Exhibit 10.58
DISTRIBUTION AGREEMENT
This Agreement is made this 17th day of January, 2000,by and between
Centigram Communications Corporation, a Delaware corporation having its
principal office at 91 East Tasman Drive, San Jose, CA 95134 (hereinafter
"Distributor") and Voice Systems Technology, Inc. d/b/a Boston Communications
Group, a Delaware corporation having its principal office at 621 East Fourth
Street, Tulsa, OK 74120-3017 (hereinafter "BCGI").
WHEREAS, BCGI designs, manufactures, and supplies telecommunications
systems and services; and
WHEREAS, Distributor desires to purchase such systems and services from
BCGI for sale on a non-exclusive basis.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which both parties
acknowledge, the parties agree as follows:
1. TERRITORY
During the term of this Agreement, Distributor shall have the nonexclusive
right to sell BCGI Products and Services (as the terms are defined below) to
customer segments and in market area(s) as described in Exhibit A which is
attached hereto and made a part hereof (the "Territory").
2. PRODUCTS
During the term of this Agreement BCGI shall provide the products and
services (the "Products and Services") set forth in Exhibit B which is attached
hereto and made a part hereof to Distributor for sale and distribution in the
Territory. Each sale of Products and Services shall be subject to the terms
and conditions of this Agreement.
3. PRICES
During the term of this Agreement BCGI shall provide and bill the Products
and Services to the Distributor at the prices and applicable discounts
("Prices") as set forth in Exhibit C which is attached hereto and made a part
hereof.
All prices paid by Distributor under this Agreement do not include any
federal, state or local sales or excise taxes, foreign taxes, import duties,
customs fees, value added taxes, etc. (with the exception of taxes imposed upon
or measured by BCGI's income) which shall be the responsibility of Distributor
or Distributor's agents.
4. TERMS OF SHIPMENT
During the term of this Agreement BCGI shall provide the Products and
Services to Distributor in accordance with the shipping terms and conditions
("Terms of Shipment") as set forth in Exhibit D which is attached hereto and
made a part hereof.
[Information marked with a "*" has been omitted pursuant to a request for
confidential treatment. This information has been filed separately with the
Secretary of the Securities Exchange Commission.]
5. PAYMENT
During the term of this Agreement, Distributor shall comply with the
payment terms as outlined in Exhibit E which is attached hereto and made a
part hereof.
6. TERM
This Agreement shall be effective on the date hereof (the "Commencement
Date") and shall continue for an initial term ("Term") of three (3) years.
This Agreement shall be automatically renewed in one-(1) year increments,
thereafter. However, either party hereto may terminate this Agreement as of
the end of the Term, or as of the end of any one (1)-year renewal term, with
six (6) months' notice in writing to the other party to such effect.
7. WARRANTY
The Products are subject to the terms of the BCGI Standard Warranty, a
copy of which is attached to this Agreement as Exhibit F which is attached
hereto and made a part hereof.
8. MAINTENANCE AND SUPPORT SERVICES
Pursuant to its standard maintenance agreement, BCGI will offer Distributor
maintenance and support services ("Maintenance and Support Services") for the
Products at BCGI's then current Preferred Prices, as the term is defined in
Section 39. below, and are described in Exhibit G which is attached hereto and
made a part hereof.
9. DISTRIBUTOR RESPONSIBILITIES
During the term of this Agreement, Distributor shall have the specific
additional responsibilities ("Distributor Responsibilities") as described in
Exhibit H which is attached hereto and made a part hereof.
10. BCGI RESPONSIBILITIES
During the term of this Agreement, BCGI shall have the specific additional
responsibilities ("BCGI Responsibilities") as described in Exhibit I which is
attached hereto and made a part hereof.
11. TERMINATION
A. Termination for Breach. If either party hereto materially defaults
in the performance of, or fails to perform, any of its material obligations
under this Agreement and fails to cure such default within thirty (30) days
after receiving written notice of the default, the non-defaulting party shall
have the right to terminate this Agreement at any time.
B. Termination for Insolvency. Either party hereto may terminate this
Agreement, effective immediately upon written notice, if the other party becomes
the subject of a voluntary or involuntary petition in bankruptcy or any
proceeding relating to insolvency, receivership, liquidation or composition for
the benefit of creditors, if that petition or proceeding is not dismissed with
prejudice within sixty (60) days after filing.
C. Termination for Breach of Confidentiality Obligations. Either party
hereto may terminate this Agreement, effective immediately upon written notice,
if the other breaches its obligations as set out in Section 13. below.
D. Survival of Provisions. Sections 7., 8. (provided Distributor is not
in default of payments due to BCGI and shall continue to pay any amounts due for
the provision of Maintenance and Support Services under such Section 8.), 13.,
14., and 30. shall survive the cancellation or termination of this Agreement
for any reason.
12. INDEMNIFICATION AND LIMITATION OF LIABILITY
A. Indemnification. Each party to this Agreement hereby agrees to
indemnify, defend and otherwise hold the other harmless from and against all
suits, claims and any other losses (any of the foregoing, a "Loss"), including
but not limited to attorneys' fees, that arise from or are in any way related
to the Services or this Agreement, but only to the extent that such Loss
results directly from the gross negligence, willful misconduct or fraudulent
act of or by the party obligated to indemnify, and does not result proximately
from the gross negligence, willful misconduct or fraudulent act of or by the
party seeking indemnification. In the event a party receives notice of any
action or event which would give rise to the indemnification obligations
contained herein, such party shall within twenty (20) days of receipt of such
notice, notify the other of the occurrence of such action or event, as the case
may be; provided, however, that the indemnitor's failure to receive such notice
shall not relieve it of its obligation to provide such indemnity except to the
extent such failure prejudices the indemnitor's ability to avoid liability under
this Section 12. Upon receipt of such notice, the indemnifying party shall
immediately take all actions necessary to protect the indemnitee's interests
and to defend, settle or otherwise resolve such Loss.
