EXHIBIT 10(dd)
Amendment to Reseller Master Terms and Conditions:
Authorized Remanufactured Supplier (ARS) Program
Between Avaya Inc. and Farmstead Telephone Group, Inc.
Table of Contents
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ARTICLE I. DEFINITIONS 2
ARTICLE II. LICENSE GRANT 3
ARTICLE III. AGREEMENT PERSONAL 4
ARTICLE IV. LICENSES TO OTHERS AND OWNERSHIP 4
ARTICLE V. LICENSED TERRITORY 5
ARTICLE VI. QUALITY CONTROL 5
ARTICLE VII. REMEDIES FOR NONCOMPLIANCE WITH
CONTROL SPECIFICATIONS 6
ARTICLE VIII. PROTECTION OF LICENSED SERVICE MARKS AND
LICENSED TRADE DRESS 7
ARTICIE IX. TERMINATION 8
ARTICLE X. INDEMNITIES 10
ARTICLE XI. ARS FORECAST AND REPORTS 10
ARTICLE XII. NOTICES 11
ARTICLE XIII. COMPLIANCE WITH LAW 11
ARTICLE XIV. TERM OF AGREEMENT 12
ARTICLE XV. LIMITATION OF LIABILITY; EXCLUSIVE REMEDIES;
DISCLAIMER 12
ARTICLE XVI. ENTIRE AGREEMENT 12
Contract No.____________________
AMENDMENT TO RESELLER
MASTER TERMS AND CONDITIONS
THIS AMENDMENT ("Amendment") is made effective as of October 28, 2003 and
is by and between Avaya Inc., a Delaware corporation with an office at 000
Xxxxx Xxxx Xxxx, Xxxxxxx Xxxxx, Xxx Xxxxxx 00000 ("Avaya" or "Licensor"),
and Farmstead Telephone Group, Inc., a Delaware corporation, with an office
at 00 Xxxxxxxx Xxxx Xxxxxx, Xxxx Xxxxxxxx, Xxxxxxxxxxx 00000 ("ARS" or
"Licensee"). Capitalized terms used herein shall have the respective
meanings assigned to them in Article I hereof.
BACKGROUND
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Licensor and Licensee have previously signed the Avaya Inc. Reseller Master
Terms and Conditions, together with certain Product Group Attachment(s)
(collectively, the "Reseller Agreement"), which authorized Licensee to
resell certain Avaya products in a certain geographic territory.
Licensee and Licensor now wish to amend the Reseller Agreement to authorize
(in addition to any authorizations originally granted to Licensee under the
Reseller Agreement) Licensee to refurbish and resell used business premises
communications products also known as customer premise equipment (CPE)
manufactured by Licensor or Licensor's predecessor companies, Lucent
Technologies Inc. ("Lucent") or AT&T Corp. or American Telephone and
Telegraph Company (collectively, "AT&T") and to minimize customer confusion
that might otherwise arise as a result of the continued use of the AT&T
name and marks, or the Lucent name or marks, by requiring Licensee to
remove such AT&T or Lucent name and marks and to apply a single distinctive
Avaya xxxx (the "Licensed Xxxx") to such product.
AGREEMENT
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NOW, THEREFORE, the parties, intending to be legally bound, agree as
follows:
The provisions set forth below are hereby added to the Reseller Agreement,
and shall apply only to the refurbishing and resale of Classic Avaya
Products and any other activities contemplated in this Amendment. In the
event of a conflict between the terms of the Reseller Agreement and the
terms of this Amendment, this Amendment shall control, but only to the
extent Classic Avaya Products or other activities contemplated in this
Amendment are involved. All terms and conditions of the Reseller Agreement
shall continue to have full force and effect.
ARTICLE I. DEFINITIONS
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For the purpose of this Amendment, the following terms shall have the
following meanings:
1.1 Control Specifications means standards of quality (including
performance parameters) applicable to the refurbishing, testing,
performance, provision, and support of a product under the Licensed Xxxx or
Licensed Trade Dress, as set forth or referenced in the ARS Program
Guidelines, and the standards applicable to the marketing, advertising, and
promotion of a product under the Licensed Xxxx or Trade Dress, as set forth
or referenced in the ARS Program Guidelines. Licensor has the right to
modify the ARS Program Guidelines at any time without consent from
Licensee, upon thirty (30) days prior written notice, including by
electronic message.
