and produce comprehensive reports room
plans and project plans as may be required by IPC Information Systems
Inc. at the time of receiving the Distributor's Purchase Order or
thereafter.
9. To process and subsequently project manage customer orders, Purchase
Orders placed by the Distributor in relation to this Agreement and this
Agreement itself in order to ensure both customer satisfaction and
compliance with the terms, conditions and Schedules of this Agreement
and any related order.
10. To promptly bring to IPC Information Systems Inc.'s attention any
claims or lawsuits (actual or potential) which come to the
Distributor's attention which concern alleged infringements of any
improper or wrongful use of IPC Information Systems Inc.'s intellectual
property rights or other intellectual property rights used in respect
of the Products.
11. To ensure that the environmental conditions at the customer's premises
where the Products are to be kept are in accordance with those as
detailed in any manuals and user guides as may be provided by IPC
Information Systems Inc. or as otherwise advised in writing by IPC
Information Systems Inc.
12. To nominate and make available a sufficient number of suitably
qualified and experienced personnel for attendance on the IPC
Information Systems Inc. training courses, detailed in Schedule 5, to
enable the Distributor to fulfil its obligations under this Agreement
for installation, maintenance and support for customers in the
Territory. The Distributor is to ensure thereafter that an adequate
number of fully trained personnel are available at any one time to
perform the Services to meet customer demand.
13. To carry out all Software and other Product upgrades as requested by
IPC Information Systems Inc.
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14. To obtain acceptance certificates from all customers and promptly
provide IPC Information Systems Inc. with a copy of the same.
D. SPARES HOLDING
1. IPC Information Systems Inc. shall recommend appropriate spares
holdings that the Distributor will be required to procure to support
customers on a case by case basis at the time the configured Products
are defined and the quotation submitted to the Distributor for those
Products.
2. Spares can be purchased from IPC Information Systems Inc. at the then
current Distributor list price which is issued separately. Orders for
spare and replacement parts shall be subject to a minimum order value
of $500.
Repair Costs
3. Faulty parts not covered under the terms of IPC Information Systems
Inc.'s warranty that are to be repaired under the repair return
procedure described in Schedule 6 (section B) to this Agreement shall
be repaired by IPC Information Systems Inc. at the then current repair
price list.
4. Subsequent to the warranty period the distributor is to pay to IPC 2%
of the CIF figure for all goods provided to the distributor. This
figure is to be pro-rated in 4 quarters for systems in warranty and is
payable on the 1st October annually.
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SCHEDULE 3 TO THE AGREEMENT
IPC INFORMATION SYSTEMS INC.'S OBLIGATIONS
Subject to and in accordance with this Agreement, IPC Information Systems Inc.
shall perform those obligations as detailed below as well as such other
obligations of IPC Information Systems Inc. as detailed within this Agreement
where the same are not mentioned below.
A. SALES ADMINISTRATION AND MARKETING
1. To provide agreed quotations as reasonably requested by the Distributor
and subject to acceptance of Purchase Orders to supply quantities of
the Products, at the quoted valid Prices. To use its reasonable
endeavours, where applicable, to provide market entry pricing, if such
is a new Territory from IPC Information Systems Inc.'s perspective and
to provide the Distributor with packaged pricing models where such are
developed by IPC Information Systems Inc. Prices will normally be
provided in US Dollars - if IPC Information Systems Inc. agrees to
provide Prices in other currencies IPC Information Systems Inc.
reserves the right to revise the same to reflect fluctuations in
relevant exchange rates.
2. To supply to the Distributor, at valid quoted Prices, the volume of
spare and replacement parts of the Products as the Distributor may
order necessary to meet the service needs of the Distributor's
customers in the Territory, such volume being previously agreed between
the Distributor and IPC Information Systems Inc.
3. To agree with the Distributor an annual marketing plan which shall
contain relevant details of joint strategy and details of agreed
actions to be performed by the Parties during the course of the
following twelve (12) month period.
4. To provide Product brochures, news of Product updates and results of
relevant market surveys (if any) as may apply to the Territory. IPC
Information Systems Inc. shall also assist the Distributor, to the
extent it is reasonably able to do, with the development of the
Distributor's own market communication plans.
5. To share sales information from other territories to the extent that
the same are relevant to the Territory to support local sales, to use
its reasonable endeavours to leverage local business from IPC
Information Systems Inc.'s global customers as might be present in the
Territory and to visit the Territory from time to time to participate
in sales review meetings and to assist with specific and pre-agreed
major sales.
6 At IPC Information Systems Inc.'s discretion and subject to a minimum
of two (2) working days notice, to provide specialist sales support in
the Territory upon the request of the Distributor and at the
Distributor's expense. Such expense to the Distributor shall comprise
the travel, accommodation and subsistence costs of any specialist staff
provided by IPC Information Systems Inc. to render such support and any
additional materials provided.
7. Where IPC Information Systems Inc. determines that assistance is
reasonably required by the Distributor with (i) the installation and
commissioning of the Products at the first two (2) customer sites in
the Territory; (ii) the installation and commissioning of new products
or significant changes made to the Products; or (iii) subsequent to (i)
and (ii), then IPC Information Systems Inc. shall, subject to the
Distributor paying IPC Information Systems Inc. its quoted charges for
the provision of such assistance, use its reasonable endeavours to
provide such assistance.
