EXHIBIT 10.16
Authorized Distributor Agreement
Table of Contents
Article/
Section Subject Page
1.0 Definitions 1
2.0 Distributorship 2
2.1 Appointment. 2
2.2 Acceptance. 2
3.0 Territory 2
3.1 Territory-Exclusive. 2
3.2 Out of Territory Sales. 2
4.0 (Omitted) 2
5.0 Purchase Order Submission, Acceptance/Rejection, Delivery 3
5.1 Submission of Purchase Orders. 3
5.2 Acceptance of Purchase Orders. 3
5.3 Delivery. 3
5.4 Title and Risk of Loss. 4
5.5 Software License. 4
6.0 Prices, Payment and Credit 4
6.1 Purchase Price and Other Charges. 4
6.2 Payment. 4
6.3 Special Payment Terms; Rebates/Discounts. 5
6.4 (OMITTED) 5
6.5 Packaging and Shipment. 5
7.0 Term 5
8.0 Termination 5
8.1 Right to Terminate. 5
8.2 Effect of Termination. 6
9.0 Warranties; Limitation of Liability 7
9.1 LINKON's Limited Warranties. 7
9.2 Distributor Warranties. 8
9.3 Limitation Of Liability. 8
10.0 Minimum Purchase Obligation 8
10.1 Purchase Obligation. 8
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Table of Contents (cont'd)
Article/Section Subject
10.2 Carry Forward of Excess Qualifying Purchases. 8
11.0 Competitive Products 9
11.1 Definition. 9
11.2 Prohibition Against Competitive Products. 9
11.3 Other Issues. 10
12.0 Additions to and Enhancement of the Products 10
12.1 Additions, Enhancements and New Products. 10
12.2 Distributor's Obligations. 10
13.0 Training and Promotional Activities 10
13.1 Training. 10
13.2 Promotion by Distributor. 11
13.3 Promotional Materials. 11
14.0 Service, Support and Spare Parts 11
14.1 End User Service and Support 11
14.2 Spares Parts, Repairs. 12
15.0 End User Information and Support 12
15.1 Information to be Provided by Distributor. 12
15.2 End User Surveys and Distributor Service ▇▇▇▇▇. ▇▇
16.0 (Omitted) 13
17.0 Trademarks 13
17.1 Use of Trademarks. 13
17.2 Approval of Trademark Usage. 13
17.3 Protection of Trademarks. 13
17.4 Use of Other Trademarks. 13
17.5 New or Modified Trademarks. 14
17.6 Infringement. 14
18.0 Patents and Copyrights 14
18.1 Infringement. 14
18.2 Limitation of Liability. 14
18.3 Other. 14
19.0 Confidentiality 14
19.1 Confidentiality of LINKON's Information. 14
19.2 Confidentiality of Distributor's Information. 14
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Table of Contents (cont'd)
Article/Section Subject
20.0 Miscellaneous. 15
20.1 No Assignments. 15
20.2 Notices. 15
20.3 Relationships of Parties. 15
20.4 Nonwaiver. 16
20.5 Severability. 16
20.6 Choice of Laws. 16
20.7 Entire Agreement. 16
20.8 Exhibits. 16
20.9 Headings and Titles. 16
20.10 Use of Plurals. 16
Exhibit A Territory 17
Exhibit B Products 18
Exhibit C Special Payment Terms 19
Exhibit D Recommended Spares Inventory and Repair Prices 20
Exhibit E Linkon Suggested List Price Schedule 21
Exhibit F Software License Agreement 22
Exhibit G Technical Support Plan 23
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AUTHORIZED DISTRIBUTOR AGREEMENT
This Agreement is entered into effective as of the 26th day of May, 1997, by and
between LINKON Corporation, a Nevada corporation, having its principal place of
business located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("LINKON"); and
Trigem Microsystems, Inc. ("Trigem") having its principal place of business
located at 9 FL, New ▇▇▇▇▇▇▇▇ Bldg., ▇▇▇-▇▇, ▇▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇,
▇▇▇-▇▇▇, ▇▇▇▇▇ ("Distributor").
RECITALS:
WHEREAS, LINKON develops, manufactures and sells communications equipment and
software and is developing a worldwide network of independent distributors to
market, sell, service, and maintain such equipment;
WHEREAS, Distributor represents that it is skilled and capable of marketing,
selling, servicing, and maintaining communications equipment of the variety
manufactured by LINKON and wishes to market, sell, service, and maintain such
equipment;
NOW, THEREFORE, the parties agree as follows:
1.0 DEFINITIONS
For purposes of this Agreement, the following terms shall have the indicated
meanings:
1.1 "Competitive Products" shall have the meaning set forth in Section 11.1.
1.2 "Defaulting Party" shall have the meaning set forth in Subsection 8.1.1.
1.3 "Equipment" shall mean the products listed in Exhibit B.
1.4 "Minimum Purchase Obligation" means the total dollar value of Qualifying
Purchases (as provided in Section 10.1) which Distributor is obligated to make
or exceed each calendar quarter while this Agreement is in effect.
1.5 "Products" refer to the call processing and related equipment (including
Software and spare parts) listed and described in Exhibit B, attached.
1.6 "Purchase Order" means a formal written order issued by Distributor and
received and accepted by LINKON all in accordance with the provisions of Article
5.0. A Purchase Order is a "Standard Purchase Order" if it includes no unusual
terms (or terms in conflict with the terms of this Agreement) and requests
normal (based on Distributor's credit line with LINKON) quantities and delivery
dates.
1.7 "Qualifying Purchases" means irrevocable purchases of Products for
installation in the Territory (as hereinafter defined) with respect to which i)
the Products were actually delivered during the specified measurement period; or
ii) the Products were not delivered but Standard Purchase Orders were submitted
to LINKON at least forty-five (45) days prior to the requested delivery date and
the requested delivery date was within the specified measurement period. The
amount of any Qualifying Purchase shall be determined utilizing the actual
prices paid or payable by Distributor, as determined in accordance with the
provisions of Subsection 6.1.1.
1.8 "Software" means computer programs supplied by LINKON as part of or for use
with the Products (whether developed by LINKON or acquired or licensed from
third parties) on magnetic tape, floppy disk, hard disk, semiconductor device or
other memory device, or system memory, including hardwired logic instructions,
micro code, and documentation used to describe, maintain and use the programs.
1.9 "Territory" refers to the geographical area(s) identified in Exhibit A,
attached, in which Distributor is authorized to sell and install the Product.
1.10 "Trademarks" means all trademarks, trade names and service marks owned by
LINKON at any time while this Agreement is in effect, including but not limited
to the "Faxpeak/TM/", "Link-Engine/TM/", and "TeraVox/(R)/" marks.
2.0 DISTRIBUTORSHIP
2.1 Appointment.
LINKON appoints Distributor, on the terms and conditions of this Agreement, as
an exclusive Authorized Distributor for the sale of the Products for
installation in the Territory and agrees to provide Products and support
services in accordance with the terms of this Agreement.
2.2 Acceptance.
Distributor accepts, on the terms and conditions of this Agreement, the
appointment as an exclusive Authorized Distributor and agrees to develop demand
for, sell, install, support and service the Products in the Territory in
accordance with this Agreement.
3.0 TERRITORY
3.1 Territory-Exclusive.
Distributor has the exclusive right to sell the Products in the Territory. In
the event that the Distributor fails to maintain the minimum purchase obligation
in section 10.1, this agreement will revert to a "Non-Exclusive" distribution
agreement.
While this Agreement is in effect and at all times thereafter, LINKON shall have
the unrestricted right to appoint other distributors to sell the Products for
installation outside the Territory or any portion thereof and/or to attempt to
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sell and actually sell the Products directly to customers for installation
outside the Territory or any portion thereof.
