EXHIBIT 10(s)
Agreement No.: ARS-XXX-99202
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ARS DEALER AGREEMENT BETWEEN
LUCENT TECHNOLOGIES AND
FARMSTEAD TELEPHONE GROUP, INC.
FOR BUSINESS COMMUNICATIONS SYSTEMS
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TABLE OF CONTENTS
1.0 DEFINITIONS 2
2.0 DEALER APPOINTMENT 3
3.0 DEALER RESPONSIBILITIES 4
4.0 INSTALLATION, WARRANTY AND POST-WARRANTY SERVICES 7
5.0 DEALER ORDERS 8
6.0 DEALER CANCELLATION OF ORDERS 9
7.0 PRODUCT, PRODUCT COMPONENTS, AND SOFTWARE LICENSE CHANGES 9
8.0 DEALER PRICES AND DISCOUNTS 9
9.0 DEALER PRICE LIST AND DISCOUNT CHANGES 10
10.0 LUCENT BILLING AND DEALER PAYMENT 11
11.0 DEALER FORECAST AND REPORTS 11
12.0 TITLE AND RISK OF LOSS 11
13.0 INSURANCE 12
14.0 USE OF INFORMATION 12
15.0 LICENSE 13
16.0 TRADEMARKS 14
17.0 PRODUCT WARRANTY 14
18.0 LIMITATION OF LIABILITY 15
19.0 INDEMNITY 16
20.0 INFRINGEMENT 17
21.0 TERMINATION OF AGREEMENT 18
22.0 EFFECTS OF TERMINATION 19
23.0 SURVIVAL OF OBLIGATIONS 20
24.0 FORCE MAJEURE 20
25.0 SECURITY INTEREST 20
26.0 SEVERABILITY 20
27.0 ASSIGNMENT 21
28.0 NON-WAIVER 21
29.0 CHOICE OF LAW AND DISPUTES 21
30.0 NOTICES 22
31.0 ENTIRE AGREEMENT 22
32.0 TERM 22
APPENDIX: 24
ADDENDUM: ENDEAVOR(TM)
ARS OPERATION GUIDE
AGREEMENT NO.: ARS-XXX 99202.
ARS DEALER AGREEMENT BETWEEN LUCENT TECHNOLOGIES AND
FARMSTEAD TELEPHONE GROUP, INC.
FOR BUSINESS COMMUNICATIONS SYSTEMS
This ARS Dealer Agreement ("Agreement") is effective as of December
16, 1998 and is between Lucent Technologies Inc. ("Lucent"), a Delaware
corporation, through its Business Communications Systems unit ("BCS"), with
offices at 000 Xxxxx Xxxx Xxxx, Xxxxxxx Xxxxx, Xxx Xxxxxx 00000, and
Farmstead Telephone Group, Inc., ("Dealer"), with offices at 00 Xxxxxxxx
Xxxx Xxxxxx, Xxxx Xxxxxxxx, XX 00000.
WHEREAS, Lucent desires in certain geographic areas of the United
States to have others with the necessary marketing capabilities, integrity
and dedication to End User satisfaction to assist Lucent in marketing
Business Communications Systems parts to End Users;
WHEREAS, Dealer represents that it has the necessary marketing
capabilities, integrity and dedication to sell forecast quantities of
Lucent Business Communications Systems parts to End Users located in
Dealer's Area.
WHEREAS, the parties represent that each will conduct its business in
a manner that reflects favorably on the quality image of itself, the other
party and Lucent's Products;
WHEREAS, Dealer represents that it has or will acquire the service
capabilities necessary to meet Lucent's quality standards for design,
installation, and provision of warranty and maintenance on-site services
for Lucent Products, if Dealer opts to provide such services;
WHEREAS, Lucent has relied upon these Dealer representations and
forecasts as the basis for granting Dealer the right to market its Lucent
Products in the Area;
NOW, THEREFORE, Lucent and Dealer hereby agree as follows:
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1.0 DEFINITIONS
----------------
For the purposes of this Agreement, the following terms and their
definitions shall apply:
1.1 "Area" means the specific geographic area in which Dealer has
agreed to market Lucent Products in accordance with this Agreement. The
specific geographic areas that comprise the Area are identified by city,
state, county and zip code or other appropriate description in Appendix:
Area.
1.2 "Dealer Service" means one or more of those services Dealer may
choose to perform itself for Lucent Products in the Area. Dealer Services
include system configuration to the End User, installation, warranty, and
provision of post-warranty on-site maintenance.
1.3 "End User" means a third party to whom Dealer markets or sells
Lucent Products within the Area for use by such third party in the ordinary
course of its business and not for resale; End User does not include any
Lucent BCS Global Account or any office, department, agency, or defense
installation of the United States Government except as allowed for in
separate agreements with Lucent Technologies.
1.4 "Lucent Product" means an item of Lucent equipment model in an
Appendix to this Agreement that Dealer has purchased directly from Lucent
through its BCS Distribution Development and Management group or an order
source within Lucent designated by the BCS Distribution Development and
Management group (collectively, "DDM") and that carries the standard Lucent
warranty when resold to an End User. Each Lucent Product consists of one or
more Product Components. The set of Product Components that may be used to
equip a Lucent Product is determined solely by Lucent, which has the right
to reject any order placed by Dealer that does not reflect rational
complete Lucent Products or reasonable inventory requirements.
1.5 "Lucent Service" means one or more of those services provided by
Lucent that Dealer may choose to resell as a Lucent Service Sales Agent,
including system configuration, installation, provision of post-warranty
and on-site and remote maintenance service, and Professional Services.
Lucent Service also includes post-warranty remote maintenance service
separate from post-warranty on-site maintenance service, which Dealer may
offer in conjunction with Dealer Service. Lucent Services, including the
prices at which they may be offered to end users and the commissions
payable on their sale, and the price at which Lucent will provide remote
maintenance service as a subcontractor for Dealer Service are described and
identified in the ARS Operational Guide.
1.6 "Product Component" means an item of equipment identified by a
Lucent equipment price element code or material code. To the extent that a
Product Component contains or consists of any firmware or software, an End
User shall have the right to use such firmware or software in accordance
with Section 15.0.
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1.7 "Software" means any computer program that is composed of
routines, subroutines, instructions, processes, algorithms, and like ideas
or know-how, owned by or licensed to Lucent and or one or more of its
suppliers, regardless of the medium of delivery, including revisions,
patches and updates of the same.
1.8 "Territory" means the United States of America, including the
District of Columbia but excluding 1) the Commonwealth of Puerto Rico and
all other territories, protectorates and possessions of the United States
of America, and 2) the geographical areas defined as the "Primary Area of
Responsibility" for Cincinnati Xxxx Telecommunication Services Inc. (the
operating area of Cincinnati Xxxx Telephone Company in the states of Ohio,
Indiana and Kentucky), and Progressive Communications of Hawaii, Inc. (the
state of Hawaii).
2.0 DEALER APPOINTMENT
-----------------------
2.1 Lucent hereby appoints Dealer, and Dealer hereby accepts an
appointment, to be an authorized Lucent Dealer for the limited purpose of
marketing and selling the Lucent Product listed in the Appendix to End
Users within the Area and the Territory in accordance with the terms and
conditions of this Agreement. Dealer's authorized marketing location (s)
and shipping location (s) are set forth in the Appendix. Lucent's
appointment of Dealer is predicated on Dealer's agreement to market the
Lucent Product in the Area and to achieve the Area forecast submitted
pursuant to Section 11.0 of this Agreement. Lucent Products installed
outside the Area will not be considered by Lucent when determining whether
Dealer has achieved its Area forecast submitted pursuant to Section 11 of
this Agreement. Dealer's sales of Lucent Product Components outside the
Area (unless specifically permitted by this Section 2. 1), Dealer's failure
to limit its marketing efforts and sales of Lucent Product Components to
authorized locations or authorized End-Users, or Dealer's failure to
achieve levels of sales acceptable to Lucent in the Area shall, among
others, be grounds for termination or nonrenewal of this Agreement.
