1
Exhibit 10.16
CONTRACT NO. LSW97CWORLDWT
1
RESELLER CONTRACT
BETWEEN
WORLD WIDE TECHNOLOGY, INC.
AND
LUCENT TECHNOLOGIES, INC.
* Certain material has been omitted from this exhibit pursuant to a request for
confidential treatment and filed separately with the Securities and Exchange
Commission.
2
CONTRACT NO. LSW97CWORLDWT
2
RESELLER CONTRACT
INDEX
GENERAL PROVISIONS PAGE
1. RESELLER REPRESENTATION 5
2. SCOPE OF CONTRACT 5
3. DEFINITIONS 6
4. CONFIDENTIALITY 7
5. RELATIONSHIP OF THE PARTIES 7
6. PERIOD OF AGREEMENT 7
7. OBLIGATIONS ASSUMED BY LUCENT 7
8. OBLIGATIONS ASSUMED BY RESELLER 8
9. FORECASTS AND ORDERS 10
10. PRODUCT CHANGES 10
[* Confidential treatment will be requested]
[* Confidential treatment will be requested]
13. BILLING AND PAYMENT 12
14. TITLE AND RISK OF LOSS 13
15. LIMITATION OF LIABILITY 13
16. INSURANCE 14
17. RESELLER 15
3
CONTRACT NO. LSW97CWORLDWT
3
18. USE OF INFORMATION 15
19. INFRINGEMENT OF PATENTS, TRADEMARKS AND COPYRIGHTS 16
20. DOCUMENTATION 17
[* Confidential treatment will be requested]
22. INDEMNITY BY LUCENT 19
23. TRADEMARKS 19
24. LEGISLATION AND GOVERNMENT REGULATIONS 19
25. TERMINATION OF ORDERS 20
26. TERMINATION OF CONTRACT 20
27. FORCE MAJEURE 21
28. ASSIGNMENT 21
29. SEVERABILITY 22
30. RELEASES VOID 22
31. LIENS 22
32. TAXES 22
33. XXXXXXXXX 00
00. CHOICE OF LAW 23
35. NOTICES 23
36. DISPUTE RESOLUTION 23
37. OPTION TO EXTEND 24
38. ATTORNEY'S FEES 24
4
CONTRACT NO. LSW97CWORLDWT
4
39. PARAGRAPH HEADINGS 24
40. ENTIRE CONTRACT 24
[* Confidential treatment will be requested]
5
CONTRACT NO. LSW97CWORLDWT
5
This contract is made as of the 15th day of April, 1997, and is between Lucent
Technologies, Inc., ("LUCENT") a Delaware corporation having an office at 0000
Xxxxx Xxxx Xx., Xxxx & Xxxxxxx, Xxxxxxxx 00000, and World Wide Technology, Inc.,
("Reseller") a Missouri corporation having an office at 000 Xxxxxx Xxxxxxx,
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000.
WHEREAS, it is the objective of Southwestern Xxxx Telephone Company that
Minority Business Enterprises ("MBE") be utilized to provide DSX Panels, Central
Office Wire and Cable, Distributing Frame Wire, and Loop Electronic Cabinet
equipment and systems to Southwestern Xxxx Telephone Company, its affiliates and
subsidiaries (hereinafter collectively referred to as "SWBT"); and
WHEREAS, to that end Request for Quotation identifying such objective was issued
by Lucent to Solicit MBE participation, and a contract between Lucent and SWBT
covering the purchase and sale of such products (the "Lucent/SWBT Contract")
would be assigned to selected MBEs; and
WHEREAS, based on Reseller's response to the Request for Quotation, including
Reseller's price quote, Project Management Plan and Project Financial Plan,
Reseller was one of three MBE's selected in this unique transaction to sell
solely to SWBT within the United States as a means for achieving the above
objective, and the Lucent/SWBT Contract was assigned in part to Reseller for
that purpose.
NOW THEREFORE the parties agree as follows:
1. RESELLER REPRESENTATION
RESELLER REPRESENTS THAT IT IS A RESELLER OF COMMUNICATIONS EQUIPMENT AND
SYSTEMS AND HAS IN PLACE FACILITIES AND AN ORGANIZATION TO PROMOTE AND MARKET
SUCH EQUIPMENT AND SYSTEMS TO SWBT. RESELLER FURTHER REPRESENTS THAT IT HAS
CONSULTED WITH ITS OWN LEGAL COUNSEL IN CONNECTION WITH THIS TRANSACTION, THAT
IT IS FULLY AWARE THAT THE TERMS OF THIS CONTRACT ARE BASED ON ITS RESPONSE TO
THE REQUEST FOR QUOTATION, THAT IT IS AWARE OF THE TERMS AND CONDITIONS OF THE
LUCENT/SWBT CONTRACT, THAT IS HAS CONDUCTED ITS OWN INDEPENDENT REVIEW AND
ANALYSIS OF THIS BUSINESS OPPORTUNITY, AND THAT IT IS AWARE OF THE BUSINESS
RISKS INVOLVED IN THIS ALLIANCE, INCLUDING THE RISK THAT THE NUMBER OF SWBT
ORDERS PURSUANT TO THE LUCENT/SWBT CONTRACT MAY DIFFER FROM THE NUMBER OF SUCH
ORDERS ANTICIPATED BY RESELLER.