3.2 Out of Territory Sales.
Distributor agrees not to promote, offer to sell or actually sell the Products
for installation outside of the Territory unless otherwise agreed upon by LINKON
in writing.
4.0 INTERNATIONAL PRICING; LAW AND CUSTOMS
4.1 In negotiating and concluding agreements with sub-distributors in the
Distributors Territories, the Distributor shall respect the local laws and
customs in such Territories.
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5.0 PURCHASE ORDER SUBMISSION, ACCEPTANCE/REJECTION, DELIVERY
5.1 Submission of Purchase Orders.
5.1.1 Distributor shall from time to time submit to LINKON Purchase Orders for
Products which Distributor desires to purchase from LINKON during the term of
this Agreement. Each Purchase Order shall set forth in appropriate detail the
Products that are being ordered (including, in the case of Linkon product units,
the model, number of ports, Software options, and quantity) and the requested
delivery date(s).
5.1.2 From time to time, LINKON shall advise Distributor of the requested order
lead time, expressed in the number of days prior to the shipment date requested
by Distributor that Distributor's Purchase Order should be received by LINKON.
Distributor agrees to use its best efforts to comply with the requested order
lead time whenever practicable. The requested order lead time at the inception
of this Agreement is sixty (60) days.
5.2 Acceptance of Purchase Orders.
5.2.1 LINKON may accept or reject each Purchase Order submitted by Distributor
(or LINKON may offer to accept any Purchase Order, subject to revised delivery
schedules and/or quantities). Acceptance shall be made by an Order
Acknowledgement. The terms and conditions of each sale shall be as set forth in
this Agreement and in the Order Acknowledgement (excluding any terms and
conditions printed on the back of the Order Acknowledgement). Each Purchase
Order submitted to LINKON shall be deemed to have been rejected by LINKON if not
accepted by an Order Acknowledgement within fifteen (15) days of its receipt by
LINKON. Rejected Purchase Orders shall be of no force and effect.
5.2.2 Distributor's Purchase Orders are for the purpose of requesting and
specifying Products and delivery dates but have no legal force and effect and
shall not bind Distributor or LINKON until accepted by LINKON, and then only in
accordance with the terms of LINKON's acceptance. Printed terms appearing on
Distributor's purchase order form are inapplicable unless accepted by LINKON by
specific reference in its Order Acknowledgement.
5.3 Delivery.
5.3.1 LINKON shall make reasonable efforts to deliver the Products to a common
carrier at the FOB point specified in Subsection 6.1.3 by the delivery date
accepted by LINKON in its Order Acknowledgements.
5.3.2 In the event LINKON's production is curtailed for any reason beyond
LINKON's control so that LINKON is unable to deliver the full amount of Products
ordered by all of its customers, LINKON may allocate its available production
among its various customers then under contract. The allocation will be made in
a commercially fair and reasonable manner (including giving differential
treatment to different distribution channels) and LINKON will notify Distributor
of the quantity of Products allocated to Distributor.
5.3.3 LINKON shall have no liability or obligation to compensate Distributor on
account of delays or failure to deliver Products on a timely basis.
5.4 Forecasting
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Distributor will provide a 1 year forecast, within 30 days of the date of this
agreement, showing monthly usage for each product type. Distributor will update
the forecast on a monthly basis.
5.5 Title and Risk of Loss.
Title to the Products (excluding Software, title to which does not transfer to
Distributor) shall pass from LINKON to Distributor upon receipt by LINKON of
payment in full by Distributor. Risk of loss for the Products shall pass form
LINKON to Distributor upon delivery of the Products to a common carrier at the
F.O.B. point specified in Subsection 6.1.3.
5.6 Software License.
Distributor is hereby granted a non-exclusive, fully paid, perpetual license to
use Software but only in conjunction with the specific Products (as determined
by the serial number) for which the Software is acquired. Distributor is
authorized to sublicense Software to end users who purchase Products from
Distributor but only in conjunction with the specific Products (as determined by
the serial number) for which the Software is acquired. The foregoing rights and
any sublicenses issued pursuant thereto are subject to all conditions,
limitations and exclusions on any license agreements between LINKON and third
party suppliers of Software (Exhibit F).
6.0 PRICES, PAYMENT AND CREDIT
6.1 Purchase Price and Other Charges.
6.1.1 The purchase price for Products ordered by the Distributor shall be set
forth in the Order Acknowledgement and shall be determined by LINKON in
accordance with the prices set forth in the then current schedule of Linkon
Products Suggested List Prices and any discounts or other special payment terms
in accordance with Exhibit C hereto.
6.1.2 The schedule of Linkon Suggested List Prices in effect at the inception
of this Agreement is attached as Exhibit ▇. ▇▇▇▇▇▇ may change prices at any
time and from time to time by providing written notice and a new schedule of
Linkon Suggested List Prices to Distributor and all other Authorized
Distributors. Changes shall be effective sixty (60) days from the date of such
notice to Distributor.
6.1.3 All prices shall be F.O.B. LINKON's U.S. manufacturing facility. All
freight, crating, insurance, handling, forwarding agent's fees, taxes and
storage, and all other charges applicable to the Products from the time they are
placed in the possession of a carrier at the F.O.B. point shall be borne by
Distributor.
6.1.4 The amount of any present or future sales, revenue, excise, use or other
taxes, fees, or other charges of any nature, imposed by any public authority
(national, state, local or other) applicable to the Products, or the manufacture
or sale thereof, shall be added to the purchase price and shall be paid by
Distributor, or, in lieu thereof, Distributor shall provide LINKON with a tax
exemption certificate acceptable to the taxing authority.
6.1.5 In the event LINKON agrees to reconfigure or change Products, delay
delivery, or cancel a Purchase Order for the Products at Distributor's request,
LINKON shall be entitled to impose reasonable reconfiguration, change, delay or
restocking charges in accordance with LINKON's standard practices.
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6.2 Payment.
Subject to the provisions of Section 6.3, the Distributor shall pay the full
amount of the purchase price (and any other charges Distributor is obligated to
pay under Section 6.1) appearing on LINKON's Order Acknowledgement of each
order. Payment may be made by wire transfer to Linkon's designated bank account
prior to LINKON's shipment of that order.
6.3 Special Payment Terms; Rebates/Discounts.
6.3.1 LINKON may from time to time offer Distributor special payment terms,
and/or other special discounts or rebates. Payment in accordance with such
special payment terms shall not constitute a violation of Section 6.2 by
Distributor. The special payment terms, and/or other special discounts or
rebates available to Distributor at the inception of this Agreement are set
forth in Exhibit ▇. ▇▇▇▇▇▇ may discontinue, modify, reduce or add to such
special payment terms, and/or other special discounts or rebates at any time
upon thirty (30) days prior written notice to Distributor.
6.3.2 The Discount Schedule (EXHIBIT C) is based upon the Distributor's stated
intention to buy products of LINKON at a specific total yearly dollar volume
(PURCHASE OBLIGATION - Section 10.1). Buyer shall submit, at the time of
execution of this agreement, a purchase order for at least 5% of the PURCHASE
OBLIGATION. Further ordering of product shall proceed in accordance with the
following schedule:
QUARTER ENDING % OF PURCHASE OBLIGATION
-------------- ------------------------
July 31, 1997 10%
October 31, 1997 30%
January 31, 1998 60%
April 30, 1998 100%
6.3.2 The discount will be re-calculated, reviewed and adjusted at 3 month
intervals, based on performance to the above schedule. Volume prices granted
are subject to forfeiture if 1) Orders are delayed by Distributor by more than
30 days; or 2) Seller has not received payment within 45 days of shipment.
