EXHIBIT 10(t)
AGREEMENT NO: ARS-LA- 99102
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ARS LICENSE AGREEMENT BETWEEN LUCENT
TECHNOLOGIES AND
FARMSTEAD TELEPHONE GROUP, INC.
FOR AUTHORIZED REMARKETING SUPPLIER PROGRAM
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Table of Contents
page
ARTICLE I - DEFINITIONS 1
ARTICLE II - LICENSE GRANT 2
ARTICLE III - AGREEMENT PERSONAL 3
ARTICLE IV - LICENSES TO OTHERS AND 3
OWNERSHIP
ARTICLE V - LICENSED TERRITORY 3
ARTICLE VI - QUALITY CONTROL 3
ARTICLE VII - REMEDIES FOR NONCOMPLIANCE 5
WITH CONTROL SPECIFICATIONS
ARTICLE VIII - PROTECTION OF LICENSED SERVICE 6
MARKS & LICENSED TRADE DRESS
ARTICLE IX - TERMINATION 7
ARTICLE X - INDEMNITIES 8
ARTICLE XI - ARS FORECAST AND REPORTS 9
ARTICLE XII - NOTICES 10
ARTICLE XIII - COMPLIANCE WITH LAW 10
ARTICLE XIV - TERM OF AGREEMENT 10
ARTICLE XV - ENTIRE AGREEMENT 11
SCHEDULE B - STANDARDS OF QUALITY 12
SCHEDULE C - MARKETING, ADVERTISING, 13
AND PROMOTION
SCHEDULE D - CORPORATE IDENTIFICATION 14
XXXX
SCHEDULE E - PRODUCTS LIST 15
SCHEDULE G - LICENSED XXXX 16
AGREEMENT NO: XXX-XX - 00000
Authorized Remarketing Supplier License Agreement between
Lucent Technologies and
Farmstead Telephone Group, Inc.
LICENSE AGREEMENT
THIS LICENSE AGREEMENT, is effective as of October 1, 1998 and is by
and between Lucent Technologies Inc., by and for its Business
Communications Systems unit ("Lucent" or "Licensee'), and Farmstead
Telephone Group, Inc. ("ARS" or "Licensee"). Capitalized terms used herein
shall have the respective meanings assigned to them in Article I hereof.
WHEREAS, this License Agreement is to allow ARS to refurbish and
resell used business premises communications products also known as
customer premise equipment (CPE) manufactured by Lucent or Lucent's
predecessor companies, 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 ARS to remove such AT&T or
Lucent name and marks and to apply a single distinctive Lucent xxxx (the
"Licensed Xxxx") to such products
NOW, THEREFORE, the parties, intending to be legally bound, agree as
follows:
ARTICLE I
DEFINITIONS
For the purpose of this License Agreement, 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 Schedule B, 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 Scheduled C.
1.2 Corporate Identification Xxxx means the Licensor's house xxxx
and related trade dress used to identify and distinguish Licensor from
other persons, as identified in Schedule D hereto.
1.3 Lucent Products means any product described in Schedule E hereto
that are being refurbished by Licensee pursuant to this License Agreement.
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1.4 Licensed Xxxx or Licensed Trade Dress means the xxxx Classic
Lucent" as identified in Schedule G hereto.
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 Lucent
ARS refurbished Products within the Licensed Territory for use by such
third party in the ordinary course of its business and not for resale.
ARTICLE II
LICENSE GRANT
2.1 License Grant. Subject to the terms and conditions of this
License Agreement, 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 Lucent Products commencing on the date of this License Agreement
and ending December 31, 2001.
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 License Agreement 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 License Agreement.
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
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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 License Agreement; 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 sales of Classic Lucent(TM) product. 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
3.1 Personal Nature of Agreement. The parties agree that the
rights, obligations and benefits of this License Agreement 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 II 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 License Agreement 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 License Agreement without Licensor's
express written consent.
