EXHIBIT 10.6
PURCHASE AND RESALE AGREEMENT
This Agreement is entered into by and between EXCEL, INC., a corporation
organized under the laws of the Commonwealth of Massachusetts, with its usual
place of business at 355 Old Plymouth Road, Sagamore Beach, Massachusetts
(hereinafter called "Excel") and
BOSTON TECHNOLOGY, INC., whose address is, 100 Quannapowitt Parkway
Wakefield Ma.(hereinafter called "BTI"). This agreement shall constitute the
entire agreement between the parties and shall supersede any and all previous
agreements with respect to the subject matter hereof.
1. EQUIPMENT PURCHASE AND SOFTWARE LICENSE
a. BTI agrees to purchase and by its acceptance, Excel agrees to sell
and/or license (as applicable), on the terms set forth below, the equipment and
spare parts together with all applicable Software, as that term is further
defined below (collectively referred to as the "Products") listed on the
attached Exhibit I or listed on any of BTI's purchase orders referencing this
Agreement ("Purchase Orders").
b. This Agreement shall not constitute an obligation of BTI to purchase
and/or license any Product(s) unless either (a) implemented by Purchase Orders
issued by BTI, or (b) Otherwise required by Exhibit II.
c. The parties agree that each of BTI's Purchase Orders shall be only an
offer to enter into a contract. Subject to the parameters of Exhibit II, BTI may
revoke, amend or modify each Purchase Order at any time prior to Excel's
acceptance of same.
d. Within five (5) days of receipt of a Purchase Order, Excel shall issue
a Sales Order or similar notice acknowledging its acceptance or rejection of
BTI's Purchase Order and advising BTI of Excel's delivery schedule. Excel's
failure to issue a Sales Order or similar notice within said five (5) day time
period shall constitute Excel's acceptance of BTI's Purchase Order.
2. PRICES
a. The prices, license fees, and other charges for the Products are set
forth in Excel's price list as attached as Exhibits I and II of this Agreement,
prices to be amended from time to time. Any change in prices will become
effective ninety (90) days after Excel has delivered notice of such change to
BTI in writing, and all orders accepted by Excel at expiration of said ninety
day notice period shall be invoiced at the new price.
Excel agrees that it shall, for all sales of its equipment to BTI , limit
said price increases to 15 % per year, for two years, which period shall begin
to run on upon the signing hereof.
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Notwithstanding the above, BTI shall be entitled to rely on those prices in
effect on Exhibits I and II at the time it gives written quotes to its
customers. Any increase in such prices made in accordance with the previous
paragraph will not apply to Purchase Orders subsequently issued by BTI in
connection with such quotes, provided Purchase Order issuance occurs not later
than six months after the corresponding quote. BTI must furnish to Excel copies
of any such quotes in order for this paragraph to become binding upon Excel.
b. Purchase Orders accepted by Excel shall not be subject to such price
increases before the end of said ninety (90) day period. All prices expressed
and all payments made must be in U.S. dollars. The prices shown are F.O.B.
Excel's plant.
c. Prices are exclusive of all federal, state, local, municipal, or other
excise, sales, use, occupation, or similar taxes now in force or enacted in the
future, all of which shall be paid by BTI exclusive of Excel's income taxes. BTI
shall not be responsible for any tax levied or based upon the income of Excel.
Excel may invoice BTI for any such taxes and remit any payments made on such
invoice directly to the appropriate taxing authorities. It shall be BTI's
responsibility to provide written proof, satisfactory to Excel of any applicable
tax exemptions.
d. The prices for Products contained herein, with applicable discounts
and with any increase permitted hereunder, shall be at least as favorable as
these prices and discounts offered by Excel to any of its other customers for
comparable Products. If Excel at any time extends to any other customer lower
prices or higher discounts for any Products, then Excel shall promptly notify
BTI in writing and extend such favorable prices or discounts to BTI as of the
date such prices or discounts were first offered to any other customer of Excel.
If, after the effective date of a resulting price decrease, BTI shall have
overpaid for affected Products at the preexisting price, then the amount of the
overpayment shall be allowed as a credit against the price of Products on an
existing Purchase Order for which payment has not been made.
Notwithstanding the above, EXCEL may, at its sole option and discretion,
provide more favorable pricing or greater discounts to third parties purchasing
limited numbers of systems (i) for Product evaluation, testing, developmental or
beta site installations, or (ii) as an inducement to a third party to order
Products in quantity, without triggering this provision.