B. Limitation of Liability. EXCEPT AS SET FORTH IN SECTION 12.A. ABOVE,
EACH PARTY'S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR
SALE OF THE PRODUCTS AND SERVICES, AND ANY CLAIMS RELATED THERETO, SHALL BE
LIMITED TO DIRECT DAMAGES SUFFERED BY THE OTHER PARTY AND SHALL BE LIMITED TO
A REFUND OF THE PURCHASE PRICE OF THE PRODUCTS AND SERVICES (PRORATED OVER A
THIRTY-SIX [36] MONTH TERM) WHICH SHALL THEN HAVE BEEN PAID BY DISTRIBUTOR
UNDER THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY HERETO HAVE ANY LIABILITY
TO THE OTHER FOR ANY LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES INCURRED BY THE OTHER, OR FOR ANY SPECIAL,
INDIRECT, OR CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER ARISING OUT OF THIS
AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT
THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, INCLUDING,
WITHOUT LIMITATION, THOSE RESULTING FROM THE USE OF PRODUCTS AND SERVICES
PURCHASED HEREUNDER, OR THE FAILURE OF THE PRODUCTS OR SERVICES TO PERFORM, OR
FOR ANY OTHER REASON. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE
OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NOTWITHSTANDING THE FOREGOING,
THE TERMS OF THIS SECTION 12. SHALL NOT APPLY TO ANY LIABILITY OF ONE PARTY TO
THE OTHER WHICH MAY ARISE UNDER SECTION 13. BELOW, OR TO ANY LIABILITY WHICH
BCGI MAY HAVE TO DISTRIBUTOR UNDER SECTION 30. BELOW.
13. NONDISCLOSURE
A. Nondisclosure. Neither party hereto shall, directly or indirectly,
divulge or communicate, to any other person or entity, any confidential
information concerning any matters affecting or relating to the business of
the other party. This nondisclosure obligation applies, but is not limited to,
software, documentation, data, pricing, methods of operation, or other
proprietary information which is identified at the time of disclosure as being
confidential information. The parties hereto stipulate that as between them,
this information is important, material and confidential and gravely affects
the success of the business of the parties. This obligation shall not apply to
information which: (i) is or becomes a part of the public domain through the
act or omission of the disclosing party; (ii) was in the receiving party's
lawful possession prior to such disclosure; or (iii) is required to be disclosed
pursuant to subpoena or other legal process; provided, however, that the
receiving party first provides written notice to the disclosing party of the
request. Any breach of the terms of this Section 13.A. shall be a material
breach of this Agreement. This Section 13.A. shall survive the termination
of the business relationship between the parties for any reason.
B. Promotion. Notwithstanding Section 13.A, the parties hereto may
disclose the existence and general nature of this contractual relationship for
marketing purposes only.
14. SOFTWARE LICENSE
A. License. BCGI hereby grants to Distributor, and Distributor accepts,
a nonexclusive, nontransferable right and license to:
(i) use the software included in the Product ("Software")
and the associated documentation to facilitate Distributor's
selling and servicing the Products to its customers in the
Territory in accordance with this Agreement; and
(ii) revise the documentation associated with the Product so
as to refer to Distributor as the distributor of the Product
("Revised Documentation"). To facilitate these revisions,
BCGI agrees to provide Distributor with any/all "soft"
copies of such documentation, and to provide all reasonable
assistance in effecting any such revisions. All rights,
title and interest in and to such Revised Documentation
shall immediately vest in BCGI; and
(iii) sublicense the Software and the associated
documentation to its customers in the Territory in
accordance with this Agreement.
Distributor acknowledges that it and its customers will receive only the
object code of the Software and will not receive nor be entitled to materials
exclusively associated with the design and creation of the Software.
The Software is proprietary to BCGI and/or its supplier(s), and shall at
all times remain the sole and absolute property of BCGI and/or its supplier(s).
Distributor shall not have any interest in the Software except for the license
to use the Software and the associated documentation to facilitate the selling
and servicing of the Products and to sublicense the Software and the associated
documentation.
B. Permission to Copy. Distributor shall not (and shall not allow its
customers to) copy, in whole or in part, any Software or the associated
documentation, whether in the form of computer tape, disk, print, or any other
form; provided, however, that Distributor may (and Distributor may allow each
of its customers to) make one (1) copy of the Software only for archival backup
purposes in conjunction with Distributor's selling and servicing of the Products
and customers' use of the Products. Distributor agrees that it will (and it
will require its customers to) affix to the back-up copy of the Software, the
copyright notice and other proprietary notices mutually agreed by BCGI and
Distributor.
C. Sublicensing. Any distribution of the Products by Distributor
to its customers shall be effected only by a written agreement between
Distributor and its customers to contain, at a minimum, software licensing
terms and conditions and obligations of confidentiality which are at least as
limiting and protective as such terms are set out in this Agreement. Upon
BCGI's request, Distributorshall make copies of the portions of such
agreements which regard software licensing and confidentiality available to
BCGI for BCGI's review.
15. TITLE TO THE PRODUCT
A. Software. Any and all software provided to Distributor by BCGI
pursuant to this Agreement shall remain the property of BCGI, which retains
all rights, title and interest in said software, including all derivative
works prepared from the software, and any enhancements or modifications
thereto, whether made by BCGI or Distributor.
B. Hardware. Title to the hardware included in the Product shall pass
to Distributor and delivery is deemed to occur upon BCGI's delivery of the
Product to the commercial carrier F.O.B. point of shipment. In all cases,
risk of loss or damage in transit shall fall upon Distributor, whose
responsibility it shall be to file claims with the carrier. Unless BCGI
receives specific shipping instructions from Distributor, BCGI will exercise
its own discretion in the selection of the method of shipment. BCGI shall
have and retain a purchase money security interest in and to each Product
sold to Distributor until such time as BCGI has received payment in full
for each such Product. Distributor shall, and shall cause its customers
to, execute any/all documents as may be necessary for BCGI to perfect or
enforce such security interest(s).
16. ASSIGNMENT
This Agreement may not be assigned by either party hereto, in whole or in
part, unless the express written consent of the other party has been obtained
prior to any assignment; such consent shall not be unreasonably delayed or
withheld.
Notwithstanding the foregoing, should either party hereto be acquired by
or merged into another entity, this Agreement will survive and shall
automatically be assigned to the acquiring/resulting entity. However, either
party hereto may terminate this Agreement in the event of such an acquisition
or merger by giving the other party hereto no less than a ninety (90)-day
written notice to such effect.
