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EXHIBIT 10.8
RESELLER AGREEMENT
This Reseller Agreement ("Reseller Agreement"), dated as of March 26,
1999 ("Effective Date"), is made and entered into by and between ANDA Networks,
Inc. ("ANDA"), a Delaware Corporation, and PairGain Technologies Corporation, a
Delaware corporation ("Reseller").
RECITALS
ANDA desires to manufacture and sell to Reseller and to grant Reseller
certain rights to resell the products described in Exhibit A and Exhibit B, and
Reseller desires to purchase such products and to receive such resale rights,
subject to the terms and conditions set forth in this Reseller Agreement; and
ANDA and Reseller desire to discuss the potential of joint development
efforts for solutions in the service provider market.
1. PROVISION AND SALE OF PRODUCT AND PLUGS. The product to be provided and sold
by ANDA is identified in Exhibit A (the "Product"). All plugs and peripherals of
the Product (the "Plugs"), as may also be provided and sold by ANDA to Reseller
are identified in Exhibit B. Pursuant to the terms and conditions of this
Reseller Agreement, ANDA and the Reseller may amend Exhibit A or Exhibit B from
time to time to add future releases, upgrades or modifications of the Product or
the Plugs. For purposes of this Reseller Agreement, references to the "Product"
shall include any Plugs.
2. RESALE RIGHTS GRANTED BY ANDA; END USER AGREEMENT.
2.1 Subject to the terms and conditions of this Reseller Agreement,
ANDA grants to Reseller a non-exclusive, non-transferable, non-sublicenseable
right to integrate the Product and/or any Plugs into an Application (defined in
Exhibit A), and to resell the Product and the Plugs whether or not integrated
with an Application into any account. Reseller may use subdistributors provided
that any such subdistributor may not use other subdistributors and shall enter
into a written enforceable agreement agreeing to be bound by all the limitations
and restrictions of this Agreement.
2.2 Notwithstanding the foregoing, no distribution or license of a
Product by Reseller or its distributors shall be made except pursuant to an
enforceable written agreement for ANDA's benefit signed by the end-user that is
at least as protective of ANDA and its rights as this Agreement. Reseller
(and/or its subdistributors) shall not provide any warranties to any end user
that go beyond the warranties and liability limitations provided in this
Agreement. Reseller shall indemnify ANDA for any failure to comply with the
foregoing.
3. EXCLUSIVITY; PURCHASE REQUIREMENTS.
3.1 In addition to the non-exclusive right granted in 2.1 and subject
to the other terms and conditions of this Reseller Agreement, ANDA grants
Reseller the exclusive right only to market and resell the Product only as
integrated into an Application and only to accounts and prospective accounts
listed on Exhibit C (the "Accounts"). This exclusivity with respect to the
Accounts shall last for a period of one (1) year from the Effective Date, but
may continue for an additional one (1) year period if renewed pursuant to the
mutual agreement of the parties (collectively, the "Exclusivity Period"). ANDA
and the Reseller may mutually agree to amend Exhibit C from time to time to add
additional accounts.
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ANDA will provide technical assistance to Reseller with respect to Reseller's
sales to the Accounts in the form of the support services (the "Services")
listed in Exhibit D.
3.2 The Reseller will use its commercially best efforts to advertise,
promote, facilitate and generate sales of the Product to the Accounts. Without
limiting the generality of the foregoing, in order to retain exclusivity of an
Account the Reseller must produce revenues for ANDA equal to or exceeding the
specified amount in Exhibit C from the Account during the first year of the
Exclusivity Period. In the event that fails to produce revenues equal to or
exceeding the specified amount in Exhibit C in revenues from the Account during
the first year of the Exclusivity Period, ANDA may terminate the Reseller's
right of exclusivity to that Account. ANDA and the Reseller agree to a quarterly
review of the Exclusive Accounts and their performance against the minimum
targets.
3.3 Upon termination or expiration of the Exclusivity Period, the
Reseller's right to resell the Product as integrated into an Application to the
Accounts shall become a non exclusive right for the remainder of the term of
this Reseller Agreement. Either party may terminate the exclusivity with respect
to any Account upon six (6) months written notice to the other party, whereupon,
the Reseller shall bear all further contractual obligations to such Account.
4. PURCHASE ORDERS, FORECASTS, AND DELIVERY.
4.1 The purchase and sale of the Product and the Plugs shall be made by
means of purchase orders (the "Purchase Orders") placed by the Reseller during
the term of this Reseller Agreement in accordance with the terms and provisions
hereof. All Purchase Orders for the Product and the Plugs submitted by the
Reseller shall include the following: (i) description of the Product and Plugs
ordered; (ii) quantities ordered, (iii) price, (iv) requested delivery dates,
(v) destination, and (vi) requested method of shipment. All Purchase Orders
accepted by ANDA are binding on Reseller.
