Exhibit 10(a)
AVAYA INC.
RESELLER MASTER TERMS AND CONDITIONS
AGREEMENT NO.: AVNERA1 060601
This Reseller Agreement ("Agreement") is made effective as of May 31,
2002 ("Effective Date") by and between Avaya Inc. ("Avaya") a Delaware
corporation with offices at ▇▇▇ ▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and
Farmstead Telephone Group, Inc., a Delaware corporation with offices located
at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Reseller").
NOW THEREFORE, in consideration of the mutual promises herein set
forth and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
The following terms shall have the meanings specified below:
1.1 "Affiliate" means, with respect to any party, any person or
entity that is under common control with, controls, or is controlled by,
that party.
1.2 "Agreement" means this Reseller Agreement and all Product Group
Attachments, which are incorporated by reference herein.
1.3 "Distributor" means a wholesale distributor that Avaya has
contracted with to provide outsourced fulfillment of Avaya Managed Product
under this Agreement and that is named in Appendix 1: Distributor.
1.4 "Confidential Information" means all information furnished under
or in contemplation of the Agreement, which is marked with a restrictive
notice or otherwise designated as proprietary, or which the receiving party
knows or should know is being disclosed on a confidential basis; including
without limitation, this Agreement and it's terms and conditions, all trade
secrets, and price discount, rebate lists and schedules.
1.5 "End-User" means a third party that purchases Products for use
by such third party and not for resale, sublease, or sublicense.
1.6 "Effective Date" means the date of this Agreement as stated
above.
1.7 "Licensed Materials" means the object code computer programs
furnished Avaya and intended for use in or provided for use with Products
and also includes the information in the Related Documentation furnished to
Reseller for use therewith. Unless otherwise specified, no source code
version of software will be included in Licensed Materials.
1.8 "Licensed Trademarks" means those certain Avaya designated
trademarks, insignia and symbols which are associated with the Products, and
owned by Avaya.
1.9 "Permission to Connect" means any necessary approval by the duly
authorized governing authorities for use of a Product or Product Component
in the Territory. The term includes but is not limited to "type
acceptance", "type approval", "prior connection inspection", "homologation"
or any other similar process, which would provide authorization to connect a
Product or Product Component to the public telecommunications network and/or
to sell a Product in the Territory.
1.10 "Product(s)" means those products and/or services which Reseller
has been authorized to resell under the Agreement and listed in an Appendix
to a Product Group Attachment. The authorized products may be amended and
supplemented by Avaya from time to time in accordance with the provisions of
the applicable Product Group Attachment.
1.11 "Product Component" means an item or part of equipment
identified by an Avaya equipment code.
1.12 "Product Group Attachment" means the attachments to this
Agreement.
1.13 "Related Documentation" means all materials in printed, written
or electronic form used to describe the use of Products or Product
Components, excluding marketing materials.
1.14 "Reseller" means the party named above as the Reseller and any
successor or assign thereof agreed to by Avaya.
1.15 "Services" are those installation and professional services
generally associated with the Products furnished by Avaya to End-Users, when
ordered in connection with Products marketed by Reseller.
1.16 "Territory" means the fifty (50) states of the United States of
America and the District of Columbia or such other geographic area specified
in the applicable Product Group Attachment.
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1.17 "Toll Fraud" means the unauthorized use of telecommunications
services or facilities accessed through or connected to Products.
1.18 "Unused Product" means a Product or Product Component originally
manufactured by Avaya (or an entity controlled by, controlling or under
common control with Avaya), never used, frequently still in original
packaging with original documentation, but which does not carry an Avaya
factory warranty because of an improper acquisition of the Product or
Product Component from a non-Avaya authorized source. Purchase and/or sale
of Unused Product is a violation of this Agreement.
2. TERM OF AGREEMENT
2.1 This Agreement shall commence upon the Effective Date for a
period of one (1) year and shall automatically renew year to year on the
anniversary of the Effective Date unless a party gives written notice of its
intent not to renew to the other party 60 days in advance of the anniversary
of the Effective Date or unless the Agreement is otherwise terminated as
hereinafter provided.
3. APPOINTMENT
3.1 Subject to the terms and conditions herein, Avaya appoints
Reseller as an non-exclusive reseller to purchase Products from Avaya
through Distributor and resell Products to End-Users in the Territory.
Reseller shall have no right to authorize others to resell or market Avaya
Products and any such authorization or attempted authorization shall be void
and without effect. Except as specifically authorized in writing by Avaya,
Reseller is not authorized to employ sales agents (other than an employee of
Reseller located at an authorized Reseller marketing location) or other
independent contractors to market Avaya Products.
3.2 Unless otherwise expressly stated elsewhere in this Agreement,
the relationship of the parties under the Agreement shall be, and at all
times shall remain, one of independent contractors, and not that of
franchisor and franchisee, joint ventures, or principal and agent, and no
fiduciary relationship exists between the parties. Neither party shall have
any authority to assume or create obligations on the other's behalf, and
neither party shall take any action that has the effect of creating the
appearance of its having such authority.
3.3 Avaya expressly reserves the right to engage directly, or
contract with others, to market, sell and/or service the Products in the
Territory.
3.4 Reseller accepts the appointment described herein and
acknowledges that no payment of any fee is required as a condition of such
appointment.
4. RESPONSIBILITIES OF RESELLER
4.1 Performance of Obligations: Reseller shall perform all of its
obligations under this Agreement. Reseller shall comply with all of its
obligations under this Agreement or the Product Group Attachment, including,
but not limited to, those relating to any of the following: (a) service, (b)
installation, (c) warranties, (d) training, (e) insurance and, (f) reporting
and (g) dealings with authorized Avaya Distributor. Reseller agrees to
provide annual audited financial statements and quarterly internal financial
statements to Avaya, upon request. Reseller shall conduct business in its
own name and use commercially reasonable efforts to promote, market and
expand the selling of the Products within the Territory. Reseller shall: (a)
conduct its business in a manner that reflects favorably on the Products and
on the good name, goodwill and reputation of Avaya; (b) avoid deception,
misleading or unethical practices; and (c) use best efforts to promote,
market, and further the interest of Avaya, its name and Products. Reseller
represents and warrants to Avaya that at no time will Reseller substitute
competitive products where Avaya is specified by an End-User
4.2 Training: Reseller shall retain sales and service personnel
sufficiently trained to perform its obligations under the Agreement,
including but not limited to a knowledge of the industry, the Products and
the servicing of the Products. Reseller shall participate in sales training
set forth in the Product Group Attachment, including annual sales training
updates or refresher courses with options to satisfactorily pass Avaya's
written examination in lieu of such training. Reseller shall ensure that
Reseller's employees or representatives engaged in marketing the Products
are qualified and competent to do so, are knowledgeable of the
specifications, features and advantages of the Products and are capable of
demonstrating the use and capabilities of the Products and their
applications to End-Users, obtain relevant training and conduct such
marketing activities in a professional manner. If applicable, Reseller
shall meet any individual certification requirements to sell the Product(s).
Training will be provided at Avaya's then current rates, terms and
conditions.
4.3 Sales Targets: Unless different or additional requirements are
set forth in the Product Group Attachment, Reseller shall work with Avaya to
establish annual sales targets for the Products, and meet with Avaya on at
least a quarterly basis to discuss its ability to meet such annual targets.
Reseller shall provide data reasonably requested by Avaya on the overall
marketplace, market potentials and other information related to the
Products. Annual commitments are submitted for forecasting and goal setting
purposes only, and do not create an obligation of Reseller to purchase any
minimum dollar volume of Products.
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4.4 Promotional Materials: Reseller shall use and distribute only
Avaya approved and provided promotional materials (e.g., advertising, sales
literature and brochures) for Products.
4.5 End-User Technical Support: Reseller shall provide technical
support and training to End-User in the effective use of the Products.
4.6 End-User Warranty: Reseller shall not grant any End-User a
warranty greater than the warranty granted by Avaya, and any such grant
shall be Reseller's own responsibility, and shall not be binding upon Avaya.
Reseller shall, either contractually or before delivery of Products to its
End-Users, advise them of the limited scope of Avaya's warranties and
limitations of liability.
4.7 Notice to Avaya: Reseller shall promptly inform Avaya of any
facts or opinions likely to be relevant in relation to marketing the
Products including, without limitation, all suspected Product defects or
safety problems and End-User complaints.
4.8 Compliance with Laws: (a) Reseller shall not directly or
indirectly pay, offer, promise or give or authorize to pay, offer or give
money or anything of value to any employee or official of a government or
department thereof, political party or candidate for political office or to
any employees or officials of public international organizations, or to any
other person while being aware of or having a belief that such money or item
of value will be passed on to one of the above, to influence any act or
decision by such person or by any governmental body for the purpose of
obtaining, retaining or directing business or to otherwise obtain an
improper advantage. Reseller will not undertake any action that may cause
Avaya to be in breach of the rules and regulations of the U.S. Foreign
Corrupt Practices Act or of any similar legislation of any other country.
(b) Reseller furthermore shall comply with all applicable laws and
regulations of the Territory and the United States, including (among others)
the anti-boycott laws and laws pertaining to data protection. If at any
time after the effective date hereof, the Agreement or the performance of
its obligations by Reseller or Avaya is no longer in compliance with any
federal, state or local law or regulation, the Agreement shall be
appropriately amended by the parties so as to be in compliance with those
laws or regulations or terminated by either party. Reseller shall keep Avaya
informed of any applicable laws or regulations of the Territory or any
political subdivision or agency thereof, as well as any amendments thereto,
whether proposed or adopted, which may affect the rights and obligations of
the parties, or the promotion, sales, service or maintenance of the
Products.
