EXHIBIT 10.23
INTERNATIONAL PURCHASE AND LICENSE AGREEMENT
This Product Sales Agreement (the "Agreement") is made effective this
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day of 1996, by and between:
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NEWBRIDGE NETWORKS INC., a corporation organized and existing under the laws of
the State of Delaware (hereinafter called "Newbridge"), with its principal
office at 000 Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000, and
International Exchange Networks, Ltd., a corporation organized and existing
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under the laws of the State of Delaware, with its principal office at Wall
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Street Plaza, 00 Xxxx Xx., 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, by and on
behalf of itself and its affiliates listed on Exhibit A (hereinafter
collectively called "Customer"). For purposes hereof, affiliates shall be
defined as entities which control, are controlled by or are under common control
with International Exchange Networks, Ltd.
WHEREAS, Newbridge desires to sell hardware and license software products
(hereinafter "Products") to Customer and perform the related installation and
support services (hereinafter "Services") ordered by Customer; and
WHEREAS, Customer desires to purchase and/or license Products for its own use in
accordance with the terms of this Agreement;
NOW THEREFORE, in consideration of the mutual premises and agreements
hereinafter contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties do
mutually covenant and agree as follows:
1. TERM
This Agreement shall remain in effect for an initial period of two (2) years
from its effective date, unless otherwise terminated pursuant to Article
___________ herein. Thereafter, it shall remain in effect for successive one (1)
year terms, as established by written acknowledgments exchanged by the parties
prior to the end of each successive one (1) year term, unless terminated by
either party upon at least ninety (90) days prior written notice.
Notwithstanding the expiration or termination of this Agreement, Article 8,
(Warranties), Article 11, (Patent, Copyright and Trade Secret Infringement), and
Article 17 (Confidentiality), shall survive such termination or expiration.
2. GOVERNING TERMS AND CONDITIONS OF SALE, LICENSE AND SERVICES
1. The terms and conditions of this Agreement constitute the exclusive and
binding agreement between the parties concerning the purchase of the
Products, the licensing of the software, and the performance of services
ordered from Newbridge. The goods and/or services set forth on Customer's
purchase order shall be supplied subject only to these terms and
conditions, or such amended terms and conditions as the parties may
mutually agree upon in writing,
notwithstanding any contrary terms contained in any purchase order issued
by Customer and accepted by Newbridge.
2. All software provided pursuant to this Agreement shall be licensed to
Customer subject to the terms set forth in the "shrink-wrap" license packed
with the Product or, as applicable, the terms of Newbridge's End User
Software License. The terms of said Newbridge End User Software License
are set forth in Exhibit B herein and are hereby incorporated into this
Agreement by reference.
3. Unless the parties have executed an appropriate maintenance or service
agreement, all such work not covered by the Warranty or other terms of this
Agreement shall be performed at, and in accordance with, Newbridge's then
current time, expense and materials rates, terms and policies. Such current
rates, terms and policies, may be subject to change, unless a formal
Newbridge quotation is requested and provided for specific work and such
work is scheduled within the term of the quotation's validity. Copies of
current applicable rates, terms and policies will be provided upon request.
4. If Customer orders installation services from Newbridge, Newbridge will
perform the same in a good and workmanlike manner, in accordance with all
applicable codes and regulations and according to a mutually agreeable
installation schedule. Installation shall include the performance of
Newbridge's standard suite of on-site tests to ensure performance of the
Product in accordance with its applicable specifications and documentation.
3. ACCEPTANCE OF ORDERS BY NEWBRIDGE
1. All Purchase Orders must originate from Customer's US corporate office as
listed above and must be sent to Newbridge's regional office location
specified below. Newbridge reserves the right to reject orders from
Customer for reasonable cause, subject to the terms and conditions of this
Agreement. All orders are conditioned upon the execution and delivery of a
Guaranty of the payment obligations due under this Agreement by IPC
Information Systems, Inc. and are subject to acceptance by Newbridge's
regional office in Herndon, Virginia. Within five (5) business days after
receipt of the written order from Customer at Newbridge's Herndon, Virginia
office, Newbridge shall notify Customer of acceptance or rejection of the
order, and if rejected, the reasons therefor. The ordering address is as
follows:
Newbridge Networks Inc.
000 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
TEL: 000-000-0000
2. It is expressly agreed that all orders received from Customer under this
Agreement for subsequent delivery of the Products outside of the United
States will be subject to all applicable export/import laws and regulations
imposed or administered by the US Department of Commerce (or other
appropriate Governmental Agency) and/or the Country
of final destination, including but not limited to the export/import of
technical data, equipment, software and know how. In addition to the above
laws, certain Countries, including but not limited to, Brazil, Peru, China,
Korea and/or the former Soviet Union, impose separate local import
requirements and all orders which require shipment of the products to such
Countries must be approved in advance by Newbridge.
3. Customer may purchase Products and Services hereunder by means of written
purchase orders referencing this Agreement. Purchase orders may also be
placed by facsimile, followed by a written original document within five
(5) working days. Stenographic, typographical and clerical errors are
subject to correction within a reasonable period of time. This Agreement
does not constitute a purchase order.
