Exhibit 10.10
ARUBA WIRELESS NETWORKS, INC.
PREMIER RESELLER AGREEMENT
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PARTIES TO THE AGREEMENTPARTIES TO THE AGREEMENT
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This Agreement (the "Agreement") is effective as of January 29, 2004,
("Effective Date") by and between Aruba Wireless Networks, Inc., a Delaware
corporation having its principal place of business at 180 Great Oaks Blvd., San
Jose, California 95119 ("Aruba"), and Network Installation Corporation, a Nevada
corporation having its principal place of business at 18 Technology Drive,
Irvine CA 92618 ("Reseller") (each, a "Party", collectively, the "Parties").
RECITALS
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Aruba is a developer and manufacturer of certain wireless area network systems
and related products described further herein; and
Reseller wishes to be appointed as a nonexclusive marketer and distributor of
certain Aruba products for resale in the territory specified herein, and Aruba
is willing to make such appointment on the terms contained herein;
Aruba and Reseller (the "Parties") hereby agree as follows:
1. DEFINITIONS
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"Aruba Support Services" means Aruba's Support Terms and Conditions, which Aruba
provides directly to end users of the Products.
"End User" means a person or entity that purchases a product or products from
Reseller solely for internal use rather than distribution or resale.
"End User License Agreement" means Aruba's software license agreement for the
Software that is included with the Products.
"Intellectual Property Rights" means patent rights, copyright rights (including,
but not limited to, rights in audiovisual works and moral rights), trade secret
rights, and any other intellectual property rights recognized by the law of each
applicable jurisdiction.
"Price List" means the then-current published list price for the Product(s), the
current list prices of which are set forth in Exhibit A.
"Products" means the hardware products ("Hardware") and the machine-executable
object code version of software licensed by Aruba for use with the Hardware,
including any microcode embedded in the Hardware and updates, modifications,
enhancements, bug fixes and upgrades thereof ("Software") that are listed in
Exhibit A, as may be amended from time to time by Aruba upon thirty (30) days
prior written notice, that are made available by Aruba for purchase by Reseller
hereunder. "Products" may also include Aruba Support Services and Aruba
documentation if listed on Exhibit A.
"Purchase Order" shall mean Reseller's written or electronic form of purchase
order pursuant to which Reseller shall request purchase of Products from Aruba
hereunder. Aruba agrees that Reseller may for purposes of administrative
convenience use Reseller's standard form of purchase order, which may contain
pre-printed or other written terms and conditions. The Parties understand that
such terms and conditions shall have no effect whatsoever.
"Sale", "Sales", "Sell", "Sold", or "Selling" shall mean (a) with respect to
Products, excluding any and all Software, any sale to any third party, with or
without consideration paid to Reseller; or (b) with respect to Software, any
transfer of the Software which shall be solely and exclusively pursuant to the
then-current End User License Agreement included with the Software, with or
without consideration paid to Reseller.
"Specifications" shall mean Aruba's published functional specifications for the
Products as exist as of the Effective Date and as may be modified by Aruba from
time to time.
"Territory" shall mean the geographic territory set forth in Exhibit A.
2. TERM AND TERMINATION
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9.ZZMPTABHOLDERTERM AND TERMINATION.2.1 TERM. Unless terminated earlier as
provided herein, this Agreement shall have a term extending one year from the
Effective Date of the agreement.
2.2 TERMINATION FOR CAUSE. Either Party may terminate this Agreement for
cause if the other Party materially breaches this Agreement and fails to cure
such breach following thirty (30) days' written notice. Either Party may
immediately terminate this Agreement for cause if: (a) the other Party becomes
the subject of a voluntary petition in bankruptcy or any voluntary proceeding
relating to insolvency, receivership, liquidation, or composition for the
benefit of creditors; or (b) the other Party becomes the subject of an
involuntary petition in bankruptcy or any involuntary proceeding relating to
insolvency, receivership, liquidation, or composition for the benefit of
creditors, if such petition or proceeding is not dismissed within sixty (60)
days of filing. Aruba may immediately terminate this Agreement for cause if:
(a) Reseller is acquired by or merges with a third party or there is a change in
control of Reseller, or (b) Reseller fails to meet or exceed the minimum
purchase requirements as set forth in Exhibit A.
