Exhibit 10.7
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OEM PURCHASE AGREEMENT #52-154
BY AND BETWEEN
HEWLETT-PACKARD COMPANY
AND
ION Networks, Inc.
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OEM PURCHASE AGREEMENT
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THIS AGREEMENT is entered into between HEWLETT-PACKARD COMPANY, a Delaware
corporation ("HP") and ION NETWORKS, INC., a Delaware corporation, effective as
of April 13, 1999. The parties hereby agree as follows:
1. SCOPE OF AGREEMENT
1.1 General. This Agreement specifies the terms and conditions
under which Supplier will sell, license and support the OEM
Products listed in Exhibit A to this Agreement. The OEM
Products are regarded as "Original Equipment Manufacturer"
products that will either be sold separately or incorporated
into HP Products for resale, worldwide, under ION Networks,
Inc. label or under HP's private label. The OEM Products and
the HP Products will be marketed, serviced, and supported by
HP's field organization and channel partners, subject to the
marketing, service, and support obligations of ION Networks,
Inc. pursuant to this Agreement. All OEM products must be new,
except as otherwise provided by the parties.
1.2 Eligible Purchasers. This Agreement enables HP, HP
Subsidiaries and HP Subcontractors to purchase OEM Products
from ION Networks, Inc. under the terms of this Agreement or
any subsequent Product Addendum. Unless a Product Addendum
specifically refers to and amends a term of this Agreement,
the terms and conditions of this Agreement will control and
take precedence over any conflicting terms in a Product
Addendum.
1.3 Term Of Agreement. This Agreement will commence as of the
Effective Date and continue for a 1 year period, unless
terminated earlier under the terms of this Agreement. After
the initial Term, this Agreement will continue automatically
for 2 additional one-year periods, unless terminated upon 60
days notice prior to expiration of the initial term or of any
additional periods.
2. DEFINITIONS
The following capitalized terms will have these meanings throughout
this Agreement.
2.1 "Days" means calendar days unless otherwise specified herein.
2.2 "Delivery Date" means the date specified in an Order for the
delivery of OEM Products by Supplier to the destination
required under the Order.
2.3 "Documentation" means the user and technical manuals and other
documentation that Supplier will make available with the OEM
Products.
2.4 "Eligible Purchasers" mean those parties authorized to
purchase OEM Products under this Agreement as listed in
Section 1.2 above.
2.5 "Epidemic Failure" will mean those deviations which HP and ION
Networks, Inc. mutually agree impair the form, fit or function
of the product and which are evidenced by the same failure
occurring in the same series of products.
2.6 "Forecast" means HP's estimate of its purchase requirements
over a six-month period, or such other period designated by
the parties.
2.7 "HP Products" means the HP products or systems that will
incorporate the OEM Products and that will be marketed and
sold to end-user customers by HP and its distributors.
2.8 "HP Property" means all property, including without
limitation, models, tools, equipment, copies of designs and
documentation and other materials that may be furnished to ION
Networks, Inc. by HP or on HP's behalf or separately paid for
by HP for use by ION Networks, Inc. in connection with this
Agreement.
2.9 "Intellectual Property Rights" means all rights in patents,
copyrights, trade secrets, mask works, Marks and other similar
rights.
2.10 "Lead Time" means the time between the date an Order is
acknowledged by ION Networks, Inc. and the Delivery Date.
2.11 "Marks" means the trademarks, service marks, trademark and
service ▇▇▇▇ applications, trade dress, trade names, logos,
insignia, symbols, designs or other marks identifying a party
or its products.
2.12 "Noncomplying Product" means any OEM Product received by HP
that does not comply with the Specifications, Exhibit A or
Exhibit I or otherwise does not comply with the requirements
of an Order or other provisions of this Agreement.
Noncomplying Products include, without limitation, dead-on
arrival products, over shipment and early shipments.
2.13 "OEM Products" means the products listed in Exhibit A, all
related Documentation, Parts and other deliverables provided
pursuant to this Agreement.
2.14 "Orders" means a written or electronic purchase order or
release issued by HP to ION Networks, Inc. for purchase of the
OEM Products.
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2.15 "Parts" means the replacement parts, components, consumables
or other products that may be supplied in conjunction with or
as additions to the OEM Products.
2.16 "Product Addendum" means an addendum to this Agreement entered
into between ION Networks, Inc. and an Eligible Purchaser
naming additional OEM Products and product specific
requirements in addition to those requirements specified in
this Agreement.
2.17 "Software" means any software or firmware included or bundled
with the OEM Products, as designated in the description of OEM
Products in Exhibit A.
2.18 "Specifications" means the technical and functional
requirements for the OEM Products as specified or referenced
in Exhibit A or as agreed to by the parties in writing
addressed to the designated recipients specified in Exhibit G.
2.19 "Subcontractor" means a third party listed in Exhibit B that
may purchase OEM Products under the terms of this Agreement on
behalf of HP.
2.20 "Subsidiary" means an entity controlled by or under common
control with a party to this Agreement, through ownership or
control of more than 50% of the voting power of the shares or
other means of ownership or control, provided that such
control continues to exist.
2.21 "Support" means ongoing maintenance and technical support for
the OEM Products provided by Supplier to HP as more fully
described in Exhibit D.
2.22 "Technical Information" means ION Networks, lnc.'s
manufacturing information and technology deemed necessary by
HP to support OEM Products and to exercise any manufacturing
rights provided under this Agreement, including, but not
limited to: (i) specifications, software, schematics, designs,
drawings or other materials pertinent to the most current
revision level of manufacturing of the OEM Products; (ii)
copies of all inspection, manufacturing, test and quality
control procedures and any other work processes; (iii) jig,
fixture and tooling designs; (iv) ION Networks, Inc. history
files; (v) support documentation; and (vi) any additional
technical information or materials agreed to by the parties.
2.23 "Technical Materials" means jigs, fixtures and tools used by
Supplier to manufacture the OEM Products, and any production
software used in such manufacture.
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3. ORDER AND SHIPMENT OF OEM PRODUCTS
3.1 Orders. Each delivery of OEM Products will be initiated by an
Order issued to ION Networks, Inc. by HP. Each Order will
include (i) unit quantity; (ii) unit price; (iii) shipping
destination; (iv) Delivery Date; and (v) other instructions or
requirements pertinent to the Order. HP may schedule regular
intervals for deliveries by an appropriate Order setting forth
the intervals. To the extent of any inconsistency between the
terms of an Order and the terms of this Agreement, the terms
specified in this Agreement will control and take precedence.
