NETSPEAK PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement") is made as of
June 17, 1998 (the "Agreement Date") by and between NetSpeak
Corporation, a Florida corporation, having a place of business at 000
Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000 ("NetSpeak") and
Access Power, Inc. having a place of business at 00000 Xxxxxxxx Xxxxx
Xxxx Xxxxx 000 Xxxxx Xxxxx Xxxxx, Xxxxxxx, XXX 32082 ("Customer").
NOW THEREFORE, in consideration of the mutual covenants and
promises herein, the parties agree as follows:
"NetSpeak Product(s)" shall mean the hardware, software,
firmware, combination thereof or services listed on the attached
Schedule A. NetSpeak may at any time update, revise or discontinue
any Product(s).
"Port" means a connection from the Gateway Software that can be
accepted by any NetSpeak Product. The maximum number of ports of a
NetSpeak Product is the maximum number of connections from the
Software that the NetSpeak Product can utilize simultaneously. For
example, ten (10) T1 gateways have 240 PSTN ports. The GRS, EMS and
other future NetSpeak Corporation products based on port licensing
would use 240 ports as the standard for calculating the licensing fee
for that product.
1. PURCHASE TERMS AND CONDITIONS
(a) ORDERING. Customer will purchase units of the NetSpeak
Products by issuing a written purchase order indicating
model number and quantity of each NetSpeak Product desired,
the price, and requested delivery date. All purchase orders
shall be dated, uniquely numbered for identification,
reference this Agreement, incorporate the terms and
conditions of this Agreement and be signed by a duly
authorized representative of Customer. The terms and
conditions of this Agreement prevail regardless of any
conflicting terms or conditions on Customer's purchase
order. Purchase orders must be received by NetSpeak at
least 14 business days prior to the requested delivery date
specified on the order, and during the term of this
Agreement. All such purchase orders and delivery dates are
subject to written acceptance by NetSpeak and shall be
deemed accepted if in accordance with the terms of this
Agreement and are not rejected in writing by the NetSpeak
within seven (7) business days of receipt thereof.
(b) PRICES. The list price for the NetSpeak Products shall be
as determined by NetSpeak in its discretion and may be
changed by NetSpeak at its sole discretion at any time. All
prices are exclusive of any sales, usage, import, excise,
and other taxes (except those specified based upon
NetSpeak's net income), shipping, maintenance & support,
dongles and insurance. Such items, including any withholding
taxes on royalty fees and other costs, when applicable,
shall appear as separate items on NetSpeak's invoices, and
shall be paid by Customer.
(c) PAYMENT. All payment shall be made in U.S. currency in the
United States and shall be due within thirty (30) days after
delivery or date of invoice, whichever is later. For the
initial purchase of products that are identified herein as
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Exhibit A the special payment terms noted therein will apply
for this initial purchase and all subsequent orders will
assume the standard payment terms described within this
section. If at any time Customer is delinquent in the
payment of any invoice or is otherwise in breach of this
Agreement, NetSpeak may, in its discretion, withhold
shipment (including partial shipment) of any order or may,
at its option, require Customer to pay C.O.D. for further
shipments. A service charge of one and one-half percent
(1.5%) per month (or the maximum rate permitted by law) may
be assessed by NetSpeak on payments more than ten (10) days
past due.
(d) SOFTWARE. The terms and conditions by which Customer may
copy, use or transfer any program code, including object
code, source code or firmware, hereafter referred to as
"Software", contained within the NetSpeak Products are set
forth in the Program License Agreement accompanying the
NetSpeak Product(s) and similar to that set forth in
Schedule B. In the event of a conflict between the terms
and conditions contained herein and such Program License
Agreement, the terms and conditions of the Program License
Agreement are controlling as to any Software contained
within the NetSpeak Product(s). Where license fees are
based on the total maximum number of Ports available with a
NetSpeak Product, Customer may utilize the Software on
different computer simultaneously, up to the maximum number
of Ports purchased. The Software is protected by the
copyright and patent laws of the United States and
international copyright treaties and is licensed not sold.
Customer may transfer its rights in the software to a third
party provided the third party agrees to the same terms and
conditions as contained herein and Customer does not use or
retain any copy of the NetSpeak Product so transferred.
(e) TRANSFER/RESALE OF NETSPEAK PRODUCTS. Customer may
transfer its rights in the NetSpeak Product(s) to a third
party provided: i) the third party agrees to the same terms
and conditions as contained herein ii) Customer does not use
or retain any copy of the NetSpeak Product transferred, and
iii) all software is transferred in original, unmodified
form and accompanied by the appropriate Program License
Agreement. No further compensation is due to NetSpeak for
such subsequent transfers. Any subsequent. purchaser for
value does not receive any title or ownership in the
NetSpeak software only a license to use as set forth herein.