4. PRICING / PAYMENT
1. Pricing for the Products shall be in accordance with the price list set
forth in Exhibit C. Customer acknowledges that the purchase price will be
determined by the ultimate Regional location in which the Products will be
installed, (i. e. orders for Products to be installed in the Asia Pacific
Region will be based on the Asia Pacific Price list).
2. Payment terms for all Products shall be Net Thirty (30) days from receipt
of invoice, which date shall not precede the latter of the date requested
for receipt or the date of actual receipt of the Product unless Customer
and Newbridge otherwise agree in writing.
3. Installation charges, if applicable, are invoiced after completion of
Newbridge's installation activities. Payment terms for all installation
charges shall be Net Thirty (30) days from the date of completion of
installation.
4. All prices quoted are payable in US funds and shall be exclusive of taxes
(including without limitation any added value, use, sales, or similar
tax).Customer shall pay any and all such taxes, except for taxes imposed on
Newbridge's income, and shall hold Newbridge harmless therefrom, provided
that if Newbridge, at its sole discretion, chooses to make any such
payment, Customer shall reimburse Newbridge in full. All transactions
pursuant to this Agreement shall be considered taxable unless Customer
provides Newbridge with appropriate verification of exemption. All prices
quoted shall likewise be exclusive of any import duties or any other
charges imposed by the country of final destination upon shipments from
Newbridge to Customer.
5. Prices quoted are for Product only and do not confer upon Customer any
rights to Newbridge's technical data or proprietary information of any
kind, except as specifically set forth in such applicable software license
agreements as may be executed between the parties. Prices quoted do not
contemplate packaging other than Newbridge's normal commercial packaging
unless expressly agreed to in writing by Newbridge.
5. SHIPPING AND RISK OF LOSS
1. To US Locations
All US orders shall be shipped F.O.B. Origin; transportation charges shall
be at the expense of Customer, and separately billed. Newbridge reserves
the right to select the means of transportation and routing unless
otherwise advised. Title to the hardware Products and risk of loss for all
Products shall pass to the Customer upon delivery by Newbridge to the
carrier.
2. To Non-US Locations
Delivery of the Products hereunder will be FCA, Newbridge shipping point
(in accordance with INCOTERMS, 1990) with freight and insurance charges (if
insurance is separately obtained by Newbridge through the carrier) prepaid
by Newbridge and added to the invoice. Title to the hardware Products and
risk of loss for all Products shall pass to the Customer upon delivery by
Newbridge to the carrier. Customer will be responsible for payment of
duties, taxes (including any VAT) and other official charges payable on
importation as well as the costs and risks of carrying out customs
formalities, including the completion of all necessary import licenses and
any risks and costs which may arise if any customs formalities, for any
reason, are not, or cannot be completed.
6. TERMINATION
1. The occurrence of any of the following acts or events shall constitute a
material breach of this Agreement and shall be cause for the affected party
to terminate this Agreement or any purchase order issued in accordance
herewith:
(1) Newbridge fails to ship or install the Product within thirty (30) days
of the scheduled shipment date, unless delayed by reason of Force
Majeure.
(2) Either party fails to substantially perform any of its other material
obligations under this Agreement and does not cure such failure within
thirty (30) days of written notice of the same. If the party whose
breach has been claimed fails to cure such breach within the allotted
time, the other party may terminate any undelivered purchase order
issued or accepted hereunder, or this entire Agreement, without
further delay. In the event of such termination by Customer, Customer
shall be obligated to pay only the contract price for conforming
Product delivered prior to the effective date of termination.
(3) Either party becomes insolvent, admits in writing its inability to pay
its debts as they mature, files an involuntary petition of bankruptcy,
makes an assignment for the benefit of creditors or has petition under
any bankruptcy laws filed against it and such petition is not
dismissed within thirty (30) days.
(4) Customer assigns this Agreement or any purchase order hereunder
without prior written consent of Newbridge, which consent shall not be
unreasonably withheld.
2. Customer may terminate this Agreement and/or any purchase order issued
hereunder for any reason of its own convenience upon no less than thirty
(30) days prior written notification to Newbridge. Customer's maximum
liability to Newbridge for such termination shall be:
(1) Any unpaid balance for conforming Product ordered by Customer and
delivered to Customer prior to Newbridge's receipt of the termination
notice.
(2) A restocking charge not to exceed twenty percent (20%) of the purchase
price of the terminated order, excluding software and services.
(3) Any direct costs Newbridge may have incurred in the course of
fulfilling Customer's requirements for a specific purchase
order(including but not limited to the ordering of third-party
equipment and services). Such costs will be reimbursed provided they
are reasonable and are submitted to Customer within thirty (30) days
after receipt of the purchase order cancellation.