3.2 Order Acknowledgment. An Order will be deemed to have been
placed as of the date of receipt of the Order by ION Networks,
Inc. ION Networks, Inc. will promptly confirm the receipt of
an Order electronically or through facsimile to HP within one
(1) working days. Orders within Forecasts and lead-time
requirements of this Agreement will be deemed accepted upon
receipt by ION Networks, Inc. For Orders exceeding Forecast,
ION Networks, Inc. will reject or acknowledge the order with
respect to the excess as soon as reasonably possible but
within two (2) working days. If a HP Order exceeds the
Forecast or shortens the lead-time, ION Networks, Inc. will
use its best efforts to fill such excess or accommodate such
shorter Lead Time.
3.3 Emergency Orders. If HP deems it necessary, HP may order OEM
Products by facsimile on an emergency basis ("Emergency
Order") subject to the availability of such OEM Products in
ION Networks, Inc.'s inventory. ION Networks, Inc. will use
commercially reasonable efforts to ship the emergency Order to
HP's stipulated destinations within one (1) business day after
recite by ION Networks, Inc. Subject to HP's approval, HP will
pay any additional expenses related to such Emergency Orders.
3.4 Forecasts. Upon the request of ION Networks, Inc., HP will
provide a six-month rolling Forecast of its projected Orders.
Any quantities listed in any Forecast or other correspondence
between the parties are only estimates made as an
accommodation for planning purposes and do not constitute a
commitment on HP's part to purchase such quantity. HP may
revise any Forecasts in its sole discretion.
3.5 Lead Time. ION Networks, Inc. will determine the Lead Time for
each OEM Product, which in no event will exceed 35 days
without HP's prior written consent. ION Networks, Inc. must
give HP no less than 35 days advance notice to approve or
reject any proposed increase in Lead Time.
3.6 Inventory Requirement. ION Networks, Inc. will maintain a
protective inventory equal to 10 percent (10%) of the average
monthly forecast for the most recent three (3) month rolling
forecast period of each OEM product. In addition, ION
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Networks, Inc. will maintain a protective inventory equal to
20 percent (20%) of the average monthly forecast of each
critical, single sourced or long lead-time component. If this
inventory is depleted, ION Networks, Inc. will replenish the
inventory as soon as possible after depletion. ION Networks,
Inc. will rotate its supply of OEM Products in inventory to
maintain a fresh stock of inventory.
Upon termination of this agreement or cancellation of orders,
ION Networks, Inc. will make commercially reasonable efforts
to mitigate the excess unique material listed in Exhibit H
prior to making a request of HP to pay for the excess. If the
excess unique materials cannot be mitigated by ION Networks,
Inc., ION Networks, Inc. will request that HP pay for
reasonable costs associated with the excess unique materials
required to meet the inventory requirements above. HP will
review the request paying reasonable costs within 30 days of
ION Networks, Inc. request.
3.7 Order Changes. HP may without charge postpone, decrease,
increase, or cancel any Order by notice to ION Networks, Inc.
at least fifteen (15) days prior to the Delivery Date. HP may
cancel an Order by notice to ION Networks, Inc. at any time
prior to then agreed lead-time for the OEM products ordered.
If HP postpones, decreases, or cancels an Order after such
time period, ION Networks, Inc. will be entitled to be
reimbursed by HP for actual costs incurred by ION Networks,
Inc. as a direct result of such postponement, decrease, or
cancellation that are not recoverable by the shipment of the
affected OEM Products or their raw materials to other
purchasers (subject to ION Networks, Inc. duty to remove HP
Marks as specified in Section 6.3 below) within a reasonable
period of time or the exercise by ION Networks, Inc. in a
commercially reasonable manner, of other mitigation measures.
3.8 Shipment Requirements. All Orders are required to be shipped
complete. ION Networks, Inc. will give HP immediate notice if
it knows that it cannot meet a Delivery Date or that only a
portion of the OEM Products will be available for shipment to
meet a Delivery Date. For partial shipments, ION Networks,
Inc. will ship the available OEM Products unless directed by
HP to reschedule shipment. If ION Networks, Inc. ships any OEM
Product by a method other than as specified in the
corresponding Order, ION Networks, Inc. will pay any resulting
increase in the cost of freight. HP may utilize drop shipment
options to any HP designated delivery destination. If HP
designates a drop shipment location outside the country in
which the Order is placed, HP agrees to pay any additional
costs associated with the shipment.
3.9 HP Option To Accept Over shipments. If ION Networks, Inc.
ships more OEM Products than ordered, the amount of the over
shipment may either be kept by HP
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for credit against future Orders or returned to ION Networks,
Inc. pursuant to Article 6 below, at HP's election.
3.10 Meeting Delivery Dates. If due to ION Networks, Inc.'s failure
to make a timely shipment, the specified method of
transportation would not permit ION Networks, Inc. to meet the
Delivery Date, the OEM Products affected will be shipped by
air transportation or other expedient means acceptable to HP.
ION Networks, Inc. will pay for any resulting increase in the
freight cost over that which HP would have been required to
pay by the specified method of transportation.
3.11 No Advance Shipment. If OEM Products are delivered more than
three days in advance of the Delivery Date, HP may, at its
option, either return the OEM Products pursuant to Article 6
below or keep the OEM Products with payment due as provided in
Section 4.3 below.
3.12 Title And Risk Of Loss. Unless otherwise specified in writing
by HP, shipments will be FCA destination. If HP designates the
carrier, shipments will be FCA carrier. Title to OEM Product
hardware and media ordered under this Agreement and risk of
loss or damage will pass from ION Networks, Inc. to HP upon
ION Networks, Inc. delivery of the OEM Products to the common
carrier specified by HP, subject to the provisions in Sections
3.14 and 3.15 below with respect to packing and handling.
3.13 Packing List. Each delivery of OEM Products to HP must include
a packing list that contains at least:
(1) The Order number and the HP part number;
(2) The quantity of OEM Products or Parts shipped; and
(3) The date of shipment.
3.14 Packaging. ION Networks, Inc. must preserve, package, handle,
and pack all OEM Products so as to protect the OEM Products
from loss or damage, in conformance with good commercial
practice, the Specifications, government regulations, and
other applicable standards. Special static protection must be
provided for OEM Products requiring such packaging.
3.15 Responsibility For Damage. ION Networks, Inc. will only be
liable for any loss or damage due to its failure to properly
preserve, package, handle, or pack OEM Products. HP will not
be required to assert any claims for such loss or damage
against the common carrier involved. Further, HP will not be
liable for any loss
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or damage due to a release of chemicals or other hazardous
materials to the environment prior to HP's actual receipt of
the corresponding OEM Products.
3.16 Purchase Hold. If HP determines that an OEM Product is
defective, then, irrespective of any rights provided HP
hereunder, HP may implement a purchase hold to suspend
purchases of such OEM Products without any liability provided
that HP promptly notifies ION Networks, Inc. of such
suspension and provides ION Networks, Inc. with information
specific to the purported defect such that ION Networks, Inc.
can identify the root cause of the defect or recreate and then
remedy the defect. Such purchase hold may be removed if HP
reasonably believes that ION Networks, Inc. has taken
sufficient action to correct the defect or given sufficient
assurances that such defect will be corrected within a
reasonable time.
