SOFTWARE ACCEPTANCE AND DISTRIBUTION AGREEMENT
This Agreement is entered into by and between Lucent Technologies Inc., with a
place of business at 000 Xx. Xxxx Xx., Xxxxxxx Xxxxx, Xxx Xxxxxx 00000
(hereinafter called LUCENT) and Spanlink Communications, Inc. with a place of
business at Xxx Xxxx Xxxxxx XX, Xxxxxxxxxxx, Xxxxxxxxx 00000 (hereinafter called
SPANLINK).
The effective date of this Agreement shall be the later of the dates this
Agreement has been executed by the respective parties.
ARTICLE 1 - RECITALS
WHEREAS, SPANLINK has the right to license PRODUCT specified in Exhibit A; and
WHEREAS, LUCENT desires to obtain rights to PRODUCT described hereinafter; and
WHEREAS, SPANLINK desires to provide LUCENT with such rights upon the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing recitals and the covenants and
conditions set forth in this Agreement, the parties agree as follows:
ARTICLE 2 - LICENSE GRANT
A. SPANLINK grants LUCENT, subject to payment terms set forth in Exhibit
B, a nonexclusive, worldwide right and license to use, demonstrate,
market, sub-license, and distribute copies of PRODUCT supplied to
LUCENT by SPANLINK in object code form. SPANLINK also grants to LUCENT
a non-exclusive, royalty-free license to (i) use and reproduce the
PRODUCT for purposes of evaluation by LUCENT and internal LUCENT
acceptance and (ii) reproduce demonstration copies of each PRODUCT
supplied to LUCENT by SPANLINK solely for the purpose of marketing and
promoting the PRODUCT and training customers in its use. For purposes
of this paragraph "demonstration copies" means the version of the
PRODUCT contained in demonstration kits, a master copy of which shall
be supplied to LUCENT at a cost equal to the out of pocket costs paid
by SPANLINK to third parties for the actual development of the master
demonstration copy. All demonstration copies shall be tracked by LUCENT
and shall not be used for resale.
B. The license grants to LUCENT in this Agreement shall extend to any
present or future LUCENT subsidiary or associated company thereof
("LUCENT AFFILIATE"). LUCENT shall use its best efforts to provide
SPANLINK with an up to date list of all LUCENT AFFILIATES selling the
PRODUCT on behalf of LUCENT.
ARTICLE 3 - REPORTS
LUCENT shall render monthly reports within thirty (30) days from the end of each
calendar month specifying the number of demonstration copies produced and
delivered to potential customers, the number of copies of the PRODUCT and the
number of copies of the documentation delivered to LUCENT's customers during the
previous month.
ARTICLE 4 - AUDIT
SPANLINK shall have the right to engage an independent accounting firm (or with
the consent of LUCENT, SPANLINK may use properly trained SPANLINK employees) to
audit LUCENT's sales information, reporting systems and warranty records
(including those of LUCENT AFFILIATES) to establish the accuracy and timeliness
of reports made to SPANLINK by LUCENT. The information provided to SPANLINK by
the accounting firm shall be limited to the firm's opinion on the accuracy and
timeliness of reports made by LUCENT; in all other cases, the accounting firm
shall be required to hold all information strictly confidential. The audit may
be conducted not more than once a year, and LUCENT shall not unreasonably
withhold its consent to the time of the audit and SPANLINK's choice of
accounting firm. The accounting firm shall be bound by a non-disclosure
agreement in the form to be provided by LUCENT to ensure compliance with this
paragraph and shall provide LUCENT with a copy of its audit report. If the audit
discloses a discrepancy, SPANLINK shall immediately pay LUCENT the amount of any
overpayment made by LUCENT and LUCENT shall immediately pay SPANLINK the amount
of any underpayment.
ARTICLE 5 - RIGHTS TO PRODUCT
Except as specifically set forth in this Agreement and in the Exhibits, all
rights to and interest in the PRODUCT remain the exclusive property of SPANLINK.
No interest in any software, products or materials developed by LUCENT shall
pass to SPANLINK under this Agreement, even though such software, products or
materials may interact with the PRODUCT or be embedded therein, or be
functionally similar to the PRODUCT as long as it does not infringe on any
intellectual property owned by SPANLINK.
ARTICLE 6 - DELIVERABLES
A. SPANLINK agrees to deliver to LUCENT a Golden Master of the PRODUCT
software and product documentation, and the other deliverable items set
forth in Exhibit A. The Source Code for the PRODUCT is subject to the
Escrow Agreement attached hereto as Exhibit E.