4.9 Insurance and Bonds: Reseller shall maintain, during the term of
the Agreement, all insurance and bonds required by any applicable law and
the Product Group Attachments including, but not limited to, worker's
compensation insurance, employer's liability insurance, environmental
impairment insurance, pollution liability insurance, automobile liability
insurance and commercial general liability insurance. Upon Avaya's request,
Reseller shall provide Avaya with certificates of such insurance coverage.
4.10 Reporting: Reseller shall maintain an accurate and complete
record of sales and licenses to End-Users, by name, installation address,
Product and Product Components, serial numbers, and date of sale and
installation. Upon reasonable notice, Reseller shall allow Avaya and/or its
representatives to inspect Reseller's records and reports. Reseller shall
provide point of sale reporting as may be reasonably requested by Avaya, and
any other reports specified in the Product Group Attachment. Avaya will
treat all information reported by Reseller under this Agreement as
Confidential Information as defined in Section 14
4.10.1. To ensure fulfillment of Avaya'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 Avaya Products and
enhancements thereto, to maintain End-User satisfaction, and to assist Avaya
in tracking equipment maintenance obligations and materiel accountability,
Reseller agrees to maintain and make available to Avaya on reasonable
request an accurate and complete list of Reseller's Avaya Product and
Software End-Users by name, installation address, the Avaya Product
Components furnished to each End-User, the transaction date, and all serial
numbers associated with the new Avaya Products, Software or new Avaya
Product Components. The obligation to maintain and make such information
available to Avaya shall survive expiration or termination of this
Agreement. Avaya will use this information solely for the purposes set
forth in this Section 4.10.1.
4.10.2 If requested by Avaya, by the fifth (5th) business day of
each month, in a format to be provided by Avaya to Reseller, Reseller will
submit a point-of-sale report of sales made the previous month, by Avaya
order code, ZIP code, and quantity.
4.11 Quality Reviews: To maintain Avaya's high standards for End-
User satisfaction and Avaya Product and Service quality, Reseller agrees to
abide by all Avaya quality policies, and periodically visit the
BusinessPartner website for policy and procedure changes. Reseller agrees
to participate in Avaya's Customer Satisfaction Surveys. Avaya may conduct
performance reviews of all Reseller responsibilities and Reseller
fulfillment of Avaya's quality policies.
4.12 Use of Website: The terms of Web Site Use appearing on any
Avaya Website used by Reseller, as such terms may be amended from time to
time, are hereby incorporated by reference into this Agreement as if set
forth herein.
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4.13 Product Sourcing: Reseller shall not purchase or otherwise
obtain Avaya Products for resale from any source other than Avaya through
Distributor . Reseller's purchase or resale of an Unused Product shall be
grounds for immediate termination of this Agreement.
4.14 Deauthorize Employees: Upon the termination of employment of a
Reseller's employee with password access to any Avaya information system or
hotline, Reseller agrees to immediately deauthorize the employee's password
access, and to immediately notify the Avaya Information Administrator of the
deauthorization.
5. RESELLER ORDERS
5.1 Orders for Products (including Product Components) submitted by
Reseller shall refer to the identification information required by Avaya
through Distributor and shall contain the information necessary for proper
delivery and invoicing, including without limitation, the date of the order,
a description of and the Avaya order code for Products and Product
Components to be furnished and any shipping instructions. All orders
submitted by Reseller shall be deemed to incorporate and be subject to the
terms and conditions of this Agreement as well as any supplemental terms and
conditions agreed to in a writing signed by the authorized representatives
of both parties. All other terms and conditions, including any pre-printed
terms and conditions contained on any order form or correspondence
originated by Reseller are rejected and shall have no effect.
5.2 Avaya, through Distributor, will ship Products (including
Product Components) ordered by Reseller only to Reseller's authorized
shipping location(s). Avaya, through Distributor will use its reasonable
commercial efforts to fill promptly Reseller's written orders for Products
and Products Components, insofar as practical and consistent with
Distributor's then-current lead-time schedule, shipping schedule, access to
supplies on acceptable terms and allocation of available products and
capacity among Avaya customers.
6. RESELLER CANCELLATION OF ORDERS
6.1 Reseller may, upon written notice to Avaya, cancel any order or
portion thereof in accordance with the then applicable Distributor returns
policy, a copy of which may be obtained from Distributor.
7. PRODUCT CHANGES AND DISCONTINUANCE
7.1 Avaya may, without the consent of Reseller and without liability
to Reseller, add, delete or change any Products or modify drawings and
specifications relating thereto. Such additions, deletions and changes will
be communicated to Reseller within a reasonable time of the decision to add,
delete or change. Avaya, through Distributor may substitute Products or
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 Avaya to enhance
safety.
7.2 Reseller agrees not to make or permit any third party to make
any changes to the Products.
8 RESELLER PRICES, DISCOUNTS AND REBATES
8.1 The prices applicable to Reseller orders requesting shipment
within Avaya's then current Avaya Product shipment intervals shall be
determined in accordance with Avaya's Applicable Price. Avaya's current
Applicable Prices and Reseller discount and rebate schedules will be
provided to Reseller upon execution of this Agreement, and which Avaya may,
in its sole discretion, change from time to time, subject to the terms of
Section 9 below. Reseller orders requesting delayed shipment (i.e.,
shipment on dates beyond Avaya's then current Avaya Product shipment
intervals) shall be subject to price increases and discount decreases that
become effective before shipment.
9 RESELLER PRICE LIST, DISCOUNT, AND REBATE CHANGES
9.1 Avaya may decrease current applicable prices or increase
discounts or rebates in the Reseller discount or rebate schedules without
advance notice to or the prior consent of Reseller. Avaya agrees to provide
written notice of any such price or discount changes and the effective date
thereof. Avaya will make reasonable commercial efforts to advise Reseller
30 days in advance of any price decreases.
9.2 Avaya also may institute promotional price decreases or discount
increases at any time under such terms and conditions as Avaya in its sole
discretion shall determine are appropriate. Promotional prices and
discounts shall apply only during the period specified by Avaya and there
shall be no recomputation of amounts payable by Reseller for orders placed
before such period. A promotional event for a particular product will not
exceed 120 calendar days in duration. Such promotional events will not be
run in consecutive periods. Avaya will make reasonable efforts to provide
Reseller with thirty (30) days advance notice of promotional programs to
Resellers.
9.3 Avaya may, without the prior consent of Reseller, increase
current applicable prices as published by Avaya from time to time, provided
Avaya furnishes Reseller written notice of any such changes sixty (60) days
in advance
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of the effective date. All other components of the Reseller compensation
plan are variable and dependent on Reseller performance and commitment.
Avaya may annually revise its Reseller compensation plan.
9.4 Unless expressly stated to the contrary, current applicable
prices do not include taxes or Avaya's, through Distributor, charges for
related domestic transportation or storage services. Avaya's Reseller list
prices do include its standard packing for domestic shipment. All Product
prices are F.O.B. Avaya's, through Distributor, shipping point. Unless
Reseller furnishes Avaya a valid tax exemption certificate, Reseller shall
pay all applicable taxes, however designated, resulting from this Agreement
or any activities hereunder (exclusive of any tax based on or measured by
net income).
10. BILLING AND PAYMENT
10.1 Invoices for Products will be sent by Avaya, through Distributor
upon shipment of the Product, or as soon thereafter as practicable. Unless
Reseller is otherwise notified by Avaya in writing, Reseller shall pay the
invoiced amount in full, within thirty (30) days of the invoice date.
Payments not received within thirty (30) days of the invoice date shall
incur a late payment charge that shall be computed at the rate of one and
one-half percent (1-1/2%) of the overdue amount per month. The amount of
Reseller credit or terms of payment may be changed or credit withdrawn by
Avaya at any time upon notice to Reseller in writing, unless Reseller
provides Avaya with adequate assurance of performance, as that phrase is
used in Section 2-609 of the Uniform Commercial Code as adopted in New York,
within ten days of any such written notice.
11.0 PURCHASE MONEY SECURITY INTEREST
11.2 Avaya reserves and Reseller hereby grants to Avaya a purchase
money security interest in all Products sold to Reseller by Avaya under this
Agreement, and any proceeds thereof or therefrom including, but not limited
to, accounts receivable, installment contracts, chattel paper and
instruments arising therefrom (the "Collateral"), until any and all payments
and charges due Avaya under this Agreement are paid in full. Avaya shall
have the right, at any time and without notice to Reseller, to file in any
state or local jurisdiction such financing statements (e.g., UCC-1 financing
statements) as Avaya deems necessary to perfect its purchase money security
interest hereunder. Reseller hereby irrevocably appoints Avaya as its
attorney-in-fact for purposes of executing and filing such financing
statements and such other documents prepared by Avaya or its designated
agent for the purpose of perfecting Avaya's security interest hereunder.
Reseller also agrees that this Agreement may be filed by Avaya in any state
or local jurisdiction as a financing statement (or as to evidence of the
Avaya's purchase money security interest). Reseller shall be permitted to
sell Products in the ordinary course of business free of Avaya's security
interest, subject to the provisions of Section 11.3 below.
11.3 If Reseller defaults in the payment of any amount due to Avaya
and such default continues for a period of ten (10) days after notice of
such default has been given to Reseller, in addition to all of its other
rights and remedies, with respect to the Collateral Avaya shall have all of
the rights and remedies of a secured creditor after a default by a debtor
under the Uniform Commercial Code ("UCC"). In addition to any other remedy
available to Avaya as provided herein, by common law and by statute, Avaya
may exercise its right to reclaim all Products sold to Reseller pursuant to
UCC Section 2-702 or such other applicable provision, as it may exist from
state to state.
