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Master Purchase and Reseller Agreement

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Title:

Master Purchase and Reseller Agreement

Entities:

ION Networks, Inc.; Carnegie Mellon University

Date:

2005

Size:

101KB total

Price:

$48

ID:

#1153654

► Business ► Reseller ► Master Purchase & Reseller Agreements
► Technology ► Computer Peripherals
► Miscellany ► Universities

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MASTER PURCHASE AND RESELLER AGREEMENT

BETWEEN

SPRINT/UNITED MANAGEMENT COMPANY

AND

ION NETWORKS, INC.

____________________________________

1.0 SCOPE AND DEFINITIONS

2.0 AFFILIATE TRANSACTIONS

	2.1 SPRINT AFFILIATES PURCHASE RIGHTS.

	CONTRACTUAL LIABILITY.
	SPRINT SERVICES.

4,0 TERM & TERMINATION

	4.1 TERM

	4.2 TERMINATION FOR CONVENIENCE.

	4.3 TERMINATION FOR CAUSE.
	OBLIGATIONS RELATING TO TERMINATION OR EXPIRATION.

	4.6 TRANSITION PERIOD.

	4.7 TERMINATION FOR FINANCIAL INSTABILITY.

	4.8 EFFECT OF TERMINATION.

5.0 PRICE AND TERMS OF SALE

6.0 INVOICING, PAYMENT AND OFFSET RIGHT

	7.1 PURCHASE ORDERS

	7.2 PURCHASE ORDER ACKNOWLEDGEMENT

	7.3 SPRINTS PURCHASE ORDER TERMINATION RIGHTS

	7.4 SPRINTS PURCHASE ORDER CHANGE RIGHTS

8.0 SHIPPING AND RISK OF LOSS OF PRODUCT

	8.1 GENERAL

	8.2 RISK OF LOSS

	8.3 LATE SHIPMENT

	8.4 EARLY SHIPMENT

9.0 INSPECTION, ACCEPTANCE AND QUALITY CONTROL

	9.1 INSPECTION.
	ACCEPTANCE.
	QUALITY CONTROL.

10.0 CANCELLATION

	10.1 CANCELLATION FOR CAUSE.

	10.2 CANCELLATION FOR CONVENIENCE:

11.0 TERRITORY

12.0 SERVICE AND DELIVERABLE WARRANTIES

	12.1 GENERAL PRODUCT AND SYSTEM WARRANTY

	12.2 INTEROPERABILITY WARRANTY

	12.3 BACKWARDS COMPATIBILITY WARRANTY

	12.4 MEDIA WARRANTY

	12.5 NON-INFRINGEMENT WARRANTY

	12.6 REPLACEMENT DELIVERABLES

	12.7 SERVICES WARRANTY

	12.8 SUPPLIER PERSONNEL WARRANTY

13.0 SECURITY

	13.1 VIRUS WARRANTY

	13.2 ILLICIT TECHNOLOGY REMEDIES

	13.3 ILLICIT TECHNOLOGY AND UNMITIGATED VULNERABILITIES WARRANTY

	13.4 SCANNING REQUIREMENTS AND FIXES

14.0 PRODUCT CHANGES AND FEATURE ENHANCEMENTS

	14.1 EQUIPMENT CHANGES

	14.2 SOFTWARE CHANGES

	14.3 SUPPLIERS NOTICE OBLIGATIONS

	14.4 SUPPLIERS OBLIGATIONS IF ADVERSE EFFECT ON OTHER DELIVERABLES

15.0 DISCONTINUATION OF PRODUCT

	15.1 PRODUCT

	15.2 REPLACEMENT PARTS

	15.3 CHRONIC CONDITIONS

	15.4 REMEDIES

16.0 PERSONNEL

	16.1 REQUIRED COMPLIANCE WITH AGREEMENT.

	REMOVAL.

