Supply Agreement
Between
@IPbell Inc.
and
Science Dynamics Corporation
Dated February 11, 2000
Supply Agreement Between @IPbell and Science Dynamics Corporation
TABLE OF CONTENTS
1 SCOPE OF AGREEMENT 1
2 PRICING 3
3 MOST FAVORED CUSTOMER 3
4 DELIVERY AND FORECAST 3
5 INVOICING AND TERMS OF PAYMENT 4
6 TAXES 4
7 TITLE AND RISK OF LOSS 5
8 REPRESENTATIONS AND WARRANTIES 5
9 WARRANTY 6
10 INDEMNITY 6
11 TERMINATION 7
12 FORCE MAJEURE 8
13 CONFIDENTIALITY 8
14 RELATIONSHIP 10
15 ENTIRE AGREEMENT 10
16 NOTICES 10
17 FURTHER ACTION 11
18 NO PARTNERSHIP OR JOINT VENTURE 11
19 SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND CERTAIN
COVENANTS AND AGREEMENTS 11
20 EXPENSES 12
21 ASSIGNMENT 12
22 AMENDMENT; WAIVER 12
23 ENTIRE AGREEMENT 13
24 SEVERABILITY 13
25 SUCCESSORS AND ASSIGNS; NO THIRD-PARTY BENEFICIARIES 13
26 REMEDIES 13
27 GOVERNING LAW 13
28 WAIVER OF JURY TRIAL 14
29 JURISDICTION; SERVICE OF PROCESS 14
30 PREPARATION AND NEGOTIATION OF THIS AGREEMENT 15
31 HEADINGS 15
32 EXHIBITS 15
33 COUNTERPARTS 15
34 DELIVERY VIA TELECOPIER 15
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SCHEDULE 1 17
WARRANTY AND MAINTENANCE. 17
SCHEDULE 2 20
EQUIPMENT COSTS 20
SCHEDULE 3 22
PRODUCT SPECIFICATION 23
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SUPPLY AGREEMENT
----------------
This Supply Agreement (the "Agreement") is made and entered into as of
the latest date set forth in the signature section of this Agreement
(the "Effective Date"),
BY AND BETWEEN:
SCIENCE DYNAMICS CORPORATION, a Delaware corporation having its
principal place of business at 1919 Springdale Road, Cherry Hill, NJ
08003 (hereinafter referred to as "SCIDYN"), and @IPbell Inc., having
its principal place of business at Suite 505, 1115 Main Street
Fairfax, Virginia, 22030 (hereinafter referred to as "@IPbell").
1 SCOPE OF AGREEMENT
- --------------------
WHEREAS:
(1) SCIDYN desires to sell to @IPbell and @IPbell desires to buy the
Products (as set forth in Schedule 3 hereof) and related Services
(as defined below) for the amount of $4,180,800 for use on the
terms and conditions as set forth herein. @IPbell presently
intends to purchase, directly or through a third party vendor,
additional equipment amounting to approximately $13,000,000 from
SCIDYN over the next twelve months;
(2) @IPbell wishes under this contract to procure the initial
provisioning of its world-wide IP telephony and data network
comprising the 'super-POPs' in Los Angeles, New York and London
together with the test facility located at SCIDYN's New Jersey
premises and 10 in-country 'POPs';
(3) @IPbell has indicated to SCIDYN its present understanding that
this initial provisioning will require the purchase of up to
6,432 ports mounted in SCIDYN's Integrator C-2308 IP Telephony
Gateway product in either the El or T1 configuration (the precise
specifications to be notified to SCIDYN under a call-off
procedure); and
(4) @IPbell has agreed with SCIDYN that such equipment is to be
provided at a cost to @IPbell of $650.00 per port.
NOW THEREFORE the parties hereto agree as follows:
(A) SCIDYN shall supply @IPbell with IP telephony equipment in
accordance with the Product Specification in Schedule 3.
(B) @IPbell hereby agrees to place an initial purchase order for 6432
ports worth at a value of $4,180,800. Such purchase order shall
be placed within 10 working days of the signing of this agreement
and shall include a call off schedule as set out in and in
accordance with Clause 11 below.
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(C) It is agreed that SCIDYN will supply the Integrator C-2308 IP
Telephony Gateways priced on a per port basis. Schedule 2 of this
agreement sets out the specifications of the El and T1 gateways
respectively. In the relevant call off schedule @IPbell will
specify the product mix as between El and T1 requirements.
(D) The consulting and professional personnel provided by SCIDYN
hereunder shall have appropriate technical and application skills
to enable them to efficiently perform the services and their
duties hereunder including, without limitation, the design,
development, upgrades, delivery, testing, implementation,
consultancy, training, maintenance and other services
(collectively, the "Services").
(E) Other than as expressly provided hereunder, SCIDYN shall provide
the Services under this Agreement at no additional cost to
@IPbell upon delivery and payment of the Products pursuant to the
terms of this Agreement, provided, however, that any new
functionalities of the Products shall be mutually agreed upon by
the parties hereto.
(F) It is agreed that within two (2) weeks following the Effective
Date the parties hereto will enter into an agreement to specify
the reasonable and customary extent and nature of the Services
hereunder. Unless otherwise agreed in writing, the Services shall
be performed during SCIDYN's normal business hours; provided that
at all times SCIDYN shall provide to @IPbell and its equipment
service providers a 24-hour, 7-day per week hotline technical
assistance center, which center will be responsible to ensure
that remote software configuration and hardware fault and
isolation support is always available. SCIDYN shall select any
suitable qualified person(s), which person(s) may include
subcontractors, to perform the Services. SCIDYN shall be
responsible for the performance of any subcontractors which it
appoints.