7. FORCE MAJEURE
Except for the payment of funds, neither Newbridge nor Customer shall be liable
for any failure or delay in performing its obligations hereunder during any
period in which such performance is prevented or delayed by causes beyond its
reasonable control, including without limitation, flood, war, embargo, strike or
other labor dispute, riot, or the intervention of any government authority.
8. WARRANTIES
8.1 HARDWARE PRODUCT WARRANTY
1. Newbridge warrants the following with respect to the Hardware Product:
(1) that the Hardware Product is free from defects in material and
workmanship;
(2) that upon payment in full all Hardware Product shall be delivered
free and clear of liens, claims or encumbrances of any kind.
2. (1) For Products purchased and installed in the United States, the above
warranties shall extend to the Customer for the 3624 and 3630 series
Hardware Product for a period of sixty (60) months from the date of
shipment; the above warranties shall extend to the Customer for all other
Hardware Product for a period of fourteen (14) months from the date of
shipment.
(2). For Products installed outside of the United States, the above
warranties shall extend to the Customer for all Hardware Products for a
period of fourteen (14) months from the date of shipment.
3. With respect to products sold but not manufactured by Newbridge, Newbridge
will assign to Customer all warranties allowed by the manufacturer.
4. If Newbridge installs the Hardware Product in the United States, Newbridge
will warrant the installation against defects in material and workmanship
for a period of sixty (60) days from the date of installation and provide
all parts and on-site labor (including transportation costs of Newbridge's
technician(s)) necessary to restore the Hardware Product to proper
operating condition at no charge to Customer. The warranty period for
repair parts and labor and for replaced Hardware Product shall be the
remainder of the original warranty period for the repaired or replaced item
or ninety (90) days, whichever is greater.
5. Except as specifically provided under section D above, Newbridge's
liability under warranty shall be limited to either repair or replacement
of the defective Product in accordance with Article 9 below. Newbridge
shall incur no obligation under this warranty if (i) the allegedly
defective Product is returned to Newbridge more than thirty (30) days after
the expiration of the applicable warranty period, or if (ii) Newbridge's
verifiable tests disclose that the alleged defect is not due to defects in
material or workmanship.
8.2 LIMITED SOFTWARE WARRANTIES
Newbridge warrants for a period of 90 days from the date of shipment that the
Licensed Software as originally shipped to Customer, when used in accordance
with the user manual supplied with the Licensed Software, will operate
substantially in accordance with applicable functional descriptions set forth in
such manual. Newbridge's sole liability and Customer's sole remedy pursuant to
this warranty shall be Newbridge's good faith efforts to rectify the
nonconformity or, if after repeated efforts Newbridge is unable to rectify the
non-conformity, Newbridge shall accept return of the Licensed Software and shall
refund to Customer all amounts paid to Newbridge in respect thereof. This
warranty is available only once in respect of any Licensed Software, and is not
renewed by the payment of fees for additional equivalent nodes or other
increased or enhanced use.
8.3 REPAIR SERVICE AND MAINTENANCE WARRANTY
The maintenance and repair services provided under this agreement shall be
performed in a workmanlike manner, using qualified maintenance technicians,
familiar with the product and its operation and, upon timely payment in full, no
liens or encumbrances shall accrue from the performance of the maintenance or
repair services provided hereunder. In the event that, within ninety (90) days
from the provision of any service hereunder, the maintenance material or
services provided are found not to conform to any Newbridge specification,
Newbridge will correct or replace the defective maintenance material or repair
service provided hereunder at no charge to the Customer.
8.4 WARRANTY LIMITATIONS AND EXCLUSIVITY
THE WARRANTIES SET FORTH ABOVE FOR THE PRODUCTS AND SERVICES PROVIDED HEREUNDER
ARE COMPLETE AND ARE IN LIEU OF ALL OTHER
WARRANTIES, CONDITIONS OR REPRESENTATIONS, EXPRESS OR IMPLIED, BY STATUTE,
USAGE, CUSTOM OF THE TRADE OR OTHERWISE. NOTWITHSTANDING ANY OTHER OR PRIOR
STATEMENT, WRITTEN OR ORAL, NEWBRIDGE MAKES NO OTHER WARRANTIES REGARDING THE
QUALITY OF ITS PRODUCT(S) OR THE MATERIALS AND SERVICES CONTEMPLATED HEREUNDER.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEWBRIDGE EXPRESSLY DISCLAIMS
WARRANTIES OR REPRESENTATIONS OF WORKMANSHIP, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, DURABILITY, THAT A LICENSED PROGRAM WILL MEET ALL OF
CUSTOMER'S NEEDS OR THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE ERROR
FREE.
8.5 NO HIGH RISK USE
Customer acknowledges and agrees that the Products supplied under this contract
are intended for standard commercial uses and are not specifically designed,
manufactured or intended for use or resale in critical applications or hazardous
environments, requiring fail-safe performance and in which the failure of
Products could lead directly to death, personal injury, or severe physical or
environmental damage (including, without limitation, the operation or on-line
control of nuclear facilities, aircraft navigation or communication systems, air
traffic control systems, direct life support machines, or weapons systems). Such
undertakings are considered "High Risk Activities". Suitability of Products for
use in one or more High Risk Activities would require additional appropriate
development and design engineering by Newbridge including but not limited to the
addition of appropriate redundancy and/or contingency procedures. Newbridge and
its suppliers explicitly disclaim any express or implied warranty of fitness for
High Risk Activities and customer hereby agrees to release and hold Newbridge
harmless from liability resulting out of or in connection with implementation of
these Products in High Risk Activities.
