MASTER PURCHASE/RESELLER AGREEMENT By and Between Siemens Communications, Inc. and Wherify Wireless, Inc.
By
and Between
Siemens
Communications, Inc.
and
Wherify
Wireless, Inc.
TABLE
OF CONTENTS
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4
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1.0
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DEFINITIONS
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4
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2.0
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SCOPE
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4
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3.0
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TERM
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6
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4.0
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SPECIFIC
PROJECT AMENDMENT
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6
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5.0
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ORDERING
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7
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6.0
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CHANGE
ORDERS
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10
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7.0
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TESTING
AND PRODUCTION OF PRODUCT(S)
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10
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8.0
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PACKAGING,
SHIPPING, TITLE, AND RISK
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10
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9.0
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DOCUMENTATION
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12
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10.0
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TRAINING
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13
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11.0
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PRODUCT
CHANGES AND NEW PRODUCT DEVELOPMENT
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13
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12.0
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SUBCONTRACTORS
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14
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13.0
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PRICES
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14
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14.0
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INVOICING
AND PAYMENT
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15
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15.0
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AUDITS
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16
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16.0
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REPRESENTATIONS,
WARRANTY, AND SERVICES
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17
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17.0
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PRODUCT
SUPPORT
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21
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18.0
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INSURANCE
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22
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19.0
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INDEMNITIES
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23
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20.0
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SOFTWARE
LICENSE
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25
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21.0
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FORCE
MAJEURE
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26
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22.0
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DISPUTE
RESOLUTION
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27
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23.0
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TERMINATION
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28
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24.0
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CONFIDENTIAL
INFORMATION
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31
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25.0
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GENERAL
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33
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ATTACHMENT
A: DEFINITIONS
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38
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ATTACHMENT
B: TRAINING PROGRAMS
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40
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ATTACHMENT
C: QUALITY ASSURANCE AND RELIABILITY REQUIREMENTS
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42
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ATTACHMENT
D: LABELING AND MARKING OF PRODUCT
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44
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ATTACHMENT
E: SUPPORT LEVEL AGREEMENT
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45
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1.
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OVERVIEW
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46
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2.
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DEFINITIONS
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46
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3.
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SUPPORT
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49
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3.4
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RESPONSIBILITIES
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50
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3.5
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CONTACT
INFORMATION
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50
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4.
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MANAGEMENT
ESCALATION PROCEDURE
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50
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5
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WHERIFY
PERFORMANCE
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51
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| Schedule I - Technical Assistance | 53 | ||
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1.
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EQUIPMENT
AND SUPPORT FOR SIEMENS AND CUSTOMER LAB TRIAL AND
TESTING
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53
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2.
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SOFTWARE
MAINTENANCE
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53
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3.
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SPORADIC
MALFUNCTION
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53
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4.
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EPIDEMIC
FAILURE
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53
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6.
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PROBLEM
RESOLUTION
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53
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8.
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PROBLEM
SEVERITY CLASSIFICATION
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55
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9.
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SEVERITY
DEFINITIONS
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55
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10.
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TECHNICAL
SUPPORT IN THE FIELD
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56
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| Schedule II - Repair and Return | 57 | ||
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1.
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HARDWARE
REPAIR
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57
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2.
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REPAIR
AND RETURN PROCEDURES
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58
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3.
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EXTENDED
WARRANTY
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59
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4.
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SPARES
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59
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| Schedule III - Training | 60 | ||
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1.
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GENERAL
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60
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2.
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TRAINING
TO ENABLE SIEMENS TO SELL AND SUPPORT
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60
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3.
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WHERIFY-PROVIDED
CUSTOMER TRAINING
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60
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4.
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SIEMENS
PROVIDED CUSTOMER TRAINING
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61
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4.1
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TRAINING
EQUIPMENT FOR SIEMENS FACILITIES
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62
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Schedule
IV - Documentation
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63
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1.
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GENERAL
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63
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2.
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PRODUCT
DOCUMENTATION
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63
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3.
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DOCUMENTATION
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63
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4.
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ELECTRONIC
BULLETIN BOARD ACCESS
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63
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5.
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DOCUMENTATION
FORMAT
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64
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6.
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ADVANCED
NOTIFICATION
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64
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| ATTACHMENT F: SPECIFIC PROJECT AMENDMENT |
65
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ATTACHMENT
G: WHERIFY’S PRICE LIST
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68
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ATTACHMENT
H: PRODUCT LIST, SPECIFICATIONS, AND ROADMAP
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69
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ATTACHMENT
I: ADOPTION AGREEMENT
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70
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by
and between
Siemens
Communications, Inc.
and
Wherify
Wireless, Inc.
This
Master Purchase/Reseller Agreement (“Agreement”), effective as of January 16,
2005, (“Effective Date”) is entered into by and between
Wherify
Wireless, Inc.,
a
Delaware
corporation with offices located at 0000
Xxxxxx Xxxxxx Xxxxxxx Xxxxxx, XX 00000(“Wherify”)
and
Siemens Communications, Inc., a Delaware corporation acting by and through
the
subunit known as m2mOne of its Wireless Modules Business Unit, with offices
located at 00000 Xxxx Xxxxxxxx Xx., Xxx Xxxxx, XX 00000 (“Siemens”) (either
party may be individually referred to as “Party” or collectively as “Parties”).
This Agreement sets forth the terms under which Siemens may request Wherify
to
provide Product(s) and Location
Services
for a customer (“Customer”) or for Siemens to resell
pursuant
to an Order. If specific terms and conditions are applicable to a particular
transaction, the Parties shall agree to specific terms and conditions on a
transaction-by-transaction basis by executing a Specific Project Amendment
(“SPA”) in the form of Attachment
F: Specific Project Amendment.
WHEREAS,
Siemens
and its Affiliates intend to market and distribute the Product(s) either as
a
stand-alone product,
or, in
combination with other products and Services;
WHEREAS,
Wherify
is
willing to provide the Product(s) and Location
Services
to Siemens and its Affiliates as set forth below; and
WHEREAS,
Siemens
and Wherify
desire
to cooperate with regard to providing the Product(s) and Location Services
for a
Customers project(s) as
described in this Agreement.
NOW,
THEREFORE,
in
consideration of the mutual obligations undertaken, the Parties agree as
follows.
1.0 DEFINITIONS
Certain
definitions of capitalized terms are set forth in Attachment
A: Definitions.
Other
terms used in this Agreement are defined in the context in which they are used
and shall have the meanings there indicated.
2.0 SCOPE
2.1
General
Scope.
This
Agreement provides the minimum requirements for terms and conditions under
which
Siemens may place Orders as provided in Article
5: Ordering
for
Product(s) and Location
Services
from Wherify
for use
by Siemens or for resale by Siemens either
as
stand-alone products
or
combined
with or integrated into other products offered for sale by Siemens.
Siemens
Affiliates may also place Orders in accordance with Article
5: Ordering
upon
entering an Adoption Agreement with Wherify
as
provided in Section
2.3.
2.2 Relation
to Customer. Wherify
shall be
solely responsible for fulfillment of all obligations with regard to the
Product(s) and Location
Services
it provides to Siemens and/or a Customer.
To the
extent that any terms and conditions of the agreement between Siemens and a
Customer are applicable to the Product(s) and Services provided by Wherify,
then
Wherify shall be bound to such obligations and liabilities as if the Customer
Agreement were between Wherify and the Customer and to the same extent and
in
the same manner as Siemens.
The
terms
and conditions of the Customer Agreement to be flowed down to Wherify shall
be
those identified in the relevant SPA. Wherify’s obligations under this
Section
2.2
shall be
flowed down to any third party suppliers and/or subcontractors used by
Wherify.
2.3 Adoption
Agreement.
This
Agreement sets forth the terms and conditions for the purchase of Wherify’s
Product(s) by Siemens and also by its Affiliates. This Agreement also sets
forth
the terms and conditions under which Siemens may resell certain Location
Services
offered by Wherify
to
Customers. An Affiliate will be bound by these terms and conditions in the
event
it enters an Adoption
Agreement. The Parties intend that each Adoption Agreement shall be interpreted
to be consistent with and incorporate all of the provisions of this Agreement,
except as may be expressly stated in the Adoption Agreement. In the event of
a
conflict, the order of precedence shall be as follows: (a) the Adoption
Agreement and (b) this Agreement. This
order of precedence shall be followed unless a provision of a lower order
document specifically provides that it takes precedence over a specifically
enumerated section or article of a higher order document.
Each
Affiliate, which is bound by this Agreement through an Adoption Agreement,
will
be solely and individually liable for its own acts, omissions, duties, and
obligations. In the event of a breach, act, or omission of an Affiliate of
this
Agreement or any amendment thereto, Wherify agrees not to seek recourse against
Siemens for
such
breach, acts, or omissions including nonpayment of invoices of an Affiliate.
Wherify also agrees that such a breach, act, or omission in violation of this
Agreement by one Affiliate shall not constitute a breach or other violation
of
this Agreement by any other Affiliate or by Siemens.
A
copy of
a form for the Adoption Agreement is attached as Attachment
I: Adoption Agreement.
2.4
Request
for Proposal and Marketing.
2.4.1 Procedures.
In
accordance with this Agreement, Siemens may offer Wherify’s
Product(s) and
Location
Services
to a Customer. From time to time, Siemens may request a proposal from
Wherify
to
provide its Product(s) and
Location
Services
to a Customer for a specific project (“Project”) or in response to a Request for
Proposal (“RFP”) based on specific terms and conditions, including price, which
deviate from those in this Agreement. Such
a
request shall specify the Product(s) and Location
Services
requested by Siemens (“Deliverables”),
any
special conditions, as well as the date by which the proposal must be provided.
Within three
(3)
days of Wherify’s
receipt of such a request, Wherify
shall
provide
notice to Siemens whether
it
intends
to
provide a proposal. If
Wherify
agrees
to offer its Product(s) and Location
Services
for a Project, Wherify
will
prepare and deliver to Siemens an accurate and timely proposal which shall
be
binding for a period of one hundred and eighty (180) days or until the execution
of the Customer Agreement, whichever is later (“Binding Proposal”),
provided that such Binding Proposal shall only be binding on Wherify if and
to
the extent any proposal made by Siemens in connection therewith is binding
on
Siemens. Wherify
will
notify Siemens promptly of any possible
delay
in
its preparation of such a proposal and will endeavor to remedy the delay.
If
Siemens elects to use the Binding Proposal in its response to a Customer, then
Wherify
agrees
to cooperate and support
Siemens by providing assistance
and information as requested for completion of Siemens response for a Project
or
RFP and for the negotiation of a final contract(s) with a Customer.
Siemens
shall take the lead in finalizing all responses submitted to a Customer for
a
Project including, without limitation, negotiations during the bidding process
and final negotiation of the Customer Agreement. Wherify shall communicate
with
a Customer only through Siemens or as coordinated with Siemens. In
the
event that Wherify
accepts
the request, it shall
not
team
with or provide assistance to any third party with respect to any other
proposals for its
Product(s) and Services for the
Customer identified in the request until either the expiration of the applicable
proposal opportunity with such Customer, a determination by the identified
Customer not to purchase, a direction from the identified Customer that the
purchase be offered to another supplier,
or a
decision by Siemens not
to
pursue the opportunity, whichever occurs first. Siemens shall not unreasonably
withhold its decision not to pursue the opportunity, and shall, if the Project
or RFP does not have an expiration date, at the request of Wherify issue a
decision on Siemens intent to pursue within fifteen (15) days of Wherify’s
request. If a Customer accepts Siemens’
response, then Wherify
agrees
to enter
a
back-to-back agreement with Siemens, which incorporates the terms of its Binding
Proposal and which may be adjusted based on the final scope of work included
in
the Customer Agreement. The
Parties agree to negotiate in good faith the finalization of such agreement
as
indicated by the execution of a relevant SPA specific to the transaction with
such Customer. Neither
Party
shall
be
obligated to pay any expenses of the other’s
proposal preparation. Except for the limited purpose stated in this Section
2.4.1,
nothing
in this provision shall be construed as restricting either
Party’s
right
to sell its product(s)
and
services
to third
parties.
2.4.2 Marketing.
As part
of and in addition to Wherify’s
responsibilities under Sections
2.4.1
and
2.4.2,
Wherify
shall
use commercially reasonable efforts to support Siemens in all of its efforts
to
market Wherify’s
Product(s) and
Location
Services. At Siemens request, Wherify
will
make available to Siemens marketing literature packs and any other materials
reasonably deemed necessary for proper promotion of the Product(s) and
Location
Services.
Wherify
shall not express disparaging or negative opinions or make disparaging or
negative statements, orally or in writing, spontaneously or in response to
an
inquiry, to any entity or person, concerning Siemens or its products or services
or any dispute under this Agreement or the relevant SPA.
3.0 TERM
The
term
of this Agreement shall begin upon the Effective Date and expire on the last
day
of the 60th month following such date, unless terminated earlier or extended
in
accordance with this Agreement (“Term”). Upon giving Wherify
thirty
(30) days written notice prior to the expiration of the Term, Siemens
shall
have the right to extend the Term of this Agreement for an additional twelve
(12) months on the same terms and conditions.
4.0
SPECIFIC PROJECT AMENDMENT
4.1 Description. Only
the
relevant SPA
will
describe Wherify’s obligations
to
provide its Product(s) and Location
Services
to a Customer for a Project. Siemens will inform Wherify
of
material terms and conditions required by a Customer. The Parties shall
negotiate the relevant SPA, simultaneously with or as soon as reasonably
possible
following the execution of the Customer Agreement. The
relevant SPA shall be signed by the authorized representatives of both Parties.
Only an Order from Siemens referencing either the relevant SPA or Wherify’s
Binding Proposal in response to a Project or RFP will be authorization for
Wherify
to
provide Product(s), to perform Location
Services,
or to incur expenses for which Siemens will be obligated to pay under this
Agreement.