4. PRICES AND PAYMENT TERMS
4.1 OEM Product Prices. ION Networks, Inc. prices for the OEM
Products are listed in Exhibit C, in U.S. currency unless
otherwise stated, and may not be increased without HP's
consent. The prices for Parts will be ION Networks, Inc.
published prices, less any applicable discounts, unless the
parties agree to a price schedule for Parts. OEM Products and
Parts will also be subject to any applicable prompt payment
discounts. ION Networks, Inc. and HP agree to review OEM
Product prices quarterly. If, during the term, ION Networks,
Inc. effectuates cost reductions in its manufacturing and
delivery processes, it will pass such reductions to HP and
amend the prices accordingly.
4.2 Changed Prices. If during the Term changed prices or price
formulas are put in effect by mutual agreement of HP and ION
Networks, Inc., or reduced prices or price formulas are
otherwise put in effect by ION Networks, Inc., such prices or
price formulas (if resulting in lower prices than the then
current price) will apply to all Orders issued by HP after the
effective date of such prices or price formulas and to all
unshipped Orders.
4.3 Payment Procedure. Payment for OEM Products will be net 37
days, after the latest of receipt by HP of an appropriate
invoice from ION Networks, Inc., the receipt by HP of the
corresponding OEM Products or Parts; or the Delivery Date
Except as otherwise provided in this Agreement, associated
freight expenses and duties will be paid directly by HP. HP
will not be liable for any costs related to or payments for
unordered or Nonconforming Products.
4.4 Most Favored Purchaser Warranty. If during the term, ION
Networks, Inc. offers a better price or pricing formula to
other purchasers for the same or lesser volumes of OEM
Products with substantially the same terms and conditions,
then ION Networks, Inc. agrees to offer such price or pricing
formula to HP retroactively
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as of the date first offered to the third party. ION Networks,
Inc. agrees to fulfill its obligations in this Section in good
faith and further agrees that it will not create any OEM
Product purchasing programs, pricing formulas or other
conditions that serve to deny HP the benefits of its favored
purchaser status. In addition, HP may credit any amounts due
under this Agreement against future invoices. ION Networks,
Inc. agrees to fulfill its obligations in this Section in good
faith.
4.5 Sales Taxes And Duties. Prices are exclusive of all taxes or
duties after delivery to the designated destination (other
than taxes levied on ION Networks, Inc. income) that ION
Networks, Inc. may be required to collect or pay upon shipment
of the OEM Products. Any such taxes or duties must appear as a
separate item on ION Networks, Inc. invoice. HP agrees to pay
such taxes or duties unless HP is exempt from such taxes or
duties. Where applicable, HP will provide ION Networks, Inc.
with an exemption resale certificate.
5. NONCOMPLYING PRODUCTS
5.1 Credit, Repair or Replacement. HP may elect in its sole
discretion, subject to the provisions of Article 18 below, to
return a Noncomplying Product for Credit or at HP option to
replacement or repair at ION Networks, Inc. expense. In
addition, HP may return for repair or replacement an entire
lot of OEM Products if a tested sample of that lot contains 3%
or greater Noncomplying Products.
5.2 Replenishment Period. ION Networks, Inc. will return the
replacement or repaired OEM Products as soon as possible but
in no event later than two (2) work days after receipt of the
Noncomplying Product from HP. ION Networks, Inc. opportunity
to cure any failure to meet such deadline, pursuant to Article
18 below, will apply to only one such breach per part number
during the Term.
6. RETURN OF OEM PRODUCTS
6.1 Return Materials Authorization. All OEM Products returned by
HP to ION Networks, Inc. must be accompanied by a Return
Materials Authorization ("RMA"). HP and ION Networks, Inc.
will follow a mutually agreed upon RMA process. Unless further
verification is reasonably required by ION Networks, Inc., ION
Networks, Inc. will supply an RMA within two work days of HP's
request.
6.2 Return Charges. All Early/Over Shipments and Noncomplying and
failing OEM Products returned by HP to ION Networks, Inc., and
all replacement or repaired OEM Products shipped by ION
Networks, Inc. to HP to ▇▇▇▇/Over Shipments and Noncomplying
and failing OEM Products, will be at ION Networks, Inc. risk
and expense, including transportation charges.
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6.3 Duty To Remove Marks Or Destroy Noncomplying Products. ION
Networks, Inc. agrees not to sell, transfer distribute or
otherwise convey any part, component, product or service
bearing or incorporating HP Marks, part numbers or other
identifiers, including any HP packaging, copyrights or code,
to any party other than to Eligible Purchasers. ION Networks,
Inc. will remove from all rejected, returned or un-purchased
OEM Products any such HP Marks or identifiers, even if such
removal would require destruction of the OEM Products. ION
Networks, Inc. further agrees not to represent that such OEM
Products are built for HP or to HP specifications. ION
Networks, Inc. will defend and indemnify HP against any
claims, losses, liabilities, costs or expenses that HP may
incur as a result of ION Networks, Inc. breach of this
obligation.
6.4 Field Failure Returns. All failing OEM Products may be
returned by HP to ION Networks, Inc. for repair or
replacement. Failure returns within warranty period will be
repaired or replaced at no cost. Failure returns of OEM
Products outside of the warranty period set forth herein will
be repaired or replaced at the agreed out of warranty repair
cost. ION Networks, Inc. will track the repair history of each
OEM Product. Any OEM Product returned for the third time to
ION Networks, Inc. will be scrapped and replaced with another
repaired or replacement OEM Product. No Trouble Found (NTF)
returned OEM Product would be tracked by ION Networks, Inc..
If the parties mutually agree that the NTF rate is
significant, the parties will agree to use commercially
reasonable means to reduce the number of NTF returns.
7. ENGINEERING PROCESS OR DESIGN CHANGES
7.1 ION Networks, Inc. Proposed Changes. ION Networks, Inc. will
not, without the prior written consent of HP, make or
incorporate in OEM Products any of the following changes
(collectively, "Engineering Changes"):
(1) Process or design changes;
(2) Geographical relocation of manufacturing processes; or
(3) Process step discontinuance's affecting the
electrical performance, the mechanical form, fit, or
function, the environmental compatibility or chemical
characteristics, software compatibility, or the life,
reliability, or quality of OEM Products.
7.2 Notice Of Proposed Changes. ION Networks, Inc. will give HP
notice of any proposed Engineering Change, and will provide
evaluation samples and other appropriate information as
specified by HP at least 90 days prior to the first proposed
shipment of any OEM Products involving an Engineering Change.
