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Exhibit 10.10
ORIGINAL
ADVANCED TELECOMMUNICATION MODULES
INTERNATIONAL OEM AGREEMENT
This International OEM Agreement (the "Agreement") is entered into as of March
7, 1996, ("Effective Date") between Advanced Telecommunications Modules, Inc.
("ATMI"), located at 0000 Xxxx Xxxxxx Xxx., Xxxxxxxxx, XX 00000
("Manufacturer"), its parent company, Advanced Telecommunications Modules,
Limited, and Com21, Inc. ("Com21"), located at 0000 Xxxxxxxx Xx., Xxxxxxxx Xxxx,
XX 00000 ("Purchaser").
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE
PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS
1.1. "STANDARD PRODUCTS" shall mean the most current version of the
standard products manufactured by ATMI for general end-user
availability listed in Exhibit A attached hereto.
1.2. "SPECIAL PRODUCTS" shall mean the most current version of the
non-standard products manufactured by special use by Purchaser
listed in Exhibit A attached hereto.
1.3. "TERRITORY" shall mean that geographic area identified in Exhibit
G attached hereto.
1.4. "END-USER" shall mean any third party which obtains a Product
solely in order to fulfill its own internal needs.
1.5. "END-USER LICENSE" shall at any time during the term of
this Agreement, mean ATMI's then standard license
agreement pursuant to which End-Users are granted the right to
utilize software in or provided with ATMI products.
2. PRODUCTS AND PURCHASE COMMITMENT
2.1. PRODUCTS. The products covered by this Agreement shall be those
products listed in Exhibit A attached hereto ("Standard
Products" and "Special Products"). Products may be changed,
abandoned or added by Manufacturer, at its sole discretion,
provided that Manufacturer gives ninety (90) days' prior written
notice to Purchaser. Upon written notification of Manufacturer's
intent to change or abandon Products, Purchaser shall be granted
an option to place a one time "End of Life" Purchase Order in
addition to orders provided herein. "End of Life" purchase
orders will be accepted at any time within the ninety (90) day
notification period. If the "End of Life" purchase order is not
sufficient to satisfy Purchaser's ongoing requirements,
Manufacturer and Purchaser will negotiate with a third party
escrow company to place sufficient manufacturing specifications
to allow Purchaser to continue manufacture of the Products at
their expense. In all cases, uses of the Products will be
limited to those set forward in this document. Manufacturer
shall be under no obligation to continue the production of any
Product, except as provided herein.
2.2. MINIMUM PURCHASE COMMITMENT. During the term of this Agreement,
Purchaser shall purchase minimum lot quantities of Products as
set forth in Exhibit A attached hereto ("Minimum Purchase
Commitment").
3. LIMITATIONS ON PURCHASER'S RIGHTS TO THE PRODUCTS
3.1. OEM CERTIFICATION. Purchaser certifies that each and every
Product to be purchased under this Agreement will be purchased on
its behalf as an original equipment manufacturer and that each
and every Product will be incorporated by Purchaser or its
customers into another system that Purchaser assembles, for sale
or lease, in the regular course of Purchaser's business.
Purchaser further certifies that the system into which each and
every Product is incorporated will include the addition of
hardware and/or software supplied by Purchaser which, by an
objective examination of such
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factors as cost, product features, and pricing, represent a
significant enhancement and transformation of the Products (with
regard to both value and function) and result in a system
substantially different from any of Manufacturer's systems.
Purchaser agrees that Products intended for other purposes shall
not be purchased under this Agreement. Upon Manufacturer's
request, Purchaser shall furnish to Manufacturer evidence of
compliance with the provisions of this Subsection 3.1. Purchaser
acknowledges and agrees that its initial and continuing
qualification under this Subsection 3.1. is within the sole
discretion of Manufacturer.
3.2. PURCHASE OF PRODUCTS SUBJECT TO SOFTWARE LICENSE AND OTHER
RESTRICTIONS. The sale of each Product to Purchaser and the
transfer of title for each purchased Product to Purchaser shall
not include a sale of any software, computer programs, source
codes, object codes, listings or related materials in
machine-readable or printed form (including, firmware and all
types of media), or any updates and modifications thereto that
are included (collectively, "Software") or a transfer of Software
title to Purchaser. Instead, the sale of each Product shall
include a fully paid license for Purchaser to transfer the
Software to its customers upon execution of a Software license by
Purchaser's customers in accordance with the terms of Subsection
6.1. below. Manufacturer shall retain full title to the Software
and all copies thereof and Purchaser and its customers may use
the Software only in accordance with the provisions of their
executed Software licenses. Neither Purchaser nor its customers
shall have any access to or rights in the Software source codes.
Neither Purchaser nor its customers shall have the right to copy,
modify or remanufacture any Product or part thereof.
4. TERMS IS OF PURCHASE OF PRODUCTS BY PURCHASER
4.1. TERMS AND CONDITIONS. All purchases of Products by Purchaser from
Manufacturer during the term of this Agreement shall be subject
to the terms and conditions of this Agreement.
4.2. PRICES. All prices are F.O.B. (as defined in Section 2319 of the
California Uniform Commercial Code) Manufacturer's plant
currently located at the address listed in Exhibit H or the point
of arrival in the United States. Provided that Purchaser fulfills
its Minimum Purchase Commitment in Exhibit A attached hereto, the
purchase price to Purchaser for each of the Products ("Purchase
Price") shall be a fixed percentage of Manufacturer's list price
for that Product; the percentage for each Product is as set forth
in Exhibit B attached hereto, and the current list prices for the
Products are as set forth in Exhibit C attached hereto. The
Purchase Price to Purchaser for repair parts for the Products
shall be as set forth in Exhibit D attached hereto. Manufacturer
has the right at any time to revise the prices in Exhibits C and
D with thirty (30) days' advance written notice to Purchaser, but
such prices shall not be greater than those sold to another
customer in similar volumes. Such revisions shall only apply to
all orders received after the effective date of revision. Price
increases shall not affect unfulfilled purchase orders accepted
by Manufacturer prior to the effective date of the price
increase. Price decreases shall apply to pending purchase orders
accepted by Manufacturer prior to the effective date of the
decrease but not yet shipped.
