OEM PURCHASE AGREEMENT
This OEM Purchase Agreement ("Agreement") is made effective as of April 11,
1997, by and between Santa Xxxxxxx Connected Systems Corporation, DBA Connected
Systems, ("Connected Systems"), located at 000 Xxxx Xxxxxxxx Xx., Xxxxx Xxxxxxx,
Xxxxxxxxxx 00000 and Enhanced Systems Inc., of 0000 Xxxxxxxxx Xxxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxx 00000 ("Buyer").
WHEREAS, Connected Systems offers the products described in Exhibit D
(collectively "Product") for resale directly or indirectly to current and future
customers; and
WHEREAS, Buyer desires to purchase such Product and services, including those
described in Section 8, and any future products and services offered by
Connected Systems during the term of this Agreement for Buyer's use;
WHEREAS, Buyer is in the business of providing such Products to customers as
Buyer determines;
NOW, THEREFORE, in consideration of the promises set forth below, and for other
good and valuable consideration, the parties hereby agree as follows:
1. PURCHASE AND RESALE
1.1 During the term of this Agreement, Connected Systems agrees to
sell to Buyer and Buyer agrees to purchase from Connected
Systems Product and options as stated in Exhibit D. Product
pricing is shown in Exhibit A and shall be based on Buyer's
estimated purchase quantities based on the Buyer's best
efforts sales activity. Exhibit A shall be replaced by updated
price lists or product descriptions as agreed by Buyer and
Connected Systems during the term of this Agreement. Successor
products which replace or supersede products named in Exhibit
A shall be incorporated herein upon notice by Connected
Systems of their availability. Buyer shall issue a
non-cancelable initial purchase order of 500 units for
Product, to be delivered in minimum quantities of 250 units
each during the first two quarters of the first Contract Year.
The initial Purchase Order shall be issued upon signing of the
Agreement. Buyer shall issue a second purchase order for 1000
units upon signing of the Agreement. The delivery dates for
this order shall be established within six months of signing
of the Agreement. Connected Systems and Buyer agree that the
both purchase orders are dependent upon satisfactory technical
performance and the product successfully passing Buyer's
evaluation that hardware and software meet the specification
in Exhibit A. Both parties also agree that Buyer's obligations
under the second purchase order is subject to acceptable
product performance and competitive product pricing and
features.
1.2 Connected Systems grants to Buyer the non-exclusive right to
resell, lease, distribute and otherwise dispose of Products
purchased hereunder in any country throughout the world either
directly to end users or indirectly through third parties,
including resellers, distributors, prime contractors and/or
joint venture companies.
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1.3 Connected Systems further grants to Buyer a non-exclusive,
paid-up, worldwide license to modify, translate, reproduce,
and distribute copies of Connected Systems' user
documentation, service and maintenance manuals, training
materials, and promotional and advertising materials for the
Products in connection with the use, marketing, distribution
and support of the Products by Buyer and its end users,
resellers and authorized service representatives. Seller
agrees to update documentation on an as needed basis.
2. ORDERS
2.1 Buyer will place orders for the delivery of Products using a
purchase order with terms as stated in this Agreement.
Connected Systems will confirm its acceptance of Buyer's
orders in writing within seven (7) days after receipt. Each
such purchase order shall set the product types, release
dates, and shipping method of Products required to be
purchased under this Agreement and shall be accompanied by a
rolling 12-month forecast of Buyer's need for Products.
2.2 Any terms or conditions of any purchase order or other
document submitted by Buyer or any acknowledgment, invoice or
other document submitted by Connected Systems which conflict
with or purport to amend or supplement any of the terms and
conditions of this Agreement shall be of no force or effect
unless agreed upon in writing by Buyer and Connected Systems.
2.3 All orders placed for non-recurring engineering charges shall
be due and payable thirty days after the completion of the
requested work, without regard to other obligations of
Connected Systems under this Agreement.