2. RESCHEDULING, SHIPMENT AND DELIVERY
(a) RESCHEDULING. During the first thirty (30) days following
the receipt of Customer's purchase order by NetSpeak, Customer may
reschedule the delivery date for such purchase order without penalty
to a date not later than sixty (60) days following the original
scheduled delivery date. Purchase orders may not be rescheduled more
than once. The rescheduling does not apply for products that are
specified to be ordered and shipped by June 30, 1998 according to
schedule A attached hereto
(b) SHIPPING DATES. NetSpeak will provide to Customer an
anticipated scheduled delivery date for each purchase order within
three (3) business days after acceptance of the purchase order.
NetSpeak will attempt to deliver the NetSpeak Products by the
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requested delivery date, subject to restrictions in manufacturing,
scheduling, material and production availability. NetSpeak will
notify Customer of any significant delays in delivery as soon as
NetSpeak becomes aware of such delay. If deliveries are made in
installments, each shipment shall be paid for when due without regard
to the other scheduled deliveries. In the event NetSpeak notifies
Customer of a delay of five (5) or more days in the scheduled delivery
date, Customer shall have the right to reschedule the delivery date
within sixty (60) days of the originally requested delivery date.
(c) FREIGHT CHARGES. Delivery shall be made F.O.B at NetSpeak's
plant of manufacture. Customer shall be responsible for all freight,
handling and insurance charges. Unless given written instruction to
the contrary, NetSpeak shall be responsible for and shall select the
carrier for all shipments. In no event shall NetSpeak have any
liability in connection with shipment, nor shall the carrier be deemed
to be an agent of NetSpeak.
(d) SECURITY INTEREST. Title to and risk of loss or damage
shall pass from NetSpeak to Customer upon delivery to common carrier
or Customer's representative at the F.O.B. point. Delivery shall be
deemed made upon transfer of possession to the carrier. Customer
grants to NetSpeak a security interest in the NetSpeak Products
purchased under this Agreement to secure payment for those NetSpeak
Products purchased. If requested by NetSpeak, Customer agrees to
execute financing statements, or other necessary documentation from
time to time, to perfect this security interest.
3. CUSTOMER COVENANTS AND REPRESENTATIONS
Customer covenants to NetSpeak to:
(a) keep NetSpeak informed as to any problems encountered with
the NetSpeak Products and any resolutions arrived at for those
problems.
(b) comply with all export control laws and regulations of the
United States Government, including, but not limited to 15 CFR Parts
370-799 Export Administration Regulations of the Department of
Commerce, 22 CFR Parts 120-130 International Traffic in Arms
Regulations of the Department of State, 31 CFR 500 Foreign Assets
Control Regulations of the Department of the Treasury, and regulations
issued under the authority of the Atomic Energy Act of 1954 by the
Nuclear Regulatory Commission or the Department of Energy, or
successor supplement or regulation. Customer shall not export, or
allow to be exported or re-exported, any Proprietary Information, or
NetSpeak Product in violation of any such restriction, law or
regulation. Customer shall maintain applicable records about all
exports, including showing compliance with the regulations pertaining
to export to military entities or for military end-users, and shall
obtain and bear all expenses relating to any necessary licenses and/or
exemptions with respect to the export from the United States of all
materials or items deliverable by NetSpeak to any location and shall
demonstrate to NetSpeak compliance with all applicable export control
laws and regulations prior to delivery thereof by NetSpeak.
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4. LIMITED WARRANTY AND LIABILITY
(a) NetSpeak warrants to Customer, and only to Customer, that
all NetSpeak Products shall be free from material defects in materials
and workmanship under normal and proper use, and shall substantially
conform to the specification to be published by NetSpeak. The fact
that the warranty runs only to Customer does not obviate NetSpeak's
obligation to fulfill warranty claims by Customer which arise from
claims by Customer's customers, although all warranty claims of such
customers shall be asserted by Customer. Customer agrees not to make
any other warranty commitment on NetSpeak's behalf beyond those in the
foregoing limited warranty. Such warranty does not apply to units of
the NetSpeak Products that have been mishandled, mistreated, used,
maintained or stored in any manner other than in the conformity with
NetSpeak's instructions. The warranty on all NetSpeak Products which
can be identified by shipment will terminate ninety (90) days after
the date of receipt of such NetSpeak Products by the Customer. With
respect to all NetSpeak Products for which receipt documentation is
not available, the warranty shall terminate ninety (90) days from the
date of the manufacturing date code stamped on the NetSpeak Product.
