Exhibit 10(el)
DISTRIBUTION AND MARKETING AGREEMENT
Distribution and Marketing Agreement ("Agreement"), dated as of April 21, 2003
(the "Effective Date"), between Artera Group, Inc., a Delaware corporation
("Artera"), and Avaya Inc., a Delaware corporation ("Avaya").
WHEREAS, Artera is engaged in the development, distribution and operation of
traffic and information optimization software and services ("Artera Turbo");
WHEREAS, Avaya is engaged in the distribution and marketing of communications
services to business enterprises and others, and Artera's technologies can add
value to the services marketed by Avaya; and
WHEREAS, Avaya desires to obtain from Artera the right to distribute and market
Artera Turbo products and services, and Artera is willing to grant such right,
all under terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants contained herein, as
well as other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
Article 1. DEFINITIONS
As used herein, the terms described below have the following meanings.
1.1 "Affiliate" shall mean any legal entity that, directly or indirectly, is
controlled by, in control of, or under common control with the legal entity
with reference to which the term "Affiliate" is used.
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1.2 "Artera Business License" shall mean an Artera Enterprise License or an
Artera Small Business License.
1.3 "Artera Enterprise License" shall mean a multi-seat Artera License granted
to an Enterprise to allow the use of the Licensed Products (including the
User Software) by End Users within such Enterprise.
1.4 "Artera License" shall mean the license to use the Licensed Products
granted by Artera to allow the licensee to use the Licensed Products on its
computers. "Artera License" includes Artera Business Licenses and Artera
Residential Licenses.
1.5 "Artera Residential License" shall mean an Artera License that is not an
Artera Business License.
1.6 "Artera Small Business License" shall mean a multi-seat Artera License
granted to a Small Business to allow the use of the Licensed Products
(including the User Software) by End Users within such Small Business.
1.7 "Business" shall mean an Enterprise or a Small Business.
1.8 "Business Subscriber" shall mean a Subscriber pursuant to an Artera
Business License.
1.9 "End User" shall mean an individual user of the Licensed Products pursuant
to an Artera License. In the case of an Artera Business License, the End
User is the individual user of the Licensed Products rather than the
Business Subscriber. In the case of an Artera Residential License, the End
User is also the Residential Subscriber.
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1.10 "Enterprise" shall mean a business or organizational subscribing entity
that (a) has and in its operations uses more than 250 End User personal
computers and (b) does not sell, distribute or market Licensed Products to
others.
1.11 "Enterprise Subscriber" shall mean a Subscriber pursuant to an Artera
Enterprise License.
1.12 "Finder Commission" shall mean the commission payable by Artera to Avaya on
certain Units licensed (including upgrades), as described in Section 3.2
hereof.
1.13 "Finder License" shall have the meaning defined in Section 2.4.
1.14 "Government Entity" shall mean a Subscriber that is a Federal, state,
provincial, local or other governmental entity, unit or organization, or a
department, division or segment thereof.
1.15 "Know-how", in general, will have its usual and accepted meaning, that is,
among other things, all factual knowledge and information not capable of
precise, separate description but which, in an accumulated form, after
being acquired as the result of trial and error, gives to the one acquiring
it an ability to produce and market something which one otherwise would not
have known how to produce and market with the same accuracy or precision
necessary for commercial success.
1.16 "License" shall mean all licenses and rights granted by Artera to Avaya in
this Agreement.
1.17 "Licensed Patents" shall mean all those patents and pending patents
relating to the Licensed Products that are owned by or licensed to Artera,
together with those patents
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issued under patent applications filed or to be filed relating to the
Licensed Products, including any continuations, continuations-in-part,
divisions, extensions, reissues, re-examinations or renewals of any of the
foregoing. Such Licensed Patents pending as of the date hereof are set
forth on Schedule 1.17 hereto.
1.18 "Licensed Products" shall mean the software embodying or employing all or
part of the Licensed Patents or Licensed Technology, licensed to
Subscribers as a subscription product or service, including but not limited
to "Artera Turbo" and all updates, enhancements and derivatives thereof.
"Licensed Products" includes all software products and services developed
and commercially implemented by Artera during the term of this Agreement
that incorporate the Licensed Patents or the Licensed Technology or any
modifications or derivatives thereof or are otherwise based upon Licensed
Products existing as of the Effective Date.
1.19 "Licensed Technology" shall mean the unpatented technology relating to the
Licensed Products and owned by or licensed to Artera.
1.20 "Reseller" shall mean a distributor or subdistributor of Licensed Products.
1.21 "Residential Subscriber" shall mean a Subscriber pursuant to an Artera
Residential License.
1.22 "Royalty Licenses" shall have the meaning defined in Section 2.4.
1.23 "Small Business" shall mean a business or organizational entity that is not
an Enterprise.
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1.24 "Small Business Subscriber" shall mean a Subscriber pursuant to an Artera
Small Business License.
1.25 "Subscriber" shall mean a licensee of Licensed Products pursuant to an
Artera License, whether an Artera Residential License or an Artera Business
License. In the case of an Artera Business License, the "Subscriber" is the
Business entity licensee and not the individual End User within the
Business entity.
1.26 "Subscriber License Fee" shall mean the monthly license and/or service fees
(including upgrade fees) paid by a Subscriber for the use of a Licensed
Product.
1.27 "Technical Information" shall mean technical, design, engineering, and
manufacturing information and data pertaining to the design, manufacture,
commercial production, distribution and marketing of Licensed Products in
the form of designs, prints, plans, material lists, drawings,
specifications, instructions, reports, records, manuals, other written
materials, computer programs and software and other forms or media relating
thereto.
1.28 "Territory" shall mean the United States, Canada and Mexico, including any
use of the Licensed Products outside such three countries by an Enterprise
Subscriber that is headquartered in one of such three countries.
1.29 "Unit" shall mean a one-month period of a Subscriber's license and use of a
Licensed Product.
1.30 "Unit Royalties" shall mean the royalty payable by Avaya to Artera on each
Unit licensed as described in Section 3.1 hereof.
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1.31 "User Software" shall mean the Licensed Product software resident or
installed on a Subscriber's or End User's personal computer(s), or resident
or installed at a Subscriber's gateways, pathways or other on-site
facilities.
Article 2. GRANT OF LICENSE
2.1 License. Artera hereby grants to Avaya during the term of this Agreement
(a) an exclusive license to distribute the Licensed Products to Enterprise
Subscribers in the Territory that are not Government Entities (not
including connection to the Artera Turbo data center); (b) subject to
Section 2.3 hereof, a non-exclusive license to market the Licensed Products
to Enterprise Subscribers in the Territory that are Government Entities and
to Subscribers in the Territory that are not Enterprise Subscribers (not
including connection to the Artera Turbo data center for Business
Subscribers); and (c) a non-exclusive, royalty-free license to use and
reproduce the Licensed Products internally for purposes of development,
evaluation, testing and "Beta" testing and to reproduce demonstration or
evaluation copies of the Licensed Products for the purposes of marketing
and promoting the Licensed Products and in training customers in their use.