2.3 TERMINATION FOR CONVENIENCE. Either party may terminate this Agreement
at any time with or without cause upon ninety (90) days' written notice.
2.4 EFFECT OF TERMINATION OR EXPIRATION. In the event of termination or
expiration of this Agreement, Reseller shall immediately return to Aruba all
Confidential Information pursuant to Section 4, retaining only sufficient
material to fulfill remaining orders and to service the installed base of End
Users as mutually agreed upon by Aruba and Reseller. Reseller shall also
immediately pay to Aruba all amounts then owed to Aruba (subject to Aruba's
submission of invoices for any un-invoiced amounts), Aruba reserves the right to
cease all further deliveries due against existing orders unless Reseller agrees
to pay for such deliveries by certified or cashier's check prior to shipment,
and each Party shall further have all rights available to such Party in law and
equity. Notwithstanding the foregoing, unless this Agreement is terminated by
Aruba pursuant to Section 2.2, Reseller shall have the right to continue to
distribute Products that are then in Reseller's inventory for a period of three
(3) months. Aruba shall have the right, in its sole discretion, to re-purchase
any Products that Reseller has in its inventory on the date of termination or
expiration of this Agreement at the same price that Reseller purchased such
Products from Aruba. Neither Party shall incur any liability whatsoever for any
damage, loss or expense of any kind suffered or incurred by the other arising
from or incident to any termination or expiration of this Agreement which
complies with the terms of this Agreement. All rights and licenses of Reseller
hereunder shall terminate except that Reseller may continue to distribute, in
accordance with normal business practices and the terms of this Agreement,
Products shipped to it by Aruba prior to the date of termination or expiration.
3. LIMITED APPOINTMENT
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3.1 APPOINTMENT. Subject to the terms of this Agreement, Aruba authorizes
Reseller to distribute, on a non-exclusive basis, the Products to End Users
located and taking delivery within the Territory and only as packaged by Aruba
with the shrink-wrap End User License Agreement intact and with no portion of
the package obscured. Nothing in this Agreement shall be construed as limiting
in any manner Aruba's marketing or distribution activities or its appointment of
other dealers, distributors, licensees or agents.
3.2 RELATIONSHIP. Reseller is an independent contractor of Aruba under this
Agreement. All financial obligations associated with Reseller's business are the
responsibility of Reseller. All Sales and other agreements between Reseller and
its End Users are Reseller's exclusive responsibility. Reseller will be solely
responsible for, and will indemnify to hold Aruba free and harmless from, any
and all claims, damages or lawsuits arising out of the acts, omissions, failure
to act or misrepresentations of Reseller, its employees, servants, agents, or
any of them.
3.3 DUTIES OF RESELLER. Reseller certifies that it is purchasing the
Hardware primarily for resale to, and licensing the Software primarily for
licensing to End Users. Reseller shall:
A. provide Aruba with monthly nonbinding good-faith forecasts of its
anticipated requirements and shipping dates for the three (3) month period
following each forecast (or, if shorter, the remaining term of this Agreement);
B. engage in advertising and/or Sales promotion activities solely in the
Territory, designate the Products by their correct name and identify them as the
Products of Aruba being marketed by Reseller as an independent agent;
C. maintain places of business as necessary to provide good customer service
and marketing coverage in the Territory, and maintain a qualified sales
organization which will call on End Users and qualified potential customers in
the Territory;
D. not engage in any deceptive, misleading, illegal or unethical business
practice;
E. distribute the Software for use solely in conjunction with and as
embedded in the Products (and not on a "stand-alone" basis) and solely in
accordance with the then-current End User License Agreement included with the
Software, and assist Aruba to enforce the terms of such End User License
Agreement;
F. submit to Aruba a monthly report on the success of Aruba's products at
Reseller. Additionally, Reseller will attempt to forecast the demand for Aruba's
products on a monthly basis;
G. make no warranties on behalf of Aruba;
H. report to Aruba any reported Product defects (including safety problems)
in such detail as to make it possible for Aruba to duplicate such defects in an
effort to correct them;
I. comply with the U.S. Foreign Corrupt Practices Act and all applicable
export laws, restrictions, and regulations of any United States or foreign
agency or authority and not to export or re-export, or allow the export or
re-export of any product, technology or information it obtains or learns
pursuant to this Agreement (or any direct product thereof) in violation of any
such laws, restrictions or regulations; Reseller shall obtain and bear all
expenses relating to any necessary licenses and/or exemptions with respect to
the export from the U.S. of the Products to any location in compliance with all
applicable laws and regulations prior to delivery thereof by Aruba;
J. accept returns of software Products (when the shrink-wrap for the End
User License Agreement is not broken) in accordance with the procedure specified
in the shrink-wrapped package;
K. comply with law and to obtain any necessary registrations and approvals
required in the Territory; and
L. promptly notify Aruba of any known or suspected infringement or
misappropriation of Aruba's proprietary rights.
