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DEALER AGREEMENT AMONG LUCENT TECHNOLOGIES, INC;
DISTRIBUTOR, INACOM COMMUNICATIONS, INC.;
AND XETA CORPORATION
FOR BUSINESS COMMUNICATIONS SYSTEMS
TABLE OF CONTENTS
1.0 DEFINITIONS..................................................................1
2.0 DEALER APPOINTMENT...........................................................2
3.0 DEALER RESPONSIBILITIES......................................................3
4.0 INSTALLATION, WARRANTY AND POST-WARRANTY SERVICES............................5
5.0 PRODUCT, PRODUCT COMPONENTS, AND SOFTWARE LICENSE CHANGES....................5
6.0 DEALER FORECAST AND REPORTS..................................................6
7.0 INSURANCE....................................................................6
8.0 USE OF INFORMATION...........................................................6
9.0 LICENSE......................................................................7
10.0 TRADEMARKS..................................................................7
11.0 PRODUCT WARRANTY............................................................7
12.0 LIMITATION OF LIABILITY.....................................................8
13.0 INDEMNITY...................................................................9
14.0 INFRINGEMENT...............................................................10
15.0 TERMINATION OF AGREEMENT...................................................10
16.0 EFFECTS OF TERMINATION.....................................................11
17.0 SURVIVAL OF OBLIGATIONS....................................................12
18.0 FORCE MAJEURE..............................................................12
19.0 SEVERABILITY...............................................................12
20.0 ASSIGNMENT.................................................................12
21.0 NON-WAIVER.................................................................12
22.0 CHOICE OF LAW AND DISPUTES.................................................12
23.0 NOTICES....................................................................14
24.0 ENTIRE AGREEMENT...........................................................14
25.0 TERM.......................................................................14
APPENDIX: ADDRESSES............................................................15
APPENDIX: AREA.................................................................16
PRODUCT APPENDIX: DEFINITY(R) ECS & ASSOCIATED ADJUNCTS
PRODUCT APPENDIX: GUESTWORKS(TM) SERVER & ASSOCIATED ADJUNCTS
ATTACHMENT: EXISTING LUCENT DEALERS WITH EXCLUSIVE PRIMARY AREAS OF
RESPONSIBILITY
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AGREEMENT NO.: NEDA5I INDIRECT 990349
DEALER AGREEMENT AMONG LUCENT TECHNOLOGIES INC.;
DISTRIBUTOR, INACOM COMMUNICATIONS, INC.; AND XETA CORPORATION FOR BUSINESS
COMMUNICATIONS SYSTEMS
This Dealer Agreement ("Agreement") is effective as of March 19,1999
and is among Lucent Technologies Inc. ("Lucent"), a Delaware corporation,
through its Business Communications Systems unit ("BCS"), with offices at 000
Xxxxx Xxxx Xxxx, Xxxxxxx Xxxxx, Xxx Xxxxxx 00000; XETA Corporation, ("Dealer"),
an Oklahoma corporation, with its principal place of business at 0000 Xxxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000; and Inacom Communications, Inc.
("Distributor"), a Delaware Corporation, with its principal place of business at
Technologies Center, 00000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx, XX 00000.
LUCENT, DISTRIBUTOR AND DEALER HEREBY AGREE AS FOLLOWS:
1.0 DEFINITIONS
For the purposes of this Agreement, the following terms and their
definitions shall apply:
1.1 "Area" means the specific geographic area in which Dealer has
agreed to market Lucent Products in accordance with this Agreement. The specific
geographic areas that comprise the Area are identified by city, state, county
and zip code or other appropriate description in the Appendix: Area.
1.2 "Dealer Service" means one or more of those services Dealer may
choose to perform itself for Lucent Products in the Area. Dealer Services
include system configuration to the End User, installation, warranty, and
provision of post-warranty on-site maintenance.
1.3 "End User" means a third party to whom Dealer markets or sells
Lucent Products within the Area for use by such third party in the ordinary
course of its business and not for resale; see Section 2.8 of this Agreement for
further limitations.
1.4 "Lucent Product" means a Lucent equipment model identified in a
Product Appendix to this Agreement that Dealer has purchased from Distributor
and that Distributor has purchased directly from Lucent through its BCS
Distribution Development and Management group or an order source within Lucent
designated by the BCS Distribution Development and Management group
(collectively, "DDM") and that carries the standard Lucent warranty when resold
to an End User. Lucent Products under this agreement are new only. Each Lucent
Product consists of one or more Product Components. The set of Product
Components that may be used to equip a Lucent Product is determined solely by
Lucent.
1.5 "Lucent Service" means one or more of those services provided by
Lucent that Dealer may choose to resell as a Lucent Service Sales Agent,
including system configuration, installation, provision of post-warranty and
on-site and remote maintenance service, and Professional Services. Lucent
Service also includes post-warranty remote maintenance service separate from
post-warranty on-site maintenance service, which Dealer may offer in conjunction
with Dealer Service. Lucent Services, including the prices at which they may be
offered to end users and the commissions payable on their sale, and the price at
which Lucent will provide remote maintenance service as a subcontractor for
Dealer Service are described and identified in an Appendix.
1.6 "Product Component" means an item of equipment identified by a
Lucent equipment price element code. To the extent that a Product Component
contains or consists of any firmware or software, an End User shall have the
right to use such firmware or software in accordance with Section 9.0.
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1.7 "Software" means any computer program that is composed of routines,
subroutines, instructions, processes, algorithms, and like ideas or know-how,
owned by or licensed to Lucent and or one or more of its suppliers, regardless
of the medium of delivery, including revisions, patches and updates of the same.
1.8 "Territory" means the United States of America, including the
District of Columbia but excluding 1) the Commonwealth of Puerto Rico and all
other territories, protectorates and possessions of the United States of
America, and 2) the geographical areas defined as the "Primary Area of
Responsibility" for Cincinnati Xxxx Telecommunication Services Inc. (the
Cincinnati Xxxx Telephone Company operating area in the states of Ohio, Kentucky
and Indiana). The above listed exclusions do not preclude Dealer from making
sales calls and obtaining contracts with customers headquartered in the
excluded areas so long as all Lucent Products under such contracts are
installed outside the excluded areas.
2.0 DEALER APPOINTMENT
2.1 Lucent hereby authorizes Distributor to sell to Dealer, for resale
to End User customers only who are located in Dealer's Area, the Lucent Products
purchased from DDM and listed in a Product Appendix hereto. Dealer's authorized
marketing location(s) and shipping location(s) are set forth in the Appendix:
Addresses. If Dealer has marketed or sold new Lucent Products to an End User as
defined in Section 1.3 hereof, which Lucent Products are installed and used at
premises within Dealer's Area, Dealer may market and sell limited quantities of
Lucent Products to other locations of that End User outside the Area but in the
Territory. Lucent's authorization is predicated on Dealer's agreement to market
the Lucent Products in the Area and to achieve the Area forecast submitted
pursuant to Section 6.0 of this Agreement. Lucent Products installed outside the
Area will not be considered by Lucent when determining whether Dealer has
achieved its Area forecast submitted pursuant to Section 6.0 of this Agreement.
Dealer's sales of Lucent Products outside the Area (unless specifically
permitted by this Section 2.1), Dealer's failure to limit its marketing efforts
and sales of Lucent Products to authorized End-Users, or Dealer's failure to
achieve levels of sales acceptable to Lucent in the Area shall, among others, be
grounds for termination or nonrenewal of this Agreement.
2.2 Dealer and Distributor acknowledge that Distributor is obligated to
provide Lucent with its best efforts to prevent or cure any breach of this
Agreement by Dealer and that if Distributor fails to provide such assistance or
if Distributor causes or contributes to such breaches, Lucent has the right to
terminate its agreements with Distributor and all subtending Dealer Agreements,
including this one. In the event of issues between Dealer and Distributor that
do not rise to the level of breaches of this Agreement, but may cause one or the
other to terminate this Agreement without cause, both Dealer and Distributor
acknowledge that Lucent intends not to become involved in resolving any such
issues.
2.3 Dealer shall have no right to authorize others to resell or market
Lucent Products and any such authorization or attempted authorization shall be
void and without effect. Dealer's sales of Lucent Products to other resellers
shall be grounds for termination or nonrenewal of this Agreement. Dealer is not
authorized to employ sales agents (other than an employee of Dealer located at
an authorized Dealer marketing location) or other independent contractors to
market Lucent Products. Dealer agrees that it has no exclusive right to market
the Lucent Products set forth in a Product Appendix hereto in the Area or
Territory, and that no franchise is granted to Dealer herein. No payment of any
fee or equivalent charge is required of Dealer by Lucent as a condition of this
Agreement.