2. SCOPE OF CONTRACT
The terms and conditions of this Contract shall apply to transactions in which
LUCENT furnishes those items, [* Confidential treatment will be requested]
6
CONTRACT NO. LSW97CWORLDWT
6
2. SCOPE OF CONTRACT (CONTINUED)
to Reseller for the sole purpose of selling, leasing or otherwise furnishing
such items to Southwestern Xxxx Telephone Company, its affiliates and
subsidiaries (hereinafter collectively referred to "SWBT").
Reseller is granted the right to obtain the Products identified in Appendix A,
plus such additional items as LUCENT may from time to time in writing agree to
furnish to Reseller, solely for purposes of selling, leasing or otherwise
furnishing to SWBT. No payment of any fee is required as a condition of such
grant. LUCENT may delete any Products [* Confidential treatment will be
requested] upon thirty (30) days written notice to Reseller.
Reseller agrees that it has no exclusive right to market such items and LUCENT
expressly reserves the right to contract with others to market such items in the
Territory, and to itself engage in such marketing, in competition with Reseller.
3. DEFINITIONS
For the purpose of this Contract, the following terms and their definitions
shall apply:
* Confidential treatment will be requested
(b) "Products": means the hardware [* Confidential treatment will be
requested]
(c) "Territory" means Southwestern Xxxx Telephone Company, including its
Affiliates and Subsidiaries.
(d) "Drop Shipment" - Products which are ordered from Reseller by SWBT,
which Reseller in turn orders the Product from LUCENT for shipment
directly to SWBT.
(e) "Slow Moving Product": - for any electronic enclosure item or for Any
non electronic enclosure product family that does not turn six (6)
times per twelve (12) month period.
(f) "Non Moving Product": - Any item that shows no activity for at least
six (6) months.
(g) "Obsolete Product": - Any item that will not be ordered due to
engineering changes, market activity or changes in customer
requirements.
7
CONTRACT NO. LSW97CWORLDWT
7
4. CONFIDENTIALITY
Reseller and LUCENT shall keep this Contract and any order issued hereunder
confidential, except as reasonably necessary for performance thereunder and
except to the extent disclosure may be required by applicable laws or
regulations, in which latter case the party making such disclosure shall
promptly inform the other.
5. RELATIONSHIP OF THE PARTIES
This Contract does not establish a franchise or agency. Reseller shall have no
authority to assume or create obligations on LUCENT's behalf with respect to the
Product or otherwise, and Reseller shall not take any action which has the
effect of creating the appearance of its having such authority. The relationship
of the parties under this Contract shall be and at all times remain one of
independent contractors. All persons furnished by Reseller shall be considered
solely Reseller's employees or agents, and Reseller shall be responsible for
payment of all unemployment, Social Security and other payroll taxes including
contributions from them when required by law.
6. PERIOD OF AGREEMENT
This Contract is for an initial period of three (3) years effective upon being
signed by both parties ("Initial Period"), and shall continue until terminated
by either party upon at least sixty (60) days prior written notice to the other.
The modification or termination of this Contract shall not affect the rights or
obligations of either party under any order accepted by LUCENT before the
effective date of the modification or termination.
7. OBLIGATIONS ASSUMED BY LUCENT
LUCENT shall:
(a) use its best efforts to promote, market and expand the selling or
furnishing of Products to SWBT;
(b) provide or arrange for reasonable amounts of technical assistance and
training with regard to sales and installation of Products;
(c) provide or arrange for in-warranty and out-of-warranty repair services
in accordance with its standard procedures; and
(d) provide additional support services in accordance with LUCENT's
standard offerings.
8
CONTRACT NO. LSW97CWORLDWT
8
7. OBLIGATIONS ASSUMED BY LUCENT (CONTINUED)
(e) as the parties mutually agree, LUCENT shall make arrangements to
remove obsolete inventory items. LUCENT and Reseller will meet on a
monthly basis to review stocking levels, slow moving items, and
non-moving items for a period of twelve (12) months from contract
award, or until such time that it is determined meetings are no longer
required. Inventory adjustments will be mutually agreed upon at these
meetings.
(f) make arrangements to repurchase and remove inventory held by Reseller
within thirty (30) days upon termination of this Agreement.
(g) provide the necessary training to support Reseller's obligation to
offer technical support to SWBT in the effective use of the Products.