HP
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will respond within fifteen (15) days indicating its approval
or disapproval of any Engineering Change; provided, however,
if HP does not respond to notice of any Engineering Change
within fifteen (15) days, HP will be deemed to approve such
Engineering Change. Regardless of whether HP approves a
proposed Engineering Change, Lead Time will not be changed
except as provided in Section 3.4 above.
7.3 HP Proposed Changes. HP may change HP-supplied drawings,
designs, or Specifications at any time prior to manufacture of
corresponding released OEM Products. HP will submit proposed
changes to the OEM Product to ION Networks, Inc. for
investigation. ION Networks, Inc. will respond to HP's
proposed changes within ten (10) business days. The parties
will negotiate in good faith the terms and conditions of the
proposed change, including possible price adjustments, change
in delivery schedule, and testing, within thirty (30) days
after ION Networks, Inc. response. HP will pay all reasonable
and direct costs incurred by ION Networks, Inc. in
implementing the changes that are specific to the OEM Product.
7.4 Option To Terminate. If the parties are unable to agree,
acting reasonably and in good faith, upon an adjustment
pursuant to Section 7.3 above, HP may without any liability
terminate this Agreement as to any OEM Products affected. Upon
termination of this agreement, ION Networks, Inc. will make
commercially reasonably efforts to mitigate excess unique
materials listed in Exhibit H prior to making a request to HP
to pay for the excess. If the excess unique materials cannot
be mitigated by ION Networks, Inc., ION Networks, Inc. will
request that HP pay for reasonable costs associated with the
excess unique materials required to meet inventory
requirements as stated in section 3.6.
7.5 Safety Standard Changes. ION Networks, Inc. will immediately
give notice to HP if any upgrade, substitution or other change
to an OEM Product is required to make that product meet
applicable safety standards or other governmental statutes,
rules, orders or regulations, even those that are not defined
as Engineering Changes in Section 7.1 above. All affected OEM
Products already purchased by HP may, at HP's election, either
be returned to ION Networks, Inc. for upgrade to current
revisions or upgraded by ION Networks, Inc. or HP in the field
pursuant to the procedures outlined in Section 10.6 below. If
an OEM Product meets applicable safety standards and other
governmental requirements at the time of manufacture, HP and
ION Networks, Inc. will allocate the costs of any subsequent
upgrade, substitution or other required change required in an
equitable manner based on good faith discussions between the
parties. If such discussions render no equitable solution, the
parties may either mutually agree to escalate the matter to
their respective vice presidents or general managers, as
applicable, or in the alternative, divide the costs equally
between them.
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8. QUALITY
8.1 Quality Program. ION Networks, Inc. agrees to maintain an
objective quality program consistent with reasonable
commercial standards for all OEM Products. ION Networks, Inc.
program will be in accordance with the current revision of ION
Networks, Inc. quality system requirements which HP will have
the opportunity to review, and if applicable, any additional
or substitute quality requirements agreed to by both parties.
ION Networks, Inc. will, upon HP's request, provide to HP
copies of ION Networks, Inc. program and supporting documents.
8.2 HP has the right to inspect, at ION Networks, Inc. plant, the
OEM Products and associated manufacturing processes.
Manufacturing processes may be inspected at any time during
the Term. HP's inspection may be for any reason reasonably
related to this Agreement, including to assure ION Networks,
Inc. compliance with HP's requirements. HP's right of
inspection will apply as well to any vendor or subcontractor
of ION Networks, Inc. ION Networks, Inc. will inform such
vendors or subcontractors of HP's right to inspect, and, if
necessary, use all reasonable effort to secure such rights for
HP.
9. WARRANTIES
9.1 Product Warranties. ION Networks, Inc. warrants that all OEM
Products will:
(1) Be manufactured, processed, and assembled by ION
Networks, Inc. or by companies under ION Networks,
Inc. direction.
(2) Conform to the Specifications, and other criteria
referred to in this Agreement or agreed to by the
parties in writing.
(3) Be new, except as otherwise provided by the parties.
(4) Conform strictly to the requirements of all Orders.
(5) Be free from defects in design, material and
workmanship in accordance with HP specifications.
(6) Be free and clear of all liens, encumbrances,
restrictions, and other claims against title or
ownership.
(7) Be "Year 2000 Compliant." Year 2000 Compliant OEM
Products will perform without error, loss of data, or
loss of functionality arising from any failure to
process, calculate, compare, or sequence date data.
In
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addition, Year 2000 Compliant OEM Products will not
cause any associated products or systems in which
they may be used to fail in any of the ways described
above. This Year 2000 Compliance Warranty will remain
in effect through December 31, 2000, notwithstanding
any other warranty period specified in this
Agreement.
(8) Not violate or infringe any third party Intellectual
Property Rights and ION Networks, Inc. warrants that
it is not aware of any facts upon which such claim
could be made. If ION Networks, Inc. learns of any
claim or any facts upon which claim could be made, it
will promptly notify HP of this information.
9.2 Survival of Warranties. All warranties specified above will
survive any inspection, delivery, acceptance, or payment by HP
and be in effect for the longer of ION Networks, Inc. 13 month
warranty period, or the one year period following the date of
shipment of the OEM Product or the HP Product containing the
OEM Product to HP's end-user customers. HP understands that
the backup system battery has a 2-year life span and needs
regular maintenance.
9.3 Epidemic Failure Warranty. In addition to the warranties
specified above, ION Networks, Inc. warrants all OEM Products
against epidemic failure for a period of three (3) years after
receipt of that OEM Product or the associated HP Product by
HP's customers. An epidemic failure means the occurrence of
the same failure pertaining to form, fit, or function, in any
one percent (1%) of the OEM Products, within a one (1) year
time frame. HP understands that the backup system battery has
a 2 year life span and needs regular maintenance.
9.4 Out of Warranty Repair. For Products which fail to conform to
their Specifications after the warranty period has expired but
during the term of this agreement, HP may return such Products
to ION Networks, Inc. for repair or replacement at ION
Networks, Inc. then current prices and terms after obtaining
an RMA number. ION Networks, Inc. current out of warranty
repair terms and pricing are set forth in Exhibit C.
9.5 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9
AND SECTION 14 (INTELLECTUAL PROPERTY PROTECTION), ION
Networks, Inc. MAKES NO OTHER WARRANTIES, WITH RESPECT TO
OEM PRODUCTS, AND ION Networks, Inc. EXPRESSLY DISCLAIMS ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY OEM
PRODUCTS, OR REGARDING THEIR MERCHANTABILITY OR THEIR
FITNESS FOR ANY PARTICULAR PURPOSE.
