Exhibit 10.3
DISTRIBUTION AGREEMENT
This Agreement is entered into by and between Artisoft, Inc. (hereinafter
referred to as "Manufacturer"), and ScanSource, Inc., d/b/a Catalyst Telecom, 0
Xxxxx Xxxxx, Xxxxx X, Xxxxxxxxxx, Xxxxx Xxxxxxxx, 00000 (hereinafter referred to
as "Distributor"). This Agreement is effective upon the date of the last
signature (the "Effective Date").
PRELIMINARY STATEMENTS
WHEREAS, Distributor desires to purchase certain products from Manufacturer
from time to time; and
WHEREAS, Manufacturer desires to sell certain products to Distributor in
accordance with the terms and conditions set forth in this Agreement; and
WHEREAS, Manufacturer desires to appoint Distributor as its non-exclusive
distributor to market products within the territory defined herein;
NOW THEREFORE, in consideration of the mutual premises and covenants
contained herein, and other good and valuable consideration, Distributor and
Manufacturer hereby agree as follows:
AGREEMENT
1. TERM
1.1 TERM OF AGREEMENT. The term of this Agreement shall commence on the
Effective Date and, unless terminated by either party as set forth in this
Agreement, shall remain in full force and effect for a term of one (1)
year. The initial and any renewal term hereof shall be automatically
renewed on each anniversary of the Effective Date for an additional one (1)
year term unless either party gives the other party not less than 60 days
prior written notice of its intention not to renew.
2. DEFINITIONS
2.1 DEFINITIONS. The following definitions shall apply to this Agreement. -
(a) "APPLICABLE SPECIFICATION" shall mean the functional performance,
operational and compatibility characteristics of a Product agreed upon
in writing by the parties or, in the absence of an agreement, as
described in applicable Documentation.
(b) "CUSTOMERS" of Distributor shall include dealers, resellers, value
added resellers and other similar customers.
(c) "CUSTOMIZED PRODUCTS" shall mean any Products Manufacturer must
purchase or develop requiring Manufacturer to perform changes,
alterations, assembly, additions or special packaging prior to
shipping to Distributor.
(d) "DOCUMENTATION" shall mean warranties, user manuals, training
materials, product descriptions and specifications, technical manuals,
license agreements, supporting materials and other printed information
relating to the Products, whether distributed in print, electronic, or
video format, in effect as of the date of the applicable Purchase
Order.
(e) "END USERS" shall mean final retail purchasers or licensees who have
acquired Products for their own use and not for resale, remarketing or
redistribution.
(f) "INTELLECTUAL PROPERTY RIGHTS" shall mean the intangible legal rights
or interests evidenced by or embodied in (i) any idea, design,
concept, technique, invention, discovery, or improvement, regardless
of patentability, but including patents, patent applications, trade
secrets, and know-how; (ii) any work or authorship, regardless of
copyrightability, but including copyrights and any moral rights
recognized by law; and (iii) any other similar rights, in each case on
a worldwide basis.
(g) "PRODUCTS" shall mean, individually or collectively as appropriate,
licensed software, Documentation, developed products and hardware,
supplies, accessories, and other commodities related to any of the
foregoing, provided or to be provided by Manufacturer pursuant to this
Agreement. Such Products shall be listed in Manufacturer's current
Product and Price List which is attached hereto as SCHEDULE A.
(h) "SERVICES" means any warranty, maintenance, advertising, marketing or
technical support and any other services performed or to be performed
by Manufacturer.
(i) "STANDARD PRODUCTS" shall mean Products requiring no changes,
alterations, or additions, from those Products customarily offered by
Manufacturer.
(j) "TERRITORY" shall mean North America.
(k) "NFR" or "Not for Resale" package defines the Product sold to a
Reseller for internal use, evaluation and demonstration purposes and
may not be resold to an End-User.
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3. APPOINTMENT AND SCOPE
3.1 APPOINTMENT AS DISTRIBUTOR. During the term of this Agreement, Manufacturer
will provide to Distributor the Products in accordance with the terms and
conditions set forth in this Agreement. Distributor agrees to purchase
Manufacturer's Products only from Manufacturer directly. Manufacturer
hereby grants to Distributor the non-exclusive right to distribute products
during the term of this Agreement within the Territory. Manufacturer
reserves the right to appoint other authorized distributors. Distributor
will use its best efforts to promote sales of the Products. Distributor
agrees to conduct business in a manner that reflects favorably on the
Products and Manufacturer.