1.2 Promotional Signature means the Licensor's house xxxx and
related trade dress used to identify and distinguish Licensor from other
persons, as identified in the ARS Program Guidelines.
1.3 Classic Avaya Products means any product described in the ARS
Program Guidelines hereto that are being refurbished by Licensee pursuant
to this Amendment.
1.4 Licensed Xxxx or Licensed Trade Dress means the xxxx Classic
Avaya(TM) as identified in the ARS Program Guidelines.
1.5 Licensed Territory has the meaning set forth in Article V
hereof.
1.6 Xxxx means any word, name, symbol or device, or any combination
thereof, used or intended to be used by a person to identify and
distinguish the products or services of that person from the products or
services of others and to indicate the source of such goods or services,
even if that source is unknown.
1.7 End User means a third party to whom ARS markets or sells
Classic Avaya Products within the Licensed Territory for use by such third
party in the ordinary course of its business and not for resale.
1.8 Effective Date means the date of this Amendment as stated
above.
ARTICLE II. LICENSE GRANT
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2.1 License Grant. Subject to the terms and conditions of this
Amendment, Licensor grants Licensee a personal, non-transferable, non-
sublicensable, non-exclusive license to use the Licensed Xxxx in connection
with the refurbishing, marketing, promotion, distribution and sale of
Classic Avaya Products commencing on the Effective Date of this Amendment,
for the term of this Amendment as set forth in Section 14.1.
2.2 Extension of Grant. If Licensee is interested in licensing the
Licensed Xxxx beyond the initial license period set forth above, Licensee
shall notify Licensor no later than three (3) months prior to the
expiration of such period. Upon such notification, Licensor and Licensee
agree to negotiate in good faith whether to extend the license granted in
this Amendment and, if so, the terms and conditions of such an extension,
including a commercially reasonable royalty for the use of the Licensed
Xxxx. Notwithstanding the foregoing, neither Licensor nor Licensee shall
have any obligation to enter into such extension.
2.3 Limitations on Grant. The Licensed Xxxx xxx not be used by
Licensee in connection with any product or service except as expressly set
forth in this Amendment.
2.4 No Use in Licensee's Name. Licensee shall not use the Licensed
Xxxx in Licensee's corporate, partnership, doing business as, or fictitious
name at any time.
2.5 No Other Marks To Be Used. Licensee shall not use any other
name, xxxx, indication of origin or trade dress of Licensor in connection
with the refurbishing, remanufacture, marketing, promotion, distribution,
sale or lease of any product or service without Licensor's express written
consent.
2.6 Modification of Licensed Xxxx. If Licensor modifies or
replaces the Licensed Xxxx or Licensed Trade Dress as used in any
substantial portion of Licensor's business, and if Licensor requests
Licensee to adopt and use the modified or replaced Licensed Xxxx and
Licensed Trade Dress, Licensee shall within sixty (60) days adopt and use
such modified or replaced Licensed Xxxx or Licensed Trade Dress and such
modified or replaced Licensed Xxxx or Licensed Trade Dress shall be
considered the Licensed Xxxx and Licensed Trade Dress as defined in this
Amendment; provided, however, that Licensee may exhaust its inventory
bearing the original Licensed Xxxx and Licensed Trade Dress.
2.7 Payments of Fees. Licensee will pay Licensor a fee of 10% of
all net retail sales price of Classic Avaya Products. Payment will be to
Licensor and will be received by Licensor by the 15th working day of the
month following the sale.
ARTICLE III. AGREEMENT PERSONAL
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3.1 Personal Nature of Agreement. The parties agree that the
rights, obligations and benefits of this Amendment shall be personal to
Licensee, and Licensor shall not be required to accept performance from, or
render performance to an entity other than Licensee. Pursuant to 11 U.S.C.