(b) Any claim under the warranty must be submitted before the
end of the warranty period to NetSpeak at such address as NetSpeak
provides Customer upon request. The units of the NetSpeak Products
subject to a warranty claim must be securely packaged, insured, and
shipped freight prepaid. Customer must obtain a return authorization
number from NetSpeak before shipping any NetSpeak Product, and include
a written description of the defect.
CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE
FOREGOING WARRANTY SHALL BE REPLACEMENT OF OR (AT NETSPEAK'S OPTION )
REFUND FOR RETURNED NON-CONFORMING UNITS OF THE NETSPEAK PRODUCTS FOR
WHICH FULL DOCUMENTATION AND PROOF OF NON-CONFORMITY IS PROVIDED TO
NETSPEAK WITHIN NINETY (90) DAYS AFTER THE ORIGINAL NON-CONFORMING
UNITS ARE RECEIVED BY PURCHASER. EXCEPT FOR THE FOREGOING, NO OTHER
REPRESENTATIONS OR WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE
WARRANTIES OF WORKMANSHIP, MERCHANTABLITY, FITNESS FOR PARTICULAR
PURPOSE, DURABLITY OR NON-INFRINGEMENT ARE MADE BY NETSPEAK WITH
REGARD TO THE NETSPEAK PRODUCTS. ALL TERMS AND CONDITIONS OF THE
UNIFORM COMMERCIAL CODE REGARDING EXPRESS OR IMPLIED REPRESENTATIONS
OR WARRANTIES WHICH MAY APPLY TO THE NETSPEAK PRODUCT(S) ARE HEREBY
SPECIFICALLY DISCLAIMED. NETSPEAK HAS NOT AUTHORIZED ANYONE TO MAKE
ANY REPRESENTATION OR WARRANTY OTHER THAN AS PROVIDED ABOVE. IN NO
EVENT WILL NETSPEAK BE LIABLE FOR ANY DAMAGES CAUSED BY EITHER PARTY'S
FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER, OR FOR ANY LOST PROFITS
OR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR
CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF NETSPEAK HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) In the event that any NetSpeak Product is returned to
NetSpeak under the provisions of this Section, NetSpeak will use
commercially reasonable efforts to repair or replace such NetSpeak
Product, at NetSpeak's sole expense, within ten (10) business days of
the receipt of such NetSpeak Product by NetSpeak. Transportation
costs incurred with respect to the return of such NetSpeak Product
shall be borne by Customer when returned to NetSpeak, and by NetSpeak
when returned to Customer. NetSpeak Products repaired by the NetSpeak
under the warranty provisions hereof shall be warranted for a period
of ninety (90) days or the remainder of the original warranty period,
whichever is greater.
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(d) If Customer wishes to have any NetSpeak Product repaired
other than under the warranty provisions herein, NetSpeak agrees to
repair such NetSpeak Product at NetSpeak's then-current standard
published repair rates (without discounts), and Customer shall
reimburse NetSpeak for all travel, room, board or other expenses
incurred by NetSpeak in connection therewith.
5. GENERAL
5.1 ASSIGNMENT. This Agreement shall not be assigned by either
party without the advance written consent of the other,
which consent both parties agree will not be unreasonably
withheld; provided, however, that either party may assign
this Agreement in its entirety to a successor to all or a
substantial portion of its business or, to a purchaser of
all of NetSpeak's rights in any NetSpeak Product. This
Agreement shall be binding upon and inure to the benefit of
the parties, their successors and permitted assigns.
5.2 ENTIRE AGREEMENT. This Agreement, and the exhibits hereto,
constitute the entire Agreement between the parties with
respect to its subject matter; except as provided herein,
all prior agreements, representations, statements,
negotiations and undertakings, with respect to such subject
matter are terminated and superseded hereby.
5.3 AMENDMENTS. No amendment to this Agreement shall be
effective unless it is in writing and signed by a duly
authorized representative of each party.
5.4 CONSENT TO BREACH NOT WAIVER. No term or provision hereof
shall be deemed waived and no breach excused, unless such
waiver or consent shall be in writing and signed by the
party claimed to have waived or consented. Any consent by
any party to, or waiver of, a breach by the other, whether
express or implied, shall not constitute a consent to,
waiver of, or excuse for any other different or subsequent
breach.