The License is intended to grant to Avaya all rights necessary for Avaya to
distribute and market the Licensed Products as provided in this Agreement,
directly or through one or more levels of Resellers, including the right to
make copies of the User Software for Subscribers, and to reproduce, copy
and distribute Artera's Licensed Product documentation, descriptions and
promotional materials in connection with such distribution and marketing.
The License conveys no right to modify the Licensed Products, to prepare
derivative works of or modifications to the Licensed Products or to sell or
copy the Licensed Products for any purpose other than for delivery to
Subscribers
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and Resellers as contemplated by this Agreement; provided, however, that it
shall not contravene this sentence for Avaya to bundle its own technology
with Licensed Products through Artera's application program interface
("API"). No agreement between Avaya and an Enterprise Subscriber may be
inconsistent with the rights granted to Avaya under this Agreement. To the
extent that Artera makes API specifications available to Avaya, Artera
grants to Avaya the right to use such API for the purpose of creating
interfaces between Avaya software products and the Licensed Products.
During the term of this Agreement, Artera will provide reasonable technical
support and access to Artera development engineers for the purpose of
answering questions from Avaya on such use of the API at no additional
charge to Avaya.
2.2 Internal Use License. Artera hereby grants to Avaya and its Affiliates a
fully-paid, non-exclusive, royalty-free license to use the Licensed
Products for Avaya's internal business purposes during the term of this
Agreement without the payment of service fees or other charges to Artera or
any other party. This license does not include connection to the Artera
Turbo data center.
2.3 Sublicensing by Avaya. The rights granted to Avaya hereunder may be
sublicensed, assigned, conveyed or otherwise transferred by Avaya only to
the extent necessary for Avaya to distribute the Licensed Products to
Subscribers as described in this Agreement, including such sublicenses or
agreements between Avaya and its Resellers, or sublicenses or agreements
between such Resellers and other Resellers (as subdistributors), in each
case not inconsistent with this Agreement and not imposing any obligations
on Artera that are not undertaken by Artera in this Agreement, as are
reasonably necessary to allow such direct and indirect Resellers to
distribute the Licensed Products to such Subscribers.
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2.4 Certain Agreements of Artera. All licenses and other agreements with
Subscribers that are not Enterprise Subscribers, for the use of the
Licensed Products, and with Resellers with respect to such use by such
Subscribers, shall be Artera Licenses entered into solely between Artera
and the Subscriber or Reseller. Avaya shall not be a party to or have any
rights or obligations under such Artera Licenses. Artera shall have sole
discretion regarding whether to enter into such Artera Licenses.
Notwithstanding the foregoing, if the license or agreement pertaining to
the Licensed Products is with a Major ISP (as defined below) acting as
Reseller to a Subscriber (whether or not an Enterprise Subscriber), such
license or agreement with such Major ISP shall be a license or agreement of
Avaya rather than a license or agreement of Artera. For purposes of this
Section 2.4, a "Major ISP" is an Internet service provider that (a) has
over 250,000 customers and (b) is not a majority-owned affiliate of a
regional ▇▇▇▇ operating company (RBOC), an incumbent local exchange carrier
(ILEC), a competitive local exchange carrier (CLEC) or a rural local
exchange carrier (RLEC). Licenses or agreements of Avaya under the rules of
this Section 2.4 shall be referred to in this Agreement as "Royalty
Licenses." Licenses or agreements of Artera under the rules of this Section
2.4 shall be referred to in this Agreement as "Finder Licenses."
2.5 Patent, Copyright and Trademark Usage and Notices. Avaya shall have the
right to use and copy all marks, trademarks, service marks, images and
copyrights of Artera pertaining to the Licensed Products in connection with
distributing and marketing the Licensed Products as described in this
Agreement, and may grant this right to its direct and indirect Resellers
for that limited purpose. Each copy of the User Software and all
documentation and marketing materials distributed, marketed or used by or
through
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Avaya shall be marked with a suitable legend identifying Artera as the
owner of the Licensed Patents and Licensed Technology, and as the owner and
developer of the Licensed Product, with the appropriate patent, copyright
or trademark notice, as the case may be, and Avaya shall not remove any
such notice from any User Software or other or other materials provided to
it by Artera; provided, however, that, in distributing the Licensed
Products to Subscribers, Avaya, its direct or indirect Resellers and its
Enterprise Subscribers may reference their own names or brands if in
conjunction with the words "Powered by Artera Turbo."
2.6 Source Code Escrow. Artera shall establish a source code escrow pertaining
to the Licensed Products pursuant to an escrow agreement in a form
substantially as set forth in Schedule 2.6.
2.7 Acceptance. Avaya hereby (a) accepts the rights granted to it by Artera
under this Agreement; and (b) acknowledges that the rights granted to it by
Artera hereunder are limited to the distribution and marketing of Licensed
Products in the Territory as described in this Agreement and are subject to
the other limitations set forth in this Agreement.
2.8 Renegotiation Right. Avaya may, by written notice to Artera given at least
three months after the Effective Date, demand that Artera negotiate with
Avaya in good faith regarding possible amendments to all or any part of
this Agreement, including the term hereof. Any such amendments to which the
parties agree shall take effect immediately upon such agreement, including
immediate (but not retroactive) effect with respect to then existing
Subscribers. In the event that such renegotiation is demanded but the
parties do not reach
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a written agreement for such amendment(s) within 60 days of the notice of
renegotiation, Avaya may by 30 days' written notice to Artera, terminate
this Agreement.
Article 3. ROYALTIES, commissions AND fees
3.1 Unit Royalties. For each Unit initially licensed by or through Avaya that
is, directly or via Reseller(s), covered by a Royalty License, Avaya shall
pay to Artera a Unit Royalty equal to fifty percent (50%) of the greater of
(a) the actual retail price of the Unit (including the actual retail price
of upgrades thereof) to the applicable Subscriber for the month of the
license to it (net of (i) discounts; (ii) purchase, sale, use, VAT or other
taxes; (iii) customs duties, fees, levies and commissions, excluding the
Unit Royalties to be paid to Artera; and (iv) credit given a Reseller or
Subscriber for returns or non-repairable defects); or (b) in the case of
Units but not upgrades, the price of the Unit on the Artera Turbo minimum
price list set forth in Schedule 3.1. Payments to Artera under this Section
3.1 shall be made as described in Section 3.4 hereof. A Subscriber covered
by a Royalty License that discontinues its use of the Licensed Products but
then recommences such use within one year of the discontinuation shall be
considered, following recommencement, to have been initially licensed by or
through Avaya. Nothing in this Section 3.1 or in Schedule 3.1 shall in any
way limit Avaya's right to determine on its own the actual retail prices it
charges for the Licensed Products.