[SECTION]365 (c) (1) (A) (as it may be amended from time to time, and including
any successor to such provision), in the event of the bankruptcy of Licensee,
this Amendment may not be assigned or assumed by Licensee, or any
successor, and Licensor shall be excused from rendering performance to, or
accepting performance from Licensee or any successor.
3.2 Sublicensing/Assignment. Licensee may not sublicense or assign
the rights and obligations of this Amendment without Licensor's express
written consent.
ARTICLE IV. LICENSES TO OTHERS AND OWNERSHIP
--------------------------------
4.1 Nonexclusive License. Nothing in this Amendments creates, and
Licensee agrees not to assert, that Licensee has an exclusive license in
the Licensed Xxxx.
4.2 Retention of Rights. Except as otherwise expressly provided in
this Amendment, Licensor shall retain all rights in and to the Licensed
Xxxx, including without limitation:
(a) All rights of ownership in and to the Licensed Xxxx;
(b) The right to use (including the right of Licensor's
Affiliates to use) the Licensed Xxxx, either alone or in combination
with other marks, in connection with the marketing, offer or
provision of any product or service, including any product or service
which competes with Classic Avaya Products; and
(c) The right to license others to use the Licensed Xxxx.
ARTICLE V. LICENSED TERRITORY
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The Licensed Territory for the licenses granted in Article II of this
Amendment shall include the contiguous 48 states in the domestic United
States of America plus the District of Columbia, Alaska and Hawaii.
ARTICLE VI. QUALITY CONTROL
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6.1 General. Licensee acknowledges that the Classic Avaya Products
covered by this Amendment must be of sufficiently high quality as to
provide maximum enhancement to and protection of the Licensed Xxxx and the
good will they symbolize. Licensee further acknowledges that the
maintenance of high quality Classic Avaya Products is of the essence of
this Amendment and that it will utilize only marketing materials which do
not disparage or place in disrepute Licensor, its businesses or its
business reputation, or adversely affect or detract from Licensor's good
will.
6.2 Control Specifications. Licensee shall use the Licensed Xxxx,
only in connection with the refurbishing, remanufacture, marketing,
distribution, promotion, sale and lease of Classic Avaya Products that meet
the Control Specifications. The Control Specifications shall consist of
Technical Performance and Customer Satisfaction Specifications attached or
referenced in the ARS Program Guidelines hereto or provided to and accepted
by Licensor, and the Marketing Specifications referenced in the ARS Program
Guidelines. Control Specifications shall be treated as proprietary
information and shall be subject to the confidentiality provisions hereof
referenced in the ARS Program Guidelines.
6.3 Customer Care Provisions. The parties recognize that customer
complaints, inquiries, requests, orders, returns and similar communications
regarding the products or services of one of them may be directed by
customers or otherwise transmitted to the other. The parties agree jointly
to develop and comply with written policies and procedures for handling
such communications, in order to ensure that customer communications are
addressed expeditiously regardless of the initial recipient.
6.4 Changes to Marketing Specifications. The Marketing
Specifications referenced in the ARS Program Guidelines hereto may be
reasonably amended, modified or supplemented from time to time by Licensor
upon giving Licensee thirty (30) days' prior written notice. Following any
such amendment, modification or supplement to the Marketing Specifications,
Licensee shall comply with such amendments, modifications or supplements.
6.5 Quality Control Reviews; Right of Inspection. Licensor shall
have the right to designate from time to time, one or more Quality Control
Representatives, who shall have the right from time to time but at least
once per calendar quarter, without notice to Licensee, to conduct during
regular business hours, and without disrupting Licensee's normal business
operations, an inspection, test, survey and review of Licensee's facilities
and otherwise to determine compliance with the applicable Control
Specifications. At Licensor's request, Licensee agrees to furnish or make
available for inspection to the Quality Control Representatives: (i)
samples of any Classic Avaya Product that is marketed or provided under the
Licensed Xxxx for inspections, surveys, tests and reviews to assure
conformance with the applicable Control Specifications; (ii) performance
data in its control relating to the conformance of Classic Avaya Products
with the applicable Control Specifications, and (iii) samples of marketing
materials, product packaging, instruction and warranty materials that use
the Licensed Xxxx. Any such data provided to Licensor shall be treated as
proprietary information subject to the confidentiality provisions.
