Joint Marketing Agreement - Magellan Network Systems Inc. and e-Net Inc.
JOINT MARKETING AGREEMENT
Between Magellan Network Systems, Inc. ("Magellan"), a California corporation
with a principal place of business at 1292 Hamerwood Avenue, Sunnyvale,
California 94089, and e-Net, Inc. ("e-Net"), a Delaware corporation with
principal offices at 12800 Middlebrook Road, Germantown, Maryland 20874-9204,
WHEREAS, Magellan is the owner and manufacturer of proprietary software products
and supplier of turnkey telecommunication switching solutions, and
WHEREAS, e-Net is the owner and manufacturer of a proprietary data telephony
(voice over data network) product called Telecom 2000-TM-, and
WHEREAS, the parties have jointly researched, and continue to research, the
efficacy of combining their products for sales to prospective customers, and of
combining their products with third-party products providing technical
performance and functionality enhancements to both of the parties' product
offerings, with an intended market of telecommunications carriers and
telecommunications equipment manufacturers, and the parties have decided that it
is in their mutual and respective best interests to enter into a program
intended to promote sales under this Agreement.
NOW, THEREFORE, in order to establish the terms and conditions under which the
parties' mutual and respective goals may be accomplished, in exchange of the
mutual covenants and premises below, consideration deemed adequate, the parties
agree as follows:
1.0 Definitions
MAGELLAN PRODUCT shall mean Magellan's proprietary software products, switching
systems and all products related to or derived therefrom, for purposes of
clarification and not limitations, algorithms, electronic computer protocols,
routines, subroutines or programs developed by or on behalf of Magellan or
otherwise owned by or in the custody of Magellan.
E-NET PRODUCT shall mean e-Net's proprietary data telephony (voice over data
network) product called Telecom 2000-TM-, and all products related to or
derived from Telecom 2000-TM- and/or related to or derived from US Patent No.
5,526,353 including specifically, for purposes of clarification and not
limitation, algorithms, electronic computer protocols, routines, subroutines or
programs developed by or on behalf of e-Net or otherwise owned by or in the
custody of e-Net.
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PROJECT shall mean a mutual effort by the parties to promote, sell, deliver, and
support a combination of the product technology capabilities of MAGELLAN PRODUCT
and E-NET PRODUCT, and selected third-party product in a marketing endeavor
further known as "Data Telephony for Telecommunications Carriers."
2.0 Scope of Agreement
(a) e-Net shall:
1) Sell and license E-NET PRODUCT to Magellan under mutually acceptable terms;
2) Give reasonable cooperation to the Project and Magellan in terms of
advertising, media and press relations, trade expositions and shows, and dealer
and distributor support;
3) Make management, marketing and technical personnel reasonably available to
assist the Project and Magellan to resolve issues and achieve joint and
respective sales goals;
4) Provide training, technical data and product documentation to the Project
and Magellan, where such training, technical data and product documentation
is reasonably required to achieve joint and respective sales goals, but such
provision shall be under mutually acceptable terms;
5) Make available after-sale support to the Project and Magellan including
maintenance, software support and spare parts, technical data and product
documentation, under mutually acceptable terms; and
6) Perform design enhancements, modifications, or improvements of E-NET
PRODUCT when required by the Project in the joint determination of the
parties, under mutually acceptable terms.
(b) Magellan shall:
1) Sell and license MAGELLAN PRODUCT to e-Net under mutually acceptable terms;
2) Give reasonable cooperation to the Project and e-Net in terms of advertising,
media and press relations, trade expositions and shows, and dealer and
distributor support;
3) Make management, marketing and technical personnel reasonably available to
assist the Project and e-Net to resolve issues and achieve joint and respective
sales goals;
4) Provide training, technical data and product documentation to the Project and
e-Net, where such training, technical data and product documentation is
reasonably required to achieve joint and respective sales goals, but such
provision shall be under mutually acceptable terms;
5) Make available after-sale support to the Project and e-Net including
maintenance, software support and spare parts, technical data and product
documentation, under mutually acceptable terms; and
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6) Perform design enhancements, modifications, or improvements of MAGELLAN
PRODUCT when required by the Project in the joint determination of the parties,
under mutually acceptable terms.
3.0 Restrictions on Use of Products, Trademarks, Trade Names, and Publicity
All use by a party of the other's product is restricted as
follows:
(a) A party is strictly prohibited from reverse engineering,
reverse compilation, or reverse assembly of the other's
product;
(b) A party is strictly prohibited from making a copy or copies
of the other's product;
(c) A party is strictly prohibited from sublicensing or otherwise
transferring the other's product;
(d) A party shall not use the trademarks or trade names of the
other; and
(e) A party shall not publicize this Agreement without the consent of the
other party.
4.0 Term
This Agreement shall be for a term of one year, subject to termination by either
party at any time, except that obligations of nondisclosure and proprietary
rights shall survive termination, and, further, the specific agreements of the
parties pertaining to after-sale support (clauses 2.a.5 and 2.b.5) may survive
termination hereof.