4.3. BILLBACK PROVISIONS. Purchaser's Purchase Price for each Product
is based on the Minimum Purchase Commitment set forth in Exhibit
B attached hereto. If Purchaser fails to purchase at least the
minimum number of Products specified in Exhibit B for a given
time period, then Manufacturer shall invoice Purchaser for the
difference between Purchaser's Purchase Price and Manufacturer's
standard discounted price for the quantity of Products actually
purchased, and the full amount shall be due and payable to
Manufacturer within thirty (30) days after the invoice date. The
adjusted Purchase Price shall continue in effect for a given
Product until Purchaser fails in a given time period to purchase
the number of Products necessary for the adjusted Purchase Price,
at which time the Purchase Price shall be further adjusted in
accordance with the foregoing, procedure or until Purchaser again
purchases the minimum number of the Product specified in Exhibit
B in which case the Purchase Price shall apply.
4.4. TAXES. Purchaser's Purchase Price does not include any federal,
state or local taxes that may be applicable to the Products. When
Manufacturer has the legal obligation to collect such taxes, the
appropriate amount shall be added to Purchaser's invoice and paid
by Purchaser unless Purchaser
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provides Manufacturer with a valid tax exemption certificate
authorized by the appropriate taxing authority.
4.5. ORDER AND ACCEPTANCE. All orders for Products submitted by
Purchaser shall be initiated by written purchase orders sent to
Manufacturer and requesting a delivery date during the term of
this Agreement; provided, however, that an order may initially be
placed orally or by telex if a confirmational written purchase
order is received by Manufacturer within five (5) days after said
oral or telex order. To facilitate Manufacturer's production
scheduling Purchaser shall submit non- binding forecasts to
Manufacturer ninety (90) days prior to the requested month of
delivery. Purchaser shall submit binding purchase orders to
Manufacturer at least thirty (30) days prior to the first day of
the requested month of delivery. No order shall be binding upon
Manufacturer until accepted by Manufacturer in writing, and
Manufacturer shall have no liability to Purchaser with respect to
purchase orders that are not accepted. Manufacturer shall use its
reasonable best efforts to notify Purchaser of the acceptance or
rejection of an order and of the assigned delivery date for
accepted orders within fifteen (15) days after receipt of the
purchase order. No partial shipment of an order shall constitute
the acceptance of the entire order. absent the written acceptance
of such entire order. Manufacturer shall use its reasonable best
efforts to deliver Products at the times specified either in its
quotation or in its written acceptance of Purchaser's purchase
orders.
4.6. TERMS OF PURCHASE ORDERS. Purchaser's purchase orders submitted
to Manufacturer from time to time with respect to Products to be
purchased hereunder shall be governed by the terms of this
Agreement, and nothing contained in any such purchase order shall
in any way modify such terms of purchase or add any additional
terms or conditions.
4.7. INITIAL ORDER. Upon execution of this Agreement, Purchaser shall
deliver to Manufacturer a written purchase order for the
quantities of Products shown in Exhibit E attached hereto. The
order shall be non-cancelable and shall be shipped to Purchaser
based on Purchaser's delivery dates accepted by Manufacturer
based on its production schedule and receipt of an export
license.
4.8. CHANGE ORDERS. Purchaser may utilize written change orders
without penalty for orders that have not vet been accepted by
Manufacturer. For orders that have been accepted by Manufacturer
but have not yet been shipped (excluding the initial order under
Subsection 4.7. above), Purchaser may utilize written change
orders subject to the following conditions:
4.8.1. Purchaser may delay delivery of any accepted order,
provided that the rescheduled delivery date occurs
during the term of this Agreement and provided
further that Purchaser shall pay a rescheduling fee
equal to [*] of the Purchase Price (net of freight,
taxes, and other charges) of the rescheduled
Products if Purchaser's change order is received by
Manufacturer less than thirty (30) days before the
assigned delivery date. Unless Manufacturer
otherwise agrees, no change order shall be
effective unless accompanied by the rescheduling
fee. if any, required by this Subsection 4.8.1.
4.8.2. Purchaser may cancel any order that has been
accepted by Manufacturer, provided that, if the
written change order is received by Manufacturer
less than thirty (30) days before the assigned
delivery date or if the written change order
cancels an order that has been previously
rescheduled under Subsection 4.8.1. above, then
Purchaser shall pay a cancellation charge equal to
fifteen percent (15%) of the net Purchase Price of
the canceled Products.
NOTICE PRIOR TO DELIVERY DATE RESCHEDULING CHARGE CANCELLATION CHARGE
----------------------------- ------------------- -------------------
Greater than 90 days [*] [*]
31-90 days (forecasting period) [*] [*]
0-30 days (confirmed orders) [*] [*]
4.9. PAYMENT. Manufacturer shall ship Products FOB from their
manufacturing facility and shall
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invoice upon shipment in U.S. dollars. Full payment of
Purchaser's Purchase Price for the Products and spare parts
(including any freight, taxes or other applicable costs initially
paid by Manufacturer but to be home by Purchaser) shall be made
by Purchaser to Manufacturer thirty (30) days from the date of
the invoice. Payment shall be in U.S. dollars. All exchange,
interest, banking, collection, and other charges shall be at
Purchaser's expense. At such time as Manufacturer may grant a
line of credit to Purchaser, payment terms shall be net thirty
(30) days after date of invoice, and payment shall be made by
wire transfer, check or other instrument approved by
Manufacturer. Any invoiced amount not paid when due shall be
subject to a service charge of one and one-half percent (1.5%)
per month. Purchaser shall pay all of Manufacturer's costs and
expenses (including reasonable attorneys' fees) to enforce and
preserve Manufacturer's rights under this Subsection 4.9.
