exv10w6



 


Exhibit 10.6

AGREEMENT NO.: AVNERA1
_____________


AVAYA INC.

RESELLER MASTER TERMS AND CONDITIONS



     This Reseller Agreement (“Agreement”) is made
effective as of 08/06/03
(“Effective Date”) by and between Avaya Inc. (“Avaya”) a Delaware
corporation with offices at 211 Mt Airy Rd, Basking Ridge, NJ 07920 and XETA
Technologies, Inc., (“Reseller”) a corporation , with offices located at
1814 West Tacoma, Broken Arrow, OK 74012 .


     NOW THEREFORE, in consideration of the mutual promises herein
set forth
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:



	1.	 	DEFINITIONS



     The following terms shall have the meanings specified below:


     1.1 “Affiliate” means, with respect to any party, any
person or entity
that is under common control with, controls, or is controlled by, that party.


     1.2 “Agreement” means this Reseller Agreement and all
Product Group
Attachments, which are incorporated by reference herein.


     1.3 “Distributor” means any authorized Avaya
distributor identified in the
Product Group Attachments.


     1.4 “Confidential Information” means all information
furnished under or in
contemplation of the Agreement, which is marked with a restrictive notice or
otherwise designated as proprietary, or which the receiving party knows or
should know is being disclosed on a confidential basis; including without
limitation, this Agreement and it’s terms and conditions, all trade secrets,
and price discount, rebate lists and schedules.


     1.5 “End-User” means a third party that purchases
Products for use by such
third party and not for resale, sublease, or sublicense.


     1.6 “Effective Date” means the date of this Agreement
as stated above.


     1.7 “Licensed Materials” means the object code
computer programs furnished
by Avaya and intended for use in or provided for use with Products and also
includes the information in the Related Documentation furnished to Reseller for
use therewith. Unless otherwise specified, no source code version of software
will be included in Licensed Materials.


     1.8 “Licensed Trademarks” means those certain Avaya
designated trademarks,
insignia and symbols which are associated with the Products, and owned by
Avaya.


     1.9 “Permission to Connect” means any necessary
approval by the duly
authorized governing authorities for use of a Product or Product Component in
the Territory. The term includes but is not limited to “type acceptance”,
“type approval”, “prior connection inspection”, “homologation” or any other
similar process, which would provide authorization to connect a Product or
Product Component to the public telecommunications network and/or to sell a
Product in the Territory.


     1.10 “Product(s)” means those products and/or services
which Reseller has
been authorized to resell under the Agreement and listed in an Appendix to a
Product Group Attachment. The authorized products may be amended and
supplemented by Avaya from time to time in accordance with the provisions of
the applicable Product Group Attachment.


     1.11 “Product Component” means an item or part of
equipment identified by
an Avaya equipment code.


     1.12 “Product Group Attachment” means the attachments
to this Agreement.


     1.13 “Related Documentation” means all materials in
printed, written or
electronic form used to describe the use of Products or Product Components,
excluding marketing materials.


     1.14 “Reseller” means the party named above as the
Reseller and any
successor or assignee thereof agreed to by Avaya.


     1.15 “Services” are those installation and
professional services generally
associated with the Products furnished by Avaya to End-Users, when ordered in
connection with Products marketed by Reseller.


     1.16 “Territory” means the fifty (50) states of
the United States of
America and the District of Columbia or such other geographic area specified in
the applicable Product Group Attachment.


     1.17 “Toll Fraud” means the unauthorized use of
telecommunications
services or facilities accessed through or connected to Products.


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     1.18 “Unused Product” means a Product or Product
Component originally
manufactured by Avaya (or an entity controlled by, controlling or under common
control with Avaya), never used, frequently still in original packaging with
original documentation, but which does not carry an Avaya factory warranty
because of an improper acquisition of the Product or Product Component from a
non-Avaya authorized source. Purchase and/or sale of Unused Product is a
violation of this Agreement.



	2.	 	TERM OF AGREEMENT



     2.1 This Agreement shall commence upon the Effective Date for a
period of
one (1) year and shall automatically renew year to year on the anniversary of
the Effective Date unless a party gives written notice of its intent not to
renew to the other party 180 days in advance of the anniversary of the
Effective Date or unless the Agreement is otherwise terminated as hereinafter
provided.



	3.	 	APPOINTMENT



     3.1 Subject to the terms and conditions herein, Avaya appoints
Reseller as
an non-exclusive reseller to purchase Products from an authorized Avaya
Distributor and resell Products to End-Users in the Territory. Reseller shall
have no right to authorize others to resell or market Avaya Products and any
such authorization or attempted authorization shall be void and without effect.
Except as specifically authorized in writing by Avaya, Reseller is not
authorized to employ sales agents (other than an employee of Reseller located
at an authorized Reseller marketing location) or other independent contractors
to market Avaya Products.


     3.2 Unless otherwise expressly stated elsewhere in this
Agreement, the
relationship of the parties under the Agreement shall be, and at all times
shall remain, one of independent contractors, and not that of franchisor and
franchisee, joint venturers, or principal and agent, and no fiduciary
relationship exists between the parties. Neither party shall have any
authority to assume or create obligations on the other’s behalf, and neither
party shall take any action that has the effect of creating the appearance of
its having such authority.


     3.3 Avaya expressly reserves the right to engage directly, or
contract
with others, to market, sell and/or service the Products in the Territory.


     3.4 Reseller accepts the appointment described herein and
acknowledges
that no payment of any fee is required as a condition of such appointment.



	4.	 	RESPONSIBILITIES OF RESELLER



     4.1 Performance of Obligations: Reseller shall perform all of
its
obligations under this Agreement. Reseller shall comply with all of its
obligations under this Agreement or the Product Group Attachment, including,
but not limited to, those relating to any of the following: (a) service, (b)
installation, (c) warranties, (d) training, (e) insurance, (f) reporting and
(g) dealings with authorized Avaya Distributors. Reseller shall conduct
business in its own name and use commercially reasonable efforts to promote,
market and expand the selling of the Products within the Territory. Reseller
shall: (a) conduct its business in a manner that reflects favorably on the
Products and on the good name, goodwill and reputation of Avaya; (b) avoid
deception, misleading or unethical practices; and (c) use best efforts to
promote, market, and further the interest of Avaya, its name and Products.
Reseller represents and warrants to Avaya that at no time will Reseller
substitute competitive products where Avaya is specified by an End-User.


     4.2 Training: Reseller shall retain sales and service personnel
sufficiently trained to perform its obligations under the Agreement, including
but not limited to acknowledge of the industry, the Products and the servicing
of the Products. Reseller shall participate in sales training set forth in the
Product Group Attachment, including annual sales training updates or refresher
courses with options to satisfactorily pass Avaya’s written examination in lieu
of such training. Reseller shall ensure that Reseller’s employees or
representatives engaged in marketing the Products are qualified and competent
to do so, are knowledgeable of the specifications, features and advantages of
the Products and are capable of demonstrating the use and capabilities of the
Products and their applications to End-Users, obtain relevant training and
conduct such marketing activities in a professional manner. If applicable,
Reseller shall meet any individual certification requirements to sell the
Product(s). Training will be provided at Avaya’s then current rates, terms and
conditions.


     4.3 Sales Targets: Unless different or additional requirements
are set
forth in the Product Group Attachment, Reseller shall work with Avaya to
establish annual sales targets for the Products, and meet with Avaya on at
least a quarterly basis to discuss its ability to meet such annual targets.
Reseller shall provide data reasonably requested by Avaya on the overall
marketplace, market potentials and other information related to the Products.


     4.4 Promotional Materials: Reseller shall use and distribute
only Avaya
approved and provided promotional materials (e.g., advertising, sales
literature and brochures) for Products.


     4.5 End-User Technical Support: Reseller shall provide technical
support
and training to End-User in the effective use of the Products.


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     4.6 End-User Warranty: Reseller shall not grant any End-User a
warranty
greater than the warranty granted by Avaya, and any such grant shall be
Reseller’s own responsibility, and shall not be binding upon Avaya. Reseller
shall, either contractually or before delivery of Products to its End-Users,
advise them of the limited scope of Avaya’s warranties and limitations of
liability.


     4.7 Notice to Avaya: Reseller shall promptly inform Avaya of any
facts or
opinions likely to be relevant in relation to marketing the Products including,
without limitation, all suspected Product defects or safety problems and
End-User complaints.


     4.8 Compliance with Laws:



		
	 	     (a) Reseller shall not directly or indirectly pay, offer, promise
or
give or authorize to pay, offer or give money or anything of value to any
employee or official of a government or department thereof, political
party or candidate for political office or to any employees or officials
of public international organizations, or to any other person while being
aware of or having a belief that such money or item of value will be
passed on to one of the above, to influence any act or decision by such
person or by any governmental body for the purpose of obtaining, retaining
or directing business or to otherwise obtain an improper advantage.
Reseller will not undertake any action that may cause Avaya to be in
breach of the rules and regulations of the U.S. Foreign Corrupt Practices
Act or of any similar legislation of any other country.
	 
	 	     (b) Reseller furthermore shall comply with all applicable laws and
regulations of the Territory and the United States, including (among
others) the anti-boycott laws and laws pertaining to data protection. If
at any time after the effective date hereof, the Agreement or the
performance of its obligations by Reseller or Avaya is no longer in
compliance with any federal, state or local law or regulation, the
Agreement shall be appropriately amended by the parties so as to be in
compliance with those laws or regulations or terminated by either party.
Reseller shall keep Avaya informed of any applicable laws or regulations
of the Territory or any political subdivision or agency thereof, as well
as any amendments thereto, whether proposed or adopted, which may affect
the rights and obligations of the parties, or the promotion, sales,
service or maintenance of the Products.



     4.9 Insurance and Bonds: Reseller shall maintain, during the
term of the
Agreement, all insurance and bonds required by any applicable law and the
Product Group Attachments including, but not limited to, worker’s compensation
insurance, employer’s liability insurance, environmental impairment insurance,
pollution liability insurance, automobile liability insurance and commercial
general liability insurance. Upon Avaya’s request, Reseller shall provide
Avaya with certificates of such insurance coverage.


     4.10 Reporting: Reseller shall maintain an accurate and complete
record
of sales and licenses to End-Users, by name, installation address, Product and
Product Components, serial numbers, and date of sale and installation. Upon
reasonable notice, Reseller shall allow Avaya and/or its representatives to
inspect Reseller’s records and reports. Reseller shall provide point of sale
reporting as may be reasonably requested by Avaya, and any other reports
specified in the Product Group Attachment.



		
	 	     4.10.1. To ensure fulfillment of Avaya’s Product and Software
warranties to End-Users, to ensure End-User safety, to ensure End-Users
receive the latest information concerning the use of Avaya Products and
enhancements thereto, to maintain End-User satisfaction, and to assist
Avaya in tracking equipment maintenance obligations and materiel
accountability, Reseller agrees to maintain and make available to Avaya on
reasonable request an accurate and complete list of Reseller’s Avaya
Product and Software End-Users by name, installation address, the Avaya
Product Components furnished to each End-User, the transaction date, and
all serial numbers associated with the new Avaya Products, Software or new
Avaya Product Components. The obligation to maintain and make such
information available to Avaya shall survive expiration or termination of
this Agreement. Avaya will use this information solely for the purposes
set forth in this Section 4.10.1.
	 
	 	     4.10.2 If requested by Avaya, by the fifth (5th) business day of each
month, in a format to be provided by Avaya to Reseller, Reseller will
submit a point-of-sale report of sales made the previous month, by Avaya
order code, ZIP code, and quantity.



     4.11 Quality Reviews: To maintain Avaya’s high standards
for End-User
satisfaction and Avaya Product and Service quality, Reseller agrees to abide by
all Avaya quality policies, and periodically visit the BusinessPartner website
for policy and procedure changes. Reseller agrees to participate in Avaya’s
Customer Satisfaction Surveys. Avaya may conduct performance reviews of all
Reseller responsibilities and Reseller fulfillment of Avaya’s quality policies.


     4.12 Use of Website: The terms of Web Site Use appearing on any
Avaya
Website used by Reseller, as such terms may be amended from time to time, are
hereby incorporated by reference into this Agreement as if set forth herein.


     4.13 Product Sourcing: Other than Avaya’s then current
alternate sourcing
policy, Reseller shall not knowingly purchase or otherwise obtain new or Unused
Avaya Products for resale from any source other than the authorized Avaya
Distributor(s) provided on a Product Group Attachment or Appendix to this
Agreement.


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     4.14 Deauthorize Employees: Upon the termination of employment
of a
Reseller’s employee with password access to any Avaya information system or
hotline, Reseller agrees to immediately deauthorize the employee’s password
access, and to immediately notify the Avaya Information Administrator of the
deauthorization.


     4.15 BusinessPartner Certification Program: Reseller may be
eligible to
participate in the Avaya BusinessPartner Certification Program. Upon
Reseller’s request, Avaya will provide to Reseller a copy of any materials
pertaining to such program. If Reseller decides to participate in such
program, Reseller may be entitled to certain rights and benefits offered
pursuant to the program, provided that Reseller complies with all applicable
minimum sales amounts, minimum technical support capabilities, and other
requirements imposed by the program. Avaya has the right to cancel or modify
the BusinessPartner Certification Program at any time for any reason.



	5.	 	BILLING AND PAYMENT



     5.1 Reseller shall pay all Avaya invoices within thirty
(30) days of the
invoice date. If Reseller does not pay the invoiced amount for receipt by
Avaya within thirty (30) days of the invoice date, Reseller shall pay a
delinquent payment charge at the rate of 11/2% per month or the maximum legal
rate, whichever is lower. Reseller is responsible for taxes which become due
as a result of Avaya’s provision of Products or Services.



	6.	 	PRODUCT CHANGES AND DISCONTINUANCE



     6.1 Avaya may, without the consent of Reseller and without
liability to
Reseller, add, delete or change any Products or modify drawings and
specifications relating thereto. Such additions, deletions and changes will be
communicated to Reseller within a reasonable time of the decision to add,
delete or change. Avaya may substitute Products or Product Components of later
design to fill an order, provided the changes, modifications or substitutions
under normal and proper use do not adversely impact upon form, fit or function
or are recommended by Avaya to enhance safety.


     6.2 Reseller agrees not to make or permit any third party to
make any
changes to the Products.



	7.	 	LICENSED MATERIALS



     7.1 All Licensed Materials, and all copies thereof, including
translations, compilations, derivative works and partial copies, are and shall
at all times remain the property of Avaya or its licensor.


     7.2 Avaya grants Reseller a personal, non-exclusive and
non-transferable
license to use the Licensed Materials only in connection with Products
demonstrated or furnished to End-Users. Reseller is authorized to use the
software only on the hardware on which it has been loaded by Avaya or on which
Avaya has authorized it to be loaded. No title or other ownership rights in
intellectual property or otherwise in the Licensed Materials shall pass to
Reseller or any sub licensee under the Agreement. Reseller agrees not to export
the Licensed Materials out of the Territory.


     7.3 Reseller agrees not to reverse engineer, decompile or
disassemble
software furnished to it in object code form or permit any third party to do
so. For any software included as part of the Licensed Materials which
inherently includes the capability of being remotely enabled, Reseller
expressly agrees that it shall not enable, or permit or assist any third party
to enable, such features or capabilities without Avaya’s express written
permission.


