EXHIBIT 10.19
OEM RESELLER AGREEMENT
BETWEEN THE COMPANY AND TELEDEX CORP.,
DATED AUGUST 25, 1999
OEM RESELLER AGREEMENT
This Original Equipment Manufacturer (OEM) Reseller Agreement (the
"Agreement") is made and entered into this 25th day of August, 1999
("Effective Date") by and between Elastic Networks, Inc. ("Elastic"), a
Delaware corporation having its principal offices at 0000 Xxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxxx, XX 00000-0000, and Teledex Corp. (the "OEM Reseller"),
a corporation of the State of California having an office and place of
business at 0000 Xxx Xxxxxxx Xxx., Xxx Xxxx, XX 00000.
1. DEFINITIONS
The following terms are used in this Agreement with the meanings
thereafter ascribed.
"Application" means high-speed access connectivity, Internet access and
associated services.
"Customers" mean Customers of Products procured by efforts of OEM
Reseller.
"ECE" or "Elastic Certified Engineer" means an individual certified by
Elastic in accordance with Elastic's then-current program who is responsible
for the configuration and initial administration of the Products and ongoing
customer support.
"ECI" or "Elastic Certified Installer" means an individual certified by
Elastic in accordance with Elastic's then-current program who is responsible
for the installation and initial configuration of the Products.
"Hardware" means any physical portion of a Product originally
manufactured by Elastic, including memory circuits and media upon which
Software may be delivered, but excluding Software.
"Elastic Marks" means the trademarks, service marks, trade names, logos,
and other descriptive devices of Elastic associated with the Products,
and includes, but is not limited to, the Elastic Technology Marks.
"Elastic Technology Marks" means the logos and specification and
descriptions of the marks appearing in Exhibit E.
"OEM Reseller Marks" means the trademarks, services marks, trade names,
logos, and other descriptive devices of OEM Reseller.
"Products" means the Hardware, Software, and other items described on
EXHIBIT A hereto as amended from time to time to reflect changes in the
Product offered by Elastic.
"Sell" means the sale of Hardware and other items and the right to grant
licenses to use the Software.
"Software" shall mean any set of one or more computer programs
originally created by Elastic which is composed of routines, subroutines,
concepts, processes, algorithms, formulas, ideas, or know how, and contained
on a magnetic tape, disc, semiconductor device or other memory device or
system memory consisting of (a) hard wired logic instructions which manipulate
data in the central processor and control input-output operations and errors
diagnostic and recovery routine, (b) instruction sequences in machine-readable
code that control call processing, or other operating function, peripheral
equipment or administration and maintenance functions and (c) associated
documentation used to describe, maintain and use the program.
"Territory" means the United States and Canada.
2. GRANT OF RIGHTS
2.1. PURCHASE RIGHTS. OEM Reseller may purchase the Hardware and be granted
a right to use the Software pursuant to the Software License set forth in
EXHIBIT B for its own use within the Territory and consistent with the
Application on the terms and conditions set forth herein provided that any
such Products so used by OEM Reseller are not resold.
2.2. DISTRIBUTION RIGHTS. Elastic hereby grants to OEM Reseller during the
Term a nonexclusive, nontransferable, and limited right to (a) market,
distribute, and Sell the Hardware; (b) transfer to Customers pursuant to the
Software License set forth in EXHIBIT B the right to use the Software; and
(c) use the Marks to describe the Products and relabel Elastic Hardware as
described in Section 10 hereof, only in the Territory and consistent with
Application.
2.3. RESERVATION OF RIGHTS. Elastic reserves all rights not expressly
granted herein. Except as set forth herein or as required by applicable law,
no express or implied right of any kind is granted to OEM Reseller or any
other party.
2.4. RESTRICTIONS. OEM Reseller shall not (a) Sell nor enter into any
agreement to Sell the Products outside the Territory, (b) ship, permit
deliver of, or transfer the Products, outside the Territory, or (c) permit
use of the Products in any manner that is inconsistent with the Application
without the prior written consent of Elastic. OEM Reseller shall not, and
shall not allow its employees, its representatives, Customers, or any
unauthorized party to, use, reproduce, disassemble, decompile, modify, or
reverse engineer, or create derivative works based upon, the Products.
3. TERM
3.1. TERM. Unless earlier terminated as provided in Section 12 below, this
Agreement shall be effective as of the Effective Date and shall remain in
effect for three (3) years following the Effective Date ("Initial Term"). The
Initial Term and any annual extension/s hereof ("Renewal Term") may be
collectively referred to as the "Term."
3.2. RENEWAL OF TERM. Unless earlier terminated as provided in Section 12
below, the Term of this Agreement shall continue for successive one (1) year
terms following the Initial Term.
