1
Exhibit 6.28
RESELLER AGREEMENT
(UNITED STATES)
This Agreement is effective as of December 15, 1998 ("Commencement Date") by and
between Ascend Communication Inc., a California Corporation, having its
principal place of business at One Ascend Plaza, 0000 Xxxxxx Xxx Xxxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000, ("Ascend") and Priority Systems having its principal
place of business at 0000 X. 00xx Xx., Xxxxxxx, Xxxxxxx ("Reseller").
It is mutually agreed that:
1. COVERED PRODUCTS - TERMS AND CONDITIONS OF PURCHASE/SUPPLEMENTS:
All purchases of products (as defined below) by Reseller from Ascend
shall be subject to this Agreement including supplements issued by
Ascend from time to time during the term hereof and then in effect.
Supplements may be issued to cover new products or programs or to
modify, supersede or delete, in whole or in part, the provisions of
previously issued supplements. The terms and conditions contained in
any supplement issued by Ascend shall be in the sole discretion of
Ascend and shall be incorporated into and made a part of this Agreement
effective as of the Effective Date specified in such supplement. No
supplement issued after the Commencement Date hereof shall be effective
earlier than thirty (30) days after issuance by Ascend. Reseller
acknowledges that it has received from Ascend copies of the following
supplements, which are incorporated herein and made a part of this
Agreement effective as of the Commencement Date hereof:
TITLE EFFECTIVE DATE
Standard Price List November, 1997
Discount Schedule Supplement January 1, 1998
Quota Supplement January 1, 1998
Warranty Supplement January 1, 1998
Stock Rotation Plan Supplement January 1, 1998
Referral Sale Supplement January 1, 1998
Point-of-Sale Supplement January 1, 1998
Inventory Supplement January 1, 1998
Software License Supplement January 1, 1998
Market Development Program January 1, 1998
2. APPOINTMENT:
2.1 Ascend appoints Reseller, and Reseller accepts such
appointment and agrees to act as an Ascend non-exclusive
reseller for the "Products" (as defined herein), subject to
the terms and conditions set forth in this Agreement. Except
as otherwise noted, "Product" or "Products" shall mean the
Ascend equipment and ("Software") contained in the product
("Ascend Products") and/or third parties' equipment or
Software ("Non-Ascend Products") listed in then-current
Standard
1
2
Price List. Ascend may unilaterally add items to, or remove
items from, the Standard Price List from time to time during
the term of this Agreement and any such addition or removal
shall be effective immediately upon the effective date of a
new Standard Price List or other written notification by
Ascend.
2.2 Ascend reserves the right to sell directly to any other
customer, including but not limited to, distributors, original
equipment manufacturer ("OEMs") and other resellers. Any such
distributors, OEMs and other resellers shall have the right to
resell the Products.
3. TERM:
The initial term of this Agreement is twelve (12) months from the
Commencement Date ("Initial Term"), subject to the terms and conditions
set forth in Section 17, Termination. This Agreement shall continue
thereafter in twelve (12) month increments ("Renewal Term") subject to
the same rights of termination.
4. INVENTORY COMMITMENT:
4.1 In order that Reseller will be able to promptly supply
Products to its customers, Reseller agrees to purchase and
maintain reasonable inventory levels as specified in the
then-current Inventory Supplement.
5. PRICES, DISCOUNTS, QUOTA AND ADJUSTMENTS:
5.1 Reseller's purchase price for the Products shall be: (a) the
prices stated in the then-current Standard Price List; (b)
less the applicable discount then allowable to Reseller in
accordance with the then-current Discount Schedule Supplement.
Nothing in this Agreement restricts Reseller from establishing
its own resale prices.
5.2 In the event of a price increase or a change in an applicable
discount, such increase or change shall apply only to new
orders. No price increase or change in an applicable discount
shall apply to shipments made prior to such effective date.