8. OBLIGATIONS ASSUMED BY RESELLER
Reseller shall:
(a) use its best efforts to promote, market and expand selling or
furnishing of Products to SWBT;
(b) develop and maintain a sales organization that is capable of
demonstrating to SWBT the use and capabilities of the Products and
their applications and that actively and effectively obtains orders
from SWBT;
(c) obtain and maintain all government licenses, permits and approvals
which are necessary or advisable for the servicing of this Contract
and comply with all applicable laws and regulations;
(d) refrain from taking any action which would cause LUCENT to be in
violation of any law of any jurisdiction;
(e) promptly inform LUCENT of any facts or opinions likely to be relevant
in relation to marketing of Products including, without limitation,
all suspected Product defects or safety problems and customer
complaints;
(f) provide LUCENT with monthly Point of Sale Reports by Product including
number of units, dollars of sales by SWBT's location, and subsequent
reports each month thereafter before the 15th of the month. Reseller
shall provide such other reports as requested by LUCENT and mutually
agreed to by the parties. LUCENT shall maintain the confidentiality of
all such information between the two companies;
9
CONTRACT NO. LSW97CWORLDWT
9
8. OBLIGATIONS ASSUMED BY RESELLER (CONTINUED)
(g) offer technical support to SWBT in the effective use of the Products,
including providing instructional material furnished by LUCENT, and
with respect to Loop Electronic Cabinets, shall serve as first point
of contact with SWBT for purposes of addressing questions or problems
relating thereto;
(h) resell DSX, DFW, and Bulk Cable exclusively in this Product family
after Reseller's existing stock is depleted, providing [* Confidential
treatment will be requested] and performance meets mutually agreed
upon standards;
(i) participate in reasonable applicable training programs which LUCENT
recommends to support LUCENT Product [Confidential treatment
requested];
* Confidential treatment will be requested
(k) provide, at no charge applicable technical information, data,
technical support or service required by LUCENT for which LUCENT has
provided Reseller the necessary training to fulfill any of its
obligations under an order or this Contract;
(l) maintain adequate inventory levels to satisfactorily meet SWBT's on
job delivery performance requirements;
(m) stock 80-, 90-, and 51-type Electronic Enclosures and configure them
to SWBT's specifications, installing LUCENT and other Original
Equipment Manufactures equipment, test the configured cabinets, pack
and ship Product to requested job site;
(n) stock DSX Panels and subcomponents, assemble components into finished
Product according to SWBT's specifications, test, pack and ship
Product to requested job site;
(o) stock Distributing Frame Wire, pack and ship Product to requested job
site; and
(p) stock Bulk Cable products, cut and reel cable to SWBT's
specifications, pack and ship to requested job site.
10
CONTRACT NO. LSW97CWORLDWT
10
9. FORECASTS AND ORDERS
Upon the execution of this Contract, Reseller agrees to cooperate with LUCENT to
forecast purchases of Product for the period of this Contract by types of
Product. [*Confidential treatment will be requested.] As mutually agreed, per
the definitions in Section 2, for up to six (6) months after receipt of items
purchased [* Confidential treatment will be requested]
any slow, non-moving, or obsolete items may be returned to LUCENT for full
credit.
An order submitted by Reseller shall contain the information necessary for the
furnishing of the Products, including, without limitation, the (1) date of the
order, (2) the shipping destination and (3) reference to any applicable LUCENT
specifications and information specified [* Confidential treatment will be
requested]. Schedules and dates, including shipment dates, for the furnishing of
the Products, must be agreed to by LUCENT prior to its acceptance of the order.
All orders submitted by Reseller shall be deemed to incorporate and be subject
to the terms and conditions of this Contract as well as any supplemental terms
and conditions agreed to by authorized representatives of the parties in
writing. LUCENT RESERVES THE RIGHT TO PLACE ANY ORDER ON HOLD, DELAY SHIPMENT,
AND/OR REJECT ANY ORDER DUE TO BUT NOT LIMITED TO, INSUFFICIENT CREDIT LIMITS.
LUCENT MAY REJECT AN ORDER FOR ANY REASON IT DEEMS JUSTIFIABLE.
10. PRODUCT CHANGES
LUCENT may, at any time without advising Reseller, make changes in Product, or
modify the drawings and specifications relating thereto, or substitute Product
of later design to fill an order, provided the changes, modifications, or
substitutions under normal and proper use do not impact upon form, fit or
function or are recommended to enhance safety.
LUCENT may use either new, reconditioned, refurbished or remanufactured Products
or parts in the furnishing of Product spares, replacement parts or repairs under
this Contract. Any difference in the price applicable to, or the time required
for performance of, a purchase order resulting from changes, modification or
substitutions specified in such notice to Reseller shall be equitably adjusted
and the purchase order shall be modified in writing accordingly. The Reseller
shall notify LUCENT in writing of any increase in the price within thirty (30)
days after receipt by Reseller of such notice to make changes. LUCENT shall
purchase from Reseller the obsolete and discontinued items which are the result
of the Product Change.
* Confidential treatment requested.
11
CONTRACT NO. LSW97CWORLDWT
11
* Confidential treatment will be requested
12
CONTRACT NO. LSW97CWORLDWT
12
* Confidential treatment will be requested
13. BILLING AND PAYMENT
(a) Invoices for Products will be sent upon shipment, or as soon
thereafter as practicable. LUCENT may make partial shipments of
Reseller's orders. Such partial shipments shall be separately invoiced.
(b) Invoices for services will be sent as services are performed or
as soon thereafter as practicable.