5.0 Ownership and Proprietary Rights
(a) Ownership of Magellan Products. All rights, title and interest to MAGELLAN
PRODUCT shall at all times remain the exclusive property of Magellan. All
applicable copyrights, trade secrets, patents and other intellectual property
rights to MAGELLAN PRODUCT shall remain the exclusive property of Magellan. No
title to MAGELLAN PRODUCT is transferred to e-Net. e-Net shall not remove the
copyright, trademark and proprietary rights notices of Magellan, and shall
prohibit any such removal by its officers, agents, employees, and contractors.
e-Net acknowledges that MAGELLAN PRODUCT is proprietary and confidential and
constitutes valuable trade secrets of Magellan. e-Net agrees to safeguard
MAGELLAN PRODUCT with not less than the same degree of care as is exercised in
connection with e-Net's own most proprietary and confidential materials.
All aspects of MAGELLAN PRODUCT, including without limitation, programs, methods
of processing, specific design and structure of individual programs and their
interaction and unique programming techniques employed therein, if any, shall
remain the sole and exclusive property of Magellan, and shall not be used,
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sold, revealed, disclosed or otherwise communicated, directly or indirectly, by
e-Net to any person, company, or institution other than as set forth herein,
excepting such technical and business development communications, product
demonstrations, and detailed technical discussions as e-Net reasonably may deem
necessary to perform the Project.
(b) Ownership of e-Net Products. All rights, title and interest to E-NET PRODUCT
shall at all times remain the exclusive property of e-Net. All applicable
copyrights, trade secrets, patents and other intellectual property rights to
E-NET PRODUCT shall remain the exclusive property of e-Net. No title to E-NET
PRODUCT is transferred to Magellan. Magellan shall not remove the copyright,
trademark and proprietary rights notices of e-Net, and shall prohibit any such
removal by its officers, agents, employees, and contractors.
Magellan acknowledges that E-NET PRODUCT is proprietary and confidential and
constitutes valuable trade secrets of e-Net. Magellan agrees to safeguard E-NET
PRODUCT with not less than the same degree of care as is exercised in connection
with Magellan's own most proprietary and confidential materials.
All aspects of E-NET PRODUCT, including without limitation, programs, methods of
processing, specific design and structure of individual programs and their
interaction and unique programming techniques employed therein, if any, shall
remain the sole and exclusive property of e-Net, and shall not be used, sold,
revealed, disclosed or otherwise communicated, directly or indirectly, by
Magellan to any person, company, or institution other than as set forth herein,
excepting such technical and business development communications, product
demonstrations, and detailed technical discussions as Magellan reasonably may
deem necessary to perform the Project.
6.0 Limitation of Liability
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY OTHER THIRD PARTY
BASED ON CONTRACT, TORT OR OTHERWISE FOR LOSS OF REVENUES, LOST PROFITS, LOST
SAVINGS, OR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES
ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, EXCEPT THAT A PARTY MAY
BE FOUND SO LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATING TO A PARTY'S
INTENTIONAL OR GROSSLY NEGLIGENT VIOLATION OF CALUSES 3.a, 5.a or 5.b.
7.0 General
7.1 Compliance With Law
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The parties agree that they are each responsible at their own expense for
compliance with all laws, and shall indemnify and save harmless the other from
any claim by a third party arising out of or related to non-compliance with law.
7.2 Jurisdiction.
The Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware.
7.3 Dispute Resolution.
Disputes hereunder are to be settled by arbitration under the rules and
administration of the American Arbitration Association ("AAA"). Such
arbitration shall be heard by three arbitrators, all of whom have credentials
in the fields of telecommunications, intellectual property, or both. Each
party shall reselect one arbitrator, and those two shall select the third and
final arbitrator. Each party shall bear their own costs during the
arbitration, and AAA fees and costs will be divided and paid equally during
the arbitration, but the panel of arbitrators shall be empowered to assess
costs against a party, as well as other damages or sanctions. The arbitration
shall take place in Atlanta, Georgia, governed by Delaware law of
corporations and contracts.
7.4 Independent Contractors
It is expressly agreed that e-Net and Magellan are acting thereunder as
independent contractors, and under no circumstances shall any of the employees
of one party be deemed the employees of the other for any purpose.
7.5 Notice
Any notice required to be given by either party to the other shall be deemed
given ten (10) days after being deposited in the postal system in registered or
certified form with return receipt requested, postage paid, addressed to the
notified party at the address set forth above.
7.6 Assignment
A party may not assign this Agreement to any portion thereof without the
approval of the other party, which shall not be unreasonably withheld.
7.7 Amendment; Waiver
Any provision of this Agreement may only be amended or waived if such amendment
or waiver is in writing; and, if an amendment, executed by all parties hereto
and, if a waiver, executed by the party which is waiving the term, condition or
right.
7.8 Severability; Entire Agreement
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such
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prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provisions in any other
jurisdiction. This Agreement constitutes the entire understanding of the parties
with relation to the subject matter hereof, and may be amended only by a writing
in accordance with clause 7.7 above.
7.9 Headings
The headings of the various sections of this Agreement have been inserted for
ease of reference only and shall be deemed not to be a part of this Agreement.
MADE AND ENTERED INTO this 27 day of August, 1997 by the undersigned authorized
representatives of the parties.
e-Net, Inc. Magellan Corporation
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/s/Robert A. Veschi /s/
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(Signature) (Signature)
Robert A. Veschi
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(Name) (Name)
President & CEO CFO
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(Title) (Title)
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