Exhibit 12
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Revised 5/2000
ASSOCIATE AGREEMENT
WHEREAS, NEC AMERICA, INC. ("NECAM"), a New York Corporation, with a principal
place of business located at 1555 West Walnut Hill Lane, Irving, Texas 75038,
and All Pro Communications, ("ASSOCIATE"), with offices at 3644 Washington Road,
McMurray, Pennsylvania 15317, desire to enter into an agreement to govern the
purchase and sale of telecommunications products ("Agreement"),
NOW, THEREFORE, in consideration of the mutual promises contained herein, NECAM
and Associate agree as follows:
GENERAL TERMS & CONDITIONS APPLICABLE 10 ALL PRODUCTS AND SERVICES
1. PRODUCTS; SERVICES; TERRITORY; DISCOUNT
(a) "PRODUCTS" and "SERVICES" as used herein shall mean products and
services listed in the PRODUCTS and SERVICES Appendices attached
hereto and made a part of this Agreement. The "PRODUCTS" shall be
limited to the versions of hardware and software for the products
specified in such PRODUCTS Appendices. Notwithstanding anything
contained herein to the contrary, NECAM may refuse to accept orders
from ASSOCIATE for PRODUCTS which are the subject of such Appendices
herein unless and until ASSOCIATE can demonstrate to NECAM's
reasonable satisfaction that ASSOCIATE shall be able to provide
installation, maintenance and support services to Associate's
customers for such PRODUCTS in accordance with NECAM's standards,
either by utilizing its own employees who have successfully completed
applicable NECAM training as provided herein, or by utilizing the
services of third parties who are authorized and certified by NECAM
(or a combination of both).
(b) (i) "PBX" as used herein shall mean hardware PRODUCTS as designated in
the attached NEAX(R)2400 and NEAX(R)2000 IVS & NEAX(R) 1000 IVS/VSP
PRODUCT' Appendices. (ii) "Applications" as used herein shall mean
computer software which resides and is executed outside of the PBX
hardware PRODUCTS.
(c) Proprietary models of the PRODUCTS developed by NECAM and/or its
affiliates for third parties shall not be subject to sale to ASSOCIATE
pursuant to this Agreement. As used herein, the term "proprietary"
shall mean models of the products developed by NECAM and/or its
affiliates, based upon unique and/or special design or cosmetic
specifications.
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(d) In its sole discretion, NECAM may add additional types or enhanced
versions of PRODUCTS or SERVICES to the scope of this Agreement.
(e) NECAM reserves the right to:
(1) discontinue the manufacture or distribution of particular models
of various types of PRODUCTS and /or the provision of SERVICES or
(2) change or modify specifications, features, models, housings,
and/or other aspects of PRODUCTS and/or the provision of SERVICES
upon written notice to ASSOCIATE pursuant to Section 35;
(f) TERRITORY means the geographic area designated in each PRODUCT
Appendix.
(g) DISCOUNT means the discount designated in the applicable PRODUCT
Appendix.
2. AGREEMENT TO SUPPLY
(a) NECAM hereby appoints the ASSOCIATE as an NEC America, Inc. ASSOCIATE
to sell and otherwise distribute PRODUCTS to end-user customers and to
provide installation, repair, maintenance, training and related
services solely in the TERRITORY designated on the applicable PRODUCT
Appendix. The ASSOCIATE agrees to aggressively promote the sale and
distribution of PRODUCTS within the TERRITORY, including but not
limited to achievement of the minimum purchase requirements, which may
be set forth in the applicable PRODUCT Appendices. The ASSOCIATE
further agrees to provide first-class installation, maintenance,
repair and related services for such PRODUCTS as set forth herein in
accordance with highest industry standards.
(b) When ordering PRODUCTS, ASSOCIATE shall fill out and include with such
of its orders as NECAM may designate, a Customer Software License
Agreement, Exhibit C, or such other form, as NECAM, in its sole
discretion, shall require.
(c) ASSOCIATE shall not sell, distribute, install or maintain PRODUCTS
outside of the TERRITORY defined in the applicable PRODUCTS Appendices
without the prior written consent of NECAM.
3. PURCHASE ORDERS; ORDER ACCEPTANCE; CREDIT
(a) Each purchase order submitted by Associate shall specify model types
and quantities and shall specify accessories and options or supplies
(if applicable). In addition, such orders shall include:
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(1) A description of the ordered PRODUCTS, inclusive of any
numerical/alphabetical identification referenced in NECAM's
respective brochures, manuals or publications regarding such
PRODUCTS.
(2) The requested delivery date.
(3) The applicable price (reflecting any applicable discount).
(4) The location to which such PRODUCTS are to be shipped.
(5) A Customer Software License or such other form as may be required
pursuant to Section 2 (b) herein.
(6) If ordering PRODUCTS intended to be subject to government
contract provisions, the conspicuous notice required by Section
30(b) of this Agreement.
(b) NECAM may accept Purchase Orders by electronic data exchange provided
the ASSOCIATE agrees in writing to the attached Electronic Data
Interchange Agreement, Exhibit A.
(c) The terms and conditions of this Agreement shall apply to all orders
placed by ASSOCIATE for PRODUCTS described herein. In the event of
conflict between the terms or conditions of this Agreement and terms
or conditions which may appear on the face or reverse side of the
Associate's orders form or NECAM's acknowledgment form, including but
not limited to price or discount terms or conditions, the terms and
conditions of this Agreement shall control. NECAM hereby expressly
rejects any additional terms or conditions contained in ASSOCIATE's
order form, regardless of any language contained in ASSOCIATE's order
form stating that NECAM's acceptance of the order constitutes NECAM's
acceptance of the inclusion of such additional terms or conditions. If
this Agreement is silent as to a particular subject, the ASSOCIATE
hereby agrees that the terms and conditions, which appear on the
reverse side of NECAM's acknowledgment, shall control over the terms
and conditions, which appear in the ASSOCIATE's order form.
(d) Orders for PRODUCTS shall be considered accepted upon acknowledgment
by NECAM; provided, however, that
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(1) NECAM may revoke or alter its acknowledgment and acceptance at
any time within five (5) days after NECAM's acknowledgment, or
(2) NECAM may withhold shipment of PRODUCTS to ASSOCIATE at any time,
if ASSOCIATE has failed to make timely payment for any previous
NECAM invoice for PRODUCTS or SERVICES.
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(e) Nothing in this Agreement shall be deemed to have established, or have
prevented the establishment of, suitable credit arrangements between
NECAM and ASSOCIATE. Such credit arrangements and/or limitations shall
be as reasonably determined by NECAM from time to time, in its sole
discretion.
4. PAYMENT; SERVICE CHARGES FOR PAYMENT DELINQUENCY
(a) Payment for PRODUCTS and SERVICES is due sixty (60) days from date of
invoice. Payment shall be payable in U.S. dollars. Payments may be
made via approved credit cards. However, ASSOCIATE will be subject to
a service charge in an amount equal to the actual processing fees
charged to NECAM by the credit card issuer.
(b) Payments received by NECAM after their due dates will be subject to a
monthly service charge, which service charge will accrue against the
sum of all late payments for such month, plus outstanding amounts due
from previous months (if applicable). The rate at which the service
charge will be computed will be:
(1) 2% above the Chase Manhattan Bank preferred lending rate in
existence as of the close of business on the last day of the
month for which NECAMs statement is rendered, compounded monthly,
or
(2) the highest interest rate permitted by applicable law, whichever
is less.