Licensor may independently conduct continuous customer satisfaction surveys
to determine if Licensee is meeting the Control Specifications. Licensee
shall cooperate with Licensor fully in the distribution of such surveys.
Licensor shall, at the request of Licensee, provide Licensee with copies of
customer surveys used by Licensor to determine if
Licensee is meeting the Control Specifications. If Licensee learns that it
is not complying with any Control Specifications, it shall notify Licensor
and the provisions of Article VII shall apply to such noncompliance.
6.6 Sponsorship. Licensee shall not use the Licensed Xxxx to
sponsor, endorse, or claim affiliation with any event, meeting, charitable
endeavor or any other undertaking without obtaining the express written
permission of Licensor. Any breach of this provision shall be deemed a
Significant Breach by Licensee.
ARTICLE VII. REMEDIES FOR NONCOMPLIANCE WITH CONTROL SPECIFICATIONS
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7.1 Initial Cure Period. If Licensor becomes aware that Licensee is
not complying with any Control Specifications, Licensor shall notify
Licensee in writing, setting forth, in reasonable detail, a written
description of the noncompliance and any suggestions for curing such
noncompliance. Licensee shall then have twenty (20) days after receipt of
such notice (the "Initial Cure Period") to correct or submit to Licensor a
written plan to correct such noncompliance.
7.2 Second Cure Period. If noncompliance with the Control
Specifications continues beyond the Initial Cure Period, Licensee and
Licensor shall each promptly appoint a representative to negotiate in good
faith actions that may be necessary to correct such noncompliance. The
parties shall have twenty-five (25) days following the expiration of the
Initial Cure Period (the "Second Cure Period") to agree on corrective
actions.
7.3 Noncompliance After Second Cure Period. If the noncompliance
with the Control Specifications continues beyond the Second Cure Period,
Licensee shall either: (i) cease offering Classic Avaya Products under
the Licensed Xxxx until it can comply with the Control Specifications; or
(ii) be deemed to be in Significant Breach of this Amendment.
7.4 Arbitration. In the event any dispute regarding compliance with
Control Specifications continues beyond the Initial and Second Cure Periods
described above, then either Licensor or Licensee may deliver to the other
party an arbitration demand notice or pursue any other rights or remedies
expressly contemplated hereby, notwithstanding its failure to deliver an
arbitration demand notice. Any such arbitration shall be conducted in
accordance with the Rules of the American Arbitration Association.
7.5 Potential Injury to Persons or Property. Notwithstanding the
foregoing, in the event that Licensor reasonably determines that any
noncompliance creates a material threat of personal injury or injury to
property of any third party, upon written notice thereof by Licensor to
Licensee, Licensee shall either cease offering Classic Avaya Products under
the Licensed Xxxx until it can comply with the Control Specifications, or
be deemed to be in Significant Breach of this Amendment.
ARTICLE VIII. PROTECTION OF LICENSED MARKS AND LICENSED TRADE DRESS
-----------------------------------------------------
8.1 Ownership and Rights. Licensee will not contest the validity
of, and agrees not to challenge the ownership or validity of, the Licensed
Xxxx. Licensee shall not disparage, dilute or adversely affect the
validity of the Licensed Xxxx. Licensee agrees that any and all goodwill
and other rights that may be acquired by the use of the Licensed Xxxx by
Licensee shall inure to the sole benefit of Licensor. Licensee will not
grant or attempt to grant a security interest in the Licensed Xxxx or this
Amendment, or to record any such security interest in the United States
Patent and Trademark Office or elsewhere, against any trademark application
or registration belonging to Licensor. Licensee agrees to execute all
documents reasonably requested by Licensor to effect further registration
of, maintenance and renewal of the Licensed Xxxx, and recordal of the
license relationship between Licensor and Licensee and recordal of Licensee
as a Registered User. For purposes of this Amendment, Licensee shall not
be considered a "related company" under the U.S. Trademark Act, 15 U.S.C.