2.4 Lucent expressly reserves both the right to contract with others to
market Lucent Products in the Territory and the Area and to itself directly
engage in such marketing.
2.5 The relationship of the parties under this Agreement shall be, and
shall at all times remain, one of independent contractors and not that of
franchisor and franchisee, joint venturers, or principal and agent. Neither
Dealer nor Distributor shall have any authority to assume or create obligations
on behalf of Lucent with respect to Lucent Products, and neither Dealer nor
Distributor shall take any action that has the effect of creating the appearance
of its having such authority.
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2.6 Dealer, directly or through a contractor, shall be solely
responsible for payment of all their unemployment, Social Security and other
payroll taxes including contributions from Dealer when required by law. No
person furnished by Dealer to sell Products or provide Services under this
agreement shall under any circumstances be deemed to be an employee of Lucent.
2.7 Dealer may market Lucent Products only from the authorized
marketing locations in its Area. During the term of this Agreement, no new or
additional Dealer marketing location(s) may be established in or outside of the
Area to market Lucent Products without prior written authorization from Lucent.
2.8 Dealer may not market or sell Lucent Products to any office,
department, agency, or defense installation of the United States Government.
Dealer is not appointed or authorized to market or sell Lucent Products to the
United States Government by reason of the fact that Dealer has, in the past,
sold used or unused products manufactured by Lucent to the United States
Government.
3.0 DEALER RESPONSIBILITIES
3.1 Dealer has previously submitted an "Authorized Dealer Application".
Dealer certifies and warrants that, to the best of its knowledge, such
information is current, accurate, complete and not misleading. Dealer also
agrees during the term of this Agreement to notify Distributor and Lucent
immediately in writing and describe in detail any significant or material change
in such information.
3.2 Dealer represents that it has the necessary marketing capabilities,
integrity and dedication to sell forecast quantities of complete Lucent business
telecommunications systems to End Users located in Dealer's Area. Dealer agrees
to devote its best efforts to promote and market Lucent Products to End Users
within the Area. Dealer also warrants that it will conduct its business in a
manner that reflects favorably on the quality image of Lucent Products and on
the good name, goodwill or reputation of Lucent and will not employ deceptive,
misleading or unethical practices that are or might be detrimental to Lucent or
its Products.
3.3 Dealer shall not purchase or otherwise obtain Lucent Products for
resale from any source other than Distributor unless a Lucent Product is not
available from Distributor on a timely basis, in which case Dealer may purchase
that Lucent Product from the Lucent Catalogs or the NPSC, provided that such
purchases are only to meet a specific customer need. Dealer's purchase or resale
of an unused product originally manufactured by Lucent that, if purchased from
Distributor, would be a Lucent Product under this Agreement, shall be grounds
for immediate termination of this Agreement.
3.4 Dealer shall provide and consistently maintain a staff of
adequately trained and competent sales personnel, knowledgeable of the
specifications, features and advantages of the Lucent Products. Such personnel
shall be made aware of the restrictions on use of Lucent's Information as set
forth in Section 8.0. All training that Lucent requires Dealer personnel to
undergo that enables Dealer to market and demonstrate Lucent Products
effectively shall be provided at no charge to Dealer. All other marketing or
Lucent Product training requested by the Dealer and offered by Lucent, will be
furnished to Dealer at Lucent's standard rates, terms and conditions. However,
Lucent will waive such fees to train the first 10 Dealer sales personnel.
3.5 Dealer represents that it has or will acquire the service
capabilities necessary to meet Lucent's quality standards for design,
installation, and provision of warranty and maintenance on-site services for
Lucent Products, if Dealer opts to provide such services. If Dealer chooses to
provide Dealer Service, Dealer shall provide and consistently maintain a staff
of services personnel, trained on the Lucent Products to Lucent's
specifications. Such personnel shall be made aware of the restrictions on use of
Lucent's Information as set forth in Section 8.0. All services training that
Lucent requires Dealer personnel to undergo, or other services training
requested by the Dealer and offered by Lucent, will be furnished to Dealer at
Lucent's standard rates, terms and conditions. However, Lucent will waive such
fees to train the first 50 Dealer technicians and 5 dealer CSR's. If Dealer has
subcontracted with Lucent to perform all or part of Dealer Service to an End
User and Dealer installs unused product(s) manufactured by Lucent but not
purchased from DDM as part of that End User's system, in addition to
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any other remedies available to Lucent, Lucent may terminate any Dealer licenses
to use Lucent maintenance software and also terminate its subcontracts with
Dealer to perform Dealer Service. If Dealer has sold a Lucent Product system and
a Lucent Post-Warranty Maintenance service contract to an End User, Dealer will
advise such End User that addition of used and unused product(s) to the Lucent
Product system may void Lucent's warranty and cause Lucent to terminate the
service contract.
3.6 Dealer agrees to purchase and maintain a working Lucent system
either as a demonstration model or as Dealer's primary telecommunications system
at Dealer's principal marketing location.
3.7 Dealer shall inform End Users of the Services available from
Dealer.
3.8 Dealer shall report promptly to Lucent all known or suspected
Lucent Product defects or safety problems and keep Lucent informed of End User
complaints with respect to Lucent Products or Services.
3.9 Dealer shall provide Lucent reasonable access to Dealer's premises
during normal business hours to inspect and verify Dealer performance of its
obligations under this Agreement, including the right to inspect and audit
Dealer's records relating to Lucent Product transactions in and out of Dealer's
Area, Dealer's purchases and sales of unused products, Distribution Functions
and Dealer Services.
3.10 Dealer shall comply with all applicable requirements of federal,
state and local laws, ordinances, administrative rules and regulations,
including, by way of illustration and not limitation, all requirements of Part
68 of the Federal Communication Commission's (FCC) Rules and Regulations and the
Federal Export Administration Act of 1969, 50 U.S.C. app. Sections 2401-2414.
3.11
a. To ensure fulfillment of Lucent's Product and Software
warranties to End Users, to ensure End User safety, to ensure End Users
receive the latest information concerning the use of Lucent Products
and enhancements thereto, to maintain End User satisfaction, and to
assist Lucent in tracking equipment maintenance obligations and
materiel accountability, Dealer agrees to maintain and make available
to Lucent on reasonable request an accurate and complete list of
Dealer's Lucent Product and Software End Users by name, installation
address, the Lucent Product Components furnished to each End User, the
transaction date, and (for End Users who elect to install their own
systems only), all serial numbers associated with the new Lucent
Products, Software or new Lucent Product Components. The obligation to
maintain and make such information available to Lucent shall survive
expiration or termination of this Agreement. Lucent will use this
information solely for the purposes set forth in this Section 3.11.
b. If Lucent is to install the Products, Dealer shall give the
information described in 3.11a., above, to the Lucent Branch where the
End User is located, in the agreed format, as soon as Dealer's order
process is completed. This will enable the customer to receive the
Lucent Warranty on the new Lucent Products and Software, and if the
customer has a Post Warranty Maintenance contract and has like
products, the new Lucent Products will automatically be added to that
contract when the Warranty expires.
3.12 Dealer shall keep accurate accounts, books and records relating to
the business of Dealer with respect to Lucent Products and Dealer Services in
accordance with generally accepted commercial and business accounting principles
and practices that are sufficient for Lucent to ascertain Dealer's compliance
with its obligations under this Agreement.
3.13 To maintain Lucent's high standards for End User satisfaction and
Lucent Product and Service quality, Dealer agrees to abide by Lucent's Dealer
Quality Policy. Dealer agrees to participate in Lucent's Customer
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Satisfaction Surveys. Lucent may conduct performance reviews of all Dealer
responsibilities and Dealer fulfillment of the Lucent Dealer Quality Policy.
3.14 By the fifth (5th) business day of each month, in a format to be
provided by Lucent to Dealer, Dealer will submit a point-of-sale report of sales
made the previous month, by Lucent order code, ZIP code, and quantity.