4.10. SHIPPING. All Products delivered pursuant to the terms of this
Agreement shall be suitably packed depending on the method of
freight shipment in Manufacturer's standard shipping cartons,
marked for shipment at Purchaser's address set forth above, and
delivered to Purchaser or its carrier agent F.O.B. Manufacturer's
manufacturing plant, at which time (subject to Subsection 4.13.
below) title to such Products and risk of loss shall pass to
Purchaser. Unless otherwise instructed in writing by Purchaser,
Manufacturer shall select the carrier. All freight, insurance,
and other shipping expenses, as well as any special packing
expense, shall be paid by Purchaser from the FOB point. Purchaser
shall also bear all applicable taxes, duties, and similar charges
that may be assessed against the Products after delivery to the
carrier at Manufacturer's plant.
4.11. REJECTION OF PRODUCTS. Purchaser shall inspect all Products
promptly upon receipt thereof and may reject any Product that
fails in any material way to meet the specifications set forth in
Manufacturer's current brochure and specifications for that
Product. Any Product not properly rejected within thirty (30)
days after receipt of that Product by Purchaser ("Rejection
Period") shall be deemed accepted. If any unit of a Product is
shipped by Purchaser to its customer prior to the expiration of
the Rejection Period, then that unit shall be deemed accepted
upon shipment by Purchaser. To reject a Product, Purchaser shall,
within the Rejection Period, notify Manufacturer in writing or by
telex of its rejection and request a Return Material
Authorization ("RMA") number. Manufacturer shall use its best
efforts to provide the RMA number in writing or by telex to
Purchaser within three (3) business days after receipt of the
request. Within ten (10) days after receipt of the RMA number,
Purchaser shall return to Manufacturer the rejected Product,
freight prepaid, in its original shipping carton with the RMA
number displayed on the outside of the carton. Provided that
Manufacturer has complied with its obligations in this Subsection
4.11., Manufacturer reserves the right to refuse to accept any
rejected Products that do not bear an RMA number on the outside
of the carton. As promptly as possible but no later than thirty
(30) working days after receipt by Manufacturer of properly
rejected Products, Manufacturer shall, at its option and expense,
either repair or replace the Products. Manufacturer shall pay the
shipping charges back to Purchaser for properly rejected
Products; otherwise, Purchaser shall be responsible for the
shipping charges.
4.12. RETURN OF PRODUCTS AFTER REJECTION PERIOD. Unless a Product is
returned in accordance with the provisions of Manufacturer's
standard warranty for the Product described in Subsection 5.1.
below, after the Rejection Period Purchaser may not return a
Product to Manufacturer for any reason without Manufacturer's
prior written consent. For any Product for which Manufacturer
gives such consent, Manufacturer shall charge Purchaser a
restocking fee equal to fifteen percent (15%) of Purchaser's
Purchase Price for that Product and shall credit the balance of
the Purchase Price to Purchaser's account. Purchaser shall be
responsible for all shipping charges.
5. WARRANTY TO PURCHASER
5.1. STANDARD LIMITED WARRANTY. Manufacturer grants to Purchaser
Manufacturer's standard limited warranty for the Products,
including the limitations set forth in Subsections 5.2. and 5.3.
below. Specifically, Manufacturer warrants that the Product
hardware as delivered (except consumable items, such as fuses)
conform to published specifications and are free from defects in
materials and workmanship under normal use and service for the
period set forth in the applicable Product
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documentation. All Product warranty periods are Product specific
and may vary by Product. The End-User warranty specifically
disclaims all other warranties relating to the Products,
including all warranties with respect to the performance of the
Products. This warranty is contingent upon proper use of a
Product in the application for which it was intended and does not
cover Products that were modified without Manufacturer's approval
or that were subjected by the customer to unusual physical or
electrical stress. The Manufacturer's Standard Limited Warranty
including terms, conditions, and warranty periods in included in
Exhibit I attached hereto.
5.2. NO OTHER WARRANTY. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH
ABOVE, MANUFACTURER GRANTS NO OTHER WARRANTIES, EXPRESS OR
IMPLIED, BY STATUTE OR OTHERWISE, REGARDING THE PRODUCTS, THEIR
FITNESS FOR ANY PURPOSE, THEIR QUALITY, THEIR MERCHANTABILITY, OR
OTHERWISE. MANUFACTURER GRANTS NO WARRANTIES TO PURCHASER'S
CUSTOMERS.
5.3. LIMITATION OF LIABILITY. MANUFACTURER'S LIABILITY UNDER THE
WARRANTY SHALL BE LIMITED TO A REFUND OF PURCHASER'S PURCHASE
PRICE. IN NO EVENT SHALL MANUFACTURER BE LIABLE FOR THE COST OF
PROCUREMENT OF SUBSTITUTE GOODS BY PURCHASER OR PURCHASER'S
CUSTOMER OR FOR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES
FOR BREACH OF WARRANTY.
6. SOFTWARE LICENSING AND SERVICES
6.1. LICENSE TO PURCHASER. Manufacturer hereby grants to Purchaser an
exclusive (except for usage rights reserved to Manufacturer),
royalty-free, fully paid license to use, distribute, demonstrate
and sublicense the object code of the Software in the Territory
specified in Exhibit H attached hereto in carrying out
Purchaser's obligations under the provisions of this Agreement.
The license shall terminate on the termination of this Agreement
for any reason.
6.2 SUBLICENSING. Purchaser shall require each of its customers to
execute a software End-User License for each Product purchased,
in the form attached hereto as Exhibit F, as a specific condition
to the purchase of that Product. Purchaser shall maintain a file
of these such license agreements for Manufacturer's review. The
End-User License fee for each Product is included in Purchaser's
Purchase Price for the Product.
6.3. SERVICES. To each licensee of the Software, Manufacturer shall
provide the software maintenance services that are set forth in
the License.
7. IMPORT AND EXPORT REQUIREMENTS
Purchaser shall, at its own expense, pay all import and export
licenses and permits, pay customs charges and duty fees, and take
all other actions required to accomplish the export and import of
the Products purchased by Purchaser from the point of delivery
into the United States. Purchaser understands that Manufacturer
is subject to regulation by agencies of the U.S. government,
including the U.S., Department of Commerce, which prohibit export
or diversion of certain technical products to certain countries.
Purchaser warrants that it will comply in all respects with the
export and reexport restrictions set forth in the export license
for every Product shipped to Purchaser.
