EXHIBIT 5.2.i
Agreement Number:______________
CUSTOMER AGREEMENT
This Agreement is made and entered into this 14th day of October, 1995,
by and between Xiox Corporation (formerly Summa Four Business Products, Inc.), a
Delaware Corporation (hereinafter referred to as "Xiox"), having its principal
place of business at 150 Dow Street, Manchester, New Hampshire 03101 and Richard
Alter or Assignee (hereinafter referred to as "Customer"), having its principal
place of business at 1733 Woodside Road, Suite 320, Redwood City, CA 94061
Xiox appoints the Customer as a non-exclusive distributor of the
Equipment set forth below in the terms stated herein and subject to the General
Terms and Conditions attached hereto.
Customer accepts the non-exclusive appointment and agrees to use its
best efforts to diligently promote the sale of the Equipment.
1. Term of Agreement
This Agreement shall have a term of five (5) year(s)
beginning October 1, 1995, (the "Effective Date") unless
sooner terminated pursuant to its terms.
2. Discount Levels
Discount levels are based on the annual sales forecast of
customer per the following schedule.
Sales Volume Discount
$10,000 - $24,999 (*)
$25,000 - $49,999 (*)
$50,000 - $99,999 (*)
over $100,000 (*)
Sales levels are reviewed quarterly and discounts may be
adjusted with 30 days written notice.
(*) Confidential treatment has been requested for this portion
of the agreement.
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3. Equipment
Customer shall act as a non-exclusive distributor for Xiox's
call data recording and telemanagement systems.
4. Entire Agreement
This Agreement consisting of the Customer Agreement, and
General Terms and Conditions, constitutes the entire
agreement between the parties. This Agreement supersedes all
proposals, oral or written and all negotiations,
conversations, or discussions heretofore held between the
parties related to this Agreement.
For:
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By:
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Richard Alter
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Title: Proprietor
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For Xiox Corporation:
By:
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William H. Welling
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Title: Chairman/CEO
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CUSTOMER AGREEMENT
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CUSTOMER AGREEMENT
GENERAL TERMS AND CONDITIONS
INTRODUCTION.
XIOX and CUSTOMER agree to the terms and conditions set forth herein
and in the attached Customer Agreement, notwithstanding contrary preprinted
terms in any form utilized by the CUSTOMER in purchasing any Equipment. Any
typewritten or handwritten terms endorsed on any other form utilized by the
CUSTOMER in purchasing the Equipment shall be mutually agreed to in advance of
submission and acknowledged in writing upon receipt. No contract or amendment
entered into after this Agreement shall amend any provisions of this Agreement,
except as provided in writing signed by both XIOX and CUSTOMER.
1. EQUIPMENT.
The term "Equipment" as used in this Agreement shall mean all hardware
units, software/firmware components, accessories and spare parts supplied by
XIOX and purchased by the CUSTOMER pursuant to this Customer Agreement.
Equipment shall conform to published product specifications.
2. CUSTOMER RESPONSIBILITIES.
A. CUSTOMER shall service end-user customers and be fully
responsive to their requirements in all respects, including,
but not limited to, providing prompt installations,
maintenance and service by qualified personnel.
B. CUSTOMER agrees it will not, nor will it permit any of its
agents, or employees or Dealers to, convert, adjust, alter
or modify the Equipment or any parts or components thereof
unless such action is in strict accordance with the
pertinent XIOX specifications.
C. CUSTOMER shall not sell, install, service or maintain the
Equipment, nor cause same to be effected in violation of any
certification or registration requirements or regulation
promulgated by the Federal Communications Commission or in
violation of any other federal, state or local law,
regulation or ordinance.
D. CUSTOMER will not, nor will it permit any of its agents, or
employees to, sell, install or offer for sale any Equipment
or part which is represented to be a genuine XIOX equipment
or part, unless it is in fact genuine and new based upon
XIOX's representation as such to the CUSTOMER.
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E.
F. CUSTOMER shall have no right or power to pledge XIOX's
credit or to enter into any contract on XIOX's behalf or to
bind XIOX in any respect. CUSTOMER is not, and shall not
represent itself as an employee, agent, partner or legal
representative of XIOX or as being authorized to assume or
create obligation of any kind, express or implied, on behalf
of XIOX.