3.2 Finder Commissions. For each Unit that is initially licensed during the
term of this Agreement and for a period of one year after its expiration or
termination, as a result of an introduction or marketing effort by Avaya,
to a Subscriber and that is, directly or via Reseller(s), covered by a
Finder License, Artera shall pay to Avaya a Finder Commission
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equal to twenty percent (20%) of Artera's revenues on the license (or
upgrade) of such Unit to such Subscriber for the month of the license to it
(net of (i) discounts; (ii) purchase, sale, use, VAT or other taxes; (iii)
customs duties, fees, levies and commissions, excluding the Finder
Commission to be paid to Avaya; and (iv) credit given a Reseller or
Subscriber for returns or non-repairable defects). Payments to Avaya under
this Section 3.2 shall be made as described in Section 3.4 hereof, and the
obligation to make payments will continue beyond the termination or
expiration of this Agreement for so long as the Subscriber continues to
purchase a Finder License or comparable license or service. A Subscriber
covered by a Finder License that discontinues its use of the Licensed
Products but then recommences such use within one year of the
discontinuation shall be considered, following recommencement, to have been
initially licensed as a result of an introduction or marketing effort by
Avaya. Notwithstanding the foregoing provisions of this Section 3.2, no
Finder Commission shall be due or payable by Artera to Avaya if the
applicable Subscriber initially licenses the Licensed Product more than 90
days after Avaya introduced such Subscriber to Artera as a licensing
prospect or brought such Subscriber's identity to Artera's attention for
such purpose, if Artera sought in good faith to achieve such a license
within the 90-day period.
3.3 Avaya Prices. Avaya shall provide Artera with written descriptions of any
standard prices or pricing formulas Avaya may have for Subscribers or for
Resellers in connection with licenses to Subscribers, and shall give Artera
prior written notice of any changes or additions to such prices or pricing
formulas.
3.4 Collections and Payments. Subscriber License Fees shall be collected, and
Unit Royalties and Finder Commissions shall be paid, in accordance with
Schedule 3.4.
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Schedule 3.4 may be amended in writing by the parties from time to time as
reasonably necessary to reflect the actual or then desired billing and
collection methods of the parties, either generally or with respect to one
or more specific Subscribers or one or more specific Resellers.
Article 4. DISCLOSURE AND DELIVERABLES
4.1 Disclosure. The parties shall disclose to each other and Artera shall
disclose to Avaya's Resellers such appropriate Technical Information as may
be reasonably required to accomplish the purposes of this Agreement. It is
agreed, however, that neither party shall be obligated to disclose
information, the disclosure of which has been restricted by a third party.
All disclosed Technical Information that is "Confidential Information" as
defined in Article 5 below shall be kept confidential by the receiving
party in accordance with the provisions of such Article 5 and will remain
the property of the disclosing party.
4.2 Deliverables. Artera agrees that the Licensed Products shall be available
for marketing and licensing by Avaya and its Resellers and completely
functional to Subscribers, in accordance with the deliverable dates set
forth on Schedule 4.2 hereto (the "Deliverables").
Article 5. CONFIDENTIALITY
5.1 Definitions. Each party possesses and will continue to possess confidential
information relating to its business and technology that has substantial
commercial and scientific value in the business in which it is engaged
("Confidential Information"). Subject to Section 5.4, Confidential
Information includes, but is not limited to: Deliverables,
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Technical Information, trade secrets, processes, formulas, data, Know-how,
discoveries, developments, designs, improvements, inventions, techniques,
marketing plans, strategies, forecasts, new products, software
documentation, unpublished financial statements, budgets, projections,
licenses, prices, costs, customer lists, supplier lists and any other
material marked "Confidential Information", "Proprietary Information" or in
some other reasonable manner to indicate it is confidential. Any
Confidential Information disclosed between the parties hereto orally or
visually, in order to be subject to this Agreement, shall be so identified
to the receiving party at the time of disclosure and confirmed in a written
summary appropriately marked as herein provided within ten days after such
oral or visual disclosure.
5.2 Treatment. Each party shall, during the term of this Agreement and for a
period of five years thereafter, hold in confidence and not disclose to
third parties, except as specifically permitted under this Section 5.2 and
Section 5.4 below, all Confidential Information of the other party
disclosed directly or indirectly to it by the other party. With respect to
Confidential Information that constitutes a trade secret, as defined by the
Uniform Trade Secrets Protection Act, a party's obligations of
confidentiality under this Section 5.2 shall not expire after five years,
but shall terminate only if and when such information otherwise becomes
generally known to others who can benefit from its use or otherwise no
longer qualifies as a trade secret. Each party shall take the following
minimum safeguards with respect to the Confidential Information of the
other party:
(a) Only those of its employees who need to receive the other party's
Confidential Information in order to carry out the purposes of this
Agreement shall have access to such information and such access shall
be limited to only so much of such
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information as is necessary for the particular employee to properly
perform his or her duties;
(b) All documents, drawings, writings and other embodiments that contain
Confidential Information of the other party shall be maintained in a
prudent manner comparable to the degree of security such party uses to
protect its own proprietary information;
(c) All documents, drawings, writings and other embodiments of information
the security or safekeeping of which are subject to governmental
regulations shall be kept in accordance with such regulations;
(d) All employees and contractors who have access to Confidential
Information of the other party shall be under obligation to it (i) to
hold in confidence and not disclose all Confidential Information made
available to them in the course of their employment or services; (ii)
to use such Confidential Information only in the course of performing
their duties; and (iii) to assign to their employer or the party
retaining them all inventions or improvements relating to such
entity's business and conceived while in such entity's employ or
retained by such entity, unless such assignment is prohibited by
applicable law; and
(e) Avaya may disclose Artera's Confidential Information to Avaya's
Resellers as necessary to carry out the purposes of this Agreement;
provided, however, that Avaya shall cause each such Reseller to
execute an agreement containing non-disclosure obligations comparable
to this Article 5.
Notwithstanding the foregoing, a party receiving Confidential Information
of the other party may disclose to its subcontractors and material and
component suppliers so much of
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such Confidential Information as is necessary to enable such party to
perform its duties and obligations related to the accomplishment of the
purposes of this Agreement; provided that such subcontractors and suppliers
are obligated to such party in writing (x) to hold in confidence and not
disclose such information; and (y) not to use such information except as
authorized by such party. For purposes of this Article 5, delivery by Avaya
to a Subscriber, whether directly or through a Reseller, of the User
Software shall not constitute a disclosure by Avaya of Confidential
Information of Artera. In no event shall the party receiving Confidential
Information of the other party disassemble, reverse engineer, re-engineer,
redesign, decrypt, decipher, reconstruct, re-orient, modify or alter any
Confidential Information of the disclosing party or any circuit design,
algorithm, logic or program code in any of the disclosing party's products,
models or prototypes that contain Confidential Information or attempt any
of the foregoing without first obtaining written consent of the disclosing
party in each instance. Notwithstanding the foregoing, each party
understands that the other party develops telecommunications and data
networking systems, software, components and/or other similar items.