8. Where a customer requires provision of IPC Information Systems Inc.
involvement in training and such has been pre-agreed with IPC
Information Systems Inc., IPC Information Systems Inc. will use its
reasonable endeavours to assist, subject to the customer agreeing in
writing to paying IPC Information Systems Inc.'s charges for the same.
9. To provide, at the Distributor's request and expense, any of the
Products for trials at a customer's premises for a minimum period of
three (3) months. Such an arrangement shall be subject to IPC
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Information Systems Inc.'s agreement on a case by case basis and shall
not constitute a sale for the purposes of establishing whether agreed
volumes of sales have been achieved.
B. SUPPORT
1. To provide a third-line support help desk which can be called by the
Distributor during normal office hours as follows: 08.30 to 17.00 US
time Monday to Friday, excluding public and bank holidays. Priority
levels of reported faults shall be determined by IPC Information
Systems Inc. according to the following:
Emergency - service critical
High - service affecting
Medium - non-service affecting
Enquiry -
Between the hours of 08.30 - 17.00 US time Monday to Friday excluding US public
holidays the IPC Information Systems Inc. help desk can be contacted on:
Tel: x0 (000) 000-0000
Outside these hours a voicebank facility is available. The Distributor should
leave a message giving the person's name, Distributor's name, telephone number,
customer's name and a brief description of the problem. The on-call engineer
will be paged and will respond as soon as reasonably possible.
Between the hours of 17.00 - 08.30 US time Monday to Friday and all day Saturday
and Sunday the IPC Information Systems Inc. voicebank can be contacted on:
Tel: x0 (000) 000-0000
All times quoted are US Eastern Standard Time. The Distributor must make
allowance for changing to US Eastern Daylight Savings Time and any local
deviations.
2. To provide agreed training at IPC Information Systems Inc.'s expense
and at a place nominated by IPC Information Systems Inc., to key
technical and sales personnel of the Distributor as detailed in
Schedule 5.
3. To provide the Distributor with such quantities of technical
information written in the English language as IPC Information Systems
Inc. determines is necessary to enable the Distributor to promote and
support sales of the Products in the Territory.
4. To provide advice in regards to room configuration and site
requirements.
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SCHEDULE 4 TO THE AGREEMENT
IPC INFORMATION SYSTEMS INC.'S CONDITIONS OF SALE
The following are IPC Information Systems Inc.'s Standard Conditions as of the
date of signature of this Agreement. IPC Information Systems Inc. reserves the
right to amend these without prior notice.
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Conditions for the Export Sale of Equipment
1. Definitions and Application
"IPC Information Systems Inc." means IPC Information Systems Inc.
"Contract" means these conditions.
"Customer" means Trade Wind Marketing Pty Ltd.
"Equipment" means the things sold or supplied by IPC
Information Systems Inc. to the Customer
under the Contract and includes any
software.
"IPC Group Company" means any company which
directly or indirectly controls or is
controlled by IPC Information Systems, Inc.,
whether through the holding or controlling
of a majority of the voting rights or the
right to appoint or remove a majority of the
board of directors, or otherwise.
2. Content of Contract
2.1 No variation of these Conditions will have effect unless agreed in
writing by IPC Information Systems Inc. and the Customer. These
Conditions will not be varied or replaced by any contract terms
proposed by the Customer.
2.2 No employee of IPC Information Systems Inc. or its agents has authority
to make any warranty, statement or promise concerning the Equipment
except in writing signed by a duly authorised employee of IPC
Information Systems Inc.
2.3 Except where the Customer relies on IPC Information Systems Inc.'s
written advice, it is the Customer's responsibility to satisfy itself
as to the suitability of the Equipment for its needs.
2.4 IPC Information Systems Inc. may make minor alterations to the
specification of the Equipment which do not affect the Equipment's
performance.
3. Consents: Installing The Equipment; Access; Use Of Agent
3.1 This paragraph 3 applies only if the Customer requires installation of
the Equipment.
3.2 The Customer will at its own expense, and in advance of any
installation work:
(a) obtain all necessary consents for the installation and use of the
Equipment, including consents for any necessary alterations to
buildings;
(b) ensure that any floor loading limits will not be exceeded;
(c) provide suitable accommodation, foundations and environment for the
Equipment; including all necessary bunking, conduits and cable trays;
(d) provide electric power needed by IPC Information Systems Inc. in
installing, testing and maintaining the Equipment;
(e) provide a suitable and safe working environment for IPC Information
Systems Inc. personnel and those of its agents;
(f) take up or remove, in time to allow IPC Information Systems Inc. to
carry out installation, any fitted or fixed floor coverings, ceiling
tiles, suspended ceilings and partition covers, and carry out
afterwards any making good or decorator's work required.
3.3 Employees of IPC Information Systems Inc. will observe the Customer's
reasonable site regulations previously advised in writing to IPC
Information Systems Inc. In the event of any conflict between such site
regulations and these Conditions the latter will prevail.
3.4 The Customer will provide IPC Information Systems Inc. at all
reasonable times with full and convenient access to the Customer's and
other premises for the purposes of carrying out IPC
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Information Systems Inc.'s obligations under this Contract. IPC
Information Systems Inc. will normally carry out work during its usual
working hours but may, on reasonable notice, require the Customer to
provide access at other times. At the Customer's request IPC
Information Systems Inc. may agree, exceptionally, to work outside
usual working hours; the Customer will pay IPC Information Systems
Inc.'s reasonable charges for complying with such request.