5.5 SEVERABILITY. In the event any provision of this Agreement
is held illegal, void or unenforceable, to any extent, in
whole or in part, as to any situation or person, the balance
shall remain in effect and the provision in question shall
remain in effect as to all other persons or situations, as
the case may be.
5.6 RESTRICTIVE RIGHTS LEGENDS. If Purchaser is acquiring any
NetSpeak Product in the form of object, source or other
computer programming code on behalf of any unit or agency of
the U.S. Government, the following shall apply:
(i) For units of the Department of Defense, use,
duplication or disclosure by the Government is subject
to restrictions as set forth in subparagraph (c)(1)(ii)
of the Rights in Technical Data and Computer Software
Clause at DFAR 252.227-7013;
(ii) For any other unit or agency use, reproduction or
disclosure is subject to the restrictions set forth in
subparagraphs (a) through (d) of the Commercial
Computer Software - Restricted Rights clause at FAR
52.227-19, and the limitations set forth in NetSpeak's
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standard commercial agreement for this software.
Contractor/manufacturer is NetSpeak Corp., 000 Xxxxx
Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000
5.7 GOVERNING LAW. This Agreement shall be deemed to have been
made in the State of Florida, and shall be governed by and
construed in accordance with the laws of the State of
Florida, exclusive of its rules governing choice of law and
conflict of laws.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized representatives as of the
Agreement Date.
NetSpeak Corporation Purchaser
_____________________________ _______________________________
By By
_____________________________ _______________________________
Name Name: Xxxxx Xxxxx
_____________________________ _______________________________
Title Title
_____________________________ _______________________________
Date Date
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SCHEDULE A
GATEWAYS Quantity Delivery Date Price Extended
-------- -------- ------------- ----- --------
T1 WGX (Bundled Price) 17 6/30/98 $ 30,584.00 $ 519,928.00
Dual T1 (Bundled Price) 4 6/30/98 $ 60,341.60 $ 241,366.40
Triple T1 (Bundled Price) 2 6/30/98 $ 79,917.50 $ 159,835.00
Quad T1 (Bundled Price) 1 6/30/98 $ 97,223.24 $ 97,223.24
X0 XXX (Bundled Price) 2 6/30/98 $ 30,584.00 $ 61,168.00
$ 1,079,520.64
Number of Ports Price per port
GRS ports 90065 6/30/98 $ 240 per port included above
EMS ports 90065 6/30/98 $ 240 per port included above
ITEL Call Center (software) - Supplied free of charge for internal $ -
---------------
evaluation purposes $ 1,079,520.64
---------------
Maint. & Support 12 Month (Refer to Schedule C) 8.0% $ 86,361.65
---------------
Includes Hardware & Software Upgrades 12 months $ 1,165,882.29
Sales Tax 6.0% $ 69,952.94
Delivery (included for initial shipment to Jacksonville, FL) $ -
-------------------------------------------------------------------------------------------
Total $ 1,235,835.23
===========================================================================================
Terms of Payment
150,000.00 upon execution of contract
50,000.00 60 Days from Shipment
100,000.00 120 Days from Shipment
100,000.00 150 Days from Shipment
Final Payment 835,835.23 180 Days from Shipment
________________________________________
1,235,835.23
==============================
Upon Access Power
receiving additional capital
funding then all payments
will become due
immediately
Attached is the agreed upon pricing for future related products
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FUTURE PRICING PRODUCT NUMBER WGX Only Price Per Port Includes
WGX, GRS, EMS
----------------------------------------------------------------------------------------------------------------
T1 Gateway WGX/241PTT $ 26,229.00 1,573
Dual T1 Gateway WGX/481PTT $ 51,438.00 1,470
Triple T1 Gateway WGX/721PTT $ 64,080.00 1,370
Quad T1 Gateway WGX/961PTT $ 73,920.00 1,250
24 Port T1 analog Gateway WGX/241PTTA $ 26,229.00 1,573
48 Port T1 analog Gateway WGX/481PTTA $ 51,438.00 1,470
72 Port T1 analog Gateway WGX/721PTTA $ 64,080.00 1,370
96 Port T1 analog Gateway WGX/961PTTA $ 73,920.00 1,250
X0 Xxxxxxx WGX/301PTE $ 32,790.00 1,573
Dual X0 Xxxxxxx WGX/601PTE $ 59,400.00 1,470
Triple X0 Xxxxxxx WGX/901PTE $ 80,100.00 1,370
Quad X0 Xxxxxxx XXX/0000XXX $ 92,400.00 1,250
30 Xxxx X0 analog Gateway WGX/301PTEA $ 32,970.00 1,573
60 Xxxx X0 analog Gateway WGX/601PTEA $ 59,400.00 1,470
90 Xxxx X0 analog Gateway WGX/901PTEA $ 80,100.00 1,370
120 Xxxx X0 analog Gateway WGX/1201PTEA $ 92,400.00 1,250
GRS (Required for Gateways) $240 per port
EMS (Required for Gateways) $240 per port
UPGRADES
--------------------------------------------------------------------------
| All upgrades within a specific platform will be upgraded at a |
| price to equal the per port price as if the upgraded unit was |
| purchased from NetSpeak at the initial per port price plus shipping |
| and dongle charges of $150 per unit. For example a T1 to |
| Dual T1 upgrade will include necessary components from NetSpeak |
| to be shipped for a price of $25,209 plus $240 for each additional |
| GRS and EMS port. |
--------------------------------------------------------------------------
Other Server Products (Software Only)
-------------------------------------
Subscribed Account Mgmt. SAM1 $10,000 for 20,000 Client
Records for each computer that
software is installed except
redundant backup
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For credit/debit/call duration SAM3 $25,000 for unlimited license
over first 20,000 records for
each computer
Information Services IS1 $2500 for up to 1000 records
IS3 $.50 for each client record
(min. order 500
records)
Credit Processing Services CPS1 $6,000 per POS
Upgrade to write to EMS CPS2 $6000 per POS
Install/Deliver/Maint.