8. TERMS AND TERMINATION
8.1. TERM. This Agreement shall continue in force for a fixed term of
five (5) years from the date hereof unless terminated earlier
under the provisions of this Section 8. At the end of the fixed
term, this Agreement shall terminate automatically without notice
unless prior to that time the term of the Agreement is extended
by mutual written consent of the parties.
8.2. TERMINATION FOR CONVENIENCE. This Agreement may be canceled by
either party for any reason or no reason, whether or not extended
beyond the initial term, by giving the other party written
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notice one hundred eighty (180) in advance.
8.3. TERMINATION FOR CAUSE. Except as set forth in Subsection 8.4.
below, if either party defaults in the performance of any
provision of this Agreement, then the non-defaulting party may
give written notice to the defaulting party that if the default
is not cured within thirty (30) days the Agreement will be
terminated. If the non-defaulting party gives such notice and the
default is not cured during the thirty-day period, then the
Agreement shall automatically terminate at the end of that
period.
8.4. TERMINATION FOR FAILURE TO PURCHASE MINIMUM COMMITMENT. If
Purchaser during the term of the agreement to purchase the
minimum number of Products set forth in Subsection 2.2. above,
then Manufacturer may terminate this Agreement effective upon
delivery of a written notice to Purchaser, which is not cured in
sixty (60) days.
8.5. TERMINATION FOR INSOLVENCY. This Agreement shall terminate,
without notice, (i) upon the institution by or against Purchaser
of insolvency, receivership or bankruptcy proceedings or any
other proceedings for the settlement of Purchaser's debts, (ii)
upon Purchaser's making an assignment for the benefit of
creditors, or (iii) upon Purchaser's dissolution or ceasing to do
business.
8.6. FULFILLMENT OF ORDERS UPON TERMINATION. Upon termination of this
Agreement for other than Purchaser's breach, Manufacturer shall
continue to fulfill, subject to the terms of Section 4 above, all
orders accepted by Manufacturer prior to the date of termination.
8.7. LIMITATION ON LIABILITY. In the event of termination by either
party in accordance with any of the provisions of this Agreement,
neither party shall be liable to the other, because of such
termination, for compensation, reimbursement or damages on
account of the loss of prospective profits or anticipated sales
or on account of expenditures, inventory, investments, leases or
commitments in connection with the business or goodwill of
Manufacturer or Purchaser. Termination shall not, however,
relieve either party of obligations incurred prior to the
termination.
8.8. SURVIVAL OF CERTAIN TERMS. The provisions of Sections 3.2., 4.3.,
4.9., 4.13., 5, 7, 8, 9, 10, 11, 12, and 13 shall survive the
termination of this Agreement for any reason. All Licenses
executed under the provisions of Subsection 6.2. above prior to
termination of this Agreement shall survive the termination of
this Agreement for any reason. All other rights and obligations
of the parties shall cease upon termination of this Agreement.
9. LIMITED LIABILITY TO PURCHASER AND OTHERS
MANUFACTURER'S LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR
SALE OF THE PRODUCTS SHALL BE LIMITED TO THE AMOUNT PAID BY
PURCHASER OR THE AMOUNT RECEIVED BY MANUFACTURER FOR THE
PRODUCTS. IN NO EVENT SHALL MANUFACTURER BE LIABLE FOR COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE. IN NO EVENT SHALL ANY
PARTY BE LIABLE TO THE OTHER OR ANY OTHER ENTITY FOR ANY SPECIAL,
CONSEQUENTIAL OR OTHER DAMAGES, HOWEVER CAUSED, WHETHER FOR
BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
10. PROPERTY RIGHTS AND CONFIDENTIALITY
10.1. PROPERTY RIGHTS. Purchaser agrees that Manufacturer owns all
right, title, and interest in the product lines that include the
Products and in all of Manufacturer's patents, trademarks, trade
names, inventions, copyrights, know-how, and trade secrets
relating to the design, manufacture, operation or service of the
Products.
10.2. SALE CONVEYS NO RIGHT TO MANUFACTURE OR COPY. The Products are
offered for sale and are sold
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by Manufacturer subject in every case to the condition that such
sale does not convey any license. expressly or by implication, to
manufacture, duplicate or otherwise copy or reproduce any of the
Products except as provided by agreement between ATML and Com21
regarding, a Hardware and Software Technology License. Purchaser
shall take appropriate steps with its customers, as Manufacturer
may request, to inform them of and assure compliance with the
restrictions contained in this Subsection 10.2.
10.3. CONFIDENTIALITY. Purchaser acknowledges that by reason of its
relationship to Manufacturer hereunder it may have access to
certain information and materials concerning Manufacturer's
business, plans, customers, technology, and products that are
confidential and of substantial value to Manufacturer, which
value would be impaired if such information were disclosed to
third parties. Purchaser agrees that it will not use in any way
for its own account or the account of any third party, nor
disclose to any third party, any such confidential information
revealed to it by Manufacturer. Purchaser shall take every
reasonable precaution to protect the confidentiality of such
information. Upon request by Purchaser, Manufacturer shall advise
whether or not it considers any particular information or
materials to be confidential. Purchaser shall not publish any
technical description of the Products beyond the description
published by Manufacturer. In the event of termination of this
Agreement, there shall be no use or disclosure by Purchaser of
any confidential information of Manufacturer, and Purchaser shall
not manufacture or have manufactured any devices, components or
assemblies utilizing any of Manufacturer's confidential
information. Purchaser's obligations shall not apply to
information that: (i) is generally known to the public, or (ii)
was in Purchaser's possession or known by it prior to receipt
from Manufacturer, or (iii) was rightfully disclosed to Purchaser
by a third party without restriction, or (iv) was independently
developed by Purchaser without use of any confidential
information of Manufacturer.
11. TRADEMARKS AND TRADE NAMES
11.1 USE. During the term of this Agreement, Purchaser shall have
the right to indicate to the public that its systems contain
Manufacturer's Products and to designate such Products under the
trademarks, marks, and trade names that Manufacturer may adopt
from time to time ("Manufacturer's Trademarks"). Purchaser shall
not alter or remove any Manufacturer's Trademark applied to the
Products at the factory. Except as set forth in this Section 11,
nothing contained in this Agreement shall grant to Purchaser any
right, title or interest in Manufacturer's Trademarks. At no time
during or after the term of this Agreement shall Purchaser
challenge or assist others to challenge Manufacturer's Trademarks
or the registration thereof or attempt to register any
trademarks, marks or trade names confusingly similar to those of
Manufacturer.