3.5 At its discretion IPC Information Systems Inc. may employ an agent or
agents to fulfil its obligations in relation to installation.
4. Connection to Network
Installation of the Equipment under this Contract does not include
connection to a telecommunications network. Where the Equipment is to
be connected to a telecommunications network or circuit run by IPC
Information Systems Inc. or a third party, it is the Customer's
responsibility to arrange for such connection to be made, to pay any
connection charge and to comply with any conditions relating to
connection.
5. Delivery and Acceptance
5.1 IPC Information Systems Inc. will deliver the Equipment CIP Incoterms
1990 Edition.
5.2 Where the Equipment is to be delivered or ready for service by a date
specified by the Customer or by IPC Information Systems Inc., such date
is to be treated as an estimate only and IPC Information Systems Inc.
will not have any liability to the Customer for failure to meet that
date.
5.3 If IPC Information Systems Inc. is delayed in or prevented from
delivering or installing the Equipment by any date specified under
paragraph 5.2 due to any delay or default on the part of the Customer,
IPC Information Systems Inc. may (in addition to any other remedies) on
written notice to the Customer, add to the Contract price a reasonable
sum in respect of any additional costs it incurs.
5.4 Where the Equipment is installed under this Contract, but not
otherwise, IPC Information Systems Inc. will carry out any tests
necessary to ensure that the Equipment is in working order. Acceptance
of the Equipment by the Customer will take place on the Acceptance Date
which will be the earlier of:
(a) the date when IPC Information Systems Inc. notifies the
Customer that the Equipment has been made available to the
Customer; or
(b) the date when the Customer begins to use the Equipment.
5.5 Minor faults which do not affect the Equipment's performance will not
prevent the Equipment from being accepted by the Customer, but IPC
Information Systems Inc. will remedy such minor faults within a
reasonable time.
6. Ownership and Risk
6.1 The risk of loss or damage to the Equipment will pass to the Customer
at the time and point defined in Incoterms 1990, as specified in
paragraph 5.1.
6.2 Ownership of the Equipment, excluding any software, will pass to the
Customer on payment of the Contract price in full. At all times before
payment in full:
(a) the Equipment will stand in the Customer's books in the name
of IPC Information Systems Inc.;
(b) the Customer will take appropriate steps to notify third
parties of IPC Information Systems Inc.'s interest in the
Equipment.
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6.3 In the event of threatened seizure of the Equipment, or of appointment
of a receiver or liquidator, or any other event entitling IPC
Information Systems Inc. to terminate this Contract under paragraph 13
the Customer will immediately notify IPC Information Systems Inc. and
IPC Information Systems Inc. will be entitled to enter the Customer's
premises and repossess the Equipment.
7. Limited Warranty
7.1 Subject to the provisions of this paragraph 7, IPC Information Systems
Inc. warrants that each item of Equipment purchased by Distributor will
conform to its written specifications and will be free from defects in
materials and workmanship for a period of twelve (12) months (or any
other period notified to the Customer by IPC Information Systems Inc.)
from the Acceptance Date (the "Warranty Period"). If IPC Information
Systems Inc. is notified of a warranty claim during the Warranty
Period, IPC Information Systems Inc. will replace or (at its option)
repair the faulty part free of charge, provided that:
(a) the Equipment has been properly kept, installed, tested, used
and maintained in strict accordance with the manufacturer's or
IPC Information Systems Inc.'s instructions, if any, and has
not been modified except with IPC Information Systems Inc.'s
prior written consent;
(b) the fault is not due to damage (including lightning and
electrical damage), interference with or maintenance of the
Equipment by persons other than IPC Information Systems Inc.
or its agents;
(c) the fault is not due to a fault in a design or configuration
provided by the Customer.
7.2 This warranty does not cover fair wear and tear.
7.3 In the case of Equipment capable of being removed by the Customer, the
Customer will be required to return faulty Equipment to IPC Information
Systems Inc. freight prepaid. IPC Information Systems Inc. will replace
or repair the faulty Equipment and send back it back to the Customer
freight prepaid.
7.4 IPC Information Systems Inc. does not warrant that any software
supplied under this Contract will be free of all faults or that its use
will be uninterrupted, but IPC Information Systems Inc. will remedy
defects which significantly impair performance within a reasonable
time.
7.5 At its discretion IPC Information Systems Inc. may employ an agent or
agents to fulfil its obligations under this guarantee.
7.6 IPC Information Systems Inc. may make a reasonable charge in respect of
any visit or attempt, at the Customer's request, to repair the
Equipment where either no fault is found to exist, or the fault is not
covered by this warranty.
7.7 THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IPC INFORMATION
SYSTEMS INC. ' S SOLE OBLIGATION AND DISTRIBUTOR'S SOLE AND EXCLUSIVE
REMEDY FOR A BREACH OF THIS AGREEMENT OR OF ANY WARRANTY GRANTED HERE
UNDER SHALL, AT IPC INFORMATION SYSTEMS INC. ' S SOLE OPTION AND
EXPENSE, BE LIMITED TO THE REPAIR OR REPLACEMENT OF THE DEFECTIVE OR
NON-CONFORMING PRODUCT. NO AGENT OR EMPLOYEE OF IPC INFORMATION SYSTEMS
INC. IS AUTHORIZED TO EXTEND ANY REPRESENTATION OR WARRANTY BEYOND THAT
EXPRESSLY PROVIDED HEREIN. THIS WARRANTY SHALL BE SUBJECT TO IPC
INFORMATION SYSTEMS INC. ' S CONFIRMATION OF THE ALLEGED DEFECT OR
NON-CONFORMITY AND DOES NOT INCLUDE AND IPC INFORMATION SYSTEMS INC.