(c) In addition to NECAM's remedy concerning late payment(s) provided in
Section 4(b), NECAM may withhold or delay shipment(s) of the
ASSOCIATE's order(s) for PRODUCTS and SERVICES until any payment owed
by the ASSOCIATE to NECAM which is overdue is made in full.
(d) Any payment by the ASSOCIATE which is less than
(1) the sum of all amounts owed by ASSOCIATE to NECAM for the
purchase of PRODUCTS and SERVICES, and
(2) the total of all outstanding service charges may be applied by
NECAM within its sole discretion, to ASSOCIATE's account
chronologically, by invoice date. For each such invoice, payment
may be applied first to the relevant service charge and then to
the principal amount of the invoice itself, regardless of
contrary instructions received from the ASSOCIATE. Service
charges are due and payable upon NECAMs issuance of a service
charge invoice.
5. SECURITY AGREEMENT
(a) In order to secure payment of ASSOCIATE's payment obligations under
this Agreement, ASSOCIATE grants to NECAM a security interest in the
following:
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(1) the PRODUCTS which ASSOCIATE purchases from NECAM,
(2) the proceeds of the sale, lease, installation, servicing, repair
or maintenance of all such PRODUCTS (including, but not limited
to, the related accounts),
(3) contract rights related to the sale or lease of any of the
PRODUCTS, and
(4) the list of all customers to whom ASSOCIATE has sold or leased
NECAM PRODUCTS or provided related installation, servicing,
repair or maintenance services.
(b) If ASSOCIATE defaults in its payment obligations to NECAM, NECAM may,
in its discretion, declare all such payment obligations immediately
due and payable, and in such event NECAM shall have all the rights and
remedies of a secured party under the UCC.
(c) Also, in such event, ASSOCIATE shall cooperate fully with NECAM's
exercise of its rights under this Section, including but not limited
to the turnover of all information required by NECAM to enforce its
security interests hereunder, including all accounts receivable and
customer records, and the notification of customers directing that
payments on accounts receivable be sent directly to NECAM or its
designee.
(d) ASSOCIATE agrees to promptly sign and return to NECAM all documents
which are deemed by NECAM to be necessary or prudent to perfect or
otherwise protect the priority, validity and continuity of the
security interest granted by ASSOCIATE to NECAM in Section 5(a). Such
documents may include (but not necessarily be limited to) an
appropriate UCC-1 form. In the event ASSOCIATE fails to execute such
document(s), then, to the extent permitted by law, NECAM may file such
documents without obtaining ASSOCIATE's signature, as ASSOCIATE's
attorney-in-fact (but only for this limited purpose). ASSOCIATE
further agrees that NECAM may file a copy of this ASSOCIATE Agreement
to perfect or protect the priority, validity and continuity of such
security interest as may be permitted by applicable law.
6. TERM
(a) This Agreement will commence on the date signed by an authorized
representative of NECAM, and will continue until June 30, 2001, unless
terminated in accordance with the provisions of this Agreement.
(b) This Agreement shall automatically renew each year, for an additional
one (1) year period, after the original term, unless written notice of
nonrenewal is provided by NECAM at least thirty (30) days prior to the
anniversary date or in accordance with applicable state law
requirements which may require a longer notice period or by ASSOCIATE
at least fifteen (15) days prior to the anniversary date. The
discounts applicable to the
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PRODUCTS listed on the Appendices shall be adjusted effective on the
renewal date based on the discount schedules set forth on such
Appendices.
(c) NECAM reserves the right to revise the terms of this Agreement,
including but not limited to, PRODUCT authorizations or the minimum
purchase requirements on the PRODUCTS Appendices or to redefine the
TERRITORY designated therein effective upon such renewal by providing
written notice pursuant to Section 35 of this Agreement of such
deletion, revision or redefinition at least thirty (30) days prior to
the anniversary date.
(d) Upon receipt of such notice in Section 6(c) above, ASSOCIATE may
provide fifteen (15) days written notice of nonrenewal of the
Agreement as provided in Section 6(b) above.
7. PRICES; PRICE CHANGES
(a) Prices for PRODUCTS and/or SERVICES to which discounts shall apply (if
such discounts are applicable, as provided for herein) shall be as
published and/or quoted by NECAM.
(b) NECAM shall be entitled to change prices for PRODUCTS or SERVICES upon
thirty (30) days prior written notice to ASSOCIATE, pursuant to
Section 35 of this Agreement, provided, however, that such price
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changes shall not be applicable to PRODUCTS or Services for which a
written price quotation had been issued prior to the date of NECAM's
notice of such price change, and such written quotation offered to
maintain the quoted price available for a time period longer than the
time period between the date of NECAM's notice of price change and the
effective date of such price change.
NECAM shall be entitled to change prices for PRODUCTS or SERVICES upon
thirty (30) days or less prior written notice to ASSOCIATE, pursuant
to Section 35 of this Agreement, if the proposed price changes are
directly due to price changes given to NECAM by third party vendors
which provide some or a part of the PRODUCTS and SERVICES. Such price
changes described in this Sub-Section (c) shall be applicable to
PRODUCTS or SERVICES for which a written price quotation had been
issued prior to the date of NECAM's notice of such price change unless
ASSOCIATE has relied upon the price quotation in issuance of a
quotation to a potential customer.
8. TRANSPORTATION
NECAM shall ship from NECAMs facility capable of supplying ASSOCIATE via
the best way as arranged by NECAM, unless otherwise instructed by
ASSOCIATE. Transportation charges shall be prepaid by NECAM and added to
the invoice to be paid by ASSOCIATE as a separate item.
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9. INSPECTION AND ACCEPTANCE
(a) All PRODUCTS ordered pursuant to this Agreement shall be subject to
inspection by ASSOCIATE after delivery to determine their conformity
with the identification of material set forth in ASSOCIATE's purchase
order. If the PRODUCTS delivered are not listed on such purchase
order, ASSOCIATE shall have the right to reject such PRODUCTS.
ASSOCIATE shall have a period of twenty (20) days following placement
of the PRODUCTS within possession of the carrier within which to
inspect the PRODUCTS for conformity with ASSOCIATE's purchase order
and to provide NECAM with written notice of acceptance or rejection.
Unless such written rejection is communicated to NECAM within such
time period, ASSOCIATE shall be deemed to have accepted the PRODUCTS.
In the event written notice of rejection is given, NECAM will promptly
undertake to remedy the delivery in a manner deemed by NECAM to be
appropriate under the circumstances. No PRODUCTS may be returned to
NECAM without its consent.
(b) Loss or damage to PRODUCTS which occurred during delivery of PRODUCTS
shall not be a permissible basis upon which to reject PRODUCTS; the
provisions of Section 11, "F.O.B., & RISK OF LOSS" shall be
applicable.
(c) Defects in PRODUCTS shall not be a permissible basis upon which to
reject PRODUCTS; ASSOCIATE shall invoke the provisions of the
applicable "WARRANTY" section herein to remedy such defects.
(d) Upon completion of the SERVICES provided, NECAM shall submit a notice
of completion of SERVICES to the ASSOCIATE. Failure of the ASSOCIATE
to submit to NECAM written notice of objections within two (2) days
after issuance of the completion notice shall constitute acceptance of
the completion of the SERVICES. Acceptance of SERVICES for each type
of SERVICES is outlined in the corresponding Appendix.