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10. SUPPORT SERVICES
10.1 General. ION Networks, Inc. will provide HP with Support for
the OEM Products as specified in the Support Terms attached as
Exhibit D. ION Networks, Inc. will maintain such number of
qualified personnel as is necessary to provide timely and
knowledgeable maintenance and support service. ION Networks,
Inc. warrants that all Support will be provided in a
professional and workmanlike manner.
10.2 New HP Products. Upon request by HP to adapt the OEM Product
for use in a Product, HP and ION Networks, Inc. will negotiate
in good faith the terms and additional costs associated with
such adapted OEM Products. Upon agreement, ION Networks, Inc.
will use all reasonable efforts to provide HP with the OEM
Products adapted for use with new releases of HP Products
provided that HP makes available to ION Networks, Inc. such HP
Property as may be reasonably necessary for ION Networks, Inc.
to develop any adaptation.
10.3 HP Property. HP may provide to ION Networks, Inc. HP Property
under the terms of an HP Equipment Loan Agreement, solely for
use in ION Networks, Inc. manufacturing, testing, adapting and
supporting the OEM Products. All HP Property will be clearly
segregated from ION Networks, Inc. property and identified as
the sole property of HP. HP Property may not be transferred,
assigned, loaned or otherwise encumbered in any way. HP
Property may be provided to third parties for fulfillment of
ION Networks, Inc. obligations hereunder only upon HP's prior
written consent. HP property will be returned to HP, at ION
Networks, Inc. expense, upon termination of this Agreement.
10.4 Substitute Products. If ION Networks, Inc. develops any
products that are more efficient or less expensive than the
comparable OEM Products available under this Agreement. ION
Networks, Inc. will promptly inform HP of such product
availability. AT HP's option, HP will have the right to
substitute the newer products at the same price as the
comparable OEM Products for all subsequent purchases under
this Agreement. The pricing of such substitute products will
be mutually agreed upon by the parties in good faith, but will
be no higher than the price or pricing formula offered to
other purchasers for similar volumes of the substitute
products in accordance with Section 4.4.
10.5 Failure Rate. Notwithstanding that the warranties given in
Section 9.1 above apply to 100% of OEM Products, ION Networks,
Inc. and HP acknowledge that a failure rate of 0.5 percent
(0.5%) delivered over a twelve (12) month period is expected.
If the actual failure rate for OEM Products exceeds this
expected rate, ION Networks, Inc. will provide additional
engineering and technical support needed to bring the actual
failure rate within the specified failure rate.
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10.6 Class Failure Remedies. Upon the occurrence of any of the
following events: (i) a failure rate exceeding the rate
specified in Section 10.5 above; (ii) an epidemic failure as
described in Section 9.3; or (iii) a safety standard change
under Section 7.5 above (each referred to as a "Class
Failure"), HP will have the following additional remedies for
a three year period commencing upon receipt by HP's end-user
customer of the OEM Product or the corresponding HP Product.
(1) In the event of a Class Failure, ION Networks, Inc.
will provide HP no later than 3 business days
following the Class Failure root cause analysis and
corrective action plan. In the event it is not
possible to provide the root cause analysis and
corrective action plan within ten (10) days, ION
Networks, Inc. will provide a status report as soon
as possible but no later than 10 days following the
Class Failure to HP a status on the progress of the
root cause analysis and corrective action plan and an
estimate of the completion when ION Networks, Inc.
will complete these reports and provide them to HP as
soon as possible. HP will make available such
information and assistance reasonably required
allowing ION Networks, Inc. to conduct its root cause
analysis and provide its corrective action report.
(2) If, after review of the root cause analysis and
corrective action plan, HP determines in its
reasonable opinion that the Class Failure
necessitates a field stocking recall or customer
based recall or retrofit, HP may then elect to have
the OEM Products: (i) returned to ION Networks, Inc.
for repair or replacement; (ii) repaired or replaced
by ION Networks, Inc. in the field; or (iii) repaired
or replaced by HP in the field, including products in
distributor inventory and HP's installed base. If a
field repair can be performed by HP service personal
(at HP or HP's customer sites) and is deemed
desirable by HP, ION Networks, Inc. will provide the
appropriate replacement OEM Products, Parts or
upgrades free of charge to HP. Such OEM Products,
Parts or upgrades will have the highest shipping
priority.
(3) Except as provided in Section 7.5 above, regarding
safety standard changes, ION Networks, Inc. will,
within 90 days after completion of the recalls or
retrofits, reimburse HP for its reasonable and direct
costs in performing such services.
10.7 Survival of Support Obligations. ION Networks, Inc.
maintenance and support obligations specified in this Section
10, and in the Support Terms in Exhibit D will run for the
Term and any additional periods under Section 1.3 above and
will continue for a period of five (5) years after the last
shipment to HP of the OEM Product. This obligation includes
making necessary Parts available to HP, as further provided in
the Support Terms.
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11. ASSURANCE OF SUPPLY
11.1 Discontinuance. ION Networks, Inc. acknowledges its obligation
to manufacture, supply and support the OEM Products without
interruption for the Term of this agreement. If, however,
after the third year of this agreement, it becomes impractical
to continue the supply or support of any OEM Product
("Discontinued"), ION Networks, Inc. will give notice to HP no
less than nine (9) months in advance of the last date the
discontinued product can be ordered. After receipt of the
notice of discontinuance, ION Networks, Inc. will offer a
lifetime buy to HP. If HP accepts the lifetime buy option this
requirement will be delivered within 12 months.
12. TRAINING
12.1 Technical Training. ION Networks, Inc. will provide to HP
technical training, for a period not to exceed two (2) weeks,
sufficient to allow HP to become fully familiar with each OEM
Product and its market. Such training will be at no charge to
HP except for any reasonable travel expenses that ION
Networks, Inc. incurs. HP may further request and ION
Networks, Inc. will provide additional training at no charge
as reasonably necessary to inform HP personnel of upgraded,
enhanced or new versions of the OEM Products except for any
reasonable travel expenses that ION Networks, Inc. incurs.
Other training will be provided upon mutually agreeable terms
and conditions.
12.2 HP's Rights In Training Classes And Materials. HP may at no
charge use, reproduce, modify, display and perform either
internally or for HP's customers, all training classes,
methods, and materials supplied or developed by ION Networks,
Inc. under this Agreement. HP's use may be in any manner HP
reasonably deems appropriate holding to terms stipulated in
the attach CDA exhibit F.
13. MARKETING AND LICENSING
13.1 Marketing Authority. HP will have the authority to market the
OEM Products and the HP Products containing the OEM Products
to the extent it deems appropriate, in its sole discretion.