4. ORDER PROCEDURE
4.1. ORDER SUBMISSION. OEM Reseller shall submit orders to Elastic in
accordance with procedures established by Elastic from time to time and
published on Elastic's web site ("Orders"). All Orders shall be submitted
pursuant to, and shall incorporate all of, the terms and conditions of this
Agreements. No Order shall be binding on Elastic unless
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accepted in writing or by delivery of Products in whole or partial
fulfillment thereof. Elastic shall have the right to cancel any Order
accepted by Elastic, or to delay the shipment of Products ordered if OEM
Reseller fails to meet payment schedules or other credit or financial
requirements established by Elastic. Elastic reserves the right to vary,
change, or limit the amount or duration of credit to be allowed to OEM
Reseller.
4.2. ORDER ACCEPTANCE. Elastic may accept or reject any Order for any
reason, including without limitation, an Order which requires a ship date
less than thirty (30) days after Elastic's receipt of same.
4.3. ORDER CANCELLATION. In the event OEM Reseller cancels all or any part
of an Order within thirty (30) days of the ship date, OEM Reseller shall pay
to Elastic a cancellation charge of ten percent (10%) of the Product price
for each Product that has been cancelled.
4.4. NON-BINDING FORECAST OF ORDERS. At or before the beginning of each
month during the Term, using the format in Exhibit E, OEM Reseller shall
provide to Elastic a written non-binding forecast of the quantities of each
Product anticipated to be purchased from Elastic for delivery in each of the
following twelve months ("Forecast"). If at any time OEM Reseller reasonably
anticipates any significant difference between the current Forecast and OEM
Reseller's actual requirement for Products, OEM Reseller will promptly notify
Elastic and Elastic will use its commercially reasonable efforts to meet OEM
Reseller's actual requirement upon such prompt notice.
5. SHIPMENT
5.1. SHIPMENT. Elastic shall ship to OEM Reseller the number of Products
specified in the Order for which Elastic has received a properly completed
Order that has been accepted by Elastic. The date when such Products are
shipped is hereinafter the "SHIPMENT DATE."
5.2. PARTIAL SHIPMENT. OEM Reseller shall be responsible for delivering
Products to Customers. The parties agree that (a) any failure to supply all
Products ordered in a single shipment of (b) any partial shipment or delivery
of an Order in installments shall not constitute a breach of this Agreement
or give rise to any remedy or right of or otherwise make Elastic liable or
responsible in any manner to OEM Reseller, any Customer, or any third party.
5.3. RISK OF LOSS AND TITLE. All Products or other products are shipped
F.O.B., point of shipment. All risk of loss or destruction or, or damage to,
the Products shall transfer from Elastic to OEM Reseller at the time the
Order is shipped on the Shipment Date. Title to the Hardware shall pass to
OEM Reseller upon OEM Reseller's final payment of the total Price.
6. PRICE; PAYMENT
6.1. PRICE. The price to be paid for the Products by OEM Reseller shall be
the amount in United States Dollars stated in EXHIBIT A hereto ("PRICE
LIST"). Elastic shall have the right at its sole discretion at any time to
change its Price List with sixty (60) days written notice to OEM Reseller,
and such new prices shall apply to all shipments made after such notice
period.
6.2. PAYMENT TERMS. Elastic will invoice OEM Reseller as of the date that a
full or partial shipment is made. Any invoiced amount shall be due and
payable thirty (30) days after the date of the invoice. If an invoice
contains one or more amounts that are disputed, as well as one or more
amounts that are not, OEM Reseller agrees it will not withhold any amount(s)
which are not disputed. Elastic reserves the right to refuse to grant credit
to OEM Reseller at any time and for any reason and to require cash on
delivery terms or cash with order terms.
6.3. TAXES AND DUTIES. Elastic shall have no responsibility for the
deduction, withholding, collection, or payment of any and all taxes and
duties of any kind, anywhere, arising out of this Agreement, including but
not limited to, sales, use, and import taxes, levies and charges by federal,
state or local government authorities in the Territory or elsewhere, except
for corporate taxes on the income of Elastic. The payment of any and all
taxes applicable to any transaction under this Agreement is the sole
responsibility of OEM Reseller. OEM Reseller shall complete and execute the
BLANKET SALES/USE TAX EXEMPTION CERTIFICATE included herein as EXHIBIT C upon
execution of this Agreement.
6.4. INTEREST. On any amounts not paid when due, Elastic shall be entitled
to receive interest at the rate of one and one-half percent (1-1/2%) per
month or the maximum legal amount, whichever is less. OEM Reseller shall
reimburse Elastic for all costs of collection, including reasonable
attorneys' fees and court costs. Time is of the essence in all payment terms.
6.5. REDUCTION OR SET-OFF. Amounts due to Elastic under this Agreement are
not subject to reduction or set-off without the prior written consent of
Elastic.
7. RESPONSIBILITIES
OEM Reseller shall:
(a) Use its best efforts to promote the sale of Products throughout the
Territory for the consistent with Application.
(b) Provide Customers Xxxxx 0, Xxxxx 0 and Installation Support using
either its own ECI and ECE or the services of another organization
certified by Elastic to provide such support.
(c) Not make representations concerning the Products that exceed or are
inconsistent with the marketing materials and technical specifications
provided to OEM Reseller by Elastic. OEM Reseller has no and shall exercise
no authority to bind Elastic to any undertaking or performance with respect
to the Products.