B. In addition, SPANLINK shall promptly deliver to LUCENT all PRODUCT
enhancements, improvements, system modifications, updates and new
releases ("enhancements") made available by SPANLINK to any of its
customers at charges mutually agreed upon between the parties. Error
updates and "bug fixes" will be
delivered at no additional charge. Such Enhancements shall be
considered PRODUCT subject to all terms and conditions of this
Agreement and the Parties agree to amend Exhibit B appropriately to
provide for payment terms for such enhancements.
C. Deliveries by SPANLINK under this Agreement shall be to the LUCENT
facility or to such other address, as may be specified by LUCENT.
ARTICLE 7 - TAXES
If applicable SPANLINK shall pay all taxes, customs duties, levies, and other
similar charges (including any related interest and penalties), however
designated, imposed by any jurisdiction upon the existence or operation of this
Agreement; provided, however, that LUCENT shall reimburse SPANLINK for
applicable U.S., state and local sales and use taxes which are billed as a
separate item, unless LUCENT provides SPANLINK with a valid exemption
certificate. LUCENT shall have the right to have SPANLINK contest with the
imposing jurisdiction, at LUCENT expense, any such taxes that LUCENT deems as
improperly imposed. Notwithstanding anything to the contrary contained herein,
foreign withholding taxes shall not be paid by SPANLINK nor deducted from sales
reported by LUCENT.
ARTICLE 8 - PAYMENTS
A. LUCENT shall provide SPANLINK with reports in accordance with the
provisions of ARTICLE 3 - REPORTS. All payments due to SPANLINK under
this Agreement shall be made on a quarterly basis within thirty (30)
days from the date of the end of the quarter in which the PRODUCT was
sold by LUCENT or a LUCENT AFFILIATE.
B. If LUCENT reproduces copies of demonstration kits pursuant to paragraph
A of ARTICLE 2 - LICENSE GRANT, no payment of any kind shall be due to
SPANLINK for the distribution of such reproduced copies provided such
copies are tracked by LUCENT reported pursuant to ARTICLE 3 - REPORTS
and not used for resale.
ARTICLE 9 - MISCELLANEOUS EXPENSES
LUCENT and SPANLINK shall each pay all travel expenses of its respective
employees, except where reimbursement of travel expenses is specifically agreed
to between the parties in advance. In the latter case, reimbursement shall be
made for reasonable and auditable travel and living expenses for specified
personnel up to a maximum amount to be negotiated between the parties.
ARTICLE 10 - ACCEPTANCE
A. LUCENT shall evaluate the PRODUCT delivered under this Agreement for
compliance with the criteria set forth in Exhibit A, and shall submit a
written acceptance or rejection to SPANLINK within thirty (30) days
after the receipt by LUCENT of the PRODUCT specifying the errors or
defects leading to such rejection if rejected. Such written acceptance
or rejection shall be transmitted to SPANLINK only by LUCENT, Shipment
to and use of the PRODUCT by a customer shall not be deemed acceptance,
however, payment pursuant to Exhibit B shall be due to SPANLINK for all
PRODUCT shipped to customers whether or not the PRODUCT has been
formally accepted. LUCENT shall have the right to accept portions of
the PRODUCT. If LUCENT does not notify SPANLINK within such 30-day
period of LUCENT'S acceptance or rejection, PRODUCT shall be assumed to
have been accepted.
B. If a PRODUCT evaluated pursuant to paragraph A of this Article is
rejected, SPANLINK agrees to use its best efforts to correct each error
leading to such rejection and the corrected PRODUCT shall be
resubmitted for acceptance testing within thirty (30) days following
receipt of notice from LUCENT of such errors. LUCENT shall have thirty
(30) days after the resubmissions of such corrected PRODUCT to accept
or reject such PRODUCT. If the corrected PRODUCT passes the acceptance
tests, SPANLINK agrees to incorporate the corrections in all future
copies of the PRODUCT provided to LUCENT by SPANLINK. SPANLINK further
agrees to promptly replace any uncorrected PRODUCT previously supplied
to LUCENT under ARTICLE 6 -DELIVERABLES with corrected PRODUCT at no
charge to LUCENT.