DISCLAIMS ANY LIABILITY FOR ANY LABOR OR PARTS REQUIRED TO REPAIR OR
REPLACE ANY PART OR COMPONENT OF A PRODUCT OR SYSTEM IF SUCH REPAIR OR
REPLACEMENT IS REQUIRED AS A RESULT OF ANY FORCE MAJEURE EVENT, OR
ATTACHMENT, ALTERATION, MISUSE, TAMPERING, ACCIDENT, OR ABUSE OF THE
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PRODUCTS BY DISTRIBUTOR, CUSTOMER OR ANY THIRD PARTY. ANY SUCH EVENT
OR ACTION SHALL VOID IPC INFORMATION SYSTEMS INC.'S WARRANTY GRANTED
HEREUNDER.
7.8 Distributor shall be responsible for that portion of any warranty it
grants to any Customer without IPC Information Systems Inc.' s prior
written approval which exceeds, whether in time or in scope, that
provided to Distributor by IPC Information Systems Inc. under the terms
of this Agreement. Distributor shall indemnify and hold harmless IPC
Information Systems Inc. for any and all losses, damages, expenses and
costs, including attorneys' fees, which arise from or relate to any
claims, actions or proceedings brought by or threatened to be brought
by any Customer in connection with such extended warranties.
8. Software and Documentation
[NOTE: THESE PROVISIONS ARE SUBJECT TO REVISION]
8.1 This paragraph 8 does not apply to the extent that it is inconsistent
with any separate software licence, sublicense or agreement made
between the Customer and (i) any IPC Group Company, (ii) any
Distributor of IPC Products, or (iii) any third party licenser of
software provided in connection with the sale, installation, operation
or maintenance of Products.
8.2 The intellectual property rights in all software, operating manuals,
documents, drawings and information ("the Intellectual Property")
supplied to the Customer remain IPC Information Systems Inc.'s property
or that of IPC Information Systems Inc.'s licensor.
8.3 IPC information Systems Inc. grants the Customer a non-exclusive
non-transferable licence or sublicense to use the Intellectual Property
for the purpose of using the Equipment and for no other purpose. Any
Intellectual Property supplied to the Customer must not be copied,
disclosed or used (except for the purpose for which they are supplied)
without IPC Information Systems Inc.'s written consent.
8.4 The Customer must:
(a) not reproduce the software except to the extent strictly
necessary for proper use of the Equipment and for back-up
purposes, any such permitted reproduction being solely in
object code form;
(b) keep the Intellectual Property in confidence; any disclosure
of it by the Customer is to be made in confidence and only to
the extent strictly necessary for the proper use of the
Equipment. The Customer is responsible for ensuring that such
disclosure does not lead to a breach of this paragraph.
8.5 The Customer must not make modifications to the Software without IPC
Information Systems Inc.'s prior written consent. The intellectual
property rights, including copyright, in any permitted modifications
will vest in IPC Information Systems Inc.
8.6 The Customer agrees to sign any agreement reasonably required by the
owner of intellectual property in the software supplied to the Customer
under this Contract for the protection of that Software.
9. Indemnity
9.1 Subject to the provisions of this paragraph 9, IPC Information Systems
Inc. will indemnify the Customer against all claims and proceedings
arising from infringement(or alleged infringement) of any patent,
design or copyright enforceable in the United States of America, by
reason of the Customer's use or possession of the Equipment. As a
condition of this indemnity the Customer will:
(a) notify IPC Information Systems Inc. promptly in writing of any
allegation of infringement;
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(b) make no admission relating to the infringement; and
(c) allow IPC Information Systems Inc. to conduct all negotiations
and proceedings and give IPC Information Systems Inc. all
reasonable assistance.
9.2 If at any time an allegation of infringement of such patent, design or
copyright is made, IPC Information Systems Inc. may at its own expense
(i) procure for the Customer the right to continue to use the
Equipment, (ii) modify the Equipment so as to avoid the infringement,
or (iiI) replace the Equipment with non-infringing goods, provided that
any such modification or replacement does not affect the Equipment's
performance in a material respect.
9.3 The indemnity in paragraph 9.1 does not apply to infringements
occasioned by the Customer's use of the Equipment in conjunction with
other apparatus or software not supplied by IPC Information Systems
Inc.; nor to infringements occasioned by designs or specifications made
by the Customer. The Customer will indemnify IPC Information Systems
Inc. against claims, proceedings and expenses arising from such
infringements.
9.4 The indemnity referred to in paragraph 9.1 above shall be subject to
the extent of the indemnity being limited to one million ($1,000,000)
US Dollars in respect of all settlements or claims and proceedings (i)
in any period of twelve (12) calendar months or (ii) which relate to
the same or similar facts or events.
9.5 The indemnity referred to in paragraph 9.1 above states IPC Information
Systems Inc.'s entire liability in respect of any infringement or
alleged infringement of third party intellectual property rights and is
in lieu of and replaces all other warranties in that respect including
implied warranties.
