EXHIBIT 10
American Access Technologies
Co-Marketing Alliance Agreement (revised 8/2/99)
This Co-Marketing Alliance Agreement ("Agreement") is entered into this ____ day
of _________ 1999, by and between Xxxxxx Xxxxxx, Inc. ("HMI"), 000 Xxxx Xxxx
Xxx., X.X. Xxx 000, Xxxxxxx, Xxxxxxxx 00000-0000, a Michigan corporation with
its principal headquarters located in Zeeland, Michigan, and American Access
Technologies (AATK), 00 Xxxxxxx Xxxxx, Xxxxx 0000, Xxxx Xxxx, Xxxxxxx 00000, a
Florida corporation with its principal headquarters located in Lake Mary,
Florida.
Statement of Facts
HMI manufactures and markets a comprehensive line of office furniture and
seating. AATK manufactures and markets a line of telecommunication connectivity
products supporting zone distribution of data.
In order to provide a greater range of zone distribution telecommunication
connectivity solutions to customers of HMI and its subsidiaries, as well as to
increase market opportunities for AATK, HMI and AATK agree that it would be
mutually beneficial to jointly promote sale of AATK products.
AATK and HMI will jointly promote the use of AATK products in Ethospace and
Systems Bridge products using AATK's Ethocom and Comdeck products. AATK will
sell directly to clients utilizing their products in conjunction with HMI's
Ethospace and Systems Bridge products. AATK is responsible to sell, specify,
plan, install, invoice, and provide service for their products through its
manufacturer representative and value added resellers (Network). HMI will not
take title to AATK's products unless otherwise agreed to by HMI and AATK. At its
discretion, HMI may employ a technical selling consultant to assist with
integration, training, and promotion of AATK products. AATK will provide Ethocom
and Comdeck technical training for HMI and its distribution channel, as its
cost, to support the sale of its products.
HMI authorizes AATK's purchase of Systems Bridge frames for resale to the
Competitive Local Exchange Carrier (CLEC) market. AATK will factory-fit the
Systems Bridge frames with mounting racks and telecommunications devices as
specified by the CLEC, and then sell, install, and service the completed unit to
the CLEC at prices agreed to by AATK and the CLEC.
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Agreement
In consideration of the facts set forth above and the mutual promises and
undertakings set forth below, the parties agree as follows:
1. License
1.1 AATK assigns its rights in the Ethocom xxxx to HMI. During the
term of this agreement, HMI grants AATK a license to use the xxxx
"Ethocom" in connection with the sale and promotion of HMI's
Ethospace and Systems Bridge products manufactured and sold
within the United States, Canada, Europe and Latin America.
1.2 AATK may, for the duration of this Agreement, to use the name of
Ethocom, as earlier assigned to HMI in this Agreement, for
identification and promotion of those zone distribution products.
Any exceptions to this must be with prior written approval by
HMI.
1.3 HMI remains the sole and exclusive owner of all trademarks,
names, designs, or other items licensed under the xxxx of
Ethospace and Systems Bridge.
2. Distribution
2.1 AATK will maintain the network required to support the sale,
specification, installation, and service for its Ethocom and
Comdeck products in the United States, Canada, Europe, and Latin
America (Network). HMI reserves the right to periodically review
and approve the organizations selected as the Network.
2.2 AATK will ensure the Network will meet quality and service
standards established by AATK, the Telecommunications Industry
Association (TIA), Electronic Industry Association (EIA), the
National Electrical Code (NEC), and other appropriate US and
International standards and code authorities. Any proposed
changes or additions to the Network will be communicated to HMI
at least 30 days prior to the change.
2.3 AATK, and its Network, will sell Ethocom and Comdeck products
directly to Customers, except as otherwise stated in below and in
Section 4.2. Ethocom and Comdeck sales to the US Government will
be governed by the General Services Administration ("GSA")
multiple award schedule contracts held by HMI. The sale of
Ethocom and Comdeck products to federal government civilian
agencies, the Department of Defense, and select State and Local
Government direct accounts will be handled by HMI on an exclusive
basis.