3.2 AUTHORIZED RESELLERS: Distributor will sell Manufacturer's products only to
Resellers that have been authorized by Manufacturer to resell
Manufacturer's products, who have purchased an NFR package from
Manufacturer and who have completed Manufacturer's training program, and
who have met any other criteria (upgrades, etc.) as required by
Manufacturer. Manufacturer will supply Distributor with a list of such
Authorized Resellers and will provide regular updates to that list.
4. PURCHASE ORDERS
4.1 PREPARATION OF PURCHASE ORDERS. From time to time, or at Distributor's
request, Manufacturer shall inform Distributor of Products available from
Manufacturer including, but not limited to, replacement Products, new
releases, enhancements or versions of existing Products.
4.2 ISSUANCE AND ACCEPTANCE OF PURCHASE ORDERS. Distributor may purchase and
Manufacturer shall sell to Distributor, Products as described below:
(a) Distributor may issue to Manufacturer one or more purchase orders
identifying the Products Distributor desires to purchase from
Manufacturer. Each Purchase Order may include other terms and
conditions which are consistent with the terms and conditions of this
Agreement or which are necessary to place a Purchase Order, such as
billing and shipping information, required delivery dates, delivery
location, and the purchase price or charges for Products, as per
Manufacturer's then existing price lists for the said products.
Purchase orders will be placed by Distributor by telephone or FAX and
followed by a written purchase order.
(b) Manufacturer shall indicate acceptance of Purchase Orders and/or
alterations to Purchase Orders by providing to Distributor a written
acceptance of such Purchase Order or alteration, or by commencing
performance pursuant to such Purchase Order or alteration.
Manufacturer shall accept a Purchase Order or alteration if (i) the
Purchase Order or alteration does not establish new or conflicting
terms and conditions from those set forth in this Agreement or as set
forth on the Price List referenced as Exhibit A attached hereto, or
(ii) the terms and conditions set forth in the Purchase Order or
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alteration have been separately agreed upon in writing by the parties.
Purchase Orders and altered Purchase Orders accepted in accordance
with this subsection are referred to herein as "Purchase Orders". A
Purchase Order shall be deemed accepted by Manufacturer unless
Manufacturer notifies Distributor within at least one day and not more
than three (3) days after receiving the Purchase Order and giving
specific reasons therefor.
(c) After the expiration of this Agreement, Manufacturer shall accept
Purchase Orders from Distributor for additional Products which
Distributor is then contractually obligated to furnish to its
customers and does not have in its inventory upon the termination of
this Agreement; provided Distributor notifies Manufacturer of any and
all such transactions in writing within thirty (30) days of the
termination date of this Agreement.
4.3 PURCHASE ORDER ALTERATION. Prior to shipment of Standard Products,
Manufacturer shall accept an alteration to a Purchase Order in order to:
(i) change a location for delivery, (ii) modify the quantity or type of
Products to be delivered or (iii) correct typographical or clerical errors.
Distributor may not alter any Purchase Order for Customized Products after
such time as the Products have been altered by Manufacturer.
4.4 CANCELLATION OF PURCHASE ORDERS. Except as otherwise agreed upon by the
parties, Distributor may cancel a Purchase Order for Standard Products
without charge or penalty with 7 day notice prior to shipment of the
Products specified in such Purchase Order. Distributor may not cancel any
Purchase Order for Customized or Special Order Products after such time as
the Products have been altered by Manufacturer.
4.5 EVALUATION PURCHASE ORDERS. Distributor may issue Purchase Orders in order
to evaluate newly developed Products by Manufacturer at no charge. After
evaluation, Distributor shall have the option to purchase the Products or
to return such products to Manufacturer at Distributor's expense within 30
days.
4.6 PRODUCT SHORTAGES. If for any reason Manufacturer's production is not on
schedule, Manufacturer agrees to allocate Product to Distributor's orders
based upon a percentage equal to the same percentage as Manufacturer's like
customers purchasing like volume.
5. DELIVERY AND ACCEPTANCE OF PRODUCTS
5.1 ACCEPTANCE OF PRODUCTS. Distributor shall inspect each shipment, and within
5 days after receipt of shipment accept each Product on the date (the
"Acceptance Date") when such Products and all necessary documentation are
delivered to Distributor in accordance with the Purchase Order and the
Product specifications.
5.2 DEFECTIVE PRODUCTS. In the event any products are received in a defective
condition or not in accordance with Manufacturer's published specifications
or the documentation relating to such Products not caused by the common
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carrier, Distributor may return the products for full credit. Products
shall be deemed defective if the Product, or any portion of the Product,
fails to operate properly when the system is booted or used as applicable.