10. Charges And Payment
10.1 IPC Information Systems Inc. will invoice the Customer on the Delivery
Date (CIP Incoterms 1990 Edition. The Customer will pay within 30 days
of the invoice date. IPC Information Systems Inc. may charge daily
interest on late payments at a rate equal to 4% per annum above the
Base Lending Rate of Bank of New York.
10.2 Unless otherwise stated, prices and charges are in US Dollars, for
delivery to the point mentioned in 5.1. They do not include Value Added
Tax which will be added if appropriate. They include packing to IPC
Information Systems Inc.'s normal export standards.
10.3 Payment will be in US Dollars to IPC Information Systems Inc.'s
nominated bank account in the United States of America unless otherwise
agreed in writing.
10.4 IPC Information Systems Inc. will be entitled to maintain an action for
the price of the Equipment at any time after payment becomes due even
though ownership of the Equipment has not passed to the Customer.
11. Limitation of Liability
11.1 IPC Information Systems Inc. accepts liability for faults in the
Equipment and for IPC Information Systems Inc.'s own negligence, but
only to the extent stated in paragraph 7 and this paragraph 11. Except
where expressly contained in these Conditions IPC Information Systems
Inc. has no obligation, duty or liability in contract, tort (including
negligence) or otherwise.
11.2 IPC Information Systems Inc. does not exclude or restrict its liability
for death or personal injury resulting from its negligence.
11.3 IPC Information Systems Inc.'s liability to the Customer in contract,
tort (including negligence) or otherwise arising in connection with
this Contract is limited to US $1,000,000.
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11.4 IPC Information Systems Inc. will not be liable to the Customer in
contract, tort (including negligence) or otherwise for any loss
(whether direct or indirect) of profits, business, or anticipated
savings, or for any indirect or consequential loss or damage whatever.
11.5 Each provision of this paragraph 11 limiting or excluding liability
operates separately in itself and survives independently of the others.
12. Matters beyond IPC Information Systems Inc.'s reasonable control
IPC Information Systems Inc. is not liable for any breach of this
Contract caused by matters beyond IPC Information Systems Inc.'s
reasonable control, including Acts of God, fire, lightning, explosion,
war, disorder, flood, industrial disputes (whether or not involving IPC
Information Systems Inc.'s employees), weather of exceptional severity
or acts of local or central Government or other authorities.
13. Termination
13.1 IPC Information Systems Inc. has the right to terminate this Contract
without notice and claim for any resulting losses and expenses if the
Customer:
(a) commits a breach of this Contract or any other contract with
IPC Information Systems Inc., that is capable of remedy, and
fails to remedy the breach within a reasonable time after
written notice to do so; or
(b) commits an irremediable breach of this Contract or any other
contract with IPC Information Systems Inc.; or
(c) is the subject of a bankruptcy order, or becomes insolvent, or
makes any arrangement or composition with or assignment for
the benefit of its creditors, or if any of its assets are the
subject of any form of seizure, or goes into liquidation,
either voluntary (otherwise than for reconstruction or
amalgamation), or compulsory, or has a receiver or
administrator appointed over its assets, or any similar event
occurs under the laws of the jurisdiction where the Customer
was incorporated.
13.2 If IPC Information Systems Inc. delays in acting upon a breach of this
Contract by the Customer that delay will not be regarded as a waiver of
that breach. If IPC Information Systems Inc. waives a breach of this
Contract by the Customer, that waiver is limited to that particular
breach.
14. Export Control
14.1 The Customer may receive equipment, software, services, technical
information, training materials or other technical data ("the
Controlled Supplies") which, because of their origin or otherwise are
subject to the United States of America export control regulations or
the laws or regulations of another country. In such case, provision of
the Controlled Supplies shall be conditional upon the parties obtaining
and providing all necessary consents. The parties shall provide
reasonable assistance to each other to obtain such consents.
14.2 The Customer agrees to comply with any applicable export or re-export
laws or regulations, including obtaining written authority from the US
government if the Customer intends at any time to re-export any items
of US origin to any proscribed destination.
15. Assignment
Neither the Customer nor IPC Information Systems Inc. may assign or
transfer any of their rights or obligations under this Contract,
without the written consent of the other, save that IPC Information
Systems Inc. may without consent assign or transfer its rights or
obligations to any IPC Group Company or to any company where an IPC
Group Company has effective control.
16. Applicable Law, Jurisdiction and Arbitration
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16.1 The construction, validity and performance of this Contract shall be
governed in all respects by the substantive law of the State of New
York, USA applicable to agreements to be made and performed therein.
The parties hereby submit to the nonexclusive jurisdiction of the
courts of the State of New York and the federal courts of the USA
located therein.
16.2 Any bona fide dispute arising out of or relating to this Contract or
the breach, termination or validity thereof, which has not been
resolved within sixty (60) days of notice thereof by the party claiming
a dispute, shall be finally settled by arbitration conducted in
accordance with the International Arbitration Rules of the American
Arbitration Association by three independent and impartial arbitrators,
of whom each party shall appoint one.
16.3 The place of arbitration shall be the State of New York, County of New
York, U.S.A. and all proceedings shall be in English. The arbitration
shall be governed by the substantive law of the State of New York,
exclusive of its conflict of laws rules, and the law applicable to the
arbitration procedure shall be the United States Arbitration Act, 9
U.S.C. Section 1 et seq. Judgment upon the award rendered by the
arbitrators may be entered by any court having jurisdiction thereof.