3. PAYMENT
a. Payment for Products is due on or before the date specified on Excel's
invoice, that is, net thirty (30) days after receipt of Product or invoice
whichever is later.
b. All balances due Excel by BTI not paid within thirty (30) days after
due date shall accrue a late payment fee equal to 1.5% per month on such unpaid
amounts together with all costs and expenses including reasonable attorney's
fees incurred by Excel in collecting such overdue amounts. Any payment made by
BTI to Excel shall first be applied to the late payment fees and costs and
expenses incurred in collection and then to the oldest invoice due, regardless
of any contrary instructions received from BTI.
4. DELIVERY
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a. Excel's normal delivery schedule is ninety (90) days after receipt and
acceptance of an order. This delivery schedule is expressly conditioned upon the
accuracy of the Product purchase forecast and volume purchase commitments
supplied to Excel by BTI in Exhibit II to this Agreement. Should BTI desire to
shorten (or lengthen) said delivery schedule, Excel shall use reasonable efforts
to comply with BTI'S request. Excel shall, within two (2) business days of such
request, notify BTI if additional charges are required to facilitate any
expedited delivery. BTI shall have 24 hours from said notification to elect to
proceed with expedited delivery at the specified additional cost or to proceed
under the normal delivery schedule at the original price.
b. Excel will not assume any liability in connection with shipment for
any loss or damage caused by any carrier. Upon request, shipments will be
insured at the BTI's expense, and BTI shall be responsible for making claims
with carriers, insurers, warehousemen, and others for its and/or their
misdelivery, nondelivery, loss, damage or delay.
c. BTI may inspect and test all Products at reasonable times during and
after manufacture. If any such inspection or test is to be made on Excel's
premises, BTI shall first give Excel 10 days notice in writing of its desire to
make such inspection. Excel shall provide reasonable facilities and assistance
for the safety and convenience of BTI's inspectors in such manner that shall not
unreasonably hinder or delay Excel's performance. All Products shall be received
subject to BTI's inspection, testing, approval and acceptance at its premises,
notwithstanding any inspection or testing at Excel's premises or any prior
payment for such Products. Products rejected by BTI as not conforming to the
relevant Purchase Order or to Excel's or BTI's Specifications (as applicable)
may be returned to Excel at BTI's risk and expense and shall not be replaced by
Excel without BTI's written authorization.
5. SHIPMENT, RISK OF LOSS, TITLE
a. All Products shall be packaged, marked and otherwise prepared for
shipment by Excel in suitable containers in accordance with BTI's packing and
shipping specifications for such Products, or if no such specifications are
given to Excel, in accordance with sound commercial practices. Excel shall mark
on such containers all necessary handling, loading and shipping instructions. An
itemized packing list shall be included with each shipment. Bills of lading
shall be mailed to BTI in triplicate. BTI agrees to assume any additional
packaging costs incurred by Excel in complying with BTI'S packaging
specifications.
b. All Products under this Agreement shall be delivered to BTI F.O.B.
Excel's plant and delivery of Products to the common carrier or a licensed
trucker of BTI'S choice, shall constitute delivery to BTI.
c. Title and risk of loss for the Product shall pass to BTI upon delivery
to the common carrier or licensed trucker of BTI's choice.
d. Excel will not assume any liability in connection with shipment for
any loss or damage caused by any carrier. Upon request, shipments will be
insured at BTI's expense, and BTI shall be responsible for making claims with
carriers, insurers, warehousemen, and others for its and/or their misdelivery,
non-delivery, loss, damage or delay.
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e. All transportation, rigging, and similar costs and charges shall be
paid by BTI. Excel may, however, invoice BTI for any such charges and remit
payments directly to the shipper.
6. ADDITIONAL ORDERS
Intentionally Deleted
7. SOFTWARE LICENSE AND SUBLICENSE
a. Definitions
As used in this Agreement:
"Programs" or "Software" shall mean all computer programs in machine
readable form furnished by Excel as a Licensor and all Sublicensed Programs (as
that term is defined below) furnished by Excel as a Sublicensor to BTI and
further described in Exhibit I of this Agreement and any Supplement thereto,
including related supporting materials iii machine readable, printed or other
form, and any other updates, improvements or revisions which are furnished by
Excel to BTI;
"Sublicensed Programs" shall mean any Programs which are owned by a third
party and sublicensed under Agreement by Excel to BTI;
"Designated Equipment" shall mean a single LNX, PCX, or XLDX, designated
with a single Excel system serial number and all associated equipment, produced
or supplied by Excel.