	16.3 SUPPLIERS REPRESENTATIVE.

	16.4 SAFETY.

	16.5 WEAPONS PROHIBITION.

	16.6 BACKGROUND CHECKS.

	16.7 SECURITY ADHERENCE AND ACCESS RIGHTS.

	16.8 INVESTIGATIONS.

17.0 SUPPLIER ADDITIONAL OBLIGATIONS

18.0 OWNERSHIP

	18.1 SPRINT OWNED PROPERTY.

	18.2 DEVELOPED PROPERTY.

19.0 CONFIDENTIAL INFORMATION

	19.1 GENERAL.

	19.2 CONFIDENTIALITY.

	19.3 EXCEPTIONS.

	19.4 THIRD PARTY CONFIDENTIAL INFORMATION.

	19.5 INFORMATION SECURITY.

	19.6 NO PUBLICITY.

	19.7 INJUNCTIVE RELIEF.

20.0 LICENSE OF SOFTWARE

21.0 ESCROW AGREEMENT

22.0 USE OF PRODUCTS

23.0 INDEMNITY

	23.1 SUPPLIERS GENERAL THIRD PARTY INDEMNITY

	23.2 SPRINTS GENERAL THIRD PARTY INDEMNITY

	23.3 SUPPLIERS INTELLECTUAL PROPERTY INDEMNIFICATION

	23.4 INDEMNIFICATION PROCEDURES

24.0 LIMITATION OF DAMAGES

25.0 INSURANCE

	25.1 REQUIRED INSURANCE COVERAGE.

	25.2 CERTIFICATES OF INSURANCE.

26.0 RIGHT OF AUDIT

27.0 NOTICES

28.0 DISPUTE RESOLUTION

	28.1 OPTION TO NEGOTIATE DISPUTES.

	28.2 CONTINUING PERFORMANCE.

	28.3 FORUM SELECTION.

	28.4 WAIVER OF JURY TRIAL.

	28.5 ATTORNEYS FEES.

29.0 GENERAL

	29.1 ETHICS CODE.

	29.2 SUPPLIER PERFORMANCE.

	29.3 INDEPENDENT CONTRACTOR.

	29.4 SURVIVAL.

	29.5 SEVERABILITY.

	29.6 WAIVER.

	29.7 ASSIGNMENT.

	29.8 FEDERAL ACQUISITION REGULATIONS; EXECUTIVE ORDER 11246.

	29.9 DIVERSITY.

	29.10 GOVERNING LAW.

	29.11 REMEDIES.

	29.12 SPRINT MARKS.

	29.13 MATERIAL/MECHANICS LIEN

	29.14 CONSTRUCTION.

30.0 ENTIRE AGREEMENT

This MASTER PURCHASE AND RESELLER AGREEMENT (the Agreement) effective February, 2005 (Effective Date), between Sprint/United Management Company, a Kansas corporation (Sprint) and Ion Networks, Inc., a Delaware corporation (Supplier). BACKGROUND:

A.	Supplier is in the business of providing certain products, systems and services to its customers.

B.	Sprint and Supplier contemplate that they will enter into one or more Purchase Orders for the provision of Deliverables by Supplier to Sprint.

C.	Sprint and Supplier desire to specify the standard terms that will apply to those Purchase Orders.

The parties agree as follows: 1. DEFINITIONS AND SCOPE 1.1 DEFINITIONS Backwards Compatibility means the referenced prior Revision Level or Levels of the applicable Product or System remain fully functional after the integration with the respective succeeding Revision Level or Levels and that after such integration the prior Revision Level or Levels do not lose any functionality and the new Revision Level or Levels Interoperates with all functionalities of the prior Revision Level or Levels. Confidential Information means (i) this Agreement and the discussions, negotiations and proposals related to this Agreement and (ii) any information exchanged in connection with this Agreement concerning the other partys business including, tangible, intangible, visual, electronic, written, or oral information, such as: (w) Sprint Data and trade secrets, (x) financial information and pricing, (y) technical information, such as research, development, procedures, algorithms, data, designs, and know-how, and (z) business information, such as operations, planning, marketing interests, and products, whether, under each of the clauses (i) and (ii) of this definition, received directly or indirectly from the other party, or in the case of Sprint, from Sprint Customers. Control means: (i) the power to vote 15% or more of the voting interests of an entity; or (ii) ownership of 15% or more of the beneficial interests in income or capital of an entity. Deliverable means any Product, System or Service delivered or to be delivered by Supplier under this Agreement and any applicable Purchase Order. Documentation means all written instructions, manuals, descriptions, and any other documents (i) related to the Deliverables, (ii) necessary for Sprint to support Sprints business requirements (such as provisioning, testing, operating and troubleshooting) in connection with the Deliverables and (iii) detailed, comprehensive, and prepared in conformance with generally accepted industry standards of professional care, skill, diligence and competence applicable to telecommunications and operational practices similar to Sprints. Embedded Software means software that is embedded in hardware and is not intended to be separated from the hardware to function. End User means any person or entity purchasing Suppliers Products or Services from Sprint. Equipment means all hardware and other items of personal property as well as Embedded Software, that are provided or to be provided by Supplier under this Agreement, including the Equipment listed in Exhibit A and Equipment Upgrades and Equipment Feature Enhancements. Equipment Feature Enhancement means (i) feature enhancements that materially improve functionality or performance of Equipment and that Supplier markets as separate commercially available