13
CONTRACT NO. LSW97CWORLDWT
13
13. BILLING AND PAYMENT (CONTINUED)
(c) Reseller shall pay the invoiced amount within thirty (30) days from
the date of invoice for replenishment order and ninety (90) days for
the initial stocking order. Delinquent payments shall be subject to a
late payment charge at the rate of one and one-half per cent (1 1/2%)
per month or the maximum legal rate, whichever is lower. Any disputed
items which LUCENT determines are not valid are due for payment based
upon the original invoice date and will also be subject to a
retroactive late payment charge based upon such original invoice date.
The amount of credit or terms of payment may be changed or credit
withdrawn by LUCENT at any time. Each shipment shall constitute an
independent transaction, and Reseller shall pay for same in accordance
with the specified payment terms.
Reseller shall notify LUCENT of any claim on an invoice within two (2)
months from the date of the invoice.
(d) In the event that Reseller becomes delinquent in payment, LUCENT
shall have the right to immediately terminate this Contract and to
enter upon and remove from the premises of Reseller all unsold Products
for which LUCENT has not received payment.
14. TITLE AND RISK OF LOSS
Title (except as provided in the paragraph USE OF INFORMATION), and risk of loss
of or damage to Products shall pass to Reseller upon delivery to the Reseller.
Reseller shall notify LUCENT promptly of any claim with respect to loss or
damage which occurs while LUCENT has the risk of loss and shall cooperate in
every reasonable way to facilitate the settlement of any claim. For the purpose
of this clause, "delivery" shall mean the point in which LUCENT or LUCENT's
supplier or agent turns over possession of the Products to Reseller, Reseller's
employees, Reseller's designated carrier, Reseller's warehouse, or mutually
agreed upon facility.
15. LIMITATION OF LIABILITY
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, LUCENT AND ITS SUPPLIERS SHALL IN
NO EVENT BE LIABLE TO RESELLER, ITS CUSTOMERS, OR TO ANY OTHER PERSON OR COMPANY
USING ANY PRODUCT, OR SERVICE SUPPLIED UNDER THIS CONTRACT, OR TO ANY PERSON OR
14
CONTRACT NO. LSW97CWORLDWT
14
15. LIMITATION OF LIABILITY (CONTINUED)
COMPANY TO WHOM RESELLER FURNISHES A PRODUCT OR SERVICE, FOR LOSS OF TIME,
INCONVENIENCE, LOSS OF USE OF ANY PRODUCTS, OR PROPERTY DAMAGE CAUSED BY ANY
PRODUCTS OR SERVICES OR THEIR FAILURE TO WORK, OR FOR ANY OTHER INDIRECT,
SPECIAL, RELIANCE, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE ARISING OUT OF
THIS CONTRACT OR AN OBLIGATION RESULTING THEREFROM, OR THE USE OR PERFORMANCE OF
ANY PRODUCTS WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF LIABILITY OR
OTHERWISE. EXCEPT FOR PERSONAL INJURY AND PROPERTY DAMAGE CLAIMS AS PROVIDED IN
THE CLAUSE "INDEMNITY BY LUCENT," LUCENT's OR ITS SUPPLIER'S ENTIRE LIABILITY
FOR ANY CLAIM OR LOSS, DAMAGE OR EXPENSE FROM ANY CAUSE WHATSOEVER SHALL IN NO
EVENT EXCEED, AT LUCENT's OPTION, THE REPAIR OR REPLACEMENT COST, LICENSE FEE OR
PURCHASE PRICE OF THE SERVICE OR ITEM WHICH DIRECTLY GIVES RISE TO THE CLAIM. NO
ACTION OR PROCEEDING AGAINST LUCENT OR ITS SUPPLIER MAY BE COMMENCED MORE THAN
THIRTY (30) MONTHS AFTER THE PRODUCTS ARE INITIALLY SHIPPED. THIS PARAGRAPH
SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDY.
16. INSURANCE
Reseller shall maintain and cause its agents to maintain during the term of the
Contract:
(a) Worker's Compensation insurance prescribed by the law of the state
in which Reseller's obligations under this Contract are performed,
(b) employer's liability insurance with limits of at least $100,000
each occurrence, and
(c) comprehensive general liability insurance, and comprehensive
automobile liability insurance if the use of motor vehicles is
required, each with limits of at least $250,000 for bodily injury,
including death, to any one person and $1,000,000 for any one
occurrence, and $100,000 for each occurrence of property damage.
Reseller agrees that Reseller, Reseller's insurers and anyone claiming
by, through, under or in Reseller's behalf shall have no claim, right
of action or right of subrogation against Seller based on any loss or
liability insured against under the foregoing insurance. Upon request
of LUCENT, Reseller and Reseller's agents shall furnish prior to the
commencement of this Contract or any time thereafter, certification or
adequate proof of the foregoing insurance. Certificates furnished by
Reseller and Reseller's agents shall contain a clause stating that
Seller is to be notified in writing at least ten (10) days prior to
cancellation of or any material change in this policy. Reseller agrees
to indemnify
15
CONTRACT NO. LSW97CWORLDWT
15
16. INSURANCE (CONTINUED)
and save harmless Seller from and against any losses, damages, claims,
demands, suits and liabilities (including reasonable attorney's fees)
that arise out of or result from injuries or death to persons or damage
to property caused by Reseller's acts or omissions, or those of persons
furnished by Reseller or in any way arising out of the Reseller's
performance of this Contract; or assertions made by persons furnished
by Reseller under Worker's Compensation or similar acts; or claims,
demands, suits, liabilities or costs arising out of or in any way
relating to the Reseller's performance or failure of performance under
this Contract. Reseller agrees to defend LUCENT at LUCENT's request
against any such claims, demands or suits. In no event shall Reseller's
liability exceed one million dollars ($1 million) for any one
occurrence.