12.0 TITLE AND RISK OF LOSS
12.1 Title (except for firmware and Software) and risk of loss or
damage to Products shall pass to Reseller: (i) at the time Avaya, through
Distributor delivers possession of the Products to a carrier; or (ii) if
there is no carrier, at the time Reseller takes possession of the Products
at Avaya's or Distributor's plant, warehouse or other facility.
13. LICENSED MATERIALS
13.1 All Licensed Materials, and all copies thereof, including
translations, compilations, derivative works and partial copies, are and
shall at all times remain the property of Avaya or its licensor.
13.2 Avaya grants Reseller a personal, non-exclusive and non-
transferable license to use the Licensed Materials only in connection with
Products demonstrated or furnished to End-Users. Reseller is authorized to
use the software only on the hardware on which it has been loaded by Avaya
or on which Avaya has authorized it to be loaded. No title or other
ownership rights in intellectual property or otherwise in the Licensed
Materials shall pass to Reseller or any sub licensee under the Agreement.
Reseller agrees not to export the Licensed Materials out of the Territory.
13.3 Reseller agrees not to reverse engineer, decompile or
disassemble software furnished to it in object code form or permit any third
party to do so. For any software included as part of the Licensed Materials
which inherently includes the capability of being remotely enabled, Reseller
expressly agrees that it shall not enable, or permit or assist any third
party to enable, such features or capabilities without Avaya's express
written permission.
13.4 Certain software included as part of the Licensed Materials may
be provided with a separate "shrink-wrap" or other software license and/or
warranty terms. In such cases, the separate software license and/or warranty
terms shall
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supersede any provisions of the Agreement which are inconsistent or in
conflict with such license and/or warranty terms. At Avaya's request,
Reseller shall execute any license agreement for software licensed to it.
As a condition to the license or sublicense of any of Licensed Materials to
an End-User, Reseller shall cause the End-User to be bound by the license
agreement specified in the applicable Product Group Contract or furnished by
Avaya with the software. Reseller agrees that Avaya shall be a third party
beneficiary of the provisions regulating and/or restricting Reseller's
license rights to software from Avaya or its affiliates or outside vendors
("Software License Restrictions"). Accordingly, Reseller acknowledges that
Avaya shall have the right to enforce those Software License Restrictions
directly. Reseller also agrees that it will cause its End-Users to agree to
similar Software License Restrictions; and that those agreements shall
similarly establish Avaya as a third party beneficiary with the right to
enforce those Software License Agreements directly against Reseller's End-
Users. Reseller also agrees that, upon reasonable request, it will assign to
Avaya its rights to enforce the Software License Restrictions directly
against Reseller's End-Users
13.5 Reseller shall maintain a copy of each such End-User license
agreement. Avaya shall have the right to obtain a copy of the license
agreements upon request. Reseller agrees that it shall forbid its End-Users
to export the software out of the Territory, and shall impose on its End-
Users the same restrictions on reverse engineering, decompilation and
disassembly as described in Section 13.3 above.
13.6 If the applicable license agreement authorizes Reseller to make
copies of the Licensed Materials, Reseller shall make only the copies that
are so authorized, and all such copies shall include all copyright and
proprietary notices of Avaya. Reseller shall ▇▇▇▇ all media containing such
copies with a notice that the Licensed Materials are the property of Avaya
and subject to restrictions and limitations of liability.
13.7 Any failure by Reseller to comply with any of the license
provisions contained in the Agreement, Product Group Attachment, or Product
Appendix shall be a material breach of the Agreement and shall immediately
entitle Avaya to terminate any license granted for the Licensed Materials
and to exercise any remedy set forth herein, as well as any remedy that may
exist at law or in equity. If Reseller's license is terminated, or when
Reseller no longer needs the Licensed Materials, Reseller shall return to
Avaya or destroy all copies thereof. Then current licenses properly granted
by Reseller to its End-Users shall survive termination of Reseller's
license.
13.8 Avaya may cancel or cause Reseller to cancel any license to
Reseller's End-User, if that licensee fails to comply with any of the
license provision contained in the Agreement or any other applicable license
agreement. If such cancellation is due to a breach by an End-User without
any fault or breach by Reseller, then the cancellation shall not extend to
Reseller's license with respect to itself and the licenses of other End-
Users.
13.9 Avaya may, at its discretion, electronically audit each system
configuration containing Products sold under the Agreement, to verify
compliance with the license provisions of the Agreement, including (among
other things) the terms of the software license as it relates to the
enablement of any separately licensed features or incremental units of
capacity. Such an audit shall be conducted at the time of enablement of any
separately licensed feature or incremental unit of capacity and at other
times selected by Avaya which, except in emergencies or suspected
violations, shall not be more than once per calendar year upon at least
three (3) business days notice to Reseller. Reseller shall cooperate with
Avaya in conducting such audits. Reseller shall include in its contracts
with its End-Users the requirement that such End-Users permit such audits
and cooperate with Avaya in conducting such audits, including making remote
access available to Avaya for this purpose.
13.10 Avaya will furnish Related Documentation to Reseller in English.
Reseller will have the right, at its own expense, to reproduce and translate
Related Documentation, provided that: (a) each copy or part thereof includes
Avaya' copyright and other relevant notices; (b) any translation is accurate
and complete and reproduces the information in a manner consistent with the
original literature; (c) such translation conforms to Avaya then current
documentation standards provided to Reseller by Avaya from time to time; and
(d) all intellectual property rights in any publication produced by Reseller
referring to any Product, Product Component, or Licensed Materials will be
assigned to Avaya upon publication and Reseller will take such actions and
execute such documents from time to time as requested by Avaya to ensure
that Avaya obtains and retains such rights. If Avaya determines that any
publication produced by Reseller fails to comply with the preceding
sentence, Reseller will do any or all of the following as requested by Avaya
in its sole discretion: (a) cease distribution of such publications; (b)
reclaim as many copies thereof as is reasonably practical; (c) destroy all
copies of such publications within Reseller's control; and (d) amend the
publication in accordance with Avaya' instructions.
14. CONFIDENTIAL INFORMATION
14.1 Confidential Information in any form, whether written or
electronic, shall remain the property of the furnishing party. Unless
authorized by the furnishing party in writing, such Confidential
Information: (a) shall be treated in confidence by the receiving party, not
disclosed to third parties and used only for purposes of its performance
under the Agreement; (b) shall not be reproduced or copied in whole or in
part, except as necessary for use as authorized herein; and (c) shall,
together with any copies thereof, be returned or destroyed when no longer
needed or when the Agreement terminates, whichever occurs first.
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14.2 Confidential Information does not include information which (a)
is known to the receiving party free of any restriction, (b) becomes
generally available to the public, other than as a result of improper action
by the receiving party; or (c) is independently developed by the receiving
party.
14.3 The parties agree to keep confidential: (a) the terms of the
Agreement; (b) the subject matter of any dispute relating to the Agreement;
(c) the terms of any settlement of any dispute relating to the Agreement;
and (d) the termination of the Agreement. If a party is compelled by law to
make disclosure of any of the above, notice shall be given to the other
party pursuant to Section 26.8 prior to any disclosure so that the non-
disclosing party will have an opportunity to object and/or to bring
proceedings to prevent such disclosure.
14.4 If requested by Avaya, Reseller shall notify Avaya of the
identities of its controlling persons and executive management and material
changes therein. Such information shall be Confidential Information of
Reseller.
15. TRADEMARKS
15.1 Avaya hereby grants to Reseller a limited nonexclusive, non-
transferable license and right to use the Licensed Trademarks for use in
connection with the advertisement, promotion, sale or marketing of Products
in the Territory, subject to the terms and conditions of this Section and
the other provisions of the Agreement.
15.2 Reseller shall apply the Licensed Trademarks only to materials
which have been created, in accordance with the standards of quality in
materials, design, workmanship, use, advertising and promotion set forth in
the Trademark Guidelines, or to materials which Avaya has otherwise approved
in writing. The Guidelines for Use of Avaya BusinessPartner Promotional
Signatures are set forth on the BusinessPartner website and are incorporated
herein by reference. The Trademark Guidelines are Confidential Information
of Avaya. Avaya may revise the Trademark Guidelines from time to time, and
such revisions shall be effective upon written notice to Reseller.
15.3 Avaya shall have the right to conduct during regular business
hours an examination of materials created by Reseller to determine
compliance of such materials with the Trademark Guidelines. If such
materials shall fail to conform in any material respect with any of the
standards set forth in the Trademark Guidelines, (a) without limiting its
other remedies, Avaya may so notify Reseller, and (b) upon such
notification, Reseller shall promptly cease using the Licensed Trademarks on
such materials and not distribute or publicize such nonconforming materials
until the standards contained in the Trademark Guidelines have been met.
15.4 Avaya acknowledges that it owns the Licensed Trademarks and all
registrations and applications therefore in the US and throughout the world
but makes no warranties regarding the validity or enforceability of the
Licensed Trademarks. Reseller will acquire no rights in or to Licensed
Trademarks by virtue of this Agreement, Reseller's activities under it, or
any relationship Reseller may have with Avaya.
15.5 Reseller shall comply with conditions set forth in the Trademark
Guidelines or otherwise established in writing from time-to-time by Avaya
with respect to the style, appearance and manner of use of the Licensed
Trademarks. Any use of the Licensed Trademarks not specifically provided
for by such conditions shall be adopted by Reseller only upon the prior
written approval of Avaya. In addition, Avaya may request that notices
acceptable to Avaya be used on the materials bearing the Licensed Trademarks
to identify the licensed use under the Agreement and the proprietary rights
of Avaya.