10. SHIPPING AND BILLING
For Orders placed hereunder, NECAM shall:
(a) At the ASSOCIATE's direction, ship to the ASSOCIATE's warehouse or to
the customer's address specified on the Customer Software License
Agreement, Exhibit C, or such other form as may be required under
Section 2(b).
(b) Remit invoices, statements and notices to the address as designated in
Section 35 unless advised otherwise agreed to by NECAM.
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11. F.O.B.; TITLE & RISK OF LOSS
(a) Shipments of all PRODUCTS sold to ASSOCIATE hereunder shall be made
F.O.B. NECAM's warehouse(s) or F.O.B. Port of Entry, whichever is
applicable in accordance with NECAM's prevailing policies for various
types of PRODUCTS.
(b) Title to PRODUCTS and risk of loss or damage to PRODUCTS shall pass to
ASSOCIATE when PRODUCTS are placed in the possession of the carrier at
the respective F.O.B. points of shipment. ASSOCIATE shall be
responsible for assertion of claims against carriers for loss or
damage to PRODUCTS; such loss or damage will not relieve ASSOCIATE of
its obligation to pay NECAM for the PRODUCTS.
12. SHIPPING IN INTERVAL
(a) Lead times for delivery of PRODUCTS applicable to each Order will be
determined by system size and specific configurations required, and
typical lead times shall be quoted by NECAM upon ASSOCIATE's request.
(b) No firm delivery date for PRODUCTS shall be binding upon NECAM unless
such date is explicitly agreed to in a writing signed by an officer or
authorized representative of NECAM.
13. ASSOCIATE'S SERVICES
(a) NECAM's appointment of ASSOCIATE was and will continue to be
predicated upon ASSOCIATE's commitment to provide installation,
maintenance, repair and customer training services in accordance with
highest industry standards. As a minimum requirement to meet the above
commitment, ASSOCIATE agrees to:
(1) Maintain an adequate number of service centers in the TERRITORY
as reasonably determined by NECAM, equipped with adequate numbers
and types of spare parts, technical and engineering manuals,
product brochures and other similar items relating to PRODUCTS;
keep NECAM notified of the location(s) of such service center(s),
and permit NECAM to inspect such location(s), without advance
notice, during normal business hours.
(2) Staff such service center with engineering and repair personnel
sufficient in number and skill, and provide them with the means
to be able to reach by ground transportation any place within the
TERRITORY to perform prompt repair services for PRODUCTS within a
period of two (2) hours of receipt of a telephone call from a
customer requesting such repair service. Notwithstanding the
foregoing, the ASSOCIATE's precise obligations regarding response
time shall be a matter to be agreed upon between ASSOCIATE and
its end-user customers.
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(3) Permit NECAM personnel to inspect the quality of the ASSOCIATE's
installation, maintenance and repair services on the site of any
installed PRODUCT during normal business hours. The ASSOCIATE
agrees to use its best efforts to secure the customer's consent
for NECAM personnel to visit the installation site, when such
consent is required.
(4) Offer full maintenance services for PRODUCTS to all of the
ASSOCIATE's customers.
(5) Offer appropriate customer training services for PRODUCTS sold or
otherwise distributed by the ASSOCIATE to all of the ASSOCIATE's
customers. Such customer training shall include training in the
use of PRODUCTS and is the sole responsibility of the ASSOCIATE.
(6) From time to time, as reasonably requested by NECAM, cause an
appropriate number of the ASSOCIATE's personnel to attend
training sessions conducted by NECAM, concerning PRODUCTS in
accordance with Section 14. NECAM reserves the right to establish
criteria, including but not limited to successful completion of
such training sessions for the issuance of Technician
Identification Numbers identifying those employees of ASSOCIATE
who are certified with respect to particular PRODUCTS. No
employee of ASSOCIATE shall install, maintain or service PRODUCTS
until such employee is certified by NECAM with respect to the
particular PRODUCT. Technical support will be provided by NECAM
only to those ASSOCIATE employees possessing valid Technician
Identification Numbers. Technician Identification Numbers will be
suspended or terminated immediately upon the termination of said
technician's employment with the ASSOCIATE or upon termination or
nonrenewal of this Agreement. In addition to generalized training
on particular systems, NECAM may require ASSOCIATE technicians to
complete specialized training to obtain certification to service
particular subsystems or peripheral products. NECAM may require
such specialized training and certification as a prerequisite to
obtaining telephone support from the National Technical
Assistance Center (NTAC). NECAM may, in its sole discretion,
waive such certification requirement in a particular instance, in
which case NECAM may charge its customary rates for any telephone
support provided.
(7) In ordering PRODUCT(S) and SERVICES, ASSOCIATE shall submit all
documentation as may be requested by NECAM, including, but not
limited to, such as may be required pursuant to the NECAM Leasing
Services Product Appendix (Exhibit B) and the Extended Hardware
Warranty Products Appendix.
(8) (1) Conduct business in a manner that reflects favorably at all
times on the PRODUCTS and the good name, goodwill and reputation
of NECAM; (ii) avoid deceptive, misleading or unethical practices
that are or might be detrimental to
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NECAM, the PRODUCTS, end-users or the public, including but not
limited to disparagement of NECAM or PRODUCTS; (iii) make no
false or misleading representations with regard to NECAM or the
PRODUCTS; (iv) not publish or employ or cooperate in the
publication or employment of any misleading or deceptive
advertising material; (v) to make no representations, warranties
or guarantees to customers or to the trade with respect to the
specifications, features or capabilities of PRODUCTS that are
inconsistent with the literature distributed by NECAM, including
all warranties and disclaimers contained in such literature, if
any and; (vi) or violates NECAM's Ethics Policy which is hereby
incorporated by reference and may be amended from time to time.
ASSOCIATE shall defend, indemnify and hold NECAM harmless from
any third party claims or lawsuits alleging that ASSOCIATE has
violated the terms of this Section 13(a)(8).
(9) ASSOCIATE will not disseminate, or use for purposes not
specifically permitted by NECAM, either during or after the
termination of this Agreement, any information designated as
"CONFIDENTIAL" and disclosed by NECAM, and will restrict
dissemination of such Confidential Information to its own
personnel on a "need-to-know" basis. ASSOCIATE acknowledges that
premature revelation of NECAM confidential information can have
serious and irreparable impact on NECAM's business; therefore, in
addition to all other remedies at law, the parties agree that
injunctive relief would be appropriate to prevent breach of this
provision.
(10) ASSOCIATE shall notify NECAM immediately if its identity or the
nature of its business is materially changed by bulk transfer of
assets, sale of its business, transfer of control of its
outstanding stock, merger, or otherwise.
(11) ASSOCIATE must have Internet access capability to access notices
which NECAM may post on its Web Page at http://www.cng.nec.com.
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Notices shall be deemed effective on the date they are posted on
the Web Page.
(12) In order to support the above commitments, ASSOCIATE agrees to
comply with other reasonable requests by NECAM from time to time,
which are designed to promote ASSOCIATE's adherence to the
highest industry standards. Failure of the ASSOCIATE to comply
with any of the requirements of this Section shall subject the
ASSOCIATE to possible termination under Section 16, and shall
entitle NECAM to immediately invoke one or more of the remedies
set forth in Section 16(c).
