AGREEMENT NO. VPC-
AGREEMENT FOR RESALE OF LUCENT TECHNOLOGIES INTERACTIVE VOICE
RESPONSE PRODUCTS BY AUTHORIZED RESELLER
Agreement effective as of _______________, between Lucent Technologies Inc., by
and for its Business Communications Systems unit, ("Lucent"), a Delaware
corporation having an office at 000 Xxxxx Xxxx Xxxx, Xxxxxxx Xxxxx, Xxx Xxxxxx
00000 and Spanlink Communications, ("Reseller"), a Corporation organized under
the laws of Minnesota having its principal office at 0000 Xxxxx Xxxxxxx,
Xxxxxxxx Xxxx, XX 00000, and Inacom Communications, Inc., a Delaware corporation
("MVPC"), with offices at Technologies Center, 00000 Xxxxxx Xxxxxx Xxxxxxx,
Xxxxx, Xxxxxxxx 00000.
1. TERM
This Agreement shall become effective on the date first set forth above, and
shall continue in effect for an initial term ending one year after the date
first set forth above, unless earlier terminated as provided herein. This
Agreement will be renewed for additional one-year terms so long as Reseller and
Lucent continue to meet their obligations hereunder and this Agreement has not
been earlier terminated pursuant to Section 12 hereof. Such renewal will be
evidenced by a written agreement signed by the parties hereto.
2. DEFINITIONS
2.1 "End User" means a third party to whom Reseller markets or sells
Products and provides Licensed Materials together with Lucent's End User License
for such Licensed Materials, for use by such third party in the ordinary course
of its business within the Area or Territory set forth in Appendix A and not for
resale.
2.2 "Licensed Materials" means the System software and related
documentation listed in Appendix A. Lucent shall have the right to add System
software and related documentation to Appendix A upon written notice to
Reseller.
2.3 "Product" or "Lucent Product" means an Lucent Voice Processing
product listed in Appendix A. Each Product consists of one or more Product
Components. The set of Product Components that may be used to equip a Product is
determined solely by Lucent. Lucent shall have the right to add products to
Appendix A upon written notice to Reseller.
2.4 "Services" means those installation and post warranty maintenance
services furnished to End Users in connection with Products marketed or Licensed
Materials transmitted by Reseller.
3. RESELLER APPOINTMENT
3.1 Lucent hereby appoints Reseller, and Reseller hereby accepts an
appointment, to be an authorized Lucent Reseller, also referred to as an
"Authorized Voice Processing Co-Marketer" for the limited purpose of marketing
the Products and providing the Licensed Materials listed in Appendix A to End
Users. Lucent's appointment of Reseller is predicated on Reseller's agreement to
achieve its forecasts and on the successful completion by Reseller's personnel
of the training requirements set forth in Section 4 of this Agreement.
3.2 Reseller shall have no right to authorize others to resell or
market the Products or to provide the Licensed Materials set forth in Appendix A
and any such authorization or attempted authorization shall be void and without
effect. Reseller is not authorized to employ sales agents (other than an
employee of Reseller) or other independent contractors to market the Products or
to provide the Licensed Materials unless this Agreement contains a Sales Agency
Addendum. Reseller agrees that it has no exclusive right to market the Products
or to provide the Licensed Materials, and that no franchise is granted to
Reseller herein. No payment of any fee or equivalent charge is required of
Reseller by Lucent as a condition of entering into this Agreement.
3.3 Lucent expressly reserves both the right to contract with others to
market the Products and provide the Licensed Materials and to itself directly
engage in such marketing and licensing.
3.4 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 Products or Licensed Materials, and neither party shall
take any action that has the effect of creating the appearance of its having
such authority. The term "Authorized Voice Processing Co-Marketer ("VPC"), as
used by Lucent to identify an authorized reseller of its voice processing
products and provider of its Licensed Materials, such as Reseller, is not
intended to, nor under the terms of this Agreement does it in fact, create a
joint marketing relationship or obligation between Lucent and Reseller. There
are no obligations between Lucent and Reseller's customers other than those
stated in this Agreement.