15.6 All materials using Licensed Trademarks shall be subject to
prepublication review and approval, at such reasonable times and in such
reasonable manner prior to publication as established by Avaya from time to
time, with respect to, but not limited to, content, style, appearance,
composition, context, timing, media (including but not limited to broadcast
fax, placement on a web site, Yellow Pages, or any other advertising or
marketing medium), and geographic distribution plans. Avaya agrees to use
reasonable commercial efforts in conducting such prepublication review and
approval.
15.7 The Licensed Trademarks are not to be used by Reseller in any
way to imply Avaya's endorsement of products, services or materials, other
than those furnished to Reseller pursuant to the applicable Product Group
Contract. Reseller will not alter or remove any of the Licensed Trademarks
applied to a Product, without the prior written approval of Avaya.
15.8 Reseller agrees not to register in any country or other
jurisdiction any name or ▇▇▇▇ identical to or confusingly similar to the
Licensed Trademarks.
16. INFRINGEMENT
16.1 Avaya shall defend or settle all suits against Reseller alleging
that any Product furnished under the Agreement infringes any United States
patent, and Avaya shall pay all damages and costs which, by final judgment
of a court of competent jurisdiction, may be assessed against Reseller on
account of such infringement, but such defense, settlement and payments are
conditioned on the following: (a) Reseller gives Avaya prompt written notice
of all such infringement claims and suits, and full opportunity and
authority in the name of Reseller or otherwise to assume the sole
7
defense and settlement of such suits; and (b) Avaya shall have sole control
of the defense of any action on such claim and all negotiations of its
settlement or compromise; and (c) Reseller furnishes Avaya with all
information and assistance available to Reseller for such defense.
16.2 In the event of a claim of infringement, or a threatened claim
of infringement, Reseller agrees that Avaya, in its sole discretion, may
either: (a) procure for Reseller the right to continue selling the Product;
(b) replace the Product subject to the claim with a non-infringing Product
which is functionally equivalent; (c) modify the Product so that it becomes
non-infringing; or (d) re-acquire the infringing Product and refund the
purchase price less a reasonable allowance for use and damage.
16.3 Sections 16.1 and 16.2 state the entire liability of Avaya for
intellectual property infringement by any Product furnished under the
Agreement.
16.4 Avaya' obligations under Section 16.1 shall not apply to, and
Reseller agrees to indemnify and save Avaya harmless from, all costs,
expenses, liabilities and claims for infringement of any intellectual
property rights: (a) arising from adherence to instructions, specifications
or drawings which Avaya is directed by Reseller to follow; (b) relating to
use or sale of the Products in combination with other item(s) not furnished
by Avaya; provided the claim of infringement would not have arisen in the
absence of that combination or (c) arising from any modifications made to
the Products by Reseller or any of its End-Users.
17. LIMITED PRODUCT WARRANTY
17.1 Avaya warrants each Avaya-manufactured Product or Product
Component (exclusive of Licensed Materials) to its End-Users only to the
extent set forth in the applicable Product Group Attachment or documentation
accompanying the Product or Product Component. Avaya's Product warranties
are subject to all of the terms and conditions set forth in the Product
Group Attachment or documentation accompanying the Product or Product
Component, including, but not limited to, exclusive remedies and limitations
of liability. Avaya makes no warranty with respect to Unused Products and
Products or Product Components not manufactured by Avaya ("Non-Avaya
Components"). Avaya, to the extent permitted, assigns to Reseller's End-
Users any warranties given to Avaya by the vendor of such Non-Avaya
Components.
17.2 No warranty by Avaya will extend to Products or Product
Components that have (a) been subjected to misuse, neglect, power failures
or surges, lightning, fire, flood or accident, (b) been used, repaired or
altered contrary to Avaya's instructions, (c) been improperly installed,
stored, or maintained, or (d) had their serial numbers or date of
manufacturing removed, defaced or altered.
17.3 Although Products are designed to be reasonably secure, Avaya
makes no express or implied warranty that Products are immune from or
prevent fraudulent intrusion, unauthorized use or disclosure or loss of
proprietary information. Certain software features, if purchased, when
enabled, could be improperly used in violation of privacy laws. By ordering
Products with these features or separately ordering such features, Reseller
and its End-Users assume all responsibility for assuring their proper and
lawful use and all liability for any improper or unlawful use of such
features. Avaya shall not be liable for any improper or unlawful use of
such features.
17.4 Avaya does not warrant that the Products will prevent Toll
Fraud. If Reseller offers its End-Users any warranty that is inconsistent
with this Toll Fraud warranty exclusion, Reseller shall specifically
describe to End-Users the sections of Avaya' material and documentation that
regard Toll Fraud and the precautions an End-User can take to prevent Toll
Fraud. Avaya shall in no event be liable to Reseller, and End-User or any
third party for Toll Fraud, and Reseller shall indemnify Avaya for any
damages or liability resulting or arising from any additional Toll Fraud
warranties or representations made by Reseller.
17.5 THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER
EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR WARRANTY
OF TITLE TO THE RESELLER AND THE LIMITED PRODUCT WARRANTY TO RESELLER'S END-
USERS REFERENCED IN THIS SECTION, AVAYA, ITS AFFILIATES AND SUPPLIERS MAKE
NO WARRANTIES EXPRESS OF IMPLIED AND SPECIFICALLY DISCLAIM ANY WARRANTY OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
18. LIMITED SOFTWARE WARRANTY
18.1 Avaya warrants the Licensed Materials End-Users and only to the
extent set forth in the applicable Product Group Attachment or documentation
accompanying the Product or Product Component. Any warranty is subject to
all of the terms and conditions set forth in the Product Group Attachment or
documentation accompanying the Product or Product Component, including, but
not limited to, exclusive remedies and limitations of liability. The
provisions of this limited Licensed Materials warranty shall also govern
Reseller's internal use for the Licensed Materials, including use for sales,
service, or training purposes.
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18.2 Avaya makes no warranty with respect to any Licensed Material as
to defects resulting from (a) Reseller's or its End-Users' misuse, neglect,
accident or abuse; (b) Reseller's or its End-Users' alteration of Licensed
Materials; or (c) Licensed Materials used in violation of the Agreement or
the license to which its use is subject. Avaya does not warrant that
Licensed Materials will meet the specifications or requirements of Reseller
or its End-Users, or that the operation of the Product using the Licensed
Materials will be continuous over any specified period of time or error-
free.
18.3 THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER
EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR WARRANTY
OF TITLE TO THE RESELLER AND THE LIMITED PRODUCT WARRANTY TO RESELLER'S END-
USERS REFERENCED IN THIS SECTION, AVAYA, ITS AFFILIATES AND SUPPLIERS MAKE
NO WARRANTIES EXPRESS OR IMPLIED AND SPECIFICALLY DISCLAIM ANY WARRANTY OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
19. LIMITATION OF LIABILITY; LIMITATION OF REMEDY
19.1 EXCLUSIVE REMEDIES; LIMITATIONS OF LIABILITY
(a) For purposes of the exclusive remedies and limitations of
liability set forth in this Section, each party shall be deemed to include
its respective subsidiaries and affiliates and the directors, officers,
employees, agents, representatives, subcontractors and suppliers of each of
them; and "damages" shall be deemed to refer collectively to all injury,
damage, loss or expense incurred;
(b) Avaya's entire liability and Reseller's exclusive remedies
against Avaya for any damages caused by any Product defect or failure, or
arising from the performance or non-performance of any work, regardless of
the form of action, whether in contract, tort including negligence, strict
liability or otherwise shall be:
(i) For infringement, the remedies set forth in the section
entitled Infringement;
(ii) For the non-performance of Product or work performed
during any warranty period, the remedies stated in the sections
entitled Limited Product Warranty and Limited Software Warranty and in
the Product Group Attachments;
(iii) For failure to deliver or for delays in delivery of
Production quantities, Avaya shall have no liability unless the
delivery is delayed by more than thirty (30) days by causes not
attributable either to Avaya or to conditions beyond Avaya's
reasonable control, in which case Reseller shall have the right, as
its sole remedy, to terminate the order without incurring termination
charges, or to require Avaya to deliver the Products using priority
delivery, at Avaya's Expense;
(iv) For bodily injury or death to any person or damage to
tangible property proximately caused by Avaya's negligence, the amount
of proven direct damages; and
(v) For any claims not set forth above, Avaya's liability
shall be limited to direct damages that are proven, in an amount not
to exceed the purchase price of the affected Product.
(c) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER
PARTY SHALL BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR
CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, SAVINGS
OR REVENUES OF ANY KIND, WHETHER OR NOT ANY SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. THIS PROVISION SHALL SURVIVE FAILURE OF AN
EXCLUSIVE REMEDY.
19.2 For all Products ordered or purchased by Reseller from Avaya,
through Distributor, Reseller and its End-User shall direct all complaints,
make all claims and seek all remedies against Avaya arising out of or
relating to the Products, including but not limited to any delays, errors or
omissions in filling any orders or defects in the Products, whether in
contract, tort, strict liability or otherwise.
19.3 THE PARTIES AGREE THAT THE PRICES FOR PRODUCTS REFLECT THE
ALLOCATION OF RISKS IN THIS AGREEMENT AND THE PRODUCT GROUP ATTACHMENTS.