The
relevant SPA will identify the Customer, the Product(s) and Location
Services
to be delivered or performed, the prices, and a schedule for completion. It
will
reference the applicable product implementation guide(s), product exhibits,
and
service exhibits, including a description of the Location
Services
to be performed. The relevant SPA shall include, but not be limited to, the
following: the designation of Product(s) and
Location
Services; the scope of work; the back-to-back terms and conditions; any special
discounts to meet a Customer’s price levels as well as price validity periods;
liquidated damages, warranty terms, nonperformance penalties for outages, or
other performance related penalties; and escrow terms and requirements.
In
the
event that prices and/or specifications for Product(s) and Location
Services
are not included in the exhibits to the relevant SPA, then the prices and
specifications set forth in the Binding Proposal or the attachments to this
Agreement will be applicable. For
a
specific transaction, prices and specifications will be listed in exhibits
that
are current as of the effective date of the relevant SPA.
The
relevant SPA may also include or refer to other documents, which describe in
more detail the work to be performed under the relevant SPA. All such documents
will be considered part of the relevant SPA and may be changed or supplemented
by the Parties’ written agreement.
4.2 Meetings. As
provided in Section
11.1.5,
the
Parties may meet periodically to discuss business opportunities and potential
customers.
5.0 ORDERING
5.1 Orders.
5.1.1 General. It
is
expressly understood and agreed that this Agreement does not require (a) Siemens
to purchase or order any Product(s) and Location
Services
from Wherify
and does
not grant to Wherify
an
exclusive privilege to sell or otherwise provide same to Siemens or (b) Wherify
to accept any of Siemens’ purchase orders for any Product(s) and Location
Services
except under a Binding Proposal and does not grant to Siemens
an
exclusive privilege to buy or otherwise obtain same from Wherify. It
is
understood and agreed that Siemens may contract with other manufacturers and
suppliers for the procurement of comparable Product(s), Product component(s),
or
Location
Services.
Wherify
agrees that purchases by Siemens under this Agreement shall not require Siemens
to continue to purchase at a particular level Siemens
assumes no liability for Product(s) or Location
Services
produced, processed, rendered, or shipped in excess of the amount specified
in
an Order. Estimates or forecasts furnished by Siemens to Wherify
shall
not constitute commitments to purchase. It
is
expressly understood and agreed that Wherify
is not
restricted from selling items that may be purchased by Siemens under this
Agreement to other parties.
5.1.2 Procedure.
All
purchases of Product(s) and Location
Services
shall be by means of a Siemens purchase order in the English language issued
by
Siemens to Wherify
from
time-to-time pursuant to this Article 5: Ordering. Wherify shall have three
(3)
buiness days to accept or reject a purcuase oder, failing which the purchase
order shall be deemed accepted. Purchase orders may be issued by mail, fax,
or
electronic data interchange. All purchase orders issued hereunder shall
reference this Agreement and the relevant SPA, and are incorporated by reference
as part of and subject to this Agreement and the relevant SPA. Subject to any
rights of set off or dispute by Siemens and Wherify’s right to accept or reject
any purchase order, Wherify
agrees
to provide and deliver, and Siemens agrees to purchase Product(s)
and/or
Location
Services
as specified in an accepted purchase order which conforms to this Article
5: Ordering.
5.1.3 Forecasts
Forecast
terms agreed in Customer agreements will flow through the SPA. The same forecast
terms will flow to any component Siemens Wireless Modules supplies to Wherify
for use in Wherify’s
products
but shall only flow for the material Supplied by Siemens Wireless Modules for
the particular SPA and only in the case any breach in the forecast is the result
of breach of Siemens Wireless Modules supply.
5.1.4 Information
to be Included.
Purchase
orders issued by Siemens shall include the following:
(a)
date
of
issuance;
(b)
order
number;
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(c)
|
description
of specific Product component(s) (including Wherify’s
part number, as applicable),
Location
Services and/or Documentation;
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(d)
quantity
to be delivered;
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(e)
|
price,
using the prices set forth in the relevant SPA or in Attachment
G: Wherify’s
Price List,
as applicable to the Purchase
order;
|
(f)
requested
date(s) of delivery;
(g)
shipping
instructions and destination;
(h)
reference
to this Agreement;
(i)
reference
to
the relevant SPA;
(j)
any
other
information as may be mutually agreed by the Parties.
5.2 Delivery
Dates for Orders.
5.2.1 Delivery
Dates. Wherify
shall
deliver the Product(s), including all relevant Documentation, FCA
(Incoterms
2000) to
the
delivery location/destination specified in the purchase order.
Delivery dates shall be firm and time is of the essence for all purchase orders.
Deliveries
that are more than 7 (seven) days before or after the delivery date specified
on
the purchase order may be refused due to Customer requirements, space or
security considerations and returned or stored at Wherify’s expense and risk of
loss. In no case will early deliveries crossing the end of a month be accepted
without prior written approval of Siemens. If
Wherify
discovers any reasonable potential delay that threatens
the timely and/or complete delivery of a Purchase Order, Wherify
shall
notify
Siemens of such delay
promptly.
If
requested by Siemens, Wherify shall provide a written plan to correct such
delay
within two (2) business days
and take
commercially reasonable action to remedy such delay.
5.2.2 Failure
to Deliver on the Delivery Date.
Unless
otherwise agreed in writing by Siemens, if Wherify fails to deliver all items
under a purchase order in accordance with the scheduled delivery or performance
date set forth in the purchase order, Wherify shall have five (5) business
days
to cure such failure following the scheduled date. If Wherify fails to so cure,
then Siemens shall be entitled to deduct from the price of the delayed purchase
order an amount equal to one percent (1%) of the amount of such purchase order
for each business day of delay up to a maximum payment per purchase order of
thirty percent (30%) of its total price.
Notwithstanding anything herein
to
the contrary, the rights provided in this Section
5.2.2
are in
addition to any other rights or remedies Siemens may have under this Agreement,
the relevant SPA, or at law or equity. Siemens may withhold payment for an
purchase order until all items under an Purchase order have been delivered
in
accordance with the terms of this Agreement. If the penalties stated above
exceed exceed the amount stated in the Customer agreement, the penalties in
the
Customer agreement will flow through to Wherify. In the case Wherify cannot
deliver due to the supply of parts sold to Wherify by Siemens and Wherify has
met all contractual terms related to the supply of such parts, including terms
flowed through according to the Agreement, no failure to deliver penalties
stated in this section shall be due to Siemens.
.5.2.3 Failure
to Make a Complete Delivery. If
Wherify
fails to
make a complete delivery of a purchase order within 20
business
days after its scheduled delivery date as set forth in the order, Siemens shall
be entitled to immediately terminate such order,
any
other pending purchase orders, and the relevant SPA upon notice to Wherify
without any right to cure. In such event, Siemens may, as determined in its
sole
discretion, return any unaccepted delivered items or previously accepted partial
order and Wherify shall promptly refund all monies paid by Siemens for such
returned items. Siemens shall have no further payment obligations with regard
to
such returned items. Wherify
shall
refund any amounts paid for any
returned items and Products
not provided. Siemens
may submit a claim to Wherify for damages equal to any amount levied upon
Siemens by a Customer as a result of Wherify’s failure to deliver. In addition
to the rights and remedies provided in this Section
5.2.3, Siemens
may exercise any other rights and remedies available to it under this Agreement
or in law or equity. The remedies aviable to Siemens in thie Section
5.2.3
shall
not apply in the case where Wherify cannot deliver due Siemens failure to timely
deliver the wireless modules to be used in the delayed Products
5.3 Partial
Shipments. In
the
event that Wherify
is
unable to completely fill a purchase order, Wherify
shall
timely notify Siemens of the possibility of a partial shipment with regard
to
such purchase order. Siemens shall have the rights
specified in Section 5.2.2.
5.4 Cancellation
and Re-scheduling of Orders. Except
as
provided in this
Section 5.4, Siemens
may cancel or re-schedule a purchase order, in whole or in part, without
additional cost or liability. This right flows to the supply of wireless modules
to Wherify, relating only to the purchase of modules related to the cancelled
or
rescheduled orders.
5.4.1 Change
in Destination. Siemens
may change the “ship to” delivery location/destination of any purchase order by
submitting notice to Wherify in writing at least five (5) business days prior
to
the scheduled shipment date. If Siemens makes such a request less than five
(5)
business days prior to the scheduled shipment date, then Wherify will use all
reasonable efforts to implement the requested change.
5.4.2
Re-scheduling
of Shipments.
At any
time prior to actual shipment, Siemens may re-schedule a purchase order without
additional cost or liability. Any re-scheduling change under a purchase order
shall not affect the obligations of either Party with regard to other existing
purchase orders. This right flows to the supply of wireless modules to Wherify
relating only to the reschedule of modules related to the rescheduled
orders.
5.4.3
Cancellation
of Orders. At
any
time prior to shipment and upon written notice to Wherify, Siemens may cancel
any or all Orders, or any portion thereof, except for Services already
completed. The cancellation of a purchase order shall not affect the obligations
of either Party with regard to other existing purchase orders. This Agreement
shall continue in effect for all outstanding purchase orders that have not
been
cancelled or have not expired by the purchase order’s terms. This right flows to
the supply of wireless modules to Wherify relating only to the purchase of
modules related to the cancelled orders.
5.5 Stop
Work.
5.5.1 Stop
Work Order.
Siemens
may, at any time and by written notice to Wherify, suspend all or any part
of
the Services associated with apurchase order for a period of up to ninety (90)
days. Any such notice (“Stop Work Order”) shall automatically extend the time
for performance or the delivery date(s) of an affected Order for a time period
equal to that of the Stop Work Order.
5.5.2 Compliance
with Stop Work Order.
Upon
receipt of a Stop Work Order, Wherify shall immediately comply with its terms
and take all reasonable steps to minimize incurring additional costs allocated
to the work covered by such order during the stoppage. Within ninety (90) days
after a Stop Work Order is delivered, or within any extension of this time
period agreed to in writing by the Parties, Siemens shall either: (i)
cancel
the Stop Work Order and have Wherify resume the Service Work, or
(ii) cancel
the Work and applicable Order, or portion(s) thereof, as provided in
Section
5.4.
5.5.3 Cancellation
of Suspension. If
the
suspension of work under a Stop Work Order is canceled, Wherify shall resume
the
work under the applicable purchase order. If the Stop Work Order results in
an
increase in the time required for the performance of such an affected purchase
order, then an equitable adjustment shall be made to the delivery schedule
or
performance period under any affected provision of this Agreement, the relevant
SPA, or the purchase order.
5.6 Defective
Product Prior to Warranty Period. Prior to the commencement of the
warranty period, if Wherify fails to correct a defective product (a product
which does not conform to its Applicable Standards and Specifications); comply
with a representation, warranty, or covenant; or fails to make delivery in
a
timely fashion as set forth in Section 5.2, then Siemens may,
by giving written notice to Wherify as provided in this Agreement, elect
to:
(a) terminate
the corresponding purchase order, in whole or in part, for cause as of the
date
specified in the notice of termination. In such event, Siemens may return any
associated Product(s), Hardware, Software, or Documentation related to the
Product(s) to Wherify. Upon such return, Wherify shall promptly refund all
charges paid by Siemens for such items and/or Services and Siemens shall have
no
further payment obligations with respect to such items; or
(b)
require
Wherify to provide an advance replacement within twenty-four (24) hours with
follow-up repair or replacement of the non-conforming Product(s), and also
to
meet its payment obligations for failure to deliver as provided in Section
5.2.2.
In the
event that the repair or replacement does not correct the defect, then Wherify
shall promptly refund all charges paid by Siemens for such items in accordance
with the relevant SPA and Siemens shall have no further payment obligations
with
respect to such items.
The
remedy stated in 5.6.a flows to the supply of wireless modules to Wherify
relating only to the purchase of modules related to the defective Product,
if
the defect is the result of a defect in the wireless module supplied by Siemens.
The remedy stated in 5.6.b does not apply in the case the defect is the result
of a defect in the wireless module supplier by Siemens.
6.0 CHANGE
ORDERS
6.1 Schedule. Wherify
will
provide the Product(s) and
Location
Services
in accordance with the schedule(s) as specified in the relevant SPA, if
available, or, as otherwise specified in the relevant Order(s).
6.2 Requested
Change.
Siemens
may request reasonable technical or commercial changes as well as changes
required or requested by a Customer to the relevant SPA in accordance with
the
Change Order (“CO”) process specified in this Article
6: Change Orders.
Wherify
shall
review such request(s), respond within three business
days, and upon Siemens acceptance, shall then provide within three
business
days of its receipt of notice of such acceptance, Siemens with a written CO
that
specifies the work, fees, and completion schedule. The fees for COs shall be
as
agreed by the Parties in the CO, but shall not be higher than those provided
in
the relevant SPA. Wherify
is
authorized to proceed with requested changes only after both Parties have signed
the CO.
6.3 Notice
of Customer Requested Changes.
Each
Party will promptly notify the other of any changes that a Customer requests.
Siemens will also promptly notify Wherify
of any
changes that it deems necessary. Wherify
will not
perform COs requested by anyone, including a Customer, unless Siemens authorizes
them following the procedure described in this Article
6: Change Orders.
Siemens
will not pay Wherify
for any
changes that have not been so authorized.
7.0 TESTING
AND PRODUCTION OF PRODUCT(S)
7.1 Quality
Assurance. Wherify
shall
provide and implement a Quality Assurance Program with procedures to ensure
that
the Product(s) and Location
Services
are consistently performed in accordance with the terms of this Agreement and
at
a level consistent with world-class and best industry standards and practices.
Wherify
shall
maintain compliance with the TL 9000 and ISO 9000 certifications, or, shall
aggressively pursue such certification(s) in accordance with a detailed action
plan developed to obtain these certification(s). If Wherify
must
pursue these certifications, then it shall maintain its quality assurance
processes and performance standards in accordance with the procedures of the
TL
9000 and ISO 9000 series. Wherify
shall
comply with the standards of ISO 9000 in the performance of its obligations
under this Agreement, the relevant SPA, and any Order. Additional requirements
for quality assurance are set forth in Attachment
C: Quality Assurance and Reliability Requirements.