9. REPAIR AND RETURN PROCEDURES
Newbridge will process requests for the repair of Product according to the
following policy:
1. No Product shall be returned without prior Newbridge authorization.
Customer shall provide Newbridge's Service Representatives with all
necessary information to allow processing of the return and issuance of a
Return Authorization (RA) number.
2. Damaged, inoperative or malfunctioning Products must be returned by
Customer in static protective material, securely packaged to prevent damage
in transit with the RA Number written on the outside of the package, and
shipped prepaid to:
In the United States:
Newbridge Networks Inc.
000 Xxxxxxxx Xxxx Xx.
Xxxxxxxxxx, XX 00000
Attn.: Repair Services
Phone: (000) 000-0000
In Europe:
Newbridge Networks Limited
Xxxxxx Xxxxx
Xxxxxxxx Xxxx
Xxxxxxx, Xxxxx
Xxxxxx Xxxxxxx, XX0 lJB
Attention: NTAC
In Canada, the Asia Pacific Region and the former Soviet Union:
Newbridge Networks Corporation
P. O. Box 13600
000 Xxxxx Xxxx
Xxxxxx, Xxxxxxx
Xxxxxx X0X0X0
3. Newbridge will either repair or, at its option, replace defective Product
under warranty within fifteen (15) working days of receipt. Newbridge will
return repaired Product via surface freight at Newbridge's expense. The
cost of expedited freight, if provided, shall be at Customer's expense.
4. Product found to be operable after testing (e.g. no trouble found "NTF"),
according to Newbridge's current manufacturing standards, shall be subject
to Newbridge's then-current handling charge. (Current charges for NTF both
in and out of warranty are $100.00.)
5. Repairable out-of-warranty Product will be repaired at Newbridge's then-
current repair charges within fifteen (15) working days of receipt of the
Product and Customer's applicable purchase order or other written
authorization to repair.
6. When used and handled in accordance with the manufacturer's instructions
the Hardware Product (including any laser device) is safe in normal use and
transportation. Newbridge is available to answer inquiries regarding the
proper use, recycling or disposal of any product or component.
10. DAMAGES AND LIABILITY
EXCEPT FOR PERSONAL INJURY OR TANGIBLE PROPERTY DAMAGES WHICH DIRECTLY RESULTS
FROM THE NEGLIGENT OR INTENTIONALLY WRONGFUL ACTS OR OMISSIONS OF EITHER PARTY;
(A) UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR INCIDENTAL,
CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING
WITHOUT LIMITATION LOSS OF PROFITS OR DAMAGE TO BUSINESS OR BUSINESS RELATIONS),
HOWEVER CAUSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR
ANY ORDER FOR PRODUCT ARISING HEREUNDER OR THE PURCHASE OR USE OF PRODUCT OR
SERVICES FURNISHED BY
NEWBRIDGE TO CUSTOMER; and (B) WITH THE EXCEPTION OF DAMAGES FOR THE BREACH OF
OBLIGATIONS FOR WILLFUL MISUSE OR MISAPPROPRIATION OF SOFTWARE AND/OR
CONFIDENTIAL OR PROPRIETARY INFORMATION IN NO EVENT WILL EITHER PARTY'S TOTAL
LIABILITY, IN DAMAGES OR OTHERWISE, EXCEED THE AMOUNTS ACTUALLY PAID OR OWED FOR
THE PARTICULAR SERVICE OR UNIT OF PRODUCT WHICH IS THE SUBJECT OF A CLAIM OR
DISPUTE. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THE PRODUCT OR SERVICES FURNISHED BY NEWBRIDGE MAY BE BROUGHT BY CUSTOMER
MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION HAS ACCRUED OR SUCH SHORTER
STATUTORY PERIOD AS MAY BE APPLICABLE.
11. PATENT, COPYRIGHT AND TRADE SECRET INFRINGEMENT
1. Newbridge shall defend, indemnify and hold harmless Customer from any
suitor claim which is brought against Customer alleging the use of any
Newbridge Manufactured Products, in accordance with its intended purpose
and Newbridge specifications, to be an infringement of any patent,
copyright or trade secret and New bridge shall pay all reasonable legal
costs and expenses incurred by Customer in conjunction with such an action
and shall satisfy any final judgment against Customer provided, Customer
notifies Newbridge promptly upon discovery of the existence or imminent
pendancy of any such claim, that Newbridge shall have sole control of the
defense or settlement of such actions, and that Customer provides such
assistance and cooperation to Newbridge as is reasonably requested. The
foregoing shall not include, and further Customer shall provide like
defense and protection to Newbridge for, any alleged infringement which
results from the use of Newbridge Products in combination with any item or
process not supplied by Newbridge or officially approved by Newbridge for
use with the Newbridge Products. For purposes herein, "Newbridge
Manufactured Products" excludes third party products identified in Exhibit
C as "OEM" products.