C. If the errors in a rejected PRODUCT cannot be corrected within the
period specified in paragraph B of this Article or if a resubmitted
PRODUCT retested by LUCENT during the re-evaluation period is again
rejected, then LUCENT shall, at its option (1) accept the PRODUCT at an
equitable adjustment in price as may be agreed by the parties, in which
case the PRODUCT shall be deemed accepted; (2) afford SPANLINK one or
more extensions to correct the PRODUCT for a period or periods to be
specified by LUCENT without prejudice to LUCENT rights to thereafter
exercise its option under either clause (1) or (3) of this paragraph
without further notice to SPANLINK, if the errors have not been
corrected; or (3) be entitled to a prompt and full refund of all monies
previously paid under this Agreement with respect to such PRODUCT to
the extent that such payments relate to a LUCENT customer who has
returned such PRODUCT for a refund from LUCENT. If option (3) is
exercised, LUCENT may (i) cancel, without charge or obligation, any
pending ORDERS for such PRODUCT, (ii) shall have no further obligation
to SPANLINK under this Agreement as to such PRODUCT (provided, however,
in all events SPANLINK will be entitled to receive and retain all
payments under this Agreement for all such PRODUCT actually delivered
to and retained by LUCENT customers); (iii) and may elect to terminate
this Agreement by written notice to SPANLINK.
ARTICLE 11 - CONTINUING PRODUCT AVAILABILITY
SPANLINK will notify LUCENT, in writing, of any decision to discontinue
production, marketing, licensing or other distribution of PRODUCT for any reason
including, without limitation, the availability of any upgraded, improved, or
changed PRODUCT within thirty (30) days of said decision.
ARTICLE 12 - MARKETING
LUCENT shall have complete authority to market or not market any of all of the
PRODUCT as it sees fit so long as LUCENT meets the payment obligations set forth
in this Agreement and does not otherwise violate SPANLINK's rights in the
PRODUCT. Nothing in this Agreement shall be construed to obligate LUCENT to in
any way market, distribute, ship or otherwise utilize any PRODUCT or any portion
thereof. Furthermore, should SPANLINK introduce a new version or release of the
PRODUCT, LUCENT may, at its sole option, elect not to distribute the new version
or release any may continue to distribute any or all earlier versions or
releases, including versions obsoleted by SPANLINK. Nothing in this ARTICLE 12 -
MARKETING shall be deemed or construed to obligate SPANLINK to provide
maintenance support beyond that which is otherwise required by this Agreement.
ARTICLE 13 - WARRANTY
SPANLINK warrants to LUCENT and its customers all of the following:
1. The PRODUCT will be free from significant errors, will conform to
and. perform in accordance with the Documentation and will function
properly. The Gold Master Media conveying the PRODUCT will be free from
defects in material and workmanship. The PRODUCT will be compatible
with and may be used in conjunction with other Software as described in
the Documentation. The foregoing warranties extend to the future
performance of the PRODUCT and shall continue for ninety (90) days
after the PRODUCT is installed at LUCENT's customer site.
2. Services will be performed in a first-class, workmanlike manner.
Services mean (1) Maintenance Services and other services in support of
PRODUCT and (2) the subject matter called for by this Agreement and any
specifications, drawings, and samples.
3. Except as disclosed to LUCENT (and for which security codes to
"unlock" have been provided), there are no copy protection or similar
mechanisms within the PRODUCT which will, either now or in the future,
interfere with the grants made in this Agreement.
4. LUCENT and its customers shall have quiet enjoyment of the PRODUCT.
5. As to PRODUCT for which SPANLINK does not solely own all
intellectual property rights, SPANLINK has full right, power and
authority to license the PRODUCT to LUCENT and its customers as
provided in this Agreement.
6. If the PRODUCT, or any portion thereof, is or becomes unusable,
totally, or in any respect during the applicable warranty period, or if
the Services fail to meet the warranties, SPANLINK will re-perform
Services, correct errors, defects and nonconformities and restore the
PRODUCT to conforming condition free of significant
errors at no cost to LUCENT or its customers. Corrected PRODUCT shall
be warranted as set forth in this ARTICLE 13 - WARRANTY.
7. The PRODUCT does not contain any malicious code, program, or other
internal component (e.g. computer virus, computer worm, computer time
bomb, or similar component), which could damage, destroy, or alter
PRODUCT, firmware, or hardware or which could, in any manner, reveal,
damage, destroy, or alter any data or other information accessed
through or processed by the PRODUCT in any manner. SPANLINK shall
immediately advise LUCENT, in writing, upon reasonable suspicion or
actual knowledge that the PRODUCT provided under this Agreement may
result in the harm described above. SPANLINK's liability to LUCENT and
its customers for any damage resulting from the harm described above
shall be limited to restoring the PRODUCT as set forth in subparagraph
6 above and SPANLINK shall not be liable for any consequential damages
arising therefrom.