(d) Comply with all laws and regulations which may govern this Agreement
and the promotion and sale of the Products.
(e) Promptly notify Elastic of any and all known or suspected actual or
attempted infringements of (i) the Products, any component or peripheral
thereof, or (ii) intellectual property in the Products or the Marks.
(f) Immediately advise Elastic of any changes in standards,
specifications, and procedures with respect to the Products that may become
necessary from time to time during the term of this Agreement. Elastic
shall act in good
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faith to judge if modifications, revisions, and additions in and to the
production of the Products are necessary.
8. TRAINING
8.1. TRAINING SESSIONS. During the term of this Agreement, Elastic will offer
training classes in the installation, maintenance, Xxxxx 0 Xxxxxxx, xxx Xxxxx
0 Xxxxxxx ("XXXXXXXX"). Training will initially be conducted in Alpharetta,
Georgia at the principal offices of Elastic or at such other locations as may
be selected by Elastic. OEM Reseller shall be responsible for the cost of
Training and all expenses incurred by OEM Reseller and OEM Reseller's
employees incident to Training. Elastic's charges for training classes and
testing shall be posted from time to time on Elastic's web site.
8.2. TECHNICAL SUPPORT DESIGNEES. Within five (5) days after the date of
this Agreement, OEM Reseller shall designate one (1) or two (2) members of its
technical staff acceptable to Elastic to act as OEM Reseller's sole
representatives for contact with Elastic regarding Training and OEM
Reseller's Level 1 Support and Level 2 Support obligations ("TECHNICAL
SUPPORT DESIGNEES"). OEM Reseller's failure to designate and maintain at
least one (1) competent Technical Support Designee during the Term shall be
a material breach of this Agreement and shall entitle Elastic, at its sole
discretion, to terminate this Agreement in accordance with SECTION 12.1
hereof. The parties acknowledge that, on an occasional as-needed basis only,
a temporary Technical Support Designee may be substituted if neither
Technical Support Designee is available.
9. PRODUCT WARRANTY
9.1. LIMITED WARRANTY. Elastic warrants to OEM Reseller that the Hardware
and Software purchased from Elastic will, for a period of [one (1) year] after
the Shipment Date of the Hardware and Software to OEM Reseller (the "WARRANTY
PERIOD"), (1) be free from material defects and (2) conform in all material
respects to Elastic's published Product specifications in effect on the date
the Hardware and Software is shipped to OEM Reseller. The sole obligation of
Elastic under this warranty shall be to repair or replace (at the option of
Elastic) any Hardware and Software which contains a defect in material or
workmanship or which fails to conform in all material respects to such Product
specifications. Elastic shall have the right to confirm the existence of a
defect or nonconformity by testing the Hardware and Software. This limited
warranty does not apply to items normally consumed in operation, such as lamps
and fuses or to any defect that has been caused by OEM Reseller or Customers
and arises from mishandling, misuse, neglect, or improper testing or repair.
OEM Reseller agrees to comply with Elastic's then effective return
merchandise authorization procedures ("RMA PROCEDURES"). OTHER THAN AS
EXPRESSLY SET FORTH IN THIS SECTION 9.1, ELASTIC MAKES NO WARRANTIES WITH
RESPECT TO THE PRODUCTS TO CUSTOMER OR TO OEM RESELLER. THE WARRANTY IN THIS
SECTION 9.1 IS MADE EXPRESSLY IN LIEU OF ANY AND ALL EXPRESS, IMPLIED, OR
STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NONINFRINGEMENT, AND ALL SUCH OTHER WARRANTIES ARE HEREBY EXPRESSLY
DISCLAIMED.
9.2. DIAGNOSTICS AND SUPPORT.
(A) LEVEL 1 SUPPORT. OEM Reseller shall be responsible for providing or
purchasing Level 1 Support for each Customer. "Level 1 Support" means the
ability to: (1) provide general Product information to Customers; (2) provide
800 support desk technical support of Products to Customers TWENTY-FOUR (24)
HOURS PER DAY, SEVEN (7) DAYS PER WEEK; (3) provide general Product
configuration and installation support to Customers; (4) record and track
reported Customer problems relating to Product issues and actions taken to
correct such problems; (5) distribute software upgrades, patches, and new
feature releases to Customers as appropriate; (6) escalate problems that
cannot be resolved by Xxxxx 0 Support to Level 2 Support; and (7) provide
Elastic with a monthly summary of reported Customer problems and related
issues, and resolution status reports in a form provided by Elastic. Elastic
agrees to provide reasonable assistance by fax, email, and telephone to OEM
Reseller's Technical Personnel during Elastic's normal business hours of
8:30 a.m. - 5:00 p.m. Eastern Standard Time, excluding weekends and Elastic's
holidays.