5.3 The above notwithstanding, Ascend agrees to deliver at the
non-revised price and for a period not to exceed six (6)
months from the effective date of the revised Standard Price
List, Products which are required for Reseller to fulfill its
long-term fixed-price contractual commitments. Reseller shall,
within thirty (30) days of the date of such price revision
notification, notify Ascend in writing of any and all such
contractual obligations, providing copies thereof and of all
implementing purchase orders placed on Reseller by Reseller's
customer pursuant to such obligations. Failure to so notify
Ascend within said thirty (30) day period shall constitute a
waiver of Reseller's claim under this Section 5.3.
5.4 Ascend does not pre-announce price decreases. In the event of
a price decrease, the decrease shall apply to all units of
Product which are on order and have not been shipped by Ascend
prior to the effective date of such decrease. In addition,
2
3
Reseller shall receive a credit for units of Product still in
Reseller's inventory if and to the extent such units were
purchased within the previous ninety (90) days. Such credit
shall be to Reseller's account for future purchase orders
under this Agreement in an amount equal to the difference
between the invoice price at which each such unit of Product
was delivered to Reseller and the current decreased price
announced by Ascend. Credit will be granted to the Reseller
upon his submission of request to Ascend showing serial
numbered units of affected Products still in his inventory and
upon validation by Ascend utilizing the most recently
submitted inventory report from Reseller. Notwithstanding
anything contained herein to the contrary, any such credit
must be claimed within (6) months of a price decrease.
5.5 Ascend has defined a Revenue quota goal ("Quota") for the
Reseller, as stated in the then-current Quota Supplement. The
purpose of this Quota is to establish expected levels of
purchases for Reseller during the Initial Term and any
subsequent Renewal Term. Ascend and Reseller will review
Reseller's actual purchases of Products as of the date(s) of
such review against Reseller's Quota to determine what action,
if any, is appropriate in light of such a review.
6. ORDERS:
6.1 Products shall be ordered by Reseller by written purchase
order and shall reference this Agreement. Orders are subject
to acceptance by Ascend and assignment of delivery schedules
in accordance with Product availability. Any term or condition
set forth on Reseller's purchase order which is inconsistent
with or additive to this Agreement shall have no force or
effect.
6.2 Cancellation of any order by Reseller within thirty (30) days
of confirmed ship date will be subject to a cancellation
charge of ten percent (10%) of the net order value of the
canceled portion of the order.
6.3 Changes in delivery schedule may be made without charge, in
writing and received by Ascend at least thirty (30) days prior
to scheduled delivery date(s). However, changes in delivery
schedule made within thirty (30) days of scheduled delivery
shall be subject to a rescheduling charge of ten percent (10%)
of the net order value of the rescheduled portion of the
order.
7. SHIPMENTS:
7.1 Ascend shall deliver the Products ordered by Reseller, F.O.B.
Ascend's factory, such delivery to be made to a carrier or
freight forwarder selected by Ascend unless otherwise
specified by Reseller. Products will be packaged by Ascend in
accordance with Ascend's standard practices. Title, possession
and risk of loss shall pass to Reseller upon delivery of the
Products by Ascend to the designated carrier or freight
forwarder.
3
4
7.2 Reseller must notify Ascend within ten (10) days of receipt of
Products of any discrepancies in the shipment of such Products
or of any reason for rejection of such Products.
8. PAYMENT TERMS, TAXES AND OTHER CHARGES:
8.1 All Products sold by Ascend to Reseller shall be invoiced in
full upon shipment. Payment is net thirty (30) days from date
of invoice. Reseller agrees to submit such financial
information from time to time as may be reasonably requested
by Ascend. Reseller agrees that Ascend shall have the right to
determine Reseller's credit limit from time to time at
Ascend's discretion. In the event any order by Reseller
exceeds its credit limit, or Reseller fails to make payments
when due or otherwise defaults or commits a breach hereunder,
Ascend may effective immediately upon the giving of notice to
Reseller (i) suspend credit and delay shipment until such
terms are met, and/or (ii) alter the terms of payment; and /or
(iii) cancel any order then outstanding and/or (iv) pursue any
other remedies available by law or equity. Further, if
Reseller fails to pay any charges when due, Ascend may (i)
charge Reseller a late payment charge equal to the lesser of
one and one-half percent (1-1/2%) per month or the maximum
amount allowed by law on the past-due balance and (ii) cancel
or delay further shipment of Products.