2.4 HMI agrees to sell Systems Bridge Products to AATK for resale to
the Competitive Local Exchange Carrier (CLEC) market. The Product
list and discount for purchases of these products is listed in
Exhibit 1. AATK agrees to coordinate with HMI and its
distribution channel to provide any required finish tiles and /
or furniture components. AATK agrees not to promote or sell
Products purchased under this discount to customers who are not
CLEC's.
2.5 AATK agrees not to sell or make available the Ethocom and/or
Comdeck products, or equivalents, to its Network, competitive
dealers, agents, or contractors for installation in competitive
frame and tile or systems furniture products unless prior written
permission has been given by HMI's Vice President of Marketing.
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3. Manufacturing
3.1 AATK will manufacture Ethocom and/or Comdeck, or equivalent,
products according to printed standards with documented
production processes.
3.2 Ethocom and Comdeck products and product enhancements will meet
all applicable BIFMA, TIA, EIA, NEC, and international, national
and local construction codes and standards. AATK will be
exclusively responsible for ensuring the products meet applicable
codes and customer safety and performance expectations.
3.3 HMI will inform AATK of product and engineering changes to
Ethospace and Systems Bridge products 90 days in advance of
production.
3.4 AATK agrees to deliver the Ethocom and/or Comdeck products in a
sufficient quantity, dictated by customer-demand, to the
installation location in a coordinated manner with the furniture
products, in less than a four-week (4) lead time, including
staging time at the HMI dealer or Customer location.
4. Pricing
4.1 AATK retains the right to establish the prices for Ethocom and
Comdeck products sold directly to clients by AATK, except for
Customer pursuant to 4.2.
4.2 The price for those Ethocom and Comdeck products, sold directly
to HMI for resale to the US Government and select State and Local
Government Agencies, or a subsidiary for resale to third parties,
by AATK or the AATK Network during the term of this Agreement
will be equal to_______% off AATK's then current list price. (See
Exhibit 2 for AATK's current list prices) HMI intends to sell
Ethocom and Comdeck products directly to the US Government and
select State and Local Government accounts, utilizing the GSA
multiple award schedule contract discount schedule for Ethospace
and Systems Bridge. AATK will ensure its compliance to all
applicable GSA contract terms/conditions (i.e. price reduction
clause). The HMI Government Sales Team will provide the necessary
contract and technical support to ensure AATK is in full
compliance with the applicable GSA terms/conditions. AATK agrees
to provide HMI, in a timely manner, with periodic sales and /or
pricing reports as needed to ensure compliance to the GSA
contract terms and conditions.
4.3 All Ethocom and Comdeck products shipped by AATK will be sold
under terms and conditions as established by AATK, with exception
of those terms and conditions defined under 4.2.
5. Promotion
5.1 Promotional literature and programs developed by AATK and its
Network referencing Ethospace(TM), Systems Bridge(TM), or Xxxxxx
Xxxxxx(R) shall be submitted to HMI Marketing and are subject to
approval prior to publication and release.
5.2 HMI will provide promotional, specification, and pricing
literature, including electronic media, to support the
integration of the AATK products into Ethospace and Systems
Bridge as agreed by both parties.
5.3 AATK will publish and make available to HMI, at no charge,
reasonable quantities of appropriate AATK promotional,
specification, and pricing literature, including electronic
media, as agreed to by both parties. HMI will make the referenced
literature available to salespeople and Xxxxxx Xxxxxx dealers
through the normal Sales Source program and standard distribution
policies. Reasonable additional costs for the distribution of
such materials will be paid for by HMI.
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5.4 At its discretion, HMI will provide the opportunity for
presentation of Ethocom and Comdeck product training by AATK at
HMI training sessions.
5.5 AATK is allowed to purchase reasonable quantities of HMI
products, as mutually agreed by both parties, for use in showroom
displays and trade shows promoting the integration of HMI and
AATK products. Such products will be available to AATK at HMI's
prevailing dealer display discount and must be ordered by AATK
through HMI Marketing. Such products are to be used for display
only and are not to be resold to any third parties.
