458970 PARTNER AGREEMENT THIS PARTNER AGREEMENT (the “Partner Agreement”), dated as of _____________, 200_ (the “Effective Date”), is entered into by and between VERSO TECHNOLOGIES, INC., a Minnesota corporation with offices at 400 Galleria Parkway, Suite 300, Atlanta, Georgia 30339, USA (“Verso”), and ______________________, a ____________ corporation with principal offices at the address specified on the signature page hereto (“Distributor”). WHEREAS, Verso provides telephony and IP hardware and software products; and WHEREAS, Distributor desires to resell certain of such products in the Territory defined below. NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows: 1. DEFINITIONS. 1.1 “End User” means a person or entity in the Territory that acquires one or more Products for its own internal use, and not for resale, remarketing, lease, loan or redistribution. A service provider in the Territory that acquires Products for its own internal use for the purpose of providing telecommunications services to its own customers will be considered to be an “End User” within the meaning of this Reseller Agreement. 1.2 “End User License Agreement” means a separate written agreement between Distributor and End User pursuant to which Distributor grants End User the right to use Software solely in accordance with its accompanying documentation. 1.3 “Intellectual Property Rights” means any and all, now known or hereafter existing, (i) rights associated with works of authorship throughout the universe, including exclusive exploitation rights, copyrights and moral rights; (ii) trademark, trade dress, and trade name rights; (iii) trade secret rights; (iv) patents, designs, algorithms, and all other industrial property rights; (v) all patent registrations, applications, renewals, extensions, combinations, divisions, or reissues of the foregoing; and (vi) all other intellectual property and proprietary rights of every kind and nature throughout the universe, whether arising by operation of law, by contract or license, or otherwise. 2 1.4 “List Price” shall mean Verso’s established applicable suggested list price for a single unit of a Product as specified in the Price List at the time Verso receives an Order from Distributor. 1.5 “Marks” means the trademarks, logos, and trade names owned by Verso or any of its subsidiaries placed on the Products by Verso or otherwise made available by Verso in its sole discretion. 1.6 “Price List” means the Product price information applicable to Distributor set forth in the Product Exhibit. 1.7 “Order” means a written purchase order pursuant to which Distributor orders Products. 1.8 “Product Exhibit” means the exhibit(s) attached hereto as Exhibit A. A separate Product Exhibit shall be attached for each line of Products that Distributor is authorized to resell under this Agreement and shall be labeled as Exhibit A-1, A-2, etc. Distributor acknowledges and agrees that Verso may modify a Product Exhibit at its discretion from time to time effective thirty (30) days after Verso gives Distributor written notice of such modification. 1.9 “Products” shall mean the Verso hardware products, Software, and related services that are authorized for Resale by Distributor as set forth in the Product Exhibit. 1.10 “Resale” shall mean (i) in the case of Products (or components thereof) that consist of hardware, the actual transfer of title to the physical hardware products from Distributor to End User; (ii) in the case of Products (or components thereof) that consist of Software, the licensing to End Users of certain rights to use the Software by Distributor pursuant to an End User License Agreement; and (iii) in the case of Products that consist of services, (a) Distributor’s engagement of Verso to provide certain professional services for the benefit of an End User upon terms and conditions agreeable to Verso, and (b) Distributor’s entry into a separate agreement with End User to have such services provided. 1.11 “Partner or Reseller” shall mean an entity engaged in the business of Resale of Products. 1.12 “Software” means Products consisting of the proprietary software owned or licensed by Verso, in executable form only, along with its related documentation. 1.13 “Standard RMA Procedures” means the terms and conditions pursuant to which Verso generally accepts Product returns as set forth in the Product Exhibit. 1.14 “Territory” means the geographic regions or countries specified in Exhibit B attached hereto. 1.15 “Updates” means any patches, bug fixes, or point release updates to the Software that may be made available to Distributor by Verso pursuant to the Product Exhibit or otherwise in Verso’s sole discretion. 2. APPOINTMENT. Subject to the terms and conditions of this Partner Agreement, Verso hereby appoints Distributor, and Distributor accepts appointment, as an authorized, non3 exclusive Partner of Products to End Users located in the Territory. Distributor shall use its commercially reasonable efforts consistent with the terms of this Partner Agreement to market and distribute the Products to End Users located in the Territory. Such appointment shall not be deemed to restrict Verso in any way from appointing other entities in the Territory to distribute Products to End Users or Partners for any purpose whatsoever, or from engaging in any other use or activity with respect to Products anywhere in the world, including the Territory. Any (i) marketing or sales of Products by Distributor outside the Territory or (ii) sales of Products to entities that Distributor knows or has reason to believe are reselling Products, or that intend to deploy the Products, primarily outside the Territory, shall be considered a material breach of this Partner Agreement giving Verso the right to immediately terminate this Partner Agreement. 3. ORDERING, SHIPPING AND DELIVERY. The terms and conditions of this Partner Agreement with respect to the ordering, shipment and delivery of the Products are set forth in the Product Exhibit. 