3.5 All persons furnished by Reseller shall be considered solely
Reseller's employees, and Reseller shall be solely responsible for payment of
all their unemployment, Social Security and other payroll taxes including
contributions from Reseller when required by law.
4. RESELLER RESPONSIBILITIES
4.1 Reseller has submitted to Lucent a "Voice Processing Co-Marketer
Application". Reseller certifies and warrants that, to the best of its
knowledge, the information in that application is current, accurate, complete
and not misleading. Reseller 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.
4.2 Reseller agrees to devote its best efforts to promote and market
Products and provide Licensed Materials to End Users. Reseller also warrants
that it will conduct its business in a manner that reflects favorably on the
quality image of Lucent and its Products and Licensed Materials.
4.3 Reseller represents and warrants that it is able to resell and
provide interactive voice response systems such as the Products and Licensed
Materials and is able, when appropriate to Provide additional materials to
operate with the Products or Licensed Materials, (hereinafter "Value-Added
Equipment or Systems"), the Value-Added Equipment or Systems being respectively
sold and provided by Reseller only to end user customers in the United States
for such customers' internal use. Reseller further certifies that such
incorporation shall add substantial value to such Products in the form of
hardware, software or customer-specific applications software which is
manufactured or developed directly by Reseller, which value added (hereinafter
"Added Value") shall significantly enhance the functions, capabilities and
marketability of the Products.
4.4 Reseller agrees to provide its own license terms for software
developed by Reseller, which license terms shall be clearly separate from the
terms of the Lucent License for the System software.
4.5 Reseller represents that it will purchase a minimum of $100,000.00
worth of Products for resale to End Users during the initial term of this
Agreement.
4.6 Reseller agrees to provide and consistently maintain at least one
(1) salesperson and one (1) marketing and sales support person trained on the
Products and Licensed Materials and at least one (1) technician trained on the
installation and maintenance of the Products and Licensed Materials. The
training that Lucent requires Reseller personnel to undergo is set forth in
Appendix B.
Reseller shall train End Users in the effective use of the Products and Licensed
Materials, including providing any instructional material furnished to Reseller
by Lucent.
4.7 Reseller shall inform End Users of the Services available from
Reseller or Lucent, as appropriate.
4.8 Reseller shall report promptly to Lucent all known or suspected
Product defects or safety problems and keep Lucent informed of End User
complaints with respect to Products or Licensed Materials.
4.9 Reseller 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, compliance with 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.
Sections 2401-2414.
4.10. Reseller-shall purchase or otherwise obtain new Lucent Products
and Licensed Materials only from the MVPC identified in this agreement, which
shall have purchased and obtained them only from Lucent through its Distribution
Development and Management organization.
4.11 To ensure fulfillment of Lucent's Product warranties to End Users,
to ensure End User safety, to ensure End Users receive the latest information
concerning the use of Products and enhancements thereto and to maintain End User
satisfaction, Reseller agrees to maintain and make available to Lucent on
reasonable request an accurate and complete list of Reseller's Product End Users
by name and address, the Product installation address (if different), the
Product Components furnished to each End User and the transaction date. Reseller
shall also retain such information in list form for a period of five (5) years
from the transaction date. The obligation to maintain and make such information
available to Lucent shall survive expiration or termination of this Agreement.
5. PRODUCT AND LICENSED MATERIAL CHANGES
Lucent may, at any time without advising Reseller, delete any Product
or Licensed Material from Appendix A, make changes in the Products or Licensed
Materials or modify the drawings and specifications relating thereto, or
substitute Products or Licensed Materials 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.
6. USE OF INFORMATION
All technical and business information and trade secrets in any form
furnished to Reseller under or in contemplation of this Agreement and identified
as or known by Reseller 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 Reseller and used by Reseller only for the purposes of performing
Reseller's obligations under this Agreement; (ii) shall not be disclosed to
anyone, except to employees of Reseller 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 which is or becomes
known to Reseller free of any obligation to keep same in confidence.
