Exhibit 10.8
Nortel Networks Inc.
Purchase Agreement
THIS AGREEMENT ("Agreement") by and between NORTEL NETWORKS INC., a Delaware
corporation ("Nortel Networks"), and LOG ON AMERICA, INC., a Delaware
corporation ("Company") is effective on the date last signed ("Effective Date").
The parties hereto agree as follows:
I. SCOPE
a) This Agreement sets forth the terms and conditions of Company's purchase of
Nortel Networks hardware ("Hardware") and the licensing of any software,
including associated documentation, ("Software") and any associated services,
including but not limited to, engineering, installation, maintenance, training
or repair ("Services"). "Products" shall mean individually and collectively, the
Hardware and Software.
b) Company shall purchase and/or license Products and Services with delivery and
installation in the United States for its own use and not for resale.
c) Supplemental terms for Company's purchase and/or license of various types of
Products may be incorporated herein by mutual written consent ("Supplemental
Terms Annex").
d) Company commits to purchase Products and Services as identified in Exhibit B,
to be shipped ("Committed Products") prior to March 31, 2000. Such Committed
Products shall be purchased under the terms and conditions of this Agreement, or
under the superseding provisions of a lease or loan agreement ("Financing
Agreement") which the parties intend to negotiate prior to shipment of those
Committed Products. Any Committed Products for which Company chooses to use
funds from the Financing Agreement shall hereinafter be referred to as "Financed
Product." The total purchase of the Committed Products shall be for an amount of
eight million ninety-three thousand six hundred and ninety-three dollars
($8,093,693) ("Commitment"). In the event Company does not submit Order(s) for
the total amount of the Commitment by March 1, 2000, then Nortel Networks shall,
on or about March 1, 2000 invoice Company for an amount equal to the difference
between the aggregate amount of the Commitment then due and the amount of the
Order(s) submitted against the Commitment by March 1, 2000, less any On-Site
Field Maintenance Services not utilized. The parties may mutually agree to
extend the March 31, 2000 date in the event there are circumstances beyond
either party's control.
2. TERM AND RENEWAL
This Agreement commences on the Effective Date and continues in effect for
twelve (12) months. Thereafter, it will automatically renew on the anniversary
hereof for additional terms of twelve (12) months each, unless either party
receives written notice from the other of its intent to terminate at least
thirty (30) days prior to the end of the then current term. Termination of this
Agreement shall not affect the rights or obligations of either party under any
accepted Order.
3. ORDERS
a) Nortel Networks may provide Company with a written quotation for Products and
Services ("Quotation"). Unless otherwise specified, the Quotation shall be valid
for ninety (90) days.
b) To purchase and/or license Products and/or Services, Company shall submit a
purchase order ("Order") to Nortel Networks specifying the following, if
applicable: (i) the types and quantities of Products and Services; (ii) the
applicable prices, charges and fees with respect to such Products and/or
Services; (iii) the Quotation number with respect to such Products and/or
Services; (iv) the addresses for delivery, performance and installation; (v) the
incorporation by reference of this Agreement; (vi) the requested ship date and
turnover date; (vii) the incorporation by reference of the Financing Agreement,
if all or part of the Order is for Financed Product; and (viii) any other
information required under this Agreement to be included in an Order.
c) Company, by issuing an Order for Products and/or Services, agrees to be bound
exclusively by the terms and conditions set forth herein. Any other terms and
conditions shown on any Order shall be deemed deleted and of no force and
effect. Orders are subject to acceptance by Nortel Networks; however, any Order
not rejected within fifteen (15) days of receipt by Nortel Networks shall be
deemed accepted. In the first Order for Financed Product, Company shall specify
the type of financing arrangement, by way of example, an operating or capital
lease, permitted under the Financing Agreement. All Orders for Financed Product
placed thereafter shall be governed by the same financing arrangement as
specified in such first Order.
d) Accepted Orders are non-cancellable without Nortel Networks' written consent.