ARTICLE IV
LICENSES TO OTHERS AND OWNERSHIP
4.1 Nonexclusive License. Nothing in this License Agreements
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 License Agreement, 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 Products; and
(c) The right to license others to use the Licensed Xxxx.
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ARTICLE V
LICENSED TERRITORY
5.1 Licensed Territory. The Licensed Territory for the licenses
granted in Article 11 of this License Agreement shall include the
contiguous 48 states in the domestic United States of America plus Alaska
but excluding Hawaii.
ARTICLE VI
QUALITY CONTROL
6.1 General. Licensee acknowledges that the Lucent Products covered
by this License Agreement 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 Products is of the essence of this License
Agreement 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 Lucent Products that meet the
Control Specifications. The Control Specifications shall consist of
Technical Performance and Customer Satisfaction Specifications attached
referenced in Schedule B hereto or provided to and accepted by Licensor,
and the Marketing Specifications referenced in Schedule C hereto. Control
Specifications shall be treated as proprietary information and shall be
subject to the confidentiality provisions hereof referenced in Schedule H.
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 Schedule C hereto may be reasonably amended,
modified or supplemented from time to time by Licensor upon giving Licensee
sixty (60) 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
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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
Lucent 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 Lucent 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.
6.7 Costs. Costs associated with monitoring compliance with and
enforcing these quality control provisions, and with administering this
License Agreement, shall be borne by Licensor. The ARS is to be responsible
for the costs incurred for performing the required additional product and
process audits resulting from Corrective Actions Requests. Process audits
shall occur no more than once per calendar year. However, if the process
audit results in Corrective Actions Request(s) (CARs) being issued wherein
said expense is required and shall occur within eight months of the
original audit date. Lucent Technologies and the ARS agree to negotiate in
good faith the exact date of the follow-up audit. Product audits shall
occur not more than four times per calendar year. Three successive audits
with no lot rejections and no CARs issued shall result in a revised audit
schedule of no more than two product audits per calendar year. However,
should a future product audit result in the issuance of a CAR, Lucent
reserves the right to re-invoke the more stringent ARS funded four audit
per calendar year cycle. The cost of any audit visit, whether product or
process, shall not exceed $3,000 each. Licensor will fund one process audit
at $3,000 and two products audit at $3,000 per calendar year. These three
Licensor funded audits are the minimum number of audits that can be reached
with no CARs.
6.8 Product Exists. Lucent Technologies exists support of products
over time. When a product is no longer supported by Lucent Technologies,
the ARS will no longer apply the Classic Lucent(TM) label to it. The ARS
will be notified of exit dates by Lucent DDM Remarketing.
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ARTICLE VII
REMEDIES FOR NONCOMPLIANCE WITH CONTROL SPECIFICATIONS
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 Final Cure Period. If the noncompliance with the Technical
Performance, Customer Satisfaction or Marketing Control Specifications
continues beyond the Second Cure Period, Licensee shall either: (i) cease
offering Lucent Products under the Licensed Xxxx until it can comply with
the Control Specifications; or (ii) be deemed to be in Significant Breach
of this License Agreement.
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
Escalation 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 Lucent Products under the
Licensed Xxxx until it can comply with the Control Specifications, or be
deemed to be in Significant Breach of this License Agreement.
ARTICLE VIII
PROTECTION OF LICENSED SERVICE 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 License
Agreement, or to record any such security interest in the United
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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 License Agreement,
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 License Agreement 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 License
Agreement, 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 License Agreement, Licensee shall
promptly notify
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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
9.1 Breach by Licensee. Licensor may terminate this License
Agreement 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 License Agreement 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 License Agreement;
(b) Licensee's use of the Licensed Xxxx in connection with any
marketing materials, or the offering, marketing or provision of any
Lucent 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
License Agreement as to all Products;
(c) Licensee's refusing or neglecting a request as provided in
this Agreement 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 License
Agreement 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 License
Agreement.
9.2 Termination Obligations. In the event Licensor terminates this
License Agreement 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
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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 License Agreement.
