CONFIDENTIAL TREATMENT REQUESTED AS TO CERTAIN
INFORMATION CONTAINED IN THIS EXHIBIT
EX 10.5
INTERSPEED, INC.
000 XXXXX XXXXX XXXXXX
XXXXXXXX, XX 00000
U.S.A.
AUTHORIZED RESELLER AGREEMENT
Reseller Name: Cabletron Systems, Inc.
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Effective Date:
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This Authorized Reseller Agreement ("Agreement") states the agreement between
Interspeed, Inc. and the Reseller named above, Cabletron Systems, Inc., a
Delaware corporation with principal offices at 00 Xxxxxxxxxx Xxx, Xxxxxxxxx,
Xxx Xxxxxxxxx 00000, hereinafter "Cabletron" with respect to said CABLETRON's
purchase and resale of certain Products of Interspeed as described herein. In
Consideration of the mutual promises contained herein, the parties agree as
follows:
Section 1. DEFINITIONS
For the purposes of this Agreement, the terms defined below shall have the
meanings indicated:
1.1 Interspeed - Interspeed, Inc. a Massachusetts corporation and its
affiliates. A Brooktrout Company.
1.2 Interspeed Product - a product as to which Interspeed is the
manufacturer or supplier as indicated on Schedule A.
1.3 Discount Schedule - Interspeed's established Cabletron Discount Schedule
as set forth in Schedule C, as such Cabletron Discount Schedule may be
changed by Interspeed from time to time upon thirty (30) days prior
written notice to Cabletron.
1.4 Effective Date - the effective date of this Agreement as set forth above.
1.5 Embedded Software - computer software or firmware in object code form,
which is delivered with a Hardware Product as a component thereof.
1.6 End User - an individual, corporation, partnership or other legal entity
("person") who uses Products only for such Person's personal or internal
business use, and not for resale or other distribution.
1.7 End User License - a license granted by Interspeed or a Third Party
Supplier to an End User to use a Software Product or Embedded Software,
including any "shrink wrap" or similar license accompanying a Software
Product or a Hardware Product which includes Embedded Software.
1.8 Hardware Products - Products which are not Software Products, as
identified on Schedule A. Hardware Products may include components of
Embedded Software.
1.9 Licensed Marks - those specific trademarks, service marks, product names
and trade names of Interspeed which are identified in Schedule D, and any
other such proprietary marks which Interspeed may authorize Cabletron in
writing to use.
1.10 List Price - the list price of any Product as set forth in Schedule B,
as such list prices may be changed by Interspeed from time to time upon
thirty (30) days prior written notice to Cabletron.
1.11 Minimum Quantity - the minimum quantity of Products measured by the Net
Discounted Price (as defined in Section 4.1), to be purchased by
Cabletron for purposes of Section 4.2, as set forth in Schedule A.
1.12 Products - those hardware, software and related products identified on
Schedule A.
1.13 Cabletron - the Reseller named above, as further identified on
Schedule A.
1.14 Term - the period commencing on the Effective Date and ending on the
expiration or termination of this Agreement for any reason.
1.15 Term Year - the initial term or any renewal term of this Agreement as
provided in Section 2.3.
1.16 Territory - the geographical area described in Schedule A.
1.17 Third Party Product - a Product as to which a Person other than
Interspeed is the manufacturer, licensor or supplier, as indicated on
Schedule A.
1.18 Third Party Supplier - the manufacturer, licensor or supplier of a
Third Party Product.
1.19 Update - a modification to a Software Product, which may include
corrections to errors in the prior release and may include minor changes
to functionality or user interface, but does not include any new features
or substantial changes to functionality.
1.20 Upgrade - any modification to a Product, which is not an Update.
Section 2. DISTRIBUTION RIGHTS
2.1 By this Agreement, Interspeed makes, and Cabletron accepts the
appointment of Cabletron as an authorized non-exclusive Reseller of
Product(s) solely in accordance with the terms and conditions of this
Agreement to third parties on a worldwide basis. Cabletron reserves the
right to market the Products to any customer in any location, directly
or indirectly, through other resellers, and other distribution channels,
including, without limitation, distributors and OEM's.
2.2 Territory--Cabletron is authorized to sell, lease or otherwise
distribute the Products only in the Territory. Without Interspeed's
prior written consent, Cabletron shall not solicit customers outside of
the Territory or sell the Products to any customer for use outside of
the Territory.
2.3 Term--The Term of this Agreement shall commence on the Effective Date
and shall extend initially until the end of the calendar quarter in
which the first anniversary of the Effective Date occurs. Thereafter,
the term of this Agreement shall be automatically extended for successive
renewal terms of one calendar year, unless terminated in accordance with
Section 11.