4.0 INSTALLATION, WARRANTY AND POST-WARRANTY SERVICES
4.1 Any installation or post-warranty Services required by End Users
purchasing Products from Dealer may be furnished by Dealer. To ensure the
provision of high quality installation and post-warranty Services to End Users,
Dealer shall: (i) be adequately trained; and (ii) perform such Services
competently and in accordance with any applicable Lucent standards. The
indemnity obligations of Dealer under Section 13.1 shall apply to any Services
furnished by Dealer to End Users. If Dealer desires to have Lucent perform
installation and post warranty Services for Dealer's End Users, Dealer may apply
for appointment as a Lucent Service Sales Agent.
4.2 If Dealer desires to furnish Services directly to End Users, Lucent
will provide installation and maintenance training for the Products Dealer is
authorized to market. Initial training will be furnished to Dealer without
charge under Lucent's standard terms and conditions. Additional training will be
provided at Lucent's standard rates, terms and conditions.
4.3 Replacement, spare or maintenance Product Components required by
Dealer, to the extent that Lucent in its sole discretion makes such Product
Components available, can be purchased either directly from Lucent pursuant to
this Agreement or through Lucent's National Parts Sales Center (NPSC). In the
event Dealer elects to purchase such Product Components from the NPSC, such
purchases shall be at the prices, terms and conditions established by the NPSC.
Replacement, spare and maintenance Product Components provided to Dealer or
purchased by Dealer under this Agreement may, at Lucent's option, be either new
or refurbished.
4.4 Dealer may incorporate Lucent's remote maintenance support features
in all its Services Offers to End Users. Lucent will serve as Dealer's
subcontractor for such remote maintenance. NO LICENSE IS GRANTED, AND NO TITLE
OR OTHER OWNERSHIP RIGHTS IN LUCENT'S INTELLECTUAL PROPERTY RELATED TO LUCENT'S
PROVISION OF REMOTE MAINTENANCE SUPPORT SHALL PASS TO DEALER UNDER THIS
AGREEMENT OR AS A RESULT OF ANY PERFORMANCE HEREUNDER. Dealer agrees to provide
Lucent with accurate information on End User port capacity, software
attachments, and other information required in order for Lucent to invoice
Dealer accurately for such remote support. Failure to provide such accurate
information or to update it on a timely basis shall entitle Lucent to terminate
this Agreement upon written notice to Dealer. Connection of unused product(s)
manufactured by Lucent but not purchased from DDM as part of an End User's
system may, in addition to any other remedies available to Lucent, permit Lucent
to terminate any Dealer licenses to use Lucent maintenance software and also to
terminate all its subcontract(s) with Dealer to perform Dealer Service.
5.0 PRODUCT, PRODUCT COMPONENTS, AND SOFTWARE LICENSE CHANGES
5.1 Lucent may without the consent of Dealer, but with ninety(90) days
advance written notice to Dealer, delete any Lucent Product from Product
Appendix(ces) and, upon thirty (30) days advance written notice to Dealer,
delete any Lucent Product Component listed in Product Appendix(ces).
5.2 Lucent may, at any time without advising Dealer, make changes in
the Lucent Products or Lucent Product Components or modify the drawings and
specifications relating thereto, or substitute Lucent Products or Lucent Product
Components of later design to fill an order, provided the changes, modifications
or substitutions under normal and proper use do not adversely impact upon form,
fit or function or are recommended by Lucent to enhance safety. Lucent may, at
any time with ten days advance notice to Dealer, change the terms of its End
User Software License.
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6.0 DEALER FORECAST AND REPORTS
6.1 Upon execution of this Agreement, Dealer shall submit to Lucent a
forecast of total Lucent Product orders to be placed by Dealer during the
contract term. The forecast must specify, for each quarter, the total unit
quantities of each Lucent Product construct (i.e., average configuration of
Lucent Product Components in an initial End User installation of a Lucent
Product model) to be ordered.
6.2 Lucent may reject any forecast submitted by Dealer if, in Lucent's
sole judgment, such forecast does not project either: (1) the level of Lucent
Product orders Lucent reasonably requires of Dealer to achieve its marketing
objectives in the Area; or (2) a realistic assessment of Dealer's potential
successful marketing opportunities in the Area during the forecast period.
Lucent shall notify Dealer in writing within thirty (30) days of receipt of
Dealer's forecast if Lucent has rejected such forecast or it will be deemed to
have been accepted by Lucent.
6.3 Dealer shall submit the forecast of Lucent Product orders and
actual Lucent Product installation data specified in Section 3.12 in a format
specified by Lucent.
7.0 INSURANCE
Dealer shall maintain, during the term of this Agreement, all insurance
and bonds required by any applicable law, including but not limited to: (1)
workers' compensation insurance as prescribed by the laws of all states in which
work pursuant to this Agreement is performed; (2) employer's liability insurance
with limits of at least $1 million per occurrence; and (3) comprehensive
personal liability insurance coverage (including products liability coverage and
comprehensive automobile liability coverage) with limits of at least $1 million
for bodily injury, including injury to any one person and $1 million on account
of any single occurrence, and $1 million for each occurrence of property damage,
or in lieu of such limits, bodily injury and property damage liability insurance
(including products liability and comprehensive automobile coverage) with a
combined single limit of at least $2 million per occurrence. Dealer shall name
Lucent as an Additional Insured on all such policies. Upon request of
Distributor or Lucent, Dealer shall furnish adequate proof of such insurance.
8.0 USE OF INFORMATION
All technical and business information, National List prices, discounts
or rebates, and trade secrets in any form, furnished to any party under or in
contemplation of this Agreement and identified as or known by the receiving
party or parties to be proprietary to the furnishing party (all hereinafter
designated "Information") shall remain the property of the furnishing party.
Unless the furnishing party otherwise expressly agrees in writing, such
Information: (i) shall be treated in confidence by the receiving party or
parties and used only for the purposes of performing the receiving party's or
parties' obligations under this Agreement; (ii) shall not be disclosed to
anyone, except to employees of the receiving party or parties and End Users to
whom such disclosure is necessary to the use for which rights are granted
hereunder; (iii) shall not be reproduced or copied in whole or in part, except
as necessary for use as authorized in this Agreement; and (iv) shall, together
with any copies thereof, be returned, be destroyed or, if recorded on an
erasable storage medium, be erased when no longer needed or when this Agreement
terminates, whichever occurs first. Any copies made as authorized herein shall
contain the same copyright notice or proprietary notice or both that appear on
the Information copied. The above conditions do not apply to any part of the
Information (i) which is or becomes known to the receiving party or parties free
of any obligation to keep same in confidence; (ii) which is or becomes generally
available to the public without breach of this Agreement; or (iii) which is
independently developed by the receiving party or parties. The obligation of
confidentiality and restrictions on use of Information shall exist for a period
of (i) two (2) years after the termination of this Agreement, or (ii) seven (7)
years after the receipt of such Information, whichever is longer.
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9.0 LICENSE
9.1 Upon delivery of Lucent Product firmware and software to Dealer,
Lucent grants to Dealer a personal and non-exclusive right to use such licensed
materials ("Licensed Materials") in the Area and Territory solely to fulfill its
duties and obligations under this Agreement. NO TITLE OR OTHER OWNERSHIP RIGHTS
IN INTELLECTUAL PROPERTY OR OTHERWISE IN THE LICENSED MATERIAL OR ANY COPY
THEREOF SHALL PASS TO DEALER UNDER THIS AGREEMENT OR AS A RESULT OF ANY
PERFORMANCE HEREUNDER.
9.2 Dealer agrees: (i) to make only those copies of Software necessary
for its use under this Agreement and assure that such copies contain any
proprietary or copyright notice appearing on the Software being copied; (ii) not
to reverse engineer, decompile or disassemble the Licensed Materials or
otherwise attempt to learn the source code, structure, algorithms or ideas
underlying the Licensed Materials; (iii) not to export the Licensed Materials
out of the Territory, and (iv) not to use the Software directly for any third
person or permit any third person to use the Software except as necessary under
this Agreement.
9.3 Lucent further grants to Dealer the right to furnish Licensed
Materials to End Users coincident with the sale of Lucent Products utilizing
such Licensed Materials, provided, however, that unless the Licensed Materials
come with a limited use license, which may be in the form of a shrink-wrap
(break-the-seal) agreement, provided by Lucent, Dealer obtains agreement in
writing from the End User, before or at the time of furnishing each copy of
Licensed Materials, in the form set forth in an Appendix to this Agreement.