Alterations, deductions or rescheduling to an accepted Order shall be mutually
agreed in writing, and Company may be subject to additional charges.
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e) Upon request, Company shall periodically submit to Nortel Networks a
non-binding forecast of specified Products that Company anticipates purchasing.
4. PAYMENT
Nortel Networks shall charge Company for any Product or Service ordered
hereunder in accordance with the price list then in effect or per written mutual
agreement. Company shall be invoiced as follows:
a) Invoices for any Product, including freight and insurance, are issued upon
delivery to the carrier at Nortel Networks' shipping point.
b) Invoices for Services are issued upon completion of the Services, except for
recurring Services which are invoiced quarterly or annually in advance.
c) All invoices shall be paid in full within thirty (30) days of the date
thereof, unless otherwise determined by a Financing Agreement, except that
payment for DMS Products shall be due as follows: twenty percent (20%) thirty
(30) days after Nortel Networks' receipt of the Order, forty percent (40%)
thirty (30) days after shipment of the Products, and forty percent (40%) thirty
(30) days after turnover of the Product to Company by Nortel Networks. For any
overdue payments, Nortel Networks shall be entitled to collect from company
interest charges, calculated daily from the date due, at one and one half
percent (1 1/2%) per month or such lesser rate as may be the maximum permissible
rate under applicable law.
5. TAXES
Company shall promptly pay directly or reimburse Nortel Networks all taxes and
charges imposed by any federal, state, or local governmental or taxing authority
relating to the purchase, ownership, possession, use, operation or relocation of
Products, excluding all taxes computed upon the net income of Nortel Networks,
unless Company provides a certificate of exemption for the applicable taxes
thirty (30) days prior to Product shipment.
6. SOFTWARE LICENSE
a) Subject to Company's payment to Nortel Networks of the applicable fees,
Nortel Networks hereby grants to Company, a personal, non-exclusive, right to
use the Software furnished to Company only in conjunction with Company's use of
the Hardware or other Nortel Networks' authorized material ("Licensed
Software"). Company is granted no title or ownership rights to the Software.
b) All Software shall be treated by Company as exclusive property of,
proprietary to, and a trade secret of Nortel Networks and/or its suppliers, as
appropriate, and Company shall: i) hold the Software, including any methods or
concepts utilized therein, in confidence for the benefit of Nortel Networks
and/or its suppliers; ii) not provide or make the Software available to any
person except to its employees on a 'need to know' basis and under the
confidentiality obligations set forth herein; iii) not reproduce, copy,
translate or modify the Software in whole or in part except as authorized by
Nortel Networks; iv) not attempt to decompile, reverse engineer, disassemble, or
in any other manner decode the Software; and v) upon termination of the license
for any reason, forthwith return the Software to Nortel Networks or certify the
destruction of the Software. In addition, Company shall abide by any additional
terms and conditions provided by Nortel Networks with respect to any Software of
any third party vendor or with respect to any Software accompanied by a
click-wrap or shrink-wrap license.
c) Company shall not have the right to (i) assign this license to use the
Licensed Software to any other person who acquires legal title to such Hardware
without the written consent of Nortel Networks, such consent not to be
unreasonably withheld; or (ii) sublicense the rights herein granted as to such
Licensed Software to any person who subsequently acquires the right to use such
Hardware without the written consent of Nortel Networks, such consent not to be
unreasonably withheld. Company shall indemnify and hold Nortel Networks and its
suppliers harmless from any loss or damage resulting from a breach of this
Article.
d) Certain Licensed Software, identified by Nortel Networks in the applicable
documentation, is based upon modular software architecture that by its nature is
intended to be modified ("Modifiable Software") to create derivative software
applications or files ("Applications"). Unless otherwise mutually agreed in
writing, Nortel Networks owns all intellectual property rights for any
Applications created by Nortel Networks, and Company shall own all intellectual
property rights for any Applications created by Company, provided that Company
shall have no intellectual property right in the Licensed Software from which
such Application was derived. NORTEL NETWORKS SHALL HAVE NO LIABILITY TO COMPANY
OR ANY THIRD PARTY WITH RESPECT TO ANY CLAIMS OR DAMAGES ARISING OUT OF THE
MODIFICATION OR CREATION OF ANY APPLICATION BY COMPANY.