2. In the event Customer is enjoined from its use of Newbridge's Product due
to a proceeding based upon infringement of any patent, copyright or trade
secret, Newbridge shall, at its option:
(1) promptly render the Product non-infringing functionally equivalent,
and capable of providing services as intended, or
(2) procure for Customer the right to continue using the Product, or
(3) replace the Product with a non-infringing functionally equivalent
version, or
(4) remove the Product and refund the purchase price, any applicable
license fees, and transportation costs thereof, less a monthly usage
fee equal to one sixtieth (1/60) of the purchase price for each month
that Customer enjoyed beneficial use of the Product.
3. The foregoing constitutes the entire liability of Newbridge to Customer
with respect to the infringement of patents, copyrights, and trade secrets
for Product purchased or licensed pursuant to this Agreement.
12. TRAINING
Training, customized to Customer's requirements, will be provided at Newbridge's
then-prevailing rates and at Newbridge's training facility. Any costs for
transportation, lodging, meals and associated expenses of Customer's trainees'
shall be borne by Customer. At Customer's request, Newbridge shall provide price
quotations for customized on-site training at Customer's facility.
13. PUBLICITY
Neither party will use the name of the other in any advertising, press release,
or similar public statement without the prior written consent of the other,
which consent shall not be unreasonably delayed or withheld.
14. CUSTOMER'S PROTECTION-SITE WORK
Newbridge shall take such steps as may be reasonably necessary to prevent
personal injury or property damage and shall indemnify and hold Customer
harmless from any loss, claim for personal injury (including death) or property
damage to the extent any such claim directly results from the negligent or
willful acts or omissions of Newbridge, or its employees or agents or
contractors during any work hereunder that may be performed at any of Customer's
sites including Customer's end user sites. Newbridge shall maintain mutually
agreeable levels of insurance against general liability and property damage and
such levels of Xxxxxxx'x Compensation or similar insurance as may be required by
applicable statute and shall provide a Certificate of Insurance thereof to
Customer.
15. END USE AGREEMENT
The parties acknowledge that products and services ordered or delivered pursuant
to this Agreement are for final end use by Customer and are not sold for
distribution and/or resale to third parties. Customer certifies that, unless
otherwise negotiated, no resale or redistribution of Newbridge products is
intended or contemplated prior to end use of products by the Customer.
16. THIRD PARTY SOFTWARE
The Products herein may include software and documentation that are owned by
third parties and distributed by Newbridge under license from the owner.
Newbridge represents that it has: (i) a valid license to use the third party
software; (ii) no knowledge of any adverse claim of infringement relating to the
third party software; and (iii) the right and authority to grant a valid
sublicense to Customer to use such third party software as provided for in this
Agreement.
17. CONFIDENTIALITY
1. Either party may disclose to the other confidential and proprietary
information concerning its inventions, know-how and trade secrets as may be
necessary to further the performance of this Agreement ("Confidential
Information"). Confidential Information will only be used by the receiving
party, its Affiliates and its and their respective employees,
representatives and/or agents (collectively "Receiving Party") or its
employees having a need to know such information for the purposes set forth
in this Agreement. Written information intended to be treated as
confidential shall be marked"confidential" or "proprietary". Oral and or
intangible information, subject to this Agreement shall be so identified
prior to disclosure and summarized in written form and appropriately
labeled as proprietary or confidential within fifteen (15) days of
disclosure. All such Confidential Information, disclosed hereunder whether
knowingly or otherwise shall remain the sole property of the party
disclosing the same, and the Receiving Party shall have no interest in or
rights with respect thereto except as set forth herein.
2. Each Receiving Party who obtains access to Confidential Information of the
other agrees to maintain all such Confidential Information in strict
confidence and to use at least the same measures to protect such
Confidential Information as it uses to protect its own Confidential
Information, and further agrees to take all reasonable precautions to
prevent any unauthorized disclosure of such information during the Term of
this Agreement any extensions, and for three (3) years thereafter.
3. The obligation to protect Confidential Information as set forth in this
Agreement shall not apply to any Confidential Information that:
(1) was already known to the Receiving Party at the time of disclosure
under this Agreement;
(2) was known or was generally available to the public at the time of
disclosure hereunder;
(3) becomes known or generally available to the public (other than by act
of the Receiving Party) subsequent to its disclosure hereunder;
(4) is disclosed or made available in writing to the Receiving Party by a
third party having an apparent bona fide right to do so;
(5) is independently developed by the Receiving Party without the use of
the proprietary information; or
(6) is required by law to be released.