product or (ii) custom developed features for Sprint or another customer of Supplier.

Equipment Upgrade means any upgrade, enhancement, modification, patch, fix, alteration, improvement, correction, revision, release, new version or any other change to the Equipment, except for Equipment Feature Enhancements.

Illicit Technology means any software, electronic, mechanical or other means, device of function (e.g. key, node, lock, time-out, virus, back door, trapdoor, booby trap, drop dead device, data scrambling device, Trojan Horse), that would allow Supplier or a third party to: (i) monitor or gain unauthorized access to a Sprint System, (ii) use any electronic self-help mechanism, or (iii) restrict, disable, limit, or impair the performance of a Sprint System or Sprint Customer system.

Interoperability or Interoperate means the ability of a Product and System to interconnect and successfully operate with other products and systems.

Maintenance Services means the maintenance services with respect to the Products and Systems further described in ) and Exhibit A.

Net Price means the final price paid by any customer of Supplier, including Sprint, after all discounts, reductions, rebates, or adjustments of any kind are applied.

Purchase Order or Order means any written purchase order for Deliverables issued by Sprint under this Agreement.

Product means the collective reference to Equipment and Software.

Replacement Costs means all costs that Sprint incurs in obtaining, internally or from a third party, replacement Deliverables, including (i) the cost of deinstallation, disassembly and return shipping of any non-conforming Product or System, and (ii) purchase, shipping, installation, training, and other service related costs of the replacement products.

Shrinkwrap License means Suppliers Software license that requires an End User to accept it before the Software can be operated (e.g., by opening a sealed package or accepting the license terms electronically during installation).

Revision Level means, with respect to any Product or System, any change from the immediately preceding version, including, any Software Upgrade, Software Feature Enhancement, Equipment Upgrade and Equipment Feature Enhancement.

Services means any services related to the Products or System that Supplier may offer, such as Maintenance Services, installation services and training services.

Software means the computer software programs provided or to be provided by Supplier under this Agreement, including the Software listed in Exhibit A, any Software Upgrade, Software Feature Enhancement and any related Documentation.

Software Feature Enhancement means (i) feature enhancements that materially improve functionality or performance of a Software and that Supplier markets as a separate commercially available product or (ii) custom developed features for Sprint.

Software License with respect to End Users means (i) Suppliers software license attached as Exhibit A to this Addendum, (ii) Suppliers Shrinkwrap License that accompanies or is otherwise included in the Software, or (iii) an applicable third-party software license. The term Software License as used in this Agreement does not mean Sprints license for internal use of the Software, the terms of which are included in the Agreement

Software Upgrade means any commercially available upgrade, enhancement, modification, patch, fix, alteration, improvement, correction, revision, release, new version or any other change to the Software or

Documentation, except for Software Feature Enhancements.

Specifications means the specifications and associated performance standards set forth in Exhibit A.

Sprint Affiliate means (i) any entity, directly or indirectly, Controlling, Controlled by or under common Control with Sprint; (ii) any entity that has entered into an agreement to construct, manage, and maintain a wireless service network in a defined geographical territory and is authorized to sell telecommunication services in that territory under the Sprint or Sprint PCS brand name(s) or any successor brand name(s); (iii) any entity to which any Sprint Affiliate, as defined in clause (i) or (ii) of this definition, is required by law, regulation or contract to provide services or products or (iv) any direct or indirect wholly owned affiliate of Sprint Corporation that is subsequently divested.

Sprint Customer or Customer means a customer of one or more services or products offered by Sprint or a Sprint Affiliate.