20. INDEMNITY
20.1 Reseller shall, at its expense, indemnify and hold harmless, and
at Avaya's request, defend Avaya's subsidiaries, affiliates, directors,
officers, employees and agents, from and against any and all loss, cost,
liability and expense (including reasonable fees for attorneys and other
professionals) arising out of, caused by, or in connection with Reseller's
distribution of Products, or any negligent act, omission or willful
misconduct by Reseller, its employees, agents or independent contractors,
including but not limited to acts or omissions that contribute to personal
injury, disease or
9
death, damage to or destruction of property, including loss of data, or any
violation of any statute, ordinance or regulation, and provided that
Avaya: (a) fully cooperates with Reseller, including providing Reseller
adequate information; and (b) gives Reseller sole control of the defense and
any settlement of the claim.
20.2 This provision shall survive the expiration or termination of
this Agreement.
21. FORCE MAJEURE
21.1 Other than for the payment of money, neither party shall be held
responsible for any delay or failure in performance to the extent caused by
events beyond such party's reasonable control, such as fire, flood,
explosion, war or the engagement of hostilities, strike, embargo, labor
dispute, government requirement, civil disturbances, civil or military
authority, and inability to secure materials or transportation facilities.
Each party shall endeavor to give the other reasonable notice of any such
delay or failure.
22. ASSIGNMENT AND SUBCONTRACTING
22.1 Reseller acknowledges that Avaya has appointed it as a Reseller
in reliance upon the qualifications, business reputation, and financial
soundness of itself and its controlling persons and management. Reseller
may not assign the Agreement, or assign or delegate any right or obligation
arising under the Agreement, without the prior written consent of Avaya.
22.2 Avaya may subcontract any or all of the work to be performed by
it under the Agreement, but shall retain the responsibility for the
subcontracted work. Avaya may assign the Agreement, in whole or in part, to
any of its Affiliates or to any entity to which Avaya may sell, transfer,
convey, assign or lease all or substantially all of its rights with respect
to the Products subject to an applicable Product Group Contract.
23. TERMINATION OF AGREEMENT
23.1 Either party may terminate the Agreement at any time without
cause by giving the other party sixty (60) days written notice of the
termination, except that both parties agree not to terminate this Agreement
without cause during the first twelve months of the initial term of this
Agreement. During said sixty (60) day period, Avaya will complete any
pending orders for Product and Product Components upon receipt of pre-
payment from Reseller for any such orders unless the parties agree
otherwise. Reseller shall not submit any orders for Product or Product
Components on or after the date of notice of termination and Avaya has no
obligation to process any orders or deliver Product or Product Components
pursuant to any order that violates this Section.
23.2 Either party may terminate this Agreement for material breach or
default of any term or condition of this Agreement (other than payment to
Avaya) if such breach or default is not cured within thirty (30) days of
written notice of such breach or default from the non-breaching party.
23.3 Avaya may terminate the Agreement on twenty-four (24) hours
notice upon the occurrence of any of the following:
(a) if Reseller breaches or otherwise violates any of the
provisions of Sections 3.1, 4.13, 13.0, or 15.7 hereof; or
(b) if Reseller materially breaches or violates any other
provision of the Agreement and the breach or violation is not capable
of cure; or
(c) if Reseller fails to pay Avaya, or a Distributor, under
this Agreement or any other agreement, and Reseller fails to cure such
breach or violation within five (5) days after notice of such breach
or violation is given to Reseller; or
(d) if there is a 50% or more change of direct or indirect
ownership of Reseller or a change of direct or indirect control of
Reseller (excluding a change of ownership of the shares of a publicly
traded company which does not result in a change of control).
23.4 The termination of the Agreement shall automatically accelerate
the due date of all invoices to the effective date of termination.
23.5 Upon the termination of the Agreement, Reseller shall:
(a) discontinue all use of Licensed Trademarks, except that
Reseller may continue using such Licensed Marks as authorized in the
Agreement for an additional ninety (90) days exclusively in connection
with Reseller's efforts to sell remaining inventory; and
(b) cease holding itself out, in any manner, as an authorized
Reseller of Avaya and notify and arrange for all persons who may
identify, list or publish Reseller's name as an Avaya authorized
Reseller to discontinue the same; and
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(c) return to Avaya, or destroy at Avaya's request, all
Confidential Information and all promotional materials supplied by
Avaya; and
23.6 Neither party shall be liable to the other on account of the
termination of the Agreement pursuant to this Section or otherwise pursuant
to the Agreement, either for compensation or for damages of any kind or
character whatsoever, or on account of the loss of present or prospective
profits, good will, or expenditures, investments or commitments made in
contemplation of, or in the performance of, the Agreement, provided, however
that the termination of the Agreement shall not prejudice or otherwise
affect (a) the rights or liabilities of the parties with respect to Products
already sold under the Agreement, (b) any indebtedness then owing by either
party to the other, and (c) any other obligations of the parties, such as
those arising under Sections 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 23, 24,
25 and 26, which by their nature continue beyond termination of the
Agreement and which shall survive such termination.
24. CHOICE OF LAW; EXCLUSIVE JURISDICTION; WAIVER OF JURY TRIAL.
24.1 Unless otherwise stated in the Product Group Attachment, the
Agreement shall be governed by and construed in accordance with the laws of
the State of New York, USA, excluding its choice of law principles.
24.2 Any suit or other action arising out of the Agreement, whether
commenced in conformity with or contrary to Section 25, shall only be
brought in the federal or state courts of the State of New York, with the
sole exception that any party may commence a suit in any jurisdiction to
enforce an arbitration award or judgment obtained pursuant to Section 25.
In the event of any suit in the federal or state courts of the State of New
York, (a) the parties hereby consent to personal jurisdiction therefore and
waive any defense based on a lack of personal jurisdiction, improper venue,
or the inconvenience of the forum, (b) the parties agree that delivery of
any process in the manner provided for in Section 26.8 shall constitute
lawful and valid service of process, and (c) THE PARTIES HEREBY WAIVE TRIAL
BY JURY.
25. ARBITRATION AND DISPUTE RESOLUTION
25.1 Except as otherwise expressly provided in the Agreement, any
dispute, controversy or claim arising out of or relating to the Agreement,
its interpretation or enforcement shall be resolved by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association conducted by one arbitrator. The arbitration shall be conducted
at Avaya's offices at ▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ unless
otherwise agreed by the parties. Any ruling by the arbitrator shall be
final and binding on the parties and may be entered in any court of
competent jurisdiction. The arbitrator shall have no authority to modify or
expand the Agreement or any of the provisions of this Agreement. The
arbitrator is specifically authorized to render partial or summary judgment.
Each party will bear its own attorneys' fees associated with the
arbitration, and each party shall bear an equal share of all fees, costs and
expenses of the arbitrator. The arbitration proceeding and all testimony,
filings, documents, and other information produced or given in connection
with the arbitration shall be treated as Confidential Information, except as
may be necessary to enter any arbitration ruling in a court of competent
jurisdiction or as otherwise may be required by law.
25.2 Nothing in the Agreement shall preclude either party from
specific performance or other equitable relief, including but not limited to
temporary restraining orders and preliminary injunctions, from any court of
competent jurisdiction, in order to protect its rights or prevent harm
pending the obtaining of an arbitration ruling, nor shall anything herein
prevent Avaya from seeking monetary damages from any court of competent
jurisdiction for monies owed to it hereunder. Without limiting the
foregoing provisions of this Section, Reseller acknowledges that remedies at
law, including by means of an arbitration for a breach or threatened breach
of any of the covenants contained in Sections 4, 13, 14, 15, 22 and 23 will
be inadequate and in the event of a breach or threatened breach of any such
covenants, Avaya shall be entitled to an injunction specifically enforcing
Reseller's compliance with such.
25.3 The prevailing party in any dispute relating to the Agreement
resulting in a final judgment by any court or arbitration panel, including
but not limited to actions to collect money owed to Avaya by Reseller, shall
be entitled to the payment of all attorneys fees and costs incurred.
26. GENERAL
26.1 No failure to exercise and no delay or partial exercise of a
right or power conferred upon a party under the terms of the Agreement shall
operate as a waiver of such right or power.
26.2 If any paragraph or clause in the Agreement shall be held to be
invalid or unenforceable in any jurisdiction in which the Agreement is being
performed, then the meaning of such paragraph or clause shall be construed
so as to render it enforceable, to the extent practicable; and if no such
interpretation would save such paragraph or clause, it shall be severed from
the Agreement and the remainder shall remain in full force and effect.
However, in the event such section or clause is considered an essential
element of this Agreement by either Avaya or Reseller, the parties shall
promptly negotiate a replacement therefore.
26.3 The Agreement has been signed in the English language. In case
of conflict between the Agreement and any translation from English, the
English language Agreement shall control.
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26.4 In the event of a conflict between provisions of the Agreement
and the Product Group Attachments, priority shall be given to provisions of
the Product Group Attachments over a provision of the Agreement, unless such
priority is expressly overridden in the Agreement; and in the event of a
conflict between the provisions of the Product Group Attachment and a
Product Appendix, priority shall be given to provisions of the Product
Appendix over a provision of the Product Group Attachment, unless such
priority is expressly overridden in the Product Group Attachment or the
Agreement
26.5 The terms and conditions contained in the Agreement supersede
all prior oral or written understandings between the parties and shall
constitute the entire agreement between them concerning the subject matter
of the Agreement and shall not be contradicted, explained or supplemented by
any course of dealing or course of performance between Avaya and Reseller.
The Agreement may only be amended by a writing signed by both parties.
26.6 The headings contained in the Agreement are for convenience only
and are not intended to affect the meaning or interpretation of the
Agreement.