"Documentation" shall mean any written and or printed materials that may
accompany the Products, Software or Programs, or may be furnished by Excel to
BTI subsequent to BTI'S receipt of said Products, Software or Programs.
"Product Specifications" shall mean the specifications for the Products
which have been developed by Excel or BTI (as the case may be.)
b. License and Sublicense
Subject to the terms and conditions of this Agreements Excel hereby grants,
and BTI hereby accepts, a perpetual, worldwide, non-terminable, non-exclusive
license (in the case of Programs proprietary to Excel) or sublicense (in the
case of Programs owned by third parties), to use, and/or distribute directly or
through a sublicensee or a succession of sublicensees to an end user to use
(i.e. BTI and successive end-users may assign their sublicense to use), each
Program and Sublicensed Program in connection with the Designated Equipment (and
no other Excel base unit) except for EXCEL equipment replacing Designated
Equipment) on which such Program and Sublicensed Program is first installed and
as the same may be connected with any associated hardware and software, whether
from Excel, BTI or a third party. The price established in this Agreement for a
Program and/or Sublicensed Program shall be the only consideration due in
connection with that Program and/or Sublicensed Program. BTI agrees that the
owner of
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Sublicensed Programs shall, with respect to those Sublicensed Programs, have the
right to enforce the terms and conditions of this sublicense against BTI. BTI's
rights to license and sublicense hereunder shall terminate upon the termination
of this Agreement, provided that (i) the termination of such rights shall not
affect licenses and sublicenses previously granted by BTI, (ii) such termination
will not affect BTI's right to grant licenses and sublicenses with respect to
Products accepted and paid for by BTI at the time of such termination, and (iii)
BTI shall have the limited right to retain and use the Products to the extent
necessary and to fulfill BTI's obligations to support existing license and
sublicenses.
c. Title to Programs
Title to and ownership of the Programs, including all patents, copyrights,
trade secrets, and proprietary property rights applicable thereto, shall at all
times remain solely and exclusively with Excel or the owner of a Sublicensed
Program, as the case may be, and BTI shall not take any action inconsistent with
such title and ownership. BTI acknowledges Excel's representation that the
Software is "Restricted Computer Software" as that term is defined in Subpart
227.471 of the Department of Defense Federal Acquisition Regulation Supplement
(DFARS).
BTI agrees to ensure that if any Software or Documentation will be supplied
to a unit or agency of the United States government, whether by BTI or by any of
the users to whom BTI directly or indirectly supplies the same, it may only be
done by written contract in which:
i. If the Software is supplied to the Department of Defense,
(DoD), the government agrees that the Software will be classified as "Commercial
Computer Software" and that the governments acquiring only "restricted rights"
in the Software and Documentation as that term is defined in Clause 252.2277013
(c) (1) of the DFARS and
ii. If the Software is supplied to any unit or agency of the United
States government other than DoD, the government agrees that the governments
rights in the Software and Documentation will be as defined in clause 52.22719
(c) (2) of the FAR.
BTI acknowledges Excel's representation that the Software and Documentation
were developed at private expense and no part of them is in the public domain.
d. Protection of Programs
BTI acknowledges that Excel and/or the respective owners of the Sublicensed
Programs have proprietary interest in the Licensed Programs and the Sublicensed
Programs respectively, and BTI shall hold such programs in complete confidence.
BTI shall not, without the prior written consent of Excel, disclose or otherwise
make available such Programs and Sublicenses Programs in any form to any person
other than BTI's employees and agents and BTI's end-user customers, distributors
and dealers ("BTI's Customers"). The Programs and Sublicensed Programs shall not
be copied (other than for backup purposes) or modified, in whole or in part,
without the prior written consent of Excel, nor shall BTI translate, reverse
engineer, decompile or disassemble the same without the prior written consent of
Excel.