16.4 The parties agree that (i) the award of the arbitrators shall be the
sole and exclusive remedy between them regarding any claims,
counterclaims, issues or accountings presented or pled to the
arbitrators; that is shall be made and shall promptly be payable in
U.S. dollars free of any tax, deduction or offset; and that any costs,
fees, or taxes, incident to enforcing the award shall, to the maximum
extent permitted by law, be charged against the party resisting such
enforcement; and (ii) the procedures specified in this paragraph 16
shall be the sole and exclusive procedures for the resolution of
disputes between the parties arising out of or relating to this
Contract; provided however, that a party may seek a preliminary
injunction, attachments or other provisional judicial relief if such
action is necessary to avoid irreparable damage or to preserve the
status quo. Despite such action, the parties will continue to
participate in good faith in the procedures specified in this paragraph
16.
CONFIDENTIAL
SCHEDULE 5 TO THE AGREEMENT
TRAINING
1. Providing the Distributor makes a minimum of three (3) of its staff
available, IPC Information Systems Inc. shall make available to the
Distributor three (3) places on a training course, at a place to be
designated by IPC Information Systems Inc., but normally within the
United States of America, free of charge covering (i) an initial
introductory training course when the parties enter into this Agreement
and (ii) for each new product range introduced into the Territory for
distribution by the Distributor. All costs for wages, travel and
subsistence for the Distributor's staff shall be payable by the
Distributor and not IPC Information Systems Inc.
2. IPC Information Systems Inc. shall make available two (2) places on a
sales training course to be held at a place to be designated by IPC
Information Systems Inc. in the United States of America. All costs for
wages, travel and subsistence for the Distributor's staff shall be
payable by the Distributor and not IPC Information Systems Inc.
3. Any courses subsequently required by the Distributor, including but not
limited to refresher training and any training that the parties agree
shall take place in the Territory shall be chargeable (trainer's fees,
travel, subsistence and accommodation) by IPC Information Systems Inc.,
payable by the Distributor.
4. Only personnel proficient and suitably qualified to enable an
understanding of the basic principles underlying such product
installation, maintenance and support training shall be permitted to
attend.
5. All training shall be in the English language and all documentation
provided shall be in English. If any interpreter is required by IPC
Information Systems Inc., provision shall be the sole responsibility of
the Distributor.
CONFIDENTIAL
SCHEDULE 6 TO THE AGREEMENT
REPAIR RETURN PROCEDURE
1. Introduction
1.1 When it is necessary to return any item of the Products supplied by IPC
Information Systems Inc. the following "Repair Return Procedure" shall
be followed. This procedure covers the standard exchange and return
service.
1.2 The Distributor shall order such spares stockholding as recommended by
IPC Information Systems Inc. for the purpose of ensuring that its
maintenance support obligations to the customer are met.
2. Procedures for return of Products
2.2 Prior to shipment of any item for maintenance exchange, the Distributor
shall send a Maintenance Exchange Request (MEX Request) to IPC
Information Systems Inc. by fax on XXXXX detailing the following
information:
a) The Distributor's MEX account number
b) The IPC Information Systems Inc. partcode and description
c) Name of site and customer
d) Quantity of replacements required
e) The Distributor's fault label reference
f) The proposed shipping details
g) Serial number of the Product
2.2 The faulty Product shall be returned to:
IPC INFORMATION SYSTEMS INC.
[Address]
2.3 All Products returned must be properly packaged to prevent any damage
in transit and have enclosed a fault label in a format to be provided
by IPC Information Systems Inc. The information regarding the fault
supplied on the fault label by the Distributor must be sufficient to
enable the repair to be investigated evaluated.
2.4 Full and complete shipping documents must be enclosed with the
equipment returns comprising:
a) Packing list
b) Pro-forma invoice
c) MEX reference number
d) Fault label for each item
e) Copy of the MEX Request
2.5 The Distributor shall be responsible for all insurance and
transportation costs and customs duties that may be thereby incurred
and suffer the risk of loss or damage to the Products whilst in
transit.
3. Exchange and Return Service
3.1 On receipt of faulty Products from the Distributor at the address
specified in paragraph 2.2 (properly packaged and with all appropriate
documentation as required herein) IPC Information Systems Inc. will,
subject as herein provided, use its reasonable endeavours to deliver
replacement equipment CIP (Incoterms 1990) to the port of import in the
Territory, for collection by the Distributor, within 30 days from such
receipt.
3.2 Any Products (or any parts of a Product) returned to IPC Information
Systems Inc. under these exchange and return arrangements shall (upon
replacement) become the property of IPC Information
CONFIDENTIAL
Systems Inc. and the Distributor warrants either that it shall have a
free and unencumbered title to such Products or (where the equipment is
leased or charged) that it shall have obtained all necessary consents
to part with possession and give good title to such equipment to IPC
Information Systems Inc.