     7.4 Certain software included as part of the Licensed Materials
may be
provided with a separate “shrink-wrap” or other software license and/or
warranty terms. In such cases, the separate software license and/or warranty
terms shall supersede any provisions of the Agreement which are inconsistent or
in conflict with such license and/or warranty terms. At Avaya’s request,
Reseller shall execute any license agreement for software licensed to it. As a
condition to the license or sublicense of any of Licensed Materials to an
End-User, Reseller shall cause the End-User to be bound by the license
agreement specified in the applicable Product Group Contract or furnished by
Avaya with the software. Reseller agrees that Avaya shall be a third party
beneficiary of the provisions regulating and/or restricting Reseller’s license
rights to software from Avaya or its affiliates or outside vendors (“Software
License Restrictions”). Accordingly, Reseller acknowledges that Avaya shall
have the right to enforce those Software License Restrictions directly.
Reseller also agrees that it will cause its End-Users to agree to similar
Software License Restrictions; and that those agreements shall similarly
establish Avaya as a third party beneficiary with the right to enforce those
Software License Agreements directly against Reseller’s End-Users. Reseller
also agrees that, upon reasonable request, it will assign to Avaya its rights
to enforce the Software License Restrictions directly against Reseller’s
End-Users.


     7.5 Reseller shall maintain a copy of each such End-User license
agreement. Avaya shall have the right to obtain a copy of the license
agreements upon request. Reseller agrees that it shall forbid its End-Users to
export the software out of the Territory, and shall impose on its End-Users the
same restrictions on reverse engineering, decompilation and disassembly as
described in Section 7.3 above.


     7.6 If the applicable license agreement authorizes Reseller to
make copies
of the Licensed Materials, Reseller shall make only the copies that are so
authorized, and all such copies shall include all copyright and proprietary
notices of


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Avaya. Reseller shall mark all media containing such copies with a notice that
the Licensed Materials are the property of Avaya and subject to restrictions
and limitations of liability.


     7.7 Any failure by Reseller to comply with any of the license
provisions
contained in the Agreement, Product Group Attachment, or Product Appendix shall
be a material breach of the Agreement and shall immediately entitle Avaya to
terminate any license granted for the Licensed Materials and to exercise any
remedy set forth herein, as well as any remedy that may exist at law or in
equity. If Reseller’s license is terminated, or when Reseller no longer needs
the Licensed Materials, Reseller shall return to Avaya or destroy all copies
thereof. Then current licenses properly granted by Reseller to its End-Users
shall survive termination of Reseller’s license.


     7.8 Avaya may cancel or cause Reseller to cancel any license to
Reseller’s
End-User, if that licensee fails to comply with any of the license provision
contained in the Agreement or any other applicable license agreement. If such
cancellation is due to a breach by an End-User without any fault or breach by
Reseller, then the cancellation shall not extend to Reseller’s license with
respect to itself and the licenses of other End-Users.


     7.9 Avaya may, at its discretion, electronically audit each
system
configuration containing Products sold under the Agreement, to verify
compliance with the license provisions of the Agreement, including (among other
things) the terms of the software license as it relates to the enablement of
any separately licensed features or incremental units of capacity. Such an
audit shall be conducted at the time of enablement of any separately licensed
feature or incremental unit of capacity and at other times selected by Avaya
which, except in emergencies or suspected violations, shall not be more than
once per calendar year upon at least three (3) business days notice to
Reseller. Reseller shall cooperate with Avaya in conducting such audits.
Reseller shall include in its contracts with its End-Users the requirement that
such End-Users permit such audits and cooperate with Avaya in conducting such
audits, including making remote access available to Avaya for this purpose.


     7.10 Avaya will furnish Related Documentation to Reseller in
English.
Reseller will have the right, at its own expense, to reproduce and translate
Related Documentation, provided that: (a) each copy or part thereof includes
Avaya’ copyright and other relevant notices; (b) any translation is accurate
and complete and reproduces the information in a manner consistent with the
original literature; (c) such translation conforms to Avaya then current
documentation standards provided to Reseller by Avaya from time to time; and
(d) all intellectual property rights in any publication produced by Reseller
referring to any Product, Product Component, or Licensed Materials will be
assigned to Avaya upon publication and Reseller will take such actions and
execute such documents from time to time as requested by Avaya to ensure that
Avaya obtains and retains such rights. If Avaya determines that any
publication produced by Reseller fails to comply with the preceding sentence,
Reseller will do any or all of the following as requested by Avaya in its sole
discretion: (a) cease distribution of such publications; (b) reclaim as many
copies thereof as is reasonably practical; (c) destroy all copies of such
publications within Reseller’s control; and (d) amend the publication in
accordance with Avaya’s instructions.



	8.	 	CONFIDENTIAL INFORMATION



     8.1 Confidential Information in any form, whether written or
electronic,
shall remain the property of the furnishing party. Unless authorized by the
furnishing party in writing, such Confidential Information: (a) shall be
treated in confidence by the receiving party, not disclosed to third parties
and used only for purposes of its performance under the Agreement; (b) shall
not be reproduced or copied in whole or in part, except as necessary for use as
authorized herein; and (c) shall, together with any copies thereof, be returned
or destroyed when no longer needed or when the Agreement terminates, whichever
occurs first.


     8.2 Confidential Information does not include information which
(a) is
known to the receiving party free of any restriction, (b) becomes generally
available to the public, other than as a result of improper action by the
receiving party; or (c) is independently developed by the receiving party.


     8.3 The parties agree to keep confidential: (a) the terms
of the
Agreement; (b) the subject matter of any dispute relating to the Agreement; (c)
the terms of any settlement of any dispute relating to the Agreement; and (d)
the termination of the Agreement. If a party is compelled by law to make
disclosure of any of the above, notice shall be given to the other party
pursuant to Section 20.8 prior to any disclosure so that the non-disclosing
party will have an opportunity to object and/or to bring proceedings to prevent
such disclosure.


     8.4 If requested by Avaya, Reseller shall notify Avaya of the
identities
of its controlling persons and executive management and material changes
therein. Such information shall be Confidential Information of Reseller.



	9.	 	TRADEMARKS



     9.1 Avaya hereby grants to Reseller a limited nonexclusive,
non-transferable license and right to use the Licensed Trademarks for use in
connection with the advertisement, promotion, sale or marketing of Products in
the Territory, subject to the terms and conditions of this Section and the
other provisions of the Agreement.


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     9.2 Reseller shall apply the Licensed Trademarks only to
materials which
have been created, in accordance with the standards of quality in materials,
design, workmanship, use, advertising and promotion set forth in the Trademark
Guidelines, or to materials which Avaya has otherwise approved in writing. The
Guidelines for Use of Avaya BusinessPartner Promotional Signatures are set
forth on the BusinessPartner website and are incorporated herein by reference.
The Trademark Guidelines are Confidential Information of Avaya. Avaya may
revise the Trademark Guidelines from time to time, and such revisions shall be
effective upon written notice to Reseller.


     9.3 Avaya shall have the right to conduct during regular
business hours an
examination of materials created by Reseller to determine compliance of such
materials with the Trademark Guidelines. If such materials shall fail to
conform in any material respect with any of the standards set forth in the
Trademark Guidelines, (a) without limiting its other remedies, Avaya may so
notify Reseller, and (b) upon such notification, Reseller shall promptly cease
using the Licensed Trademarks on such materials and not distribute or
publicize such nonconforming materials until the standards contained in the
Trademark Guidelines have been met.


     9.4 Avaya acknowledges that it owns the Licensed Trademarks and
all
registrations and applications therefore in the US and throughout the world but
makes no warranties regarding the validity or enforceability of the Licensed
Trademarks. Reseller will acquire no rights in or to Licensed Trademarks by
virtue of this Agreement, Reseller’s activities under it, or any relationship
Reseller may have with Avaya.


     9.5 Reseller shall comply with conditions set forth in the
Trademark
Guidelines or otherwise established in writing from time-to-time by Avaya with
respect to the style, appearance and manner of use of the Licensed Trademarks.
Any use of the Licensed Trademarks not specifically provided for by such
conditions shall be adopted by Reseller only upon the prior written approval of
Avaya. In addition, Avaya may request that notices acceptable to Avaya be used
on the materials bearing the Licensed Trademarks to identify the licensed use
under the Agreement and the proprietary rights of Avaya.


     9.6 All materials using Licensed Trademarks shall be subject to
prepublication review and approval, at such reasonable times and in such
reasonable manner prior to publication as established by Avaya from time to
time, with respect to, but not limited to, content, style, appearance,
composition, context, timing, media (including but not limited to broadcast
fax, placement on a web site, Yellow Pages, or any other advertising or
marketing medium), and geographic distribution plans. Avaya agrees to use
reasonable commercial efforts in conducting such prepublication review and
approval.


     9.7 The Licensed Trademarks are not to be used by Reseller in
any way to
imply Avaya’s endorsement of products, services or materials, other than those
furnished to Reseller pursuant to the applicable Product Group Contract.
Reseller will not alter or remove any of the Licensed Trademarks applied to a
Product, without the prior written approval of Avaya.


     9.8 Reseller agrees not to register in any country or other
jurisdiction
any name or mark identical to or confusingly similar to the Licensed
Trademarks.



	10.	 	INFRINGEMENT



     10.1 Avaya shall defend or settle all suits against Reseller
alleging that
any Product furnished under the Agreement infringes any United States patent,
and Avaya shall pay all damages and costs which, by final judgment of a court
of competent jurisdiction, may be assessed against Reseller on account of such
infringement, provided that Avaya shall have the foregoing obligations with
respect to third party Products contained within any Products only to the
extent Avaya is indemnified for such obligations by such third party vendors.
Such defense, settlement and payments are conditioned on the following: (a)
Reseller gives Avaya prompt written notice of all such infringement claims and
suits, and full opportunity and authority in the name of Reseller or otherwise
to assume the sole defense and settlement of such suits; and (b) Avaya shall
have sole control of the defense of any action on such claim and all
negotiations of its settlement or compromise; and (c) Reseller furnishes Avaya
with all information and assistance available to Reseller for such defense.


     10.2 In the event of a claim of infringement, or a threatened
claim of
infringement, Reseller agrees that Avaya, in its sole discretion, may either:
(a) procure for Reseller the right to continue selling the Product; (b) replace
the Product subject to the claim with a non-infringing Product which is
functionally equivalent; (c) modify the Product so that it becomes
non-infringing; or (d) re-acquire the infringing Product and refund the
purchase price less a reasonable allowance for use and damage.


     10.3 Sections 10.1 and 10.2 state the entire liability of
Avaya for
intellectual property infringement by any Product furnished under the
Agreement.


     10.4 Avaya’ obligations under Section 10.1 shall not
apply to, and
Reseller agrees to indemnify and save Avaya harmless from, all costs, expenses,
liabilities and claims for infringement of any intellectual property rights:
(a) arising from adherence to instructions, specifications or drawings which
Avaya is directed by Reseller to follow; (b) relating to use or


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sale of the Products in combination with other item(s) not furnished by Avaya;
or (c) arising from any modifications made to the Products by Reseller or any
of its End-Users.



	11.	 	LIMITED PRODUCT WARRANTY



     11.1 Avaya warrants each Avaya-manufactured Product or Product
Component
(exclusive of Licensed Materials) to its End-Users only to the extent set forth
in the applicable Product Group Attachment or documentation accompanying the
Product or Product Component. Avaya’s Product warranties are subject to all of
the terms and conditions set forth in the Product Group Attachment or
documentation accompanying the Product or Product Component, including, but not
limited to, exclusive remedies and limitations of liability. Avaya makes no
warranty with respect to Unused Products and Products or Product Components not
manufactured by Avaya (“Non-Avaya Components”). Avaya, to the extent
permitted, assigns to Reseller’s End-Users any warranties given to Avaya by the
vendor of such Non-Avaya Components.


     11.2 No warranty by Avaya will extend to Products or Product
Components
that have (a) been subjected to misuse, neglect, power failures or surges,
lightning, fire, flood or accident, (b) been used, repaired or altered contrary
to Avaya’s instructions, (c) been improperly installed, stored, or maintained,
or (d) had their serial numbers or date of manufacturing removed, defaced or
altered.


     11.3 Although Products are designed to be reasonably secure,
Avaya makes
no express or implied warranty that Products are immune from or prevent
fraudulent intrusion, unauthorized use or disclosure or loss of proprietary
information. Certain software features, if purchased, when enabled, could be
improperly used in violation of privacy laws. By ordering Products with these
features or separately ordering such features, Reseller and its End-Users
assume all responsibility for assuring their proper and lawful use and all
liability for any improper or unlawful use of such features. Avaya shall not
be liable for any improper or unlawful use of such features.


     11.4 Avaya does not warrant that the Products will prevent Toll
Fraud. If
Reseller offers its End-Users any warranty that is inconsistent with this Toll
Fraud warranty exclusion, Reseller shall specifically describe to End-Users the
sections of Avaya’ material and documentation that regard Toll Fraud and the
precautions an End-User can take to prevent Toll Fraud. Avaya shall in no event
be liable to Reseller, and End-User or any third party for Toll Fraud, and
Reseller shall indemnify Avaya for any damages or liability resulting or
arising from any additional Toll Fraud warranties or representations made by
Reseller.


     11.5 THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL
OTHER EXPRESS
AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR THE LIMITED
PRODUCT WARRANTY TO RESELLER’S END-USERS REFERENCED IN THIS SECTION, AVAYA, ITS
AFFILIATES AND SUPPLIERS MAKE NO WARRANTIES EXPRESS OF IMPLIED AND SPECIFICALLY
DISCLAIM ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR
PURPOSE.



	12.	 	LIMITED SOFTWARE WARRANTY



     12.1 Avaya warrants the Licensed Materials End-Users and only to
the
extent set forth in the applicable Product Group Attachment or documentation
accompanying the Product or Product Component. Any warranty is subject to all
of the terms and conditions set forth in the Product Group Attachment or
documentation accompanying the Product or Product Component, including, but not
limited to, exclusive remedies and limitations of liability. The provisions of
this limited Licensed Materials warranty shall also govern Reseller’s internal
use for the Licensed Materials, including use for sales, service, or training
purposes.


     12.2 Avaya makes no warranty with respect to any Licensed
Material as to
defects resulting from (a) Reseller’s or its End-Users’ misuse, neglect,
accident or abuse; (b) Reseller’s or its End-Users’ alteration of Licensed
Materials; or (c) Licensed Materials used in violation of the Agreement or the
license to which its use is subject. Avaya does not warrant that Licensed
Materials will meet the specifications or requirements of Reseller or its
End-Users, or that the operation of the Product using the Licensed Materials
will be continuous over any specified period of time or error-free.


     12.3 THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL
OTHER EXPRESS
AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR THE LIMITED
PRODUCT WARRANTY TO RESELLER’S END-USERS REFERENCED IN THIS SECTION, AVAYA, ITS
AFFILIATES AND SUPPLIERS MAKE NO WARRANTIES EXPRESS OR IMPLIED AND SPECIFICALLY
DISCLAIM ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR
PURPOSE.