7. LICENSE
7.1 Upon delivery of Lucent Licensed Materials to Reseller, Lucent
grants to Reseller a personal and non-exclusive right to use such 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
RESELLER UNDER THIS AGREEMENT OR AS A RESULT OF ANY PERFORMANCE HEREUNDER.
7.2 Reseller agrees: (i) to make only those copies of Licensed
Materials necessary for its use under this Agreement and assure that such copies
contain any proprietary or copyright notice appearing on the Licensed Materials
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 United States of America, and (iv) not to use the
Licensed Materials directly for any third person or permit any third person to
use the Licensed Materials except as necessary under this Agreement.
7.3 Lucent further grants to Reseller 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 or in the standard Product documentation provided by
Lucent for delivery to the End User with the Products, Reseller obtains
agreement in writing from the End User, before or at the time of furnishing each
copy of Licensed Materials, in the form set forth in Appendix A to this
Agreement.
8. TRADEMARKS
8.1 Lucent grants Reseller permission to utilize certain Lucent
designated trademarks, insignia, and symbols ("Marks") in Reseller's advertising
and promotion of Lucent Products furnished hereunder, provided such use conforms
to Lucent's standards and guidelines. Reseller shall not do business under any
Xxxx or any derivative or variation thereof, and Reseller shall not directly or
indirectly hold itself out as having any relationship to Lucent or its
affiliates other than as an "Authorized Lucent Reseller" or other Lucent
approved term. Marks may only be used by Reseller to advertise and promote the
Lucent Products during the term of this Agreement. Marks are not to be used by
Reseller in any way to imply Lucent's endorsement of products, licensed
materials or services not furnished hereunder, such as used or unused products
originally manufactured by Lucent. Marks are not to be used by Reseller in
advertising or marketing materials, including print media, radio, television,
broadcast facsimile, telemarketing or Internet websites, that reach End User
prospective customers outside Reseller's Area. Such uses of Marks will be cause
for immediate termination of this Agreement. Reseller will not alter or remove
any Xxxx applied to Lucent Products without the prior written approval of
Lucent. Nothing in this Agreement creates in Reseller and Reseller agrees not to
assert, any rights in the Marks.
8.2 All Reseller-initiated advertisements or promotions using Marks or
any reference thereto, whether under a promotional allowance program or
otherwise, shall receive prepublication review and approval by Lucent with
respect to, but not limited to context, style, appearance, composition, timing
and media.
8.3 This Agreement does not give Reseller 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.
9. PRODUCT WARRANTY
9.1 Reseller 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 9.2. Reseller shall inform the End User of Lucent's Limitation of
Liability as set forth in Section 10 of this Agreement, in a reasonable manner.
Lucent has warranted to MVPC the title of the Lucent Products purchased by MVPC
from DDM and resold to Reseller under this Agreement. This warranty of title is
the only warranty provided to Reseller.
9.2 Reseller shall, before or at the time of delivery of Lucent
Products, advise an End User of the following":
a. that the Lucent Products may contain remanufactured parts
that are equivalent to new in performance and appearance;
b. 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;
c. that the Lucent Products are warranted 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 Reseller who at its option
will replace or repair those Lucent Products without charge.
Replaced Lucent Products become the property of Reseller; and
d. 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.
9.3 EXCEPT FOR THE WARRANTY OF TITLE TO DISTRIBUTOR AND THE LIMITED
PRODUCT WARRANTY TO DEALER'S END USERS REFERENCED IN THIS SECTION, LUCENT, ITS
AFFILIATES AND SUPPLIERS MAKE NO WARRANTIES EXPRESS OR IMPLIED AND SPECIFICALLY
DISCLAIM ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY
EXCEPT FOR PERSONAL INJURY AND EXCEPT FOR THE LIABILITY EXPRESSLY
ASSUMED BY LUCENT UNDER SECTION 11 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 RESELLER OR TO ANY OTHER COMPANY
OR ENTITY FOR ANY INCIDENTAL, RELIANCE, CONSEQUENTIAL OR ANY OTHER INDIRECT LOSS
OR DAMAGE (INCLUDING LOST-PROFITS OR REVENUES) 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.