8.2 The purchase price for Products does not include taxes and
other charges. All taxes, sales, use or privilege taxes,
excise or similar taxes, duties or assessments, shipping,
handling, insurance, brokerage, and other related charges
levied by any jurisdiction pertaining to the Products, other
than taxes computed on the basis of the net income of Ascend,
shall be paid by Reseller. In lieu of any tax, Reseller may
provide Ascend with a tax exemption certification acceptable
to the taxing authorities.
9. REFERRAL SALES:
In the event certain sales transactions which involve referral
of an end user purchaser by Reseller to Ascend, in such case
Reseller may be eligible for commission payments and such
transactions shall be subject to the provisions set forth in
the then-current Referral Sale Supplement.
10. OTHER OBLIGATIONS OF RESELLER:
10.1 Reseller agrees to provide Products to customers in
combination with other products or services provided by
Reseller, such that the overall value of the Product is
enhanced, Reseller shall use its best efforts and devote such
time as is necessary to diligently promote the sale of, and
stimulate demand for, the products.
10.2 Reseller shall perform such servicing and follow-up on
purchase orders secured by the Reseller as good salesmanship
shall require and as Ascend shall reasonably request.
4
5
10.3 Reseller shall promptly advise Ascend of any complaints or
claims brought or threatened against Reseller with respect to
the sale or use of the Products or with respect to any alleged
patent, copyright or trademark infringement.
10.4 Within thirty (30) days after Reseller's execution of this
Agreement, Reseller shall provide Ascend with a non-binding
forecast of the quantity of Products, by Product type, of
expected sales of Products for the next three (3) month period
("Forecast"). By the third Friday of every month thereafter,
Reseller shall provide a new Forecast for the then following
three (3) month period.
10.5 Excluding Non-Ascend Product(s), Reseller will purchase
Product(s) for sales demonstration purposes ("sales demos") at
special discounts to be unilaterally determined by Ascend.
Reseller may place two (2) purchase orders for sales demos
during any consecutive twelve (12) month period. Such purchase
orders shall: (i) be limited to $30,000 (based on the
then-current Price List) per purchase order and (ii) state
"For Demonstration Purposes." Ascend reserves the unilateral
right to limit the quantity and type of Product(s) ordered for
sales demos.
10.6 Within fifteen (15) days after the end of each calendar month,
Reseller will provide to Ascend written reports showing, for
the month immediately preceding, the report, Reseller's
shipments of Products and current inventory levels.
Point-of-Sale reports and inventory reports shall use the
appropriate forms as provided in the then-currant
Point-of-Sale Supplement and Inventory Supplement.
11. OTHER OBLIGATIONS OF ASCEND:
11.1 Ascend shall allow Reseller to rotate its Products in stock in
accordance with the then-current Stock Rotation Plan
Supplement.
12. WARRANTY
12.1 Products Warranty. Ascend warrants to Reseller that the
Products conform in all material respects to the end user
documentation provided with the Products and that the hardware
components of the Products will be free from defects in
materials and workmanship until the date which is one (1) year
after receipt of the Products by the end user (the total
"warranty period" shall not exceed 15 months in total which
includes 3 months of shelf time.) This limited warranty does
not cover the results of accidents (including unusual physical
or electrical stress), abuse, neglect, vandalism, use contrary
to handling or operating instructions supplied by Ascend, or
repair or modification by anyone other than Ascend.
12.2 Warranty Claims. If Reseller believes that Products do not
conform to the warranty set forth in Section 12.1, Reseller
shall notify Ascend in writing of such nonconformance no later
than ten (10) days after the end of the Warranty Period for
those Products, and shall provide such details of the
nonconformance as Ascend reasonably requests. Reseller will,
upon the request of Ascend and in accordance with Ascend's
standard procedures, return such Products to Ascend at
Ascend's expense and risk. The final determination whether
Products fail to
5
6
satisfy this warranty will be made in the sole reasonable
discretion of Ascend. If Ascend determines that returned
Products do conform to this warranty, then Ascend will return
such Products at Reseller's expense and risk. If Products are
deemed to fail to conform to this warranty by Ascend,
Reseller's sole remedy shall be, at Ascend's option and
expense, the repair or replacement and return of the Products
within forty-eight (48) hours after Ascend receives the
Products, or a refund (or, at the option of Reseller, a
credit) of the price or fee paid by Reseller for the Products.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY,
THE FOREGOING IS RESELLER'S SOLE AND EXCLUSIVE REMEDY FOR
BREACH OF WARRANTY BY ASCEND WITH RESPECT TO THE PRODUCTS.