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	13.	 	LIMITATION OF LIABILITY; LIMITATION OF REMEDY



     13.1 EXCLUSIVE REMEDIES; LIMITATIONS OF LIABILITY



		
	 	     (a) For purposes of the exclusive remedies and limitations of
liability set forth in this Section, each party shall be deemed to include
its respective subsidiaries and affiliates and the directors, officers,
employees, agents, representatives, subcontractors and suppliers of each
of them; and “damages” shall be deemed to refer collectively to all
injury, damage, loss or expense incurred;
	 
	 	     (b) Avaya’s entire liability and Reseller’s exclusive
remedies
against Avaya for any damages caused by any Product defect or failure, or
arising from the performance or non-performance of any work, regardless of
the form of action, whether in contract, tort including negligence, strict
liability or otherwise shall be:




		
	 	     (i) For infringement, the remedies set forth in the section
entitled Infringement;
	 
	 	     (ii) For the non-performance of Product or work performed during
any warranty period, the remedies stated in the sections entitled
Limited Product Warranty and Limited Software Warranty and in the
Product Group Attachments;
	 
	 	     (iii) For failure to deliver or for delays in delivery of
Production quantities, Avaya shall have no liability unless the
delivery is delayed by more than thirty (30) days by causes not
attributable either to Avaya or to conditions beyond Avaya’s
reasonable control, in which case Reseller shall have the right, as
its sole remedy, to terminate the order without incurring termination
charges, or to require Avaya to deliver the Products using priority
delivery, at Avaya’s Expense;
	 
	 	     (iv) For bodily injury or death to any person proximately caused
by Avaya’s negligence, the amount of proven direct damages; and
	 
	 	     (v) For any claims not set forth above, Avaya’s liability
shall
be limited to direct damages that are proven, in an amount not to
exceed the purchase price of the affected Product.




		
	 	     (c) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER
PARTY SHALL BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR
CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, SAVINGS
OR REVENUES OF ANY KIND, WHETHER OR NOT ANY SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. THIS PROVISION SHALL SURVIVE FAILURE OF
AN EXCLUSIVE REMEDY.



     13.2 For all Products ordered or purchased by Reseller from an
authorized
Avaya distributor, Reseller and its End-User shall direct all complaints, make
all claims and seek all remedies against such distributor arising out of or
relating to the Products, including but not limited to any delays, errors or
omissions in filling any orders or defects in the Products, whether in
contract, tort, strict liability or otherwise.


     13.3 No suit, action or proceeding (including a claim for
arbitration
under Section 17.1) may be commenced against Avaya or any of its Affiliates or
suppliers more than one (1) year after the cause of action arises.


     13.4 THE PARTIES AGREE THAT THE PRICES FOR PRODUCTS REFLECT
THE ALLOCATION
OF RISKS IN THIS AGREEMENT AND THE PRODUCT GROUP ATTACHMENTS.



	14.	 	INDEMNITY



     14.1 Reseller agrees to indemnify and save harmless Avaya from
and against
losses, damages, claims, demands, suits and liabilities (including court costs
and reasonable attorney’s fees) that arise out of or result from injuries or
death to persons or damage to tangible property caused by Reseller’s acts or
omissions, or those of persons furnished by Reseller or in any way arising out
of Reseller’s performance or failure of performance of this Agreement; or
assertions made by persons furnished by Reseller under Workers’ Compensation or
similar acts;. At Avaya’s request, Reseller agrees to defend Avaya against any
such claims, demands or suits at Reseller’s expense. Avaya agrees to notify
Reseller in writing within a reasonable time of any written claims or demands
against Avaya for which Reseller is responsible under this Section and agrees
to cooperate with Reseller in connection with the defense of such action, but
Avaya shall have the right to be represented in such action at its expense with
advisory counsel of its choice.


     14.2 Avaya agrees to indemnify and save harmless Reseller from
and against
losses, damages, claims, demands, suits and liabilities (including court costs
and reasonable attorney’s fees) that arise out of or result from injuries or
death to persons or damage to tangible property caused by Avaya’s acts or
omissions, or those of persons furnished by Avaya or in any way arising from
Avaya’s performance or failure of performance of this Agreement; or assertions
made by persons furnished by Avaya under Workers Compensation or similar acts.
At Reseller’s request, Avaya agrees to defend Reseller against any such
claims, demands or suits at Avaya’s expense. Reseller agrees to notify Avaya
in writing within a reasonable time of any written claims or demands against
Reseller for which Avaya is responsible under this Section and agrees to
cooperate with Avaya in connection with the defense of such action, but
Reseller shall have the right to be


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represented in such action at its expense with advisory counsel of its choice.


     14.2 This provision shall survive the expiration or termination
of this
Agreement.



	15.	 	FORCE MAJEURE



     15.1 Other than for the payment of money, neither party shall be
held
responsible for any delay or failure in performance to the extent caused by
events beyond such party’s reasonable control, such as fire, flood, explosion,
war or the engagement of hostilities, strike, embargo, labor dispute,
government requirement, civil disturbances, civil or military authority, and
inability to secure materials or transportation facilities. Each party shall
endeavor to give the other reasonable notice of any such delay or failure.



	16.	 	ASSIGNMENT AND SUBCONTRACTING



     16.1 Reseller acknowledges that Avaya has appointed it as a
Reseller in
reliance upon the qualifications, business reputation, and financial soundness
of itself and its controlling persons and management. Reseller may not assign
the Agreement, or assign or delegate any right or obligation arising under the
Agreement, without the prior written consent of Avaya.


     16.2 Avaya may subcontract any or all of the work to be
performed by it
under the Agreement, but shall retain the responsibility for the subcontracted
work. Avaya may assign the Agreement, in whole or in part, to any of its
Affiliates or to any entity to which Avaya may sell, transfer, convey, assign
or lease all or substantially all of its rights with respect to the Products
subject to an applicable Product Group Contract.



	17.	 	TERMINATION OF AGREEMENT



     17.1 Either party may terminate the Agreement at any time
without cause by
giving the other party one hundred eighty (180) days written notice of the
termination. During said one-hundred-eighty (180) day period, Avaya will
complete any pending orders for Product and Product Components upon receipt of
pre-payment from Reseller for any such orders unless the parties agree
otherwise. Reseller shall not submit any orders for Product or Product
Components on or after the date of notice of termination and Avaya has no
obligation to process any orders or deliver Product or Product Components
pursuant to any order that violates this Section.


     17.2 Either party may terminate this Agreement for material
breach or
default of any term or condition of this Agreement (other than payment to
Avaya) if such breach or default is not cured within thirty (30) days of
written notice of such breach or default from the non-breaching party.


     17.3 Avaya may terminate the Agreement on twenty-four
(24) hours notice
upon the occurrence of any of the following:



		
	 	     (a) if Reseller breaches or otherwise violates any of the
provisions
of Sections 3.1, 4.13, 7.0, or 9.7 hereof; or
	 
	 	     (b) if Reseller materially breaches or violates any other provision
of the Agreement and the breach or violation is not capable of cure; or
	 
	 	     (c) if Reseller breaches or violates any provision of the
Agreement,
including the failure to pay Avaya under this Agreement or to pay an Avaya
distributor, and Reseller fails to cure such breach or violation within
five (5) days after notice of such breach or violation is given to
Reseller; or
	 
	 	     (d) if there is a 50% or more change of direct or indirect
ownership
of Reseller or a change of direct or indirect control of Reseller
(excluding a change of ownership of the shares of a publicly traded
company which does not result in a change of control).



     17.4 The termination of the Agreement shall automatically
accelerate the
due date of all invoices to the effective date of termination.


     17.5 Upon the termination of the Agreement, Reseller shall:



		
	 	     (a) discontinue all use of Licensed Trademarks, except that
Reseller
may continue using such Licensed Marks as authorized in the Agreement for
an additional one hundred eighty (180) days exclusively in connection with
Reseller’s efforts to sell remaining inventory; and
	 
	 	     (b) cease holding itself out, in any manner, as an authorized
Reseller of Avaya and notify and arrange for all persons who may identify,
list or publish Reseller’s name as an Avaya authorized Reseller to
discontinue the same; and
	 
	 	     (c) return to Avaya, or destroy at Avaya’s request, all
Confidential
Information and all promotional materials supplied by Avaya; and



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     17.6 Neither party shall be liable to the other on account of
the
termination of the Agreement pursuant to this Section or otherwise pursuant to
the Agreement, either for compensation or for damages of any kind or character
whatsoever, or on account of the loss of present or prospective profits, good
will, or expenditures, investments or commitments made in contemplation of, or
in the performance of, the Agreement, provided, however that the termination of
the Agreement shall not prejudice or otherwise affect (a) the rights or
liabilities of the parties with respect to Products already sold under the
Agreement, (b) any indebtedness then owing by either party to the other, and
(c) any other obligations of the parties, such as those arising under Sections
5, 7, 8, 9, 10, 11, 12, 13, 14, 17, 18, 19 and 20, which by their nature
continue beyond termination of the Agreement and which shall survive such
termination.



	18.	 	CHOICE OF LAW; EXCLUSIVE JURISDICTION; WAIVER OF JURY TRIAL.



     18.1 Unless otherwise stated in the Product Group Attachment,
the
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, USA, excluding its choice of law principles.


     18.2 Any suit or other action arising out of the Agreement,
whether
commenced in conformity with or contrary to Section 19, shall only be brought,
if by Avaya, in the federal courts of the State of Oklahoma, and if by
Reseller, in the federal courts of the State of New York, with the sole
exception that any party may commence a suit in any jurisdiction to enforce an
arbitration award or judgment obtained pursuant to Section 19. In the event of
any suit in the federal courts of either New York or Oklahoma, as the case may
be as provided herein, (a) the parties hereby consent to personal jurisdiction
therefore and waive any defense based on a lack of personal jurisdiction,
improper venue, or the inconvenience of the forum, and (b) the parties agree
that delivery of any process in the manner provided for in Section 20.8 shall
constitute lawful and valid service of process.



	19.	 	ARBITRATION AND DISPUTE RESOLUTION



     19.1 Except as otherwise expressly provided in the Agreement,
any dispute,
controversy or claim arising out of or relating to the Agreement, its
interpretation or enforcement shall be resolved by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association
conducted by one arbitrator. The arbitration shall be conducted at Avaya’s
offices at 211 Mt. Airy Road, Basking Ridge, New Jersey unless otherwise agreed
by the parties. Any ruling by the arbitrator shall be final and binding on the
parties and may be entered in any court of competent jurisdiction. The
arbitrator shall have no authority to modify or expand the Agreement or any of
the provisions of this Agreement. The arbitrator is specifically authorized to
render partial or summary judgment. Each party will bear its own attorneys’
fees associated with the arbitration, and each party shall bear an equal share
of all fees, costs and expenses of the arbitrator. The arbitration proceeding
and all testimony, filings, documents, and other information produced or given
in connection with the arbitration shall be treated as Confidential
Information, except as may be necessary to enter any arbitration ruling in a
court of competent jurisdiction or as otherwise may be required by law.


     19.2 Nothing in the Agreement shall preclude either party from
specific
performance or other equitable relief, including but not limited to temporary
restraining orders and preliminary injunctions, from any court of competent
jurisdiction, in order to protect its rights or prevent harm pending the
obtaining of an arbitration ruling, nor shall anything herein prevent Avaya
from seeking monetary damages from any court of competent jurisdiction for
monies owed to it hereunder. Without limiting the foregoing provisions of this
Section, Reseller acknowledges that remedies at law, including by means of an
arbitration for a breach or threatened breach of any of the covenants contained
in Sections 4, 7, 8, 9, 16 and 17 will be inadequate and in the event of a
breach or threatened breach of any such covenants, Avaya shall be entitled to
an injunction specifically enforcing Reseller’s compliance with such.


     19.3 The prevailing party in any dispute relating to the
Agreement
resulting in a final judgment by any court or arbitration panel, including but
not limited to actions to collect money owed to Avaya by Reseller, shall be
entitled to the payment of all attorneys fees and costs incurred.



	20.	 	GENERAL



     20.1 No failure to exercise and no delay or partial exercise of
a right or
power conferred upon a party under the terms of the Agreement shall operate as
a waiver of such right or power.


     20.2 If any paragraph or clause in the Agreement shall be held
to be
invalid or unenforceable in any jurisdiction in which the Agreement is being
performed, then the meaning of such paragraph or clause shall be construed so
as to render it enforceable, to the extent practicable; and if no such
interpretation would save such paragraph or clause, it shall be severed from
the Agreement and the remainder shall remain in full force and effect.
However, in the event such section or clause is considered an essential element
of this Agreement by either Avaya or Reseller, the parties shall promptly
negotiate a replacement therefore.


     20.3 The Agreement has been signed in the English language. In
case of
conflict between the Agreement and any translation from English, the English
language Agreement shall control.


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     20.4 In the event of a conflict between provisions of the
Agreement and
the Product Group Attachments, priority shall be given to provisions of the
Product Group Attachments over a provision of the Agreement, unless such
priority is expressly overridden in the Agreement; and in the event of a
conflict between the provisions of the Product Group Attachment and a Product
Appendix, priority shall be given to provisions of the Product Appendix over a
provision of the Product Group Attachment, unless such priority is expressly
overridden in the Product Group Attachment or the Agreement


     20.5 The terms and conditions contained in the Agreement
supersede all
prior oral or written understandings between the parties and shall constitute
the entire agreement between them concerning the subject matter of the
Agreement and shall not be contradicted, explained or supplemented by any
course of dealing or course of performance between Avaya and Reseller. The
Agreement may only be amended by a writing signed by both parties.


     20.6 The headings contained in the Agreement are for convenience
only and
are not intended to affect the meaning or interpretation of the Agreement.


     20.7 Words importing a particular gender shall include every
other gender
and words importing the singular shall include the plural and vice-versa,
unless the context clearly indicates otherwise.


     20.8 Except as expressly provided in the Agreement, all notices,
consents,
waivers, requests or other instruments or communications given pursuant to the
Agreement shall be in writing and shall be delivered by hand or sent by
registered or certified United States mail, return receipt requested, postage
prepaid, or by a recognized overnight delivery service, addressed to Avaya at
its principal place of business, Attention: General Counsel and to the Reseller
at the address set forth at the beginning of these Master Terms and Conditions.
Any party may, by notice to the other party, specify any other address for the
receipt of such notices, instruments or communications. Except as expressly
provided in the Agreement, any notice, instrument or other communication shall
be deemed properly given when hand delivered, one business day after being sent
by overnight courier service and three days after being sent by United States
mail in the manner prescribed in this Section.


     IN WITNESS WHEREOF the parties have caused this Master Terms and
Conditions to
be signed by their duly authorized representatives.



