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EXHIBIT 10.8
SOFTWARE DISTRIBUTION AGREEMENT
BETWEEN
LUCENT TECHNOLOGIES INC.
AND
NABNASSET CORPORATION
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TABLE OF CONTENTS
SOFTWARE DISTRIBUTION AGREEMENT
BETWEEN
LUCENT TECHNOLOGIES INC.
AND
NABNASSET CORPORATION
RECITALS................................................................ -1-
1. DEFINITIONS........................................................ -1-
2. LICENSE GRANT...................................................... -3-
3. RELATIONSHIP OF THE PARTIES........................................ -4-
4. PERIODIC MEETINGS.................................................. -5-
5. GOLDEN MASTERS..................................................... -6-
6. MONTHLY REPORTS.................................................... -6-
7. AUDIT.............................................................. -7-
8. LICENSE FEE........................................................ -7-
9. RIGHTS TO PRODUCT.................................................. -7-
10. DELIVERABLES....................................................... -8-
11. TAXES.............................................................. -9-
12. PAYMENTS........................................................... -10-
13. MISCELLANEOUS EXPENSES............................................. -11-
14. ESCROW AGREEMENT................................................... -11-
15. ACCEPTANCE......................................................... -12-
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16. CONTINUED PRODUCT AVAILABILITY..................................... -13-
17. MARKETING.......................................................... -13-
18. WARRANTY........................................................... -14-
19. LIMITATION OF LIABILITY............................................ -16-
20. TECHNICAL SUPPORT.................................................. -16-
21. TRAINING........................................................... -17-
22. END USER SUBLICENSES............................................... -17-
23. TERM, TERMINATION AND DEFAULT...................................... -18-
24. INDEMNIFICATION.................................................... -20-
25. COPYRIGHT NOTICE................................................... -21-
26. ASSIGNMENT......................................................... -22-
27. USE OF TRADENAME................................................... -23-
28. CONFIDENTIALITY.................................................... -24-
29. EXPORT............................................................. -26-
30. LUCENT RIGHT TO COMPARABLE PRODUCT................................. -26-
31. NOTICES AND REQUESTS............................................... -27-
32. CONTROLLING LAW.................................................... -28-
33. ENTIRE AGREEMENT................................................... -28-
34. DISPUTE RESOLUTION................................................. -28-
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35. GENERAL............................................................ -29-
36. FORCE MAJEURE...................................................... -29-
37. AGREEMENT TITLE AND ARTICLE HEADINGS............................... -29-
38. IMPLEADER.......................................................... -29-
39. EXCLUSION OF LICENSES.............................................. -30-
40. NON-WAIVER......................................................... -30-
41. INSURANCE AND LIABILITY............................................ -30-
42. COMPLIANCE WITH LAWS............................................... -31-
43. RELEASES VOID...................................................... -31-
44. PLANT RULES AND GOVERNMENT CLEARANCE............................... -32-
45. SURVIVAL OF OBLIGATIONS............................................ -32-
46. HARDWARE AND SOFTWARE DEVELOPMENT ASSISTANCE....................... -32-
47. EXHIBITS INCORPORATED.............................................. -32-
EXHIBITS and ATTACHMENTS
Exhibit A - Product to be Delivered
Exhibit B - Payment Schedule
Exhibit C - Training Deliverables
Exhibit D - Technical Support
Exhibit E - Supplier's Existing and Potential Customers
Exhibit F - Supplier's Standard License Agreement
Attachment 1 - Escrow Agreement
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SOFTWARE DISTRIBUTION AGREEMENT
This Agreement is entered into by and between Lucent Technologies Inc.,
a Delaware corporation, by and through its Business Communications Systems
Division with a place of business at 211 Mt. Airy Rd., Basking Ridge NJ 07920
(hereinafter called LUCENT), and Nabnasset Corporation, a Massachusetts
corporation, with a place of business at 15 Craig Road, Acton, Massachusetts
01720 (hereinafter called SUPPLIER).
The effective date of this Agreement shall be the later of the dates
executed by the respective parties.
RECITALS
WHEREAS, SUPPLIER has the right to license PRODUCT, as hereinafter
defined, and
WHEREAS, LUCENT desires to obtain rights to PRODUCT and related materials
described hereinafter; and
WHEREAS, SUPPLIER desires to provide LUCENT with such rights upon the
terms and conditions set forth in this Agreement; and
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants and conditions set forth in this Agreement, the parties agree as
follows:
1. DEFINITIONS
A. AFFILIATE: means a subsidiary, corporation, partnership, or venture a
majority of whose voting stock or ownership interest is owned directly or
indirectly by LUCENT.
B. AGREEMENT: means this document and all of the annexed schedules and
exhibits, all of which are hereby incorporated herein by reference together with
any future written amendments hereto which have been executed by SUPPLIER and
LUCENT.
C. CONFIDENTIAL INFORMATION: means information which is defined in Section 28
hereof.
D. DEMONSTRATION COPY: means a copy of the PRODUCT contained in demonstration
kits which shall be supplied to LUCENT by SUPPLIER at no charge.
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E. DOCUMENTATION: means the technical documentation, user manuals, handbooks.
list of errors, workarounds, specifications and other written materials relating
to PRODUCT provided by SUPPLIER for the PRODUCT.
F. END USER: means a third person or legal entity that obtains rights from
LUCENT or from a Subdistributor during the term of this Agreement to utilize
PRODUCT and who will have no right to grant further rights to or license PRODUCT
to others.
G. ENHANCEMENTS: means modifications or additions to PRODUCT other than
maintenance modifications, that may be integrated into the PRODUCT and alter
features, functionality or performance of the PRODUCT.
H. GOLDEN MASTER: means an Object Code version of the PRODUCT provided to
LUCENT on a media mutually agreed upon by LUCENT and SUPPLIER which will be
utilized by LUCENT to replicate copies of the PRODUCT for distribution to End
Users pursuant to Sublicenses.
I. LICENSE FEE: means the amount of money to be paid by LUCENT to SUPPLIER in
accordance with the schedule set forth on Exhibit B hereof for each copy of the
PRODUCT replicated and provided to an End User, to a Subdistributor or used
internally by LUCENT in a production environment.
J. MAINTENANCE AGREEMENT: means a separate agreement which addresses the
maintenance and support obligation to End Users and which is more fully
described in Exhibit D hereto.
K. MAINTENANCE RELEASE: means a modification of the Object Code of the
Product which corrects bugs or errors but does not alter the functionality of
the PRODUCT.
L. MAJOR RELEASE: means a new version of the Object Code of the PRODUCT which
SUPPLIER has determined results in a substantial alteration in the features or
functions of the PRODUCT.
M. MINOR RELEASE: means a new set of Object Code for the PRODUCT that
includes support for planned future features and /or addition of limited new
features.
N. NEW MODULE: means additional functionality that SUPPLIER may make
available to LUCENT and/or End Users for licensing separately to work with the
PRODUCT.
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0. OBJECT CODE: means computer programs of the PRODUCT assembled or compiled
in magnetic or electronic binary form on software media which are readable and
reasonable by machine but are not generally readable by humans without reverse
assembly, reverse compiling or reverse engineering and which are executable
versions of the PRODUCT which may be utilized on platforms as defined in Exhibit
A hereto.
P. PRODUCT: means the (1) Object Code version of the software of SUPPLIER,
that is described in Exhibit A hereto that SUPPLIER markets, maintains and
supports as of the date of this Agreement, (2) any Releases, as hereinafter
defined, enhancements, fixes, updates and modifications provided to LUCENT
pursuant to the terms and provisions hereof, and the Documentation. PRODUCT does
not include any intellectual property developed or created by LUCENT pursuant to
Section 9 of this Agreement.
Q. RELEASES: means any Enhancement, Major Release, Minor Release, or
Maintenance Release.
R. SUPPORT: means warranty and maintenance services which the SUPPLIER is
obligated to provide pursuant to the terms and provisions of the warranty or a
Maintenance Agreement.
S. SUBDISTRIBUTORS: means a third party who is granted distribution rights to
End Users by Lucent through a Sublicense agreement pursuant to the terms and
provisions of this Agreement.
T. SUBLICENSE: means a written agreement between an End User and a
Subdistributor LUCENT; or between a Subdistributor and LUCENT, pursuant to which
the End User is granted limited rights to use the PRODUCT and the Subdistributor
is granted certain distribution rights.
2. LICENSE GRANT
A. SUPPLIER grants LUCENT, subject to the terms and conditions set forth
herein, including but not limited to the payment terms set forth in Exhibit B, a
non-exclusive, perpetual, worldwide right and license to use, demonstrate,
market, Sublicense, and distribute copies of PRODUCT supplied to LUCENT by
SUPPLIER in Object Code form.
SUPPLIER also grants to LUCENT a non-exclusive, perpetual, royalty-free
license to (i) use and reproduce the PRODUCT for purposes of evaluation and
acceptance; (ii) reproduce Demonstration Copies of each PRODUCT supplied to
LUCENT by SUPPLIER
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solely for the purpose of marketing and promoting the PRODUCT and training
customers in its use; (iii) reproduce and distribute copies of Documentation for
use by LUCENT personnel in its activities pursuant to this Agreement and for use
by Subdistributors and End Users; and (iv) reproduce and distribute copies and
Documentation in furtherance of this Agreement. Any and all rights and licenses
granted to LUCENT under this Agreement shall be non-transferrable except that
(a) LUCENT may transfer all or part of said rights and licenses at any time to
any AFFILIATE; and (b) LUCENT may transfer all or part of said rights and
licenses to a third party with the prior written consent of SUPPLIER, which
consent shall not be unreasonably withheld. LUCENT shall also have the right to
appoint any AFFILIATE or any third party as a Subdistributor either in the
United States or in any countries internationally in which the PRODUCT is
Sublicensed. Such Subdistributor(s) shall have the right and license to
Sublicense the PRODUCT to further Subdistributors or to End-Users. LUCENT shall
be responsible to SUPPLIER for the acts of its Subdistributors that are in
violation of this Agreement.
B. In no event shall LUCENT reverse compile or disassemble Object Code
versions of the PRODUCT or otherwise create, or attempt to create or permit,
allow or assist others to create source code versions of the PRODUCT
C. The license grants to LUCENT in this Agreement shall extend to any
AFFILIATE.
3. RELATIONSHIP OF THE PARTIES
LUCENT and SUPPLIER are and shall remain independent companies and the
employees of one shall not hold themselves out or be considered to be employees
or representatives of the other. This Agreement is not intended by the parties
to constitute or create a joint venture, agency, partnership, OEM, or other form
of business organization, and the rights and obligations of the parties shall be
only those expressly set forth herein. If LUCENT and SUPPLIER agree to provide
an integrated solution to a customer and LUCENT and SUPPLIER determine that a
prime contractor/subcontractor relationship between LUCENT and SUPPLIER is
appropriate, unless LUCENT and SUPPLIER agree to the contrary, LUCENT shall
assume the prime contractor position, and in every prime/subcontractor
situation, a separate written prime/subcontractor agreement covering the
respective obligations of the parties and the rights to any intellectual
property created during the prime/subcontractor relationship pertaining to that
customer shall be executed by LUCENT and SUPPLIER. The terms of these separate
prime/subcontractor agreements shall not override the terms of this Agreement
unless expressly agreed to by LUCENT and SUPPLIER.
If, at any time, either party discloses to the other party information
relating to an
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opportunity to sublicense PRODUCT to an interested End User, such information
shall be deemed Confidential Information as defined in Section 28 hereof, and as
such, shall not be used as a sales lead by either party's direct sales force to
approach said End User to license PRODUCT directly to said End User unless
agreed by the parties. Further, SUPPLIER agrees not to create any commission
plan or any other type of incentive that would have the effect of encouraging
the direct sales force of SUPPLIER to specifically compete against LUCENT.
At SUPPLIER's request, LUCENT acknowledges that SUPPLIER has established
relationships with certain end users of the PRODUCT ("Existing Customers") and
has entered into marketing discussions with certain potential end users
("Potential End Users"). Said Existing End Users and Potential End Users
(collectively, "Listed Customers") are listed in Exhibit E. As soon as practical
after the effective date of this Agreement, sales or marketing personnel of the
parties shall agree on the parties' respective roles in dealing with the Listed
Customers with respect to the PRODUCT and related services. If a joint agreement
cannot be reached by the parties as to any Existing Customer by July 1, 1997,
SUPPLIER shall have right of first preference to enter into agreements with such
Existing Customer for PRODUCT and related services. If a joint agreement cannot
be reached by the parties as to any Potential End User by July 1, 1997, the
parties shall market and sell PRODUCT and related services to such Potential End
User independently and without restriction in the absence of an agreement by the
parties to the contrary as to any Potential End User. Beginning on January 1,
1998, the parties shall market and sell PRODUCT and related services
independently and without restriction to Potential End Users. Nothing in this
paragraph shall be construed to preclude any customer, Listed Customer or End
User at any time from electing to license PRODUCT from either party and such
election shall be binding on both parties. Nothing contained in this paragraph
shall restrict LUCENT from marketing or selling any LUCENT or third party
equipment or related services to any customer or End User, including but not
limited to any Listed Customer, provided that, LUCENT shall not market or sell
the PRODUCT and related services, or a product and its related services which
directly compete with the PRODUCT and related services, to an Existing Customer
in the absence of a specific request by such Existing Customer.