4. INTELLECTUAL PROPERTY. 4.1 Software License. 4.1.1 Grant. Subject to the terms and conditions of this Partner Agreement, Verso grants Distributor a non-exclusive, non-transferable (except in connection with a permitted assignment under Section 13.2), and limited license (without the right to sublicense, except as specifically provided below) during the term of this Partner Agreement, to: (a) use, reproduce, install, perform, and display Software in the Territory solely for the purposes of demonstrating Products in trade shows, seminars, and training courses previously approved by Verso in writing; (b) for each copy of Software purchased pursuant to an Order, distribute one (1) copy of such Software to an End User in its original form (either as a standalone Product or as integrated into a hardware Product); (c) for each copy of Software purchased pursuant to an Order, sublicense to an End User the nontransferable, personal right (without the right to sublicense) to install, perform, display, and operate one (1) copy of the Software in strict accordance with the documentation for such Software pursuant to the terms and conditions of an End User License Agreement; (d) subject to payment of required maintenance and/or upgrade fees, distribute applicable Updates to Software in the Territory to End Users which have licensed Software pursuant to an accompanying End User License Agreement; (e) reproduce Updates from a master copy provided by Verso for the sole purpose of distributing the Updates pursuant to Section 4.1.1(d) above; and (f) reproduce, use, perform, display and use a reasonable number of copies of the Software for the sole purpose of providing support to End Users in the Territory. 4.1.2 License Restrictions. Distributor acknowledges that the Software and its structure, sequence, organization and source code constitute valuable trade secrets of Verso 4 and its licensors. Accordingly, Distributor shall not, and shall not cause or permit others to: (i) use, reproduce, distribute, perform, display, sublicense, sell, assign, pledge, timeshare, lease, loan, or rent, or otherwise transfer the Software except as expressly permitted above in Section 4.1.1; (ii) except as permitted by established right under applicable law, decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software for any reason; (iii) modify, adapt, alter, translate, or create derivative works of the Software; or (iv) merge the Software with other software or products. In addition, in no event shall Distributor remove, alter or obscure any proprietary notices on the Software, including copyright notices, and shall not permit any third party to do so. Distributor’s failure to abide by any of these restrictions shall constitute a material breach of this Partner Agreement giving Verso the right to immediately terminate this Partner Agreement. 4.1.3 End User License Agreements. (a) General. Distributor will distribute all Software to End Users subject to a binding End User License Agreement that (i) disclaims all warranties on the part of Verso and its licensors; (ii) disclaims all direct, indirect, consequential, special, incidental, and all other damages or liability of any kind on the part of Verso and its licensors; (iii) gives the End User the right to transition support as described in the Product Exhibit without further obligations to Distributor in the event that Distributor repeatedly fails to fulfill its support obligations; (iv) prohibits the transfer, lease, loan or assignment of the software license to any third party (as described in Section 4.1.3(b)); (v) establishes Verso as an intended third-party beneficiary of the End User License Agreement; (vi) requires the End User to use the Software in strict accordance with the documentation for such Software; (vii) includes any terms which Verso is required to impose on End Users from time-to-time as a result of third party obligations; and (viii) authorizes Verso to enforce such terms by disabling access to or the function of the Software. Without limiting the foregoing, each End User License Agreement shall contain terms and conditions at least as protective of Verso as those contained in the end user license agreement attached to the Product Exhibit. The End User License Agreement must be in writing and presented in such a manner that it is legally binding upon the End User, and will supersede, to the extent it is more protective of Verso, the terms of any Verso standard shrinkwrra license agreement that may be packaged with the Products. Distributor shall promptly notify Verso if Distributor becomes aware of any breach of an End User License Agreement, and agrees to cooperate with Verso in any legal action to prevent or halt any unauthorized activity with respect to the Software. (b) Non-transferability. Distributor acknowledges that it has no right under this Partner Agreement to authorize an End User to assign, sublicense, or otherwise transfer any license to use the Software to a third party, and will expressly prohibit an End User from doing so in the End User License Agreement and provide therein that any such attempt will be void. Distributor will inform End Users that in the event that Products containing Software are resold to a third-party buyer, such third-party buyer will be required to obtain and pay Verso for a separate end user license directly from Verso in order to use the Software. 4.2 Trademark License. 