EXHIBIT 10.2
Sample - Non-Executable
[LOGO OF CARRIER ACCESS(TM)
CORPORATION APPEARS HERE)
OEM AGREEMENT
Sample - Non-Executable
TABLE OF CONTENTS
DEFINITIONS................................................................ 3
ARTICLE 1 - AUTHORIZATION................................................. 4
ARTICLE 2 - TERM.......................................................... 4
ARTICLE 3 - TERMINATION AND ASSIGNMENT.................................... 5
ARTICLE 4 - RESPONSIBILITIES OF CAC....................................... 5
ARTICLE 5 - RESPONSIBILITIES OF OEM....................................... 6
ARTICLE 6 - MINIMUM ORDER SIZE............................................ 7
ARTICLE 7 - QUOTAS AND DISCOUNTS.......................................... 7
ARTICLE 8 - ACCEPTANCE OF ORDERS.......................................... 8
ARTICLE 9 - ORDER CANCELLATION............................................ 8
ARTICLE 10 - PRODUCT IDENTIFICATION........................................ 8
ARTICLE 11 - PACKAGING..................................................... 8
ARTICLE 12 - INSPECTIONS AND RECORDS....................................... 9
ARTICLE 13 - SHIPPING AND DELIVERY......................................... 9
ARTICLE 14 - PRICE......................................................... 9
ARTICLE 15 - OEM RESALE PRICE.............................................. 10
ARTICLE 16 - PAYMENT....................................................... 10
ARTICLE 17 - RETURNS AND REJECTIONS........................................ 10
ARTICLE 18 - TERRITORY..................................................... 10
ARTICLE 19 - WARRANTY AND REMEDIES......................................... 10
ARTICLE 20 - WARRANTY PASS THROUGH......................................... 10
ARTICLE 21 - EXERCISE OF RIGHTS............................................ 11
ARTICLE 22 - NEW PRODUCTS.................................................. 11
ARTICLE 23 - DOCUMENTATION................................................. 11
ARTICLE 24 - TRADEMARKS.................................................... 11
ARTICLE 25 - NOTICES....................................................... 12
ARTICLE 26 - SURVIVAL OF OBLIGATIONS....................................... 12
--------------------------------------------------------------------------------
Confidential 05/08/97
2
ARTICLE 27 - TAXES......................................................... 12
ARTICLE 28 - TECHNICAL DATA AND LICENSING.................................. 12
ARTICLE 29 - PATENT INFRINGEMENT - IDEMNIFICATION.......................... 13
ARTICLE 30 - LIMITATION OF LIABILITY....................................... 13
ARTICLE 31 - GENERAL PROVISIONS............................................ 00
XXXXXXXX
XXXXXXXX A - PRODUCTS...................................................... 00
XXXXXXXX X - LIST PRICE.................................................... 17
APPENDIX C - PRODUCT RETURNS............................................... 18
APPENDIX D - WARRANTIES AND LIMITATION OF REMEDIES......................... 20
APPENDIX E - SOFTWARE LICENSE AGREEMENT.................................... 22
APPENDIX F - TERRITORY..................................................... 25
APPENDIX G - NEW PRODUCTS.................................................. 26
--------------------------------------------------------------------------------
Confidential 05/08/97
3
Sample - Non-Executable
Confidential Information DATE:____________
CAC Platinum Level
OEM Agreement
THIS Agreement, Number CAC/ ________ by and between Carrier Access Corporation,
a Colorado Corporation, having its principle business at 0000 Xxxxx Xxxxxxx,
Xxxxxxx, Xxxxxxxx, 00000 (hereinafter called "CAC"), and _____________________
_________________, with headquarters at,______________________________________,
(hereinafter called "OEM") sets forth the terms and conditions for the sale of
Products by CAC and the purchase of same by OEM.
DEFINITIONS
The term "Agreement" means all of the terms and conditions of this OEM
Agreement.
The term "Net Purchases" means the total invoiced Products shipped to OEM, less
any issued credits
The term " New Products" means all equipment, firmware and software supplied by
CAC listed in Appendix G.
The term "Product" means all equipment, firmware and software supplied by CAC
listed in Appendix A.
The term "Unit" means a single working system of the Product designated in
Appendix A.
THIS Agreement contains all of the representation and agreements between the
parties hereto. No modification of this Agreement or waiver of the terms and
conditions hereof will be binding upon either party unless approved in writing
by authorized representatives of both parties, nor will it be affected by the
acknowledgment or acceptance of purchase order forms or releases containing
other or different terms and conditions, whether or not signed by an authorized
representative of such party.
By execution of this Agreement, the parties do hereby agree the provisions of
this Agreement shall supersede all prior oral and written communications,
agreements and understandings of the parties with respect to the subject of the
Agreement.
RECITALS
--------
Whereas, CAC develops, manufactures and distributes certain telecommunications
Products, including the Products set forth on Appendix A and, when applicable,
on Appendix G hereto, and,
CAC and OEM desire that OEM act as a non-exclusive OEM for the Products under
the terms and conditions set forth below,
--------------------------------------------------------------------------------
Confidential 05/08/97
4
Sample - Non-Executable
Now, therefore CAC and OEM agree as follows:
ARTICLE 1 - AUTHORIZATION
Appointment
Subject to the terms of this Agreement, CAC appoints OEM, and OEM accepts such
appointment, as a non-exclusive OEM for the Products, and when applicable for
New Products, in and limited to the territory set forth in Appendix F -
Territory.
Format
OEM may use or resell the Products as either stand-alone Products, or in
combination with other products of OEM's choice to meet OEM's customer
requirements. CAC makes no representation that the Products will be appropriate
for combination with any other product(s).