7.2 Qualification
Testing. Shall
be
in accordance with the provisions contained in Attachment
C: Quality
Assurance and Reliability Requirements. When
applicable, Wherify
shall
provide certification for NEBS testing, Level III.
8.0 PACKAGING,
SHIPPING, TITLE, AND RISK
8.1 Packing. All
deliveries to Siemens pursuant to this Agreement shall be prepared for shipment,
packaged, and packed in
compliance with established industry standards.
8.2 Marking,
Labeling & Electronic Tracking. On
a
case-by-case basis based on the requirements of Siemens and a Customer, the
Parties will agree upon appropriate labeling and electronic asset-tracking
requirements and procedures that are responsive to, and consistent with, Siemens
business requirements and asset tracking practices. Such requirements and
procedures will include, at a minimum, the labeling of Product component(s),
each container, and related packing documentation with bar-coded serial numbers
in accordance with Siemens standard F32786-F2943-X-07-7635 Package Labeling
Specifications for suppliers
as set
forth in Attachment
D: Labeling and Marking of Product.
8.3
Shipping.
8.3.1 Shipping
Procedures. Unless
otherwise instructed by Siemens, Wherify
shall:
(a) ship
all
Orders complete, freight collect, using the carrier and method identified in
the
applicable Order;
(b)
verify
that all subordinate documents bear the correct Order
number;
(c) enclose
a
packing memorandum with each shipment and, when more than one package is
shipped, identify the package which contains the memorandum;
(d)
xxxx
the
correct Order number on all packages and shipping papers;
and
(e) when
applicable under Section
8.3.2
below,
provide separate invoices in duplicate for each shipment, whether or not a
complete Order, indicating the correct Order number.
8.3.2
Carrier
and Method Not Specified. Where
carrier and method of shipment are not specified in the Order, Siemens will
reimburse Wherify
for
actual shipping and insurance costs on an out-of-pocket expense basis; provided,
however, that Wherify,
upon
Siemens request, shall adequately substantiate such charges by providing freight
bills or other written documentation. Siemens shall have the right to audit
such
out-of-pocket expenses consistent with the audit provisions in Article
15: Audits.
8.4 Title
and Risk of Loss.
Title to
any Hardware, Product(s), or Product component(s) shipped to Siemens shall
vest
As set forth in each applicable Adoption Agreement.Unless otherwise provided
in
this Agreement or the relevant SPA, title to Software provided by Wherify
shall
remain with Wherify
subject
to the terms of Article
20: Software License. Wherify
shall at
its own expense provide insurance against loss or damage en route to the
delivery location/destination specified in the Order. The risk of loss for
any
Hardware, Product(s), or Product component(s) shipped to Siemens shall pass
to
Siemens upon delivery to the location/destination specified in the corresponding
Order.
9.0 DOCUMENTATION
9.1
General. Wherify
agrees
to furnish and deliver, at no charge, Documentation in the English language
for
the Product(s) delivered under this Agreement as necessary to permit Siemens,
a
Customer, or other End User(s) to use the Product(s). Wherify
represents and warrants that the Documentation shall accurately and completely
reflect the operation, capabilities, features, and limitations of the
Product(s); shall include all information required to install and operate the
Product(s); and shall include all information as required by a Customer or
other
End User(s) for their use of the Product(s), including but not limited to,
all
Documentation necessary for the
interface function to ensure the interoperability of Wherify’s
Product(s). The Documentation and the Applicable Standards and Specifications
will be technically correct, up-to-date, and sufficient for the purposes of
this
Agreement and the relevant SPA.
9.2 Delivery. Wherify
shall
deliver Documentation in the format and media identified in the relevant
SPA
Attachment E: Service
Level Agreement,
and Attachment
H: Product List, Specifications, and Roadmap..
Documentation shall be delivered to Siemens as soon as possible, and available
upon a Product(s)’ release, even if the Product(s) is not generally available in
the marketplace. Siemens may copy (in either electronic, C-D or paper form),
post on website for Customer access, repackage, and reformat such Documentation
for use in connection with the operation, use, and sale of the Product(s),
including copies and repackaged or reformatted Documentation for a Customer
or
other End User(s). In addition to the rights set forth above, Wherify
hereby
grants Siemens, a Customer, and other End Users), the right to modify and
enhance the Documentation for their internal use, for Siemens to distribute
such
modified Documentation internally as well as to a Customer or other End User(s),
and for a Customer to distribute to other End User(s). In the event Siemens,
a
Customer, or other End User(s) modifies the Documentation by changing the text
of the Documentation in a manner not limited to repackaging or reformatting,
Wherify
shall be
deemed to have approved such changes unless it objects in writing to Siemens
within 15
business
days of its receipt of a copy of the changed Documentation. In the event
Wherify
so
objects, then it will not be responsible for Siemens, a Customer’s,
or
other End User(s)’ use of such Documentation to the extent it is so modified.
Wherify
shall
have no right to utilize Siemens, a Customer’s, or other End User(s)’
modifications and enhancements to the Documentation without the appropriate
Party’s
prior
written consent.
10.0 TRAINING
Wherify
will
offer Siemens training in accordance with Attachment
B: Training Programs,
and as
also outlined in Attachment
E: Service Level Agreement and
the
relevant SPA.
11.0 PRODUCT
CHANGES AND NEW PRODUCT DEVELOPMENT
11.1
Product
Changes.
11.1.1
Updates
and Changes. Wherify
shall
provide Product(s) as listed in Attachment
H: Product List, Specifications
and Roadmap.
Wherify
shall
provide updates to Attachment
H: Product List, Specifications, and Roadmap
as
necessary to keep it current. Any changes to Product(s) included in Attachment
H: Product List, Specifications,
and Roadmap,
including any new releases, upgrades, and updates, shall have backward
compatibility for the longer of three years
for
Hardware and three years
or
three
releases
for Software to insure that new Product(s) or any changed Product(s) function
with prior Product(s), and do not require any change in the existing
Hardware.
Wherify
shall
provide all Product(s) with CLEI codes, as applicable, at no additional charge
to Siemens. For the purposes of this Article
11: Product Changes and New Product Development,
an
upgrade shall include new features and not be limited to “dot.
release(s)”.
11.1.2 Product
Change Notice(s). Wherify
shall
notify Siemens of any changes by issuing a product change notice (“PCNs”).
During the Term, all changes
affecting form, fit or function
shall be
subject to Siemens prior written consent which may be withheld for any reason
as
determined by Siemens in its sole discretion.
11.1.3 Notice
of Planned Changes Which Impact the Product(s). Wherify
shall
notify Siemens 12
months
in advance of any planned changes in the Product(s) that may affect its form,
fit or function. Wherify
shall
provide complete Documentation regarding such changes as well as sufficient
advance samples of any changes in the Product(s) for Siemens to perform system
testing. Such samples will be at no cost to Siemens and will be made available
as soon as possible following issuance of the PCN. Unless such changes are
acceptable to Siemens as determined in its sole discretion, Wherify
agrees
to provide Product(s) throughout the Term that are not changed as contemplated
by this Section
11.1.3.
11.1.4 Notice
of Planned Changes which are Incidental. Wherify
shall
notify Siemens six months
in
advance of any changes planned in the Product(s) that do not affect its form,
fit or function. Wherify
shall
provide complete Documentation regarding such changes as well as sufficient
sample devices for Siemens to verify these changes. Siemens will notify
Wherify
within
30
days of
receipt of sample devices as to their acceptability by Siemens. In the event
these changes are not acceptable to Siemens, Wherify
shall
use its best efforts to ensure that Siemens concerns are resolved as determined
in Siemens sole discretion.
11.1.5 Meetings.
The
Parties agree to meet quarterly to inform each other of their respective
Product(s) developments as well as any changes in Product(s) requirements or
specifications relevant to this Agreement or a relevant SPA including, but
not
limited to, updating and discussing Wherify’s
Roadmap and other issues relevant to the development of the Parties’
relationship for sales of the Product(s) in the telecommunications sector.
Siemens may provide Wherify
with
information with regard to its plans for future products and technical
developments. The Parties also agree to exchange information with regard to
new
features or upgrades.
11.2 New
Product(s). Wherify
shall
offer to Siemens any modifications or enhancements to Product(s) as well as
new
Product(s) that becomes commercially available. By amendment, such Product(s)
and their price shall be added to the relevant SPA, Attachment
G: Wherify’s
Price List,
and
Attachment
H: Product List, Specifications, and Roadmap
as
necessary. Any modifications or enhancements identified in the relevant SPA
shall be offered to Siemens at no increase in price for the affected Product(s).
11.3 Localization.
Siemens
will, provide commercially reasonable assistance to localize the Documentation
and packaging, including (i) assistance in the translation of such packaging
and
Documentation in the local language(s); (ii) providing information relating
to
the local legal and regulatory requirements for paclaging and Documentation.
In
addition, Siemens will provide commercially reasonable assistance upon request
from Wherify with respect to the localization of the Products and Location
Services. If third party localization services are required, they will be
mutually agreed in an SPA.
Siemens
will also provide commercially reasonable assistance to achieve local
certifications. If third party certification services are required, they will
be
mutually agreed in an SPA.
12.0 SUBCONTRACTORS
Wherify
acknowledges and agrees that it has full responsibility and liability for the
performance of all suppliers, subcontractors, or third parties used by it to
the
same extent as if Wherify
performed such obligations. Without limiting the generality of the foregoing,
Wherify
shall be
responsible for discharging any liens (including subcontractor mechanic liens)
or encumbrances placed on any Product(s) or Product component(s) purchased
by
Siemens hereunder. Any subcontractor retained by Wherify
shall be
subject to Siemens prior written approval which may be withheld for any
reasonable commercial reason.
13.0 PRICES
13.1 General.
Siemens
may purchase Product(s), Product component(s), Documentation in accordance
with
the prices in U. S. Dollars set forth in Attachment
G: Wherify’s
Price List,
and
In
the
event that the Wherify decreases the price of any Product, Siemens will be
entitled to a credit equal to the difference between the net price paid by
Siemens, less any prior credits granted by Siemens, and the new decreased price
for the Product multiplied by the quantity of such Product in Siemens. Similar
price adjustment will also be made on all such Product in transit to Siemens
on
the effective date of such price decrease. With respect to Location
Services, if Siemens invoices a Customer for Location
Services,
Siemens may retain an amount of 15%
of the
total invoice amount as a commission,
With
respect to Customers that are billed directly by Wherify,
Siemens
shall receive in cash, within 30 days of Wherify’s
receipt of payment from a Customer an amount equal to 15%
of the
total invoice amount.
13.2
The
prices as set forth in the relevant SPA and/or Attachment
G: Wherify’s
Price List
for
Product(s) and Services shall be less than or equal to the prices offered to
any
other customer of Wherify for the Product(s) and Services (such prices are
collectively referred to as the "Offered Prices"). To the extent that the
Offered Prices are less than the prices set forth in the relevant SPA and/or
Attachment
G: Wherify’s Price List,
then
Wherify shall be liable to Siemens for the resulting price differential which
shall be as follows: (i)
retroactively to all Orders issued by Siemens after the date the Offered Prices
were first offered to Siemens or other customers, with the retroactive amount
to
be provided to Siemens as a credit for future Orders, or, if there are no such
Orders, then Siemens shall be immediately reimbursed such amounts; and
(ii)
on
a
going-forward basis for all future Orders issued by Siemens. Compliance with
this Section
13.2
shall be
subject to verification by the audit of Wherify’s records as provided in
Article
15: Audits.
13.2.1
Taxes. The
Parties respective responsibilities for taxes arising under or in connection
with this Agreement shall be as follows:
Each
Party’s Responsibility. Each
Party shall be responsible for any personal property taxes on property it owns
or leases, for franchise and privilege taxes on its business, and for taxes
based on its net income or gross receipts.
Wherify’s
Responsibility.
Wherify shall
be
responsible for any sales, use, excise, value-added, service, consumption,
and
other taxes and duties assessed or otherwise payable by Wherify for the
acquisition or use, and based on the acquisition cost, of any goods or services
used or consumed in providing the Product(s) and Services.
13.2.3 Cooperation.
The
Parties agree to cooperate with each other to more accurately determine and
minimize each of their respective tax liability to the extent legally
permissible. Wherify’s
invoices shall separately state the amount of any taxes Wherify
is
collecting from Siemens. Each Party shall provide and make available to the
other any resale certificates, information regarding out-of-state or
out-of-country sales or use of equipment, materials, or services, and other
exemption certificates or information reasonably requested by the other Party.
Any third party billing for LBS will be mutually agreed in SPA, such that each
party has sufficient information regarding out-of-state or out-of-country sales
or use of equipment, materials, or services, and other exemption certificates
or
information reasonably requested by the other Party.
13.2.4 Claims
by Taxing Authority.
Each
Party shall promptly notify the other of any claim received for taxes asserted
by an authorized taxing authority and the Parties shall coordinate their
response to and settlement of any such claim. Notwithstanding the preceding
sentence, the Parties agree that with respect to any claim arising out of a
form
or return signed by a Party to this Agreement, such Party shall have the right
to elect to control the response to and settlement of such claim; provided,
however, that the other Party shall have the right to participate to the extent
of its potential responsibilities or liabilities with regard to such a claim.
If
Siemens requests Wherify
to
challenge the imposition of any tax, Siemens shall reimburse Wherify
its
reasonable legal fees and expenses incurred. Each Party shall be entitled to
tax
refunds or rebates granted to it and to the extent such refunds or rebates
are
for taxes paid by it.
14.0 INVOICING
AND PAYMENT
14.1 Invoicing. As
provided in Section
14.2 and
14.3,
Wherify
will
invoice Siemens for amounts due under this Agreement for the provided Product(s)
and
Location
Services. Such invoice shall include: invoice date, Order number, Product(s)
part numbers or release numbers and descriptions, quantities, unit prices and
the total amount due. All invoice prices shall comply with the pricing in the
relevant SPA and Attachment G:
Wherify’s
Price List.
Any
terms
and conditions which are preprinted on Wherify’s
invoice or otherwise not specifically agreed to by Siemens shall be of no
effect.