4. All Confidential Information provided by disclosing party to the Receiving
Party is expressly provided for the purpose of this Agreement only and
cannot be used for any other purpose, and must be returned to disclosing
party or destroyed upon termination of this Agreement. All copying of any
documentation provided by the disclosing party to the Receiving Party must
include copyright notices.
18. AFFILIATES
Exhibit A provides a list of International Exchange Networks, Ltd.'s affiliates.
International Exchange Networks, Ltd. may amend Exhibit A from time to time as
needed. Such affiliates listed in Exhibit A shall have the right to order
Products subject to the provisions of Article 3(A) herein. International
Exchange Networks, Ltd. represents and warrants that is has the authority to
execute this Agreement on behalf of its affiliates listed on Exhibit A and that
such affiliates will be bound by the terms and conditions of this Agreement.
19. DISPUTES RESOLUTION PROCEDURE
1. The parties will attempt in good faith to resolve any controversy or claim
arising out of or relating to this Agreement or any amendments thereto
("Claim") promptly by negotiation between senior executives of the parties
who have authority to settle the Claim. The disputing party ("Claimant")
shall give the other party written notice of the Claim and its request for
negotiation ("Notice"). Within ten (10) days after receipt of the Notice,
the receiving party shall submit to the other a written response. The
Notice and the response shall include (a) a statement of each party's
position and a brief summary of the evidence and arguments supporting its
position, and (b) the name and title of the executive who will represent
that party. The executives shall meet at a mutually acceptable time and
place within thirty (30) days from the date of the Notice and thereafter as
they reasonably deem necessary to exchange relevant information and to
attempt to resolve the Claim.
2. If the Claim has not been resolved within forty five (45) days of the
Notice, or if the party receiving the Notice will not meet within thirty
days of the Notice, either party may initiate mediation of the Claim in
accordance with the Center for Public Resources Model ADR Procedures and
Practices or such other procedures mutually agreed upon by the parties. The
mediation proceeding shall be conducted before a mediator from the Center
for Dispute Settlement in Washington, D.C. who is mutually acceptable to
the parties. The mediator's compensation and expenses shall be shared
equally by the parties. The parties agree that the mediation shall take
place in Baltimore, Maryland unless the parties mutually agree to hold the
mediation in another location. If the matter is not resolved within sixty
(60) days of the initiation of such mediation procedure, either party is
free to commence legal action in accordance with this Agreement.
20. GENERAL PROVISIONS
1. This Agreement shall be interpreted and governed exclusively by the laws of
the Commonwealth of Virginia and the United States of America, excluding
conflict of law rules and principles. Any action or proceeding for relief
initiated by the parties shall be filed in the United States District Court
for the District of Maryland in Baltimore, Maryland, and if that court does
not have jurisdiction, in the courts of the State of Maryland in the City
of Baltimore, provided that the foregoing submissions to jurisdiction shall
not limit the availability of any other forum with respect to any suit in
rem or otherwise for the enforcement of any judgment. Newbridge and
Customer, to the extent permitted by law irrevocably; (1) waive and agree
not to assert by way of motion, as a defense or otherwise, any right, claim
or power under the doctrine of forum non conveniens to transfer any such
action filed by any party to any other court; (2) waive the right to object
that such courts lack personal jurisdiction over the parties or that venue
is not proper in said court(s); and (3) waive any right to a jury trial
with respect to such action or proceeding.
2. The provisions Of this Agreement shall be deemed severable. If any
provision of this Agreement shall be held unenforceable by any court of
competent jurisdiction, the remaining provisions shall remain in full force
and effect.
3. This Agreement shall not be amended or modified except by a writing duly
executed by the authorized representatives of Newbridge and Customer. No
course of dealing or usage of trade by or between the parties shall be
deemed to cause or constitute any amendment or modification of the terms
hereof.
4. All headings and captions employed herein are for convenience and ease of
reference only and are not to be considered in the construction or
interpretation of any provision of this Agreement. Any notice required to
be sent or given to Newbridge or Customer shall be sent via US mail or
overnight carrier to the address shown below; notices may be sent via
facsimile if followed by an original copy, sent via US mail or overnight
carrier.
5. Any notice required to be sent or given to Newbridge or Customer shall be
sent via US mail or overnight carrier to the address shown below; notices
may be sent via facsimile if followed by an original copy, sent via US mail
or overnight carrier.
To Newbridge: Newbridge Networks Inc.
000 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000
Attention: Contracts and Administration
To Customer: International Exchange Networks Ltd.
Xxxx Xxxxxx Xxxxx, 00 Xxxx Xx. 15 Floor
New York, New York 1005
Attention: Contracts Manager
6. Any consent by either party to, or waiver of any breach by the other,
whether express or implied, shall not constitute a consent to, or waiver of
any other, different or subsequent breach.
7. Newbridge, and Customer agree to cooperate fully and in good faith in order
to achieve the purposes of this Agreement. If a problem should arise, the
parties shall immediately discuss the issue, ascertain the facts, and work
together to arrive at an equitable and mutually acceptable solution.
8. This Agreement may not be assigned by either party without the prior
written consent of the other.