10.0 TRADEMARKS
10.1 Lucent grants Dealer permission to utilize certain Lucent
designated trademarks, insignia, and symbols ("Marks") in Dealer's advertising
and promotion of Lucent Products furnished hereunder, provided such use conforms
to Lucent's standards and guidelines. Dealer shall not do business under any
Xxxx or any derivative or variation thereof, and Dealer shall not directly or
indirectly hold itself out as having any relationship to Lucent or its
affiliates other than as an "Authorized Lucent Dealer" or other Lucent approved
term. Except as provided in Section 16.1, Marks may only be used by Dealer to
advertise and promote the Lucent Products during the term of this Agreement.
Marks are not to be used by Dealer in any way to imply Lucent's endorsement of
products, licensed materials or services not furnished hereunder, such as used
or unused products originally manufactured by Lucent. Marks are not to be used
by Dealer in advertising or marketing materials, including print media, radio,
television, broadcast facsimile, telemarketing or Internet websites, that
principally reach End User prospective customers outside Dealer's Area. Such
uses of Marks will be cause for immediate termination of this Agreement. Dealer
will not alter or remove any Xxxx applied to Lucent Products without the prior
written approval of Lucent. Nothing in this Agreement creates in Dealer and
Dealer agrees not to assert, any rights in the Marks.
10.2 All Dealer-initiated advertisements or promotions using Marks or
any reference thereto, whether under a promotional allowance program or
otherwise, shall receive pre-publication review and approval by Lucent with
respect to, but not limited to context, style, appearance, composition, timing
and media.
10.3 This Agreement does not give Dealer any rights to use the logo or
trademark of AT&T Corp. Such rights cannot be obtained under this Agreement or
any other Agreement with Lucent Technologies Inc.
11.0 PRODUCT WARRANTY
11.1 Dealer may, but is not required to, provide warranties and
remedies in addition to but not less than the warranties and remedies set forth
in Section 11.2. Dealer shall inform the End User of Lucent's Limitation of
Liability as set forth in Section 12 of this Agreement, in a reasonable manner.
Lucent has warranted to Distributor the title of the Lucent Products purchased
by Distributor from DDM and resold to Dealer under this Agreement. This warranty
of title is the only warranty provided to Dealer.
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11.2 Dealer shall, before or at the time of delivery of Lucent
Products, advise an End User of the following:
(i) that the Lucent Products may contain remanufactured parts that
are equivalent to new in performance and appearance;
(ii) that there is a toll fraud exclusion in Lucent's warranty,
with a specific reference to the words of that exclusion and an explanation of
the meaning of those words;
(iii) that the Lucent Products are warranted to the end user on
the Delivery or In-Service Date, whichever is applicable, and for a period of
one (1) year thereafter to operate in accordance with Lucent's standard
published specifications; and if any Lucent Products are not operational during
the warranty period, that the End User shall notify the Dealer who at its option
will replace or repair those Lucent Products without charge. Replaced Lucent
Products become the property of Dealer; and
(iv) THAT LUCENT AND ITS AFFILIATES AND SUPPLIERS MAKE NO OTHER
WARRANTIES EXPRESS OR IMPLIED AND SPECIFICALLY DISCLAIM ANY WARRANTY OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
11.3 EXCEPT FOR THE WARRANTY OF TITLE TO DISTRIBUTOR AND THE LIMITED
PRODUCT WARRANTY TO DEALER'S END USERS REFERENCED IN THIS SECTION, LUCENT, ITS
AFFILIATES AND SUPPLIERS MAKE NO WARRANTIES EXPRESS OR IMPLIED AND SPECIFICALLY
DISCLAIM ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
11.4 The indemnity obligations of Dealer under Section 13.1 shall apply
to Dealer's provision of End User warranty assistance services and to any
failure to refer to and explain the toll fraud exclusion to an End User. Dealer
may return Lucent Products replaced under Section 11.2 (iii) to Lucent for
replacement by Lucent.
11.5 Dealer shall, before or at the time of delivery of used or unused
Lucent products, advise an End User of the following:
(i) Used or unused Lucent products were not purchased by Dealer
under this Agreement, and if purchased from Distributor, Distributor did not
purchase such products from Lucent under its Distributor Agreement with Lucent;
(ii) Used or unused products are not warranted by Lucent;
(iii) Dealer has no knowledge of the conditions under which unused
products may have been stored or shipped prior to their delivery to Dealer; and
(if End User has a Service Agreement with Lucent);
(iv) Used or unused products may not be certifiable for addition
to the Service Agreement.
12.0 LIMITATION OF LIABILITY
EXCEPT FOR PERSONAL INJURY AND EXCEPT FOR THE LIABILITY EXPRESSLY
ASSUMED BY LUCENT UNDER SECTIONS 13 AND 14 OF THIS AGREEMENT, THE LIABILITY OF
LUCENT AND ITS PARENT OR AFFILIATES FOR ANY CLAIMS, LOSSES, DAMAGES OR EXPENSES
FROM ANY CAUSE WHATSOEVER (INCLUDING CLAIMS OF INFRINGEMENT AND ACTS OR
OMISSIONS OF THIRD PARTIES) REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE LESSER OF THE DIRECT DAMAGES
PROVEN OR THE REPAIR, REPLACEMENT COSTS (INCLUDING THE COSTS OF COVER) OR
PURCHASE PRICE OF THE PRODUCTS OR SERVICE THAT DIRECTLY GIVES RISE TO THE CLAIM.
IN NO EVENT SHALL LUCENT OR ITS PARENT OR AFFILIATES BE LIABLE TO DEALER OR TO
ANY OTHER COMPANY OR
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ENTITY FOR ANY INCIDENTAL, RELIANCE, CONSEQUENTIAL OR ANY OTHER INDIRECT LOSS OR
DAMAGE (INCLUDING LOST PROFITS OR REVENUES OR CHARGES FOR COMMON CARRIER
TELECOMMUNICATION SERVICES OR FACILITIES ACCESSED THROUGH OR CONNECTED TO
PRODUCTS ["TOLL FRAUD"]) ARISING OUT OF THIS AGREEMENT. NO ACTION OR PROCEEDING
AGAINST LUCENT MAY BE COMMENCED MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF
ACTION ACCRUES. THIS SECTION SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.
EXCEPT FOR PERSONAL INJURY, THE LIABILITY OF DEALER AND ITS PARENT OR
AFFILIATES FOR ANY CLAIMS, LOSSES, DAMAGES OR EXPENSES FROM ANY CAUSE WHATSOEVER
(INCLUDING CLAIMS OF INFRINGEMENT AND ACTS OR OMISSIONS OF THIRD PARTIES)
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL
NOT EXCEED THE LESSER OF THE DIRECT DAMAGES PROVEN OR THE REPAIR, REPLACEMENT
COSTS (INCLUDING THE COSTS OF COVER) OR PURCHASE PRICE OF THE PRODUCTS OR
SERVICE THAT DIRECTLY GIVES RISE TO THE CLAIM. IN NO EVENT SHALL DEALER OR ITS
PARENT OR AFFILIATES BE LIABLE TO LUCENT OR TO ANY OTHER COMPANY OR ENTITY FOR
ANY INCIDENTAL, RELIANCE, CONSEQUENTIAL OR ANY OTHER INDIRECT LOSS OR DAMAGE
(INCLUDING LOST PROFITS OR REVENUES OR CHARGES FOR COMMON CARRIER
TELECOMMUNICATION SERVICES OR FACILITIES ACCESSED THROUGH OR CONNECTED TO
PRODUCTS ["TOLL FRAUD"]) ARISING OUT OF THIS AGREEMENT. NO ACTION OR PROCEEDING
AGAINST DEALER MAY BE COMMENCED MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF
ACTION ACCRUES. THIS SECTION SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.
13.0 INDEMNITY
13.1 Unless Dealer's liability is otherwise limited or excluded in
other sections of this Agreement, Dealer will indemnify Lucent for the full
amount of any settlement or final judgment that arises out of a claim or suit by
a third party to the extent that such claim or suit is based on strict tort
liability, breach of a warranty provided by Dealer, or the intentional or
negligent acts or omissions of Dealer. Dealer's obligation to indemnify Lucent
will be reduced in proportion to which the settlement or final judgment is
attributable to the strict tort liability of Lucent, breach of a Lucent
warranty, or the intentional or negligent acts or omissions of Lucent, unless
liability for such acts or omissions of Lucent is otherwise excluded in other
sections of this Agreement, or the negligent acts or omissions of any other
third party not under Dealer's direct control. Dealer's obligation to indemnify
Lucent shall be contingent upon: (1) Lucent promptly notifying Dealer in writing
of the existence of any claim or suit that may result in a settlement or
judgment for which Dealer may be obligated to indemnify Lucent; (2) Lucent
giving Dealer full opportunity and authority to assume sole responsibility to
settle and defend any such claim or suit; and (3) Lucent furnishing to Dealer
upon reasonable request all information and assistance that Dealer deems to be
reasonably required to settle or defend such claim or suit. Dealer will also
indemnify Lucent for the full amount of any settlement or final judgment that
arises out of a claim or suit by a third party based on Dealer's establishment
of its relationship with Lucent, whatever the nature of the claim or suit. These
indemnities are in lieu of all other obligations of Dealer, express or implied,
in law or in equity, to indemnify Lucent for claims or suits covered by this
section. Dealer's liability to indemnify Lucent shall in no event exceed
$500,000.