4. PERIODIC MEETINGS
During the term of this Agreement, duly authorized representatives of the
parties shall meet quarterly within thirty (30) days of the receipt by SUPPLIER
of the quarterly payment by LUCENT of any fees due hereunder to discuss issues
arising out of this Agreement and related services and PRODUCT, to review
volumes of PRODUCT Sublicensed by LUCENT, to review SUPPLIER plans relating to
PRODUCT, and to
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review levels of Sublicense satisfaction with PRODUCT. No discussions or
agreements reached during said meetings shall modify or amend this Agreement
unless reduced to the form of a Written amendment to this Agreement signed by
authorized representatives of LUCENT and SUPPLIER.
5. GOLDEN MASTERS
Upon execution of this Agreement by LUCENT and SUPPLIER, SUPPLIER shall
provide to LUCENT (i) three copies of a Golden Master of the PRODUCT software in
Object Code form and (ii) three copies of all applicable Documentation. The
Documentation shall be provided on the same media as the Object Code that will
allow LUCENT to reproduce and distribute such Documentation in accordance with
normal manufacture reproduction procedures. In addition to the rights granted in
Section 2 hereof, entitled License Grant, subject to the provisions of this
Agreement, LUCENT shall have the right to reproduce the PRODUCT in Object Code
form and all applicable Documentation for distribution to End Users solely for
the use of such End User without the right to distribute the PRODUCT further.
Subject to the provisions of this Agreement, LUCENT shall also have the right to
distribute the PRODUCT, Demonstration Copies, and Documentation to its
Subdistributors.
6. MONTHLY REPORTS
LUCENT shall render written monthly reports to SUPPLIER within [*] days
from the end of each calendar month specifying the number of copies of the
PRODUCT and the number of copies of the Documentation delivered to End Users
during the previous month. Each such report shall include the name and address
of each End User. Within [*] days from the end of each quarter, LUCENT will pay
to SUPPLIER the total License Fees payable to SUPPLIER corresponding to the
number of copies of PRODUCT replicated and shipped to End Users or used
internally by LUCENT during the quarter just ended.
SUPPLIER shall render written monthly reports to LUCENT within [*] from the
end of each calendar month specifying the number of Maintenance Agreements with
End Users executed during the previous month. Each such report shall include the
name and address of each End User. Within [*] days of the end of each quarter
SUPPLIER will pay to LUCENT the portion due LUCENT of such fees paid pursuant to
such Maintenance Agreements during the quarter just ended.
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[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
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7. AUDIT
SUPPLIER shall have the right to engage an independent accounting firm to
audit LUCENT's information on distribution of the PRODUCT to establish the
accuracy and timeliness of monthly reports and quarterly payments made to
SUPPLIER by LUCENT. The information provided to SUPPLIER by the accounting firm
shall be limited to the firm's opinion on the accuracy and timeliness of reports
and payments made by LUCENT: as to all other information qathered or discovered
during the audit, the accounting firm shall be required to hold all such
information strictly confidential to LUCENT. The audit may be conducted not more
than once a year, and LUCENT shall not unreasonably, withhold or delay its
consent to the time of the audit and SUPPLIER'S choice of accounting firm. The
accounting firm shall be bound by a non-disclosure agreement in the form to be
provided by LUCENT to ensure compliance with this paragraph and shall provide
LUCENT with a copy of its audit report. Any discrepancies or errors identified
in an audit report shall be corrected by the party who committed the error
within thirty (30) days of the receipt of the report by that party. Any dispute
related to the content of an audit report shall be resolved pursuant to Section
34.
8. LICENSE FEE
LUCENT shall pay SUPPLIER a License Fee as shown in EXHIBIT B for each
copy of the PRODUCT replicated and provided to an End User by LUCENT or its
Subdistributors.
9. RIGHTS TO PRODUCT
The PRODUCT, including all Releases and New Modules, is and shall remain
at all times the exclusive property of SUPPLIER. LUCENT shall have no right,
title or interest in the PRODUCT except as expressly set forth herein. No
Subdistributor or End User shall acquire any rights of ownership in the PRODUCT.
At the request of SUPPLIER, LUCENT will execute and deliver any document,
instrument or agreement to SUPPLIER that may be appropriate to maintain the
exclusive ownership of the PRODUCT by SUPPLIER.
The parties recognize and acknowledge that LUCENT shall have the right to
develop and create templates, interfaces, and other intellectual property that
may be used in conjunction with the PRODUCT or incorporated into the PRODUCT for
specific End Users. The parties agree that LUCENT shall have full right, title,
and interest in the
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intellectual property that it develops and creates, and SUPPLIER shall have full
right, title, and interest in the intellectual property it has developed and
created, including but not limited to the PRODUCT delivered to LUCENT, and to
the intellectual property SUPPLIER develops and creates in the future. No right,
title or interest in intellectual property shall pass from one party to the
other unless expressly set forth in this Agreement or upon the express, written
consent of both parties. Any dispute between the Parties relating to a right or
interest of intellectual property shall be resolved pursuant to Section 34.
SUPPLIER may use, sell, assign, transfer or license the PRODUCT to third
parties free from any restrictions of LUCENT.
10. DELIVERABLES
A. SUPPLIER agrees to deliver upon execution to LUCENT three (3) Golden
Master copies of the PRODUCT; three (3) copies of all Documentation contained in
media described in EXHIBIT A; three (3) Golden Master copies of Demonstration
Copies of the PRODUCTS; and any other deliverable items set forth in Exhibit A.
B. Deliveries by SUPPLIER of Golden Masters and Documentation under this
Agreement shall be one copy of each to the following three locations:
Lucent Receiving Dock
1200 West 120 Avenue
Westminster, CO 80234
Operations Manager Integrated Business Solutions
8200 East Maplewood Avenue
Englewood, CO 80111
Attn: Jerald Wyatt
Dan Prentice
Lucent Technologies Bell Laboratories
Room 30E108
11900 N. Pecos Street
Westminster, CO 80234-2703
Any or all of these locations may be changed by LUCENT at any time upon
written notice to SUPPLIER.
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C. From time to time, SUPPLIER may issue Releases and New Modules. SUPPLIER
shall promptly provide to LUCENT, at no additional charge, three (3) Golden
Master Copies of the Releases and New Modules, three (3) Golden Master copies
of corresponding Demonstration Copies, and three (3) copies of all applicable
Documentation for each Release or New Module as soon as such Release or New
Module is ready for use by any of SUPPLIER's customers. Whenever possible,
SUPPLIER will provide LUCENT with 120 day advance notice of Release or New
Module schedules and content. Such Release or New Module shall be considered
PRODUCT subject to all terms and conditions of this Agreement. Should SUPPLIER
introduce a Release or New Module, LUCENT may, at its sole option, elect not to
distribute said Release or New Module. Such decision shall not affect the
respective obligations of the parties under this Agreement, except that if End
Users continue to have versions or Releases of PRODUCT that have been obsoleted
and no longer supported by SUPPLIER, the parties shall negotiate with the End
User in a fair and equitable manner by which said End Users may continue to
obtain PRODUCT maintenance service. If the parties fail to reach such agreement,
they shall initiate the dispute resolution process set forth in Section 34
hereof.
D. During the entire term of this Agreement and for five (5) years
thereafter, SUPPLIER shall provide to LUCENT the most current listings of all
known bugs, and Releases associated with the PRODUCT (including all versions
then being supported by SUPPLIER). The above referenced listings supplied to
LUCENT shall be no less comprehensive than those provided by SUPPLIER to its own
installation and support personnel.
11. TAXES
In addition to all other fees and charges, LUCENT shall bear all taxes,
duties, including customs duties, import and export fees and any other charges
or assessments established by any governmental agency that are applicable to the
performance of this Agreement, whether now in force or enacted in the future.
All License Fees payable by LUCENT to SUPPLIER are exclusive of any tax, levy,
or similar governmental charge that may be assessed by any jurisdiction, whether
based on gross revenue, the delivery, possession or use of the PRODUCT, the
services provided hereunder, the execution or performance of this Agreement, or
otherwise, except for net income, net worth or franchise taxes assessed on
SUPPLIER by the U. S. Government or any state or municipality in the United
States. If under the laws of any jurisdiction LUCENT is required to withhold any
tax on License Fees, then the amount of the License Fees shall be automatically
increased to totally offset such tax so that the amount actually remitted to
SUPPLIER net of all taxes equals the amount of the License Fees due and payable
to SUPPLIER. LUCENT will pay all taxes, levies or similar governmental charges
or
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provide SUPPLIER with an executed certificate of exemption conforming to the
requirements of the relevant taxing authority.
12. PAYMENTS
A. All payments due to SUPPLIER under this Agreement shall be made in
accordance with Section 6 hereof, Exhibit B, and this Section. The License Fee
with respect to each copy of the PRODUCT replicated will be earned by SUPPLIER
on the date which LUCENT ships a copy of the PRODUCT to an End User and will be
payable to SUPPLIER within [*] days after the end of the quarter in which the
shipment date occurred.
B. If LUCENT reproduces Demonstration Copies of the PRODUCT or copies of
Documentation pursuant to paragraph A of Section 2 hereof, no payment of any
kind shall be due to SUPPLIER for the distribution of such reproduced copies.
C. License Fees payable hereunder shall be adjusted once a year. The
effective date of such adjustment, if any, shall be May 1 of each year during
the term of this Agreement. The adjusted License Fee will be computed by
multiplying the then current License Fee by a fraction, the numerator of which
is the published suggested list price of SUPPLIER in effect on February 1 of the
then current year, and the denominator of which is the published suggested list
price of the SUPPLIER on February 1 of the year immediately preceding the then
current year, provided that, only with respect to the computation of the
adjusted License Fee as of May 1, 1998, the denominator of the fraction shall be
the published suggested list price of SUPPLIER on the date of this Agreement.
The License Fee as adjusted will be effective for one (1) year beginning on the
then current May 1. This adjustment process will occur each year during the term
of this Agreement. Further, in any year there is an increase, the increase shall
not apply to copies of the PRODUCT replicated after May 1 of such year in those
cases where LUCENT has entered into a binding bid, contract or purchase order
from the End User with respect to such copies during the period from January 1
to January 31 of such year.
D. In the event that LUCENT elects to license the PRODUCT for internal
production purposes, License Fees paid to SUPPLIER shall be in accordance with
the payments as outlined in Exhibit B. License Fees paid by LUCENT for such
internal use shall accumulate toward the total payment schedules as defined in
Exhibit B.
E. [*]
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[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
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[*]
F. Notwithstanding any other provision contained in this Agreement, and
except when LUCENT is acting as an agent selling a Maintenance Agreement to an
End User on SUPPLIER's behalf, in no event will the parties disclose to each
other pricing strategy information relating to their respective customers or
specific prices that have been or will he offered to their respective customers
for the PRODUCT.
13. MISCELLANEOUS EXPENSES
Monthly reports and notices required from either LUCENT or SUPPLIER by
this Agreement will be delivered to the recipient at the expense of the party
that generated the report.
Unless otherwise expressly agreed to by the parties herein or otherwise,
LUCENT and SUPPLIER shall each pay all travel expenses of their respective
employees.
14. ESCROW AGREEMENT
The parties agree to establish a proprietary escrow account for the
benefit of LUCENT to maintain, during the life of this Agreement and five (5)
years thereafter, all then current copies of the PRODUCT, Demonstration Copies,
and Documentation related to the PRODUCT under this Agreement pursuant to a
separate escrow agreement to be concluded by and between the parties to this
Agreement and a neutral third-party escrow agent designated by the agreement of
both parties (the "Escrow Agreement") in the form attached hereto and made a
part hereof as Attachment 1. The escrow agent will be Data Securities
International, Inc. ("DSI"), or such other escrow agent as the parties mutually
designate. The nature and completeness of any deposited materials will be
subject to verification by a representative of LUCENT in the presence of a
representative of SUPPLIER, only at the facilities of the escrow agent where the
escrowed materials are kept. No copies, in whole or in part, of the escrowed
materials may be made by the SUPPLIER representative and all such materials will
be considered to be confidential information regardless of whether or not they
have been marked as confidential information. One half of the escrow fees shall
be paid by LUCENT and one half shall be paid by SUPPLIER. With reasonable prior
permission of LUCENT, SUPPLIER may change the escrow agent at any time. Any
release of escrowed materials will be subject to the terms and conditions of
Attachment 1.