14.2 Other.
Periodic
charges under this Agreement are to be computed on a calendar month basis,
and
shall be prorated for any partial month. All amounts due and payable to
Wherify
under this
Article 14: Invoicing and Payment shall
be paid, at Siemens option, either (i) by check payable to the order of
Wherify
or (ii) by electronic funds transfer to Wherify
from account(s) designated by Wherify.
All
payments made pursuant to this Agreement will be in U.S. Dollars, and unless
otherwise specified in an Adoption Agreement.
Siemens
agrees to flow invoicing terms for the purchase of Wireless Modules, for the
quantity of modules related to specific SPA’s. In the case credit is extended,
Siemens will require Wherify to maintain a revolving standby letter of credit
for any credit outstanding.
14.3 Accountability. Wherify
agrees
to provide documentation and other information with respect to each invoice
as
may be requested by Siemens to verify the accuracy of the invoice
and Wherify’s
compliance with the provisions of this Agreement.
14.4 Disputed
Charges. Siemens
shall pay undisputed charges when such payments are due under this Article
14: Invoicing and Payment.
Siemens
may withhold payment of particular charges which it disputes in good faith.
In
the event Siemens disputes any of Wherify’s
charges, Siemens will notify Wherify
in
writing as soon as possible (but before payment is due pursuant to the invoice)
and set forth its reasons for the dispute in such notice.
14.5 Encumbrances. Wherify
shall
not perfect a security interest, lien, or other encumbrance upon any Product(s),
Product component(s), Software, or Hardware provided pursuant to this Agreement.
14.6 Resolution
of Disputes. Any
unresolved dispute with regard to payments arising under this Agreement or
the
relevant SPA shall be resolved in accordance with the provisions of Article
23: Dispute Resolution.
15.0 AUDITS
Wherify
shall
maintain complete and accurate records of and supporting documentation for
all
invoices submitted under this Agreement, including for its out-of-pocket
expenses, and for all commission payments made, as well as all back up
documentation, including but not limited to Customer invoices, related
thereto.
Wherify’s
compliance with billing for
Location
Services
on a rated basis and with all other pricing issues arising under this Agreement
and Section
13.2 shall
be
determined as provided in this Article
15: Audits
and in
accordance with generally accepted accounting principles applied on a consistent
basis. Wherify
agrees
to provide documentation and other information with respect to each invoice
and
commission payment as may reasonably be requested by Siemens to verify the
accuracy of the invoice and Wherify’s
compliance with the provisions of this Agreement. Upon its request, Siemens
and
its authorized agents and representatives shall have access to such records
for
audit during normal business hours during the Term and for a period of three
years
after the termination or expiration of this Agreement. In the event Siemens
is
owed a refund by virtue of an overpayment or an additional commission amount
under this Agreement, either discovered during an audit or
otherwise, Wherify
shall
promptly pay Siemens the amount. If such audit finds errors exceeding five
percent (5%), or a failure to comply with Section
13.2,
then
Wherify
shall be
responsible for all reasonable audit expenses.
16.0 REPRESENTATIONS,
WARRANTY, AND SERVICES
16.1 Product
Warranty.
16.1.1
Hardware
Warranty. Wherify
warrants
that Hardware shall be new, merchantable, free from defects in design, material,
and workmanship, fit and sufficient for the purposes intended by Siemens or
a
Customer, and will strictly conform to and perform in accordance with the
Applicable Standards and Specifications.
These
warranties shall commence on the completion of the Customer’s Acceptance and
continue for the longer of the warranty period as stated in the relevant SPA,
the relevant SLA, the Applicable Standards and Specifications, the applicable
OEM’s warranty, or 12
months
(the
“Warranty Period”).
If the
Hardware contains one or more manufacturing warranties, Wherify hereby
represents that it has the authority to and does hereby assign such warranties
to Siemens. All warranties for Hardware shall survive inspection, acceptance,
payment, and use.
Hardware
not meeting these warranties shall, at Wherify’s
option, be repaired and/or replaced with new manufactured Hardware by
Wherify
at no
cost to Siemens and with all costs for such implementation including, but not
limited to transportation, risk of loss, and damage in transit for the return
and re-delivery of the repaired or replaced Hardware borne by Wherify.
Wherify
shall
provide, and bear all related costs, a replacement for any non-conforming
Hardware within 24
hours
after
receipt of notice from Siemens. The Warranty
Period
for
repaired and/or replaced Hardware is 12
months
from
the
date of delivery of the repaired and/or replaced Hardware to Siemens and/or
the
Customer (if applicable), or, the remaining part of the original Warranty
Period
of the
Hardware, whichever is longer. In the event Wherify
fails to
repair or replace any non-conforming Hardware within 30
days of
its return by Siemens, Wherify
shall,
upon Siemens request, refund the purchase price of the returned Hardware without
limiting any other remedies of Siemens for the failure of Wherify
to
fulfill its obligations under these warranty provisions. In addition to the
above provisions, Wherify
shall
provide support services including access to its web based tools and help desk
services on a 24x7x365 hour basis with an escalation process throughout the
Warranty
Period
for
Hardware and in accordance with Attachment E: Service Level Agreement. As
provided in this Section
16.1.1, all support obligations, repairs, and replacements for Hardware under
these warranty provisions shall be provided at no additional charge to Siemens.
Siemens shall have the right to extend the Warranty
Period
for
Hardware for additional periods of 12
months
each at the price agreed to by the Parties.
16.1.2 Software
Warranty. Wherify warrants that the Software and media shall
be new, merchantable, free from defects in design, material, and workmanship,
and shall conform to and perform in accordance with its specifications and
Documentation as provided in the Applicable Standards and Specifications.
Wherify further warrants that the Software does not contain any open source,
freeware, shareware, GPL or other similar software. These warranties for
Software shall commence on the completion of the Customer’s Acceptance and
continue for the longer of the Warranty Period as stated in the relevant SPA,
the Applicable Standards and Specifications, the applicable OEM’s warranty, or
12 months. If the Software contains one or more third party warranties, Wherify
hereby represents that it has the authority to and does hereby assign such
warranties to Siemens. All warranties for Software shall survive inspection,
acceptance, payment and use.
For
Software not complying with this warranty, Wherify
agrees
to immediately provide fixes, patches, or work-around solution(s) upon notice
from Siemens, but in no event longer than 24
hours
of
Siemens issuance of such notice. In the event that Wherify
fails to
correct Software or provide replacement media for defective media within
30
days,
then Wherify
shall,
upon Siemens request, refund the purchase price of the Software and/or Hardware
without limiting any other remedies of Siemens for failure of Wherify
to
fulfill its obligations under these warranty provisions for Software. In
addition to the above provisions, Wherify
shall
provide support services including access to its web based tools and help desk
services on a 24x7x365 hour basis with an escalation process throughout the
Warranty
Period
for
Software and in accordance with Attachment E: Service Level Agreement. As
provided in this Section 16.1.2, all support obligations, repairs, or
corrections for Software under these warranty provisions shall be provided
at no
additional charge to Siemens.
Wherify
further
warrants that, during the Warranty
Period
for
Software, it will provide all releases, updates, alterations, modifications,
enhancements, or improvements to Software or feature sets purchased by Siemens
that are generally available to Wherify’s
other
customers during such Warranty
Period,
as well
as providing code corrections or maintenance patches to correct a defect in
order to bring the Software into compliance with the Applicable Standards and
Specifications. Wherify
shall
concurrently provide updated Documentation reflecting any changes in the
Software. Wherify
shall
also replace the Software if the media is destroyed or damaged and, as a result,
such Software is unusable or fails to operate in accordance with the Applicable
Standards and Specifications. All warranty obligations, repairs, and
replacements for Software shall be provided at no additional charge to Siemens
and Wherify
shall
pay all related shipping costs. Siemens shall have the right to extend the
Warranty
Period
for
Software for additional periods of 12
months
each at the price agreed to by the Parties.
16.1.3 Software
Releases. Unless
otherwise agreed, Wherify
shall
submit to Siemens, at its earliest availability date, an evaluation copy of
any
Software release, update, alteration, modification, patch, enhancement, or
improvement, as required under this Agreement or the relevant SPA or any other
Product covered by this Agreement.
16.2 Services
Warranty. Wherify
warrants
that the Location
Services
will be performed with care, skill, promptness, diligence, and in strict
compliance with the Applicable Standards and Specifications and also in
accordance with the best practices in Wherify’s
profession or industry. If Wherify
fails to
meet applicable professional standards or comply with the Applicable Standards
and Specifications, Wherify
will,
without additional compensation, promptly correct or revise any errors or
deficiencies in the Location
Services
provided. These
warranties for Location
Services
shall commence on the completion of the Customer’s Acceptance and continue for
the longer of the Warranty
Period
as
stated in the relevant SPA, the Applicable Standards and Specifications, the
applicable OEM’s warranty, or 36
months
Wherify,
at no
cost to Siemens, will promptly correct or revise any errors or deficiencies
in
the Location
Services.
In the event Siemens requests a refund pursuant to the provisions of Section
16.1.1 for Hardware, of Section 16.1.2 for Software, or under any other
provisions of this Agreement or the relevant SPA, then Wherify
agrees
to refund a pro rata portion of any fees, including any prepaid fees for
Location
Services.
All warranty obligations, repairs, and replacements for Location
Services
shall be provided at no additional charge to Siemens. All Location
Service
warranties shall survive inspection, acceptance, payment, and use. Siemens
shall
have the right to extend the Warranty
Period
for
Location
Services
for two additional periods
of 12
months,
each at
the price agreed to by the Parties.
In
the
event Wherify’s
performance of Location
Services,
whether provided during the Warranty
Period
or
following such period, does not fully meet the standards and practices required
by this Agreement or the relevant SPA, Siemens shall be entitled to a reduction
of Wherify’s
fees
for
Location
Services
for the then current maintenance and support year of up to 50%,
Siemens
shall be entitled to deduct such amounts from the
Location
Services
fees as a credit against future charges or as a cash reimbursement, as
determined in Siemens sole discretion.
16.3 Wherify
Responsible for Costs.
Wherify
shall be
solely responsible for any and all costs and expenses incurred and attributable
to its warranty obligations under this Article
16: Representations, Warranty, and Location
Services
including, but not limited to de-installation, re-installation, shipment, labor,
and materials.
16.4 General
Warranties.
16.4.1
Viruses. Wherify
represents and warrants that the Software when delivered to Siemens or the
Customer shall be free of any Virus, and (i)
contains only what is stated in the Documentation and the Applicable Standards
and Specifications; (ii) is free of any master access key (ID, Password, trap
door, Trojan horse, back door, worm, etc.) to the system, except as agreed
to in
Section
16.4.2;
(iii)
is
free of any other destructive code or expiration date; (iv) is free of any
item
which could degrade the security of the operating system by interfering with
or
modifying the normal functions of the operating system on which the Software
resides; (v) is free of any item which could degrade the security of the
application code or other third party software; and (vi) has been tested for
computer viruses or other destructive code using a regularly updated virus
detection and removal software package and has been inspected by Wherify’s
authorized personnel. If a Virus is found in or introduced into the Software,
or
Siemens, a Customer’s, or other End User(s)’ operating system as a result of
Wherify’s
acts
or omissions, then Wherify
shall
have breached its warranty obligations under this Article
16: Representations, Warranty, and
Location
Services.
In such
event, and in addition to any other remedies available to Siemens, Wherify
agrees
to use its best efforts, at no additional charge, to assist Siemens in reducing
the effects of the Virus, and if the Virus causes a loss of operational
efficiency or a loss of data, to assist Siemens to the same extent to mitigate
and restore such losses. Wherify
also
agrees to indemnify, defend, and hold harmless Siemens from any and all damages,
claims, liabilities, and costs, both direct and indirect of whatever nature
and
regardless of the legal theory upon which such claim is based which result
from
or are related in any manner to Wherify’s
failure to meet its obligations under this Section
16.4.1.
16.4.2 Disabling/Enabling
Code. Wherify
represents and warrants that without the prior written consent of Siemens,
Wherify
shall
not insert into the Software or any Software component(s) any code which would
have the effect of disabling or otherwise shutting down all or a portion of
the
Software disabling code. Wherify
further
represents and warrants that with respect to any disabling code that may be
part
of the Software or Software component(s), Wherify
shall
not invoke such disabling code at any time, including upon expiration or
termination of this Agreement, in whole or in part, without Siemens prior
written consent. Wherify
agrees
that it shall not utilize any enabling code to activate the Software or any
Software component(s) without Siemens prior written consent enabling
code.
16.4.3 Right
to Use. Wherify
represents and warrants that it is either the owner of or authorized to
distribute, sublicense, and use the Software as provided in this Agreement
or
the relevant SPA. Wherify
represents and warrants that Siemens shall be entitled to the rights of
possession and quiet enjoyment of the Software. Wherify
represents and warrants that no consent, approval, or withholding of objection
is required from any entity, including any government authority, with respect
to
the Software.
16.4.4 No
Infringement. Wherify
represents and warrants that its Products and
Location
Services
do not and that it shall perform its responsibilities under this Agreement
in a
manner that does not infringe or constitute an infringement or misappropriation
of any patent, copyright, trademark, mask work, trade secret, or other
proprietary rights of a third party.
16.4.5
Documentation. Wherify
represents and warrants that all Documentation provided by Wherify
shall be
accurate, complete, and written in a manner to be understood by a typical user
of the Software, trained to an appropriate level for his/her job
responsibilities, and shall be updated from time-to-time to reflect any changes
to the Software.
16.4.6
No Suits. Wherify
represents and warrants that there are no legal actions, suits, or proceedings,
pending or threatened, which could have a material adverse effect on
Wherify’s
ability to fulfill its obligations under this Agreement.
16.5 Notice
of Breach.
If at
any time during the Warranty
Period
for the
Software or Location
Services,
Siemens believes there is a breach of any warranty, it will notify Wherify
setting
forth the nature of such claimed breach. Except as otherwise set forth in this
Agreement, Wherify
shall
promptly investigate such claimed breach and within three
business days of Siemens notice, and shall either (i) provide information
satisfactory to Siemens, as determined in its sole discretion, that no breach
of
warranty in fact occurred, or, (ii) at no additional charge to Siemens, promptly
use its best efforts to take such action as may be required to correct such
breach.