(G) Scope of Project:
(a) SCIDYN shall deliver the Products and provide the
Services at @IPbell's site in accordance with the terms and
conditions contained herein.
(b) @IPbell acknowledges and agrees that SCIDYN's ability
to provide the Products and the Services is dependent on the full
and timely co-operation of @IPbell (which @IPbell agrees to provide)
and third parties (which to the extent that @IPbell is responsible
for such, @IPbell agrees to procure) as well as the accuracy and
completeness of any information and data provided to SCIDYN by
@IPbell.
(c) If any delay arising out of or in connection with any
dispute between the parties causes a delay by SCIDYN in providing
the Products or the Services, then any target date and all
subsequent target dates shall be extended accordingly by such
time period which is reasonably necessary to enable SCIDYN to
compensate for such delay. Further, SCIDYN shall use its
reasonable endeavors to notify @IPbell as soon as reasonably
practicable if it becomes clear that a target date is likely to
be missed or any target date has been missed or delayed due to a
failure by @IPbell to meet any obligation; provided, however, that,
for the avoidance of doubt, such notification obligation shall
not in any way be a condition of, or prejudice or otherwise affect,
the extension of any time period in accordance with this provision.
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(d) The parties hereto agree that acceptance tests shall be
drafted so as to test substantial compliance of the Products with
agreed criteria or specifications.
(e) It is agreed that SCIDYN, with @IPbell's input, will
provide @IPbell, on a timely basis, a development schedule based upon
market developments as well as @IPbell's operational requirements.
This schedule, developed in cooperation with @IPbell, will provide
@IPbell with a commitment from SCIDYN concerning future product
developments and enhancements.
2 PRICING
- ---------
Schedule 2 is hereby incorporated by reference into this Agreement.
3 MOST FAVORED CUSTOMER
- -----------------------
SCIDYN shall treat @IPbell as its most favored customer. SCIDYN hereby
represents and warrants that the representations, warranties,
covenants, agreements, and indemnities contained herein are in all
material respects comparable to, or more favorable to, @IPbell than
the equivalent terms applicable to any existing customer of SCIDYN. If
SCIDYN hereafter enters into any agreement or arrangement with any
other Person, the equivalent terms and conditions of which are more
favorable to such Person than the terms and conditions hereof, SCIDYN
shall promptly notify @IPbell of such more favorable terms and
conditions, and each such Person shall have the right unilaterally to
amend this Agreement to incorporate such more favorable terms and
conditions effective as of the date such terms and conditions became
effective with respect to such other Person. @IPbell may from time to
time require SCIDYN to certify in writing that it is in compliance
with this section.
"Person" shall mean any individual, partnership, firm, corporation,
limited liability company, joint venture, association, trust,
unincorporated organization, or other entity.
4 DELIVERY AND FORECASTS
- ------------------------
The Products will be delivered by SCIDYN within thirty (30) days of
the placement of the order by @IPbell; provided that any order placed
within thirty (30) days of the Effective Date will be delivered by
SCIDYN within sixty (60) days of the placement of the order by
@IPbell. In the event of an actual or an anticipated delay in the
delivery as per the agreed forecast of equipment under this Agreement,
SCIDYN will use its best efforts to eliminate or mitigate such delay.
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In order to facilitate SCIDYN's manufacturing and production capacity
planning for its requirements, @IPbell will provide SCIDYN with good
faith estimates of its equipment requirement for the immediately
succeeding calendar quarter. Notwithstanding the delivery of the
aforereferenced estimate, @IPbell shall have the right to deliver
purchase orders to SCIDYN at any time and from time to time.
5 INVOICING AND TERMS OF PAYMENT
- --------------------------------
Upon shipment SCIDYN will invoice @IPbell for the value of the goods
shipped. The invoice for the outstanding value will be due net thirty
(30) days. All other non-equipment charges are to be paid in full
thirty (30) days after receipt of invoice.
All payments under this Agreement shall be made in U.S. Dollars by
check or wire transfer.
In respect of any invoiced amount which is outstanding for thirty (30)
days, other than as a consequence of a bona fide dispute, SCIDYN
shall, in addition to any other recourse available to it hereunder or
at law, be entitled to withhold acceptance of any new purchase order
or delivery of Products under previously accepted purchase orders.
6 TAXES
- -------
The amounts set forth on Schedule 2 hereto do not include any taxes or
duties. @IPbell shall either furnish SCIDYN with an appropriate
exemption certificate applicable thereto.
7 TITLE AND RISK OF LOSS
- ------------------------
Title to all Products and risk of loss for Products sold to @IPbell
hereunder shall pass to @IPbell upon completion of shipment of the
Products F.O.B. SCIDYN's premises at Cherry Hill, NJ.