3.4 TECHNICAL SUPPORT. If Reseller resells Aruba Support Services to an End
User, Aruba shall be responsible for providing such maintenance and support
directly to such End User.
4. CONFIDENTIALTY
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Reseller agrees that all code, inventions, algorithms, know-how, ideas, and all
business, technical and financial information it obtains from Aruba are the
confidential property of Aruba and its suppliers ("Confidential Information").
Except as expressly and unambiguously allowed herein, Reseller will hold in
confidence and not use or disclose any Confidential Information. Reseller's
nondisclosure obligation will not apply to information it can document is
generally available to the public (other than through breach of this Agreement).
Because of the unique and proprietary nature of the Confidential Information, it
is understood and agreed that Aruba's remedies at law for a breach by Reseller
of its obligations under this Section 4 will be inadequate and that Aruba will
be entitled to equitable relief (including without limitation provisional and
permanent injunctive relief and specific performance) in addition to any other
remedies. Upon the expiration or termination of this Agreement, Reseller shall
promptly return to Aruba all Confidential Information in tangible form and shall
promptly confirm in writing that it has done so. Reseller shall have written
agreements with its own employees and agents to whom Confidential Information
shall be made available, and such written agreements shall have terms at least
as restrictive as those contained herein.
5. PURCHASE OF PRODUCT BY RESELLER: PRICING AND PAYMENTS
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5.1 PURCHASE ORDERS. From time to time during the Term, Reseller shall
submit to Aruba written or electronic Purchase Orders. Purchase Orders may also
be placed by fax. Each Purchase Order shall indicate at a minimum: Aruba Model
Number, quantity, unit and/or extended price in U.S. Dollars as set forth in the
Aruba Price List, payment arrangements, and requested ship date and shipment
method including carrier, delivery schedule and destination. Aruba will
acknowledge receipt of each Purchase Order in writing or electronically within
five (5) US business days of receipt and shall either accept or reject such
Purchase Order. If Aruba rejects a Purchase Order, the Parties may negotiate in
good faith regarding possible changes in such Purchase Order which would make
such Purchase Order mutually acceptable. If Aruba fails to accept or reject a
Purchase Order within ten (10) US business days of receipt, such Purchase Order
shall be deemed accepted. The receipt or deposit by Aruba of a pre-payment
shall not constitute acceptance of a Purchase Order. Any pre-payment received
from Reseller shall be returned if the order is not accepted by Aruba. Partial
shipment of an order shall not constitute acceptance of the entire order absent
written acceptance of the entire order. In the event of any conflict or
inconsistency between the terms of this Agreement and any Purchase Order, the
terms of this Agreement shall control and prevail.
5.2 PRICING. For products acquired under this Agreement, Reseller shall pay
to Aruba the then-current U.S. list price as set forth in the Aruba Worldwide
Price List minus the discounts set forth in Exhibit A ("Reseller Terms of
Sale"). Such prices do not include any additional charges for shipment,
insurance, taxes, withholdings, duties, handling, drayage, and similar costs,
which shall be paid by Reseller; Reseller shall reimburse Aruba for any such
charges paid by Aruba within thirty (30) days of invoice therefore. Reseller is
free to set its own prices without consultation with Aruba.