5.6 HMI is allowed to purchase reasonable quantities of AATK
products, as mutually agreed by both parties, for use in
showroom/facility displays and trade shows. Such products will be
available to HMI at AATK's prevailing display discount and must
be ordered by HMI through AATK. Such products are to be used for
display only and are not to be resold to any third parties.
6. Commission to HMI Salesperson
6.1 It is the intent of AATK and HMI that HMI compensation issues
will be administered by the HMI sales organization. AATK shall
not pay any additional commissions to HMI salespersons for
Ethocom and Comdeck product sales. A portion of the Alliance Fee
as described in 8.1 pays this commission.
6.2 Within thirty (30) days after the close of each month, AATK will
provide HMI and its subsidiaries appropriate documentation to
calculate the sales commissions due their respective salespeople.
6.3 Sales commission fees will not be paid by AATK to HMI for Ethocom
and Comdeck product sales as described in 4.2. It is the intent
of AATK and HMI to include the cost of sales commissions to HMI
salespeople in the inter-company transfer price established in
4.2. Commissions for sales of Ethocom and Comdeck product to the
US Government and select State and Local Government accounts will
be administered by the HMI sales organization.
7. Product Line Expansion
7.1 Neither HMI nor any HMI subsidiary will, during the term of this
Agreement, attempt to market other slip-fit telecommunication
frames as part of the Ethospace system or Systems Bridge products
unless otherwise agreed to in writing by AATK.
7.2 AATK, during the term of this Agreement, will not market office
furniture or office seating unless otherwise agreed to in writing
by HMI.
7.3 AATK agrees to limit AATK's marketing efforts to Ethospace and
Systems Bridge slip-fit telecommunications frame products and
associated sale, planning, specification, and installation
services. This marketing effort covers new product sales, as well
as specification of product for installation into the existing
installed base (Retrofit).
8. Alliance Fee
8.1 AATK agrees to pay to HMI an alliance fee as payment for access
to the distribution channel, product design, support, marketing
assistance, and sales compensation, for all qualifying sales. The
alliance fee on qualifying sales (at net sell price, excluding
Systems Bridge sales directly to AATK for the CLEC market, and
sales to US Government and select State and Local Government
contracts as described in 6.3) will be:
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o 5% of net sell price by AATK
Qualifying sales include all sales of Ethocom and Comdeck
products except for direct sales to HMI and its subsidiaries as
described in 4.2 and 5.7 above.
8.2 AATK agrees to pay the alliance fee to HMI, within thirty (30)
days of the close of each month for all products sold, shipped,
and invoiced by the close of the month referenced. AATK shall
maintain records sufficient to verify net sales, percentages, and
fees paid. AATK further agrees that HMI, at its own expense and
with reasonable notice, has the right to audit all transactions
to verify the alliance fee payments. AATK agrees to pay any
shortfall in alliance fee payments uncovered by an audit within
thirty (30) days and audit costs if a shortfall were uncovered.
9. Contract Term
9.1 HMI and AATK agree to continue this Marketing Alliance Agreement
for a period beginning June 1, 1999, and continuing through June
1, 2001, unless terminated under the provisions set forth in
Section 10.
9.2 HMI and AATK agree that this Agreement does not create a
fiduciary relationship between them and that AATK shall be an
independent contractor. Nothing in this Agreement is intended to
constitute either party as agent, legal representative,
subsidiary, joint venture, or employee of the other for any
purpose whatsoever.
9.3 Each party agrees that nothing in this Agreement authorizes the
other party to make any contract, agreement, warranty, or
representation on behalf of the other party or to incur any debt
or other obligation in the name of the other party. Neither party
shall in any event assume liability for, or be deemed liable
hereunder as a result of, any such action, or by reason of any
act or omission of the other party and its conduct of its
business or any claim or judgment arising therefrom against the
other party. Each party shall indemnify and hold harmless the
other party against any and all claims from third parties arising
directly or indirectly from, as a result of, or in connection
with the other party's business operation or actions under this
Agreement, or any orders or contracts entered into or related
hereunder, as well as to the cost, including attorney's fees, of
defending against them.