Therefore, it is expressly understood and agreed that access to
Confidential Information hereunder shall not preclude a party whose
representative has received such Confidential Information for the purposes
of this Agreement from either the independent development (demonstrated by
documentation) of products or generic requirements containing or embodying
similar ideas, concepts and techniques, or the working on of future
projects for the receiving party which relate to similar subject matters,
provided that the receiving party does not make reference to the
Confidential Information and does not intentionally
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copy the Confidential Information, as long as the restrictions of this
Agreement are in effect for purposes other than the purposes stated above.
5.3 Return. All documents, drawings, writings and other embodiments of a
party's Confidential Information, as well as those produced, created or
derived from the disclosing party's Confidential Information that
incorporate the disclosing party's Confidential Information, and all copies
thereof, shall be returned promptly to it by the other party upon the
termination of this Agreement, provided that the parties shall continue to
be bound by the provisions of Section 5.2 above.
5.4 Exclusions. Confidential Information shall not include information that:
(a) Was at the time of disclosure in the public domain through no fault of
the party receiving it;
(b) Becomes part of the public domain after disclosure to the party
receiving it through no fault of such party;
(c) Was in the possession of the party receiving it (as evidenced by
written records) at the time of disclosure and was not acquired
directly or indirectly from the other party, or a third party, as the
case may be, under a continuing obligation of confidence of which the
party receiving it was aware;
(d) Was received by the party receiving it (as evidenced by written
records) after the time of disclosure hereunder from a third party who
did not require it to be held in confidence and who did not acquire it
directly or indirectly from the other party under a continuing
obligation of confidence of which the party receiving it was aware;
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(e) Is required by law, governmental regulation, court order or the rules
of any relevant securities exchange or listing organization to be
disclosed, but only to the extent of such required disclosure;
provided, that a party required to so disclose Confidential
Information shall use best efforts to notify the other party of such
potential disclosure as soon as practicable so that such party may
seek a protective order or other remedies to maintain in confidence
any such Confidential Information;
(f) Was developed independently by the receiving party and without the use
of any Confidential Information received from the disclosing party
under this Agreement; or
(g) Was or is disclosed by the party owning it to third parties without
restrictions on use or disclosure comparable to those contained
herein.
Article 6. MARKETING AND SUPPORT OBLIGATIONS
6.1 Avaya's Marketing Obligations. During the term of this Agreement, Avaya
shall use commercially reasonable efforts to distribute the Licensed
Products in the Territory to Enterprises and, where through Major ISP's, to
other potential Subscribers. Avaya shall have the right, but not the
obligation, to market the Licensed Products to potential Subscribers other
than Enterprises (where not through Major ISP's), subject to the
limitations set forth in this Agreement. If Avaya is not using commercially
reasonable efforts as described above, then Artera's sole remedy will be to
make Avaya's authorization non-exclusive if Avaya's failure continues 45
days after receiving written notification of the failure to use
commercially reasonable efforts (for avoidance of doubt,
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there will be no payment obligation from Avaya to Artera arising out of
Avaya's failure to perform the obligations contained in this Section 6.1).
6.2 Avaya's Support Obligations. During the term of this Agreement and after
termination to the extent Section 8.3(a) is applicable, Avaya shall be
responsible for ensuring that Level 1 Support is provided and available to
all Subscribers covered, directly or via Reseller(s), by Royalty Licenses,
in accordance with Schedule 6.2. With respect to such Subscribers, Avaya
may fulfill this obligation via contracts with Resellers that require such
Resellers to provide such Level 1 Support to their Subscribers.
6.3 Artera's Marketing Obligations. Artera shall provide for Avaya such
marketing assistance as may be reasonably requested by Avaya from time to
time in connection with Subscribers covered, directly or via Reseller(s),
by Royalty Licenses and Avaya's marketing and promotional efforts with
respect to distribution of the Licensed Products, including but not limited
to providing marketing and advertising materials; identifying Avaya on
Artera's Web site and marketing materials as an authorized licensee and
seller of the Licensed Products; providing personnel for demonstrations and
marketing presentations to Avaya Resellers; providing to actual and
prospective Subscribers and Resellers such information or assistance as may
be reasonably requested in connection with due diligence; and providing
market intelligence, including advice on how best to position the Licensed
Products as against its competitors. This Section 6.3 requires Artera to
incur only reasonable costs and expenses in connection with marketing and
contract negotiations.
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6.4 Artera's Support Obligations. During the term or this Agreement and
following its termination or expiration for so long as Avaya continues to
pay Unit Royalties, Artera shall be responsible for providing ▇▇▇▇▇ ▇
Support and Level 3 Support to all Subscribers covered, directly or via
Reseller(s), by Royalty Licenses, which ▇▇▇▇▇ ▇ Support and Level 3 Support
shall be available at no cost or charge on a reasonable basis to Avaya and
its Resellers and Royalty License Subscribers in accordance with Schedule
6.4. ▇▇▇▇▇ ▇ Support and Level 3 Support shall be available 24 hours per
day, seven days per week and may be performed via online methods and/or
telephone, at no cost to Avaya or its Resellers or Royalty License
Subscribers. Artera shall provide all updates, enhancements, improvements
("Upgrades") or modifications to the Licensed Products to Avaya and its
Resellers via online downloads, and shall provide to Avaya a master CD for
each such Upgrade and modification for copying and distribution by Avaya as
contemplated by this Agreement.
6.5 Other Support and Training by Artera. Artera shall provide Avaya with
reasonable engineering, maintenance and sales support and training with
respect to the Licensed Products at no additional charge. Training may be
provided by Artera by regularly scheduled classroom sessions at its
offices.
Article 7. TERM
The term of this Agreement shall begin on the Effective Date and, unless
extended or earlier terminated by the written agreement of the parties or
pursuant to Article 8 below, shall expire one year thereafter.
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Article 8. TERMINATION
8.1 Breach. In the event of a material breach of this Agreement, if the
defaulting party fails to cure the breach five days (in the case of a
material breach of Section 6.2 or 6.4 hereof), or within 30 days (in the
case of any other material breach), after delivery of written notice
thereof from the non-defaulting party specifying the nature of the breach
and the corrective action to be taken, then the non-defaulting party may
terminate this Agreement forthwith by delivering its written notice to the
defaulting party that this Agreement is terminated.
8.2 Effects of Termination. Upon termination of this Agreement for any reason,
Avaya immediately shall cease marketing and distribution of Licensed
Products and shall cause its Resellers to do the same. Notwithstanding this
provision, the termination of this Agreement shall not prejudice or
otherwise affect the rights or liabilities of the parties with respect to
Licensed Products already licensed under this Agreement prior to
termination. Licenses to Licensed Products granted prior to termination of
this Agreement shall survive subject to the continuing obligation to comply
with the terms and restrictions of the applicable license.