4.2 Before the tenth day of each month, Reseller shall provide ANDA with
a good faith forecast of its requirements of Products for the second through
sixth (6th) months following such date. The amount of any Product ordered
pursuant to such Purchase Order shall be not less than fifty percent (50%) or
more than one hundred fifty percent (150%) of the most recent previous forecast
for such quarter. If Reseller does request a quantity of Product outside of the
prescribed range then ANDA will cooperate with Reseller in fulfilling the order,
but ANDA has no obligation to supply more than the amount previously forecasted.
Any orders placed by the Reseller may be cancelled by the Reseller if
cancellation date is not within ANDA's minimum lead-time of section 4.4.
4.3 Products are to be delivered F.O.B. ANDA's applicable warehouse or
place of production. Unless specific instructions to the contrary are supplied
by Reseller, methods and routes of shipment will be selected by ANDA, but ANDA
will not assume any liability in connection with shipment or constitute any
carrier as an agent of ANDA. All shipments will be insured at Reseller's expense
and made at Reseller's risk, and Reseller shall be responsible for making all
claims with carriers, insurers, warehousemen, and others for misdelivery,
nondelivery, loss, damage, or delay. Reseller shall be responsible for all
taxes, duties and other governmental assessments. ANDA shall be responsible for
any charges including shipping and expedite fees if shipments errors are a
result of ANDA.
4.4 During the term of this Reseller Agreement, ANDA shall use
reasonable commercial efforts to fill promptly (by full or partial shipment)
Reseller's Purchase Orders for Products in so far as practicable and consistent
with ANDA's the current lead-time schedule, shipping schedule, access to
supplies on acceptable terms and allocation of available products and capacity
among ANDA's customers. ANDA's minimum lead-time requirement is sixty (60)
business days.
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4.5 ANDA's Engineering Change Notice ("ECN") process will include
updating the Reseller with a list of all engineering changes to the Product.
4.6 If the severity of an ECN is such that ANDA reworks its inventory of
the Product then ANDA shall make available to Reseller, at no charge, the option
of reworking any Product inventory that the Reseller holds, provided that the
Reseller has held the inventory less than sixty (60) days. Should Reseller
choose to implement an ECN Reseller will notify ANDA in writing.
5. PRICE AND PAYMENT.
The Reseller's payment to ANDA for the Product and Plugs delivered in
accordance with this Agreement and the applicable Purchase Order shall be per
the price schedule attached hereto as Exhibit E, which price schedule reflects
the Reseller's price discount structure. The price schedule shall be subject to
adjustments negotiated on an as-needed basis; provided however, that any such
adjustments shall provide the Reseller with a proportionate discount structure.
Payment shall be made by wire transfer to ANDA's designated account or by check
in ANDA's name within 30 days of invoice.
6. APPOINTMENT OF REPRESENTATIVES.
Both ANDA and the Reseller shall appoint a program manager/product
manager whose task is to serve as the central coordinator with respect to each
party's obligations under this Agreement.
7. RIGHTS AND DUTIES OF ANDA.
7.1 ANDA shall be responsible for the timely and adequate provision and
sale of the Product, Plugs and the Services to Reseller in accordance with the
terms of this Reseller Agreement.
7.2 Subject to the terms and conditions of this Reseller Agreement, ANDA
hereby grants to Reseller a non-exclusive, non-transferable, non-sublicenseable
license to do any of the following, without resulting in any royalty or other
obligation owing to ANDA, during the term of this Reseller Agreement:
(i) reproduce or transmit in any form and by any means,
electronic or mechanical, including photocopying, recording, or by any
information storage and retrieval system, any documentation created and provided
by ANDA and which ANDA deems relevant and reasonably necessary for marketing,
selling and distributing the Product (provided such documentation is not
modified and ANDA's proprietary notices are not removed),
(ii) use any and all documentation created by ANDA for end users
which Reseller may require in creating its own manuals for the Product or
Applications, subject to ANDA's prior written approval in each instance,
(iii) use ANDA's name, trademarks, logos and other identifying
information in relevant marketing literature, advertising, promotions, customer
information and programs generated by Reseller that relate to the Product,
subject to ANDA's prior written approval in each instance,
(iv) demonstrate the Product to the Accounts for a limited time
(less than 30 days) provided that the Reseller is present, and train and certify
Reseller's program manager/product manager, who shall in turn be authorized to
train and certify Reseller's sales, marketing and customer support personnel.
(v) ANDA shall secure NEBS and [***]* testing as necessary to
enable sales of the Product in accounts.
* CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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7.3 ANDA shall co-brand the Product with the Reseller's name and model
and revision number consistent with the Reseller's standards, which branding
shall include, but not be limited to, a face plate and equipment documentation.
Such co-branding will identify each party's corporate and product identity in a
manner to be mutually agreed upon. Any alteration cost to the standard ANDA
Product configuration shall be borne by the Reseller.