	 	 	 
	Avaya Inc.	 	
XETA Technologies, Inc.
	By: /s/ Roxanne L. Weldon	 	
By: /s/ Jack R. Ingram
	Typed Name: Roxanne L. Weldon	 	
Typed Name: Jack Ingram
	Title: Sr. Ops Mgr	 	
Title: CEO, President
	Date: 8/06/03	 	
Date: 8.6.03



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RESELLER PRODUCT GROUP ATTACHMENT

TO AVAYA INC RESELLER MASTER TERMS AND CONDITIONS

For

ENTERPRISE COMMUNICATION

AND INTERNETWORKING SOLUTIONS PRODUCT



This Product Group Attachment (“Product Group Attachment”) shall be effective
as of 08/06/03 (“Effective Date”) between Avaya, Inc. (“Avaya”), and XETA
Technologies, Inc. (“Reseller”). This Product Group Attachment hereby
incorporates by reference the Reseller Master Terms and Conditions entered into
between Avaya and Reseller. The terms set forth in this Product Group
Attachment shall be applicable to Avaya Enterprise Communications (“EC”) and
Internetworking Solutions (“IS”) Products as defined in Product Appendices
attached.


In addition to the terms of the Reseller Master Terms and Conditions specifying
the relationship of the parties and their responsibilities, the parties agree
as follows:



	1.0	 	 DEFINITIONS



Unless otherwise specified herein, terms which are defined in the Reseller
Master Terms and Conditions shall have the meanings specified therein. The
following terms shall have the meanings specified below:


     1.1 “Area” means the specific geographic area or
market segment in which
Reseller has agreed to market Avaya Products in accordance with this Agreement.
The agreed upon Area for Reseller is set forth in Appendix 1.


     1.2 “Distributor” means the authorized Avaya
distributor of Avaya Product
from whom Reseller will purchase product and who are listed or referred to in
Appendix 1, to this Product Group Attachment.


     1.3 “Reseller Service” means one or more of those
services Reseller may
choose to perform itself for Avaya Products in the Area. Reseller Services
include system configuration to the End User, installation, warranty, and
provision of post-warranty on-site maintenance.


     1.4 “Avaya Service” means one or more of those
services provided by Avaya
that Reseller may choose to offer, including system configuration,
installation, provision of post-warranty on-site and post-warranty remote
maintenance service, and professional services. Avaya Service also includes
remote maintenance service separate from post-warranty on-site maintenance
service, which Reseller may offer in conjunction with Reseller Service.


     1.5 Territory” means the fifty states of the United States
of America and
the District of Columbia, excluding the Cincinnati Bell Telephone Company
operating area in the states of Ohio, Kentucky and Indiana with respect only to
DEFINITY® ECS and Prologix® products.



	2.0	 	 APPOINTMENT FOR ENTERPRISE COMMUNICATION AND INTERNETWORKING SOLUTIONS
PRODUCT



     2.1 For Resale of EC Products Only: Avaya hereby authorizes
Reseller to
purchase Avaya EC Products from EC Products Distributor, for resale to End User
customers only who are within Reseller’s Area.


For Resale of IS Products Only: Avaya hereby authorizes Reseller
to purchase
from Avaya IS Products from IS Products Distributor(s), for resale to End User
customers only who are within Reseller’s Area.


Reseller’s authorized marketing location(s) are set forth in the Appendix 1.
If End User to which Reseller has sold Avaya EC Products within the Area has
locations outside the Area but within the Territory, then Reseller may sell
limited quantities of Avaya EC Products for use by that End User outside the
Area but in the Territory. With that exception, reseller shall not market or
sell Avaya EC Products outside Reseller’s Area. Avaya’s authorization is
predicated on Reseller’s agreement to market the Avaya Products in the Area and
to achieve the Area forecast submitted pursuant to Section 4.3 of the Master
Terms and Conditions. Avaya EC Products installed outside the Area will not be
considered by Avaya when determining whether Reseller has achieved its annual
commitment submitted pursuant to Section 4.3 of the Master Terms and
Conditions. Reseller’s sales of Avaya EC Products outside the Area (unless
specifically permitted by this Section 2.1), Reseller’s failure to achieve
levels of sales acceptable to Avaya in the Area shall, among others, be grounds
for termination or non-renewal of the Agreement.


     2.2 Unless expressly provided elsewhere within this Agreement,
Reseller
may not market or sell Avaya Products to any office, department, agency, or
defense installation of the United States Government except that Reseller may
respond to a request for competitive bids, proposals, or quotations even if
Avaya is also responding. Reseller is not appointed or authorized to market or
sell Avaya Products to the United States Government by reason of the fact that
Reseller has, in the past, sold used or unused products manufactured by Avaya
to the United States Government.


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	3.0	 	 SUPPLEMENTAL RESPONSIBILITIES OF RESELLER FOR AVAYA ENTERPRISE
COMMUNICATION AND INTERNETWORKING SOLUTIONS PRODUCT



     3.1 All services training that Avaya requires Reseller personnel
to
undergo, or other services training requested by the Reseller and offered by
Avaya, will be furnished to Reseller at Avaya’s standard rates, terms and
conditions. If Reseller has subcontracted with Avaya to perform all or part of
Reseller Service to an End User and Reseller installs unused product (s)
manufactured by Avaya but not purchased from the BusinessPartner Sales
Organization (“BPSO”) as part of that End User’s system, in addition to any
other remedies available to Avaya, Avaya may terminate any Reseller licenses to
use Avaya maintenance software and also terminate its subcontracts with
Reseller to perform Reseller Service. If Reseller has sold an Avaya Product
system and an Avaya Post-Warranty Maintenance service contract to an End User,
Reseller will advise such End User that addition of used and unused product (s)
to the Avaya Product system may void Avaya’s warranty and cause Avaya to
terminate the service contract.


     3.2 Except when requested by the End-User customer within ninety
(90) days
prior to expiration of its Avaya Service agreement, without any prior
solicitation from Reseller, Reseller may not seek to or assist any third party
in replacing, interfering with or substituting any pre-existing Avaya Service
agreement entered into with an End-User customer. Any act of interference by a
Reseller with an existing Avaya Service agreement shall be a material breach of
this Agreement. Reseller will not market or resell a third party’s services in
support of an Avaya Product where Avaya has a preexisting Services agreement
during the term of this Agreement.


     3.3 Reseller shall offer to train those End Users who elect to
install
their own systems in the effective use of the Avaya Products, including
providing any instructional material furnished to Reseller by Avaya. Reseller
shall specifically describe to those End Users who elect to install their own
systems the sections of such material, including brochures and manuals packaged
with the Avaya Products, that describe toll fraud and the precautions an End
User can take to prevent toll fraud.


     3.4 If Avaya is to install the Products, Reseller shall give
requested
information, to the Avaya services organization where the End User is located,
in the agreed format, as soon as Reseller’s order process is completed. This
will enable the customer to receive the Avaya Warranty on the new Avaya
Products and Software, and if the customer has an Avaya post warranty service
maintenance contract and has like products, the new Avaya Products will
automatically be added to that contract when the Warranty expires.



	4.0	 	 INSTALLATION, WARRANTY AND POST-WARRANTY SERVICES (for EC Products
only)



This section 4.0 applies only to EC Products authorized by Product Appendix or
Addendum to this Product Group Attachment:


     4.1 Avaya agrees to furnish any Avaya Services required by End
Users
purchasing Avaya Products from Reseller, as Reseller requests, until Reseller’s
installation and maintenance personnel have completed training required under
Section 4.2 of the Master Terms and Conditions, to the satisfaction of Avaya.
During such interim period, Reseller agrees to propose only Avaya Services or
those of an Authorized Avaya Service provider in connection with each End User
purchase of Avaya Products under this Agreement. Once Reseller has completed
the necessary training, any installation, warranty or post-warranty Services
required by End Users may be furnished by Reseller. To ensure the provision of
high quality installation and post-warranty Services to End Users, Reseller
shall: (i) perform Services directly and not, unless expressly authorized in
writing by Avaya, through a non-Avaya authorized independent contractor or
agent; (ii) be adequately trained; and (iii) perform such Services competently
and in accordance with any applicable Avaya standards. The indemnity
obligations of Reseller under Section 14.1 of the Master Terms and Conditions
shall apply to any Services furnished by Reseller to End Users. Reseller may
offer Avaya’s installation and post warranty Services to Reseller’s End Users
at Avaya’s then current rates terms and conditions.


     4.2 Replacement, spare or maintenance Product Components
required by
Reseller, to the extent that Avaya in its sole discretion makes such Product
Components available, can be purchased either directly from Distributor
pursuant to this Agreement or through Avaya’s National Parts Sales Center
(NPSC). In the event Reseller elects to purchase such Product Components from
the NPSC, such purchases shall be at the prices, terms and conditions
established by the NPSC. Replacement, spare and maintenance Product Components
provided to Reseller or purchased by Reseller under this Agreement may, at
Avaya’s option, be either new or refurbished.


     4.3 Avaya’s appointment of Reseller to market Avaya
Products hereunder is
predicated on Reseller’s agreement that it will hold itself out as authorized
by Avaya to provide Services only as to Avaya Products hereunder and will, to
the sole satisfaction of Avaya, clearly distinguish its authorization to
provide Services for such Avaya Products and its lack of authorization to
provide Services for other Avaya-manufactured equipment. Reseller also agrees
to inform End Users of such distinction in Reseller’s marketing (including
brochures or other printed or written materials) of Avaya Products and of any
other Avaya equipment. In addition to any other events of termination set
forth in this Agreement, Reseller’s failure to distinguish between its
authorization to offer Services as to Avaya Products and its lack of
authorization to offer Services as to other Avaya equipment or to inform End
Users of such distinction shall entitle Avaya to terminate this Agreement upon
written notice to Reseller.


 2



Avaya Proprietary


 






 


     4.4 Reseller may incorporate Avaya Services support features in
its
Reseller Service Offers to End Users. Avaya will serve as Reseller’s
subcontractor for such Avaya Services. No license is granted, and no title or
other ownership rights in Avaya’s intellectual property related to Avaya’s
provision of Avaya Services support shall pass to Reseller under this Agreement
or as a result of any performance hereunder. Reseller agrees to provide Avaya
with accurate information on End User port capacity, software attachments, and
other information required in order for Avaya to invoice Reseller accurately
for such remote support. Failure to provide such accurate information or to
update it on a timely basis shall entitle Avaya to terminate this Agreement
upon written notice to Reseller. Connection of unused product(s) manufactured
by Avaya but not purchased from BPSO as part of an End User’s system may, in
addition to any other remedies available to Avaya, permit Avaya to terminate
any Reseller licenses to use Avaya maintenance software and also to terminate
all its subcontract (s) with Reseller to perform Reseller Service.



	5.0	 	 PRODUCT, PRODUCT COMPONENTS, AND SOFTWARE LICENSE CHANGES



     5.1 Avaya may without the consent of Reseller, but with thirty
(30) days
advance written notice to Reseller, delete any Avaya Product or Product
Component from any Product Appendix.



	6.0	 	 RESELLER FORECAST AND REPORTS



     6.1 Upon execution of this Agreement and annually thereafter,
Reseller
shall submit to Avaya a monthly and quarterly forecast of total Avaya Product
orders to be placed by Reseller during the next twelve months, the “annual
commitment”. The annual commitment must specify, for each month and quarter,
the total unit quantities of each Avaya Product construct (i.e., average
configuration of Avaya Product Components in an initial End User installation
of an Avaya Product model) to be ordered.


     6.2 Avaya may reject any annual commitment submitted by Reseller
if, in
Avaya’s sole judgment, such commitment does not project either: (1) the level
of Avaya Product orders Avaya reasonably requires of Reseller to achieve its
marketing objectives in the Area; or (2) a realistic assessment of Reseller’s
potential successful marketing opportunities in the Area during the forecast
period. Avaya shall notify Reseller in writing within thirty (30) days of
receipt of Reseller’s forecast if Avaya has rejected such forecast or it will
be deemed to have been accepted by Avaya.


     6.3 Reseller shall submit the annual commitment of Avaya Product
orders as
specified in Section 6.1 of this Attachment, and actual Avaya Product
installation data specified in Section 3.4 of this Attachment and Sections
4.10.1 and 4.10.2 of the Master Terms and Conditions, in a format specified by
Avaya.



	7.0	 	 TERMINATION OF AGREEMENT



     7.1 In addition to the termination conditions in the Reseller
Master Terms
and Conditions, Avaya may terminate this Attachment or the Agreement upon
twenty-four (24) hours upon the occurrence of any of the following:


     (a)  if Reseller breaches or otherwise violates any of the
provisions under
Sections 2.1, 3.2, 4.3, and 4.4 of this Attachment, and Reseller fails to cure
such breach or violation within five (5) days after notice of such breach or
violation is given to Reseller; or


     (b)  if Reseller has remotely accessed PBX locations
maintained by
Avaya directly.


Reseller agrees that by executing this Product Group Attachment, it is bound by
the terms and conditions of the Master Terms and Conditions, the terms and
conditions contained in the Product Group Attachment, and any additional terms
and conditions set forth in a Product Appendix associated with those Products,
which Reseller has been authorized to sell.


IN WITNESS WHEREOF the parties have caused this Product Group Attachment to be
signed by their duly authorized representatives.



	 	 	 
	Avaya Inc.	 	
XETA Technologies, Inc.
	By: /s/ Roxanne L. Weldon	 	
By: /s/ Jack R. Ingram
	Typed Name: Roxanne L. Weldon	 	
Typed Name: Jack Ingram
	Title: Sr. Ops Mgr	 	
Title: CEO, President
	Date: 8/06/03	 	
Date: 8/06/03



 3



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AGREEMENT NO.: AVNERA1-T030809


RESELLER PRODUCT GROUP ATTACHMENT: OCTEL® PRODUCTS



This Reseller Product Group Attachment to the Reseller Master Terms and
Conditions (“Product Group Attachment”), which shall be effective as of SEP 2 5
2002 (“Effective Date”) between Avaya Inc. (“Avaya”) and XETA Technologies,
Inc. (“Reseller”) governs Reseller’s resale of the voice processing equipment
principally embodied by the products listed in Appendix 2 (the “Systems”) and
the replacement parts, hardware and software upgrades, expansions and
conversions for such Systems, which together with the Systems shall be referred
to as the “Products” in this Product Group Attachment. Except as explicitly
modified herein, all terms, conditions and provisions of the Reseller Master
Terms and Conditions (“Master Reseller Agreement”) between Avaya and Reseller
and all previous Amendments to that agreement, which are collectively
incorporated herein by reference, shall continue in full force and effect, In
the event of any inconsistency or conflict between the Master Reseller
Agreement and any Amendment and the terms of this Product Group Attachment with
respect to Reseller’s resale of the Products, the terms, conditions and
provisions of this Product Group Attachment shall govern and control.
Capitalized terms used but not defined herein shall have the same meaning as
that set forth in the Master Reseller Agreement.



	1.0	 	PRODUCTS




	 	1.1	 	This Product Group Attachment applies to the customer premises
voice information processing Products identified in Appendix 2 hereto
that Reseller is authorized to purchase from Avaya and no others..
	 
	 	1.2	 	Reseller also is authorized to purchase from Avaya and no others
replacement parts, software upgrades, hardware upgrades, expansions
and conversions for the Products set forth in Appendix 2 and for
Avaya’s discontinued Products, provided that such parts are available
and subject to the terms of any announced plan by Avaya to cease
support for such discontinued products (“Sunset Policy). An
“expansion” is an increase in the capacity of an installed system
without a change in the type of system. A “conversion” is the
migration from one type of installed system to another and may include
database transfer.
	 