26.7 Words importing a particular gender shall include every other
gender and words importing the singular shall include the plural and vice-
versa, unless the context clearly indicates otherwise.
26.8 Except as expressly provided in the Agreement, all notices,
consents, waivers, requests or other instruments or communications given
pursuant to the Agreement shall be in writing and shall be delivered by hand
or sent by registered or certified United States mail, return receipt
requested, postage prepaid, or by a recognized overnight delivery service,
addressed to Avaya at its principal place of business, Attention: General
Counsel and to the Reseller at the address set forth at the beginning of
these Master Terms and Conditions. Any party may, by notice to the other
party, specify any other address for the receipt of such notices,
instruments or communications. Except as expressly provided in the
Agreement, any notice, instrument or other communication shall be deemed
properly given when hand delivered, one business day after being sent by
overnight courier service and three days after being sent by United States
mail in the manner prescribed in this Section.
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RESELLER PRODUCT GROUP ATTACHMENT
TO AVAYA INC RESELLER MASTER TERMS AND CONDITIONS
For
ENTERPRISE COMMUNICATION
AND INTERNETWORKING SOLUTIONS PRODUCT
This Product Group Attachment ("Product Group Attachment") shall be
effective as of May 31, 2002 ("Effective Date") between Avaya, Inc.
("Avaya"), and Farmstead Telephone Group, Inc. ("Reseller"). This Product
Group Attachment hereby incorporates by reference the Reseller Master Terms
and Conditions entered into between Avaya and Reseller. The terms set forth
in this Product Group Attachment shall be applicable to Avaya Enterprise
Communications ("EC") and Internetworking Solutions ("IS") Products as
defined in Product Appendices attached.
In addition to the terms of the Reseller Master Terms and Conditions
specifying the relationship of the parties and their responsibilities, the
parties agree as follows:
1.0 DEFINITIONS
Unless otherwise specified herein, terms which are defined in the Reseller
Master Terms and Conditions shall have the meanings specified therein. The
following terms shall have the meanings specified below:
1.1 "Area" means the specific geographic area or market segment in
which Reseller has agreed to market Avaya Products in accordance with this
Agreement. The agreed upon Area for Reseller is set forth in Appendix 1.
1.2 "Distributor" means the authorized Avaya distributor of Avaya
Product from whom Reseller will purchase product and who are listed or
referred to in Appendix 1, to this Product Group Attachment.
1.2 "Reseller Service" means one or more of those services Reseller
may choose to perform itself for Avaya Products in the Area. Reseller
Services include system configuration to the End User, installation,
warranty, and provision of post-warranty on-site maintenance.
1.3 "Avaya Service" means one or more of those services provided by
Avaya that Reseller may choose to offer, including system configuration,
installation, provision of post-warranty on-site and post-warranty remote
maintenance service, and professional services. Avaya Service also includes
remote maintenance service separate from post-warranty on-site maintenance
service, which Reseller may offer in conjunction with Reseller Service.
1.4 "Territory" means the fifty states of the United States of
America and the District of Columbia, excluding the Cincinnati ▇▇▇▇
Telephone Company operating area in the states of Ohio, Kentucky and Indiana
with respect only to DEFINITY(R) ECS and Prologix(R) products.
2.0 APPOINTMENT FOR ENTERPRISE COMMUNICATION AND INTERNETWORKING SOLUTIONS
PRODUCT
2.1 For Resale of EC Products and IS Products: Avaya hereby
authorizes Reseller to purchase Avaya EC Products from Avaya, through
Distributor, for resale to End User customers only who are within Reseller's
Area.
Reseller's authorized marketing location(s) are set forth in the Appendix 1.
If End User to which Reseller has sold Avaya EC Products within the Area has
locations outside the Area but within the Territory, then Reseller may sell
limited quantities of Avaya EC Products for use by that End User outside the
Area but in the Territory. With that exception, reseller shall not market
or sell Avaya EC Products outside Reseller's Area. Avaya's authorization is
predicated on Reseller's agreement to market the Avaya Products in the Area
and to achieve the Area forecast submitted pursuant to Section 4.3 of the
Master Terms and Conditions. Avaya EC Products installed outside the Area
will not be considered by Avaya when determining whether Reseller has
achieved its annual commitment submitted pursuant to Section 4.3 of the
Master Terms and Conditions. Reseller's sales of Avaya EC Products outside
the Area (unless specifically permitted by this Section 2.1), Reseller's
failure to achieve levels of sales acceptable to Avaya in the Area shall,
among others, be grounds for termination or non-renewal of the Agreement.
2.2 Unless expressly provided elsewhere within this Agreement,
Reseller may not market or sell Avaya Products to any office, department,
agency, or defense installation of the United States Government except that
Reseller may respond to a request for competitive bids, proposals, or
quotations even if Avaya is also responding. Reseller is not appointed or
authorized to market or sell Avaya Products to the United States Government
by reason of the fact that Reseller has, in the past, sold used or unused
products manufactured by Avaya to the United States Government.
3.0 SUPPLEMENTAL RESPONSIBILITIES OF RESELLER FOR AVAYA ENTERPRISE
COMMUNICATION AND INTERNETWORKING SOLUTIONS PRODUCT
3.1 All services training that Avaya requires Reseller personnel to
undergo, or other services training requested by the Reseller and offered by
Avaya, will be furnished to Reseller at Avaya's standard rates, terms and
1
conditions. If Reseller has subcontracted with Avaya to perform all or part
of Reseller Service to an End User and Reseller installs unused product (s)
manufactured by Avaya but not purchased from the BusinessPartner Sales
Organization ("BPSO") as part of that End User's system, in addition to any
other remedies available to Avaya, Avaya may terminate any Reseller licenses
to use Avaya maintenance software and also terminate its subcontracts with
Reseller to perform Reseller Service. If Reseller has sold an Avaya Product
system and an Avaya Post-Warranty Maintenance service contract to an End
User, Reseller will advise such End User that addition of used and unused
product (s) to the Avaya Product system may void Avaya's warranty and cause
Avaya to terminate the service contract.
3.2 Reseller may not seek to or assist any third party in replacing,
interfering with or substituting any pre-existing Avaya Service agreement
entered into with an End-User customer. Any act of interference by a
Reseller with an existing Avaya Service agreement shall be a material breach
of this Agreement. Reseller will not market or resell a third party's
services in support of an Avaya Product where Avaya has a preexisting
Services agreement during the term of this Agreement.
3.3 Reseller shall offer to train those End Users who elect to
install their own systems in the effective use of the Avaya Products,
including providing any instructional material furnished to Reseller by
Avaya. Reseller shall specifically describe to those End Users who elect to
install their own systems the sections of such material, including brochures
and manuals packaged with the Avaya Products, that describe toll fraud and
the precautions an End User can take to prevent toll fraud.
3.4 If Avaya is to install the Products, Reseller shall give
requested information, to the Avaya services organization where the End User
is located, in the agreed format, as soon as Reseller's order process is
completed. This will enable the customer to receive the Avaya Warranty on
the new Avaya Products and Software, and if the customer has an Avaya post
warranty service maintenance contract and has like products, the new Avaya
Products will automatically be added to that contract when the Warranty
expires.
4.0 INSTALLATION, WARRANTY AND POST-WARRANTY SERVICES (for EC Products
only)
This section 4.0 applies only to EC Products authorized by Product Appendix
or Addendum to this Product Group Attachment:
4.1 Avaya agrees to furnish any Avaya Services required by End Users
purchasing Avaya Products from Reseller, as Reseller requests, until
Reseller's installation and maintenance personnel have completed training
required under Section 4.2 of the Master Terms and Conditions, to the
satisfaction of Avaya. During such interim period, Reseller agrees to
propose only Avaya Services or those of an Authorized Avaya Service provider
in connection with each End User purchase of Avaya Products under this
Agreement. Once Reseller has completed the necessary training, any
installation, warranty or post-warranty Services required by End Users
purchasing Products from Reseller may be furnished by Reseller. To ensure
the provision of high quality installation and post-warranty Services to End
Users, Reseller shall: (i) perform Services directly and not, unless
expressly authorized in writing by Avaya, through a non-Avaya authorized
independent contractor or agent; (ii) be adequately trained; and (iii)
perform such Services competently and in accordance with any applicable
Avaya standards. The indemnity obligations of Reseller under Section 14.1
of the Master Terms and Conditions shall apply to any Services furnished by
Reseller to End Users. Reseller may offer Avaya's installation and post
warranty Services to Reseller's End Users at Avaya's then current rates
terms and conditions.
4.2 Replacement, spare or maintenance Product Components required by
Reseller, to the extent that Avaya, through Distributor, in its sole
discretion makes such Product Components available, can be pursuant to this
Agreement or through Avaya's National Parts Sales Center (NPSC). In the
event Reseller 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
Reseller or purchased by Reseller under this Agreement may, at Avaya's
option, be either new or refurbished.
4.3 Avaya's appointment of Reseller to market Avaya Products
hereunder is predicated on Reseller's agreement that it will hold itself out
as authorized by Avaya to provide Services only as to Avaya Products
hereunder and will, to the sole satisfaction of Avaya, clearly distinguish
its authorization to provide Services for such Avaya Products and its lack
of authorization to provide Services for other Avaya-manufactured equipment.
Reseller also agrees to inform End Users of such distinction in Reseller's
marketing (including brochures or other printed or written materials) of
Avaya Products and of any other Avaya equipment. In addition to any other
events of termination set forth in this Agreement, Reseller's failure to
distinguish between its authorization to offer Services as to Avaya Products
and its lack of authorization to offer Services as to other Avaya equipment
or to inform End Users of such distinction shall entitle Avaya to terminate
this Agreement upon written notice to Reseller.