17. NOTICES
All notices pursuant to this Agreement shall be in writing and shall be
delivered by hand or sent by registered or certified mail, return receipt
requested, to the addresses as set forth below. If mailed, notices will be
deemed effective three (3) days after mailing, postage prepaid, in the United
States.
As to Distributor: As to BCGI:
Centigram Communications CorporationBoston Communications Group
Attn: Senior Director Legal Affairs Attn: Gary Eubanks
91 East Tasman Drive 621 East Fourth Street
San Jose, CA 95134 Tulsa, OK 74120-3017
Tel #: (408) 428-3890 Tel #: (918) 582-8781
Fax #: (408) 432-2645 Fax #: (918) 582-8782
With a copy to:
Boston Communications Group
Attn: General Counsel
100 Sylvan Road, Suite 100
Woburn, MA 01801
Tel #: (617) 692-7000
Fax #: (617) 692-6230
18. CUMULATIVE RIGHTS
The rights and remedies reserved to the parties herein are cumulative and
in addition to any further rights and remedies available at law or in equity.
19. APPLICABLE LAW
This Agreement shall be deemed to have been entered into in the State of
Oklahoma and shall be governed by, construed and interpreted in accordance with
the laws of the State of Oklahoma.
20. INTERPRETATION
This Agreement, together with any Exhibits or Attachments hereto, and any
subsequent amendments hereto, and nondisclosure agreements entered into between
the parties, contains the entire agreement between the parties hereto with
respect to the subject matter hereof, and supersedes all existing agreements,
prior negotiations and representations by or between them, whether oral or
written,and all prior or contemporaneous agreements, whether oral or written
regarding the subject matter of this Agreement. This Agreement may be amended
from time to time only by written agreement signed by a duly authorized
representative of both parties hereto. The headings used in this Agreement are
for the convenience of the parties hereto and are not deemed to be part of this
Agreement.
21. SEVERABILITY
If any portion of this Agreement is found to be invalid, illegal or
unenforceable, the parties agree that the remaining portions shall remain in
effect. The parties further agree that in the event such invalid or
unenforceable portion is an essential part of this Agreement, they shall
promptly commence negotiations, in good faith, for its replacement with a
substitute provision which most clearly reflects the original intent for
entering into this Agreement.
22. WAIVER
No delay or omission to exercise any right or remedy accruing to BCGI or
Distributor hereunder upon any breach or breaches or event of default or
defaults by BCGI or Distributor shall impair any right or remedy of any
subsequent breach or default of the same, or any different, breach or default.
23. SCOPE
Nothing contained herein shall be construed to constitute the parties
hereto as partners, joint venturers or as agents of each other, but the
relationship shall be one of independent contractors with BCGI providing the
Services described hereunder to Distributor for the consideration set forth
in this Agreement and any Exhibits/Attachments hereto.
24. BENEFIT
This Agreement and the rights granted are solely for the benefit of the
parties hereto, their successors and assigns. No third person shall acquire
any rights or claims by reason of or under this Agreement, except as both
parties hereto shall agree in writing, or in cases as set out in Section 15.
above.
25. FORCE MAJEURE
No default in performance of any obligation hereunder shall constitute
an event of default or a breach of this Agreement, to the extent that such
failure to perform, delay or other default arises out of a cause that is
beyond the reasonable control and without negligence of the party otherwise
chargeable with such default, including, but not limited to, acts of God,
interruption of power, utility, transportation or communications services,
action of civil or military authority, sabotage, national emergencies or
catastrophe. Either party desiring to rely upon any of the foregoing as an
excuse for default shall give to the other party prompt written notice of the
facts which constitute such excuse, and when such excuse ceases to exist,
prompt notice thereof to the other party. This Section shall in no way limit
the right of either party to make any claim against any third party for any
damages suffered due to said causes.
26. ARBITRATION
Except for any disputes which may arise pertaining to Section 13.A. above,
all disputes between the parties, their successors and assigns, arising under
this Agreement, not involving injunctive relief, which have not been resolved
within thirty (30) days after notice by one party to the other of such dispute
in the manner set forth above, shall conclusively and finally be settled by
arbitration in accordance with the Commercial Arbitration rules of the American
Arbitration Association then obtaining. Either party may institute arbitration
by giving written notice to the other party of intention to arbitrate, which
noticeshall contain the name of the arbitrator selected by the party, the
nature of the controversy, the amount involved, if any, the remedies sought,
and any other pertinent matter. Within fifteen (15) days after the giving of
such notice, the other party shall submit to the initiating party the name of
an arbitrator whom it has appointed and may submit an answering statement.
Within fifteen (15) days thereafter the two (2) arbitrators so appointed shall
select a third arbitrator. If any party fails to choose an arbitrator within
the fifteen (15)-day period herein provided, or if the arbitrators appointed
by the parties cannot agree on the other arbitrator within fifteen (15) days
of the appointment of the second arbitrator, such arbitrator(s) shall be
appointed by the American Arbitration Association. The arbitration hearings
shall be held, unless otherwise mutually agreed upon by the parties, in Tulsa,
Oklahoma. Any decision or award signed by at least two (2) of the arbitrators
shall be final and binding upon the parties and may be entered in any court
having jurisdiction thereof. The losing party agrees to pay to the prevailing
party reasonable attorney's fees and costs awarded in such arbitration.
27. CUSTOMS, DUTIES, IMPORT OR EXPORT LICENSES
As the Territory is located outside of the United States, all customs,
dutiesand other governmental charges attributable to export or the import of
BCGI Products by Distributor shall be paid by Distributor. If export or import
of BCGI Products requires a license or approval by governmental authorities,
acceptance or shipment of any order shall be subject to the issue of such
license or approval by the appropriate governmental agency having jurisdiction
thereof.
28. COMPLIANCE WITH UNITED STATES EXPORT LAWS
BCGI and Distributor understand and agree as follows:
A. Distribution or re-export by Distributor of the Products to any country
other than the country authorized as part of the Territory is strictly forbidden
and may constitute a violation of United States ("U.S.") law. Exports of the
Products from the Territory may require prior U.S. governmental approval.