[SECTION] 1051 et seq.
8.2 Similar Marks. Licensee further agrees not to register in any
country any Xxxx resembling or confusingly similar to the Licensed Xxxx,
and not to use the Licensed Xxxx or any part thereof as part of its
corporate name, nor use any Xxxx confusingly similar, deceptive or
misleading with respect to the Licensed Xxxx. Licensee further agrees not
to use or register in any country any Xxxx similar to the Licensed Xxxx, or
which dilutes the Licensed Xxxx. If any application for registration is,
or has been, filed in any country by Licensee which relates to any Xxxx
which, in the sole opinion of Licensor, is confusingly similar, deceptive
or misleading with respect to the Licensed Xxxx, or which dilutes the
Licensed Xxxx, Licensee shall, at Licensor's sole discretion, immediately
abandon any such application or registration or assign it to Licensor. If
Licensee uses any Xxxx which, in the sole opinion of Licensor, is
confusingly similar, deceptive or misleading with respect to the Licensed
Xxxx, or which
dilutes the Licensed Xxxx, or if Licensee uses the Licensed Xxxx in
connection with any product, or in connection with any service not
specifically authorized hereunder, Licensee shall, immediately upon
receiving a written request from Licensor, permanently cease such use.
8.3 Infringement. In the event that Licensee learns of any
infringement or threatened infringement of the Licensed Xxxx, or any unfair
competition, passing-off or dilution with respect to the Licensed Xxxx, or
any third party alleges or claims that either the Licensed Xxxx is liable
to cause deception or confusion to the public, or is liable to dilute or
infringe any right of such third party, Licensee shall immediately notify
Licensor or its authorized representative giving particulars thereof, and
Licensee shall provide necessary information and assistance to Licensor or
its authorized representatives in the event that Licensor decides that
proceedings should be commenced or defended. Licensor shall have exclusive
control of any litigation, opposition, cancellation or related legal
proceedings; provided Licensor shall indemnify and hold harmless Licensee
from any costs or expenses, including reasonable attorney fees, arising out
of such litigatory proceedings. The decision whether to bring, defend,
maintain or settle any such proceedings shall be at the exclusive option
and expense of Licensor, and all recoveries shall belong exclusively to
Licensor. Licensee will not initiate any such litigation, opposition,
cancellation or related legal proceedings in its own name, but, at
Licensor's request and sole expense, agrees to be joined as a party in any
action taken by Licensor to enforce its rights in the Licensed Xxxx.
Nothing in this Amendment shall require or be deemed to require Licensor to
enforce the Licensed Marks against others.
8.4 Compliance With Laws. In the performance of this Amendment,
Licensee shall comply with all applicable laws and regulations, including
those laws and regulations particularly pertaining to the proper use and
designation of Marks in the Licensed Territory. Should Licensee be or
become aware of any applicable laws or regulations which are inconsistent
with the provisions of this Amendment, Licensee shall promptly notify
Licensor of such inconsistency. In such event, Licensor may, at its
option, either waive the performance of such inconsistent provisions, or
negotiate with Licensee to make changes in such provisions to comply with
applicable laws and regulations.