2.2 Dealer's sales of Lucent Products and Lucent Product Components
to other resellers shall be grounds for termination or nonrenewal of this
Agreement. Dealer agrees that it has no exclusive right to market the
Lucent Products set forth in the Appendix hereto in the Area or Territory,
and that no franchise is granted to Dealer herein. No payment of any fee or
equivalent charge is required of Dealer by Lucent as a condition of this
Agreement.
2.3 Lucent expressly reserves both the right to contract with others
to market Lucent Products in the Territory and the Area and to itself
directly engage in such marketing.
2.4 The relationship of the parties under this Agreement shall be,
and shall at all times remain, one of independent contractors and not that
of franchiser and franchisee, joint venturers, or principal and agent.
Neither party shall have any authority to assume or create obligations on
the other's behalf with respect to Lucent Products, and neither party shall
take any action that has the effect of creating the appearance of its
having such authority.
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2.5 All persons furnished by Dealer shall be considered solely
Dealer's employees, and Dealer shall be solely responsible for payment of
all their unemployment, Social Security and other payroll taxes including
contributions from Dealer when required by law.
2.6 Dealer may market Lucent Products only from the authorized
marketing locations set forth in the Appendix. During the term of this
Agreement, no new or additional Dealer marketing location(s) may be
established in or outside of the Area to market Lucent Products without
prior written authorization from Lucent.
2.7 Dealer may not market or sell Lucent Products to any Lucent BCS
Global Account, or any office, department, agency, or defense installation
of the United States Government except as allowed for in a separate
agreement with Lucent, and will use its best efforts to ensure that Dealer
does not market to present direct customers of Lucent who are under
warranty or with existing maintenance contracts for Lucent products or to
any entity that is considering a proposal from Lucent for products or
maintenance services, except that Dealer may respond to a request directed
to Dealer for a competitive bid, proposal, or quotation even if Lucent is
also responding.
3.0 DEALER RESPONSIBILITIES
----------------------------
3.1 Dealer has previously submitted to Lucent an "Authorized Dealer
Application". Dealer certifies and warrants that, to the best of its
knowledge, such information is current, accurate, complete and not
misleading. Dealer also agrees during the term of this Agreement to notify
Lucent immediately in writing and describe in detail any significant or
material change in such information.
3.2 Dealer agrees to devote its best efforts to promote and market
Lucent Products to End-Users within the Area. Dealer also warrants that it
will conduct its business in a manner that reflects favorably on the
quality image of Lucent Products and on the good name, goodwill or
reputation of Lucent and will not employ deceptive, misleading or unethical
practices that are or might be detrimental to Lucent or its Products.
3.3 Dealer shall not purchase or otherwise obtain Lucent Products
for resale from any source other than DDM unless a Lucent Product is not
available from BCS on a timely basis, in which case Dealer may purchase
that Lucent Product from the Lucent Catalogs, provided that such purchases
are only to meet a specific customer need. Unless agreed to in writing as
stated in Section 3 1.0, Dealer's purchase or resale of an unused product
originally manufactured by Lucent that, if purchased from DDM, would be a
Lucent Product under this Agreement, shall be grounds for termination of
this Agreement as stated in Section 21.2.
3.4 Dealer shall provide and consistently maintain a staff of
adequately trained and competent sales personnel, knowledgeable of the
specifications, features and advantages of the Lucent Products. Such
personnel shall be made aware of the restrictions on use of Lucent's
Information as set forth in Section 14.0. All marketing or Lucent Product
training requested by the Dealer and offered by Lucent, will be furnished
to Dealer at Lucent's standard rates, terms and conditions.
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3.5 If Dealer chooses to provide Dealer Service, Dealer shall
provide and consistently maintain a staff of services personnel, trained on
the Lucent Products to Lucent's specifications. Such personnel shall be
made aware of the restrictions on use of Lucent's Information as set forth
in Section 14.0. All services training that Lucent requires Dealer
personnel to undergo, or other services training requested by the Dealer
and offered by Lucent, will be furnished to Dealer at Lucent's standard
rates, terms and conditions. If Dealer has subcontracted with Lucent to
perform all or part of Dealer Service to an End User and Dealer installs
unused product (s) manufactured by Lucent but not purchased from DDM as
part of that End User's system, in addition to any other remedies available
to Lucent, Lucent may terminate any Dealer licenses to use Lucent
maintenance software and may also terminate its subcontracts with Dealer to
perform Dealer Service. If Dealer has sold a Lucent Product and a Lucent
Post-Warranty Maintenance service contract to an End User, Dealer will
advise such End User that addition of unused product (s) to the Lucent
Product system may void Lucent's warranty and cause Lucent to terminate the
service contract.
3.6 Dealer agrees to purchase and maintain a working Lucent system
either as a demonstration model or as Dealer's primary telecommunications
system at each of Dealer's principal marketing locations.
3.7 n/a
3.8 Dealer shall inform End Users of the Services available from
Dealer.
3.9 Dealer shall report promptly to Lucent all known or suspected
Lucent Product defects or safety problems and keep Lucent informed of End
User complaints with respect to Lucent Products or Services.
3.10 Dealer shall provide Lucent reasonable access to Dealer's
premises during normal business hours to inspect and verify Dealer
performance of its obligations under this Agreement, including the right to
inspect and audit Dealer's records relating to Lucent Product transactions
in and out of Dealer's Area, Dealer's purchases and sales of unused
products, Distribution Functions and Dealer Services.
3.11 Dealer shall comply with all applicable requirements of
federal, state and local laws, ordinances, administrative rules and
regulations, including, by way of illustration and not limitation, all
requirements of Part 68 of the Federal Communication Commission's (FCC)
Rules and Regulations and the Federal Export Administration Act of 1969, 50
U.S.C. app. Sections 2401-2414.
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3.12 To ensure timely delivery to End Users, Dealer shall maintain,
subject to availability from Lucent, an adequate inventory of Lucent
Products. Upon request, Dealer shall make available to Lucent the status of
Dealer's current inventory of Lucent Product Components.
3.13 Dealer shall have the capability of providing End Users
reasonable financing alternatives to facilitate the procurement of Lucent
Products and Dealer Services. Dealer shall furnish evidence of such
capability to Lucent upon request.
3.14
a. To ensure fulfillment of Lucent's Product and Software
warranties to End Users, to ensure End User safety, to ensure End
Users receive the latest information concerning the use of Lucent
Products and enhancements thereto, to maintain End User satisfaction,
and to assist Lucent in tracking equipment maintenance obligations
and materiel accountability, Dealer agrees to maintain and make
available to Lucent on reasonable request an accurate and complete
list of Dealer's Lucent Product and Software End Users by name,
installation address, the Lucent Product Components furnished to each
End User, the transaction date, and (for End Users who elect to
install their own systems only), all serial numbers associated with
the new Lucent Products, Software or new Lucent Product Components.
The obligation to maintain and make such information available to
Lucent shall survive expiration or termination of this Agreement..
Lucent will use this information solely for the purposes set forth in
this Section 3.14.
b. If Lucent is to install the Products, Dealer shall give the
information described in 3.14 a., above, to the Lucent Branch where
the End User is located, in the agreed format, as soon as Dealer's
order process is completed. This will enable the customer to receive
the Lucent Warranty on the new Lucent Products and Software, and if
the customer has a Post Warranty Maintenance contract and has like
products, the new Lucent Products will automatically be added to that
contract when the Warranty expires.
3.15 Dealer shall keep accurate accounts, books and records relating
to the business of Dealer with respect to Lucent Products and Dealer
Services in accordance with generally accepted commercial and business
accounting principles and practices that are sufficient for Lucent to
ascertain Dealer's compliance with its obligations under this Agreement.
3.16 Dealer agrees to participate in Lucent's Customer Satisfaction
Surveys. Lucent may conduct performance reviews of all Dealer
responsibilities.