4.4 Reseller may incorporate Avaya Services support features in its
Reseller Service Offers to End Users. Avaya will serve as Reseller's
subcontractor for such Avaya Services. No license is granted, and no title
or other ownership rights in Avaya's intellectual property related to
Avaya's provision of Avaya Services support shall pass to Reseller under
this Agreement or as a result of any performance hereunder. Reseller agrees
to provide Avaya with accurate information on End User port capacity,
software attachments, and other information required in order for Avaya to
2
invoice Reseller accurately for such remote support. Failure to provide
such accurate information or to update it on a timely basis shall entitle
Avaya to terminate this Agreement upon written notice to Reseller.
Connection of unused product (s) manufactured by Avaya but not purchased
from BPSO as part of an End User's system may, in addition to any other
remedies available to Avaya, permit Avaya to terminate any Reseller licenses
to use Avaya maintenance software and also to terminate all its subcontract
(s) with Reseller to perform Reseller Service.
5.0 PRODUCT, PRODUCT COMPONENTS, AND SOFTWARE LICENSE CHANGES
5.1 Avaya may without the consent of Reseller, but with thirty (30)
days advance written notice to Reseller, delete any Avaya Product or Product
Component from any Product Appendix.
6.0 RESELLER FORECAST AND REPORTS
6.1 Upon execution of this Agreement and annually thereafter,
Reseller shall submit to Avaya a monthly and quarterly forecast of total
Avaya Product orders to be placed by Reseller during the next twelve months,
the "annual commitment". The annual commitment must specify, for each month
and quarter, the total unit quantities of each Avaya Product construct
(i.e., average configuration of Avaya Product Components in an initial End
User installation of an Avaya Product model) to be ordered. Annual
commitments are submitted for forecasting and goal setting purposes only,
and do not create an obligation of Reseller to purchase any minimum dollar
volume of Products.
6.2 Avaya may reject any annual commitment submitted by Reseller if,
in Avaya's sole judgment, such commitment does not project either: (1) the
level of Avaya Product orders Avaya reasonably requires of Reseller to
achieve its marketing objectives in the Area; or (2) a realistic assessment
of Reseller's potential successful marketing opportunities in the Area
during the forecast period. Avaya shall notify Reseller in writing within
thirty (30) days of receipt of Reseller's forecast if Avaya has rejected
such forecast or it will be deemed to have been accepted by Avaya.
6.3 Reseller shall submit the annual commitment of Avaya Product
orders as specified in Section 6.1 of this Attachment, and actual Avaya
Product installation data specified in Section 3.4 of this Attachment and
Sections 4.10.1 and 4.10.2 of the Master Terms and Conditions, in a format
specified by Avaya.
7.0 TERMINATION OF AGREEMENT
7.1 In addition to the termination conditions in the Reseller Master
Terms and Conditions, Avaya may terminate this Attachment or the Agreement
upon twenty-four (24) hours upon the occurrence of any of the following:
(a) if Reseller breaches or otherwise violates any of the
provisions under Sections 2.1, 3.2, 4.3, and 4.4 of this Attachment;
or
(b) if Reseller has remotely accessed PBX locations maintained
by Avaya directly.
Reseller agrees that by executing this Product Group Attachment, it is bound
by the terms and conditions of the Master Terms and Conditions, the terms
and conditions contained in the Product Group Attachment, and any additional
terms and conditions set forth in a Product Appendix associated with those
Products, which Reseller has been authorized to sell.
IN WITNESS WHEREOF the parties have caused this Product Group Attachment to
be signed by their duly authorized representatives.
Avaya Inc. Farmstead Telephone Group, Inc.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Typed Name: ▇▇▇ ▇. ▇▇▇▇▇▇ Typed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: VP-Channel Sales Title: CEO
Date: May 31, 2002 Date: April 5, 2002
3
APPENDIX 1 TO RESELLER PRODUCT GROUP ATTACHMENT FOR ENTERPRISE
COMMUNICATION AND INTERNETWORKING SOLUTIONS PRODUCT
Enterprise Communication and Internetworking Solutions Products Distributor
ScanSource, Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
Internetworking Solutions Product Distributors
Avaya will provide a listing of authorized Internetworking Solutions
Product Distributors to Reseller upon execution of this Agreement. Avaya
reserves the right to add or remove authorized Distributors at its sole
discretion. Notification of changes to the Distributor Listing will be
provided to Reseller by electronic means, which may include but is not
limited to website posting or email notification.
Addresses:
A. Marketing Location (s):
Farmstead Telephone Group, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
Area:
A. Enterprise Communication Product Area Description:
1. Geographic Area, (if Area is Defined by geography)
State County
Connecticut Entire States
Delaware
Georgia
Florida
Maine
Maryland
Massachusetts
New Hampshire
New Jersey
New York
North Carolina
Pennsylvania
Rhode Island
South Carolina
Vermont
Virginia
West Virginia
District of Columbia
2. Other Enterprise Communication Product Area Description (e.g. market
segment, area codes, etc)
4
B. Internetworking Solutions Product Area Description:
1. Geographic Area, (if Area is Defined by geography)
State County
Connecticut Entire States
Delaware
Georgia
Florida
Maine
Maryland
Massachusetts
New Hampshire
New Jersey
New York
North Carolina
Pennsylvania
Rhode Island
South Carolina
Vermont
Virginia
West Virginia
District of Columbia
2. Other Internetworking Solutions Product Area Description (e.g. market
segment, area codes, etc)
5
RESELLER PRODUCT APPENDIX: AVAYA ENTERPRISE COMMUNICATIONS PRODUCTS
Key Systems
A. Products:
---------
Merlin Magix Communications Systems, Associated Adjuncts, and
Messaging Systems
Partner(R) Advanced Communications Systems, Associated Adjuncts, and
Messaging Systems
B. Reseller must provide End Users with required software license and
warranty information. This information may be contain in shrink wrap
material, or product documentation, and is being provided here in for your
reference, For the products covered by this Product Appendix, the following
contains the End User Software License referred to in Section 7.4 of the
Agreement and the End User Software Warranty:
END USER SOFTWARE LICENSE AND LIMITED WARRANTY
----------------------------------------------
END USER SOFTWARE LICENSE
Avaya Inc. 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 Avaya Inc. and [Reseller]. 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 Avaya Inc.. 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.
LIMITED WARRANTY AND LIMITED LIABILITY
Software. Avaya Inc. 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 Avaya Inc. installation instructions.
Upon determining that the returned Software is eligible for warranty
coverage, Avaya Inc. will either replace the Software or, at Avaya Inc.'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.
Compatibility. THE SOFTWARE IS NOT WARRANTED FOR NONCOMPATIBLE SYSTEMS.
DISCLAIMER OF WARRANTIES. AVAYA INC. MAKES NO WARRANTY, REPRESENTATION, OR
PROMISE TO YOU NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. AVAYA INC.
DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. AVAYA INC. 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, AVAYA INC. DOES NOT WARRANT THAT THE
SOFTWARE WILL PREVENT, AND AVAYA INC. 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 AVAYA INC.'S NEGLIGENCE, YOUR EXCLUSIVE REMEDY AND
AVAYA INC.'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. AVAYA INC. SHALL NOT IN ANY
CASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR
PUNITIVE DAMAGES, EVEN IF AVAYA INC. HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. AVAYA INC. 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.
Unless modified, amended, or supplemented by this Product Appendix, all
terms and conditions of Reseller Master Terms and Conditions remain in
effect.
6
RESELLER PRODUCT APPENDIX: AVAYA ENTERPRISE COMMUNICATIONS PRODUCTS
DEFINITY(R) BCS & Associated Adjuncts
A. Products
--------
DEFINITY BCS, Associate Adjuncts and Software
DEFINITY AUDIX
Intuity(TM) AUDIX
BCMS (25 Agents)
Limited compatible DEFINITY(R) BCS circuit packs and telephones, when
ordered in conjunction with DEFINITY(R) BCS Servers.
B. For the products covered by this Product Appendix, and for use with
the DEFINITY(R) BCS server, the following is added to the Reseller Product
Group Attachment for Enterprise Communications Product as Section 2.5:
2.5 Circuit packs and 8400 Series DCP telephones offered under
this Product Appendix for use only with the DEFINITY(R) BCS servers may
only be use in conjunction with these servers. Orders for DCP
telephones beyond those provided in the DEFINITY BCS packaged offers
will be rejected if the number of telephones ordered exceeds 10% of
the total telephone capacity of the system ordered. Several circuit
packs are designed for use only on BCS systems only. Connection of
such circuit packs to any other Avaya Managed Product 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 the Agreement to which this is appended.
C. For the products covered by this Product Appendix, the current End
User Software License referred to in Section 7.4 of the Agreement and the
current End User Software Warranty may be found in Exhibit 1.
D. [For Resellers licensing the Orange Label Flash Card only.] New
Section 8 is added to the Reseller Product Group Attachment for Enterprise
Communications Products with respect to this Product Appendix and may be
found in Exhibit 2.
Unless modified, amended, or supplemented by this Product Appendix, all
terms and conditions of Reseller Master Terms and Conditions remain in
effect.
7
RESELLER PRODUCT APPENDIX: AVAYA ENTERPRISE COMMUNICATIONS PRODUCTS
DEFINITY(R) ProLogix Solutions & Associated Adjuncts
A. Products
--------
DEFINITY ProLogix Solutions, Associate Adjuncts and Software
Intuity(TM) AUDIX
6400 Series Voice Terminals
8400 Series Voice Terminals
Basic Call Management Systems
BCMS VU
Centre Vu Call Management Systems
B. For the products covered by this Product Appendix, the current End
User Software License referred to in Section 7.4 of the Agreement and the
current End User Software Warranty may be found in Exhibit 1.