6.4 (OMITTED)
6.5
6.5.1 Linkon shall furnish packing of all Linkon hardware and Software in
accordance with standard commercial practices for domestic and international
shipments. The costs of export packaging and all export duties, licenses, fees
and related costs will be payable by the distributor. In the event of a mis-
delivery, loss or damage, the Distributor shall assume full responsibility for
negotiating with the carrier or insurer or both.
7.0 TERM
The term of this Agreement shall commence on June 1, 1997, and shall continue in
effect for a period of two (2) years thereafter unless terminated earlier as
provided in Section 8.1, or extended by mutual written agreement.
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8.0 TERMINATION
8.1 Right to Terminate.
This Agreement may be terminated at any time by mutual, written agreement of the
parties. Termination of this Agreement other than by mutual agreement shall be
in accordance with the provisions of one or more of the following Subsections.
8.1.1 If either party fails to comply with any provision of this Agreement or
perform any obligation to be performed by it under this Agreement ("Defaulting
Party"), and such failure is capable of cure, the other party may notify the
Defaulting Party in writing of the default and the Defaulting Party shall have a
period of thirty (30) days from receipt of notice to cure the default. If, at
the end of said thirty (30) day period the Defaulting Party has not cured the
default, the other party may immediately terminate this Agreement by giving
written notice to that effect to the Defaulting Party. If the failure is not
capable of cure, the party not in default may terminate this Agreement
immediately by giving written notice of termination to the Defaulting Party.
8.1.2 This Agreement may be terminated by either party, upon written notice of
termination to the other party, in the event any bankruptcy, reorganization, or
insolvency proceeding governed by any federal or state law is initiated against
the other party and not dismissed within thirty (30) days thereafter, or in the
event any such proceeding is initiated by the other party, or in the event a
receiver is appointed for the other party, or if any substantial part of the
business assets of the other party are the subject of an attachment,
sequestration or other related judicial proceeding.
8.1.3 This Agreement may be terminated by LINKON by giving thirty (30) days
written notice of termination to Distributor in the event LINKON, in its sole
discretion, determines within ninety (90) days following any change in the
ownership or change in the executive level management of Distributor that such
change will adversely affect Distributor's ability to fulfill its obligations
under this Agreement. For purposes of this Agreement, "change in the ownership"
refers to a sale or transfer involving more than 25% of the voting control of
Distributor. A "change in the executive level management" means a termination,
replacement or reassignment involving one or more of the Chairman of the Board,
President, Chief Executive Officer, Chief Operating Officer, General Manager or
Vice President of Sales/Marketing responsible for the Products.
8.1.4 This Agreement may be terminated by LINKON by giving thirty (30) days
written notice of termination to Distributor in the event LINKON, in its sole
discretion, determines
8.2 Effect of Termination.
8.2.1 In the event this Agreement is terminated by Distributor pursuant to
Subsection 8.1.1, Distributor may, by written notice given to LINKON within
thirty (30) days of termination retain any Products in Distributor's inventory
and:
i. take delivery and pay for Products covered by previously issued and
accepted Purchase Orders and sell such Products; or
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ii. cancel delivery of Products covered by previously issued and accepted
Purchase Orders, scheduled for delivery 60 days or more beyond Termination, if
such Products have not already been delivered to a common carrier at the FOB
point specified in Subsection 6.1.3.
Failure of Distributor to elect either of the foregoing options within the
thirty (30) day period specified shall constitute a waiver of Distributor's
rights under this Subsection 8.2.1 in which case the terms of Subsection 8.2.2
shall control.
8.2.2 Except as provided in Subsection 8.2.1, all Purchase Orders, whether not
accepted by LINKON shall be of no force and effect upon termination of this
Agreement. LINKON may, but shall not be required to, repurchase Products in
Distributor's inventory at the price paid by Distributor less a reasonable
allowance determined by LINKON for damage, obsolescence, administration,
restocking charges and other reasonable costs.
8.2.3 Immediately upon the termination of this Agreement for any reason, all
amounts owing by either party to the other shall become immediately due and
payable notwithstanding prior terms of sale, whereupon the owing party shall
remit immediately to the other party all sums due and owing to such party.
8.2.4 Termination of this Agreement for any reason shall not release either
party from any Liability which at the time of termination has already accrued to
the other party hereto or which thereafter may accrue in respect of any act or
omission prior to termination, or from any obligation which is expressly stated
herein to survive termination: provided, however, that LINKON may, without
liability, cancel previously accepted Purchase Orders if this Agreement is
terminated other than by Distributor pursuant to Subsection 8.1.1.
8.2.5 The parties recognize that termination of this Agreement in accordance
with its terms may result in loss or damage to either party but hereby agree
that except as expressly set forth in this Agreement, neither party will be
liable to the other for any loss or damage resulting from such termination
(including, without limitation, special, consequential or indirect loss or any
loss of prospective profits or any damages occasioned by loss of goodwill) or by
reason of expenditures, investments, leases or commitments made in anticipation
of the continuation of this Agreement. The foregoing, however, will not in any
way relieve either party from liability to the other for damages arising out of
any violation or breach of this Agreement.
8.2.6 Upon the termination of this Agreement, for any reason whatever:
i. Distributor shall cease and thereafter refrain from any activity which
might imply or represent that it is a distributor of LINKON products;
ii. Distributor shall not, in any manner, use LINKON's name, or the
Trademarks (except in connection with sales contracted for prior to the
effective date of termination), and shall take all reasonable steps to
discontinue all listings of LINKON's name, and the Trademarks placed by
Distributor in any telephone book, directory, public record, or elsewhere; and
iii. Distributor shall immediately return to LINKON all service manuals,
Product reference materials, signs or advertising materials illustrating or
involving the Products or the Trademarks and all similar materials supplied by
or pertaining to LINKON or the Products.
8.2.7 In the event this Agreement is terminated by LINKON pursuant to
Subsection 8.1.1, Distributor may, upon LINKON's written acceptance, and shall
upon LINKON's written request, assign any or all
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service/maintenance agreements with end users covering the Products to LINKON or
its designee. Any service/maintenance agreements not assumed by LINKON or its
designee will remain the obligation of Distributor and will survive termination.
9.0 WARRANTIES; LIMITATION OF LIABILITY
9.1 LINKON's Limited Warranties.
9.1.1 LINKON warrants the Products to be free from defects in material and
workmanship under normal use and service for a period of twelve (24) months
after delivery to a common carrier at the F.O.B. point specified in Subsection
6.1.3. Distributor's sole and exclusive remedy under this warranty shall be to
return defective Products to LINKON's factory of origin (transportation charges
prepaid) during said twelve (24) month period, and to obtain at LINKON's option,
replacement, repair or credit for any of said Products which are, after
examination by LINKON, determined to be defective. This warranty shall not
apply to any Product which shall have been repaired or altered by anyone other
than LINKON, which shall not have been maintained in accordance with any
handling or operating instructions supplied by LINKON, or which shall have been
subjected to unusual physical or electrical stress, misuse, abuse, negligence or
accidents.
9.1.2 LINKON warrants to Distributor that LINKON has good and marketable title
to the Products and that they are free and clear of all liens and encumbrances.
9.1.3 THE WARRANTIES STATED IN SUBSECTIONS 9.1.1 AND 9.1.2 ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESSED, STATUTORY OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS
EXPRESSLY PROVIDED IN SUBSECTION 9.1.1, LINKON SHALL HAVE NO LIABILITY TO
DISTRIBUTOR ON ACCOUNT OF DEFECTS OR DEFICIENCIES IN THE PRODUCTS.