e) Software may include "Non-Licensed Software" defined as (i) Software for
which the applicable right to use fees have not been paid; (ii) Software for
which a periodic right to use fee has expired; or (iii) Software for which the
incremental right to use fee is based upon additional feature activation or a
measure of usage (based upon the number of lines, ports, sites, users, or
assigned terminals or some other measure). Company shall submit to Nortel
Networks an Order for any Non-Licensed Software that Company desires to license,
renew or expand beyond the specified
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usage level. The incremental or additional right to use fee shall be invoiced
upon Nortel Networks providing the additional Software to Company, whether via
issuance of a new activation code, electronically downloading or by shipment of
Software media. The activation of Non-Licensed Software shall not extend the
warranty period of the Software.
f) Nortel Networks may access by remote polling any site in which Software has
been installed to determine if any Non-Licensed Software has been activated.
Nortel Networks shall issue invoices to Company, in addition to those amounts
previously invoiced, for amounts payable including interest charges at the rate
specified in Article 4 hereof, as applicable, as a result of Company's
activation and/or usage of any Non-Licensed Software which Nortel Networks
determines as a result of remote polling. Nortel Networks shall be responsible
for any damages caused by such polling activity to the extent permitted
hereunder.
g) For support and warranty to be applicable, Company shall operate the Software
at Nortel Networks' current Software release level or within at least two (2)
previous Software release levels unless specified otherwise in Nortel Networks'
documentation.
7. TITLE AND DELIVERY
Risk of loss or damage to Products shall pass to Company upon delivery to the
initial delivery location. Title to the Hardware shall pass to Company upon
Company's final payment of the total purchase price and any additional monies
due. Notwithstanding the above, good title to any Hardware that is Financed
Product shall vest in Company only at such time as when Company has fulfilled
all financial and other requirements associated with the passage of title under
the Financing Agreement. Freight and insurance shall be invoiced to Company.
Company hereby grants Nortel Networks a purchase money security interest in the
Products and proceeds thereof until the total amount payable to Nortel Networks
on account of such Products is satisfied. Company shall cooperate in the
execution, preparation and filing of such instruments as Nortel Networks deems
necessary to perfect and maintain such security interest. Company authorizes
Nortel Networks to file financing or continuation statements and amendments
thereto, relating to all or any part of the Products in an Order without
signature of the Company where permitted by law. A reproduction of any financing
statement covering the Products or any part thereof shall be sufficient as a
financing statement and may be filed as such.
8. ACCEPTANCE
a) If Nortel Networks accepts a furnish-only Order from Company, Nortel Networks
shall, prior to delivery, perform such factory tests as Nortel Networks deems
appropriate to confirm that such Products are in accordance with the standard
applicable specifications identified by Nortel Networks ("Specifications").
Company shall be deemed to have accepted such Products upon receipt thereof at
the initial delivery location.
b) When an accepted Order requires installation Services, Company shall have the
installation sites(s) ready on time and in accordance with Nortel Networks'
requirements. Company shall reimburse Nortel Networks for additional expenses,
including storage costs, and all Products shall be deemed shipped and delivered
for all purposes upon storage. Acceptance by Company of an installed Product
shall be deemed to have occurred upon completion of Nortel Networks'
installation Services in accordance with Nortel Networks' procedures and
practices, as evidenced by test results showing that the Product meets the
applicable parameters in the Specifications. Acceptance shall not be postponed
due to any deficiencies not imputable to Nortel Networks, including but not
limited to, incompleteness or inaccuracy of information provided by Company and
inadequacy or deficiencies of equipment or services supplied by Company and
tested in conjunction with the Product. Unless it occurs earlier, acceptance
shall be deemed upon placement of any Product into revenue-generating service.
