PURCHASE AGREEMENT
This Purchase Agreement (the "Agreement") entered into as of the 8th day of
April, 2002 (the "Effective Date") by and between Enavis Networks, Inc., a
corporation organized and existing under the laws of the State of Delaware
(hereinafter "Enavis") with offices at 0000 X. Xxxxxxx Xxxxx Xxxx, Xx.
Xxxxxxxxxx, XX 00000 and RateXchange, Inc., a corporation organized and existing
under the laws of the State of Delaware (hereinafter "RateXchange") with offices
at 000 Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000.
WHEREAS, RateXchange has clear title and has the right to sell the Hardware
identified in this Agreement;
WHEREAS, Enavis desires to buy-back certain Hardware products as defined in
Exhibit A;
NOW THEREFORE, in consideration of the mutual promises and covenants herein, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
1.1 "Acceptance" shall mean Enavis' acknowledgement of the successful
completion of the diagnostic evaluation described in sections 3.4 and 3.5,
herein.
1.2 "Hardware" shall mean the hardware equipment, accessories and/or
spares as defined in Exhibit A hereto.
1.3 "Delivery" shall be on an F.O.B basis; meaning RateXchange will be
responsible for delivering the Products to the carrier, and at the place, chosen
by Enavis. RateXchange shall make Delivery of the Products at Global
Integration, Denver, Colorado.
1.4 "Purchase Order" shall mean a written purchase order identifying
the Hardware ordered, requested delivery date(s) and requirements to enable
RateXchange to fulfill the order.
2. ORDERS
2.1 Enavis shall order the Hardware from RateXchange by submitting a
written purchase order identifying the Hardware Enavis is buying back and
specifying the requirements to enable RateXchange to fulfill the order.
3. DELIVERY; TITLE AND RISK OF LOSS
3.1. RateXchange hereby represents and warrants to Enavis that it has
clear title to, or the right to sell, the Hardware specified in this Agreement,
as defined in Exhibit A hereto and the Hardware is free and clear of all claims,
liens and encumbrances.
3.2. RateXchange will provide Enavis with the total number of
containers, including packing list, for shipment verification. RateXchange will
bear all transportation and delivery charges for any Hardware not shipped with
the original shipment and deemed to be part of this Agreement as defined in
Exhibit A hereto.
3.3. All Hardware was decommissioned, according to industry standards,
and that the Hardware is in proper working conditions according to the published
specifications.
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3.4. Upon signing this agreement, Enavis will unpack and perform a
complete diagnostic test of the Miami T::DAX that is currently in Enavis'
Clearwater, FL facility. Enavis will complete this diagnostic test without
unreasonable delay. Enavis shall notify RateXchange two (2) business day prior
to the diagnostic testing schedule giving RateXchange the opportunity to witness
this process. If the results of the diagnostic testing demonstrate that this
system was not decommissioned properly, this Agreement may be cancelled by
Enavis without any further obligation to RateXchange and the equipment shall be
returned to RateXchange without delay, however, RateXchange expressly reserves
the right to receive a written copy of the diagnostic testing report.
RateXchange will then be responsible for transportation and delivery charges to
RateXchange's facility.
3.5. Upon receipt of all remaining 8 T::DAX Systems from RateXchange,
Enavis will perform a complete inventory of the equipment. Enavis will notify
RateXchange of any missing Hardware, giving RateXchange the opportunity to ship
the missing Hardware to Enavis' Clearwater facility. Once received, Enavis will
retain the right to perform diagnostic testing on the Hardware as described in
Article 3.4. In the event that RateXchange cannot deliver the missing Hardware,
Enavis will modify the Purchase Order given to RateXchange by deducting 8% of
RateXchange's Purchase Price of such missing Hardware, from the value of the
Enavis Purchase Order. Upon Acceptance, RateXchange shall be entitled to invoice
the sum of the modified Purchase Order value.
3.6. Title to Hardware delivered hereunder and all risk of loss or
damage thereto shall pass to Enavis upon Delivery of the Hardware. Enavis shall
exercise their right to return the equipment given the failure of the diagnostic
testing on the Hardware, or 20 days from delivery whichever occurs first.
Enavis' Acceptance shall occur upon completion of the diagnostic testing.
RateXchange will invoice equipment upon delivery to Enavis with terms of Net 45
days.
4. PRICES
The purchase price for Hardware ordered through a Purchase Order under
this Agreement shall be Two Hundred Thousand United States Dollars
($200,000.00). All prices exclude shipping and taxes, which costs shall be borne
by Enavis.
5. PAYMENT
All amounts due to RateXchange shall be invoiced upon Acceptance.
Payment shall be made within 30 days of receipt of the invoice.
6. PACKAGING
Hardware ordered by Enavis shall be packed for shipment and storage in
accordance with industry standard commercial practices.