5.3 PRICE CHANGES. The prices of Products shall be subject to change from
time to time. Aruba will provide Reseller with forty-five (45) days' written
notice prior to the effective date of any price increases. Price changes will
apply to corresponding Products that are ordered by Reseller on or after the
effective date of the list price change. Prices for Products may be decreased
without notice.
5.4 CHANGES IN PRODUCTS. Aruba may change the features of, or discontinue
the manufacture, license or sale of any Products provided hereunder. Aruba shall
take commercially reasonable actions in advance of any such changes to notify
Reseller, but the Reseller understands and agrees that Aruba cannot and does not
make any warranty in regards to advance notice of any such changes in Products.
5.5 CHANGE ORDER. Reseller shall have the right to defer Product shipment
for no more than thirty (30) days from the scheduled shipping date, provided
written notice is received by Aruba at least ten (10) days prior to the
originally scheduled shipping date. Canceled orders, rescheduled deliveries or
Product configuration changes made by Reseller within ten (10) days of the
original shipping date will be subject to (a) acceptance by Aruba, and (b) a
charge of twenty five percent (25%) of the total invoice amount. Aruba reserves
the right to reschedule delivery in cases of configuration changes made within
ten (10) days of scheduled shipment.
5.6 PAYMENT TERMS. Payment terms are net thirty (30) days from date of
invoice, unless Aruba at any time determines that Reseller's credit is not
satisfactory, in which case payment terms shall be C.O.D. All payments shall be
made in the U.S. in U.S. dollars. If the Products are delivered in installments,
Reseller shall pay for each installment as provided above. Each shipment shall
be treated as a separate transaction, but in the event of any failure of
Reseller to make payment within fifteen (15) days as provided above, Aruba may
decline to make further shipments without in any way affecting its rights
hereunder. Aruba reserves the right at any time and from time to time, at its
sole option to require Reseller to, within five (5) days after receiving notice
of Aruba's acceptance of an order, establish a confirmed irrevocable letter of
credit ("ILC") in favor of Aruba issued by a United States bank acceptable to
Aruba (the "Bank"), payable in U.S. Dollars, in an amount equal to the total
estimated C.I.F. to _________________ [FILL IN BLANK WITH DESTINATION DESIGNATED
BY RESELLER] price of the Products ordered under such order. To the extent that
estimated freight and insurance costs increase from time to time, Reseller shall
increase the amount of the ILC within five (5) days after receiving notice of
such increase from Aruba or prior to shipments of those Products, whichever
occurs first. The ILC shall be in a form satisfactory to Aruba and shall provide
that Aruba may draw upon it in full upon presentation to the Bank of two (2)
copies of a certificate of Aruba that it has shipped such Products to Reseller.
Reseller shall may interest on all amounts not paid when due at the rate of 1.5%
per month or the highest rate permitted by law, whichever is lower.
5.7 DELIVERY, FREIGHT CHARGES, RISK OF LOSS. Aruba shall notify Reseller in
writing of shipment dates for the Products with 5 days of Reseller's Purchase
Order. Aruba shall use reasonable efforts to ship Product within 60 days of its
acceptance of the Purchase Order, and deliver to Reseller those Products ordered
pursuant to an accepted Purchase Order, F.O.B. Aruba 's factory located at 180
Great Oaks Blvd., San Jose, CA 95119. Unless otherwise specified on the
Purchase Order, delivery shall be made to Reseller's address specified on the
first page of this Agreement. Reseller shall be responsible for all freight
handling and insurance charges from the F.O.B. point, which Aruba may require
Reseller to pay in advance, as well as all custom duties and import and export
fees. In the absence of specific instructions from Reseller, Aruba shall select
the carrier and arrange for in-transit insurance. All transportation and
insurance charges relating to Product shipment shall be paid by Reseller to
Aruba as invoiced under the terms of this Agreement. Except as provided herein,
title and risk of loss with respect to such Products passes to Reseller upon
delivery of the Product to the carrier or freight forwarder at Aruba's dock,
manufacturing plant, warehouse or other distribution site. Title to Software
shall at all times remain solely with Aruba. Aruba hereby reserves, and
Reseller hereby grants to Aruba, a purchase money security interest in each
Product sold under this Agreement.