3. TRADEMARKS,TRADE NAMES.
A. CUSTOMER is hereby granted a license to sell and market the
Products under XIOX's trade names and trademarks. CUSTOMER
shall not alter, obliterate, or remove any trade names,
trademark or serial number carried on any Product or part
thereof or add any name, brand, or trademark thereto without
the prior written approval of XIOX.
B. CUSTOMER agrees not to display or use any of XIOX's trade
names or trademarks or permit the same to be displayed or
used by third parties, other than in connection with the
sale, distribution or promotion of the Products, without the
prior written consent of XIOX. CUSTOMER shall not use any
party of any of XIOX's trade names or trademarks as part of
its own name or in any other manner not specifically
permitted by this Section 3 without the prior written
approval of XIOX.
C. It is expressly understood by CUSTOMER that trade names or
trademarks of XIOX are proprietary to it and that this
Section 3 does not contain the grant of a general license to
use said trade names and trademarks other than as
specifically set forth in this Section 3.
D. Upon the expiration or termination of this Agreement, any
and all rights or privileges of CUSTOMER to use XIOX's trade
names or trademarks and to designate itself as a XIOX
distributor, shall terminate.
CUSTOMER AGREEMENT
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4. PRICES AND SERVICE CHARGES.
A. XIOX's Pricing Guide and Cancellation Policy. The prices to
be paid for XIOX's Equipment available to the CUSTOMER,
pursuant to this Agreement are those prices in the XIOX
published price list. XIOX's pricing is based on CUSTOMER's
commitment to purchase and volume of purchases, which
enables XIOX to reduce pricing. Therefore, purchases agreed
to by CUSTOMER are not subject to cancellation by CUSTOMER.
B. Billing.
1. Billing for equipment purchased by the CUSTOMER
shall take place according to the credit terms
established, F.O.B. factory, for the particular
Equipment being billed by XIOX. Payments received
by XIOX more than thirty (30) days after billing to
the CUSTOMER, ("delinquent amounts"), shall be
subject to a service charge. That service charge
shall be in the amount of the lesser of:
(i) A percentage per annum on all such
delinquent amounts, compounded monthly;
or
(ii) The highest interest rate permitted by
applicable law.
5. WARRANTY.
A. All claims under this warranty must originate with the
CUSTOMER. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT
ARE IN LIEU OF ALL OTHER WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. ALL OTHER SUCH WARRANTIES
ARE HEREBY DISCLAIMED AND EXCLUDED BY XIOX.
B. XIOX's warranty is as follows:
1. Equipment purchased by the CUSTOMER carries with it
a warranty with the following provisions:
(i) XIOX warrants that Equipment will perform
in accordance with XIOX's published
product specifications. XIOX warrants
Equipment against defects in material and
workmanship for a period of fifteen (15)
months from the date of shipment or
twelve (12) months from date of
installation, whichever is sooner. This
warranty does not apply to Equipment that
is opened without
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authorization, mishandled or damaged
after leaving XIOX's factory. This
warranty does not apply to Equipment
which is operated under conditions other
than normal use for which the Equipment
was designed. Also, this warranty does
not apply to Equipment that has been
altered in any way which would be
detrimental to the performance or life of
the Equipment, or misapplication, misuse,
negligence or accident. XIOX reserves the
right to employ factory refurbished
assemblies in fulfilling any order. All
such assemblies are warranted in the same
manner as new.
(ii) XIOX's obligation under this warranty is
expressly limited to the replacement or
repair of any part or parts thereof as
determined by XIOX. The costs of any
transportation to XIOX, at its New
Hampshire location for repairs or
replacements, that may be undertaken at
XIOX's location, shall be prepaid by the
CUSTOMER.
(iii) If the CUSTOMER notifies XIOX within the
applicable warranty period of the defect
covered by XIOX's warranty, XIOX shall
thereupon correct such defect. Such a
correction shall be accomplished either
by repairing any defective part or parts,
or by making available a repaired or
replacement part, and returning repaired
or replaced Equipment to the CUSTOMER's
location via common carrier at XIOX's
expense, within thirty (30) days of
receipt thereof.