B. Distributor hereby agrees that it will abide by U.S. export laws and
regulations that apply to the distribution of the Products, including any and
all U.S. Department of Commerce regulations under 15 C.F.R. 373.3 (governing
Distribution licenses). Distributor shall consult BCGI on all matters that
may involve controlled exports under U.S. laws.
C. Distributor agrees to retain for a period of at least two (2) years and
to make available for inspection by the U.S. Office of Export Administration
or other U.S. government agency all records of any sales or re-export of the
Products by Distributor and all other forms, documents, correspondence,
memoranda, books or other records relating to sales of the Products by
Distributor.
D. Distributor agrees not to sell, re-export, or otherwise transfer any
Product if Distributor has reason to know that the Product will be delivered
or re-exported to unauthorized destinations or end-users.
E. Distributor certifies that it will not drop-ship any Product unless it
is being sent to an authorized customer in the Territory.
29. COMPLIANCE WITH OTHER LAWS
Each party agrees to comply with all laws and governmental regulations
applicable to the conduct of its business and the performance of its
obligations under this Agreement.
30. INFRINGEMENT INDEMNIFICATION
Distributor shall promptly notify BCGI if any person or entity claims that
any Product infringes any patent, copyright or other right of any third party.
BCGI shall at its expense defend, indemnify and hold harmless Distributor and
its customers against any suit, proceeding or claim brought against Distributor
and/or its customers to the extent it is based on a claim that any Product
furnished hereunder constitutes an infringement of any patent, copyright or
the intellectual property rights of any third party in the Territory, provided
that: (i) BCGI is promptly informed in writing and furnished a copy of each
communication, notice or other action relating to the alleged breach or
infringement; (ii) BCGI shall have control over the defense and negotiations
for a settlement or compromise; (iii) BCGI is given, by Distributor and its
customers, all reasonable authority, information and assistance (at BCGI's
expense) necessary to defend or settle such suit or proceeding; and (iv)
Distributor or its customers incurs no obligation or liability without the
prior writing consent of BCGI. The foregoing obligation of BCGI does not apply
to any Product or portion or component thereof: (a) which is modified by persons
or entities other than BCGI (or persons or entities employed or contracted by
BCGI) if the alleged infringement relates to such modification; or (b) which
is combined with other products, processes or materials not supplied or
recommended by BCGI where the alleged infringement relates to such combination.
If the event that any Product is held to constitute such an infringement, BCGI
shall, at its option, either: (i) procure for Distributor and its customers
the right to continue to use the applicable Product; (ii) replace or modify the
applicable Product so it becomes non-infringing; or (iii) remove the Product
and refund Distributor the undepreciated portion of the Price paid by
Distributor for such Product, assuming a thirty-six (36)-month straight-line
depreciationschedule. This Section states the entire liability of BCGI with
respect to infringement of any copyrights, patents, or other intellectual
property rights by the Products.
31. FINDER'S FEE
In the event that the end user customer or BCGI desires to have a direct
sale, leasing or service bureau relationship with each other, and if
Distributor has provided the customer lead (as mutually agreed upon between
BCGI and Distributor), BCGI will pay Distributor a finder's fee ("Finder's Fee")
equal to ten percent (10%) of the fee BCGI charges such end user customer for
such Product. Such Finder's Fee(s) will be due to Distributor upon BCGI's
shipping the Product to such end user customer and payable to Distributor
within forty-five (45) days from the date of such shipment. BCGI agrees to
notify Distributor, in writing, each time BCGI so enters into an agreement with
any such end user customer, and to keep Distributor advised as to the planned
and actual shipment date for such Product(s). This Finder's Fee arrangement
will apply to the Territory, and only for the Products (excluding custom
development or Services).
32. FUTURE RELATIONSHIP(S)
It is the intent of both parties hereto to transition toward a business
relationship as described in Phases 2, 3 and 4 below. The timing of such a
transition would be subject to mutual agreement by the parties hereto and may
require separate, negotiated agreements and or amendments and/or addenda to
this Agreement.
Phase 2: Distributor would resell BCGI's then-existing prepaid
application and database platform, but would use industry-standard Voice Node
and Database hardware components directly purchased by Distributor. In this
scenario, Distributor would pay BCGI a license fee for theBCGI software
applications and documentation and purchase any unique BCGI hardware components.
Distributor would be responsible for integration, final assembly and testing of
the systems. Distributor would also be responsible for BCGI's costs in
shipping all software, documentation and unique components to Distributor's
San Jose facility.
Phase 3: Distributor would resell BCGI's then-existing prepaid application
that would utilize Distributor's Series 6 product platform as the voice node.
BCGI would assist Distributor in interfacing BCGI's database platform to
Distributor's voice node. Distributor would continue to use industry standard
hardware components for the database platform. In this scenario, Distributor
would pay BCGI a license fee for the BCGI software applications and
documentation and purchase any unique BCGI hardware components. Additionally,
this scenario would require Distributor and BCGI to undertake joint research
and development. Further agreement as to ownership and marketing rights
regarding such joint research and development would be addressed by the parties.
Distributor would be responsible for integration, final assembly and testing of
the systems. BCGI would be responsible for shipping all software, documentation
and unique components to Distributor's San Jose facility.
Phase 4: WIN Platform. Both parties hereto agree to work jointly to
determine, under a separate agreement, a WIN-based BCGI-Distributor prepaid
offering.
33. F.C.C. CERTIFICATION
BCGI agrees that, at the time of shipment, all Products sold to Distributor
hereunder shall, when required, be in compliance with Parts 15 and 68 of the
United States FederalCommunications Commission's Rules and Regulations.
Distributor is responsible to obtain all local type approvals when required to
install, maintain and connect to the public telephone network. BCGI agrees to
cooperate with Distributor to secure all such approvals.
34. LIMITATION
No action, regardless of form, arising out of or related to this Agreement,
may be brought by either party more than one (1) year after the cause of action
has accrued.
35. LICENSING OF SOFTWARE
All references herein to the "sale" of software (or to the "sale" of
Products, to the extent Products incorporate software) shall mean solely the
grant of a license to use the software on the terms set forth herein. All
references to the "purchase" of software (or to the "purchase" of Products, to
the extent Products incorporate software) shall mean solely the obtaining of a
license to use the software on the terms set forth herein.