3.17 By the fifth (5th) business day of each month, in a format to
be provided by Lucent to Dealer, Dealer will submit a point-of-sale report
of sales made the previous month, by ZIP code, year, month, Pecode,
quantity.
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4.0 INSTALLATION, WARRANTY AND POST-WARRANTY SERVICES
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4.1 Lucent agrees to furnish any Lucent Services required by End
Users purchasing Lucent Products from Dealer, as Dealer requests, until
Dealer's installation and maintenance personnel have completed training to
the satisfaction of Lucent. During such interim period, Dealer agrees to
propose Lucent, and only Lucent, Services in connection with each End User
purchase of Lucent Products under this Agreement, and Dealer will apply for
appointment as a Lucent Service Sales Agent. Connection of unused product
(s) manufactured by Lucent to the Lucent Product system may void Lucent's
warranty to such End User and cause Lucent to terminate the Lucent Services
contract with such End User.
4.2 After such training has been completed, Services may be
furnished by the Dealer for Lucent Products under this Agreement, as
required by End Users purchasing such Lucent Products. To ensure Dealer
provision of high quality Services to End Users, Dealer shall: (i) perform
Services directly and not through a non-Lucent independent contractor or
agent except with Lucent's specific permission; and (ii) perform such
Services competently and in accordance with any applicable Lucent
standards. The indemnity obligations of Dealer under Section 19.1 shall
apply to any Services furnished by Dealer to End-Users. If Dealer desires
to have Lucent perform certain Services for Dealer's End Users, Dealer may
continue to function as a Lucent Service Sales Agent.
4.3 Lucent's appointment of Dealer to market Lucent Products
hereunder is predicated on Dealer's agreement that it will hold itself out
as authorized by Lucent to provide Services only as to Lucent Products
hereunder and will, to the sole satisfaction of Lucent, clearly distinguish
its authorization to provide Services for such Lucent Products and its lack
of authorization to provide Services for other Lucent-manufactured
equipment, unless such authorization is provided by written agreement with
Lucent. Dealer also agrees to inform End Users of such distinction in
Dealer's marketing (including brochures or other printed or written
materials) of Lucent Products and of any other Lucent equipment. In
addition to any other events of termination set forth in this Agreement,
Dealer's failure to distinguish between its authorization to offer Services
as to Lucent Products and its lack of authorization to offer Services as to
other Lucent equipment or to inform End Users of such distinction shall
entitle Lucent to terminate this Agreement upon written notice to Dealer.
5 Dealer may incorporate Lucent's remote maintenance support features
in its Services Offers to End-Users. Lucent will serve as Dealer's
subcontractor for such remote maintenance. NO LICENSE IS GRANTED, AND
NO TITLE OR OTHER OWNERSHIP RIGHTS IN LUCENT'S INTELLECTUAL PROPERTY
RELATED TO LUCENT'S PROVISION OF REMOTE MAINTENANCE SUPPORT SHALL
PASS TO DEALER UNDER THIS AGREEMENT OR AS A RESULT OF ANY PERFORMANCE
HEREUNDER. Dealer agrees to provide Lucent with accurate information
on End User port capacity, software attachments, and other
information required in order for Lucent to invoice Dealer accurately
for such remote support. Failure to provide such accurate information
or to update it on a timely basis shall entitle Lucent to terminate
this Agreement upon written notice to Dealer. Except as
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agreed to in writing as stated in Section 3 1.0, connection of unused
product (s) manufactured by Lucent but not purchased from DDM as part
of an End User's system may, in addition to any other remedies
available to Lucent, permit Lucent to terminate any Dealer licenses
to use Lucent maintenance software and also terminate its subcontract
(s) with Dealer to perform Dealer Service.
5.0 DEALER ORDERS
------------------
5.1 Orders for Lucent Products submitted by Dealer shall refer to
this Agreement's identification number and shall contain the information
necessary for proper delivery and invoicing of Product Components
including, without limitation, the date of the order, a description of and
the price element code for Product Components to be furnished and any
shipping instructions. All orders submitted by Dealer shall be deemed to
incorporate and are 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 contained on any order form or correspondence originated by
Dealer are rejected and shall have no effect. Lucent may require that
Product Components be ordered only in factory-packed quantities or in
minimum order amounts. Lucent reserves the right to reject any order or
portion thereof, which right will not be exercised unreasonably..
5.2 Lucent will ship Lucent Products ordered by Dealer only to the
authorized shipping location(s) within the Area specified in the Appendix:
Addresses, or only if Lucent is installing the Products, to the premises of
an End User within the Area.
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6.0 DEALER CANCELLATION OF ORDERS
----------------------------------
Dealer may, upon prior written notice to Lucent, cancel any order or
portion thereof except with respect to Lucent Product that have already
been delivered by Lucent to a carrier for shipment to Dealer. Dealer agrees
to pay to Lucent, upon any such cancellation, a liquidated amount equal to
fifteen percent (15%), if the canceled order is not for a configured system
or systems, or twenty percent (20%), if the canceled order is for a
configured system or systems, of the purchase price of the canceled portion
of the order to compensate Lucent for its costs and expenses associated
with such cancellation. If an order is delayed or suspended for more than
two months at the request of, or for reasons attributable to, Dealer, such
order shall be considered as having been canceled and will be subject to
the cancellation charges set forth in this Section.
7.0 PRODUCT, PRODUCT COMPONENTS AND SOFTWARE LICENSE CHANGES
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7.1 Lucent may without the consent of Dealer, but with thirty (30)
days advance written notice to Dealer, delete any Lucent Product from the
Appendix.
7.2 Lucent may, at any time without advising Dealer, make changes in
the Lucent Products or modify the drawings and specifications relating
thereto, or substitute Lucent Products of later design to fill an order,
provided the changes, modifications or substitutions under normal and
proper use do not adversely impact upon form, fit or function or are
recommended by Lucent to enhance safety. Lucent may, at any time with ten
days advance written notice to Dealer, change the terms of its End User
Software License.
8.0 ARS DEALER PRICES AND DISCOUNTS
------------------------------------
8.1 The prices applicable to Dealer orders requesting shipment
within Lucent's then current Lucent Product shipment intervals shall be
determined in accordance with: (i) Lucent's Dealer List prices in effect on
the date an order is accepted by Lucent (i.e., the date it is entered in
Lucent's order processing system); (ii) the ARS discount schedule in effect
on the date the order is accepted by Lucent; and (iii) the provisions of
this Section 8.0. Lucent's ARS discount and rebate schedules are contained
in the ARS Operational Guide. Dealer orders requesting delayed shipment
(i.e., shipment on dates beyond Lucent's then current Lucent Product
shipment intervals) shall be subject to price increases and discount
decreases that become effective before shipment.
8.2 The discount applicable to Dealer orders placed, and not
subsequently canceled, during the term of this Agreement and any subsequent
term of a substantially similar Agreement, will be determined based on the
then effective discount schedule and the actual dollar value, based on
Dealer List Prices, of all orders placed and not subsequently canceled
during the immediately preceding quarter. The otherwise applicable discount
percentage will be reduced by an amount set forth in the then effective
discount schedule for the quarter following any quarter
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in which Lucent learns of Lucent Product sales by Dealer not in conformance
with the terms of Section 2.1 of this Agreement.
8.3 Lucent may verify or audit Dealer's Lucent Product and Lucent
Product Component sales records or rebate calculations and request copies
of invoices, shipping documents, payment records and the like in connection
with such audits, which requests will not be unreasonably refused.