2.4 Treatment of Software Products--In the case of software Products and
Embedded Software, Cabletron's rights hereunder include and are limited
to the right to distribute copies of such Software Products in the form
distributed by Interspeed, including the accompanying End User Licenses
with respect to such Software Products as embodied in such copies. In
certain cases, Interspeed may specify other procedures, to protect its
rights in Software Products and Embedded Software distributed by
Cabletron. Cabletron shall comply with Interspeed's instructions with
respect to such procedures and shall not take or encourage any action,
which might tend to defeat their purpose. As applied to Software
Products and Embedded Software, "sell," "resell" and similar terms shall
be deemed to refer to the transfer for consideration of such copies and
End User Licenses, without any transfer of ownership rights in the
underlying Software Product or Embedded Software.
2.5 Product Changes and New Products--This Agreement applies to the Products
specifically identified in Schedule A as they may be modified by
Interspeed from time to time. Interspeed reserves the right to make
changes in the Interspeed Products and Third Party Products are
expressly agreed by Interspeed. Interspeed shall be under no obligation
to appoint Cabletron as a reseller of any new or additional products
which may be sold or introduced by Interspeed. Interspeed shall exercise
reasonable best efforts to provide Cabletron with any enhancements or
improvements to the Interspeed Product, as soon as is practicable when
they become commercially available.
Section 3. MARKETING
3.1 Sales Efforts--Cabletron agrees to use its commercially reasonable best
efforts to promote the Products in the Territory. To assist Cabletron in
this regard, Interspeed will make available to Cabletron a supply of
sales brochures and technical documentation for the marketing and
promotion of the Products, which may be ordered by Cabletron at the
prices then in effect. Interspeed further will make available to
Cabletron the opportunity for its personnel to participate in sales and
technical training relating to the Products as offered by Interspeed
from time to time at prices then in effect. Cabletron shall be
responsible for the travel and other expenses of its personnel
attending such training.
Notwithstanding the above, Interspeed shall provide to Cabletron one (1)
set of technical documentation and one (1) set of user manuals for each
Interspeed Product, and twenty-five (25) sets of marketing brochures.
Interspeed agrees to furnish and update Product descriptions at no
charge for the initial order under this Agreement. Interspeed also
agrees to furnish and update at no charge technical documentation to
support Cabletron's planning, installation, testing, maintenance, and
operation of the Products, for the initial order under this Agreement.
Cabletron may make copies of Interspeed's Product description required
in response to prospects/customers' requests for proposal. Prior to or
contemporaneous with the delivery of Products, Interspeed shall provide
Cabletron with respect to each individual Product one (1) set of
documentation that addresses installation and maintenance of the Product.
Initial technical and sales training and information with respect to
installation and service of the Product, including training on any
special tools or test equipment, will be provided to Cabletron at no
cost for up to ten (10) people during the first six (6) months of this
Agreement. The training shall take place at a mutually agreed upon time
and location.
3.2 Licensed Marks--Cabletron is authorized to use the Licensed Marks in
connection with Cabletron's marketing and distribution of Products in
the Territory, solely in accordance with the terms of this Agreement,
including without limitation Section 10.2 and such reasonable
instructions and guidelines as Interspeed may establish in writing from
time to time.
3.3 Sales Information--Cabletron agrees to provide to Interspeed from time
to time, information with regard to Cabletron's customers, prospects and
marketing programs and plans, all in accordance with Interspeed's
reasonable requests and guidelines issued from time to time. All
information provided by Cabletron shall be deemed confidential unless
otherwise specified.
Section 4. PRICING & PAYMENT
4.1 Price--The price for units of the Products sold to Cabletron hereunder
("Net Discounted Price") shall be the product of (x) the list price of
the Product as in effect from time to time and (y) the Cabletron
Discount Level set forth in Schedule A, subject to adjustment as set
forth in Section. The current list price for the Products is set forth
in Schedule B. Cabletron acknowledges that the initial Cabletron
Discount Level as set forth in Schedule A has been determined on the
basis of the Minimum Quantity set forth in Schedule A. Cabletron
represents to Interspeed that it is Cabletron's best estimate and
expectation that it will purchase a quantity of Products at least equal
to such Minimum Quantity during the first Term Year under this
Agreement. Interspeed represents that the price charged for the Products
purchased hereunder by Cabletron are, when viewed as a whole, comparable
to the lowest prices charged by Interspeed to buyers of a class similar
to Cabletron purchasing in comparable quantities and circumstances and
under similar terms and conditions.
4.2 Minimum Commitments--The Cabletron Discount level for the Products is
contingent upon Cabletron purchasing Products having a total Net
Discounted Price at least equal to the Minimum Quantity during each Term
Year. If Cabletron's actual amount of purchases of Products (measured by
Net Discount Price) for any Term Year exceeds the Minimum Quantity
applicable to a higher Discount Level, the Cabletron Discount Level
shall be increased for the next Term Year to the rate determined in
accordance with the Discount Schedule. Conversely, if Cabletron fails to
achieve the Minimum Quantity for any Term Year, Interspeed shall have
the right to reduce the Cabletron Discount Level for the next Term Year
in accordance with the Discount Schedule. Notwithstanding the foregoing,
Interspeed reserves the right to review the rate of actual purchases of
Products during any Term Year and increase or decrease the Cabletron
Discount Level applicable to such Term Year if the rate of actual
purchases varies substantially from the anticipated rate of purchases
during such Term Year.