9.3 n/a
9.4 Lucent may terminate this Agreement upon thirty (30) days prior
written notice to ARS if: (i) ARS markets or sells Lucent 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 Lucent 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) except if
approved in writing by Lucent as stated in Section 15.1 sold or attempted
to resell Classic Lucent(TM) refurbished Lucent Products to any third party
other than an End User; (vii) purchased unused products manufactured by
Lucent from a source other than DDM or sold or attempted to resell any
unused products manufactured by Lucent that, if purchased through DDM,
would be a Lucent Product under this Agreement; (viii) misrepresented, by
statement or by omission, ARS's authority to resell under this or any other
written agreement with Lucent that is limited to specifi6 Lucent products
or services, by stating or implying, by use of a Lucent Xxxx or otherwise,
that the authority granted in this or such other agreement applies to any
Lucent product or service not covered by this or such other agreement, or
(ix) failed to comply with Lucent's guidelines for the proper use of
Lucent's Marks.
9.5 Except as otherwise provided in this Agreement, either party may
terminate this Agreement upon thirty (30) days prior written notice if the
other party has defaulted in the performance or has breached its
obligations under this Agreement, 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 Lucent may terminate this Agreement upon twenty-four (24) hours
written notice if Dealer 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 Lucent directly; (vii) activated software features without compensation
to Lucent.
9.7 ARS may terminate this Agreement on twenty-four (24) hours
written notice if Lucent 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; or (ii) become involved in any liquidation or
termination of its business; or (iii) been involved in an assignment for
the benefit of its creditors.
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9.8 Notwithstanding such termination rights, each party reserves all
of its legal rights and equitable remedies, including without limitation
those under the Uniform Commercial Code.
9.9 Neither party shall be liable to the other on account of
termination of this Agreement, either for compensation or for damages of
any kind or character whatsoever, on account of the loss by Lucent or
Dealer 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 ARSs business.
ARTICLE X
INDEMNITIES
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 Lucent Products
bearing the Licensed Xxxx after the date of this License Agreement 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 Lucent Products as
provided in this License Agreement 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 License
Agreement.
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ARTICLE XI
ARS FORECAST AND REPORTS
11.1 Upon execution of this Agreement, ARS shall submit to Lucent a
forecast of total Lucent ARS Refurbished 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 Lucent may reject any forecast submitted by ARS if, in Lucent's
sole judgment, such forecast does not project either: (1) the level of
Lucent ARS Refurbished Product sales Lucent reasonably requires of ARS to
achieve its marketing objectives in the Area; or (2) a realistic assessment
of ARS's potential successful marketing opportunities in the Area during
the forecast period. Lucent shall notify ARS in writing within thirty (30)
days of receipt of ARS's forecast if Lucent has rejected such forecast or
it will be deemed to have been accepted by Lucent.
11.3 ARS shall submit the forecast of Lucent ARS Refurbished Product
sales and actual Lucent ARS Refurbished Product installation data specified
in Section 11.1 in a format specified by Lucent. This Sales Report is due
to be received by Lucent Technologies by the fifth working day of the month
following the month of sales activity.
ARTICLE XII
NOTICES
All notices or other communications under this License Agreement
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: Branch Manager - Remarketing
Lucent Technologies Inc.
000 Xx. Xxxx Xxxx
Xxxx XX000
Basking Ridge. NJ 07920
with a copy to:
Trademark and Copyright Counsel
Lucent Technologies Inc.
000 Xxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
(ii) If to Licensee: Mr. Xxxxxx Xxxxxx
Farmstead Telephone Group, Inc.
00 Xxxxxxxx Xxxx Xxxxxx
Xxxx Xxxxxxxx, XX 00000
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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 License Agreement 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 Agreement shall be governed by the
local laws of the State of Delaware.
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 License Agreement, and to comply with any requirements
of such Governmental Authorities for the registration or recording of this
License Agreement. 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
14.1 Term. The term of this agreement will be starting October 1,
1998 running through December 31, 2001.