8 REPRESENTATIONS AND WARRANTIES
- --------------------------------
SCIDYN hereby represents and warrants to @IPbell as follows:
(a) SCIDYN guarantees that the Products, as delivered,
installed, and maintained (to the extent maintenance is provided by
SCIDYN) comply with all applicable laws and regulations; provided that
such representation and warranty will survive for only one year after
each applicable Product (on a Product-by-Product basis) is installed;
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(b) SCIDYN is the owner of the Products and has the right
to sell the Products to @IPbell as contemplated by this Agreement
without violating any rights of any third party, and there is
currently no actual or threatened suit or legal proceeding by any
third party based on an alleged violation of intellectual property
rights by SCIDYN;
(c) the Products will conform, as to all substantial
operational features, to SCIDYN's current published specifications
when installed and will be free from any defects which substantially
affect performance; provided that such representation and warranty
will survive for only two (2) years after each applicable Product (on
a Product-by-Product basis) is installed;
(d) the Products (and each component thereof) installed
will conform to and perform in accordance with the functional and
technical specifications therefore provided that such representation
and warranty will survive for only one year after each applicable
Product (on a Product-by-Product basis) is installed;
(e) the Products shall not contain any defects and shall
function properly and in conformity with the description,
specifications and documentation set forth in this Agreement,
including, without limitation, any specifications and other
documentation to be delivered to @IPbell by SCIDYN for the performance
of SCIDYN's obligations hereunder; provided that such representation
and warranty will survive for only two (2) years after each applicable
Product (on a Product-by-Product basis) is installed;
(f) the Products (and each component thereof) installed
will properly interface with other hardware and software of @IPbell
which SCIDYN knows or should reasonably know that the Products will be
used in conjunction with without rendering any such hardware or
software less functional in any material respect (1) without any
error; (2) without the necessity of any human intervention or system
modification; and (3) regardless of the particular date, year,
century, or other chronological variable; provided that such
representation and warranty will survive for only two (2) years after
each applicable Product (on a Product-by-Product basis) is installed;
(g) SCIDYN has full power and authority and the sole and
exclusive right to grant the rights (including all intellectual
property rights) granted under this Agreement; and
(h) neither the Products nor any component thereof do or
will, and neither SCIDYN's nor @IPbell's use of the Products or any
component thereof will, infringe any
intellectual property right of any Person.
9 WARRANTY
- ----------
(a) SCIDYN shall perform the Services contemplated by this
Agreement in a professional, workmanlike and timely manner and in
accordance with generally accepted
commercial practices in the IT industry. SCIDYN shall ensure that the
personnel who are carrying out the work are suitably trained,
qualified and skilled and perform their duties with all reasonable
skill and care.
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(b) @IPbell acknowledges that SCIDYN shall not be
responsible for any failure to provide Services if such failure is the
result, either directly or indirectly, of the inability of any
products in @IPbell's computer environment to process, provide or
receive date data (i.e., representations for day, month and year) and
to properly exchange date data with any products supplied by SCIDYN in
accordance with this Agreement.
(c) All warranties given by SCIDYN hereunder do not apply
to defects resulting from unauthorized, improper or inadequate
maintenance or calibration by @IPbell or any third party; hardware,
software, interfacing or supplies not supplied by SCIDYN; unauthorized
modification or improper use of the Products (or any part thereof) by
@IPbell; operation outside of published environmental specifications:
improper site preparation or maintenance of the Products (or any part
thereof) by @IPbell or any third party; or use by @IPbell of any third
party products.
(d) SCIDYN's warranty and advanced replacement program are
outlined in Schedule 1 and incorporated herein by reference.
10 INDEMNITY
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(a) Each party shall indemnify and hold harmless the other
party, each affiliate of such other party, each successor and
permitted assign of each such person and each representative of each
of the foregoing against any Losses suffered or incurred by them in
any Action (whether brought or otherwise initiated by any of them)
arising out of or relating to the breach or alleged breach by the
other party of any representation, warranty, covenant or other
provision of this Agreement. In addition, SCIDYN shall indemnify and
hold harmless @IPbell, each of its Affiliates (as defined below), each
successor and permitted assign of each such person and each
representative of each of the foregoing arising out of or relating to
any claim that @IPbell's use or possession of the Products (or any
constituent part thereof) infringes or violates the copyright, trade
secret, patent or other proprietary right of any third party. In no
event shall @IPbell settle any such action without SCIDYN's prior
written approval.
If, as a result of any claim of infringement against any
copyright, trade secret, patent or other property right, @IPbell is
enjoined from using the Products (or any material portion thereof),
SCIDYN shall use its best efforts to procure the right for @IPbell to
continue to use the Products, or replace or modify the Products so as
to make it non-infringing.
(b) Notwithstanding anything to the contrary contained
herein, neither party hereto nor any of its Affiliates shall be liable
to the other party hereto under or in connection with this Agreement
for any consequential, incidental, indirect, punitive, exemplary,
remote, speculative, or special damages of any kind, nature, or
description whatsoever, whether or not such party has been advised of
the possibility of such damages.
"Action" shall mean any claim, action, suit, arbitration, inquiry,
proceeding, notice of violation or investigation by or before any
Governmental Authority.
- -6-
"Affiliate" shall mean, with respect to any specified Person, any
other Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control
with, such specified Person. For purposes of this definition,
"control" (including "controlled by" and "under common control with")
means, with respect to the relationship between or among two or more
Persons, the possession, directly or indirectly, or as trustee,
personal representative, or executor, of the power to direct or cause
the direction of the affairs or management of a Person, whether
through the ownership of voting securities, as trustee, personal
representative, or executor, by contract or otherwise, including,
without limitation, the ownership, directly or indirectly, of
securities having the power to elect a majority of the board of
directors or similar body governing the affairs of such Person.
"Governmental Authority' shall mean any national, federal, state,
municipal, local, or other government, governmental, regulatory, or
administrative authority, agency, or commission, or any court,
tribunal, or judicial or arbitral body.
"Law" shall mean any national, federal, state, municipal or local or
other statute, law, ordinance, regulation, rule, code, order, other
requirement or rule of law.