4.3 Price Changes--Interspeed reserves the right, in its sole discretion, to
change prices applicable to the Products by written notice to Cabletron
no less than thirty (30) days prior to the effective date of such
change. All purchase orders which have been received by Interspeed prior
to the expiration of said 30 days for Products which are to be shipped
within 30 days from order receipt date shall be at the prices which were
in effect prior to the price change notification.
4.4 Payment--Except as otherwise set forth herein, any sum due to Interspeed
pursuant to this Agreement shall be payable within thirty (30) days from
the date of invoice from Interspeed to Cabletron. A "correct" invoice
shall contain (i) Interspeed's name and invoice date, (ii) the specific
Purchase Order Number, (iii) description, price and quantity of the
Products or Services actually delivered, and (iv) complete mailing
address of where payment is to be sent. A correct invoice must be
submitted to the appropriate invoice address listed on the Purchase
Order. Failure by Cabletron to make payments when due may result in
delay of other scheduled shipments.
4.5 Taxes--Cabletron shall pay to Interspeed any tax on the Products or use
thereof, however designated, levied or based by any taxing authority,
except any tax based on or measured by the net income of Interspeed.
4.6 Currency--All monetary amounts in this Agreement are in U.S. dollars and
payments are to be made in U.S. dollars.
Section 5. ORDERS & SHIPMENT
5.1 Orders--Cabletron shall order units of the Products by submitting its
authorized written purchase order(s) containing such information as may
be required by Interspeed from time to time. All orders for units of the
Products placed by Cabletron shall be subject only to the terms and
conditions of this Agreement, and no contrary or additional terms stated
on Cabletron's purchase order or otherwise presented by Cabletron shall
have any effect. Orders shall become binding upon acceptance by
Interspeed provided that any order shall be deemed accepted unless
Interspeed provides notice of rejection to Cabletron within ten (10)
working days after receipt of such order.
5.2 Initial Order--Upon signing this Agreement, Cabletron shall place an
initial order with Interspeed for the number of units of Products set
forth in Schedule A.
5.3 Delivery--Units of the Products are delivered by Interspeed F.O.B.
Interspeed's point of shipment. Although Interspeed shall use reasonable
efforts to ship the units of Products ordered by Cabletron according to
the requested ship date on Cabletron's orders, delivery shall be subject
to availability of materials and other factors that may affect shipment,
and Interspeed shall not be liable for any delays in delivery for any
reason. Interspeed shall select the carrier. Cabletron assumes all risk
of loss upon delivery of units of the Products to the carrier by
Interspeed. Units of the Products shall be deemed accepted by Cabletron
upon delivery.
5.4 Delivery Charges--Unless otherwise directed by Cabletron, Interspeed
shall prepay the freight and invoice Cabletron for the transportation
charges. Insurance shall be provided by Interspeed at Cabletron's
expense, on units of the Products while in transit unless otherwise
instructed by Cabletron. Cabletron shall be responsible for all storage,
rigging and other charges at Cabletron's delivery site.
5.5 Cancellation and Rescheduling--The initial order for seventy-five (75)
Product (Systems) under this Agreement shall be firm and may not be
canceled or rescheduled and delivery shall be taken no later than
December 31, 1999. For additional Products, beyond the initial order of
seventy-five (75) described above, the following provisions shall apply:
Cabletron may cancel a purchase order or any portion thereof at any time
up to twenty (20) business days prior to the scheduled delivery date of
the Products specified in such purchase order. In the event Cabletron
cancels a purchase order or any portion thereof within twenty (20)
business days of the scheduled delivery date Cabletron agrees to pay to
Interspeed a restocking charge equal to fifteen percent (15%) of the
total amount of order canceled or rescheduled.
Section 6. PRODUCTS
6.1 Interspeed Hardware Product Warranty--Interspeed warrants to Cabletron
that all Hardware Products which are Interspeed Products and are sold in
accordance with this Agreement shall be free from defects in materials
and workmanship under normal and proper use for a period of one year
from date of delivery to Cabletron. This warranty does not include
expendable components. Interspeed further warrants that all Products
will comply with all applicable federal, state and other governmental
safety regulations in effect at the time of manufacture, and will be
listed with Underwriter's Laboratory (UL) if so required. Interspeed
further will exercise reasonable best efforts in conjunction with
Cabletron to have the Products comply with other certification
requirements on a country by country basis. Interspeed further warrants
that all Products will comply with current rules and regulations of the
Federal Communications Commission (FCC) concerning Electromagnetic
Interference, including, without limitation, equipment labeling and
instruction manual information requirements. Interspeed further warrants
that the Products have passed all applicable governmental or commercial
safety, quality, emission, and other appropriate U.S. product standards,
including UL, CSA and UDF. Interspeed further warrants and represents
that (i) Interspeed is the sole and exclusive owner of all
right, title and interest in and to the Products, has the full power,
right and authority to enter into this Agreement, carry out its
obligations under this Agreement and grant the rights granted to
Cabletron hereunder.