8. SPANLINK warrants that PRODUCT will record, store, process and
present calendar dates falling on or after January 1, 2000, in the same
manner and with the same functionality as it performed before January
1, 2000. This maintenance will be considered part of and covered under
the maintenance provisions of this Agreement at no additional charge to
LUCENT.
9. If LUCENT reports a suspected software "bug", SPANLINK will use its
best efforts to resolve the issue. If it is discovered that the "bug"
is not SPANLINK's responsibility, SPANLINK shall be paid for its
efforts at the rates specified in Exhibit D for Post Warranty Tier 4
support.
10. All warranties shall survive inspection, acceptance and payment.
ARTICLE 14 - TRAINING
A. SPANLINK shall make available to LUCENT those training services defined
in Exhibit C of this Agreement on the terms set forth in Exhibit C.
B. LUCENT shall have the right to obtain and distribute course or training
materials described in Exhibit C of this Agreement on the terms set
forth in Exhibit C.
C. LUCENT shall also have a royalty-free license to use, reproduce and
distribute fact sheets, brochures and other promotional literature for
PRODUCT, provided that all of SPANLINK's trademarks and other
proprietary information is adequately designated and protected.
D. LUCENT will be allowed to purchase from SPANLINK all other training
services and training materials developed by SPANLINK relating to the
PRODUCT at a price to be agreed upon between LUCENT and SPANLINK plus
any out of pocket costs incurred by
SPANLINK to customize such services or materials to be specific to the
PRODUCT or to LUCENT'S needs.
ARTICLE 15 - CUSTOMER LICENSES AND SUPPORT
A. LUCENT is SPANLINK's non-exclusive distributor of the PRODUCT and as
such will pass through to LUCENT customers SPANLINK's end user license
and warranty and shall provide an end user license and warranty
agreement to the customer. All customer licenses for the PRODUCT
resulting from LUCENT marketing activities shall extend directly from
SPANLINK to the customer in question and shall be perpetual for each
such customer.
B. SPANLINK shall not make any representations or warranties which in any
way purport to be binding on LUCENT or any LUCENT AFFILIATE. Any
warranty that SPANLINK extends in its end user agreement in connection
with any PRODUCT furnished or distributed under this Agreement shall
specifically exclude SPANLINK's distributors, including specifically
LUCENT or any LUCENT AFFILIATE, from any liabilities related to such
warranty, and SPANLINK shall further specifically state, in connection
with such warranty, that such distributors assume no responsibility and
make no representation or warranty whatever with regard to the PRODUCT
distributed to such customer.
C. SPANLINK and LUCENT agree that warranty and post-warranty support will
be in accordance with Exhibit D.
D. SPANLINK shall provide Tier 4 Warranty support services for PRODUCT to
LUCENT and its customers, at no charge upon certification by LUCENT
that the PRODUCT is within the ninety (90) day warranty period provided
in ARTICLE 13 - WARRANTY. Such services shall include telephone hot
line and replacement of defective media as set forth in Exhibit D. Post
Warranty Tier 4 support shall be provided by SPANLINK at the rates
specified in Exhibit B and shall be billed by SPANLINK to the
requesting LUCENT organization. All Warranty support will be in U.S.
English language only.
ARTICLE 16 - TERM, TERMINATION AND DEFAULT
A. The term of this Agreement shall be three (3) years from its effective
date unless earlier terminated pursuant to this Agreement. LUCENT and
SPANLINK may mutually agree in writing to extend such term for
successive one (1) year periods. Additionally, either party may
terminate this Agreement if the other party is in default. A party to
this Agreement will be in default if it commits a material breach or if
it ceases normal operations or becomes insolvent.
B. In no event shall either party terminate by reason of any such default
unless written notice detailing such default is given to the other
party. The other party shall thereafter have thirty (30) days after
such written notice to correct such default; or, if said default cannot
reasonably be corrected within said thirty (30) days, the other party
shall begin substantial corrective action within said thirty (30) days
and shall proceed promptly to correct said default. If such corrective
action is not completed within sixty (60) days after such written
notice, the party not in default i-nay at its option terminate this
Agreement.
C. Upon expiration or termination of this Agreement for any reason, each
party shall return and make no further use of property, materials and
other items (and all copies thereof) belonging to the other party and
relating to this Agreement, unless otherwise mutually agreed to.