"Losses" shall mean, with respect to any specified Person, all
liabilities, losses, damages, claims, costs, expenses, amounts paid in
settlement, interest, awards, judgments, penalties, or fines of any
kind, nature, or description whatsoever (including, without
limitation, all reasonable fees and disbursements of counsel,
accountants, experts, and consultants) suffered, incurred, or
sustained by such Person or to which such Person becomes subject
(including, without limitation, in connection with any Action brought
or otherwise initiated by or on behalf of such Person), resulting
from, arising out of, or relating to any specified facts or
circumstances.
11 TERMINATION
- --------------
(a) This Agreement shall terminate on the earlier to occur
of (i) thirty (30) days after any notice of termination shall have
been delivered, in the event that the breach upon which such notice of
termination shall have been based shall not have been cured prior to
such date, and (ii) the expiration of the term of this Agreement on
the second anniversary of the Effective Date.
(b) Either party hereto may terminate this Agreement by
delivery of written notice of termination to the other party in the
event that: (i) any representation or warranty of the other party
contained in this Agreement shall not be true, complete and correct in
all material respects on any date of determination; (ii) the other
party shall not have complied in all material respects with each
covenant or agreement contained in this Agreement to be complied with
by it; or (iii) the other party shall make a general assignment for
the benefit of creditors, or any proceeding shall be instituted by the
other party seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up or reorganization, arrangement,
adjustment, protection, relief or composition of its debts under any
law relating to bankruptcy, insolvency or reorganization.
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12 FORCE MAJEURE
- ----------------
(a) Neither party shall be liable for any failure to
perform or any delay in performance of its obligations hereunder
caused by circumstances beyond its reasonable control, including but
not limited to fire, storm, flood, earthquake, explosion, accident,
acts of the public enemy, war, rebellion, third party disputes,
sabotage, epidemic, quarantine restrictions, transportation embargoes,
acts of God, acts of any government or any agency thereof, judicial
action and other like external circumstances. In the case of either
party such cause will only be considered Force Majeure if it is not
attributable to the willful act, neglect or failure to take reasonable
precautions of such party, its servants, agents, employees or
subcontractors.
(b) If either of the parties shall become aware of the
circumstances of Force
Majeure which give rise to or which are likely to give rise to any
failure or delay on its part, it shall promptly notify the other and
shall inform the other of the period which it is estimated that such
failure or delay shall continue. In the event of such a delay,
delivery dates shall be appropriately adjusted. Upon such failure to
perform or delay in performance exceeding one (1) month, either party
may cancel this Agreement forthwith without penalty by giving written
notice of termination to the other party.
13 CONFIDENTIALITY
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(a) The Receiving Party shall, and shall cause each of its
representatives to, hold in strict confidence all Confidential
Information of the Disclosing Party, and the Receiving Party shall not
disclose any Confidential Information to any of its Representatives
except to the extent the Receiving Party reasonably determines is
necessary or desirable in connection with the consummation of the
transactions and the performance of the obligations contemplated
hereby. Except as provided in the immediately preceding sentence, the
Receiving Party shall not, and shall cause its Representatives not to,
directly or indirectly, copy, reproduce, use, publish, disseminate,
misuse, misappropriate, sell, assign, or otherwise transfer or
disclose to any Person any Confidential Information of the Disclosing
Party. Notwithstanding the foregoing: (i) @IPbell may disclose to any
Person engaged by @IPbell to support, maintain, or enhance the
Products or any equipment with which the Products are being used such
information relating to the Products as is reasonably required in
connection with the performance of such support, maintenance, or
enhancement services; and (ii) the Receiving Party may disclose to
prospective acquirers, strategic partners, and joint venturers such
information relating to the existence, terms, and conditions hereof as
is reasonably required in connection with any prospective acquisition
of such party by any other Person or any prospective strategic
alliance or joint venture between such party and any other Person.
(b) In the event that the Receiving Party or any of its
Representatives is requested pursuant to, or becomes compelled by, any
applicable law to disclose any Confidential Information of the
Disclosing Party, the Receiving Party shall provide the Disclosing
- -8-
Party with prompt written notice thereof so that the Disclosing Party
may seek a protective order or other appropriate remedy or, in the
Disclosing Party's sole discretion, waive compliance with the terms
hereof. In the event that no such protective order or other remedy is
obtained, or the Disclosing Party waives compliance with the terms
hereof, the Person requested or compelled to disclose Confidential
Information of the Disclosing Party shall furnish only that portion of
such Confidential Information which it is advised in writing by
counsel is legally required, and shall cooperate with the Disclosing
Party in its efforts to obtain reliable assurance that confidential
treatment will be accorded such Confidential Information.
"Receiving Party" means any party hereto which receives hereunder or
in connection with the transaction contemplated hereby any
Confidential Information of any other party hereto.
"Disclosing Party" means any party hereto which discloses hereunder or
in connection with the transaction contemplated hereby any of its
Confidential Information to any other party hereto.
"Confidential Information" means, with respect to any Disclosing
Party: (a) all information relating to the authorization, preparation,
negotiation, execution, delivery, administration, and performance of
this Agreement, including, without limitation, the terms, conditions,
and existence hereof; and (b) all information, whether communicated
orally or in writing, or by electronic or magnetic media, visual
observation, or other means which is confidential or proprietary
information of the Disclosing Party; and all notes, analyses,
compilations, studies, interpretations, or other documents which
contain, reflect, or are based upon, in whole or in part, any such
confidential or proprietary information; provided, however, that
Confidential Information shall not include information which: (c) is
or becomes generally available or known to the public, other than as a
result of any disclosure by the Receiving Party or any of its
representatives in violation hereof; (d) is or becomes available to
the Receiving Party on a nonconfidential basis from any source other
than the Disclosing Party or any of its representatives, other than
any such source that the Receiving Party or any of its Representatives
knows or should know is prohibited by a legal, contractual, or
fiduciary obligation to the Disclosing Party from disclosing such
information; or (e) is independently developed by the Receiving Party.