(B) LEVEL 2 SUPPORT. OEM Reseller shall be responsible for providing or
purchasing Level 2 Support for each Customer. "LEVEL 2 SUPPORT" means the
ability to: (1) provide assistance to Customers to resolve misconfigurations
of Products; (2) isolate and simulate complex configurations of Customer's
networks; (3) identify and isolate subsystem faults; (4) perform root cause
analysis; (5) provide on-site support as may be required by a Customer; (6)
simulate Product problems in a lab facility to facilitate problem resolution
and provide Elastic with sufficient information and the steps to reproduce
the problem in its lab facility; (7) escalate problems that cannot be
resolved under Level 2 Support to Level 3 Support; and (8) provide remote
modem access to Customer site for Elastic. Elastic agrees to provide
reasonable assistance by fax, email, and telephone to OEM Reseller's
Technical Personnel during Elastics' normal business hours of 8:30 a.m. - 5:00
p.m. Eastern Standard Time, excluding weekends and Elastic's holidays.
(c) LEVEL 3 SUPPORT. At OEM Reseller's request, Elastic shall provide Level 3
Support to OEM Reseller for Products. "LEVEL 3 SUPPORT" means the ability to
resolve Product problems and bugs that cannot be prevented, diagnosed, or
corrected by Level 1 Support or Level 2 Support and are not related to
installation, configuration, integration, or unintended usage. If Elastic
determines that OEM Reseller's request for Level 3 support should not be
included in Level 3 Support, OEM Reseller shall pay Elastic for all labor at
Elastic's Technical Support Rate as listed in the Exhibit A Price List and as
amended from time to time upon 60 days written notice to OEM Reseller and
reimburse Elastic for all material and travel expenses.
9.3. SOFTWARE SUPPORT. Elastic shall make available to OEM Reseller
Maintenance Releases via Elastic's web site for downloading. Elastic shall
support each Major Release for "n"-2 Software releases ("SUPPORTED RELEASE"),
where "n" is the Major Software Release currently available. Elastic, in
meeting
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any support obligations may require a Customer to upgrade to a Supported
Release before Elastic is required to provide such support. Any Software that
is not within "n"-2 Software releases must be upgraded to Elastic'
then-current Major Release to continue to be eligible for support by Elastic.
If OEM Reseller or a Customer chooses not to remain within "n"-2 Major
Releases of the currently available Software, then Elastic may choose to
discontinue service support for such release. "MAJOR RELEASE" shall mean a
release of Software that shall be designated by Elastic as a change in the
ones digit of the Software version number [(x).x]. "MAINTENANCE RELEASE"
shall mean an incremental release of Software by Elastic that repairs
post-production Software bugs, and may provide additional Software features.
Maintenance Releases shall be designated by Elastic as a change in the tenths
digit(s) of the Software version number [x.(x)].
9.4. ELASTIC EXTENDED WARRANTY AND MAINTENANCE PROGRAM. Elastic shall
offer an optional Elastic Extended Warranty and Maintenance Program ("EWMP")
for Hardware and Software. EWMP is offered on a per-Order basis so that it
applies to all Hardware and/or all Software purchased on a particular Order.
Annual fees and program provisions are as follows:
HARDWARE: Annual fee is 3% of the total per-Order Hardware price for
each year of EWMP desired. EWMP extends the standard SECTION 9.1 Warranty
Period for up to two additional years. The first year of EWMP may be
purchased on the original Order or at any time prior to expiration of the
standard Warranty Period. The second year of EWMP may be purchased on the
original order or at any time prior to the expiration of either the
standard Warranty Period or prior to the expiration of first-year EWMP if
this option was selected.
SOFTWARE: Annual fee is 12% of the total per-Order Software price for
each year of EWMP desired. For Software, EWMP extends the standard
SECTION 9.1 Warranty Period AND entitles OEM Reseller to receive the
latest Major Releases at no additional cost. The first year of EWMP may
be purchased on the original Order or at any time prior the expiration of
the standard Warranty Period. Additional years of EWMP may be purchased
at any time prior to expiration of the then-current year of EWMP. Elastic
may choose to discontinue Software EWMP if: 1.) OEM Reseller or its
Customer chooses not to remain within Supported Releases of the currently
available Software; and/or 2.) OEM Reseller or its Customer chooses not
to obtain upgraded Hardware required to run such Supported Releases.
At Elastic's request, OEM Reseller agrees to provide information and
documentation deemed sufficient by Elastic to determine the validity of any
warranty claims or issuance by OEM Reseller of Major Releases to Customers
under EWMP. Such information and documentation may include, but is not
limited to, copies of Customer receipts or other documents showing that EWMP
fees were paid and identifying the Products by name, quantity and serial
number to which EWMP applies. Elastic may refuse EWMP warrant claims and
prohibit OEM Reseller from issuing Major Releases under EWMP if OEM Reseller
refuses to supply such information and documentation upon request by Elastic.