8.3 Subscriber License Fees and Unit Royalties and Support Upon Termination. If
this Agreement is terminated by expiration of the Term under Article 7 or
by Avaya under Section 2.8 or 8.1, Avaya shall be entitled to continue to
(a) collect Subscriber License Fees with respect to the specific Royalty
Licenses in effect on the date of termination, for the respective durations
of such Royalty Licenses, subject to Avaya's obligation to pay Unit
Royalties to Artera with respect to the applicable Subscribers and provide
Level 1
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Support to such Subscribers in accordance with Section 6.2; and (b) receive
Finder Commissions from Artera with respect to the specific Finder Licenses
in effect in accordance with Section 3.2, for the respective durations of
such Finder Licenses. For purposes of this Section 8.3, the rules in
Sections 3.1 and 3.2 regarding Subscribers that discontinue but then,
within one year, recommence use of the Licensed Products shall apply.
8.4 Return of Confidential Information. Within 30 days after termination of
this Agreement for any reason, each party shall return to the other party
all of the Confidential Information, other secret information, patent
applications and Know-how received pursuant to this Agreement, together
with all other tangible property loaned to the returning party by the other
party for the implementation of this Agreement; provided, however, that
Avaya may retain such Confidential Information as is necessary for it to
continue to provide Level 1 Support to Subscribers under Section 8.3(a)
hereof.
8.5 Survival of Certain Terms. Notwithstanding the termination of this
Agreement under Article 7 or this Article 8, the terms and conditions of
Sections 3.2 and 3.4, Article 5, Sections 6.4, 8.2, 8.3 and 8.4, Article 9,
Article 12 and Article 18 shall survive termination of this Agreement and
shall continue to be applicable and govern the parties with respect to the
subject matter thereof.
Article 9. INSPECTION OF BOOKS AND RECORDS
Upon request of either party hereto, and upon no less than ten days' notice, the
other party hereto shall make available for review and inspection by the
requesting party such books and records as are reasonably required to
demonstrate compliance with the Unit Royalty and Finder
21
Commission payment obligations of this Agreement; provided, however, that such
review and inspection may be made only once per calendar year (plus once within
90 days of any termination of this Agreement) and may pertain only to the then
current and immediately preceding calendar years. The costs of the examination
will be borne by the party requesting the examination, and the results of such
examination will be considered Confidential Information regardless of the
absence of any proprietary marking.
Article 10. FORCE MAJEURE
In the event of enforced delay in the performance by either party of obligations
under this Agreement due to unforeseeable causes beyond its reasonable control
and without its fault or negligence, including but not limited to acts of God,
acts of government, acts of the other party not caused or contributed to by the
party seeking relief under this Article 10, fires, floods, strikes, freight
embargoes, unusually severe weather, or delays of subcontractors due to such
causes (an "Event of Force Majeure"), the time for performance of such
obligations shall be extended for the period of the enforced delay; provided
that the party seeking the benefit of the provisions of this Article 10 shall,
within ten days after the beginning of any such enforced delay, have first given
the other party written notice of the need for the extension for the period of
enforced delay (including an explanation of the cause) and shall use all
reasonable endeavors to minimize the effects of the Event of Force Majeure.
Article 11. APPLICABLE LAW
The terms and conditions of this Agreement and the performance thereof shall be
interpreted in accordance with and governed by the laws of the State of
Connecticut and the United States of America.
22
Article 12. DISPUTE RESOLUTION
12.1 Scope. To the extent permitted by law, all questions concerning the
validity, operation and interpretation of this Agreement and the
performance of the obligations imposed upon the parties hereunder shall be
resolved by mediation and binding arbitration, as set forth in Section 12.3
below, and shall be governed by the substantive laws of the State of
Connecticut, as applicable, without regard to any rules of conflict of
laws.
12.2 Waiver of Trial by Jury. Each party hereto waives, to the fullest extent
permitted by applicable law, the right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
12.3 Procedures. If any controversy, dispute, or claim related to this Agreement
("Claim") arises between the parties, they shall each attempt, in good
faith, to resolve such dispute. If they are unable to resolve such Claim to
their mutual satisfaction within 30 days after written notice from one to
the other of the existence of such Claim, then, prior to the initiation of
any court action or arbitration, the Claim shall first be submitted to
mediation under the auspices of the American Arbitration Association
("AAA"). Mediation shall be conducted in New York, New York not more than
30 days after initiation by a party, unless another location and/or longer
time is agreed to in writing by the parties. If such Claim is not resolved
by mediation, the mediator shall issue a report setting forth each party's
final demand or offer at mediation, and, prior to initiating any court
action, the Claim shall be submitted to binding arbitration in accordance
with the Commercial Arbitration Rules of the AAA (the "Rules") then in
effect, as modified by this Section 12.3. Arbitration shall take place in
New York, New York, unless otherwise agreed to in
23
writing by the parties. Unless the parties are able to agree upon an
arbitrator or arbitrators within 15 days of the issuance of a notice of
demand for arbitration by any of the parties, the arbitration shall be
conducted by three arbitrators selected by the AAA in accordance with the
Rules; provided, however, that any Claim that meets the criteria under the
AAA Rules for Expedited Arbitration shall be so conducted, and any claim
for an amount less than $250,000.00 shall be conducted by a single
arbitrator. The arbitrator(s) shall have the power to subpoena witnesses
and documents, and the parties shall be entitled to conduct reasonable
discovery, including depositions and requests for production of documents,
in accordance with the Federal Rules of Civil Procedure, under applicable
local rules of practice. The arbitrator(s) shall determine the extent and
type of permissible discovery and deadline for completing discovery. The
arbitrator(s) shall render a decision and award in writing setting forth in
reasonable detail the findings of fact and conclusions of law of the
arbitrator(s), and stating the amount, if any, and other relief, if any, to
which the prevailing party is entitled. The decision and award of the
arbitrator(s) shall be rendered as soon as practicable following the
commencement of proceedings and shall be final, binding and conclusive. All
conduct and statements, whether oral or written, made in the course of the
mediation by any of the parties, their agents, employees, experts and
attorneys, and by the mediator and any associated staff in connection with
such mediation, are confidential, privileged and inadmissible for any
purpose, including impeachment, in any litigation or other proceeding
between the parties, unless such evidence is otherwise admissible or
discoverable. The prevailing party shall be entitled to have the decision
and award of the arbitrator(s) entered in any court of competent
jurisdiction, and to have the decision and award enforced to the fullest
24
extent permitted by law. The parties hereby consent to the jurisdiction of
the arbitrator(s), and to the jurisdiction of any local, state or federal
court available to any of the parties for the purpose of enforcing the
decision and award of the arbitrator(s). The parties agree that service of
process in such arbitration may be made on a party in the manner described
for notice in Section 16 of this Agreement.
12.4 Injunctive Relief. Either party may, at its option and at any time during
the dispute resolution process, seek injunctive relief in any court of
competent jurisdiction (including but not limited to preliminary injunctive
relief). The parties acknowledge that each of them has a vital interest in
enjoining any violation of confidentiality obligations because damages
would not adequately compensate a party for any infringements of that
party's intellectual property rights.