D. If this Agreement expires or is terminated for any reason other than
default by SPANLINK, the licenses granted under this Agreement are
terminated, except that:
(i) LUCENT may continue to utilize such licenses to the extent
necessary for LUCENT to fulfill its support and maintenance
obligations, if any, to its existing customers; and
(ii) licenses granted by LUCENT prior to termination of this
Agreement, and LUCENT payment obligations, if any, with
respect to PRODUCT ordered by LUCENT's customers prior to
expiration or termination, shall survive.
LUCENT shall have no obligation for any payments accruing under this
Agreement after such expiration or termination unless LUCENT continues
to market the PRODUCT.
E. Upon termination of this Agreement for reason of default by SPANLINK,
all the licenses granted to LUCENT under this Agreement shall continue
until the end of the term or extension, as the case may be, that would
have been in effect pursuant to paragraph A of this Article in the
absence of such termination for default. Upon the conclusion of such
term or extension, LUCENT rights and obligations with respect to such
licenses shall terminate, except for the surviving items specified in
clauses (i) and (ii) in paragraph D of this Article.
ARTICLE 17 - INDEMNIFICATION
SPANLINK represents and warrants that it now has and will retain the sufficient
right, title and interest in the PRODUCT to make this Agreement. SPANLINK shall
indemnify LUCENT for any loss, damage, expense or liability resulting from, and
agrees to defend at its expense any suit against LUCENT or its customers based
upon, a claim that SPANLINK does not have sufficient right, title, and interest
in any of the PRODUCT to make this Agreement, or that any of the PRODUCT
violates a trade secret or infringes a patent, a copyright or a tradename. Such
indemnity includes, but is not limited to, the amount of any settlement or the
damages and costs (including attorneys' fees, if any) awarded in any such suit.
LUCENT shall promptly notify SPANLINK in writing of any notice of claim or of
threatened or actual suit, and at SPANLINK's request and expense, shall afford
SPANLINK cooperation for the defense or settlement of the same; provided,
however, that SPANLINK shall not make any statement on LUCENT's behalf
that would constitute an admission against interest by LUCENT, nor enter into
any settlement adversely affecting LUCENT's rights, without the prior written
consent of LUCENT. Upon such settlement, or in the event of an award adverse to
LUCENT in any such action, SPANLINK shall post bond or the security acceptable
to LUCENT in an amount sufficient to assure payment in full of such settlement
or such damages and costs, as the case may be.
In the event an injunction is entered against LUCENT in such suit wherein LUCENT
is enjoined from-using such PRODUCT, SPANLINK shall use its best efforts to
procure for LUCENT the right to continue to use the PRODUCT or replace or modify
such PRODUCT to make them non-infringing. Any such replacement or modification
shall meet substantially the specifications set out in Exhibit A. The provision
of such replacement or modification shall not relieve SPANLINK of the
obligations set forth in the preceding paragraph. The replacement or
modification shall be considered a PRODUCT subject to all terms and conditions
(including acceptance) under this Agreement.
SPANLINK agrees to notify LUCENT immediately if any U.S. or foreign patent is
cited against the PRODUCT or if any legal action of the type contemplated in
this Article is commenced or threatened.
ARTICLE 18 - COPYRIGHT NOTICE
LUCENT will not alter or delete any SPANLINK copyright notice appearing on the
container or a labels of the PRODUCT in object form.
ARTICLE 19 - ASSIGNMENT
SPANLINK shall not assign any right or interest under this Agreement (excepting
monies due or to become due) nor delegate any work or other obligation to be
performed by or owed under this Agreement without the prior written consent of
LUCENT. Any attempted assignment or delegation in contravention of the above
provisions shall be void and ineffective. Any assignment of monies shall be void
and ineffective to the extent that (1) SPANLINK shall not have given LUCENT at
least thirty (30) days prior written notice of such assignment and (2) such
assignment attempts to impose upon LUCENT obligations to the assignee additional
to the payment of such monies, or to preclude LUCENT from dealing solely and
directly with SPANLINK in all matters pertaining to this Agreement including the
negotiation of amendments or settlements of charges due.
ARTICLE 20 - USE OF SPANLINK'S TRADENAME
LUCENT may use SPANLINK's trademarks.. tradenames, and tradedress (hereafter
tradename) in marketing the PRODUCT under the following conditions:
1. In order to enable SPANLINK to maintain control of the use of its
tradename, LUCENT agrees to submit samples of the usage of said
tradename to SPANLINK for its review and approval which approval will
not be unreasonably withheld. PRODUCT and
materials generated and released by LUCENT will be consistent with the
samples reviewed by SPANLINK.
2. The rights of LUCENT to use any tradename of SPANLINK will cease at
the termination of this Agreement.