Nature of Agreement
To the extent that any Product contains or consists of software, OEM's
appointment only grants to OEM a license to distribute such software Product,
and does not transfer any right, title or interest to any such software Product
to OEM or OEM's customers. CAC will transfer title to Products to OEM only to
the extent that such Products consist of non-software items on the terms
specified herein. To the extent that such Products contain software, such
software (including firmware) will be licensed to OEM and its customers on a
right to use basis with all copyright, priority, or intellectual rights
remaining the property of CAC. Use of the terms "sell", "license", "purchase",
"license fees" and "price" will be interpreted in accordance with this Article.
CAC's Software License Agreement is attached herein as Appendix E.
Other Distribution Channels
CAC reserves the right to sell its Products directly, through other OEMs, and
through other third party intermediaries, including without limitation to
Distributors, Dealers and Value Added Partners who will normally add value to
the Product in the form of features, services, and/or brand recognition, and who
will sell the resulting derivitive product through their own channels of
distribution.
Independent Contractor
The relationship established by this Agreement is that of an independent
contractor. OEM has no expressed or implied authorization to incur any
obligation or commitment on behalf of CAC, unless specifically approved in
writing by an authorized CAC officer. OEM shall employ its own personnel and
shall be responsible for them and their acts. CAC shall in no way be liable for
OEM, its employees, or third parties, for any losses, injuries, damages, or the
like occasioned by OEM's activities in connection with this Agreement, except as
expressly provided for herein.
ARTICLE 2 - TERM
--------------------------------------------------------------------------------
Confidential 05/08/97
5
Sample - Non-Executable
THIS Agreement will commence on __________________ and continue for a twelve
(12) month period (hereinafter called "Term") through _________________ unless
terminated in accordance with the conditions of this Agreement. It may be
renewed for one additional 12 month period unless terminated by either party in
accordance with the conditions of this agreement.
ARTICLE 3 - TERMINATION AND ASSIGNMENT
Either party may terminate this agreement:
i. With or without cause upon ninety (90) days prior written notice to the
other party.
ii. Immediately if the other party:
(A) assigns this Agreement or any of its rights hereunder without the
prior written consent of the other party ("assigns" to include,
without limiting the generality thereof, a sale or transfer of a
majority ownership interest);
(B) makes an assignment for the benefit of creditors, or a receiver,
trustee in bankruptcy or similar officer is appointed to take charge
of all or part of its property;
(C) becomes insolvent or has petition in bankruptcy, reorganization or
similar action filed by or against it;
(A) fails to perform any material obligations under this Agreement and
such failure is not remedied within ten (10) days after written notice
thereof has been given to the other party;
(B) any termination of this Agreement pursuant to this Article will be in
addition to and will not be exclusive of or prejudicial to any other
rights or remedies at law or in equity available to the other party.
iii. Upon termination, other than for cause or pursuant to (ii.) above, CAC
will continue to provide spare parts for one (1) year so that OEM can
properly support its existing customer base. Spares will be provided at
the then current CAC OEM pricing and terms and conditions of sale for such
spares.
ARTICLE 4 - RESPONSIBILITIES OF CAC
CAC agrees to:
Offer Sales Training
To provide sales training on CAC Products and applications at OEM's expense for
OEM's sales personnel at CAC's corporate headquarters or OEM's locations as
agreed upon.
--------------------------------------------------------------------------------
Confidential 05/08/97
6
Sample - Non-Executable
Offer Technical Training
To provide at no charge, one (1) one technical training class annually at a OEM
location to enable OEM's sales and technical support personnel to properly
represent and offer technical support to their customers.
Provide Technical Support
I. Provide a technical support telephone number to OEM's personnel for Product
installation, trouble shooting, and Product applications advice. After
normal business hours (8:00 AM - 5:30 PM-Mountain Standard/Daylight Time,
Monday through Friday) this telephone number will provide the option of
paging an appropriate CAC customer service representative for emergency
situations.
II. Provide technical updates and product bulletins via facsimile and CAC's
Internet web page.
Provide Marketing Support
Provide OEM with timely reports detailing marketing or technical information on
products, competitive comparisons, special sales suggestions, competitive
announcements, pre-announcement product releases, and to respond promptly to all
inquiries and requests for sales assistance by OEM.
ARTICLE 5 - RESPONSIBILITIES OF OEM
OEM Agrees to:
Comply with Law
OEM will comply with all applicable international, national, state, regional and
local laws and regulations in connection with its activities under of this
Agreement.
Comply with U.S. Export Laws
OEM acknowledges that the Products, including related documentation and other
technical data (collectively, "Technical Data"), are subject to export controls
--------------
imposed by the U.S. Export Administration Act of 1979, as amended (the "Act"),
---
and the regulations promulgated thereunder ("BXA Regulations"). OEM will not
---------------
export or re-export (directly or indirectly) the Technical Data without
complying with the Act and the BXA Regulations. OEM certifies that: (a)
neither the Technical Data nor its direct Product is intended to be used for any
purposes prohibited by the BXA regulations, including, but not limited to,
nuclear proliferation; and (b) unless OEM first obtains written permission to do
so from the appropriate U.S. governmental agencies, no Technical Data will be
exported to any
--------------------------------------------------------------------------------
Confidential 05/08/97
7
Sample - Non-Executable
country to which the U.S. has prohibited shipment.
Perform No Engineering Modifications
OEM shall not reverse assemble, reverse compile or reverse engineer the Product
hardware or software supplied by CAC in any way.
Provide Contact Personnel
OEM shall appoint an individual to be the primary CAC support contact for its
customers. Furthermore, OEM will agree that this individual attends at least
one CAC training session annually.
Provide Sales and Service Coverage
Provide trained/authorized sales and technical service coverage to OEM's
customers for CAC Products. Such coverage includes but not limited to responding
to initial technical support inquiries, following up on sales leads, and
performing all activities required to execute a sale.