Article 13. ANNOUNCEMENTS & PUBLICITY; INDEPENDENT CONTRACTORS
Except for any disclosure that may be required by law (including filings with
the Securities and Exchange Commission), or as necessary to perform their
obligations or exercise their rights under this Agreement, neither party may use
the other's name or disclose the terms of this Agreement without the prior
written consent of the other, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, upon the execution of this Agreement, each party
(and its Affiliates) may issue a press release reporting the execution of this
Agreement and its general subject matter if the other party shall have approved
the content thereof, which approval shall not be unreasonably withheld. Each
party to this Agreement is an independent contractor and neither shall be
considered the partner, employer, agent or representative of the other.
25
Article 14. SEVERABILITY
If any part of this Agreement for any reason shall be declared invalid or
unenforceable, such decision shall not affect the validity or enforceability of
any remaining portion, which shall remain in full force and effect; provided,
however, that in the event a part of this Agreement is declared invalid and the
invalidity or enforceability of such part has the effect of materially altering
the obligations of any party under this Agreement, the parties shall, promptly
upon such declaration being made, negotiate in good faith to amend this
Agreement so as to put such party in a position substantially similar to the
position such party was in prior to such declaration.
Article 15. RIGHTS OF ASSIGNMENT; SUCCESSORS AND ASSIGNS
Neither party shall have any right to assign this Agreement or any of their
respective rights or obligations hereunder to any third party except with the
prior written consent of the other party, which consent shall not be
unreasonably withheld, or by Avaya pursuant to Section 2.2 of this Agreement.
The provisions of this Agreement shall inure to the benefit of and be binding
upon any successor or assignee to which assignment has been consented to
pursuant to this Article 15.
Article 16. NOTICES
Any notices under this Agreement shall be in writing and shall be deemed
delivered on the date of delivery if delivered by personal service or facsimile
(in the case of facsimile, if confirmed by first class mail) or recognized
commercial courier service with postage or charges prepaid, and on the third day
following dispatch if sent only by registered or certified mail with postage or
charges prepaid. Unless subsequently notified in writing in accordance with this
Article 16 by the other party, any notice or communication hereunder shall be
addressed:
26
If to Artera, as follows:
Artera Group, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Artera Group, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
If to Avaya, as follows:
Avaya, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Vice President -- Purchasing
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Avaya, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Vice President Law - Global Commercial Matters
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Article 17. TAXES
As between Artera and Avaya, Avaya shall be solely responsible for any sales,
use, occupational or privilege taxes, duties, fees or other similar charges
imposed by any governmental authority in connection with the sale, lease,
distribution, marketing, licensing or other disposition by Avaya of Licensed
Products or the License granted hereunder. Any other taxes, including income
taxes based on Unit Royalties, Artera income and other payments to Artera, shall
be the responsibility of Artera.
27
Article 18. INDEMNIFICATION BY ARTERA
Artera shall indemnify, hold harmless and defend Avaya, its Affiliates, and each
of their officers, directors, employees, agents, successors and assigns from and
against any and all claims, demands, losses, damages, costs and expenses
(including but not limited to Avaya's attorney fees and costs of defense and the
amount of any settlement by Avaya of any suit, claim or proceeding) arising out
of or in any way related to the use or operation of the Licensed Products by any
Enterprise Subscriber of Avaya or by any Enterprise Subscriber of an Avaya
Reseller.
Article 19. MAINTENANCE OF LICENSED PATENTS; INFRINGEMENTS
19.1 Enforcement of Patents. Throughout the term of this Agreement, Artera shall
maintain the Licensed Patents in force in the United States, Canada and
Mexico. For Licensed Patents that are patents pending, Artera shall use
best efforts to cause the associated patents to be issued. Artera shall
promptly pay all costs of any and all continuations, continuations-in-part,
divisions, extensions, re-issues, examinations or renewals of the Licensed
Patents, including, without limitation, the costs and expenses of
attorneys, experts or other professionals engaged in connection with any of
the foregoing.
19.2 Infringement Indemnity. Artera shall indemnify, hold harmless and defend
Avaya, its Affiliates, and each of their officers, directors, employees,
agents, successors and assigns and Subscribers who license the Licensed
Products from Avaya either directly or indirectly through Resellers, from
and against any suit, damage, claim or demand, and any loss, cost or
expense suffered as a result thereof (including reasonable attorneys'
fees), based on actual or alleged infringement by the Licensed Products,
Licensed Patents, Know-how, Licensed Technology, Technical Information or
any other
28
information or Deliverable made available by Artera to Avaya (collectively,
the "Indemnity Assets") of any patent, trademark, copyright or other
intellectual property right of any third party, provided that Avaya (a)
promptly notifies Artera of such suit, claim or demand and (b) provides
Artera with such assistance as Artera may reasonably request for the
defense or settlement of such suit, claim or demand. Notwithstanding the
foregoing, Artera shall have no liability to defend or pay damages or costs
to Avaya with respect to any claim of infringement that is based upon or
arises out of a modification to the Indemnity Assets by Avaya or any third
party without Artera's prior written consent, or Avaya's use of the
Indemnity Assets for any purpose other than the distribution, marketing and
support and internal use of Licensed Products in accordance with this
Agreement.
Article 20. REPRESENTATIONS AND WARRANTIES
20.1 Artera Representations and Warranties. Artera represents and warrants to
Avaya that (a) it has the right, power and authority to enter into this
Agreement and to undertake the obligations to Avaya described herein; (b)
the entering into of this Agreement by it and the undertaking of the
obligations to Avaya described herein will not breach or violate any
agreement or judicial or governmental order to which Artera is subject; (c)
to the best of Artera's knowledge and belief the Licensed Patents are
valid; (d) neither the Licensed Patents and the Licensed Technology nor the
Licensed Products infringe any other patent issued prior to the date
hereof, or any other third party right or claimed right known to Artera;
(e) the Licensed Products will conform to and operate in accordance with
the applicable specifications provided by Artera to Avaya or the Subscriber
in all material respects; (f) the media provided by Artera on which
Licensed Products are stored will be
29
free of defects in material or workmanship; and (g) any services performed
by Artera under this Agreement will be performed in a professional and
workmanlike manner in accordance with industry standards.
20.2 Avaya Representations and Warranties. Avaya represents and warrants to
Artera that (a) it has the right, power and authority to enter into this
Agreement and to undertake the obligations to Artera described herein; and
(b) the entering into of this Agreement by it and the undertaking of the
obligations to Artera described herein will not breach or violate any
agreement or judicial or governmental order to which Avaya is subject.