4.2.1 Marks License. Subject to the terms and conditions of this Partner Agreement, Verso grants to Distributor a non-transferable (except in connection with a permitted assignment under Section 13.2), non-exclusive and limited right (without the right to sublicense) to use the Marks in the Territory on Products and on promotional materials solely in connection 5 with Distributor’s marketing and distribution of Products as authorized herein. In no event may Distributor alter, remove, replace, obscure, change, or use in any other manner (collectively, “Removal”) any Marks on Products or promotional materials provided by Verso unless such Removal is approved in advance in writing by Verso. Except for the limited right to use the Marks as set forth in this Section 4.2.1, nothing contained in this Partner Agreement shall be construed to grant Distributor any right, title or interest in or to the Marks. Distributor acknowledges Verso’s exclusive ownership of the Marks and the renown of such Marks worldwide. Distributor agrees not to take any action inconsistent with such ownership and further agrees to take, at Verso’s expense, any action, including the conduct of legal proceedings, that Verso deems necessary to establish and preserve Verso’s exclusive rights in and to its Marks. Distributor shall not adopt, use or attempt to register any trademarks or trade names that are confusingly similar to the Marks or in such a way as to create combination marks with the Marks. Distributor shall not place its own trademarks, logos or trade names on Products and shall comply with Verso’s trademark policy (the “Verso Trademark Policy”) set forth in the Product Exhibit. 4.2.2 Marking and Quality Standards. Distributor shall maintain and will not alter, obscure, modify, or remove any Marks originally placed on the Products by Verso. Distributor shall maintain a high quality standard in marketing Products in connection with the Marks. Distributor shall, upon request from Verso, promptly provide Verso with samples of all materials that use the Marks for Verso quality control purposes. If, in Verso’s reasonable judgment, Distributor’s use of the Marks does not meet the Verso Trademark Policy or otherwise dilutes or tarnishes the quality associated with the Marks, Verso may, at its option, (i) terminate, in whole or part, Distributor’s license to use the Marks, in which case Distributor will immediately discontinue its use of the Marks; or (ii) require Distributor to revise such material and re-submit it under this Section 4.2.2 prior to shipment, display or release. 4.3 Ownership. The Software is licensed, not sold, and Distributor acknowledges and agrees that any invoices or other transaction documentation purporting to “sell” or “transfer” Software do not convey title to any Intellectual Property Rights subsiding in such Software. Distributor acknowledges and agrees that as between Distributor and Verso, (i) Verso is and shall remain the sole and exclusive owner of all Intellectual Property Rights in and to all Products (including Software) and any improvements or modifications thereto; and (ii) Distributor has no rights in the Intellectual Property Rights in Products (including Software) or any improvements or any components of the foregoing. Distributor agrees that it will only use, and authorize others to use, the Software as expressly permitted by this Partner Agreement. There are no implied licenses in this Partner Agreement, and Verso reserves all rights in the Software not expressly granted under this Partner Agreement. 5. PAYMENT. 5.1 Product Pricing. 5.1.1 Distributor Discount. Distributor agrees that during the term of this Partner Agreement it will purchase all Products at a price equal to (i) the List Price for the corresponding Product, discounted (if at all) by (ii) the applicable discount rate (the “Distributor Discount”) set forth in the Product Exhibit. 5.1.2 Changes to Price List and/or Distributor Discount. Verso may amend the Price List and/or Distributor Discount for some or all Products from time to time in its sole 6 discretion by written notice to Distributor. Any such amendment shall become effective thirty (30) days after notification by Verso or such longer period of time specified by Verso (the “Amendment Period”). The amended Price List and/or Distributor Discount shall apply to all orders accepted by Verso after the end of the Amendment Period. 5.1.3 End User Pricing. Distributor will have the sole and exclusive right and ability to independently determine all prices charged to End Users. 5.2 Product Payment Terms. Verso invoices upon shipment of Products, and payment for such Products is due upon invoice. Subject to available credit, the terms of payment are net thirty (30) days from Verso’s invoice date. Payments may either be made (i) via wire transfer representing payment of the full amount for Products ordered; or (ii) by an irrevocable letter of credit in a form or format accepted by Verso in writing. Until Verso, in its sole discretion, establishes a credit line for the benefit of the Distributor, if any, or if Distributor orders equipment which, if accepted by Verso, would cause Distributor’s existing credit line to be exceeded, Verso may require Distributor to provide an advance deposit with the balance due at or prior to shipment. In the event that credits are owed to Distributor by Verso, Verso may issue credits against Distributor’s account and offset against the next invoice. Distributor shall not deduct such credited amounts from, or offset such credited amounts against, any invoiced amounts due from Distributor to Verso without Verso’s prior written approval. Verso shall be entitled to recover all of its costs of collection of any overdue invoice, including costs of any proceeding or lawsuit for collection brought by Verso and any costs, including attorneys’ fees, costs and fees on appeal and costs of collection. 