Meet Purchase Commitments
To meet or exceed purchase commitments as set forth Article 7 - Quotas and
Discounts and any minimum annual purchase quotas for New Products which may be
agreed upon by both CAC and OEM.
Provide Forecasts
Provide CAC with written monthly 90 day rolling sales forecasts which must
include the number of sales expected on each Product, Unit type, expected
delivery dates, and any special sales that require special equipment or of an
extremely large volume.
Special Services and Materials
To pay CAC agreed upon and reasonable charges for special support services
and/or materials which are provided at OEM's request, which are not normally
covered in accordance with the warranty or CAC practices.
Provide Warranty Registration and Service
To properly register the warranty for each and every Unit including Unit's
serial number and to maintain a log of service activity on all CAC Products, so
that CAC can properly track, investigate and resolve Product service issues.
Receive Technician Training
--------------------------------------------------------------------------------
Confidential 05/08/97
8
Sample - Non-Executable
To have at a minimum of two technicians who have completed CAC technical
training.
Stock Spare Parts
To maintain a minimum supply of spare parts to provide immediate service to
OEM's customers.
ARTICLE 6 - MINIMUM ORDER SIZE
The minimum order lot size per OEM order is one (1) Units within a product
group.
ARTICLE 7 - QUOTAS AND DISCOUNTS
To be determined.
ARTICLE 8 - ACCEPTANCE OF ORDERS
OEM shall purchase Products by issuing a written purchase order indicating
specific Products, quantity, price, total purchase price, shipping instructions,
requested delivery dates, and any other special instructions. OEM must place
orders in writing and submit them via mail, express delivery and/or by
facsimile.
All purchase orders issued under this agreement shall reference OEM's contract
number assigned to this agreement. The terms and conditions of this agreement
prevail regardless of any conflicting terms on the purchase order or other
documents of either CAC or OEM.
All orders are subject to written acceptance or rejection by CAC, in its sole
discretion, which CAC shall do within five working days, otherwise orders shall
be deemed accepted.
CAC shall fulfill all orders with new and latest revision of Product, unless
otherwise agreed.
OEM will submit all purchase orders to:
Carrier Access Corporation
Attn.: Customer Service
0000 Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
Telephone: 000-000-0000 or 000-000-0000
Facsimile: 000-000-0000 (Facsimile orders are acceptable.)
CAC may reject a OEM's order by reason of (but not limited to) current
availability of Product.
ARTICLE 9 - ORDER CANCELLATION
--------------------------------------------------------------------------------
Confidential 05/08/97
9
Sample - Non-Executable
Orders canceled or rescheduled by OEM within fifteen (15) days of scheduled
shipment date are subject to a fifteen (15) % re-stocking fee. Orders cannot be
canceled or rescheduled less than fifteen (15) days prior to shipment.
ARTICLE 10 - PRODUCT IDENTIFICATION
All Products supplied to OEM pursuant to this agreement shall be marked, as
applicable and in accordance with standard practices of CAC, as appropriate,
with: (1) OEM's name and/or logo; (2) model number or part number; (3) serial
number; (4) shipping date; (5) copyright notice; (6) country of origin; and (7)
such other markings as may be required for warranty period identification or by
applicable law.
ARTICLE 11 - PACKAGING
Products will be packed or packaged for U.S. shipment in accordance with
standard commercial practices. OEM and CAC will agree to a price for packaging
if OEM requests packaging outside of standard commercial practices.
ARTICLE 12 - INSPECTIONS AND RECORDS
Notification
OEM will: (i) notify CAC in writing of any claim or proceeding involving the
Products within ten (10) working days after OEM learns of such claim or
proceeding; (ii) report promptly to CAC all claimed or suspected Product
defects.
Records
OEM will maintain, for at least one (1) year after termination of this
Agreement, its records, contracts, and accounts relating to distribution of the
Products, and will permit examination thereof by authorized CAC representatives
with reasonable notice to OEM.
CAC will inspect Products prior to shipment in accordance with its normal
practices, which shall be no less than standard industry practices. CAC
reserves the right to charge for other inspections or tests requested by OEM.
ARTICLE 13 - SHIPPING AND DELIVERY
Shipping dates will be established by CAC upon receipt of purchase orders from
OEM. Shipping dates will be assigned as close as practical to OEM's requested
date. CAC will use best efforts to notify OEM of the actual scheduled shipping
date within five (5) working days after receipt of order (ARO).
OEM has the right to defer Product shipment for no more than thirty (30) days
from the scheduled shipping
--------------------------------------------------------------------------------
Confidential 05/08/97
10
Sample - Non-Executable
date, provided written notice is received by CAC at least fifteen (15) days
before originally scheduled shipping date. Deferrals for greater than thirty
(30) days will be deemed canceled. Deferrals or cancellations within thirty (30)
days are subject to charges and terms outlined in Article 9 - Order
Cancellation.
OEM shall be responsible for all freight handling and insurance charges. CAC
shall select the carrier, acquire in-transit insurance and invoice OEM for
freight handling and insurance charges, unless specifically declined in writing
by OEM. In no event shall CAC have any liability in connection with shipment,
nor shall the carrier be deemed to be an agent of CAC.
Title, risk of loss, and insurance responsibilities pass to OEM upon delivery of
Products by CAC to the shipping agent or carrier at the FOB point. Delivery
shall be deemed made upon transfer of possession to the carrier. All orders are
shipped FOB Boulder, Colorado. Orders less than minimum order size and for
expedited delivery are subject to a fifteen (15%) surcharge.
ARTICLE 14 - PRICE
To be determined.
ARTICLE 15 - OEM RESALE PRICE
Although CAC may publish suggested wholesale or retail prices, these are
suggestions only and OEM will be entirely free to determine the actual prices
and license fees at which the Products will be sold or licensed to its
customers.