Without limiting the generality of the foregoing sentence,
nothing in this Agreement will be construed or interpreted to
place a "best efforts" obligation upon HP with respect to
marketing the HP Products or OEM Products or preclude HP from
independently developing, purchasing, licensing, or marketing
any product which performs the same or similar function as the
OEM Products. HP will have the right to use its then current
standard form business and
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license terms for all marketing and distribution of the OEM
Products and HP Products.
13.2 No Rights In Marks. Except as otherwise specified in the
private labeling section below, nothing in this Agreement
should be construed to grant either party rights in the Marks
of the other party. ION Networks, Inc. acknowledges, however,
that HP may use the name of ION Networks, Inc. and the name of
the OEM Products in advertising and marketing the OEM Products
or the HP Products. The OEM Products will be affixed with
copyright notices sufficient to give notice as to the rights
of the parties in their respective products.
13.3 Private Labeling. If HP decides during the Term to create HP
private label versions of the OEM Products, ION Networks, Inc.
will ensure that the OEM Products contain the HP Marks, serial
number format and packaging specified by HP and conforming to
HP specifications for external appearance (which will not
require any material change in form or dimensions of the OEM
Products or require commercially unreasonable actions). Except
as provided herein, ION Networks, Inc. will have no other
right or license in any HP Marks.
13.4 Software License. If the OEM Products include Software, ION
Networks, Inc. hereby grants to HP, under ION Networks, Inc.
Intellectual Property Rights in such Software, a nonexclusive,
worldwide, fully paid up license to use, import, reproduce,
offer for sale and distribute the Software in object code form
as integrated with the OEM Products or the HP Products. These
rights will extend to HP Subsidiaries and third party channels
of distribution.
13.5 Documentation License. ION Networks, Inc. hereby grants HP a
nonexclusive, non-transferable, worldwide, fully paid up
license to use, reproduce, distribute and prepare derivative
works in HP's name all Documentation and other information,
other than confidential information, furnished by ION
Networks, Inc. under this Agreement. HP may reproduce such
Documentation without ION Networks, Inc. logo or other
identification of source, subject to affixing copyright
notices to all copies of Documentation. These rights with
respect to the Documentation will extend to HP Subsidiaries
and third party channels of distribution. Notwithstanding the
foregoing, ION Networks, Inc. will have no responsibility for,
and HP will defend, indemnify and hold harmless ION Networks,
Inc., and it's officers and employees from and against all
losses or damages (including reasonable attorney's fees) for
any claims, suits, actions, demands or threats (collectively
claims) arising from modifications of the documentation made
by HP if such claim would not have arisen but for such
modifications.
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14. INTELLECTUAL PROPERTY PROTECTION
14.1 ION Networks, Inc. Duty To Defend. Except as provided in
Section 14.4 below, ION Networks, Inc. will defend and hold
harmless HP and its Subsidiaries, Subcontractors and customers
from any claim that any OEM Product, any combination of an OEM
Product with an HP Product, any Software, Documentation or a
ION Networks, Inc. ▇▇▇▇, or any product provided as part of
ION Networks, Inc. Support services constitutes an
unauthorized use or infringement of any third party's
Intellectual Property Rights. ION Networks, Inc. will pay all
costs, damages and expenses (including reasonable attorneys
fees) incurred by HP, Subsidiaries, Subcontractors or
customers and will pay any award with respect to any such
claim or agreed to in any settlement of that claim.
14.2 HP's Duty To Notify. HP will give ION Networks, Inc. prompt
notice of any such claim or action, will give ION Networks,
Inc. control of the defense or settlement of such claim or
action, and will give ION Networks, Inc. the authority,
information, and reasonable assistance (at ION Networks, Inc.
expense) necessary to defend. If ION Networks, Inc. does not
diligently pursue resolution of the claim nor provide HP with
reasonable assurances that it will diligently pursue
resolution, then HP may, without in any way limiting its other
rights and remedies, defend the claim.
14.3 Remedies For Infringing Products. If the use or combination of
any product provided hereunder is enjoined (the "Infringing
Product"), ION Networks, Inc.
will, at its sole expense and option:
(1) Procure for HP and its customers the right to
continue using or combining the Infringing Product;
(2) Replace the Infringing Product with a non-infringing
product of equivalent function and performance; or
(3) Modify the Infringing Product to be non-infringing,
without detracting from function or performance.
14.4 Limitations. ION Networks, Inc. will be relieved of its
indemnification obligations under this Article 14 to the
extent that the claim arises solely and directly from ION
Networks, Inc. compliance with an HP Specification provided
that all implementations of that Specification constitute an
unauthorized use or infringement of a third party Intellectual
Property Right.
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15. COUNTRY OF MANUFACTURE AND DUTY DRAWBACK RIGHTS
15.1 Country Of Origin Certification. Upon HP's request, ION
Networks, Inc. will provide HP with an appropriate
certification stating the country of origin for OEM Products,
sufficient to satisfy the requirements of the customs
authorities of the country of receipt and any applicable
export licensing regulations, including those of the United
States.
15.2 Country Of Origin Marking. ION Networks, Inc. will ▇▇▇▇ each
OEM Product or the container if there is no room on the OEM
Product, with the country of origin. ION Networks, Inc. will,
in marking OEM Products, comply with the requirements of the
customs authorities of the country of receipt.
15.3 Duty Drawback. If OEM Products delivered under this Agreement
are imported, ION Networks, Inc. will when possible allow HP
to be the importer of record. If HP is not the importer of
record and ION Networks, Inc. obtains duty drawback rights to
OEM Products, ION Networks, Inc. will, upon HP's request,
provide HP with documents required by the customs authorities
of the country of receipt to prove importation and to transfer
duty drawback rights to HP.
16. GOVERNMENTAL COMPLIANCE
16.1 Duty To Comply. ION Networks, Inc. agrees to comply with all
federal, state, local and foreign laws, rules, and regulations
applicable to its performance of this Agreement or to OEM
Products. Without limiting the generality of the foregoing
sentence, ION Networks, Inc. represents that:
(1) ION Networks, Inc. will comply with all equal
employment opportunity and nondiscrimination
requirements prescribed by Presidential Executive
Orders, including the requirements of Executive Order
11246, the Vocational Rehabilitation Act, and the
Vietnam Era Veteran's Readjustment
Assistance Act;
(2) Each chemical substance contained in OEM Products is
on the inventory of chemical substances compiled and
published by the Environmental Protection Agency
pursuant to the Toxic Substances Control Act;
(3) All OEM Products will be shipped in conformance with
government or freight regulations and requirements
applicable to chemicals; and
(4) ION Networks, Inc. will provide complete and accurate
material safety data sheets prior to shipping any OEM
Product.
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16.2 Procurement Regulations. For OEM Products purchased under this
Agreement for incorporation into products to be sold under a
federal contract or subcontract, those applicable procurement
regulations that are required by federal statute or regulation
to be inserted in contracts or subcontracts will be deemed
incorporated in this Agreement and made to apply to all
Orders.