5.3 Security Interest. To secure Distributor’s obligations to Verso under this Partner Agreement, including Distributor’s obligation to pay the aggregate price for the Products shipped to Distributor and any taxes, fees, duties, governmental charges, shipping costs and other charges incurred by Verso in connection therewith, Distributor hereby grants to Verso a first priority, purchase money security interest in the Products shipped to Distributor under this Partner Agreement and all proceeds thereof, including any accounts, general intangibles, chattel paper or instruments arising from the sale, lease, or other disposition thereof. At Verso’s request, Distributor will execute and deliver any documents, and take any other action that Verso deems necessary or advisable to perfect this security interest and maintain the first priority thereof, including the filing of financing statements. Distributor hereby appoints Verso and its authorized agents as Distributor’s agent and attorney-in-fact to execute, deliver and file any such document and take any such action in Distributor’s name and on behalf of Distributor. This appointment is coupled with an interest and is irrevocable. Verso will have all rights and remedies available to a secured party under the applicable law governing the locations of Verso, Distributor, and the Product, in addition to all other available rights and remedies of Verso. 5.4 Support Fees. Distributor will pay the fees specified in and in accordance with any separate support agreement that Verso and Distributor may enter into pursuant to which Verso would provide support of the Products to Distributor. 5.5 Currency. Unless otherwise indicated, all references to prices or dollars that appear in this Partner Agreement, the Exhibits, or Orders shall mean United States dollars. All payments due under this Partner Agreement shall be made in United States currency. If Distributor conducts business in a currency that is not legal tender in the United States and Verso is willing to accept such currency, all payments made by Distributor under this Partner 7 Agreement shall be converted, prior to payment, into United States currency at the prevailing exchange rate then-available to Verso as determined by Verso. 5.6 Taxes, Fees and Documentation. Distributor agrees to pay, and to indemnify and hold Verso harmless from, any sales, use, excise, withholding, import or export, value added or similar tax, not based on Verso’s net income, and all government permit or license fees and all customs, duty, tariff and similar fees levied upon the delivery of Products and any other deliverables or provision of benefits under or in connection with this Partner Agreement or any ancillary agreement, and any costs associated with the collection or withholding thereof, including penalties and interest. Without limiting the foregoing, if any amount payable by Distributor to Verso under this Partner Agreement should be subjected to any deduction or withholding on account of any tax or charge, Distributor shall (i) effect such withholding, remit such amounts to the proper taxing authorities, and promptly furnish Verso with tax receipts evidencing the payments of such amounts; and (ii) pay to Verso such additional amounts as may be required in order that the net amount actually received and retained by Verso, after deduction or withholding of all related taxes and charges, free from liability for such deduction or withholding, shall be equal to the amount expressed to be payable to Verso pursuant to the terms of this Partner Agreement. 5.7 Late Charge. For any amount that is past due, Distributor shall pay to Verso a late charge equal to one and one-half percent (1½%) per month (or the maximum legal rate in effect, whichever is less) of all outstanding amounts, accruing from the due date until final payment. The foregoing shall in no way limit any other remedy available to Verso. 5.8 Reporting Requirements and Records. Distributor will keep full, true, and accurate records and accounts of each Product distributed to each End User or used internally under this Partner Agreement, and will maintain such records for a period of three (3) years from the purchase date of products from Verso. Not later than ten (10) days after the end of each calendar quarter, Distributor shall provide Verso with a report for the quarter then-ended listing Products sold by type, the names and addresses of purchasers, inventory levels, technical support problems, marketing activities, list of Products used for support and demonstration purposes, and such other information as Verso may reasonably request. Additionally, the written report shall include a rolling, non-binding good-faith estimate by Distributor or its 12-month sales forecast for Products, including, but not limited to, the anticipated monthly number of Products sold by type. The parties agree and acknowledge that such sales forecasts are provided for reference purposes only and by themselves do not represent a binding commitment to purchase or sell any Products. 5.9 Audit. From time to time during the term of this Partner Agreement and for a period of three (3) years thereafter, Verso or its designated representatives shall have the right to inspect and audit Distributor’s records relating to Distributor’s activities pursuant to this Partner Agreement in order to verify that Distributor has complied with the terms of this Partner Agreement. Such audit will be conducted during normal business hours on Distributor’s premises, and will be conducted in a manner that does not unreasonably interrupt the ordinary conduct of business. Each audit will be conducted at Verso’s sole expense and Verso will conduct such audit no more frequently than once per calendar quarter; provided, however, that if any audit reveals (i) an underpayment by Distributor equal to or greater than five percent (5%) of the total amount actually due; or (ii) material non-compliance by Distributor with its obligations under this Partner Agreement, then Distributor will reimburse Verso for the costs of such audit and Verso will be entitled to conduct another audit within the same calendar quarter. Distributor 8 will promptly pay all outstanding amounts revealed by such audit, in addition to any late charges that may be due under Section 5.7 above. 6. SUPPORT AND PARTNER BENEFITS AND OBLIGATIONS. The terms and conditions of this Partner Agreement regarding support and partner benefits and obligations are set forth in the Product Exhibit. 