7. CONFIDENTIALITY
7.1 Each party acknowledges that in the course of their business, each
may be exposed to certain confidential and/or proprietary information held or
disclosed by the other party (the "Disclosing Party") regarding it's business or
products, including but not limited to the Hardware, Software and related
documentation delivered to Vendor (collectively hereinafter referred to as
"Confidential Information"). Any party who receives Confidential Information
(the "Receiving Party") shall exercise a reasonable standard of care to maintain
and protect the confidentiality of the Confidential Information, during and
after the expiration or termination of this Agreement, and, unless otherwise
agreed to in writing, shall not reproduce, disclose, license, publish or
otherwise make available such information to any third party, including
affiliates and subsidiaries, other than the Receiving Party's employees who
require such access consistent with use approved by the Disclosing Party under
this Agreement.
7.2 These restrictions shall not apply to information or material that
(a) was in the Receiving Party's possession before disclosure by the Disclosing
Party, (b) is or becomes a matter of public
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knowledge through no fault of the Receiving Party, (c) is independently
developed without reliance on the Confidential Information, (d) is rightfully
received by the Receiving Party from a third party not under an obligation to
the Disclosing Party; or (e) is compelled by law to be disclosed. In the event
the Receiving Party is compelled by law to provide or disclose any Confidential
Information, whether by court order, administrative agency or otherwise, the
Receiving Party shall make every reasonable effort to maintain the maximum
degree of protection for the information legally possible, and to notify the
Disclosing Party immediately so that the Disclosing Party may take appropriate
action in its own behalf.
8. DISPUTES
Any dispute that arises out of or relates to this Agreement, or the
breach thereof, which cannot be resolved through good faith negotiations between
the Parties shall be resolved as follows:
8.1 The Parties shall submit the dispute to mediation under the rules
of the American Arbitration Association ("AAA"). If the dispute is not resolved
at the conclusion of mediation, the dispute will be submitted to a AAA
three-judge arbitration panel, which will be governed by the United States
Arbitration Act. That Act includes the requirement that each party select a
judge and those judges will select the third judge that comprises the panel. The
mediation or arbitration, as the case may be, shall be held in Ft. Lauderdale,
Florida and the mediation shall be in the English language. Any resolution
reached through mediation, or award arising out of arbitration (1) shall be
limited to a holding for or against a Party, and affording such monetary remedy
as is deemed equitable and just within the scope of this Agreement; (2) may not
include special, consequential or punitive damages; (3) may in appropriate
circumstances include injunctive relief; and (4) may be entered in a court and
enforced in accordance with the United States Arbitration Act.
8.2 Arbitration shall not be deemed a waiver of any right of
termination under this Agreement and the arbitration panel is not empowered to
act or grant an award other than based solely on the rights and obligations of
the Parties prior to termination. The arbitration panel may not limit, expand or
otherwise modify the terms of this Agreement.
8.3 The prevailing Party shall be entitled to all costs incurred for
arbitration or litigation plus reasonable attorney's fees. In the event of
mediation, both Parties shall equally share the costs incurred in the mediation
including the fees of the mediator.
9. GENERAL
9.1 This Agreement constitutes the entire agreement between the
parties and supersedes any and all prior written or oral agreements,
representations and understandings of the parties relating to the subject matter
hereof. Any supplement, modification or waiver of any provision of this
Agreement must be in writing and signed by an authorized representative of both
parties. If any differences exist between the terms of this Agreement and those
contained in a Purchase Order, the terms of this Agreement shall supercede and
govern.
9.2 If any Section or provision of this Agreement, or any portion of
any Section or provision thereof, shall for any reason be held to be void,
illegal or otherwise unenforceable, all other Section and portions of this
Agreement shall nevertheless remain in full force and effect as if such void,
illegal or unenforceable portion had never been included herein. The parties
agree that in the event such invalid or unenforceable portion is an essential
part of this Agreement, they will immediately re-negotiate a new provision to
replace the invalid or unenforceable one.
9.3 If either party ever fails to enforce any right or remedy
available to it under this Agreement, the failure shall not be construed as a
waiver of any right or remedy with respect to any other breach or failure by the
other party.
9.4 The headings in this Agreement are inserted for convenience only
and not intended to affect the meaning or interpretation of this Agreement.
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9.5 This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida, without giving effect to its conflicts of
law rules and provisions. The application of the United Nations Convention on
Contracts for the International Sale of Goods ("CISG") is hereby expressly
excluded.
9.6 This Agreement and all rights and obligations hereunder may not be
assigned by either party without the express written consent of the other party,
which consent shall not be unreasonably withheld, except that either party may
assign its rights and delegate its duties hereunder without such consent in the
event that either party sells or transfers all or substantially all of its
assets, or through a merger, reorganization or purchase of stock a third party
becomes a successor in interest to such business, or otherwise undergoes a
change in control. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, and their respective representatives, successors
and permitted assigns.
9.7 Notwithstanding the expiration or termination of this Agreement,
it is agreed that those rights and obligations which by their nature and context
are intended to survive such expiration or termination shall survive, including
without limitation the provisions relating, confidentiality, and the making of
all payments due hereunder for Hardware delivered.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives identified below on the date first
written above.
ENAVIS NETWORKS, INC. RATEXCHANGE, INC.
By: By:
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Name: Name:
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Title: Title:
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Date: Date:
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