9.0 DEALER PRICE LIST AND ARS DISCOUNT CHANGES
-----------------------------------------------
9.1 Lucent may decrease Dealer list prices or increase discounts or
rebates in the ARS discount or rebate schedules without advance notice to
or the consent of Dealer. Lucent agrees to provide written notice of any
such price or discount changes and the effective date thereof. Lucent
agrees to provide to Dealer on previously ordered Lucent Products either a)
a recomputation of the amounts payable for all orders accepted by Lucent
within sixty (60) days prior to the effective date of the applicable price
decrease or discount increase, or b) a recomputation of Dealer charges
based on actual inventory held by Dealer at Dealer's authorized shipping
location on the date Dealer receives notification of the applicable price
decrease or discount increase, whichever is greater. Lucent reserves the
right to audit associated inventory levels. The difference between the
recomputed amounts and previously invoiced amounts will be reflected as a
credit to Dealer's account. Lucent also may institute promotional price
decreases or discount increases at any time under such terms and conditions
as Lucent in its sole discretion shall determine are appropriate.
Promotional prices and discounts shall apply only during the period
specified by Lucent and there shall be no recomputation of amounts payable
by Dealer for orders placed prior to such period.
9.2 Lucent may, without the prior consent of Dealer, increase Dealer
list prices or decrease discounts or rebates in the Dealer discount or
rebate schedules provided Lucent furnishes Dealer written notice of any
such changes thirty (30) days in advance of the effective date.
9.3 Unless expressly stated to the contrary, Dealer list prices do
not include taxes or Lucent's charges for related domestic transportation
or storage services. Lucent's Dealer list prices do include its standard
packing for domestic shipment. All Lucent Product prices are F.O.B.
Lucent's shipping point. Unless Dealer furnishes Lucent a valid tax
exemption certificate, Dealer 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).
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10.0 LUCENT BILLING AND DEALER PAYMENT
---------------------------------------
Invoices for Lucent Products will be sent by Lucent upon shipment, or
as soon thereafter as practicable. Unless Dealer is otherwise notified by
Lucent in writing, Dealer shall pay the invoiced amount in full on receipt
of Lucent's invoice. Payments not received within thirty (30) days of the
invoice date may, at Lucent's option, 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 or the maximum lawful rate, whichever is lower.
The amount of Dealer credit or terms of payment may be changed or credit
withdrawn by Lucent at any time upon notice to Dealer in writing, unless
Dealer provides Lucent with adequate assurance of performance, as that
phrase is used in Section 2-609 of the Uniform Commercial Code as adopted
in Delaware within ten days of any such written notice.
11.0 DEALER FORECAST AND REPORTS
---------------------------------
11.1 Upon execution of this Agreement, Dealer shall submit to Lucent
a forecast of total Lucent Product orders to be placed by Dealer during the
contract term. The forecast must specify, for each quarter, the total
dollar order volume (based on Dealer Price List prices) to be ordered. In
the event of price increases or discount decreases, as described in Section
9.2 hereof, Dealer may amend its current forecast within 30 days of the
receipt of written notice of such price changes.
11.2 Lucent may reject any forecast submitted by Dealer if, in
Lucent's sole judgment, such forecast does not project either: (1) the
level of Lucent Product orders Lucent reasonably requires of Dealer to
achieve its marketing objectives in the Area; or (2) a realistic assessment
of Dealer's potential successful marketing opportunities in the Area during
the forecast period. Lucent shall notify Dealer in writing within thirty
(30) days of receipt of Dealer's forecast if Lucent has rejected such
forecast or it will be deemed to have been accepted by Lucent.
11.3 Dealer shall submit the forecast of Lucent Product orders in a
format specified by Lucent.
12.0 TITLE AND RISK OF LOSS
----------------------------
12.1 Title (except for firmware and software) and risk of loss or
damage to Lucent Products shall pass to Dealer: (i) at the time Lucent or
its supplier delivers possession of the Lucent Products to a carrier; or
(ii) if there is no carrier, at the time Dealer takes possession of the
Lucent Products at Lucent's or its supplier's plant or warehouse or other
facility. Claims for shortages or for merchandise damaged during shipment
must be filed with the freight carrier by Dealer. Lucent will cooperate
with Dealer but will not assume responsibility for the processing or
collection of claims. Dealer may make no deductions from invoices for
claims against a carrier.
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12.2 TO BE EFFECTIVE, DEALER REJECTION OR REVOCATION OF ACCEPTANCE
OF NONCONFORMING GOODS MUST BE MADE BY WRITTEN NOTICE TO LUCENT WITHIN TEN
(10) DAYS AFTER DELIVERY. LUCENT PRODUCTS REJECTED OR NOT ACCEPTED BY
DEALER MUST BE RETURNED WITHIN THIRTY (30) DAYS IN THEIR ORIGINAL PACKAGING
IN ACCORDANCE WITH LUCENT'S INSTRUCTIONS. A restocking charge in the amount
of twenty percent (20%) of the purchase price will apply to returns,
accepted by Lucent, of products ordered in error by Dealer.
13.0 INSURANCE
---------------
Dealer shall maintain, during the term of this Agreement, all
insurance and bonds required by any applicable law, including but not
limited to: (1) workers' compensation insurance as prescribed by the laws
of all states in which work pursuant to this Agreement is performed; (2)
employer's liability insurance with limits of at least $1 million per
occurrence; and (3) comprehensive personal liability insurance coverage
(including products liability coverage and comprehensive automobile
liability coverage) with limits of at least $1 million for bodily injury,
including injury to any one person and $1 million on account of any single
occurrence, and $1 million for each occurrence of property damage, or in
lieu of such limits, bodily injury and property damage liability insurance
(including products liability and comprehensive automobile coverage) with a
combined single limit of at least $2 million per occurrence. Dealer shall
name Lucent as an Additional Insured on all such policies.. Upon request of
Lucent, Dealer shall furnish adequate proof of such insurance.
14.0 USE OF INFORMATION
------------------------
All technical and business information, Dealer List prices, ARS
discounts or rebates, and trade secrets in any form, furnished to Dealer
under or in contemplation of this Agreement and identified as or known by
Dealer to be proprietary to Lucent (all hereinafter designated
"Information") shall remain the property of Lucent. Unless Lucent otherwise
expressly agrees in writing, such Information: (i) shall be treated in
confidence by Dealer and used by Dealer only for the purposes of performing
Dealer's obligations under this Agreement; (ii) shall not be disclosed to
anyone, except to employees of Dealer and End Users to whom such disclosure
is necessary to the use for which rights are granted hereunder; (iii) shall
not be reproduced or copied in whole or in part, except as necessary for
use as authorized in this Agreement; and (iv) shall, together with any
copies thereof, be returned, be destroyed or, if recorded on an erasable
storage medium, be erased when no longer needed or when this Agreement
terminates, whichever occurs first. Any copies made as authorized herein
shall contain the same copyright notice or proprietary notice or both that
appear on the Information copied. The above conditions do not apply to any
part of the Information (i) which is or becomes known to the receiving
party or its affiliates free of any obligation to keep same in confidence;
(ii) which is or becomes generally available to the public without breach
of this Agreement; or (iii) which is developed by the receiving party or
its affiliates. The obligation of confidentiality and restrictions on use
of Information shall exist for a period of (i) five (5) years after the
termination of this Agreement, or (ii) ten (10) years after the receipt of
such Information, whichever is longer.
12
All technical and business information and trade secrets in any form,
furnished to Lucent under or in contemplation of this Agreement and
identified as or known by Lucent to be proprietary to Dealer (all
hereinafter designated "Information") shall remain the property of Dealer.
Unless Dealer otherwise expressly agrees in writing, such Information: (i)
shall be treated in confidence by Lucent and used by Lucent only for the
purposes of performing Lucent's obligations under this Agreement; (ii)
shall not be disclosed to anyone, except to employees of Lucent and End
Users to whom such disclosure is necessary to the use for which rights are
granted hereunder; (iii) shall not be reproduced or copied in whole or in
part, except as necessary for use as authorized in this Agreement; and (iv)
shall, together with any copies thereof, be returned, be destroyed or, if
recorded on an erasable storage medium, be erased when no longer needed or
when this Agreement terminates, whichever occurs first. Any copies made as
authorized herein shall contain the same copyright notice or proprietary
notice or both that appear on the Information copied. The above conditions
do not apply to any part of the Information (i) which is or becomes known
to the receiving party or its affiliates free of any obligation to keep
same in confidence; (ii) which is or becomes generally available to the
public without breach of this Agreement; or (iii) which is developed by the
receiving party or its affiliates. The obligation of confidentiality and
restrictions on use of Information shall exist for a period of (i) five (5)
years after the termination of this Agreement, or (ii) ten (10) years after
the receipt of such Information, whichever is longer.