14. TRAINING
NECAM may make available to ASSOCIATE training courses for ASSOCIATE's
personnel in marketing, installation, operation and maintenance according
to published schedules. Non-refundable registration fees, training fees,
and training materials fees (if applicable) will be charged at NECAM's
prevailing rates. No discounts shall apply to such rates. ASSOCIATE
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shall bear the cost of transportation, meals, lodging and any other
incidental expenses of ASSOCIATE's personnel to, from and during such
training. If mutually agreed upon by NECAM and ASSOCIATE, training may be
held at an off-site location (i.e., not at NECAM's headquarters facility)
designated by ASSOCIATE. In such a case, in addition to the above mentioned
charges, ASSOCIATE shall bear the cost of transportation, meals and lodging
for NECAM's instructor(s) as well as all costs and expenses incurred in the
handling and transportation of necessary demonstration equipment. ASSOCIATE
must comply with all applicable guidelines issued by NECAM with respect to
off-site training. The ASSOCIATE must provide adequate and sufficient
demonstration equipment or systems for its students. Except as specifically
agreed by NECAM in its sole discretion, NECAM will not provide equipment or
systems for off-site training. Only demonstration equipment can be used for
off-site training, and such demonstration systems and/or equipment cannot
subsequently be sold to an end-user as new equipment.
15. REPORTS
(a) In order to assist NECAM in its efforts to monitor ASSOCIATE's
performance hereunder, ASSOCIATE will, as may be required by NECAM:
(1) Meet with NECAM's representative at the ASSOCIATE's principal
place of business, as frequently as may be reasonably required by
NECAM, for a review of the market conditions in the TERRITORY and
ASSOCIATE's performance under this Agreement, including its
achievement of applicable PRODUCT purchases. Purchases of
PRODUCTS for resale outside the TERRITORY are not permitted
without NECAM's prior written consent and shall not be considered
in adjusting ASSOCIATE's discount pursuant to Section 6(b).
(2) Submit to NECAM, on a quarterly basis, an estimate of the
ASSOCIATE's PRODUCT needs for the next two (2) succeeding
quarters in the form required by NECAM.
(3) Submit to NECAM on or before the twentieth (20th) business day
following the end of each quarter, a written report in the form
required by NECAM stating the ASSOCIATE's sales of PRODUCTS
within the TERRITORY during the preceding calendar quarter and
the ASSOCIATE's stocks on hand of PRODUCTS as of the last day of
the preceding quarter.
(4) Submit to NECAM audited copies (or unaudited copies, if the
ASSOCIATE's financial statements are not audited) of the
ASSOCIATE's latest financial statements within sixty (60) days
following the end of the ASSOCIATE's fiscal year, and if
financial statements are also prepared quarterly on an unaudited
basis, also such unaudited quarterly statements, within sixty
(60) days following the end of each calendar quarter or sooner if
requested by NECAM.
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(5) Submit to NECAM, on a quarterly basis, a list of all current
employees certified by NECAM to perform installation, maintenance
and repair services for each of the PRODUCTS listed on the
PRODUCT Appendices, or update, as requested, the list of such
certified employees maintained by NECAM.
16. TERMINATION
(a) This Agreement may be terminated, in full or in part, effective
immediately, without liability for said termination, upon the
occurrence of any of the following events:
(1) an ASSOCIATE files a voluntary petition in bankruptcy,
(2) an ASSOCIATE is adjudged bankrupt,
(3) a court assumes jurisdiction of the assets of an ASSOCIATE under
a federal reorganization act,
(4) a trustee or receiver is appointed by a court for all or a
substantial portion of the assets of an ASSOCIATE,
(5) an ASSOCIATE becomes insolvent or suspends its business,
(6) an ASSOCIATE makes an assignment of its assets for the benefit of
its creditors except for the company's line of credit from its
lender in the normal course of business,
(7) the identity of an ASSOCIATE or the nature of its business is
materially changed by bulk transfer of assets, sale of its
business, transfer of control of its outstanding stock, merger,
or otherwise,
(8) ASSOCIATE fails to make payment for any NECAM invoice for
PRODUCTS or SERVICES within thirty (30) days of the due date for
payment of such invoice.
(9) any other Agreement between ASSOCIATE and NECAM terminates or
expires, pursuant to the terms and conditions of such agreement,
(10) ASSOCIATE breaches any of the terms and conditions of Section 37
governing the use of NECAM's trade names or trademarks,
(11) ASSOCIATE sells PRODUCTS to any other resellers (including but
not limited to NECAM distributors),
(12) ASSOCIATE sells, installs, maintains or services PRODUCTS outside
of its Authorized TERRITORY, without NECAM's prior written
consent, or
(13) ASSOCIATE subcontracts without NECAM's prior written consent to
an entity other than an Authorized ASSOCIATE or Authorized Fusion
VAR,
(14) ASSOCIATE assigns any of its rights or responsibilities hereunder
except as permitted herein or with NECAM's prior written consent,
or
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(15) ASSOCIATE breaches the terms of Section 13(a)(8).
(16) ASSOCIATE provides false or misleading information on the
Associate Application or any supplement thereto.
(b) The entire Agreement or portions thereof relating to specific types of
PRODUCTS or specific portions of ASSOCIATE's authorized TERRITORY may
be terminated by NECAM, in the event that:
(1) ASSOCIATE knowingly provides false information on a "Customer
Software License Agreement, Exhibit C",
or
(2) ASSOCIATE fails to provide installation, maintenance, repair and
support SERVICES in accordance with NECAM's and industry
standards for such specific type of PRODUCTS or within specific
portions of ASSOCIATE'S authorized TERRITORY.
(c) In the event of any default or failure on the part of a party in the
performance of any of its duties, obligations or responsibilities
under this Agreement, other than default or failure specified in
paragraphs 16(a) or 16(b) above, the non-defaulting party may
terminate this Agreement, provided that with respect to defaults
susceptible of immediate cure, the defaulting party had been given
fifteen (15) days prior written notice of the default and failed to
cure the default within such fifteen (15) day period.
(d) Except in those cases where ASSOCIATE has been terminated because of a
breach of its obligations under Section 13, NECAM may complete any
order for PRODUCTS accepted by NECAM prior to termination and will
accept and complete any order for PRODUCTS where ASSOCIATE, prior to
the effective date of termination, has entered into a binding contract
for the resale of such PRODUCTS to an end-user. Notwithstanding the
foregoing, NECAM may condition acceptance and completion of such
orders on reasonable conditions which NECAM may impose, including but
not limited to prior payment in full for these and any other previous
orders, proof of a binding contract with an end-user customer, and/or
subcontracting of service obligations to an Authorized ASSOCIATE.
17. RIGHTS UPON TERMINATION
(a) In the event of termination by NECAM, NECAM has the right to
accelerate all outstanding payment obligations and shall have all the
remedies of a seller under the New York Uniform Commercial Code,
including, but not limited to, the remedies provided for in Section
2-702, 2-703, 2-704 and 2-705 of such Code, where applicable.
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(b) Neither party shall be liable to the other under any legal or
equitable theory for compensation, reimbursement for investments or
expenses, lost profits or incidental or consequential damages of any
other kind or character as a result of any termination or nonrenewable
of this Agreement.
18. CANCELLATION OF PURCHASE ORDERS; REVOCATION OF ACKNOWLEDGMENTS
(a) In the event that NECAM shall fail to deliver material within ten (10)
days of a firm delivery date established pursuant to Section 12(b),
then ASSOCIATE shall have the right to cancel such Order.