Software defects being addressed by Manufacturer's ongoing engineering are
excluded from this provision. Distributor shall have the right to return
any such Products that are returned to Distributor from its customers or
End Users within thirty (30) days of the Products' initial delivery date to
the End User. In such event, Manufacturer shall issue a Return
Authorization to Distributor for all such defective Products; and
Distributor shall return defective products to Manufacturer for full
credit.
5.3 TRANSPORTATION OF PRODUCTS. Manufacturer shall deliver the Products to
Distributor at the location shown and on the delivery date set forth in the
applicable Purchase Order. Distributor shall have the right to select the
carrier and all charges for transportation of the Products shall be paid by
the Distributor.
5.4 TITLE AND RISK OF LOSS. Title to Products shall pass to Distributor at the
time that the Products are delivered to the carrier. All risk of loss or
damage to the Products shall be borne by Manufacturer until delivery of
such Products to the carrier.
5.5 IN WARRANTY PRODUCTS. Distributor shall provide warranty service to VAR on
behalf of Manufacturer. The reseller must provide proof-of-purchase to
validate the warranty and obtain an RMA from the Distributor, which must be
pre-approved by Manufacturer. Manufacturer will bear all costs to return
product back to the reseller. Distributor's obligation for warranty service
shall be limited to replacing in warranty defective product with a
replacement product at the manufacturers expense.
5.6 RESALE OF PRODUCTS BY DISTRIBUTOR. During the term of this Agreement,
Distributor may market, promote, distribute and resell Products to
customers of Distributor, in accordance with the following terms and
conditions:
(a) Manufacturer shall extend to each Customer of Distributor and each End
User the same warranties and indemnifications with respect to Products
purchased and resold hereunder as Manufacturer extends to Distributor
hereunder.
(b) Manufacturer shall extend to Distributor and each customer of
Distributor the same warranties and indemnifications with respect to
Products purchased and resold hereunder as Manufacturer extends to its
value-added resellers.
(c) The term of warranties and indemnities extended by Manufacturer to an
End User shall commence upon delivery of the Product to the End User.
(d) Manufacturer shall make available at no charge to Distributor
reasonable training, technical support and other services related to
the Products that are currently offered or that may be offered by
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Manufacturer (except as indicated in Schedule A (2a) attached).
Training shall be provided at either Distributor's facility with any
necessary hardware and software provided by Distributor, or at
Manufacturer's facility with necessary hardware and software provided
by Manufacturer. Manufacturer also agrees to provide Distributor with
telephone support at no charge during Manufacturer's normal business
hours.
(e) Distributor may refer to itself as Manufacturer's authorized
distributor of the Products and Distributor, in addition to "fair use"
of Manufacturer's trademarks and tradenames, may request written
permission from Manufacturer to use trademarks and trade names of
Manufacturer. Distributor recognizes Manufacturer may have rights
and/or ownership of certain trademarks, trade names and patents
associated with the Products. Distributor will act consistently with
such rights, and Distributor shall comply with any reasonable, written
guidelines when provided by Manufacturer relating to such trademark or
trade name usage. Distributor is not authorized and shall not be
required to instigate legal action on behalf of Manufacturer against
third parties for infringement. Distributor will notify Manufacturer
of any infringement if which Distributor has actual knowledge.
Distributor shall discontinue use of Manufacturer's trademarks or
trade names upon termination of this Agreement.
(f) Except for Televantage CTM Suite pre-installed on Intel Conveged
Communications Platform (ICCP), Distributor will not be authorized to
sell "NFR" (Not For Resale) packages to VARS or End Users.
5.7 INVENTORY ADJUSTMENT. Manufacturer agrees to accept, on a quarterly basis
commencing with the end of the first calendar quarter following the
Effective Date, a shipment of current nondiscontinued Products in factory
sealed cartons returned by Distributor for full credit, provided that
Distributor complies with each of the following conditions:
(a) Distributor obtains a Return Authorization from Manufacturer prior to
any such return;
(b) Distributor pays all return freight charges;
(c) Distributor places, or has in place, an offsetting order of equal or
greater value.
(d) Maximum return on any given quarter will be limited to 15% of the
prior quarter's purchases by Distributor from Manufacturer.
For purposes of determining whether Products are eligible for rotation
pursuant to this section, Products shall be deemed to be "Current
Nondiscontinued Products" if they are listed on Manufacturer's current
price sheet, or if Manufacturer announces the discontinuance of such
Products within the ninety (90) days preceding the claim for inventory
adjustment. Customized Products shall not be eligible for repurchase
pursuant to this section.