If
a
breach of warranty has not been corrected within the time specified in this
Agreement, if two or
more
breaches of warranty occur in any 60
day
period, or, if Siemens relies to its detriment on Wherify’s
representation that particular features, quality elements, or functions of
the
Software will be available, then Siemens may, in addition to any other remedies
available to it for the recovery of damages and compensation for its additional
costs and expenses incurred as a result of such breach, elect to:
(a) obtain
functionally equivalent software and Location
Services,
including any Location
Services
provided before, during, or following the Warranty
Period,
from
another source and Wherify
shall be
responsible for any additional costs incurred by Siemens and any damages owed
to
a Customer; or
(b) obtain
a
reduction of all amounts paid for any Location
Services
provided during or following the Warranty
Period
in the
amount of 50%
as a
credit against future charges
or as a
cash reimbursement, as determined in Siemens sole discretion.
Additionally,
Siemens may terminate the Agreement or the relevant SPA, in whole or in part,
as
provided in Article
24: Termination
or an
Order(s) as provided in Article
5: Ordering.
16.6 Warranty
Obligations.
The
warranty obligations under this Article 16: Representations, Warranty, and
Location
Services
shall be enforceable against Wherify
during
the Warranty
Period
including any extensions and following its expiration, provided that Siemens
notifies Wherify
of such
breach of a warranty within six months
after the expiration of the Warranty
Period. THIS AGREEMENT STATES THE SOLE LIABILITY AND OBLIGATION OF WHERIFY
AND
THE SOLE REMEDY OF SIEMENS ARISING OUT OF A BREACH OF THE WARRANTIES GIVEN
IN
THIS AGREEMENT. EXCEPT FOR THE LIMITED PRODUCT WARRANTIES SET FORTH IN THIS
SECTION, WHERIFY MAKES NO REPRESENTATIONS OR WARRANTIES TO ANY PERSON OR ENTITY
WITH RESPECT TO THIS AGREEMENT OR THE WHERIFY PRODUCTS, HARDWARE, SOFTWARE,
SERVICES AND ANY OTHER MATERIALS PROVIDED OR SERVICES PERFORMED, AS THE CASE
MAY
BE, BY WHERIFY UNDER THIS AGREEMENT. WHERIFY HEREBY EXPRESSLY DISCLAIMS ALL
OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED STATUTORY OR OTHERWISE, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT, ACCURACY OR SATISFACTORY QUALITY.
17.0 PRODUCT
SUPPORT
17.1 Discontinued
Product(s).
Following the Term and upon 12
months
prior written notice, Wherify
may
discontinue the Software and/or any related components; provided, however,
that
Wherify
shall
provide continuing support for such discontinued Software and/or any related
components and parts in accordance with this Article 17: Product
Support.
In such
an event, Siemens shall also have the right to exercise a last time buy option
in accordance with Section 17.3.
17.2 Continuing
Support. Wherify
agrees,
provided the Software and/or any related component(s) are discontinued, to
offer
for sale to Siemens during the Term and for five
years
following the delivery to a Customer (excluding Orders for replacement or repair
parts only) to provide: (i) field service and assistance as necessary; (ii)
functionally equivalent software and any related components; (iii)
correction or support Location
Services
for the Software and any related components, at the price set forth in the
then
current Attachment
G: Wherify’s
Price List,
or,
if no
agreement is in effect then at a price agreed to by Siemens; and (iv) updates,
patches, and/or fault corrections for Software at no additional charge. If
the
Parties fail to agree upon a price, the price shall be the
lesser of Wherify’s
then
current price for said Software and any related components and parts, or, a
negotiated price which is in accordance with Section
13.2.
The
Software and any related components shall be warranted as set forth in
Article
16: Representations, Warranty, and Services.
Wherify’s
failure or inability to supply such components, updates, patches, and/or fault
corrections for Software, itself or from another source shall be considered
non-compliance with this clause.
17.3 Last
Time Buy Option. In
the
event of the discontinuation of the Software or any related components,
including unacceptable changes, Wherify
shall
offer Siemens an opportunity to execute a last time buy option at its then
current prices. Such option shall not unreasonably limit the quantities
purchased and the delivery dates shall be extended to the latest date possible.
Upon Siemens request, and without obligation or charge to Siemens, Wherify
shall
provide technical information, source code, Documentation, and rights required
to permit Siemens to continue to sell, license, and maintain such Software.
17.4
Escrow. Upon
Siemens request, Wherify
shall,
at its sole cost and expense, deposit in escrow with Iron
Mountain
Escrow
Services or another third party escrow agent acceptable to
Siemens and pursuant to an agreement which reflects the terms stated in this
Section
17.4
(“Escrow
Agreement”)
copies
of all Wherify
Deposited
Information. Wherify
agrees
to update this deposit within 30
days
after each update or modification of the Deposited Information..
Siemens
shall have the right to cause a verification of the Deposited Information by
a
qualified third party expert selected by Siemens. In the event the verification
does not confirm the deposit required, then Wherify
shall
immediately be provided with notice and five calendar days to review the results
of such verification. Following Wherify’s
review, it shall thereafter immediately deposit the additional materials
pursuant to this Article
17: Product Support
and
shall pay for all amounts, including any expenses, incurred by Siemens for
such
verification.
The
Parties shall resolve any disputed issues with regard to such verification
in
accordance with Article
23: Dispute Resolution.
Any
portion of Deposited Information that is customized for Siemens will be
segregated from other deposited information.
Wherify
represents and warrants that (i) the Deposited Information shall at all times
be
sufficient for a Trained Programmer to maintain and support the Software without
further assistance from Wherify;
(ii)
the licensed programs do not contain any proprietary languages or programming
tools or components which a Trained Programmer could not reasonably be expected
to understand; (iii) the Deposited Information includes all of the devices,
programming, and documentation necessary for the maintenance of the licensed
programs by a Trained Programmer; (iv) if any portion of the Deposited
Information is encrypted, the decryption tools and decryption keys shall have
also been deposited; and (v) the Deposited Information includes all technical
information necessary for Siemens to manufacture, to have manufactured, or
to
obtain the Hardware and any related components and parts from other sources.
Wherify
agrees
that Siemens shall have access to the Deposited Information in the event
Wherify
of a
Triggering Event. A Triggering Event shall be established by a sworn affidavit
of an executive at Siemens, at the level of Vice President or higher, attesting
to the existence of one of the Triggering Event. In the event there are third
parties, who are given access to the Deposited Information under an escrow
agreement, Wherify
acknowledges agrees that Siemens will have simultaneous access to the Deposited
Information.
Upon
the
occurrence of a Triggering Event, Wherify
agrees
that Siemens shall have the right to access the Deposited Information, including
the right to update and maintain the Deposited Information, shall have the
manufacturing rights as provided herein, and shall thereafter have a present
software license exercisable upon a release following a Triggering Event in
accordance with the provisions of this Section
17.4
to use
the Deposited Information as provided in Article
20: Software License
and the
ownership rights as provided in this Article
17: Product Support. Upon the
occurrence of a Triggering Event, Wherify
also
agrees that Siemens shall have all rights necessary to permit Siemens (i) to
manufacture, to have manufactured, or to obtain the Hardware (in modified or
unmodified form) and any related components and parts from other sources as
well
as (ii) to sell, otherwise dispose of, maintain, and service the Hardware (in
modified or unmodified form) as a result of its use of the Deposited
Information.
At
the
time of the execution of this Agreement, and as updated for any personnel
change(s), Wherify
agrees
to identify its technical personnel with knowledge of the Software and to
provide their contact information. Upon the occurrence of a Triggering Event,
Siemens shall have the right, and be provided access, to contact and solicit
for
employment any of Wherify’s
technical personnel with knowledge of the Software.
.
In
the
event of a rejection of this Agreement or any related or supplemental agreement,
Siemens may elect to retain its rights under such agreements as provided in
Section 365(n) of the Bankruptcy Code. Upon written request of Siemens to
either, as applicable, Wherify
or
bankruptcy trustee or receiver, such authorized person shall not interfere
with
the rights of Siemens as licensee as provided in such agreements.
In
the
event of any conflict between the provisions of this Agreement and the Escrow
Agreement entered by the Parties, the provisions which are the most protective
of Siemens rights and interests under this Agreement shall have
precedence.
18.0 INSURANCE
Wherify
shall
during the Term have and maintain in force the insurance coverages listed below.
18.1
Commercial
General Liability Insurance. Wherify
shall
maintain commercial general liability insurance, including products, completed
operations liability, personal injury, contractual liability, and broad form
property damage liability coverage for damages to any property with a minimum
combined single limit of $2,000,000.00
per
occurrence.
18.2 All
Risk Property Insurance. Wherify
shall
maintain all risk property insurance on equipment, data, media, and valuable
papers, including extra expense coverage, with a minimum limit adequate to
cover
such risks on a 100%
replacement cost basis.
The
foregoing insurance coverages shall be primary and non-contributory with respect
to any other insurance or self insurance which may be maintained by Wherify,
and
shall be endorsed to Siemens as an additional insured, with the exception of
Workers Compensation. Wherify
shall
cause its insurers to issue certificates of insurance evidencing that the
coverages and policy endorsements required under this Agreement are maintained
in force and that not less than 30
days
written notice shall be given to Siemens prior to any cancellation or
non-renewal of the policies. The insurers selected by Wherify
shall
have an A.M. Best rating of A or better, or, if such ratings are no longer
available, with a comparable rating from a recognized insurance rating agency.
These
insurance requirements do not limit or otherwise affect Wherify’s
obligations under any of the provisions of this Agreement, a relevant SPA,
an
Order, or at law or equity.
19.0 INDEMNITIES
19.1 Indemnity
by Wherify. Wherify
agrees
to indemnify, defend, and hold harmless Siemens and its Affiliates and their
respective officers, directors, employees, agents, successors, and assigns,
from
any and all damages and losses from claims arising from, in connection with,
or
based on allegations of any of the following: (i) Wherify’s
failure
to observe or perform any duties or obligations for third parties on or after
the Effective Date (e.g., duties or obligations to subcontractors); (ii)
Wherify’s
breach
of its obligations with respect to Siemens Confidential Information; (iii)
any
claim, demand, charge, action, cause of action, or other proceeding asserted
against Siemens, but resulting from an act or omission of Wherify
in its
capacity as an employer of a person; (iv) Wherify’s
breach
of any representation, warranty, covenant, obligation, or responsibility set
forth in this Agreement; (v) the negligence or intentional misconduct of
Wherify
or any
of its officers, directors, or employees; (vi) any claims, warranties , or
representations made by Wherify
concerning the quality, performance, or other characteristics of the Product(s)
or Location
Services;
(vii) Wherify’s
breach
of any obligations under
Section 26.2.
| 19.2 |
Siemens
agrees to indemnify, defend, and hold harmless Wherify and its Affiliates
and their respective officers, directors, employees and agents, from
any
and all damages and losses from claims arising from, in connection
with,
or based on allegations of any of the following: (i) Siemens breach
of its
obligations with respect to Wherify Confidential Information; and
(ii) the
gross negligence or intentional misconduct of Siemens or any of its
officers, directors, or employee..
|
| 19.3 |
Indemnification
for Property and Personal Injury.
|
19.3.1 Wherify agrees
to
indemnify, defend, and hold harmless Siemens, its Affiliates, and its and their
respective officers, directors, employees, agents,
successors, assigns and Customer(s)
(if
applicable), harmless from and against any and all liabilities, damages, costs,
and expenses, including reasonable attorneys fees, related to personal injury,
real property, or tangible personal property, to the extent such damages are
caused by the negligent act or omission of Wherify
or its
agents, subcontractors, employees, provided
Siemens
provides
timely
notification to Wherify
of any
assertion against it of any such claims or demands and allows
Wherify
to
control the defense and all related settlement negotiations. Siemens will
cooperate in good faith with Wherify
to facilitate the defense of such a claim.
19.3.2
Indemnification
for Infringement. If
the
Product(s) or Location
Services
or the use of the Product(s) for any purpose within the scope of this Agreement
becomes, or in Siemens reasonable opinion is, or, is likely to become, the
subject of an infringement or misappropriation claim or proceeding, Wherify
shall
indemnify, defend, and hold harmless Siemens, its Affiliates, directors,
officers, employees agents, and Customer(s) who use the Product(s), or End
User(s (“Indemnified Party(ies)”), from and against any claim, liability, or
damage as permitted under this Agreement and this Section
19.3 from
any
third party claim, action, suit, proceeding, or settlement thereof, to the
extent that such claim, actions, suit, or other proceedings against an
Indemnified Party asserts that any patent, copyright, trade secret, or other
intellectual property right is infringed by use of the Product(s) by an
Indemnified Party. Wherify
shall so
indemnify, defend, and hold the Indemnified Parties harmless from all costs,
liabilities, expenses, and damages, including court costs and reasonable
attorney fees provided Wherify
is
promptly notified, given assistance as necessary, and permitted to direct the
defense. In the event Siemens does not provide such notice, Wherify’s
indemnification obligations under this Section
19.3
shall
not be abrogated except to the extent that actual and material prejudice
results. Wherify
agrees
to request its third party suppliers
to
provide reasonable efforts in support of Wherify
if it is
engaged in defending an Indemnified Party or avoiding a claim under this
Section 19.3.
In
addition to all other rights and remedies under this Agreement, Wherify
agrees
if a Product(s) becomes, or in Siemens reasonable opinion is likely to become,
the subject of a claim of infringement, or should use of the Product(s) be
enjoined, Wherify
shall,
in addition to its obligations under the immediately preceding paragraph above,
at its expense, and in descending order of precedence:
(a) procure
for the Indemnified Party(ies) the right to continue using the Product(s);
or
(b) modify
the Product(s) to make it non-infringing while maintaining equivalent or better
functionality, features, performance, and conformance to the Applicable
Standards and Specifications.
If
neither of the foregoing are commercially reasonable alternatives, as determined
in Siemens reasonable judgment, Wherify
may
replace the Product(s) with a product that has equivalent or better
functionality, features, performance, and conformance with the Applicable
Standards and Specifications.