ARTICLE IX. TERMINATION
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9.1 Breach by Licensee. Licensor may terminate this Amendment at
any time in the event of a Significant Breach by Licensee. A "Significant
Breach by Licensee" shall mean any event expressly specified in this
Amendment to be a "Significant Breach," and any of the following (after
exhaustion of any cure periods set forth in Article VII hereof to the
extent such cure periods are applicable):
(a) Licensee's use of any Xxxx (including the Licensed Xxxx)
contrary to the provisions of this Amendment;
(b) Licensee's use of the Licensed Xxxx in connection with
any marketing materials, or the offering, marketing or provision of
any Classic Avaya Product which fails to meet the standards set forth
in the Control Specifications; provided, however, that the failure of
a particular product to comply with the Control Specifications shall
be grounds for termination only as to that product; and, further
provided that continued use of the Licensed Xxxx by Licensee in
connection with such product shall be grounds for termination of the
Amendment as to all Classic Avaya Products;
(c) Licensee's refusing or neglecting a request as provided
in this Amendment by Licensor for access to Licensee's facilities or
marketing materials;
(d) Licensee's licensing, assigning, transferring, disposing
of or relinquishing (or purporting to license, assign, transfer,
dispose of or relinquish) any of the rights granted in this Amendment
to others;
(e) The bankruptcy or insolvency of Licensee or an Affiliate
of Licensee;
(f) Licensee's failure to obtain Licensor's permission to
sponsor any undertaking as provided in Section 6.6 of this Amendment;
(g) Any material breach by Licensee of the Reseller
Agreement, which breach is not cured within the applicable cure
period, if any, as set forth in the Reseller Agreement.
9.2 Termination Obligations. In the event Licensor terminates this
Amendment pursuant to this Article:
(a) Licensee shall, for a period of up to ninety (90) days
from receipt of the first written notice of termination, continue to
have use of the Licensed Xxxx and Licensed Trade Dress for the
purpose of fulfilling existing customer orders, selling its remaining
inventory and exhausting its supply of packaging materials containing
such Licensed Xxxx and Trade Dress, then immediately cease all use of
the Licensed Trade Xxxx and Licensed Trade Dress, except that
Licensor, in its sole discretion, may allow Licensee to continue use
of the Licensed Xxxx for a period of up to two (2) months as directed
by Licensor;
(b) Except as provided in section 9.2 (a), Licensee shall
have no further rights under this Amendment.
9.3 Either party has the right to terminate this Amendment, without
cause, upon sixty (60) days prior written notice to the other party.
9.4 Avaya may terminate this Amendment upon thirty (30) days prior
written notice to ARS if: (i) ARS markets or sells Classic Avaya Products
outside the Licensed Territory except as specifically permitted in Section
5.1; (ii) ARS fails to limit its marketing efforts to authorized locations
or End-Users as defined in Section 1.7; (iii) ARS materially fails to
provide End Users with forecasted stream of licensed products and to
achieve levels of sales that comply with the Avaya ARS Product forecasts
for the Area submitted pursuant to Section 11.0; (iv) ARS fails to provide
payment in a reasonable time for reported sales to End Users; (v) there
occurs any material change in the management or control of ARS; (vi) ARS
sold or attempted to resell Classic Avaya Products to any third party other
than an End User; (vii) ARS purchased unused products manufactured by
Avaya from a source other than Avaya or an Avaya Authorized Distributor or
sold or attempted to resell any unused products manufactured by Avaya
that, if purchased through Avaya or an Avaya Authorized Distributor, would
be Avaya Product under the Reseller Agreement; (viii) ARS misrepresented,
by statement or by omission, ARS's authority to resell under this or any
other written agreement with Avaya that is limited to specific Classic
Avaya Products or services, by stating or implying, by use of an Avaya Xxxx
or otherwise, that the authority granted in this or such other agreement
applies to any Avaya product or service not covered by this or such other
agreement, or (ix) ARS failed to comply with Avaya's guidelines for the
proper use of Avaya's Marks.
9.5 Except as otherwise provided in this Amendment, either party
may terminate this Amendment upon thirty (30) days prior written notice if
the other party has defaulted in the performance or has breached its
obligations under this Amendment and such breach or default remains uncured
for a period of twenty (20) business days following receipt of notice of
such breach or default.
9.6 Avaya may terminate this Amendment upon twenty-four (24) hours
written notice if ARS has: (i) become insolvent, invoked as a debtor any
laws relating to the relief of debtors' or creditors' rights, or has had
such laws invoked against it; (ii) become involved in any liquidation or
termination of its business; (iii) been involved in an assignment for the
benefit of its creditors; (iv) remotely accessed PBX locations maintained
by Avaya directly; (vii) activated software features without compensation
to Avaya.