17. RESELLER
LUCENT agrees to notify Reseller within a reasonable time of any written claims
or demands against LUCENT for which Reseller is responsible under this
paragraph.
18. USE OF INFORMATION
(a) The term "Information" means all documentation (other than
promotional materials), technical information, confidential business
information, in whatever form recorded, which bears a legend
restricting its use or dissemination or which either party otherwise
indicates by written designation is confidential, and furnishes to the
other, and all copies thereof including translations, compilations and
partial copies. All Information which one party furnishes to the other
under or in contemplation of this Contract, and all related
documentation, shall remain the property of the furnishing party.
(b) Unless the party furnishing Information consents in writing, the
receiving party shall (i) hold the Information in confidence, except
for any part of such Information which is known to it free of any
obligation to keep in confidence or which is now generally known to the
public or which later becomes generally known to the public through
acts not attributable to such receiving party, or (ii) not reproduce or
copy such Information, in whole or in part, except as necessary for use
as authorized in this paragraph 16, (iii) if reproduction is permitted
include any copyright and proprietary notices on all such copies and
xxxx all media containing such copies with a warning that the
Information is subject to restrictions contained in a Contract with the
furnishing party and that such Information is the property of the
furnishing party, and (iv) return or destroy such Information when no
longer needed or, if such Information is recorded on an erasable
storage medium, erase it.
16
CONTRACT NO. LSW97CWORLDWT
16
18. USE OF INFORMATION (CONTINUED)
(c) Reseller may use such Information only to evaluate, order, market,
or provide Service on Product.
19. INFRINGEMENT OF PATENTS, TRADEMARKS AND COPYRIGHTS
In the event of any claim, action, proceeding or suit by a third party against
Reseller alleging an infringement of any United States patent, United States
copyright, or United States trademark, or a violation in the United States of
any trade secret or proprietary rights by reason of the use or sale, in
accordance with LUCENT's specifications, of any Product furnished by LUCENT to
Reseller under this Contract, LUCENT at its expense, will defend Reseller
subject to the conditions and exceptions stated below. LUCENT will reimburse
Reseller for any cost, expense or attorney's fee, incurred by LUCENT's written
request or authorization, and will indemnify Reseller against any liability
assessed against Reseller by final judgment on account of such infringement or
violation arising out of such use.
If Reseller's use or sale shall be enjoined or in LUCENT's opinion is likely to
be enjoined, LUCENT will, at its expense and at its option, either (1) replace
the enjoined Product furnished pursuant to this Contract with a suitable
substitute free of any infringement, (2) modify it so that it will be free of
the infringement, or (3) procure for Reseller or Reseller's customer a license
or other right to use it, (4) procure for Reseller a right to sell it. If none
of the foregoing options is practical, LUCENT will remove the enjoined Product
and refund to Reseller any amounts paid to LUCENT less a reasonable charge for
any actual period of use.
Reseller shall give LUCENT prompt written notice of all such claims, actions,
proceeding or suits alleging infringement or violation and LUCENT shall have
full and complete authority to assume the sole defense thereof, including
appeals, and to settle same. Reseller shall, upon LUCENT's request and at
LUCENT's expense, furnish all information and assistance available to Reseller
and cooperate in every reasonable way to facilitate the defense and/or
settlement of any such claim, action, proceeding or suit.
No undertaking of LUCENT under this clause shall extend to any such alleged
infringement or violation to the extent that it: (1) arises from adherence to
design modifications, specifications, drawings, or written instructions which
LUCENT is directed by Reseller to follow, but only if such alleged infringement
or violation does not reside in corresponding commercial Product of LUCENT's
design or selection; or (2) arises from adherence to instructions to apply
Reseller's trademark, trade name, or other company identification; or (3)
resides in a Product which is not LUCENT's origin and which is furnished by
Reseller to LUCENT for use under this Contract; or (4) relates to uses of
Product provided by LUCENT in combinations with other Product, furnished either
by LUCENT or others, which combination was not installed, recommended or
otherwise approved by LUCENT. In the foregoing cases number (1) through (4),
Reseller
17
CONTRACT NO. LSW97CWORLDWT
17
19. INFRINGEMENT OF PATENTS, TRADEMARKS AND COPYRIGHTS
(CONTINUED)
will defend and save LUCENT harmless, subject to the same terms and conditions
and exceptions stated above with respect to LUCENT's rights and obligations
under this clause. Provided that with respect to (4) above, Reseller will not be
obligated to indemnify LUCENT when the combination was not installed,
recommended, or otherwise approved by Reseller.
The liability of LUCENT and Reseller with respect to any and all claims,
actions, proceedings, or suits by third parties alleging infringement of
patents, trademarks, or copyrights or violation of trade secrets or proprietary
rights because of, or in connection with, any items furnished pursuant to this
Contract shall be limited to the specific undertakings contained in this clause.