12.3 Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTY FOR
THE PRODUCTS CONTAINED IN SECTION 12.1, ASCEND AND ITS
SUPPLIERS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE
PRODUCTS, EXPRESS OR IMPLIED, INCLUDING AS TO PERFORMANCE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, OR
FITNESS FOR A PARTICULAR PURPOSE.
13. CONFIDENTIALITY:
No proprietary information disclosed by either party to the other in
connection with this Agreement (including, without limitation, Ascend's
Proprietary Materials as defined in Section 17.7 hereof) shall be
disclosed to any person or entity other than the recipient party's
employees and contractors directly involved with the recipient party's
use of such information who are bound by a written agreement to protect
the confidentiality of such information, and such information shall
otherwise be protected by the recipient party from disclosure to others
with the same degree of care accorded to its own proprietary
information. To be subject to this provision, information must be
delivered in writing, and designated as proprietary within thirty (30)
days after the oral disclosure. Information will not be subject to this
provision if it is or becomes a matter of public knowledge without the
fault of the recipient party, if it was a matter of written record in
the recipient party's files prior to disclosure to it by the other
party, or if it was or is received by the recipient party from a third
person under circumstances permitting its unrestricted disclosure by
the recipient party. Upon termination of this Agreement, each party
shall promptly deliver to the other all proprietary information,
together with any copies, excerpts, summaries, memoranda, or notes
thereof or thereon, of the other party in the possession or control of
such part and all companies thereof. The obligations under this Section
13 shall continue for both parties for a period of ten (10) years after
delivery by Ascend to Reseller of the last Product under this
Agreement,
14. TRADEMARK USAGE:
Ascend will provide Reseller with artwork for Ascend's trademark,
tradenames and logo (collectively, the "Licensed Marks"). Ascend grants
to Reseller the non-exclusive right to use the Licensed Marks solely in
connection with the promotion and sale of the Products by Reseller in
accordance with the terms and conditions of this Agreement;
6
7
provided, however, that (i) no names or descriptive words or phrases
shall be co-joined or used by Reseller in any way in connection with
the Licensed Marks; (ii) Reseller will submit to Ascend for its prior
written approval any material incorporating any of the Licensed Marks
which Reseller proposes to use in any fashion whatsoever at least
thirty (30) days prior to Reseller's initial use of such material;
(iii) Reseller will comply with any instruction or requirement issued
by Ascend with respect to the appearance and use of the Licensed Marks;
(iv) Reseller shall use the Licensed Marks only in a manner so as to
preserve and protect all rights of Ascend therein and (v) Reseller
shall not use or adopt any names or marks which might be confusingly
similar to the Licensed Marks. Nothing herein grants to Reseller or its
customers any interest in or to the Licensed Marks and all rights in
the Licensed Marks shall at all times during the term of this Agreement
and thereafter, be and remain the sole property of Ascend, and all
goodwill and other benefits associated therewith are hereby assigned
to, and shall inure to, Ascend. Reseller hereby agrees that it shall
not remove the Licensed Marks from any product furnished by Ascend.
Reseller and its customers shall have no right to alter, otherwise use
or in any way transfer the Licensed Marks. Reseller shall promptly
notify Ascend of any actual or potential infringement of, unauthorized
use of, or adverse claim to the Licensed Marks and Reseller shall
provide Ascend with reasonable assistance in any efforts to prevent or
terminate any infringement, unauthorized use or limitation thereof.
15. GRANT OF SOFTWARE LICENSE:
Subject to the terms of this Agreement, Ascend grants Reseller a
license to (a) use the Software solely in connection with Reseller
internal use of the Products, and (b) distribute the Software to and
sublicense end-users of the Products to use the Software solely in
connection with the Products. Reseller will not copy all or any part of
the Software, or attempt, or encourage or permit any third party to
attempt, to reverse engineer, reverse compile or disassemble the object
code for the Software.