7. CONFIDENTIALITY. 7.1 Confidential Information. From time to time during the term of this Partner Agreement, one party (the “Disclosing Party”) may disclose information to the other party (the “Receiving Party”) that is proprietary or confidential or both. The Receiving Party shall maintain in confidence all confidential or proprietary information, firmware, software, source code, designs, plans or any other information relating to any research project, work in process, future development, scientific, engineering, manufacturing, marketing or business plan or financial or personnel matter relating to the disclosing party, its present or future products, sales, suppliers, employees, investors or business, including prices and discounts (“Confidential Information”) identified by the Disclosing Party as Confidential Information, whether in oral, written, graphic or electronic form. The Receiving Party shall not use, disclose or grant use of such Confidential Information except for the purposes of performing obligations or exercising rights under this Partner Agreement. The Receiving Party shall obtain prior agreement from its employees, agents or consultants to whom disclosure is to be made to hold in confidence and not make use of such information for any purpose other than those permitted by this Partner Agreement. The Receiving Party shall use (and require that employees, agents and consultants use) at least the same standard of care as the Receiving Party uses to protect its own Confidential Information of a similar nature from unauthorized use or disclosure, but in no event less than reasonable care. The Receiving Party shall promptly notify the Disclosing Party upon discovery of any unauthorized use or disclosure of the Confidential Information. 7.2 Exceptions. The obligations contained in Section 7.1 shall not apply if the Confidential Information: 7.2.1 was already known to the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the Disclosing Party; 7.2.2 was generally available to the public or otherwise part of the public domain at the time of its disclosure to the receiving party; 7.2.3 became generally available to the public or otherwise part of the public domain after its disclosure and other than through an act or omission of the Receiving Party in breach of this Partner Agreement; or 7.2.4 was disclosed to the Receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation to the other party not to disclose such information to others. 8. WARRANTY. Certain terms and conditions of this Partner Agreement with respect to warranty information are set forth in the Product Exhibit. 9 8.1 Warranty Disclaimer. THE EXPRESS WARRANTIES SET FORTH IN THIS PARTNER AGREEMENT OR THE PRODUCT EXHIBIT ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINNGEMEN OF THIRD-PARTY RIGHTS, QUIET ENJOYMENT, AND ACCURACY. VERSO DOES NOT REPRESENT OR WARRANT THAT THE OPERATION OF THE PRODUCTS (INCLUDING THE SOFTWARE) WILL BE UNINTERRUPTED OR ERROR-FREE. DISTRIBUTOR ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THE PRODUCT EXHIBIT AND THAT NO WARRANTIES ARE MADE BY ANY OF VERSO’S SUPPLIERS. 8.2 Warranty Supplement. In the event that the legally mandated minimum warranty in a particular jurisdiction exceeds the warranty provided above in the Product Exhibit, either in scope, length or otherwise, then Verso shall be entitled to assess a reasonable supplemental warranty surcharge to the price of the Product for the additional warranty coverage to be provided. 9. INDEMNIFICATION. 9.1 Verso Indemnity. Verso shall defend Distributor, at Verso’s own expense, against any action brought by a third party to the extent such action is based upon a claim that a Product or any part thereof when used in accordance with Verso’s specifications and documentation infringes any U.S. patent issued at the time of purchase, any U.S. trademark or copyright or misappropriates any U.S. trade secret and Verso shall pay those costs and damages finally awarded against Distributor in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action; provided, however, that Verso shall not defend such claim or pay costs or damages arising from such claim if the alleged infringement arises from (i) changes or modifications to Products (including Software) by a Distributor or a third party; (ii) any incorporation of a Product into any other product or process, where such incorporation is the object of the claim; (iii) any use by Distributor of any Products subsequent to availability to Distributor of redesigned or otherwise superseding versions of such Products; (iv) use of Software or Product outside of a standard configuration with Verso hardware or outside of the written documentation or specifications; (v) any unauthorized use, reproduction or distribution of Products by Distributor or End Users; (vi) any third-party equipment or software furnished hereunder to complete Distributor’s order; or (vii) Verso’s compliance with technical specifications or instructions provided by Distributor. The foregoing describes the sole and exclusive remedy with respect to any infringement or any claim of infringement of any Intellectual Property Right relating to Products or any part thereof. If any Product becomes, or in Verso’s opinion is likely to become, the subject of an infringement claim, Verso may, at its option and expense, either (x) procure for Distributor the right to continue exercising the rights licensed to Distributor in this Partner Agreement; (y) replace or modify the Product so that it becomes non-infringing; or (z) terminate this Partner Agreement by written notice to Distributor and refund to Distributor the amounts actually paid by Distributor to Verso for the affected Product, less a reasonable charge for past beneficial use calculated on a straight-line basis over a deemed useful service life of three (3) years. 