9.5. SERVICES NOT PROVIDED UNDER LIMITED WARRANTY OR EWMP. Neither the
Section 9.1 Limited Warranty nor enrollment in EWMP automatically entitle OEM
Reseller to receive the following: releases of or updates to Software not
included on Orders for which Software EWMP was purchased; customization of,
configuration of, or labor to install Products; on-site Product support;
support or replacement of Product that is altered, modified, mishandled,
destroyed, or damaged by natural causes or damaged during unauthorized use;
Services to resolve problems resulting from OEM Reseller's actions or causes
beyond Elastic's control; Services for non-Elastic software installed on any
Product; or Hardware upgrades required to run new or updated software. If OEM
Reseller requests Elastic to perform on-site diagnostic and remedial
maintenance, excluding when necessary under Level 3 Support escalations, OEM
Reseller shall pay Elastic for all labor cost at Elastic's Technical Support
Rate as listed in the Exhibit A Price List and as amended from time to time
upon 60 days written notice to OEM Reseller and reimburse Elastic for all
material and travel expenses.
9.6. LIMITATION OF LIABILITY. In no event will Elastic, its subsidiaries,
its associated companies, or its licensors be liable to OEM Reseller under
this Agreement or otherwise, or to any Customer regardless of the form of
claim or action, in an aggregate amount that exceeds the total Price paid to
Elastic in respect of the Products giving rise to the claim or action
purchased pursuant to this Agreement. In no event will Elastic, its
subsidiaries, its associated companies, or its licensors be liable to OEM
Reseller or any third party for special, consequential, exemplary,
incidental, or indirect damages or costs (including legal fees and expenses)
or loss of goodwill or profit in connection with the supply, use or
performance of or inability to use the Products or any services provided
hereunder, or in connection with any claim arising from this Agreement, even
if Elastic, its subsidiaries, its associated companies, or its licensors have
been advised of the possibility of such damages or costs. EXCEPT AS PROVIDED
IN THIS SECTION 9, IN NO EVENT WILL ELASTIC, ITS SUCCESSORS OR ASSIGNS, ITS
SUBSIDIARIES, OR ITS AFFILIATES BE LIABLE TO OEM RESELLER OR ANY THIRD PARTY
IN WARRANTY, CONTRACT, NEGLIGENCE, STRICT TORT OR OTHERWISE, REGARDING ANY
DEFECTS IN THE DESIGN, DEVELOPMENT, PRODUCTION, OR PERFORMANCE OF THE
PRODUCTS UNDER THIS AGREEMENT OR OTHERWISE. No action arising out of this
Agreement, regardless of form, may be brought by either party or any other
third party more than two (2) years after the date the cause of action has
accrued.
9.7. PROHIBITIONS ON USE. The Products are intended for connection to the
room telephone wiring and to the "subscriber" side of the Federal
Communications Commission ("FCC") Part 68 Registered telephone services
switch (the PABX). In no event shall OEM Reseller or Customers directly
connect the Products to the telephone company central office wiring which
would require Registration as "Terminal Equipment" pursuant to 47 Code of
Federal Regulations Part 68 of the FCC Rules.
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10. TRADEMARKS
10.1. OWNERSHIP. OEM Reseller acknowledges that Elastic is the owner of all
right, title, and interest in and to the Elastic Marks. OEM Reseller
covenants not to file or prepare any application for registration of any of
the Elastic Marks without the prior approval and direction of Elastic. OEM
Reseller agrees not to adopt, use, file for registration, or register any
trademark, service xxxx, or tradename (with respect to the Elastic Marks or
otherwise) without the prior written consent of Elastic.
ELASTIC ACKNOWLEDGES THAT OEM RESELLER IS THE OWNER OF ALL RIGHT, TITLE, AND
INTEREST IN AND TO THE OEM RESELLER MARKS. ELASTIC COVENANTS NOT TO FILE OR
PREPARE ANY APPLICATION FOR REGISTRATION OF ANY OF THE OEM RESELLER MARKS
WITHOUT THE PRIOR APPROVAL AND DIRECTION OF OEM RESELLER.
10.2. NO IMPAIRMENT. OEM Reseller agrees not to commit any acts, directly
or indirectly, which may contest, dispute, or otherwise impair the rights,
title, or interest of Elastic in or to the Elastic Marks. OEM Reseller agrees
not to claim or assert any rights, title, or interest in or to the Elastic
Marks in any way.
10.3. USE OF MARKS. OEM Reseller will not adopt for use any Elastic Marks
in any manner whatsoever, other than as may be specifically authorized in
this Agreement. OEM Reseller shall use the Elastic Marks in conjunction with
OEM Reseller Marks only as approved in writing by Elastic Networks, and not
with any other trademarks, trade names, service marks, logos, or other
similar designations without Elastic's prior written approval. Elastic shall
supply to OEM Reseller its set of Elastic Technology Marks for such approved
use on Elastic Hardware by OEM Reseller in conjunction with OEM Reseller
Marks. The parties agree that all use by OEM Reseller of the Elastic Marks
shall be in such a manner as to inure at all times to the benefit of Elastic,
and shall not in any manner create the impression that the Elastic Marks
belong to and are owned by OEM Reseller or any other party. OEM Reseller shall
not modify, delete, remove, alter, cover, or obscure the Elastic Marks or the
copyright or other proprietary notices placed on or embedded in the Products,
documentation, or any related materials, whether obtained from Elastic or
otherwise.