16.3 Ozone Depleting Substances. ION Networks, Inc. hereby
certifies that no OEM Product nor any component of any OEM
Product:
(1) Contains any "Class 1 Substance" or 'Class 2
Substance", as those term are defined in 42 USC
Section 7671 and implementing regulations of the
United States Environmental Protection Agency at 40
CFR Part 82, as now in existence or hereafter
amended; or
(2) Has been manufactured with a process that uses any
Class 1 or Class 2 Substance within the meaning of 42
USC Section 7671 and implementing regulations of the
United States Environmental Protection Agency at 40
CFR Part 82, as now in existence or hereafter
amended.
17. FORCE MAJEURE EVENTS
17.1 Delaying Causes. Subject to the provisions of this Article,
ION Networks, Inc. will not be liable for any delay in
performance under this Agreement caused by any "act of God" or
other cause beyond ION Networks, Inc. control and without ION
Networks, Inc. fault or negligence (a "delaying cause").
Notwithstanding the above, ION Networks, Inc. will not be
relieved of any liability for any delay or failure to perform
its defense obligations with respect to third party
Intellectual Property Rights or furnish remedies for
Infringing Products as described in Article 14 above.
17.2 HP Option. ION Networks, Inc. will immediately give HP notice
of any delaying cause and its best estimate of the expected
duration of such cause. In the event of a delaying cause, HP
may act in its sole discretion to:
(1) Terminate this Agreement or any part hereof as to OEM
Products not shipped; or
(2) Suspend this Agreement in whole or in part for the
duration of the delaying cause, buy similar products
elsewhere, and deduct from any quantities specified
under this Agreement the quantity so purchased.
17.3 Resumption Of Agreement. If HP elects to purchase other
similar products in the event of a delaying cause, HP may
resume performance under this Agreement once
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the delaying cause ceases and extend the Term up to the length
of time the delaying cause endured. Unless HP gives notice of
termination as provided above within 30 days after notice from
ION Networks, Inc. of the delaying cause, HP will be deemed to
have elected to suspend this Agreement for the duration of the
delaying cause.
18. EVENTS OF DEFAULT
18.1 Notice Of Breach. If either party is in breach of any
provision of this Agreement, the nonbreaching party may, by
notice to the breaching party, except as otherwise prohibited
by the United States bankruptcy laws, terminate the whole or
any part of this Agreement or any Order, unless the breaching
party cures the breach within 30 days after receipt of notice.
18.2 Causes Of Breach. For purposes of Section 18.1 above, the term
"breach" includes without limitation any:
(1) Proceeding, whether voluntary or involuntary, in
bankruptcy or insolvency by or against a party;
(2) Appointment, with or without a party's consent, of a
receiver or an assignee for the benefit of creditors;
(3) Failure by ION Networks, Inc. to make a delivery of
OEM Products in accordance with the requirements of
this Agreement or any Order;
(4) Failure by ION Networks, Inc. to replace or repair
Noncomplying Products in a timely manner as required
by Article 5 above; or
(5) Other failure by a party to comply with any material
provision of this Agreement with additional failure
to provide the nonbreaching party, upon request, with
reasonable assurances of future performance.
18.3 HP's Rights Upon Breach. In the event HP terminates this
Agreement in whole or in part as provided above, in addition
to any other remedies provided HP under this Agreement, HP may
procure, upon such terms and in such manner as HP reasonably
deems appropriate, products similar to the OEM Product as to
which this Agreement is terminated. ION Networks, Inc. agrees
to reimburse HP upon demand for all additional costs incurred
by HP in purchasing, qualifying and testing such similar
products. ION Networks, Inc. further agrees to continue the
performance of this Agreement to the extent not terminated
under the provisions of this Section.
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18.4 Purchase Hold. If any Eligible Purchaser having the right to
purchase an OEM Product under this Agreement or under any
other agreement with ION Networks, Inc. believes in good faith
that an OEM Product is defective, then, irrespective of any
other rights provided HP hereunder, HP may implement a
purchase hold to suspend purchases of such OEM Products
without any liability. Such purchase hold may be removed if HP
reasonably believes that ION Networks, Inc. has taken
sufficient action to correct the defect or given. sufficient
assurances that such defect will be corrected within a
reasonable time.
19. CONFIDENTIAL INFORMATION
19.1 Confidential Information. During the Term, a party (the
"Recipient") may receive or have access to certain information
of the other party (the "Discloser") that is marked as
"Confidential Information," including, though not limited to,
information or data concerning the Discloser's products or
product plans, business operations, strategies, customers and
related business information. The Recipient will protect the
confidentiality of Confidential Information with the same
degree of care as the Recipient uses for its own similar
information, but no less than a reasonable degree of care,
under the terms of the Confidential Disclosure Agreement
attached as Exhibit F (the "CDA"). To the extent any term of
this Agreement conflicts with any term in the CDA, the terms
of this Agreement will control and take precedence.
Confidential Information may only be used by those employees
of the Recipient who have a need to know such information for
the purposes related to this Agreement. The parties
acknowledge that all Technical Information and Forecasts are
deemed Confidential Information to be protected for a term of
three (3) from the date of disclosure. Upon request of
disclosure, Recipient will immediately return or at
Disclosures option, destroy confidential information in its
possession.
19.2 Exclusions. The foregoing confidentiality obligations will not
apply to any information that is (a) already known by the
Recipient prior to disclosure, (b) independently developed by
the Recipient prior to or independent of the disclosure, (c)
publicly available through no fault of the Recipient, (d)
rightfully received from a third party with no duty of
confidentiality, (e) disclosed by the Recipient with the
Discloser's prior written approval, or (f) disclosed under
operation of law.
20. INSURANCE REQUIREMENTS ION NETWORKS, INC.
20.1 Insurance Coverage. ION Networks, Inc. will maintain
Comprehensive or Commercial General Liability Insurance
(including but not limited to premises and operations,
products and completed operations, broad form contractual
liability, broad form property damage and personal injury
liability) with a minimum limit of $5,000,000 (five million)
combined single limit per occurrence and $10,000,000
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(ten million) in the aggregate, for claims of bodily injury,
including death, and property damage that may arise from use
of the OEM Products or acts or omissions of ION Networks, Inc.
under this Agreement. Each policy obtained by ION Networks,
Inc. will name HP, its officers, directors and employees as
additional insured. Such insurance will apply as primary
insurance and no other insurance will be called upon to
contribute to a loss covered thereunder. In addition, such
policies will permit ION Networks, Inc. to waive, on its own
behalf and on behalf of its insurers, any rights of
subrogation against HP. Such insurance policies will be
written with appropriately licensed and financially
responsible insurers, and will provide for a minimum of 30
days written notice to HP of any cancellation or reduction in
coverage. Certificates of insurance evidencing the required
coverage and limits will be furnished to HP before any work is
commenced hereunder, and ION Networks, Inc. will deliver
copies of policies or certificates to the HP contact listed in
Exhibit G.