11. INDEMNITY
11.1 Reseller 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 warranty, or the intentional or negligent acts or omissions of Reseller.
Reseller'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 an 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. Reseller's obligation to
indemnify Lucent shall be contingent upon: (1) Lucent promptly notifying
Reseller in writing of the existence of any claim or suit that may result in a
settlement or judgment for which Reseller may be obligated to indemnify Lucent;
(2) Lucent giving Reseller full opportunity and authority to assume sole
responsibility to settle and defend any such claim or suit; and (3) Lucent
furnishing to Reseller upon reasonable request all information and assistance
that Reseller deems to be reasonably required to settle or defend such claim or
suit. This indemnity is in lieu of all other obligations of Reseller, express or
implied, in law or in equity, to indemnify Lucent for claims or suits covered by
this section. Reseller's liability to indemnify Lucent shall in no event exceed
$500,000.
11.2 Unless Lucent's liability is otherwise limited or excluded in
other sections of this Agreement, Lucent will indemnify Reseller 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 an Lucent warranty, or the intentional or
negligent acts or omissions of Lucent. Lucent's obligation to indemnify Reseller
shall be reduced in proportion to which the settlement or final judgment is
attributable to the strict tort liability of Reseller, breach of a Reseller
warranty, or the intentional or negligent acts or omissions of Reseller or any
other third party not under Lucent's direct control. Lucent's obligation to
indemnify Reseller will be contingent upon: (1) Reseller 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
Reseller; (2) Reseller giving Lucent full opportunity and authority to assume
sole responsibility to settle or defend any such claim or suit; and (3) Reseller
furnishing to Lucent upon reasonable request all information and assistance
available to Reseller 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 RESELLER FOR
CLAIMS OR SUITS COVERED BY THIS SECTION. LUCENT'S LIABILITY TO INDEMNIFY
RESELLER SHALL IN NO EVENT EXCEED $500,000.
The party electing to take responsibility for settling or defending any
claim or suit covered by this Section will be responsible for the attorney's
fees and costs incurred by said party to settle or defend such claim or suit.
12. TERMINATION OF AGREEMENT
12.1 Either party may terminate this Agreement without cause upon
ninety (90) days prior written notice to the other party.
12.2 Lucent may terminate this Agreement upon sixty (60) days prior
written notice to Reseller if: (I) Reseller fails to achieve the Product and
Licensed Materials purchase representations or to maintain the level of
personnel and training set forth in Section 4 of this Agreement; (ii) Reseller
fails to provide an acceptable quality of service to End Users in accordance
with Lucent's Quality Policy; or (iii) there occurs any significant change in
the management or control of Reseller.
12.3 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) days following receipt of notice of such breach or default.
12.4 Lucent may terminate this Agreement upon twenty-four (24) hours
written notice if Reseller has: (i) become insolvent, invoked as a debtor any
laws relating to the relief of debtors' or creditors' rights, or has had such
laws invoked against it; (ii) become involved in any liquidation or termination
of its business; (iii) been involved in an assignment for the benefit of its
creditors; (iv) sold or attempted to resell Products listed in Appendix A to any
third party other than an End User; (v) appointed or attempted to appoint any
unauthorized agent or unauthorized manufacturer's representatives for Products
listed in Appendix A; (vi) sold or attempted to resell any Lucent Interactive
Voice Response Products not previously authorized by Lucent under this Agreement
or that are obtained from a source other than the MVPC; (vii) failed to comply
with Lucent's guidelines for the proper use of Lucent's Marks, or (viii)
misrepresented, by statement or by omission, Reseller'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 an
Lucent Xxxx or otherwise, that the authority granted in this or such other
agreement applies to any Lucent product or service not covered by this or such
other agreement.