6.2 Software Products and Embedded Software--Interspeed has the right, as
owner or licensee to distribute and license the use of the Software
Products and the Embedded Software. All rights and obligations with
respect to the Software Products shall be directly between Interspeed or
the applicable Third Party Supplier and End Users of the Software
Products, in accordance with the terms of the End User License agreement
included with the Software Products or otherwise. Except as authorized
in writing by Interspeed, Cabletron shall not modify, enhance, or
otherwise change or supplement the Software Products. Cabletron shall
have no right to distribute any Embedded Software except in connection
with the sale or lease of the Hardware Product of which it is a
component.
6.3 Interspeed Software Product Warranty--Interspeed warrants to Cabletron
that (a) the diskettes or other tangible media in which Interspeed
Software Products are embodied shall be free from defects in materials
and workmanship, and (b) the functionality of the Software Products
shall substantially conform to the published Product documentation
delivered therewith, each for a period of ninety (90) days from date of
delivery to Cabletron. Cabletron understands that Interspeed does not
provide any warranty with respect to the performance, suitability,
reliability or error free condition of any Interspeed Software Product,
and shall not make any contrary representation or warranty to any End
User.
6.4 Warranty Service Procedure--In the event of a warranty claim under
Section 6.1 or 6.3, Cabletron may return the defective Interspeed
Product pursuant to the Interspeed Return Material Authorization process
to Interspeed for repair or replacement, at Interspeed's option. For
warranty service, Cabletron shall pay all freight costs to Interspeed
and Interspeed shall pay all return freight costs to Cabletron. All
freight costs in connection with Products not covered under warranty
services are the responsibility of Cabletron.
6.5 Customer Support--Cabletron shall be primarily responsible for
providing sales and technical support to Cabletron's End Users. Except
in the case of Products governed by Section 6.6, Interspeed shall
provide without charge telephone inquiry support and such other support
as Interspeed deems appropriate to assist Cabletron personnel in
resolving End User problems regarding Interspeed Products which
Cabletron is not able to resolve through its own personnel, subject to
Interspeed's normal product support guidelines and procedure. Cabletron
agrees to become sufficiently knowledgeable about the Products and
related user manuals and marketing literature in order to be able to
respond to product inquiries made by End Users. Cabletron shall maintain
an adequately trained staff and telephone service to provide prompt
telephone support to End-Users. Interspeed will refer to Cabletron any
request for support or inquiries made directly by Cabletron's End Users,
and Cabletron shall not refer any such requests or inquiries to
Interspeed without Interspeed's prior approval.
6.6 Maintenance Services--Interspeed reserves the right to provide
maintenance services for certain Interspeed products under programs for
which a fee is charged, including without limitation those particular
maintenance programs identified in Schedule F. Schedule F sets forth the
terms and prices of maintenance programs currently applicable to the
Interspeed Products, which are subject to change from time to time by
written notice from Interspeed. Maintenance fees under any such
maintenance program shall be due and payable in advance with respect to
each Term Year.
6.7 Software Updates and Upgrades--From time to time Interspeed or a Third
Party Supplier may make available Updates of Software Products or
Embedded Software. Any such Updates with respect to Interspeed Products
shall be made available to Cabletron for distribution to its End Users
without charge. Cabletron shall resell only the most recent Update,
which has been made available to it for any Software Product. In the
case of Upgrades with respect to Interspeed Products, Interspeed may, in
its sole discretion, either make such Upgrades available to Cabletron's
End Users for no charge or at a special Upgrade price, or treat such
Upgrade as a new Product which will be made available only on normal sale
terms.
6.8 Millennium Requirements--Interspeed represents and warrants that the
Products supplied to Cabletron under the terms of this Agreement on or
after January 1, 2000 A.D. ("Millennial Dates") will not adversely
affect the licensed materials performance with respect to date and
date-dependent data, computations, output, or other functions, including
calculating, comparing and sequencing. Interspeed further represents and
warrants that the licensed materials will (i) create, store, process,
and output information related to or including Millennial Dates without
error or omission, and will (ii) accurately process date and
date-dependent data, including calculating, comparing and sequencing
from, into, and between the twentieth and twenty-first centuries,
including leap year calculations, when used in accordance with the
documentation accompanying the licensed materials. Interspeed will
provide written evidence sufficient to demonstrate adequate testing and
conversion of the Products to meet the foregoing requirements prior to
execution of this Agreement, upon the request of Cabletron. In the event
that a problem attributed to a failure to correctly process date data as
set forth above is discovered which severely impacts Cabletron's
business, this problem shall be treated as a Severity Level 1 problem.