Notwithstanding
any provision in this Section
19.3
or in
this Agreement, Siemens is authorized to include this infringement
indemnification provided by Wherify
to a
Customer or other End User(s) in the terms and conditions of the End User(s)
license to give effect to the indemnification provided by Wherify
and as
determined to be necessary by Siemens in its sole discretion. Wherify
acknowledges and agrees that Siemens has the right to flow this indemnification
for infringement through to a Customer or End User(s) and that in such
circumstances, a Customer or the End User(s) shall have the right to seek such
indemnification provided in this Section
19.3
directly
from Wherify.
THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND
OBLIGATION OF WHERIFY AND THE EXCLUSIVE REMEDY OF SIEMENS, DISTRIBUTORS, AGENTS,
EMPLOYEES, AND ITS CUSTOMERS WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF
COPYRIGHTS, TRADEMARKS, DESIGNS, TRADE SECRETS, PATENTS OR OTHER INTELLECTUAL
PROPERTY RIGHTS BY THE WHERIFY PRODUCTS.
19.4 Limitation
of Liability.
19.4.1 Wherify’s
Limitation.
Except
for any obligations with regard to indemnifications under this Article
19: Indemnities
or the
relevant SPA, Wherify’s
liability for any and all claims, losses or expenses arising out of this
Agreement, or out of any claim regardless of the legal theory, including but
not
limited to, negligence, strict liability, agency, warranty, trespass, breach,
or
any other liability shall not exceed the
greater of $10,000,000 or the total purchase price for all Products and Services
ordered by Siemens and its Affiliates under this Agreement.
19.4.2 Siemens
Limitation.
Siemens
liability for any and all damages, claims, losses, costs, or expenses arising
out of this Agreement or out of any claim regardless of legal theory, including
but not limited to, negligence, strict liability, agency, warranty, trespass,
breach, or any other liability, shall in no event exceed the amount paid by
Siemens for Product(s) and Location
Services
in the three month
period immediately preceding the event giving rise to such claim. Any such
claims shall not exceed an aggregate amount of $10,000,000.00.
Siemens
will have no liability to Wherify
for
compensation, reimbursement, or damages of any kind arising out of the
expiration or termination of this Agreement.
19.4.3
DISCLAIMER.
UNDER NO
CIRCUMSTANCES SHALL SIEMENS BE LIABLE TO WHERIFY FOR ANY INDIRECT,
CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING
WITHOUT LIMITATION, LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL,
ARISING IN CONNECTION WITH THIS AGREEMENT OR THE RELEVANT SPA, UNDER ANY THEORY
OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY, OR NEGLIGENCE, EVEN IF SIEMENS
HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH
DAMAGES.
20.0 LICENSE
20.1 Grant. Wherify
hereby
grants Siemens, for itself or its Affiliates as provided in this Agreement,
a
fully paid, royalty-free, non-exclusive, worldwide, perpetual, transferable,
and
irrevocable license to use, market, distribute, and sublicense the Software
to a
Customer
only in
connection with the Products. If
the
End User(s) requires a license directly from Wherify,
Wherify
agrees
to give the End User a license under the same license terms as given to the
Customer. Wherify
grants to Siemens the right to copy the Software for archival purposes and
as
necessary to maintain and sublicense the Software to a Customer and grants
these
same rights to copy to these sublicensees. Siemens or a Customer shall also
have
the right to sublicense the Software to another End User(s). These rights
include those provided below.
(a) use
and/or have used the Software for the purposes of installing, testing,
operating, and maintaining the Software in combination with
or to be
combined with,
or as
part of devices, equipment, hardware, software, and technology marketed by
Siemens, its Affiliates, and/or distributors; and
(b) use,
copy, reprint, redesign, translate and/or have translated (if required by an
applicable Adoption Agreement), or
have
redesigned by a subsidiary, the
Documentation for use of the Software by Siemens, its Affiliates and/or
distributors.
20.2
End
User(s) Agreement. Siemens,
its Affiliates, and distributors will sublicense the Software to End-Users
pursuant to a written license
agreement(s) which contains
terms
substantially similar to, and no less protective of Wherify,
as the
terms
in this
Agreement or the relevant SPA.
20.3.
Trademarks and Legend. Wherify
hereby
grants to Siemens, a Customer, or an End User(s) with the right to sublicense
such rights as granted in this Article 20: Software License to its Affiliates,
its distributors and their licensees, or End User(s), and Siemens hereby accepts
from Wherify
a
non-exclusive, worldwide right
and
license to use, and reproduce all
present
and future trademarks,
trade names, logos, copyright notices, and other intellectual property rights
notices of Wherify’s
for
the Software, the Documentation, the Applicable Standards and Specifications,
and all other pertinent documents and specifications. Wherify
undertakes to make available such trademarks, trade names, logos, copyright
notices, and other intellectual property rights notices in writing and in
electronic format. Wherify
shall
convey updates each time a new trademark,
trade
names, logos, copyright notices, and other intellectual property rights notices
will be used by Wherify
for the
Software. Siemens shall reproduce and use trademarks, trade names, logos,
copyright notices, and other intellectual property rights notices in accordance
with Wherify’s
usage
guidelines if provided to Siemens.
All use
and goodwill associated with the Wherify Trademark will inure exclusively to
the
benefit of Wherify. Upon notice from Wherify of its objection to any improper
or
unauthorized use of a Wherify Trademark, Siemens will correct or discontinue
such usage, as the case may be.
20.3.2 Right
to Use.
Siemens,
a Customer, or an End User(s) shall not be obligated to inquire into the
correctness of Wherify’s
rights
to use and to authorize the use of any trademarks, trade names, logos, copyright
notices, and other intellectual property rights notices contained in the
Software, the Documentation and the pertinent documents. As provided in this
Section
20.3.2,
Wherify
shall
indemnify, defend and hold harmless Siemens, its Affiliates, its distributors,
its Customer(s), and End-User(s) from any claims, demands, costs and expenses
based upon any claim that the use of any Intellectual Property Rights Notice
infringes third party rights
subject
to and as more fully set forth in Section
19.3.
20.3.3 Trademark
Registration.
Wherify
will retain the exclusive right to apply for and obtain registration of the
Wherify Trademarks,
20.3.5 Rights
Protection.
Siemens
will use reasonable efforts to notify Wherify of any infringement or
misappropriation of any patents, copyrights, trade secrets, trademarks, or
other
intellectual property or proprietary rights of Wherify or its suppliers of
which
Siemens has actual knowledge.
20.3.5 Display.
All
packaging, labels, marketing and promotional materials, ads, and the like of
Siemens for Products and Location Services will display the Wherify Trademarks
in a manner approved by Wherify in writing.
21.0 FORCE
MAJEURE
No
Party
shall be liable for any default or delay in the performance of its obligations
under this Agreement to the extent caused, directly or indirectly, by fire,
flood, lightning, earthquake, elements of nature or acts of God, riots, civil
disorders, rebellions, acts of terrorism, or revolutions in any country, or
any
other similar cause beyond the reasonable control of such Party; provided,
however, that such default or delay is not caused by the non-performing Party,
could not have been prevented by the reasonable precautions of the
non-performing Party, and could not have been reasonably circumvented by the
non-performing Party through the use of alternate sources, workaround plans,
or
other means. In such event, the non-performing Party shall be excused from
the
further performance of its obligation(s) affected for as long as such
circumstances continue. Notwithstanding the foregoing, the non-performing Party
shall continue to use its best efforts to recommence its performance whenever
and to whatever extent possible throughout any default or delay caused by a
force majeure occurrence. The non-performing Party shall immediately notify
the
Party to whom performance is due by telephone (to be confirmed in writing within
two days
of
the inception of such delay) and describe with reasonable detail the
circumstances for such delay. If any event under this Article
21: Force Majeure
substantially prevents, hinders, or delays Wherify’s
performance for more than 30
consecutive days, then at Siemens option it may: (i)
terminate or modify any affected portion of any Order, the relevant SPA, or
this
Agreement, and any outstanding amounts owed Wherify
shall be
equitably adjusted to reflect such termination; or (ii)
terminate this Agreement without liability to Siemens or Wherify
as of a
date specified by Siemens in a written notice of termination to Wherify.
Neither
Party shall have the right to any additional payments from the other Party
for
costs or expenses incurred as a result of any force majeure
occurrence.
22.0 DISPUTE
RESOLUTION
22.1
Disputes. Any
dispute between the Parties arising out of or relating to this Agreement,
including the interpretation of any provision, and with respect to the
performance by Wherify
or
Siemens, shall be resolved as provided in this Article
22: Dispute Resolution.
| 22.2 |
Informal
Procedures.
|
22.2.1 Negotiations
between Executives. Prior
to
the initiation of formal dispute resolution procedures, the Parties shall first
attempt in good faith to resolve any dispute arising out of or relating to
this
Agreement or a relevant SPA promptly by negotiation between the executives
who
have authority to settle the controversy and who are at a higher level of
management than the person with direct responsibility for the administration
of
this Agreement or the relevant SPA. Any Party may give the other written notice
of any dispute not resolved in the ordinary course of business. Within
10
business
days after delivery of such notice, the Party receiving the notice shall submit
to the other a written response.
22.2.2 Form
of Notice and Response. The
notice and the response shall include: (i) a
statement of each Party’s position(s) regarding the matter(s) in dispute and a
summary of arguments in support thereof, and (ii) the name and title of the
executive who will represent that Party and any other person who will accompany
such executive. Within 30
business
days after delivery of the notice, the designated executives shall meet at
a
mutually acceptable time and place, and thereafter, as often as they reasonably
deem necessary, to attempt to resolve the dispute. All reasonable requests
for
information made by one Party to the other shall be honored in a timely
fashion.
22.2.3 Failure
to Resolve.
If the
matter in dispute has not been resolved within 60
days
after delivery of the notice, or, if the Parties fail to meet within
30
days,
then the dispute shall be referred to more senior executives who have the
authority to settle the dispute and who shall likewise meet in an attempt to
resolve the matter(s) in dispute. If the matter(s) have not been resolved within
30
days
after its referral to these more senior executives, or, if no meeting of such
senior executives has taken place within 15
days
after
such referral, either Party may initiate subsequent proceedings as provided
in
this Article
22: Dispute Resolution.
22.2.4 Confidential.
All
negotiations conducted pursuant to this Section
22.2,
and any
of the Parties’ submissions in contemplation thereof, shall be kept confidential
by the Parties and shall be treated by the Parties and their respective
representatives as compromise and settlement negotiations for the purposes
of
the Federal Rules of Evidence and any similar state rules.
22.3 Limited
Effect.
The
Parties agree that disputes, controversies or claims between them shall not
be
subject to the provisions of Section
22.2
when:
(a) a
Party
makes a good faith determination that a breach of the terms of this Agreement
by
the other Party is such that a temporary restraining order or other injunctive
relief is the only appropriate and adequate remedy;
(b) the
institution of formal proceedings earlier than as provided in Section
22.2
is
necessary to avoid the expiration of any applicable limitation periods or to
preserve a superior position with respect to other creditors; or
(c) in
the
event a Party is involved in litigation with a third party and successfully
joins the other Party in litigation.
If
a
Party files a pleading with a court seeking injunctive relief and is
unsuccessful, then the other Party may recover its costs and attorneys fees
from
the filing Party.
22.4 Litigation. Unless
the Parties agree otherwise in writing, formal proceedings for the resolution
of
a dispute may be commenced after the earlier of:
(i) the
unsuccessful conclusion of negotiations under Section
22.2;
(ii) the
designated executives determine that it does not appear likely that the dispute
can be resolved under Section
22.2;
or
(iii) the
provisions of Section
22.3
are
applicable. The Parties consent to the jurisdiction of the courts of the State
of California and to jurisdiction and venue in the state and federal courts
sitting in San Diego County, California for all litigation arising out of or
related to this Agreement or the relevant SPA. The Parties further consent
to
the jurisdiction of any state court located within a district where the assets
of a Party are located for the purpose of the enforcement of a judgment or
award
against the assets of such Party.
22.5 Continued
Performance. Unless
the matter(s) in dispute preclude performance, each Party agrees to continue
performing its obligations under this Agreement and the relevant SPA while
any
dispute is being resolved as provided in this Article
22: Dispute
Resolution. The
foregoing shall not limit a Party’s termination rights and the discontinuation
of each Party’s obligations in accordance with termination provisions set forth
in Article
23: Termination.
22.6 Governing
Law.
With the
exception of the matters to be resolved under Section
22.7,
the
relevant SPA, and any Orders and performance under such shall be governed by
and
construed in accordance with the laws of State of California without regard
to
its choice of law principles. The United Nations Convention for Sale of Goods
shall not be applicable to this Agreement, the relevant SPA, or any Orders
under
these agreements.
22.7
Foreign
Domiciled Siemens Affiliates.
All
matters with regard to dispute resolution for a foreign domiciled Siemens
Affiliate shall be as provided in the relevant Adoption Agreement. Orders
by
a foreign domiciled Siemens Affiliate and performance by such Affiliate under
an
Adoption Agreement or a relevant SPA pursuant to such an Adoption Agreement
shall in no way be deemed or construed as consent by such foreign domiciled
Siemens Affiliate to the jurisdiction of any court in the United States or
any
state thereof. Notwithstanding anything to the contrary herein which may be
based on facts or circumstances pertaining to a potential transaction
contemplated under this Agreement or a relevant SPA, Wherify
hereby
irrevocably and unconditionally waives and releases all rights and claims it
may
now or hereafter have arising under this Agreement or a relevant SPA that any
foreign domiciled Siemens Affiliate is subject to the jurisdiction of the
federal or state courts of the United States based solely on the potential
transactions contemplated under this Agreement or a relevant SPA; provided,
however, that nothing in such waiver and release shall affect Wherify’s
rights
to pursue a claim against any foreign domiciled Siemens Affiliate in the courts
of its domicile.