13.2 Unless Lucent's liability is otherwise limited or excluded in
other sections of this Agreement, Lucent will indemnify Dealer for the full
amount of any settlement or final judgment that arises out of a claim or suit by
a third party to the extent that such claim or suit is based on the strict tort
liability of Lucent, breach of a Lucent warranty, or the intentional or
negligent acts or omissions of Lucent. Lucent's obligation to indemnify Dealer
shall be reduced in proportion to which the settlement or final judgment is
attributable to the strict tort liability of Dealer, breach of a Dealer
warranty, or the intentional or negligent acts or omissions of Dealer or any
other third party not under Lucent's direct control. Lucent's obligation to
indemnify Dealer will be contingent upon: (1) Dealer promptly notifying Lucent
in writing of the existence of any claim or suit that may result in a settlement
or final judgment for which Lucent may be obligated to indemnify Dealer; (2)
Dealer giving Lucent full opportunity and authority to assume sole
responsibility to settle or defend any such claim or suit; and (3) Dealer
furnishing to Lucent upon reasonable request all information and assistance
available to Dealer that Lucent deems to be reasonably required to settle or
defend such claim or suit. THIS INDEMNITY IS IN LIEU OF ALL OTHER
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OBLIGATIONS OF LUCENT, EXPRESS OR IMPLIED, IN LAW OR IN EQUITY, TO INDEMNIFY
DEALER FOR CLAIMS OR SUITS COVERED BY THIS SECTION. LUCENT'S LIABILITY TO
INDEMNIFY DEALER SHALL IN NO EVENT EXCEED $500,000.
13.3 The party electing to take responsibility for settling or
defending any claim or suit covered by this Section 13.0 will be responsible for
the attorney's fees and costs incurred by said party to settle or defend such
claim or suit.
14.0 INFRINGEMENT
14.1 Lucent will defend or settle, at its own expense, any action
brought against Dealer or an End User, to the extent that it is based on a claim
that the normal use or sale of any Lucent Products provided under this Agreement
infringe any United States patent, trademark or copyright, that any licensed
materials provided under this Amendment infringe any United States copyright or
violate the trade secret of a third party. Lucent will pay those costs, damages
and attorneys' fees finally awarded against Dealer or an End User in any such
action attributable to any such claim, but such defense, settlements and
payments are conditioned on the following: (i) that Lucent shall be notified
promptly in writing by Dealer or an End User of any such claim; (ii) that Lucent
shall have sole control of the defense of any action on such claim and of all
negotiations for its settlement or compromise; (iii) that Dealer or End User
shall cooperate in a reasonable way to facilitate the settlement or defense of
such claim, and that Dealer or End User has made no statement or taken any
action that might hamper or undermine Lucent's defense or settlement; (iv) that
such claim does not arise from modifications to Lucent Products or licensed
materials not authorized by Lucent or from use or combination of the Lucent
Products with software and/or apparatus or equipment not supplied or specified
by Lucent; (v) that such claim does not arise from adherence to Dealer's or End
User's instructions or the use of items, materials or information of Dealer's or
End User's origin, design or selection; and (vi) that should Lucent Products or
licensed materials become, or in Lucent's opinion, be likely to become, the
subject of such claim of infringement, then Dealer or End User shall permit
Lucent, at Lucent's option and expense, either to: (1) procure for Dealer or End
User the right to continue using the Lucent Products or licensed materials, or
(2) replace or modify the same so that it is not subject to such claim and is
functionally equivalent or (3) upon failure of (1) and (2) above despite the
reasonable efforts of Lucent, remove the infringing Lucent Product or terminate
Dealer's or End User's rights under the license and refund the purchase price or
fee paid less a reasonable allowance for use, damage and obsolescence. In the
event that a claim of infringement arises for which the liability of Lucent is
excepted under (iv) or (v) above, Dealer or End User will defend and save Lucent
harmless to the same extent and subject to the same limitations as apply to
Lucent when Lucent is liable hereunder. This Section 14.0 states the entire
liability of Lucent with respect to infringement by Lucent Products or licensed
materials provided hereunder.
15.0 TERMINATION OF AGREEMENT
15.1 Unless a party gives written notice of its intent not to renew to
the other parties ninety (90) days in advance of the termination date, this
Agreement will automatically renew for an additional term. Any party may
terminate this Agreement without cause on ninety (90) days notice, except that
all parties agree not to terminate this Agreement without cause during the first
six months of the initial term of this Agreement.
15.2 Lucent may terminate this Agreement upon thirty (30) days prior
written notice to Dealer and Distributor if: (i) Dealer markets or sells Lucent
Products outside the Area except as specifically permitted in Section 2.1; (ii)
Dealer fails to limit its marketing efforts to authorized locations or End-Users
as defined in Section 1.3; (iii) Dealer fails to make reasonable commercial
efforts to achieve levels of sales that comply with the Lucent Product forecasts
for the Area submitted pursuant to Section 6.0; (iv) Dealer fails to provide an
acceptable quality of service to End Users; or (v) there occurs any material
change in the management or control of Dealer.
15.3 Except as otherwise provided in this Agreement, either party may
terminate this Agreement upon thirty (30) days prior written notice if the 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.
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15.4 Lucent or Distributor 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) sold or attempted to resell Lucent
Products to any third party other than an End User; (v) appointed or attempted
to appoint any unauthorized agent or unauthorized manufacturer's representatives
for Lucent Products; (vi) purchased from a source other than Distributor, sold
or attempted to resell any unused products manufactured by Lucent that, if
purchased from DDM through Distributor, would be a Lucent Product under this
Agreement; (vii) remotely accessed PBX locations maintained by Lucent directly;
(viii) activated software features without compensation to Lucent when
compensation is due to Lucent; (ix) misrepresented, by statement or by omission,
Dealer's authority to resell under this or any other written agreement with
Lucent that is limited to specific 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 (x) failed to comply with Lucent's
guidelines for the proper use of Lucent's Marks.
15.5 Dealer may terminate this Agreement on twenty-four (24) hours
written notice if Lucent or Distributor 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; (iii) been involved in an assignment for the
benefit of its creditors.
15.6 Notwithstanding such termination rights, each party reserves all
of its legal rights and equitable remedies, including without limitation those
under the Uniform Commercial Code.
15.7 No party shall be liable to any 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, Distributor 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 Distributor's
or Dealer's business.
16.0 EFFECTS OF TERMINATION
Upon termination or expiration of this Agreement, Dealer shall
immediately:
16.1 discontinue any and all use of Marks, including but not limited to
such use in advertising or business material of Dealer, except to identify the
Lucent Products; provided that if Lucent does not repurchase Dealer's remaining
inventory, Dealer may continue using Marks as authorized in this Agreement for
an additional ninety (90) days for the limited purpose of marketing such
inventory to End Users after termination is effective;
16.2 remove and return to Lucent or destroy at Lucent's request, any
and all promotional materials supplied without charge by Lucent except those
necessary for the limited purpose of marketing existing Dealer inventory
pursuant to Section 16.1;
16.3 return all Lucent proprietary Information, Licensed Materials and
Software, except that which Lucent determines is necessary to operate and
maintain previously furnished Lucent Products;
16.4 cease holding itself out, in any manner, as a Lucent authorized
Dealer of the Lucent Products; and
16.5 notify and arrange for all publishers and others (including, but
not limited to, publisher of telephone and business directories) who may
identify, list or publish Dealer's name as a Lucent authorized Dealer of Lucent
Products, to discontinue such listings.