	 	1.3	 	The items falling into the following categories shall not be
considered Products for any purpose:
	 


	 	1.3.1	 	Integrated versions of the Products the development of
which requires information from an OEM vendor that OEM will
provide only when it or its designated Reseller(s) will be the
sole source of distribution of such an integrated version.
	 
	 	1.3.2	 	Any of Avaya’s discontinued products.




	2.0	 	DEFINITIONS




	 	2.1	 	“Applicable Price” means the national list price in effect on the
date of Avaya’s receipt of Reseller’s order, subject to any Avaya
discount schedule or price plan or policy that may serve to modify the
list price.
	 
	 	2.2	 	“Authorized Territory” means the Territory set forth in Appendix
1 to this Product Group Attachment, which may be changed only by
mutual, written agreement by the parties.




	 	 	 	 	 
	 	 	
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	 	2.3	 	“COD Software” means remotely enabled incremental software
capacity or features.




	3.0	 	 APPOINTMENT FOR PRODUCT




	 	3.1	 	During the term of this Product Group Attachment, and subject to
the terms and conditions herein, Avaya appoints Reseller as a
non-exclusive reseller authorized to purchase Products from Avaya
directly for redistribution only directly to End-Users in the
Authorized Territory. This Product Group Attachment shall remain in
effect during the term of the Master Reseller Agreement, unless this
Product Group Attachment is terminated as provided herein or the
Products are discontinued pursuant to Section 6 of the Master Reseller
Agreement.
	 
	 	3.2	 	The Products covered by this Product Group Attachment may include
both hardware and software. Although the terms “purchase” and “sale”
may be used throughout this Product Group Attachment for convenience,
Reseller understands and agrees that it is being granted the right to
use (and further sublicense the use of) but will not obtain title to,
or any proprietary rights in, such software. Reseller will comply
strictly with all restrictions on the use of software licensed by
Avaya to Reseller and will require such compliance by Reseller’s
customers.
	 
	 	3.3	 	Unless expressly provided elsewhere within this Product Group
Attachment, Reseller may not market or sell Products to any office,
department, agency, or defense installation of the United States
Government except that Reseller may respond to a request for
competitive bids, proposals, or quotations even if Avaya is also
responding. Reseller is not appointed or authorized to market or sell
Avaya Products to the United States Government by reason of the fact
that Reseller has, in the past, sold used or unused products
manufactured by Avaya to the United States Government.
	 
	 	3.4	 	Avaya will not be required to accept any orders for Products
until Reseller has completed all requirements of the then current
Avaya BusinessPartner authorization or certification program for the
Products (the “Certification Program”). In the event that Reseller has
not commenced or has not completed the Certification Program as of the
Effective Date, it must commence the Certification Program no later
than sixty (60) days after the Effective Date and must complete the
Program within ninety (90) days thereafter. In addition, if Reseller
fails to maintain its authorization status as set forth in the
Certification Program, Avaya will not be required to accept any orders
for Products until Reseller regains its authorization status. Failure
to regain the authorization status within 60 days of notice of such
failure to maintain is grounds for immediate termination of this
Product Group Attachment.




	4.0	 	 RESELLER ORDERS




	 	4.1	 	Orders for Products (including Product Components) submitted by
Reseller shall refer to the identification number of this Product
Group Attachment and shall contain the information necessary for
proper delivery and invoicing, including without limitation, the date
of the order, a description of and the Avaya order code (currently
referred to as Material Code) for Products and Product Components to
be furnished and any shipping instructions, All orders submitted by
Reseller shall be




	 	 	 	 	 
	 	 	
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	 	 	 	deemed to incorporate and be subject to the terms and conditions of
the Master Reseller Agreement and this Product Group Attachment as
well as any supplemental terms and conditions agreed to in a writing
signed by the authorized representatives of both parties. All other
terms and conditions, including any pre-printed terms and conditions
contained on any order form or correspondence originated by Reseller
are rejected and shall have no effect. All orders are subject to
acceptance in writing by Avaya through delivery of an order
acknowledgment. Avaya shall have no liability to Reseller with respect
to orders that are not accepted. Avaya may require that Products and
Product Components be ordered only in factory-packed quantities or in
minimum order amounts.
	 
	 	4.2	 	Reseller warrants that all orders submitted to Avaya will conform
completely to Reseller’s own internal policies and procedures
regarding such orders. Reseller’s failure to comply with such internal
policies will not excuse Reseller’s payment obligations under this
Product Group Attachment.
	 
	 	4.3	 	Cancellation of Order by Avaya. Avaya shall have the right to
cancel an order under any of The following circumstances: Reseller
fails to perform its obligations under any of the material terms and
conditions hereunder; Reseller’s delay directly causes material delay
to Avaya’s performance; in the event that any bankruptcy, insolvency
or similar proceedings are commenced by or against Reseller under laws
now or hereafter in effect; or in the event of the appointment of any
assignee for the benefit of creditors or of a receiver of Reseller or
its properties. No such cancellation shall prejudice any of the rights
of Avaya arising prior to such cancellation or shall limit in any way
other remedies available to Avaya.
	 
	 	4.4	 	Cancellation of Order by Reseller. Reseller may, upon written
notice to Avaya, cancel any order or portion thereof in accordance
with the then applicable Avaya returns policy, a copy of which will be
provided to Reseller upon execution of this Product Group Attachment,
and which Avaya may, in its sole discretion, change from time to time.
	 
	 	4.5	 	Withholding Shipment for Credit Reasons - Avaya may withhold
shipment of Products under any purchase order (including one accepted
by Avaya) if Reseller’s account is not current, excepting those
invoiced amounts reasonably disputed in a writing by Reseller that
includes a specific reason for such reasonable dispute; provided,
however, that if such disputed amounts become more than 60 days past
due, Reseller’s account shall be deemed not current for purposes of
this Section.




	5.0	 	 RESELLER PRICES, DISCOUNTS AND REBATES - The prices applicable to
Reseller orders requesting shipment within Avaya’s then current Product
shipment intervals shall be the then current Applicable Price. Avaya’s
current national list price and Reseller discount and rebate schedules
will be provided to Reseller upon execution of this Agreement. The current
discount schedule is set forth at Appendix 4. Reseller orders requesting
delayed shipment (i.e., shipment on dates beyond Avaya’s then current
Avaya Product shipment intervals) shall be subject to price increases and
discount decreases that become effective before shipment.




	 	 	 	 	 
	 	 	
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	6.0	 	 RESELLER PRICE LIST, DISCOUNT, AND REBATE CHANGES




	 	6.1	 	Avaya may decrease the national list price or increase discounts
or rebates in the Reseller discount or rebate schedules without
advance notice to or the prior consent of Reseller. Avaya agrees to
provide written notice of any such price or discount changes and the
effective date thereof and a re-computation of pricing on Reseller
inventory as set forth in the BusinessPartner Policy and Process
Handbook (Resellers). The difference between the re-computed amounts
and previously invoiced amounts will be reflected as a credit to
Reseller’s account. Avaya will make reasonable commercial efforts to
advise Reseller 30 days in advance of any price decreases.
	 
	 	6.2	 	Avaya also may institute promotional price decreases or discount
increases at any time under such terms and conditions as Avaya in its
sole discretion shall determine are appropriate. Promotional prices
and discounts shall apply only during the period specified by Avaya
and there shall be no re-computation of amounts payable by Reseller
for orders placed before such period. Promotional prices and discounts
shall not be in excess of 120 days. Such promotional events will not
be run in consecutive periods. Avaya will make reasonable efforts to
provide Reseller with thirty (30) days advance notice of promotional
programs to Resellers.
	 
	 	6.3	 	Avaya may, without the prior consent of Reseller, increase the
national list price as published by Avaya from time to time or
decrease discount levels, including those set forth in Appendix 4,
provided Avaya furnishes Reseller written notice of any such changes
sixty (60) days in advance of the effective date. All other components
of the Reseller compensation plan are variable and dependent on
Reseller performance and commitment,
	 
	 	6.4	 	Unless expressly stated to the contrary, Applicable prices do not
include taxes or Avaya’s charges for related domestic transportation
or storage services. Avaya’s national price list prices do include its
standard packing for domestic shipment. All Product prices are F.O.B.
Avaya’s shipping point. Unless Reseller furnishes Avaya a valid tax
exemption certificate, Reseller shall pay all applicable taxes,
however designated, resulting from this Product Group Attachment or
any activities hereunder (exclusive of any tax based on or measured by
net income).




	7.0	 	 BILLING AND PAYMENT - Invoices for Products will be sent by Avaya upon
shipment of the Product or as soon thereafter as practicable. Unless Avaya
otherwise notifies Reseller in writing, Reseller shall pay the invoiced
amount in full, within thirty (30) days of the invoice date. Payments not
received within thirty (30) days of the invoice date shall incur a late
payment charge that shall be computed at the rate of one and one-half
percent (1-1/2%) of the overdue amount per month. The amount of Reseller
credit or terms of payment may be changed or credit withdrawn by Avaya at
any time upon notice to Reseller in writing, unless Reseller provides
Avaya with adequate assurance of performance, as that phrase is used in
Section 2-609 of the Uniform Commercial Code as adopted in New York,
within ten days of any such written notice.




	 	 	 	 	 
	 	 	
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	8.0	 	 PURCHASE MONEY SECURITY INTEREST




	 	8.1	 	Avaya reserves and Reseller hereby grants to Avaya a purchase
money security interest in all Products sold to Reseller by Avaya
under this Product Group Attachment, and any proceeds thereof or there
from, including, but not limited to, accounts receivable, installment
contracts, chattel paper and instruments arising there from (the
“Collateral”), until any and all payments and charges due Avaya under
this Product Group Attachment are paid in full. Avaya shall have the
right, at any time and without notice to Reseller, to file in any
state or local jurisdiction such financing statements (e.g., UCC-1
financing statements) as Avaya deems necessary to perfect its purchase
money security interest hereunder. Reseller hereby irrevocably
appoints Avaya as its attorney-in-fact for purposes of executing and
filing such financing statements and such other documents prepared by
Avaya or its designated agent for the purpose of perfecting Avaya’s
security interest hereunder, Reseller also agrees that this Product
Group Attachment may be filed by Avaya in any state or local
jurisdiction as a financing statement (or as to evidence of the
Avaya’s purchase money security interest). Reseller shall be permitted
to sell Products in the ordinary course of business free of Avaya’s
security interest, subject to the provisions of Section 8.2 below.
	 
	 	8.2	 	If Reseller defaults in the payment of any amount due to Avaya
and such default continues for a period of ten (10) days after notice
of such default has been given to Reseller, in addition to all of its
other rights and remedies, with respect to the Collateral Avaya shall
have all of the rights and remedies of a secured creditor after a
default by a debtor under the Uniform Commercial Code (“UCC”). In
addition to any other remedy available to Avaya as provided herein, by
common law and by statute, Avaya may exercise its right to reclaim all
Products sold to Reseller pursuant to UCC Section 2-702 or such other
applicable provision, as it may exist from state to state.




	9.0	 	 DELIVERY AND SHIPMENT




	 	9.1	 	SHIPPING. Avaya will ship Products, including Product Components
ordered by Reseller, only to Reseller’s authorized shipping
locations(s), unless the parties mutually agree to the shipment of the
Products to the End User’s location. Avaya will use its reasonable
commercial efforts to fill promptly Reseller’s written orders for
Products or Product Components, insofar as practical and consistent
with Avaya’s then-current lead-time schedule, access to supplies on
acceptable terms and allocation of available products and capacity
from among Avaya’s customers.
	 
	 	9.2	 	TITLE AND RISK OF LOSS. Title (except for firmware and software)
and risk of loss or damage to Products shall pass to Reseller: (i) at
the time Avaya or its supplier delivers possession of the Products to
a carrier; or (ii) if there is no carrier, at the time Reseller takes
possession of the Products at Avaya’s or its supplier’s plant or
warehouse or other facility. If, however, turnover has been delayed at
the written request of Reseller, Reseller shall nevertheless accept
title to such Products and risk of loss on the date of shipment to
Avaya’s or a third party’s storage facility. Reseller will pay
reasonable storage costs for such delayed material upon receipt of an
invoice from Avaya.




	 	 	 	 	 
	 	 	
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	 	9.3	 	DELIVERY OF COD SOFTWARE - Delivery of COD Software will be
deemed to have occurred on the date on which Avaya or its authorized
agent enables such software capacity or feature. As a condition of
Avaya’s enablement of COD Software features and capabilities, Reseller
agrees to require its customer to make available to Avaya or its
authorized agent a remote system level access to customer’s equipment
at a time mutually agreeable to both customer and Avaya. Reseller will
be solely responsible for ensuring that any hardware necessary to
support the incremental software capacity or feature is ordered, sold
and installed in Reseller’s customer’s Systems prior to Avaya’s
enablement of COD Software features and capabilities.
	 
	 	9.4	 	Shipment - In the absence of specific shipping instructions from
Reseller, Avaya will ship by the method it deems most advantageous to
both parties. Transportation charges will be collect or, if prepaid by
Avaya, will be subsequently invoiced to Reseller. Unless otherwise
specified, Products shall be shipped in Avaya standard commercial
packaging. When special packaging is requested or, in the opinion of
Avaya, required under the circumstances, the cost of the same will be
separately invoiced. If Avaya ships by a method other than that
specified by Reseller on the purchase order, then Avaya shall be
liable for the difference, if any, between the cost of freight
incurred and the cost of freight which would have been incurred had
Avaya complied with Reseller’s shipping instructions.




	10.0	 	TRAINING AND DOCUMENTATION




	 	10.1	 	Training - Training requirements for the Products are as follows:




	 	10.1.1	 	Reseller will maintain a minimum of two (2) technical persons
who meet the technical training and skill requirements set forth
in the then current Certification Program for the Products.
	 
	 	10.1.2	 	Reseller will maintain a minimum of two (2) sales persons who
have completed the training requirements set forth in the then
current Certification Program for the Products.
	 
	 	10.1.3	 	Reseller may obtain the training required under 10.1.1 and
10.1.2 through Avaya University at then applicable rates, terms
and conditions.
	 
	 	10.1.4	 	Avaya may at its sole discretion revise the training and skill
requirements set forth in the Certification Program. In addition,
the technical and sales personnel described in 10.1.1 and 10.1.2
above will be required to attend refresher-training courses
and/or renew their certification credentials prior to expiration.
The Reseller should refer to the BusinessPartner web site for
up-to-date information on the Certification Program and related
training requirements.






	 	10.2	 	Technical Documentation




	 	10.2.1	 	Softwaremanuals (e.g., System Manager, Service, et al.) and
support materials, such as user guides, implementation guides,
training documentation, applications write-ups, seminar kits and
other materials that




	 	 	 	 	 
	 	 	
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	 	 	 	are useful as training or support tools, for all Products
identified in this Attachment are available on the Avaya Support
web site. Reseller is prohibited from duplicating such support
and training material.
	 