8. DUTIES OF RESELLER.
8.1 Reseller shall use, and shall permit others to use, the Product only
in a manner permitted and intended by this Reseller Agreement. Any other use of
Product either by Reseller or permitted by Reseller shall constitute a material
breach.
8.2 Reseller shall keep ANDA informed as to any problems encountered
with the Products and any resolutions arrived at for those problems, and to
promptly communicate any and all modifications, design changes or improvements
of the Products suggested by any customer, employee or agent of Reseller.
8.3 Reseller shall NOT modify, disassemble, decompile, or otherwise
reverse engineer the Product or Plugs or otherwise attempt to learn the
structure, algorithms or ideas underlying the Product or Plugs.
8.4 Reseller shall NOT infringe on the copyright, patent or any other
proprietary right of any third party.
8.5 Reseller shall NOT distribute in electronic form any content which
violates any law or regulation or to which ANDA has raised any objection.
9. REPRESENTATIONS AND WARRANTIES.
9.1 ANDA represents and warrants to Reseller that, to the best of its
knowledge, the Product does not infringe on any U.S. copyright, patent or any
other proprietary right of any third party.
9.2 ANDA and the Reseller represent and warrant to each other that their
respective information systems and technology, inclusive of the Product (for
ANDA) and the Application (for Reseller), respectively, presently are Year 2000
compliant. This means that each party's information systems and technology, and
the Product and the Application, respectively, presently are able to accurately
process properly formatted date/time data, including, but not limited to,
calculating, comparing and sequencing, from, into and between the twentieth and
twenty-first centuries, and the years 1999 and 2000, and leap year calculations.
The foregoing Year 2000 warranty shall only apply if all products interacting
with the Products and Applications (for example, hardware, software, including
interface programs, operating systems, databases and database engines used with
the Licensed Products) are Year 2000 compliant and properly exchange date data
with the Products and/or Applications and does not apply to (i) Products or
Applications that are modified or altered by the Reseller or any third party;
(ii) Products or Applications that are otherwise operated in violation of this
Agreement or any applicable end user agreement or other than in accordance with
the end user documentation or (iii) failures which are caused by Reseller's use
of any software, hardware or products outside the subject matter of this
Reseller Agreement.
10. WARRANTY.
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10.1 Except as limited herein, ANDA represents and warrants to
Reseller's end users that the Product and the Plugs manufactured and distributed
by ANDA hereunder are free from any defect in workmanship or material and
substantially conform to the requirements set forth in Exhibit A and Exhibit B,
as they pertain to the Product and the Plugs specifically, under normal use and
care for a period of five (5) years from the date of delivery by ANDA. The
foregoing warranties extend to the Product and Plugs returned by the Reseller as
well as the Product and Plugs returned by ANDA's customers.
10.2 The foregoing five (5) year Product warranty is limited only to the
hardware parts of the Product with exception of the fan tray. The fan tray of
the Product shall have a one year warranty for any defect in workmanship or
material. ANDA will offer any support and maintenance for the software portion
of the Product to Reseller pursuant to the terms of Service Agreement set forth
in Exhibit F.
10.3 ANY LIABILITY OF ANDA WITH RESPECT TO A PRODUCT OR THE PERFORMANCE
THEREOF UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY WILL BE
LIMITED EXCLUSIVELY TO PRODUCT REPLACEMENT OR, IF REPLACEMENT IS INADEQUATE AS A
REMEDY OR, IN THE OPINION OF ANDA, IMPRACTICAL, TO REFUND OF THE LICENSE FEE.
SUCH REMEDIES WILL APPLY ONLY TO PRODUCTS RETURNED TO ANDA DURING THE WARRANTY
PERIOD. EXCEPT FOR THE FOREGOING, ALL PRODUCTS ARE PROVIDED "AS IS" WITHOUT
WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, AND THE STATED
EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF ANDA FOR
DAMAGES, INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL DAMAGES OCCURRING OUT OF
OR IN CONJUNCTION WITH THE USE OR PERFORMANCE OF SUCH PRODUCTS OR SPARE PARTS.
10.4 Products and Plugs that do not conform to the warranties herein
will, at ANDA's option, be repaired or replaced. All parts and labor costs for
repairs made under the warranties herein shall be borne by ANDA. All insurance
and freight costs to the point of repair shall be borne by Reseller; all
insurance and freight costs to return the Products and Plugs to Reseller shall
be borne by ANDA. If ANDA determines that it cannot or it is not practicable to
repair or replace the returned Products and Plugs, ANDA will refund the price of
the non conforming Products or Plugs. The remedies provided in this subsection
are the sole and exclusive remedies for breach of the warranties contained in
this Reseller Agreement.
11. CONFIDENTIALITY.
11.1 Each party shall each keep in confidence all products, software,
data, business or technical information, designs, know-how, programs and
intelligence, whether in machine readable or visually readable form, exchanged
under this Reseller Agreement, that is deemed confidential and proprietary to
the other party ("Confidential Information").
