Oem Distribution Agreement

Exhibit 10.5

CERTAIN PORTIONS OF THIS DOCUMENT FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED HAVE BEEN REDACTED. REDACTIONS ARE INDICATED BY A DOUBLE PAIR OF EMPTY BRACKET (" [[ ]]" ). THE TEXT HAS BEEN FILED SEPARATELY WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION. THE NUMBER OF PAGES COVERED BY THE REQUEST IS .

OEM DISTRIBUTION AGREEMENT

This OEM Distribution Agreement (" Agreement" ) is made and entered into as of this [[ ]], 2002, by and between Info-Hold, Inc., an Ohio corporation (" Info-Hold" ) and NEC Infrontia, Inc., a Connecticut corporation (" NECII" ). NECII desires to purchase from Info-Hold and Info-Hold desires to sell to NECII the certain Music-on-hold products (PRODUCTS) described in schedule A attached to and incorporated herein.

In consideration of the mutual promises contained herein, Info-Hold and NECII agree as follows:

1. Definitions :

As used in this Agreement:

a)" PRODUCTS" shall mean those products, including Info-Hold on hold messaging system, Info-Hold Documentation, components and spare parts thereof, as listed on Schedule A attached hereto and as it may be amended by mutual agreement from time to time. .

b)" Info-Hold Documentation" shall mean all written technical documentation, user manuals and collateral furnished by Info-Hold during the term of this Agreement that relates to the PRODUCTS in connection with sales of PRODUCTS through NECII' s direct and indirect channels and affiliates.

c)" Distribution" shall mean the sale and/or license of PRODUCTS through NECII' s affiliates and normal direct or indirect channels of sale of products to resellers and end-users.

d)" Services" shall mean Info-Hold audio production services consisting of courtesy and customized audio messages, music and content as provided with Info-Hold system products. The Customized Services shall recommend message content, voice talent, music and shall provide script writing, voice talent, licensed music and studio production services. Info-Hold shall be responsible for all music licenses for the music provided under these Services and shall indemnify NECII, its affiliates, Distribution and end-users against all claims arising out of provision of these Services. 2 . Term :

This Agreement shall commence on the date above and shall continue in force for a term of [[ ]] unless terminated earlier under the provisions of this Agreement. At the end of the fixed term, this Agreement shall extend automatically for additional [[ ]] periods without notice unless ninety (90) days prior to the end of the term or extension, one party notifies the other that the Agreement will not be extended. All purchases of PRODUCTS by NECII from Info-Hold during the term of this Agreement shall be subject to the terms and conditions of this Agreement.

3. Grant of Rights to NECII :

Products : Info-Hold grants to NECII the right to obtain PRODUCTS from Info-Hold hereunder and to market and distribute them through NECII' s affiliates, its resellers and direct and indirect channels. a)

Info-Hold Documentation and Developed Documentation : Info-Hold hereby grants to NECII the non-transferable right (i) to modify and create derivative works from those portions of the Info-Hold Documentation that are not labeled " Info-Hold Confidential" and are designated as usable for such purpose, and (ii) to reproduce and distribute such Info-Hold Documentation and any derivative works solely in connection with the Distribution of PRODUCTS as authorized herein; and the non- exclusive,


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non-transferable right to obtain, market and Distribute Developed Documentation in connection with sales of PRODUCTS through NECII' s Distribution.

4. Purchase of Products :

NECII will submit in writing firm purchase orders for all PRODUCTS. The purchase orders will be issued based upon orders received by NECII for the PRODUCTS. The PRODUCTS will be shipped directly to the shipping address on the purchase order. Any provision of a purchase order inconsistent with this Agreement shall be null and void. Info-Hold may accept verbal purchase orders, but such orders must be confirmed by a formal purchase order. 5. Terms and Condition of Sale :

a) Prices : NECII agrees to pay prices for PRODUCTS as set forth in Schedule B hereto for the term of the Agreement. All prices are net of taxes and are F.O.B. at any Info-Hold manufacturing facility. NECII and Info-Hold will negotiate in good faith to reduce the price if required to be competitive in the market. Info-Hold certifies that the terms and conditions in this Agreement are no less favorable than the terms and conditions of similar customers with similar volumes and commitments. Info-Hold agrees that if other terms and conditions are subsequently granted to other similar customers that such terms and conditions will be offered to NECII.