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BTI shall not remove or obscure any copyright, patent, trademark, trade
secret or similar notice affixed to any Program or Sublicensed Program and shall
reproduce and affix such notices or any copies or modifications of the Programs
permitted by Excel. Under no circumstances will the source codes for the
Programs be disclosed by BTI. BTI shall take appropriate action, by instruction,
agreement, or otherwise with respect to any persons permitted access to the
Programs and Sublicensed Programs, in order to enable BTI to satisfy its
obligations hereunder.
e. Terms of License
Should BTI fail to comply with any of the material terms or conditions of
this Agreement, Excel may, upon two (2) days prior written notice to BTI of its
intent to do so, terminate any license granted herein to BTI. Unless so
terminated, each license and sublicense granted in this Agreement for the use of
the Programs and Sublicensed Programs shall remain in force until BTI
discontinues the use of the Programs and Sublicensed Programs on the Designated
Equipment. Within thirty (30) days after the BTI has discontinued the use of the
Programs and Sublicensed Programs or within ten (10) days after Excel has
terminated any license or sublicense thereto, BTI shall destroy or return to
Excel the original and all copies (including partial copies) of such
discontinued or terminated Programs and Sublicensed Programs and certify, in
writing, to Excel that it has done so. The obligations of BTI to protect the
proprietary nature of the Programs and Sublicensed Programs shall survive the
termination of any such license.
f. Injunctive Relief
BTI acknowledges that (i) any unauthorized use or transfer of the Programs
or other information contained in the Programs may substantially diminish the
value to Excel of the trade secrets and proprietary rights that are the subject
of this Agreement and thus irreparably harm Excel, and (ii) if Excel alleges
that BTI has breached any of its obligations under this Agreement, Excel shall,
if such breach is proven, in addition to all other remedies accorded by law, be
entitled to equitable relief (including but not limited to injunctive relief) to
protect its interests.
8. EXPORT CONTROLS
BTI warrants to Excel that it will not resell, transfer or use the Products
obtained from Excel under this Agreement in any way in violation of any laws,
regulations, transactions or export controls, or economic sanctions imposed by
the United States government with regard to any other State, government or
political entity. If BTI intends to export the Products outside the United
States, it is incumbent upon BTI to determine whether an export license will be
required and, if so, to obtain the license from the appropriate authorities in
the United States Commerce or State Department.
In the event that BTI should need any additional information from Excel in
order to obtain said license, BTI shall notify Excel in writing, and Excel
agrees to furnish said information upon satisfactory proof of a legitimate need
therefore.
9. PROGRAM UPDATES AND CHANGES IN PRODUCTS SPECIFICATIONS
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a. Excel shall advise BTI in writing of design modifications to the
Products where such modifications would, without limitation, improve Product
quality, facilitate product sourcing or increase Product reliability. If Excel
determines that said modifications would alter the form, fit or function of the
Products, such that they are no longer functionally equivalent to the Products
they are to replace, Excel shall, upon written request from BTI, deliver to BTI
for a sixty day (60) evaluation period, free of charge, a sample of the Products
so modified. BTI shall have the right to test and inspect such Products, and BTI
shall have the right to disapprove, in writing, any of such proposed
modifications to the Products. Should BTI fail to provide notice of said
disapproval in writing to Excel as prescribed above, Excel shall assume BTI's
consent to the incorporation of such modifications for use by BTI, and shall
invoice BTI for the products so delivered. If BTI disapproves of such
modifications for its use, BTI shall have the right, within sixty days (60) of
such disapproval, to place additional purchase orders for Products without such
modifications, provided that BTI's requested shipping dates for such Products
occur within the succeeding six (6) month period. Upon such disapproval, BTI
shall within ten (10) days, either return the Products so modified to Excel , or
be invoiced for such Products.
Should Excel determine that any of such modifications do not alter the
form, fit, or function of said Products such that they remain functionally
equivalent to the Products they are to replace, Excel shall notify BTI in
writing of said change but shall not be obligated to provide a sample of such
Product to BTI for testing or evaluation.
b. The parties agree that this section 9. a. is not meant to cover
changes made to the Products by Excel to correct errors in the Products that
have been either reported by BTI or discovered by Excel. The parties further
agree that nothing in section 9. a. above should be interpreted as a restriction
on Excel's right to generally commercially distribute the Products with the
design modifications described herein.
c. Excel agrees that any new Products that it develops during the term of
this Agreement and which it makes generally commercially available, shall be
made available to BTI pursuant to the terms and conditions hereof.
10. NOTICES
All notices by either party to the other party under this Agreement shall
be in writing and personally delivered or send by confirmed facsimile with a
copy sent by registered or certified mail, return receipt requested, to the
other party at its address set forth above. The date of personal delivery or the
date of facsimile transmission, as the case may be, shall be deemed to be the
date on which such notice is given.