	 	10.2.2	 	The formats used for technical documentation and updates are
within the sole discretion of Avaya.




	11.0	 	RESELLER CUSTOMER SUPPORT




	 	11.1	 	Provision of Qualified Personnel - Reseller will provide at least
two technical persons trained in accordance with Section 10.1.1 by an
Avaya authorized education provider to install and maintain Products
within four (4) hours of each location in Reseller’s Territory where a
Product is installed, but less than four hours if necessary to meet
the response time targets contracted between Reseller and customer.
	 
	 	11.2	 	Implementation Services - In accordance with Avaya published
implementation procedures, Reseller will perform user surveys, product
installation, initial configuration, customer support, software and
configuration changes, and other customer implementation services, to
ensure quality implementation. Reseller, at its option and at
Reseller’s prevailing rates, may perform implementation services for
any Product within the Territory, no matter who sold the product.
	 
	 	11.3	 	Enforcement of Software Licenses - Reseller recognizes that only
End-Users who have been properly licensed by Avaya or one of its
authorized Resellers may use Avaya software, and that such use must be
in accordance with Avaya’s software license terms and restrictions. In
addition to the provisions of Section 7 (Licensed Materials) of the
Master Reseller Agreement, Reseller agrees to assist Avaya in the
enforcement of its software rights by; (1) providing Avaya with any
information that it may have about the unauthorized use or access to
Avaya software by third parties; (2) instructing any user of Avaya
software which Reseller has reason to believe may not be licensed for
such use that it must obtain a software license from Avaya; and (3)
agreeing to provide support only to End-Users who have been properly
licensed to use such Avaya software and are using such software in
accordance with the applicable software License. Any violation of this
Section 11.3 shall entitle Avaya to terminate this Product Group
Attachment and the Master Reseller Agreement as set forth in Section
17.3 of the Master Reseller Agreement.
	 
	 	11.4	 	Support Standards - Reseller’s support of Products located in
Reseller’s Territory will conform to the following standards:





	 	11.4.1	 	Field Failures - Reseller will respond to Product failures
within the period contracted between Reseller and its customers.





	 	 	 	 	 
	 	 	
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	 	11.4.2 	 	Upgrades, Training and Other
Support - Reseller will
acknowledge customer requests for configuration changes, training
or other requests for support within a reasonable time by
scheduling such work or training at a time acceptable to the
customer and Reseller.
	 
	 	11.4.3	 	Customer Dissatisfaction - Avaya reserves the right to perform
Reseller’s field service obligations in any case where a customer
has notified Avaya of dissatisfaction with Reseller’s service and
Reseller has failed to remedy the problem following notification
by Avaya.
	 
	 	11.4.4	 	Remote Support Capabilities - All Avaya System installations
supported by Reseller must be equipped with a remote access
device approved by Avaya.
	 
	 	11.4.5	 	Spare Parts Inventory - Reseller agrees to maintain test
equipment and carry an inventory of critical spares, a list of
which is available on the Avaya support web site. Reseller must
maintain spare parts sufficient to provide Tier I support to its
End User customers.
	 
	 	11.4.6	 	Response Time -  When it is determined by Reseller that service
is required on-site due to a major malfunction, as defined by
Avaya, on-site response time with anticipated repair parts needed
(based on remote diagnosis of system trouble) will not exceed
four hours for those sites within a 100 mile radius of Reseller’s
facility or the period contracted between customer and Reseller,
whichever is less, after such determination is made, On-site
response time with anticipated spare parts needed for sites
within a 101-200 mile radius will not exceed S hours or the
period contracted between customer and Reseller, whichever is
less, and for sites more than 200 miles distant will not exceed
16 hours or the period contracted between customer and Reseller,
whichever is less.
	 
	 	11.4.7	 	Escalation - Reseller will escalate service troubles to Avaya’s
Technical Service Organization (“TSO”) in accordance with Avaya’s
then current published escalation policies. Avaya shall provide
such TSO support at its then-current rates, terms and conditions,
subject to the conditions set forth in this Section 11 and
Section 12 of the Product Group Attachment.
	 
	 	11.4.8	 	Technical Certification - Service of Products will only be
performed by Reseller employees with current Avaya technical
certifications set forth in the Certification Program.
	 
	 	11.4.9	 	Acknowledgment and Scheduling - Reseller will
acknowledge customer requests for configuration changes, training
or other requests for support by the next business day and will
schedule such work or training at a time acceptable to the
customer and Reseller.






	 	 	 	 	 
	 	 	
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	12.0.	 	TECHNICAL SUPPORT - Avaya will make available technical consulting
assistance to Reseller’s Avaya certified technicians by telephone from its
support center 24 hours per day, seven days per week. Avaya may refuse to
provide technical consulting assistance to Reseller employees who have not
met the training and skill requirements set forth in the Certification
Program. Avaya shall provide such technical consulting assistance at
Avaya’s then-current rates, terms and conditions,
	 
	13.0	 	 SPARE PARTS




	 	13.1	 	 Avaya’s National Parts Service Center provides information to
Reseller regarding the spares programs and services available to
Reseller and Avaya’s pricing for such programs and services.
	 
	 	13.2	 	Reseller agrees that for repairs to or expansions of the
Products, to use only parts supplied or approved by Avaya. Reseller’s
use of any Avaya parts provided by noncertified third-party vendors
will void the System warranty. Avaya may, in its discretion, refuse
technical support of Products or Systems containing parts provided by
noncertified third-party vendors,
	 
	 	13.3	 	 Avaya shall make available new or factory recertified parts for
discontinued products no longer sold under this Product Group
Attachment as long as supplies of such parts last and subject to the
terms of any announced Sunset Policy. Avaya shall provide reasonable
notice to Reseller in advance of the depletion of such parts.
	 
	 	13.4	 	 Reseller must use the original shipping package when returning
parts. Reseller may order -additional packaging may be available
through the National Parts Center. Avaya will not accept parts damaged
by improper handling or shipping. Replacement parts, at Avaya’s sole
discretion, may be either new or factory recertified parts.
Replacement parts will be shipped to Reseller, freight prepaid.
Replaced parts are to be returned to Avaya using Avaya’s then current
Avaya returns policy.




	14.0	 	 WARRANTIES - Except as set forth below, there are no different or
additional warranty terms, restrictions or exclusions than those set forth
in Sections 11 and 12 of the Master Reseller Agreement, which are
incorporated herein by reference.




	 	14.1	 	 Product Warranty - Avaya warrants that the Products sold
hereunder will be free from material defects in manufacturing and
materials and will meet all of Avaya’s specifications for such
Products in effect at the time of shipment or enablement. The
applicable warranty periods shall be as follows:




	 	14.1.1	 	 New Systems and migrations to New Systems are warranted for a
period of 12 months following shipment from Avaya;
	 
	 	14.1.2	 	 All other Products, excluding COD Software, software upgrades,
hardware upgrades, expansions, and replacement parts are
warranted for 90 days following shipment from Avaya or the
remainder of the applicable System warranty if the Product is
installed in a System, whichever is longer; and






	 	 	 	 	 
	 	 	
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AVAYA INC.

CUSTOMER NAME
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Agreement No. AVNERA1-T030809




	 	14.1.3	 	COD Software is warranted for 90 days following the date of
enablement.
	 
	 	14.1.4	 	 Avaya’s sole obligation and Reseller’s sole remedy under this
warranty shall be the furnishing to Reseller of replacement parts
for any parts of any System that are defective and repair or
replacement at Avaya’s option of any material that is defective
under the terms of this warranty without charge by Avaya.
Reseller shall ship defective material to Avaya at the
destination Avaya designates with transportation and packaging
prepaid by Reseller. The above warranty is subject to Reseller’s
full compliance and fulfillment of its obligations under Section
11 .2 above (Implementation Services) and Section 15.4 below
(Required Changes).
	 
	 	14.1.5	 	 Reseller shall warrant to its customers that any System sold to
them will perform in accordance with Avaya’s then currently
published specifications for at least six months following
delivery of such System to a customer. Reseller will provide
repair or replacement (at Reseller’s option) of defective parts
in connection with such warranty. Any labor required to effect
such repair or replacement shall be provided by Reseller at
Reseller’s expense and will not be reimbursed by Avaya, except as
provided in Section 15.4.
	 
	 	14.1.6	 	 Some Products purchased by Reseller or used to provide support
may contain selected used or refurbished parts that are warranted
as new,




	15.0	 	 SOFTWARE UPDATES, UPGRADES AND SOFTWARE AND HARDWARE MODIFICATIONS




	 	15.1	 	 Software Updates - A Software Update is defined as a change
within a major release that typically provides a maintenance
correction only, but may introduce new optional features. A Software
Update is designated with a non-zero decimal as its version number,
such as “3.1.” Avaya will make Software Updates available to Product
Authorized Resellers free of charge for five years from the date of
sale of Product in the form of Hardware/Software Modifications.
	 
	 	15.2	 	 Software Upgrades - A Software Upgrade is defined as change to
the software that moves a System to a new major release designated
with a whole number as its version number, such as “3.0.” A Software
Upgrade introduces new software features, which may or may not require
additional hardware, to enhance the functionality of the System. Upon
release of any Software Upgrade to the Product, Avaya will make such
Software Upgrade available to Reseller at its then-current published
prices for that Software Upgrade, less applicable discounts.
	 
	 	15.3	 	 Hardware and Software Modifications - A Hardware/Software
Modification is defined as a change to hardware and/or software that
improves the safety or reliability of the System. A Hardware/Software
Modification is a mandatory change.
	 
	 	15.4	 	 Required Changes - Reseller shall perform a Hardware/Software
Modification or install Software Updates within a reasonable time

after having received written notification from Avaya of such
Hardware/Software Modification or Software Update. Reseller will send
Avaya written confirmation upon completion, utilizing Avaya
pre-addressed forms. If Avaya elects to have its own personnel perform
a





	 	 	 	 	 
	 	 	
RESELLER PRODUCT GROUP ATTACHMENT OCTEL PRODUCTS

AVAYA INC.

CUSTOMER NAME
	 	PAGE 10 OF 15

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Agreement No. AVNERA1-T030809



	 	 	 	Hardware/Software Modification or install a Software Update, Reseller
will cooperate fully. At Avaya’s sole discretion, it may elect to pay
Reseller an amount to be determined by Avaya for performing a
Hardware/Software Modification, such as a retrofit.
	 
	 	15.5	 	 System Operation - Reseller will use its reasonable efforts to
ensure that its installed base of Systems are operating:




	 	15.5.1	 	 Using the last Software Upgrade or the immediately preceding
major release; and
	 
	 	15.5.2	 	 With all required hardware modifications installed.




	 	15.6	 	 For a transition period of six months after the introduction of a
Software Upgrade, Avaya will continue to support the major release
that preceded the immediately preceding major release, if any.
Following such transition period, if any, Avaya will support only the
current Software Upgrade and the immediately preceding major release;
provided, however, that Avaya will not provide support after the
support termination date for any Software Upgrade or initial major
release for which Avaya has announced the end of support pursuant to
an Avaya Sunset Policy.




	16.0	 	 AVAYA WEB CITE - Avaya will provide Reseller with Product information,
including marketing, technical, and support information and information
regarding Avaya’s current Sunset Policies (as defined herein), through
Avaya’s Web Site. Reseller shall be responsible for accessing the
information on the Avaya Web Site, including pricing.
	 
	17.0	 	 SOFTWARE LICENSE AND RESTRICTIONS - The Products delivered to Reseller or
its customers pursuant to this Product Group Attachment may embody and
include certain software programs in object code (machine-readable but not
human-readable form). The software may be contained on disk drives,
erasable, programmable, read-only memories (EPROM’s), programmable array
logic devices (PALs), disk cartridges, or in other electronic or
mechanical forms including in the form of unlicensed incremental software
capacity or feature in licensed software which will become subject to this
license only when enabled by Avaya. Additionally, use of the software can
result in the production of human-readable features such as documentation,
report formats, menus, and audible prompts. Such software and features
constitute either the copyrighted property of Avaya and/or its suppliers
or the proprietary trade secret information of Avaya and/or its suppliers,
or both. Unless Reseller is granted greater rights by written amendment to
this Product Group Attachment executed by Avaya, Reseller is hereby
granted a license to use only the number of copies of the software that
are provided by Avaya, and to use such copies only on the hardware on
which it is originally mounted by Avaya. Without Avaya’s prior written
consent, Reseller may not copy the software or the human-readable features
referred to above for any purpose, nor may Reseller remove the software or
attempt to execute the software on any hardware other than the hardware on
which the software was originally mounted. Reseller may sublicense the
software licensed hereunder to its customer who purchases the hardware
subject to applicable fees, if any, but only upon the conditions that: (a)
such customer executes an understanding in the form of Appendix 3 attached
hereto, to comply with the conditions stated herein regarding use of the
software and features, and (b) Avaya is given a copy of the executed form
with the purchase order submitted by Reseller to Avaya. Reseller shall
not, whether through use of disassemblers





	 	 	 	 	 
	 	 	
RESELLER PRODUCT GROUP ATTACHMENT OCTEL PRODUCTS

AVAYA INC.

CUSTOMER NAME
	 	PAGE 11 OF 15

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Agreement No. AVNERA1-T030809




	 	 	or any other means whatsoever (including but not limited to manual,
mechanical or electrical means), reverse engineer, decompile, disassemble,
or derive source code from the software, or attempt to or permit any third
party to do any of the foregoing. Reseller expressly agrees that it shall
not enable, or permit or assist any third party to enable, features or
capabilities inherent in any licensed software that may be remotely enabled.
Any attempt to do any of these things shall be a material breach of this
Product Group Attachment which shall immediately entitle Avaya and/or its
suppliers to exercise any remedy set forth herein, as well as any remedy
that may exist at law or in equity including causing the software to be
destroyed or disabled. This Software License shall survive this Product
Group Attachment and shall terminate with respect to particular software at
the end of the operational life of the hardware on which such software is
mounted.
	 
	 	 	Reseller agrees that Avaya or its authorized agent may, at its discretion,
electronically inspect and audit the configuration of Avaya Systems for
compliance with the terms of this software license at the following times:
(i) at the time of enablement of any separately licensed software feature or
capability, such as incremental capacity for Avaya’s Products, and (ii) in
addition to (i) above, once each calendar year upon three (3) business days
notice to Reseller from Avaya. Reseller agrees to cooperate with Avaya or
its authorized agent in conducting such audits including providing remote
system level access to Reseller’s and/or Reseller’s customer’s hardware and
software available to Avaya for such purpose. On the condition that
Reseller’s customer has given Avaya permission to disclose the results of
any such audit, or excused Avaya from any confidentiality obligations, Avaya
will provide prompt notification to Reseller of the results of any such
audit.
	 
	 	 	Any breach of this Software License will entitle Avaya and/or its suppliers
to exercise immediately any remedy set forth in this Product Group
Attachment as amended, as well as any remedy that may exist at law or
equity.




	 	 	 
	XETA Technologies, Inc.	 	
AVAYA INC.
	 	 	 