c) To the best of Company's knowledge and prior to issuing any Order for
Services, Company shall notify Nortel Networks in writing of the existence of
all hazardous materials as defined in any applicable federal, state or local
environmental law, ordinance, rule or regulation ("Hazardous Materials") that
Nortel Networks may encounter during the performance of such Services. If
Company breaches such obligations, (i) Nortel Networks may discontinue the
performance of the Services until all Hazardous Materials have been removed at
Company's expense; and (ii) Company shall defend, indemnify and hold Nortel
Networks harmless from any and all damages, claims, losses, liabilities and
expenses, including attorney's fees, which arise out of Company's breach of such
obligations.
9. PRODUCT WARRANTY
a) Nortel Networks warrants (i) the Hardware to be free from defective materials
and faulty workmanship attributable to Nortel Networks; (ii) the Licensed
Software to be free from any material, service-affecting nonconformance to the
Specifications; and (iii) the installation Services to be free from defects in
workmanship during the warranty period ("Warranty Period"). The Warranty Period
varies based upon Product type. Unless otherwise specified in writing in the
Quotation, Supplemental Terms Annex, price list or Specifications, the Warranty
Period for Hardware and Software shall be twelve (12) months from the ship date
and the Warranty Period for installation Services shall be twelve (12) months
from the completion date.
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b) Warranty coverage shall be limited to the repair or replacement, at Nortel
Networks' discretion, of defective hardware and for labor associated with
Hardware replacement. Any Hardware repaired or replaced during the Warranty
Period shall be warranted in accordance herewith for the greater of ninety (90)
days from the date the repair is effected or the replacement is shipped or the
balance of the original Hardware Warranty Period. Replacement Hardware may be
new or reconditioned to perform as new, at Nortel Networks' option.
c) If Licensed Software fails to so function, Nortel Networks' sole obligation
under this warranty is to, at Nortel Networks' option, repair, modify or take
such other action as Nortel Networks deems appropriate to remedy such failure.
d) The warranties provided herein shall not apply where the non-conformance is
due to (i) accident, fire, explosion, power failure, power surge or other power
irregularity not attributable to Nortel Networks provided equipment, lightning,
alteration, abuse, misuse or repair not performed by Nortel Networks; (ii)
improper storage; (iii) failure to comply with all specified applicable
environmental requirements for the Products; (iv) improper installation,
maintenance, operation or other service in connection with the Products not
performed by Nortel Networks; (v) use in conjunction with an incompatible
product or a product not purchased from Nortel Networks; (vi) any error, act or
omission by anyone other than Nortel Networks; or (vii) where written notice of
the defect has not been given to Nortel Networks within the applicable Warranty
Period.
e) The warranties set forth herein shall not apply to any (i) hardware not of
Nortel Networks manufacture, software not owned by Nortel Networks or
Applications created by Company; and (ii) any Non-Licensed Software activated
without Nortel Networks' consent. Nortel Networks shall pass through to Company
any warranty rights granted to Nortel Networks by the vendor of any third party
hardware or software. In addition, the foregoing warranties shall not apply to
items normally consumed during Product operation such as but not limited to
lamps and fuses.
f) THE WARRANTIES AND REMEDIES SET FORTH HEREIN CONSTITUTE THE ONLY WARRANTIES,
OBLIGATIONS OR CONDITIONS OF NORTEL NETWORKS WITH RESPECT TO THE PRODUCTS AND
SERVICES AND ARE COMPANY'S SOLE AND EXCLUSIVE REMEDIES IN THE EVENT THAT SUCH
WARRANTIES ARE BREACHED. THEY ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS,
WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
NORTEL NETWORKS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST REVENUES OR PROFITS OR OTHER
ECONOMIC LOSS, OF ANY NATURE WHATSOEVER ARISING OUT OF NORTEL NETWORKS' BREACH
OF WARRANTY OR CONDITION. NORTEL NETWORKS SHALL NOT BE RESPONSIBLE FOR ANY
WARRANTY OFFERED BY COMPANY TO ANY CUSTOMER(S) OF COMPANY.