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[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
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15. ACCEPTANCE
A. LUCENT shall evaluate the PRODUCT and Documentation delivered under this
Agreement for compliance with the criteria referenced or set forth in Exhibit A,
and shall submit a written acceptance or rejection to SUPPLIER within [*] after
the receipt by LUCENT of the complete PRODUCT and Documentation. Such written
acceptance or rejection shall be transmitted to SUPPLIER only by LUCENT.
Shipment to and use of the PRODUCT or Documentation by a customer within the [*]
period shall not be deemed acceptance. Failure by LUCENT to submit a written
rejection to SUPPLIER by the end of the [*] period shall be deemed acceptance.
LUCENT will provide a certified copy of the PRODUCT, without charge, to those
customers who received PRODUCT prior to certification and no payment will be due
to SUPPLIER for this certified PRODUCT.
B. If a PRODUCT or Documentation evaluated pursuant to paragraph A of this
Article is rejected, SUPPLIER agrees to use its best efforts to correct each
error leading to such rejection within [*] after receipt of notice from LUCENT
of such error. The corrected PRODUCT or Documentation shall be resubmitted for
acceptance testing within [*] following receipt of notice from LUCENT of such
errors. LUCENT shall have [*] after the resubmissions of such corrected PRODUCT
or Documentation to accept or reject such PRODUCT or Documentation. If the
corrected PRODUCT or Documentation passes the acceptance tests, SUPPLIER agrees
to deliver to LUCENT new Golden Master copies and/or Documentation incorporating
the corrections within two (2) business days, at no charge to LUCENT.
C. If the errors in a rejected PRODUCT or Documentation cannot be corrected
within the period specified in Paragraph B of this Section or if a resubmitted
PRODUCT or Documentation retested by LUCENT during the re-evaluation period is
again rejected, then LUCENT shall, at its option, (1) retain the PRODUCT or
Documentation at an equitable adjustment in price as may be agreed by the
parties, in which case the PRODUCT or Documentation shall be deemed accepted;
(2) afford SUPPLIER one or more extensions for a period or periods to be
specified by LUCENT without prejudice to LUCENT's rights to thereafter exercise
its option under either clause (1) or (3) of this paragraph if the errors have
not been corrected; or (3) terminate this Agreement upon [*] written notice.
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* Certain information in this exhibit has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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16. CONTINUED PRODUCT AVAILABILITY
SUPPLIER agrees to maintain and Support the PRODUCT, Demonstration Copies,
and Documentation described in Exhibit A for a minimum of [*] from the date of
expiration or termination of this Agreement. In no event will SUPPLIER be
obligated to provide Support unless such Support: (i) is being paid for in
accordance with the terms and provisions of a Maintenance Agreement, (ii) is
covered by the ninety (90) day warranty set forth in Section 18 hereof or (iii)
is being paid by an End User on a time and materials basis at the then current
rates of SUPPLIER for time and materials. In no event will an End User be
required to purchase a Maintenance Agreement. During said [*] period, LUCENT
shall have the right and license to continue to maintain and support its
customers who had been Sublicensed PRODUCT at the time of expiration or
termination of this Agreement. LUCENT shall not have the right to enter into new
Sublicenses after the expiration or termination of this Agreement without the
express written consent of SUPPLIER. SUPPLIER will notify LUCENT, in writing, of
any decision to discontinue production, marketing, licensing or the distribution
of PRODUCT for any reason including, without limitation, the availability of any
upgraded, improved, or changed PRODUCT within ten (10) days of said decision. In
no event shall said decision be less than ninety (90) days prior to the actual
date of discontinuance, nor shall said decision result in an inability of LUCENT
to properly service its Sublicensees as intended by this Agreement. Should any
such decision materially interfere with LUCENT's ability to reasonably serve its
customers, and SUPPLIER is unable or unwilling to provide a reasonable
alternative, LUCENT shall have the right to pursue remedial actions pursuant to
the Escrow Agreement.
17. MARKETING
LUCENT shall have complete authority to market or not market any or all of
the PRODUCT as it sees fit so long as LUCENT meets the payment obligations set
forth in this Agreement and does not otherwise violate SUPPLIER's rights in the
PRODUCT. Nothing in this Agreement shall be construed to obligate LUCENT to in
any way market, distribute, ship or otherwise utilize any PRODUCT or any portion
thereof. Specifically, this Agreement shall in no way be interpreted or
considered as placing a "best efforts" standard upon LUCENT with respect to the
marketing of any or all of the PRODUCT. Notwithstanding the foregoing during the
first two years of the term of this Agreement, if Lucent does not actively
market the PRODUCT during any twelve (12) month period, then SUPPLIER may cancel
this Agreement upon thirty (30) days written notice. If there is any dispute
between SUPPLIER and LUCENT with respect to whether the PRODUCT is being
actively marketed by LUCENT, then the parties may resort to the dispute
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* Certain information in this exhibit has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
18
resolution procedures hereunder.
18. WARRANTY
SUPPLIER warrants to LUCENT and its End Users all of the following:
A. The PRODUCT and Demonstration Copies will be delivered to LUCENT free from
significant errors, conforming to and performing in accordance with the
Documentation. The Golden Master media conveying the PRODUCT and Demonstration
Copies will be free from defects in material and workmanship and conform to
PRODUCT specifications and Documentation for the warranty period described
below, provided that the PRODUCT has not been altered or modified in violation
of the terms hereof or the terms of a Sublicense. The PRODUCT will be compatible
with and may be used in conjunction with other software as described in the
Documentation. SUPPLIER at its own cost will correct any bugs or errors in the
PRODUCT necessary to make the PRODUCT conform to the Documentation and
specifications and shall replace or correct any defective PRODUCT during the
warranty period. If it is not commercially reasonable for SUPPLIER to correct or
replace the defective PRODUCT then End User shall return the PRODUCT to LUCENT.
SUPPLIER will give a credit, on the next succeeding quarterly payment due from
LUCENT, subject to the limitation below, for the License Fees on the defective
PRODUCT returned to LUCENT. The warranty period will be for a period of ninety
(90) days and will be computed as follows: The ninety (90) day warranty period
to the End User will commence on either of the following dates: (1) in the event
the PRODUCT is installed by LUCENT or the SUPPLIER, then the said warranty
period will commence on the date that such installation is completed, or (ii) in
the event the installation of the PRODUCT is to be performed by the End User,
then the said warranty period will commence on the date the PRODUCT is shipped
by LUCENT to the End User. During any calendar year, the credit to be given to
LUCENT for defective PRODUCT returned by End Users will not exceed twelve and
one half (12.5%) per cent of the License Fees received by SUPPLIER during such
calendar year.
B. Support will be performed in a first-class, workmanlike manner in
accordance with generally accepted industry standards. If any Support does not
meet the above stated warranty, then it shall be performed in a conforming
manner at no additional cost to LUCENT or End Users.
C. There are no copy protection or similar mechanisms within the PRODUCT,
Demonstration Copies, or Documentation that will, either now or in the future,
interfere with the grants made in this Agreement.
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D. SUPPLIER knows of no claims by any third party that PRODUCT, Demonstration
Copies, or Documentation infringe any patent, copyright, or trademark, nor has
SUPPLIER been notified of any such potential claim.
E. As to PRODUCT for which SUPPLIER does not solely own all intellectual
property rights, SUPPLIER has full right, power and authority to license the
PRODUCT to LUCENT and its customers as provided in this Agreement.
F. LUCENT shall make all reasonable efforts to encourage End Users to
purchase Maintenance Agreements. If the End User does not have a Maintenance
Agreement then SUPPLIER shall have no obligation to End User other than the
warranty obligations for ninety (90) days as described above provided, however,
that SUPPLIER will, after the expiration of the warranty period, provide Support
on a time and material basis, the pricing of which will be set from time to time
by SUPPLIER.
G. To the best of SUPPLIER's knowledge and belief, the PRODUCT, and
Demonstration Copies do not contain any malicious code, program, or other
internal component (e.g. computer virus, computer worm, computer time bomb, or
similar component), which could damage, destroy, or alter PRODUCT, Demonstration
Copies, firmware, or hardware or which could, in any manner, reveal, damage,
destroy, or alter any data or other information accessed through or processed by
the PRODUCT in any manner. SUPPLIER shall immediately advise LUCENT, in writing,
upon reasonable suspicion or actual knowledge that the PRODUCT provided under
this Agreement may result in the harm described above. SUPPLIER shall indemnify
and hold LUCENT and its customers harmless from any damage resulting from the
harm described above.
H. PRODUCT will record, store, process and present calendar dates falling on
or after January 1, 2000, in the same manner and with the same functionality as
it performed before January 1, 2000. The PRODUCT will process both twentieth
(20th) Century and Twenty-first (21st) dates Century simultaneously, the date
field will not be converted back to a two-digit field during processing and all
screens within the PRODUCT have been designed to accept a four (4) digit field.
This maintenance will be considered part of and covered under the maintenance
provisions of the Agreement at no additional charge to LUCENT.
I. All warranties shall survive inspection, acceptance and payment.
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING THE
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IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
19. LIMITATION OF LIABILITY
EXCEPT FOR PERSONAL INJURY, NEITHER LUCENT NOR SUPPLIER, THEIR
SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, OR EMPLOYEES SHALL BE LIABLE FOR
ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR FOR
LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF THE OTHER
PARTY (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, USE OF
MONEY, OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA,
STOPPAGE OF OTHER WORK, OR IMPAIRMENT OF OTHER ASSETS) ARISING OUT OF BREACH OR
FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION,
NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHERWISE.
20. TECHNICAL SUPPORT
If, at any time during the term of this Agreement or during the five (5)
years after its expiration or termination, LUCENT discovers or identifies
because of its own direct efforts and not because of information generated from
End Users or Subdistributors, a bug or other error in the PRODUCT that
interferes with its performance in accordance with the Documentation, SUPPLIER
shall correct such bug or error within the time frames set forth in the
Maintenance Agreement referenced in Exhibit D consistent with the severity
levels described in such Maintenance Agreement, provided that the Release of the
PRODUCT in question is then currently being supported by SUPPLIER. Any and all
Services performed by SUPPLIER to correct such bugs or error in PRODUCT shall be
performed at no additional cost, beyond the maintenance fees set forth in
Exhibit B. SUPPLIER shall have no obligation to correct any bug or error for
End Users unless such End User is under warranty or Maintenance Agreement or is
willing to pay for such corrective action on a time and materials basis.
Notwithstanding the foregoing, in the event an End User has terminated its
Maintenance Agreement in accordance with such Maintenance Agreement and
identifies a bug or error and reports same to LUCENT, LUCENT shall communicate
same to SUPPLIER. SUPPLIER shall examine the bug or error and determine the
applicable resolution. Should SUPPLIER determine that said bug or error is the
result of the specific
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use of the PRODUCT by the End User and is not related to the documented
specifications and functionality of the PRODUCT, SUPPLIER shall provide LUCENT
either separate bug fix or workaround patch to remedy the problem
or integrate the fix into the next Maintenance Release of the PRODUCT which
shall be distributed by LUCENT to its current End Users under a Maintenance
Agreement or to those willing to pay for the Maintenance Release on a time and
materials basis. Should the original reporting End User wish to receive the bug
fix or workaround patch, SUPPLIER reserves the right to charge the End User for
such correction.
In the event LUCENT believes that SUPPLIER is not making reasonable
efforts to respond to reported bugs and/or errors in the PRODUCT, LUCENT
reserves the right to suspend sale and distribution of the PRODUCT until
SUPPLIER has provided sufficient assurances that it will comply with its
obligations under this Agreement
21. TRAINING
A. SUPPLIER shall make available to LUCENT those training services defined in
Exhibit C of this Agreement.
B. LUCENT shall be granted the right and license to obtain and distribute
course or training materials from SUPPLIER at no charge.
C. LUCENT shall also have a royalty-free license to use, reproduce and
distribute fact sheets, brochures and other promotional literature for PRODUCT.
22. END USER SUBLICENSES
A. LUCENT, or its Subdistributor shall enter into a written Sublicense with
each End User to whom PRODUCT is Sublicensed. The Sublicense agreements shall
include the following provisions:
1. Acknowledgment that other than warranty or maintenance
obligations of SUPPLIER, LUCENT and/or Subdistributor shall
assume sole liability vis-a-vis the End User and/or
Subdistributor.
2. Shall be independent of this Agreement and shall survive
the termination of this Agreement.