14 RELATIONSHIP
- ---------------
This is an agreement between separate entities and neither is the
agent of the other for any purpose whatsoever. @IPbell and SCIDYN are
independent contractors and neither has any power nor will it
represent itself as having any power to in any way bind or obligate
the other or to assume or create any expressed or implied obligation
or responsibility on behalf of the other or in the other's name, and
neither party shall have authority to represent itself as an agent of
the other. This Agreement shall not be construed as constituting a
partnership or any other form of legal association, which would impose
liability upon one party for the act or failure to act of the other.
15 ENTIRE AGREEMENT
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This Agreement and its Schedules constitute the entire agreement
- -9-
between the parties with respect to the subject matter set forth and
supersedes any and all prior agreements between the parties either
oral or written. Unless specifically otherwise provided for herein,
this Agreement may not be amended, waived or extended, in whole or in
part, except by a writing signed by both parties hereto.
16 NOTICES
- ----------
All notices, requests, and demands given to or made upon the parties
hereto shall, except as otherwise specified herein, be in writing and
be delivered by fax, express delivery, in person, or mailed to any
such party at the address of such party set forth below. Any party
may, by notice hereunder to the other party, designate a changed
address for such party. Any notice, if faxed, shall be deemed received
upon confirmation of the receipt thereof; if sent by express delivery,
shall be deemed received upon delivery as set forth on the express
delivery receipt; if personally delivered, shall be deemed received
upon delivery; and if mailed properly addressed, postage prepaid,
registered or certified mail, shall be deemed dispatched on the
registered date or that stamped on the certified mail receipt, and
shall be deemed received the fifth business day thereafter, or when it
is actually received, whichever is sooner. Attempted delivery, in
person or by express delivery at the correct address, shall be deemed
received on the date of such attempted delivery. All references to
hours of the day shall mean the official time in effect on the date in
question in the State of New Jersey.
If to SCIDYN:
SCIENCE DYNAMICS CORPORATION
1919 Springdale Road
Cherry Hill, NJ 08003
Attention: Joy C. Hartman, CEO
Telephone: (856) 424-0068
Facsimile: (856) 751-7361
If to @IPbell:
@IPbell Holdings, Inc.
c/o Dechert Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
Attention: Gary L. Green, Esq.
Telephone: (215) 994-2656
Facsimile: (215) 994-2222
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17 FURTHER ACTION
- -----------------
Except as specifically set forth herein, each party hereto shall,
promptly after any request therefore by the other party hereto and at
the requesting party's sole cost and expense, take or cause to be
taken all actions, do or cause to be done all things, and execute and
deliver or cause to be executed and delivered all documents,
instruments, certificates, further assurances, or other papers, which
the requesting party may reasonably deem necessary, appropriate, or
desirable in connection with this Agreement and the consummation of
the transactions contemplated hereby.
18 NO PARTNERSHIP OR JOINT VENTURE
- ----------------------------------
Nothing in this Agreement is intended or shall be construed to
constitute or establish any agency, joint venture, partnership, or
fiduciary relationship of any kind, nature, or description whatsoever
between the parties, and neither party hereto shall have the right or
authority to act for or on behalf of the other party.
19 SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND CERTAIN COVENANTS
- -------------------------------------------------------------------
AND AGREEMENTS
- --------------
Notwithstanding anything to the contrary contained herein, each
party's representations and warranties contained herein, and all
statements contained in any document delivered by such party under
this Agreement or in connection herewith, and the covenants and
agreements contained in Sections 8, 9, 10, 13 and 15-34 shall survive
the termination or expiration hereof. Neither the period of survival
nor the liability of either party with respect to its representations
and warranties shall be reduced by any investigation made at any time
by or on behalf of such party. If either party hereto gives the other
party written notice of a claim prior to the expiration of the
applicable representation or warranty, then the relevant
representation or warranty, as the ease may be, shall survive as to
such claim until such claim has been finally resolved.
20 EXPENSES
- -----------
Except as otherwise provided herein, each party hereto shall pay its
own costs and expenses, including, without limitation, all fees and
disbursements of counsel to such party and its Affiliates, incurred by
or on behalf of such party in connection with the preparation,
negotiation, execution, and delivery of this Agreement.
21 ASSIGNMENT
- -------------
SCIDYN and @IPbell shall not assign their rights or interests or
delegate their obligations under this Agreement without the express
written consent of the other party (which consent may be granted or
withheld in such party's sole discretion; provided, however, that (a)
@IPbell may freely assign its rights and delegate its obligations
under this Agreement to (i) any affiliated Person, in which case
@IPbell shall not be relieved from its obligations hereunder, and (ii)
any Person acquiring all or substantially all of @IPbell's assets; and
(b) SCIDYN may freely assign its rights
- -11-
and delegate its obligations under this Agreement to any Person
acquiring all or substantially all of SCIDYN's assets.
22 AMENDMENT; WAIVER
- --------------------
No amendment or restatement hereof or supplement or other modification
hereto shall be valid or effective unless such amendment, restatement,
supplement, or other modification is in writing, expressly refers
hereto, and is signed by each party hereto. No consent to, or waiver,
discharge, or release of, any term or provision or breach hereof shall
be valid or effective unless such consent, waiver, discharge, or
release is in writing, expressly refers hereto, and is signed by the
party to be bound thereby, and no such consent, waiver, discharge, or
release shall constitute a consent, waiver, discharge, or release of
any other term or provision hereof or any subsequent breach hereof,
whether or not similar in nature, or a subsequent consent, waiver,
discharge, or release of the same term, provision, or breach hereof.