ARTICLE 16 - PAYMENT
Subject to prior credit approval, the terms of payment are 30 days from date of
invoice. Where credit approval has not been granted or OEM is at their credit
limit as determined by CAC, the terms are wire transfer of funds prior to
shipment. Invoices for Products will be rendered as shipments are made. Late
charges of 1.5% (or the maximum amount permitted by law if less), per month, on
outstanding balances will be charged.
ARTICLE 17 - RETURNS AND REJECTIONS
Returns and rejections are covered in Appendix C - Product Returns.
ARTICLE 18 - TERRITORY
This Agreement and appointment only applies to the territories listed in
Appendix F - Territory
ARTICLE 19 - WARRANTY AND REMEDIES
--------------------------------------------------------------------------------
Confidential 05/08/97
11
Sample - Non-Executable
Limited Warranty
CAC MAKES NO WARRANTIES OR REPRESENTATIONS AS TO PERFORMANCE OF PRODUCTS OR AS
TO SERVICE TO OEM OR TO ANY OTHER PERSON, EXCEPT AS SET FORTH IN CAC's LIMITED
WARRANTY ATTACHED HERETO AS APPENDIX D. CAC RESERVES THE RIGHT TO CHANGE THE
WARRANTY AND SERVICE POLICY SET FORTH IN SUCH LIMITED WARRANTY, OR OTHERWISE, AT
ANY TIME, WITH NINETY (90) DAYS WRITTEN NOTICE AS IT APPLIES TO EQUIPMENT
PURCHASES AFTER THE 90 DAY PERIOD, AND WITHOUT LIABILITY TO OEM OR TO ANY OTHER
PERSON. SUCH CHANGES WILL NOT APPLY TO ANY PRODUCT SHIPPED PRIOR TO THE END OF
THE NINETY (90) DAY NOTICE PERIOD.
OEM's Warranty
OEM will make no warranty, guarantee or representation on CAC's behalf. In the
event that OEM makes unauthorized representations or guarantees beyond those
contained in Appendix D - Warranties and Limitation of Remedies, OEM shall hold
harmless and indemnify CAC for any expenses, claims, damages or liability of any
nature whatsoever arising from or related to such unauthorized representations
or guarantees, including without limitation, reasonable attorney's fees.
ARTICLE 20 - WARRANTY PASS THROUGH
Upon the resale of Products purchased hereunder, OEM is required to pass through
to its customer(s) a document with terms and conditions equivalent to Appendix D
- Warranties and Limitation of Remedies. This pass through applies to those
Products purchased from CAC and resold by OEM without alteration, modification,
assembly with other manufacturer's equipment or re-labeling by OEM.
ARTICLE 21 - EXERCISE OF RIGHTS
A failure by one of the parties to this Agreement to assert its rights for or
upon any breach of this Agreement will not be deemed a waiver of such rights,
nor will any such waiver be implied from acceptance of any payment. No waiver
written by one of the parties herein with respect to any right under this
Agreement will extend to or affect any subsequent breach of any kind.
ARTICLE 22 - NEW PRODUCTS
During the term of this agreement CAC may introduce New Products that OEM wishes
to include in this agreement. New Products may have minimum purchase
commitments and special discounts associated with them that CAC and OEM will
mutually agree to. CAC will have no obligation to offer New Products to OEM or
to offer any particular terms and conditions concerning such New Products. Any
New Products added to this Agreement and their commitments and discounts may be
added to Appendix G - New Products when appropriate.
ARTICLE 23 - DOCUMENTATION
Standard Documentation
--------------------------------------------------------------------------------
Confidential 05/08/97
12
Sample - Non-Executable
CAC shall provide a soft copy (disc) of Product manual(s) when available.
Production of these manuals will be the responsibility of OEM. CAC will provide
updates to these manuals as they become available.
Documentation Reproduction and Modification
With CAC prior approval, OEM shall have the right to reproduce in whole or in
part, the documentation relating to Product, for use in conjunction with
Products and training and any updates, modifications and revisions thereto. CAC
is not responsible for errors and omissions in OEM manuals.
ARTICLE 24 -TRADEMARKS
Right To Use
Use of OEM's Trademarks.
The Products provided to OEM pursuant to this Agreement will be distributed and
marketed by OEM under OEM's own trademarks and trade names, except as stipulated
in Article 10 Product Identification. OEM's trademarks, trade names, insignia,
symbols, and/or decorative designs and part numbers may, at OEM's request, be
affixed or applied by CAC to the Equipment purchased by OEM hereunder. OEM
shall provide such items as are to be affixed (or the artwork necessary to
create the images to be applied) and shall reimburse CAC for its actual
incremental expenses for materials consumed in such process.
Copyright and Trademark Notices
OEM will include on each CAC Product that it distributes, and on all containers
and storage media therefor, all trademark, copyright and other notices of
proprietary rights included by CAC on such CAC Product. OEM agrees not to
alter, erase, deface or overprint any such notice on anything provided by CAC.
OEM also will include the appropriate trademark notices when referring to any
CAC Product in advertising and promotional materials.
ARTICLE 25 - NOTICES
Any notice, approval, request, authorization, direction or other communication
under this agreement shall be given in writing and shall be deemed to have been
delivered and given for all purposes (i) on the delivery date if delivered
personally to the party to whom the same is directed; (ii) one business day
after deposit with a commercial overnight carrier, with written verification
receipt, (iii) by facsimile with written confirmation of receipt, or (iv) five
days after the mailing date, whether or not actually received, if sent by U.S.
Postal Service, return receipt requested, postage and charges pre-paid, or any
other means of rapid mail delivery for which a receipt is available to the
address of the party to whom same is directed as set forth as follows.
For CAC: Carrier Access Corporation
Attention: Contracts
0000 Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
Confidential 05/08/97
13
Sample - Non-Executable
For OEM: ____________________
Attention: ____________________
____________________
____________________
The above addresses may be changed at any time by giving prior written notice as
provided herein.