10.4. MARKETING MATERIALS. OEM Reseller shall include the Elastic
Technology Marks in any literature, promotional materials, or advertising
which it produces or distributes concerning the Products. OEM Reseller shall
provide to Elastic samples of all literature, promotional materials, and
advertising material which contains the Elastic Marks, for review and
approval by Elastic prior to first use. OEM Reseller will not use any such
Elastic Marks other than directly with respect to the promotion and sale of
the Products, and shall use such Elastic Marks in accordance with applicable
law.
10.5. OTHER PRODUCTS AND SERVICES. If OEM Reseller offers any other
products or services in connection with the Products, any display or other
use of the Elastic Marks must conform the standards set forth herein. All
such combinations with the Elastic Marks must be approved in writing by
Elastic prior to actual use by OEM Reseller, and OEM Reseller shall
cooperate with Elastic in monitoring the nature and quality of OEM Reseller's
use of the Elastic Marks with such products and services.
10.6. MARKS OF OEM RESELLER. OEM Reseller may include its own trademarks,
trade names, service marks, logos and other similar designations in
connection with the sale of the Products; provided, however, all such
combinations with the Elastic Marks require Elastic's prior written approval.
11. CONFIDENTIALITY AND OWNERSHIP
11.1. PROPRIETARY INFORMATION. Each party may disclose to the other party
certain Trade Secrets and Proprietary Information of such party or its
associated companies, suppliers, or customers. For purposes of this
Agreement, "TRADE SECRETS" means information which: (a) derives economic
value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use; and (b) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy.
"PROPRIETARY INFORMATION" means information, other than Trade Secrets, that
is of value to its owner and is treated as confidential, including but not
limited to the terms and conditions of this Agreement. "OWNER" refers to the
party disclosing Proprietary Information hereunder, whether such party is
Elastic or OEM Reseller and whether such disclosure is directly from Owner or
through Owner's employees or agents and "RECIPIENT" refers to the party
receiving any Proprietary Information hereunder, whether such party is
Elastic or OEM Reseller and whether such disclosure was received directly or
through Recipient's employees or agents.
11.2. CONFIDENTIALITY. Recipient agrees to hold Proprietary Information
disclosed by Owner in strictest confidence and not to, directly or
indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal,
report, publish, disclose, cause to be disclosed, or otherwise transfer such
Proprietary Information to any third party, or utilize such Proprietary
Information for any purpose whatsoever other than as expressly contemplated
by this Agreement. With regard to the Trade Secrets, this obligation shall
continue for so long as such information constitutes a trade secret under
applicable law. With regard to the Proprietary Information, this obligation
shall continue for the Term and for a period of five (5) years thereafter.
The foregoing obligations shall not apply if and to the extent that Recipient
establishes that the information communicated was:
(a) Already known to Recipient, without obligations to keep such
information confidential, at the time of Recipient's receipt from Owner,
as evidenced by documents in the possession of Recipient prepared or
received prior to disclosure of such information;
(b) Received by Recipient in good faith from a third party lawfully
in possession thereof and having no obligation to keep such information
confidential; or
(c) Publicly known at the time of Recipient's receipt from Owner or
has become publicly known other than by a breach of this Agreement.
11.3. OWNERSHIP. OEM Reseller acknowledges and agrees that Elastic is the
sole owner and shall retain all right, title, and interest in and to the
Products and its Proprietary Information and all localizations,
modifications, improvements, and derivative works, and related written matter
and all copies and portions thereof, including but not limited to all
worldwide
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patents, patent applications, copyright, trademarks, trade secrets and other
intellectual property rights and interests. OEM Reseller agrees that, except
for the limited license granted under Section 2, it shall not assert any
right, title, or interest therein.
12. TERMINATION
12.1 TERMINATION. Either party may terminate this Agreement prior to the
expiration of the Initial Term or any Renewal Term, upon ninety (90) days
prior written notice to the other. Elastic may terminate this Agreement upon
the occurrence of any of the following events: (a) OEM Reseller shall not pay
when due any sum owed hereunder and such non-payment continues for more than
fifteen (15) days after demand by Elastic, (b) OEM Reseller shall breach or
fail to perform any provision of the CONFIDENTIAL DISCLOSURE provisions of
this Agreement, (c) OEM Reseller shall breach or fail to perform any other
provisions of this Agreement and the same is not cured within forty-five (45)
days after notice of such breach or failure has been given to OEM Reseller,
or (d) OEM Reseller shall become insolvent or shall make an assignment for
the benefit of its creditors or there shall be filed by or against OEM
Reseller any bankruptcy, receivership, reorganization, or other like
proceeding under any present or future debtor relief law or law relating to
financial institutions. Elastics' right to terminate this Agreement shall be
exercised by a written notice to OEM Reseller; and the termination of this
Agreement shall be effective immediately upon the giving of such notice. Any
termination of this Agreement shall be in addition to, and not in lieu of,
any other rights or remedies available to Elastic at law or in equity, and
all such rights and remedies shall be cumulative.