20. DOCUMENTATION
LUCENT will make available to Reseller, at no additional charge, documentation
relating to Product which, at the time of sale, is customarily provided by
LUCENT to its customer.
* Confidential treatment will be requested
18
CONTRACT NO. LSW97CWORLDWT
18
* Confidential treatment will be requested
19
CONTRACT NO. LSW97CWORLDWT
19
22. INDEMNITY BY LUCENT
LUCENT will indemnify and save harmless Reseller from any loss or damages
(including reasonable attorney's fees) incurred by Reseller because of claims,
suits, or demands of third parties for personal injury or tangible property
damage to the extent such loss or damage is caused by or results from defective
Products manufactured by LUCENT provided: 1.) Reseller promptly notifies LUCENT
in writing of any suits, claims or demands against Reseller for which LUCENT is
responsible under this indemnity, 2.) Reseller gives LUCENT full opportunity and
authority to assume the sole defense of and settle such suits, 3.) Reseller
furnishes to LUCENT upon request all information and assistance available to
Reseller for defense against any such suit, claim or demand and 4.) Reseller
will not be obligated to indemnify LUCENT when the combination is not installed,
recommended, or otherwise approved by Reseller. LUCENT's liability under this
indemnity shall in no event exceed two million dollars ($2,000,000) for any one
occurrence. This indemnity is in lieu of all obligations of LUCENT, express or
implied, in law or in equity, to indemnify Reseller (except pursuant to the
clause INFRINGEMENT OF PATENTS, TRADEMARKS, AND COPYRIGHTS, AND THE CLAUSE
LEGISLATION AND GOVERNMENT REGULATIONS).
23. TRADEMARKS
Reseller will not, without LUCENT's express written permission, use in
marketing, advertising, publicity, or otherwise any trade name, trademark, trade
device, service xxxx, symbol, code or specification or any abbreviation,
contraction, or simulation thereof ("Xxxx") of the LUCENT Companies nor shall
Reseller claim any ownership therein. Reseller shall not remove, deface, alter
or otherwise obscure any Xxxx of the LUCENT Companies which is on Product sold
under this Contract nor shall Reseller place any Xxxx of any company on any such
Product; provided however that Reseller, consistent with the provisions of this
Clause, may place Reseller's Xxxx on the Product as provided to SWBT. Any such
usage shall inure to the benefit of the LUCENT Company Xxxx owner. As used in
this paragraph, the term "LUCENT Company" means LUCENT and its associated
companies.
24. LEGISLATION AND GOVERNMENT REGULATIONS
Reseller shall at all times comply with all applicable requirements of federal,
state and local laws, ordinances, administrative rules and regulations. Reseller
shall contractually require its subcontractors, distributors and agents to
comply with all such legal requirements as well, and Reseller shall indemnify,
defend and hold harmless LUCENT for any damages, losses, costs, or penalties
incurred by LUCENT by virtue of such non-compliance by Reseller or its
subcontractors, distributors or agents. If requested by LUCENT, Reseller shall
advise LUCENT in writing of the identity and addresses of its subcontractors,
distributors and agents in connection with the Product.
20
CONTRACT NO. LSW97CWORLDWT
20
24. LEGISLATION AND GOVERNMENT REGULATION (CONTINUED)
Likewise, LUCENT shall at all times comply with requirements of federal, state
and local laws, ordinances, administrative rules and regulations as are
applicable to LUCENT. LUCENT shall indemnify, defend and hold harmless Reseller
for any damages, losses, costs or penalties incurred by Reseller by virtue of
such non-compliance by LUCENT or its subcontractors, distributors, agent or
employees.
25. TERMINATION OF ORDERS
Reseller at any time may issue a "Hold" Order or cancel, terminate, or suspend
performance with respect to any Order placed hereunder, in whole or in part,
without LUCENT's prior written consent. Reseller shall be obligated to indemnify
LUCENT against the loss associated with any such action by paying termination
charges calculated in accordance with the following principles: (1) as to
Product delivered or services performed, Reseller shall be liable for the full
price; (2) as to Product ready for delivery, Reseller shall be liable for an
amount not to exceed the price for the Product; (3) as to work in process,
Reseller shall be liable for an amount not to exceed the sum of LUCENT's sunk
costs, a reasonable allocation of LUCENT's general and administrative expenses
and an appropriate profit factor. LUCENT shall make a reasonable attempt to
minimize the loss associated with Reseller's "Hold" Order or cancellation or
termination and, if requested, LUCENT shall substantiate the termination charges
which Reseller is obligated to pay and LUCENT's efforts to mitigate those
charges with reasonable proof.
26. TERMINATION OF CONTRACT
Either party may terminate this Contract without cause upon sixty (60) days
written notice to the other party given at any time. Upon termination of this
Contract without cause pursuant to this paragraph neither party shall be liable
to the other, either for compensation of for damages of any kind or character
whatsoever, whether on account of the loss by LUCENT or Reseller of present or
prospective profits on sales or anticipated sales, or expenditures, investments
or commitments made in connection therewith or in connection with the
establishment, development or maintenance of Reseller's business, or on account
of any other cause or thing whatsoever, provided that termination shall not
prejudice or otherwise affect the rights or liabilities of the parties with
respect to Products theretofore sold hereunder, or any indebtedness then owing
by either party to the other.