16. PATENT AND COPYRIGHT INFRINGEMENT INDEMNIFICATION:
Ascend shall defend, at its own expense, any suit brought against
Reseller on the grounds the Products or any part thereof infringe any
valid United States patent or copyright, and shall pay the amount of
any final judgment that may be awarded against Reseller in any such
Suit; provided that Reseller (i) shall have made all payments to Ascend
due under this Agreement; (ii) shall have otherwise complied with the
terms, conditions and provisions of this Agreement; (iii) shall have
given prompt written notice to Ascend of any claim of infringement and
furnished Ascend with all papers received in connection therewith; (iv)
shall have permitted Ascend to take complete charge of the defense of
any such suit and to settle the same, if deemed advisable by Ascend;
and (v) shall have assisted Ascend in every reasonable manner in the
conduct of such defense. Ascend's obligations hereunder shall be void
as to any Products modified by Reseller (whether or not with Ascend's
approval) or by Ascend solely to comply with the request of Reseller,
to the extent such modification is the alleged basis of the suit, or if
such claims based upon the use of the Product or any component thereof
in combination with machines, firmware, software, programs to devices
not provided by Ascend, rather, Reseller shall indemnify and defend
Ascend as to any Products modified by Reseller (whether or not
7
8
with Ascend approval) or by Ascend to comply with the request of
Reseller if the use or sale of any Products is permanently enjoined or
a final judgment awarding damages is entered against Reseller by reason
of any such patent or copyright infringement, Ascend shall, at its sole
election, either (i) procure the right to use the Products; (ii)
replace or modify the Products so that it becomes noninfringing; or
(iii) refund to Reseller for an amount equal to the depreciated value
of the products sold to Reseller and remaining in Reseller's inventory
(such value to be based on its straight-line depreciation of book value
over a five-year life).
THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF ASCEND AND THE SOLE
REMEDY OF RESELLER WITH RESPECT TO ANY CLAIM OR ACTION BASED IN WHOLE
OR IN PART UPON INFRINGEMENT OF A PATENT OR COPYRIGHT.
17. TERMINATION:
17.1 Either party may terminate this Agreement, at any time, with
or without cause, upon sixty (60) days advance written notice
to the other.
17.2 Notwithstanding anything in this Agreement to the contrary,
this Agreement may be canceled and terminated by Ascend
immediately upon written notice to Reseller upon the
occurrence of any of the following:
(i) In the event of the breach of any of the terms or
conditions of this Agreement, or any act of
misfeasance, by Reseller, and the breach is not cured
within thirty (30) days after written notice thereof;
or
(ii) Upon the commencement by or against Reseller of
insolvency, receivership of bankruptcy proceedings or
any other proceedings for the settlement of
Reseller's debts, or upon Reseller making of an
assignment for the benefit of creditors, or upon
commencement of any act or action concerning
Reseller's dissolution or liquidation.
17.3 In the event of termination of this Agreement, Ascend will
accept orders from Reseller, subject to cash-in-advance credit
terms or as otherwise reasonably determined by Ascend, for
in-production Products which Reseller is contractually
obligated to furnish to its customers during the twelve (12)
month period immediately following the effective date of the
termination and does not have in its inventory provided
Reseller notifies Ascend of any and all such obligations in
writing within ten (10) clays of the effective date of such
termination. All such orders shall be priced accordance with
the pricing in effect at the time such orders are received by
Ascend.
17.4 If this Agreement is terminated by Ascend, Ascend shall, at
Reseller's option, which option must be exercised by Reseller
in writing within thirty (30) days of such termination,
repurchase Products remaining in Reseller's inventory in
excess
8
9
of that required to meet Reseller's contractual obligations
existing at the time of termination, subject to the following:
(i) The price to be paid for the repurchase of said
inventory shall be Reseller's net cost at the time of
purchase, free of any taxes, transportation and/or
other charges and less any adjustment which may have
been made pursuant to Section 5.4.