9.7 Neither party shall be liable to the other on account of
termination of this Amendment, either for compensation or for damages of
any kind or character whatsoever, on account of the loss by Avaya or ARS of
present or prospective profits on sales or anticipated sales, good will, or
expenditures, investments or commitments made in connection therewith or in
connection with the establishment, development or maintenance of ARS's
business.
ARTICLE X. INDEMNITIES
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10.1 Except as provided in Section 10.2 below, Licensee shall
defend, indemnify and hold Licensor harmless against all claims, suits,
proceedings, costs, damages and judgments incurred, claimed or sustained by
third parties, whether for personal injury or otherwise, arising from or in
connection with Licensee's marketing, sale, lease or use of Classic Avaya
Products bearing the Licensed Xxxx after the date of this Amendment to the
extent such injury is caused by Licensee, and shall indemnify Licensor and
each Indemnitee for all damages, losses, costs and expenses (including
reasonable attorneys' fees) due to such use, sale, lease or marketing to
the extent caused by Licensee and also for any improper or unauthorized use
of the Licensed Xxxx by Licensee. The above indemnity
obligation of Licensee will not apply to the extent any injury is caused by
Licensee's compliance with the Quality Control Specifications, Marketing
Specifications or other written directives by Licensor to Licensee;
10.2 Licensee shall notify Licensor, in writing, in the event that
any third party claims, by suit, proceeding, action or otherwise, that
Licensee's use of the Licensed Xxxx in connection with Classic Avaya
Products as provided in this Amendment constitutes or amounts to a
trademark, service xxxx or trade dress infringement, unfair competition or
dilution, and, at Licensor's option, Licensee may be directed to tender the
defense of such claims to Licensor. Licensor will indemnify and hold
harmless Licensee against all claims, suits, proceedings, costs (including
reasonable attorneys' fees), damages, and judgments incurred by Licensee as
a result of such third party claims described above in this Section 10.2.
10.3 In the event that Licensor becomes aware of a claim that it
believes is or may be subject to indemnification under Section 10.1 above,
it shall promptly give notice to Licensee of such claim. In order for a
claim to be eligible for indemnification under Section 10.1, Licensee must
receive such prompt notice of any claim. Licensee shall have the right to
control the defense and possible settlement of any such claim, and the
Licensor shall cooperate in connection with defense.
10.4 In no event will either party have any liability to the other
for any consequential or incidental damages in connection with this
Amendment.
ARTICLE XI. ARS FORECAST AND REPORTS
------------------------
11.1 Upon execution of this Amendment, ARS shall submit to Avaya a
forecast of total Classic Avaya Product sales to be made by ARS during the
contract term. The forecast must specify, for each quarter, the total
dollar sale volume (based on ARS prices to End Users).
11.2 Avaya may reject any forecast submitted by ARS if, in Avaya's
sole judgment, such forecast does not project either: (1) the level of
Classic Avaya Product sales Avaya reasonably requires of ARS to achieve its
marketing objectives in the Licensed Territory; or (2) a realistic
assessment of ARS's potential successful marketing opportunities in the
Licensed Territory during the forecast period. Avaya shall notify ARS in
writing within thirty (30) days of receipt of ARS's forecast if Avaya has
rejected such forecast or it will be deemed to have been accepted by Avaya.
11.3 ARS shall submit the forecast of Avaya ARS Refurbished Product
sales and actual Avaya ARS Refurbished Product installation data specified
in Section 11.1 in a format specified by Avaya in the ARS Program
Guidelines.
ARTICLE XII. NOTICES
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All notices or other communications under this Amendment shall be in
writing and shall be deemed to be duly given when (a) delivered in person,
or (b) sent by telecopy, telegram or telex, or (c) deposited in the United
States mail or private express mail, postage prepaid, addressed as follows:
(i) If to Licensor: Channel/Contract Manager - ARS Program
Avaya Inc.
000 Xx. Xxxx Xxxx
Xxxxxxx Xxxxx. XX 00000
with a copy to:
Trademark and Copyright Counsel
Avaya Inc.