23.0 TERMINATION
23.1 Termination
for Cause. In
the
event Wherify:
(a) materially
breaches any of its duties, representations, warranties, obligations, covenants,
or responsibilities under this Agreement or a relevant SPA, and fails to: (i)
develop within ten (10) days following written notice of breach a complete
plan
for curing the breach, which is acceptable to Siemens; and (ii) fully cures
such
material breach within thirty (30) days; or
(b) commits
numerous breaches of its duties or obligations; or
(c) becomes
insolvent, voluntarily or involuntarily bankrupt or is unable to meets its
obligations when due, allows the appointment of a receiver or other liquidating
officer for all or substantially all of its assets or business or makes an
assignment for the benefit of creditors, then Siemens may, terminate this
Agreement, in whole or in part, as of a date designated in the notice of
termination. Siemens will give Wherify
30
days
written notice for termination under 24.1 (b) and (c).
If
Siemens terminates this Agreement in its entirety, then all payments for
Location
Services
provided through the effective date of termination shall be refunded on a pro
rata basis and all payment for Product(s) shall be refunded for all returned
Product(s). If Siemens chooses to terminate this Agreement in part, the charges
payable under this Agreement will be equitably adjusted to reflect
the
Location
Services
terminated and the Product(s) returned.
23.2 Termination
for Convenience.
Siemens
may terminate this Agreement, in whole or in part, for convenience and without
cause at any time by giving Wherify
180 day’s
prior
written notice designating the termination date. In the event that a purported
termination for cause by Siemens is determined by a competent authority not
to
properly be such a termination, then it shall be deemed to be a termination
for
convenience under this Section
23.2.
23.3 Termination
of a Specific Project Amendment.
23.3.1 Grounds
for Termination. A
relevant SPA may be terminated prior to completion of the work to be performed
under such SPA by:
|
(a)
|
termination
of the entire Agreement;
|
|
(b)
|
termination
of the relevant SPA, provided the same notice and cure periods are
followed as apply to termination of the
Agreement;
|
|
(c)
|
notice
to Wherify
from Siemens of the Customers
termination of its agreement with Siemens;
|
(d) the
mutual written agreement of the Parties; or
(e)
for
convenience as
provided in
Section 23.2.
23.3.2
Actions
following Termination.
Unless
the Agreement is terminated pursuant to
Section 23.1, the
provisions of this Section
23.3.2 shall
be
applicable to the termination of the relevant SPA. Wherify
will
cease work immediately upon termination of the relevant SPA. In such event,
Wherify
will
invoice Siemens for any undisputed charges for Product(s) and Location
Services
satisfactorily delivered or completed before the effective date of termination
which meet the requirements of this Agreement and the relevant SPA. Wherify
will
also invoice Siemens for reimbursement of Wherify’s
unavoidable and substantiated charges for finished and identified Product(s),
which were not shipped prior to the effective termination date. Both Parties
will act in good faith to minimize such charges; but in no event will such
charges exceed the fees or costs specified in the relevant SPA for such
Product(s) and
Location
Services. Upon payment under this Section
24.3,
Siemens
will then own such Product(s) and Location
Services
as well as any related components, parts, and other items, and Wherify
will
deliver such materials to Siemens upon its request.
23.4 Termination
/ Expiration Assistance.
23.4.1
Before
the Effective Date of Termination/Expiration.
Commencing (6) months prior to the termination or expiration of this Agreement,
an earlier date if requested by Siemens, or upon any notice of termination
(in
whole or in part), expiration, or non-renewal of this Agreement, and continuing
through the effective date of expiration (as such effective date may be extended
pursuant to Article
3: Term)
or
termination, as applicable, Wherify
shall
provide to Siemens or to a designee upon Siemens written request, reasonable
termination or expiration assistance to allow the Location
Services
to continue for a Customer without interruption or adverse effect and to
facilitate the orderly transfer of the Location
Services
to Siemens or its designee (“Termination/Expiration
Assistance”).
Termination/Expiration
Assistance shall include the following assistance:
(a) Wherify
shall,
using its good faith efforts, cooperate with Siemens in effecting the orderly
transfer of its support obligations and Services hereunder to a qualified third
party Wherify;
(b) Wherify
shall
continue to perform the support obligations and Services for the fee(s)
applicable at the time of expiration and/or termination for a period of
12
months
following the effective date of termination/expiration;
(c) Wherify
shall
sublicense, to the extent authorized, to Siemens all third party products
utilized with the Product(s) subject to the use rights set forth in this
Agreement; provided, however, that Wherify
shall
obtain such sublicenses for Siemens for any third party products utilized in
the
Product(s) which are not commercially available;
(d) Wherify
shall
identify for Siemens all third party suppliers Wherify
utilized
to manufacture the Product(s); and
(e) provide
such other assistance and Services for a separate fee as agreed to by the
Parties in writing.
If
the
transition assistance is related to the end of the Term, then the
Termination/Expiration Assistance shall commence no later than 90
days in
advance of the effective date of the termination or expiration.
23.4.2 Following
the Effective Date of Termination/Expiration. Provided
Siemens is current on its payments of all undisputed invoice amounts, this
Section
23.4.2 shall
survive the termination or expiration of this Agreement. For a period of
12
months
following the effective date of termination or expiration, Wherify
shall
provide, at Siemens request, any or all of the Services being performed by
Wherify
prior to
the effective date. To the extent Wherify
is to
perform any Location
Services,
including but not limited to Termination/Expiration Assistance, under this
Section
23.4.2,
then
the provisions of this Agreement shall be applicable as such provisions would
have been applicable to such Location
Services
prior to the effective date of the termination/expiration of this Agreement,
provided the fees charged shall be those personnel rates set forth in the
relevant SPA or Attachment
G: Wherify’s
Price List.
23.4.3 Equitable
Remedies. Wherify
acknowledges that, in the event it breaches (or attempts or threatens to breach)
its obligation to provide Termination/Expiration Assistance as provided in
Section 23.4,
Siemens
will be irreparably harmed. In such a circumstance, Siemens may proceed directly
to court. If a court of competent jurisdiction should find that Wherify
has
breached (or attempted or threatened to breach) any such obligations,
Wherify
agrees
that, without any additional findings of irreparable injury or other conditions
to injunctive relief, it shall not oppose the entry of an appropriate order
compelling performance by Wherify
and
restraining it from any further breaches (or attempted or threatened
breaches).
24.0 CONFIDENTIAL
INFORMATION
24.1 Definitions.
(a) “Confidential
Information”
means
(i) the existence, purpose, pricing, subject matter, and terms of this Agreement
and the relevant SPA; (ii) information that relates to the purpose stated in
this Article
24: Confidential Information;
or
(iii)
information which is otherwise disclosed as a result of the Parties’ performance
and that should reasonably have been understood by the receiving Party
(“Receiving Party”), because of legends or other markings, the circumstances of
disclosure or the nature of the information itself, to be proprietary and
confidential to the disclosing Party (“Disclosing Party”), an Affiliate of the
Disclosing Party or to a third party. Confidential Information may be disclosed
in written or other tangible form (including on magnetic media) or by oral,
visual, or other means.
(b) “Affiliate”
for the
limited purpose of this Article
24: Confidential Information
means
any person or entity directly or indirectly controlling, controlled by, or
under
common control with a Party.
24.2 Use
of Confidential Information.
A
Receiving Party of Confidential Information may use the Confidential Information
only for the purpose of performance under this Agreement, the relevant SPA,
or
applicable Orders, including the provision of Location
Services;
provided however, that nothing in this Agreement gives either Party the right
to
disclose the existence, purpose, pricing, subject matter, or terms of this
Agreement to any Customer or prospective Customer until a relevant SPA or an
purchase order are executed, except that Siemens may disclose such information
on a case-by-case basis in response to a Customer inquiry provided such pricing
is presented as Siemens pricing and not as Wherify’s.
24.3
Recipient’s
Use of Confidential Information.
Receiving Party shall protect such Confidential Information from disclosure
to
others, using the same degree of care used to protect its own confidential
or
proprietary information of like importance, but in any case using no less than
a
reasonable degree of care. Receiving Party may disclose Confidential Information
received hereunder to (i) its Affiliates who agree, in advance, in writing,
to
be bound by this Agreement, and (ii) to its employees and independent
contractors, and its Affiliates employees and independent contractors, who
have
a need to know for the purpose of this Agreement, the relevant SPA, or an Order,
and who are bound to protect the received Confidential Information from
unauthorized use and disclosure under the terms of a written agreement.
Confidential Information shall not otherwise be disclosed to any third party
without the prior written consent of the Disclosing Party.
24.4 Exceptions. The
restrictions of this Agreement on the use and disclosure of Confidential
Information shall not apply to information that:
(a) was
publicly known at the time of the Disclosing Party’s
communication thereof to the Receiving Party;
(b) becomes
publicly known through no fault of the Receiving Party subsequent to the time
of
theDisclosing Party’s
communication thereof to Receiving Party;
(c) was
rightfully in the Receiving Party’s
possession free of any obligation of confidence at the time of the Disclosing
Party's
communication thereof to the Receiving Party;
(d) is
developed by the Receiving Party independently of and without reference to
any
of the Disclosing Party’s
Confidential Information or other information that the Disclosing Party
disclosed in confidence to any third party;
(e) is
rightfully obtained by the Receiving Party from third parties authorized to
make
such disclosure without restriction; or
(f) is
identified by the Disclosing Party as no longer proprietary or confidential.
24.5 Disclosures
Required by Law.
In the
event the Receiving Party is required by law, regulation, or court order to
disclose any of the Disclosing Party’s
Confidential Information, the Receiving Party will promptly notify the
Disclosing Party in writing prior to making any such disclosure in order to
facilitate the Disclosing Party seeking a protective order or other appropriate
remedy from the proper authority. The Receiving Party agrees to cooperate with
the Disclosing Party in seeking such order or other remedy. The Recipient
further agrees that if the Disclosing Party is not successful in precluding
the
requesting legal body from requiring the disclosure of the Confidential
Information, it will furnish only that portion of the Confidential Information,
which is legally required and will exercise all reasonable efforts to obtain
reliable assurances that confidential treatment will be accorded the
Confidential Information.
24.6 Property
of Owner.
All
Confidential Information disclosed under this Agreement, the relevant SPA,
or a
purchase order entered into hereunder (including information in computer
software or held in electronic storage media) shall be and remain the property
of the Disclosing Party. All such information in tangible form shall be returned
to the Disclosing Party promptly upon written request or the termination or
expiration of this Agreement or the relevant SPA and shall not thereafter be
retained in any form by the Receiving Party, its Affiliates, or any employees
or
independent contractors of the Receiving Party or its Affiliates.
Notwithstanding the return, erasure, or destruction of Confidential Information
or the termination, through completion or otherwise, of this Agreement, the
rights and obligations with respect to the disclosure and use of Confidential
Information shall survive until one of the exceptions of Section
24.4
applies.
24.7
Equitable
Relief.
The
Parties acknowledge that Confidential Information is unique and valuable, and
that disclosure in breach of this Agreement will result in irreparable injury
to
the Disclosing Party for which monetary damages alone would not be an adequate
remedy. Therefore, the Parties agree that in the event of a breach or threatened
breach of confidentiality, the Disclosing Party shall be entitled to specific
performance and injunctive or other equitable relief as a remedy for any such
breach or anticipated breach without the necessity of posting a bond. Any such
relief shall be in addition to and not in lieu of any appropriate relief in
the
way of monetary damages.
24.8 Obligations
with Regard to Confidential Information Particular to Wherify.
The
following additional obligations are applicable when the Receiving Party of
the
Confidential Information is Wherify.
24.8.1
Wherify’s
Use of Confidential Information. Wherify
shall
not use any pricing or other information related to a Customer or potential
Customer provided to Wherify
by
Siemens (“Customer Information”) to compete against Siemens for a prospective
Customer’s business either directly via its retail sales channels, indirectly
through its wholesale sales channels, or any other sales channel working with
third parties. Wherify
shall
establish procedures to prevent any unauthorized use or disclosure; such
procedures shall include, but not be limited to, effective procedural firewalls
as well as data firewalls in computer databases, and notifying all Wherify’s
employees, agents, and subcontractors who may have access to any Siemens
Confidential Information and/or Customer information of the restrictions
contained in this Article
24: Confidential Information. Wherify
shall
require that all its employees accept the terms and conditions of this
Article
24: Confidential Information
in order
to obtain access to any Siemens Confidential Information and/or Customer
Information. Wherify
shall
ensure compliance by its employees, agents, and subcontractors with this
Article
24: Confidential Information
and
shall establish procedures to ensure that its employees, agents, and
subcontractors, and other persons acting by, through, or under them comply
with
the restrictions stated in this Article
24: Confidential Information.
24.8.3
Third
Party Information. If
Wherify
delivers
any third-party owned information to Siemens under or in contemplation of this
Agreement, the relevant SPA, or any Order, Wherify
represents and warrants that it has the right to deliver such third-party owned
information.
25.0 GENERAL
25.1 Binding
Nature and Assignment.
This
Agreement shall be binding on the Parties and their respective successors and
assigns. Neither
party
may assign
or
transfer this Agreement, or any of its rights or obligations under this
Agreement, whether by law or otherwise, to any other unaffiliated
person
or
entity, without the
other
party’s
prior
written consent. Notwithstanding
the foregoing, either
party’s
consent
may be withheld, in the event that it determines, in its sole discretion, that
any of the following circumstances are applicable: (i) the assignee is not
capable of meeting required
financial or performance obligations; (ii) the assignee is not capable of
carrying out a commercially viable business plan; (iii) the assignee competes
with either
party
in the
telecommunications market; or (iv) any other commercially reasonable
consideration
25.2 Compliance
with Laws and Applicable Standards. Each
Party shall perform its obligations in a manner that complies with all
applicable federal, state, and local laws, regulations, ordinances and codes,
including the export and foreign controls, the Foreign Corrupt Practices Act,
the U.S. Export Administration Act, and the requirements of the FCC, EPA, and
OSHA, all as may be amended from time to time. Wherify
shall be
responsible for taking appropriate steps to obtain necessary export licenses,
if
any, related to the export of Product(s), and shall provide Siemens with copies
of relevant export licenses. If either Party is charged with the failure to
comply with any law, the Party charged shall promptly notify the other Party
of
such charges in writing. Each Party warrants and represents that its execution,
delivery, and performance of this Agreement or the relevant SPA shall not
constitute (i) a violation of any judgment, order, or decree; or (ii) a material
default under any material contract by which it or any of its material assets
are bound.