(b) In the event that ASSOCIATE shall be in material breach or default of
any terms, conditions or covenants of this Agreement (including, but
not limited to, timely payment for PRODUCTS purchased), then (in
addition to all other rights and remedies contained herein, or at law,
equity or otherwise) NECAM shall have the right to suspend delivery of
PRODUCTS on all outstanding Orders, or revoke its acknowledgment of
any such Order.
19. NON-EXCLUSIVE MARKET RIGHTS
(a) NECAM reserves its right to:
(1) directly or through its subsidiaries, affiliates, agents or any
other type of distribution entity market, sell, license or
distribute any type of telecommunications products whether or not
listed in the PRODUCTS Appendices or provide installation,
repair, maintenance and related SERVICES for any such
telecommunications products, wherever NECAM deems necessary or
appropriate.
(2) directly, or through its subsidiaries, affiliates, agents or any
other type of distribution entity distribute, install, license
and/or maintain (directly or indirectly) any such
telecommunications PRODUCTS,
(3) utilize the customer identification information contained on the
Customer Software License Agreement, Exhibit C, or such other
form as NECAM shall require, to conduct surveys or perform other
marketing functions, as NECAM deems necessary or appropriate.
NECAM will notify ASSOCIATE prior to commencement of such
marketing activities.
20. INFRINGEMENT
(a) In the event of a claim or suit against ASSOCIATE and/or end-user
alleging (a) the PRODUCTS and/or SERVICES as sold or licensed by NECAM
infringe any patent issued by or copyright registered in the country
in which the PRODUCTS and/or
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SERVICES were sold or licensed to ASSOCIATE, NECAM shall defend
ASSOCIATE and/or end-user to the extent the claim or suit concerns
such infringement, provided ASSOCIATE and/or end-user give NECAM
prompt notice of such claim or suit and continuous cooperation in such
defense.
(b) In any claim or suit against ASSOCIATE and/or end-user that is
defended by NECAM pursuant to paragraph (a) above, NECAM shall control
the defense, shall pay all litigation costs, including reasonable
attorney's fees incurred by NECAM in such defense, and shall indemnify
ASSOCIATE and/or end-user for all damages awarded by a court or
settlement payments approved by NECAM, provided the ASSOCIATE has
incorporated in its agreement with the end-user the warranty
exclusions and liability limitations provided for in Sections 20, 21,
22 and 31 of this Agreement.
(c) If, in any claim or suit against ASSOCIATE and/or end-user that is
defended by NECAM pursuant to paragraph (a) above, as a result of a
court order not subject to further appeal or a settlement approved by
NECAM, ASSOCIATE is enjoined or otherwise prevented from selling or
end-user is enjoined from using the PRODUCTS or SERVICES sold or
licensed by NECAM, NECAM, at its option, may (a) procure for ASSOCIATE
the right to continue selling or for end-user the right to continue
using the PRODUCTS or Services, (b) replace or modify the PRODUCTS or
Services to avoid infringement, or (c) repossess the PRODUCTS or
discontinue the Services in exchange for a refund of the depreciated
value of the PRODUCTS or SERVICES. NECAM's option selected under this
paragraph shall be ASSOCIATE's and/or end-user's sole remedy for any
prospective effects of any court order or settlement.
(d) NECAM's total cumulative liability under paragraphs (b) and (c) above
shall be limited to the price paid to NECAM by ASSOCIATE for the
PRODUCTS and/or SERVICES together with payment of all litigation costs
as provided for in paragraph (b) above.
(e) Notwithstanding any other provision of this Article, NECAM shall not
be obligated to defend and shall not be liable for costs or damages
awarded in any claim or suit for infringement in which (a) the
PRODUCTS were made or SERVICES were rendered by NECAM pursuant to
specifications supplied by ASSOCIATE and/or the end-user, or (b) the
alleged infringement is based on use by ASSOCIATE and/or the end-user,
without NECAM's permission, of the PRODUCTS and/or SERVICES as sold by
NECAM in combination with another item not sold by NECAM, where the
alleged infringement arises from the combination or from practice of a
method made possible by the combination, or (c) the alleged
infringement is based on the PRODUCTS and/or SERVICES as modified by
ASSOCIATE and/or end-user without NECAM's written permission.
21. HARDWARE WARRANTY
(a) As to any hardware PRODUCTS purchased by the ASSOCIATE in accordance
with the terms of this Agreement, NECAM warrants for fourteen (14)
months from the date of shipment to ASSOCIATE that the hardware
PRODUCTS:
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(1) will conform to the applicable specifications for such hardware
PRODUCTS published by NECAM at the time of sale, and
(2) will be free from defects in material and workmanship, under
normal use and service when correctly installed and maintained,
(3) will be Year 2000 Compliant only to the extent specifically set
forth on the NEC Web Page at http://www.cng.nec.com.
(b) NECAM reserves the right to modify the duration or terms of the
warranty upon written notice to the ASSOCIATE.
(c) NECAM's liability for any hardware PRODUCT which is shown to be
defective during its warranty is limited to:
(1) replacing the hardware PRODUCT or part thereof with a
functionally equivalent hardware PRODUCT or part,
(2) repairing the hardware PRODUCT, or
(3) issuing credit for the hardware PRODUCT
(d) NECAM shall select which of the above warranty remedies to utilize
concerning any particular hardware PRODUCT.
(e) In the event that any hardware PRODUCT is shown to be defective during
the warranty period, the ASSOCIATE, or such Authorized ASSOCIATE as
may be providing service to the end-user to whom such PRODUCT has been
sold or leased, shall:
(1) notify NECAM promptly in writing of any claims,
(2) provide NECAM with an opportunity to inspect and test the
hardware PRODUCTS claimed to be defective, and
(3) if repair or replacement of the hardware PRODUCT is selected by
NECAM, return the hardware PRODUCT to NECAM only in accordance
with NECAM's then current Material Return Authorization ("MRA")
policy and procedures, which are incorporated herein by reference
and are subject to change by NECAM from time to tune.
(f) The above warranty excludes coverage for hardware PRODUCTS which were
installed, repaired or maintained by an unauthorized service provider
or which were subjected to misuse, abuse, improper installation or
application, improper maintenance or repair, alteration, accident or
negligence in use, improper temperature, humidity or other
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environmental condition (including, but not limited to, lightning or
water damage), storage, transportation or handling, unless caused by
NECAM or its authorized representative.
(g) NECAM's hardware PRODUCTS warranty extends only to ASSOCIATE and
ASSOCIATE is not authorized to assign this warranty to its customers
or to any other party. Rather, the ASSOCIATE agrees to extend a
hardware PRODUCTS warranty to its end-user customers which is no
greater in substance and scope than that extended by NECAM to
ASSOCIATE, and which shall incorporate the warranty exclusions and
liability limitations provided in Sections 21(e), 21(h) and 31.
(h) All hardware PRODUCTS warranty claims must be forwarded to NECAM by an
Authorized ASSOCIATE. NECAM will accept no hardware PRODUCTS warranty
claims from former ASSOCIATES whose ASSOCIATE Agreements have expired
or been terminated, or directly from ASSOCIATE's customers. The
warranty shall not operate to extend the term of ASSOCIATE's Agreement
and shall terminate immediately upon termination or nonrenewal of the
Agreement or of ASSOCIATE's authorization to sell the covered warranty
components. In such event, ASSOCIATE hereby consents to the assignment
of the warranty to a then currently Authorized NECAM ASSOCIATE.