11.2. APPROVAL OF REPRESENTATIONS. All representations of
Manufacturer's Trademarks that Purchaser intends to use shall
first be submitted to Manufacturer for approval (which shall not
be unreasonably withheld) of design, color, and other details or
shall be exact copies of those used by Manufacturer.
12. PATENT, COPYRIGHT, AND TRADEMARK INDEMNITY
12.1. INDEMNIFICATION. Purchaser agrees that Manufacturer has the right
to defend, or at its option to settle, and Manufacturer agrees,
at its own expense, to defend or at its option to settle, any
claim, suit or proceeding brought against Purchaser or its
customer on the issue of infringement of any United States
patent, copyright or trademark by the Products sold hereunder or
the use thereof, subject to the limitations hereinafter set
forth. Manufacturer shall have sole control of any such action or
settlement negotiations, and Manufacturer agrees to pay, subject
to the limitations hereinafter set forth, any final judgment or
settlement entered against Purchaser or its customer on such
issue in any such suit or proceeding defended by Manufacturer.
Purchaser agrees that Manufacturer at its sole option shall be
relieved of the foregoing obligations unless Purchaser or its
customer notifies Manufacturer promptly in writing of such claim,
suit or proceeding and gives Manufacturer authority to proceed as
contemplated herein, and, at Manufacturer's expense, gives
Manufacturer proper and full information and assistance to settle
and/or defend any such claim, suit or proceeding. If the
Products, or any part thereof, are, or in the opinion of
Manufacturer may
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become, the subject of any claim, suit or proceeding for
infringement of any United States patent, copyright or trademark,
or if it is adjudicatively determined that the Products, or any
part thereof, infringe any United States patent, copyright or
trademark, or if the sale or use of the Products, or any part
thereof, is, as a result, enjoined, then Manufacturer may, at its
option and expense either: (i) procure for Purchaser and its
customers the right under Such patent, copyright or trademark to
sell or use, as appropriate, the Products or such part thereof;
or (ii) replace the Products, or part thereof, with other
suitable Products or parts of equivalent performance or
functionality; or (iii) suitably modify the Products, or part
thereof while maintaining equivalent performance and
functionality; or (iv) if the use of the Products, or part
thereof, evented by injunction, remove the Products, or part
thereof, and refund the aggregate payments paid therefor by
Purchaser, less a reasonable sum for use and damage. Manufacturer
shall not be liable for any costs or expenses incurred without
its prior written authorization.
12.2. LIMITATION. Notwithstanding the provisions of Subsection 12.1.
above, Manufacturer assumes no liability for (i) infringements
covering completed equipment or any assembly, circuit,
combination, method or process in which any of the Products may
be used but not covering the Products when used alone; (ii)
trademark infringements involving any marking or branding not
applied by Manufacturer or involving any marking or branding
applied at the request of Purchaser; or (iii) infringements
involving the modification or servicing of the Products, or any
part thereof, unless such modification or servicing was done by
Manufacturer.
12.3. ENTIRE LIABILITY. The foregoing provisions of this Section 12
state the entire liability and obligations of Manufacturer and
the exclusive remedy of Purchaser and its customers, with respect
to any alleged infringement of patents, copyrights, trademarks or
other intellectual property rights by the Products or any part
thereof.
13. GENERAL PROVISIONS
13.1. INDEPENDENT CONTRACTORS. The relationship of Manufacturer and
Purchaser established by this Agreement is that of independent
contractors and nothing contained in this Agreement shall be
construed to (i) give either party the power to direct and
control the day-to-day activities of the other, (ii) constitute
the parties as partners, joint venturers, co-owners or otherwise
as participants in a joint or common undertaking, or (iii) allow
Purchaser to create or assume any obligation on behalf of
Manufacturer for any purpose whatsoever. All financial
obligations associated with Purchaser's business are the sole
responsibility of the Purchaser. All sales and other agreements
between Purchaser and its customers are Purchaser's exclusive
responsibility and shall have no effect on Purchaser's
obligations under this Agreement. Purchaser shall be solely
responsible for, and shall indemnify and hold Manufacturer free
and harmless from, any and all claims, damages or lawsuits
(including, Manufacturer attorneys' fees) arising out of the acts
of Purchaser, its employees or its agents.
13.2. GOVERNING LAW AND JURISDICTION. This Agreement shall be covered
by and construed under the laws of the State of California,
U.S.A., except that perfection of the title reserved by
Manufacturer in Subsection 4.13. above shall be governed by the
laws of Purchaser's jurisdiction. The federal and state courts
within the State of California, U.S.A., shall have exclusive
jurisdiction to adjudicate any dispute arising out of this
Agreement. Purchaser hereby expressly consents to (1) the
personal jurisdiction of the federal and state courts within
California, (ii) service of process being effected upon it by
registered mail sent to the address set forth at the beginning of
this Agreement, and (iii) the uncontested enforcement of a final
judgment from such court in any other jurisdiction wherein
Purchaser or any of its assets are present.
13.3. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
and understanding of the parties relating to the subject matter
herein and merges all prior discussions between them. No
modification of or amendment to this Agreement, nor any waiver of
any rights under this Agreement, shall be effective unless in
writing signed by the party to be charged.
13.4. NOTICES. Any notice required or permitted by this Agreement shall
be in writing and shall be sent
9
by prepaid registered or certified mail, return receipt
requested, addressed to the other party at the address shown at
the beginning of this Agreement or at such other address for
which such party gives notice hereunder. Such notice shall be
deemed to have been given three (3) days after deposit in the
mail.
13.5. FORCE MAJEURE. Nonperformance of either party shall be excused to
the extent that performance is rendered impossible by strike,
fire, flood, governmental acts or orders or restrictions, failure
of suppliers, or any other reason where failure to perform is
beyond the reasonable control of and is not caused by the
negligence of the nonperforming party.