Sprint Data means all information collected or developed by (i) Sprint or a Sprint Affiliate regarding Sprint Customers or (ii) by Supplier regarding Sprint Customers (but only in their capacity as Sprint Customers), including, under each of the clauses (i) and (ii) of this definition, location-based information, all phone or other identification numbers issued to Sprint Customers, all electronic serial numbers, all Sprint Customers personalization information and all automatic number identification information and all information described in the Federal Communications Commissions definition of Customer Proprietary Network Information as set forth in 47 USC Section 222(h)(1) (as amended and interpreted from time to time).

Supplier Personnel means any employees, subcontractors or agents of Supplier who perform Services, act on Suppliers behalf or are paid by Supplier in connection with this Agreement.

Supplier System means any program, system, data or network of Supplier or any Supplier Customer.

Sprint Routing Guide is attached as Exhibit B.

Sprint System means any program, system, data or network of Sprint or any Sprint Customer.

Standalone Software means Software that is not embedded in hardware and intended to operate separately on a computer.

Supplier Personnel Compensation means wages, salaries, fringe benefits and other compensation, including contributions to any employee benefit, medical or savings plan and all payroll taxes, unemployment compensation benefits, including withholding obligations.

System means the following configuration of Products:

Unmitigated Vulnerability means any technology or configuration that, from a security perspective induces unacceptable operational risks and, is (i) inconsistent with industry-accepted practices, (ii) susceptible to being hacked, broken into or compromised, or (iii) referenced by the Carnegie Mellon CERT Coordination Center at www.cert.org.

Uptime Availability Standard is the number of hours a System or Product is available for use by Sprint in a calendar month, expressed as a percentage of the total hours during that calendar month.

1.0 SCOPE

General. This Agreement contains the terms that will apply to any Purchase Order that Sprint may place with Supplier during the term of this Agreement for Products and Services offered by Supplier more fully described in Exhibit A, to this Agreement. The terms of this Agreement control over any additional or inconsistent terms found in any Purchase Order under this Agreement or in any acknowledgment or other form used by Supplier, or any exhibits attached to this Agreement.

1.1 No Volume Commitment.

Sprint is not committed to purchasing any minimum order or aggregate dollar volume of Products or Services during the term of this Agreement. Any forecast provided to Supplier by Sprint is provided for planning purposes only and is not a commitment other than what is specified in the terms in Exhibit A on Sprints part to purchase certain quantities.

1.2 Grant Of Rights. During the term of this Agreement, Supplier grants to Sprint a non-transferable, non-exclusive right to resell to End Users the Products, Software and Services described in Exhibit A, and to deliver any accompanying Documentation to End Users.

2. AFFILIATE TRANSACTIONS

	2.1 Sprint Affiliates Purchase Rights.

	Any Sprint Affiliate may request Supplier to provide Products and Services under this Agreement. For Products and Services that are being provided to Sprint under a then existing Order, the existing Order will apply to the Sprint Affiliate and upon receipt of the Sprint Affiliates request, Supplier is obligated to provide those Products and Services to the Sprint Affiliate. For Products and Services that are not being provided to Sprint under a then existing Order, the Sprint Affiliate and Supplier will negotiate in good faith a new Order, consistent with this Agreement.

	2.2 Contractual Liability.

All references to Sprint in this Agreement refer equally to Sprint or the Sprint Affiliate executing a particular Order. Only the entity executing the particular Order incurs any obligation or liability to Supplier under that Order.

2.3 Sprint Services.

Supplier will use Sprint as a provider of telecommunications services. Sprint will provide the service at competitive prices and services based on Suppliers volume and competitors pricing. Supplier will roll its telecommunications services to Sprint as its current commitments expire. Telecommunications services include voice (wireline and wireless), data, Internet connectivity, local, phone systems, teleconferencing and video.

Supplier agrees that Sprint may share (1) Suppliers commitment purchase additional telecommunications services and related products from Sprint as set forth in this Section 3.1 with any wholly-owned subsidiary of Sprint Corporation, including for the purpose of marketing existing and new service offerings to Supplier and (2) Suppliers current and periodic spend information with any wholly-owned subsidiary of Sprint Corporation, including for the purpose of marketing existing and new service offerings to Supplier.

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