b) Invoicing and Payment Terms : Info-Hold shall submit an invoice in United States dollars to NECII upon shipment of PRODUCTS ordered by NECII. The invoice shall include NECII' s purchase price for the PRODUCTS in a given shipment plus any freight, taxes or other applicable costs initially paid by Info-Hold but to be borne by NECII. Within Forty five (45) days after the date of receipt of a correct invoice, NECII shall tender payment to Info-Hold.

c) Shipping/Title & Risk : All PRODUCTS delivered pursuant to the terms of this Agreement shall be suitably packed for shipment as set forth in Schedule C. Unless otherwise instructed in writing by NECII, Info-Hold shall select the carrier. All freight, insurance, and other shipping expenses, as well as any special packing expenses, shall be paid by NECII. d) Acceptance : NECII will inspect all PRODUCTS promptly upon receipt and may reject any PRODUCT that fails in any material way to meet the criteria as identified in Schedule D. Any PRODUCTS not rejected within forty-five (45) days after receipt by NECII (" Rejection Period" ) will be deemed accepted. To reject a PRODUCT, NECII will notify Info-Hold of its rejection within the rejection period and request a Return Material Authorization (" RMA" ) number. Info-Hold will provide the RMA number to NECII within 48 hours after receipt of the request. Within twenty one (21) days after receipt of the RMA number, NECII will return to Info-Hold the rejected PRODUCT, freight prepaid and billed, in its original shipping carton with the RMA number displayed on the outside of the carton. No later than seven (7) working days after receipt by Info-Hold, Info-Hold will either repair or replace the PRODUCTS and pay shipping charges back to NECII.

6. Product Discontinuance :

Info-Hold will provide NECII with at least ninety (90) days prior written notice of the discontinuance of any PRODUCT. NECII may, within forty-five (45) days following written receipt of notice of discontinuance, provide Info-Hold a purchase order for end of life purchase, which Info-Hold will supply within two (2) months of receipt of purchase orders unless mutually otherwise agreed upon.

7. Product Warranty :

a)

Limited Warranty : Info-Hold warrants that the PRODUCTS shall be in conformance and perform in conformance with Info-Hold' s then-current specifications for such PRODUCTS for thirty-six (36)


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months from end user installation but not more than thirty nine (39) months following date of shipment from Info-Hold to NECII. Info-Hold shall affix to all PRODUCTS a shipping date in the form of XXYY, where XX denotes the shipping week and YY denotes the shipping year.

b) Warranty Exclusions : The above limited warranty does not apply to any PRODUCT which (i) has been materially altered, except by Info-Hold or under Info-Hold' s direction, or (ii) has not been installed, operated, repaired or maintained in accordance with any installation, handling, maintenance or operating instruction supplied by Info-Hold, or (iii) has been subject to unusual physical or electrical stress, negligence or accident.

c) No Other Warranty : EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE, INFOHOLD GRANTS NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE REGARDING THE PRODUCTS, THEIR FITNESS FOR ANY PARTICULAR PURPOSE, THEIR QUALITY, THEIR MERCHANTABILITY OR OTHERWISE.

d) Limitation of Liability : Info-Hold' s sole liability, and NECII' s exclusive remedy, under the foregoing warranty shall be, to repair or replace the relevant PRODUCTS or refund if these remedies are not workable. Such obligation shall be subject to Info-Hold being granted the reasonable opportunity to inspect the allegedly defective PRODUCT at the location of its use or storage and, upon request in accordance with instruction, upon return of the Product to Info-Hold at Info-Hold' s expense. Any such replacement of PRODUCTS may be by substitution of any similar product upon mutual agreement. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL INFOHOLD BE LIABLE TO NECII OR ANY THIRD PARTY FOR LOST PROFITS, OR FOR ANY SPECIAL, CONSEQUENTIAL INCIDENTAL OR INDIRECT DAMAGES FOR BREACH OF WARRANTY.

e) Out of Warranty Repair : Following the expiration of the warranty period set forth in Section 7a above, Info-Hold agrees to provide out of warranty repair for PRODUCTS sold to NECII for a period of Five (5) years after date of discontinuance of the PRODUCT. Such out of warranty repair shall be provided as specified in Schedule E (Info-Hold to fill this information) f) Standard Limited Warranty to Distributors, Resellers and End-Users : NECII shall pass on to each of its distributors, resellers, end-users or other customers, NECII' s standard limited warranty with each PRODUCT. NECII shall have no authority to modify Info-Hold' s standard limited warranty, or to pass on any warranty on behalf of Info-Hold with respect to NECII' s sales of the PRODUCTS to distributors, resellers, end users or other customers.