No failure to exercise or delay in exercising any right, power, or
remedy hereunder by either party hereto, including any failure to
insist in any instance upon strict, complete, or timely performance or
observance by the other party hereto of any term or provision hereof
or obligation hereunder, shall constitute a consent, waiver,
discharge, or release of any such right, power, or remedy, and no
single or partial exercise of any right, power, or remedy by either
party hereto shall preclude any other or further exercise of any such
right, power, or remedy.
23 ENTIRE AGREEMENT
- -------------------
This Agreement, including all annexes, appendices, exhibits, and
schedules hereto, constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all
prior or contemporaneous negotiations, covenants, agreements,
representations, warranties, undertakings, and understandings, written
or oral, and courses of conduct and dealing between the parties
hereto, with respect to the subject matter hereof.
24 SEVERABILITY
- ---------------
If any term or other provision hereof is determined by any court of
competent jurisdiction to be invalid, illegal, or unenforceable, in
whole or in part, by reason of any applicable law or public policy now
or hereafter existing, and such determination becomes final and
nonappealable, such term or other provision shall remain in full force
and effect to the fullest extent permitted by applicable law, and all
other terms and provisions hereof shall remain in full force and
effect in their entirety.
- -12-
25 SUCCESSORS AND ASSIGNS; NO THIRD-PARTY BENEFICIARIES
- -------------------------------------------------------
This Agreement shall be binding upon and inure solely to the benefit
of the parties hereto and their respective successors and permitted
assigns, and nothing herein, whether express or implied, is intended
to or shall confer upon any other Person any legal or equitable right,
power, or remedy of any kind, nature, or description whatsoever under
or by reason hereof; provided, however, that the terms and provisions
hereof relating to indemnification of any Indemnitee not a party
hereto shall inure to the benefit of such Indemnitee.
26 REMEDIES
- -----------
All rights, powers, and remedies hereunder of each party hereto shall,
to the fullest extent permitted by law, be cumulative and not
alternative, and in addition to all other rights, powers, and remedies
of such party, whether specifically granted hereunder or otherwise
existing under any applicable law, and may be exercised from time to
time and as often and in such order as such party may deem necessary,
appropriate, or desirable, and the exercise or the beginning of the
exercise of any right, power, or remedy shall not be construed to be a
waiver of the right to exercise at the same time or thereafter any
other right, power, or remedy.
27 GOVERNING LAW
- ----------------
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York.
28 WAIVER OF JURY TRIAL
- -----------------------
Each party hereto hereby unconditionally and irrevocably waives all
right to trial by jury in any action, suit, or proceeding (whether
based on contract, tort, or otherwise) based upon, resulting from,
arising out of, or relating to this Agreement or any transaction or
agreement contemplated hereby.
29 JURISDICTION; SERVICE OF PROCESS
- -----------------------------------
Each party hereto hereby unconditionally and irrevocably submits, for
itself and its property, to the exclusive jurisdiction of the
Designated Courts, over any Designated Action. All claims with respect
to any Designated Action shall be heard and determined in a Designated
Court. Neither party hereto shall commence any Designated Action
except in a Designated Court. Neither party hereto shall, and each
party hereto hereby waives any right it may have to: plead or make any
objection to the venue of any Designated Court; plead or make any
claim that any Designated Action brought in any Designated Court has
been brought in an improper or otherwise inconvenient forum; plead or
make any claim that any Designated Court lacks personal jurisdiction
over it; or seek any punitive damages in any Designated Action. Any
final Governmental Order in any Designated Action shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. The summons and complaint or any
other process in any Designated Action may be served by mailing to any
of the addresses set forth herein or by hand delivery to a person of
suitable age and discretion at any such address, and that any such
service shall be deemed to be complete three (3) Business Days
following the date such process is so mailed or upon receipt by such
addressee when delivered in person and to have the same force and
effect as personal service within the State of New York.
- -13-
"Business Days" shall mean any day except a Saturday, Sunday or other
day on which banks are required or authorized by law to be closed in
the City of New York.
"Designated Action" shall mean any Action based upon, resulting from,
arising out of, or relating to this Agreement or any transaction or
agreement contemplated hereby, or for the recognition or enforcement
of any judgment resulting from any such Action.
"Designated Court" shall mean any court of the State of New York and
any federal court of the United States of America, in either case,
sitting in the City and County of New York, and any appellate court
therefrom.
"Governmental Order" shall mean any order, writ, judgment, injunction,
decree, stipulation, determination, or award entered by or with any
Governmental Authority.
30 PREPARATION AND NEGOTIATION OF THIS AGREEMENT
- ------------------------------------------------
Each party hereto has participated equally in the preparation and
negotiation of this Agreement, including all annexes, appendices,
exhibits, and schedules hereto, and each party hereto hereby
unconditionally and irrevocably waives to the fullest extent permitted
by law any rule of interpretation or construction requiring that this
Agreement, including any annex, appendix, exhibit, or schedule hereto;
be interpreted or construed against the drafting party.
31 HEADINGS
- -----------
The descriptive headings contained herein are for convenience of
reference only and shall not affect in any way the meaning,
construction, or interpretation of any term or provision hereof.
32 EXHIBITS
- -----------
Each annex, appendix, exhibit, and schedule hereto is hereby
incorporated herein by reference in its entirety.