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3. All the provisions set forth the form of SUPPLIER's end
user license attached hereto as Exhibit F, unless otherwise
agreed by the parties,
4. In the event that LUCENT enters into a Sublicense that
deviates in the provisions of (i), (ii) or (iii) above, then
such deviation shall not be deemed to be a breach of this
Agreement, provided that, LUCENT indemnifies and holds the
SUPPLIER harmless with respect to any damages directly caused by
such deviation.
LUCENT will maintain a copy of each Sublicense. LUCENT will use reasonable
efforts to ensure each Sublicense agreement includes the aforementioned terms
and conditions. However, failure to do so shall not be deemed a breach of this
Agreement. In that event, LUCENT will defend, indemnify, and hold SUPPLIER
harmless for any direct, proven damages proximately caused by LUCENT's failure
to include such terms and conditions. If LUCENT learns of any breach of a
Sublicense that could harm SUPPLIER, LUCENT shall take prompt commercially
reasonable, corrective action to remedy the breach and/or obtain other
appropriate relief and shall, in addition, immediately notify SUPPLIER in
writing of breach and corrective action undertaken. The execution of these
duties by LUCENT shall not preclude SUPPLIER from also undertaking corrective
action. In addition, if a breach in a Sublicense occurs that would, in the
opinion of SUPPLIER, result in irreparable harm to SUPPLIER, unless injunctive
or other equitable relief is entered into to restrain the violation, LUCENT
SHALL (i) use reasonable efforts of LUCENT to obtain such equitable relief as
promptly as reasonably possible; or (ii) assign the rights of LUCENT or
Subdistributor under the Sublicense to SUPPLIER to allow SUPPLIER to seek such
equitable relief. The foregoing obligations of LUCENT to enforce each Sublicense
as necessary to protect the interest of SUPPLIER shall survive the expiration or
termination of this Agreement.
Neither party shall make any representations or warranties to any third
party that would in any way would be or purport to be binding on the other party
unless such representation or warranty is pursuant to the terms of this
Agreement or unless the party to be bound expressly agrees in advance to such
representation or warranty.
23. TERM, TERMINATION AND DEFAULT
The term of this Agreement shall be three (3) years from its effective
date unless earlier terminated pursuant to this Agreement. No later than twelve
(12) months prior to the initial term or any renewal period of this Agreement,
the parties shall reach an agreement on whether to extend the term of the
Agreement for an additional one (1) year
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beyond the then scheduled expiration date. Failure by the parties to reach such
agreement to extend the term or agreement by the parties not to extend the
term shall mean that the Agreement shall expire on the expiration date then
scheduled. Additionally, either party may terminate this Agreement if the other
party is in default. A party to this Agreement is said to be in default if it
commits a material breach or if it ceases normal operations or becomes
insolvent.
In no event shall either party terminate by reason of any such default
unless written notice detailing such default is given to the other party. The
other party shall thereafter have thirty (30) days after such written notice to
correct such default; or, if said default cannot reasonably be corrected within
said thirty (30) days, the other party shall begin substantial corrective action
within said thirty (30) days and shall proceed promptly to correct said default.
If such corrective action is not completed within sixty (60) days after such
written notice, the party not in default may at its option terminate this
Agreement.
Upon expiration or termination of this Agreement for any reason, each
party shall return and make no further use of the property, materials and other
items (and all copies thereof) belonging to the other party and relating to this
Agreement except for any and all such property, material and other items,
including but not limited to Golden Masters, specifications, work-around lists,
and Documentation, needed by the parties to perform those functions and duties
that survive expiration or termination of this Agreement.
If this Agreement expires or is terminated for any reason other than
default by SUPPLIER, the licenses granted under this Agreement are terminated,
except that:
(i) LUCENT may continue to utilize such licenses to the extent
necessary for LUCENT to fulfill its support and maintenance
obligations, if any, to its existing customers; and
(ii) Licenses granted by LUCENT prior to termination of this
Agreement, and LUCENT payment obligations, if any, with respect
to PRODUCT ordered and received prior to expiration or
termination and with respect to continuing Support and any other
support services set forth in Exhibit D, shall survive; and
(iii) Upon termination of this Agreement for reason of default by
SUPPLIER, all the licenses granted to LUCENT under this Agreement
shall continue until the end of the term or extension, as the
case may be, that would have been in effect pursuant to paragraph
A of this Article in the absence of such termination for default.
Upon the conclusion of such term
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or extension, LUCENT's rights and obligations with respect to
such licenses shall terminate, except for the surviving rights
and licenses as specified in the Agreement, including but not
limited to clauses (i) and (ii) above.
24. INDEMNIFICATION
SUPPLIER represents and warrants that it now has and will retain the
sufficient right, title and interest in the PRODUCT to make this Agreement.
SUPPLIER shall indemnify LUCENT for any loss, damage, expense or liability
resulting from, and agrees to defend at its expense any suit against LUCENT or
its customers based upon, a claim that SUPPLIER does not have sufficient right,
title, and interest in any of the PRODUCT to make this Agreement, or that any of
the PRODUCT violates a trade secret or infringes a patent, a copyright or a
Tradename. The foregoing shall not prohibit LUCENT from retaining its own
counsel at its own expense and participating in the suit. Such indemnity
includes, but is not limited to, the amount of any settlement or the damages and
costs (including attorneys' fees, if any) awarded in any such suit. LUCENT shall
promptly notify SUPPLIER in writing of any notice of claim or of threatened or
actual suit, and at SUPPLIER's request and expense, shall afford SUPPLIER
cooperation for the defense or settlement of the same; provided, however, that
SUPPLIER shall not make any statement on LUCENT's behalf that would constitute
an admission against interest by LUCENT, nor enter into any settlement adversely
affecting LUCENT rights, without the prior written consent of LUCENT, which
consent shall not be unreasonably withheld, delayed or qualified. Nor shall
LUCENT enter into a settlement without the prior written consent of SUPPLIER,
unless such consent is unreasonably withheld in which case LUCENT shall enter
into such settlement and then rely upon the dispute resolution process set forth
in Section 34 to establish the amount of the settlement to be indemnified by
SUPPLIER. Upon a settlement, or in the event of an award adverse to LUCENT in
any such action, SUPPLIER shall post bond or the security acceptable to LUCENT
in an amount sufficient to insure payment in full of such settlement or such
damages and costs, as the case may be.
In the event a suit is initiated, or is reasonably likely, or an
injunction is entered against LUCENT in such suit wherein LUCENT is enjoined
from using such PRODUCT, SUPPLIER shall use commercially reasonable efforts to
procure for LUCENT the right to continue to use the PRODUCT or replace or modify
such PRODUCT to make them non-infringing. Any such replacement or modification
shall meet substantially the specifications set out in Exhibit A. The provision
of such replacement or modification shall not relieve SUPPLIER of the
obligations set forth in the preceding paragraph. The replacement or
modification shall be considered a PRODUCT subject to all terms and
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conditions including acceptance) under this Agreement.
Each party agrees to notify the other party immediately if any U.S. or
foreign patent is cited against the PRODUCT or if any legal action of the type
contemplated in this Article is commenced or threatened.
Notwithstanding any other provision contained in this Agreement, if an End
User is damaged during a time that a warranty or Maintenance Agreement is in
effect, either by a failure of a PRODUCT to perform according to the
Documentation or specifications, or a failure of the PRODUCT to meet
representations made to the End Users by SUPPLIER or by LUCENT with SUPPLIER's
written approval, or due to virus contained in Product, and said End User
obtains a judgment or reaches a settlement with LUCENT damages in accordance
with the provisions hereof, SUPPLIER shall indemnify and hold LUCENT harmless
for said judgment or settlement, subject to the following cap: (i) the License
Fee paid to SUPPLIER by LUCENT for the PRODUCT for that End User. (ii) a percent
of the judgement or settlement, said percent equal to the percent computed by
dividing the License Fee paid to SUPPLIER by LUCENT by the Sublicense fee billed
by Lucent to the End User, or (iii) $25,000, whichever is greater. In no event
shall SUPPLIER indemnify LUCENT for an amount greater than the judgment or
settlement. In the event that it appears likely that LUCENT will be entering
into a settlement with an End User for such a claim, it will so advise SUPPLIER,
who shall have the right to consult with LUCENT regarding the claim. If LUCENT
agrees to a settlement which is not consented to in writing by SUPPLIER,
SUPPLIER may resort for relief to the dispute resolution provisions of Section
34 hereof. LUCENT shall indemnify and hold SUPPLIER harmless with respect to any
claims, judgements or settlements, which do not relate to the PRODUCT or which
are based on unauthorized representations and warranties of LUCENT. Where an End
User is damaged through the actions and/or products of both LUCENT and SUPPLIER,
the damages shall be apportioned between the parties based upon mutual
agreement, or in the absence of such agreement, pursuant to Section 34. Any
refusal by one party to indemnify the other party under this paragraph shall be
resolved pursuant to Section 34.
25. COPYRIGHT NOTICE
LUCENT will not alter or delete any SUPPLIER copyright notice appearing on
the container or labels of the PRODUCT in object form.
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26. ASSIGNMENT
SUPPLIER shall not assign any right or interest under this Agreement
(excepting monies due or to become due) nor delegate any work or other
obligation to be performed by or owed under this Agreement without the prior
written consent of LUCENT, which consent shall not be unreasonably withheld,
delayed, or qualified. Any attempted assignment or delegation in contravention
of the above provisions shall be void and ineffective. Any assignment of monies
shall be void and ineffective to the extent that (1) SUPPLIER shall not have
given LUCENT at least thirty (30) days prior written notice of such assignment
and (2) such assignment attempts to impose upon LUCENT obligations to the
assignee additional to the payment of such monies, or to preclude LUCENT from
dealing solely and directly with SUPPLIER in all matters pertaining to this
Agreement including the negotiation of amendments or settlements of charges due.
[*]
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[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
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[*]
27. USE OF TRADENAME
LUCENT may use SUPPLIER's trademarks, tradenames, and tradedress
(hereafter "Tradename") in marketing the PRODUCT under the following conditions:
In order to enable SUPPLIER to maintain control of the use of its
Tradename, LUCENT agrees to submit samples of the usage of said Tradename to
SUPPLIER for its review and approval which approval will not be unreasonably
withheld. PRODUCT and materials Generated and released by LUCENT will be
consistent with the samples reviewed by SUPPLIER,
A. The rights of LUCENT to use or any Tradename of SUPPLIER will cease at the
termination of this Agreement.
B. Use of SUPPLIER Tradenames by LUCENT will bear no royalty.
C. All rights and goodwill in any SUPPLIER Tradename will remain with
SUPPLIER (except the rights specifically licensed in this Agreement) and any use
by LUCENT of any such Tradename will inure to the benefit of SUPPLIER.
D. SUPPLIER shall supply to LUCENT a list of the countries where SUPPLIER's
rights to use a Tradename have been established by registration or other
appropriate official procedures and will update such list as appropriate during
the term of this Agreement; and if no registration has been made in any country,
SUPPLIER shall so state. LUCENT shall have the option (i) to request SUPPLIER to
seek such registration, which request shall not be unreasonably denied or
delayed; or, (ii) at LUCENT's own expense, to seek such registration in any
country on behalf of SUPPLIER. If SUPPLIER seeks such registration upon LUCENT's
request, and if SUPPLIER so requests, LUCENT shall reimburse SUPPLIER for the
reasonable, direct costs of such registration, and such amounts shall then be
deducted from the License Fees subsequently paid by LUCENT for
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PRODUCT Sublicensed by LUCENT in the corresponding country.
E. LUCENT shall have the right to display its tradename and/or accompanying
language stating its involvement with SUPPLIER's PRODUCT on PRODUCTS,
DOCUMENTATION, and other materials distributed and licensed under this
Agreement. LUCENT agrees to submit samples of the usage of said Tradename and
language to SUPPLIER for its review and approval, which approval will not be
unreasonably withheld. PRODUCT, DOCUMENTATION, and other materials generated and
released by LUCENT will be consistent with the samples reviewed by SUPPLIER. If
use of LUCENT's Tradename or language on any PRODUCT or DOCUMENTATION requires
SUPPLIER to incur costs to modify such PRODUCT or DOCUMENTATION, LUCENT shall
reimburse SUPPLIER for such reasonable direct costs as long as LUCENT is advised
in advance of those costs.
F. If, at any time during the term of this Agreement and for five (5) years
after its expiration or termination, SUPPLIER decides to the change the name
under which the PRODUCT is marketed , it shall provide one hundred twenty (120)
days notice of such change to LUCENT. Further, SUPPLIER shall provide to LUCENT
evidence that the new name has been successfully registered in the United States
and every country in which the PRODUCT was substantially licensed prior to the
name change. SUPPLIER shall indemnify and hold LUCENT harmless for any damages
LUCENT incurs as a result of SUPPLIER's failure to obtain sufficient right,
title, and interest in the new name or to ensure that the new name does not
infringe any copyright or Tradename. Further, SUPPLIER's obligations to
indemnify LUCENT under the indemnification provision of Section 24 shall apply
to new names for PRODUCTS to the same degree as they applied to all other
SUPPLIER Tradenames.