36. BRANDING
BCGI and Distributor agree to co-brand the Prepaid System under a
trademark to be mutually agreed upon.
37. ORDER OF PRECEDENCE
Should the terms and conditions of any Exhibit to this Agreement conflict
with the terms and conditions of the principal portion of this Agreement, the
terms and conditions of the principal portion of this Agreement shall govern
38. NON-SOLICITATION
Each party hereto acknowledges that the other party has spent considerable
time and effort building expertise in prepaid wireless technology and that the
loss of an employee would harm such party. Therefore, each party hereto agrees
that during the term of this Agreement it will not solicit the employment of
any then-current or previous employee of the other party ("Employer") unless
a period of six (6) months has elapsed from the last date that such employee
was employed by such Employer, without the prior written consent of such
Employer.
39. MOST FAVORED CUSTOMER
In the event that BCGI shall enter into any agreement with any other
person, firm or corporation which provides lower prices for the same products
and services provided by this Agreement for comparable volumes and upon
comparable terms and conditions as those contained herein ("Preferred Prices"),
Distributor shall have full right and power to avail itself of such prices as
if the same were written into this Agreement; and BCGI agrees to notify
Distributor promptly of any such other agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective executive officers being hereunto duly
authorized.
BCGI Distributor:
By:/s/ Bill Hampton By: /s/ Thomas E. Burton
Name:Bill Hampton Name: Thomas E. Burton
Title: VP of Operations Title:
Date: January 17, 2000 Date: January 11, 2000
DISTRIBUTION AGREEMENT
Exhibit A
Territory
The "Territory" is:
North America - United States and Canada (for any wireline or
wireless customer mutually agreed upon on a case by case basis);
and
The remainder of the world outside of North America
DISTRIBUTION AGREEMENT
Exhibit B
Products and Services
The Products and Services covered by this Agreement include
the following:
BCGI's existing Prepaid Systems (including software applications,
voice node and other hardware components, and database platform, but
excluding Prepaid Connection.)
Custom development of BCGI Prepaid System features and functionality,
as set out in Exhibit C, Section II.
Tier 2 Maintenance and Support services (as described in Exhibit G
below) during the Warranty and Post-Warranty period.
DISTRIBUTION AGREEMENT
Exhibit C
Pricing
I. Products
The prices which Distributor shall pay BCGI for the Products are set
forth in the price list which begins on the following page and is
incorporated into this Exhibit C.
Prices are subject to change during the Term by mutual, negotiated
agreement of the parties. However, prices will not change within ninety
(90) days from any previous change, any price increases will not become
effective until ninety (90) days from the date BCGI notifies Distributor
in writing, and any price decreases will become effective on the day
BCGI notifies Distributor in writing.
II. Custom Development Services
Prices shall be based on scope of work provided by the Distributor
and/or its end user customer or sub-distributor.
Prices shall be based on the development time required and prevailing
BCGI hourly rates and other charges. Such rates and charges shall be
provided to Distributor at the then current Preferred Prices. See the
attached current price list for the initial rates.
III. Tier 2 Maintenance and Support Services
During the warranty period, such Tier 2 maintenance and support
Services will be provided to Distributor by BCGI at no charge.
Subsequent to the warranty period, any and all such Services requested
by Distributor will be provided by BCGI at prices equal to BCGI's then
current Preferred Prices. See the attached current price list for the
initial rates.
PRICE LIST
*
BCGI Part Description BCGI List Centigram
Number Cost
Hardware
TSC-99 Tri-Server * *
BMS-R1 Base Mini-Server * *
DMS-R2 Dual Mini-Server * *
RES-200-5-256 Responder (200/5.0gig IDE 256 ram) * *
TIN-200-5-128 TIN's IDE (200/5.0 gig IDE 128 ram) * *
ST-RAS-5-128 Spare TIN's IDE (200/5.0 gig IDE 128 ram) * *
& RAS Server
9GB-TNRD-SCSI TIN SCSI Non-Redundant Data * *
(200/9.0x1 128 ram)
9GB-STNRD-200 Spare TIN SCSI Non-Redundant Data * *
(200/9.0x1 128 ram)
4.5-SCSI-TRD TIN SCSI Redundant Data * *
(200/4.5x2 128 ram)
4.5-200-STRD Spare TIN SCSI Redundant Data * *
(200/4.5x2 128 ram)
TRD-SCSI-9GB TIN SCSI Redundant Data * *
(200/9.0x2 128 ram)
STRD-200-9GB Spare TIN SCSI Redundant Data * *
(200/9.0x2 128 ram)
99-0831-015 D480 2xT1 * *
99-0831-015 D480 2xT1 N+1 (Spares) * *
ADC-DAM Admin Cabinet * *
EXC-DAM Expansion Cabinet * *
99-2123-101 D300 2xE1 * *
99-2123-101 D300 2xE1 N+1 (Spares) * *
460RC Balun Panel * *
460F Baluns with cables * *
HC-ANI99 Hydra Cable * *
VL400 14" SVGA Monitor * *
CHAT-40108-519 Monitor Shelf * *
SHL-KBD RackMount Keyboard/mouse * *
AS/O-99 Arc Servit w Oracle option * *
242456-001 Dlt Backup 15/30 with 2 tapes * *
BCA0026 Filler Panels * *
1654-48-120-60-P Wilmore Power Supply * *
02164-01 Heatshield * *
ALSX-6 Seismic install kit * *
CHAT-46353515 Chatsworth Rack * *
3C16670A Hub 10 base * *
3C16981 12 port Switch * *
3C16980 24 Port switch * *
729797 Jazz Drive 2 gig w (1) 2 gig cartridge * *
010-0B13-ND-5CON Oracle 8 (5) concurrent * *
O8E-WG-8CON Oracle 8 (8) concurrent * *
SVX-16U/LDG 16 position continuity switch * *
KVM-4UPA 4 position continuity switch * *
PP-RK-9909 Rackmount Kit * *
99-3473-001 SS7 Card * *
99-3477-001 SIU 131 * *
99-3482-001 SIU 231 * *
[Information marked with a "*" has been omitted pursuant to a request for
confidential treatment. This information has been filed with the secretary
of the Securities Exchange Commissionb.]