	     /s/ Jack R Ingram	 	     
/s/ Roxanne L. Douma
	
	 	


	Signature	 	
Signature
	 	 	 
	     Jack R. Ingram	 	     
Roxanne L. Douma
	
	 	


	Print Name	 	
Print Name
	 	 	 
	     President	 	     
Senior Ops Mgr
	
	 	


	Title	 	
Title
	 	 	 
	     9-6-02	 	     
9-25-02
	
	 	


	Date	 	
Date






	 	 	 	 	 
	 	 	
RESELLER PRODUCT GROUP ATTACHMENT OCTEL PRODUCTS

AVAYA INC.

CUSTOMER NAME
	 	PAGE 12 OF 15

CONFIDENTIAL

REV DATE. 4/30/02




 







 


Reseller Contract #


RESELLER PRODUCT GROUP ATTACHMENT

TO AVAYA INC. RESELLER MASTER TERMS AND CONDITIONS

FOR SERVICES



This Product Group Attachment for Services (this “Product Group Attachment”) is
effective SEPT 22, 2003 (the “Effective Date”) between Avaya Inc.
(“Avaya”) and XETA TECHNOLOGIES (“Reseller”). This Product Group Attachment is
being executed pursuant to the Reseller Master Terms and Conditions (the
“Reseller Master Terms and Conditions”), Agreement No. AVNERA1-T030905, entered
into between Avaya and Reseller, and shall be a part of the “Agreement” as
defined in the Reseller Master Terms and Conditions.


In addition to the terms of the Reseller Master Terms and Conditions, the
parties agree as set forth below. This Product Group Attachment covers
Services and Service deliverables for use only in the United States.


1.     AUTHORIZATION


1.1  Authorization as Reseller. Subject to the terms and conditions herein,
Avaya authorizes Reseller as a non-exclusive reseller to purchase Services
directly from Avaya in the “One-Tier Model” (and, if the “Two-Tier Model”
column is checked with an “X” in Appendix 1, from a Distributor) and resell
such Services to End Users in the Territory. “Services” refers to those Avaya
services to be performed by Avaya (excluding any services to be performed by
Reseller) which Reseller is authorized to resell under this Product Group
Attachment, as indicated in Appendix 1 (Services), and as further defined in
this Product Group Attachment and any Avaya service description documents. The
term ‘Distributor” means any Avaya distributor authorized to resell Services to
resellers in the Territory. if the “Commission Model” column is checked with an
“X” in Appendix I, Reseller is authorized to offer Avaya Services in accordance
with the provisions of the then in effect Avaya services commission policy.


1.2  Appendices and Order of Precedence. Incorporated into this Product Group
Attachment are the following Appendices: Appendix 1 (Services), Appendix 2
(Maintenance Services Terms), Appendix 2A (End User Maintenance Services
Terms), Appendix 3 (Milestone Services Terms), Appendix 4 (Time & Materials
Services Terms), Appendix 5 (Management Services Terms), Appendix 6
(Installation Services Terms), and Appendix 6A (End User Responsibilities For
Installation Services). Appendix 1 shall indicate which of the other Appendices
shall apply to the provision of Services under this Product Group Attachment.
Reseller shall also indicate applicable Appendices by initialing each such
Appendix. The terms set forth in Appendices 2 through 6A shall only apply if
and to the extent that Reseller purchases Services directly from Avaya for
resale to an End User in the One-Tier Model. In the event of any conflict or
inconsistency between the terms in this Product Group Attachment and the terms
in the Reseller Master Terms and Conditions, this Product Group Attachment

shall prevail with regard to any Services and Service deliverables.


2.     ORDERS


2.1  Orders. Reseller may order Services for resale under this Product Group
Attachment by placing written, signed orders in substantially the form as may
be designated by Avaya, or by placing orders via order-entry tools on Avaya
websites, or by any other mutually agreeable method (each, an “Order”).



	 	 	 
	Reseller Product
Group Attachment for Services - V 0803.1	 	
Page 1



 






 



2.2  Acceptance of Orders. All Orders are subject to acceptance by Avaya. Avaya
may accept an order by commencing to perform Services. Orders relating to the
One-Tier Model will be governed by the terms of this Product Group Attachment
and the Reseller Master Terms and Conditions, even when they lack an express
reference to either document. No pre-printed terms (or any other terms beyond
the scope of the Order form, or any purchase orders other than the Order form)
set forth in any Order submitted by Reseller shall be binding on Avaya. When
Avaya accepts an Order, Avaya may notify Reseller of Avaya’s estimated service
commencement dates applicable to the Order.


2.3  Cancellations. Reseller may cancel accepted Orders subject to the
restrictions and payment of the cancellation and termination charges indicated
in the applicable Appendix.


3.     PRICES AND PAYMENT TERMS


3.1  Two-Tier and Commission Models. The terms set forth in this Section 3 are
not applicable to either the Two-Tier Model or the Commission Model.


3.2  Prices, Invoicing and Payment. The prices to be charged by Avaya to
Reseller for Services will be equal to the Avaya list prices for Services in
effect on the date of Avaya’s acceptance of an Order, minus any applicable
discounts, rebates, or credits pursuant to the Avaya discount schedule or price
policy for Services in effect on the date of Avaya’s acceptance of an Order.
Except as agreed otherwise in writing, Avaya will invoice Reseller all amounts
due as provided in the applicable Appendix. Payment of all amounts invoiced by
Avaya to Reseller is due within thirty (30) days from the date of Avaya’s
invoice. Notwithstanding anything to the contrary in this Product Group
Attachment, any Channel Policy (as defined below), or any Avaya discount
schedule or price policy, Reseller will have sole discretion to set prices to
be charged by Reseller to End Users for Services.


3.3  Late Charges. Any overdue and unpaid portion of an invoice will bear
interest, compounded at one and one-half percent (1.5%) per month or the
maximum rate allowed by applicable law, whichever is less. Avaya may suspend
licenses and performance of Orders for which payment is overdue until the
overdue amounts are paid in full. Reseller will reimburse Avaya for reasonable
attorneys’ fees and any other costs associated with collecting delinquent
payments.


3.4  Taxes. All prices, fees, and other amounts quoted and payable for Services
exclude taxes. Reseller will pay or reimburse Avaya for all applicable sales,
services and other taxes (excluding taxes on Avaya’s net income) levied upon
the sale and/or license of Service deliverables and performance of Services,
unless Reseller is exempt and provides Avaya with a valid tax exemption
certificate prior to Avaya’s invoice date.


4.     RESELLER RESPONSIBILITIES; WARRANTY AND SOFTWARE LICENSE.


4.1  End User Agreement Obligations. Reseller shall comply with the following
obligations (the “End User Agreement Obligations”) with regard to each End User
to whom Reseller resells Services:


     (i)  Reseller shall obtain the End User’s written agreement to the
following document(s) or provisions, either at the time when End User orders
the Services from Reseller or prior to the time when End User can cancel the
order without any cancellation charges and with a full refund:



	 	•	 	Appendix 2A (End User Maintenance Services Terms), with regard to
any “Maintenance Services” (as defined in Appendix 2A) resold to an
End User. Reseller shall add a copy of the





	 	 	 
	Reseller Product
Group Attachment for Services — V 0803.1	 	
Page 2









 







	 	 	 	“Service Agreement Supplement” (as defined in Appendix 2A), as well as
any order-specific information (such as service options and supported
products), to each Appendix 2A to be agreed to by End Users, and shall
ensure that such order-specific information is identical to, and does
not exceed, the scope of the Order placed by Reseller with Avaya for
the applicable End User order. Avaya can modify the template Service
Agreement Supplement at any time without Reseller’s consent, but shall
notify Reseller of any modifications at least sixty (60) days prior to
the effective date of the modification;
	 
	 	•	 	Section 4 (Intellectual Property Rights; Software License),
Section 7 (No Solicitation), and Section 8 (Reseller and End User
Responsibilities) of Appendix 3 (Milestone Services Terms), with
regard to any “Milestone Services” (as defined in Appendix 3) resold
to an End User;
	 
	 	•	 	Section 3 (Intellectual Property Rights; Software License),
Section 6 (No Solicitation), and Section 7 (Reseller and End User
Responsibilities) of Appendix 4 (Time and Materials Services Terms),
with regard to any “T&M Services” (as defined in Appendix 4) resold to
an End User;
	 
	 	•	 	Section 4 (Reseller and End User Responsibilities), Section 8
(Intellectual Property Rights; Software License), Section 11
(Non-Solicitation) of Appendix 5 (Management Services Terms), with
regard to any “Management Services” (as defined in Appendix 5) resold
to an End User; and
	 
	 	•	 	Appendix 6A (End User Responsibilities for Installation Services)
with regard to any “Installation Services” (as defined in Appendix 6)
resold to an End User.



     (ii)  Reseller shall not agree to any contractual limitations on the End
User’s liability for violations of Avaya’s intellectual property rights,
including through breaches of a software license or reverse engineering.


Reseller shall indemnify Avaya for all claims, actions, costs, expenses, and
damages (including the purchase price of any. service options or other coverage
resold to an End User in excess of the service options or coverage purchased by
Reseller from Avaya) suffered by Avaya as a result of Reseller’s failure to
comply with this Section 4.1, or as a result of End User’s failure to comply
with Appendix 2A or any software license restrictions and other terms required
to be passed by Reseller to End Users.


4.2  Avaya Warranty and Software License. Avaya will extend the warranty and
software license as set forth in Appendix 2A (End User Maintenance Services
Terms), Appendix 3 (Milestone Services Terms) and Appendix 4 (Time & Materials
Services Terms), as applicable, to End Users purchasing Services from Reseller,
subject to Reseller complying with the End User Agreement Obligations for the
applicable End User and Services.


4.3  Services Warranty Support. Unless otherwise designated by Avaya for a
specific Service, Reseller will be responsible for providing support to End
Users with regard to any Services warranty or license issues or questions,
including telephone support, troubleshooting, accepting the return of
nonconforming Service deliverables and obtaining replacement deliverables, and
filing Services warranty claims with Avaya. If Avaya elects to provide a refund
for a nonconforming Service or Service deliverable, Reseller shall be required
to refund to End User the full purchase price, license fee and/or service fees
paid by End User to Reseller for the nonconforming Service or Service
deliverable, regardless of whether Reseller was in any manner at fault or
negligent.


4.4  Maya Leads or Referrals; End User Specification of Avaya. If Avaya provides
a lead or referral to Reseller or if an End User specifies Avaya, Reseller
shall market, offer, and sell only Avaya Services (and not the services of
Reseller or any other entity) on that opportunity, except to the extent no




	 	 	 
	Reseller Product Group Attachment for Services — V 0803.1	 	
Page 3









 


Avaya Service would meet the End User’s requirements. Failure to provide Avaya
Services without prior written consent from Avaya for those leads or referrals
provided by Avaya may result in the cessation of any future leads or referrals.


4.5  Compliance with Channel Policies; Separate from ECG/SMBS BusinessPartner
Programs. Reseller agrees to abide by all applicable training, technical
support capabilities, sales forecasting, and other service authorization
requirements and policies (the “Channel Policies”) that may be required by
Avaya of its resellers of Services. The Channel Policies will be available
online on the Avaya website and will include the then current available
benefits including commissions and discounts according to the requirement
levels reached by each respective Reseller. Unless expressly provided otherwise
in the Channel Policies, Avaya reserves the right to cancel or modify any
Channel Policy at any time without notice to or consent from Reseller.
Purchases and resales of Services will not count or be credited in any manner
toward earning benefits or certification under the Avaya BusinessPartner
programs for Enterprise Communications Group (ECG) and Small & Medium Business
Solutions (SMBS) products, except as may be expressly stated otherwise in
either of those programs.


4.6  Remote Access in One-Tier Model.


     (a)  Where provision of Services is dependant on remote access to the
Products being serviced, Avaya will provide and maintain any necessary
connection equipment and Reseller or End User will provide, maintain and pay
for, the dedicated telephone connection. Reseller also agrees to allow Avaya to
connect other items of equipment to the Products being serviced, such as a
tracker, for diagnostic purposes.


     (b)  Avaya may establish password protection for remote access with
passwords being changed by Avaya at random times to maintain security, and also
immediately after an engineer or other Avaya employee who knows such passwords
leaves the employ of Avaya. On written request from Reseller, Reseller may take
full responsibility for the allocation, management and control of access
passwords and changes thereto, provided that Avaya is promptly advised in
writing of the procedures to be used and passwords so issued so as to ensure
Avaya has uninterrupted, continuous remote access to the Products being
serviced.


     (c)  Reseller will not disconnect any facilities or equipment for remote
access, or otherwise impede or prevent such remote access without the prior
written consent of Avaya. Upon mutual written agreement of the parties,
Reseller may disable the remote access or items of diagnostic equipment, or the
tracker may be disabled until remote access is required by Avaya for Services
activities. In such case, Reseller will ensure that remote access is enabled by
the times agreed in writing by the parties, and that remote access remains
enabled for the duration of the Services activity. Any Avaya response times
specified by the parties in the applicable Order will be extended by the period
Avaya is, or was, unable to remotely access the Product(s) for any reason
including, but not limited to, delays caused by the unavailability of passwords
issued by Reseller.


4.7  Expiration of Services. Reseller will notify End User, upon notification
from Avaya, of the expiration of Services sixty (60) days prior to the
expiration date. If Reseller does not renew its agreement with the End User by
the expiration date, Avaya may contact and negotiate directly to sell Services
to such End User, either directly or through another reseller.


4.8  Termination. In the event Reseller violates the restrictions set forth in
Section 3.2 of the Reseller Product Group Attachment To Avaya Inc. Reseller
Master Terms and Conditions For Enterprise




	 	 	 
	Reseller Product Group Attachment for Services — V 0803.1	 	
Page 4









 


Communication and Internetworking Solutions Product, Avaya may terminate this
Product Group Attachment upon twenty-four (24) hours notice, and may
immediately deny Reseller access to certain Avaya technical Product support
resources.


IN WITNESS WHEREOF, the parties have executed this Product Group Attachment
effective the date first written above.



	 	 	 	 	 	 	 
	AVAYA INC.	 	 	XETA TECHNOLOGIES
	 	 	 	 	 	 	 
	By:	 	
/s/ Therese A. Caraffa
	 	By:
	 	/s/ Larry N. Patterson
	 	 	


	 	 	 	

	 	 	 	 	 	 	 
	Name:	 	
Therese A. Caraffa
	 	Name:
	 	Larry Patterson
	 	 	 	 	 	 	 
	Title:	 	
Contract Mgr
	 	Title:
	 	Sr. V.P.
	 	 	 	 	 	 	 
	Date:	 	
09/22/03
	 	Date:
	 	Sept 18, 2003





	 	 	 
	Reseller Product Group Attachment for Services — V 0803.1	 	
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Reseller Contract
#AVNERA1-T030905


ADDENDUM TO AVAYA INC. RESELLER MASTER TERMS AND CONDITIONS



FOR

GSA SCHEDULE CONTRACT SALES TO THE FEDERAL GOVERNMENT



This Addendum to the Reseller Master Terms and Conditions (“the Agreement”)
between Avaya Inc. (“Avaya”) and XETA Technologies, Inc. (“Reseller”) shall be
effective as of 08/06/03 (“Effective Date”).