11. DISTRIBUTION OF PRODUCTS TO UNITED STATES GOVERNMENT
The Products being provided by Excel to BTI under this Agreement are
"Commercial Computer Software" as defined in the U.S. Government DOD FAR
Supplement at 52.227-7013a. As such, the Products, including related
documentation, are provided with restricted rights. BTI, in any dealings with
the U.S. Government, agrees to inform the U.S. Government that the Products are
"Commercial Computer Software" and that the use, duplication, or
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disclosure by the U.S. Government of the Products is subject to the restrictions
as set forth in DOD FAR Supplement at 52.227-7013(b)(3) and in subparagraph
(c)(1)(11) of the Rights in Technical Data and Computer Software clause at
252.227-7013. BTI agrees to work with EXCEL to clearly and properly mark any and
all Products, including related documentation, that are to be delivered to any
branch or agency of the U.S Government with the restricted rights legend set
forth in DOD FAR Supplement at 52.227-7013(b). BTI also agrees to inform all
U.S. Government Contracting Officers, when applicable, that the Products are
commercial software and subject to the restrictions described above.
12. PATENT AND COPYRIGHT INDEMNITY
a. If notified promptly in writing of any action (and all prior claims
relating to such action) brought against BTI based on a claim that any of the
Products supplied to BTI infringes a patent, copyright or trademark, Excel shall
defend such action at its sole expense and pay any costs or damages finally
awarded in such action which are attributable to such claim; provided that Excel
shall have sole control of the defense of any such action and all negotiations
for its settlement or compromise. Notwithstanding the provisions of the previous
sentence, Excel's obligation to defend as stated therein shall not be excused in
the event that BTI engages its own counsel at its own expense, to assist BTI in
determining the relevant issues in, and the merits of, said claims and to
provide general advice with respect to such claims. If an injunction is obtained
against BTI's use of any of the Products by reason of infringement of a patent,
copyright or trademark, or if in Excel's opinion any of the Products hereunder
is likely to become the subject of a successful claim of infringement of a
patent, copyright or trademark, Excel shall, at its option and expense, either
procure for BTI the right to continue using such Product or replace or modify
the same so that it becomes noninfringing or if neither of the foregoing
alternatives are possible, grant BTI a credit for such Product (as depreciated
in the case of equipment over four (4) years) and accept its return.
b. Notwithstanding the foregoing, Excel shall not have any liability to
BTI under the foregoing provision if such infringement or claim is based upon.
1. the use of any of the Products in combination with other
equipment or software which is not furnished by Excel where the Products would
not, by themselves, be infringing.
c. If notified promptly in writing of any action (and all prior claims
relating to such action) brought against Excel based on a claim that any of the
Products that were Manufactured or supplied by Excel in Compliance with BTI'S
written designs, specifications or instructions, or any designs, specifications
or instructions relayed to Excel orally by BTI which are confirmed by Excel in
writing to BTI, ("BTI designed Products") infringes a patent, copyright or
trademark, then BTI shall defend such action at its sole expense and pay costs
or damages finally awarded in such action which are attributable to such claim,
provided however, that BTI shall have sole control of the defense of any such
action and all negotiations for its settlement or compromise. Notwithstanding
the provisions of the previous sentence, BTI'S obligation to defend as stated
therein shall not be excused in the event that Excel engages its own counsel at
its own expense to
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assist Excel in determining the relevant issues in, and merits of, said claims
and to provide general advice with respect to said claims.
d. Notwithstanding the foregoing provisions of Section 12.c. above, BTI
shall not have any liability to Excel if such infringement or claim is based
upon:
1. The use of any of the BTI Designed Products in combination with
other equipment or software which is manufactured or supplied by Excel and is
not in compliance with BTI'S written designs, specifications or instructions
and/or where BTI Designed Products would not, by themselves, be infringing.
e. In no event shall either party's total liability to the other party
under section 12.a. or 12.c. respectively exceed two (2) times the aggregate sum
paid to EXCEL by BTI for the allegedly infringing Products or Programs.
f. The foregoing provision state the entire liability of Excel and BTI
with respect to infringement of patents, trademarks or copyrights by any of the
Products or any part thereof or their operation.