10. CONFIDENTIAL INFORMATION
a) For the purposes hereof, "Information" shall mean all confidential or
proprietary information, including but not limited to, specifications, trade
secrets, drawings, documentation, know-how and pricing information, of every
kind or description which may be disclosed by one party to the other party in
connection with this Agreement; provided that, the disclosing party shall
clearly mark all such information disclosed in writing as such and, in the case
of oral disclosure, the disclosing party shall identify the confidential or
proprietary nature of any such information at the time of such oral disclosure
and shall provide a written summary of such information to the recipient within
fifteen (15) business days following such disclosure.
b) Each party which receives the other party's Information shall use reasonable
care to hold such Information in confidence and not disclose such Information to
anyone except its employees and employees of a Nortel Networks affiliate with a
need to know. The receiving party shall not reproduce Information, except to the
extent reasonably required for the performance of its obligations pursuant to
this Agreement and in connection with any permitted use of such Information.
Company shall take reasonable care to use Nortel Networks' Information only for
study, operating, or maintenance purposes in connection with Company's use of
Products furnished by Nortel Networks pursuant to this Agreement. Company will
comply with any limitations on use contained in documentation provided
hereunder.
c) The obligations of either party pursuant to this Article shall not extend to
any Information which (i) a recipient can demonstrate through written
documentation was already known to the recipient prior to its disclosure to the
recipient; (ii) becomes known or generally available to the public (other than
by act of the recipient) subsequent to its disclosure to the recipient; (iii) is
disclosed or made available in writing to the recipient by a third party having
a bona fide right to do so and without similar confidentiality obligations; (iv)
is independently developed by recipient as demonstrated by the business records
of the recipient; or (v) is required to be disclosed by subpoena or other
process of law, provided that the recipient shall notify the disclosing party
promptly of any such subpoena or other process of law requiring disclosure.
II. EXCUSABLE DELAYS
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Except as otherwise provided herein, neither party shall be liable for any
delay, loss or damage resulting from any cause beyond its reasonable control,
such as, but not limited to, compliance with any law, order, regulation, or
ordinance; fire, explosion, or act of nature; labor difficulties, unavailability
of supplies of energy or power; or acts of third parties.
12. PATENTS, TRADEMARKS AND COPYRIGHT
a) Nortel Networks shall, at its own expense, defend Company in any legal action
in the United States, alleging that any Product or any portion thereof, other
than a third party product not incorporated during Nortel Networks'
manufacturing process, directly infringes any United States patent, trademark or
copyright, whether the infringement pertains to the manufacture, purchase, sale
or use of the Product or any portion thereof (an "Infringement Claim"). Such
defense is subject to the Product not having been modified by Company and having
been utilized in the manner specified by Nortel Networks. In any such legal
action Nortel Networks will satisfy any final award for infringement. As a
condition of such defense by Nortel Networks, Company shall notify Nortel
Networks promptly in writing upon becoming aware of any pending legal action and
shall cooperate fully with Nortel Networks in the defense or settlement of same.
Nortel Networks shall have sole control over the selection of counsel and the
defense and settlement of such legal action. Upon notification by Nortel
Networks of an actual or potential Infringement Claim which Nortel Networks
deems significant, Company shall return to Nortel Networks the affected
Product(s) in return for a refund of the depreciated value, as carried on
Company's books, of the Product(s) so returned.
b) If by reason of any such legal action Company shall be prevented from using
any Product, Nortel Networks shall at its option and expense:
(1) procure for Company the right to continue using the alleged
infringing Product(s);
(2) replace or modify the same an equivalent Product(s) so that
Company's use is non-infringing; or
(3) accept return of the affected portion of the Product(s) and refund
to Company the depreciated value (as carried on the Company's books)
of such Product(s).