ARTICLE XV
ENTIRE AGREEMENT
15.1 Entire Agreement. The terms and conditions contained in this
Agreement supercede all prior oral and written understandings between the
parties and constitute the entire Agreement between them concerning the
subject matter of this Agreement and shall not be contradicted, explained
or supplemented by any course of dealing between Lucent or any of its
affiliates and Licensee or any of its affiliates. This Agreement 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 License Agreement to
be executed by their duly authorized representatives.
Lucent Technologies Inc. Farmstead Telephone Group, Inc.
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------ -------------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxx, Xx.
Title: General Manager Remarketing Title: Chairman and CEO
Date: 12/16/98 Date: 12/16/98
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SCHEDULE B
STANDARDS OF QUALITY
Quality Control Specifications
The average Acceptable Quality Level (AQL) required by Lucent
Technologies for refurbished product is 1%. Refurbished product is
never to exceed an AQL of 2.5%. AQL calculations include proper
function, appearance, packaging, and labeling.
The vendor must have a written quality plan that will be used to
ensure that final refurbished product meets Lucent Technologies'
standards. The plan must address how the vendor incorporates the
following elements into the repair and refurbishment process:
* Test procedures, documentation, and control
* Quality assurance, documentation, and control
* Final product sampling and inspection (audits)
* Quality data collection, tracking, and reporting
* Corrective actions
Lucent Technologies requires that the vendor perform, on an on-going
basis, final product quality assurance audits, using an agreed upon
valid sampling strategy and Lucent Technologies-approved testing
procedures, appearance, packaging, and labeling standards. Results of
these audits are to be provided to Lucent Technologies in an agreed
upon electronic form at least monthly. In addition, Lucent
Technologies reserves the right to perform its own audits of both the
refurbished product and the repair process. Refurbished product may
be inspected by Lucent Technologies unannounced on the vendor site,
or at any distribution center around the world, at any time. Process
audits, conducted at least yearly, will be scheduled in advance with
the vendor.
The vendor is required to track its customer satisfaction and report
the results to the Lucent Technologies' Repair Management Quality
Organization at least yearly. In addition, the vendor is required to
track its Defective On Arrival (DOA) rate per comcode per month,
which is calculated as the number of DOA's per month divided by the
number of units sent to customers that month. When a product's DOA
rate exceeds Lucent Technologies' AQL limits of 2.5%, the vendor is
expected to perform a root cause analysis, report results to Lucent
Technologies, and implement corrective actions to reduce the DOA rate
to an acceptable level.
The ARS will not remove any UL listed labels that appear on any of
the products that are covered by this agreement.
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SCHEDULE C
MARKETING, ADVERTISING, AND PROMOTION
Licensed Xxxx
The Licensed Xxxx, Classic Lucent(TM), will always be bolded or
italicized when it appears in print. The Classic Lucent identifier
must always stand out or show differently from the rest of the text.
When using the Classic Lucent xxxx the trade xxxx indicator of a
superscripted TM will follow only after the first appearance of the
xxxx in text. After the first appearance the Classic Lucent xxxx will
be differentiated but not followed by the TM.
The Classic Lucent Licensed Xxxx will always be used as an adjective
or describing term; as in the Classic Lucent terminal or the Classic
Lucent circuit card. The Authorized Refurbishers supply Classic
Lucent products.
Promotional Signature
The Promotional Signature as described in Schedule D may be used by
Authorized Refurbishers only if-
* The Authorized Refurbisher has executed a written contract with
Lucent Technologies
* The contract entitles the Authorized Refurbisher to use the
signature
* The Authorized Refurbisher abides by the Guidelines as they apply
to this signature and the contract is in effect.
For Maximum visibility and impact, a clear area around the promotion
al signature must be maintained. This clear area must be one-fourth
the diameter of the Lucent Technologies innovation ring. No copy or
design element may encroach into this clear area.
While reproduction of the signature is one color (black) is
permissible, two color reproduction is preferred, with the Lucent
Technologies ligature in black and the innovation ring in Lucent Red.