11.2 Except as expressly allowed in this Agreement, the receiving party
will hold in confidence and not use or disclose any Confidential Information of
the disclosing party and shall similarly bind its employees having access to the
Confidential Information in writing. Confidential Information shall not include
information that (a) is or has become readily publicly available without
restriction through no fault of the receiving party or its employees or agents;
or (b) is received without restriction from a third party lawfully in possession
of such information and lawfully empowered to disclose such information; or (c)
was rightfully in the possession of the receiving party without
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restriction prior to its disclosure by the other party; or (d) was independently
developed by employees or consultants of the receiving party without access to
such Confidential Information.
11.3 Except as expressly allowed in this Agreement, the receiving party
will hold in confidence and not use or disclose any Confidential Information of
the disclosing party and shall similarly bind its employees in writing.
11.4 Except as to potential investors or acquirers, or to the extent
that disclosure is required by applicable securities and other laws and
regulations, the Parties agree not to disclose either directly or indirectly, at
any time, to any third party, except to the Accounts, whether by way of press
release, announcement, or in any other manner without the prior written consent
of the other party, the existence, intent or terms of this Reseller Agreement,
in whole or in part. The parties plan to issue a joint press release with
respect to this Reseller Agreement.
12. INTELLECTUAL PROPERTY. No title or property rights, including all copyright
and other intellectual property rights of either party shall be assigned,
transferred, modified or otherwise effected as a result of any term or provision
of this Reseller Agreement.
13. INITIAL TERM AND TERMINATION.
13.1 The initial term of this Reseller Agreement ("Initial Term") shall
commence on the Effective Date and shall continue for a period [***]*. Either
party may terminate this Reseller Agreement during the Initial Term upon [***]*
written notice.
13.2 Except as provided for in 3.1 and except as otherwise provided for
in this Agreement, at the end of the Initial Term, this Reseller Agreement shall
automatically renew for successive annual periods until terminated by either
party upon [***]* written notice prior to the end of the current term.
13.3 Upon expiration or termination of this Reseller Agreement, all
rights and licenses of the parties herein shall cease except that Section10,
11,12,14,15, 18, 28 and any rights to payment already accrued shall survive
termination.
14. DEFAULT.
14.1 Reseller or ANDA shall be considered in default ("Default") on the
occasion of a voluntary or involuntary bankruptcy (and not dismissed within 120
days), liquidation where there are no successors in interest to the relevant
assets or business, assignment for the benefit of creditors or any admission in
writing of an inability to pay debts when due.
14.2 Within thirty (30) days of Default or material breach of the terms
of this Reseller Agreement by either party, written notice may be provided by
the defaulting party. A sixty (60) day period ("Cure Period") shall be granted
to correct the Default or breach. At the end of the Cure Period, if the Default
or breach has not been corrected, either party may terminate this Reseller
Agreement upon written notice.
14.3 Upon termination of this agreement for Default, ANDA shall grant to
Reseller a non-exclusive, non-transferable, non-sublicenseable license to
manufacture, maintain and support the Product and software for the Product so as
to and only to ensure an uninterrupted supply of the Product and to support
existing Reseller end users during the remaining term of this Agreement.
* CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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15. LIMITATION OF LIABILITY; INDEMNIFICATION.
15.1 EXCEPT AS PROVIDED HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER OR TO ANY USER OF THE PRODUCT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES) SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR
ANTICIPATED PROFITS OR LOST BUSINESS OR (COST OF PROCUREMENT OF SUBSTITUTE
GOODS). THIS LIMITATION DOES NOT APPLY TO DAMAGES THAT ARISE OUT OF RESELLER'S
UNAUTHORIZED MODIFICATION OF THE PRODUCT OR PLUGS, RESELLER'S BREACH OF THE
LICENSE RESTRICTIONS AND/OR BREACH OF CONFIDENTIALITY.
15.2 ANDA shall, at its option and own expense, defend or settle, any
claim, suit or proceeding brought against Reseller related to any claim of
infringement of any patent, copyright or other proprietary right of any third
party by the Products or Plugs, pursuant to the terms of this Agreement. ANDA
shall indemnify and hold Reseller harmless from and against any costs, expenses,
settlements or damages, including reasonable attorney fees, related to any such
claim of infringement, provided that Reseller (a) promptly notifies ANDA in
writing of the action; (b) permits ANDA full authority to defend or settle the
action; and (c) cooperates with, and provides all available information,
assistance and authority to, ANDA to defend or settle the action. ANDA shall not
be liable for any costs, expenses, damages or fees incurred by Reseller in
defending such action or claim, unless authorized by ANDA in advance and in
writing. The foregoing obligations of ANDA do not apply with respect to the
Products or Plugs or portions or components thereof (i) not supplied by ANDA ;
(ii) which are modified by Reseller, if the alleged infringement relates to such
modifications; (iii) combined with software or hardware products where the
alleged infringement relates to such combination, (iv) where Reseller continues
the allegedly infringing activity after being notified thereof or after being
informed and provided with modifications that would have avoided the alleged
infringement; or (v) where Reseller's use of the Products or Plugs is not
strictly in accordance with the purpose of this Reseller Agreement.