SHL-S20 Rack Adapter * *
PACK-DAMAC Packaging & Freight * *
Software
PPD301000 PrePaid Software, per port, 1-1199 ports * *
PPD301000 PrePaid Software, per port, 1200-2159 ports * *
PPD301000 PrePaid Software, per port, 2160 +++ ports * *
CCD301000 Calling Card Software, per port add-on *
TLS301000 TLS Software, per port add-on *
Services
TBD Custom Languages - BCGI records prompts *
TBD Custom Languages - customer records prompts *
TBD Training (per person per day, not including T&E)* *
TBD Installation (quoted case-by-case)
TBD Annual Support Fee (price per port) *
TBD Post Warranty Maintenance (annual %) *
2nd/or 3rd year only
[Information marked with a "*" has been omitted pursuant to a request for
confidential treatment. This information has been filed separately with the
secretary of the Securities Exchange Commission.]
DISTRIBUTION AGREEMENT
Exhibit D
Terms of Shipment
I. All shipments made by BCGI under this Agreement are FOB Tulsa, Oklahoma.
II. The provision of all shipping instructions for BCGI to adhere to shall be
the responsibility of Distributor. The Products will be shipped directly from
BCGI to the end user customer of Distributor or Distributor's sub-distributor
unless specified otherwise in the System Sale Agreement.
III. All transportation, rigging and draying charges are the responsibility of
Distributor.
IV. The time schedule between BCGI's receipt of an order from Distributor and
BCGI's shipment of the Product will be specified in the System Sale Agreement.
Any Distributor-initiated delays in shipping beyond this schedule may subject
Distributor to carrying charges as reasonably determined by BGCI. BCGI shall
notify Distributor within three (3) business days if any order cannot be filled
according to the delivery schedule requested, and will use its best efforts to
ship Products on the delivery dates specified in its written acceptance of any
purchase order.
DISTRIBUTION AGREEMENT
Exhibit E
Payment Terms
I. Timing. Invoices shall be due and payable forty-five (45) days after
shipment of product or delivery of service.
II. Payment shall be made to BCGI in U.S. funds by check or wire transfer, at
Distributor's option.
III. Late Payments. Payments of any invoiced amount received after the invoice
due and payable date shall be considered late payments, and shall bear interest
at the rate of one and one half percent (1.5%) per month or the maximum allowed
by applicable law, whichever is less.
IV. If Distributor becomes the subject of a voluntary or involuntary petition
in bankruptcy or any proceeding relating to insolvency, receivership,
liquidation or composition for the benefit of creditors and therefore BCGI
determines that the financial condition of Distributor does not justify the
terms of payment extended herein, BCGI may require, in advance, full payment
or require other payment arrangements.
V. Payments contracted for post-warranty maintenance and support are payable
quarterly in advance.
DISTRIBUTION AGREEMENT
Exhibit F
Standard Warranty
I. Equipment. BCGI warrants that Distributor shall acquire good
title to the equipment included in the Products purchased by Distributor, and
that upon payment in full of the purchase price, such equipment shall be free
and clear of any security interest, lien, claim, or encumbrance of any kind
imposed by or through BCGI. BCGI warrants that the equipment shall be free
from defects in material and workmanship under normal use and service for a
period of fifteen (15) months from the date of shipment. The equipment must
be plugged into a functioning Uninterruptable Power Supply (UPS), which
provides battery back-up and surge/spike protection, or the warranty is void.
The obligation of BCGI under this warranty does not arise until the equipment
is returned to BCGI in Tulsa, Oklahoma, or to Distributor. Upon receipt ,
BCGI shall, at its option, as soon as practicable or, in any event, within
thirty (30) days of receipt, either repair or replace, without charge, the
defective component part(s) and return the equipment, shipping prepaid and
billed. If repair or replacement is not possible, BCGI shall retain such
defective component and refund the purchase price and freight of such
defective component.
II. Software. BCG warrants that the software included in the Products
shall conform to the then-current published documentation applicable to such
software for a period of fifteen (15) months from the shipment date. In the
event that BCGI receives notice from Distributor during the warranty period
that the software does not conform to this warranty, BCGI will, as soon as
practicable or, in any event, within thirty (30) days of notice, at its
option, resolve or provide a solution for such software faults at no charge to
Distributor, providing Distributor (or Distributor's customer) can replicate
the symptoms of the fault. If resolution or provision of a solution is not
available, BCGI shall refund the purchase price of the software and hardware
upon which it operates, in exchange for return of such software and hardware.
III. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS EXHIBIT F.,
BCGI MAKES NO WARRANTIES WITH RESPECT TO THE PRODUCTS, DOCUMENTATION AND/OR
ANY HARDWARE AND/OR SOFTWARE INCLUDED IN ANY PRODUCT, EITHER EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
THE WARRANTY OBLIGATIONS OF BCGI SHALL IN NO EVENT INCLUDE RESPONSIBILITY
FOR DAMAGE RESULTING FROM ACCIDENT, TRANSPORTATION, NEGLECT OR MISUSE,
MODIFICATION WITHOUT BCGI'S PRIOR CONSENT, UNAUTHORIZED ATTEMPTS TO REPAIR, OR
FAILURE OF ELECTRICAL POWER OR ENVIRONMENTAL CONTROL.
DISTRIBUTION AGREEMENT
Exhibit G
Maintenance and Support Services
BCGI will provide Tier 2 maintenance Service during the warranty period of
each Product. This Service is continued under a post-warranty Maintenance
Agreement which is renewable on an annual basis. The Tier 2 maintenance
includes:
I. Software maintenance
II. 24X7 telephone technical support
III. Return to factory repair or replacement
IV. On-site Service, when remote support fails to resolve a problem
I. Software Maintenance
A. Maintenance Releases
BCGI engineering is committed to continuing to improve the quality and
performance of all the Products. These improvements are reflected in periodic
Maintenance Releases, which shall include regular updates (minor releases) and
upgrades (major releases) issued by BCGI that are typically installed by
Distributor with BCGI support services. Maintenance Releases are primarily
focused on improving existing functionality and performance as well as fixing
software problems.