25.3 Notices.
All
notices, requests, demands, and determinations under this Agreement (other
than
routine operational communications), shall be in writing and shall be deemed
duly given (i) when delivered by hand, (ii) one day
after
being given to an express, overnight courier with a reliable system for tracking
delivery, or (iii) five
days
after the day of mailing, when mailed by United States mail, registered or
certified mail, return receipt requested, postage prepaid, and addressed as
follows:
| In the case of Siemens: | In the case of Wherify: |
| Siemens Communications, Inc. | Wherify Wireless, Inc. |
| 00000 Xxxx Xxxxxxxx Xxxxx | 0000 Xxxxxx Xxxxxxx, Xxxxx 000 |
| Xxx Xxxxx, XX 00000 | Xxxxxxx Xxxxxx, XX 00000 |
|
Attn:____________________
|
With
a
copy to:
General
Counsel
Legal
Department
Siemens
Communications, Inc.
000
Xxxxxx Xxxxx Xxxxxxx, X.X.
Xxxx
Xxxxx, XX 00000
A
Party
may from time to time change its address or designee for notification purposes
by giving the other prior written notice of the new address or designee and
the
date upon which it will become effective.
25.4 Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original, but both of which together shall constitute one and the
same
instrument.
25.5 Relationship
of Parties. Wherify,
in
furnishing Product(s) and Location
Services
hereunder, is acting as an independent contractor and Wherify
has the
sole right and obligation to supervise, manage, direct, procure, perform or
cause to be performed, all work to be performed by Wherify
under
this Agreement. Wherify
is not
an agent of Siemens and has no authority to represent Siemens as to any matters,
except as expressly authorized in this Agreement.
25.6 Severability.
If any
provision of this Agreement or the relevant SPA is declared or found to be
illegal, unenforceable, or void, then both Parties shall be relieved of all
obligations arising under that provision, but only to the extent that such
provision is illegal, unenforceable, or void. If the remainder of this Agreement
shall not be affected by that declaration or finding and is capable of
substantial performance, then each provision not so affected shall be enforced
to the extent permitted by law.
25.7 Consents
and Approval. Except
where expressly provided as being in the discretion of a Party, where agreement,
approval, acceptance, consent, or similar action by either Party is required
under this Agreement or the relevant SPA, such action shall not be unreasonably
delayed or withheld. An approval or consent given by a Party under this
Agreement or the relevant SPA shall not relieve the other Party from
responsibility for complying with the requirements of this Agreement or the
relevant SPA, nor shall it be construed as a waiver of any rights under this
Agreement or the relevant SPA, except as and to the extent otherwise expressly
provided in such approval or consent.
25.8 Waiver
of Default; Cumulative Remedies. No
waiver
or discharge shall be valid unless in writing and signed by an authorized
representative of the Party against which such amendment, waiver, or discharge
is sought to be enforced. A delay or omission by either Party to exercise any
right or power under this Agreement or the relevant SPA shall not be construed
to be a waiver. A waiver by either of the Parties of any of the covenants to
be
performed by the other or any breach shall not be construed to be a waiver
of
any succeeding breach thereof or of any other covenant herein
contained.
25.9 Remedies. Except
as
otherwise expressly provided herein, all remedies provided for in this Agreement
or the relevant SPA shall be cumulative and in addition to and not in lieu
of
any other remedies available to either Party at law, in equity or
otherwise.
25.10 Survival. Any
provision of this Agreement which contemplates performance or observance
subsequent to any termination or expiration of this Agreement (in whole or
in
part) shall survive any termination or expiration of this Agreement or the
relevant SPA (in whole or in part, as applicable) and continue in full force
and
effect. Such provisions shall include, but not be limited to the following:
Article
19: Indemnities; Article 22: Dispute Resolution; Article 23: Termination,
Article 24: Confidential Information;
and
Article 25: General.
25.11 Public
Disclosures. All
media
releases, public announcements, and public disclosures relating to this
Agreement or the relevant SPA, or, the subject matter of these agreements,
including promotional or marketing material, but not including announcements
intended solely for internal distribution or disclosures to the extent required
to meet legal or regulatory requirements beyond the reasonable control of the
disclosing Party, shall be coordinated with and approved by the non disclosing
Party prior to release.
25.12 Service
Marks. Wherify
agrees
that it shall not, without Siemens prior written consent, use the name, service
marks, or trademarks of Siemens.
25.13 Third
Party Beneficiaries. Except
as
provided in this Agreement and the relevant SPA, these agreements are entered
into solely between, and may be enforced only by, Siemens and Wherify.
These
agreements shall not be deemed to create any rights in third parties, including
suppliers and customers of a Party, or to create any obligations of a Party
to
any such third parties.
25.14 Amendment. This
Agreement shall not be modified, amended or in any way altered except by an
instrument in writing signed by the authorized representative of each
Party.
25.15 Incorporation
by Reference and Order of Precedence.
25.15.1 Incorporation
by Reference. The
attachments and schedules attached hereto are hereby incorporated by reference
into this Agreement. Subject to Section
26.14,
any
amendments to these attachments and schedules, and any other attachments and
schedules that are agreed upon by the Parties subsequent to the Effective Date,
shall likewise be incorporated by reference into this Agreement and the relevant
SPA, as applicable.
25.15.2 Order
of Precedence. Any
conflict among or between the terms and conditions included in the documents
making up this Agreement will be resolved in accordance with the following
order
of precedence (from highest to lowest priority):
(a) Specific
Project Amendment with Exhibits;
(b) Change
Orders;
(c) the
Adoption Agreement (if applicable);
(d) this
Agreement and Attachment A;
(e) the
attachments (other than Attachment A);
(f) the
schedules and exhibits including those which are part of the attachments;
and
(g) Orders.
25.16 Entire
Agreement.
This
Agreement, including any relevant SPA, the attachments, schedules, and exhibits,
sets forth the entire agreement and understanding between the Parties as to
the
subject matter hereof and merges all prior discussions between them relating
to
such subject matter. Neither of the Parties shall be bound by any conditions,
definitions, warranties, understandings, or representations with respect to
such
subject matter other than as expressly provided herein or as duly set forth
on
or subsequent to the effective date hereof in writing and signed by an
authorized representative of the Party(ies).
25.17 Controlling
Language.
This
Agreement is in English only, which language will be controlling in all
respects.
25.18 Counterparts;
Facsimile Signatures.
This
Agreement may be executed in counterparts, each of which, when taken together
will one and the same instrument.
IN
WITNESS WHEREOF, this Agreement has been executed and delivered by the
authorized officers indicated below and effective as of the date first indicated
above.
| WHERIFY WIRELESS, INC. | SIEMENS COMMUNICATIONS, INC. | |
| By: ____________________ | By: _______________________________________ | |
| Printed:
Xxxxxxx
X. Xxxxx Title: Chief Executive Officer |
Printed:
____________________________________ Title: ______________________________________ |
|
| Date: 01/19/2006 | Date: _______________________________________ | |
ATTACHMENT
A: DEFINITIONS
Adoption
Agreement shall
mean the terms and conditions for the purchase of Wherify’s
Product(s) by its Affiliates adopting this Agreement.
Affiliate(s)
shall
mean (i)
Siemens
Aktiengesellschaft as well as a (ii)
corporation, company, or other entity more than fifty percent (50%) of whose
outstanding shares or securities (representing the right to vote for the
election of directors or other managing authority) are, now or hereafter, owned
or controlled directly or indirectly by Siemens Aktiengesellschaft, but such
corporation, company, or other entity shall be deemed to be an “Affiliate” only
so long as such ownership or control exists; or (iii)
an
entity which does not have outstanding shares or securities, as may be the
case
in a partnership, joint venture, or unincorporated association, more than fifty
percent (50%) of whose ownership, management, or control rights to make the
decision for such entity is, now or hereafter, owned or controlled directly
or
indirectly by Siemens Aktiengesellschaft, but such entity shall be deemed to
be
an “Affiliate” so long as such ownership or control exists.
Affiliate,
for the
limited purpose of Article
25: Confidential Information,
shall
have the meaning stated in Section
25.1 (b).
Applicable
Standards and Specifications
shall be
as stated in the relevant SPA, Attachment
E: Location Service
Level Agreement, and
Attachment
H: Product List, Specifications, and Roadmap;
the
Documentation; and all representations made by Wherify
including, but not limited to, those included in any response to an RFP or
similar response (with regard to the Hardware, Software, and
Location
Service
specifications, the applicable provisions of these attachments and other
documents.
Binding
Proposal shall
mean the meaning stated in Section
2.4.2.
Change
Order or
CO
shall
have the meaning stated in Section
6.2.
Confidential
Information
shall
have the meaning stated in Section
25.1 (a).
Customer
shall
have the meaning stated in the first paragraph of this Master Purchase/Reseller
Agreement.
Customer’s
Acceptance shall
have the meaning stated in Section
14.2.
Deliverables
shall
have the meaning stated in Section
2.4.2.
Deposited
Information shall
mean all information, both proprietary and non proprietary that Siemens requests
to be deposited in Escrow, with regards to the following (A)
for
Software, this information shall include, but not be limited to: drawings,
Documentation, Software, annotated source code (including flow charts),
programmer’s tools (including compilers), test protocols and procedures,
required or useful for the modification, enhancement, and maintenance of the
Software; and (B)
for
Hardware and any related components and parts, this information shall include,
but not be limited to: (i)
manufacturing drawings and specifications of raw materials and components
comprising all Product(s) or Hardware and related components and parts;
(ii)
manufacturing drawings and specifications covering special tooling and the
operation thereof; (iii)
a
detailed list of all commercially available components and parts purchased
by
Wherify
on the
open market disclosing the part number, name and location of Wherify, and price
list for the purchase thereof; and (iv)
a
complete copy of any source code related to such Hardware.
Documentation
shall
mean the written text describing the Product(s), including the Hardware, the
Software, or the Software system, how it works, and how to work it. It shall
include all information required to install and operate these Product(s),
including but not limited to, all Documentation required to insure the
functioning of the interface necessary for the interoperability of each of
the
Product(s) with all other products, hardware, firmware, equipment, and
software.
End
User shall
mean the Customer’s end customer, or another party licensed or sublicensed
through the Customer to use the Software.
Escrow
Agreement
shall
have the meaning stated in Section
17.4.
Hardware
shall
mean the actual physical computing machines.
Indemnified
Party(ies) shall
have the meaning stated in
Section 19.3.
Lead
Time(s)
shall
mean the Materials Procurement Lead Time plus the manufacturing cycle time
required from the delivery of the Materials at Wherify’s facility to the
completion of the manufacture, assembly and test processes.
Offered
Prices shall
have the meaning stated in Section
13.2.
Object
Code
means
computer programming code, which is substantially or entirely in binary form
and
is intended to be directly executable by a computer after suitable processing
but without the intervening steps of compilation or assembly.
Party
or
Parties
shall
mean Siemens and/or Wherify.
PCN
shall
mean product change notice.
Product(s)
is defined as the cumulative reference for Wherify’s
products as listed in Attachment G Price List, Attachment H: Product List,
Specifications, and Roadmap, and if applicable, the relevant SPA in the form
of
Attachment F: Specific Project Amendment including all related equipment,
hardware, firmware, and software, both as stand-alone products and as components
of the Product(s as well as any future versions or releases thereof in which
Wherify
has a
right to market and/or for which Siemens acquires the right to market, license,
and sublicense under this Agreement. New products may be added to an attachment
Wherify
upon the
written agreement of the Parties.
Project
shall
have the meaning stated in Section
2.4.2.
Receiving
Party, for
the
limited purpose of Article
24: Confidential Information,
shall
have the meaning stated in Section
24.1 (a).
RFP
shall
mean request for proposal.
Location
Services
shall
mean the location or other services to be provided by Wherify
under
this Agreement.
Siemens
shall
mean Siemens Communications, Inc.
Siemens
Wireless Modules shall
mean Siemens or any Siemens affiliate who supplies Wherify Wireless Modules
for
integration into Wherify’s Product
Software
shall
mean all
computer
programs, end
user
client applications or telephone firmware
in
Object Code form as well as firmware made available by Wherify
as part
of Product(s).
Source
Code
means
computer programming code and related system documentation, comments and
procedural code such as job control language, which may be printed out or
displayed in a form readable and understandable by a software programmer of
ordinary skill.
Specific
Project Amendment or
SPA
shall
have the meaning stated in the first paragraph of this Master Purchase/Reseller
Agreement.
Stop
Work Order
shall
have the meaning stated in
Section 5.5.1.
Term
shall
mean begin on the Effective Date and expire thirty-six (36) months thereafter
unless terminated sooner pursuant to Article
23.
Termination/Expiration
Assistance shall
mean reasonable termination or expiration assistance to allow the Location
Services
to continue for a Customer without interruption or adverse effect and to
facilitate the orderly transfer of the
Location
Services
to Siemens or its designee.
Trained
Programmer shall
mean a trained computer programmer of general proficiency.
Triggering
Event shall
mean Wherify:
(i)
fails to
meet any of its support obligations (including installation, error correction,
maintenance, or warranty service including providing updates and other technical
assistance) set forth in this Agreement or the relevant SPA; (ii)
has a
receiver, trustee, referee, administrator, or similar officer appointed for
Wherify; (iii)
an
assignment is made by Wherify
for the
benefit of its creditors; (iv)
ceases
to conduct business in the normal course, is liquidated, or dissolved; or
(v) files
for
bankruptcy or becomes insolvent.
Wherify
shall be
the party identified as Wherify
in the
first paragraph of this Master Purchase/Reseller Agreement.
Wireless
Module
shall
mean cellular modem.
Virus
shall
mean a software program or other harmful code capable of replicating itself
and
usually capable of wreaking great harm on the system.