5.8 AUDITS. Aruba or its agents may, with fifteen (15) days notice, audit
Reseller's records and inspect Reseller's facilities to verify compliance with
the provisions of this Agreement. If an audit indicates an underpayment of five
percent (5%) or more of any amounts due hereunder or other non-monetary
noncompliance, Reseller will promptly reimburse Aruba for the reasonable cost of
the audit. Such rights will remain in effect through a period ending one year
from the termination of this Agreement.
6. TAXES
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The amounts payable to Aruba under this Agreement and as set forth in the Price
List do not include any taxes, levies, or similar governmental charges, however
designated, any related penalties and including` those now in force or enacted
in the future ("Taxes"). Reseller shall bear and be responsible for the payment
of all taxes in the Territory associated with the purchase or license of any
Product or Documentation, duties or other amounts, however designated, including
value added and withholding taxes which are levied or based upon such charges,
or upon this Agreement. Reseller will pay, or reimburse Aruba for the payment
of, all Taxes except: (a) taxes on the net income or net worth of Aruba , (b)
franchise taxes assessed on Aruba , and (c) taxes for which Reseller has
provided to Aruba prior to shipment a certificate of exemption acceptable to
both Aruba and the appropriate taxing authority.
7. WARRANTY
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7.1 WARRANTY. Aruba warrants to Reseller only that the Hardware portion of
Products will be free from material defects for a period of twelve (12) months
from the date of shipment to Reseller. For the Software portion of Products,
Aruba provides only the warranty set forth in its then current shrink-wrap End
User License Agreement included with such Software. Reseller will handle and be
responsible for all warranty returns from its direct and indirect customers.
All Products must be returned to Aruba in accordance with Aruba's then-current
Return Material Authorization (RMA) procedure. Products obtained from Aruba
that do not comply with the warranty and are returned (by Reseller only) to
Aruba during the warranty period (as shown by appropriate documentation) will be
repaired or replaced at Aruba 's option, provided Reseller bears the cost of
freight, insurance, duties and import and export fees to the point of repair or
return. If the returns Products are covered by the above warranty, Aruba will
bear the cost of freight, insurance, duties and import and export fees for
return of goods to Reseller. If Aruba cannot, or determines that it is not
practical to, repair or replace the returned Product, the price therefore paid
by Reseller will be refunded or, at the Aruba 's discretion, credited against
other Reseller obligations or toward future purchases. The above warranty does
not extend to any Product that is modified or altered, is not maintained to
Aruba's maintenance recommendations, is operated in a manner other than that
specified by Aruba, has its serial number removed or altered or is treated with
abuse, negligence or other improper treatment (including, without limitation,
use outside the recommended environment). Reseller's sole remedy with respect to
any warranty or defect is as stated above. Reseller is fully responsible for
satisfaction of its customers and will be responsible for all claims, damages,
settlements, expenses and attorneys' fees incurred by Aruba with respect to
Reseller 's customers or their claims beyond Aruba 's above warranty obligation
to Reseller.
7.2 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7
("WARRANTY AND TECHNICAL"), ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN "AS IS"
BASIS WITHOUT ANY WARRANTY WHATSOEVER, AND ARUBA AND ITS SUPPLIERS EXPRESSLY
DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY INCLUDING WITHOUT
LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF
THIRD PARTY RIGHTS AND FITNESS FOR A PARTICULAR PURPOSE. ARUBA ALSO MAKES NO
WARRANTY REGARDING NONINTERRUPTION OF USE OR FREEDOM FROM BUGS.
8. MARKETING AND TRAINING
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8.1 MARKETING AND SALES TRAINING. Aruba will use reasonable commercial
effort to keep Reseller informed of marketing product and technical information
in sufficient and accurate detail to enable Reseller to properly promote the
Products. Aruba will, in its discretion, convey to Reseller information on
sales prospects and inquiries that Aruba has with respect to the Territory.