15.3 If a Product or Plug is, or in the opinion of ANDA is likely to
become, the subject of a claim, suit or proceeding of infringement, ANDA may in
its sole discretion (a) procure, at no cost to Reseller, the right to continue
using the affected Product or Plug; (b) replace or modify the Product or Plug to
render it non-infringing, or (c) if, in ANDA's reasonable opinion, neither (a)
nor (b) above are commercially feasible, terminate this Reseller Agreement and
refund the amounts paid by Reseller for such Products (as depreciated on a
straight-line basis over a period of 36 months).
16. FUTURE RELATIONSHIP.
16.1 The parties to this Reseller Agreement desire to explore
cooperating in the development of solutions for the service provider market.
Toward this mutually beneficial objective, each party agrees to the following:
(i) to meet with the other party at least once every three (3)
months after the Effective Date hereof to review the parties' respective
business and development schedules and the status of the Reseller Agreement, as
well as to discuss the potential of future joint development efforts,
(ii) to publicly support industry forums, consortia and
technologies that are concordant with both parties' respective solutions, and
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(iii) to use the other's name, trademarks, logos and
other identifying information in relevant marketing literature and programs,
subject to the other's prior written approval in each instance however, lack of
objection within 5 business days of request shall be deemed as approval
16.2 Reseller agrees to promptly supply ANDA with its requirements of
Reseller's SDSL/HDSL/HDSL-2 mini-module or simi-module ("Module") in order to
allow ANDA to perform the integration described in Section 16.3
16.3 ANDA intends to integrate the Module into the ANDA's UAP release 1
of the Product to provide native HDSL connectivity. ANDA may incorporate this
Module into an ANDA Plug which Reseller will then OEM from ANDA for sale to the
Accounts on terms to be mutually agreed upon. ANDA agrees to allow Reseller to
purchase the appropriate DSL Plug at a cost that is independent of the cost of
the Module. The intent of this arrangement is to allow Reseller to resell the
DSL Plug without having to double xxxx up the HDSL Plug. ANDA can charge actual
handling and integration cost for the plugs using the Module.
16.4 Notwithstanding the foregoing, the parties to this Reseller
Agreement are independent contractors. Neither party is an agent,
representative, or partner of the other party. Neither party shall have any
right, power or authority to enter into any agreement for or on behalf of, or
incur any obligation or liability of, or to otherwise bind, the other party.
This Reseller Agreement and the provisions of this Section 16 shall NOT be
interpreted or construed to create an association, joint venture or partnership
between the parties or to impose any partnership obligation or liability upon
either party.
16.5 Both ANDA and Reseller agree to support discussions for ANDA's
right to purchase components through Reseller or directly from Reseller's
third-part vendors at Reseller's discount.
16.6 Both ANDA and Reseller agree to discuss an assignment of a
manufacturing license for the Product to Reseller.
17. ASSIGNMENT. Neither party may assign (voluntarily, by operation of law or
otherwise) this Reseller Agreement or any right, interest or benefit under this
Reseller Agreement without the prior written consent of the other party;
however, either party may assign this Reseller Agreement to any entity that
acquires substantially all of its stock, assets, or business. Subject to the
foregoing, this Reseller Agreement shall be fully binding upon, inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns.
18. FORCE MAJEURE. Neither party shall be liable for, or be considered in breach
of or default under this Reseller Agreement on account of, any delay or failure
to perform as required by this Reseller Agreement as a result of any causes or
conditions which are beyond such party's reasonable control and which such party
is unable to overcome by the exercise of reasonable diligence. Such causes or
conditions may include war, riots, embargoes, strikes, acts of third parties
including telephone or other utilities, or other concealed acts of workmen,
casualties, accidents or other occurrences beyond such party's control.
19. NOTICE. Any notice, approval, request, authorization, direction or other
communication under this Reseller Agreement shall be given in writing and shall
be deemed to have been delivered and given for all purposes (i) on the delivery
date if delivered personally to the party to whom the same is directed; or (ii)
two business days after the mailing date, whether or not actually received, if
sent by U.S. mail, return receipt requested, postage and charges prepaid, or any
other means of rapid mail delivery for which a receipt is available, to the
address of the party to whom the same is directed as set forth in this
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Reseller Agreement. Either party may change its address specified above by
giving the other party notice of such change in accordance with this Section 19.