9. This Agreement, together with its Exhibits, constitutes the entire
agreement between Newbridge, and Customer with respect to its subject
matter; all prior agreements, representations, statements, negotiations or
undertakings, whether oral or written, are specifically superseded hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives identified below.
NEWBRIDGE NETWORKS INC. INTERNATIONAL EXCHANGE NETWORKS, LTD.
By:____________________________ By:______________________________
Name:__________________________ Name:____________________________
Title:_________________________ Title:___________________________
Date:__________________________ Date:____________________________
Exhibit B
END USER SOFTWARE LICENSE
1. LICENSE
1.1 All software provided to Customer shall be licensed subject to the terms
and conditions of this Agreement and, as applicable, the terms set forth in
Newbridge's or the third party "shrink-wrapped" license packed with the
software. Newbridge grants to Customer and Customer accepts a non-exclusive,
non-transferable license to use any software and related documentation provided
by Newbridge pursuant to this Agreement ("Licensed Software") for Customer's own
internal use, solely in conjunction with hardware supplied or approved by
Newbridge. In case of equipment failure, Customer may use the Licensed Software
on a back-up system, but only for such limited time as is reasonably required to
rectify the failure.
1.2 Customer acknowledges that Newbridge may have encoded within the Licensed
Software an "application key", establishing the usage and functionality (e.g.,
the number of equivalent nodes and workstations or other features) of the
software as it has been licensed to the Customer. The usage or functionality of
such Licensed Software may be expanded only upon payment to Newbridge of an
applicable upgrade fee. The above referenced application key shall be conveyed
to Customer upon installation of the Licensed Software or upgrade.
2. PROTECTION AND SECURITY OF LICENSED SOFTWARE
2.1 Customer acknowledges and agrees that the Licensed Software contains
proprietary and confidential information of Newbridge and its third party
suppliers and agrees to keep such information confidential. Customer agrees not
to allow access to the Licensed Software except by its employees having a need
for such access, in keeping with its intended use as set forth herein. Such
employees shall have been advised of the confidential and proprietary nature of
information contained in the Licensed Software and shall have agreed to protect
same.
2.2 All right, title and interest in and to the Licensed Software, other than
that expressly granted to Customer herein, shall remain vested in Newbridge or
its third party suppliers. Customer shall not, and shall not permit others to:
copy, translate, modify, create derivative works from, reverse engineer,
decompile, encumber or otherwise use the Licensed Software, except as is
specifically authorized under this Agreement. All appropriate copyright and
other proprietary notices and legends shall be retained on all Licensed Software
supplied by Newbridge, and Customer shall maintain and reproduce such notices on
any full or partial copies made.
3. TERM
3.1 The license shall become effective upon delivery of the Licensed Software
to Customer.
3.2 Newbridge may terminate this Agreement and/or any license issued hereunder:
(a) upon written notice to Customer if any amount payable to Newbridge is not
paid within thirty (30) days
of the date on which payment is due; (b) if Customer becomes bankrupt, makes an
assignment for the benefit of its creditors, or if its assets vest or become
subject to the rights of any trustee, receiver or other administrator; (c) if
bankruptcy, reorganization or insolvency proceedings are instituted against
Customer and not dismissed within 15 days; or (d) if Customer breaches a
material provision of this Agreement and such breach cannot be rectified or is
not rectified within 30 days of receipt of written notice of the breach from
Newbridge.
3.3 Upon termination of any license, Customer shall return or destroy all
copies of the respective Licensed Software. All obligations of Customer arising
prior to termination, and those obligations relating to confidentiality and non-
use, shall survive termination of this Agreement or of the license.
4. SUPPORT AND UPGRADES
Customer shall receive software support and upgrades for the Licensed Software
only to the extent provided for in the applicable Newbridge software support
program then currently in effect, and upon payment of any applicable fees.
5. CHARGES
Upon shipment of the Licensed Software, Newbridge will invoice Customer for all
fees, and any taxes, duties and other charges. Customer will be invoiced for any
increased usage and functionality upon issuance by Newbridge of a new software
application key. All amounts shall be due and payable within thirty (30) days of
receipt of invoice. Interest may, at Newbridge's discretion, be charged on the
balance of any overdue amount at a level not to exceed the lesser of 1 1/2 per
month (19.6% per annum) or highest rate allowed by law.
6. WARRANTIES
6.1 Newbridge warrants for a period of 90 days from the date of shipment that
the Licensed Software as originally shipped to Customer, when used in accordance
with the user manual supplied with the Licensed Software, will operate
substantially in accordance with applicable functional descriptions set forth in
such manual. Newbridge's sole liability and Customer's sole remedy pursuant to
this warranty shall be Newbridge's good faith efforts to rectify the
nonconformity or, if after repeated efforts Newbridge is unable to rectify the
non-conformity, Newbridge shall accept return of the Licensed Software and shall
refund to Customer all amounts paid to Newbridge in respect thereof. This
warranty is available only once in respect of any Licensed Software, and is not
renewed by the payment of fees for additional equivalent nodes or other
increased or enhanced use.