15.0 LICENSE
-------------
15.1 Upon delivery of Lucent Product firmware and software to
Dealer, Lucent grants to Dealer a personal and non-exclusive right to use
such licensed materials ("Licensed Materials") in the Area and Territory
solely to fulfill its duties and obligations under this Agreement. NO TITLE
OR OTHER OWNERSHIP RIGHTS IN INTELLECTUAL PROPERTY OR OTHERWISE IN THE
LICENSED MATERIAL OR ANY COPY THEREOF SHALL PASS TO DEALER UNDER THIS
AGREEMENT OR AS A RESULT OF ANY PERFORMANCE HEREUNDER.
15.2 Dealer agrees: (i) to make only those copies of Software
necessary for its use under this Agreement and assure that such copies
contain any proprietary or copyright notice appearing on the Software being
copied; (ii) not to reverse engineer, decompile or disassemble the Licensed
Materials or otherwise attempt to learn the source code, structure,
algorithms or ideas underlying the Licensed Materials; (iii) not to export
the Licensed Materials out of the Territory, and (iv) not to use the
Software directly for any third person or permit any third person to use
the Software except as necessary under this Agreement.
15.3 Lucent further grants to Dealer the right to furnish Licensed
Materials to End Users coincident with the sale of Lucent Products
utilizing such Licensed Materials, provided, however, that unless the
Licensed Materials come with a limited use license, which may be in the
form of a shrink-wrap (break-the-seal) agreement, provided by Lucent,
Dealer obtains agreement
13
in writing from the End User, before or at the time of furnishing each copy
of Licensed Materials, in the form set forth in an Appendix to this
Agreement.
16.0 TRADEMARKS
----------------
16.1 Lucent grants Dealer permission to utilize certain Lucent
designated trademarks, insignia, and symbols ("Marks") in Dealer's
advertising and promotion of Lucent Products furnished hereunder, provided
such use conforms to Lucent's standards and guidelines. Dealer shall not do
business under any Xxxx or any derivative or variation thereof, and Dealer
shall not directly or indirectly hold itself out as having any relationship
to Lucent or its affiliates other than as an "Authorized Lucent ARS Dealer"
or other Lucent approved term. Except as provided in Section 22.2.2, Marks
may only be used by Dealer to advertise and promote the Lucent Products
during the term of this Agreement. Marks are not to be used by Dealer in
any way to imply Lucent's endorsement of products, licensed materials or
services not furnished hereunder, such as used or unused products
originally manufactured by Lucent. Except as agreed in writing as stated in
Section 3 1.0 Marks are not to be used by Dealer in advertising or
marketing materials, including print, radio, television, broadcast
facsimile, telemarketing or Internet websites, that reach End User
prospective customers outside Dealer's Area. Such uses of Marks will be
cause for immediate termination of this Agreement. Dealer will not alter or
remove any Xxxx applied to Lucent Products without the prior written
approval of Lucent. Nothing in this Agreement creates in Dealer and Dealer
agrees not to assert, any rights in the Marks.,
16.2 All Dealer-initiated advertisements or promotions using Marks
or any reference thereto, whether under a promotional allowance program or
otherwise, shall receive to prepublication review and approval by Lucent
with respect to, but not limited to context, style, appearance,
composition, timing and media.
16.3 This Agreement does not give Dealer any rights to use the logo
or trademark of AT&T Corp. Such rights cannot be obtained under this
Agreement or any other Agreement with Lucent Technologies Inc.
17.0 PRODUCT WARRANTY
----------------------
17.1 Dealer may, but is not required to, provide warranties and
remedies in addition to but not less than the warranties and remedies set
forth in Section 17.2. Dealer shall inform the End User of Lucent's
Limitation of Liability as set forth in Section 18 of this Agreement, in a
reasonable manner. Lucent hereby warrants to Dealer the title of the Lucent
Products purchased under this Agreement. This warranty of title is the only
warranty provided to Dealer.
17.2 Dealer shall, before or at the time of delivery of Lucent
Products, advise an End User of the following:
(i) that the Lucent Products may contain remanufactured parts
that are equivalent to new in performance and appearance;
14
(ii) that there is a toll fraud exclusion in Lucent's
warranty, with a specific reference to the words of that exclusion
and an explanation of the meaning of those words;
(iii) that the Lucent Products are warranted by Lucent to End
User on the Delivery or In-Service Date, whichever is applicable, and
for a period of one (1) year thereafter to operate in accordance with
Lucent's standard published specifications and if any Lucent Products
are not operational during the warranty period, that the End User
shall notify the Dealer who at its option will replace or repair
those Lucent Products without charge. Replaced Lucent Products become
the property of Dealer; and upon their return to Lucent by Dealer,
Lucent will replace or repair those Lucent Products at no charge to
the Dealer or issue a credit to the account of the Dealer;
(iv) THAT LUCENT AND ITS AFFILIATES AND SUPPLIERS MAKE NO
OTHER WARRANTIES EXPRESS OR IMPLIED AND SPECIFICALLY DISCLAIM ANY
WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
17.3 EXCEPT FOR THE WARRANTY OF TITLE TO DEALER AND THE LIMITED
PRODUCT WARRANTY TO DEALER'S END USERS REFERENCED IN THIS SECTION, LUCENT,
ITS AFFILIATES AND SUPPLIERS MAKE NO , WARRANTIES EXPRESS OR IMPLIED AND
SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A
PARTICULAR PURPOSE.
17.4 The indemnity obligations of Dealer under Section 19.1 shall
apply to Dealer's provision of End User warranty assistance services and to
any failure to refer to and explain the toll fraud exclusion to an End
User.
18.0 LIMITATION OF LIABILITY
-----------------------------
EXCEPT FOR PERSONAL INJURY AND EXCEPT FOR THE LIABILITY EXPRESSLY
ASSUMED BY LUCENT UNDER SECTIONS 19 AND 20 OF THIS AGREEMENT, THE LIABILITY
OF LUCENT AND ITS PARENT OR AFFILIATES FOR ANY CLAIMS, LOSSES, DAMAGES OR
EXPENSES FROM ANY CAUSE WHATSOEVER (INCLUDING CLAIMS OF INFRINGEMENT AND
ACTS OR OMISSIONS OF THIRD PARTIES) REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE LESSER OF THE
DIRECT DAMAGES PROVEN OR THE REPAIR, REPLACEMENT COSTS (INCLUDING THE COSTS
OF COVER) OR PURCHASE PRICE OF THE PRODUCTS OR SERVICE THAT DIRECTLY GIVES
RISE TO THE CLAIM. IN NO EVENT SHALL LUCENT OR ITS PARENT OR AFFILIATES BE
LIABLE TO DEALER OR TO ANY OTHER COMPANY OR ENTITY FOR ANY INCIDENTAL,
RELIANCE, CONSEQUENTIAL OR ANY OTHER INDIRECT LOSS OR DAMAGE (INCLUDING
LOST PROFITS OR REVENUES OR CHARGES FOR
15
COMMON CARRIER TELECOMMUNICATION SERVICES OR FACILITIES ACCESSED
THROUGH OR CONNECTED TO PRODUCTS ["TOLL FRAUD"]) ARISING OUT OF THIS
AGREEMENT. NO ACTION OR PROCEEDING AGAINST LUCENT MAY BE COMMENCED MORE
THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THIS SECTION
SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.