(ii) All Products must be returned in the original sealed
packaging, new, unused undamaged and in good
merchantable condition.
(iii) All Products must be shipped to Ascend's designated
facility, freight prepaid.
17.5 If this Agreement is terminated by the Reseller, Ascend may,
at its option, which option must be exercised by Ascend in
writing within thirty (30) days of the effective date of such
termination, repurchase all or some unsold Products subject to
the following:
(i) The price to be paid on repurchase of said Products
shall be Reseller's net cost at time of purchase free
of any taxes, transportation and/or other charges,
less a fifteen percent (15%) handling charge.
(ii) All Products must be returned in their original
sealed packaging, new unused, and undamaged and in
good merchantable condition.
(iii) All Products must be shipped to Ascend's designated
facility, freight prepaid.
17.6 In the event of termination of this Agreement as provided
herein, all rights hereunder shall terminate on the effective
date of such termination, except that, subject to the further
terms and condition of this Agreement (including, without
limitation, Section 17.8), Ascend shall make shipment against
Resellers then outstanding purchase orders, and Reseller shall
pay Ascend for all such purchase orders.
17.7 Upon termination of this Agreement, all tradenames, patents,
designs, drawings, engineering or other data, photographs,
samples, literature, sales aids and any other materials
containing information relating to the Products or Ascend's
business, including any copies, excerpts, summaries,
memoranda, or notes thereof or thereon (collectively, the
"Proprietary Materials") of every kind shall remain the
property of Ascend, and, Reseller shall prepare all such
Proprietary Materials in its possession with a reasonable
promptness for shipment, F.O.B the shipping point, as Ascend
may direct, at Ascend's expense. Reseller shall not make or
retain any copies of Proprietary Materials or other
confidential items or information which may have been
entrusted to it.
9
10
17.8 The termination of this Agreement shall in no way relieve
either party from its obligation to pay the other any sums
accrued hereunder prior to such termination. In addition, the
obligations of Sections 8.1, 12, 13, 14, 15, 16, 18, and 19
shall survive termination of this Agreement.
18. INDEMNIFICATION:
Reseller shall indemnify and hold harmless Ascend from and
against any and all claims, actions, liabilities, losses,
damages and expenses, including reasonable attorneys' fees and
such fees on appeal, incurred by Ascend in investigation
and/or defending against any claims, actions or liabilities
for which indemnification is provided herein, arising out of
or in connection with (i) the sale, license, servicing and
related activities pursuant to this Agreement with respect to
the Products by Reseller; (ii) the failure of Reseller to
comply with all applicable laws, rules, and/or regulations
regarding advertising, selling, licensing, importing or
exporting the Products; (iii) Reseller's attachment to the
Products of any tradename, trademark or logo that is
challenged as an infringement of the proprietary rights of any
third party, (iv) any warranties granted by Reseller, or any
implied warranties claimed by any of Reseller's purchasers or
end users, in excess of those warranties contained herein or
in the Warranty Supplement; or (v) the failure of Reseller to
comply with each and every term of this Agreement. Ascend
shall give written notice to Reseller within twenty (20) days
of learning of any such claim, action or liability for which
indemnification is provided herein. Reseller agrees that
Ascend may employ attorneys of its own selection to defend
and/or appeal the claim or action on behalf of Ascend, or
Ascend may elect to allow Reseller, at Ascend's expense, to
employ an attorney to defend Ascend: provided, however, Ascend
reserves the right to reasonably disapprove any such attorney.
19. GENERAL:
19.1 The relationship of the parties under this Agreement shall be
and at all times shall remain one of independent contractors.
Reseller is not a partner, agent, employee or legal
representative of Ascend and Reseller will take no action
which has the effect of creating an appearance of its having
authority to do so. Reseller shall have no authority to bind
Ascend to any agreement or commitment of any kind.
19.2 ASCEND SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES EVEN IF RESELLER SHALL HAVE ADVISED
ASCEND OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
19.3 Reseller shall not disclose, publish or otherwise reveal the
content of this Agreement to any third party without Ascend's
prior express written consent.