ARTICLE 26 - SURVIVAL OF OBLIGATIONS
Each party's obligations under this Agreement which by their nature would
continue beyond termination, cancellation or expiration of this Agreement,
including by way of illustration only and not limitation, those in the Warranty
& Limitation of Remedies, and technical data will survive the termination or
cancellation of this agreement for a period of two years from such termination
or cancellation. Articles 3, 16, 17, 20, 23, 26, 27, 28, 30, 34, and 35 shall
survive the cancellation or termination of this Agreement for any reason.
ARTICLE 27 - TAXES
In addition to the purchase price, OEM will pay CAC the amount of all taxes,
excises, export duties, or governmental charges that CAC may be required to pay
with respect to the sale or transportation of any Products delivered hereunder,
except taxes on or measured by CAC's net income. If OEM claims exemption from
any taxes by purchase of Products under this Agreement, OEM will provide CAC
with documentation required by the taxing authority to support the exemption.
ARTICLE 28 - TECHNICAL DATA AND LICENSING
All drawings, data, designs, tooling, equipment, procedures, engineering
changes, inventions, computer software and all parts thereof, and all other
information, technical or otherwise which was developed, made or supplied by CAC
in the Production of any Product or the performance of any Service sold,
rendered or licensed hereunder will be and remain the sole property of CAC.
OEM agrees that CAC software and firmware Products, or any software or firmware
in CAC Products is hereby licensed (not sold) subject to the terms set forth in
this Article and contains information and trade secrets proprietary to or
licensed to CAC. No change, modification, defacement, alteration, reverse
engineering, disassembly, de-compilation or reproduction of such Product or
disclosure of programming content to other parties is allowed without the
express written consent of CAC. Software and firmware are unpublished, and any
copyright notices placed thereon will not be deemed to constitute publication.
OEM agrees to pass on all terms of CAC's software and firmware licenses to the
ultimate user. See Appendix E - Software License Agreement.
ARTICLE 29 - PATENT INFRINGEMENT - IDEMNIFICATION
Each Party (the "Indemnitor") hereby indemnifies and holds the other Party (the
"indemnitee"), its directors, officers, agents and employees harmless against
any and all claims, actions and damages,
--------------------------------------------------------------------------------
Confidential 05/08/97
14
Sample - Non-Executable
liabilities or expenses including attorneys fees and other legal costs for
injury to or death to any person, and for loss of or damage to any and all
property arising out of the negligent acts or omissions of the Indemnitor under
this Agreement.
CAC will defend, at its own expense, any action brought against OEM to the
extent that it is based on a claim that any CAC supplied designs, material,
processes, or documentation hereunder constitutes a direct infringement of any
duly issued United States patent or infringement of any copyright, in the United
States. CAC will pay all damages and costs finally awarded against OEM in such
action which are attributable to such action, provided that CAC is promptly
informed in writing and furnished a copy of each communication, notice, or other
action relating to the alleged infringement and is given authority, information,
and assistance necessary to defend or settle such claim. Should equipment
likely to become the subject of a claim of infringement of any United States
patent or any copyright, trade secret, or other proprietary rights in the United
States, then CAC may, at its option: (i) procure for OEM the right to use such
equipment free of any liability for infringement; (ii) replace such equipment
with non-infringing substitutes otherwise complying substantially with all the
requirements of the contract; or (iii) refund the purchase price, less a charge
for equal to one sixtieth (1/60) of the purchase price of the Product for each
month that OEM enjoyed beneficial use, and accept the return of such equipment.
THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF THE PARTIES TO THIS
AGREEMENT FOR PATENT AND COPYRIGHT INFRINGEMENT AND IS IN LIEU OF ALL CONDITIONS
OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, IN REGARD THERETO.
ARTICLE 30 - LIMITATION OF LIABILITY
CAC shall not be liable for delays in delivery or failure to manufacture or
deliver Product or to otherwise perform any obligation due to OEM under this
Agreement due to any cause beyond CAC's reasonable control, such as acts of
God, acts of civil or military authority, labor disputes, fire, riots, sabotage,
war, embargo, blockage, floods, earthquake, epidemics, power shortages, or when
due to government restrictions. The rights of OEM under this Agreement,
including the right to continue the Agreement shall not be affected by OEM's
failure to perform any obligation contained herein where such failure is due to
any cause beyond its control, such as acts of God, acts of civil or military
authority, labor disputes, fire, riots, sabotage, or when due to government
restrictions. Since OEM will have the exclusive control over the use and
disposition of the Product purchased under this agreement, OEM shall be
responsible for the proper use, protection, supervision, and ultimate
disposition of that Product in accordance with OEM's own rules and regulations.
OEM indemnifies and agrees to hold CAC harmless with respect to any cost,
damage, or expense (including reasonable attorney fees) arising from breach by
OEM of its obligations under this Agreement or from claims made by OEM's
customers concerning the selling, renting, leasing, operation, service, of the
Product or from damage, injury or loss to third parties caused by OEM's fault or
negligence.
In no event shall CAC's liability under this agreement, regardless of the form
of action, include any special, indirect, incidental or consequential damages or
claims for loss of business or loss of profits, even if CAC shall
--------------------------------------------------------------------------------
Confidential 05/08/97
15
Sample - Non-Executable
have been advised of the possibility of such potential loss or damage. The
liability of CAC arising out of the supplying of any Product or its use, whether
based upon warranty, contract, negligence or otherwise, shall not in any case
exceed the original cost to OEM of such Product.