13. LIMITED WARRANTY
a. Products
Excel warrants that the Equipment shall be free of all liens and
encumbrances. Excel further warrants that the Equipment shall conform to Excel's
or BTI's (as applicable) Product Specifications for same and shall be free from
defects in material and workmanship for a period of fourteen (14) months after
the date of shipment to BTI (the Warranty period). Excel's sole obligation with
respect of claims of non compliance or defects made within the Warranty period
described above shall be, at its option, to repair or replace any item which
Excel, in its reasonable judgment, determines to be defective within sixty (60)
days after receipt of thereof. BTI shall obtain a return authorization number
from Excel prior to returning any Equipment to Excel under this warranty. BTI
shall be responsible for all shipping charges for Equipment returned to Excel
for warranty service, and Excel shall pay charges for the return of the
Equipment to BTI. Excel may employ previously utilized parts to make repairs or
replacements, so long as the previously utilized parts are not defective in any
respect and are subject to the same warranty as new parts. All replaced parts
will become the property of Excel on an exchange basis.
All replacements and repairs made during the initial Warranty period shall
carry a warranty equal to the balance of said Warranty period, or ninety days,
whichever is longer. Any repair made under said repair warranty which is made
after the expiration of the initial Warranty period shall, unless covered by the
EXCEL "EXTENDED WARRANTY and SUPPORT PROGRAM," not be further warranted and
should additional repair be necessary, said repair shall be subject to the Out
of Warranty prices as appended hereto in Exhibit VI.
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Excel offers an "Extended Warranty and Support Program" at additional cost,
a copy of which is appended hereto as Exhibit V, as well as an OUT OF WARRANTY
price list, appended hereto as Exhibit VI, covering both repairs replacements
and software upgrades.
Excel further warrants that it shall make available the spare parts listed
in Exhibit I (as such spares may be amended from time to time to account for
technical changes and improvements) for a period of five (5) years from the date
of the last Product shipped hereunder. This provision shall only apply to "LNX"
and "PCX" Products; it shall not apply to "XLDX" Products. All "XLDX" spare
parts will be supplied by EXCEL for the aforementioned period subject to their
availability.
b. Limitations of Warranty
The foregoing limited warranties by Excel shall not apply if:
i. A repair or replacement part is required as a result of causes
other than normal use, including without limitation, repair, maintenance,
alteration or modification of the Products by persons other than Excel or other
authorized personnel (which term includes duly qualified and authorized BTI
personnel); accident, fault or negligence of the BTI or BTI'S customer; operator
error or improper use or misuse of the Products; or causes external to the
Products not caused by Excel, such as, but not limited to, transportation or
fluctuations of humidity or temperature in excess of the specified tolerance
levels of the Products or failure of electrical power, or fire or water damage;
or
ii. The Products are modified by BTI or used with software or
equipment for applications that are beyond the normal or customary business of
BTI; or
iii. BTI's customer's installation site is not maintained in
accordance with Excel's applicable site specification as set forth in the
relevant Product User's Manual.
c. Software
Excel warrants that for fourteen (14) months after shipment, all Software
licensed hereunder will substantially conform to Excel's or BTI's (as
preapproved by Excel) then current published Product Specifications for the
Software. BTI must notify Excel in writing of any defect in the Software, and if
the Software is found to be substantially defective, Excel shall correct such
defect in a manner determined by Excel. Excel will correct any and all service
affecting Software deficiencies or provide an adequate workaround(s) for same.
d. Limitation of Liability and Damages
No action, whether in contract or tort, including negligence arising out of
or in connection with this Agreement, may be brought by either party more than
twenty four (24) months after the cause of action has accrued. This limitation
shall not apply to actions for any breach of the Patent and Copyright provisions
or actions for violations or infringements as provided in Section 12 above, of
Excel's rights relating to the Programs licensed or sublicensed hereunder.
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e. Disclaimers
OTHER THAN THE LIMITED WARRANTY SET FORTH IN THIS SECTION, EXCEL DISCLAIMS
ALL WARRANTIES WITH RESPECT TO THE PRODUCTS (INCLUDING, WITHOUT LIMITATION,
WARRANTIES AS TO MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE), EITHER
EXPRESS OR IMPLIED, AND THE FOREGOING EXPRESS LIMITED WARRANTIES ARE PROVIDED IN
LIEU OF ANY OTHER WARRANTIES ON THE PART OF EXCEL. IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
f. Use of the Equipment in Critical Application
Excel's equipment and Products are manufactured for standard commercial use
and must be carefully considered for use in critical elements in applications or
systems, such as life support systems (e.g.: "911" or "E911" -like systems),
mass transportation or air traffic control systems, where failure of the
Equipment to perform can be reasonably expected to cause failure of the
application or system, to affect the safety or effectiveness of the application
or system. Before using, BTI will determine the suitability of the Equipment for
its intended use.
g. Out of Warranty Service
Unless otherwise specified herein in any appendix, or otherwise in any
service contract, Excel agrees to provide out of warranty service for any of its
Products, in accordance with the Excel "Out of Warranty Price List" appended
hereto as in Exhibit VI.