13.6. NONASSIGNABILITY AND BINDING EFFECT. A mutually agreed
consideration for Manufacturer's entering into this Agreement is
the reputation, business standing, and goodwill already honored
and enjoyed by Purchaser under its present ownership, and,
accordingly, Purchaser agrees that its rights and obligations
under this Agreement may not be transferred or assigned directly
or indirectly without the prior written consent of Manufacturer
provided that purchaser's assignment to an acquiror of all or
substantially all of Purchaser's stock, assets or business shall
not require Manufacturer's consent. Subject to the foregoing
sentence, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors and assigns.
13.7. LEGAL EXPENSES. The prevailing, party in any legal action brought
by one party against the other and arising out of this Agreement
shall be entitled, in addition to any other rights and remedies
it may have, to reimbursement for its expenses, including court
costs and reasonable attorneys' fees.
13.8. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all
of which together shall constitute one instrument.
Advanced Telecommunications Modules, Inc. Com21, Inc.
By: By:
Title: Title:
10
EXHIBIT A
PRODUCT DESCRIPTION AND MINIMUM PURCHASE COMMITMENT
STANDARD PRODUCTS
PRODUCTION DESCRIPTION
VM1000 Virata Switch Base
VM2100 4XATM25 Switch Adapter
VM2200 2XATN155 UPT-5 Switch Adapter
VM3200 2XATMI55 MMF Switch Adapter
VM8100 Ethernet Switch Adapter
SPECIAL PRODUCTS
PRODUCT NO. DESCRIPTION
VM1000SP Virata Switch Base Motherboard
MINIMUM PURCHASE COMMITMENT
PRODUCT NO. MINIMUM PURCHASE
VM1000 [*]
VM1000SP [*]
VM2100 [*]
VM2200 [*]
VM3200 [*]
VM8100 [*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
11
EXHIBIT B
PRODUCT PURCHASE PRICE
STANDARD PRODUCTS
PRODUCT NO. QUANTITY PURCHASER'S DISCOUNT OFF LIST PRICE
----------- -------- -----------------------------------
(OVER 360 DAY PERIOD)
VM1000 [*] [*]
[*]
VM2100 [*] [*]
[*]
VM2200 [*] [*]
[*]
VM3200 [*] [*]
[*]
VM8100 [*] [*]
SPECIAL PRODUCTS
PRODUCT NO. QUANTITY PURCHASER'S DISCOUNT
----------- -------- --------------------
VM1000SP [*] [*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
12
EXHIBIT C
MANUFACTURER'S CURRENT LIST PRICES
PRODUCT NO. DESCRIPTION LIST PRICE
----------- ----------- ----------
VL1000 Virata Link PC ISA, Adapter ATM25 $[*]
VL2000 Virata Link PC PCI Adapter, ATM 25 $[*]
VM1000 Virata Switch Base $[*]
VM2100 4XATM25 Switch Adapter $[*]
VM2200 2XATMI55 UPT-5 Switch Adapter $[*]
VM3200 2XATM155 MMF Switch Adapter $[*]
VM8100 Ethernet Switch Adapter $[*]
VS3200 Virata Store 8 GB 155mbs MNM Server $[*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
13
EXHIBIT D
SPARE PARTS LIST AND PRICE SCHEDULE
DESCRIPTION QUANTITY LIST PRICE
----------- -------- ----------
(PER DEVICE)
Quark Chip [*] [*]
[*] [*]
Gluon Chip [*] [*]
[*] [*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
14
EXHIBIT E
INITIAL ORDER
Upon execution of this Agreement, Purchaser shall deliver to Manufacturer a
written, noncancelable purchase order for the following quantities of Products:
Product Quantity
------- --------
VM1000 - Virata Switch Base [*]
Quark Chip [*]
Gluon Chip [*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
15
EXHIBIT F
SOFTWARE LICENSE
ADVANCED TELECOMMUNICATIONS MODULES LIMITED
END-USER SOFTWARE LICENSE
REVISION 1.0
PLEASE READ THIS LICENSE CAREFULLY BEFORE OPENING THE PACKAGE OR USING THE
SOFTWARE. BY OPENING THE PACKAGE OR USING THE SOFTWARE, YOU ARE AGREEING TO BE
BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS
LICENSE, PROMPTLY RETURN THE UNUSED SOFTWARE TO THE PLACE WHERE YOU OBTAINED IT
AND YOUR MONEY WILL BE REFUNDED. ADVANCED TELECOMMUNICATIONS MODULES LIMITED
(ATML) SOFTWARE IS LICENSED NOT SOLD.
FOR THE LIMITED WARRANTY PERTAINING TO THIS PRODUCT, PLEASE REFER TO THE
WARRANTY LEAFLET INCLUDED WITH THIS PACKAGE.
1. LICENSE. The application, demonstration, system and other software
accompanying this License, whether on disk, in read-only memory, or on any other
media (the "ATML Software"), and the related documentation are licensed to you
by Advanced Telecommunications Modules Limited (ATML). You own the medium on
which the ATML Software are recorded, but ATML and/or ATML's licensor(s) retain
title to the ATML Software and related documentation. The License allows you to
use the ATML Software on a single ATML product and only make one copy of the
ATML Software in machine-readable form only for backup purposes. You must
reproduce, on such copy, the ATML copyright notice and any other proprietary
legends that were on the original copy of the ATML Software. You may also
transfer all your license rights in the ATML Software, the backup copy of the
ATML Software, the related documentation, and a copy of this License to another
party, provided the other party reads and agrees to accept the terms and
conditions of this License.
2. RESTRICTIONS. The ATML Software contains copyrighted material, trade secrets,
and other proprietary material. In order to protect them, and except as
permitted by applicable legislation, you may not decompile, reverse engineer,
disassemble, or otherwise reduce the ATML Software to a human-perceivable form:
copy, modify, network, rent, lease, loan, or distribute the ATML Software: or
create derivative works based upon the ATML Software in whole or part. You may
not electronically transmit the ATML Software from one computer to another or
over a network.