This Severity Level 1 problem shall require that Interspeed diligently
work on such problem until the error is corrected. For purposes of this
Agreement, Severity Level 1 shall mean that Interspeed shall work on a
continuous twenty-four (24) hour basis to resolve such problem until
corrected, at no additional cost to Cabletron.
6.9 Disclaimer of Warranties--NEITHER INTERSPEED NOR ANY THIRD PARTY
SUPPLIER MAKES ANY REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS OR WARRANTIES AS TO
MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO
ANY PRODUCT OR SERVICE PROVIDED HEREUNDER OR ANY OTHER MATTER RELATED TO
THIS AGREEMENT.
Section 7. INDEMNIFICATION
7.1 Infringement Indemnification--Interspeed shall defend or settle any
suit or proceeding brought against Cabletron based upon a claim that any
Interspeed Product constitutes an infringement of any existing United
States patent, copyright or trade secret rights provided that Interspeed
is notified promptly in writing and is given complete authority to
control the defense and is provided all information required for the
defense. Interspeed shall pay all damages and costs awarded against
Cabletron, but shall not be responsible for any cost, expense or
compromise incurred or made by Cabletron without Interspeed's prior
written consent or for any lost profits or other damage or loss suffered
by Cabletron. If any Interspeed Product is in the opinion of Interspeed
likely to or does become the subject of a claim for infringement,
Interspeed may, at its sole option, procure for Cabletron the right to
continue using such Interspeed Product or modify it to become
non-infringing. If Interspeed is not reasonably able to modify or
otherwise secure for Cabletron the right to continue using and reselling
such Interspeed Product, Interspeed may terminate this Agreement and,
upon return to it of any items of such Interspeed Product purchased,
unused, and unsold by Cabletron hereunder, refund to Cabletron the
amounts paid for such items. Notwithstanding anything herein to the
contrary, Interspeed shall have no liability for any claim of
infringement based upon (1) use of any version or release other then the
latest unmodified version or release of an Interspeed Product, (2) use or
combination of an Interspeed Product with any other products, (3) use of
an Interspeed Product in any manner other than its intended use as set
forth in its documentation, or (4) use of an Interspeed Product after
having been given notice, or having reason to believe, that such
Interspeed Product infringes a proprietary right of a third party.
Interspeed also agrees to indemnify Cabletron and hold it harmless,
against any loss or damage that may be suffered by Cabletron, and any
claims that may be related to personal injury or property damage as a
result of use of the Products supplied hereunder or any breach of
Interspeed's covenants and agreements herein, not to exceed the payments
previously made by Cabletron for the Product with respect to which such
damage arose.
7.2 Indemnification By Cabletron. Except with respect to matters for which
Interspeed is liable pursuant to Sections 6.1, 6.3 or 7.1 Cabletron
hereby agrees to indemnify Interspeed, and hold it harmless, against any
loss or damage that may be suffered by Interspeed and any claims that
may be made against Interspeed by any person directly related to
personal injury or property damage, as a direct or indirect result of
the sale by Cabletron of units of the Products or the use thereof by
Cabletron's direct or indirect customers, or any breach of Cabletron's
covenants and agreements herein not to exceed the payments previously
made by Cabletron for the Product with respect to which such claim arose.
7.3 Insurance--Interspeed shall maintain adequate Product liability and
general liability insurance as it deems necessary and shall provide
Cabletron with evidence of or a Certificate of Insurance upon the
written request of Cabletron.
Section 8. LIMITATION OF LIABILITY
8.1 Limitation of Liability--IN NO EVENT SHALL EITHER PARTY OR ANY THIRD
PARTY SUPPLIER BE LIABLE FOR ANY LOSS OF PROFITS OR DIRECT, INDIRECT,
SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES ARISING OUT OF ANY
BREACH OF THIS AGREEMENT OR THE OBLIGATIONS OF THIS AGREEMENT. EITHER
PARTY'S SOLE REMEDY AND EITHER PARTY'S TOTAL LIABILITY, IN CONTRACT,
TORT OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
AGREEMENT OR ANY OF THE PRODUCTS, SHALL BE THE CORRECTION, REPAIR OR
REPLACEMENT OF ANY DEFECTIVE INTERSPEED PRODUCT OR, AT EITHER PARTY'S
OPTION, THE PAYMENT OF ACTUAL DIRECT DAMAGES NOT TO EXCEED THE PAYMENTS
PREVIOUSLY MADE BY CABLETRON FOR THE ITEM OF PRODUCT WITH RESPECT TO
WHICH SUCH DAMAGES AROSE.