28. CONFIDENTIALITY
During the Term of this Agreement, each party shall have access to
"Confidential Information" of the other. For purposes hereof, "Confidential
Information" shall mean all trade secrets, know-how, source code, and other
proprietary information regarding the PRODUCT, as well as all materials, data,
systems, procedures, financial information, customers, vendors, suppliers,
strategies and other business and technical information of the other which is
not readily accessible or otherwise known to the general public, and which, if
in written, graphic, physical or machine readable form, is appropriately labeled
as Confidential Information, or, if disclosed orally, is identified by the
disclosing party at the time of such disclosure as Confidential Information and
the disclosing party provides the recipient with written confirmation within
thirty (30) days thereafter referencing the
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date of disclosure and describing the information so disclosed as Confident
Information. Without limiting the Generality of the foregoing, all information
heretofore disclosed and designated Confidential shall be deemed Confidential
Information hereunder and hereafter subject to the restrictions imposed hereby.
Except as expressly permitted by the terms of this Agreement, neither party
hereto shall, during the term of this Agreement or thereafter, use, publish or
divulge the other party's Confidential Information without the written consent
of the other. The foregoing prohibition on disclosure shall not, however,
preclude either party from disclosing Confidential Information of the other to
their employees as long as the Confidential Information is used solely in
furtherance of this Agreement. In addition to the restrictions and limitations
on disclosure set forth herein, LUCENT and SUPPLIER at all times shall use
reasonable efforts to protect the unauthorized disclosure or use of Confidential
Information, which reasonable efforts shall require at least the same degree of
care in protecting the Confidential Information of the other as used to protect
their own such Confidential Information. The respective obligations of LUCENT
and SUPPLIER regarding Confidential Information shall not apply to such
Confidential Information which the recipient can show: (1) was already known to
the recipient prior to its disclosure; (2) was publicly available at the time of
its disclosure or subsequently has become so without violation by the recipient
of its confidentiality obligations hereunder, (3) was rightfully received from
third parties without obligations of confidentiality to the disclosing party;
(4) was approved in writing by the disclosing party for release by tile
recipient without restriction; (5) was independently developed by the recipient
as as substantiated by appropriate evidence; or (6) was disclosed because of
court order or government regulation, provided that prior to making any such
disclosure pursuant to order or regulation, the recipient shall promptly notify
the disclosing party and, upon the disclosing party's request, the recipient
shall cooperate with the disclosing party in contesting or avoiding such
disclosure at the sole cost and expense of the disclosing party.
From time to time, LUCENT shall be asked by End Users or potential
customers about new or future features, function, capabilities, operating
environments, interfaces, device drivers, servers, and clients associated with
PRODUCT and their scheduled availability in the market. Notwithstanding anything
contained herein to the contrary, LUCENT shall be permitted to disclose such
information even though such information may be deemed Confidential Information.
LUCENT shall disclose such information only when such disclosure is reasonably
intended to further market opportunities for PRODUCT or when responding to
reasonable inquiries from End Users. No prior consent is required by SUPPLIER.
for such disclosure unless such information was originally given to LUCENT by
SUPPLIER with specific prohibitions against such disclosure. Where appropriate,
LUCENT shall disclose such information after the recipient has signed a
Non-Disclosure Agreement covering such information, but LUCENT shall not be in
breach of the Agreement for disclosure of such information in the absence of
such Non-Disclosure
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Agreement.
The terms and conditions of this Agreement are confidential and shall not
be disclosed to third parties, without the written agreement of both parties
hereto, except to the extent required by a court or regulatory agency of
competent Jurisdiction. LUCENT is allowed to mention in its promotional
literature and advertising that the licensed PRODUCT has been provided to LUCENT
by SUPPLIER. SUPPLIER shall not issue or release for publication any articles or
advertising or publicity matter relating to work under this Agreement or
mentioning or implying the name or identification of LUCENT, any of its
Affiliates or any of their respective personnel, unless prior written approval
is granted by LUCENT. The term "identification" includes any trade name,
trademark, service mark, insignia symbol or any simulation thereof.
29. EXPORT
LUCENT shall not export the PRODUCT, or any other information supplied to
LUCENT by SUPPLIER under this Agreement, contrary to the laws of the United
States. SUPPLIER shall not export any LUCENT Information, or any other items
supplied to SUPPLIER under this Agreement by LUCENT, contrary to the laws of the
United States.
30. LUCENT RIGHT TO COMPARABLE PRODUCT
This Agreement does not grant to SUPPLIER any exclusive privileges or
rights related to supplying to LUCENT any products or services comparable to the
PRODUCT, and LUCENT may contract with other manufacturers and suppliers for the
development or procurement of such comparable products and services. This
Agreement does not grant to LUCENT any exclusive privileges or rights related to
licensing the PRODUCT and SUPPLIER may license the PRODUCT to third parties.
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31. NOTICES AND REQUESTS
Any notice or request which, under the terms of this Agreement or under
any statute, must or may be given or made by SUPPLIER or LUCENT shall be in
writing and shall be given or made by telegram or similar communication or by
certified or registered mail addressed to the respective parties as follows:
To: Lucent Technologies Inc.
211 Mt. Airy Rd.
Room 2E404
Basking Ridge, New Jersey 07920
Attn: Bill Riley
and, if the notice relates in any way to an alleged breach of this Agreement,
to:
Hal Bretan, Esq.
Lucent Technologies Inc.
219 Mt. Airy Road
Room 2F224
Basking Ridge, NJ 07920
To: SUPPLIER:
Nabnasset Corporation
15 Craig Road
Acton, MA 01720
Attn: Chief Executive Officer
and, if the notice relates in any way to an alleged breach of this Agreement, to
the aforementioned address with a copy to:
John T. Lynch, Esq.
Davis, Malm & D'Agostine, P. C.
One Boston Place
Boston, MA 02108
Such notice or demand shall be deemed to have been given or made when sent
by telegram or other communication or when deposited, postage prepaid in the
U.S. mail.
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The above addresses may be changed at any time by giving prior written notice
as above provided.
32. CONTROLLING LAW
The construction, interpretation and performance of this Agreement and all
transactions under it shall be governed by the laws of the State of New Jersey,
excluding its choice of law rules, and SUPPLIER further consents to jurisdiction
by the state and federal courts sitting in the State of New Jersey and any court
wherein an action is commenced against LUCENT based on a claim for which
SUPPLIER had indemnified LUCENT under this Agreement. Process may be served on
SUPPLIER by U.S. Mail, postage prepaid, certified or registered, return receipt
requested, or by such other method as is authorized by law.
33. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between LUCENT and
SUPPLIER with respect to the subject matter hereof and shall not be amended or
modified without specific written provision to that effect, signed by the
parties. No oral statement, prior written correspondence, prior dealings, any
prior communication, or any understandings of any nature of or by any person
whomsoever shall, in any manner or degree, modify or otherwise affect the terms
and provisions of this Agreement. Additional or different terms inserted in this
Agreement by either party, or deletions thereto, whether by alterations,
addenda, or otherwise, shall be of no force and effect, unless expressly
consented to by the other party in writing.
34. DISPUTE RESOLUTION
If a dispute arises out of or relates to this Agreement, or its breach,
and said dispute cannot be resolved through direct negotiations between the
parties, the parties agree to submit the dispute to non-binding mediation by a
sole mediator selected by the parties or, in the absence of an agreement on a
mediator, by the American Arbitration Association ("AAA"). If not thus resolved
by the parties within thirty (30) days of the onset of mediation, the parties
shall submit the dispute to binding arbitration by the AAA, which arbitration
shall be governed by the United States Arbitration Act, and judgment on the
award may be entered in any court having jurisdiction. The arbitrator may not
limit, expand, or otherwise modify the terms of this Agreement, nor may the
arbitrator award punitive damages. The parties, their representatives and
witnesses, and the mediator
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and/or arbitrator shall hold the existence, content, and result of mediation and
arbitration in confidence.
35. GENERAL
If any of the provisions of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate or
render unenforceable the entire Agreement, but rather the entire Agreement shall
be construed as if not containing the particular invalid or unenforceable
provision or provisions, and the rights and obligations of SUPPLIER and LUCENT
shall be construed and enforced accordingly.
Subject to limitations set forth in this Agreement, this Agreement will
inure to the benefit of and be binding upon the parties, their successors,
administrators, heirs and assigns.
36. FORCE MAJEURE
The obligations of LUCENT and SUPPLIER under this Agreement shall be
temporarily suspended in the event of strikes, riots, war, invasion, fire,
explosion, accident, delays in carriers, acts of God and all other delays beyond
the obligated party's reasonable control, and any failure to perform by that
party as a result of any such interference or interruption shall not be deemed a
default. Performance may be suspended for the period of any such delay. The
party whose performance is suspended shall notify in writing the other party
within fifteen (15) days of such suspension. In the event that the performance
by one party is delayed by at least sixty (60) days for any reason contemplated
in this Article, the other party may elect to terminate this Agreement on
written notice.
37. AGREEMENT TITLE AND ARTICLE HEADINGS
The title and Article headings of this Agreement are inserted for
convenience only and are not intended to affect the meaning or interpretation of
this Agreement.
38. IMPLEADER
SUPPLIER shall not implead or bring an action against LUCENT and its
customers or the employees of either, based on any claim by any person for
personal injury or death that occurs in the course or scope of employment of
such person by LUCENT and its customers and that arises out of PRODUCT or
services furnished by SUPPLIER under this Agreement.
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39. EXCLUSION OF LICENSES
No licenses, express or implied, under any patents or copyrights are
granted by LUCENT to SUPPLIER under this Agreement.
40. NON-WAIVER
No course of dealing or failure of either party to strictly enforce any
term, right or condition of this Agreement shall be construed as a waiver of
such term, right or condition.
41. INSURANCE AND LIABILITY
SUPPLIER shall maintain and cause SUPPLIER's subcontractors to maintain
during the term of this Agreement: (1) Workers' Compensation insurance as
prescribed by the law of the state or nation in which the work is performed, (2)
employer's liability insurance with limits of at least $300,000 each occurrence,
and (3) comprehensive automobile liability insurance if the use of motor
vehicles is required, with limits of at least $1,000,000 for bodily injury and
property damage for each occurrence and (4) Comprehensive General Liability
(CGL) insurance, including Blanket Contractual Liability, and Broad Form
Property damage, with limits of at least $1,000,000 combined single limit for
personal injury and property damage for each occurrence, and (5) if the
furnishing to LUCENT (by sale or otherwise) of products or material is involved,
CGL insurance endorsed to include products liability and completed operations
coverage in the amount of $5,000,000 for each occurrence. All CGL insurance
shall designate LUCENT as an additional insured. All such insurance must be
primary and required to respond and pay prior to any other available coverage.
SUPPLIER agrees that SUPPLIER, SUPPLIER's insurer(s) and anyone claiming
by, through, under or in SUPPLIER's behalf shall have no claim, right of action
or right of subrogation against LUCENT and its customers based on any loss or
liability insured against under the foregoing insurance. SUPPLIER and SUPPLIER's
subcontractors shall furnish prior to the start of work certificates or adequate
proof of the foregoing insurance, including copies of the endorsements and
insurance policies. Such insurance policies or endorsements shall provide that
LUCENT be notified in writing at least thirty (30) days prior to cancellation of
or any change in the policy.
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All persons furnished by SUPPLIER shall be considered solely SUPPLIER's
employees or agents, and SUPPLIER shall be responsible for payment of all
unemployment, social security and other payroll taxes, including contributions
from them when required by law. SUPPLIER agrees to indemnify and save harmless
LUCENT, its affiliates and its customers and their officers, directors,
employees, successors and assigns (all hereinafter referred to as LUCENT) from
and against any losses, damages, claims, demands, suits, liabilities and
expenses (including reasonable attorney's fees) that arise out of or result
from: (1) injuries or death to persons or damage to property, including theft,
in any way arising out of or occasioned by, caused or alleged to have been
caused by or on account of the performance of the work or services performed by
SUPPLIER or person furnished by SUPPLIER, (2) assertions under Worker's
Compensation or similar acts made by persons furnished by SUPPLIER or by a
subcontractor, or by reason of any injuries to such persons for which LUCENT
would be responsible under Worker's Compensation or similar acts if the persons
were employed by LUCENT, or (3) any failure by SUPPLIER to perform SUPPLIER's
obligations under this Article. SUPPLIER agrees to defend LUCENT at LUCENT
request, against any such claim, demand or suit. LUCENT agrees to notify
SUPPLIER within a reasonable time of any written claims or demands against
SUPPLIER for which SUPPLIER is responsible under this Article.