33 COUNTERPARTS
- ---------------
This Agreement may be executed in any number of counterparts and by
the different parties hereto in separate counterparts, each of which
when executed shall be deemed to be an original, and all of which
taken together shall constitute one and the same agreement with the
same effect as if such signatures were upon the same instrument.
- -14-
34 DELIVERY VIA TELECOPIER
- --------------------------
Delivery of an executed counterpart hereof via telecopier shall be as
effective as delivery of a manually executed counterpart hereof.
- -15-
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, which shall become effective on the latest date set forth
below.
SCIENCE DYNAMICS CORPORATION
SIGNATURE: /s/ Joy C. Hartman
---------------------
NAME: Joy C. Hartman
POSITION: President
Date: 2/11/00
@IPbell
SIGNATURE: /s/ Graham Butler
---------------------
NAME: Graham Butler
POSITION: Director
Date: 2/11/00
- -16-
Schedule 1
----------
WARRANTY AND MAINTENANCE
Science Dynamics Corporation (SCIDYN) warrants to its customers that
its hardware and software shall be free from defects in design,
material and workmanship for a period of one year from date of
shipment. During this period, SCIDYN will furnish software maintenance
at no charge for those items that directly effect system operation (as
defined by the System's User Documentation) and/or reliability. All
SCIDYN's products are serialized and the ship date can be determined
by the serial number.
Products sold as part of SCIDYN's system, but manufactured by others
such as, but not limited to, tape drives, printers, and PC's, carry
the full SCIDYN warranty.
Customers (Telephone Company or end user) must return directly to
SCIDYN, at the customer s risk and expense, any SCIDYN product that
has failed in normal service during said warranty period(s). The
failed product will be repaired or replaced, at the option of SCIDYN,
and returned to the customer at the risk and expense of SCIDYN. The
satisfactory correction of defects by repair or replacement shall
constitute the fulfillment of all obligations of SCIDYN with respect
to the product's warranty.
If the customer is experiencing an outage due to an item, and a
customer support representative indicates that an item is required,
SCIDYN will ship to the Customer that item within 24hrs of the service
call during a normal working week. Should a unit be found to be DOA
(Dead on Arrival) SCIDYN will incur the cost of shipping the DOA unit
back to SCDYN's premises. The faulty item must be returned to SCIDYN
within fifteen (15) working days, or the customer will be billed in
full for the item shipped. If customer is billed for an item due to
the lack of return, that item becomes the possession of the customer
and will require a RA number for SCIDYN for repairs.
WARRANTY EXCLUSIONS
- -------------------
SCIDYN shall have no obligation to honor warranty for any of the
following occurrences:
- - Installation of customer initiated software unrelated to SCIDYN
software
- - Alterations, modifications and/or repairs contrary to SCIDYN
instructions
- - Lack of general maintenance [filter cleaning, etc], other than
maintenance to be provided by SCIDYN
- - Damage resulting from abuse and/or misuse
- - Failure or surge due to electrical power
- - Failure due to environmental conditions [climate control]
- - Failure due to Force Majeure
- -17-
SCIDYN HEREBY DISCLAIMS ALL OTHER WARRANTIES EXPRESSED OR
IMPLIED FOR OUR PRODUCTS INCLUDING, BUT NOT LIMITED TO, THE
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
REPAIRS GENERAL INFORMATION
- ---------------------------
SCIDYN provides full product support for warranty repair. SCIDYN's
Field Service Department provides prompt analysis and repair of
subassemblies returned by the customer.
SCIDYN's repair turnaround objective is five working days in-house,
excluding OEM materials that must be repaired by the original
manufacture.
RETURN AUTHORIZATION
A Return Authorization (RA) number must accompany all units returned
to SCIDYN for repair. This number may be obtained by telephone from
SCIDYN's TAC (Technical Assistance Center) or Help Desk Department,
both of which warrant to be readily available and accessible via a
hotline 24 hours per day, 7 days per week. This number should be used
for all paperwork or telephone transactions between the customer and
SCIDYN. It should also be included with the returned unit and clearly
marked on the outside of the shipping container. All repair and return
components are handled in the following manner:
1. Customer telephones SCIDYN's TAC or Help Desk.
2. SCIDYN's representative will provide the customer with an RA number.
3. The customer will provide the failed component's serial
number, contact, phone number, and the return address for
the repaired component.
A description of the type of failure or trouble symptoms exhibited
should also accompany the unit in order to assist SCIDYN in expediting
the repair.
SCIDYN's repair turnaround objective is five working days in-house,
excluding OEM materials that must be repaired by the original
manufacture.
WARRANTY REPAIR
In-warranty components are repaired at no charge to the customer.
Shipping and insurance costs to SCIDYN for in-warranty components are
borne by the customer and are prepaid by SCIDYN upon return shipment.
Repair items within warranty will be covered by the original warranty
(one year from date of ship).
NON- WARRANTY REPAIR [including warranty exclusions]
- -18-
Post-warranty repair costs are one fourth of the component's list
price, with a minimum repair
charge of $300. These charges apply even if no failure or damage is
found. Shipping and insurance costs to and from SCIDYN for post-
warranty components are borne by the customer. Out of warranty items
will carry a 90 day warranty from date of repair.
UNAUTHORIZED REPAIRS
Material returned to SCIDYN for repair will be held at the receiving
area if received without:
- - RA Number
- - purchase order number [if required]
- - return delivery address
- - billing address
EMERGENCY REPLACEMENTS FOR NON WARRANTY PRODUCTS
Science Dynamics does not provide advance replacements for its
equipment on non-warranty systems.