20. RETURN OF INFORMATION. Upon the termination of this Reseller Agreement, each
party shall promptly return all information, documents, manuals and other
materials belonging to the other party except as otherwise provided in this
Reseller Agreement.
21. ENTIRE RESELLER AGREEMENT. This Reseller Agreement sets forth the entire
agreement between the parties, and supersede any and all proposals,
communications and prior agreements of the parties, either written or oral, with
respect to the transactions set forth herein. Neither party shall be bound by,
and each party specifically objects to, any term, condition or other provision
which is different from or in addition to the provisions of this Reseller
Agreement (whether or not it would materially alter this Reseller Agreement) and
which is proffered by the other party in any correspondence or other document,
unless the party to be bound thereby specifically agrees to such provision in
writing. Any different or additional terms of any related purchase order,
confirmation, or similar form even if signed by both parties after the date
hereof shall have no force or effect.
22. AMENDMENT. No change, amendment or modification of any provision of this
Reseller Agreement shall be valid unless set forth in a written instrument
signed by the party to be bound thereby.
23. FURTHER ASSURANCES. Each party shall take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by any other party for the implementation or continuing
performance of this Reseller Agreement.
24.. CONSTRUCTION. In the event that any provision of this Reseller Agreement
conflicts with the law under which this Reseller Agreement is to be construed or
if any such provision is held invalid by a court with jurisdiction over the
parties to this Reseller Agreement, such provision shall deemed to be restated
to reflect as nearly as possible the original intentions of the parties in
accordance with applicable law, and the remainder of this Reseller Agreement
shall remain in full force and effect.
25. APPLICABLE LAW; JURISDICTION. This Reseller Agreement shall be interpreted,
construed and enforced in all respects in accordance with the laws of the state
of California. Each party irrevocably consents to the exclusive jurisdiction of
the courts of the state of California and the federal courts situated in the
state of California, in connection with any action to enforce the provisions of
this Reseller Agreement, to recover damages or other relief for breach or
default under this Reseller Agreement, or otherwise arising under or by reason
of this Reseller Agreement.
26. DISPUTE RESOLUTION. The parties agree to cooperate with each other to
attempt to settle all disputes arising under this Agreement without resort to
mediation or arbitration. If the parties are unsuccessful in resolving a dispute
within forty-five (45) days from the date the parties begin attempting to
resolve it, either party may submit the dispute to mediation in Orange County,
California, before a mediator from the telecommunications industry. Neither
party may initiate arbitration proceedings until mediation is completed. All
disputes which the parties fail to resolve through cooperation and mediation
shall be finally resolved by binding arbitration in Orange County, California by
a single arbitrator in accordance with the Federal Arbitration Act, 9 USCA 1,
et. seq. in effect at the time. Each party shall bear its own costs of preparing
and presenting its case; the costs of arbitration, including the fees of the
arbitrators shall be shared equally by the parties unless the award provides
otherwise. Notwithstanding anything contained in this paragraph, each party
shall have the right to institute judicial proceedings against the other party
or anyone acting by, through or under such other party in order to enforce the
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instituting party's rights hereunder through reformation of contract, specific
performance, injunction or similar equitable relief.
27. EXPORT CONTROL. Reseller shall comply with the U.S. Foreign Corrupt
Practices Act and all applicable export laws, restrictions, and regulations of
any United States or foreign agency or authority and not export or re-export or
allow the export or re-export of any product, technology, or information it
obtains or learns pursuant to this Reseller Agreement in violation of such laws,
restrictions or regulations. Reseller shall obtain and bear all expenses
relating to any necessary licenses and/or exemptions with respect to the export
from the United States of the Products to any location in compliance with all
applicable laws and regulations prior to delivery thereof by Company.
28. COMPETITIVE PRODUCT. During the term of this Reseller Agreement, Reseller
shall not develop a product or solution that contains an ability to translate
[***]* and TR-08, ESF or D4 formats. Reseller shall provide ANDA six (6) months
advance notice of any such development plans; whereon ANDA may terminate this
Reseller Agreement at any time.
IN WITNESS WHEREOF, the parties hereto have executed this Reseller
Agreement as of the date first above written.
ANDA Networks, Inc. PairGain Technologies, Inc.
By: By:
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Name: Xxxxxxx Kenmore Name: Xxxx Xxxxxx
Title: President/CEO Title: President/CEO
Date: Date:
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Address:
ANDA, Inc. PairGain Technologies, Inc.
Attn: Attn:
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Phone: Phone:
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Fax: Fax:
------------------------------- --------------------------------
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EXHIBIT A
PRODUCT AND APPLICATION DEFINITION
"PRODUCT" SHALL MEAN BOTH RELEASE 0 AND RELEASE 1 OF ANDA'S NETWORKS UNIVERSAL
ACCESS PLATFORM ("UAP") AS MORE FULLY DESCRIBED BELOW:
RELEASE 0 PRODUCT:
Product release 0 is a [***]* concentrator to translate D4 and ESF to [***]*.