EXCEPT FOR PERSONAL INJURY, THE LIABILITY OF DEALER AND ITS PARENT OR
AFFILIATES FOR ANY CLAIMS, LOSSES, DAMAGES OR EXPENSES FROM ANY CAUSE
WHATSOEVER (INCLUDING CLAIMS OF INFRINGEMENT AND ACTS OR OMISSIONS OF THIRD
PARTIES) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR
OTHERWISE, SHALL NOT EXCEED THE LESSER OF THE DIRECT DAMAGES PROVEN OR THE
REPAIR, REPLACEMENT COSTS (INCLUDING THE COSTS OF COVER) OR PURCHASE PRICE
OF THE PRODUCTS OR SERVICE THAT DIRECTLY GIVES RISE TO THE CLAIM. IN NO
EVENT SHALL DEALER OR ITS PARENT OR AFFILIATES BE LIABLE TO LUCENT OR TO
ANY OTHER COMPANY OR ENTITY FOR ANY INCIDENTAL, RELIANCE, CONSEQUENTIAL OR
ANY OTHER INDIRECT LOSS OR DAMAGE (INCLUDING LOST PROFITS OR REVENUES OR
CHARGES FOR COMMON CARRIER TELECOMMUNICATION SERVICES OR FACILITIES
ACCESSED THROUGH OR CONNECTED TO PRODUCTS ["TOLL FRAUD"]) ARISING OUT OF
THIS AGREEMENT. NO ACTION OR PROCEEDING AGAINST DEALER MAY BE COMMENCED
MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THIS
SECTION SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.
19.0 INDEMNITY
---------------
19.1 Dealer will indemnify Lucent for the full amount of any
settlement or final judgment that arises out of a claim or suit by a third
party to the extent that such claim or suit is based on strict tort
liability, breach of a warranty provided by Dealer, or the intentional or
negligent acts or omissions of Dealer. Dealer's obligation to indemnify
Lucent will be reduced in proportion to which the settlement or final
judgment is attributable to the strict tort liability of Lucent, breach of
a Lucent warranty, or the intentional or negligent acts or omissions of
Lucent, unless liability for such acts or omissions of Lucent is otherwise
excluded in other sections of this Agreement, or the negligent acts or
omissions of any other third party not under Dealer's direct control.
Dealer's obligation to indemnify Lucent shall be contingent upon: (1)
Lucent promptly notifying Dealer in writing of the existence of any claim
or suit that may result in a settlement or judgment for which Dealer may be
obligated to indemnify Lucent; (2) Lucent giving Dealer full opportunity
and authority to assume sole responsibility to settle and defend any such
claim or suit; and (3) Lucent furnishing to Dealer upon reasonable request
all information and assistance that Dealer deems to be reasonably required
to settle or defend such claim or suit. These indemnities are in lieu of
all other obligations of Dealer, express or implied, in law or in equity,
to indemnify Lucent for claims or suits covered by this section. Dealer's
liability to indemnify Lucent shall in no event exceed $500,000.
16
19.2 Unless Lucent's liability is otherwise limited or excluded in
other sections of this Agreement, Lucent will indemnify Dealer for the full
amount of any settlement or final judgment that arises out of a claim or
suit by a third party to the extent that such claim or suit is based on the
strict tort liability of Lucent, breach of a Lucent warranty, or the
intentional or negligent acts or omissions of Lucent. Lucent's obligation
to indemnify Dealer shall be reduced in proportion to which the settlement
or final judgment is attributable to the strict tort liability of Dealer,
breach of a Dealer warranty, or the intentional or negligent acts or
omissions of Dealer or any other third party not under Lucent's direct
control. Lucent's obligation to indemnify Dealer will be contingent upon:
(1) Dealer promptly notifying Lucent in writing of the existence of any
claim or suit that may result in a settlement or final judgment for which
Lucent may be obligated to indemnify Dealer; (2) Dealer giving Lucent full
opportunity and authority to assume sole responsibility to settle or defend
any such claim or suit; and (3) Dealer furnishing to Lucent upon reasonable
request all information and assistance available to Dealer that Lucent
deems to be reasonably required to settle or defend such claim or suit.
THIS INDEMNITY IS IN LIEU OF ALL OTHER OBLIGATIONS OF LUCENT, EXPRESS OR
IMPLIED, IN LAW OR IN EQUITY, TO INDEMNIFY DEALER FOR CLAIMS OR SUITS
COVERED BY THIS SECTION. LUCENT'S LIABILITY TO INDEMNIFY DEALER SHALL IN NO
EVENT EXCEED $500,000.
19.3 The party electing to take responsibility for settling or
defending any claim or suit covered by this Section 19.0 will be
responsible for the attorney's fees and costs incurred by said party to
settle or defend such claim or suit.
20.0 INFRINGEMENT
------------------
20.1 Lucent will defend or settle, at its own expense, any action
brought against Dealer or an End User, to the extent that it is based on a
claim that the normal use or sale of any Lucent Products provided under
this Agreement infringe any United States patent, trademark or copyright,
that any licensed materials provided under this Amendment infringe any
United States copyright or violate the trade secret of a third party.
Lucent will pay those costs, damages and attorneys' fees finally awarded
against Dealer or an End User in any such action attributable to any such
claim, but such defense, settlements and payments are conditioned on the
following: (i) that Lucent shall be notified promptly in writing by Dealer
or an End User of any such claim; (ii) that Lucent shall have sole control
of the defense of any action on such claim and of all negotiations for its
settlement or compromise; (iii) that Dealer or End User shall cooperate in
a reasonable way to facilitate the settlement or defense of such claim, and
that Dealer or End User has made no statement or taken any action that
might hamper or undermine Lucent's defense or settlement; (iv) that such
claim does not arise from modifications to Lucent Products or licensed
materials not authorized by Lucent or from use or combination of the Lucent
Products with software and/or apparatus or equipment not supplied or
specified by Lucent; (v) that such claim does not arise from adherence to
Dealer's or End User's instructions or the use of items, materials or
information of Dealer's or End User's origin, design or selection; and (vi)
that should Lucent Products or licensed materials become, or in Lucent's
opinion, be likely to become, the subject of such claim of infringement,
then Dealer or End User shall permit Lucent, at Lucent's option and
17
expense, either to: (1) procure for Dealer or End User the right to
continue using the Lucent Products or licensed materials, or (2) replace or
modify the same so that it is not subject to such claim and is functionally
equivalent or (3) upon failure of (1) and (2) above despite the reasonable
efforts of Lucent, remove the infringing Lucent Product or terminate
Dealer's or End User's rights under the license and refund the purchase
price or fee paid less a reasonable allowance for use, damage and
obsolescence. In the event that a claim of infringement arises for which
the liability of Lucent is excepted under (iv) or (v) above, Dealer or End
User will defend and save Lucent harmless to the same extent and subject to
the same limitations as apply to Lucent when Lucent is liable hereunder.
This Section 20.0 states the entire liability of Lucent with respect to
infringement by Lucent Products or licensed materials provided hereunder.
21.0 TERMINATION OF AGREEMENT
------------------------------
21.1 Dealer must give written notice to Lucent of its intent to
renew ninety (90) days in advance of the termination date.
21.2 Lucent may terminate this Agreement upon thirty (30) days prior
written notice to Dealer if. (i) Dealer markets or sells Lucent Products
outside the Area except as specifically permitted in Section 1. 1; (ii)
Dealer fails to limit its marketing efforts to authorized locations or End-
Users as defined in Section 1.3; (iii) Dealer materially fails to make
reasonable commercial efforts to achieve levels of sales that comply with
the Lucent Product forecasts for the Area submitted pursuant to Section
11.0; (iv) Dealer fails to provide an acceptable quality of service to End
Users in accordance with Lucent's Quality Policy; (v) there occurs any
material change in the management or control of Dealer; (vi) Dealer sold or
attempted to resell Lucent Products to any third party other than an End
User; (vii) Dealer appointed or attempted to appoint any unauthorized
manufacturer's representatives for Lucent Products; (viii) Dealer purchased
unused products manufactured by Lucent from a source other than DDM or sold
or attempted to resell any unused products manufactured by Lucent that, if
purchased through DDM, would be a Lucent Product under this Agreement; (ix)
Dealer misrepresented, by statement or by omission, Dealer's authority to
resell under this or any other written agreement with Lucent that is
limited to specific Lucent products or services, by stating or implying, by
use of a Lucent Xxxx otherwise, that the authority granted in this or such
other agreement applies to any Lucent product or service not covered by
this or such other agreement; or (x) Dealer failed to comply with Lucent's
guidelines for the proper use of Lucent's Marks.