8.2 Third Party Products--Interspeed makes no representation for warranty
with respect to any Third Party Products and shall have no liability
with respect thereto. Including without limitation any liability with
respect to any defects in such Third Party Products or any infringement
by such Third Party Products or any patent, copyright, trademark,
service mark, trade secret or other intellectual property right of any
Person. To the extent permitted by Interspeed's agreement with the
supplier or licensor of any such Third Party Product, Interspeed hereby
assigns to Cabletron and/or its End Users the benefit of any warranties
or indemnification rights provided by the supplier or licensor of such
Third Party Product. Cabletron and its end Users shall be responsible
for dealing directly with such suppliers and licensors with respect to
such warranties and indemnification rights, and Interspeed shall have no
obligation or liability with respect thereto.
Section 9. SECURITY INTEREST
Title to the Products shall vest in Cabletron upon the date of shipment
to Cabletron. Interspeed shall retain a security interest in the
Products until the entire balance of the price for such Products and all
other monies payable hereunder are paid in full. Cabletron shall
execute, upon request by Interspeed, financing statements deemed
necessary or desirable by Interspeed to protect its security interest in
the Product. Cabletron authorizes Interspeed to file a copy of this
Security Agreement or a financing statement with the appropriate state
authorities at any time thereafter as a financing statement in order to
perfect Interspeed's security interest.
Section 10. PROPRIETARY RIGHTS AND CONFIDENTIALITY
10.1 Proprietary Rights--The rights owned by Interspeed (including without
limitation, those rights licensed to Interspeed by Third Party
Suppliers) in the Products and Confidential Information (as defined in
Section 10.3), including, without any limitation, any and all patents,
copyrights, author's rights, trademarks, trade names, know-how and any
rights under the trade secret laws of any jurisdiction with respect
thereto, irrespective of whether such rights arise under U.S. or
international intellectual property, unfair competition or trade secret
laws ("Proprietary Rights") shall be and remain at all times the
property of Interspeed, and Cabletron and its End Users shall have no
right, title or interest therein
except as expressly provided herein. Cabletron understands and
acknowledges that the Software Products and Embedded Software are subject
to protection as copyrighted works of authorship of Interspeed or the
applicable Third Party Supplier under the United States Copyright Act
and applicable foreign and international copyright laws and treaties.
Cabletron shall not in any way remove or alter any of Interspeed's or any
Third Party Supplier's notices or in connection with any Product
respecting copyright, trademark, or other proprietary rights.
10.2 Use of Licensed Marks--Cabletron shall use the Licensed Marks only in
connection with the Products, and not in connection with any other
product or services of any Person. Cabletron may not modify any of the
Licensed Marks or combine them with any other marks of any Person.
Cabletron shall not use or distribute any such marketing materials
without Interspeed's initial written approval and any such use shall be
only in accordance with the samples or designs provided to Interspeed
in connection with such approval. After such initial written approval,
Interspeed may, at its option, require prior written approval,
Interspeed may, at its option, require prior written approval of any
marketing materials as to substance, form and style used by Cabletron
in its advertising. Cabletron shall not file any application for
registration in any jurisdiction with respect to any Licensed Mark, or
any mark or name confusing similar thereto. Except to the extent
authorized in writing by Interspeed. Cabletron shall not modify,
enhance or otherwise change or supplement the packaging of the
Products, except to add labels to indicate that such Products have
been distributed by Cabletron, provided that such labels or affixation
thereof on such packaging shall not obscure, alter or hide the Licensed
Marks. Upon termination of this Agreement for any reason, Cabletron
shall immediately cease all use of the Licensed Marks and, at
Cabletron's election, destroy or deliver to Interspeed all such
materials in Cabletron's control or possession that bear any Licensed
Marks, including any and all sales literature.
10.3 Confidentiality--Both parties acknowledges that, in the course of
dealings between the parties, each party will acquire information about
the other, its business activities and operations, and its mechanical
information and trade secrets, of a highly confidential and proprietary
nature ("Confidential Information"). For purposes of this Agreement,
Confidential Information shall include all design information and
related technical information with respect to the Products, including
the design and programming methods and techniques, architectures,
algorithms and other technology embodied in the Embedded Software or
Software Products, and all information with respect to either party's
product development and marketing plans. Both parties shall keep
confidential, shall not incorporate in its products or otherwise use in
any manner other than in furtherance of the purposes of this Agreement,
and shall protect from unauthorized use or disclosure by its employees
and agents, the Confidential Information and all copies or physical
embodiments thereof in its possession, and shall limit access to the
Confidential Information to those of its personnel who require such
access in connection with either party's use thereof as permitted by
this Agreement. Both parties shall secure and protect the Confidential
Information and any and all copies and other physical embodiments
thereof in its possession in a manner consistent with the maintenance
of each party's rights and interest therein. Both parties shall take
appropriate action by instruction or agreement with its employees who
are permitted access to the Confidential Information or any copy or other
physical embodiment thereof to satisfy each party's obligations
hereunder. Upon termination of this agreement for any reason, each party
shall immediately return to the other party or, if authorized by the
other party destroy all documents, files, and other materials embodying
any of the Confidential Information and shall certify to the other
party that such return or destruction has taken place. Cabletron
shall not attempt to obtain the source code to any Software Products or
Embedded Software by decompilation, disassembly or other means, and
shall not make any copies of the Software Products except as
specifically authorized. The obligations of this Section 10.2 shall
survive any termination of this Agreement.