(i) THE HARDWARE PRODUCTS WARRANTY CONTAINED IN THIS AGREEMENT IS IN LIEU
OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (BUT NOT
LIMITED TO) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, INCLUDING BUT NOT LIMITED TO PREVENTION, DETECTION
OR DE REFERENCE OF TOLL FRAUD, COMPUTER VIRUSES OR OTHER UNAUTHORIZED
OR IMPROPER USE OF THE HARDWARE PRODUCTS.
22. SOFTWARE LICENSE AND SOFTWARE WARRANTY
(a) As to any PBX and/or Applications software PRODUCTS licensed to the
ASSOCIATE in accordance with the terms of this Agreement, NECAM
warrants PBX software for fourteen (14) months and Applications
software for one-hundred-fifty (150) days from date of shipment to
ASSOCIATE that the software PRODUCTS:
(1) will conform to the published specifications for such software
PRODUCTS, applicable at the time of licensing and
(2) will be free from defects in material and workmanship, under
normal use and service when correctly installed and maintained,
(3) will be Year 2000 Compliant only as specifically set forth on the
NEC Web Page at http://www.cng.nec.com.
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(b) Certain PRODUCT(S) being introduced may have different wan any
periods. NECAM reserves the right to modify the duration or terms of
the warranty upon written notice to ASSOCIATES in accordance with
Section 35 of this Agreement.
(c) NECAM's liability for any software PRODUCT which is shown to be
defective during its wan any period is limited to:
(1) replacing the PRODUCT or part thereof with a functionally
equivalent software PRODUCT or part,
(2) repairing the PRODUCT, or
(3) issuing credit for the software PRODUCT.
(d) The choice of which of the above warranty remedies to utilize
concerning any particular software PRODUCT shall be NECAM's.
(e) In the event that any software PRODUCT is shown to be defective during
the warranty period, the ASSOCIATE or such Authorized ASSOCIATE which
may be providing service to the end-user to whom such software PRODUCT
has been licensed shall:
(1) notify NECAM promptly in writing of any claims,
(2) provide NECAM with an opportunity to inspect and test the
software PRODUCTS claimed to be defective, and
(3) (if repair or replacement of the software PRODUCTS is selected by
NECAM) return the software PRODUCTS to NECAM only in accordance
with NECAM's then current Material Return Authorization policy
and procedures, which are incorporated herein by reference and
are subject to change by NECAM from time to time.
(f) Unless caused by NECAM or its authorized third party representatives,
the above warranty excludes coverage for software PRODUCTS which were
installed, repaired or maintained by an unauthorized service provider
or which were subjected to misuse, abuse, improper installation or
application, improper maintenance or repair, alteration, accident or
negligence in use, improper temperature, humidity or other
environmental condition (including, but not limited to, lightning or
water damage), storage, transportation or handling.
(g) Except as otherwise provided in writing, NECAM's software PRODUCTS
warranty extends only to ASSOCIATE and ASSOCIATE is not authorized to
assign this warranty to its customers. Rather, the ASSOCIATE agrees to
extend a software PRODUCTS warranty to its customers which is no
greater in substance and scope than that extended by
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NECAM to ASSOCIATE, and which shall incorporate the warranty
exclusions and liability limitations provided in Section 22(d) , 22(g)
and 31. NECAM shall not be liable for software PRODUCTS warranty terms
extended by the ASSOCIATE to its customers which are different from or
greater than those set forth above.
(h) Except as otherwise provided in writing, all software PRODUCTS
warranty claims must be forwarded to NECAM by an Authorized ASSOCIATE.
NECAM will accept no software PRODUCTS warranty claims from former
ASSOCIATES whose ASSOCIATE Agreements have expired or been terminated
or directly from ASSOCIATE's customers. The warranty shall not operate
to extend the term of ASSOCIATE's Agreement and shall terminate
immediately upon termination or nonrenewal of the Agreement or of
ASSOCIATE's authorization to sell the covered warranty components. In
such event, ASSOCIATE hereby consents to the assignment of the
warranty to a then currently Authorized NECAM ASSOCIATE.
(i) THE SOFTWARE PRODUCTS WARRANTY CONTAINED IN THIS AGREEMENT IS IN LIEU
OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (BUT NOT
LIMITED TO) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, INCLUDING BUT NOT LIMITED TO PREVENTION, DETECTION
OR DETERRENCE OF TOLL FRAUD, COMPUTER VIRUSES OR OTHER UNAUTHORIZED OR
IMPROPER USE OF THE SOFTWARE PRODUCTS.
(j) NECAM hereby grants to ASSOCIATE a non-exclusive license in the
following rights in software PRODUCTS, which licensed rights may be
exercised by ASSOCIATE only when related to the resale by ASSOCIATE
within the TERRITORY or otherwise with NECAM's consent of related
hardware PRODUCTS purchased directly from NECAM:
(1) the right to distribute the software PRODUCTS,
(2) the right to use the software PRODUCTS for demonstration,
installation. maintenance and repair of related hardware PRODUCTS
as may be specified by NECAM,
(3) the right to grant sublicenses to end-users for the following
rights only:
(i) the right of the end-user to use the software PRODUCTS, but
only in conjunction with related hardware PRODUCTS sold by
an Authorized ASSOCIATE to the end-user,
(ii) the right of the end-user to make one (1) copy of the
software PRODUCTS for archival/back-up purposes,
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(iii)the right of the end-user to transfer the end-user's
software PRODUCTS rights to a third party who acquires title
to the end-user's related hardware PRODUCTS, provided such
transferee assents in writing to the conditions and
limitations of the sublicense and pays any applicable
transfer fee.
(k) The above license may be exercised by ASSOCIATE with respect to
specific software PRODUCTS only upon payment by ASSOCIATE of any
applicable licensing fee.
(l) NECAM reserves all other rights, title and interest to the software
PRODUCTS, and neither ASSOCIATE nor its end-user customers shall
acquire any rights, title or interest in the software PRODUCTS other
than as specifically set forth in this Section.
(m) ASSOCIATE and ASSOCIATE's customers may not:
(1) sublicense or distribute the software PRODUCTS except as
authorized by this Section, or
(2) reverse compile, disassemble, alter, add to, delete from, or
otherwise modify the software PRODUCTS, except to the extent that
such modification capability is an intended feature of the
software PRODUCTS.
(n) ASSOCIATE agrees to notify NECAM promptly in the event any of
ASSOCIATE's end-user customers violates the conditions of its
sublicense.
(o) ASSOCIATE hereby agrees to execute (and secure end-users' execution
of) any additional documents relating to software PRODUCTS as
reasonable required by NECAM from time to time, to protect the
respective rights, title and licensing interest of NECAM or third
parties to the software PRODUCTS. ASSOCIATE agrees to utilize standard
sublicensing forms, if provided by NECAM, for the purpose of licensing
or sublicensing software PRODUCTS to its end-user customers.
(p) ASSOCIATE's license shall continue in effect unless terminated by
NECAM due to:
(1) a breach by the ASSOCIATE of the terms of this Section,
(2) mutual agreement, or
(3) termination or expiration of this Agreement,
provided, however, that termination of such licenses shall not act to
rescind sublicenses granted by the ASSOCIATE in accordance with the
terms of this Agreement prior to termination of the ASSOCIATE's
license.
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(q) ASSOCIATE agrees to use best efforts to protect software PRODUCTS from
reproduction, modification or distribution except as specifically
authorized by this Agreement and to notify NECAM promptly if the
ASSOCIATE learns of any attempt to do so.