Notwithstanding any other terms or provisions of this Contract or other
arrangements agreed to by the parties, termination of this Contract shall
automatically accelerate the due date of all invoices for Product such that they
shall become immediately due and payable on the effective date of termination.
Upon notice of termination, LUCENT shall be entitled to reject all or a part of
any orders received from Reseller after notice but prior to the effective date
of termination. Notwithstanding any credit terms made available to
21
CONTRACT NO. LSW97CWORLDWT
21
26. TERMINATION OF CONTRACT (CONTINUED)
Reseller prior to that time, any Product shipped after notice of termination and
prior to effective date of termination shall be paid for by certified or
cashier's check prior to shipment. Upon termination or non-renewal of this
Contract, Reseller shall immediately:
(a) Discontinue any and all use of Marks as defined in the paragraph
TRADEMARKS) except to identify the Product, including but not limited
to such use in advertising or business Product of Reseller;
(b) Remove and return to LUCENT or destroy at LUCENT's request, any
and all promotional material supplied without charge by LUCENT;
(c) Return, upon request, all LUCENT confidential information except
that which LUCENT agrees is necessary to operate and maintain
previously furnished Product;
(d) Cease holding itself out, in any other manner, as a Reseller of the
Products; and
(e) Notify and arrange for all publishers and others who may identify,
list or publish Reseller's name as a Reseller of the Products
(including but not limited to publishers of telephone directories,
yellow pages and other business directories) to discontinue such
listings.
The respective obligations of Reseller and LUCENT under this contract which by
their nature would continue beyond the termination, cancellation or expiration
hereof, shall survive termination, cancellation or expiration hereof.
27. FORCE MAJEURE
Except with respect to Reseller's obligation to make timely payments, neither
party shall be held responsible for any delay or failure in performance to the
extent that such delay or failure is caused by fires, strikes, embargoes,
explosions, earthquakes, floods, wars, water, the elements, labor disputes,
government requirements, civil or military authorities, acts of God or by the
public enemy, inability to secure raw materials or transportation facilities,
acts or omissions of carriers or suppliers or other causes beyond its control
whether or not similar to the foregoing.
28. ASSIGNMENT
Reseller shall not assign any right or interest under this Contract or delegate
any work or other obligation to be performed or owned by Reseller under this
Contract without the
22
CONTRACT NO. LSW97CWORLDWT
22
28. ASSIGNMENT (CONTINUED)
prior to written consent of LUCENT. Any attempted assignment or delegation in
contravention of the above provision shall be void and ineffective.
LUCENT has the right to assign this Contract and to assign its rights and
delegate its duties under this Contract, in whole or in part, at any time and
without Reseller's consent, to any corporate parent, to any present or future
affiliate or subsidiary of LUCENT, or to any combination of the foregoing.
LUCENT shall give Reseller prompt written notice of the assignment. The
assignment of any rights and the delegation of any duties shall be subject to
the provisions, terms and conditions of this Contract.
29. SEVERABILITY
If any of the provisions of this Contract shall be invalid or unenforceable such
invalidity or unenforceability shall not invalidate or render unenforceable the
entire Contract, but rather the entire Contract shall be construed as if not
containing the particular invalid or unenforceable provision or provisions, and
the rights and obligations of each party shall be construed and enforced
accordingly. However, in the event such provision is considered an essential
element of this Contract, the parties shall promptly negotiate a replacement
thereof.
30. RELEASES VOID
Neither party shall require release or waivers of any personal rights form
representatives of the other in connection with visits to its premises and both
parties agree that no such releases or waivers shall be pleaded by them in any
action or proceeding.
31. LIENS
All Products provided by LUCENT to Reseller shall be free of all liens and
encumbrances.
32. TAXES
The prices set forth in Appendix A do not include applicable taxes and such
prices shall not be subject to change as a result of any change in Reseller's or
LUCENT's tax liabilities. To the extent sales taxes and or any other tax are
applicable to sales made by Reseller to SWBT, the collection or other processing
of such tax shall be the responsibility of Reseller.
23
CONTRACT NO. LSW97CWORLDWT
23
33. NONWAIVER
No course of dealing, course of performance or failure of either party strictly
to enforce any term, right or condition of this Contract shall be construed as a
waiver of any term, right or condition.
34. CHOICE OF LAW
The construction, interpretation and performance of this Contract shall be
governed by the laws of the State of Missouri.
35. NOTICES
All notices under this Contract shall be in writing and shall be given by
telegram or similar communication, or by certified or registered mail, addressed
to the addresses set forth at the beginning of this Contract or to such other
address as either party may designate by notice pursuant hereto. Such notices
shall be deemed to have been given when received.
36. DISPUTE RESOLUTION
A. Any controversy or claim, whether based on contract, tort, strict liability,
fraud, misrepresentation, or any other legal theory, related directly or
indirectly to this Contract ("Dispute") shall be resolved solely in accordance
with the terms of this Section 36.