3. Use of SPANLINK tradenames by LUCENT will bear no royalty.
4. All rights and goodwill in any SPANLINK tradename will remain with
SPANLINK (except the rights specifically licensed in this Agreement)
and any use by LUCENT of any such tradename will inure to the benefit
of SPANLINK.
SPANLINK shall supply to LUCENT a list of the countries where
SPANLINK's rights to use a tradename have been established by
registration or other appropriate official procedures and will update
such list as appropriate during the term of this Agreement; and if no
registration has been made in any country, SPANLINK shall so state.
LUCENT shall have the option, at its own expense, to seek such
registration in any country on behalf of SPANLINK.
ARTICLE 21 - CONFIDENTIALITY OF THE AGREEMENT
The terms and conditions of this Agreement are confidential and shall not be
disclosed to third parties, without the written agreement of both parties
hereto, except to the extent required by a court or regulatory agency of
competent jurisdiction. LUCENT is allowed to mention in its promotional
literature and advertising that the licensed PRODUCT has been provided to LUCENT
by SPANLINK only after SPANLINK's prior written approval, which shall not be
unreasonably withheld. SPANLINK shall not issue or release for publication any
articles or advertising or publicity matter relating to work under this
Agreement or mentioning or implying the name or identification of LUCENT, any
LUCENT AFFILIATES or any of their respective personnel, unless prior written
approval (which shall not be unreasonably withheld) is granted by LUCENT. The
term "identification" includes any tradename, trademark, service xxxx, insignia,
symbol or any simulation thereof.
ARTICLE 22 - EXPORT
LUCENT shall not export the PRODUCT, or any other information supplied to LUCENT
by SPANLINK under this Agreement, contrary to the laws of the United States.
SPANLINK shall not export any LUCENT Information, or any other items supplied to
SPANLINK under this Agreement by LUCENT, contrary to the laws of the United
States.
ARTICLE 23 - LUCENT RIGHT TO COMPARABLE PRODUCT
This Agreement does not grant to SPANLINK any exclusive privileges or rights
related to supplying to LUCENT any products or services comparable to the
PRODUCT, and LUCENT may contract with other manufacturers and suppliers for the
development or procurement of such
comparable products and services so long as LUCENT uses its best efforts to
avoid confusion of SPANLINK's PRODUCT with the products of other manufacturers
and suppliers.
ARTICLE 24 - NOTICES AND REQUESTS
Any notice or request which, under the terms of this Agreement or under any
statute, must or may be given or made by SPANLINK or LUCENT shall be in writing
and shall be given or made by telegram, facsimile or similar communication or by
certified or registered mail addressed to the respective parties as follows:
To: Lucent Technologies Inc.
Global Procurement Organization
000 Xx. Xxxx Xx.
Xxxxxxx Xxxxx, Xxx Xxxxxx 00000
Attn.: Procurement Manager
Copy To: BCS Sourcing Manager
To: Spanlink Communications, Inc.
Xxx Xxxx Xxxxxx XX
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn.: Chief Financial Officer
Such notice or demand shall be deemed to have been given or made when sent by
telegram, facsimile or other communication or when deposited, postage prepaid in
the U.S. mail.
The above addressees may be changed at any time by giving prior written notice
as above provided.
ARTICLE 25 - CONTROLLING LAW
The construction, interpretation and performance of this Agreement and all
transactions under it shall be governed by the laws of the State of New Jersey,
excluding its choice of law rules.
ARTICLE 26 - DISPUTES
A. Any controversy or claim, whether based on contract, tort, strict
liability, fraud, misrepresentation, or any other legal theory, related
directly or indirectly to this Agreement (the "Dispute") shall be
resolved solely in accordance with the terms of this Section.
B. If the Dispute cannot be settled by good faith negotiation between the
parties, LUCENT and SPANLINK will submit the Dispute to non-binding
mediation. If complete
agreement cannot be reached within thirty (30) days of submission to
mediation, any remaining issues will be resolved by binding arbitration
in accordance with Sections C and D of this Article 26. The Federal
Arbitration Act, 9 U.S.C. Sections I to 15, not state law, will govern
the arbitrability of all Disputes.
C. A single arbitrator who is knowledgeable in the telecommunications
field or in commercial matters will conduct the arbitration. The
arbitrator's decision and award will be final and binding and may be
entered in any court with jurisdiction. The arbitrator will not have
authority to modify or expand any of the provisions of this Agreement.