4. IPC Information Systems Inc. Warranty on Replacement Products
4.1 If, during the period of three (3) months (or such other period as IPC
Information Systems Inc. and the Distributor may agree in writing) from
when replacement Products leave IPC Information Systems Inc.'s
warehouse for delivery CIP to the Distributor, or within the original
warranty period, whichever is the greater, IPC Information Systems Inc.
is notified of a fault in the replacement Products, IPC Information
Systems Inc. will replace (or at its option) repair the faulty part
free of charge provided that :
4.1.1 the Products have been properly installed, tested kept, used
and maintained in strict accordance with the manufacturers or
IPC Information Systems Inc.'s instructions (if any) and has
not been modified except with IPC Information Systems Inc.'s
prior consent;
4.1.2 the fault is not due to accidental or wilful damage (including
lightning) or any damage caused by mains electrical surges or
failures or electromagnetic interference.
4.2 It will be the Distributor's responsibility to return faulty equipment
to IPC Information Systems Inc. at the address specified in paragraph
2.2 at its own expense (in accordance with Clause 2 to this Schedule 6)
unless IPC Information Systems Inc. agrees otherwise.
4.3 As it is not possible for Software to be tested in every possible
permutation IPC Information Systems Inc. does not warrant that Software
supplied in replacement Products will be free of all faults or that its
use will be uninterrupted but defects which significantly impair
performance will be remedied under this warranty.
4.4 Where applicable IPC Information Systems Inc. does not warrant or
accept liability for calibration of replacement Products nor for the
provision, procurement or replacement of test certificates.
4.5 The parties may, at their discretion (but without absolving themselves
from any contractual responsibility) appoint an agent, agents or
sub-contractors to perform their respective obligations under this
paragraph 4.
5. Return of Replacement Products to the Distributor
5.1 IPC Information Systems Inc. will notify the Distributor as soon as
replacement Products are sent out from IPC Information Systems Inc.'s
warehouse at ________________________.
5.2 IPC Information Systems Inc. will package all replacement Products and
send them CIP (Incoterms 1990) to the port of import in the Territory.
5.3 IPC Information Systems Inc. will supply a packing list (of the
Products) and a shipping invoice.
6. Charges for Replacement Products
6.1 The charges for replacement Products will be the rates set by IPC
Information Systems Inc. from time to time.
6.2 New Product (spares) prices and the repair prices if issued by IPC
Information Systems Inc. will apply for a period of 12 months from the
date of their formal issue within IPC Information Systems Inc., (not
necessarily 12 months from the date of this Agreement). Thereafter such
prices may be revised by IPC Information Systems Inc. from time to
time, IPC Information Systems Inc. giving at least 3 months written
notice to the Distributor.
6.3 All charges are exclusive of VAT, other applicable sales taxes and
duties.
CONFIDENTIAL
6.4 Upon payment of the extended warranty amount, then all items will be as
per warranty.
7. Payment Terms
7.1 IPC Information Systems Inc. will invoice the Distributor annually on
the 1st October for the following year's extended warranty period.
7.2 Invoices shall be paid by the Distributor to IPC Information Systems
Inc. in US Dollars within 30 days of the date of the invoice.
8. Damaged/Incomplete Product Returns
8.1 If Products are returned to IPC Information Systems Inc. (whether or
not under IPC Information Systems Inc. warranty) without a fault label
or without adequate details on a fault label, or are returned damaged,
incorrectly packaged or incomplete (meaning component parts have been
removed or modified by the Distributor or the Distributor's customer
without prior written consent from IPC Information Systems Inc.) then
any warranty is automatically invalidated.
8.2 Replacement Products shipped to the Distributor pursuant to paragraph
8.1 of this Schedule 6 will be charged at the then current price.
9. Substitute Products
9.1 IPC Information Systems Inc. reserves the right to replace faulty
Products with replacement products which do not have an identical
specifications provided that the replacement product is of a similar
quality and has a similar performance capability.
CONFIDENTIAL
SCHEDULE 7 TO THE AGREEMENT
SOFTWARE LICENSE
Subject to the terms contained in this Software License, IPC Information Systems
Inc. grants to Licensee a nonexclusive, perpetual, non-transferable, paid-up
license (I)to use the Software furnished pursuant to the Agreement which is
proprietary to IPC Information Systems Inc. or its suppliers, contained as an
integral part of the Products; and (2) to install and use each item of Software
not an integral part of the Products; and (3) to use the associated
documentation. Licensee is granted no title or ownership rights in or to the
Software, which rights shall remain with IPC Information Systems Inc. or its
suppliers.
IPC Information Systems Inc. considers the Software to contain Intellectual
Property Rights and other proprietary and Confidential Information of IPC
Information Systems Inc. and/or its suppliers. Such rights and Information
include, without limitation thereto, the specific design, structure and logic of
individual Software programs, their interactions with other portions of
Software, both internal and external, and the programming techniques employed
therein. In order to protect those rights and maintain the confidential and
proprietary status of the information contained within the Software, the
Software is being delivered to Licensee in object code form only. IPC
Information Systems Inc. or its suppliers holding any intellectual property
rights in the Software, and/or any third party owning any intellectual property
rights in software from which the Software was derived, are intended third party
beneficiaries of this Software License. All grants of rights to use intellectual
property intended to be accomplished by this Software License are explicitly
stated and no additional grants of such rights shall be inferred or created by
implication.
Licensee shall:
X hold the Software in confidence for the benefit of IPC Information
Systems Inc. and/or its suppliers;
X keep a current record of the location of each copy of the Software made
by Licensee;
X affix to each copy of Software made by it, in the same form and
location, a reproduction or the copyright notices, trademarks and all
other proprietary legends and/or logos of IPC Information Systems Inc.
and/or its suppliers, appearing on the original copy of such Software
delivered to Licensee, and retain the same without alteration on all
original copies;
X destroy the Software and all copies at such time as Licensee chooses to
permanently cease using it.