Section 11. TERMINATION
11.1 Termination--Either party may terminate this Agreement as of the end
of any Term Year upon sixty (60) days prior written notice to the other
party. Interspeed may terminate this Agreement in whole or in part by
written notice to Cabletron, in the event of the occurrence of any of
the following: (a) if Cabletron has not ordered, as of the end of any
term Year, the Minimum Quantity applicable to such Term Year as set
forth on Schedule A; (b) if Cabletron fails to pay any amount due
hereunder within ten (10) days after written demand by Interspeed for
payment thereof; (c) if either party fails to observe or perform any
term or condition of this Agreement and does not cure such failure
within ten (10) days after written demand by the other party; (d) if
either party makes a general assignment for the benefit of creditors or
files a voluntary petition in bankruptcy or for reorganization or
arrangement under the bankruptcy laws, or if a petition in bankruptcy is
file against either party and is not dismissed within thirty (30) days
after the filing, or if a receiver or trustee is appointed for all or
any part of the property or assets of either party, or (e) as provided
in Section 7.1.
11.2 Effect of Termination--Upon any termination of this Agreement, all
rights and obligations of the parties under this Agreement shall cease
except for: (i) the obligations of both parties with respect to orders
made by Cabletron prior to termination of this Agreement that
Interspeed does not elect to terminate; (ii) Cabletron's obligations to
make all payments with respect to deliveries made by Interspeed prior
to termination; and (iii) the rights and obligations of the parties
under Sections 7.8, 10 and this Section 11.
Section 12. GENERAL
12.1 Entire Agreement--Each party acknowledged that it has read this
Agreement, fully understands it, and agrees to be bound by its terms
and further agrees that it is the complete and exclusive statement of the
agreement between the parties, which supersedes and merges all prior
proposals, understandings and all other agreements, oral and written,
between the parties relating to the subject matter of this Agreement.
This Agreement cannot be modified or altered except by a written
instrument duly executed by both parties. No additional or conflicting
terms or conditions, whether contained in Cabletron's purchase order,
shipping release, or elsewhere, shall be binding upon Interspeed.
12.2 Relationship of Parties--The relationship of the parties hereto shall be
that of buyer and seller. Nothing herein shall be construed to create
any partnership, joint
venture, agency or similar relationship or to subject the parties to any
implied duties or obligations respecting the conduct of their affairs, which
are not expressly stated herein. Neither party shall have any right or
authority to assume or create any obligation or responsibility, either
express or implied, on behalf of or in the name of the other party, or to
bind the other party in any matter or thing whatsoever.
12.3 Governing Law--This Agreement and performance hereunder shall be
governed by and construed in accordance with the laws of The
Commonwealth of Massachusetts without regard to conflict of laws and
without reference to the 1980 United Nations Convention on Contracts or
the Sale of Goods and any amendments thereto.
12.4 Severability--If any provision of this Agreement shall be held to be
invalid, illegal, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall in no way be affected
or impaired thereby. Further, the provision that is held to be invalid,
illegal or unenforceable shall remain in effect as far as possible in
accordance with the intention of the parties.
12.5 No Waiver--The failure of either party to exercise in any respect any
right provided for herein shall not be deemed a waiver of any right
hereunder.
12.6 Assignment--Cabletron may not assign this Agreement in whole or in part
without the prior written consent of Interspeed. Interspeed may assign
its rights and obligations under this agreement without the written
consent of Cabletron to a corporation succeeding to substantially all
the assets and business of Interspeed relating to the Products by merger
or purchase, which corporation shall expressly assume all of
Interspeed's obligations under this agreement by a writing delivered to
Cabletron, and may assign its rights to receive payments hereunder
without limitation. Notwithstanding the above, Cabletron may assign its
rights and obligations under this Agreement without the written consent
of Interspeed to a corporation succeeding to substantially all the
assets and business of Cabletron, which corporation shall expressly
assume all of Cabletron's obligations under this Agreement by a written
notice delivered to Interspeed.
12.7 Notices--Notices to either party under or relating to this Agreement
shall be in writing to the address indicated on Schedule A of this
Agreement or to such subsequent address as either party may specify by
notice to the other and shall be deemed effective when received if
delivered in hand or by telefax "with written confirmation of receipt,
or on the second day following the date of postmark if sent by prepaid
certified mail, return receipt requested.
12.8 Force Majeure--Neither party shall be responsible for delays or
failures in performance resulting from causes beyond the control of
such party. Such causes shall include, but not be limited to, inability
to obtain export licenses or import authorization, acts of God,
strikes, lockouts, riots, acts of war, epidemics, government
regulations imposed after the fact, fire, communications line failures,
equipment failures, power failures or earthquakes.