21.3 Except as otherwise provided in this Agreement, either party
may terminate this Agreement upon thirty (30) days prior written notice if
the other party has defaulted in the performance or has breached its
obligations under this Agreement, and such breach or default remains
uncured for a period of twenty (20) business days following receipt of
notice of such breach or default.
21.4 Lucent may terminate this Agreement upon twenty-four (24) hours
written notice if Dealer has: (i) become insolvent, invoked as a debtor any
laws relating to the relief of debtors'
18
or creditors' rights, or has had such laws invoked against it; (ii) become
involved in any liquidation or termination of its business; (iii) been
involved in an assignment for the benefit of its creditors; (iv) remotely
accessed PBX locations maintained by Lucent directly; or (v) activated
software features without compensation to Lucent.
21.5 Dealer may terminate this Agreement on twenty-four (24) hours
written notice if Lucent has: (i) become insolvent, invoked as a debtor any
laws relating to the relief of debtors' or creditors' rights, or has had
such laws invoked against it; or (ii) become involved in any liquidation or
termination of its business; (iii) been involved in an assignment for the
benefit of its creditors.
21.6 Notwithstanding such termination rights, each party reserves
all of its legal rights and equitable remedies, including without
limitation those under the Uniform Commercial Code.
21.7 Neither party shall be liable to the other on account of
termination of this Agreement, either for compensation or for damages of
any kind or character whatsoever, on account of the loss by Lucent or
Dealer of present or prospective profits on sales or anticipated sales,
good will, or expenditures, investments or commitments made in connection
therewith or in connection with the establishment, development or
maintenance of Dealer's business.
22.0 EFFECTS OF TERMINATION
----------------------------
22.1 Notwithstanding any other provisions of this Agreement,
termination or expiration of this Agreement shall automatically accelerate
the due date of all invoices for Lucent Products, such that they shall
become immediately due and payable not later than the effective date of
termination.
22.2 Upon termination or expiration of this Agreement, Dealer shall
immediately:
22.2.1 provide Lucent with the first right to repurchase any
Lucent Products in Dealer's possession or control and not already
identified to an executed End User contract or outstanding proposal.
The price Lucent shall pay to Dealer to repurchase Lucent Products
shall be the price paid by Dealer. Dealer shall make such Lucent
Products available to Lucent within ten (10) business days of
Lucent's notice to Dealer of its intent to exercise such right;
22.2.2 discontinue any and all use of Marks, including but not
limited- to such use in advertising or business material of Dealer,
except to identify the Lucent Products; provided that if Lucent does
not repurchase Dealer's remaining inventory, Dealer may continue
using Marks as authorized in this Agreement for an additional ninety
(90) days for the limited purpose of marketing such inventory to End
Users after termination is effective;
22.2.3 remove and return to Lucent or destroy at Lucent's
request, any and all promotional materials supplied without charge by
Lucent except those necessary for the limited purpose of marketing
existing Dealer inventory pursuant to Section 22.2.2;
19
22.2.4 return all Lucent proprietary Information, Licensed
Materials and Software, except that which Lucent determines is
necessary to operate and maintain previously furnished Lucent
Products;
22.2.5 cease holding itself out, in any manner, as a Lucent
authorized Dealer of the Lucent Products; and
22.2.6 notify and arrange for all publishers and others
(including, but not limited to, publisher of telephone and business
directories) who may identify, list or publish Dealer's name as a
Lucent authorized Dealer of Lucent Products, to discontinue such
listings.
23.0 SURVIVAL OF OBLIGATIONS
-----------------------------
The respective obligations of Dealer and Lucent under this Agreement
that by their nature would continue beyond the termination, cancellation or
expiration of this Agreement, shall survive termination, cancellation or
expiration hereof, such as, by way of example only, the obligations
pursuant to the following Sections: USE OF INFORMATION, LICENSE,
TERMINATION OF AGREEMENT, LIMITATION OF LIABILITY, INDEMNITY and
TRADEMARKS.
24.0 FORCE MAJEURE
-------------------
Except for Dealer's obligation to make timely payments, neither party
shall be held responsible for any delay or failure in performance to the
extent that such delay or failure is caused by fires, embargoes,
explosions, labor disputes, government requirements, civil or military
authorities, acts of God, inability to secure raw materials or
transportation facilities, acts or omissions of carriers or suppliers or
any other causes beyond the parties' control whether or not similar to the
foregoing.
25.0 SECURITY INTEREST
-----------------------
n/a
26.0 SEVERABILITY
------------------
If any section, or clause thereof, in this Agreement is held to be
unenforceable, then the meaning of such section or clause will be construed
so as to render it enforceable, to the extent feasible; and if no
reasonable interpretation would save such section or clause, it will be
severed from this Agreement and the remainder will remain in full force and
effect. However, in the event such section or clause is considered an
essential element of this Agreement by either Lucent or Dealer, the parties
shall promptly negotiate a replacement therefor.
20
27.0 ASSIGNMENT
----------------
Dealer shall not assign any right or interest under this Agreement or
delegate any work or other obligation to be performed or owed by Dealer
under this Agreement without the prior written consent of Lucent, which
consent shall not be unreasonably withheld. Any assignment or delegation by
Dealer without such consent shall be void and ineffective. By the provision
of notice thereof in accordance with this Agreement, Lucent shall have the
right to assign this Agreement and to assign its rights and delegate its
obligations and liabilities under this Agreement, either in whole or in
part (an "Assignment"), to any entity that is, or that was immediately
preceding such Assignment, a current subsidiary, business unit, division or
other affiliate of Lucent. The notice of Assignment shall state the
effective date thereof. Upon the effective date and to the extent of the
Assignment, Lucent shall be released and discharged from all obligations
and liabilities under this Agreement. Such Assignment, release and
discharge shall be complete and shall not be altered by the termination of
the affiliation between Lucent and the entity assigned rights or delegated
obligations and liabilities under this Agreement.
28.0 NON-WAIVER
----------------
No course of dealing, course of performance or failure of either
party strictly to enforce any term, right or condition of this Agreement
shall be construed as a waiver of any term, right or condition.
29.0 CHOICE OF LAW AND DISPUTES
--------------------------------
29.1 The construction, interpretation and performance of this
Agreement shall be governed by the local laws of the State of Delaware.
29.2 Any controversy or claim, whether based on contract, tort,
strict liability, fraud, misrepresentation, or any other legal theory,
related directly or indirectly to this Agreement (the "Dispute") shall be
resolved solely in accordance with the terms of this Section, except as set
forth in paragraph 29.6 below.
29.3 If the Dispute cannot be settled by good faith negotiation
between the parties, Lucent and Dealer will submit the Dispute to non-
binding mediation. If complete agreement cannot be reached within thirty
(30) days of submission to mediation, any remaining issues will be resolved
by binding arbitration in accordance with paragraphs 28.4 and 28.5 below.
The Federal Arbitration Act, 9 U.S.C. Sections 1 to 15, not state law, will
govern the arbitrability of all Disputes.
29.4 A single arbitrator who is knowledgeable in the
telecommunications products field or in commercial matters will conduct the
arbitration. The arbitrator's decision and award will be final and binding
and maybe entered in any court with jurisdiction. The arbitrator will not
have authority to limit, expand or otherwise modify the terms of this
Agreement.