----------------------
Installation $5000 plus Expenses
Delivery $150 per WGX
Maintenance & Support 10% of Purchase
Standard Delivery 2 Weeks
-----------------
Additional Services
-------------------
Custom WebPhone (Logo interface) $10,000 per Phone
Client WebPhone SWP3.1 $10 per phone All foreign languages
that NetSpeak makes
generally available
Min. WebPhone MWP Unlimited No
Charge
Agreement Value
---------------
The minimum committed value of services and products under this
agreement is $4,000,000 to be ordered and delivered no later than 24
months from the execution of this agreement. The initial order in
regard to this agreement is specified above. The commitment of
$4,000,000 becomes null and void in the event prices for products
listed above shall increase. Access Power may purchase gateways from
other suppliers that use NetSpeak technology during the term of this
agreement. However, all server technology must be purchased
exclusively from NetSpeak including the GRS, EMS, and other such
products listed above or that become generally available from
NetSpeak.
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Schedule B
NetSpeak Corporation License Agreement
(Product Name) (Release Version Number)
BY INSTALLING AND RUNNING THIS SOFTWARE PROGRAM YOU AGREE TO BE BOUND
BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO
THE TERMS OF THIS AGREEMENT, DO NOT CONTINUE THIS INSTALLATION AND
DELETE ANY PORTIONS OF THIS SOFTWARE ALREADY INSTALLED ON YOUR SYSTEM.
ALL TERMS AND PROVISIONS HEREIN ARE RELATED TO THE INSTALLATION AND
USE OF THE SOFTWARE IDENTIFIED IN SCHEDULE A
LICENSE GRANT
NetSpeak Corporation ("NetSpeak") grants to You a non-exclusive
license under Copyrights to use its (Product Name/Release) software
("Software Product") on a single computer at any one time. The
Software Product is "in use" on a computer when it is resident in
memory (i.e., RAM) or when executable or other files are installed on
the hard drive or other storage device of the computer. Where license
fees are based on the total maximum number of ports available with a
Software Product, You may utilize the Software Product on different
computers simultaneously, up to the maximum number of ports licensed.
You may not, or may not permit other individuals to, copy, modify,
translate, reverse engineer, decompile, disassemble, or create
derivative works from the Software Product, or remove any proprietary
notices or labels on the Software product, including copyright,
trademark or patent pending notices.
SOFTWARE PRODUCT
NetSpeak reserves the right to at any time alter prices, features,
capabilities, functions, licensing terms, release dates, general
availability or any other characteristics of the Software Product as
NetSpeak sees fit.
TITLE
Title, ownership rights, and intellectual property rights in and to
the Software Product remain with NetSpeak. The Software Product is
protected by the copyright and patent laws of the United States and
international copyright treaties.
You acknowledge and agree that the Software Product contains
proprietary and confidential information of NetSpeak. You agrees to
protect the confidential and proprietary nature of the Software
Product in the same manner that You protect Your own confidential
information of like value, provided that You will in all cases use
reasonable care to protect the Software Product.