12.9 Export Control--To the extent that the Territory is within the United
States, Cabletron acknowledges that Interspeed shall deliver the
Products to Cabletron in the United States and Cabletron shall not
export the Products except as permitted by all applicable laws and
regulations, including the Export Administration Act and the
regulations issued thereunder by the United States Department of
Commerce, Offices of Export Administration.
12.10 Compliance with Laws--Cabletron shall be responsible for ensuring
compliance with all applicable laws and regulations in the Territory,
including but not limited to labeling and language requirements.
Cabletron shall not sell or lease any Products which are not in
compliance with such laws and regulations.
12.11 Conflict of Interest--During the term of this Agreement, Interspeed
shall not knowingly solicit from or propose new or repeat business,
including maintenance, to Cabletron's commercial customers for whom
Interspeed is providing Products, software and/or services pursuant to
this Agreement.
12.12 Packaging--Products shall be packaged and packed at no additional
charge for shipment in suitable boxes, reels, bundles, pieces or coils,
etc., which will provide protection against damage during domestic
shipment, handling, and storage in reasonably dry, unheated quarters.
Corrugated shipping containers shall comply with requirements of Rule
41 of the Uniform Freight Classification. Containers of any type that
are too heavy or too large to be palletized shall be skidded to
facilitate fork truck and/or mechanical handling.
12.13 Toxic Substances and Hazardous Products--Interspeed warrants to
Cabletron that, except as expressly stated elsewhere in this Agreement,
all Products furnished hereunder or in performance of purchase orders
placed hereunder, is safe for its normal use, is non-toxic.
12.14 Records and Audit--Interspeed shall maintain complete and accurate
records of all amounts billable to and payments made by Cabletron under
this Agreement in accordance with generally accepted accounting
practices. Interspeed shall retain such records for a period of three
(3) years from the date of final payment for Products. Within thirty
(30) days after Cabletron provides written notification to Interspeed
of an invoice dispute, Interspeed shall provide Cabletron documentation
evidencing the propriety of its position and the correctness of its
invoice charges.
12.15 Continuing Availability of Products and Replacement and Repaired
Parts--Interspeed agrees to offer for sale to Cabletron for a period of
four (4) years after the termination/expiration date of this Agreement,
maintenance and replacement of Products and parts for Products provided
under this Agreement.
Executed as a document under seal as of the date first set forth above by the
duly authorized representative of the parties hereto.
INTERSPEED, INC. CABLETRON:
----------------------
By: /s/ Xxxxxxxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxxxxx
------------------------------ ------------------------------
Name: Xxxxxxxxxxx Xxxxxx Name: Xxxxx Xxxxxxxxxxx
---------------------------- ----------------------------
Title: VP Sales and Marketing Title: VP of Finance and CFO
--------------------------- ---------------------------
*** Confidential Treatment
Requested as to this
Information
Interspeed, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
SCHEDULE A
1. Reseller Name: Cabletron Systems, Inc.
2. Reseller Address: 00 Xxxxxxxxxx Xxx, Xxxxxxxxx, Xxx Xxxxxxxxx 00000
Xxxxxxx: XXX
3: Territory: Locations which Cabletron currently sells and supports
products.
4. Products:
System 500 16 Port SDSL Platform
System 500 32 Port SDSL Platform
System 500 48 Port SDSL Platform
5. Reseller Discount Level: *** Confidential Treatment Requested as to this
Information ***
6. Minimum Quantity: *** Confidential Treatment Requested as to this
Information ***
Interspeed and Cabletron confirm that this is the Schedule A referred to in
the above-referenced Reseller Agreement.
Interspeed, Inc. Cabletron Systems, Inc.
By: /s/ Xxxxxxxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxxxxx
-------------------- ---------------------
Name: Xxxxxxxxxxx Xxxxxx Name: Xxxxx Xxxxxxxxxxx
------------------ --------------------
Title: VP Sales and Marketing Title: VP of Finance and CFO
---------------------- ---------------------
Date: May 21, 1999 Date: May 20, 1999
------------ ------------
*** Confidential Treatment
Requested as to this
Information
Interspeed, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Authorized Cabletron Agreement
Schedule B
----------
Price List
----------
*** Confidential Treatment Requested as to this Information ***
Interspeed, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
U.S.A.
Authorized Cabletron Agreement
SCHEDULE C
CABLETRON DISCOUNT SCHEDULE
Interspeed, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Authorized Cabletron Agreement
SCHEDULE D
LICENSED MARKS
Interspeed, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
U.S.A.
Authorized Cabletron Agreement
SCHEDULE E
RUN-TIME LICENSE AGREEMENT
Interspeed, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
U.S.A.
Authorized Cabletron Agreement
SCHEDULE F
MAINTENANCE SUPPORT SERVICE-TERMS AND PRICES