3. DELIVERY AND ACCEPTANCE
3.1 Connected Systems will ship the Products any time within the
Contract Year one hundred twenty (120) days following receipt
of Buyer's order. Connected Systems will provide a written
acknowledgement of Buyers order within ten (10) working days
of receipt. Buyer will have the ability to change or cancel
the purchase orders if Connected Systems cannot meet the 120
day delivery date. If shipment is delayed past the
acknowledged on-board date, then Connected Systems will be
liable to pay the difference between ground/sea freight and
air freight if requested by Buyer. If requested by Buyer,
Connected Systems will make reasonable efforts to ship
Products sooner than the lead time specified in this Section
and to accommodate revised purchase orders involving increases
in volume or changes in type of Products ordered. Buyer agrees
to reimburse any charges incurred by Connected Systems in
accepting such requests from Buyer if approved in writing by
Buyer. After delivery of the first 500 units, the minimum
purchase release under this agreement shall be fifty (50)
items or $25,000 per shipment, whichever is greater.
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3.2 All shipments by Connected Systems under this Agreement shall
be delivered F.O.B. Connected Systems' manufacturing facility.
Title and risk of loss shall pass to Buyer at the point of
shipment. Products will be packed for shipment in a manner
reasonably designed to prevent damage during normal surface
transport. Charges for any special packaging will be paid by
Buyer. Products will be shipped in accordance with shipping
instructions provided by Buyer or to Buyer at its address
stated above in the absence of shipping instructions.
3.3 Buyer may perform an incoming inspection of the Products
within twenty (20) days of receipt of Product. If Buyer
determines as a result of such inspection that a Product is
defective, Buyer may reject the Product and return the
rejected Product to Connected Systems. Connected Systems shall
use its best efforts to replace the rejected Product within
ten (10) working days of its return to Connected Systems.
Connected Systems will pay the shipping charges for any
defective products returned to Connected Systems. Payment
shall not affect Buyer's right to reject a defective Product.
All other Product returns shall be handled under the warranty
procedures in this agreement.
3.4 Any products determined to be defective in materials or
workmanship and not to conform to the applicable
specifications upon receipt at Buyer will be repaired or
replaced, at Connected Systems option, through one or more of
the following options: (i) by Connected Systems, at its
expense, upon return of any defective products to Connected
Systems; (ii) by Connected Systems appointment of a third
party contractor to correct any such discovered defects at
Connected Systems expense; (iii) by Buyer, at its respective
facilities, at a mutually agreed upon price to be paid by
Connected Systems.
3.5 If requested by Connected Systems, Buyer shall acknowledge
acceptance of each shipment in writing, via facsimile, within
two (2) days of receipt of each such shipment. Each acceptance
shall state the quantity received, and reference the Purchase
Order issued by Buyer. Such acceptance represents the
confirmation of the delivery of the Product(s) stated in the
associated invoice, but shall not affect the Buyer's right to
reject such Product due any defects found.
4. RESCHEDULING AND CANCELLATION
4.1 Upon written notice to Connected Systems and at least ninety
(90) days prior to the scheduled date of shipment, Buyer may
reschedule the delivery of any Products ordered by Buyer
without charge. Rescheduling of delivery on shorter notice may
be subject to a fee not to exceed 20% of the selling price to
Buyer (after discount). If any inventory for such Products
will not be used in the normal course of Connected Systems'
business within one hundred and eighty days, Connected Systems
may additionally invoice Buyer for the cost of the unsold
material, which shall become the property of Buyer.
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5. PRICES AND DISCOUNT DETERMINATION
5.1 The initial prices for the Products are set forth in the price
list attached as Exhibit A. Such prices shall not be increased
during the first Contract Year of this Agreement. Thereafter,
Connected Systems prices may be amended upon one hundred
twenty (120) days prior written notice to Buyer. No increase
in prices will apply to items for which orders have been
accepted by Connected Systems before the effective date of the
change.
5.2 Buyer will have the benefit of any reduction in published
prices or increase in published discounts for orders accepted
but not shipped before the effective date of such change.