Additional copy should be black. Pantone 186C may be substituted for
Lucent Red.
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SCHEDULE D
CORPORATE IDENTIFICATION XXXX
Promotional Signature
The Promotional Signature for the Authorized Remarketing Supplier Program
consists of the Lucent Innovation Ring framed on the top with the word
"AUTHORIZED" and on the bottom with the word "REFURBISHER." A sample is
shown below.
- INSERT LUCENT LOGO -
The use of the Promotional Signature for the Authorized Remarketing
Supplier Program is subject to the same restrictions and guidelines as all
Lucent Promotional Signatures.
15
SCHEDULE E
PRODUCTS LIST
The Products List presented here in Schedule E represents the Lucent
Products that may be rebranded to the Classic Lucent(TM) brand. This List
includes Products that have been manufactured or sold by Lucent
Technologies or it's predecessor AT&T.
Only product that is Year 2000 Compliant may be refurbished or sold.
Product that is not Year 2000 Compliant may not be refurbished or sold.
This prerequisite supersedes the Schedule E Products List. Licensee will
not sell any Lucent product set forth below for which it has received
written notice from Lucent that such Lucent product is not Year 2000
Compliant.
Lucent Technologies exists support of products over time. When a product is
no longer supported by Lucent Technologies, the ARS will no longer apply
the Classic Lucent(TM) label to it. The ARS will be notified of exit dates
by Lucent DDM Remarketing.
Until Licensor is notified by Licensee of non-compliant and exited
products, there will be violation of this Agreement.
The Products List includes terminals, circuit cards, and other adjuncts
for:
Key Systems
EKTS
Horizon
Dimension
System 25
System 75
System 85
Definity
Merlin
Partner
Non-compliant products
The following is a list of non-compliant products: all Definity systems
prior to R6, all Dimension systems, all Horizon systems, System 25 (pre
R3V4), all System 85; all Centralized System Management systems, all
CenterVu CMS systems, Merlin Legend CMS; all Integrated Solution I, II, or
III on Definity, System 25 or Merlin Legend systems, all Conversant
systems; all Audix Voice Power systems, Definity Audix prior to 3. 1,
Intuity Audix R2.0, 3.3, 4.0, 4. 1, 4.2, Intuity Interchange, Intuity IMG,
Intuity Lodging, Message Manager pre 4.3, all AUDIX systems; all 3132
Message Server, all Classic Mail, Merlin Mail prior to R3.05, Partner Mail
RI.9 and earlier; all VMX 100/200/300; all call accounting systems, all
system management systems.
16
SCHEDULE G
LICENSED XXXX
Trade Xxxx
The new brand for the Authorized Remarketing Supplier program is "Classic
Lucent.(TM) This new brand will be trademarked. Until the trademark is
registered we will use the superscript TM after the full name "Classic
Lucent as the following shows: Classic Lucent(TM)
Brand Logo
The Authorized Remarketing Supplier program which is run by licensed
Authorized Refurbishers will buy, refurbish, and sell used Lucent BCS/AT&T
equipment. The equipment will be rebranded with the new Lucent brand
Classic Lucent(TM).
A rebranding label will have the word Classic appear over the word Lucent.
The word Classic will be in outline form when it is in this label but the
word Lucent will be solid. There will be no "(TM)" on the branding label.
When the term Classic Lucent(TM) is used in text, the term is followed by
the superscripted (TM) the first time it appears in context and Classic
Lucent is either italicized or bolded to stand out. After the first use in
context the Classic Lucent will appear either bolded or italicized without
the superscripted (TM). When the trademark is registered the (TM) will be
replaced with a circled R for a registered trademark. The "Classic Lucent"
will always be used as an adjective, such as Classic Lucent sets or Classic
Lucent circuit cards.
The Label will be used to rebrand AT&T and Lucent BCS logoed equipment. The
label should cover The AT&T with globe or Lucent with Innovation Ring
- INSERT CLASSIC LUCENT LOGO -
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