Exhibit 10.1


 


JOINT SALES AND MARKETING AGREEMENT


 


This
Joint Sales and Marketing Agreement (“Agreement) is entered into this 16 day of
July 2004 by and between North Electric Company, Inc., a North Carolina
corporation with a principal place of business at One Springfield Center, 6131
Falls of Neuse Road, Suite 205, Raleigh, North Carolina 27609 (“NECI”), and
Tekno Telecom LLC, a limited liability company with a principal place of
business at 1250 Shore Road, Naperville, Illinois (“Tekno”).


 


WHEREAS,
the parties have independently developed certain products, services, and
capabilities for marketing in and to the telecommunications and related
markets;


 


WHEREAS,
Tekno and NECI believe that certain of their respective products, services, and
capabilities are complimentary and may be more attractive to potential
purchasers when marketed together; and


 


WHEREAS,
the parties are interested in entering into an agreement to jointly market and
sell their respective products, services, and capabilities.


 


NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants set forth
herein, the sufficiency of which consideration is acknowledged to be adequate,
the parties agree to the terms set forth below.


 


A.                                    Definitions


 


1.                                       “Tekno Competitive Products” means any products developed by
NECI at any time which perform functions identical or similar to, or which can
be used for purposes identical or similar to, any one or more Tekno Products.


2.                                       “Tekno Products” means Tekno’s NetAnalzer and NetQuest
products; the services associated with the sale, supply, maintenance, repair,
and support thereof, and any other capabilities of Tekno associated therewith.


3.                                       “NECI Competitive Products” means any products developed by
Tekno at any time which perform functions identical or similar to, or which can
be used for purposes identical or similar to, any one or more NECI Products.


4.                                       “NECI Products” means NECI’s NAS-6131 Network Assurance
Product; the services associated with the sale, supply, maintenance, repair and
support thereof, and any other capabilities of NECI associated therewith.


5.                                       “Solution Set”  is provided as a
placeholder but not included in the initial Agreement.  It is anticipated that this Joint Sales and
Marketing Agreement will result in the Tekno Products and the NECI Products
being integrated and/or operated together to provide a more powerful “Solution
Set” than either product can do in a standalone mode.  When that occurs, this Agreement will be
updated to reflect that “Solution Set”.


 


B.                                    Basic
Agreements


 


1.                                       Non-exclusivity.  The
marketing and sales agreements set forth in this Agreement are non-exclusive on
the part of both parties.


2.                                       Duration.  The term of
this Agreement shall begin on the date first marked above and shall continue
until the date which is thirty (30) calendar days after the date any party
hereto delivers written notice of termination to the other party.


3.                                       Costs.  Each party
agrees to bear its own costs in respect of the negotiation, execution, and
performance of this Agreement.


4.                                       Confidentiality. The terms of the MUTUAL NON-DISCLOSURE
AGREEMENT executed on or about 7/20, 2004 by NECI and on or about 7/20, 2004 by
Tekno (“Confidentiality Agreement”) are incorporated herein by reference as if
repeated verbatim.  In addition, the
purposes of the Confidentiality Agreement shall be deemed to include the
performance of this Agreement.


5.                                       Marketing of Competitive Products. During the term of this
Agreement and for a period of twenty-four months after the termination of this
Agreement (1) Tekno shall not develop 


 





















 


any NECI competitive product and
(2) NECI shall not develop any Tekno Competitive Product.


 


C.                                    Marketing
Agreements


 


1.                                       Marketing of Solution Set.  Not included in the initial agreement..


2.                                       Marketing Preparation.  Both
parties agree to provide support for the joint marketing and sales efforts
including, but not limited to, pre-customer meeting discussions, preparation of
presentation material, attendance at marketing presentations and/or customer
discussion meeting, and completion and support for RFIs/RFQs.


3.                                       Pricing. Tekno shall be responsible for establishing all
pricing for Tekno Products.  NECI shall
be responsible for establishing all pricing for NECI Products.


4.                                       Customer Choice and Prime Contact. Customers will be jointly
chosen and agreed to by both parties. 
Depending on the situation, Tekno and NECI will agree jointly on how the
marketing contacts will be structured for each deal.


5.                                       Support Contact.  For
all customers who purchase Tekno Products, Tekno will be the primary contact
for all product support calls.  For all
customers who purchase NECI Products, NECI will be the primary contact for all
product support calls.


6.                                       Delivery and Performance. Tekno shall be responsible for the
on time delivery, operational performance, product quality, and ongoing
customer product support in respect to Tekno Products.  NECI shall be responsible for the on time
delivery, operational performance, product quality, and ongoing customer
product support in respect of NECI Products.


7.                                       Maintenance and Repair Costs.  Tekno shall be responsible for all costs
associated with the maintenance and repair of Tekno Products.  NECI shall be responsible for all costs
associated with the maintenance and repair of NECI Products.  Nothing herein shall prohibit any party from
passing any maintenance and repair costs on to a customer.