ARTICLE 31 - GENERAL PROVISIONS
The laws of the State of Colorado, USA will apply and govern in the construction
and application of this Agreement and to all transactions hereunder. Any
action hereunder will be brought in the courts of the Twentieth Judicial
District, County of Boulder, State of Colorado, USA and will be governed by and
interpreted and constituted in accordance with the laws of the State of
Colorado. Any claim, except for nonpayment, will be brought within one year of
the Product shipment. OEM will be liable for all collection costs and attorney
fees. CAC may only subcontract any obligations contained in this Agreement with
prior written notice.
If any provision of this Agreement is deemed invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions will not
be affected or impaired thereby.
No waiver will be valid unless in writing and no waiver granted will release OEM
or CAC from subsequent strict compliance herewith.
--------------------------------------------------------------------------------
Confidential 05/08/97
16
Sample - Non-Executable
IN WITNESS WHEREOF, the parties hereto executed this Agreement as of the data
written below.
CARRIER ACCESS CORPORATION OEM
__________________________ __________________________
SIGNATURE SIGNATURE
__________________________ __________________________
NAME (PRINT/TYPE) NAME (PRINT/TYPE)
__________________________ __________________________
TITLE TITLE
__________________________ __________________________
DATE DATE
--------------------------------------------------------------------------------
Confidential 05/08/97
17
Sample - Non-Executable
APPENDIX A - PRODUCTS
--------------------------------------------------------------------------------
Confidential 05/08/97
18
Sample - Non-Executable
APPENDIX B - LIST PRICE
--------------------------------------------------------------------------------
Confidential 05/08/97
19
Sample - Non-Executable
APPENDIX C - PRODUCT RETURNS
RETURN MATERIAL AUTHORIZATION
A Return Material Authorization (RMA) number and corresponding tracking sheet
must accompany all Products returned to CAC. An RMA number must be obtained from
CAC's technical product support department prior to returning any Product.
Warranty registration cards should be returned to CAC to help expedite RMA
process. Upon issuance of an RMA number, CAC's technical support group will fax
a product tracking sheet to OEM that must be completed and included with the
return shipment. It is OEM's responsibility to properly insure and pack all
returned materials. All Products must be returned freight pre-paid in the
original packaging materials with the RMA number clearly displayed on the
outside of the box. If original shipping materials are not available, CAC will
ship replacement materials to OEM at a rate of $25.00/container plus freight
charges.
Any Product returned without a valid RMA number will be rejected and returned to
OEM freight collect. Product found damaged, improperly used, or modified so that
it does not meet specification will be returned to OEM freight collect.
When returning parts under this procedure OEM shall do the following with
respect to each shipment:
Prepare RMA parts lists and indicate:
- Part Number and serial number of returned part*
- Quantity of each item
- Description of failure or reason for return
- Completed CAC Tracking Sheet
Product must be identified and RMA number referenced on shipping materials. OEM
is responsible for insurance and shipping charges.
COLLECT ON DELIVERY (COD) SHIPMENTS CANNOT BE ACCEPTED
* An equipment description must accompany the shipment. "Channel Bank" will not
be accepted. The correct description would be: AB-I/FXS/FXS --Serial Number
________.
Returned units that are tested with no trouble found will be returned to OEM's
COD for no trouble found and return shipping charges. To save on no trouble
found charges, only return components that have been verified as failures. For
example, return a single FXS card that has been identified with a failed channel
9, rather than an entire Access Bank.
SHIPPING
CAC assumes no liability for damage, loss, or shortage incurred during shipment
of the Product to OEM.
--------------------------------------------------------------------------------
Confidential 05/08/97
20
Sample - Non-Executable
Products found to be defective as the result of shipment or mishandling will be
either returned to OEM or repaired on a time and materials fee basis. These
charges will also include a time/labor charge for testing the Product to insure
it conforms to specification.
Upon receipt of Product, OEM should inspect the shipment before accepting
delivery. Damage, breakage, or shortages should be noted on the carrier's
freight xxxx with supporting documentation for OEM's claim against the freight
carrier. Shortages or variances from a OEM's order should be forwarded to CAC
within fifteen (15) days of shipment. All shipments should be shipped freight
pre-paid and insured to cover any losses.
ADVANCE REPLACEMENT
OEM should maintain adequate stock to provide advance replacement units if it is
their policy to offer this service. CAC will not drop ship to OEM's customer.
In the event that a RMA is issued by CAC for an out of box failure, it will be
replaced immediately upon receipt of product and verification of defect at CAC.
SUMMARY OF SERVICE FEES
PRODUCTS UNDER WARRANTY
1. Warranty Repair (Parts & Time) $ 0
2. No Trouble Found Test Fee 10% of List Price
Return Shipping Charges
PRODUCTS OUT OF WARRANTY
1. Time (Labor) $90.00/Hour
2. Materials Current Price of Replacement Part
REFURBISHMENT OF DEMO EQUIPMENT
1. Labor $250.00 flat fee
2. Material CAC cost
SPARE PARTS
Parts displaced from out of warranty equipment may be returned to CAC for repair
but must follow the above RMA procedure and have a repair/replacement purchase
order accompanying the shipment. CAC reserves the right to use refurbished or
used parts for repair.
--------------------------------------------------------------------------------
Confidential 05/08/97
21
Sample - Non-Executable
APPENDIX D - WARRANTIES AND LIMITATION OF REMEDIES
Carrier Access Corporation warrants to OEM that Products are free from
substantial defect in material and workmanship under normal use given proper
installation and maintenance for period of five (5) years from the date of
shipment by CAC.
OEM will promptly notify CAC of any defect in the Product. CAC or its agent
will have the right to inspect the Product or workmanship on OEM's premises or
OEM's customer's premises. CAC has the option to: (a) repair, replace or
service at its factory or on the premises the Product or workmanship found to be
defective, or (b) credit BUYER for the PRODUCT in accordance with CAC's
depreciation policy. Refurbished material may be used to repair or replace the
Product. Products returned to CAC for repair, replacement, or service will be
shipped pre-paid by OEM.