THE SOFTWARE LICENSE PROVISIONS CONTAINED IN THIS SECTION APPLY ONLY
TO SOFTWARE OWNED BY NECAM OR IT'S AFFILIATES. IN THE EVENT THAT IT
PROVIDES SOFTWARE OWNED (IN WHOLE OR IN PART) BY A THIRD PARTY, IT MAY
BE REQUIRED TO OBTAIN ASSOCIATE'S ASSENT TO DIFFERING OR ADDITIONAL
TERMS AND CONDITIONS IN ORDER TO LAWFULLY GRANT A LICENSE TO ASSOCIATE
FOR SUCH SOFTWARE. THEREFORE, IT RESERVES THE RIGHT TO WITHHOLD
PROVISION OF SUCH SOFTWARE UNTIL ASSOCIATE'S ASSENT IS OBTAINED.
23. REPAIR OR REPLACEMENT OF HARDWARE PRODUCTS NOT COVERED UNDER WARRANTY
(a) NECAM agrees, at its option, to repair hardware PRODUCTS, excluding
personal computers/servers and Applications no longer under warranty,
or to replace such hardware PRODUCTS with functionally equivalent
hardware PRODUCTS, for a period of no less than five (5) years after
such hardware PRODUCTS have been manufacturer-discontinued. Hardware
PRODUCTS to be repaired or replaced under this Section are to be
returned by an Authorized ASSOCIATE to a location designated by NECAM.
(b) If a hardware PRODUCT is returned to NECAM for repair as provided in
this Section, and is determined to be beyond repair, NECAM may, at its
option (i) return such hardware PRODUCT to the ASSOCIATE at
ASSOCIATE's expense or (ii) offer to sell to ASSOCIATE replacement
hardware PRODUCTS at NECAM's then current prices.
(c) Replacement and repaired hardware PRODUCTS shall be warranted as set
forth in Section 21. The repaired PRODUCT hardware warranty period
shall be six (6) months from the date of repair, or such other period
as NECAM may specify in writing.
(d) All transportation charges for, and risk of in-transit loss or damage
to, out-of-warranty hardware PRODUCTS returned to NECAM for repair
will be borne by ASSOCIATE. All transportation charges associated with
the return of such repaired and replaced hardware PRODUCTS to
ASSOCIATE shall be borne by ASSOCIATE and shall be prepaid by NECAM
and listed as a separate item on NECAM's invoice for repair. ASSOCIATE
shall bear the risk of in-transit loss and damage for shipments of
repaired or replaced hardware PRODUCTS.
(e) Prices for out-of-warranty repairs made pursuant hereto shall be
NECAM's prevailing charges. Discounts do not apply to such repair
charges.
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(f) ASSOCIATE hereby agrees to comply with NECAM's Material Return
Authorization ("MRA") procedures, as may be amended by NECAM from time
to time.
24. TECHNICAL SUPPORT
(a) ASSOCIATE shall be entitled to ongoing technical support, including
field service and assistance, provided, however, that the availability
or performance of this technical support service shall not be
construed as altering or affecting NECAM's warranty obligations as set
forth in this Agreement.
(b) Ongoing technical support via telephone will be available to ASSOCIATE
from NECAM at NECAM's then current charges. NECAM's field service
technical support shall be available to ASSOCIATE, including emergency
(service affecting) twenty-four (24) hour technical assistance as
determined by NECAM. Such field service technical support shall be
subject to availability of NECAM's technical support personnel.
Charges, if any, for such field service technical support will be
NECAM's then prevailing charges. No discounts shall apply to such
charges.
(c) NECCare(SM) Support Services: The ASSOCIATE may also purchase NECCare
----------------------------
Support Services from NECAM, instead of the forementioned standard
technical support service at the then current charges. Such NECCare
Support Services will be offered for sale to ASSOCIATES pursuant to
the NECCare Support Services Appendix.
(d) PROFESSIONAL SERVICES: The general complexity and multi-technology
----------------------
characteristics of converging technology products may make it
necessary for NECAM to provide additional customizing, optimizing and
consulting services to Associates seeking to provide Products and
Services to end-user customers. Such services, collectively known as
"Professional Services", will be offered for sale to ASSOCIATES
pursuant to the Professional Services Appendix. Fees for such services
will be at NECAM's then prevailing rates.
25. DOCUMENTATION
From time to time, NECAM may make available to ASSOCIATE various types of
documentation. Certain types of documentation may be made available to
ASSOCIATE via electronic media. Charges, if any, for documentation will be
at NECAM's prevailing charges.
26. ADVERTISING AND PROMOTION
Under the provisions of NECAM's applicable Cooperative Advertising Program,
ASSOCIATE may be eligible to accrue funds in an account to be used for
advertising, media and/or promotion efforts utilized to promote the sale of
PRODUCTS. These funds will be made available based upon the terms and
conditions of NECAM's Cooperative Advertising Program, as may be
22
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amended from time to time, the provisions of which are hereby incorporated
by reference as if fully set forth herein.
27. FORCE MAJEURE
NECAM shall not be responsible for any losses resulting if the fulfillment
by NECAM of any terms or provisions of this Agreement or any order is
delayed or prevented by revolution or other disorders, war, acts of
enemies, strikes, fires, floods, transportation delays or shortages, labor
disputes, riots, insurrections, accidents, storms, inability to obtain
materials or supplies, excessive demand for PRODUCTS over the available
supply, customs duties or surcharges, any interruption for any reason in
the manufacture of PRODUCTS by NECAM's suppliers, any act of God, the
action of any government, or other cause not within NECAM's control,
whether of the class of causes set forth above or not.
28. ASSIGNMENT
(a) Except as otherwise provided herein, the rights and obligations of the
parties hereunder shall not be assigned, subcontracted, delegated or
otherwise transferred without the prior written consent of the other
party, except provided that NECAM may assign or delegate its rights
and obligations hereunder, in whole or in part, to its parent or
subsidiary upon prior written notice to the ASSOCIATE.
(b) The limitation on assignment does not apply to an assignment confined
solely to monies due or to become due under this Agreement, provided
ASSOCIATE or NECAM is given thirty (30) calendar days prior written
notice of such assignment. Assignment of monies shall be void to the
extent that it attempts to impose upon ASSOCIATE or NECAM obligations
to the assignee additional to the payment of such monies, or to
preclude ASSOCIATE or NECAM from dealing solely and directly with the
other in all matters pertaining hereto, including negotiation of
amendments or settlement of amounts due.
29. TAX
Prices for PRODUCTS are exclusive of the following taxes, which shall be
added by NECAM to its invoice and payable by ASSOCIATE, unless ASSOCIATE
provides proof to NECAM of a valid exemption from the applicability of such
tax(es): Federal Excise Taxes which may be imposed, State and Local Sales
Taxes, and/or Use Taxes.
30. GOVERNMENT CONTRACTS
(a) The parties hereby acknowledge that NECAM typically has not sold
certain types of PRODUCTS which are included within the scope of this
Agreement for resale under government contracts. Accordingly,
notwithstanding any other provision(s) of this Agreement, and without
incurring any liability to ASSOCIATE or third party, NECAM
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hereby reserves the right to reject any ASSOCIATE Order for PRODUCTS
to which government contract provisions will apply.
(b) In the event that ASSOCIATE orders PRODUCTS to which Government
contract provisions are intended to apply, ASSOCIATE's order must
conspicuously state such fact on its face, for the purpose of
notifying NECAM and permitting NECAM the opportunity to consider
whether to accept or reject such order. If such order fails to have
such fact conspicuously stated on its face, then (notwithstanding
Section 3 (a)(6) or any other provision of this Agreement) NECAM shall
be automatically deemed to have rejected such order, and any
acknowledgment which NECAM may have issued for such order shall be
deemed void and of no effect.