8.                                       Revenues. All revenue generated from the sale of Tekno
Products shall be paid to Tekno.  Quoting
and billing for Tekno Products and the collection of revenues will be the sole
responsibility of Tekno.  All revenue
generated from the sale of NECI Products shall be paid to NECI.  Quoting and billing for NECI Products and the
collection of revenues will be the sole responsibility of NECI.


9.                                       Liability. Tekno shall not be liable for the failure to
perform or any fault in any NECI Product. 
NECI shall not be liable for the failure to perform or any fault in any
Tekno Product.


10.                                 Indemnification.  Each
party (the “Indemnifying Party”) agrees to indemnify, defend, and hold harmless
the other party (the “Indemnified Party”) from any and all costs, expenses,
judgments, awards, fines, taxes, attorney and other professional fees, court
costs, and other charges associated with any action, suit, claim investigation,
arbitration, or mediation of any matter involving an Indemnified Party brought
as the result of any matter related to or involving any Tekno Product if Tekno
is the Indemnifying Party or any NECI Product if NECI is the Indemnifying
Party.


 


D.                                    Technology
Agreements


 


1.                                       Technology Ownership.  Notwithstanding any other provision of this
Agreement or the Confidentiality Agreement, at all times during the term of
this Agreement and after the termination of this Agreement, unless agreed
otherwise in writing by both parties (a) Tekno shall have no ownership interest
in any of the NECI Products and (b) NECI shall have no ownership interest in
any of the Tekno Products.


2.                                       Limited License.  In
respect to the joint marketing and sales activities further described in this
Agreement, (a) Tekno grants to NECI a limited, non-exclusive, nontransferable
license to use the trademarks and trade names associated with the Tekno
Products and (b) NECI grants to Tekno a limited, non-exclusive, nontransferable
license to use the trademarks and trade names associated with the NECI
Products.


3.                                       Technology Interface.  It
is anticipated that this will be required to integrate and/or operate the NECI
and Tekno Products as a “Solution Set” and will be defined at such time as that
need is agreed to by the Parties.


 





















 


E.                                      Miscellaneous
Provision


 


1.                                       Relationship of the Parties.  The Parties intend that this Agreement shall
not create, and shall be construed so as not to create, an agency, employment,
joint venture, or partnership relationship between them, nor shall it create an
association or any other organized form of relationship.  Neither party is authorized to make any
warranty nor representation on behalf of the other except as specifically
authorized in this Agreement or by some other writing.


2.                                       Amendment.  This Agreement
may be amended only by a written instrument executed by both parties.


3.                                       Assignment.  This
Agreement and the covenants of the parties set forth herein may not be assigned
by any party except with the prior written consent of the other party.  For the purposes of this Section, any
purchase of ownership interests in a party representing fifty percent or more
of the voting control of that party or rights to receive dividends or
distributions of cash and/or property from that party shall be deemed to be an
assignment of the Agreement.


4.                                       Notices. All notices and other communications required or
permitted under this Agreement shall be in writing and shall be delivered by
(i) hand delivery, (ii) prepaid overnight courier, (iii) first class, prepaid
United State mail, or (iv) facsimile to the addresses of the parties set forth
in the preamble to this Agreement.  Any
party may change such address by written notice delivered in accordance with
this Section E.4.  A notice shall be
deemed delivered when actually received if delivered by hand delivery or
prepaid overnight courier, five (5) business days after mailing if sent by
first class, prepaid United States mail, or upon receipt of a successful
transmission by facsimile.


5.                                       Binding Effect.  The
parties agree that the provisions of this Agreement will not be binding on
either party and will not create any legal rights or obligations between the
parties, except for the confidentiality, and intellectual property obligations
set forth herein and the obligations set forth in the Confidentiality Agreement
which shall be binding on the respective successors and assigns of each
party.  Neither party shall have any
liability to the other for discontinuing negotiations (so long as that party
has not breached its confidentiality or intellectual property obligations set
forth herein).


6.                                       Compliance with laws. 
Each party agrees to comply with all applicable federal, state, county,
and local laws, ordinances, regulations, codes, by-laws, and legal orders in
the performance of their respective obligations under this Agreement,
including, without limitation, all laws prohibiting the restraint of trade.


7.                                       Governing Law.  This
Agreement shall be governed by and interpreted in accordance with the laws of
the state of Illinois without giving effect to its laws regarding the conflict
of laws.  Any dispute arising between the
parties shall be referred to a court in Illinois.


 


EXECUTED as of the date first marked above.


 


	
  NORTH ELECTRIC
  COMPANY, INC.

  	
  TEKNO TELECOM
  LLC.

  
	
   

  	
   

  
	
  By:

  	
   /s/ Dan Ference

  	
  7/16/04

  	
   

  	
  By:

  	
  /s/ Ernest C. Kazens

  	
  7/16/04

  	
   

  
	
   

  	
  (Signature)

  	
  (Date)

  	
   

  	
   

  	
  (Signature)

  	
  (Date)

  	
   

  
	
  Name: Dan
  Ference

  	
  Name: Ernest C.
  Kazens

  
	
   

  	
   

  
	
  Title: President

  	
  Title: President

  
	
   

  	
   

  
	
  Hereunto Duly
  Authorized

  	
  Hereunto Duly
  Authorized