12.2. OBLIGATIONS UPON TERMINATION. Upon the expiration or termination of
this Agreement for any reason: (a) OEM Reseller shall immediately return to
Elastic all Elastic property, including but not limited to Proprietary
information of Elastic; and (b) all invoices and any other moneys due to
Elastic by OEM Reseller shall remain due and payable in accordance with the
terms hereof.
12.3. SURVIVAL OF TERMS. Upon termination or expiration of this Agreement (a)
all provisions which by their nature and context are intended to survive
termination of this Agreement, including without limitation SECTIONS 2.4,
6.3, 9, 10, 11, AND 12.4, Elastic will hereafter stand wholly freed and
discharged, and OEM Reseller hereby expressly releases and discharges Elastic
of and from any and all obligations or liability whatsoever, whether arising
hereunder or from, or in connection with, any manner or thing relating to, or
in any manner connected with, the subject matter of this Agreement. The
foregoing right of termination and the additional right of nonrenewal at the
end of this term are absolute, and neither Elastic nor OEM Reseller will be
liable to the other because of the termination or nonrenewal hereof for
compensation, reimbursement, or damages on account of expenditures,
investments, leases or commitments in connection with the business or good
will of Elastic or OEM Reseller, or for any other reason whatsoever. OEM
Reseller will not be relieved, however, of any obligations for unpaid
balances for Products shipped prior to termination or expiration. The
termination of this Agreement will operate as a cancellation, as of the date
thereof, of all orders which have not been shipped by Elastic to OEM
Reseller, thereafter, neither party will be under any obligation to the other
with respect to orders so canceled.
12.4. INDEMNIFICATION. In addition to any other obligations of indemnity
provided in this Agreement, OEM Reseller agrees to indemnify, defend, and
hold harmless Elastic, its affiliates, and their directors, officers,
shareholders, employees and agents from and against any claims, liabilities,
losses, damages, causes of action, or injuries, together with all costs and
expenses, including reasonable attorneys' fees, arising out of or resulting
from: (a) any actions or omissions on the part of OEM Reseller in
distributing or marketing the Products; (b) any statements, claims,
representations or warranties made by OEM Reseller relating to the Products
other than as authorized by Elastic in writing or made in Elastics' own
writings; (c) the infringement or claim thereof of any patent, copyright,
trademark, service xxxx, tradename, trade secret, proprietary and
confidential information right, or any other property right of a third party
arising from the use by OEM Reseller of any symbol, insignia, name or
identifying characteristic identifying the Products other than a Xxxx; (d)
OEM Reseller's failure to comply fully with all the obligations set forth in
this Agreement; and (e) any failure on OEM Reseller's part to pay any taxes,
duties or assessments due.
MISCELLANEOUS
13.1. Elastic Generated Screens ("EGS") are graphical-user-interface pages
that originate in Elastic Software and appear on the screens of users when
Elastic Software is utilized including without limitation, initial log-in
pages and maintenance screens. EGS may contain Marks, which shall not be
removed, altered or repositioned without prior written permission from
Elastic. EGS may not be altered in any way, except as allowed by Elastic
product documentation or other prior written approval from Elastic. Elastic
will specify the guidelines and restrictions under which such changes may be
made, including specification of which screens or portions of screens may be
changed. Elastic reserves the right to withdraw approval for changes to EGS
if Elastic determines its specified guidelines and restrictions are not
followed.
13.2. ENTIRE AGREEMENT. This Agreement and its Exhibits represent the entire
understanding between the parties hereto and supersede all other written or
oral agreements heretofore made by or on behalf of Elastic or OEM Reseller,
and may be changed only by agreements in writing signed by the authorized
representatives of the parties. All future Orders from OEM Reseller to
Elastic shall be governed by the terms and conditions referenced herein and
shall become effective upon acceptance by an authorized Elastic officer.
Acknowledgment by Elastic of a OEM Reseller's or Customer's Order shall not
constitute acceptance of any additional or different terms and conditions
entered thereon.
13.3. FORCE MAJEURE. Except for obligations of confidentiality and payment,
neither party shall be in default under this Agreement if such default
arises, directly or indirectly, out of causes reasonably beyond the direct
control or foreseeability of such party, including without limitation default
by subcontractors or suppliers, acts of God or of the
PROPRIETARY & CONFIDENTIAL
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OEM Reseller Agreement Xx. Xxxxxxx000000
public enemy, USA or foreign governmental acts in either a sovereign or
contractual capacity, labor, fire, flood, epidemic, restrictions, strikes,
and/or freight embargoes.
13.4. GOVERNING LAW. This Agreement has been made, executed and delivered in
the State of Georgia, USA in which state the offices of Elastic are located.