12.5 Notwithstanding such termination rights, Lucent reserves all of
its legal rights and equitable remedies, including without limitation those
under the Uniform Commercial Code.
12.6 Upon termination of this Agreement neither party shall be liable
to the other, either for compensation or for damages of any kind or character
whatsoever, on account of the loss by Lucent or Reseller 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 Reseller's business except that
termination shall not prejudice or otherwise affect the rights or liabilities of
the parties with respect to Products or Licensed Materials sold hereunder or any
indebtedness then owing by either party to the other.
12.7 Upon termination or expiration of this Agreement, Reseller shall
immediately:
a. provide the original seller of the Products or licensor of the
Licensed Materials still in Reseller's possession or control and not already
identified with an executed End User contract, with the first right to
repurchase any Products or relicense any Licensed Materials.
b. discontinue any and all use of Marks, including but not limited to
such use in advertising or business material of Reseller, except to identify the
Products or Licensed Materials; provided that if Reseller's remaining inventory
is not repurchased by the original seller, Reseller 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;
c. return at Reseller's expense all Lucent Proprietary Information
except that which Lucent determines is necessary to operate and maintain
previously furnished Products or Licensed Materials;
d. cease holding itself out, in any manner, as an Lucent authorized
reseller of the Products or sublicensor of the Licensed Materials;
e. notify and arrange for all publishers and others (including, but not
limited to, publishers of telephone and business directories) who may identify
list or publish Reseller's name as an Authorized Lucent Voice Processing
Co-Marketer of Products or Licensed Materials, to discontinue such listings; and
f. on Lucent's request, provide Lucent with all source programs,
technical documentation and other information related to customer-specific
applications programs developed by Reseller for any End User using a Product or
Licensed Materials listed in Appendix A, to the extent required by Lucent for
maintenance, modification or correction of the most current version of such
customer-specific applications program developed for the End User, and grant to
Lucent a non-exclusive worldwide license to use such materials for such
purposes. The preceding sentence shall only apply to the extent Reseller is
unable or unwilling to maintain, modify or correct said customer-specific
application previously installed by Reseller, or this Agreement has been
terminated by reason of Reseller's having: (i) become insolvent, invoked as a
debtor any laws relating to the relief of debtors' or creditors' rights, or
having had such laws invoked against it; (ii) become involved in any liquidation
or termination of its business; or (iii) been involved in an assignment for the
benefit of its creditors. Nothing in this paragraph is intended to give Lucent
the right or license to use or distribute said source program, technical
documentation, other information or the customer-specific application program
for or to any other Lucent customer without the prior written consent of the
Reseller.
13. SURVIVAL OF OBLIGATIONS
The respective obligations of Reseller 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, TERMINATION OF AGREEMENT,
CONFIDENTIALITY, LIMITATION OF LIABILITY, INDEMNITY and TRADEMARKS.
14. 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 Reseller, the parties shall promptly negotiate a
replacement therefor.
15. ASSIGNMENT
Reseller shall not assign any right or interest under this Agreement or
delegate any work or other obligation to be performed or owed by Reseller under
this Agreement without the prior written consent of Lucent. Any assignment or
delegation by reseller without such consent shall be void and ineffective.
Lucent shall have the right to assign this Agreement and to assign its rights
and delegate its duties under this Agreement either in whole or in part at any
time upon notice to Reseller and without Reseller's consent, to any present or
future affiliate of Lucent or to another entity in connection with the sale or
transfer to such other entity of all or substantially all of Lucent's business
assets used in performance of this Agreement.
16. 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.
17. NOTICES
All notices under this Agreement shall be in writing and shall be given
in person, by telegram or by 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 third day
after mailing.