Release 0 consists at a minimum of the following features:
(1) Support [***]*
(2) [***]*
(3) Support for loop start and ground start POTS on hook transmission
(4) [***]* management via async RS-232 [***]*
(5) [***]* alarm reporting and [***]*
(6) Support of management objects [***]* and the [***]*
The following features are Optional Features for Release 0. ANDA retains the
option to include these Optional Features in Release O in the event (i) Reseller
pays for ANDA's non-reoccurring expenses associated with ANDA's development of
the Optional Features, or (ii) Reseller and ANDA mutually agree that the
business justifies ANDA's development of the Optional Features.
(1) Full DS0 cross-connect functionality that allows ISDN, DDS or
other specials to be groomed onto non-[***]* DS1 trunks
(2) Support of all management objects described in supplement 3 to
[***]* issue 1
Proper functioning of Release 0 operation shall be available to all Reseller
accounts which purchase the Product regardless of whether the account purchases
the optional Software Maintenance Agreement.
RELEASE 1 PRODUCT:
Product release 1 has all the functionality of release 0 with TR-08
(mode 1) to [***]* translation and additional frame relay transport
and concentration functionality.
"APPLICATION" SHALL BE DEFINED AS THE FOLLOWING FOR RELEASE 0 OF THE PRODUCT AND
RELEASE 1 OF THE PRODUCT, RESPECTIVELY:
RELEASE 0 APPLICATION:
The Release 0 Product defined above when implemented with
PG-Flex/Plus COT in TR-08 mode 1 to convert [***]* interface
technology to TR-08 signaling format as modified jointly by ANDA and
Reseller.
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RELEASE 1 APPLICATION:
The Release 1 Product [***]* with [***]* to
[***]* and [***]* via [***]*, [***]*, and
[***]* technology. The [***]* technology to a [***]* in a
[***]* will be using [***]* or [***]*.
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EXHIBIT B
PLUGS AND PERIPHERALS
UAP-988-2100 Shelf [***]*
UAP-988-2110 System board [***]*
UAP-988-2300 T1 Interface [***]*
UAP-988-2400 Channelized DS-3 Interface [***]*
UAP-988-2410 HDSL Interface [***]*
UAP-988-2420 Frame Relay Server [***]*
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EXHIBIT C
ACCOUNTS (EXCLUSIVE FOR YEAR-ONE)
Account Quota
------- -------
[***]* $[***]*
[***]* $[***]*
[***]* $[***]*
[***]* $[***]*
[***]* $[***]*
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EXHIBIT D:
SUPPORT TO ACCOUNTS
ANDA Networks shall use reasonable efforts to:
(i) Support the sales of the Application at the exclusive Accounts
(ii) Provide lab resources and staff to support integration
verification testing of the Product with the PD-Plus platform in
ANDA Networks' lab by April 1, 1999 (target date only).
(iii) Make available two release 0 version (identified on Exhibit A) of
the Product for Reseller's lab by April 15, 1999 (target date
only).
(iv) Provide reasonable support for the Products to Reseller sales and
customer service engineers, and train Reseller's Product Line
Manager pursuant to the Reseller Agreement.
(v) Develop, manufacture, sell and support systems and Plugs for the
Product in order to support delivery of Product by May 14th, 1999
(target date only).
(vi) Enter into limited mutual developments with Reseller to provide
greater offering of services, and integrate test and management
interfaces to customers of the ANDA Networks and Reseller combined
platform. This limited development is to be evaluated by the
revenue that is beneficial to both ANDA Networks and Reseller.