D. Any mediation or arbitration commenced pursuant to this Agreement will
be conducted under the then current rules of the alternate dispute
resolution (ADR) firm selected by the parties. If the parties are
unable to agree on an ADR firm, the parties will conduct the mediation
and, if necessary, the arbitration under the then current rules and
supervision of the American Arbitration Association (AAA). LUCENT and
SPANLINK will bear its own Attorneys' fees associated with the
mediation and, if necessary, the arbitration. LUCENT and SPANLINK will
pay all other costs and expenses of the mediation/arbitration as the
rules of the selected ADR firm provide.
E. Any Dispute either party has against the other with respect to this
Agreement must be brought in accordance with this Section and must be
brought within two (2) years after the cause of action arises.
ARTICLE 27 - GENERAL
If any of the provisions of this Agreement shall be invalid or unenforceable,
such invalidity or unenforceability shall not invalidate or render unenforceable
the entire Agreement, but rather the entire Agreement shall be construed as if
not containing the particular invalid or unenforceable provision or provisions,
and the rights and obligations of SPANLINK and LUCENT shall be construed and
enforced accordingly.
Subject to limitations set forth in this Agreement, this Agreement will inure to
the benefit of and be binding upon the parties, their successors,
administrators, heirs and assigns.
ARTICLE 28 - FORCE MAJEURE
The obligations of LUCENT and SPANLINK under this Agreement shall be temporarily
suspended in the event of strikes, riots, war, invasion, fire, explosion,
accident, delays in carriers, acts of God and all other delays beyond the
obligated party's reasonable control, and any failure to perform by that party
as a result of any such interference or interruption shall not be deemed a
default. Performance may be suspended for the period of any such delay. The
party whose performance is suspended shall notify in writing the other party
within fifteen (15) days of such suspension. In the event that the performance
by one party is delayed by at least sixty (60) days for any reason contemplated
in this Article, the other party may elect to terminate this Agreement, or an
ORDER, on written notice.
ARTICLE 29 - USE OF INFORMATION
Any specifications, drawings, sketches, models, samples, tools, computer or
other apparatus programs, technical or business information or data, written,
oral or otherwise, owned or controlled by LUCENT (Information) furnished to or
acquired by SPANLINK under this Agreement , or in contemplation of this
Agreement, shall remain LUCENT property unless otherwise agreed upon between the
parties. All copies of such Information in written, graphic or other tangible
form shall be returned to LUCENT at its request. Unless such Information was
previously known to SPANLINK free of any obligation to keep it confidential, or
has been or is subsequently made public by LUCENT or a third party, it shall be
kept confidential by SPANLINK, shall be used only in performing under this
Agreement, and may not be used for other- purposes except upon such terms as may
be agreed upon between SPANLINK and LUCENT in writing. Provided, however, LUCENT
specifically agrees that SPANLINK may offer and distribute the U.S. English and
Spanish versions of LUCENT provided basic speech and custom speech prompts
through SPANLINK's other sales and distribution channels.
ARTICLE 30 - CREDITS AND REFUNDS
All credits and refunds to LUCENT from SPANLINK under this Agreement shall,
unless otherwise specified in this Agreement, be made within thirty (30) days of
LUCENT return of PRODUCT to SPANLINK.
ARTICLE 31 - EXCLUSION OF LICENSES
No licenses, express or implied, under any patents or copyrights are granted by
LUCENT to SPANLINK under this Agreement.
ARTICLE 32 - SPANLINK'S INFORMATION
No specifications drawings, sketches, models, samples, tools, computer or other
apparatus programs, technical or business information or data, written oral or
otherwise, furnished by SPANLINK to LUCENT under this Agreement, or in
contemplation of this Agreement shall be considered by SPANLINK and LUCENT to be
confidential or proprietary unless otherwise marked as confidential or
proprietary.
ARTICLE 33 - NON-WAIVER
No course of dealing or failure of either party to strictly enforce any term,
right or condition of this Agreement shall be construed as a waiver of such
term, right or condition.
ARTICLE 34 - INSURANCE AND LIABILITY
SPANLINK shall maintain and cause SPANLINK's subcontractors to maintain during
the term of this Agreement: (1) Workers' Compensation insurance as prescribed by
the law of the state or
nation in which the work is performed, (2) employer's liability insurance with
limits of at least $300,000 each occurrence, and (3) comprehensive automobile
liability insurance if the use of motor vehicles is required, with limits of at
least $1,000,000 for bodily injury and property damage for each occurrence and
(4) Comprehensive General Liability (CGL) insurance, including Blanket
Contractual Liability, and Broad Form Property damage, with limits of at least
S1,000,000 combined single limit for personal injury and property damage for
each occurrence, and (5) if the furnishing to LUCENT (by sale or otherwise) of
products or material is involved, CGL insurance endorsed to include products
liability and completed operations coverage in the amount of $3,000,000 for each
occurrence. All CGL insurance shall designate LUCENT as an additional insured.