9.4 AATK shall indemnify HMI and hold it harmless against all claims,
suits, or actions alleging that the manufacture, use, or sale of
such goods infringes any patent, trademark, copyright, or other
proprietary right with respect to Products supplied under this
Agreement which were designed or specified by AATK, as well as
the costs, including attorney's fees, of defending against them.
9.5 During the term of this Agreement, each party shall maintain in
effect insurance in coverage and amounts appropriate for its
business including worker's compensation, casualty, personal
injury, and property damage. Each part shall also maintain
product liability insurance in an amount not less than one
million dollars ($1,000,000) and shall furnish proof of all
insurance coverage to the other party upon request.
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10. Termination
10.1 This Agreement will automatically renew annually upon expiration
of the original term, unless either party notifies the other of
their desire to terminate 90 days prior to expiration.
10.2 This Agreement may be canceled given ninety (90) days written
notice in the event of a breach which is not cured within thirty
(30) days of the written notice given to the party in default
specifying the breach.
10.3 This Agreement may be terminated immediately if either HMI or
AATK a) becomes insolvent or b) files a petition for voluntary
bankruptcy or c) shall be adjudicated bankrupt or d) is subject
to receivership or e) materially breaches a provision of the
Agreement or f) if the agreement is terminated pursuant to 11.
10.4 HMI or AATK shall give the other written notice of termination
upon the occurrence of any such event described in 10.1 and /
or10.2 above, delivered by registered or certified mail, postage
prepaid, return receipt requested, specifying the reason for the
termination. Termination shall be effective upon notice except if
given pursuant to paragraph 10.3, in which event the defaulting
party shall have 30 days within which to cure the default. If the
default is not cured within the 30-day period, this Agreement
shall terminate forthwith, without further notice.
10.4 Upon termination for any reason, AATK and its Network will
immediately cease use of the Ethospace, Systems Bridge, Xxxxxx
Xxxxxx, and Ethocom marks, and will destroy all advertising
literature.
10.5 In the event of a termination, unless otherwise agreed upon by
the parties, any outstanding orders shall be completed by AATK
and all contractual obligations of each party shall be completed
as though this Agreement were in effect. HMI shall be obligated
to make payments to AATK for all deliveries made or for orders
canceled by HMI as though this Agreement were in full force and
effect.
10.6 In the event AATK or any subsequent majority owner(s) or group of
owner(s) decide to discontinue production of Ethocom, Comdeck,
and/or other products added subsequent to the date of this
Agreement, HMI retains the first rights to the manufacturing and
intellectual property for the affected products.
11. Change of Ownership
If during the period of this Agreement AATK proposed to enter into any
agreement or transaction which will result in a change in control of
AATK (as hereinafter defined), then in that event, AATK shall give HMI
the right to enter into such transaction on the same terms, but for a
consideration equal to or higher than the proposed transaction. AATK
shall allow HMI adequate time to conduct due diligence, in the event of
a proposed change of control. HMI shall be required to notify AATK of
its acceptance of any such proposal within five (5) business days of
completion of due diligence.
Change of Control shall mean: (a) a person or entity or group of
affiliated persons shall acquire more than fifty percent (50%) of the
outstanding voting power of AATK; or (b) AATK shall sell substantially
all of its assets or be merged or consolidated with another corporation
or entity under such terms as to result in the shareholders or
beneficial owners of such other corporation or entity have more than
fifty percent (50%) of the voting power of the resulting or continuing
corporation or other entity.
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12. Product Development
12.1 AATK will provide all design and development resources necessary
to support the product line.
12.2 AATK is free to create product enhancements for the Ethocom and
Comdeck product lines that satisfy TIA, EIA, NEC, and other
current code and standards requirements. Any product enhancements
must protect historic and current HMI customers from product
obsolescence and must guarantee retrofitability with the new
product(s).