9.2 Distributor Warranties.
9.2.1 Distributor shall make no representations to third parties regarding the
performance or functional capabilities or characteristics of the products beyond
those stated in LINKON's then current printed literature and brochures.
9.2.2 LINKON shall not under any circumstances be responsible for any warranty
offered by Distributor to its customers in excess of the warranties set forth in
Section 9.1.
9.2.3 Distributor shall indemnify and hold LINKON harmless from and against any
claims, losses, costs, damages or liabilities which result from or are based on
any negligent or fraudulent acts or emissions of Distributor or which result
from Distributor's failure to comply with the provisions of Subsection 9.2.1 or
which are based on warranties provided by Distributor to its customers with
respect to the Producers to any extent in excess of the warranties set forth in
Section 9.1.
9.3 LIMITATION OF LIABILITY.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES, LOSS OF USE OR OTHER COMMERCIAL LOSS OF WHATEVER NATURE ARISING OUT OF
OR CONNECTED WITH THIS AGREEMENT OR ITS PERFORMANCE, PARTIAL PERFORMANCE OR
NONPERFORMANCE.
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10.0 MINIMUM PURCHASE OBLIGATION
10.1 Purchase Obligation.
Distributor shall make total Qualifying Purchases during each calendar quarter
in an amount equal to or exceeding one hundred thousand dollars ($100,000) (the
"Minimum Purchase Obligation"), and yearly purchases in an amount equal to or
exceeding one half million dollars ($500,000) (First Year Purchase Obligation)
and one and one half million dollars ($1,500,000) (Second Year Purchase
Obligation). In the event Distributor fails to comply with the requirements of
this Section 10.1, LINKON's remedy shall consist of either termination of the
Agreement pursuant to Subsection 8.1.1, or reversion of this Agreement to "Non-
Exclusive" as outlined in section 3.1.
10.2 Carry Forward of Excess Qualifying Purchases.
If Distributor makes Qualifying Purchases in excess of the amount required under
Section 10.1 during any calendar quarter, the excess shall be carried forward
and added to Qualifying Purchases made during the next calendar quarter for
purposes of measuring performance against the Section 10.1 purchase requirement
applicable to such next quarter.
11.0 COMPETITIVE PRODUCTS
11.1 Definition.
As used in this Agreement, the term "Competitive Product(s)" means any product
not offered by LINKON which includes combinations of functional capabilities
identical or substantially similar to those offered by the Products. Without
limiting the generality of the foregoing, such functional capabilities include
voice, fax, speech recognition, text to speech, and voice data compression
(other than single port, cassette tape based, answering machines).
11.2 Prohibition Against Competitive Products.
11.2.1 In order to prevent any conflict of interest and/or inadvertent transfer
of competitive information, at all times while this Agreement is in effect,
unless otherwise approved in writing by LINKON, Distributor shall be prohibited
from promoting, offering to sell or selling Competitive Products for
installation in the Territory.
11.2.2 Distributor shall not be prohibited by the provisions of Subsection
11.2.1 from continuing to service, maintain and upgrade Competitive Products if
Distributor has discontinued promoting, offering to sell and selling such
products for new installations in the Territory prior to the inception of this
Agreement or prior to a later date approved in writing by LINKON.
11.2.3 Violation of the provisions of Section 11.2 by Distributor shall
constitute a failure which is not capable of cure for purposes of Subsection
8.1.1.
11.3 Other Issues.
In the event Distributor is uncertain regarding whether or not a particular
product falls within the definition of Competitive Products, Distributor may
request in writing that LINKON inform Distributor of the status
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of such product. LINKON shall, within thirty (30) days after receipt of such a
request, advise Distributor in writing whether or not, in LINKON's judgment, the
product in question is a Competitive Product. LINKON's written advice shall be
conclusive on the subject for purposes of this Agreement.
12.0 ADDITIONS TO AND ENHANCEMENT OF THE PRODUCTS
12.1 Additions, Enhancements and New Products.
12.1.1 LINKON is continuously developing enhancements and/or additions to its
products as well as new products. LINKON, in its sole discretion, shall
determine if and when any such additions, enhancements or new products will be
added to the definition of Products (through an amendment to Exhibit B). LINKON
has no obligation to include any addition, enhancement or new product as part of
the Products.
12.1.2 Distributor may, but is not obligated to accept enhancements, additions
and new products which LINKON offers in writing to add to the definition of
Products. Such acceptance shall be in writing within thirty (30) days after
LINKON's offer.
12.2 Distributor's Obligations.
Effective the date of acceptance by Distributor of the enhancement, addition or
new product in accordance with the provisions of Subsection 12.1.2, Distributor
shall take all actions necessary to develop demand for, sell, install, support
and service the enhancement, addition or new product in the Territory as part of
the Products in accordance with this Agreement.
13.0 TRAINING AND PROMOTIONAL ACTIVITIES
13.1 Training.
13.1.1 LINKON shall periodically provide training classes for Distributor's
personnel (and personnel of other distributors) in the installation,
configuration and service of the Products. Distributor's employees shall be
entitled to attend such classes on a first come first served basis in accordance
with rules and procedures established by LINKON. All expenses for Distributor's
personnel attending LINKON training classes, including travel, salary and
accommodations, shall be borne by Distributor. The first training class for up
to 3 personnel will be given to the Distributor free of charge. In addition,
Distributor agrees to pay LINKON's standard charges for attending additional
classes.
13.1.2 In the event Distributor desires that LINKON provide training for
Distributor's personnel at a location other than LINKON's headquarters,
Distributor shall so advise LINKON and LINKON shall make reaonsable efforts to
accommodate Distributor's needs (subject to mutual agreement on timing, location
and on how related costs and expenses will be borne by each of them).
13.2 Promotion by Distributor.
13.2.1 Distributor shall be primarily responsible for promoting demand for and
selling the Products in the Territory. As part of its promotion efforts, the
Distributor shall purchase at lease one complete Linkon system for use at its
principal place of business or such other location as is designated by the
Distributor and approved in writing by LINKON. Such system shall be used for
handling Distributor's call processing needs as well as for demonstrations and
to familiarize and train Distributor's employees with the Products.
13
13.2.2 LINKON shall permit Distributor to promote the Products through
advertising and public relations programs conducted and paid for by Distributor
provided that the contents thereof are approved in writing by LINKON and no
claims or representations are made about the Products in excess of those made by
LINKON.
13.3 Promotional Materials.
LINKON shall supply Distributor with reasonable quantities of promotional
materials for the Products. Such material shall include data sheets, catalogs,
brochures, and reprints of its advertising art. Such material shall be made
available at LINKON's then current published prices for such materials.
14.0 SERVICE, SUPPORT AND SPARE PARTS
14.1 End User Service and Support
14.1.1 Distributor acknowledges that high quality service and support to end
users of the Products is an essential purpose of this Agreement. Distributor
agrees to provide the highest quality service and support on a consistent basis
to all end users of Products purchased from Distributor in accordance with
instructions issued from time to time by LINKON. Distributor shall at all times
while this Agreement is in effect employ sufficient numbers of qualified and
experienced systems engineers and customer support personnel to provide high
quality configuration, installation, maintenance, repair and support services
for Distributor's customer base of Products.
14.1.2 At all times while this Agreement is in effect, Distributor shall employ
at least one full-time sales engineer or systems engineer who has successfully
completed LINKON systems engineering training (or is otherwise certified by
LINKON as qualified to install, configure, maintain, service and support the
Products in the Territory.)
14.1.3 LINKON shall provide the Distributor with documentation suitable for the
management, installation, maintenance, and configuration of the Products and,
when needed, centralized technical and application consultation via telephone or
other electronic means.