LIMITATION OF WARRANTY & LIMITATION OF REMEDIES
Correction of defects by repair, replacement, or service will be at CAC's option
and constitute fulfillment of all obligations to OEM for breach of warranty.
CAC assumes no warranty liability with respect to defects in the Product caused
by:
i. modification, repair, installation, operation or maintenance of the Product
by anyone other than CAC or its agent, except as described in CAC's
documentation; or
ii. the negligent or other improper use of the Product; or
iii. handling or transportation after title of the Product passes to OEM.
Other manufacturer's equipment purchased by CAC and resold to OEM will be
limited to that manufacturer's warranty. CAC assumes no warranty liability for
other manufacturer's equipment furnished by OEM.
OEM understands and agrees as follows: the warranties in this agreement replace
all other warranties, expressed or implied, and all other obligations or
liabilities of CAC, including any warranties of merchantability and fitness for
a particular purpose. All other warranties are disclaimed and excluded bY CAC.
The remedies contained in this agreement will be the sole and exclusive remedies
whether in contract, tort or otherwise, and CAC will not be liable for injuries
or damages to persons or property resulting from any cause
--------------------------------------------------------------------------------
Confidential 05/08/97
22
Sample - Non-Executable
whatsoever, with the exception of injuries or damages caused by the gross
negligence of CAC. This limitation applies to all services, software and
Products during and after the warranty period. In no event will CAC be liable
for any special, incidental or consequential damages or commercial losses even
if CAC has been advised thereof.
No agent, OEM, or representative is authorized to make any warranties on behalf
of CAC or to assume for CAC any other liability in connection with any of CAC's
Products, software or services.
--------------------------------------------------------------------------------
Confidential 05/08/97
23
Sample - Non-Executable
APPENDIX E - SOFTWARE LICENSE AGREEMENT
LICENSE
Subject to the following terms and conditions Carrier Access Corporation (CAC)
grants to the original purchaser (Purchaser) of CAC hardware and software
products (Products) and Purchaser accepts a perpetual, non-exclusive license to
use the object code software and firmware provided by CAC (the Licensed Program)
only with CAC Products with all copyright, patent and intellectual property
rights remaining the sole property of CAC.
Purchaser shall receive software support and upgrades for the Licensed Program
in accordance with the applicable then current CAC software support policy in
effect and upon payment of any applicable fees.
PROTECTION AND SECURITY OF LICENSED PROGRAMS
Purchaser acknowledges and agrees that the Licensed Program contains proprietary
and confidential information of CAC and/or its third party supplier. Purchaser
agrees to protect the confidential and proprietary nature of the Licensed
Program as confidential information and a trade secret of CAC.
Purchaser shall not use, print, copy, translate, adapt, create derivative works
from, record, transmit, display, disclose, publish, encumber by way of security
interest or otherwise pledge or transfer, modify, assign, distribute, rent, loan
or make available to any third party the Licensed Program in whole or in part,
except as expressly provided in this Agreement.
Purchaser shall refrain from and shall prevent others from decompiling or
applying any procedure to the Licensed Program, including reverse engineering or
any similar process, in order to derive and/or appropriate for use, the source
code or source listings for the Licensed Program.
TERM
This Agreement shall become effective for each Licensed Program upon delivery of
the Licensed Program to Purchaser.
CAC may terminate this Agreement and the license upon notice to Purchaser if any
amount payable by Purchaser in respect of any of the Products is not paid within
thirty (30) days of the date such payment is due, or if Purchaser otherwise
breaches any provision of this Agreement and fails to cure such breach within
thirty (30) days of notice thereof, or if Purchaser becomes bankrupt, makes an
assignment for the benefit of creditors or a trustee is appointed for Purchaser,
or if the assets of Purchaser vest in or become subject to the rights of any
trustee, receiver, board, tribunal, commission or any body, corporation or
person, other than Purchaser, or if bankruptcy, reorganization or insolvency
proceedings are instituted by or against Purchaser and are not dismissed within
30 days.
LIMITED WARRANTIES
--------------------------------------------------------------------------------
Confidential 05/08/97
24
Sample - Non-Executable
CAC warrants that when the Licensed Program is delivered that it will function
substantially in accordance with the functional description set out in the
applicable portion of the version of the user manual supplied with the Licensed
Program when used in accordance with such user manual. This warranty will be
conclusively deemed to be satisfied unless Purchaser gives CAC notice within 90
days of the date CAC ships the original copy of such Licensed Program that the
warranty has not been met, in which case CAC shall have the opportunity to make
repeated efforts within a reasonable time to satisfy its obligations under this
warranty. If, after repeated efforts, Purchaser notifies CAC that this warranty
has not been met, CAC will take back the Licensed Program and refund to
Purchaser all amounts paid by Purchaser hereunder with respect to such Licensed
Program.
THE WARRANTY SET OUT ABOVE SHALL CONSTITUTE THE SOLE LIABILITY OF CAC AND THE
SOLE REMEDY OF PURCHASER FOR ANY FAILURE OF ANY PROGRAM TO FUNCTION AS
WARRANTED.
EXCEPT AS EXPRESSLY PROVIDED HEREIN THERE ARE NO WARRANTIES, CONDITIONS OR
REPRESENTATIONS EXPRESS OR IMPLIED BY STATUTE, USAGE, CUSTOM OF THE TRADE OR
OTHERWISE WITH RESPECT TO THE LICENSED PROGRAMS PROVIDED BY CAC HEREUNDER,
INCLUDING BUT NOT LIMITED TO, WARRANTIES OR REPRESENTATIONS OF WORKMANSHIP,
MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR DURABILITY,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CAC DOES NOT WARRANT THAT THE
LICENSED PROGRAM WILL MEET ALL OF PURCHASER'S NEEDS OR THAT OPERATION OF THE
LICENSED PROGRAM WILL BE ERROR FREE.