Accordingly, the parties invoke the laws of the State of Georgia, without
regard to the principles of conflicts of law thereof, regarding the protection
of their rights and enforcement of their obligations hereunder and they
mutually stipulate and agree that this Agreement is in all respects
(including without limitation all matters of interpretation, validity,
performance and the consequences of breach) to be exclusively construed,
governed and enforced in accordance with the internal laws (excluding all
conflict of laws rules) of the State of Georgia and any applicable federal
laws of the United States of America, as from time to time amended and in
effect. In any civil action by either party relating to this Agreement, the
prevailing party shall recover from and be reimbursed by the other party for
all costs, reasonable attorneys' fees, and related expenses.
13.5. HEADINGS. The headings used herein are for reference and convenience
only and shall not enter into the interpretation hereof.
13.6. NOTICES. All notices required by or relating to the Agreement shall
be in writing and shall be sent to the parties to this Agreement at their
addresses set forth herein or to such other address as either party may
substitute by written notice to the other, delivered in person, or by
facsimile and confirmed by international air express courier. All notices
shall be deemed delivered upon the earlier of actual receipt of three (3)
days after deposit of such notice with the international air express courier,
properly addressed, postage prepaid.
13.7. RELATIONSHIP OF PARTIES. Nothing in this Agreement shall constitute or
be deemed to constitute a partnership between the parties hereto or OEM
Reseller as agent of Elastic or its affiliates, for any purpose whatsoever,
and OEM Reseller shall have no authority or power to bind Elastic or its
affiliates, or to contract in the name of or create a liability against
Elastic or its affiliates, in any way or for any purpose.
13.8. REMEDIES. OEM Reseller acknowledges and agrees that each provision in
this Agreement providing for the protection of copyrights, Proprietary
Information, and other proprietary rights is material to this Agreement. The
parties acknowledge that any threatened or actual breach of copyrights or
other proprietary rights by OEM Reseller shall constitute immediate,
irreparable harm to Elastic, for which money damages would be inadequate
compensation and for which Elastic shall be entitled to equitable remedies
awarded by a court of competent jurisdiction.
13.9. SEVERABILITY. If any provision herein is declared invalid or
unenforceable, the other provisions shall remain in full force and effect,
and this Agreement shall be deemed to be amended to replace, to the extent
legally possible, the rights and obligations contained in the invalid or
unenforceable provision. Invalidity or unenforceability of any provision is
not a failure of consideration hereunder.
13.9. TRANSFER AND ASSIGNMENT. The Agreement shall be binding upon and
shall inure to the benefit of the parties hereto, their heirs, personal
representatives, successors and assigns provided however, that neither this
Agreement, nor the obligations of OEM Reseller, may be transferred or assigned
without the prior written consent of Elastic.
13.10. WAIVER. Failure by either party to enforce at any time any of the
provisions of the Agreement shall not constitute a waiver of such provision
nor in any way affect the validity of the Agreement or any part thereof or
the right of the other party thereafter to enforce the provisions hereof.
Elastic retains the right to offset or retain any amount due or may become
due to OEM Reseller for payment of commissions against amounts due to Elastic
under this Agreement.
13.11. INSURANCE. OEM Reseller shall maintain, during the term of this
Agreement, all insurance and/or bonds required by any applicable law,
including but not limited to: (1) workers' compensation insurance as
prescribed by the laws of all states in which work pursuant to this Agreement
is performed; (2) employer's liability insurance with limits of at least $5
million per occurrence; (3) comprehensive general liability insurance
(including products liability coverage, contractual liability, advertising
liability, and comprehensive automobile liability coverage) with each
coverage having limits of at least $5 million per occurrence. Such insurance
shall name Elastic as an additional insured with a cross liability
endorsement. At the time this Agreement is executed OEM Reseller shall
furnish Elastic with a certificate of insurance evidencing that such
insurance is in effect. This certificate shall also state that Elastic shall
be notified by OEM Reseller's insurance carriers within thirty (30) days of
any cancellation, expiration, material change, or exhaustion of limits with
respect to the aforementioned insurance. OEM Reseller shall require any
subcontractors and agents involved with the performance of work pursuant to
this Agreement, to agree to maintain insurance coverage and to furnish
certificates or other adequate proof thereof to Elastic upon written request.
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OEM Reseller Agreement Xx. Xxxxxxx000000
Exhibits A, B, C and D are attached hereto and made a part hereof.
IN WITNESS WHEREOF, Elastic and OEM Reseller have each caused this
Agreement to be executed by their duly authorized representatives, effective
as of the day and year first written above.
ELASTIC NETWORKS, INC. TELEDEX CORPORATION
-------------------
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------ -----------------------
Xxxxxxx X. (Xxxx) Xxxxxxxx, Xxxxxx X. Xxxxxxx,
Vice President, Sales and Marketing President & CEO
----------------------------------- ------------------------
NAME & TITLE PRINTED NAME & TITLE PRINTED
UNTIL EXECUTED BY ELASTIC NETWORKS, INC. IN ALPHARETTA, GEORGIA, USA
THIS AGREEMENT CONSTITUTES AN OFFER, WHICH EXPIRES __________, 1999.
PROPRIETARY & CONFIDENTIAL
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