c) Nortel Networks shall have no liability in respect of any Infringement Claim
based on the use of a Product in the event that such Product: (i) is
manufactured, designed or supplied by Nortel Networks in accordance with any
design or special instruction furnished by Company; (ii) is used by Company in a
manner or purpose not contemplated or allowed by this Agreement; (iii) is used
by Company in combination with other products not provided by Nortel Networks,
including any software developed by Company through the permitted use of
Products furnished hereunder, provided that the Infringement Claim arises from
such combination or the use thereof; or (iv) is modified by Company without
Nortel Networks' authorization or, in the case of Modifiable Software, any
Company created Applications. In such cases, Company shall indemnify and hold
Nortel Networks harmless against any loss, cost, expense, damage, settlement or
other liability, including but not limited to, attorneys' fees, which may be
incurred by Nortel Networks with respect to any Infringement Claim. Nortel
Networks shall not be liable for, and Company shall indemnify Nortel Networks
for, any Infringement Claim of which Nortel Networks has notified the Company,
and Company continues use of the affected Product.
d) Nortel Networks' cumulative liability to Company shall not exceed one hundred
percent (100%) of the purchase price of the Product giving rise to the
Infringement Claim(s).
e) THE PROVISIONS OF THIS ARTICLE SHALL CONSTITUTE THE EXCLUSIVE RECOURSE OF
EACH PARTY AND THE ENTIRE LIABILITY OF EACH PARTY WITH RESPECT TO ANY ACTUAL OR
ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT OR TRADEMARK RIGHTS.
13. LIABILITY
Each party hereto shall indemnify and hold the other harmless from any
liabilities, claims or demands, including the costs, expenses and reasonable
attorney's fees on account thereof, that may be made by anyone for bodily
injuries, including death, or damage to tangible property, resulting from the
infringement of property rights or others, negligence and/or willful misconduct
of that party, its employees or agents in the performance of this Agreement.
Each party shall defend the other at the other's request against any such
liability, claim or demand. Each party shall notify the other promptly of
written claims or demands against such party of which the other party is
responsible hereunder. If the damage is so determined to be from the negligence
or willful misconduct of both parties, then any such damages or costs, including
reasonable attorneys' fees, shall be allocated between the parties in accordance
with the respective percentages of fault.
14. DEFAULT
a) In the event of any material breach of this Agreement, including but not
limited to, any nonpayment of any amount due Nortel Networks hereunder or
default of Company under the Financing Agreement where such default has not been
cured within the applicable cure period provided therein, by either party which
shall continue for thirty (30) or more days after written notice of such breach,
including a reasonably detailed statement of the nature of such breach, shall
have been given to the breaching party by the aggrieved party, the aggrieved
party shall be
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entitled, subject to any limitations contained in this Agreement, to avail
itself of any and all remedies available at law or equity, and if the aggrieved
party is Nortel Networks, to suspend performance of all of its obligations
hereunder for so long as the breach continues uncorrected.
b) Nortel Networks may suspend its performance by written notice to Company and
forthwith remove and take possession of any portion of any Product to which
Nortel Networks holds title, or a perfected security interest, if Company, prior
to payment to Nortel Networks of the total purchase price and all additional
monies due, becomes insolvent or bankrupt, makes a general assignment for the
benefit of, or enters into any arrangement with, creditors, files a voluntary
petition under any bankruptcy, insolvency, or similar law, or has proceedings
under any such laws or proceedings seeking appointment of a receiver, trustee or
liquidator instituted against it which are not terminated within thirty (30)
days of such commencement.
c) IN NO EVENT SHALL NORTEL NETWORKS BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER FOR ANY
BREACH OF THIS AGREEMENT OR OTHERWISE. THIS LIMITATION SHALL SURVIVE ANY
TERMINATION OF THIS AGREEMENT.
d) Except for actions to enforce payment of any amounts due hereunder, any
action for breach of this Agreement or to enforce any right hereunder shall be
commenced within three (3) years after the cause of action accrues or it shall
be deemed waived and barred.