All such insurance must be primary and required to respond and pay prior to any
other available coverage.
SPANLINK agrees that SPANLINK, SPANLINK's insurer(s) and anyone claiming by,
through, under- or in SPANLINK's behalf shall have no claim, right of action or
right of subrogation against LUCENT and its customers based on any loss or
liability insured against under the foregoing insurance. SPANLINK and SPANLINK's
subcontractors shall furnish prior to the start of work certificates or adequate
proof of the foregoing insurance, including copies of the endorsements and
insurance policies. Such insurance policies or endorsements shall provide that
LUCENT be notified in writing at least thirty (30) days prior to cancellation of
or any change in the policy.
All persons furnished by SPANLINK shall be considered solely SPANLINK's
employees or agents, and SPANLINK shall be responsible for payment of all
unemployment, social security and other payroll taxes, including contributions
from them when required by law. SPANLINK agrees to indemnify and save harmless
LUCENT, its affiliates and its customers and their officers, directors,
employees, successors and assigns (all hereinafter referred to as LUCENT) from
and against any losses, damages, claims, demands, suits, liabilities and
expenses (including reasonable attorney's fees) that arise out of or result
from: (1) injuries or death to persons or damage to property, including theft,
in any way arising out of or occasioned by, caused or alleged to have been
caused by or on account of the performance of the work or services performed by
SPANLINK or person furnished by SPANLINK, (2) assertions under Worker's
Compensation or similar acts made by persons furnished by SPANLINK or by a
subcontractor, or by reason of any injuries to such persons for which LUCENT
would be responsible under Worker's Compensation or similar acts if the persons
were employed by LUCENT, or (3) any failure by SPANLINK to perform SPANLINK's
obligations under this Article. SPANLINK agrees to defend LUCENT at LUCENT
request, against any such claim, demand or suit. LUCENT agrees to notify
SPANLINK within a reasonable time of any written claims or demands against
SPANLINK for which SPANLINK is responsible under this Article.
ARTICLE 35 - PLANT RULES AND GOVERNMENT CLEARANCE
All persons furnished by either party shall, while on the premises of the other
party and its customers, comply with all rules and regulations specified by that
party.
ARTICLE 36 - SURVIVAL OF OBLIGATIONS
SPANLINK's obligations under Articles DELIVERABLES, USE OF INFORMATION,
WARRANTY, INDEMNIFICATION, COMPLIANCE WITH LAWS, and INSURANCE AND LIABILITY,
and both parties' obligations under Articles CONTROLLING LAW, GENERAL, and
RELEASES VOID shall survive expiration or termination of this Agreement.
ARTICLE 37 - EXHIBITS INCORPORATED
Exhibits A through E are included herein and made a part hereof.
ARTICLE 38 - ENTIRE AGREEMENT
This-Agreement shall incorporate the typed or written provisions on LUCENT's
ORDERS issued pursuant to this Agreement, and this Agreement as supplemented by
such provisions shall constitute the entire agreement between the parties with
respect to the subject matter of this Agreement and shall not be modified or
rescinded, except by a writing signed by SPANLINK and LUCENT. Printed provisions
on the reverse side of LUCENT ORDERS and all provisions on SPANLINK's forms
shall be deemed deleted. Additional or different terms inserted in this
Agreement by SPANLINK, or deletions thereto, whether by alternations, addenda,
or otherwise, shall be of no force and effect, unless expressly consented to by
LUCENT in writing. Estimates or forecasts furnished by LUCENT shall not
constitute commitments. SPANLINK has entered into this agreement on their own
business judgment and not in reliance upon any forecasts or estimates provided
by LUCENT THE PROVISIONS OF THIS AGREEMENT SUPERSEDE ALL PRIOR ORAL AND WRITTEN
QUOTATIONS, COMMUNICATIONS, AGREEMENTS AND UNDERSTANDINGS OF THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Agreement. All signed copies
of this Agreement shall be deemed originals.
SPANLINK COMMUNICATIONS, INC. LUCENT TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Jirina Svenkova
Name (Print): Xxxxxxx X. Xxxxxxxx Name (Print): Jirina Svenkova
Title: President and COO Title: Sr. Procurement Specialist
Date: 12/31/96 Date: 12/23/96