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LIMITED WARRANTY
NetSpeak warrants that the Software Product will perform substantially
in accordance with the accompanying documentation for a period of
ninety (90) days from date of first use. Some states and
jurisdictions do not allow limitation on the duration of implied
warranties, so the above limitation may not apply to you. Except as
expressly provided herein there are no warranties, conditions or
representations express or implied by statute, usage, custom of the
trade or otherwise with respect to the Software Product licensed by
Netspeak hereunder, including but not limited to, warranties or
representations of workmanship, merchantability, suitability or
fitness for a particular purpose, durability or noninfringernent.
Without limiting the generality of the foregoing, Netspeak does not
warrant that the Software Product will meet all of your needs or that
operation of the Software Product will be error free. This limited
warranty constitutes an essential part of this Agreement.
CUSTOMER REMEDY
NetSpeak and its suppliers' entire liability and your exclusive remedy
shall be, at NetSpeak's option to either (a) refund the license fee,
or (b) repair or replace the Software Product that does not meet
NetSpeak's limited warranty. This limited warranty is void if failure
of the Software Product has resulted from accident, abuse, or
misapplication. Any replacement Software Product under the limited
remedy will be warranted for the reminder of the original warranty
period or thirty (30) days, which ever is longer.
LIMITATION OF LIABILITY
Under no circumstances and under no legal theory, whether in tort,
contract, or otherwise, shall NetSpeak or any other person be liable
for any direct, indirect, special, incidental, exemplary, punitive or
consequential damages of any character including, without limitation,
damages for loss of goodwill, work stoppage, computer failure or
malfunction, or any and all other commercial damages or losses, even
if NetSpeak has been advised of the possibility of such damages. In
no event will NetSpeak be liable for any damages whatsoever in excess
of the amount paid for the Software Product that is the subject matter
of the claim or that is directly related to the cause of action.
TERM
This Agreement shall become effective upon your installation of the
Software Product and shall terminate automatically upon breach of this
Agreement by you, if any. NetSpeak may terminate this Agreement at
any time, for any reason, however, NetSpeak may refund a prorated
portion of the license fee upon any such termination, at NetSpeak's
discretion.
MISCELLANEOUS
If any provision of this Agreement is held to be unenforceable for any
reason, such provision shall be reformed only to the extent necessary
to make it enforceable. This Agreement shall be governed by and
construed under Florida law, except as pre-empted by United States
Federal law. The application the United Nations Convention of
Contracts for the International Sale of Goods is expressly excluded.
-2-
You shall comply with all export regulations pertaining to the
Software Product in effect from time to time. In particular, without
limiting the generality of the foregoing, You hereby warrant that you
will not directly or indirectly export, re-export or transship the
Software Product or such other information, media or products in
violation of or otherwise in contravention of the export laws, rules
and regulations.
U.S. GOVERNMENT RESTRICTED RIGHTS
Use, duplication or disclosure by the Government is subject to
restrictions set forth in subparagraphs (a) through (d) of the
Commercial Computer-Restricted Rights clause at FAR 52,227-19 when
applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical
Data and Computer Software clause at DFARS 252,227-7013, and in
similar clauses in the NASA FAR Supplement.
CUSTOMER SUPPORT
Unless you have entered into a separate support and maintenance
agreement with NetSpeak, you shall receive technical support during
he term of the warranty period set forth above in accordance with the
NetSpeak software support policy in effect for the Software Product.
For technical support related to the Software Product call NetSpeak
Corp. at (000) 000-0000.
-3-
Schedule C
NETSPEAK MAINTENANCE AND SUPPORT AGREEMENT
This Maintenance and Support Agreement (this "Agreement") is made
as of June 17, 1998 (the "Agreement Date") by and between NetSpeak
Corporation, a Florida corporation, having a place of business at 000
Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000 ("NetSpeak") and
_Access Power, Inc. having a place of business at 00000 Xxxxxxxx
Xxxxx Xxxx Xxxxx 000 Xxxxx Xxxxx Xxxxx, Xxxxxxx, XXX 32082
("Customer").
NOW THEREFORE, in consideration of the mutual covenants and
promises herein, the parties agree as follows:
"NetSpeak Product(s)" shall mean the hardware, software,
firmware, combination thereof or services listed on the attached
Schedule A. NetSpeak may at any time update, revise or discontinue
any Product(s).