LIMITATION OF LIABILITY
IN NO EVENT WHATSOEVER, REGARDLESS OF THE FORM OR CAUSE OF ACTION WHETHER IN
CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR THE NUMBER OF CLAIMS ASSERTED, SHALL
CAC's, ITS EMPLOYEES', DIRECTORS', OFFICERS' AND AGENTS' TOTAL COLLECTIVE
LIABILITY TO PURCHASER FOR ALL CLAIMS EXCEED THE AMOUNT PAID UNDER THIS
AGREEMENT FOR THE LICENSED PROGRAM THAT IS THE SUBJECT MATTER OF OR THAT IS
DIRECTLY RELATED TO CAUSE OF ACTION, PROVIDED THAT IN NO EVENT SHALL THE TOTAL
COLLECTIVE LIABILITY OF CAC, ITS EMPLOYEES, OFFICERS, AGENTS AND DIRECTORS
EXCEED THE AMOUNT PAID TO CAC PURSUANT TO THIS AGREEMENT.
CAC, ITS EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS SHALL NOT BE LIABLE IN ANY
WAY WHATSOEVER, WHETHER AS A RESULT OF A CLAIM OR ACTION IN CONTRACT OR TORT,
INCLUDING NEGLIGENCE OR OTHERWISE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS OR LOST BUSINESS REVENUE,
LOST BUSINESS, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHER COMMERCIAL OR
ECONOMIC LOSS OF ANY KIND WHATSOEVER, OR FOR ANY DAMAGES, DIRECT OR INDIRECT,
SPECIAL OR CONSEQUENTIAL ARISING OUT OF ANY CLAIM AGAINST PURCHASER BY ANY
PERSON WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT CAC, ITS
EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS HAVE BEEN ADVISED OF THE
--------------------------------------------------------------------------------
Confidential 05/08/97
25
Sample - Non-Executable
POSSIBILITY OF SUCH DAMAGES WHICH ARE IN ANY WAY RELATED TO THIS AGREEMENT OR
THE LICENSED PROGRAM.
THE FOREGOING PROVISIONS LIMITING THE LIABILITY OF CAC EMPLOYEES, AGENTS,
OFFICERS AND DIRECTORS SHALL BE DEEMED TO BE FOR THE BENEFIT OF SUCH EMPLOYEES,
OFFICERS, DIRECTORS AND AGENTS AND SHALL BE ENFORCEABLE BY SUCH AS THIRD PARTY
BENEFICIARIES.
PATENT, COPYRIGHT, TRADE NAME AND TRADE SECRET INFRINGEMENT
CAC shall defend any suit alleging the infringement of any patent, copyright or
trade secret which is brought against Purchaser on account of its use of the
Licensed Program and shall pay all reasonable legal costs and expenses incurred
by Purchaser in conjunction therewith and satisfy all monetary judgments and
decrees against Purchaser, provided that Purchaser notifies CAC within ten (10)
business days of the date any such claim becomes known to Purchaser, that CAC
shall have sole control of the defense or settlement of such actions, and that
Purchaser provides such assistance and cooperation to CAC as is reasonably
requested.
In the event Purchaser is enjoined from its use of CAC Licensed Program due to
proceeding based upon any infringement of any patent, copyright or trade secret,
CAC shall either:
i) promptly render the Licensed Program non-infringing and capable of
providing services as intended; or
ii) procure for Purchaser the right to continue using the Licensed
Program; or
iii) replace the Licensed Program with a non-infringing version; or
iv) remove the Licensed Program and refund the purchase price, less a
monthly usage fee equal to one sixtieth of the license for each month
that Purchaser has had use of the Licensed Program.
The foregoing constitutes the entire liability of CAC to Purchaser with respect
to infringement of patents, copyrights, and trade secrets for Products purchased
pursuant to this Agreement and CAC hereby disclaims any implied warranty of non-
infringement.
MISCELLANEOUS
Notwithstanding anything else in this Appendix, CAC shall not, in any way
whatsoever, be held liable or responsible for any failure by it to meet its
obligations or responsibilities under this Appendix where such failure results
from causes beyond CAC's reasonable control.
This Appendix constitutes the entire understanding between CAC and Purchaser
with respect to the licensing of the Licensed Programs to Purchaser by CAC and
supersedes all prior oral and written communications with respect to the
Licensed Programs licensed under this Appendix. This Appendix may be amended or
modified
--------------------------------------------------------------------------------
Confidential 05/08/97
26
Sample - Non-Executable
only by means of a written Agreement signed by both CAC and Purchaser.
If any provision of this Appendix shall be held to be invalid, illegal or
unenforceable, such provision shall be severed therefrom and the validity,
legality or enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Purchaser shall comply with all export regulations pertaining to the Licensed
Program in effect from time to time. In particular, without limiting the
generality of the foregoing, Purchaser hereby warrants that it will not directly
or indirectly export, re-export or transship the Licensed Program or such other
information, media or products in violation of or otherwise in contravention of
the export laws, rules and regulations of the United States.
--------------------------------------------------------------------------------
Confidential 05/08/97
27
Sample - Non-Executable
APPENDIX F - TERRITORY
OEM will have the non-exclusive rights to market the Product within the fifty
(50) U.S. states and Canada unless otherwise authorized in writing and subject
to the terms and conditions set forth in this Agreement.
--------------------------------------------------------------------------------
Confidential 05/08/97
28
Sample - Non-Executable
APPENDIX G - NEW PRODUCTS
THIS PAGE LEFT INTENTIONALLY BLANK
--------------------------------------------------------------------------------
Confidential 05/08/97
29
Sample - Non-Executable
--------------------------------------------------------------------------------
Confidential 05/08/97
30