In addition to the rights granted by Avaya to Reseller under the Agreement,
Reseller now wishes to sell certain Avaya commercial Products and/or Services
that are specifically authorized under the Agreement to certain departments,
agencies or instrumentalities of the Federal Government as an authorized agent
under the terms and conditions of Avaya’s current GSA Federal Supply Schedule.
Avaya grants to Reseller, and Reseller accepts, the non-exclusive right to sell
such Products and/or Services as an authorized agent to the extent outlined
below.


All terms and conditions of the Agreement not specifically addressed in this
Addendum remain in full force and effect with respect to Reseller’s marketing
and sales to any End User. The terms and conditions contained in this Addendum
supersede all prior addenda that specifically address Avaya’s GSA Schedule.



	1.	 	DEFINITIONS



Unless otherwise specified herein, terms which are defined in the Reseller
Master Agreement Terms and Conditions shall have the meanings specified
therein. The following terms shall have the meanings specified below:


               1.5 “End-User” means departments, agencies and instrumentalities of the
United States Federal Government to which Reseller may sell Avaya Products
and/or Services.



               1.16 “Territory” means the specific geographic area or market segment in
which Reseller has agreed to market Avaya Products and/or Services in
accordance with the Agreement, except that, the territory shall not extend
beyond that area permitted for sales as defined in the GSA Schedule to include
the 48 contiguous states and the District of Columbia.



               1.19 “FAR” means Federal Acquisition Regulation.



               1.20 “GSA Schedule” or “Schedule” means Avaya’s current General Services
Administration (GSA) Federal Supply Schedule, Contract Number GS-35F-4321D.



               1.21 “GSAR” means General Services Administration (GSA) Regulation.



               1.22 “Order” means a delivery order or purchase order for specific
products and/or services issued by the End User under the terms and conditions
of the Schedule.



               1.23 “Products and/or Services” means Avaya products, Avaya-delivered
services (installation, maintenance, professional services, training), and/or
Reseller-rendered installation that are specifically authorized to be sold by
Reseller under the Agreement and available under the GSA Schedule. Sales for
all of the above Products and/or Services shall be reported in accordance with
Section 4 herein.



SECTION 2. Add new Paragraph 2.2 as follows:



	2.	 	TERM OF AGREEMENT



               2.2 This Addendum shall become effective when both parties execute the
Agreement and this Addendum. It shall remain effective for a period of one
year and shall automatically renew year to



1

Avaya Proprietary



One Avaya GSA Addendum Rev 01/03



 






 


Reseller Contract #


year on the Effective Date for additional one-year terms until expiration
of the GSA Schedule unless Avaya gives written notice of its intent not to
renew thirty (30) days in advance of the anniversary of the Effective Date or
unless the Addendum is otherwise terminated as hereinafter provided.


SECTION 3. Add new Paragraphs 3.5 and 3.6 as follows:



	3.	 	APPOINTMENT



               3.5 Avaya is a GSA Schedule holder for certain Products and/or Services.
Reseller wishes to purchase Avaya Products and/or Services from a source other
than Avaya, and resell them to certain End Users in the Territory, as an
authorized Avaya agent under the terms and conditions of Avaya’s current GSA
Schedule.



               3.6 Avaya hereby grants to Reseller and Reseller accepts, the
non-exclusive right to resell the Products and/or Services that are authorized
under the Agreement and listed in the GSA Schedule to End Users solely as an
authorized Avaya agent and solely within the Territory. Reseller agrees that
the provisions of this Agreement, including this Addendum, will govern
Reseller’s role as an Avaya agent in the sale of Products and/or Services to
End Users.



SECTION 4. Add new Paragraphs 4.10.3 and 4.15 through 4.15.2 as follows:



	4.	 	RESPONSIBILITIES OF RESELLER



               4.10.3 Reseller agrees that it will maintain a system for reporting sales
under this Addendum to Avaya on a monthly basis. The report for Avaya shall be
submitted to Avaya Inc., Government Solutions, Finance Department, 1450 G
Street, N.W., 4th Floor, Washington, D.C. 20005, C/O: Carolyn Calvert no later
than the seventh (7th) calendar day of each month. The report to Avaya shall
include



               (a) The date of sale (invoice issued);



               (b) The agency to which the sale was made;



               (c) The address of the installation site;



               (d) The product/model (Avaya Material Code)/service sold;



               (e) The quantity of each product/model/service sold;



               (f) The price at which it was sold, net of any discounts;



               (g) Copies of all quotes, proposals issued to the End User in the
reporting period;



               (h) Copies of all delivery orders and modifications received and invoices
and/or credits issued in the reporting period; and



               (i) All other information as Avaya may reasonably request.



               4.15 Reseller agrees that it will, in any quote, offer, and/or proposal
which it submits to the End User and in all discussions with the End User,
identify Avaya as the GSA Schedule holder and Reseller as the sales agent



               4.15.1 Reseller shall only bid or propose to perform contracts on a “fixed
price basis.” Reseller shall not agree to perform on any procurement other
than fixed price contracts as defined in FAR 16.201 and 16.202-1.



               4.15.2 Reseller may submit bids or proposals on solicitations which
satisfy End User’s set-aside obligations, as set forth in the Small Business
Act, regulations promulgated thereunder, and FAR 52.219-5, 52.219-6, 52.219-7,
52.219-8 and 52.219-9.



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SECTION 5. Add new Paragraphs 5.2 through 5.6 as follows:



	5.	 	BILLING AND PAYMENT



               5.2 Authorized orders for Products and/or Services under this Addendum
shall be issued “To Avaya care of Reseller”, referencing Avaya’s GSA Schedule
contract number, Reseller’s mailing address, Reseller’s remittance address, and
shall only contain the information consistent with the terms and conditions of
Avaya’s GSA Schedule, including GSA part numbers (Avaya Material Codes).



               5.3 When accepting and filling Order(s), the Government buying entities
should place the Order(s) with Reseller in Avaya’s name as noted in Item 5.2
above. Reseller shall bill the Government and accept payment in Avaya’s name,
in care of the Reseller.



               5.4 All Orders received from End Users shall be governed by and may only
include terms and conditions that are consistent with the terms and conditions
of Avaya’s GSA Schedule, unless expressly authorized in writing by an Avaya
Government Solutions Contract Manager. Reseller will not accept any GSA
Schedule order that contains terms and conditions that are not consistent with
Avaya’s GSA Schedule or that have not been authorized. Any order negotiated by
Reseller with an End User containing unauthorized terms and conditions shall be
considered to have been made by Reseller outside of its authority as granted by
Avaya pursuant to this Addendum.



               5.5 Reseller shall advise Avaya’s Authorized Representative, as identified
in this Addendum, immediately upon receipt of any notice from an End User of a
termination (actual or contemplated, in whole or in part, for convenience or
default) of an Order, directly related to Avaya’s Products and/or Services.
Reseller further agrees to submit a copy of the written termination order to
Avaya’s Authorized Representative within one business day of receipt of an End
User’s written termination order.



               5.6 In the event that an End User requires Reseller, in writing, to stop
all, or any part of the work called for by an Order, directly related to
Avaya’s Products and/or Services, Reseller agrees to submit a written stop work
order to Avaya’s Authorized Representative within one business day of receipt
of an End User’s written stop work order.



SECTION 6. Add new Paragraph 6.3 as follows:



	6.	 	PRODUCT CHANGES AND DISCONTINUANCE



               6.3 Avaya may without consent of Reseller, but with modification of the
GSA Schedule, delete or modify any Products and/or Services on the Schedule.
Such deletion or modification will be reflected on the Avaya GSA website,
http://www.avaya.com/gov/gsa. In addition, Avaya may consider written
modification requests from Reseller, and if supported, Avaya will process such
requests within a timely manner.



SECTION 17. Add new Paragraph 17.7 as follows:



	17.	 	TERMINATION OF AGREEMENT



               17.7 Either party may terminate the Addendum at any time without cause by
giving the other party thirty (30) days written notice of termination.



SECTIONS 21 – 26. Add new Sections 21 through 26 as follows:



	21.	 	APPLICATION OF THE GSA SCHEDULE CONTRACT



               21.1 RESELLER ACKNOWLEDGES AND AGREES THAT ITS MARKETING AND SALES TO END
USERS ARE SUBJECT TO, AND RESELLER SHALL COMPLY WITH, ALL OF THE TERMS AND
CONDITIONS SET FORTH IN THE GSA SCHEDULE AS THOSE TERMS APPLY TO THE GSA
SCHEDULE CONTRACTOR. RESELLER AGREES TO FAMILIARIZE ITSELF AND KEEP CURRENT




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WITH ALL THE TERMS AND CONDITIONS (INCLUDING BUT NOT LIMITED TO PRICES) OF
AVAYA’S GSA SCHEDULE AND TO PERFORM ITS DUTIES IN FULL ACCORDANCE WITH ALL
TERMS AND CONDITIONS OF AVAYA’S GSA SCHEDULE (INCLUDING, BUT NOT LIMITED TO
TERMS RELATED TO PRICE, PRODUCT DELIVERY, SERVICE/WARRANTY DELIVERY,
INVOICING/PAYMENT TERMS, AND RECORD RETENTION).


               21.2 Reseller agrees that any deviation from Avaya’s GSA Schedule terms,
including departure from pricing, except as expressly authorized pursuant to
this Addendum or in writing by an Avaya Government Solutions Sales Operations
Manager, will be solely at Reseller’s risk.



               21.3 Reseller understands and agrees that, as a function of its
appointment under this Addendum, Reseller is subject to all laws, regulations
and obligations associated with being a Federal Government contractor.
Reseller agrees to fully comply with all laws and regulations applicable to
contracting with the Federal Government, including, but not limited to, the
FAR, GSAR, and other provisions included in the Schedule.



               21.4 Reseller agrees that an Avaya Government Solutions Sales Operations
Manager will have the right to review and provide approval to documentation,
including but not limited to quotes, offers, proposals prior to submission to
the End Users for the purpose of assuring compliance with the terms and
conditions of Avaya’s GSA Schedule and to offer Reseller its advice and aid in
preparing the quote, offer or proposal.



               21.5 Reseller agrees that it may market and submit quotes, offers, and
proposals for Products and/or Services only at the prices, terms and conditions
that are set forth in Avaya’s GSA Schedule, except as expressly authorized
within this Addendum. Reseller is not authorized to offer greater discounts
than those currently offered under Avaya’s GSA Schedule without prior written
approval by the Avaya Federal Channel Sales Director (or designee).



               21.6 ANY ORDER NEGOTIATED BY RESELLER WITH AN END USER CONTAINING
UNAUTHORIZED DISCOUNTS SHALL BE CONSIDERED TO HAVE BEEN MADE BY RESELLER
OUTSIDE OF ITS AUTHORITY AS GRANTED BY AVAYA PURSUANT TO THIS ADDENDUM.



               21.7 RESELLER SHALL OBTAIN WRITTEN APPROVAL FROM THE AVAYA FEDERAL CHANNEL
SALES DIRECTOR (OR DESIGNEE) PRIOR TO SUBMITTING A PROPOSAL AND/OR PRICING TO
THE GOVERNMENT FOR THE FOLLOWING SALES:



               (a) proposals containing terms and conditions that vary from those
contained in the Schedule;



               (b) proposals discounted greater than the Schedule’s listed prices;
or



               (c) Territories, Products and/or Services outside the authority of
the Agreement and/or this Addendum.



               21.8 The Government Contracting Officer or other buying entity making a
purchase from the Schedule must be located within the Territory.



               21.9 Reseller shall be subject to audit by the Government or by Avaya,
with respect to sales under this Addendum.




	22.	 	AVAYA RESPONSIBILITIES



               22.1 Avaya will provide its GSA Schedule prices to Reseller regularly, via
Avaya’s GSA Schedule website, http://www.avaya.com/gov/gsa.



               22.2 Avaya shall be responsible for paying the GSA Federal Supply Services
one percent (1%) Industrial Funding Fee to the General Services Administration
on orders Reseller receives for Avaya Products and/or Services under this
Addendum.





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               22.3 Avaya will ensure the availability of management personnel to
participate in any necessary discussions and negotiations with the End User
directed toward obtaining a Government delivery order.




	23.	 	MARKETING AND SUPPORT OBLIGATIONS



               23.1 Reseller is prohibited from entering into any partnering, teaming,
BPAs, or other such arrangements, other than this Addendum, relating to Avaya’s
GSA Schedule unless requested by Reseller and authorized in writing by an Avaya
Government Solutions Sales Operations Manager, for any such partnering
arrangements. Such requests will be considered and, if supported, acted upon
in a timely manner by Avaya, and support will not be unreasonably withheld.



               23.2 Reseller agrees that in the event it becomes aware of an actual or
contemplated dispute between the End User and either Avaya or Reseller,
regarding the marketing, sale, or performance of Products and/or Services under
this Addendum, Reseller shall notify Avaya orally and in writing within one
business day of Reseller acquiring such knowledge. Reseller further agrees
that it has no direct contractual privity with the End Users and/or GSA under
this Addendum, and that it shall discuss with the Authorized Avaya
Representative any claim for money or other damages before filing such claim
against the Government. In the event Avaya chooses not to file the claim on
Reseller’s behalf, Avaya shall allow Reseller to file such claim in Avaya’s
name after such discussions.




	24.	 	NOTICES AND AUTHORIZED REPRESENTATIVES



               24.1 All notices, certificates, acknowledgments, and modifications under
this Addendum shall be in writing and shall be given in person, or by U.S.
mail, or by a recognized overnight delivery service, addressed to the addresses
set forth in this Section or to such other address as either party may
designate by written notice to the other:




	 	 	 
	
Avaya Inc.
	 	XETA Technologies, Inc.
	
1450 G St NW, 4th Floor
	 	1814 West Tacoma
	
Washington, DC 20005
	 	Broken Arrow, OK 74012
	
ATTENTION: Diane Ingram
	 	ATTENTION:
_____________



               24.2 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.




	25.	 	ORDER OF PRECEDENCE



               25.1 In the event of a conflict between the provisions of the foregoing
documents, the following order of precedence shall govern:




	 	 	 	 	 
	 	 	
(a)
	 	This Addendum;
	 	 	 	 	 
	 	 	
(b)
	 	The Avaya GSA Schedule; and
	 	 	 	 	 
	 	 	
(c)
	 	The Agreement.




	26.	 	SURVIVAL OF OBLIGATIONS



               26.1 The respective obligations of Reseller and Avaya under this Addendum
which by their nature would continue beyond the termination, cancellation or
expiration hereof, shall survive termination, cancellation or expiration
hereof.





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IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be executed
by their duly authorized representatives on the date(s) set forth below.



	 	 	 	 	 	 	 
	Avaya Inc.	 	 	 	 	 	 
	 	 	
XETA Technologies, Inc.	 	 	 	 
	 	 	 	 	 	 	 
	Signature:	 	
/s/ Therese A. Caraffa
	 	Signature:
	 	/s/ Jack R Ingram
	 	 	


	 	 	 	

	 	 	 	 	 	 	 
	Printed:	 	
Therese A. Caraffa
	 	Printed:
	 	Jack Ingram
	 	 	 	 	 	 	 
	Title:	 	
Contract Mgr
	 	Title:
	 	CEO, President
	 	 	 	 	 	 	 
	Date:	 	
08/06/03
	 	Date:
	 	8.6.03





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