9.2 Distributor Indemnity. Distributor, at its own expense, shall indemnify and hold Verso harmless from and shall defend Verso against any and all claims, suits, losses, damages, costs, fees and expenses, including attorneys’ fees, brought against Verso that arise from or 10 relate to (i) modifications to Products or use of the Products with other products or services or in any manner by Distributor or an End User which infringe any patent or copyright of any third party or misappropriates any trade secret of a third party to the extent such infringement or misappropriation does not solely and exclusively relate to the Product on its own used as prescribed in the Verso documentation; (ii) any statements made by Distributor relating to Products that were not approved in advance in writing by Verso or contained in documentation accompanying such Product; and (iii) Distributor’s failure to provide binding End User License Agreements to End Users. 9.3 Notice and Assistance. An indemnifying party under this Section 9 shall only be liable for providing indemnification hereunder if the indemnified party (i) notifies the indemnifying party promptly in writing of the claim; (ii) gives the indemnifying party sole control to defend, compromise or settle the claim; and (iii) provides all available information, assistance and authority to enable the indemnifying party to do so. The indemnified party may participate in the defense or settlement of any such claim with counsel of its choice at its own expense. 10. LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF SECTIONS 4, 7, AND 9, NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VERSO’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS PARTNER AGREEMENT OR THE PRODUCT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL IN NO EVENT EXCEED THE AMOUNTS PAID BY DISTRIBUTOR TO VERSO UNDER THIS PARTNER AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE FIRST CLAIM. MULTIPLE CLAIMS SHALL NOT EXPAND THIS LIMITATION. THIS SECTION SHALL BE GIVEN FULL EFFECT EVEN IF THE WARRANTY PROVIDED IN THE PRODUCT EXHIBIT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 11. TERM AND TERMINATION. Certain terms and conditions of this Partner Agreement regarding term and termination are set forth in the Product Exhibit. 11.1 Effect of Termination. Upon expiration or termination of this Partner Agreement for any reason, (i) Distributor shall immediately and permanently cease and desist from acting or representing itself as an authorized distributor or Partner of Verso; (ii) Distributor’s right to acquire and distribute Products hereunder shall immediately terminate; (iii) any amounts owed to Verso under this Partner Agreement before such termination or expiration shall be immediately due and payable; (iv) all license rights granted to Distributor under this Partner Agreement shall immediately cease; (v) Distributor shall deliver to Verso Distributor’s current End User list for Products, current lists and documentation relating to open End User issues (including, but not limited to, End User payment and services issues), current list of service contracts, and all other like information regarding End Users; (vi) Verso may in its sole discretion provide support and maintenance directly to End Users; and (vii) the Receiving Party shall return to the disclosing party all Confidential Information and copies thereof and any other proprietary information of the disclosing party and certify to the disclosing party in writing that it has fully complied with this requirement. Distributor acknowledges and agrees that it will have no right or claim against Verso based on any costs, whether direct or indirect, incurred by 11 Distributor related to the marketing of Verso product as a result of the termination of this Partner Agreement by Verso for any or no reason. 11.2 No Liability for Termination or Non-Renewal. DISTRIBUTOR AGREES THAT, IN THE EVENT OF ANY TERMINATION OR NON-RENEWAL OF THIS PARTNER AGREEMENT, IT SHALL HAVE NO RIGHTS TO COMPENSATION, DAMAGES, INDEMNIFICATION OF ANY NATURE, SPECIFICALLY INCLUDING COMMERCIAL SEVERANCE PAY, WHETHER BY WAY OF LOSS OF FUTURE PROFITS, REIMBURSEMENT FOR EXPENDITURES FOR PROMOTION OF ANY PRODUCT, OR OTHER COMMITMENTS IN CONNECTION WITH THE BUSINESS AND GOODWILL OF DISTRIBUTOR. DISTRIBUTOR EXPRESSLY AND IRREVOCABLY WAIVES ANY CLAIM TO COMPENSATION OR INDEMNITIES FOR ANY TERMINATION OR NON-RENEWAL OF A BUSINESS RELATIONSHIP WITH VERSO. 11.3 Intellectual Property Rights and Remedies. Nothing in this Partner Agreement is intended to waive or limit extra-contractual rights and remedies available to Verso to protect its proprietary interest in Products, including those rights and remedies under U.S. copyright law, the Berne Convention or other international treaties, or applicable national copyright and intellectual property laws of the countries in which Distributor may use the system. Notwithstanding any other remedies under law or equity, this Partner Agreement may be terminated by Verso upon written notice to Distributor if Distributor has breached any of Verso’s, or Verso’s licensors’ or suppliers’ Intellectual Property Rights, if Distributor commits any fraud or misrepresentation, or if Distributor is negligent or ineffective in protecting Verso’s Intellectual Property Rights. 11.4 Survival. Upon any termination or expiration of this Partner Agreement, Section 1, Section 4.3, Section 5.3, Section 5.6, Section 5.7, Section 5.8, Section 5.9, Section 7, Section 8, Section 9, Section 10, Section 11, Section 12, Section 13, all warranties and terms and conditions related thereto set forth in the Product Exhibit, and any payment obligations incurred prior to termination or expiration of this Partner Agreement shall survive. 