14.2 Spares Parts, Repairs.
14.2.1 Distributor shall purchase at prices determined in accordance with the
provisions of Subsection 6.1.1 and carry in stock the quantity of repair and
replacement parts set forth in Exhibit D. The quantity of parts to be carried
in stock shall be governed by the quantity of Products in Distributor's customer
base to be serviced. LINKON shall repair Products which are out of warranty at
the prices set out in Exhibit D, provided Distributor complies with LINKON's
then current standard parts repair procedures. Parts shall be marked with
serial numbers in accordance with LINKON's standard practices.
14.2.2 LINKON shall continue to repair Products sold by Distributor and sell to
Distributor spare parts for each Product sold to Distributor under this
Agreement strictly for the purpose of maintaining previously sold and installed
Products for a seven (7) year period after termination or expiration of this
Agreement. Prices shall be at LINKON's then current prices for spare parts and
repairs.
14
14.2.3 LINKON may at any time and from time to time increase the charges for
repairs, prices for spare parts, or the required level of spare parts. Changes
shall be effective sixty (60) days after written notice to Distributor.
15.0 END USER INFORMATION AND SUPPORT
15.1 Information to be Provided by Distributor.
15.1.1 As requested by LINKON, Distributor shall inform LINKON of projected
sales on a quarterly basis including the names of potential customers and the
contact party. LINKON shall keep such information strictly confidential and may
not divulge such information to third parties without Distributor's prior
written permission.
15.1.2 To the extent known to it when ordering Products, Distributor shall upon
request inform LINKON of the intended end user for each system being ordered and
the installation address.
15.1.3 Promptly after a system is installed, Distributor shall provide LINKON
with the name of the customer/end user, the installation address, the telephone
number and such other information as LINKON may reasonably request.
15.1.4 From time to time as requested by LINKON, Distributor shall assist
LINKON to update and correct LINKON's data base of information regarding end
users of Products in the Territory.
15.2 End User Surveys and Distributor Service Level.
LINKON intends to conduct regular surveys of end users in the Territory to
determine their level of satisfaction with the Products as well as with
Distributor's and LINKON's service/support. LINKON shall report the results of
such surveys of Distributor's customers to Distributor. If Distributor's level
of service is not satisfactory (i.e. the survey results for Distributor's
customers are substantially less favorable than for the majority of other LINKON
distributors), LINKON shall make suggestions as to how service can be improved.
Thereafter, Distributor shall have one hundred twenty (120) days or until the
next end user survey, whichever is longer, to improve its service to a
satisfactory level as established by LINKON. Distributor's failure to improve
its service to a satisfactory level as provided above within the cure period
provided for herein shall be deemed to be a failure that is not capable of cure
for purposes of Subsection 8.1.1.
16.0 (OMITTED)
17.0 TRADEMARKS
17.1 Use of Trademarks.
Distributor may, with LINKON's prior written consent, use certain of the
Trademarks in connection with the business of marketing and selling the Products
for installation in the Territory, subject to the terms and conditions set forth
in this Article 17.0, and may not use the Trademarks in any other manner without
the express written consent of LINKON. In no event shall Distributor use the
"Linkon PRO" ▇▇▇▇ or any other marks LINKON intends to restrict for use only by
Linkon PRO distributors. The use of the Trademarks
15
required or permitted pursuant hereto shall immediately terminate upon
expiration of this Agreement or its earlier termination as provided for in
Article 8.0.
17.2 Approval of Trademark Usage.
Distributor shall submit to LINKON for the prior written approval of LINKON in
each case, all proposed advertising and other promotional literature or material
in which Distributor desires to use any of the Trademarks or LINKON's name.
Without limitation to the foregoing, all advertising and other material
utilizing any Trademarks, shall clearly indicate the /(R)/ or /TM/ symbols after
the trademarked name and shall include the following statement:
"(name of products(s)) is a trademark of LINKON Corporation"
or such other statement as may be requested, from time to time, by LINKON.
17.3 Protection of Trademarks.
Distributor recognizes the right, title, and interest of LINKON in and to all
the Trademarks in connection with the marketing and sale of Products by LINKON
and agrees not to engage in any activities or commit any acts, directly or
indirectly, which may contest, dispute, or otherwise impair such right, title,
or interest of LINKON therein. Distributor shall neither acquire, nor claim any
right, title or interest in or to, Trademarks advertise to the rights of LINKON
whether by virtue of this Agreement or through any use by Distributor of the
Trademarks which may be permitted by LINKON through advertising and sale of the
Products or otherwise. The parties agree that any and all uses of such
Trademarks by Distributor as may be permitted by LINKON herein or in writing
from time to time shall be in such manner as to inure at all times to the
benefit of LINKON.
17.4 Use of Other Trademarks.
Distributor shall not utilize, in connection with any of the Products, including
the promotion, distribution, and sale of any of the Products, any trademark
other than the Trademarks without in each case first obtaining the prior written
authorization of such use from LINKON.
17.5 New or Modified Trademarks.
If any trademarks, trade names or service marks of Distributor are used by
Distributor in combination with the Trademarks in such manner as to be
distinctive, such distinctive features and associated goodwill thereof shall
become the property of and inure to the benefit of LINKON, and Distributor
shall, without any payment or other consideration, execute such documents as are
necessary to assign all rights thereto to LINKON.
17.6 Infringement.
If Distributor learns of any infringing use of the Trademarks, Distributor shall
promptly report the details thereof to LINKON and shall cooperate with LINKON in
pursuing any remedies available to LINKON or Distributor.
18.0 PATENTS AND COPYRIGHTS
16
18.1 Infringement.
Except as otherwise provided in Section 18.3, LINKON shall defend any suit or
proceeding brought against Distributor based on a claim that the use, possession
or sale of the Products in accordance with the terms of this Agreement
constitutes an infringement of any United States patent or copyright provided
LINKON is notified promptly in writing by Distributor of the claim and is given
authority, information and assistance (at LINKON's expense) by Distributor for
defense of the matter and, subject to the provisions of Section 18.2, LINKON
shall pay all damages and costs awarded therein against Distributor. In the
event the Products are held in such matter to be infringing and as a result the
use of the Products is enjoined, LINKON shall, at its expense and option, either
procure for Distributor the right to continue using the Products, replace the
same with a non infringing product, modify them so they become non-infringing,
or remove the infringing Products and refund the purchase price thereof to
Distributor.
18.2 Limitation of Liability.
In no event shall LINKON's total liability to Distributor under or as a result
of compliance with the provisions of Section 18.1 exceed the aggregate sum paid
by Distributor for the infringing or allegedly infringing Products. Section
18.1 and this Section 18.2 state the entire liability of LINKON for patent or
copyright infringement by the Products and the provisions thereof are IN LIEU OF
ANY OTHER EXPRESSED, IMPLIED OR STATUTORY WARRANTY AGAINST INFRINGEMENT AND
SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR PATENT OR COPYRIGHT INFRINGEMENT OF
ANY KIND.
18.3 Other.
Distributor shall indemnify and hold LINKON harmless against any expense or loss
resulting from any claim, action or proceeding resulting from Distributor's
actions, omissions or negligence in connection with its appointment as a non-
exclusive Distributor under this Agreement including, without limitation,
infringement of patents, copyrights, trademarks or unfair competition arising
from compliance with Distributor's designs, specifications or instructions.
Sale of the Products by LINKON does not convey any license, by implication,
estoppel or otherwise, under patent claims covering combinations of the Products
with other devices or elements.