Product collateral will be provided at published prices. In order to assist
Reseller in its marketing and resale efforts with respect to the Products, Aruba
agrees to provide to Reseller marketing and sales training to familiarize
Reseller with the Products at Reseller's headquarters, the date, locations and
fees for these training sessions will be agreed to by the Parties. Reseller and
Aruba shall each bear their own transportation and living expenses for each
training session.
8.2 TECHNICAL TRAINING. In order to assist Reseller in its marketing and
resale efforts with respect to the Products, subject to the payment of the
applicable training fees, Aruba agrees to use reasonable efforts to provide to
Reseller technical training pursuant to the terms of Aruba's then current
technical training program.
8.3 PUBLICITY - END USER INSTALLATIONS. Reseller and Aruba agree that
promotion of end user projects is in their mutual best interests. Therefore
both parties will cooperate in developing promotional material for each project
sale made by Reseller, including but not limited to: press releases, white
papers, technical papers and journal submissions. Reseller will make best
efforts to secure End User approval to use it's name and project details in
these public documents and disclosures.
8.4 PRODUCT PUBLICITY. Reseller will use it's resources to promote Products
in the Territory. This may include, but is not limited to: press releases
concerning products, liason with local trade press, and trade show
representation. Each party will have the right to review and approve the
content of any press release or collateral prior to its issuance. Reseller will
keep Aruba informed of any activities it conducts as defined in this Section.
9. LIMITATION OF LIABILITY
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NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER PARTY NOR
THEIR SUPPLIERS WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR
EQUITABLE THEORY FOR (I) AMOUNTS THAT IN THE AGGREGATE ARE IN EXCESS OF THE
AMOUNTS PAID TO ARUBA HEREUNDER DURING THE SIX-MONTH PERIOD PRIOR TO THE DATE
THE CAUSE OF ACTION AROSE OR (II) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST
PROFITS OR LOST DATA OR (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS,
TECHNOLOGY, OR SERVICES OR (IV) FOR LOSS OR CORRUPTION OF DATA OR INTERRUPTION
OF USE. COMPANY SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS
BEYOND ITS REASONABLE CONTROL. THIS SECTION DOES NOT LIMIT LIABILITY FOR BODILY
INJURY OF A PERSON OR BREACHES OF SECTIONS 3, 4 OR 10.2 OR VIOLATIONS OF
INTELLECTUAL PROPERTY RIGHTS.
10. TRADEMARKS,PROPRIETARY RIGHTS, PACKAGING AND DOCUMENTATION
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10.1 TRADEMARKS. During the term of this Agreement, solely in connection
with Reseller's advertising, promotion and marketing of the Products, and in
related brochures and other materials, Aruba hereby grants to Reseller a
revocable, non-exclusive, non-transferable license (without the right to grant
sublicenses) to use the trademarks, trade names and other marketing names used
by Aruba for the Products as set forth in Exhibit H (the "Trademarks"), solely:
(i) on or with the Products, including the packaging, advertising, marketing and
other materials associated therewith; and (ii) in full accordance with all
guidelines and instructions as may be promulgated from time to time by Aruba.
Aruba grants no rights other than as expressly granted hereunder. Reseller
acknowledges Aruba's exclusive ownership of such Trademarks. Reseller agrees to
maintain the quality of Products sold by Reseller and agrees not to register or
attempt to register any Trademark in any jurisdiction. Reseller further
acknowledges that all goodwill or any other rights arising from or in connection
with any exercise by Reseller of the foregoing license shall at all times remain
solely with Aruba .
10.2 INTELLECTUAL PROPERTY. As between the parties, Aruba and/or its
suppliers have all right, title and interest in and to the Software portion of
the Products and in and to all patents, copyrights, trade secrets, and know-how
relating to the Products, all copies and derivative works thereof. Aruba will
not delete or in any manner alter the intellectual property rights notices of
Aruba and its suppliers and licensors, if any, appearing on the Product(s) or
Software as delivered to Reseller. Aruba will not (i) disassemble, decompile or
otherwise reverse engineer the Products or otherwise attempt to learn the source
code, structure, algorithms or ideas underlying the Products, except and only to
the extent this clause (i) is expressly prohibited by applicable law, (ii) rent,
lease or otherwise provide temporary access to a Product, (iii) take any action
contrary to Aruba's shrink-wrap End User License Agreement except as expressly
and unambiguously allowed under this Agreement or (iv) copy or modify the
Products or (v) allow others to do any of the foregoing.
