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Amend No. 7 Distribution And Marketing Agreement

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Exhibit 10(et)2


AMENDMENT NO. 7
TO
DISTRIBUTION AND MARKETING AGREEMENT


This Amendment No. 7 to Distribution and Marketing Agreement ("Amendment") is dated as of June 30, 2004 between Artera Group, Inc., a Delaware corporation ("Artera"), and Avaya Inc., a Delaware corporation ("Avaya").


WHEREAS, Artera and Avaya are parties to that certain Distribution and Marketing Agreement dated as of April 21, 2003, as amended by Amendment No. 1 thereto dated as of October 8, 2003, as amended by Amendment No. 2 thereto dated as of April 21, 2004, as amended by Amendment No. 3 thereto dated as of May 19, 2004, as amended by Amendment No. 4 thereto dated as of June 4, 2004, as amended by Amendment No. 5 thereto dated as of June 18, 2004, as amended by Amendment No. 6 thereto dated as of June 25, 2004 (as so amended "Distribution Agreement");


WHEREAS, the parties wish to amend certain of the terms and conditions of the Distribution Agreement and extend the term of the Distribution Agreement, as more fully described herein.


NOW, THEREFORE, in consideration of the mutual covenants contained herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:


1. Territory. Section 1.28 of the Distribution Agreement is hereby amended to read in its entirety as follows:


" `Territory' shall mean worldwide."


2. License. Section 2.1 of the Distribution Agreement is hereby amended to read in its entirety as follows:


"License. Artera hereby grants to Avaya during the term of this Agreement,
subject to Section 2.3 hereof, (a) a non-exclusive license to distribute
the Licensed Products to Subscribers in the Territory, with the exceptions
set forth in Schedule 2.1; and (b) a non-exclusive, royalty-free license to
use and reproduce the Licensed Products for purposes of development,
evaluation, testing and "Beta" testing and to reproduce demonstration or
evaluation copies of the Licensed Products for the purposes of marketing
and promoting the Licensed Products and in training customers in their use.
The License is intended to grant to Avaya all rights necessary for Avaya to
distribute and market the Licensed Products as provided in this Agreement,
directly or through one or more levels of Resellers. The License includes
the right to make copies of the User Software for Subscribers and to
reproduce, copy and distribute Artera's Licensed Product documentation,
descriptions and promotional materials in connection with such distribution
and marketing. The License conveys no right to modify the Licensed
Products, to prepare derivative works


1


of or modifications to the Licensed Products or to sell or copy the
Licensed Products for any purpose other than for delivery to Subscribers
and Resellers as contemplated by this Agreement; provided, however, that it
shall not contravene this sentence for Avaya to bundle its own technology
with Licensed Products through Artera's application program interface
("API"). No agreement between Avaya and an Enterprise Subscriber may be
inconsistent with the rights granted to Avaya under this Agreement. To the
extent that Artera makes API specifications available to Avaya, Artera
grants to Avaya the right to use such API for the purpose of creating
interfaces between Avaya software products and the Licensed Products.
During the term of this Agreement, Artera will provide reasonable technical
support and access to Artera development engineers for the purpose of
answering questions from Avaya on such use of the API at no additional
charge to Avaya.


Artera agrees that Avaya's distributors, resellers, and business partners
are granted a royalty free, non-exclusive, non transferable, non-production
license to use and demonstrate the Licensed Products, as incorporated in
the Avaya Company Product, internally for reselling purposes. No rights are
granted to use the Licensed Products for production purposes. Avaya may
deliver copies of the Licensed Products as incorporated into Company
Product (means "any product developed by Avaya into which the Licensed
Product is to be incorporated"), to prospective End User Customers on a
trial basis for evaluation purposes only ("Evaluation Copy") provided that
each such prospective End User Customer has received a written or
electronic trial license prohibiting the End User Customer from copying,
modifying, reverse engineering, decompiling or disassembling the Licensed
Products or any part thereof. No such license fees shall be reportable or
payable with respect to the Evaluation Copies unless such Evaluation Copy
is replaced with or converted to a standard Avaya offering or the End User
Customer is invoiced for the product directly by Avaya, whichever occurs
first."


3. Right of First Refusal. A new Section 2.9 to the Distribution Agreement is hereby added, to read in its entirety as follows:


"Right of First Refusal for Fortune 1000 Enterprise Accounts in North
America." During the term of this Agreement, there may be Fortune 1000
Enterprises in North America that Avaya has already contacted or is
planning to contact concerning the distribution of Licensed Products.
Artera will not actively solicit a
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