B. Hot Fixes
Some service calls may uncover software problems that may not have a
temporary work-around solution. These problems require a "hot fix". These
fixes are developed as needed and installed immediately. These fixes are
typically installed by Distributor, with BCGI support services as needed.
C. New Versions
BCGI will continue to expand its product line, developing new products,
or significantly changing or enhancing existing products. In contrast to
Maintenance Releases, these products will be made available at additional
cost, upon request through the BCGI sales department.
II. 24X7 Telephone Technical Support
The primary support vehicle of BCGI is the Telephone Technical Support Hot
Line. It will be provided during the term of this Agreement to Distributor on
a twenty-four (24) hours by seven (7) days basis and will provide access to
Distributor's skilled technical support personnel.
The Hot Line is used to initiate the following BCGI Service activity:
Installation, technical or operational inquiries
Post Installation Technical or operational inquiries
Product failure diagnosis and repair
Defective parts replacement
To maximize the effectiveness and timeliness of support actions,
Distributor is responsible for notifying BCGI support (Hot Line) as soon as a
serious condition has been identified to be beyond Distributor's capability to
resolve.
III. Return to Factory Repair or Replacement
BCGI repairs or replaces failed components via a Return Material
Authorization ("RMA") process. An RMA is issued by BCGI Telephone Technical
Support upon completed diagnosis or provision of failure data.
BCGI shall, when requested by Distributor, provide Distributor with
advance replacement hardware part(s) required for Distributor's correction
of defective Product(s) which has been assigned an RMA. In the event
Distributor does not return to BCGI the part(s) advance shipped under the
RMA within sixty (60) calendar days, BCGI may at its option issue an invoice
to Distributor for the then-current preferred pricing for the part(s) advance
shipped under the RMA. All defective hardware parts, which have been replaced,
shall become the property of BCGI, and Distributor shall return such hardware
parts, prepaid by Distributor, to BCGI's designated place of repair. All
defective hardware parts that have been repaired shall become the property of
Distributor.
BCGI will only issue RMA's for hardware components that are covered under
the BCGI initial warranty term or BCGI extended hardware warranty term. If the
hardware components are not under the initial warranty term or the extended
warranty term, then BCGI will charge Distributor the then current preferred
replacement and repair rates. If BCGI issues an RMA to Distributor prior to
3 p.m., BCGI will ship the subject components to Distributor/Distributor's
end-user on that same day.
Unauthorized modifications using non-BCGI-provided products or components
to either Product components, network configurations or software will void
BCGI warranty and post-warranty Maintenance Agreement terms.
Unauthorized installation of any non-BCGI software onto BCGI Product
components will void BCGI warranty and post-warranty Maintenance Agreement
terms.
If any or all of the hardware or software was not subject to continuous
maintenance coverage for any period of time after the initial maintenance term,
the hardware and software is subject to a complete on-site Product inspection
by BCGI personnel and the Product must be upgraded to currently BCGI-supported
revision levels and minimum hardware performance specifications. The
inspection and upgrade costs will be billed in addition to the maintenance
contract fee, including necessary travel related expenses.
IV. On-Site Assistance
On-site assistance, when all reasonable activity has not produced a
resolution path and the Product is covered by either warranty, post-warranty
maintenance, or extended warranty, will be provided by BCGI at no additional
cost. BCGI and Distributor must mutually agree that on-site support is
necessary. BCGI personnel will arrive at the customer site as soon as possible
after agreement that on-site support is needed.
If it is determined that BCGI's hardware or software did not cause the
problem, then Distributor shall reimburse BCGI for the on-site assistance at
Preferred Prices.
DISTRIBUTION AGREEMENT
Exhibit H
Distributor Responsibilities
Distributor will undertake the following:
I. Sales and Service Coverage. To provide BCGI-trained sales, technical and
service coverage to Distributor's customers for the Products.
II. Warranty Registration and Service Log. To properly register the warranty
for each and every Product sold, including customer name and location, and to
maintain a log of all service activity, reporting such data periodically to
BCGI, such that BCGI can properly track, investigate, and resolve Product
service problems. Distributor agrees to accomplish via its "Clarify" system.
BCGI agrees to provide Distributor with all information required by
Distributor in order for Distributor to accomplish this task.
III. Customer Service. To respond to customer service requests with
trained technicians in a timely fashion.
IV. Lead Follow Up. To follow up on each and every qualified sales lead from
BCGI and report on the results of such field sales efforts.
V. Customer Complaints. To respond promptly to any customer complaints which
may be referred to Distributor from BCGI.
VI. Change Orders and Cancellations.
A. Distributor may make a change in an order provided such change
does not affect the price of the order by more than ten percent (10%) and
further provided that such change is received by BCGI no less than ten (10)
days prior to its scheduled shipment date.
B. Distributor may cancel an order, or any portion thereof, without
charge, provided such notice of cancellation is received by BCGI no less than
thirty (30) days prior to its scheduled shipment date.
VII. System Environment
The Products contain delicate electronic components that require special
care in:
A. Physical handling
Product components must be handled with care. If transportation of
components is required, the components must be packed either in their
original packaging or such that they are able to withstand a drop of
three (3) feet (one [1] meter).
B. Air conditioning
Product components are rated to operate within fifty-four (54) to
eighty-six (86) degrees Fahrenheit (twelve [12] to thirty [30] degrees
Celsius) and a relative humidity level less than seventy percent (70%)
non-condensing.
C. Power conditioning
The Product must be connected to Uninterruptable Power Supply with
appropriate surge/spike protection.
Non-conformance with this requirement will void BCGI's warranty and
Extended warranty agreement terms.
VIII. Integration
Some BCGI systems may require an interface to another system. It is
the Distributor's responsibility to provide the correct interface not supported
in BCGI's standard product offering as outlined in Exhibit B to this Agreement.
IX. Site Data Capture
Upon completing any given installation, it is Distributor's responsibility
to complete the attached BCGI data capture form and send it to BCGI.
X. System Configuration
During the Product warranty period and subsequent maintenance contract, no
modifications to any Product components or network configurations may be made
without prior approval and assistance of BCGI technical support. Nonconformance
will void BCGI's warranty and post warranty Maintenance Agreement terms.