1. MAINTENANCE OBLIGATIONS AND FEES
1.1 NetSpeak shall provide to Customer the maintenance and
support services set forth in Section 1.2 herein, subject to
Customer's payment of the sum of eight percent (8%) of the total
purchase price of NetSpeak Products to be serviced for the initial
twelve month period following delivery of the NetSpeak Products. In
return, as part of the maintenance and support services, NetSpeak
shall provide to Customer all enhancements, upgrades, and subsequent
releases to both the hardware and software comprising the NetSpeak
Products for which support fees have been paid. Thereafter, for each
subsequent twelve month period following the one year anniversary of
delivery of the NetSpeak Products and subject to Customer's payment of
the sum of ten percent (10%) of the total purchase price of NetSpeak
Products to be serviced, NetSpeak shall provide to Customer the
maintenance and support services set forth below. NetSpeak shall
invoice Customer for the maintenance and support fee forty-five (45)
days prior to the expiration of the then current warranty period.
Such invoice shall be due and payable by Customer within the 30-days
from the date of such invoice in order to maintain continuous warranty
and support services. Customer may terminate the maintenance and
support subscription set forth herein upon ninety (90) days written
notice to NetSpeak, provided however, that if Customer subsequently
requests to NetSpeak to provide maintenance and support services,
Customer will be obligated to purchase retroactively all previously
unpurchased support periods, in addition to then current maintenance
and support period. If for any reason Customer has not fulfilled its
payment obligation set forth in Section 1.1 of this Agreement for more
than thirty (30) days, NetSpeak shall have authority to terminate any
maintenance or service obligations hereunder.
1.2 NetSpeak shall provide support and maintenance to Customer
with respect to each NetSpeak Product for the periods of time which
Customer has satisfied the payment obligation set forth in Section
1.1. Support and maintenance shall include (i) all error correction,
maintenance modifications and minor releases necessary for the
NetSpeak Products to perform to their original specifications; (ii)
telephone help service staffed by qualified representatives of
NetSpeak available to Customer five (5) days per week and eight (8)
hours per day including direct call service or through electronic
paging; (iii) the repair of any error or defect in the NetSpeak
Product and/or replacement of nonrepairable Licensed Products, but
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specifically excluding any third party hardware other than in the
initial purchase for delivery by June 30,1998 whether purchased
separately by Customer or through NetSpeak. These support and
maintenance services include all enhancements, upgrades, new versions
or subsequent releases of the NetSpeak Products that add new features
or functionality.
1.3 NetSpeak shall provide to Customer telephone help line
service and an electronic mail address by which Customer may ask
questions and/or notify NetSpeak of any technical problems, program
errors, or defects which cause the NetSpeak Products not to perform up
to their technical specifications. Customer shall provide sufficient
information to enable NetSpeak to evaluate and verify the existence of
an error in one of the NetSpeak Products, hereafter an "Incident."
Following notice by Customer of an Incident and verification of the
same by NetSpeak, NetSpeak will assign a Severity Level to the
Incident, in accordance with the categories defined below. NetSpeak
shall respond to the Incident within the time limit set forth below
and address the nature of the Incident so that the NetSpeak Products
perform in accordance with their written user instructions and
technical specifications.
1.4 If, upon investigation, it is determined that the Incident
is not caused by a nonconformance of any of the Licensed Products,
Customer agrees to pay all cost incurred by NetSpeak related to the
Incident, including all reasonable travel and living expenses, an
administrative charge equal to twenty percent (20%) of the total
travel and living expenses incurred by NetSpeak due to the Incident,
and an hourly rate for technical assistance rendered in relation to
the Incident, according to the following rates:
Technician $90/hour
Engineer $120/hour
Principal Engineer $150/hour
1.5 For so long as Customer performs the payment obligations set
forth in Section 1.1 to obtain Maintenance and Support for a NetSpeak
Product, NetSpeak agrees to deliver all Maintenance and Support to
Customer, within the following timeframes based upon the Severity
Level of the Incident:
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Severity 1: Unable to use NetSpeak Product; Errors Within four (4)business days, maximum
unavoidable; Major effort given until an
feature/function not usable emergency
fix or bypass is developed and
available to be shipped to Customer;
Critical situations may require
Customer and NetSpeak to be at their
respective work locations, or
available, on an around the clock
basis.
Severity 2: Severely restricted product use; Within seven (7) business days
Considerable work around effort
Severity 3: Use of product with some restrictions Within sixty (60) calendar days
Easily avoidable; Not detrimental to
user's data/media/output
Severity 4: Little or no impact; can be circumvented At next release of NetSpeak Product
The number of days indicated represents the time from
verification of the Incident by NetSpeak until the correction or other
resolution is received by Customer from NetSpeak.