6. TAXES
6.1 Buyer will pay any sales, use, import or similar taxes which
may be levied upon the sale, License, or transfer of the
Products from Connected Systems to Buyer and which are
separately itemized on Connected Systems' invoice, except for
any tax assessed upon Connected Systems' income. Buyer shall
also pay any such taxes which may be levied against the
Products or the ownership or use thereof following the sale
thereof to Buyer.
6.2 Connected Systems will be responsible for import duties for
product shipped to a United States location.
7. PAYMENT
7.1 Connected Systems shall invoice Buyer for Product not earlier
than the date of shipment. Buyer shall pay amounts due within
thirty (30) days of invoice date.
7.2 Buyer shall pay invoices according to the payment instructions
on such invoices or other written instructions signed by an
officer of the Connected Systems.
8. NON RECURRING ENGINEERING CHARGES
8.1 A Non Recurring Engineering Charge of not more than $30,000,
subject to review when custom specifications are complete,
shall be charged to adapt the Product to Buyer's requirements
and support testing and production startup. Connected Systems
will also provide system integration support of Buyer's
porting efforts. Payments shall be made upon the following
schedule:
Event Amount Target Date
Letter of Intent none March 11,1997
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One diskless, two disk-based standalone Dolphin cost price April 14, 1997
systems delivered for internal Buyer test
Custom specifications for Dolphin board and EVP $10,000 April 22, 1997
software integrated into Vodavi X.xxx complete
Field trial analog standalone systems ready for none to be determined
delivery by Connected Systems ----------------
Sample Dolphin digital standalone systems $10,000 to be determined
delivered for internal Buyer test ----------------
Field trial completion of digital standalone systems $10,000 to be determined
----------------
Note that the price of Field Trial systems will be higher than the
prices in Exhibit A.
9. PRODUCT MODIFICATION AND DISCONTINUANCE
9.1 Connected Systems shall give Buyer written notice of Connected
Systems' intent to discontinue or modify any Product as soon
as is reasonably practicable and in any event at least six (6)
months in advance of any Product discontinuance and at least
three (3) months in advance of any Product modification.
Within sixty (60) days after receiving such notice, Buyer may
order the Product being discontinued or in its unmodified
form, as the case may be, in quantities of Buyer's choosing up
to 100% of Buyer's purchases of such Product during the six
(6) month period prior to receipt of such notice. In the event
Buyer requests the right to purchase in excess of such amount
or to continue purchasing the Product being discontinued or in
its unmodified form, the parties shall negotiate in good faith
applicable terms, conditions and prices.
9.2 Notwithstanding any termination or expiration of this
Agreement, Connected Systems shall make available to Buyer
spare parts and maintenance services as set forth herein for a
period of three (3) years from the date of discontinuance of
Products on a model-by-model basis or for a period of one (1)
year from the date of termination or expiration of this
Agreement, whichever occurs first.
9.3 Upon sixty (60) days prior written notice to Buyer, Connected
Systems may make changes in the Products that do not affect
the form, fit or function (including interoperability) of the
Products, or as required by law or concerns of safety;
provided, however, that if Connected Systems makes changes
required by law or concerns of safety and such changes affect
the form, fit or function of the Products, then Buyer may
cancel any orders for such Products without liability. No
notice period shall be required for changes requested by
Buyer.
9.4 Buyer may propose Product modifications or changes by means of
written requests to Connected Systems. Connected Systems
agrees to consider such requests in good faith and to respond
thereto in writing, including estimated development time and
cost if applicable, within a reasonable time after receipt of
the request. Any modifications or
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changes that are agreed to between the parties will be subject
to execution of a written agreement setting forth the details
of the financial arrangements, development schedules, and
other applicable terms and conditions.