14. SUPPORT
a. Products supplied to BTI hereunder will ultimately be used by end-
users located outside as well as inside the U.S. In the event that BTI is unable
to resolve problems with the Products during the installation/acceptance process
or is unable to keep the Products in a reliable state during or after the
Warranty period, BTI shall make available at the relevant end-user site or, at
BTI if the problem is capable of remote cure, a person previously trained in the
Excel technical training program. The person shall call Excel at 1-800-541-7002
and request technical support. If after attempting to repair through this
telephone conversation, Excel and BTI are unable to rectify the situation, Excel
will promptly send qualified technical experts to the relevant end-user site who
will rectify the situation. As to end user site consultations which take place
during the Warranty period: (i) if a Product defect caused the problem, EXCEL
will bear the cost of the consultation (U.S. and Canada only) and BTI will bear
the cost of out-of-pocket expenses, (ii) if a Product defect did not cause the
problem, BTI will bear all costs. All end-user site consultations which take
place after the initial Warranty period or the Extended Warranty period, if
applicable, shall be invoiced and paid for in accordance with the Out of
Warranty Price List as appended hereto as Exhibit VI. In addition to the out of
warranty services described
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elsewhere in this Agreement, Excel will continue to provide Product parts and
Software services at reasonable prices after expiration of the relevant
warranty.
b. Excel will provide technical training to BTI's employees as outlined
in Exhibit IV hereto.
15. CHANGES REQUESTED BY BTI
BTI's Procurement department may, from time to time, by written notice to
Excel, request changes in the method of packing or shipment, quantity ordered,
(within the parameters contained in Exhibit II attached hereto,) destinations
and delivery schedules for the Products. If any such change causes a material
increase or decrease in Excel's cost of the Products or delivery schedule
hereunder, an equitable adjustment shall be made to such price or delivery
schedule, or both. Any claim by Excel for adjustment under this Section 15 shall
be deemed waived unless made in writing within twenty (20) days after receipt of
written notice of said change.
In addition, BTI's Procurement Department may from time to time in writing,
request changes in Product Specifications. Upon receipt of such request, EXCEL
shall promptly make an evaluation of the proposed change. If, in EXCEL's sole
discretion, it deems the proposed change reasonable, it shall, as the
information becomes available, notify BTI of the terms, projected delivery times
and minimum Product purchase commitment levels required from BTI in order for
EXCEL to proceed with such modifications. EXCEL reserves to itself the right, in
its sole discretion, to reject any such requests.
16. MANUFACTURING RIGHTS
a. Excel hereby agrees that, within thirty (30) days of the effective
date of this Agreement, it will place in escrow with Data Securities
International, Inc. ("DSI") all materials necessary for BTI to manufacture the
Products, including but not limited to, blueprints, artwork, process sheets,
test procedures, tooling drawings, schematics, computer software source code,
performance specifications and all related documentation. BTI agrees that it
shall pay all fees associated with said deposit in escrow for the entire term of
Escrow.
b. Excel agrees, on an ongoing basis, to promptly provide DSI with any
modifications or improvements of any materials placed in escrow pursuant to this
Section 16. and to notify BTI of any such modifications or improvements
promptly.
c. In the event that any of the release conditions described below (the
"Release Conditions") occurs, then the parties agree that: (1) DSI shall release
to BTI all materials held in escrow; (2) Excel will grant to BTI a royalty-free
license to manufacture such Products; and (3) BTI shall utilize such materials
only to manufacture or otherwise procure Products to satisfy existing Purchase
Orders and forecasted orders as required by Exhibit II, and to support existing
Products already distributed by BTI. BTI further agrees to treat such materials
as the Proprietary Information of Excel subject to the provisions of Section
17.d below.
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d. For the purpose of this Section 16., the Release Conditions shall mean
one or more of the following events:
(1) Excel commits a material breach of its obligations hereunder and
fails to cure such breach within forty five (45) days of the receipt of notice
from BTI which details such breach; or
(2) Excel fails to continue to do business in the ordinary course,
which failure continues for more than forty five (45) days; or
(3) One of the following circumstances materially affect Excel's
ability to comply with the terms of this Agreement and such condition remains
uncorrected for more than sixty (60) days:
(i) entry of an order for relief by or against Excel under Title 11
of the United States Code;
(ii) the making by Excel of a general Assignment for the benefit of
creditors;
(iii) the appointment of a general receiver of trustee in bankruptcy
of Excel's business or property; or
(iv) action by Excel under any state insolvency or similar law for
the purpose of its bankruptcy, reorganization or liquidation.