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In addition, Distributor shall have the right to return for full credit,
without limitation as to the dollar amount, all Products that become
obsolete or are removed from Manufacturer's current price list; provided
Distributor returns such Products within thirty (30) days after Distributor
receives notice that such Products are obsolete
For Products that are discontinued due to a new release, the discontinued
product may be returned provided a purchase order of equal or greater value
is placed for the most recent version.
Distributor shall be responsible for all shipping charges incurred in stock
rotation.
6. WARRANTIES, INDEMNITIES AND LIABILITIES
6.1 WARRANTY. Manufacturer warrants that:
(a) Manufacturer is the exclusive, legal owner of the Products and has
full power and authority to enter into this Agreement and to sell and
license any and all rights to said Products to Distributor and to
convey all other rights and licenses granted to Distributor under this
Agreement;
(b) The Products do not infringe upon the proprietary or Intellectual
Property Rights of any person;
(c) Manufacturer's warranties are contained in this Agreement and in the
applicable Documentation and such warranties extend to Distributor,
Customers and End Users.
6.2 INDEMNIFICATION. Manufacturer shall indemnify, defend and hold Distributor
harmless from and against any claim, loss, suit or damage, including
attorney's fees, asserted by any person or entity resulting directly or
indirectly from breach of any warranty or representation made by
Manufacturer in this Agreement or in the applicable Documentation. The
provisions of this Paragraph 6.2 shall survive the expiration or
termination of this Agreement.
6.3 LIMITATION OF LIABILITY. Neither party shall be liable to the other
pursuant to this Agreement for any amounts representing loss of profits,
loss of business, or indirect, consequential, or punitive damages of the
other party.
6.4 UNAUTHORIZED REPRESENTATIONS. Distributor shall have no authority to alter
or extend any of Manufacturer warranties contained or referred to in this
Agreement without prior written approval of Manufacturer.
6.5 DISCLAIMER OF WARRANTIES. Manufacturer has made expressed warranties in
this Agreement and in the Applicable Documentation. EXCEPT AS SET FORTH
THEREIN, MANUFACTURER DISCLAIMS ALL WARRANTIES WITH REGARD TO THE PRODUCTS.
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7. PAYMENT TO MANUFACTURER
7.1 CHARGES, PRICES AND FEES FOR PRODUCTS. Charges, prices, quantities and
discounts, if any, for Products shall be determined as set forth in
Manufacturer's Price List referenced in Exhibit A, or as otherwise agreed
upon by the parties, and may be confirmed at the time of order.
Manufacturer shall have the right to change prices from time to time, upon
written notice to Distributor not less than thirty (30) days prior to the
effective date of such change. All orders placed prior to the effective
date of the increase, for shipment within thirty (30) days after the
effective date, shall be at the old price.
7.2 PAYMENT. Except as otherwise set forth herein, any undisputed sum due to
Manufacturer pursuant to this Agreement shall be payable within net 30 days
after the invoice date, except with regard to the TeleVantage CTM Suite
Products per Schedule A attached, for which payment shall be due upon
shipment of the Products from the Distributor to the VAR/Reseller.
Manufacturer shall invoice Distributor no earlier than the applicable
shipping date for the Products covered by such invoice.
7.3 PRICE PROTECTION. Manufacturer shall grant to Distributor a retroactive
price credit for the full amount of any Manufacturer price decrease on all
Products on order, in transit and in Distributor's or Customer's inventory
on the effective date of such price decrease. Distributor shall supply to
Manufacturer, within thirty (30) days of a price decrease, an inventory
list specifying the number of units within such inventory which qualify for
the price decrease. Manufacturer may elect to audit such claims at its
expense. All orders scheduled for shipment or in transit to Distributor at
the time of notice of the price decrease shall be adjusted to the decreased
price.
7.4 MONTHLY REPORTS. Manufacturer shall, if requested, render monthly reports
to Distributor setting forth the separate Products, dollars invoiced for
each product, and total dollars invoiced to Distributor for the month, and
such other information as Distributor may reasonably request. Distributor
will provide weekly POS and Inventory Reports to Manufacturer in an
mutually agreed upon electronic format, including individual order details,
names of authorized resellers, product numbers, dates, etc.
7.5 FORECASTS. If requested, Distributor will submit to Manufacturer a
quarterly, non-binding forecast for the upcoming calendar quarter, fifteen
(15) days after completion of previous calendar quarter.
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8. TERMINATION
8.1 TERMINATION WITHOUT CAUSE. Either party may terminate this agreement, with
or without cause, upon giving the other party sixty (60) days prior written
notice.