10.3 REPRODUCTIONS AND ALTERATIONS. Any reproductions of the Trademarks,
including logos, symbols and other identifying marks, shall be true
reproductions. Reseller will not remove any labels or identifying markings,
including without limitation the Trademarks, on the Products or packaging.
10.4 PACKAGING AND NOTICES INTACT. Reseller will deliver to End Users all
packaging, Aruba registration cards, disclaimers, proprietary rights notices and
End User License Agreements intact.
11. INDEMNIFICATION8.ZZMPTABHOLDERINDEMNITIES.
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Aruba shall defend Reseller and its officers, directors, agents and employees
from claims by a third party arising from infringement by the Product of any
United States patent issued as of the date of delivery of the applicable Product
or any United States copyright, provided Aruba is promptly notified of any and
all threats, claims and proceedings related thereto and given reasonable
assistance and the opportunity to assume sole control over the defense and all
negotiations for a settlement or compromise; Aruba will not be responsible for
any settlement it does not approve in writing. THE FOREGOING IS IN LIEU OF ANY
WARRANTIES OF NONINFRINGEMENT, WHICH ARE HEREBY DISCLAIMED. The foregoing
obligation of Aruba does not apply with respect to Product or portions or
components thereof (i) that are not supplied by Aruba, (ii) that are made in
whole or in part in accordance to Reseller specifications, (iii) that are
modified after shipment by Aruba, if the alleged infringement relates to such
modification, (iv) that are combined with other products, processes or materials
where the alleged infringement relates to such combination, (v) where Reseller
continues allegedly infringing activity after being notified thereof or after
being informed of modifications that would have avoided the alleged
infringement, (vi) where Reseller's use of the Product is incident to an
infringement not resulting primarily from the Product or (vii) where Reseller's
use is not strictly in accordance with this Agreement and all applicable
licenses and documentation; Reseller will indemnify Aruba and its officers,
directors, agents, and employees from all damages, settlements, attorneys' fees
and expenses related to a claim of infringement or misappropriation excluded
from Company's indemnity obligation by this sentence.
12. GENERAL
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12.1 ASSIGNMENT. Neither this Agreement nor any rights under this Agreement,
other than monies due or to become due, shall be assigned or otherwise
transferred by Reseller (by operation of law or otherwise) without the prior
written consent of Aruba. Aruba shall have the right to assign all or part of
this Agreement without Reseller's approval. This Agreement shall bind and inure
to the benefit of the successors and permitted assigns of the parties.
12.2 NOTICES. Any notice, report, approval or consent required or permitted
hereunder shall be in writing and in the English language. Any notices required
or permitted to be given to either Party hereunder shall be deemed properly
given when delivered by confirmed facsimile, certified mail (return receipt
requested), hand delivery, or certified overnight delivery such as Federal
Express, and directed to such Party at the address appearing in the first
paragraph of this Agreement, to the attention of General Counsel. Either Party
may change its address for purposes of this Subsection 12.2 ("Notices") upon
delivery of notice of such change to the other Party.
12.3 SEVERABILITY AND HEADINGS. If any provision of this Agreement is held
by a court of competent jurisdiction to be invalid under any applicable statute,
rule or law, the Parties agree that such invalidity shall not affect the
validity of the remaining provisions of this Agreement, and further agree to
substitute for the invalid provision a valid provision which most closely
approximates the intent and economic effect of the invalid provision. Headings
used in this Agreement are provided for convenience only, and shall not in any
way affect the meaning or interpretation hereof.
12.4 WAIVER. No waiver of any right by either Party under this Agreement
shall be of any effect unless such waiver is express, in writing and signed by
the waiving Party. Any purported waiver not consistent with the foregoing shall
be void.