10. SOFTWARE LICENSE
10.1 Computer programs provided by Connected Systems constituting
or incorporated in Products, together with updates,
enhancements, and new releases or versions thereof provided
hereunder (collectively "Software"), are provided to Buyer
under a non-exclusive worldwide license subject to the
following terms:
10.2 Buyer shall have the right to use the Software in connection
with the Products for internal purposes including maintenance
of the Products, and to authorize end users, resellers and
authorized service representatives to use the Software for
maintenance of the Products.
10.3 Buyer shall have the right to use the Software to demonstrate
and market the Products and to distribute copies of the
Software to end users in object form either directly or
indirectly through others as part of the Products. Buyer shall
require that such end users agree to protect Connected
Systems' intellectual property rights in the software
substantially as set forth in this Agreement. Connected
Systems will provide Buyer with an approved form to be signed
by end users providing such protection.
10.4 Buyer shall have the right to reproduce the Software for
distribution with Products and to make a reasonable number of
copies of the Software for backup or archival purposes.
10.5 Buyer shall not have the right to modify, reverse engineer,
decompile, or make other translations of the Software except
as permitted by applicable law and shall not have the right to
disclose the Software except as permitted herein.
10.6 Buyer shall have the right to transfer a licensed copy of the
Software to a third party provided Buyer does not retain any
copies of such licensed copy and the third party agrees to
abide by the terms and conditions of this license. All
Software must be transferred upon a change in title of any
hardware in which it was installed.
10.7 Buyer shall comply with the terms of software sub-licenses by
Connected Systems from third parties. Connected Systems has
licensed, and may continue to license, software from third
parties and Buyer acknowledges this Agreement governs Buyer's
usage of any and all third party software. Copies of
sub-licenses for third-party software will be available to
Buyer at Buyer's request.
10.8 The Software may be copyrighted and is licensed (not sold) to
Buyer and ownership is not transferred. Buyer agrees that
Connected Systems or Connected Systems' licensors retain the
entire right and title to the Software.
10.9 Notwithstanding any termination or expiration of this
Agreement, Buyer's end user customers shall be permitted the
continued and uninterrupted use of the Software
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pursuant to the terms of their sublicenses, and Buyer and its
resellers and authorized service representative shall retain
the right to use the Software to support end user customers
and to distribute error corrections and other updates to the
Software provided as part of post-termination support
hereunder.
10.10 Connected Systems and all third party software providers
DISCLAIM ALL WARRANTIES WITH RESPECT TO THE USE OF ANY THIRD
PARTY SOFTWARE INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE and the
liability allowed by any third party software provider is
limited to that amount which the end user paid for the third
party software.
11. REPRESENTATIONS AND WARRANTIES
11.1 Connected Systems represents and warrants to Buyer that:
11.2 Connected Systems has the full right and power to enter into
this Agreement and to grant the rights and licenses set forth
herein;
11.3 Connected Systems provides absolute representation that title
to all Products delivered to Buyer under this Agreement shall
be free and clear of all liens, encumbrances and other claims,
and there are no claims or judicial or governmental
determinations that the Products infringe any patent rights
copyrights, trade secrets or intellectual property rights of
any third party;
11.4 The Products, when delivered, will comply with all applicable
laws and regulations of the United States and other countries
specified in the product specification governing the Products
and the use thereof, including without limitation laws and
regulation governing radio frequency emissions, safety, and
connection to telecommunications facilities. If any Product
does not comply with such laws and regulations, Connected
Systems will promptly modify such Product so that it complies
or replace it with a Product that does comply at no charge to
Buyer; and
11.5 Connected Systems has obtained or will obtain homologation
approval for the Products in the countries identified in
Exhibit B. For countries in which Connected Systems has not
yet obtained homologation approval, Connected Systems agrees
to obtain homologation approval at Buyer's sole expense in
response to Buyer's reasonable request and forecast and within
a reasonable time. Connected Systems agrees to make any
Product modifications that may be required to obtain such
approval. Buyer agrees to provide reasonable logistical
support. Connected Systems agrees to extend to Buyer all
rights of homologation obtained by Connected Systems.