8.2 TERMINATION FOR CAUSE. In the event that either party materially or
repeatedly defaults in their performance of any of its duties or
obligations set forth in this Agreement, and such default is not
substantially cured within thirty (30) days after written notice is given
to the defaulting party specifying the default, then the party not in
default may, by giving written notice thereof to the defaulting party,
terminate this Agreement or the applicable Purchase Order relating to such
default as of the date specified in such notice of termination.
8.3 TERMINATION FOR INSOLVENCY OR BANKRUPTCY. Either party may immediately
terminate this Agreement and any Purchase Order by giving written notice to
the other party in the event of (i) the liquidation or insolvency of the
other party, (ii) the appointment of a receiver or similar officer for the
other party, (iii) an assignment by the other party for the benefit of all
or substantially all of its creditors, (iv) entry by the other party into
an agreement for the composition, extension, or readjustment of all or
substantially all of its obligations, or (v) the filing of a meritorious
petition in bankruptcy by or against the other party under any bankruptcy
or debtors' law for its relief of reorganization.
8.4 TERMINATION FOR NON-PAYMENT. Manufacturer may terminate a Purchase Order,
or any portion thereof, terminate this Agreement, or suspend delivery of
any Products if Distributor fails to pay any undisputed amount due and such
failure continues for a period of thirty (30) days after the day payment is
due.
8.5 RIGHTS UPON TERMINATION. Termination of any Purchase Order or this
Agreement shall not affect Manufacturer's right to be paid for undisputed
invoices for Products already shipped. The termination of this Agreement
shall not affect any of Manufacturer's warranties, indemnifications or
obligations relating to returns, credits or any other matters set forth in
this Agreement that are to survive termination in order to carry out their
intended purpose, all of which shall survive this Agreement. Upon
termination of this Agreement, Distributor shall discontinue holding itself
out as a distributor of Manufacturer's Products. The expiration of the term
of this of this Agreement shall not affect the obligations of either party
to the other party pursuant to any Purchase Order previously forwarded to
Manufacturer.
8.6 INVENTORY REPURCHASE. Within thirty (30) days of the termination of this
Agreement for any reason, at the option of either Manufacturer or
Distributor, Distributor shall sell and Manufacturer shall repurchase, any
or all Products in transit or in Distributor's inventory, subject to the
following conditions:
(a) The price to be paid for the Products shall be at the Distributor's
net cost at time of purchase, less any price protection allowance.
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(b) All Products shall be in good merchantable condition.
(c) All Products shall be shipped to Manufacturer's designated facility,
freight prepaid.
(d) Distributor shall have the right to retain as much Products as are
necessary to fulfill its contractual obligations to sell such Products
to a Customer pursuant to an outstanding purchase order or other
contract.
(e) Credit for any returned Products shall first be applied to any
outstanding balance owed Manufacturer by Distributor, and any excess
credit shall be paid Distributor within 30 days of the date of such
Products as received by Manufacturer.
9. MISCELLANEOUS
9.1 BINDING NATURE, ASSIGNMENT, AND SUBCONTRACTING. This Agreement shall be
binding on the parties and their respective successors and assigns, but
neither party shall have the power to assign this Agreement without the
prior written consent of the other party.
9.2 COUNTERPARTS. This Agreement may be executed in several counterparts, all
of which taken together shall constitute one single agreement between the
parties.
9.3 HEADINGS. The section headings used in this Agreement are for reference and
convenience only and shall not enter into the interpretation hereof.
9.4 RELATIONSHIP OF PARTIES. Distributor is performing pursuant to this
Agreement only as an independent contractor. Distributor has the sole
obligation to supervise, manage, contract, direct, procure, perform or
cause to be performed its obligations set forth in this Agreement, except
as otherwise agreed upon by the parties. Nothing set forth in this
Agreement shall be construed to create the relationship of principal and
agent between Distributor and Manufacturer. Neither party shall act or
represent itself, directly or by implication, as an agent of the other
party or its affiliates or in any manner assume or create any obligation on
behalf of, or in the name of, the other party or its affiliates.
9.5 CONFIDENTIALITY. Each party acknowledges that in the course of performance
of its obligations pursuant to this Agreement, it may obtain certain
confidential and/or proprietary information. Each party hereby agrees that
all such information communicated to it by the other party, its affiliates,
or customers, whether before of after the Effective Date, shall be and was
received in strict confidence, shall be used only for purposes of this
Agreement, and shall not be disclosed without the prior written consent of
the other party, except as may be necessary by reason of legal, accounting
or regulatory requirements beyond either party's reasonable control. The
provisions of this Section shall survive the term or termination of this
Agreement for any reason.