Article 21. DISCLAIMER
Except as specifically set forth in this Agreement or in the Artera Licenses,
Artera hereby disclaims any express or implied warranty of the accuracy,
reliability, technological or commercial value, comprehensiveness or
merchantability of the Licensed Patents or the Licensed Products, or their
suitability or fitness for any purpose whatsoever. Artera disclaims all other
warranties of whatever nature, express or implied. Except as otherwise set forth
in this Agreement, and in the case of fraud by Artera or its Affiliates, willful
misconduct by Artera or its Affiliates, personal injury or death or damage to
tangible property caused by the Licensed Products, Artera disclaims all
liability for any loss or damage resulting, directly or indirectly, from the use
of the Licensed Patents or the Licensed Products, other than those arising from
claims of infringement of intellectual property rights of third parties as
described in this Agreement. This disclaimer embraces special, incidental,
punitive or consequential damages and damages for interruption of use or loss or
corruption of data.
30
Article 22. SCOPE OF AGREEMENT
This Agreement constitutes the entire agreement between the parties with respect
to the subject matter hereof and supersedes all prior oral or written agreements
or understandings of the parties with regard to such subject matter. No
interpretation, change, termination or waiver of any provision hereof shall be
binding upon a party unless in writing and executed by the other party. No
modification, waiver, termination, recession, discharge or cancellation of any
right or claim under this Agreement shall affect the right of any party hereto
to enforce any other claim or right hereunder.
IN WITNESS WHEREOF, Avaya and Artera have executed this Agreement as of the date
first written above.
AVAYA INC. ARTERA GROUP, INC.
By: /s/ ▇▇▇ ▇'▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------- ---------------------------
▇▇▇ ▇'▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Group Vice President - Global Services Chairman & President
31
SCHEDULE 1.17
ARTERA TURBO PATENTS
1. Pending (U.S.): System And Method For Increasing the Effective Bandwidth of
a Communications Network (filed June 4, 2002; U.S. Application Ser. No.
10/164,034; Attorney Reference No. 20275-03).
2. Pending (U.S.): System and Method for Reducing the Time to Deliver
Information from a Communications Network to a User (filed June 4, 2002;
U.S. Application Ser. No. 10/164,261; Attorney Reference No. 20275-04).
3. Pending (U.S.): System and Method for Modifying a Data Stream Using Element
Parsing (filed June 4, 2002; U.S. Application Ser. No. 10/164,296; Attorney
Reference No. 20275-05).
4. Pending (P.C.T.): System And Method For Increasing the Effective Bandwidth
of a Communications Network (filed June 4, 2002; PCT Application No.
PCT/US02/17926; Attorney Reference No. 20275-06).
5. Pending (P.C.T.): System and Method for Reducing the Time to Deliver
Information from a Communications Network to a User (filed June 4, 2002;
PCT Application No. PCT/US02/17933; Attorney Reference No. 20275-07).
6. Pending (P.C.T.): System and Method for Modifying a Data Stream Using
Element Parsing (filed June 4, 2002; PCT Application No. PCT/US02/17932;
Attorney Reference No. 20275-08).
32
SCHEDULE 2.6
SOURCE CODE ESCROW AGREEMENT
The parties shall negotiate in good faith for, and use best efforts to agree in
writing within 90 days after the Effective Date on, a source code escrow
agreement pertaining to the Licensed Products with a mutually acceptable third
party escrow agent.
The parties intend that the agreement shall provide for the release of deposited
materials in the event of any of the following:
1. Artera's uncured material breach of any of its support obligations under
this Agreement or the applicable Artera License(s); or
2. Artera's discontinuation of support for the Licensed Products under the
License for any reason other than Avaya's or the Subscriber's uncured
material breach of its observance of the applicable License restrictions;
or
3. The institution of bankruptcy, receivership, insolvency, reorganization or
other similar proceedings by or against Artera under the Federal Bankruptcy
Code, if such proceedings have not been dismissed or discharged within one
hundred twenty (120) calendar days after they are instituted; the
insolvency or making of an assignment for the benefit of creditors or the
admittance of any involuntary debts as they mature by Artera; or the taking
of any action by the Board of Directors of Artera in furtherance of any of
the foregoing.
The parties intend that the escrow agreement shall provide that deposited
materials released to Avaya will be licensed to Avaya for Avaya's limited use in
continuing to maintain and support the Licensed Products for Subscribers to whom
Licensed Products have been licensed in accordance with this Agreement.
The parties intend that the escrow agreement shall provide for the inclusion in
the deposited materials of the following:
1. Source code for the Licensed Products in human-readable and
machine-readable form ("Source Code"); and
2. All proprietary ancillary materials in human-readable or machine-readable
form that would be necessary or desirable for a programmer reasonably
skilled in the support and maintenance of software similar to the Licensed
Products to understand, compile and modify the Source Code; and
3. Proprietary maintenance and support tools, utilities, diagnostic programs,
and supporting programs used or utilized by Artera internally in the
support or maintenance of the Licensed Products (but only to the extent
that Artera has the right to include such items in the deposited materials
and license such items to Avaya as described herein); and
33
4. A complete list of third party software, including versions, incorporated
in the Licensed Products and current contact information for such vendors'
technical support.
34
SCHEDULE 3.1
ARTERA TURBO MINIMUM PRICES
(for use solely in calculating Unit Royalties
under Section 3.1 of this Agreement)
--------------------------------------------------------------------------------
ENTERPRISE SUBSCRIBERS
--------------------------------------------------------------------------------
Licensed Product Subscriber License Fee (monthly)
--------------------------------------------------------------------------------
Artera Turbo Desktop $2.00 per End User
--------------------------------------------------------------------------------
Artera Turbo Road Warrior $6.00 per End User
--------------------------------------------------------------------------------
Artera Turbo Gateway $0
--------------------------------------------------------------------------------
Artera Turbo Pathway $0
--------------------------------------------------------------------------------
Artera Turbo Micro Data Center $0
--------------------------------------------------------------------------------
Artera Turbo Host $0
--------------------------------------------------------------------------------
Artera Turbo Customer Relations
Management (CRM) system $0.50 per End User
--------------------------------------------------------------------------------
Artera Turbo Configurator $0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
BUSINESS SUBSCRIBERS OTHER THAN ENTERPRISE SUBSCRIBERS
--------------------------------------------------------------------------------
Licensed Product Subscriber License Fee (monthly)
--------------------------------------------------------------------------------
Artera Turbo Desktop $2.00 per End User
--------------------------------------------------------------------------------
Artera Turbo Road Warrior $6.00 per End User
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
RESIDENTIAL SUBSCRIBERS
--------------------------------------------------------------------------------
Licensed Product Subscriber License Fee (monthly)
--------------------------------------------------------------------------------
Artera Turbo Desktop $5.00
--------------------------------------------------------------------------------
35
SCHEDULE 3.4
COLLECTION AND PAYMENT PROCEDURES
The following billing and collection procedures shall apply:
1. For Royalty Licenses: Avaya shall pay Artera the monthly Unit Royalties due
under this Agreement, on or prior to the end of the calendar month
following the month in which Avaya has received payment from the applicable
Subscriber or Reseller, where applicable, for the monthly fees to which the
Unit Royalties relate. The amount of each payment will be based upon the
amount actually received by Avaya from the Subscriber or Reseller. Avaya
will make payment to Artera in the currency received by Avaya, and such
payment will be net of all currency fees and bank wire fees. The amount
thereof shall be based on the number and categories of Subscribers and the
types of Licensed Products licensed, as described in this Agreement.