(iv) The foregoing shall constitute the sole
remedy of the CUSTOMER, and the sole
liability of XIOX. (Note: This is a
"Limited Warranty" as defined by the
Magnuson-Moss Act of 1975.)
C.
1. If the unit is out of warranty, it will be repaired,
and the CUSTOMER will be invoiced at XIOX's standard
repair costs. The CUSTOMER is responsible in all cases
for transportation to and from XIOX's repair location.
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2. Repair Authorization: Items for repair will not be
accepted for return without authorization from XIOX
Corporate offices.
The repair authorization will advise the CUSTOMER as to
the closest point of repair, and the best method of
shipment.
6. DELIVERY, TITLE, AND RISK OF LOSS.
XIOX will ship Equipment ordered by the CUSTOMER on or before the
time indicated in the Customer Purchase Order. XIOX agrees to use its
best effort to ship as close to said date as possible. However, under
no circumstances shall XIOX be liable for any loss or damage caused
by delay in furnishing or shipping. Title and risk of loss to
Equipment shall pass to the CUSTOMER upon delivery to the common
carrier at XIOX's point of shipment.
7. LIMITATION OF LIABILITY.
The CUSTOMER understands and agrees to the following conditions:
A. Sole and Exclusive Remedies: Except for the CUSTOMER's
remedies as set forth in Section 9 hereof and breach by XIOX
of the provisions of Section 10 hereof, for which there
shall be no limitation of liability, the sole and exclusive
remedies of the CUSTOMER and the liability of XIOX to the
CUSTOMER for any cost, claim or demand or liability arising
out of the supplying of the Equipment or its use whether in
contract, in tort or any other cause of action shall not in
any case exceed One Hundred Thousand Dollars ($100,000.00).
B. Special, Incidental, or Consequential Damage: Except for
damages caused by XIOX's breach of its warranties and/or
obligations detailed in Section 10, in no event shall XIOX's
liability include any special, incidental or consequential
damage of any kind, even if XIOX shall have been advised of
the possibility of such potential loss or damage.
8. FORCE MAJEURE.
XIOX shall not be liable for any loss, damage or delay in the
production or delivery of any of the Equipment covered thereby if
such loss, damage or delay shall be due to any cause whatsoever
beyond its control. Causes beyond XIOX's control include, without
limitation, Acts of God, acts or regulations or decrees of any
Government, acts of the enemy, events of war, embargo, strike,
lockout, dispute with workers, accidental delay in transportation,
shortage of fuel, excessive demand for products over available
supply, inability to obtain material, earthquakes, flood, fire,
riots, unusually severe weather or other causes. In the event of any
such excusable delay, the date of delivery shall be extended for a
period equal to the period of such delay.
CUSTOMER AGREEMENT
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9. PATENT & OTHER PROPRIETARY RIGHTS: INDEMNIFICATION.
A. XIOX warrants that XIOX's Equipment and/or related Software
furnished and manufactured by XIOX will not infringe upon or
violate any patent, copyright, trade secret, or any other
proprietary right of any third party. In the event of any
claim by a third party against the CUSTOMER asserting or
involving a patent, copyright, trade secret, or proprietary
right violation which concerns any XIOX Equipment and/or
related manufactured Software acquired by the CUSTOMER from
XIOX hereunder, XIOX will, provided the CUSTOMER is not in
default under the terms of this Agreement, defend at its
sole authority and expense, and will indemnify the CUSTOMER
against any loss, cost, expense, and/or liability arising
out of such a claim, whether or not such claim is
successful. The foregoing indemnification by XIOX is
conditioned upon the CUSTOMER giving XIOX prompt written
notice of any such claim, action, or allegation of
infringement.
B. The foregoing indemnification provision contained in this
entire section does not apply to any infringement occasioned
by modification by the CUSTOMER or third party of any item
of XIOX'S Equipment and/or related manufactured Software, or
the use of an item of XIOX'S Equipment and/or related
manufactured Software with any adjunct or device added by
the CUSTOMER or third party. This Section contains the
CUSTOMER's sole and exclusive remedy of patent, copyright,
trade secret, or other proprietary right of infringement.