6.2 NEWBRIDGE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OR REPRESENTATIONS OF
WORKMANSHIP, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, OR
THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE ERROR FREE.
6.3 Customer acknowledges and agrees that the Licensed Software supplied under
this contract are intended for standard commercial uses and are not specifically
designed, manufactured or intended for use or resale in critical applications or
hazardous environments requiring fail-safe performance and in which the failure
of Licensed Software could lead directly to death, personal injury, or severe
physical or environmental damage (including, without limitation, the operation
or on-line control of nuclear facilities, aircraft navigation or communication
systems, air traffic control, direct life support machines, or weapons systems).
Such undertakings are considered High Risk Activities". Suitability of Licensed
Software for use in one or more High Risk Activities would require additional
appropriate development and design engineering by Newbridge including but not
limited to the addition of appropriate redundancy and/or contingency procedures.
Newbridge and its suppliers explicitly disclaim any express or implied warranty
of fitness for High Risk Activities and customer hereby agrees to release and
hold Newbridge harmless from liability resulting out of or in connection with
implementation of these Licensed Software in High Risk Activities.
7. LIMITATION OF LIABILITY
The respective liabilities of the parties with respect to Licensed Software
shall be as described in Article 10 of the International Purchase and License
Agreement herein.
8. GENERAL
8.1 Under no circumstances shall either party be liable to the other for any
failure to perform its obligations (other than the payment of any monies owing)
where such failure results from causes beyond that party's reasonable control.
8.2 This Agreement constitutes the entire agreement between Newbridge and
Customer with respect to the subject matter referenced and supersedes all prior
oral and written communications. No alteration or amendment to this Agreement
shall be valid unless the same shall be in writing and signed by authorized
representatives of both parties.
8.3 If any provision of this Agreement is held to be invalid, illegal or
unenforceable, it shall be deemed severed and the remaining provisions shall
continue in full force and effect.
8.4 The Licensed Software may contain freeware or shareware obtained by
Newbridge from one or more third party source(s). No license fee has been paid
by Newbridge for the inclusion of any such freeware or shareware, and no license
fee is charged to Customer for its use. CUSTOMER ACKNOWLEDGES AND AGREES THAT
THE THIRD PARTY SOURCE(S) PROVIDE(S) NO WARRANTIES AND SHALL HAVE NO LIABILITY
WHATSOEVER IN RESPECT OF CUSTOMER'S POSSESSION AND/OR USE OF THE FREEWARE OR
SHAREWARE.
8.5 Newbridge shall have the right, at its own expense and upon reasonable
written notice to Customer, to periodically inspect Customer's promises and such
documents as it may reasonably require, for the exclusive purpose of verifying
Customer's compliance with its obligations under this Agreement.
8.6 Any notice provided hereunder shall be sent to the party's respective
address listed above, or to any other such address as may be specified from time
to time. Notices shall be deemed to have been received five days after deposit
with a post office when sent by registered or certified mail, postage prepaid
and receipt requested.
8.7 If the Licensed Software is being acquired by or on behalf of any unit or
agency of the United States Government, the following provision shall apply: If
the Licensed Software is supplied to the Department of Defense, it shall be
classified as "Commercial Computer Software" and the United States Government is
acquiring only the rights specified in this License Agreement as defined in
DFARS 227.7202-1 (a) and 227.7203-3(a). If the Licensed Software is supplied to
any other unit or agency of the United States Government, rights will be defined
in Clause 52.227-19(c)(2) of the FAR, or if acquired by NASA, Clause 18-52.227-
86(d) of the NASA Supplement to the FAR.
8.8 Newbridge acknowledges that Customer and/or Customer's affiliates shall be
entitled to use the Licensed Program with the appropriate hardware outside of
the United States, in accordance with the provisions of section 1.1 of this
Exhibit B. Customer will indemnify Newbridge from and against all costs, losses,
and damages that arise as a result of willfull or negligent misuse of the
Licensed Programs outside of the United States in violation of this Agreement,
including without limitation those from a willful breach of the provisions of
Section 2 hereof, Protection and Security requirements of the Licensed Programs
while such Licensed Programs are in use outside the United States. In
particular, without limiting the generality of the foregoing, Customer hereby
agrees that it will not directly or indirectly, export, re-export or transship
the Licensed Programs or such other information, media or products in violation
of or otherwise in contravention of the export laws, rules and regulations of
the United States or any Country where Newbridge provides written approval to
use the Licensed Programs.
8.9 No term or provision of this Agreement shall be deemed waived and no breach
excused unless such waiver or consent is in writing and signed by the party
claimed to have provided such waiver or consent. No waiver by either party of
any right, failure to perform or of any breach by the other party hereunder,
shall be deemed to be a waiver of any other right hereunder or of any other
breach or failure by such other party, whether of a similar nature or otherwise.
8.10 This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Virginia. The application of the United Nations
Convention on Contracts for the International Sale of Goods is hereby expressly
excluded.