19.4 If any provision herein is held to be invalid, illegal or
unenforceable for any reason, such invalidity, illegality or
unenforceability shall be severed, but without in any way
affecting the remainder of such provision or any other
provision contained herein, all of which shall continue in
full force and effect.
10
11
19.5 Either party's waiver of any breach or default by the other
party shall not constitute a waiver of any different or
subsequent breach or default. Should any action, suit or other
proceeding become necessary to enforce any of the terms and
conditions set forth herein, the prevailing party shall
recover all expenses incurred, including attorney's fees, in
connection with such action, suit or other proceeding.
19.6 Neither party shall be liable for failure to perform or delay
in performing any obligation (other than payment of money)
under this Agreement contract of sale hereunder if such
failure Or delay is due to fire, flood, earthquake, strike,
labor trouble or other industrial disturbance, war (declared
or undeclared), embargo, blockage, shortage of labor,
materials or equipment, legal prohibition, governmental
action, riot, insurrection, damage, destruction or any other
cause beyond the control of such defaulting party preventing
or delaying the performance.
19.7 All notices, requests, consents and other communications which
are required or permitted under this Agreement shall be in
writing, and shall be delivered personally or mailed by
certified or registered mail, postage prepaid, return receipt
requested (in which case it shall be deemed given three (3)
days after mailing), or sent by facsimile, with a confirmation
copy simultaneously mailed (in which case it shall be deemed
given when transmitted), at the following addresses:
(i) If to Ascend, to:
ASCEND COMMUNICATIONS
XXX XXXXXX XXXXX
0000 XXXXXX XXX XXXXXXX
ATTN: XXXXXX X. XXXXXXX
VP CHANNEL SALES
(ii) If to Reseller, to:
PRIORITY SYSTEMS, INC.
0000 X. 00XX XX., #000
XXXXXXX, XX 00000
or to such other address as to which any party hereto may
notify the other parties hereto as aforesaid.
19.8 Orders for Products may only be placed by Reseller for
delivery by Ascend within the United States and its
territories and possessions. In the event that Reseller
exports or re-exports the Products, Reseller shall have full
responsibility for obtaining all necessary approvals,
licenses, permits and the like which may be required by any
regulatory or governmental body of the U.S. or destination
country. Reseller agrees to abide by the rules and regulations
of the U.S.
11
12
Department of Commerce, Office of Export Administration and
the U.S. Anti-Boycott provisions, as well as all applicable
U.S. federal, state and municipal statutes, rules, and
regulations when exporting, re-exporting the Products,
Software or other items sold or licensed hereunder.
19.9 This Agreement and all acts and transactions pursuant hereto
and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the
laws of the State of California. All actions Or proceedings
relating to this Agreement shall be maintained in a Court
located in Alameda County, State of California, and the
parties hereto consent to the jurisdiction of said court and
waive any objection to such venue.
19.10 The section and subsection headings contained in this
Agreement are included for convenience only, and shall not
limit or otherwise affect the terms hereof.
19.11 Reseller may not transfer the rights or delegate the duties
provided for under the terms of this Agreement without the
prior written consent of Ascend, which consent Ascend may
withhold in the exercise of its absolute discretion,
19.12 This agreement, including the supplements hereto as described
in Section 1, above, and the pricing and pricing provisions
set forth in the Standard Price List as issued by Ascend from
time to time during the term hereof and then in effect,
constitutes the entire agreement between Ascend and Reseller
concerning the subject matter hereof, supersedes all prior and
contemporaneous communications or agreements, written or oral,
and is intended by the parties to be a complete and exclusive
statement of the terms of the agreement between them. Any
terms and conditions contained on Reseller's purchase order
releases which are not in strict accordance with the terms set
forth herein shall not be binding on Ascend. Except for the
Standard Price List and the supplements hereto issued pursuant
to Section 1 above, this Agreement may only be modified by a
writing signed by authorized representatives of both parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate by their duly authorized representatives.
Ascend Communications, Inc. Reseller:
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- -----------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxxx Xxxxxx
--------------------------- ---------------------------
Title: Title: President
-------------------------- --------------------------
Date: Date: December 15, 1998
--------------------------- ---------------------------
12