15. ASSIGNMENT
Neither Company nor Nortel Networks may assign or transfer this Agreement or any
rights hereunder without the prior written consent of the other, such consent
not to be unreasonably withheld. Notwithstanding the foregoing, Nortel Networks
may assign or subcontract this Agreement or any of its obligations hereunder to
its parent or any affiliated company. Company hereby consents, without
qualification, to the sale of receivables by Nortel Networks without the
necessity of further notice thereof and Nortel Networks may disclose the
provisions of this Agreement to prospective purchasers of such receivables
thereof, and their agents.
16. GOVERNING LAW
The construction, interpretation and performance of this Agreement shall be
governed by the laws of the State of Delaware, except for its rules with respect
to the conflict of laws.
17. NOTICE
All notices given hereunder shall be in writing and are deemed given when
delivered by (i) hand; (ii) facsimile transmission (confirming the same by
mail); (iii) certified mail; or (iv) overnight delivery service addressed as
follows:
If to Company:
Log On America, Inc.
3 Regency Plaza
Providence, Rhode Island 02903
Attention: David R. Paolo
Facsimile: (401) 459-6222
If to Nortel Networks:
Nortel Networks Inc.
4001 East Chapel Hill -- Nelson Hwy.
Research Triangle Park, N. Carolina 27709
Attention: VP, Marketing - Contracts
Facsimile: (919) 997-4495
Either party hereto may change its address by a notice given to the other party
hereto in the manner set forth above.
18. ADDITIONAL TERMS
a) Company shall not export, nor cause or allow to be exported by Company's
actions or inactions, Products or technical information received hereunder to
any country or foreign nationals of any country except in compliance with United
States laws and regulations concerning export and with the prior written
permission of Nortel Networks. Company shall obtain all required government
authorizations prior to undertaking export of Products or technical information.
b) Any terms of this Agreement which by their nature are intended to survive
shall survive the termination of this Agreement.
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c) Notwithstanding the provisions of Article 4, in the event of any change in
the Specifications, manufacturing or delivery processes as a result of
imposition of governmental requirements, Nortel Networks may, upon prior notice
to Company, increase its prices, charges and fees to cover Nortel Networks'
direct and indirect costs resulting from such change.
d) If any provision hereof is determined to be legally unenforceable or invalid,
the remaining provisions shall continue in full force and effect and the parties
shall substitute a provision which most closely approximates the economic effect
and intent of the invalid provision. This Agreement may not be altered or
amended except in writing expressly intending such alteration or amendment and
signed by authorized representatives of each party hereto. Company acknowledges
that it has not relied on any representations or warranties other than those
expressly set forth in this Agreement.
e) A party shall not release any advertising or other publicity relating to this
Agreement or the contents hereof without the prior written approval of the other
party. Each party shall take reasonable precautions to keep the existence and
the contents of this Agreement confidential so long as this Agreement remains in
effect and for five (5) years thereafter, except as may be otherwise expressly
provided in this Agreement or as may be reasonably required to enforce this
Agreement by law.
f) The failure by either party hereto at any time to require performance by the
other party or to claim a breach of this Agreement shall not be construed as
affecting any subsequent breach or the right to require the performance with
respect thereto.
g) This Agreement, applicable Supplemental Terms Annex(es) and Exhibits B and C
which are incorporated herein, comprise all the terms, conditions and agreements
of the parties hereto with respect to the subject matter hereof and supersedes
all previous negotiations, proposals, commitments, writings, publications and
understandings of any nature whatsoever.
IN WITNESS WHEREOF, the parties by their duly authorized representatives have
executed this Agreement.
NORTEL NETWORKS INC
By: ______________________________
Title: ___________________________
Date: ____________________________
LOG ON AMERICA, INC.
By: ______________________________
Title: ___________________________
Date: ____________________________
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