3. TERMINATIONS. This License is effective until terminated. You may terminate
the License at any time by destroying the ATML Software, related documentation
and all copies thereof. This License will terminate immediately without notice
from ATML if you fail to comply with any provision of this License. Upon
termination you must destroy the ATML Software, exclusions in this License
Agreement and shall have no right to any refund of any amount paid for the ATML
Software. No termination shall release you from liability for any breach of this
License Agreement.
4. EXPORT LAW ASSURANCE. You agree and certify that neither the ATML Software
nor any other technical data received from ATML, nor the direct product thereof,
will be shipped, transferred, or exported, directly or indirectly, to any
country in violation of any applicable law, including the United States Export
Administration Act and the regulations thereunder.
5. CONTROLLING LAW AND SEVERABILITY. This License shall be governed by and
construed in accordance with the laws of England. If for any reason a court of
competent jurisdictions finds any provision of this License, or portion thereof,
to be unenforceable, that provision of the License shall be enforced to the
maximum extent permissible so as to effect the intent of the parties, and the
remainder of this License shall continue in full force and effect.
6. ACKNOWLEDGMENT. You acknowledge that you have read this License Agreement,
understand it, and agree to be bound by its terms and conditions. You also agree
that the License agreement is the complete and exclusive statement of agreement
between the parties and supersedes all proposals or prior agreements, oral or
written, and any
16
other communications between the parties relating to the subject matter of the
License Agreement. No amendment to or modification of this License will be
binding unless in writing and signed by a duly authorized representative of
ATML.
2.
17
EXHIBIT G
TERRITORY
The World
18
EXHIBIT H
F.O.B. POINT
GSS/Array Technology
0000 Xxx Xxx Xxx
Xxx Xxxx XX
00000-0000
000-000-0000 Phone
000-000-0000 Fax
19
EXHIBIT I
MANUFACTURER'S STANDARD PRODUCT WARRANTY PERIOD
ATM Network Adapters [*]
ATM Switches [*]
Spare parts and spare kits [*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
20
EXHIBIT J
ADVANCE NOTIFICATION AGREEMENT
Manufacturer agrees to notify Purchaser in writing, ninety (90) days in advance
of shipments to Purchaser, any form, fit, or functional changes to products
procured by Purchaser. In the event a critical situation occurs which forces a
change to occur within the ninety (90) day notification period, Purchaser will
also be provided with immediate notification.
Furthermore, Manufacturer agrees to provide Purchaser with the option to
evaluate potential changes which affect form, fit, or function, in advance of
forecasted or requested shipments to Purchaser. If the changes are deemed
unacceptable to Purchaser, upon written notification, Manufacturer will supply
Purchaser with up to six months of the forecasted requirements at the previous
configuration before making the proposed change. If the Manufacturer is not able
to provide the previous configuration, manufacturer will
i. accommodate the requirements of the Purchaser in the changed
configuration, or
ii. collaborate with, and assist the Purchaser in making changes to
Purchaser's product to accommodate changes, or
iii. provide end of life products per agreement.
If Purchaser does not provide a written request to evaluate the potential
changes within ten (10) working days of notification by Manufacturer,
Manufacturer is not obligated to supply Purchaser with the previous
configuration.
1.
21
ADVANCED TELECOMMUNICATION MODULES INC.
(HEREIN ATMI) STANDARD TERMS AND CONDITIONS OF SALE
1 TERMS OF SALE THE TERMS OF SALE CONTAINED HEREIN APPLY TO ALL QUOTATIONS
MADE AND PURCHASE ORDERS ENTERED INTO BY THE SELLER, WHETHER IN
DOCUMENTARY FORM OR TRANSMITTED BY ELECTRONIC MEANS. SOME OF THE TERMS
SET OUT HERE MAY DIFFER FROM THOSE IN BUYERS PURCHASE ORDER AND SOME MAY
BE NEW. SELLERS ACCEPTANCE IS CONDITIONAL ON BUYERS ASSENT TO THE TERMS
SET OUT HERE IN LIEU OF THOSE IN BUYER'S PURCHASE ORDER. SELLER'S
FAILURE TO OBJECT TO PROVISIONS CONTAINED IN ANY COMMUNICATION FROM
BUYER SHALL NOT BE DEEMED A WAIVER OF THE PROVISIONS OF THIS ACCEPTANCE.
ANY CHANGES IN THE TERMS CONTAINED HEREIN MUST SPECIFICALLY BE AGREED TO
IN WRITING BY AN OFFICER OR MANAGER OF THE SELLER BEFORE BECOMING
BINDING ON EITHER THE SELLER OR THE BUYER. All orders or contracts must
be approved and accepted by the seller at its home office. These terms
shall be applicable whether or not they are attached to or enclosed with
the product to be sold hereunder. No shipments will be made until a
signed Purchase Order or other appropriate document is received by
Seller. These terms do not apply to the licensing of software products
offered by the Seller. Such products are made available only under the
terms of Seller's standard software license terms.
2 TAXES Unless otherwise specifically provided herein, the amount of any
present or future sales, revenue, excise or other tax to the product
covered by this order or the manufacture or sale thereof, shall be added
to the purchase price and shall be paid by the Buyer, or in lieu thereof
the Buyer shall provide the Seller with a tax exemption certificate
acceptance to the taxing authorities. In the event Seller is required to
pay any such tax, fee or charge at the time of Sale or thereafter, the
Buyer shall reimburse Seller therefor.
3 ORDERS Buyers shall supply Seller with a letter or purchase order on
company letter head. Buyer's orders should state desired shipping date,
but Seller is under no obligation to meet Buyer's expected delivery date
Orders placed by Buyer and acknowledged by Seller will be subject to the
terms listed below in the payment section. No purchase order shall be
binding until accepted by Seller in writing
4 SHIPMENT Unless otherwise specified on the face hereof, shipments of
goods within and outside the U.S. shall be delivered FOB Seller's dock,
and title and liability for loss or damage thereto shall pass to Buyer
upon Seller's tender of delivery of the goods to carrier for shipment to
Buyer, and any loss or damage thereafter shall not retrieve Buyer of any
obligation hereunder. Buyer shall reimburse Seller for taxes and any
other expenses incurred for licenses for clearance required at port of
entry and destination. Seller may deliver the good in installments.