12. EXPORT. Distributor shall comply with all applicable export and import control laws and regulations in its use and distribution of Products and, in particular, Distributor shall not import, export, or re-export Products without obtaining or making all required United States and foreign government licenses, filings, and notifications. Distributor shall defend, indemnify, and hold harmless Verso from and against all fines, penalties, liabilities, damages, costs, and expenses incurred by Verso as a result of any violation of such laws or regulations by Distributor, any of its agents or employees, or any End User. 13. MISCELLANEOUS. 13.1 Independent Contractors. Each party hereto is an independent contractor of the other and neither shall be deemed an employee, agent, partner or joint venture of the other, regardless of the use of the word “partner” in this Partner Agreement. Neither party shall make any commitment, by contract or otherwise, binding upon the other or represent that it has any authority to do so. 13.2 Assignment. Neither this Partner Agreement nor any right or duty under this Partner Agreement may be assigned or delegated by Distributor, by operation of law or otherwise, without the prior written consent of Verso, which may be withheld in its sole and 12 absolute discretion, and any attempted assignment and delegation without such consent shall be void and without effect. This Partner Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective representatives, heirs, administrators, successors and permitted assigns except as otherwise provided herein. 13.3 Certain Warranties and Acknowledgments. Distributor represents and warrants to Verso that Verso funds have not been used (and Verso funds will not be used), directly or indirectly, to pay for the Products. Distributor acknowledges and agrees that (i) Distributor has no rights to return Products purchased pursuant to this Partner Agreement to Verso or obtain a refund therefor, except for those limited express conditional rights set forth in the Product Exhibit; (ii) Verso does not and will not guarantee, directly or indirectly, any payments that Distributor may receive for the Products or their use or that any end users will purchase Products from Distributor. 13.4 Notices. Any and all notices or other communications required or permitted by this Partner Agreement or by law to be served on or given to either party hereto by the other party shall, unless otherwise provided, be in writing and shall be deemed duly served and given when personally delivered to either of the parties to whom it is directed, or in lieu of such personal service, (i) on the same day of transmission by confirmed facsimile; (ii) seven (7) days after deposit in the mail, first class air mail postage prepaid; or (iii) two (2) business days after being sent by express courier, addressed to the respective addresses set forth on the signature page to this Partner Agreement or such updated addresses as the parties may indicate in writing from time to time. In addition, Verso may provide notice to Distributor by email to the Distributor email address specified on the signature page hereto. 13.5 Force Majeure. Except for the duty of payment for Products previously supplied, neither party shall be responsible or liable to the other party for nonperformance or delay in performance of any terms or conditions of this Partner Agreement due to acts of God, government-imposed embargos, wars, disruptions in telecommunications services or the Internet, acts of terrorism, energy crises, riots, strikes or other labor disputes, shortages of labor or materials or other causes beyond the reasonable control of the non-performing or delayed party. In the event of interruption of Verso’s manufacture or shipment for reasons beyond Verso’s control, Verso may allocate production and shipment among its customers and partners in a manner that Verso deems to be fair and reasonable. 13.6 Language. This Partner Agreement, and the Exhibits hereto, are prepared and executed in the English language only, which language shall be controlling in all respects. Any translations of this Partner Agreement into any other language are for reference only and shall have no legal or other effect. Any notice, which is required or permitted to be given by one party to the other under this Partner Agreement, shall be in the English language. 13.7 No Waiver. Any waiver (express or implied) by either party of any breach of this Partner Agreement shall not constitute a waiver of any other or subsequent breach. No provision of the Partner Agreement shall be waived by any act, omission or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving party. 13.8 Compliance with Laws. Distributor shall obey all applicable laws and regulations in the performance of its duties and tasks under this Partner Agreement. Distributor agrees to obtain, at its own expense, all registrations, licenses and approvals from the any 13 authorities and agencies in the Territory which may be needed in order for Distributor to import, market and distribute Products. Any such applications shall identify Products as originating from Verso and Verso’s suppliers. Whenever possible, the registration shall be made on Verso’s behalf, and Products shall be registered in the name of Verso and its suppliers. Distributor shall indemnify, defend, and hold Verso harmless from and against any claims, liabilities, damages, losses, costs or expenses, including attorneys’ fees, incurred by Verso as a result of any failure to comply with all applicable laws and to bring this Partner Agreement or Products into compliance with any applicable laws. Any failure by Distributor to adhere to such laws and obtain the necessary licenses shall be grounds for immediate termination. 