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9.6 MEDIA RELEASES. Except for any announcement intended solely for internal
distribution, any disclosure required by legal, accounting or regulatory
requirements beyond the reasonable control of either party, and except for
catalogs, advertising and marketing materials customarily used by
Distributor in the normal course of business, all media releases, public
announcements or public disclosures relating to this Agreement or its
subject matter, or including the name of either party, shall be approved in
writing (within 48 hours of submission) by the other party prior to the
release thereof.
9.7 DISPUTE RESOLUTION. In the event of any disagreement regarding performance
under or interpretation of this Agreement, prior to the commencement of any
formal proceedings, the parties shall continue performance as set forth in
this Agreement and shall attempt in good faith to reach a negotiated
resolution by designating an officer or authorized representative of the
party to resolve the dispute.
9.8 ARBITRATION. Any claim or controversy arising out of or relating to this
Agreement, or the breach thereof, shall be resolved by final and binding
arbitration to be conducted in Greenville, South Carolina, by a panel of
three (3) arbitrators in accordance with and subject to the commercial
Arbitration rules of the American Arbitration Association (the "AAA") then
in effect. Each of such arbitrators shall be demonstrably experienced and
knowledgeable in matters pertaining to computer technology and technology
product distribution. The arbitrators shall have no power or authority to
add to or detract from the agreement of the parties or to award punitive,
exemplary, consequential, special, indirect or incidental damages.
Judgement upon the award rendered may be entered and enforced in any court
of competent jurisdiction. The fact that this Agreement provides for such
arbitration shall not impair the exercise of any termination rights under
this agreement.
9.9 COMPLIANCE WITH LAWS. In supplying the Products pursuant to this Agreement,
Distributor and Manufacturer shall comply with the requirements of all
applicable laws, ordinances and regulations of the United States or any
state, other country or other governmental entity as may be applicable.
9.10 NOTICES. Wherever one party is required or permitted to give notice to the
other pursuant to this Agreement, such notice shall be deemed given when
delivered in hand, or when sent by facsimile with receipt acknowledged by
the recipient, or when sent by Fed-ex or UPS overnight service, or when
mailed by registered or certified mail, return receipt requested, postage
prepaid, and addressed as follows:
IN THE CASE OF MANUFACTURER: IN THE CASE OF DISTRIBUTOR:
---------------------------- ---------------------------
Artisoft, Inc. ScanSource, Inc.
5 Cambridge Center 0 Xxxxx Xxxxx, Xxxxx X
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attn: Xxxx X'Xxxxxxx Attn: Xxxx Xxxx
Fax 000-000-0000 Fax: 000-000-0000
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Either party may from time to time change its address for notification
purposes by giving the other party written notice of the new address and
the date upon which it will become effective.
9.11 FORCE MAJEURE. If the performance of this Agreement, or any obligations
hereunder, is prevented, restricted, or interfered with by reason of fire
or other casualty or accidents; strikes or labor disputes; inability to
provide raw materials, power, or supplies; declarations of war or other
violence; any law, order, proclamation, regulation, ordinance, demand or
other requirement of any governmental authority; or any of the parties
hereto, the parties so affected, upon giving prompt notice to the other
party, will be excused from performance to the extent of the prevention,
restriction, or interference, provided that the party so affected uses its
best efforts to avoid or remove the causes of non-performance and continues
performance hereunder with the utmost dispatch whenever those causes are
removed.
9.12 SEVERABILITY. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under the
applicable law. In the event that any provision(s) contained in this
Agreement is held to be unenforceable, this Agreement shall be construed
without such provision(s).
9.13 WAIVER. No delay or omission by either party to exercise any right or power
shall impair any such right or power or be construed to be a waiver
thereof. A waiver by either of the parties of any covenants, conditions or
agreements to be performed by the other or any breach thereof shall not be
construed to be a waiver of any succeeding breach thereof or of any other
covenant, condition or agreement herein contained. No change, waiver, or
discharge hereof shall be valid unless presented in writing to all
interested parties and signed by an authorized representative of the party
against which such change, waiver, or discharge is sought to be enforced.
9.14 REMEDIES. All remedies set forth in this Agreement shall be cumulative and
in addition to and not in lieu of any other remedies available to either
party at law, in equity or otherwise, and may be enforced concurrently or
from time to time.
9.15 SURVIVAL OF TERMS. Termination or expiration of this Agreement for any
reason shall not release either party from any liabilities or obligations
set forth in this Agreement which (i) the parties have expressly agreed
shall survive any such termination or expiration, or (ii) remain to be
performed or by their nature would be intended to be applicable following
any such termination or expiration.