Connected Systems and Buyer agree that homologation approval
may necessitate an increase in Product costs due to changes in
hardware, components or other substantial modifications.
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12. QUALITY AND INTEROPERABILITY
12.1 Connected Systems agrees to comply with its internal quality
standards as communicated to Buyer and updated from time to
time, to maintain a functioning quality system for the
specification, design, manufacture and test of Products
supplied hereunder, to maintain objective evidence of
compliance with its quality system, and to supply such
evidence to Buyer upon request. Upon reasonable notice and
during normal business hours, Buyer may conduct an on-site
quality system audit of Connected Systems' quality system at
Buyer's expense.
12.2 During the term of this Agreement, Buyer and Connected Systems
agree to work together to ensure interoperability among their
products and their successors as applicable.
13. PRODUCT WARRANTY
13.1 Connected Systems warrants to Buyer and Buyer's customers that
the Product will be free from defects in materials and
workmanship and that the Software will conform to Connected
Systems' documentation for a period of sixteen (16) months
from the date of delivery to Buyer. This warranty excludes
damage incurred in shipment or caused by misuse, unauthorized
alteration, power quality, lightning, improper repair,
maintenance, assembly, packing by Buyer or otherwise out of
the control of Connected Systems. Connected Systems does not
warrant that the operation of the Software will be
uninterrupted or error-free. Buyer may add options designated
by Connected Systems using Connected Systems' then current
guidelines and procedures, which if followed, shall not void
Connected Systems' warranty. Connected Systems shall not be
responsible for any costs, including diagnostic costs related
to any Buyer installed options.
13.2 If Buyer upon inspection notifies Connected Systems of a
defect rate in a hardware Product that exceeds a mutually
agreed level, Buyer shall at Connected Systems' option, either
return the whole lot (in which this defect rate was found),
or, after screening the whole lot at Connected Systems
expense, return just the defective units of Product.
13.3 Upon notification to Connected Systems of a Software error in
a Product within the warranty period, Connected Systems will
correct the error and deliver corrected Software to Buyer in
accordance with Exhibit C of this Agreement.
14. EXCLUSIONS AND LIABILITY LIMITATIONS
14.1 THE WARRANTIES CONTAINED IN THIS AGREEMENT ARE IN LIEU OF ALL
OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS, WHETHER
EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION,
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THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
14.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR FOR LOST
PROFITS OR REVENUES, OR FOR LOSS OF DATA FROM ANY CAUSE,
WHETHER OR NOT SUCH PARTY HAS NOTICE OF THE POSSIBILITY OF
SUCH DAMAGES OR LOSSES.
15. TRADEMARKS AND TRADE NAMES
15.1 Connected Systems does not grant to Buyer and Buyer's
resellers the right to use the trademarks and/or trade names
of the Products in connection with the sale, offer for sale,
and support of the Products. Buyer shall have the right in its
discretion to private label or co-label the Products with
trademarks and/or trade names of Buyer's choosing.
16. INTELLECTUAL PROPERTY INFRINGEMENT
16.1 Connected Systems will, at its own expense, defend Buyer
against any suit brought against Buyer based on the grounds
that the Product infringes any patent, trade secret or other
intellectual property right of any third party ("Buyer
Indemnified Right"), and will pay all damages and costs that a
court or arbitration awards against Connected Systems as a
result of such claim and all amounts paid in settlement of
such claim, provided that Buyer gives Connected Systems (i)
prompt written notice of such claim, (ii) the sole right to
defend and/or settle the claim, and (iii) all reasonable
information and assistance (at Connected Systems' expense)
excluding time spent by employees or consultants of Buyer) to
handle the defense and settlement thereof. Should the Product
become the subject of a claim of infringement of a Buyer
Indemnified Right, Connected Systems shall, at its option,
either: (a) procure for Buyer the right to continue using such
Product or (b) modify such Product to make it non-infringing.