12.3 Costs incurred to (1) gain approvals for new product lines or
additions to existing lines, (2) obtain or maintain current
approvals as the result of any product changes proposed by AATK
or changes in code requirements, or (3) periodic performance
verification testing required to maintain existing approvals
shall be paid by AATK. AATK will provide copies of results of
these tests to HMI c/o Compliance Program Manager within 30 days
of AATK's receipt of the report(s). Any administrative, testing
and/or engineering/consulting costs to attain new or re-approvals
as a result of the above conditions shall also be paid by AATK.
13. Exclusivity
13.1 During the term of this Agreement, HMI shall not purchase,
distribute, or enter into a marketing alliance arrangement with
any other supplier of slip-fit telecommunication frames for
Ethospace and/or Systems Bridge unless AATK fails to meet
then-current TIA, EIA, and/or other US or International codes,
standards, and/or performance requirements. HMI retains the
rights to sell, augment, develop, and/or form alliances to
advance their telecommunications product offering with new
technologies and products beyond the scope of this Agreement.
13.2 AATK, for the duration of this Agreement, and for one (1) year
thereafter if this Agreement is terminated or canceled by AATK or
if this Agreement is terminated by HMI for cause as described in
10.2 above, will not market or sell any competitive slip-fit zone
distribution telecommunication frame products competitive to HMI.
This includes telecommunication connectivity frame products for
frame and tile-type, Systems Bridge-like, and panel systems
furniture products.
13.3 If AATK, at some future date, should expand its product offerings
to include other building infrastructure and sub-architectural
products, it will provide to HMI a Right at First Refusal to add
those products to this Marketing Agreement with similar terms.
14. Product Warranty
14.1 AATK will warrant all Ethocom and Comdeck products sold by them
for twenty years (20) as specified in AATK terms and conditions
of warranty.
14.2 HMI will warrant all Ethospace and Systems Bridge frames as
specified in the terms and condition of current warranty where
AATK products are installed, if done so by an authorized AATK
Network provider.
15. Confidentiality
Unless disclosure is required to provide goods or perform services in
connection with the parties' relationship, or is required by law,
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neither party, its agents, employees, or subcontractors may, at any time
during or after this Agreement, without the other party's express
written consent, publish or disclose to any person or legal entity, or
use, directly or indirectly, any confidential or proprietary information
of the other that is obtained during the course of the relationship, for
its own benefit or the benefit of any other.
16. Year 2000 Warranty
AATK shall ensure that its systems are fully "Year 2000 Compliant";
shall operate and produce data on and after January 1, 2000, accurately
and without delay, interruption, or error; and shall accept, calculate,
process, maintain, and output accurately and without delay, interruption
or error, all times or dates, or both, whether before, on, or after
12:00am on January 1, 2000 including taking into account that such year
is a leap year.
17. Survival
The following sections and exhibits of this agreement shall survive any
termination of this Agreement: 9.4, 14. - Product Warranty, and 15. -
Confidentiality
18. Merger Modification Waiver
This Agreement contains the entire agreement of the parties with respect
to its object matter and supersedes all prior and written agreements. No
change or modification of this Agreement shall be valid unless it is in
writing and signed by both parties. The waiver by either party of any
breach or failure hereunder shall not be considered as a waiver of the
same breach or failure on any subsequent occasion or of the breach or
failure of any other term, covenant, or condition hereunder.
19. Assignability
Neither party shall have the right to assign its interest in this
Agreement without the written consent of the other party.
20. Invalid Provision
The invalidity or unenforceability of any particular provision of this
Agreement shall not affect the other provisions, and the Agreement shall
be construed in all respects as if such invalid or unenforceable
provision were omitted.
21. Applicable Laws
This Agreement shall be governed and construed in accordance with the
laws of the State of Michigan.