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17.0 SURVIVAL OF OBLIGATIONS
The respective obligations of Dealer and Lucent under this Agreement
that by their nature would continue beyond the termination, cancellation or
expiration of this Agreement, shall survive termination, cancellation or
expiration hereof, such as, by way of example only, the obligations pursuant to
the following Sections: USE OF INFORMATION, LICENSE, TERMINATION OF AGREEMENT,
LIMITATION OF LIABILITY, INDEMNITY and TRADEMARKS.
18.0 FORCE MAJEURE
Except for Dealer's obligation to make timely payments, neither party
shall be held responsible for any delay or failure in performance to the extent
that such delay or failure is caused by fires, embargoes, explosions, labor
disputes, government requirements, civil or military authorities, acts of God,
inability to secure raw materials or transportation facilities, acts or
omissions of carriers or suppliers or any other causes beyond the parties'
control whether or not similar to the foregoing.
19.0 SEVERABILITY
If any section, or clause thereof, in this Agreement is held to be
unenforceable, then the meaning of such section or clause will be construed so
as to render it enforceable, to the extent feasible; and if no reasonable
interpretation would save such section or clause, it will be severed from this
Agreement and the remainder will remain in full force and effect. However, in
the event such section or clause is considered an essential element of this
Agreement by either Lucent or Dealer, the parties shall promptly negotiate a
replacement therefor.
20.0 ASSIGNMENT
Dealer shall not assign any right or interest under this Agreement or
delegate any work or other obligation to be performed or owed by Dealer under
this Agreement without the prior written consent of Lucent, which consent shall
not be unreasonably withheld. Any assignment or delegation by Dealer without
such consent shall be void and ineffective. By the provision of notice thereof
in accordance with this Agreement, Lucent shall have the right to assign this
Agreement and to assign its rights and delegate its obligations and liabilities
under this Agreement, either in whole or in part (an "Assignment"), to any
entity that is, or that was immediately preceding such Assignment, a current
subsidiary, business unit, division or other affiliate of Lucent. The notice of
Assignment shall state the effective date thereof. Upon the effective date and
to the extent of the Assignment, Lucent shall be released and discharged from
all obligations and liabilities under this Agreement. Such Assignment, release
and discharge shall be complete and shall not be altered by the termination of
the affiliation between Lucent and the entity assigned rights or delegated
obligations and liabilities under this Agreement.
21.0 NON-WAIVER
No course of dealing, course of performance or failure of either party
strictly to enforce any term, right or condition of this Agreement shall be
construed as a waiver of any term, right or condition.
22.0 CHOICE OF LAW AND DISPUTES
22.1 The construction, interpretation and performance of this Agreement
shall be governed by the local laws of the State of Delaware.
22.2 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, except as set forth in paragraph 22.6
below.
22.3 If the Dispute cannot be settled by good faith negotiation between
the parties, Lucent and Dealer 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
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paragraphs 22.4 and 22.5 below. The Federal Arbitration Act, 9 U.S.C. Sections 1
to 15, not state law, will govern the arbitrability of all Disputes.
22.4 A single arbitrator who is knowledgeable in the telecommunications
products 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 limit,
expand or otherwise modify the terms of this Agreement.
22.5 The mediation and, if necessary, the arbitration will be conducted
under the then current rules of the alternate dispute resolution (ADR) firm
selected by the parties, or 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 Dealer will each bear its own attorneys' fees associated with
the mediation and, if necessary, the arbitration. Lucent and Dealer will pay all
other costs and expenses of the mediation/arbitration as the rules of the
selected ADR firm provide. The parties and their representatives shall hold the
existence, content and result of the mediation and arbitration in confidence.
22.6 Unless both parties agree otherwise, Disputes relating to Dealer's
compliance with Section 10 of this Agreement (Trademarks) shall be exempt from
the dispute resolution processes described in this Section.
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23.0 NOTICES
All notices under this Agreement shall be in writing and shall be given
in person, by facsimile, by receipted courier or by certified U.S. mail,
addressed to the addresses set forth at the beginning of this Agreement or to
such other address as either party may designate by written notice to the other.
All written notices sent by mail shall be sent first class or better, postage
prepaid. All notices shall be deemed to have been given on the earlier of the
date actually received or the fifth day after mailing.
24.0 ENTIRE AGREEMENT
The terms and conditions contained in this Agreement supersede all
prior oral or 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 Distributor and any of its
affiliates or Dealer 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.
25.0 TERM
This Agreement shall be effective as of March 19, 1999, and shall have
a term of two years beginning on said date.
IN WITNESS WHEREOF the parties have caused this Agreement to be signed by their
duly authorized representatives.
LUCENT TECHNOLOGIES INC. INACOM COMMUNICATIONS, INC.
By: /s/ XXXXXX X. XXXXXXXX By: /s/ XXXX XXXXXXXXX
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx Xxxxxxxxx
Title: District Manager Title: President
Date: March 19, 1999 Date: Xxxxx 00, 0000
XXXX CORPORATION
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: President
Date: March 10, 1999
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APPENDIX: ADDRESSES
A. Marketing Location(s):
XETA CORPORATION NATIONAL SALES OFFICES
MR. XXXXX XXXXX XX. XXXXX XXXXXX
National Account Manager National Account Manager
XETA Corporation XETA Corporation
0000 Xxxxxxx Xxxxx Xxxx, Xxxxx 0 0000 Xxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxx, XX 00000
PH: 000-000-0000 PH: 000-000-0000
FX: 000-000-0000 FX: 000-000-0000
E-mail: xxxxxx@XXXX.xxx E-mail: xxxxxxx@XXXX.xxx
XX. XXXX XXXXX XX. XXXXXX X. XXXXXX
National Account Manager Vice President of Sales and Marketing
XETA Corporation XETA Corporation
000 Xxxx Xxxxxx, Xxxxx 000 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
PH: 000-000-0000 PH: 000-000-0000
FX: 000-000-0000 FX: 000-000-0000
E-mail: xxxxxx@XXXX.xxx E-mail: xxxxxxx@XXXX.xxx
XX. XXXXX XXXXXXX MR. XXX XXXXXX
National Account Manager National Account Sales Engineer
XETA Corporation XETA Corporation
0000 Xxxxx Xxxxxxx Xxxx, Xxxxx 0000 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000 Xxxxxxx, XX 00000
PH: 918-664-8200 PH: 000-000-0000
FX: 000-000-0000 FX: 000-000-0000
E-mail: xxxxxxxx@XXXX.xxx E-mail: xxxxxxx@XXXX.xxx
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XX. XXXXX XXXXX XX. XXXXXXX XXXXXXXX
National Account Manager PBX Project Manager
XETA Corporation XETA Corporation
0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx, 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx 000 Xxxxxxx, XX 00000
Xxxxxxxxx Xxxxxxx, XX 00000 PH: 000-000-0000
PH: 000-000-0000 FX: 000-000-0000
FX: 000-000-0000 E-mail: xxxxxxx@XXXX.xxx
E-mail: xxxxxx@XXXX.xxx
XX. XXXXX XXXXXX XX. XXXX XXXXXXX
National Account Manager National Account Manager
XETA Corporation XETA Corporation
0000 Xxxxx Xxxxxxx Xxxx, Xxxxx 0000 19130 Xxxx Xxxxxx Xxxxxx
Xxxxx, XX 00000 Xxxx, XX 00000
PH: 918-664-8200 PH: 000-000-0000
FX: 000-000-0000 FX: 000-000-0000
E-mail: xxxxxxx@XXXX.xxx E-mail: xxxxxxxx@XXXX.xxx
XX. XXXX XXXXXXXXX
National Account Sales Assistant
XETA Corporation
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
PH: 303-499-8577
FX: 000-000-0000
E-mail: xxxxxx@XXXX.xxx
B. Shipping Location(s):
Inacom Distribution Center
00000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx, Xxxxxxxx 00000
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APPENDIX: AREA
A. Authorized Area for XETA Corporation for:
PRODUCT APPENDIX: DEFINITY(R) ECS & ASSOCIATED ADJUNCTS
PRODUCT APPENDIX: GUESTWORKS(TM) SERVER & ASSOCIATED ADJUNCTS
State County
----- ------
United States The Fifty States of the United States
of America including Washington D.C.,
excluding the Areas defined in Section
1.8 of the Agreement, and the Areas
covered by the Attachment: Existing
Lucent Dealers with Exclusive Primary
Areas of Responsibility.
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PRODUCT APPENDIX: DEFINITY(R) ECS & ASSOCIATED ADJUNCTS
A. Products: DEFINITY(R) ECS Products & Associated Adjuncts and
Accessories as it strictly relates to the Hospitality Industry.