(c) If the software PRODUCTS will be supplied to a unit or agency of the
United States government by ASSOCIATE, NECAM will supply commercial
computer software or commercial computer software documentation to be
acquired under licenses customarily provided to the public. NECAM
shall not be required to:
(1) Furnish technical information related to commercial computer
software or commercial computer software documentation that is
not customarily provided to the public; or
(2) Relinquish to, or otherwise provide, the Government rights to
use, modify, reproduce, release, perform, display, or disclose
commercial computer software or commercial computer software
documentation except as mutually agreed to by the parties.
(3) With regard to commercial computer software and commercial
computer software documentation, the Government shall have only
those rights specified in the license contained in any addendum
to the contract, or alternatively, any shrink-wrap license
delivered with the software. (See 48 CFR 12.212).
31. LIMITATION OF LIABILITY
NECAMs liability for PRODUCT malfunction or SERVICE malfeasance shall be
limited to performing one of the remedies under the hardware or software
PRODUCT or SERVICE warranties, provided that the malfunctioning PRODUCT or
SERVICE malfeasance is covered by the applicable warranty. NECAM and
ASSOCIATE hereby agree that if such limitation is declared invalid by a
court of competent jurisdiction, then NECAM's liability shall be limited
solely to a U. S. dollar amount equal to the cost of the malfunctioning
PRODUCT and/or SERVICE to the ASSOCIATE. These remedies shall be exclusive
and shall be the ASSOCIATE's sole remedies against NECAM or any of its
affiliates for PRODUCT malfunction and/or SERVICE malfeasance.
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IN NO EVENT SHALL NECAM BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL OR
SIMILAR DAMAGES, SUCH AS (BUT NOT LIMITED TO) "DOWNTIME", EXCESS COSTS OR
LOST BUSINESS REVENUES RESULTING FROM ITS BREACH OF ANY OF THE PROVISIONS
OF THIS AGREEMENT, ITS TORTIOUS CONDUCT IN OR RELATED TO THE PERFORMANCE OF
ITS OBLIGATIONS HEREUNDER, A PRODUCT MALFUNCTION, SERVICE MALFEASANCE OR
FROM UNAUTHORIZED OR IMPROPER USE OF PRODUCTS INCLUDING BUT NOT LIMITED TO
TOLL FRAUD OR COMPUTER VIRUSES.
32. LIMITATION OF TIME CONCERNING CAUSES OF ACTION
Any cause of action based upon an alleged breach of this Agreement or
otherwise related to the parties' rights, obligations and/or performance
thereunder must be commenced within one (1) year of the accrual of the
cause of action.
33. CHOICE OF LAW; JURY WAIVER
The construction, interpretation and performance of this Agreement shall be
governed by and construed in accordance with the domestic laws of the State
of New York.
Each of the parties agrees that any dispute arising out of, under or by
reason of this Agreement, or any acts or transactions, hereunder to the
interpretation or validity thereof, or under, or by reason of any other
contract, agreement, loan, or transaction of, any kind between them, or to
which they may be parties, of any kind, nature, or description whatsoever
shall be resolved in an action or proceeding in a court of competent
jurisdiction. Each of the parties waives trial by jury and the right to
trial by jury in any and all such actions or proceedings.
34. SEVERABILITY
If any of the provisions of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate or
render unenforceable the entire Agreement, but rather the entire Agreement
shall be construed as if not containing the particular invalid or
unenforceable provision or provisions, and the rights and obligations of
NECAM and ASSOCIATE shall be construed and enforced accordingly.
35. NOTICES
All communications and notices required by or relating to this Agreement
shall be deemed to have been duly given (1) upon receipt by the addressee
when sent via registered mail, overnight mail, or via facsimile directed to
the attention of the individual signing this agreement at the address
specified in the preamble hereto or (2) when posted by NECAM on its Web
Page at http://www.cng.nec.com.
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Except as with respect to notices posted by NECAM on its Web page as set
forth above, the addresses to which notices or communications may be given
by either party may be changed by written notice given by such party to the
other pursuant to this Section.
36. LICENSES
Except as specifically set forth herein, or unless otherwise expressly
agreed in writing, no licenses, expressed or implied, under any patents,
copyright, trade names or trade secrets are granted by one party to the
other.
37. TRADEMARKS
(a) Other than as set forth below, ASSOCIATE acquires no right, title or
interest in any trademark, trade name or other intellectual property
right of NECAM or its affiliates.
(b) So long as this Agreement remains in effect, ASSOCIATE may use the
trade names and trademarks specified by NECAM on a non-exclusive basis
for advertising and promotion of the PRODUCTS consistent with
reasonable guidelines established by NECAM, as may be amended from
time to time.
(c) ASSOCIATE shall not remove any trade name or trademark of NECAM or its
affiliates from any PRODUCT without NECAM's prior express written
consent.
38. NON-WAIVER
No course of dealing or failure of either party to strictly enforce any
term, right or conditions of this Agreement shall be construed as a waiver
of such term, right or condition.
39. SURVIVAL OF OBLIGATIONS
The following Sections regarding the respective parties' obligations under
this Agreement shall survive the termination, cancellation or expiration of
this Agreement: 4, 5, 9, 11, 13(a)(9), 17, 19(a)(3), 20, 21, 22, 27, 28,
29, 31, 32, 33, 34, 35, 36, 37, 38, and 39.
40. SHORTAGES
NECAM will endeavor to fully satisfy ASSOCIATE's specific requirements for
respective types of PRODUCT's at all times, and to ship Orders which NECAM
has accepted within customary respective shipment time periods. However, in
the event of PRODUCTS shortage(s), NECAM reserves the right to allocate the
supply of, and/or assign priorities to the shipment of, NECAM's
then-available stock of such PRODUCTS based upon all of the circumstances
and NECAM's assessment of the respective order requirements and respective
shipping date requirements of all purchasers of PRODUCTS.
26
Revised 5/2000
41. LIMITATION OF AUTHORITY
It is expressly understood that this Agreement does not give ASSOCIATE any
right or authority to act for or represent NECAM or its affiliates or to
pledge their credit or contract any liability whatsoever on their behalf.
It is understood that this Agreement does not confer upon ASSOCIATE any
authority to warrant any PRODUCTS sold hereunder, or to make any
adjustments on NECAM's behalf in connection with PRODUCTS without NECAM's
express consent.
42. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between NECAM and the
ASSOCIATE and replaces and supersedes any prior agreements between NECAM
and the ASSOCIATE, and/or any prior agreements between either of them and
the other's predecessor(s) concerning any of the subject matters contained
herein. In the event of any conflict between the "General Terms &
Conditions Applicable to All PRODUCTS and SERVICES" and the terms and
conditions set forth in a Product Appendix, the terms and conditions of
such PRODUCT Appendix shall control.
This Agreement may not be changed, modified or amended except as provided for
herein or by an instrument in writing signed by both NECAM and the ASSOCIATE.
WHEREBY this Agreement is effective upon the signature of NEC America, line, as
appearing below:
NEC AMERICA, INC.
By: /s/ Doulas P. Wonson
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Name: Doulas P. Wonson
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Title: General Manager,
Business Systems Sales Division
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Date: May 24, 2000
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