16.2 Buyer will, at its own expense, defend Connected Systems
against any suit brought against Connected Systems based on
the grounds that Buyer's modifications to the Product infringe
any patent, trade secret or other Intellectual Property Right
of any third party ("Connected Systems Indemnified Right"),
and will pay all damages and costs that a court or arbitration
awards against Connected Systems as a result of such claim and
all amounts paid in settlement of such claim, provided that
Connected Systems gives Buyer (i) the sole right to defend
and/or settle the claim, and (ii) all reasonable information
and assistance (at Buyer's expense) excluding time spent by
employees or consultants of Connected Systems) to handle the
defense and settlement thereof (iii) prompt written notice of
any claims.
16.3 Connected Systems hereby represents that the licensed programs
and developed programs do not infringe any patent, copyright,
trade secret or other Intellectual Property Right of any third
party.
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16.4 Connected Systems is not by this agreement or by selling
Product to Buyer granting any license of any rights to any
patents or trade secrets for applications of Connected
Systems' Products.
16.5 Buyer will indemnify and hold Connected Systems harmless from
any loss, damage, or liability arising in connection with
Buyer's improper or unauthorized use of Product.
17. CONFIDENTIAL INFORMATION
17.1 Each party acknowledges that in the course of conducting
business under this Agreement, it may obtain information from
the other party which is of a confidential and proprietary
nature ("Confidential Information"). Provided such
Confidential Information is clearly marked as confidential
when disclosed, or if orally disclosed is identified as
confidential when disclosed and is summarized in writing
within twenty (20) days after disclosure, such Confidential
Information shall be subject to the terms of this Section 17.
Confidential Information may include, but is not limited to,
trade secrets, know-how, inventions, techniques, processes,
programs, schematics, data, customers lists, financial
information and sales and marketing plans.
17.2 For a period of three (3) years following the date of
disclosure, the receiving party agrees that it will take
reasonable steps to avoid disclosure of Confidential
Information or use of documents containing Confidential
Information without the prior written consent of the
disclosing party, except (i) as permitted by this Agreement,
and (ii) to operate, maintain, and support the Products and
have such activities performed by others. Neither party shall
disclose Confidential Information to any person except those
of its employees, resellers, consultants and authorized
service representatives who need to know such Confidential
Information and who have agreed in writing to protect such
Confidential Information as required by this Agreement.
Promptly upon request following the termination of this
Agreement, each party shall return all documents provided by
the disclosing party that contain Confidential Information and
all copies thereof, except that Buyer may retain such copies
of the Connected Systems' Confidential Information as are
reasonably necessary to enable Buyer and its resellers,
consultants and authorized service representatives to operate,
maintain, or support Products purchased under this Agreement.
17.3 Neither party shall publicly disclose the existence of this
Agreement without the consent of the other party, and neither
party shall disclose the specific terms and conditions of this
Agreement except by written agreement between the parties or
as required by law or court order.
17.4 The obligations of confidentiality set forth in this Agreement
shall not apply to information which (i) becomes publicly
available through no act of the recipient; (ii) is required to
be disclosed by law or court order; (iii) was previously known
at the time of its receipt without similar restrictions; (iv)
is released from the provisions of this Agreement by the
disclosing party; (v) is provided to a third party without
similar restrictions on disclosure; or (vi) is independently
developed by the receiving party.
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18. TERM AND TERMINATION
18.1 The initial term of this Agreement shall expire after two (2)
Contract Years, unless sooner terminated as provided herein.
Thereafter this Agreement shall renew automatically for
additional terms of one (1) year each unless terminated by
notice as set forth herein not less than one hundred eighty
(180) days prior to the expiration date of the initial or any
additional term or unless otherwise terminated as provided
herein.
18.2 Either party may terminate this Agreement by written notice to
the other party upon the occurrence of any of the following
events: (i) the other party files a voluntary petition in
bankruptcy or for similar relief; (ii) an involuntary petition
in bankruptcy is filed against the other party and is not
dismissed within sixty (60) days of filing; (iii) a receiver
is appointed for the other party, and if involuntarily
appointed is not dismissed within sixty (60) days; or (iv) the
other party makes an assignment for the benefit of creditors.