12.5 FORCE MAJEURE. Each Party's failure to perform its obligations
hereunder, except for the obligation to pay money for services rendered, shall
be excused to the extent and for the period such performance is prevented by
fire, flood, earthquake, acts of God, explosion, casualty of war, labor dispute,
inability to obtain delivery of parts, failure of supplies of electrical power,
violence, any governmental law, order, regulation or ordinance, or any other act
or condition beyond the reasonable control of such Party. In such case, the
Party so affected shall (a) give prompt, written notice to the other Party, (b)
use its reasonable commercial efforts to correct promptly such failure or delay
in performance, and (c) shall resume performance promptly once the foregoing
condition has abated.
12.6 RELATIONSHIP OF THE PARTIES. The Parties understand and agree that
their relationship hereunder is one of contract, and that they are not and shall
not be construed as partners, joint ventures, or agent and principal. In no
event shall either Party be authorized to act for or on behalf of the other
Party.
12.7 SURVIVAL. In the event of the expiration or termination of this
Agreement, the provisions of Section 1 ("Definitions"), Subsection 2.4 ("Effect
of Termination"), Section 4 ("Confidentiality"), Subsection 5.6 ("Payment
Terms"), Subsection 7.2 ("Warranty Disclaimer"); Section 9 ("Limitation of
Liability"); Section 10.2 ("Intellectual Property"); Section 11
("Indemnification"), and Section 12 ("General") shall survive and shall continue
to bind the Parties.
12.8 EXPORT CONTROL. All Products and technical data delivered under this
Agreement are subject to U.S. export and foreign import control laws, including
the U.S. Bureau of Export Administration regulations, or foreign agency or
authority, as amended and Reseller hereby agrees to comply strictly with all
such laws and regulations. Reseller agrees not to knowingly export or allow the
export or re-export of any Product without all required licenses and approvals.
Aruba shall provide reasonable assistance to Reseller to obtain the necessary
permits to export the Product and/or Software
12.9 CHOICE OF LAW, JURISDICTION. This Agreement is made under and will be
governed by and construed in accordance with the laws of the State of California
(except that body of law controlling conflicts of law) and specifically
excluding from application to this Agreement that law known as the United
Nations Convention on the International Sale of Goods. All disputes arising
under this Agreement shall be brought exclusively in Superior Court of the State
of California in Santa Clara County or the U.S. District Court for the Northern
District of California in San Francisco, California, as permitted by law.
Reseller consents to the personal jurisdiction of the above courts.
12.10 AMENDMENT. This Agreement may be amended only in writing, signed by
both Parties. Any purported oral modification hereof shall be void.
12.11 ENTIRE AGREEMENT. This Agreement, including all exhibits, is the
entire agreement between the Parties with respect to this subject matter, and
supersedes all prior and contemporaneous discussions, communications and
agreements, written or oral, with respect thereto. This Agreement may be
executed in two or more counterparts, each of which will be deemed an original,
but all of which together shall constitute one and the same instrument. Once
signed, any reproduction of this Agreement made by reliable means (e.g.,
photocopy, facsimile) is considered an original. This Agreement may be changed
only by a written document signed by authorized representatives of Aruba and
Reseller.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date.
ARUBA WIRELESS NETWORKS, INC.
By: By:
Name: Name:
Title: Title:
Date: Date:
EXHIBIT A
ARUBA PRODUCTS
I TERRITORY
- ------------
North America Only
II PRODUCTS AND PRICING: SPECIAL TERMS
- -------------------------------------------
Price List as set forth in current Aruba Wireless Networks Price List.
Discount Levels as follows:
CATEGORY DESCRIPTION DISCOUNT
-------- ----------- --------
A Bundles (Hardware and SW Applications) 30%
- -------------------------------------- ---
B Base Bundles (AirOS & MUX Software Only) 25%
- ---------------------------------------- ---
C Individual Cards & Spares Hardware 20%
- ---------------------------------- ---
D Software Applications 30%
- --------------------- ---
E Various 0%
- ------- --
III MINIMUM PURCHASE REQUIREMENTS
- ------------------------------------
The Parties shall mutually determine quarterly minimum purchase requirements
within three (3) months of the Effective Date.