DEFINITY G3vs
DEFINITY G3si
DEFINITY AUDIX(R)
Intuity(TM) AUDIX
6400 Series Voice Terminals
8400 Series Voice Terminals
Basic Call Management Systems
Call Management Systems
Standby Power Systems
Passageway
-Telephony Services
-Direct Connect
B. For the products covered by this Product Appendix, the following is the
End User Software License referred to in Section 9 of the Agreement:
END USER SOFTWARE LICENSE
LIMITED WARRANTY AND LIMITED LIABILITY
COMPATIBILITY. THE SOFTWARE IS NOT WARRANTED FOR NONCOMPATIBLE SYSTEMS.
SOFTWARE. Lucent Technologies warrants that if the Software does not
substantially conform to its specifications, the end-user customer
("You") may return it to the place of purchase within 90 days after the
date of purchase, provided that You have deployed and used the Software
solely in accordance with this License Agreement and the applicable
Lucent Technologies installation instructions. Upon determining that
the returned Software is eligible for warranty coverage, Lucent
Technologies will either replace the Software or, at Lucent
Technologies's option, will offer to refund the License Fee to You upon
receipt from You of all copies of the Software and Documentation. In
the event of a refund, the License shall terminate.
DISCLAIMER OF WARRANTIES. LUCENT TECHNOLOGIES MAKES NO WARRANTY,
REPRESENTATION, OR PROMISE to you NOT EXPRESSLY SET FORTH IN THIS
AGREEMENT. Lucent TECHNOLOGIES DISCLAIMS AND EXCLUDES ANY AND ALL
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. LUCENT TECHNOLOGIES DOES NOT WARRANT THAT THE SOFTWARE OR
DOCUMENTATION WILL SATISFY YOUR REQUIREMENTS, THAT THE SOFTWARE OR
DOCUMENTATION ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE
SOFTWARE WILL BE UNINTERRUPTED. ALSO, LUCENT TECHNOLOGIES DOES NOT
WARRANT THAT THE SOFTWARE WILL PREVENT, AND LUCENT TECHNOLOGIES WILL
NOT BE RESPONSIBLE FOR, UNAUTHORIZED USE (OR CHARGES FOR SUCH USE) OF
COMMON CARRIER TELECOMMUNICATION SERVICES OR FACILITIES ACCESSED
THROUGH OR CONNECTED TO THE SOFTWARE (TOLL FRAUD). Some states do not
allow the exclusion of implied warranties or limitations on how long an
implied warranty lasts, so the above limitation may not apply to You.
This warranty gives You specific legal rights which vary from state to
state.
EXCLUSIVE REMEDY AND LIMITATION OF LIABILITY. EXCEPT FOR BODILY INJURY
PROXIMATELY CAUSED BY LUCENT TECHNOLOGIES' NEGLIGENCE, YOUR EXCLUSIVE
REMEDY AND LUCENT TECHNOLOGIES' ENTIRE LIABILITY ARISING FROM OR
RELATING TO THIS LICENSE AGREEMENT OR TO THE SOFTWARE OR DOCUMENTATION
SHALL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED $10,000.
LUCENT
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TECHNOLOGIES SHALL NOT IN ANY CASE BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF
LUCENT TECHNOLOGIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. LUCENT TECHNOLOGIES IS NOT RESPONSIBLE FOR LOST PROFITS OR
REVENUE OR SAVINGS, LOSS OF USE OF THE SOFTWARE, LOSS OF DATA, COSTS OF
RECREATING LOST DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT OR PROGRAM,
CHARGES FOR COMMON CARRIER TELECOMMUNICATION SERVICES OR FACILITIES
ACCESSED THROUGH OR CONNECTED TO THE SOFTWARE (TOLL FRAUD), OR CLAIMS
BY ANY PERSON OTHER THAN YOU. THESE LIMITATIONS OF LIABILITY SHALL
APPLY NOTWITHSTANDING THE FAILURE OF AN EXCLUSIVE REMEDY. Some states
do not allow the exclusion or limitation of incidental or consequential
damages, so the above limitation or exclusion may not apply to You.
Lucent Technologies grants You a personal, non-transferable and
non-exclusive right to use, in object code form, all software and
related documentation furnished under the Agreement between Lucent
Technologies and [Dealer]. This grant shall be limited to use with the
equipment for which the software was obtained or, on a temporary basis,
on back-up equipment when the original equipment is inoperable. Use of
software on multiple processors is prohibited unless otherwise agreed
to in writing by Lucent Technologies. You agree to use your best
efforts to see that your employees and users of all software licensed
under this Agreement comply with these terms and conditions and You
will refrain from taking any steps, such as reverse assembly or reverse
compilation, to derive a source code equivalent of the software.
You are permitted to make a single archive copy of software. Any copy
must contain the same copyright notice and proprietary marking as the
original software. Use of software on any equipment other than that for
which it was obtained, removal of the software from the United States,
or any other material breach shall automatically terminate this
license.
If the terms of this license differ from the terms of any license
packaged with the software, the terms of the license packaged with the
software shall govern.
C. [For Dealers licensing the Orange Label Flash Card only.] The following
new Section 26 is added to the Agreement with respect to this Product Appendix:
26. SOFTWARE LICENSE, ORANGE LABEL FLASH CARD MEDIUM
A. Lucent grants Dealer a personal, non-transferable and non-exclusive
right to use, in object code form, DEFINITY ECS software ("the
Software") solely for the purpose of providing maintenance service on
DEFINITY ECS PBX systems. Title to and ownership of all Software shall
remain with Lucent. Dealer will refrain from taking any steps, such as
reverse assembly or reverse compilation, to derive a source code
equivalent of the Software or to develop other software. Dealer will
use its best efforts to ensure that its employees and users of the
Software comply with these terms and conditions.
B. Dealer may make a single archive copy of software. Any such copy
must contain the same copyright notice and proprietary markings that
the original Software contains. Use of the Software on any equipment
other than that for which it was obtained, removal of the Software from
the United States, use of the Software for any purpose other than
maintenance of DEFINITY ECS PBX systems or any other material breach of
the software license shall immediately and automatically terminate this
license and will be cause for immediate termination of all Authorized
Dealer Agreements between Dealer and Lucent.
D. [For Dealers licensing the Orange Label Flash Card only]. Section 15.4
of the Agreement is amended by adding the language that is underscored and
printed in bold, as follows:
15.4 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) sold or
attempted to resell Lucent Products to any third party other than an
End User without Lucent's written consent; (v) appointed or
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attempted to appoint any unauthorized agent or unauthorized
manufacturer's representatives for Lucent Products; (vi) sold or
attempted to resell any Lucent Products not previously authorized by
Lucent under this Agreement or that are obtained from a source other
than Lucent; (vii) remotely accessed PBX locations maintained by Lucent
directly; (viii) activated software features without compensation to
Lucent OR VIOLATED THE TERMS OF THE SOFTWARE LICENSE GRANTED BY ADDING
SECTION 26 TO THE AGREEMENT IN CONNECTION WITH A PRODUCT APPENDIX FOR
DEFINITY ECS SYSTEMS; (ix) misrepresented, by statement or by omission,
Dealer's authority to resell under this or any other written agreement
with Lucent that is limited to specific 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 (x)
failed to comply with Lucent's guidelines for the proper use of
Lucent's Marks. Notwithstanding such termination rights, Lucent
reserves all of its legal rights and equitable remedies, including
without limitation those under the Uniform Commercial Code.
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PRODUCT APPENDIX: GUESTWORKS(TM) SERVER & ASSOCIATED ADJUNCTS
A. Products: GuestWorks(TM), and Associated Adjuncts and Accessories
Guestworks Server (All Models)
Intuity Audix Lodging
Limited compatible Definity circuit packs
and telephones, when ordered in conjunction
with a Guestworks Server
B. For the Products covered by this Product Appendix, the following
replaces Section 1.3 of the Agreement:
1.3 "End User" means a third party with a hotel or motel business to
whom Dealer markets or sells Products within the Area for hotel or motel use by
such third party in the ordinary course of its business and not for resale; End
User does not include any office, department, agency, or defense installation of
the United States Government Marketing opportunities for sales of GuestWorks
systems to third parties for use in health care or senior citizens' residence
facilities must be individually reviewed with and approved by Lucent
Technologies to be certain that the system will meet the customer's needs and
that the sale will not expose Lucent Technologies to claims based on the
system's unsuitability for such uses or similar theories.