9.16 NONEXCLUSIVE MARKET AND PURCHASE RIGHTS. It is expressly understood and
agreed that this Agreement does not grant to Manufacturer or Distributor an
exclusive right to purchase or sell Products and shall not prevent either
party from developing or acquiring other suppliers or customers.
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9.17 ENTIRE AGREEMENT. This Agreement, including any Schedules and documents
referred to in this Agreement or attached hereto, constitutes the entire
and exclusive statement of Agreement between the parties with respect to
its subject matters and there are no oral or written representations,
understandings or agreements relating to this Agreement which are not fully
expressed herein.
9.18 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of South Carolina.
IN WITNESS WHEREOF, the parties have each caused this Agreement to be
signed and delivered by its duly authorized officer or representative as of the
Effective Date.
DISTRIBUTOR MANUFACTURER
illegible /s/ XXXXXX X. XXXXXX
---------------------------- -----------------------------------
Signature Signature
Xxxxxx X. Xxxxxx
---------------------------- -----------------------------------
Printed or Typed Name Printed or Typed Name
President and CEO
---------------------------- -----------------------------------
Title Title
9/5/01
---------------------------- -----------------------------------
Date Date
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SCHEDULE A
PRODUCT AND PRICE LIST
Accept as noted below (see *CDW Pricing), Catalyst will purchase products from
Artisoft at a discount of forty percent (40%) off of the current Artisoft MSRP.
*CDW Pricing:
o All Artisoft products sold to Catalyst for resale to CDW will be
priced at a thirty-three percent (33%) discount off of the current
Artisoft MSRP.
o Catalyst will resell Artisoft products to CDW at a discount of thirty
percent (30%) off of the current Artisoft MSRP.
o Artisoft will provide to CDW marketing funds in the amount of seven
percent (7%) of CDW purchases of Artisoft products from Catalyst, as
reported in Catalyst's monthly POS report.
TELEVANTAGE 3.5 RETAIL PRICE SHEET
(Effective 4/06/01)
PRICING FOR TELEVANTAGE SYSTEMS IS DEPENDENT UPON THE SIZE OF THE SYSTEM.
TELEVANTAGE SYSTEMS REQUIRE THREE COMPONENTS:
o TELEVANTAGE SOFTWARE
o DIALOGIC BCP HARDWARE
o PC SERVER WITH THE APPROPRIATE NUMBER OF ISA AND/OR PCI SLOTS
TO CONFIGURE THE SOFTWARE FOR YOUR TELEVANTAGE SYSTEM, YOU MUST ORDER
ONE SERVER LICENSE AND THE APPROPRIATE NUMBER OF TRUNK, IP TRUNK,
STATION AND CLIENT LICENSES.
Note: Catalyst will sell only "bundled" solutions including, Artisoft software,
Intel boards and appropriate server as described above, etc. Catalyst will not
sell "unbundled" software separately.
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TELEVANTAGE SOFTWARE
ARTISOFT ARTISOFT
SKU PRODUCT DESCRIPTION MSRP
-------- ------- ----------- --------
80000-1 TELEVANTAGE SERVER Software license kit to install Server; includes server $200
software on CDROM (REQUIRED FOR EVERY TELEVANTAGE SERVER)
TELEVANTAGE TRUNK LICENSE(S) TO CONFIGURE TRUNKS TO TELEVANTAGE SERVER
(REQUIRED FOR THE NUMBER OF CO/TRUNK LINES ON THE SYSTEM)
80101 Trunk 1 Port License $200
80104 Trunk 4 Port License $800
80108 Trunk 8 Port License $1,600
80123 Trunk 23 Port License $4,600
TELEVANTAGE STATION License(s) to configure stations to the TeleVantage
Server (REQUIRED FOR THE NUMBER OF STATIONS/PHONES ON THE
SYSTEM)
80201 Station 1 Port License $100
80208 Station 8 Port License $800
80224 Station 24 Port License $2,400
TELEVANTAGE CLIENT License(s) to configure TeleVantage Client to the
TeleVantage Server (RUNNING THE TELEVANTAGE CLIENT IS
OPTIONAL BUT RECOMMENDED; REQUIRED FOR EACH DESKTOP PC
CONNECTED TO THE SYSTEM)
80301 Client 1 Port License $100
80308 Client 8 Port License $800
80324 Client 24 Port License $2,400
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ARTISOFT ARTISOFT