21
29.5 The mediation and, if necessary, the arbitration will be
conducted under the then current rules of the alternate dispute resolution
(ADR) firm selected by the parties, or if the parties are unable to agree
on an ADR firm, the parties will conduct the mediation and, if necessary,
the arbitration under the then current rules and supervision of the
American Arbitration Association (AAA). Lucent and Dealer will each bear
its own attorneys' fees associated with the mediation and, if necessary,
the arbitration. Lucent and Dealer will pay all other costs and expenses of
the mediation/arbitration as the rules of the selected ADR firm provide.
The parties and their representatives shall hold the existence, content and
result of the mediation and arbitration in confidence.
29.6 Unless both parties agree otherwise, Disputes relating to
Dealer's compliance with Section 16 of this Agreement (Trademarks) shall be
exempt from the dispute resolution processes described in this Section.
30.0 NOTICES
-------------
All notices under this Agreement shall be in writing and shall be
given in person, by facsimile, by receipted courier or by certified U.S.
mail, addressed to the addresses set forth at the beginning of this
Agreement or to such other address as either party may designate by written
notice to the other. All written notices sent by mail shall be sent first
class or better, postage prepaid. All notices shall be deemed to have been
given on the earlier of the date actually received or the fifth day after
mailing.
31.0 ENTIRE AGREEMENT
----------------------
The terms and conditions contained in this Agreement supersede all
prior oral or written understandings between the parties and constitute the
entire Agreement between them concerning the subject matter of this
Agreement and shall not be contradicted, explained or supplemented by any
course of dealing between Lucent or any of its affiliates and Dealer or any
of its affiliates. This Agreement shall not be modified or amended except
by a writing signed by an authorized representative of the party to be
charged. An authorized representative is one who has authority to execute
this Agreement or an assignee.
32.0 TERM
----------
This Agreement shall be effective as of December 16, 1998-and shall
have a term ending on December 31, 2001.
22
IN WITNESS WHEREOF the parties have caused this Agreement to be signed by
their duly authorized representatives.
Lucent Technologies Inc. Farmstead Telephone Group, Inc.
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------ -------------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxx, Xx.
Title: General Manager Remarketing Title: Chairman and CEO
Date: 12/16/98 Date: 12/16/98
23
Appendix:
---------
1. Addresses:
a. Marketing Location:
-------------------
22 Prestige Park Circle
-----------------------
Xxxx Xxxxxxxx, XX 00000
-----------------------
b. Shipping Location:
------------------
22 Prestige Park Circle
-----------------------
Xxxx Xxxxxxxx, XX 00000
-----------------------
2. Area authorized for ARS Dealer:
Area is the Territory as stated in Section 1.8. "Territory" means the
United States of America, including the District of Columbia but
excluding 1) the Commonwealth of Puerto Rico and all other
territories, protectorates and possessions of the United States of
America, and 2) the geographical areas defined as the "Primary Area
of Responsibility" for Cincinnati Xxxx Telecommunication Services
Inc. (the operating area of Cincinnati Xxxx Telephone Company in the
states of Ohio, Indiana and Kentucky), and Progressive Communications
of Hawaii, Inc. (the state of Hawaii).
3. Product:
Lucent Product Components authorized for ARS Dealer
Terminals, circuit cards, and other adjuncts for:
Definity
Merlin Legend
Partner ACS
4. Software License:
The following is the End User Software License referred to in Section 15 of
the Agreement:
END USER SOFTWARE LICENSE
-------------------------
LIMITED WARRANTY AND LIMITED LIABILITY
--------------------------------------
Compatibility. THE SOFTWARE IS NOT WARRANTED FOR NONCOMPATIBLE SYSTEMS.
24
Software. Lucent Technologies warrants that if the Software does not
substantially conform to its specifications, the end-user customer ("You")
may return it to the place of purchase within 90 days after the date of
purchase, provided that You have deployed and used the Software solely in
accordance with this License Agreement and the applicable Lucent
Technologies installation instructions. Upon determining that the returned
Software is eligible for warranty coverage, Lucent Technologies will either
replace the Software or, at Lucent Technologies's option, will offer to
refund the License Fee to You upon receipt from You of all copies of the
Software and Documentation. In the event of a refund, the License shall
terminate.
DISCLAIMER OF WARRANTIES. LUCENT TECHNOLOGIES MAKES NO WARRANTY,
REPRESENTATION, OR PROMISE TO YOU NOT EXPRESSLY SET FORTH IN THIS
AGREEMENT. LUCENT TECHNOLOGIES DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LUCENT
TECHNOLOGIES DOES NOT WARRANT THAT THE SOFTWARE OR DOCUMENTATION WILL
SATISFY YOUR REQUIREMENTS, THAT THE SOFTWARE OR DOCUMENTATION ARE WITHOUT
DEFECT OR ERROR, OR THAT THE OPERATION OF THE SOFTWARE WILL BE
UNINTERRUPTED. ALSO, LUCENT TECHNOLOGIES DOES NOT WARRANT THAT THE SOFTWARE
WILL PREVENT, AND LUCENT TECHNOLOGIES WILL NOT BE RESPONSIBLE FOR,
UNAUTHORIZED USE (OR CHARGES FOR SUCH USE) OF COMMON CARRIER
TELECOMMUNICATION SERVICES OR FACILITIES ACCESSED THROUGH OR CONNECTED TO
THE SOFTWARE (TOLL FRAUD). Some states do not allow the exclusion of
implied warranties or limitations on how long an implied warranty lasts, so
the above limitation may not apply to You. This warranty gives You specific
legal rights which vary from state to state.
EXCLUSIVE REMEDY AND LIMITATION OF LIABILITY. EXCEPT FOR BODILY INJURY
PROXIMATELY CAUSED BY LUCENT TECHNOLOGIES'S NEGLIGENCE, YOUR EXCLUSIVE
REMEDY AND LUCENT TECHNOLOGIES'S ENTIRE LIABILITY ARISING FROM OR RELATING
TO THIS LICENSE AGREEMENT OR TO THE SOFTWARE OR DOCUMENTATION SHALL BE
LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED $ 10,000. LUCENT
TECHNOLOGIES SHALL NOT IN ANY CASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
CONSEQUENTIAL, INDIRECT, OR PUNITIVE - DAMAGES, EVEN IF LUCENT TECHNOLOGIES
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LUCENT TECHNOLOGIES IS
NOT RESPONSIBLE FOR LOST PROFITS OR REVENUE OR SAVINGS, LOSS OF USE OF THE
SOFTWARE, LOSS OF DATA, COSTS OF RECREATING LOST DATA, THE COST OF ANY
SUBSTITUTE EQUIPMENT OR PROGRAM, CHARGES FOR COMMON CARRIER
TELECOMMUNICATION SERVICES OR FACILITIES ACCESSED THROUGH OR CONNECTED TO
THE SOFTWARE (TOLL FRAUD), OR CLAIMS BY ANY PERSON OTHER THAN YOU. THESE
LIMITATIONS OF
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LIABILITY SHALL APPLY NOTWITHSTANDING THE FAILURE OF AN EXCLUSIVE REMEDY.
Some states do not allow the exclusion or limitation of incidental or
consequential damages, so the above limitation or exclusion may not apply
to You.
Lucent Technologies grants You a personal, non-transferable and non-
exclusive right to use, in object code form, all software and related
documentation furnished under the Agreement between Lucent Technologies and
[Dealer]. This grant shall be limited to use with the equipment for which
the software was obtained or, on a temporary basis, on back-up equipment
when the original equipment is inoperable. Use of software on multiple
processors is prohibited unless otherwise agreed to in writing by Lucent
Technologies. You agree to use your best efforts to see that your employees
and users of all software licensed under this Agreement comply with these
terms and conditions and You will refrain from taking any steps, such as
reverse assembly or reverse compilation, to derive a source code equivalent
of the software.
You are permitted to make a single archive copy of software. Any copy must
contain the same copyright notice and proprietary marking as the original
software. Use of software on any equipment other than that for which it was
obtained, removal of the software from the United States, or any other
material breach shall automatically terminate this license.
If the terms of this license differ from the terms of any license packaged
with the software, the terms of the license packaged with the software
shall govern.
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