000 Xx. Xxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
(ii) If to Licensee: Xxxxxx X. Xxxxxx
Farmstead Telephone Group, Inc.
00 Xxxxxxxx Xxxx Xxxxxx
Xxxx Xxxxxxxx, XX 00000
Either party may, by notice to the other party, change the address to which
such notices are to be given.
ARTICLE XIII. COMPLIANCE WITH LAW
-------------------
13.1 General. Nothing in this Amendment shall be construed to
prevent Licensor or Licensee from complying fully with all applicable laws
and regulations, whether now or hereafter in effect. The construction,
interpretation and performance of this Amendment shall be governed by the
local laws of the State of New Jersey.
13.2 Governmental Licenses, Permits and Approvals. Licensee, at its
expense, shall be responsible for obtaining and maintaining all licenses,
permits and approvals which are required by all governmental authorities
with respect to this Amendment, and to comply with any requirements of such
governmental authorities for the registration or recording of this
Amendment. Licensee shall furnish to Licensor written evidence from such
governmental authorities of any such licenses, permits, clearances,
authorizations, approvals, registration or recording.
ARTICLE XIV. TERM OF AGREEMENT
-----------------
This Agreement shall commence upon the Effective Date for a period of one
(1) year and shall automatically renew year to year on the anniversary of
the Effective Date unless a party gives written notice of its intent not to
renew to the other party thirty (30) days in advance of the anniversary of
the Effective Date or unless the Agreement is otherwise terminated as
hereinafter provided..
ARTICLE XV. LIMITATION OF LIABILITY; EXCLUSIVE REMEDIES; DISCLAIMER
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15.1 EXCLUSIVE REMEDIES; LIMITATIONS OF LIABILITY
(a) For purposes of the exclusive remedies and limitations of
liability set forth in this Section, each party shall be deemed to
include its respective subsidiaries and affiliates and the directors,
officers, employees, agents, representatives, subcontractors and
suppliers of each of them; and "damages" shall be deemed to refer
collectively to all injury, damage, loss or expense incurred;
(b) Avaya's entire liability and ARS's exclusive remedies
against Avaya for any damages caused under this Amendment, regardless
of the form of action, whether in contract, tort including
negligence, strict liability or otherwise shall be:
(i) For trademark, service xxxx, or trade dress
infringement, unfair competition, or dilution, the remedies set
forth in section 10.2;
(ii) For bodily injury or death to any person
proximately caused by Avaya's negligence, the amount of proven
direct damages; and
(iii) For any claims not set forth above, Avaya's
liability shall be limited to direct damages that are proven,
in an amount not to exceed the fees paid by ARS to Avaya for
the affected Classic Avaya Product(s).
15.2 DISCLAIMER. EXCEPT FOR ANY WARRANTIES EXPRESSLY MADE IN THIS
AMENDMENT, AVAYA HEREBY DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE.
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ARTICLE XVI. ENTIRE AGREEMENT
----------------
The terms and conditions contained in this Amendment, together with the
Reseller Agreement, supercede all prior oral and written understandings
between the parties and constitute the entire and final agreement between
them concerning the subject matter of this Amendment and shall not be
contradicted, explained or supplemented by any course of dealing between
Avaya or any of its affiliates and Licensee or any of its affiliates. This
Amendment shall not be modified or amended except by a writing signed by an
authorized representative of the party to be charged. An authorized
representative is one who has the authority to execute this document or an
assignee of that person.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their duly authorized representatives.
AVAYA INC. FARMSTEAD TELEPHONE GROUP, INC.
s/s XXXXXX XXXXXX s/s XXXXXX X. XXXXXX, XX
----------------------------- ------------------------------
Signed Name Signed Name
Xxxxxx Xxxxxx Xxxxxx X. Xxxxxx, J_______________
----------------------------- ------------------------------
Typed or Printed Name Typed or Printed Name
Contract Manager CEO__________________________
----------------------------- ------------------------------
Title Title
November 10, 2003 10-28-03
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Date Date