C. Customer agrees to indemnify XIOX, its assigns, employees,
and agents against all claims, losses, damages, actions,
expenses, including costs and reasonable attorney's fees,
and other liabilities arising out of, or resulting from
CUSTOMER's particular use of XIOX'S Equipment and/or related
manufactured Software as a part of a CUSTOMER invention, or
as part of a unique CUSTOMER configuration of XIOX'S
Equipment, and/or related Software which includes other
material not supplied by XIOX, or not approved by XIOX, and
which leads to a claim by a third party asserting a patent,
copyright, trade secret, or proprietary right violation.
10. TRADE SECRETS OF CUSTOMER AND XIOX.
A. The CUSTOMER and XIOX shall each receive and hold in
confidence, and only for the purpose of this Agreement, all
trade secrets, customer lists, and confidential data of the
other party which are marked "Confidential" and/or
"Proprietary", or which the receiving and holding party
knows, or has reasons to know are considered trade secrets,
customer lists, or confidential data by the other party. The
contents of
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this Section 10 shall survive the termination of the
Agreement for whatever cause. In the event of a breach or
threatened breach by XIOX or the CUSTOMER, or an employee of
the CUSTOMER or XIOX of the provisions of this Section 10,
the CUSTOMER or XIOX shall be entitled to an injunction
restraining the CUSTOMER or XIOX, and/or any such employee
from any use or disclosure, or threatened use or disclosure,
in whole or in part, of the CUSTOMER's or XIOX's trade
secrets forbidden in this Section 10. Nothing herein shall
be construed as prohibiting XIOX or CUSTOMER from using any
other remedies available for such breach, or threatened
breach, including recovery of damages.
11. CLAIMS AND RETURNED GOODS.
A. Notice of Claim for any cause whatsoever, (including claims
for shortage), shall be made in writing to XIOX'S New
Hampshire office within thirty (30) days of receipt of
Equipment by the CUSTOMER from the carrier. Any and all
claims not specified in such a written notice shall be
conclusively deemed waived by the CUSTOMER. The CUSTOMER
shall afford XIOX prompt and reasonable opportunity to
inspect goods as to which any claim is made, as stated
above.
B. The CUSTOMER should, in no case, return material to XIOX
without first obtaining specific written authorization.
Material must be securely packed and returned in like-new
condition.
C. Goods damaged in transit, not covered by common carrier
insurance, will not be reimbursable by XIOX.
12. XIOX ASSISTANCE AND SUPPORT.
A. XIOX will be responsible to:
1. Warrantee of product as defined in Section 5 of the
Agreement.
2. Perform all repairs on returned material within the
then existing service policies.
3. Provide training and certification to CUSTOMER's
qualified personnel at XIOX's Manchester, N.H.
location. CUSTOMER shall be responsible for all
class registration fees, travel and expenses. XIOX
reserves the right to provide the scheduling for
this program and shall have the option not to
conduct any session for less than 3 people.
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4. If installation or maintenance support is required,
CUSTOMER will be invoiced in accordance with the
then existing Business Products Support Policy.
B. CUSTOMER will be responsible for:
1. Providing all telephone support to end user.
2. Providing all field service to end user.
13. TERMINATION.
A. Either party may terminate this Agreement at any time by
giving the other party ninety (90) days prior notice to such
termination.
B. XIOX may terminate this Agreement immediately upon notice of
such termination to CUSTOMER as follows:
1. In the event of insolvency of CUSTOMER or the
institution of voluntary or involuntary proceedings
in bankruptcy or under any other insolvency law, or
an arrangement with creditors or corporate
reorganization or receivership or dissolution of
CUSTOMER, or an assignment by CUSTOMER for the
benefit of creditors or suppliers.
2. In the event that CUSTOMER defaults in the payment
of any obligation owing to XIOX hereunder or fails
to comply with any other term or condition of sale
as set forth in EXHIBIT A.
3. In the event of assignment or attempted assignment
of the Agreement, or of any interest or right
therein, by CUSTOMER without XIOX's written
consent.