18.3 Either party may terminate this Agreement by written notice if
the other party fails to substantially comply with any
material terms or conditions of this Agreement and fails to
cure such default within sixty (60) days after receipt of
written notice from the non-defaulting party specifying the
nature of the default and stating an intent to terminate if
the default is not cured within such time period. This right
of termination shall be without prejudice to any other right
or remedy available to the non-defaulting party.
18.4 Neither party shall be liable to the other or to any third
party by reason of the rightful termination or expiration of
this Agreement as provided herein.
18.5 In the event Connected Systems accepts any order for Products
after the termination or expiration of this Agreement, the
terms and conditions of this Agreement will apply to such
order as if it were still in effect.
18.6 Upon termination or expiration of this Agreement, Buyer shall
have the right to dispose of any inventory of Products then in
Buyer's possession and to license any associated Software for
use in connection therewith as provided herein.
18.7 Termination or expiration of this Agreement shall not relieve
either party of such obligations as are intended to survive
termination or expiration, including but not limited to
Sections 9.2, 10.9, 11, 13, 14, 15, 16, 17, 18.5, 18.6, 21,
and 22, which will survive termination or expiration for any
reason.
19. MAINTENANCE SERVICES
19.1 Connected Systems agrees to provide maintenance and support
services to Buyer with respect to the Products pursuant to the
separate maintenance and support agreement executed
concurrently herewith attached hereto as Exhibit C.
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20. TRAINING
20.1 Connected Systems shall make available to Buyer appropriate
technical and sales training courses and materials relating to
the Products. Training courses shall be held at Buyer's
location in the continental United States, unless otherwise
agreed, at mutually agreed dates and times, and shall
comprehensively address the demonstration, sales, installation
and support of the Product and such other aspects of the
Product and Connected Systems and Buyer shall mutually agree.
Buyer shall bear all expenses incurred by Buyer's personnel to
attend such training. Buyer has no obligation to create
training courses as a result of this agreement.
20.2 All training subsequent to the initial training will be made
at Connected Systems' then current rates.
21. ESCROW
21.1 Connected Systems agrees to place the Manufacturing drawings
and Source Code for the Software in escrow. Buyer shall have
the right to obtain within 10 days written notice the drawings
or source code from escrow pursuant to the escrow agreement
and to use the drawings or source code for the purpose of
manufacturing the product and supporting and maintaining the
Software and enhancing the Software as necessary. Connected
Systems shall have no obligation to deposit into escrow
technology owned by other parties.
22. ARBITRATION
22.1 In the event of any controversy under this Agreement, the
parties shall attempt in good faith to resolve such
controversy by negotiation, mediation, or other informal and
inexpensive methods of dispute resolution. Any controversy not
successfully resolved in such a manner shall be settled by
binding arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association by a
panel of three (3) arbitrators. Any such arbitration shall be
held in Santa Barbara, California. Judgement upon the award
rendered by the Arbitrators may be entered in any court having
jurisdiction thereof.
23. EXPORT
23.1 Buyer agrees to comply with all applicable export control laws
and regulations of the United States Government and to obtain
any required export licenses in connection with the export of
Products or technical data supplied by Connected Systems.
Connected Systems agrees to provide such assistance as Buyer
reasonably requests to enable Buyer to obtain any required
export licenses.
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24. FORCE MAJEURE
24.1 Each party shall be excused for delays or failures in
performance of this Agreement to the extent that such delays
or failures result from any cause beyond the reasonable
control of such party, including, by way of example and not
limitation, delays caused by the other party, acts of God,
strikes and other labor disputes, Government regulations,
public disorder, and catastrophes such as fire, flood or
explosion
25. GENERAL
25.1 Neither party may assign this Agreement or any rights herein
without the prior written consent of the other party except to
a subsidiary or to a company with which it merges or
consolidates or which acquires more than 50% of its assets.