42. COMPLIANCE WITH LAWS
SUPPLIER and all persons furnished by SUPPLIER shall comply with the Fair
Labor Standards Act and the Occupational Safety and Health Act and all other
federal, state, and local laws, ordinances, regulations and codes, including
identification and procurement of required permits, certificates, approvals and
inspections, in performance under this Agreement. SUPPLIER agrees to indemnify
LUCENT and its End Users any loss or damage that may be sustained by reason of
any failure to do so. LUCENT and all persons furnished by LUCENT shall comply
with the Fair Labor Standards Act and the Occupational Safety and Health Act and
all other federal, state, and local laws, ordinances, regulations and codes,
including identification and procurement of required permits, certificates,
approvals and inspections, in performance under this Agreement. LUCENT agrees to
indemnify SUPPLIER from any loss or damage that may be sustained by reason of
any failure to do so.
43. RELEASES VOID
Neither party shall require waivers or releases of any personal rights
from representatives or customers of the other in connection with visits to its
premises and both
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parties agree that no such releases or waivers shall be pleaded by them or third
persons in any action or proceeding.
44. PLANT RULES AND GOVERNMENT CLEARANCE
All persons furnished by SUPPLIER shall, while on the premises of LUCENT
and End Users, comply with all plant rules and regulations and, required by
government regulations, submit satisfactory clearance from the U.S. Department
of Defense and other federal authorities concerned. All persons furnished by
LUCENT shall, while on the premises of SUPPLIER comply with all plant rules and
regulations and, required by government regulations, submit satisfactory
clearance from the U.S. Department of Defense and other federal authorities
concerned.
45. SURVIVAL OF OBLIGATIONS
Both parties acknowledge and agree that the obligations set forth herein,
which by their nature are intended to survive, including but not limited to the
Articles entitled: DELIVERABLES, USE OF INFORMATION, WARRANTY, INDEMNIFICATION,
COMPLIANCE WITH LAWS, and INSURANCE AND LIABILITY, CONTROLLING LAW, GENERAL,
RELEASES VOID, ESCROW AGREEMENT and TERM, TERMINATION AND DEFAULT shall survive
expiration or termination of this Agreement.
46. HARDWARE AND SOFTWARE DEVELOPMENT ASSISTANCE
The parties have agreed that in furtherance of this Agreement it may
become necessary for LUCENT to provide SUPPLIER direct access to LUCENT's
hardware and software. Based upon this understanding, the parties have agreed to
either execute a mutually satisfactory addendum to this Agreement which must be
executed by both parties or a mutually satisfactory separate agreement to
address various issues which arise because of such arrangement, including
without limitation, the cost of hardware, software and support of such LUCENT
equipment to SUPPLIER.
47. EXHIBITS INCORPORATED
Exhibits A through F and Attachment 1 are included herein and made a part
hereof.
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IN WITNESS WHEREOF, the parties have executed this Software Distribution
Agreement between Lucent Technologies Inc. and Nabnasset Corporation. All signed
copies of this Agreement shall be deemed originals.
Lucent Technologies Inc. Nabnasset Corporation
Dated: May 5, 1991 Dated: May 2, 1997
----------------------------- -----------------------------
By: [Signature Illegible] By: DUNCAN I. MACKAY
-------------------------------- --------------------------------
Name (Print): [Illegible] Name (Print): Duncan I. MacKay
---------------------- ----------------------
Title: Vice President Sales and Title: Executive Vice President
Service
----------------------------- -----------------------------
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EXHIBIT A
PRODUCT TO BE DELIVERED BY SUPPLIER
Unless otherwise specified herein, all capitalized terms used in this Exhibit
shall have the same meaning as described in the Agreement.
1. DEFINITIONS
PRODUCT
The term PRODUCT as used herein shall mean the most current version of
SUPPLIER'S software PRODUCTs currently known as Voice Enhanced Service Platform
(VESP(R)) and its components: Core (VDU Server, ORB Server, Directory Server,
History Server and Alarm Server), WAN, Multi-Wan, Telephony, IVR, Web,
Management Console (ManCon), Report, Path (includes Scripter and CQS), Recall,
Agent, Desk-Link (help desk module) and Test-Link (Hammer integration module)
together with all related documentation, and internal databases, made
commercially available by SUPPLIER to its customers, or distributors and shall
also include any New Modules made available by SUPPLIER.
The parties agree that Releases and New Modules which are released by the
SUPPLIER shall be incorporated into and made part of the pricing tables
included in Exhibit B.
If at any time SUPPLIER changes the name of the PRODUCT or any of its
components, the new name or names shall be substituted in this Agreement and
will include all functionality as referenced herein.
VESP(R) is a registered trademark of SUPPLIER.
2. DELIVERABLE ITEMS
For each PRODUCT provided to LUCENT by SUPPLIER under this Agreement, SUPPLIER
shall furnish:
(i) Object Code on the appropriate media (3 copies);
(ii) all printed Documentation applicable to (i) (3 copies);
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Note: At the recipient's option, Documentation may be sent electronically via a
file transfer from SUPPLIER.
(iii) training per Exhibit C;
(iv) Technical Support per Exhibit D; and
(v) Demonstration Copies including sample integrations
3. ACCEPTANCE
The PRODUCE will be deemed accepted by LUCENT if the PRODUCT functions and
performs substantially in accordance with the Documentation and specifications
at the time of installation. Acceptance and/or rejection of the PRODUCT shall
be documented as described in Section 15, "Acceptance" of the Agreement.
4. PERFORMANCE OF THE PRODUCT
PRODUCT performance will be established by LUCENT upon installation and
implementation of PRODUCT by LUCENT and verification that the PRODUCT performs
substantially in accordance with the Documentation.
5. INSTALLATION REQUIREMENTS
All steps required for installation shall be clearly documented in the
Installation Chapter of the user Documentation or an accessible README file
provided with the PRODUCT.
All new Releases and/or New Modules when loaded will modify only files,
directories and databases which are part of the PRODUCT. The PRODUCT operates
with two (2) fixed format databases that do not change from Release and as a
result, the End-User's business data should not be impacted by a new Release
and/or New Module since the End User's applications accesses such business data
from an End User's customized server. The End User should always verify their
business data after the installation of any such Release and/or New Module.
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6. ON LINE ASSISTANCE FEATURES
An on line help command shall be provided in addition to a README file for the
initial copy of the PRODUCT and all new releases and enhancements. These files
shall contain:
o Installation requirements
o General description of the application
o Known caveats
o Compatibility requirements
o Release changes (what's new in this release)
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EXHIBIT B
PAYMENT SCHEDULE
Unless otherwise specified herein, all capitalized terms used in this Exhibit
shall have the same meanings as described in the Agreement.
LUCENT will take orders for the PRODUCT, replicate and package the PRODUCT,
bill End Users and make payments of the License Fees to SUPPLIER on a
quarterly basis in accordance with the schedules set forth in the following
tables. [*]
[*}
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
1B
42
[*]
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
2B
43
[*]
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
3B
44
[*]
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
4B
45
MAINTENANCE PRICING
Within [*] days from the end of each quarter, SUPPLIER will send
payment to LUCENT equal to the percentage specified as commission associated
with SUPPLIER's Maintenance Agreements sold by Lucent during the quarter.
Unless otherwise specified by LUCENT, SUPPLIER shall send payment to the
address stated in the "Notices" section of the Agreement.
SUPPLIER's Maintenance Agreement shall be sold by LUCENT according to the
following Table**
- ------------------------------------------------------------------------------------
Term of Maintenance Agreement (years) 1 2 3 4 5
Commission [*] [*] [*] [*] [*]
Maintenance price to End User** [*] [*] [*] [*] [*]
- ------------------------------------------------------------------------------------
[*]
[*]
[*]
*** Maintenance Pricing shall be adjusted in accordance with the provisions of
Section 12 of this Agreement.
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
5B
46
In the event an End User that is not under warranty or a Maintenance Agreement
wishes to license Minor Releases and/or Maintenance Releases made available by
SUPPLIER, such End User may license such Minor Releases and/or Maintenance
Releases on a time and materials basis at the then current SUPPLIER prices for
such Minor Release and/or Maintenance Releases. In the event an End User wishes
to license Minor Releases and/or Maintenance Releases from LUCENT, such End
User shall be able to do so. SUPPLIER and LUCENT agree to negotiate a
reasonable fee to be paid to SUPPLIER by LUCENT for the license of such Minor
Releases and/or Maintenance Releases.
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EXHIBIT C
TRAINING DELIVERABLES
SUPPLIER, subject to the terms and conditions contained herein, shall make
training available to LUCENT at no charge. All capitalized terms used herein
shall have the same meaning as described in the Agreement.
DOMESTIC
1. Services Support and Implementation Training
Support training is intended to prepare LUCENT's technical staff to support
questions from End Users on the PRODUCT, including diagnosis of problems,
design, implementation and debugging of routing scripts, how to use reporting
tools and details of the PRODUCT's interaction with different ACD, Dialer, CTI
and VRU systems. Training should address all of the information made available
under End User training and include specific materials, such as the answers to
the most frequently asked questions by End Users directed to End User Support.
Implementation training will prepare LUCENT's Technologies Professional
Services Consultants to design, configure, install, test, customize, integrate,
and administer all components of the PRODUCT. Consultants need to be capable of
supporting pre-sale configuration of the PRODUCT and responding to detailed
customer issues, loading the PRODUCT on End User's Personal Computers and other
computers, Installing PRODUCT at the End User's sites linking Dialer, CTI, ACD
and VRU elements of the call center and training End Users in the use of the
PRODUCT. The training will also provide Lucent personnel an understanding of
call flow and script development.
In order to provide the highest level of technical and implementation support,
upon LUCENT's request, SUPPLIER shall allow LUCENT personnel to complete an
"internship" on-site with SUPPLIER to learn firsthand about the PRODUCT. Any and
all travel and expenses of LUCENT's personnel shall be the responsibility of
LUCENT.
LUCENT shall be allowed to train up to 50 students over the initial term of
this Agreement. In the event that LUCENT desires to train personnel in excess of
50 students as specified herein, training shall be charged to LUCENT at
SUPPLIER's then current rates. LUCENT shall divide this training allowance
between domestic and international audiences.
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SUPPLIER may also provide an optional "train the trainer" program to allow
LUCENT to educate personnel about the PRODUCT who in turn will train other
personnel of LUCENT to support the PRODUCT or act as a End User interface for
trouble calls. Travel and expenses shall be borne by either LUCENT or SUPPLIER
as appropriate.
SUPPLIER will provide timely training on Releases and new elements of the
PRODUCT as they become available in order for LUCENT personnel to maintain
knowledge of the then current PRODUCT.
2. Sales Training
This training is intended to prepare the LUCENT Sales Channel in the operation,
configuration and sale of the PRODUCT and sale of Maintenance Agreements.
SUPPLIER shall conduct one course annually in a one day session at multiple
locations designed to familiarize the Sales Channel with the PRODUCT, to enable
the Sales Channel to identify and qualify potential End Users, and to describe
benefits and competitive advantages of PRODUCT to the potential End Users. The
parties shall mutually agree to the frequency of the sessions, number of
attendees and the locations for such training. If additional sessions in excess
of the agreed frequency are requested by LUCENT, the parties shall agree to a
fee for such sessions.
SUPPLIER will provide an annual in depth training course to develop a select
group of sales individuals to be able to design, configure and sell SUPPLIER's
PRODUCT. In the alternative, SUPPLIER may train one Lucent employee on changes
to the PRODUCT who can then train additional LUCENT sales staff.
SUPPLIER will provide its sales tools and product information to allow sales
personnel to design and configure and price a solution for the End User.
3. End User Training
If requested, SUPPLIER will provide training classes to End Users at SUPPLIER's
current rates, including reasonable travel and expenses.
SUPPLIER will provide reproducible training materials and instruction so that
LUCENT may, at its option, conduct End User training courses.
At LUCENT's request, SUPPLIER shall also provide an optional "train the
trainer" program to allow LUCENT to be able to conduct training sessions that
will educate its personnel about the
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EXHIBIT D
TECHNICAL SUPPORT
Unless otherwise specified herein, all defined terms used in this Exhibit shall
have the same meanings as described in the Agreement.
This Exhibit applies to Support to be provided by SUPPLIER during the Warranty
period as defined in the Agreement and during the term of any Maintenance
Agreement between an End User and SUPPLIER.
SUPPLIER acknowledges and agrees that LUCENT is currently assessing its role in
the provision of Support for the PRODUCT to its End Users. As part of the
initial implementation of this Agreement, SUPPLIER shall provide Support to all
End Users during the warranty period and during the term of a Maintenance
Agreement between SUPPLIER and the End User.