1.6 NetSpeak is not obligated to perform investigation and/or
corrections of Errors to the extent reasonably found by NetSpeak to be
either: (i) in other than a current release of a NetSpeak Product,
provided that the newer release still complies with the applicable
product specifications; (ii) caused by Customers negligence; (iii)
caused by a modification to the NetSpeak Product by Customer, or their
respective employees and contractors; or (iv) due to external causes
such as, but not limited to, power failure or electric surges, harmful
code including computer viruses and worms not present in the NetSpeak
Product as delivered to Customer, or combination of the NetSpeak
Product(s) with hardware or software with which the NetSpeak
Product(s) were not intended to work. In addition, if, upon
investigation, it is determined by the Parties that the Error reported
by the Customer is not caused by non-conformance of a NetSpeak
Product, Customer shall pay all costs reasonably incurred by NetSpeak
in investigating, addressing and resolving the error, as applicable,
including the hourly rates set forth above, as well as all reasonable
travel expenses, and an administrative charge equal to five percent
(5%) of such total travel expenses.
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2. LIMITED WARRANTY AND LIABILITY
(a) NetSpeak warrants to Customer, and only to Customer, that
all maintenance and support services shall be free from material
defects in materials and workmanship under normal and proper use, and
shall substantially conform to the specification to be published by
NetSpeak. The fact that the warranty runs only to Customer does not
obviate NetSpeak's obligation to fulfill warranty claims by Customer
which arise from claims by Customer's customers, although all warranty
claims of such customers shall be asserted by Customer. Customer
agrees not to make any other warranty commitment on NetSpeak's behalf
beyond those in the foregoing limited warranty.
(b) CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE
FOREGOING WARRANTY SHALL BE COMPLETION OF THE REQUIRED MAINTENANCE AND
SUPPORT SERVICES. EXCEPT FOR THE FOREGOING, NO OTHER REPRESENTATIONS
OR WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF
WORKMANSHIP, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE,
DURABILITY OR NON-INFRINGEMENT ARE MADE BY NETSPEAK WITH REGARD TO THE
NETSPEAK PRODUCTS. ALL TERMS AND CONDITIONS OF THE UNIFORM COMMERCIAL
CODE REGARDING EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WHICH
MAY APPLY TO THE NETSPEAK PRODUCT(S) OR SERVICES PERFORMED HEREUNDER
ARE HEREBY SPECIFICALLY DISCLAIMED. NETSPEAK HAS NOT AUTHORIZED
ANYONE TO MAKE ANY REPRESENTATION OR WARRANTY OTHER THAN AS PROVIDED
ABOVE. IN NO EVENT WILL NETSPEAK BE LIABLE FOR ANY DAMAGES CAUSED BY
EITHER PARTY'S FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER, OR FOR
ANY LOST PROFITS OR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL,
EXEMPLARY OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF NETSPEAK
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
3. GENERAL
3.1 Assignment. This Agreement shall not be assigned by either
party without the advance written consent of the other,
which consent both parties agree will not be unreasonably
withheld; provided, however, that NetSpeak may assign this
Agreement in its entirety to a successor to all or a
substantial portion of its business or, to a purchaser of
all of NetSpeak's rights in any NetSpeak Product. This
Agreement shall be binding upon and inure to the benefit of
the parties, their successors and permitted assigns.
3.2 Entire Agreement. This Agreement, and the exhibits hereto,
constitute the entire Agreement between the parties with
respect to its subject matter; except as provided herein,
all prior agreements, representations, statements,
negotiations and undertakings, with respect to such subject
matter are terminated and superseded hereby.
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3.3 Amendments. No amendment to this Agreement shall be
effective unless it is in writing and signed by a duly
authorized representative of each party.
3.4 Consent to Breach Not Waiver. No term or provision hereof
shall be deemed waived and no breach excused, unless such
waiver or consent shall be in writing and signed by the
party claimed to have waived or consented. Any consent by
any party to, or waiver of, a breach by the other, whether
express or implied, shall not constitute a consent to,
waiver of, or excuse for any other different or subsequent
breach.
3.5 Severability. In the event any provision of this Agreement
is held illegal, void or unenforceable, to any extent, in
whole or in part, as to any situation or person, the balance
shall remain in effect and the provision in question shall
remain in effect as to all other persons or situations, as
the case may be.
3.6 Governing Law. This Agreement shall be deemed to have been
made in the State of Florida, and shall be governed by and
construed in accordance with the laws of the State of
Florida, exclusive of its rules governing choice of law and
conflict of laws.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized representatives as of the
Agreement Date.
NetSpeak Corporation Customer
___________________________ ___________________________________
By By
___________________________ ___________________________________
Name Name: Xxxxx Xxxxx
___________________________ ____________________________________
Title Title
___________________________ ____________________________________
Date Date
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