8. Product Returns, Repair and Refurbishment :

a) Product Return Procedures : NECII shall use the following procedure to return PRODUCT to Info-Hold for warranty repair or out of warranty repair. NECII shall call Info-Hold at a toll free number to be assigned. to obtain a Return Material Authorization (RMA) number and furnish the following information with PRODUCT returned to Info-Hold for repair: (a) NECII' s name and complete address; (b) name(s) and telephone number(s) of NECII' s employee(s) to contact in case of questions about the PRODUCT to be repaired; (c) ship-to address for return of the repaired PRODUCT; (d) a complete list of the returned PRODUCT; (e) the nature of the defect or failure; and (f) whether or not the returned PRODUCT is in warranty. Info-Hold shall provide a written notice to NECII specifying (i) the name(s) and telephone number(s) of the individual(s) to be contacted concerning any questions that may arise concerning repair, and (ii) if required, any special packing of PRODUCT which might be necessary to provide adequate in-transit protection from transportation damage.

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The above procedure will also apply for advance replacement of the product. In this case NECII' s Technical Support Group (hereafter ' NTAC' ) may authorize the Advance Replacement of a defective PRODUCT through NECII' s Customer Service Department. The PRODUCT should be shipped within forty-eight (48) hours from the time advance replacement is requested. Agreed and understood

All returned PRODUCTS should have the RMA number furnished by Info-Hold attached to the shipping package in a prominent location. PRODUCT repaired by Info-Hold shall be marked or otherwise identified as repaired in a visible location on the shipping container and the repaired PRODUCT shall be returned to NECII. PRODUCTS to be repaired or returned under this clause will be returned to Info-Hold at the designated location suitably packed, freight prepaid. Info-Hold shall, at its sole discretion, repair or replace said products and returns them to NECII' s location designated in RMA within twenty-one (21) days, freight prepaid. Info-Hold will offer for sale to NECII, during the term of this Agreement and for a period of five (5) years after the PRODUCT has been manufacture discontinued, functionally equivalent replacement and repair components. In the event that Info-Hold is unable to supply functionally equivalent replacement and repair components reasonably needed by NECII or Info-Hold is unable to obtain another source of supply for NECII, Info-Hold will, with neither obligation nor charge to NECII, provide NECII with drawings or other documents required to either manufacture or buy such parts and the technical information or any other rights necessary for NECII to manufacture or obtain such parts from other sources, together with a non-exclusive license to manufacturer or purchase such parts for the sole purpose of supporting NECII' s customer base for PRODUCTS. b) PRODUCT Repair Procedures : PRODUCTS, or subassembly components of PRODUCTS, returned to Info-Hold as defective will be tested, and if deemed defective, repaired, or replaced with equivalent PRODUCTS or subassembly components. The option to either repair or replace defective products or their subassemblies shall be at the sole discretion of Info-Hold. Repairing a PRODUCT shall be understood to mean correcting any manufacturing defect, or replacing any failed component within the PRODUCT. Replacing a PRODUCT shall be understood to mean substituting an equivalent to new working PRODUCT for the defective one. Defective PRODUCTS or their subassemblies returned to Info-Hold within the PRODUCT' s warranty period will be repaired or replaced at no charge to NECII. Defective PRODUCTS or their subassemblies, returned to Info-Hold after the warranty period has expired, will be repaired or replaced per the refurbishment/repair charges listed in Schedule E. At the completion of the repair process all PRODUCTS will go through a refurbishment process as identified below. As part of this repair or replacement process, Info-Hold agrees to warrant the repaired or replaced PRODUCT for a period of either one-hundred-eighty (180) days or the remainder of any existing warranty period on the PRODUCT or subassembly, whichever is longer. Info-Hold shall provide NECII with a No Trouble Found (NTF) procedure and training for evaluation of PRODUCTS before return of such PRODUCTS to Info-Hold.

If PRODUCTS returned to Info-Hold for repair are determined to be irreparable, Info-Hold shall promptly notify NECII. Info-Hold will, at NECII' s option, sell to NECII a replacement PRODUCT at the price provided in Schedule A, of this Agreement. Whether or not NECII exercises such option, the irreparable PRODUCT shall be returne ...