SUPPLIER agrees to provide LUCENT's End Users that purchase a Maintenance
Agreement Support in accordance with the terms and conditions contained in
SUPPLIER's Maintenance Agreement including customer support Monday through
Friday, 8:00 AM 5:00 PM eastern standard time, excluding SUPPLIER's company
holidays. Extended Support is available from SUPPLIER and shall be negotiated
by the parties.
SUPPLIER agrees to commence negotiation of the transition of maintenance
programs for the PRODUCT to LUCENT within 270 days from the effective date of
this Agreement if LUCENT so requests. Such transition may include the
provision of Level 1 and/or Level 2 support as defined below directly to the End
User. Level 1 and Level 2 are defined as:
Level 1: Initial and primary contact for the End User. Able to understand
and discuss and diagnose PRODUCT modules, components. Provide known and easily
remedied problems. Forward calls which are considered more difficult to a
senior technical support team member.
Level 2: Provide problem isolation, gather appropriate documentation,
perform problem recreation, search problem databases, provide a work-around
solution. Forward calls which are considered more difficult to Supplier for
further diagnosis and problem resolution.
On a case-by case basis, if SUPPLIER and LUCENT agree to establish a
prime/subcontractor relationship for the provision of Support to an End User,
pricing for such prime/subcontractor relationship shall be mutually agreed
between the parties.
1D
50
EXHIBIT E
SUPPLIER'S EXISTING CUSTOMERS
[*]
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
51
POTENTIAL SUPPLIER END USERS
[*]
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
52
EXHIBIT F
VOICE ENHANCED SOFTWARE PLATFORM (VESP)
SOFTWARE LICENSE AGREEMENT
This Agreement made as of the _____ day of _______, 199__, between NABNASSET
CORPORATION, a Massachusetts corporation with a usual place of business located
at 15 Craig Road, Acton, MA 01720 ("Nabnasset"), and _______________________,
a corporation with a usual place of business situated at ____________________,
______________________ ("Licensee").
In consideration of the mutual covenants contained herein, the parties
agree as follows:
1. LICENSE GRANT
Subject to the terms and conditions of this Agreement, NABNASSET hereby grants
to Licensee, and Licensee accepts, a non-transferable, non-assignable and
non-exclusive license to use the Licensed Software (as defined below) provided
by Nabnasset at the Designated Sites (as defined below) and in the
configuration listed on Schedule A hereto.
Subject to the rights granted to Licensee pursuant to this Agreement, all
right, title, and interest in and to the Licensed Software, Program
Documentation, Confidential Information and all related materials are and
shall at all times remain the sole and exclusive property of Nabnasset.
Nabnasset may use, sell, assign, transfer, and license copies of and rights
relating to the Licensed Software to third parties free from any claim or
interference by Licensee.
Licensee shall not modify, enhance or otherwise change or supplement the
Licensed Software without the prior written consent on Nabnasset. Licensee
agrees that a modification or enhancement to the Licensed Software developed by
Licensee, whether or not authorized by this Agreement, or by Nabnasset for
Licensee, whether or not reimbursed by Licensee, shall be the exclusive
property of Nabnasset. The modified or enhanced version of the Licensed
Software shall not constitute computer software or a computer program different
from the Licensed Software and as such, is encompassed by the terms and
conditions of this Agreement.
2. DEFINITIONS
As used in this Agreement the following words shall mean:
CALL CENTER APPLICATIONS means the internal Use by Licensee of the Licensed
Software in a Workstation at a Designated Site for Use by Licensee to
coordinate computerized data with voice data.
DESIGNATED SITES means locations of Licensee which have workstations and which
are listed in Schedule A hereto which shall be updated quarterly by Licensee.
LICENSE FEES means the consideration set forth in Schedule B hereto to be paid
to Licensee by Nabnasset with respect to the Licensed Software.
Nabnasset Confidential
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53
Licensee shall not cause or permit display, loan, publication, transfer or
possession (whether by sale, exchange, gift, operation of law or otherwise),
sublicensing or other dissemination of the Licensed Software or Program
Documentation, in whole or in part, to any third party without the prior
written consent of Nabnasset.
The rights of Licensee under this Agreement to use the Licensed Software shall
not be assigned or sublicensed by Licensee to any third party without the prior
written consent of Nabnasset.
4. CONFIDENTIALITY
Licensee hereby acknowledges that (i) the Licensed Software contains and is
comprised of trade secrets, know-how and other confidential information of
Nabnasset which constitutes and shall be treated as the confidential property
of Nabnasset (the "Confidential Information"): (ii) this Agreement grants
Licensee no title to or rights of ownership in the Licensed Software or any
component thereof; (iii) Licensee shall keep in confidence all Confidential
Information with respect to the Licensed Software and shall exercise all
reasonable care to safeguard the confidentiality of the Licensed Software and
(iv) neither the Licensed Software nor any component thereof shall be
duplicated or reproduced except as explicitly permitted hereunder without the
prior written consent of Nabnasset.
Notwithstanding the foregoing, Confidential Information shall not include any
information which (i) is or becomes part of the public domain through no act or
omission on the part of the Licensee, (ii) is in the possession of Licensee, as
evidenced by a writing, without actual or constructive knowledge of an
obligation of confidentiality with respect thereto, at or prior to the time of
disclosure under this Agreement; (iii) is released from confidential treatment
by written consent of the disclosing party; (iv) is disclosed to Licensee by a
third party with the legal right to make such disclosure.
All forms of the Licensed Software (including, but not limited to, storage
units, magnetic media containers and/or printed listings) and all media used
with the Licensed Software and all modifications thereto by Licensee, shall
bear an appropriate copyright and proprietary notice in a form reasonably
specified by Nabnasset. Licensing of the Licensed Software is not intended as
an admission, nor should it be deemed to create a presumption, that publication
of such materials has occurred.
Licensee acknowledges that unauthorized use or any use not authorized hereby,
disclosure or transfer of the Confidential Information will: (i) substantially
diminish the value of the trade secrets and other Confidential Information of
Nabnasset; (ii) render the remedy at law of Nabnasset for such unauthorized
use, disclosure or transfer inadequate; and (iii) cause irreparable harm to
Nabnasset. Nabnasset shall be entitled to injunctive relief to protect the
interests of Nabnasset herein, including but not limited to preliminary and
permanent injunctive relief.
It is expressly understood by Licensee that the obligations of Licensee under
this Section 4 shall survive the termination of this Agreement.
5. TERM
The license granted under this Agreement shall be in effect from the date of
this Agreement and shall remain in effect for ten (10) years or until sooner
terminated in accordance with the provisions hereof. This Agreement shall be
automatically extended for one five (5) year period unless Licensee gives
written notice of termination to Nabnasset no less than six (6) months prior
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to the expiration of the initial term of this Agreement. All terms and
conditions of this Agreement shall apply during the extended term.
6. DELIVERY AND INSTALLATION
One copy of the Master Copy and one copy of the Program Documentation shall be
delivered to Licensee on the date hereof unless a later date is mutually agreed
upon. Nabnasset assumes the risk of loss to the Licensed Software until
delivered to Licensee. Thereafter, the risk of loss or damage to the Licensed
Software (except for replacement of defective items, pursuant to the applicable
warranties herein or in the Maintenance Agreement, if any) shall be upon
Licensee. Licensee shall be solely responsible for the selection, installation,
management, and control of the utilization of the Licensed Software. Licensee
shall be solely responsible for making copies of and installation of the
Licensed Software at Workstations.
7. PERFORMANCE WARRANTIES
Nabnasset hereby represents and warrants that the Licensed Software will, at
the time of shipment, substantially conform to the Program documentation
provided by Nabnasset when given normal, proper, and intended Use. Nabnasset
shall have no obligation to make repairs or replacements to the Licensed
Software to the extent any damage, defect, malfunction, error, or loss in, to,
or out of the Licensed Software results in whole or in part from catastrophe,
fault, or negligence of Licensee, or from improper or unauthorized Use of the
Licensed Software, or use of the Licensed Software in a manner for which the
Licensed Software was not designed, or by causes external to the Licensed
Software such as but not limited to power failure or electric power surges.
Nabnasset will replace any Licensed Software storage media which is defective
upon request by Licensee made within thirty (30) days after shipment of the
Licensed Software and upon return of the original storage media containing the
Licensed Software. The sole remedy of the Licensee for defects in the media
shall be the repair or replacement of the defective media.
This warranty shall not be applicable in the event that any modifications to
the Licensed Software or its storage media are made by Licensee or its
employees, agents or contractors without the prior written consent of Nabnasset.
8. DISCLAIMER OF IMPLIED WARRANTIES
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS
EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE CONCERNING
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9. LIMITATION OF DAMAGES
LIABILITY OF NABNASSET FOR ANY CAUSE OF ACTION WHATSOEVER, INCLUDING LIABILITY
FOR ANY CLAIM OF INFRINGEMENT FOR PROPRIETARY RIGHTS, SHALL NOT EXCEED THE
TOTAL AMOUNT OF LICENSE FEES THEN PAID TO DATE BY LICENSEE FOR LICENSED
SOFTWARE. IN NO EVENT SHALL NABNASSET BE LIABLE FOR LOSS OF DATA, LOST PROFITS
OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OF LICENSEE UNDER ANY
CIRCUMSTANCES WHATSOEVER.
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10. LICENSE FEES
In consideration of the license rights granted to Licensee pursuant to this
Agreement. Licensee shall pay Nabnasset the License Fees and any additional
expenses, including but not limited to travel, subsistence, and other
reasonable documented expenses incurred by Nabnasset, in the amounts and at the
times set forth on Schedule B hereto. Nabnasset reserves the right to invoice
any such "out of pocket expenses" on a separate invoice. All payments are due
to Nabnasset thirty (30) days from the receipt of invoice.
Any License Fee or other amount not timely paid hereunder shall bear interest
at the rate of one and one half percent (1.5%) per month (or such lesser amount
as may be the maximum amount allowed by law) for each month or portion thereof
during which such fees or amounts are not paid. All amounts payable pursuant to
this Agreement are exclusive of all federal, state, local, municipal, or other
excise, sales, use, property, or similar taxes and fees (but not any income
tax or any tax on or measured by income), now in force or enacted in the
future, and all such taxes and fees shall be paid by Licensee. Licensee shall
obtain and provide to Nabnasset any certificate of exemption or similar
document required to exempt any transaction under this Agreement from sales
tax, use tax, or other tax liability.
11. MAINTENANCE AND TRAINING
Simultaneously with the execution of this Agreement, Licensee may enter into a
Maintenance Agreement with Nabnasset. Upon shipment of the Licensed Software
and the execution of the Maintenance Agreement. Licensee shall be provided by
Nabnasset any and all released updates, maintenance, and support of the
Licensed Software pursuant to the terms of Nabnasset's Maintenance Agreement.
In no event shall Nabnasset be under any obligation to revise or update the
Licensed Software or to maintain or support the Licensed Software in the event
of a termination of the Maintenance Agreement unless Licensee agrees to obtain
such update or support in a time and materials basis.
Upon the request of Licensee, Nabnasset will provide programming, project
management, consulting, and other related services at its then current
published hourly rates. The scope and charges for such services will be
specified in a mutually satisfactory task order, which task order shall become
effective upon acceptance and execution by Licensee and Nabnasset.
12. INFRINGEMENT
If a third party claims that the Licensed Software infringes any United States
patent or copyright, Nabnasset will, provided that Licensee is not in default
hereunder, defend Licensee against such claim at the expense of Nabnasset and
Nabnasset will pay all damages that a court of competent jurisdiction awards,
provided that Licensee promptly notifies Nabnasset in writing of the claim, and
allows Nabnasset to control, and cooperates with Nabnasset in, the defense of
any such claim or any related settlement negotiations. In all events any
settlement of such claim must be approved in writing by Nabnasset. If such a
claim is made or appears possible, Nabnasset may, at its option, secure for
Licensee the right of Licensee to continue to Use the Licensed Software, modify
or replace the Licensed Software in order that the Licensed Software is no
longer infringing, or, if neither of the foregoing alternatives is possible in
the judgment of Nabnasset, require Licensee to return the Licensed Software for
a credit equal to the portion of previously paid Licensee Fees allocable to
the remainder of the term hereof. Nabnasset has no obligation with respect to
any claim caused by modifications made by, or at the request of, Licensee to
the Licensed Software and in accordance with specifications or designs of
Licensee, modifications to the Licensed Software not authorized by Nabnasset,
improper Use, or any utilization by Licensee which would constitute a default
hereunder.