Licensee shall not:
X use the Software (i) for any purpose other than Licensee' s own
internal business purposes and (ii) other than as provided by this
License;
X allow anyone other than Licensee' s employees and agents to have
physical access to the Software;
X make any copies of the Software, except such limited number of object
code copies in machine readable form only as may be reasonably
necessary for execution or archival purposes;
X make any modifications, enhancements, adaptations or translations to or
of the Software;
X attempt to reverse engineer, disassemble, reverse translate, decompile,
or in any other manner decode the Software in order to derive the
source code form or for any other reason.
Licensee may assign collectively its rights under this Software License to any
subsequent owner of the Products, but not otherwise. No such assignment shall be
valid until Licensee (a) has delegated all of its obligations under this
Software License to the assignee; (b) has obtained from the assignee an
unconditional written assumption of all such obligations; (c) has provided IPC
Information Systems Inc. a copy of such assignment, delegation and assumption;
and (d) has transferred physical possession of all Software and all associated
documentation to the assignee and destroyed all of Licensee' s archival copies.
Except as provided above, neither this Software License nor any rights acquired
by Licensee through this Software License are assignable. Any attempt at
assignment of rights and/or transfer of Software which do not strictly comply
with the terms herein shall be void and conclusively presumed a material breach
by Licensee.
IPC Information Systems Inc. warrants that the Software as delivered shall be of
good quality and workmanship for a period of twelve (12) months from the
Acceptance Date. EXCEPT FOR THE LIMITED WARRANTY SET FORTH HEREIN, THE SOFTWARE
IS PROVIDED "AS-IS" AND WITHOUT
CONFIDENTIAL
WARRANTY OR INDEMNITY OF ANY KIND OR NATURE. IPC INFORMATION SYSTEMS INC.
SPECIFICALLY DISCLAIMS AND BUYER SPECIFICALLY WAIVES ALL WARRANTIES EXPRESSED OR
IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE OR DEFECTS IN THE
TAPE, DISKETTE OR OTHER PHYSICAL MEDIA AND DOCUMENTATION, OPERATION OF THE
SOFTWARE, AND ANY PARTICULAR APPLICATION OF USE OF THE SOFTWARE. LICENSEE
ACKNOWLEDGES THAT THIS LIMITATION OF WARRANTIES WAS A MATERIAL FACTOR IN THE
ESTABLISHMENT OF THE PURCHASE PRICE OF THE PRODUCTS, WHICH PRICE INCLUDES THE
LICENSE FEE.
REGARDLESS OF WHETHER ANY REMEDY HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE, IPC
INFORMATION SYSTEMS INC. SHALL NEVER BE LIABLE ON ACCOUNT OF ANY CLAIM OR CAUSE
OF ACTION OF ANY KIND INCLUDING BUT NOT LIMITED TO TORT, CONTRACT, STRICT
LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY OR OTHERWISE, UNDER THIS
SOFTWARE LICENSE OR OTHERWISE TO OR THROUGH LICENSEE FOR INDIRECT,
CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT
LIMITED TO LOSS OF BUSINESS OR BUSINESS INFORMATION, BUSINESS INTERRUPTION, LOST
PROFITS OR OTHER ECONOMIC DAMAGE, EVEN IF IT HAS BEEN ADVISED OF, HAD REASON TO
KNOW, SHOULD HAVE KNOWN OR KNEW OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE
ACKNOWLEDGES THAT THE FOREGOING SENTENCE REFLECTS AN INFORMED, VOLUNTARY
ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST
IN CONNECTION WITH THIS SOFTWARE LICENSE, THAT SUCH VOLUNTARY RISK ALLOCATION
WAS A MATERIAL PART OF THE BARGAIN BETWEEN THE PARTIES AND THAT THE ECONOMIC AND
OTHER TERMS OF THIS LICENSE WERE NEGOTIATED AND AGREED TO BY THE PARTIES IN
RELIANCE ON SUCH VOLUNTARY RISK ALLOCATION.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IPC INFORMATION SYSTEMS INC.' S
SOLE LIABILITY AND LICENSEE'S SOLE AND EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL
BE IPC INFORMATION SYSTEMS INC. ~ S USE OF REASONABLE EFFORTS TO CORRECT ERRORS
IN THE SOFTWARE OR, IN IPC INFORMATION SYSTEMS INC. ~ S SOLE DISCRETION, TO
REFUND THAT PORTION OF THE PURCHASE PRICE, AS DEPRECIATED ON LICENSEE' S BOOKS,
APPLICABLE TO THE PORTION OF THE SOFTWARE WHICH IS DEFECTIVE.
All Software corrective revisions generally adopted by IPC Information Systems
Inc. during the Warranty Period shall be provided to Licensee at no cost. All
Software enhancements (Upgrades) developed by IPC Information Systems Inc.
during the Warranty Period shall be made available to Licensee at IPC
Information Systems Inc.' s current list price.
In the event of a breach of this Software License by Licensee, Licensee shall be
deemed to have agreed that remedies available at law may not be adequate to
protect the interests of IPC Information Systems Inc. and/or IPC Information
Systems Inc.'s suppliers who may be entitled to equity jurisdiction of the
courts.