19.0 CONFIDENTIALITY
19.1 Confidentiality of LINKON's Information.
19.1.1 Distributor shall not, at any time prior to five (5) years after
termination or expiration of this Agreement, use or disclose to others (except
for the purposes required by or directly incidental to the sale, installation,
and maintenance of Products pursuant to this Agreement) any information or
materials provided to Distributor and marked CONFIDENTIAL. Nor shall
Distributor disclose to others any other information pertaining to LINKON's
trade secrets (including software), manufacturing process, customers, marketing
practices, or other information of a confidential nature.
19.1.2 Distributor agrees to limit access to LINKON's confidential information
to only those employees of Distributor who have signed confidentiality
agreements approved by LINKON. Distributor shall enforce such agreements as
necessary to prevent improper use or dissemination of LINKON's confidential
information.
17
19.2 Confidentiality of Distributor's Information.
LINKON shall not, at any time prior to five (5) years after termination or
expiration of this Agreement, use or disclose to others (except as may be
required or directly incidental to LINKON's performance of this Agreement) any
information provided by Distributor and marked CONFIDENTIAL pertaining to
Distributor's trade secrets, customer lists, pricing, and marketing practices
and other information of a confidential nature.
20.0 MISCELLANEOUS.
20.1 No Assignments.
This Agreement is not assignable or transferable in whole or in part by
Distributor without the prior written consent of LINKON.
20.2 Notices.
Any notices given with respect to or required by this Agreement shall be in
writing and sent by first class postage prepaid registered or Certified mail or
by facsimile transmission to LINKON or Distributor as the case may be, at the
address indicated on the first page of this Agreement, or to such other
addresses as either party may have last designated in writing in the manner
herein provided. Notices shall be deemed received three (3) days after deposit
in the U.S. mail or immediately in the case of facsimile transmission.
20.3 Relationships of Parties.
The relationship of the parties is that of buyer and seller. No partnership,
joint venture, franchise, or other similar relationship is created by this
Agreement. Distributor shall, at all times, operate as an independent
contractor and not as an agent or employee of LINKON. Distributor has no
express or implied authority to incur any obligation for or in any manner
otherwise make any commitments on behalf of LINKON. Distributor shall employ
its own personnel and shall be responsible for them and their acts and in no way
shall LINKON be liable to Distributor, its employees, or third parties for any
losses, injuries, damages, or the like occasioned by Distributor's activities in
connection with this Agreement, except as expressly provided herein.
Distributor shall be solely responsible for, and shall indemnify and hold LINKON
harmless from any and all claims, damages, or lawsuits arising out of the acts
or omissions of Distributor, its employees, servants, or agents. In addition,
Distributor shall carry adequate liability and property insurance at its own
expense to cover such risks.
20.4 Nonwaiver.
Any failure by either party to enforce at any time any of the provisions,
including without limitation, the termination provisions of this Agreement,
shall not be construed to be a waiver of such provision or of the right of
either party thereafter to enforce such provision.
20.5 Severability.
All provisions of this Agreement shall be considered as separate terms and
conditions, and in the event any one shall be held illegal, invalid, or
unenforceable, all the other provisions hereof shall remain in full force and
effect, as if the illegal, invalid, or unenforceable provision were not a part
hereof.
18
20.6 Choice of Laws.
This Agreement is made in, and shall be governed by and construed in accordance
with the laws of the State of Connecticut and the United States of America
without regard to conflict of law principles.
20.7 Entire Agreement.
This Agreement contains the entire agreement between the parties with respect to
the subject matter herein and supersedes and replaces all prior and
contemporaneous agreements relating thereto. Any alteration or amendment of
this Agreement must be in writing and signed by both parties, provided that
LINKON may change the contents of certain of the Exhibits as expressly permitted
under the terms of this Agreement and such changes shall be binding on
Distributor.
20.8 Exhibits.
The exhibits appended hereto are an integral part of this Agreement and shall be
referred to in construing and interpreting this Agreement.
20.9 Headings and Titles.
The headings and titles used in this Agreement are for convenience only. They
are not part of this Agreement and shall not be referred to in interpreting and
construing terms and conditions hereof.
20.10 Use of Plurals.
In this Agreement, the singular shall, when the context requires, include the
plural and vice versa.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective
the day and year first above set forth.
LINKON: DISTRIBUTOR:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇.▇. ▇▇▇▇
--------------------------- --------------------------
Signature Signature
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇
--------------------------- -----------------------
Name (printed) Name (printed)
Vice President President
--------------------------- -----------------------
Title Title
19
Authorized Distributor Agreement
EXHIBIT A
The Territory consists of the following:
Korea
20
Authorized Distributor Agreement
EXHIBIT B - LINKON PRODUCTS
The Products consist of the following LINKON technology and related equipment:
Linkon "Maestro" 100% DSP based multimedia communication board.
Linkon Software Options Consisting Of:
Link-OS/TM/ operating systems
TeraVox/(R)/ Communications Software
Voice record and play
Voice Data Compression
Speech Recognition
Text to Speech
Alpha Speech Recognition
Numeric Speech Recognition
Speaker Verification
Fax Communications
Data Communications
Linkon System Enhancements, Including:
Digital T-1 Interface
Digital E-1 Interface
MVIP Interface
PEB Interface
LEB/TM/ Interface
21
Authorized Distributor Agreement
EXHIBIT C
DISCOUNT SCHEDULE
YEARLY VOLUME DISCOUNTS
CUMMULATIVE VOLUME GROUP 1 GROUP 2 GROUP 3 GROUP 4 GROUP 5
$50,001-$100,000 10% 15% 12% 4% 3%
$100,001-$150,000 15% 20% 16% 6% 4%
$150,001-$200,000 20% 25% 20% 8% 5%
$200,001-$500,000 25% 30% 24% 10% 6%
$500,001-$750,000 30% 35% 28% 12% 8%
$750,001-$1,000,000 35% 40% 32% 16% 10%
GREATER THAN $1,000,001 40% 45% 36% 20% 12%
NOTE: A FIRST TIME ORDER OF UP TO $100,000 WILL BE GIVEN THE MAXIMUM DISCOUNT
22
EXHIBIT D
RECOMMENDED SPARE PARTS:
FS4FBD-01 Foundation Board - 2 Wide
FS4FB3-01 Foundation Board - 3 Wide
FS4DSP-44 FS4000 DSP Module (4DSP w/16MB)
FS4DAA-01 DAA Module
FS4KT1-01 FS4000 T1 Module
FSMVIP MVIP Cable
FST1CBL T1 Cable
FST1BB T1 Breakout Box
23
EXHIBIT E - LINKON LIST PRICING
LINKON. PRICE LIST EFFECTIVE AUGUST 5, 1996
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇.Fax (▇▇▇) ▇▇▇-▇▇▇▇
FC-4000 MAESTRO/TM/ PC-EISA/ISA BUS GROUP 1
HIGH DENSITY* 1MB/DSP - SUPPORTS VOICE/DTMF PRICE
FC4012-D1 . 12 CHANNEL DIGITAL BOARD 2,795.00
FC4024-D1 . 24 CHANNEL DIGITAL BOARD 5,090.00
FC4036-D1 . 36 CHANNEL DIGITAL BOARD 7,385.00
HIGH PERFORMANCE* 1MB/DSP - SUPPORTS VOICE/DTMF, FAX, MODEM, CELP
FC4004-A2 . 4 CHANNEL ANALOG BOARD 3,095.00
FC4008-A2 . 8 CHANNEL ANALOG BOARD 5,690.00
FC4004-D2 . 4 CHANNEL DIGITAL BOARD 2,795.00
FC4008-D2 . 8 CHANNEL DIGITAL BOARD 5,090.00
FC4012-D3 . 12 CHANNEL DIGITAL BOARD 7,385.00
HIGH CAPACITY* 4MB/DSP - SUPPORTS VOICE/DTMF, FAX, ASR, MODEM, CELP, TTS
FC4004-A3 . 4 CHANNEL ANALOG BOARD 4,250.00
FC4008-A3 . 8 CHANNEL ANALOG BOARD 8,000.00
FC4004-D3 . 4 CHANNEL DIGITAL BOARD 3,950.00
FC4008-D3 . 8 CHANNEL DIGITAL BOARD 7,400.00
FC4012-D3 . 12 CHANNEL DIGITAL BOARD 10,850.00
FC-4K COMPONENTS*
FC4KFB-01 . FOUNDATION BOARD (ISA BUS) 500.00
FC4DAA-01 . FX4000 DAA MODULE (ANALOG/4PORT) 300.00
FC4DSP-21 . FX4000 DSP MODULE (2 DSP W/2MB)*** 1,550.00
FC4DSP-24 . FX4000 DSP MODULE (2 DSP W/8MB)*** 2,150.00
FC4DSP-41 . FX4000 DSP MODULE (4 DSP W/4MB) 2,295.00
FC4DSP-44 . FX4000 DSP MODULE (4 DSP W/16MB) 3,450.00
Note: All prices FOB Fairfield, CT and are in US Dollars. Linkon reserves the
right to amend specifications and prices without notice.