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EXHIBIT E
LISTING PRICING AND DISCOUNT SCHEDULE
The following table is the current pricing for the UAP release 0 parts:
PART NUMBER DESCRIPTION LIST PRICE
------------ --------------------------- ----------
UAP-988-2100 Shelf $[***]*
UAP-988-2110 System board $[***]*
UAP-988-2300 T1 Interface (12 port/card) $[***]*
The following table illustrates a typical half-filled configuration of
ANDA UAP release 0 under different discount structure:
PART NUMBER DESCRIPTION QTY RESELLER PRICE LIST PRICE
--------------------------------------------------------------------------------------------------------
[***]* HDT
UAP-988-2100 Shelf 1 $[***]* $[***]*
UAP-988-2110 System board 2 $[***]* $[***]*
UAP-988-2300 T1 Interface (12 port/card) 10 $[***]* $[***]*
TOTAL $[***]* $[***]*
UAP-988-2600 Maintenance Fee ([***]* of system 1 $[***]* $[***]*
per year)
--------------------------------------------
PRICE PER T1 $[***]*
PRICE PER DS0 $[***]*
--------------------------------------------
[***]* HDT
UAP-988-2100 Shelf 1 $[***]* $[***]*
UAP-988-2110 System board 2 $[***]* $[***]*
UAP-988-2300 T1 Interface (12 port/card) 10 $[***]* $[***]*
TOTAL $[***]* $[***]*
UAP-988-2600 Maintenance Fee ([***]* of system 1 $[***]* $[***]*
per year)
--------------------------------------------
PRICE PER T1 $[***]*
PRICE PER DS0 $[***]*
--------------------------------------------
[***]* HDT
UAP-988-2100 Shelf 1 $[***]* $[***]*
UAP-988-2110 System board 2 $[***]* $[***]*
UAP-988-2300 T1 Interface (12 port/card) 10 $[***]* $[***]*
TOTAL $[***]* $[***]*
UAP-988-2600 Maintenance Fee ([***]* of system 1 $[***]* $[***]*
per year)
--------------------------------------------
PRICE PER T1 $[***]*
PRICE PER DS0 $[***]*
--------------------------------------------
[***]* HDT
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UAP-988-2100 Shelf 1 $[***]* $[***]*
UAP-988-2110 System board 2 $[***]* $[***]*
UAP-988-2300 T1 Interface (12 port/card) 10 $[***]* $[***]*
TOTAL $[***]* $[***]*
UAP-988-2600 Maintenance Fee ([***]* of system 1 $[***]* $[***]*
per year)
--------------------------------------------
PRICE PER T1 $[***]*
PRICE PER DS0 $[***]*
--------------------------------------------
The table below is the Year-One Discount Schedule. Year-One is the first
12-months after the Effective Date of the Reseller Agreement. The volume
discount schedule has only been determined for Year-One. Prior to renewing the
second year of the term of the Agreement, the parties shall review the previous
years revenue and calculate the discount for the second year of the term.
Year-One Discount Schedule
YEARLY REVENUE DISCOUNT SCHEDULE
-------------- -----------------
[***]* $[***]*
[***]* $[***]*
[***]* $[***]*
[***]* $[***]*
Each quarter, the parties shall review the revenue received by ANDA for Product
ordered by Reseller. ANDA will make the discount adjustment in good faith by
setting a new Performance Quota for the upcoming quarter. The new Performance
Quota will be based on (i) [***]* and (ii) [***]*. The new Performance Quota
will be multiplied by four (4) to calculate the adjusted discount under the
Year-One schedule. The discount for the following quarter will be based on the
schedule above:
The percentage discount for the each quarter shall be determined by the
following quarterly performance guide. The first contract quarter will start at
[***]* discount schedule.
CONTRACT Q1 CONTRACT Q2 CONTRACT Q3 CONTRACT Q4 TOTAL DISCOUNT
------------------- ----------------- ----------------- ----------------- ----------------- --------
PERFORMANCE QUOTA $ PERFORMANCE QUOTA PERFORMANCE QUOTA PERFORMANCE QUOTA YEARLY
PERFORMANCE QUOTA
------------------- ----------------- ----------------- ----------------- ----------------- --------
$[***]* $[***]* $[***]* $[***]* $[***]* $[***]*
$[***]* $[***]* $[***]* $[***]* $[***]* $[***]*
$[***]* $[***]* $[***]* $[***]* $[***]* $[***]*
$[***]* $[***]* $[***]* $[***]* $[***]* $[***]*
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[***]*
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X-0
00
XXXXXXX X
SERVICE AGREEMENT
ANDA Product software release is identified and controlled by a release number
and a revision number: x.y where x is the release number and y is the periodic
revision number. ANDA Product software release procedure is designed to support
periodic maintenance revisions as well as application feature releases. The
periodic maintenance revisions are normally made available quarterly by ANDA to
enhance the application features. The following items if developed will be
considered enhanced application features for Release 0:
(1) [***]* support for specials such as ISDN, EBS,
(2) Value added management in the Application such as developments
providing network management access to the PairGain Flex(Plus) through
the Product.
(3) Value added channel testing and drop testing in the Application such
as developments providing testing access to the PairGain Flex(Plus)
through the Product.
(4) Any other developments targeted to [***]* applications or enhancements
to the Application in [***]*
Such enhanced application features will be available as Optional Features of the
Release 0 Application for end customers who subscribe to Software Maintenance
Service.
To receive the periodic maintenance software revisions, a customer has to
purchase an optional Software Maintenance Service Contract. The Software
Maintenance Service Contract will not cover a software package with a different
release number.
Customers do not have to purchase the Software Maintenance Agreement to receive
an upgrade that fixes a bug in the functionality of their purchased Release. The
end customer satisfaction over proper operation will distinguish bugs from
feature enhancements.
The UAP is a platform to support many different applications. Customer may
purchase an application software package to enable a specific application on the
UAP. When the application software package is available, customer may purchase
the package to upgrade the ANDA-UAP for a different application.
As a reseller to ANDA Networks, Reseller may resell both the Software
Maintenance Service Contract and Software Application Package at a mutually
agreed discount schedule.
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