XI. First Level Technical Support
During the initial warranty period and all post warranty maintenance
periods, Distributor shall provide end user training and day-to-day technical
support. In no event will BCGI be obligated to provide hot-line or other
technical support service directly to end-users, except as mutually agreed to
by BCGI and Distributor.
XII. Technical Skills and Training
The Product requires specialized training to operate effectively and
efficiently. It is important that the Product's operational staff be properly
trained and skilled in operating and managing Windows NT networking systems.
BCGI recommends Distributor's technical support personnel and end-user's
operational staff attend locally available training classes for Windows NT
network operation and management.
XIII. System Backup
To protect against possible loss of data, Distributor should inform
end-users of the importance of backing up the Product on a regular basis in
accordance with the Product's users guide.
XIV. Dial-in Access
The support Services offered by BCGI are based on the premise of being
able to remotely access, diagnose, analyze, and tune each Product. To that
end, Distributor should ensure the end-user provides a dedicated, direct-dial,
data-grade telephone line for each physical site/location and provide
permission to access that line to BCGI technical support as needed.
XV. BCGI Privileges
Diagnosis, fixes, performance analysis and tuning activities that can be
performed via remote dial-in access require unrestricted Product access
privileges granted to BCGI telephone technical support personnel. Access is
protected via "Username/Password" combinations.
Remote dial-in access requires knowledge of "Remote Access Telephone
Number", "Domain Name", "Username" and "Password". The Windows NT "Remote
Access Services" (RAS) will reject any unauthorized access.
Only BCGI and Distributor will be authorized to utilize remote dial-in
access. BCGI and Distributor personnel are obligated not to reveal phone
numbers or access passwords to unauthorized parties.
XVI. Physical Access
During Product installation, major repairs or major Product upgrades, it
may be necessary for Distributor to have physical access to the Product.
To maximize the responsiveness and expediency of Distributor or BCGI
Service activities, it may be necessary for the end-user to grant twenty-four
(24)-hour access to Distributor or BCGI technical support personnel.
XVII. Country-Level/On-Site Spares Kits
Distributor will exercise diligence in selling a minimum of N+1 redundant
spares at each customer site. Additionally, Distributor will exercise diligence
in maintaining in-country spares sufficient to avoid excessive down time due
to material shortages caused by delays in importing spare parts.
DISTRIBUTION AGREEMENT
Exhibit I
BCGI Responsibilities
BCGI shall have the following additional responsibilities during the term
of the Agreement:
I. Sales Materials.
To make available, at reasonable cost, "soft" copies of sales support
materials such as product brochures, data sheets, user guides, applications
briefs, sales notebooks, formal sales presentations in overhead, slide, or
flip chart form, and other such material necessary to aid in the selling
process, as such materials are updated from time to time.
II. Marketing Support.
To provide Distributor with timely reports detailing marketing or
technical information on the Products, competitive comparisons, special sales
or service suggestions, competitive announcements, and to respond promptly to
all inquiries and requests for help from Distributor.
III. Advertising Permission.
To permit Distributor to advertise the Products under tradename(s) and
trademark(s) to be mutually agreed by BCGI and Distributor.
IV. Sales and Technical Training.
To provide field sales and sales technical support training for
Distributor's sales force at BCGI's corporate offices, or Distributor's
location as agreed upon, and to assist in direct customer contacts as required.
V. Sales Leads.
To periodically provide Distributor, at BCGI's discretion, with qualified
sales leads applicable to Distributor sales from BCGI's advertising publicity
campaigns; provided however, that Distributor pursues and further qualifies
such leads with its sales force.
VI.
Installation and Cutover Assistance.
BCGI shall, upon request from Distributor, make available at the
installation site and at such other times as may be requested by Distributor,
a qualified field engineer to render installation, cutover and customer
assistance as may be required by Distributor. Distributor shall pay BCGI its
then-current preferred time and materials rates for such assistance.
VII. Support Assistance.
BCGI shall provide Distributor with support Services as set out in
Exhibit G during the warranty period for each Product, at no charge to
Distributor.
VIII. Hardware Life Support.
BCGI shall use commercially reasonable efforts in accordance with
reasonable inventory and sourcing practices to offer functionally equivalent
spare hardware parts as available from industry sources for a period of five
(5) years from the date of last manufacture of the respective Product.
IX. Documentation.
One (1) set of English language manuals, in modifiable electronic format,
for the Products will be provided by BCGI to Distributor at every release of
the Products (includes one [1] set of any and all updates to such manuals).
Additional copies of such manuals are available from BCGI at the then current
Preferred Prices. The translation of the manual into a language other than
English is at the discretion of Distributor, who assumes all risk of
translation error.
X. Installation Planning
BCGI provides a site preparation document describing in detail the
necessary steps that have to be completed before an installation can begin.
If Distributor has received written approval from BCGI to perform system
installations of the Product, BCGI service personnel will be available to
consult and assist Distributor in the planning process; however, ultimately
the project plan is the responsibility of Distributor. In general, these
activities do not require on-site presence of BCGI personnel. However, BCGI
personnel may be requested to inspect a site for its then-current fees for
such services.
In the event BCGI personnel are to be involved in the installation, and
upon the return to BCGI of a completed Site Preparation CheckList, BCGI will
work with Distributor to schedule an installation as quickly as possible. In
the event BCGI personnel are to be involved in the installation, Services will
be provided at a rate as set forth in the then-current preferred BCGI
Installation Price List.
XI. Installation, Setup and Test
In the event BCGI personnel are to be involved in the installation, BCGI
will, at Distributor's request, help setup, install and configure all Product
components and ensure that all functions work as represented. It is the
end-user's responsibility to provide the necessary space and to install power
and other environment requirements.
In the event that BCGI support personnel need to work with the end-user
to resolve a problem, they will ask Distributor to initiate the call and
remain involved in the resolution process. BCGI support personnel may not
contact Distributor customers on their own.
If BCGI receives a call from a known Distributor customer, that call will
be redirected to Distributor immediately, via a supervised transfer. Any call
to the BCGI Technical Support HotLine will be sent to Distributor's Customer
Support Center - 408-432-2600.