13.9 Foreign Corrupt Practices Act. Distributor agrees that any sums paid to Distributor under this Partner Agreement are for Distributor’s own account, and that except as appropriate to carry out Distributor’s duties set forth herein in a legal manner, Distributor has not, has no obligation to, and shall not, directly or indirectly, give, offer, pay, promise to pay, or authorize the payment of money or any thing of value to any other person in connection with the distribution of Products or other hardware, software or services. Distributor agrees not to take any actions that would cause it or Verso to violate the U.S. Foreign Corrupt Practices Act of 1977, as amended. Distributor further agrees that no officer, director, employee, or agent of Distributor is an “official” of any government located within the Territory as that term is defined in such Act, nor shall Distributor employ any such “official.” 13.10 Severability. In the event any provision of this Partner Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Partner Agreement will remain in full force and effect. 13.11 Governing Law and Jurisdiction. This Partner Agreement shall for all purposes be governed by and interpreted in accordance with the laws of the State of Georgia without giving effect to any conflict of laws principles that require the application of the laws of a different state. The parties expressly agree that the United Nations Convention on the International Sale of Goods shall not apply to this Partner Agreement. Any dispute arising out of or relating to this Partner Agreement may be commenced in a federal court in Atlanta, Georgia or in state court in Fulton County, Georgia, and each party irrevocably submits to the jurisdiction and venue of such courts. Subject to the agreement of the parties, any dispute arising out of or relating to this Partner Agreement may be resolved by binding arbitration conducted by a panel of three (3) arbitrators to be held in Atlanta under the Rules of Arbitration of the International Chamber of Commerce. Any such arbitration shall be conducted in the English language and the arbitrators will issue a final written, English-language opinion supporting their decision. The arbitrators will not have the authority to assess indirect, consequential, indirect or punitive damages. 13.12 U.S. Government End Users. The Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, Distributor shall provide Software to U.S. Government End Users pursuant to the terms and conditions herein. In the event that Distributor receives a request from any agency of the U.S. Government to provide Software with rights beyond those set forth above, Distributor shall notify Verso of the scope of rights requested and the agency making such request and Verso shall, in its sole discretion, accept or reject such request. 14 13.13 Equitable Relief. Distributor agrees that certain breaches of this Partner Agreement by Distributor (including breaches of Section 4.1.2, Section 4.3, and Section 7) may result in irreparable harm to Verso, the extent of which would be difficult and impracticable to assess, and that money damages would not be an adequate remedy for such breach. Accordingly, Verso shall be entitled to seek immediate equitable and other provisional relief, including specific performance of this Partner Agreement and a temporary restraining order and preliminary and permanent injunction, as a remedy for such breach in addition to any and all other remedies available to Verso at law or in equity and without prejudice to any such other remedies. 13.14 Construction. The headings contained in this Partner Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Partner Agreement. Unless otherwise provided, the term “including” as used herein shall mean “including without limitation.” 13.15 Entire Partner Agreement. This Partner Agreement together with its exhibits constitutes the entire agreement of Verso and Distributor with regard to the subject matter hereof and supersedes all prior and contemporaneous negotiations, statements and agreements, whether written or oral, including (without limitation) any agreement Distributor previously entered into with any predecessor of Verso unless such agreement has been expressly assumed in writing by Verso. No prior or contemporaneous representation or warranty related to the subject matter hereof shall be deemed effective or part of this Partner Agreement, except when made in writing and signed by a duly authorized representative of the respective party. Any preprinted terms and conditions, including modifications thereto, that appear on any other document, including, without limitation, any purchase orders or similar documents now or hereafter created, shall be deemed without effect and shall be superseded in their entirety by the terms and conditions of this Partner Agreement unless: (i) such document has been executed by the duly authorized representatives of the parties; and (ii) such document expressly indicates the parties’ intent that such preprinted terms and conditions, including modifications thereto, shall be deemed an amendment to this Partner Agreement. This Partner Agreement may be amended only by a written document executed by duly authorized representatives of Verso and Distributor. 13.16 Counterparts; Facsimile Signatures. This Partner Agreement, and any amendment or waiver of the terms hereof, may be signed in counterparts, each of which will constitute an original and all of which together shall constitute one and the same instrument. Any signature may be delivered by facsimile, which shall have the effect of an original signature. [The remainder of this page is intentionally blank] Version dated April 7, 2003 15 IN WITNESS WHEREOF, the parties have caused this Partner Agreement to be executed and delivered effective as of the Effective Date. DISTRIBUTOR By: Name: Title: Date: Address: ________________________ ________________________ ________________________ Attention: ________________ Phone: ___________________________ Fax: _____________________________ e-mail: ___________________________ VERSO TECHNOLOGIES, INC. By: Name: Title: Date: Address: Verso Technologies, Inc. 400 Galleria Parkway, Suite 300 Atlanta, Georgia 30339 USA Attention: Chief Financial Officer Phone: 678-589-3500 Fax: 678-587-3750 Exhibit A: Product Exhibit Exhibit B: Territory