Emergency shipment constitutes material that is requested to be
shipped before the normal 60 day Sales Order delivery. The Customer
must provide to SCIDYN a purchase order before the material is
shipped. There is a standard $50.00 handling charge for an emergency
replacement and the customer will be billed for the component at the
list price, plus shipping. A purchase order number and a billing
address must be received before an emergency shipment can be
processed.
- -19-
SCHEDULE 2
----------
Equipment Costs
C-2308 IP Telephony El Single Chassis Gateway
190214-1 Base System, including CPU, chassis, modem, 1
Windows NT 4.0, PC Anywhere
80311 TX-3210 1
80475 Dual T1 Telephony Card
80477 Dual E1 Telephony Card 2
8852-01 H.323 Runtime Licence (per port) 120
8853-01 G.723.1 Vocoder (per port) 120
IVR Software Licence (per port) 120
Belle Billing Interface (per chassis) 1
SCIDYN BubbleLink IP Telephony GW Software
Licence (per port) 120
Price: $78,000.00
C-2308 IP Telephony T1 Single Chassis Gateway
190214-1 Base System, including CPU, chassis, modem,
Windows NT 4.0, PC Anywhere 1
80311 TX-3210 1
80475 Dual T1 Telephony Card 2
30477 Dual El Telephony Card
8852-01 H.323 Runtime Licence (per port) 96
8853-01 G.723.1 Vocoder (per port) 96
IVR Software Licence (per port) 96
Belle Billing Interface (per chassis) 1
SCIDYN BubbleLink IP Telephony GW Software
Licence (per port) 96
Price: $62,400.00
190215-1 Rack Adapter assembly with QuickConnect(R)
For the adaptation of two chassis to one shelf.
Needs to be ordered with first pair of chassis
Upgrade Kit
80475 Dual T1 Telephony Card 2
80311 TX-3210 1
Related Software 1
Price: $62,400.00
- -20-
80447 Dual El Telephony Card 2
80311 TX-3210 1
Related Software 1
Price $78,000.00
Note: A node will consist of two chassis with an
initial port capacity of either 192 or 240 ports
Orders will be placed on a per node basis
All orders must include:
IP Address for each node
ISDN Routing Instructions
GateKeeper Lite Instructions
This information is not necessary for Upgrade Kits
Upgrade kits will include all relevant software as
specified in base chassis
System Training
- ---------------
@IPbell Test Center
Training shall be included at no charge to @IPbell employees or
@IPbell's business partners limited to the following -Cisco, Hewlett
Packard, Oracle, Belle, Open Systems, Iceland Telecom and Simplified
Telesys for a 12 month duration commencing with the signing of this
contract.
All other @IPbell affiliates shall be charged at the following rates:
Administration Training
@IPbell related business partners 4 per quarter Free of Charge
SCIDYN will charge $1000 per trainee for a Three-day residential course
in our classroom facilities at SCIDYN offices New Jersey. Cost covers
course only and excludes all other expenses.
Engineering Training
@IPbell related business partners 4 per quarter Free of Charge
SCIDYN will charge $1500 per trainee for a Five-day residential course
in our class room facilities at SCIDYN offices New Jersey. Cost covers
course only and excludes all other expenses.
Extended Software Warranty
- --------------------------
Provides access to software upgrades, does not include functional
upgrades where hardware changes may be involved. Price is based upon
amount of ports and charged as an annual fee (Subject to annual review).
Charge $10 per port per annum commencing one year from receipt of
equipment by @IPbell.
- -21-
SCHEDULE 3
----------
PRODUCT SPECIFICATION
IntegratorC-2300TM
C-2308 Basic Configuration (T1) 48 Ports expandable to 192 per chassis
C-2308 Basic Configuration (El) 60 Ports expandable to 240 per chassis
System Specification
- --------------------
Size: C2308 - 8.75" (22cm) Width x 8.75(22cm) Height
Rack-mount Chassis with CPU & PSU
With Crystal QuickConnect(R) cable management
system
Power: 95 to 135V AC or 180 to 270V AC
300 Watts Maximum
Temperature: 10 to +4O.C
Humidity: 10 to 90% non-condensing
Altitude: 10,000ft (3050 M)
Compression algorithm: G723
Interfaces
- ----------
Telephony ports: DSX-1 (T1) and CEPT G.703 (El) interfacing with
D3/D4 (T1) and CAS (El) Framing
Pulse, DTMF and MF dialing and detection
DID, OGT, E&M & MFC/R1/R2 protocols
World-wide approvals (list of countries available on
request)
LAN Interfaces: Standard 10BaseT
Other Interfaces: Dial-in Modem for remote support & software
upgrades
- -22-
Software
- --------
System: Bubble-LinkTM Software Architecture
Chassis Inter-connect Bubble-LinkTM Software
Belle Systems Real Time Interface
Call Detail Record Output
Voice: MSGSM & G.723.1 Voice Compression Algorithms
(13.4Kbps & 6.4Kbps)
Echo Cancellation
Silence Suppression
Background Regeneration
Gain Control
Fax: Real Time
Store and Forward
Additional Optional Features
- ----------------------------
New Compression Algorithms
New Compression Algorithms are becoming available and can be provided
as an upgrade at a customer's request. Cost available on request.
Additional Voice Prompts
Provides multi lingual voice prompts for automated operator collect
toll services. Cost available on request.
SS7 Interface
This provides standard interface to the public network carriers using
standard messaging protocols such as Q931. Analog Interfaces. Cost
available on request.
Analog Interfaces
Provides standard US analogue interface ports to standard POTS
telephones on terminating units. Cost available on request.
- -23-