18. ENTIRE AGREEMENT
The terms and conditions contained in this Agreement, including its appendices,
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 Reseller 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.
IN WITNESS WHEREOF the parties have caused this Agreement to be signed
by their duly authorized representatives.
LUCENT TECHNOLOGIES INC. SPANLINK COMMUNICATIONS
By: By: /s/ X. X. Xxxxxx
Name: Name: Xxxxxxx X. Xxxxxx
Title: Title: Vice President & CFO
INACOM COMMUNICATIONS, INC.
By:
Name:
Title:
Appendix A: Products, Licensed Materials, Area, and License
A. Products:
Intuity Conversant
B. Licensed Materials:
Intuity Conversant
C. Authorized Area:
National
D. Territory: "Territory" means the United States of America, including
the District of Columbia but excluding the Commonwealth of Puerto Rico and all
other territories, protectorates and possessions of the United States of
America.
E. License:
The following is the limited use end-user system software license referred to in
Section 7.3 of this Agreement:
END USER SYSTEM SOFTWARE LICENSE
LIMITED WARRANTY AND LIMITED LIABILITY
Compatibility. THE SOFTWARE IS NOT WARRANTED FOR NONCOMPATIBLE SYSTEMS.
Software. Lucent Technologies warrants that if the Software does not
substantially conform to its specifications, the end-user customer
("You) may return it to the place of purchase within 90 days after the
date of purchase, provided that You have deployed and used the Software
solely in accordance with this License Agreement and the applicable
Lucent Technologies installation instructions. Upon determining that
the returned Software is eligible for warranty coverage, Lucent
Technologies will either replace the Software or, at Lucent
Technologies's option, will offer to refund the License Fee to You upon
receipt from You of all copies of the Software and Documentation. In
the event of a refund, the License shall terminate.
DISCLAIMER OF WARRANTIES. LUCENT TECHNOLOGIES MAKES NO WARRANTY,
REPRESENTATION, OR PROMISE TO YOU NOT EXPRESSLY SET FORTH IN TIES
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 TIES LICENSE AGREEMENT OR TO THE SOFTWARE OR DOCUMENTATION
SHALL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED $ 10,000.
LUCENT TECHNOLOGIES SHALL NOT IN ANY CASE BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF
LUCENT TECHNOLOGIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. LUCENT TECHNOLOGIES IS NOT RESPONSIBLE FOR LOST PROFITS OR
REVENUE OR SAVINGS, LOSS OF USE OF THE SOFTWARE, LOSS OF DATA, COSTS OF
RECREATING LOST DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT OR PROGRAM,
CHARGES FOR COMMON CARRIER TELECOMMUNICATION SERVICES OR FACILITIES
ACCESSED THROUGH OR CONNECTED TO THE SOFTWARE (TOLL FRAUD), OR CLAIMS
BY ANY PERSON OTHER THAN YOU. THESE LIMITATIONS OF LIABILITY SHALL
APPLY NOTWITHSTANDING THE FAILURE OF AN EXCLUSIVE REMEDY. Some states
do not allow the exclusion or limitation of incidental or consequential
damages, so the above limitation or exclusion may not apply to You.
Lucent Technologies grants You a personal, non-transferable and
non-exclusive right to use, in object code form, all software and
related documentation furnished under the Agreement between Lucent
Technologies and [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 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.
Appendix B: Conversant Training
Course No. Description
BTT509H INTUITY CONVERSANT Install & Maintenance
BTC128H Introduction To Scriptbuilder
BTC301H INTUITY CONVERSANT VIS Advanced Scriptbuilder
BTC130H INTUITY CONVERSANT Graphical Designer For New Application Design
Customers
BTC302H INTUITY CONVERSANT Graphical Designer For Experienced
Scriptbuilder Users
BTC201H Scriptbuilder Host Application Development Workshop
BTC421M CONVERSANT VIS 5.0/6.0 IBM Host Interface
BTC437M CONVERSANT VIS 6.0 Hardware & Admin Overview