2. For Finder Licenses: The Subscriber shall pay its Subscriber License Fees
to Artera or the associated Reseller (if applicable) on a monthly basis
through charge to a credit card account. Subscriber License Fees collected
by Resellers, net of any commissions due to them, shall be paid over to
Artera. Artera shall pay Avaya the Finder Commission applicable to
Subscriber License Fees (or net amounts from Resellers relating thereto)
that Artera receives. Payment shall be made to Avaya within 30 days after
the end of the calendar month in which Artera receives the applicable
Subscriber License Fee (or net amount from the Reseller relating thereto).
3. General: Sales, use and similar taxes on Subscriber License Fees shall be
treated separately from the Subscriber License Fees themselves, and shall
be paid to governmental authorities by the appropriate party or parties.
36
SCHEDULE 4.2
DELIVERABLES
The parties shall negotiate in good faith for, and use best efforts to agree in
writing within 30 days after the Effective Date on, a set of Deliverables,
including reasonable due dates for delivery of such Deliverables by Artera to
Avaya.
37
SCHEDULE 6.2
LEVEL 1 SUPPORT
The purpose of Level 1 Support is to assist the Subscriber (including its End
Users) in the basic installation and usage of Artera Turbo. This can include
answering some general questions to help the Subscriber understand what Artera
Turbo is, and how it provides a benefit to them. While these questions may be
more "marketing" in nature, they will allow the Subscriber to have a better
overall experience with Artera Turbo and its support services.
Level 1 Support is responsible for assisting the Subscriber with the items
listed below. It is presumed that this list will be refined as experience is
gained and the product evolves over time.
1. Establishing an Intranet or Internet connection (e.g., via Windows Dial-Up
Networking).
2. Launching a Web browser and surfing to various Web sites on the Internet or
within an Intranet.
3. Answering basic questions about the system configuration needed for running
Artera Turbo (e.g., Windows version, memory, hard disk space) as documented
on Artera's Web site.
4. Assisting the Subscriber in downloading Artera Turbo.
5. Running Artera Turbo's setup program and installing it on End User's PCs.
6. Launching/running Artera Turbo.
7. Answering basic questions about navigating within Artera Turbo's user
interface.
8. Answering basic questions about showing the Subscriber how to know if
Artera Turbo is working. This includes pointing out the Network View,
Activity View and SpeedBar.
9. Diagnosing that the End User's browser is actually forwarding its requests
to Artera Turbo. This is accomplished by reviewing the Activity View and
the browser's proxy settings.
10. Assisting an Subscriber who is using a propriety dialer (non-Dial-up
Networking) such as Juno or NetZero.
11. Assisting an End User who is using a browser other than Internet Explorer.
This will require telling the End User how to manually set the browser's
proxy settings.
12. Verifying if the Subscriber has an Artera Turbo Data Center connection
online.
13. Assisting the Subscriber in how to uninstall Artera Turbo.
14. Assisting the Subscriber in opening additional ports in Artera Turbo's
Firewall.
38
15. Assisting the Subscriber in adding sites into the Site Blocking list.
16. Assisting the Subscriber in adding sites into the Ad Blocking list.
17. Helping Subscribers to understand how Ad Blocking removes ads and replaces
them with "place holder" graphics. This can result in what appears to be
"missing" elements on the page. The Subscriber can be informed of how to
turn off Ad Blocking if they do not like this behavior (understanding that
this will reduce the speed benefits of Artera Turbo).
18. Helping Subscribers to understand how to change the Image Quality within
Artera Turbo. This includes explaining how to refresh the page once quality
has been set to "Best Quality". The Subscriber should be informed of how to
revert back to "Best Speed" image quality setting. The Subscriber should
understand that if they do not revert back to Best Speed, this will reduce
the speed benefits of Artera Turbo.
19. Helping Subscribers to understand what Artera Turbo's Firewall is and how
to disable it if they desire. The Subscriber should be told that they
should not run the Artera Turbo Firewall with any other firewall. The
Subscriber should be helped to understand the ramifications of disabling
Artera Turbo's Firewall.
20. Telling the Subscriber how to get to the Artera Turbo Web site.
21. Explaining to the Subscriber what a cache is, and how to adjust its
settings within Artera Turbo.
22. Explaining to the End User what settings in their browser are changed when
Artera Turbo is running. This includes the change to the proxy settings,
the number of requests that the browser will issue at one time and the
disablement of the browser's cache. Importantly, the End User should be
told that when Artera Turbo is not running, or is uninstalled, these
settings in the browser are changed back to their original values.
23. Answering questions about obtaining (i.e., downloading) Artera Turbo
product updates and installing them.
39
SCHEDULE 6.4
▇▇▇▇▇ ▇ & ▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ Support is to assist the Subscriber (including its End
Users) with the Artera-specific configuration settings of a more technical
nature. Level 2 Support assumes that the Subscriber has a functioning Intranet
or Internet connection and can surf to various Web sites when Artera Turbo is
not running.
Level 2 Support is responsible for assisting the Subscriber with the items
listed below.
1. Establishing a connection to the Artera Turbo Data Center.
2. Resolving Artera Turbo abnormal termination conditions ("abends") or severe
errors.
3. Handling situations where web pages display inaccurately when Artera Turbo
is running (as opposed to viewing the same web page without Artera Turbo
running). This should not include questions regarding the normal changes
that occur when compression and ad blocking are enabled.
4. Assisting the Subscriber in using Support Mode and taking "traces" of
activities to help diagnose a problem. The Subscriber will be informed of
how to deliver the traces and logs to Artera Turbo Level 2 Support.
5. Advising Avaya and its Resellers regarding their assistance of Subscribers
in diagnosing and resolving problems with Artera Turbo, including an option
for Artera, in its sole discretion, upon request by Avaya or its Resellers,
to have direct contact with the Subscriber in furtherance of such diagnosis
and resolution.
The maximum response time for Level 2 Support is one hour, defined as time from
reporting of trouble by Level 1 personnel to either 1) the arrival of an on-site
Artera technician or 2) telephonic or e-mail confirmation that a remote Artera
technician has commenced work on the trouble request.
A Level 2 Support technician shall have no more than 2 hours to resolve the
issue prior to escalation to ▇▇▇▇▇ ▇.
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇ engineering) is the ability to provide support for
troubles where they cannot be resolved by Level 1 or Level 2 resources and is
responsible for:
o Software Patches
o Bug fixes
o Software updates
Level 3 resources are expected to respond to escalation from Level 2 within 2
hours. Level 3 Support is tasked with working the problem, whether remotely or
on-site at the Subscriber's premise, until the problem is resolved. Artera must
alert Avaya by telephone or e-mail for each and every trouble ticket that is
escalated to Level 3.
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