4. In the event of any significant change in the
ownership or management of CUSTOMER effected
without XIOX's prior written consent.
5 In the event of the conviction of an officer,
director or major stockholder of CUSTOMER for any
crime, which, in the opinion of XIOX, adversely
affects the interests of CUSTOMER or of XIOX.
6. In the event that CUSTOMER has breached any of its
obligations hereunder.
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C. Upon the effective date of termination, all indebtedness of
CUSTOMER due to XIOX shall become immediately due and
payable and CUSTOMER shall return to XIOX any and all
product samples, catalogs, price lists, forms or other
material furnished by XIOX to CUSTOMER hereunder.
14. LICENSE.
A. XIOX hereby grants to CUSTOMER a non-exclusive license to
use the software in conjunction with the Equipment for the
purposes of marketing Equipment, providing technical support
for the Equipment and using Equipment for its intended
purposes. CUSTOMER agrees not to decompile, modify, transfer
or assign the Software and further agrees not to copy or
duplicate the Software except for backup or archive purposes
or for distribution to sub licensees provided the applicable
license fee provided for in this Agreement, if any, is paid
to XIOX.
B. CUSTOMER may grant non-exclusive sub licenses to its End
Users to use the software listed in Exhibit "A" in
conjunction with the Equipment. Each sub license granted
shall be in writing, signed by the sub licensee, and shall
include as a minimum the following terms and conditions:
(1) The sub licensee shall agree not to decompile,
modify, transfer or sub license the Software. All
notices and legends shall be maintained on all
copies of the software and associated
documentation.
(2) The sub licensee shall not copy or duplicate the
Software except for backup or archive purposes.
(3) The sub licensee shall acknowledge title to
Software shall remain with the licenser of
CUSTOMER.
(4) The sub licensee shall be subject to termination by
CUSTOMER in the event sub licensee fails to comply
with the terms and conditions of the sub license.
Provided the sub licenses are granted in accordance
with the terms of this Section 14 (B), the sub
licenses shall remain in effect regardless of
expiration, termination or cancellation of this
Agreement.
(5) The sub licensee shall only use the Software in
connection with their use of the Equipment.
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15. GENERAL PROVISIONS.
A. Applicable Law: This Agreement and any transaction between
XIOX and the CUSTOMER hereunder shall be governed and
construed to accordance with the laws of the State of New
Hampshire, United States of America.
B. Assignment: The CUSTOMER shall not assign or otherwise
transfer its rights and obligations under this Agreement
without written consent of XIOX, and such consent shall not
be unreasonably withheld. XIOX may assign or otherwise
transfer its rights and obligations to its subsidiaries,
affiliates or successors in interest by merger, operation of
law, assignment, purchase or otherwise, of all or a portion
of its business. The CUSTOMER may not appoint agents or
sub-distributors without prior written approval of XIOX, and
such approval shall not be unreasonably withheld.
C. Amendment: This Agreement shall not be deemed or construed
to be modified, amended, superseded, cancelled, or waived in
whole or in part, except by written amendment, signed by
XIOX and CUSTOMER which specifically states that such
modification, amendment, cancellation or waiver is made
pursuant to this Section.
D. Actions: No action, regardless of form, arising from the
transactions under this Agreement, may be brought by either
party more than two (2) years after the party bringing the
action became aware of or had reason to become aware of the
accrual of the cause of action brought.
E. Notices: Any notice required to be made by the terms of this
Agreement shall be made in writing, and shall be deemed to
have been duly given, if delivered personally, or sent by
certified mail (return receipt requested) to the parties at
the address set forth in the Customer Agreement.
F. Agency: This Agreement does not constitute the CUSTOMER as
the agent or legal representative of XIOX for any purpose
whatsoever. The CUSTOMER is not granted any expressed or
implied rights, or authority to assume or create any
obligation or responsibility on behalf of, or in the name
of, XIOX, or to bind XIOX in any manner whatsoever. Except
insofar as it is specifically provided otherwise in this
Agreement, the CUSTOMER shall be solely responsible for any
and all obligations or responsibilities incurred or assumed
by it in the performance of this Agreement.
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