20.2 Claims Made Coverage. If any policies have "claims made"
coverage, ION Networks, Inc. will maintain such coverage's
with HP named as an additional insured for a minimum of three
years after termination of this Agreement. Any such coverage
must have a retroactive date no later than the date upon which
work commenced under this Agreement.
20.3 Additional Requirements. All deductibles on policies providing
coverage will be paid by ION Networks, Inc. In the event ION
Networks, Inc. is self insured for matters described in
Section 20.1, ION Networks, Inc. agrees to respond to any
claims or losses made against or incurred by HP in the same
fashion as if insurance had been purchased with the same or
broader coverage terms than what is generally available to
similar ION Networks, Inc. In no event will the coverage's or
limits of any insurance required under this Article, or the
lack or unavailability of any other insurance, be deemed to
limit or diminish ION Networks, Inc. obligations or liability
to HP under this Agreement.
21. LIMITATION OF LIABILITY
UNLESS OTHERWISE STATED IN THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE
FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES OF THE OTHER ARISING OUT OF
ANY PERFORMANCE OF THIS AGREEMENT OR IN FURTHERANCE OF THE PROVISIONS
OR OBJECTIVES OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE
BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE ABOVE,
ION NETWORKS, INC. WILL BE RESPONSIBLE FOR ANY DAMAGES OF ANY KIND
INCLUDED IN AN AWARD OR SETTLEMENT OF A THIRD PARTY CLAIM UNDER ARTICLE
14 ABOVE.
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22. TERMINATION
22.1 Outstanding Orders. All Orders issued prior to the expiration
of this Agreement must be fulfilled pursuant to and subject to
the terms of this Agreement, even if the Delivery Dates are
after expiration. Upon termination of this Agreement for ION
Networks, Inc. breach, HP may cancel any outstanding Order or
require Orders to be fulfilled even if a Delivery Date is
after the date of termination.
22.2 Return Of HP Property. ION Networks, Inc. must return all HP
Property to HP upon expiration or termination. All such
property must be in good condition, normal wear and tear
excepted. HP will determine the manner and procedure for
return. HP will bear all return freight costs if return is due
to HP convenience or an uncured breach by HP. Otherwise, ION
Networks, Inc. will bear all such costs.
22.3 Surviving Provisions. Notwithstanding the expiration or early
termination of this Agreement, the provisions regarding
Warranties in Article 9, Support in Article 10, Manufacturing
Rights in Article 11, Marketing and Licensing in Article 13,
Intellectual Property in Article 14, Confidentiality in
Article 19, Insurance Requirements in Article 20, Limitation
of Liability in Article 21, and the Miscellaneous provisions
below will each survive in accordance with their terms.
23. MISCELLANEOUS
23.1 Notices. All notices to be given under this Agreement must be
in writing addressed to the receiving party's designated
recipient specified in Exhibit G. Notices are validly given
upon the earlier of confirmed receipt by the receiving party
or [three days] [or seven days, for international notices]
after dispatch by courier or certified mail, postage prepaid,
properly addressed to the receiving party. Notices may also be
delivered by telefax and will be validly given upon oral or
written confirmation of receipt. Either party may change its
address for purposes of notice by giving notice to the other
party in accordance with these provisions.
23.2 Exhibits. Each Exhibit attached to this Agreement is deemed a
part of this Agreement and incorporated herein wherever
reference to it is made.
23.3 Independent Contractors. The relationship of the parties
established under this Agreement is that of independent
contractors and neither party is a partner, employee, agent or
joint venturer of or with the other. Nothing in this Agreement
precludes either party from independently developing,
manufacturing, selling or supporting products similar to the
OEM Products.
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23.4 Assignment.
Neither this Agreement nor any right, license, privilege or
obligation provided herein may be assigned, transferred or
shared by either party without the other party's prior written
consent, and any attempted assignment or transfer is void. Any
merger, consolidation, reorganization, transfer of
substantially all assets of a party, or other change in
control or ownership will be considered an assignment for the
purposes of this Agreement {other than an HP merger into a
wholly owned subsidiary}. HP hereby gives its written consent
to transfer of ION Networks, Inc.'s rights and obligations
under this Agreement through merger, consolidation,
reorganization or transfer of all assets to a successor entity
named Ion Networks Inc. This Agreement will be binding on the
successors and permitted assigns of the parties and the name
of the party appearing herein will be deemed to include the
names of such party's successors or permitted assigns to the
extent necessary to carry out the intent of this Agreement.
23.5 No Waiver. The waiver of any term, condition, or provision of
this Agreement must be in writing and signed by an authorized
representative of the waiving party. Any such waiver will not
be construed as a waiver of any other term, condition, or
provision except as provided in writing, nor as a waiver of
any subsequent breach of the same term, condition, or
provision.
23.6 Reference To Days. All references in this Agreement to "days"
will, unless otherwise specified herein, mean calendar days.
23.7 Headings. The Section headings used in this Agreement are for
convenience of reference only. They will not limit or extend
the meaning of any provision of this Agreement, and will not
be relevant in interpreting any provision of this Agreement.
23.8 No Publication. Neither party may publicize or disclose to any
third party, without the written consent of the other party,
the terms of this Agreement. Without limiting the generality
of the foregoing sentence, no press releases may be made
without the mutual written consent of each party.
23.9 Severability. If any provision in this Agreement is held
invalid or unenforceable by a body of competent jurisdiction,
such provision will be construed, limited or, if necessary,
severed to the extent necessary to eliminate such invalidity
or unenforceability. The parties agree to negotiate in good
faith a valid, enforceable substitute provision that most
nearly effects the parties original intent in entering into
this Agreement or to provide an equitable adjustment in the
event no such provision can be added. The other provisions of
this Agreement will remain in full force and effect.
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23.10 Entire Agreement. This Agreement comprises the entire
understanding between the parties with respect to its subject
matters and supersedes any previous communications,
representations, or agreements, whether oral or written. For
purposes of construction, this Agreement will be deemed to
have been drafted by both parties. No modification of this
Agreement will be binding on either party unless in writing
and signed by an authorized representative of each party.
23.11 Governing Law. This Agreement will be governed in all respects
by the laws of California, U.S.A. without reference to any
choice of laws provisions.
APPROVED AND AGREED TO:
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ION NETWORKS, Inc. HEWLETT-PACKARD COMPANY
BCC Server Manufacturing Unit
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------ -------------------------
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: ION Networks, Inc., President & CEO Title: Procurement Manager
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