25.2 Failure or delay on the part of either party to exercise any
right, power or privilege or remedy hereunder shall not
constitute a waiver thereof. A waiver of default shall not
operate as a waiver of ANY other default or of the same type
of default on future occasions.
25.3 All notices and other communications pertaining to this
Agreement shall be in writing and shall be deemed to have been
given by a party hereto if personally delivered to the other
party or if sent by certified mail, return receipt requested,
postage prepaid or by overnight courier with restricted
delivery. A notice sent by certified mail shall be deemed to
be given on the fifth business day after the mailing date; a
notice sent by overnight delivery shall be deemed given when
delivery is confirmed to the party below. Either party may
change its address from time to time by giving notice to that
effect as provided herein. Notices shall be addressed as
follows and if two addresses are shown below, notices must be
made to both addresses:
To Connected Systems:
Connected Systems Corporation
000 Xxxx Xxxxxxxx Xx
Xxxxx Xxxxxxx XX 00000
Attention: Chief Financial Officer
With an additional copy to:
Xxxxxxx Xxxx
Reiker, Cough, Pfau & Xxxx LLP
0000 Xxxxx Xx
XX Xxx 00000
Xxxxx Xxxxxxx, XX 00000-0000
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To Buyer:
Enhanced Systems, Inc.
0000 Xxxxxxxxx Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxxxxx 00000
Attn.: President
25.4 If any portion of this Agreement is held invalid, the parties
agree that such invalidity shall not affect the validity of
the remaining portions of this Agreement, and the parties
further agree to make reasonable efforts to substitute for the
invalid provision a mutually-agreed provision that most
closely approximates the intent of the invalid provision.
25.5 Neither party is an agent or employee of the other party, and
neither party has any authority to bind the other party to any
agreement or obligation. Each party shall indemnify and hold
the other party harmless from any and all claims, actions,
suits, costs, damages and liabilities, including attorneys'
fees, arising out of actions or failure to act by the
indemnifying party, including without limitation any violation
of federal, state or local laws, ordinances, or regulations.
25.6 This Agreement and the rights and obligations of the parties
hereunder shall be governed in all respects by the laws of the
State of California, U.S.A., as such laws are applied to
contracts between California residents entered into and to be
performed entirely within California. The state courts located
in Santa Xxxxxxx County, California and the federal courts of
the Central District of California shall have exclusive
jurisdiction over any disputes arising out of or in connection
with this Agreement, and both parties hereby submit to the
jurisdiction of such courts.
25.7 No action, regardless of form, arising out of the transactions
under this Agreement, may be brought by either party more than
two (2) years after the cause of action occurs. The prevailing
party in any action or proceeding arising out of or related to
this Agreement shall be entitled to recover its costs and
expenses incurred therein, including without limitation court
costs and attorneys' fees.
25.8 Paragraph headings are included in this Agreement for
reference only and shall not be considered part of, or be used
in interpreting, this Agreement.
25.9 This Agreement including the Exhibits hereto constitutes the
entire agreement between the parties with respect to the
subject matter hereof and supersede all previous agreements
and all proposals, oral or written, all previous negotiations,
and all previous communications between the parties with
respect thereto. The terms of this Agreement may not be
waived, amended or supplemented except in a writing signed by
an authorized representative of the party to be bound thereby.
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Proprietary and Confidential
25.10 This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original and all of which
taken together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first set forth above.
("Connected Systems") ("Buyer")
SANTA XXXXXXX CONNECTED SYSTEMS ENHANCED SYSTEMS, INC
CORPORATION
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxxx
------------------------ ---------------------------
(Authorized Signature) (Authorized Signature)
Name: Xxxxxx X. Xxxxx Name: Xxxx X. Xxxxxxx
Title: President Title: President
Date: 4/11, 1997 Date: 4/10, 1997
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Proprietary and Confidential