17. GENERAL
a. The obligations of Excel under this Agreement shall be subject to the
procurement by, and at the expense of, BTI of any import or export licenses,
documents, permits or clearances required with respect to this Agreement and are
subject to the condition precedent that all necessary approvals from
governmental authorities (including exchange control authorities) have been
obtained. BTI agrees to comply with all laws applicable to BTI as they relate to
the Products, of the United States of America and its states at all times and
shall not take or refrain from taking any action which would result in the
violation of such laws by Excel. Nothing contained in this Agreement shall be
construed as creating a joint venture, partnership or employment relationship
between Excel and BTI.
b. If the financial condition of BTI at any time does not justify
continuation of the work called for, or shipment on the terms of payment
originally specified, Excel, in its sole discretion, may require full payment in
advance of delivery.
c. The validity, construction and interpretation of this Agreement and
the rights and duties of the parties hereto shall be governed and construed in
accordance with the laws of the Commonwealth of Massachusetts, excluding its
conflict of law rules.
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d. BTI agrees it shall protect all such information and hold such
information so provided in accordance with the provisions of the Mutual Non-
Disclosure Agreement between the parties, dated February 3, 1994.
e. This Agreement and the above referenced Non-Disclosure Agreement is
the complete and exclusive statement of this agreement between the parties and
supersedes all prior agreements and communications with respect to the subject
matter herein. Excel makes no representations to BTI except as expressly set
forth herein. Unless otherwise agreed by the parties in writing, the terms of
this Agreement and the said Non-Disclosure Agreement shall apply and govern the
parties' dealings notwithstanding any proposed variations or additions which may
be contained in any Purchase Order or other communications submitted by BTI or
in any Sales Order or similar notice provided by Excel.
f. This Agreement may not be modified, amended or waived in whole or in
part, except by written agreement of the parties hereto. No Excel employee other
than its President, shall have any actual or apparent authority to modify the
terms of this Agreement in any way. Any authorized modifications shall be in
writing and signed by such representative of Excel. Any item or service
furnished by Excel in furtherance of this Agreement, although not specifically
identified herein, shall nevertheless be covered and governed by this Agreement
unless specifically covered by some other written agreement executed by BTI and
an authorized representative of Excel.
g. Either party may assign this Agreement, or any of its rights hereunder
or delegate any of its obligations hereunder, provided such party's transferee
agrees in writing to be bound by all of the provisions of this Agreement and
such writing is provided to the other party within a reasonable period of time
prior to the effective date of such assignment or delegation.
h. Section headings are for descriptive purposes only and shall not
control or alter the meaning of this Agreement.
i. All rights and remedies of either party shall be cumulative and may be
exercised singularly or concurrently. The failure of either party, in any one or
more instances, to enforce any of the terms of this Agreement shall not be
construed as a waiver of future enforcement of that or any other term.
j. If any provisions of this Agreement shall for any reason be held
illegal or unenforceable, such provisions shall be deemed separable from the
remaining provisions of this Agreement and shall in no way affect or impair the
validity or enforceability of the remaining provisions of this Agreement.
k. In the event either party is unable, in its reasonable judgment, to
perform in accordance with this Agreement, due in whole or in part to any cause
beyond the party's control, including without limitation, Acts of God, acts of
the enemy, events of war, embargoes, strikes, lockouts, dispute with workers,
shortage of fuel, unusually severe weather conditions, fires, floods,
earthquakes, and unreasonably dangerous situations, the affected party shall
promptly notify the other party in writing and the date of performance shall be
extended for a period equal
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to the period of such delay. Notwithstanding the foregoing, if such period of
delay extends beyond ninety (90) days, the other party may, upon written notice
to the affected party, terminate this Agreement with no further liability except
for any payments owed and then due.
18. TERMINATION
This Agreement shall terminate two years from the date of the signing
hereof. Unless otherwise notified in writing by Excel 6 months prior to any
termination date, this Agreement shall be automatically renewed for successive
two year periods.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement this 27th
day of May, 1994.
Excel, Inc., BTI,
By: By:
/s/ Robert P. Madonna /s/ Edward P. Maggio, V.P.
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Robert Madonna, President Edward P. Maggio, V.P.