Unless otherwise agreed, all items shall be packed in accordance with
Seller's normal practices. Buyer shall pay the per unit carriage and
insurance amount attributable to each product, as specified in Seller's
Price List in effect at the time of this Acknowledgment.
5 PAYMENT
(a) Unless otherwise agreed all invoices are due and payable thirty
(30) days from date of invoice. No discounts are authorized.
Shipments, deliveries and performance of work shall at all times
be subject to the approval of the Seller's credit department and
the Seller may at any time decline to make any shipments or
deliveries or perform any work except upon receipt of payment or
upon terms and conditions or security satisfactory to such
department.
(b) If, in the judgment of the Seller, the financial condition of the
Buyer at any time does not justify continuation of production or
shipment on the terms of payment originally specified, the Seller
may require full or partial payment, in advance, and, in the
event of the bankruptcy or insolvency of the Buyer or in the
event any proceeding is brought by or against the Buyer under the
bankruptcy or insolvency laws, the Seller shall be entitled to
cancel any order then outstanding and shall receive reimbursement
for its cancellation charges.
2.
22
(c) Each shipment shall be considered a separate and independent
transaction, and payment therefor shall be made accordingly. If
shipments are delayed by the Buyer, payment shall become due on
the date when the Seller is prepared to make shipment. If the
work covered by the purchase order is delayed by the Buyer,
payments shall be made based on the purchase price and the
percentage of completion. Products held for the Buyer shall be at
the risk and expense of the Buyer.
(d) Customer grants and ATMI retains a purchase money security
interest in each Product furnished hereunder and any proceeds
thereof, until the full purchase thereof shall have been paid in
full.
6 SHIPPING DATES All shipping dates are estimates only and are dependent upon
prompt receipt of the necessary information from Buyer. Shipments may be made in
installments. Seller shall be excused from performance and shall not be liable
for any delivery or for non delivery, in whole or in part, caused by the
occurrence of any contingency beyond the reasonable control of Seller, including
but not limited to war (whether an actual declaration thereof is made), sabotage
or other act or civil disobedience, judicial action, labor dispute, accident,
defaults of suppliers, fire, act of God, shortage of labor, fuel, raw materials
or machinery or technical or yield failure where Seller has exercised ordinary
care in the prevention thereof. Seller may at its sole discretion allocate
production and delivery among Seller's customers.
7 RESCHEDULING/CANCELLATION
(a) No delivery delay requested by Buyer on an order placed will be
effective unless covered by an amendment to the order that
provides for the payment of any agreed upon costs the delay
imposes on Seller and that it is signed by a duly authorized
representative of Seller.
(b) Products returned for convenience of Buyer if accepted by Seller
shall be subject to a restocking fee.
(c) Buyer may not cancel or reschedule any order scheduled for
delivery within thirty (30) days
(d) A cancellation charge shall be assessed to Buyer on order for
standard ATMI products which are canceled within sixty (60) days
of the scheduled delivery date. The amount of such charge shall
be based on the quantity canceled and the time remaining.
3.
23
ADVANCED Advanced Telecommunications Modules Inc
TELECOMMUNICATIONS 0000 X. Xxxxxx Xxxxxx
XXXXXXX Xxxxxxxxx, XX 00000
Ph 000 000 0000
Fx 408 523 1410
June 12, 1996
Com21, Inc
0000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Dear Sir:
INTERNATIONAL OEM AGREEMENT
We refer to the above agreement entered into between us on 7th March 1996
("Agreement").
We have discussed certain provisions of the Agreement and agreed that certain
changes and additions, as set out in this letter will be made to the Agreement.
This letter sets out the terms of our agreement as follows:
1. Defined terms in the Agreement shall have the same meaning in this
letter.
2. Clause 6.1 of the Agreement shall be amended by:
2.1 the deletion of the words "an exclusive" in the first line of that
clause and the insertion, in the same place, of the words "a non
exclusive"; and
2.2 the deletion of the words "Exhibit H" in the fourth line of that clause
and the insertion in the same place, of the words "Exhibit G"
such that Clause 6.1 shall, from the date of the letter be deemed to
read:
6.1 License to purchaser. Manufacturer hereby grants to Purchaser a
non exclusive (except for the usage rights reserved to
Manufacturer),royalty-free, fully paid license to use,
distribute, demonstrate and sub-license the object code of the
Software in the Territory specified in Exhibit G attached hereto
in carrying out the Purchaser's obligations under the provisions
of this Agreement. The license shall terminate on the
termination of this Agreement for any reason.
3. COM21 hereby unconditionally and irrevocably waives any claim that it
has or which it may have as a result of any breach of Clause 6.1 which
may have occurred prior to the date of this letter.
4. ATM Inc. will not, for a period of two years from the date of this
letter manufacture for sale cable modem head-end devices.
5. ATM Inc. will not from the date of your acceptance of the terms of the
letter, convey to any other party COM21 technology information or COM21
product features that ATM Inc. learns during the course of doing
business with COM21 unless such information is or falls into the public
domain (other than in breach of the terms of this letter or any other
confidentiality agreement between us).
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
4.
24
6. The remaining terms in the Agreement, including for the avoidance of
doubt Clause 10, shall remain in full force and effect and shall remain
binding obligations of ATM Inc. and COM21 in accordance with their
terms.
7. This letter shall be covered by and construed under the laws of the
State of California, USA. The federal and state courts within the State
of California shall have exclusive jurisdiction to adjudicate any
dispute arising out of this letter. COM21 expressly consents to (1) the
personal jurisdiction of the federal and state courts within California,
(ii) service of process being effected upon it by registered mail sent
to the address set forth at the beginning of this letter, and (iii) the
uncontested enforcement of a final judgement from such court in any
other jurisdiction wherein COM21 or any of its assets are present.
We should be grateful if you could indicate your acceptance of the above terms
by signing and returning the enclosed copy letter to us.
Yours faithfully
---------------------------------------
for and on behalf
ATM Inc.
We hereby and agree to and accept the terms of this letter.
-----------------------------------
For and on behalf of COM21, Inc.
----------------------
Date
5.