* Prices only include Voice and DTMF capabilities.
*** Special order configuration.
. LINKON CORPORATION .
24
LINKON. PRICE LIST EFFECTIVE AUGUST 5, 1996
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇.Fax (▇▇▇) ▇▇▇-▇▇▇▇
FS-4000 MAESTRO/TM/ WORKSTATION-SBUS GROUP 1
HIGH DENSITY* 1MB/DSP - SUPPORTS VOICE/DTMF PRICE
FS4012-D1 . 12 CHANNEL DIGITAL BOARD 3,913.00
FS4024-D1 . 24 CHANNEL DIGITAL BOARD 7,126.00
HIGH PERFORMANCE* 1MB/DSP - SUPPORTS VOICE/DTMF, FAX, MODEM, CELP
FS4001-A2 . 1 CHANNEL ANALOG BOARD 1,393.00
FS4004-A2 . 4 CHANNEL ANALOG BOARD 4,333.00
FS4004-D2 . 4 CHANNEL DIGITAL BOARD 3,913.00
FS4008-D2 . 8 CHANNEL DIGITAL BOARD 7,126.00
HIGH CAPACITY* 4MB/DSP - SUPPORTS VOICE/DTMF, FAX, ASR, MODEM, CELP, TTS
FS4004-A3 . 4 CHANNEL ANALOG BOARD 5,950.00
FS4004-D3 . 4 CHANNEL DIGITAL BOARD 5,530.00
FS4008-D3 . 8 CHANNEL DIGITAL BOARD 10,360.00
FS-4K COMPONENTS*
FS4KFB-01 . FOUNDATION BOARD 700.00
FS4DAA-01 . FX4000 DAA MODULE (ANALOG/4PORTS) 420.00
FS4DSP-21 . FX4000 DSP MODULE (2 DSP W/2MB)*** 2,170.00
FS4DSP-24 . FX4000 DSP MODULE (2 DSP W/8MB)*** 3,010.00
FS4DSP-41 . FX4000 DSP MODULE (4 DSP W/4MB) 3,213.00
FS4DSP-44 . FX4000 DSP MODULE (4 DSP W/16MB) 4,830.00
Note: All prices FOB Fairfield, CT and are in US Dollars. Linkon reserves the
right to amend specifications and prices without notice.
* Prices only include Voice and DTMF capabilities.
*** Special order configuration.
. LINKON CORPORATION .
25
LINKON. PRICE LIST EFFECTIVE AUGUST 5, 1996
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇.Fax (▇▇▇) ▇▇▇-▇▇▇▇
NETWORK INTERFACES GROUP 5
PRICE
ACR2E1-32 . 30 CHANNEL R2 SIGNALING E-1 CARD CALL FOR QUOTE
NM2121-03 . 24 CHANNEL ROB BIT SIGNALING T-1 CARD (WITHOUT CSU) 4,200.00
PRISA-48 . 48 CHANNEL ROB BIT/ISDN SIGNALING T-1 CARD 3,950.00
CHASSIS SYSTEMS GROUP 5
PRICE
IN06 . 6 SLOT SYSTEM FOR SUN SPARC (WITH CONNECTOR CARD) 1,995.00
INTERFACE ACCESSORIES NO DISCOUNT
PRICE
BREAKOUT BOX FOR RJ11 50.00
ANALOG INTERFACE CABLE FOR RJ11 65.00
MVIP CABLE 65.00
PEB CABLE 65.00
T-1 INTERFACE CABLE - SBUS 65.00
SUPPORT PROGRAMS GROUP 4
PRICE
PREMIER* 4,900.00
ENHANCED* 2,900.00
PER HOUR TECHNICAL SUPPORT - NO CONTRACT (15 MINUTE INCREMENTS) 100.00
PER HOUR ENGINEERING SUPPORT - NO CONTRACT 150.00
ENGINEERING OR TRAINING - PER DAY + EXPENSES 1,750.00
* For first year support coverage. Pricing for years 2+ will be quoted based
upon size of installed base of product to be covered.
. LINKON CORPORATION .
26
LINKON. PRICE LIST EFFECTIVE AUGUST 5, 1996
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇.Fax (▇▇▇) ▇▇▇-▇▇▇▇
APIS (APPLICATION PROGRAMMING INTERFACES) GROUP 2
LINKVOX* PRICE
DIRECT DRIVER DEVELOPER'S LICENSE (DDI) 3,750.00
LINKOS - PER CHANNEL 100.00
PROVOX DEVELOPER'S LICENSE** 6,250.00
PROVOX RUN-TIME LICENSE - PER CHANNEL 150.00
TERAVOX DEVELOPER'S LICENSE** 6,250.00
TERAVOX RUN-TIME LICENSE - PER CHANNEL 150.00
SOFTWARE LICENSES GROUP 3
FAX PRICE
FAX GROUP III CLASS II - PER CHANNEL 250.00
DATA COMMUNICATIONS
MODEM - PER CHANNEL 100.00
VOICE COMPRESSION
CELP 9600 BITS/SECOND - PER CHANNEL 165.00
AUTOMATIC SPEECH RECOGNITION
L&H (AMERICAN ENGLISH, FLEMISH, DUTCH, FRENCH, GERMAN, SPANISH) - 300.00
PER CHANNEL
L&H ASR PVE TOOL KIT - PER COPY 1,250.00
TEXT-TO-SPEECH
L&H - PER CHANNEL 250.00
AUTOMATIC CALLER ID
CALLER ID (202) ANALOG OR DIGITAL - PER CHANNEL 100.00
* Choice of: Interactive UNIX 4.1, SCO UNIX 4.2, SPARC Solaris 2.4, UnixWare
1.1, x86 Solaris 2.4
** Includes 4 (four) channels of Run-time
. LINKON CORPORATION .