B. If the Dispute cannot be settled by good faith negotiation between the
parties, Lucent and you will submit the Dispute to non-binding mediation. If
complete agreement cannot be reached within thirty (30) days of submission to
mediation, any remaining issues will be resolved by binding arbitration in
accordance with Sections 36C and 36D, except that Lucent reserves the right to
obtain an injunction in court to prevent you use of the Products in violation of
this Contract. The Federal Arbitration Act, 9 U.S.C. Sections 1 to 15, not state
law, will govern the arbitrability of all Disputes.
C. A single arbitrator who is knowledgeable in the telecommunications field or
in commercial matters will conduct the arbitration. The arbitrator's decision
and award will be final and binding and may be entered in any court with
jurisdiction. The arbitrator will not have authority to modify or expand any of
the provisions of this Agreement (e.g., Section 14 The Limitation of Liability
provision of this Agreement).
D. Any mediation or arbitration commenced pursuant to this Agreement will be
conducted under the then current rules of the alternate dispute resolution
(ADR) firm selected by the parties. If the parties are unable to agree on an
ADR firm, the parties will
24
CONTRACT NO. LSW97CWORLDWT
24
36. DISPUTE RESOLUTION (CONTINUED)
conduct the mediation and, if necessary, the arbitration under the then current
rules and supervision of the American Arbitration Association (AAA). Lucent and
you will each bear its own attorneys' fees associated with the mediation and, if
necessary, the arbitration. Lucent and you will pay all other costs and expenses
of the mediation/arbitration as the rules of the selected ADR firm provide.
37. OPTION TO EXTEND
Subject to the conditions stated herein, Reseller will have the right to extend
the period specified in the clause herein entitled Period of Agreement for
twenty four (24) months by giving LUCENT written notice at least thirty (30)
days' prior to the end of this Contract's Initial Period. Within ten (10) days
of the date of Buyer's notice to extend the Initial Period, LUCENT will notify
Reseller in writing whether LUCENT proposes to increase its prices under this
Contract. If it does and the parties fail to agree on the increased prices
within twenty (20) days after the date of LUCENT's notice to Reseller, then
Reseller's notice to extend will be considered withdrawn and the Contract shall
come to a conclusion in accordance with its terms and prices for outstanding
Orders will not be revised.
38. ATTORNEY'S FEES
If legal action is commenced to enforce the performance of any part of this
Contract, the prevailing party shall be paid by the other party reasonable
attorney's fees and expenses.
39. PARAGRAPH HEADINGS
The paragraph headings contained in this Contract are for convenience only and
are not intended to affect the meaning or interpretation of this Contract.
40. ENTIRE CONTRACT
The terms and conditions contained in this Contract supersede all prior oral or
written understandings between the parties and shall constitute the entire
Contract between them concerning the subject matter of this Contract and shall
not be contradicted, explained or supplemented by any course of dealing between
LUCENT or any of its affiliates and
25
CONTRACT NO. LSW97CWORLDWT
25
40. ENTIRE CONTRACT (CONTINUED)
Reseller or any of its affiliates, LUCENT's employees' statement and its
advertisements or descriptions, other than its Published specifications, do not
constitute warranties or other contractual obligations and shall not be relied
upon by Reseller as such. There are no understandings or representations,
express or implied, not expressly set forth in this Contract. No terms or
conditions contained in any order or other form originated by Reseller shall
apply except for quantity, description, and delivery schedule terms. This
contract shall not be modified or amended except by a writing signed by the
party to be charged, and no changes or additions to this Contract shall be
binding upon LUCENT unless signed by an authorized representative of LUCENT.
Lucent Technologies, Inc. World Wide Technology, Inc.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxxx
--------------------------------- ---------------------------------
Typed Name: Xxxxxxx X. Xxxxxx Typed Name: Xxxxx Xxxxxxx
Title: Business Management Director Title: President-CEO
Date: April 15, 1997 Date: 4/15/97
------------------------------- -------------------------------
26
LUCENT TECHNOLOGIES PROPRIETARY
1
* Confidential treatment will be requested
27
LUCENT TECHNOLOGIES PROPRIETARY
2
* Confidential treatment will be requested
28
LUCENT TECHNOLOGIES PROPRIETARY
3
* Confidential treatment will be requested
29
LUCENT TECHNOLOGIES PROPRIETARY
* Confidential treatment will be requested
4
30
LUCENT TECHNOLOGIES PROPRIETARY
* Confidential treatment will be requested
5
31
Contract LSW97CWORLDT
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
32
Contract LSW97CWORLDT
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
33
Contract LSW97CWORLDT
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
34
Contract LSW97CWORLDT
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
35
Contract LSW97CWORLDT
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
36
Contract LSW97CWORLDT
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
37
Contract LSW97CWORLDT
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
38
Contract LSW97CWORLDT
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
39
Contract LSW97CWORLDT
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
40
Contract LSW97CWORLDT
*Confidential treatment will be requested.
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
41
Contract LSW97CWORLDT
*Confidential treatment will be requested.
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
42
Contract LSW97CWORLDT
*Confidential treatment will be requested.
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