SKU PRODUCT DESCRIPTION MSRP
-------- ------- ----------- --------
TELEVANTAGE IP TRUNK LICENSE(S) TO CONFIGURE IP TRUNKS TO TELEVANTAGE SERVER
(REQUIRED FOR THE NUMBER IP LINES ON THE SYSTEM)
80401 IPTrunk 1 Port License $300
80404 IPTrunk 4 Port License $1,200
80415 IPTrunk 15 Port License $4,500
80520 CALL CENTER REPORTER Reporter Module - per 20 Agents $1,000
TELEVANTAGE ADD-ON Turnkey solutions to extend the capabilities of
SOLUTIONS TeleVantage (OPTIONAL, LICENSED PER TELEVANTAGE SERVER)
81001 TeleVantage Call Classifier (REQUIRES AT LEAST ONE
STATION LICENSE) $1,000
81002 TeleVantage Smart Dialer $5,000
81003 TeleVantage Persistent Pager (REQUIRES AT LEAST ONE CLIENT $1,500
LICENSE)
TELEVANTAGE CTM SUITE DISTRIBUTION PRICE SHEET
(5/25/01)
TELEVANTAGE SOFTWARE
--------------------
ARTISOFT PRICE TO ARTISOFT
SKU PRODUCT DESCRIPTION DISTRIBUTOR MSRP
-------- ------- ----------- ----------- ----
00000 00X00 BASIC Comes included in ICCP 12x24 SKU. Support for 12 analog $ 480 $
trunks and 24 analog or IP stations. This version scales
up to a maximum 12x24, does not support digital trunking.
00000 00X00 UPGRADE LICENSE KEY TO UPGRADE 12X24 BASIC VERSION TO FULL $ 1920
FUNCTIONALITY INCLUDING THE ABILITY TO SCALE ABOVE 12X24,
SUPPORT ALL TRUNK TYPES AND MULTIPLE NODES, AND INCLUDES
ADDITIONAL SYSTEM FEATURES.
00000 00X00 NFR UPGRADE LICENSE KEY (PAPER) TO UPGRADE 12X24 BASIC VERSION TO FULL $ 0
FUNCTIONALITY INCLUDING THE ABILITY TO SCALE ABOVE 12X24,
SUPPORT ALL TRUNK TYPES AND MULTIPLE NODES, AND INCLUDES
ADDITIONAL SYSTEM FEATURES.
85401 VOIP 1 PORT SUPPORT FOR 1 PORT OF VOIP CONNECTIVITY $ 150
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PRICING & CONFIGURATION BUNDLING FOR THE CHANNEL
1) The TeleVantage CTM Suite software automatically runs for each system,
making the ICCPs easy to deploy through the channel. Artisoft is paid for
the TeleVantage software on each box as it ships from Catalyst to the VAR.
2) The TeleVantage software is enabled for the capacity of every SKU. For
example, the TeleVantage software will support T1 and 32 stations for a
T1x32 SKU. The software automatically configures itself to support the
board capacities of the SKU. Once the lines and the box are plugged in to
the ICCP (any SKU), the configuration is fully enabled without the
requirement for further licensing.
a) The "basic" version of TeleVantage is on the 12x24 and 8x16 SKUs
(automatically based on TeleVantage sensing these SKUs).
i) The "basic" version of the software is free. Catalyst will pay
Artisoft $20 per station port for support and maintenance at the
time of system sale to VAR.
ii) Upgrades from basic to full version would be sold into the
channel as license keys printed on cards at an additional $80 per
station port paid to Artisoft at the time of system sale to VAR.
The $80 price is only for the first 24 ports and then beyond that
the price is $100 per end user.
iii) Therefore an end user who purchases the upgraded version would
result in $100 per station port revenue to Artisoft.
b) The "full featured" version of TeleVantage CTM Suite is automatically
set up on the 16x32, T1x48 and other SKUs.
i) Since the software is fully enabled and running, Artisoft is paid
$100 per end user for non-basic systems (16x32, T1x48, etc.)
shipped out by Catalyst. POS tracking is provided to Artisoft by
Catalyst.
c) The "basic" version of TeleVantage is limited to the following:
i) Up to 12 analog trunks - no T1, VoIP, BRI, etc.
ii) For example, the VAR will purchase a full feature upgrade license
plus the appropriate number of VoIP software port licenses to
connect two ICCPs via IP. If two 24-station systems are connected
via IP, Artisoft will consider the system to be a 48 port system
for pricing purposes.
iii) Up to 24 analog or IP stations
iv) Single node solutions only
v) Some limits on Voice Mail features after a 90 day trial period
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