27
EXHIBIT F
SOFTWARE LICENSE AGREEMENT
between
LINKON CORPORATION (Linkon)
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and
TriGem Microsystems, Inc. (DISTRIBUTOR)
9 FL, New ▇▇▇▇▇▇▇▇ Bldg., ▇▇▇-▇▇
▇▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇
▇▇▇-▇▇▇, ▇▇▇▇▇
I. SOFTWARE LICENSE
LINKON Software, including its documentation, is copyrighted by LINKON, which
owns all rights and title to the product. You are receiving a license to use
the Software, but not the title to it or any copy of it. This license is
applicable to LINKON Software only for use on the LINKON equipment with which it
is provided. Under the copyright laws and this license Agreement, the Software
and its documentation may not be duplicated or copied, in whole or in part,
without the written permission of LINKON, except for the normal use of the
Software, or to make backup archival copies. The same proprietary and copyright
notices must be affixed to any permitted copies as were affixed to the original.
This exception does not allow copies to be made for others, whether or not for
consideration, but all of the licensed material (including backup copies) may be
transferred to another person, if he agrees to be bound by the provisions of
this Agreement, and if you destroy any copies of material not transferred.
Prohibited copying includes translating into another language or format.
End-user agrees to take reasonable steps to safeguard copies of the Software
against disclosure to or use by unauthorized persons, and to take reasonable
steps to insure that the provisions of this Agreement are not violated by its
employees.
This license shall remain in effect until terminated. You may terminate the
license at any time by destroying all copies of the program and its
documentation. The license will also terminate upon your failure to comply with
the terms and conditions of this Agreement. Upon termination, you must destroy
all your copies of this program, including any modifications.
If you register the Warranty by sending in the enclosed software registration
card, LINKON will provide you with notice of significant corrections made in the
program for one year after the date of this license begins. You will also be
entitled to obtain advice and service directly from LINKON or its authorized
Distributors for problems or errors you discover in the program in accordance
with standard LINKON service policies.
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II. LIMITED SOFTWARE WARRANTY
LINKON warrants that each LINKON Software program shall conform to current
published documentation applicable to such program. For a period of two years
from the date of installation of the LINKON Software, LINKON or its authorized
Distributor will resolve or provide a solution for software faults at no charge
to you, providing you have documented the symptoms of the fault. This Warranty
will not apply to problems which cannot be replicated by LINKON or you.
LINKON'S WARRANTY OBLIGATIONS SHALL IN NO EVENT INCLUDE ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, RESPONSIBILITY FOR DAMAGE
RESULTING FROM ACCIDENT, TRANSPORTATION, NEGLECT, MISUSE, MODIFICATION WITHOUT
LINKON'S PRIOR CONSENT, UNAUTHORIZED ATTEMPTS TO REPAIR, OR FAILURE OF
ELECTRICAL POWER OR ENVIRONMENTAL CONTROL.
III. LIMITATION OF LIABILITY
IN NO EVENT WILL LINKON OR ITS DISTRIBUTORS BE LIABLE FOR ANY COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY DIRECT, INDIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM YOUR USE OF, OR
INABILITY TO USE THE PRODUCT, BASED UPON ANY DEFECT IN THE PRODUCT OR ITS
DOCUMENTATION, EVEN IF LINKON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN PARTICULAR, LINKON SHALL HAVE NO LIABILITY FOR THE LOSS OF ANY
INFORMATION WITHIN THE SYSTEM AT ANY TIME.
THE MAXIMUM LIABILITY FOR LINKON FOR ANY CLAIM, INCLUDING BUT NOT LIMITED TO
LINKON'S NEGLIGENCE, SHALL BE LIMITED TO RETURN OF THE CONSIDERATION ACTUALLY
PAID TO LINKON FOR THE PRODUCT, LESS REASONABLE DEPRECIATION.
The Warranty and remedies set forth above are exclusive and in lieu of all
others, oral or written, expressed or implied. No LINKON Distributor, agent, or
employee is authorized to make any modification, extension, or addition to this
Warranty.
THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE
OF ANY LIMITED WARRANTY.
LINKON: DISTRIBUTOR:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/▇.▇. ▇▇▇▇
-------------------------- ------------------
Signature Signature
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇
------------------------- ----------------------
Name (printed) Name (printed)
Vice President President
-------------------- -----------------------
Title Title
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EXHIBIT G
SUPPORT PLAN
BASIC PLAN-INCLUDED IN PURCHASE PRICE
Hardware
* For 30 days from date of shipment:
- Free overnight advance replacement of defective equipment
1. Requires RMA from technical support
2. Replacement shipped same day if RMA issued before 2:00 P.M.
Shipping method is via second day service.
3. Defective equipment must be returned by customer in original
packaging to Linkon within 5 days, or the customer will be invoiced
for the full purchase price.
4. Does not apply to custom or special order product.
* For 2 years from the date of purchase:
- Free repair of the defective equipment
1. With RMA
2. Repaired or replaced with new or reconditioned product at Linkon's
option.
3. Returns shipped within 10 working days. Shipping method is via
second day service.
4. 90 day warranty on repair, or balance of original warranty
- A "No Trouble Found" fee of $150 will be charged for product returned for
service and found to be fully functional.
Software/API's
* Temporary fixes are included at no-charge
* Maintenance Releases are included for 6 months
* Major Releases are available at 50% of list current price
Technical Support
* Telephone support during business hours (8 hours x 5 days)
* 5 application support issues per purchase order during the first 6 months
* Additional calls $100 per hour for a Technical Support Engineer, billed in 15
minute increments. Engineering Support is billed at $150 per hour.
PREMIER CARE PLAN
*Provides immediate replacement of defective equipment via overnight express
service
1. Requires RMA from technical support
2. New or reconditioned replacement shipped same day if RMA issued before
2:00PM
3. Defective equipment must be returned by customer to Linkon within five
days
4. Does not apply to custom or special order product.
*Purchased in addition to basic warranty
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*Cost is $4900 for the first year of blanket product coverage. The cost for
years 2+ will be quoted based upon the installed base of product to be covered.
Software/API's
* Temporary fixes are included at no-charge
* Maintenance Releases are included at no charge
* Free Major Software releases are included at no charge
Technical Support
* Toll free 800 number (with access code)
* Telephone support (24 hour x 7 day)
* Call back during non-business hours within 1 hour
* Unlimited support calls per year
LINKON ADVANCE REPLACEMENT SERVICE
*Provides for immediate replacement of defective equipment via overnight service
- Subject to availability.
- Requires RMA from technical support
- Replacement shipped same day if RMA issued before 2:00 PM. Shipping
method is next day service.
- Defective equipment must be returned by customer in original packaging to
Linkon within five days, or the customer will be invoiced for the full
purchase price.
*Repaired equipment warranted for 90 days or remainder of the original warranty.
*Cost-
In warranty-$250 per replaced unit, plus shipping charges.
Out of warranty-$500 plus the standard repair cost per replaced unit, plus
shipping charges.
LINKON DEPOT REPAIR SERVICE
*For equipment not covered under warranty
*Repaired units warranted for 90 days from shipment of repaired unit.
*Repairs shipped within 10 days of receipt
*Cost: 25% of the original list price per unit repaired.
LINKON ON-SITE SERVICE
*Provides on-site services of a professional Linkon technician for installation,
configuration of debug.
* Cost: $1750 per day, plus expenses
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LINKON SOFTWARE UPGRADES
*Major Releases
- Whole number releases
- Supported for up to 6 months after the next major release
- Cost is current list price less 25% discount for current customers
LINKON SOFTWARE MAINTENANCE
* Maintenance Releases
- Decimal releases in "Tenths"
- Available to registered owners of major releases
- Available via CD Rom or Data Cartridge
* Temporary Fixes
- Decimal releases in "Hundredths"
- Available to registered owners reporting problems
- Available via CD Rom, Data Cartridge, or the Internet
SHIPPING POLICY
* Customer pays the shipping charges to return the product to Linkon
*Linkon pays shipping charges to return product to the customer, except for out
of warranty repair or advanced replacement service.
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