NEGLIGENCE OR WILLFUL MISCONDUCT OF THE BUYER INDEMNIFIED PARTIES.
1.7
NO THIRD PARTY BENEFICIARIES.
THE HM5000
CUSTOMERS SHALL NOT BE THIRD PARTY BENEFICIARIES UNDER THIS AGREEMENT AND SHALL
HAVE NO RIGHT TO ENFORCE THE PROVISIONS OF THIS AGREEMENT AGAINST EITHER SELLER
OR BUYER.
THE RIGHTS OF TILE HM5000 CUSTOMERS SHALL REMAIN ENTIRELY GOVERNED BY
THEIR RESPECTIVE HM5000 CONTRACTS.
1.8
NON-STANDARD VERSIONS OF HM5000 CONTRACT.
THIS AGREEMENT MAKES REFERENCE TO THE TERM AND CONDITIONS OF THE STANDARD
VERSION OF THE HM5000 CONTRACT, AS PROVIDED BY SELLER TO BUYER.
TO THE EXTENT
THAT THIS AGREEMENT REFERS TO TERMS AND CONDITIONS OF THE HM5000 CONTRACTS THAT
DO NOT MATCH THE TERMS AND CONDITIONS USED IN A VERSION OF THE HM5000 CONTRACT
(OTHER THAN THE STANDARD VERSION), THE PARTIES INTEND THAT SUCH TERMS SHALL
REFER TO THE MOST CLOSELY CORRESPONDING TERMS AND CONDITIONS IN SUCH HM5000
CONTRACT SO AS TO MOST CLOSELY REFLECT THE INTENT OF THE PARTIES HEREUNDER:
2.
TRANSACTIONS OF THE TRACKWARE AND 20/20V BUSINESS.
2.1
PROVISION OF CELLEMETRY SERVICES.
UNTIL
SUCH TIME AS BUYER HAS REPLACED THE CELLEMETRY GATEWAY IN ACCORDANCE WITH
SECTION 2.4 (AND IN NO CASE LATER THAN SEPTEMBER 30, 2003), SELLER SHALL RESELL
THE CELLEMETRY SERVICES TO BUYER FOR BUYER IN TURN TO RESELL SUCH SERVICES TO
ITS PRESENT 2ND FUTURE CUSTOMERS OF THE TRACKWARE PRODUCT LINE AND 20/20V
PRODUCT LINE.
5
2.2
CONSIDERATION FOR PROVISION OF CELLEMETRY
SERVICES.
IN EXCHANGE FOR SELLER'S PREVISION OF THE CELLEMETRY SERVICES TO
BUYER, BUYER HEREBY AGREES TO PAY SELLER THE AMOUNTS SELLER PAYS TO CELLEMETRY
PURSUANT TO THE CELLEMETRY RESELLER AGREEMENT.
SELLER SHALL NOT MODIFY OR
TERMINATE THE RESELLER AGREEMENT WITHOUT THE PRIOR CONSENT OF BUYER.
SELLER
SHALL COMPLY IN ALL RESPECTS WITH THE TERMS AND PROVISIONS OF THE CELLEMETRY
RESELLER AGREEMENT.
TO THE EXTENT THAT SELLER BREACHES THE CELLEMETRY RESELLER
AGREEMENT AND SUCH BREACH RESULTS IN ANY INTERRUPTION, FAILURE OR DELAY OF THE
CELLEMETRY SERVICES PROVIDED BY SELLER TO BUYER PURSUANT TO SECTION 2.1, SELLER
SHALL INDEMNIFY BUYER (A) FOR ANY LOSS OF BUSINESS THAT RESULTS FROM SUCH
INTERRUPTION, FAILURE OR DELAY IN SERVICE AND (B) FOR ANY AMOUNT THAT BUYER MAY
BE CONTRACTUALLY OBLIGATED TO CREDIT A CUSTOMER FOR SUCH INTERRUPTION, DELAY OR
FAILURE IN SERVICE, BUT IN NO EVENT SHALL SUCH INDEMNIFICATION EXCEED. [*]
2.3
ASSIGNMENT OF CELLEMETRY RESELLER
AGREEMENT.
AS SOON AS BUYER HAS REPLACED THE CELLEMETRY GATEWAY IN ACCORDANCE
WITH SECTION 2.4, SELLER SHALL MAKE EFFECTIVE ITS ASSIGNMENT TO BUYER ALL OF ITS
RIGHT AND INTEREST IN THE CELLEMETRY RESELLER AGREEMENT (WHICH ASSIGNMENT IS AN
ACQUIRED ASSET PURSUANT TO THE TERMS OF THE PURCHASE AGREEMENT) AND SECTION 2.1,
PROVIDING FOR THE PROVISION OF THE CELLEMETRY SERVICES BY SELLER, SHALL BE OF NO
FURTHER FORCE AND EFFECT.
2.4
REPLACEMENT OF CELLEMETRY GATEWAY.
BUYER
SHALL USE COMMERCIALLY REASONABLE EFFORTS TO REPLACE THE CELLEMETRY GATEWAY WITH
ITS OWN GATEWAY, CAPABLE OF ENABLING THE PROVISION OF THE CELLEMETRY SERVICES,
IN AN EXPEDITIOUS MANNER AND IN NO EVENT LATER THAN SEPTEMBER 30, 2003. SELLER
SHALL PROVIDE BUYER WITH REASONABLE TECHNICAL