22. Captions
The captions of the several sections and subsections of this Agreement
are made for convenient reference and shall not modify or amend the
expressed terms of this Agreement.
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23. Execution and Counterpart
This Agreement may be executed in any number of counterparts, each of
which shall be taken to be an original.
24. Benefit
This Agreement shall be binding upon and inure to the benefit of the
parties' respective successors and assigns.
In witness of which, the parties have executed this Marketing Alliance
Agreement.
Xxxxxx Xxxxxx, Inc. American Access Technologies
By: s/ C. Xxxx Xxxxxx By s/ Xxxx X. Xxxxxxx
-------------------------------- ------------------
Title: Director of Product Marketing Title President
Date: 8/3/99 Date: 8/03/99
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EXHIBIT 1
Pricing to AATK for Systems Bridge Product
================================================================================
Pursuant to paragraph 2.4, Xxxxxx Xxxxxx establishes the following
discounts from current list prices, as established from time to time,
for AATK to purchase Products for resale to the Competitive Local
Exchange Carrier (CLEC) market.
Product Description Product Number Discount
------------------- -------------- --------
EXHIBIT 2
AATK Price List
================================================================================
Pursuant to paragraph 4.2, AATK establishes the following list prices
for its products effective June 1, 1999:
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ETHOCOM SIZE NET LIST
----------------------------------------------------------------
----------------------------------------------------------------
38x24 150 195
----------------------------------------------------------------
38x30 163 211
----------------------------------------------------------------
38x36 175 228
----------------------------------------------------------------
38x42 188 244
----------------------------------------------------------------
38x48 200 260
----------------------------------------------------------------
54x24 213 276
----------------------------------------------------------------
54x30 225 293
----------------------------------------------------------------
54x36 238 309
----------------------------------------------------------------
54x42 250 325
----------------------------------------------------------------
54x48 263 341
----------------------------------------------------------------
70x24 275 358
----------------------------------------------------------------
70x30 288 374
----------------------------------------------------------------
70x36 300 390
----------------------------------------------------------------
70x42 313 406
----------------------------------------------------------------
70x48 325 423
----------------------------------------------------------------
86x24 338 439
----------------------------------------------------------------
86x30 350 455
----------------------------------------------------------------
86x36 363 471
----------------------------------------------------------------
86x42 375 488
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86x48 400 520
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COMDECK 41x48 900 1,170
----------------------------------------------------------------
55x48 1,080 1,400
----------------------------------------------------------------
69x48 1,260 1,640
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Prices are FOB AATK plant and must be stock design. Specials are
available but must be designed and quoted separately.
Exhibit 10.0
Lucent Technologies
Xxxx Labs Innovations
Global Commercial Mkts, Engrg. Lucent Technologies, Inc.
0000 Xxxxxxx Xxxx, X.X.
Xxxxxxx, XX 00000
MAY 19, 0000
XXXXXXXX XXXXXX
TECHNOLOGIES, INC. TM
000 X. Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx Xxxxxxx, Xx. 32714
Attn: Xxxxxxx Xxxxxx - Executive Vice President
Dear Xxxxxxx,
This is to confirm our telephone conversation May 18, 1999 concerning our
working relationship.
PATHMAX will continue to comcode AAT material as developing projects dictate.
Material that has been comcoded is available for order through the same sales
channels as all PATHMAX Products. This means that Lucent's sales
representatives, Value Added Resellers, Distributors and any others who sell
SYSTIMAX products, will be able to order AAT products via PATHMAX Comcodes -
Merchandise Class.
PATHMAX will support zone solutions that include the use of AAT products in
conjunction, and in addition, to our standard cable delivery methods.
AAT's proposal to develop and produce a catalogue illustrating the AAT comcoded
products that will be available as PATHMAX solutions is acceptable. You will
provide us a rough draft of the catalogue for input. Printing and distribution
can be determined as our strategy is more clearly defined.
Thank you for all your efforts in making this happen.
s/ Xxxxxx Xxxxxxx
Lucent Technologies
North American Emerging Markets
PATHMAX