C. [For Resellers licensing the Orange Label Flash Card only.] New
Section 8 is added to the Reseller Product Group Attachment for Enterprise
Communications Products with respect to this Product Appendix and may be
found in Exhibit 2.
Unless modified, amended, or supplemented by this Product Appendix, all
terms and conditions of Reseller Master Terms and Conditions remain in
effect.
8
RESELLER PRODUCT APPENDIX: AVAYA ENTERPRISE COMMUNICATIONS PRODUCTS
DEFINITY(R) ECS & Associated Adjuncts
A. Products
--------
DEFINITY G3vs, Associate Adjuncts and Software
DEFINITY G3si, Associate Adjuncts and Software
DEFINITY AUDIX
Intuity(TM) AUDIX
6400 Series Voice Terminals
8400 Series Voice Terminals
Basic Call Management Systems
Centre Vu Call Management Systems
B. For the products covered by this Product Appendix, the current End
User Software License referred to in Section 7.4 of the Agreement and the
current End User Software Warranty may be found in Exhibit 1.
C. [For Resellers licensing the Orange Label Flash Card only.] New
Section 8 is added to the Reseller Product Group Attachment for Enterprise
Communications Products with respect to this Product Appendix, and may be
found in Exhibit 2.
Unless modified, amended, or supplemented by this Product Appendix, all
terms and conditions of Reseller Master Terms and Conditions remain in
effect.
9
Exhibit 1:
----------
Reseller Product Appendix: Avaya Enterprise Communications Products
END USER SOFTWARE LICENSE AND LIMITED WARRANTY
----------------------------------------------
END USER SOFTWARE LICENSE
Avaya Inc. 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 Avaya Inc. and [Reseller]. 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 Avaya Inc.. 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.
LIMITED WARRANTY AND LIMITED LIABILITY
Software. Avaya Inc. 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 Avaya Inc. installation instructions.
Upon determining that the returned Software is eligible for warranty
coverage, Avaya Inc. will either replace the Software or, at Avaya Inc.'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.
Compatibility. THE SOFTWARE IS NOT WARRANTED FOR NONCOMPATIBLE SYSTEMS.
DISCLAIMER OF WARRANTIES. AVAYA INC. MAKES NO WARRANTY, REPRESENTATION, OR
PROMISE TO YOU NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. AVAYA INC.
DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. AVAYA INC. 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, AVAYA INC. DOES NOT WARRANT THAT THE
SOFTWARE WILL PREVENT, AND AVAYA INC. 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 AVAYA INC.'S NEGLIGENCE, YOUR EXCLUSIVE remedy AND
AVAYA INC.'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. AVAYA INC. SHALL NOT IN ANY
CASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR
PUNITIVE DAMAGES, EVEN IF AVAYA INC. HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. AVAYA INC. 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.
10
Exhibit 2:
----------
Reseller Product Appendix: Avaya Enterprise Communications Products
8. SOFTWARE LICENSE, ORANGE LABEL FLASH CARD MEDIUM
A. Avaya grants Reseller a personal, non-transferable and non-exclusive
right to use, in object code form, DEFINITY(R) ECS, DEFINITY(R) PROLOGIX
SOLUTIONS, DEFINITY(R) BCS, and DEFINITY(R) GuestWorks software ("the
Software") solely for the purpose of providing maintenance service on,
DEFINITY(R) ECS, DEFINITY(R) PROLOGIX SOLUTIONS, DEFINITY(R) BCS, and
DEFINITY(R) GuestWorks systems respectively. Title to and ownership of all
Software shall remain with Avaya. Reseller 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. Reseller will
use its best efforts to ensure that its employees and users of the Software
comply with these terms and conditions.
B. Reseller 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(R) ECS, DEFINITY(R) PROLOGIX SOLUTIONS, DEFINITY(R) BCS, and
DEFINITY(R) GuestWorks 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 Reseller Agreements
between Reseller and Avaya.
11
RESELLER PRODUCT APPENDIX: AVAYA INTERNETWORKING SOLUTIONS PRODUCTS
Avaya Data Products
A. Products
--------
Cajun family of products:
Cajun Campus Ethernet
Cajun Campus ATM
CajunView
CajunRules
Super Pipe
Access Point
LMF VPN Gateway
LSMS Security Management Server
NetPerformer
VPNet Product Line
B. Reseller shall purchase Avaya Internetworking Solutions Products
covered under this Appendix from an authorized Avaya Internetworking
Solutions Products Distributor.
C. Avaya's standard End User warranties for the individual products
covered under this Appendix will apply.
Unless modified, amended, or supplemented by this Product Appendix, all
terms and conditions of Reseller Master Terms and Conditions remain in
effect.
12
RESELLER PRODUCT APPENDIX: AVAYA INTERNETWORKING SOLUTIONS PRODUCTS
Avaya Wireless LAN Products
A. Products
--------
Avaya Wireless LAN - Indoor Data Networking (Open):
Client Devices:
PC Cards
Adapters
USB Client
Converters
Indoor Antennae
Residential Gateway
Infrastructure Indoor:
Access Point
Active Ethernet (Power over Ethernet)
Avaya Wireless LAN - Outdoor Data Networking (Managed):
Infrastructure Outdoor Networking
Access Server
Outdoor Kit
Outdoor Remote/Central Router
Outdoor Router Software
Antennae
Products for the US Government only
Residential Gateway (Open)
Access Point (Open)
Central/Remote Office Router (Managed)
B. For the products covered by this Product Appendix, the following is
added to the Reseller Product Group Attachment for Internetworking Solutions
Product as Section 1.8:
1.8 "Approved Reseller Personnel" is defined as an authorized
Reseller's full-time employee representing Avaya Wireless LAN Product
who has attended and successfully completed Avaya approved Wireless
LAN Product Technical Support training.
C. Additional Reseller Responsibilities:
1. Reseller will have a minimum of 10% of the sales force complete
the web based sales training class annually and maintain a sales force
which, in Avaya's opinion, is capable of demonstrating to End-User Customers
the use, capabilities and applications of the Products and that actively and
effectively obtains purchase orders from End-User Customers;
2. Reseller will maintain a minimum of two (2) Approved Reseller
Personnel on staff to support Avaya Wireless Product. These Approved
Reseller Personnel will address all technical issues prior to escalation to
the Distributor or to Avaya;
3. Reseller will acquire and maintain a level of technical local
area networking expertise, so as to be able to install and maintain the
Products. Reseller shall obtain the necessary training from Avaya approved
training facility, before offering maintenance services to End-User
Customers. Installation and field service maintenance provided by Reseller
shall be of such quality so as to maintain and enhance Avaya's reputation as
a supplier of high quality Products;
4. Reseller will have an operational Avaya Wireless LAN
demonstration test bed and provide a minimum of one seminar for End Users
per year;
D. Avaya's standard End User warranties for the individual products
covered under this Addendum will apply.
13
Unless modified, amended, or supplemented by this Product Appendix, all
terms and conditions of Reseller Master Terms and Conditions remain in
effect.
14
DIAMOND AMENDMENT TO
AVAYA RESELLER AGREEMENT (NO. 020601)
AMONG AVAYA INC.,
AND
FARMSTEAD TELEPHONE GROUP, INC., RESELLER
WHEREAS Avaya Inc., and Farmstead Telephone Group, Inc., have entered
into a Avaya Reseller Agreement, effective May 31, 2002, and
WHEREAS Farmstead Telephone Group, Inc. has made the necessary
commitments to be a Diamond Reseller and wishes to become a Diamond
Reseller;
NOW THEREFORE the parties hereby agree to amend the Avaya Reseller
Agreement as follows:
The following new Subsections are added to Section 2 of the Reseller Product
Group Attachment for Enterprise Communications Products. (Reseller
Appointment):
2.3 Except as provided in 2.4, Reseller shall not, during the term
of this Agreement, market or sell any non-Avaya products which are of the
same type or category as the control unit for any Avaya Key Telephone
System, PBX product, or hybrid Key/PBX product (e.g. Merlin Legend Systems),
or the same type or category as any packet switched voice system or
voice/data convergence Product listed in a Product Appendix. Except as
limited in this Agreement and in any other Reseller Agreements Reseller may
have with BCS or another business unit of Avaya, Reseller may market any
other non Avaya products to Resellers or End Users.
2.4 Reseller may continue to market and sell to an End-User non-
Avaya product components for end user products which are the same type or
category as the as products listed in Section 2.3, above, provided that i)
Reseller has, prior to the effective date of its first Reseller Agreement or
(or Diamond Reseller Amendment) with Avaya, supplied a non-Avaya product
system to such End User and ii) the additional non-Avaya products sold after
such effective date do no more than bring the non-Avaya product system to
its original design capacity or full accessory complement. If such End User
desires to upgrade or expand its non Avaya product system beyond that
authorized herein, Reseller shall sell only an appropriate Avaya Managed
Product to such End User.
This Diamond Reseller Amendment shall be effective as of May 31, 2002.
It shall be attached to and constitute a part of the Avaya Reseller
Agreement, as if fully set forth therein. Unless modified, amended, or
supplemented by this Addendum, all terms and conditions of Reseller Master
Terms and Conditions remain in effect.
Avaya Inc. Farmstead Telephone Group, Inc.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: VP-Channel Sales Title: CEO
Date: May 31, 2002 Date: April 5, 2002
15