C. For the products covered by this Product Appendix, the following is
added to the Agreement as Section 2.9:
2.9 Circuit packs and 8400 Series DCP telephones offered under this
Product Appendix are intended for use with GuestWorks systems only. Orders for
DCP telephones beyond those provided in the GuestWorks packaged offers will be
rejected if the number of telephones ordered exceeds 10% of the total telephone
capacity of the system ordered. Orders for circuit packs will be considered on
an exception basis only. Failure to meet the requirements of this subsection
will be grounds for immediate termination of this Product Appendix, and
depending on the circumstances, may lead to termination of the Agreement to
which this is appended.
D. For the products covered by this Product Appendix, the following is the
End User Software License referred to in Section 9 of the Agreement:
END USER SOFTWARE LICENSE
LIMITED WARRANTY AND LIMITED LIABILITY
COMPATIBILITY. THE SOFTWARE IS NOT WARRANTED FOR NONCOMPATIBLE SYSTEMS.
SOFTWARE. Lucent Technologies warrants that if the Software does not
substantially conform to its specifications, the end-user customer
("You") may return it to the place of purchase within 90 days after the
date of purchase, provided that You have deployed and used the Software
solely in accordance with this License Agreement and the applicable
Lucent Technologies installation instructions. Upon determining that
the returned Software is eligible for warranty coverage, Lucent
Technologies will either replace the Software or, at Lucent
Technologies's option, will offer to refund the License Fee to You upon
receipt from You of all copies of the Software and Documentation. In
the event of a refund, the License shall terminate.
DISCLAIMER OF WARRANTIES. LUCENT TECHNOLOGIES MAKES NO WARRANTY,
REPRESENTATION, OR PROMISE TO YOU NOT EXPRESSLY SET FORTH IN THIS
AGREEMENT. LUCENT TECHNOLOGIES DISCLAIMS AND EXCLUDES ANY AND ALL
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
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LUCENT TECHNOLOGIES DOES NOT WARRANT THAT THE SOFTWARE OR DOCUMENTATION
WILL SATISFY YOUR REQUIREMENTS, THAT THE SOFTWARE OR DOCUMENTATION ARE
WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE SOFTWARE WILL BE
UNINTERRUPTED. ALSO, LUCENT TECHNOLOGIES DOES NOT WARRANT THAT THE
SOFTWARE WILL PREVENT, AND LUCENT TECHNOLOGIES WILL NOT BE RESPONSIBLE
FOR, UNAUTHORIZED USE (OR CHARGES FOR SUCH USE) OF COMMON CARRIER
TELECOMMUNICATION SERVICES OR FACILITIES ACCESSED THROUGH OR CONNECTED
TO THE SOFTWARE (TOLL FRAUD). Some states do not allow the exclusion of
implied warranties or limitations on how long an implied warranty
lasts, so the above limitation may not apply to You. This warranty
gives You specific legal rights which vary from state to state.
EXCLUSIVE REMEDY AND LIMITATION OF LIABILITY. EXCEPT FOR BODILY INJURY
PROXIMATELY CAUSED BY LUCENT TECHNOLOGIES'S NEGLIGENCE, YOUR EXCLUSIVE
REMEDY AND LUCENT TECHNOLOGIES'S ENTIRE LIABILITY ARISING FROM OR
RELATING TO THIS LICENSE AGREEMENT OR TO THE SOFTWARE OR DOCUMENTATION
SHALL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED $10,000.
LUCENT TECHNOLOGIES SHALL NOT IN ANY CASE BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF
LUCENT TECHNOLOGIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. LUCENT TECHNOLOGIES IS NOT RESPONSIBLE FOR LOST PROFITS OR
REVENUE OR SAVINGS, LOSS OF USE OF THE SOFTWARE, LOSS OF DATA, COSTS OF
RECREATING LOST DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT OR PROGRAM,
CHARGES FOR COMMON CARRIER TELECOMMUNICATION SERVICES OR FACILITIES
ACCESSED THROUGH OR CONNECTED TO THE SOFTWARE (TOLL FRAUD), OR CLAIMS
BY ANY PERSON OTHER THAN YOU. THESE LIMITATIONS OF LIABILITY SHALL
APPLY NOTWITHSTANDING THE FAILURE OF AN EXCLUSIVE REMEDY. Some states
do not allow the exclusion or limitation of incidental or consequential
damages, so the above limitation or exclusion may not apply to You.
Lucent Technologies grants You a personal, non-transferable and
non-exclusive right to use, in object code form, all software and
related documentation furnished under the Agreement between Lucent
Technologies and [Dealer]. This grant shall be limited to use with the
equipment for which the software was obtained or, on a temporary basis,
on back-up equipment when the original equipment is inoperable. Use of
software on multiple processors is prohibited unless otherwise agreed
to in writing by Lucent Technologies. You agree to use your best
efforts to see that your employees and users of all software licensed
under this Agreement comply with these terms and conditions and You
will refrain from taking any steps, such as reverse assembly or reverse
compilation, to derive a source code equivalent of the software.
You are permitted to make a single archive copy of software. Any copy
must contain the same copyright notice and proprietary marking as the
original software. Use of software on any equipment other than that for
which it was obtained, removal of the software from the United States,
or any other material breach shall automatically terminate this
license.
If the terms of this license differ from the terms of any license
packaged with the software, the terms of the license packaged with the
software shall govern.
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E. [For Dealers licensing the Orange Label Flash Card only.] The following
new Section 26 is added to the Agreement with respect to this Product Appendix:
26. SOFTWARE LICENSE, ORANGE LABEL FLASH CARD MEDIUM
A. Lucent grants Dealer a personal, non-transferable and non-exclusive
right to use, in object code form, Guestworks software ("the Software")
solely for the purpose of providing maintenance service on Guestworks
PBX systems. Title to and ownership of all Software shall remain with
Lucent. Dealer will refrain from taking any steps, such as reverse
assembly or reverse compilation, to derive a source code equivalent of
the Software or to develop other software. Dealer will use its best
efforts to ensure that its employees and users of the Software comply
with these terms and conditions.
B. Dealer may make a single archive copy of software. Any such copy
must contain the same copyright notice and proprietary markings that
the original Software contains. Use of the Software on any equipment
other than that for which it was obtained, removal of the Software from
the United States, use of the Software for any purpose other than
maintenance of Guestworks PBX systems or any other material breach of
the software license shall immediately and automatically terminate this
license and will be cause for immediate termination of all Authorized
Dealer Agreements between Dealer and Lucent.
F. [For Dealers licensing the Orange Label Flash Card only]. Section 15.4
of the Agreement is amended by adding the language that is underscored and
printed in bold, as follows:
15.4 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) sold or
attempted to resell Lucent Products to any third party other
than an End User without Lucent's written consent; (v)
appointed or attempted to appoint any unauthorized agent or
unauthorized manufacturer's representatives for Lucent
Products; (vi) sold or attempted to resell any Lucent Products
not previously authorized by Lucent under this Agreement or
that are obtained from a source other than Lucent; (vii)
remotely accessed PBX locations maintained by Lucent directly;
(viii) activated software features without compensation to
Lucent OR VIOLATED THE TERMS OF THE SOFTWARE LICENSE GRANTED
BY ADDING SECTION 26 TO THE AGREEMENT IN CONNECTION WITH A
PRODUCT APPENDIX FOR GUESTWORKS; (ix) misrepresented, by
statement or by omission, Dealer's authority to resell under
this or any other written agreement with Lucent that is
limited to specific 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 (x) failed to comply with Lucent's
guidelines for the proper use of Lucent's Marks.
Notwithstanding such termination rights, Lucent reserves all
of its legal rights and equitable remedies, including without
limitation those under the Uniform Commercial Code.
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ATTACHMENT: EXISTING LUCENT DEALERS WITH EXCLUSIVE PRIMARY AREAS OF
RESPONSIBILITY
CINCINNATI XXXX TELEPHONE COMPANY:
In Ohio, the counties of Butler, Clermont, Xxxxxxxx, Xxxxxx, and a portion of
Xxxxx. In Kentucky, the counties of Boone, Campbell, Xxxxx, Xxxxxx, and portions
of Xxxxxxxx and Xxxxxxxxx. In Indiana, the counties of Dearborn, Franklin,
Switzerland and portions of Ohio (county) and Xxxxxx.
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