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THIS SECTION SETS FORTH THE ENTIRE OBLIGATION OF NABNASSET WITH RESPECT TO ANY
CLAIM OF INFRINGEMENT
13. DEFAULT AND TERMINATION
Either party may terminate this Agreement upon any breach of or default under
this Agreement by the other party. The nonbreaching party may give notice of
such breach or default to the breaching party and, with the exception of
nonpayment provided for in Section 10, unless such breach shall be cured within
thirty (30) days after delivery of such notice, then without limitation of any
other remedy available hereunder, the nonbreaching party may terminate this
Agreement forthwith by delivery of a notice of termination at anytime
thereafter and before such breach or default has been cured.
If Licensee fails to pay the License Fees, any maintenance fees, taxes, duties,
or other amounts due within ten (10) days after written notice from Nabnasset
then, at the option of Nabnasset, this Agreement and all licenses hereunder
shall terminate upon the date thereafter specified in the written notice from
Nabnasset to Licensee.
If Licensee shall fail in any respect to comply with the requirement set forth
in Section 4 above, Nabnasset may terminate this Agreement and all licenses
hereunder immediately upon written notice delivered to Licensee.
If either party files a petition under any chapter of the Bankruptcy Code as
amended or for the appointment of a receiver, or if an involuntary petition in
bankruptcy is filed against such party and said petition is not discharged
within thirty (30) days, or if either party shall become insolvent or make a
general assignment for the benefit of its creditors, or if the business or
property of either party shall come into the possession of its creditors or of
a governmental agency or of a receiver, or if any preceding supplementary to
judgment shall be commenced against either party, or any judgment against
either party, not fully bonded, shall remain unpaid in whole or in part for at
least thirty (30) days after entry thereof, then in any case, the other party
may at its option terminate this Agreement.
Upon expiration or earlier termination of this Agreement, Licensee shall, at the
request of Nabnasset (i) return to Nabnasset the Master Copy and all existing
copies of the Licensed Software, Program Documentation and any related material
or (ii) furnish to Nabnasset evidence satisfactory to Nabnasset that the Master
Copy and all copies of the Licensed Software, Program Documentation, and any
related material have been destroyed.
14. DISPUTES
If any claim or dispute between Nabnasset and Licensee arising out of or
related to this Agreement is not resolved through good faith negotiations
between Licensee and Nabnasset, Licensee and Nabnasset shall submit the claim
or dispute to binding arbitration before a single arbitrator knowledgeable in
the telecommunications and software licensing fields or in commercial matters
as agreed upon by the parties, or if the parties cannot agree upon an
arbitrator within thirty (30) days, an arbitrator appointed by the American
Arbitrator Association. The arbitration shall be conducted in the Commonwealth
of Massachusetts, and the arbitration shall be conducted under the rules then
prevailing of the American Arbitration Association. The arbitrator may award
attorney's fees and costs as part of his award; however, such arbitrator shall
not have the right to award punitive damages as part of any such award not have
the authority to modify or
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If to Licensee to:
-------------------------------------
-------------------------------------
-------------------------------------
ATTENTION:
---------------------------
or such other address as shall be specified by like notice. Any notice that is
delivered personally in the manner provided herein shall be deemed to have been
duly given to the party to whom it is directed upon actual receipt by such
party. Any notice that is addressed and mailed, postage prepaid, in the manner
herein provided shall be conclusively presumed to have been duly given to the
party to which it is addressed at the close of business, local time of the
recipient, on the fourth business day after the day it is so placed in the
mail. Any notice sent by overnight mail service will be presumed to have been
duly given to the party on the next subsequent day after such overnight mail is
sent.
Governing Law: This Agreement shall be construed in accordance with and
governed by the laws of the Commonwealth of Massachusetts and shall take effect
as a sealed instrument.
Severability: In the event that any provision herein shall be deemed invalid or
unenforceable; the other provisions hereof shall remain in full force and
effect and binding upon the parties hereto.
Force Majeure: Nabnasset shall not be responsible or liable for, or deemed in
breach hereof because of any delay in the performance of its obligations
hereunder to the extent caused by circumstances beyond its control, without its
fault or negligence and that could not have been prevented by the exercise of
due diligence, including but not limited to fire, flood, explosion, war,
strike, embargo, government requirement, civil or military authority, acts of
God, or similar circumstances beyond its control.
IN WITNESS WHEREOF, Nabnasset and Licensee have caused this Agreement to be
executed as of the date first written above by their respective duly authorized
officers.
NABNASSET CORPORATION __________________________
By: By:
--------------------------- ---------------------------
Title: Title:
--------------------------- ---------------------------
Date: Date:
--------------------------- ---------------------------
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SCHEDULE A
DESIGNATED SITE(S)
The Licensed Software is to for use at the following site(s):
LICENSEE CONFIGURATION
The configuration at the above site is as follows:
Switch:
VRU:
Desktop:
Server
Database:
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SCHEDULE C
The Right to Use Software License for Nabnasset's Voice Enhanced Service
Platform Programs (VESP Programs) is provided to Licensee in the configuration
detailed in Schedule A.
The following VESP server components are licensed for use depending upon
services purchased:
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ATTACHMENT 1
PREFERRED REGISTRATION
TECHNOLOGY ESCROW AGREEMENT
Account Number 1401056-00001-1221012
This Agreement is effective May 14, 1997, among Data Securities International,
Inc. ("DSI"), Nabnasset Corporation ("Depositor") and Lucent Technologies Inc.
("Preferred Registrant"), who collectively may be referred to in this Agreement
as "the parties".
A. Depositor and Preferred Registrant have entered or will enter into a
license agreement, development agreement, and/or other agreement regarding
certain proprietary technology of Depositor. To distinguish from this
Agreement, the other agreement(s) will be referred to as "the license
agreement."
B. Depositor desires to avoid disclosure of its proprietary technology except
under certain limited circumstances.
C. The availability of the proprietary technology of Depositor is critical to
Preferred Registrant in the conduct of its business and, therefore, Preferred
Registrant needs access to the proprietary technology under limited
circumstances.
D. Depositor and Preferred Registrant desire to establish an escrow with DSI
to provide for the retention, administration and controlled access of the
proprietary technology materials of Depositor.
E. The parties desire this Agreement to be supplementary to the license
agreement pursuant to 11 United States [Bankruptcy] Code, Section 365(n).
ARTICLE 1 -- DEPOSITS
1.1 Obligation to Make Deposit. Upon the signing of this Agreement by the
parties, Depositor shall deliver to DSI the proprietary information and other
materials ("deposit materials") required to be deposited by the license
agreement or, if the license agreement does not identify the materials to be
deposited with DSI, then such materials will be identified on an Exhibit A. If
Exhibit A is applicable, it is to be prepared and signed by Depositor and
Preferred Registrant. DSI shall have no obligation with respect to the
preparation, signing or delivery of Exhibit A.
1.2 Identification of Tangible Media. Prior to the delivery of the deposit
materials to DSI, Depositor shall conspicuously label for identification each
document, magnetic tape, disk, or other tangible media upon which the deposit
materials are written or stored. Additionally, Depositor shall complete an
Exhibit B to list each such tangible media by the item label description, the
type of media and the quantity. The Exhibit B must be signed by Depositor and
delivered to DSI with the deposit materials. Unless and until Depositor makes
the initial deposit with DSI, DSI shall have no obligation with respect to this
Agreement, except the
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obligation to notify the parties regarding the status of the deposit account as
required in Section 2.2 below.
1.3 Deposit Inspection. When DSI receives the deposit materials and the
Exhibit B. DSI will conduct a deposit inspection by visually matching the
labeling of the tangible media containing the deposit materials to the item
descriptions and quantity listed on the Exhibit B. In addition to the deposit
inspection, Preferred Registrant may elect to cause a verification of the
deposit materials in accordance with Section 1.6 below.
1.4 Acceptance of Deposit. At completion of the deposit inspection, if DSI
determines that the labeling of the tangible media matches the item
descriptions and quantity on Exhibit B, DSI will sign the Exhibit B and mail a
copy thereof to Depositor and Preferred Registrant. If DSI determines the
labeling does not match the item descriptions or quantity on the Exhibit B, DSI
will (a) note the discrepancies in writing on the Exhibit B; (b) sign the
Exhibit B with the exceptions noted; and (c) provide a copy of the Exhibit B to
Depositor and Preferred Registrant. DSI's acceptance of the deposit occurs upon
the signing of the Exhibit B by DSI. Delivery of the signed Exhibit B to
Preferred Registrant is Preferred Registrant's notice that the deposit
materials have been received and accepted by DSI.
1.5 Depositor's Representations. Depositor represents as follows:
a. Depositor lawfully possesses all of the deposit materials deposited
with DSI;
b. With respect to all of the deposit materials, Depositor has the right
and authority to grant to DSI and Preferred Registrant the rights as
provided in this Agreement;
c. The deposit materials consist of proprietary information and other
materials identified either in the license agreement or Exhibit A, as
the case may be.
1.6 Verification. Preferred Registrant shall have the right, at Preferred
Registrant's expense, to cause a verification of any deposit materials. A
verification determines, in different levels of detail, the accuracy,
completeness, sufficiency and quality of the deposit materials. If a
verification is elected after the deposit materials have been delivered to DSI,
then only DSI, or at DSI's election an independent person or company selected
and supervised by DSI, may perform the verification.
1.7 Deposit Updates. Unless otherwise provided by the license agreement,
Depositor shall update the deposit materials within 60 days of each release of
a new version of the product which is subject to the license agreement. Such
updates will be added to the existing deposit. All deposit updates shall be
listed on a new Exhibit B and the new Exhibit B shall be signed by Depositor.
The processing of all deposit updates shall be in accordance with Sections 1.2
through 1.6 above. All references in this Agreement to the deposit materials
shall include the initial deposit materials and any updates.
1.8 Removal of Deposit Materials. The deposit materials may be removed and/or
exchanged only on written instructions signed by Depositor and Preferred
Registrant, or as otherwise provided in this Agreement.
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ARTICLE 2 -- CONFIDENTIALITY AND RECORD KEEPING
2.1 Confidentiality. DSI shall maintain the deposit materials in a secure,
environmentally safe, locked receptacle which is accessible only to authorized
employees of DSI. DSI shall have the obligation to reasonably protect the
confidentiality of the deposit materials. Except as provided in this Agreement,
DSI shall not disclose, transfer, make available, or use the deposit materials.
DSI shall not disclose the content of this Agreement to any third party. If DSI
receives a subpoena or other order of a court or other judicial tribunal
pertaining to the disclosure or release of the deposit materials, DSI will
immediately notify the parties to this Agreement. It shall be the
responsibility of Depositor and/or Preferred Registrant to challenge any such
order; provided, however, that DSI does not waive its rights to present its
position with respect to any such order. DSI will not be required to disobey
any court or other judicial tribunal order. (See Section 7.5 below for notices
of requested orders.)
2.2 Status Reports. DSI will issue to Depositor and Preferred Registrant a
report profiling the account history at least semi-annually. DSI may provide
copies of the account history pertaining to this Agreement upon the request of
any party to this Agreement.
2.3 Audit Rights. During the term of this Agreement, Depositor and Preferred
Registrant shall each have the right to inspect the written records of DSI
pertaining to this Agreement. Any inspection shall be held during normal
business hours and following reasonable prior notice.
ARTICLE 3 -- GRANT OF RIGHTS TO DSI
3.1 Title to Media. Depositor hereby transfer to DSI the title to the media
upon which the proprietary information and materials are written or stored.
However, this transfer does not include the ownership of the proprietary
information and materials contained on the media such as any copyright, trade
secret, patent or other intellectual property rights.
3.2 Right to Make Copies. DSI shall have the right to make copies of the
deposit materials as reasonably necessary to perform this Agreement and shall
provide written notice to Depositor of each such copy made. DSI shall copy all
copyright, nondisclosure, and other proprietary notices and titles contained on
the original deposit materials onto any copies made by DSI.
3.3 Right to Sublicense Upon Release. As of the effective date of this
Agreement, Depositor hereby grants to DSI a non-exclusive, irrevocable,
perpetual, and royalty-free license to sublicense the deposit materials to
Preferred Registrant upon the release, if any, of the deposit materials in
accordance with Section 4.5 below. Except upon such a release, DSI shall not
sublicense or otherwise transfer the deposit materials.
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ARTICLE 4 -- RELEASE OF DEPOSIT
4.1 Release Conditions. As used in this Agreement, "Release Conditions" shall
mean the following:
a. The occurrence and continuance of a material breach by the Depositor,
or any successor of the Depositor, of the obligation of the Depositor
to satisfy the maintenance and support obligations of the Depositor
with respect to the Deposit Material being licensed by the Preferred
Registrant, from the Depositor pursuant to the License Agreement,
provided that, such breach is not waived by the Preferred Registrant
or is not cured by Depositor within thirty (30) days of written notice
from Preferred Registrant to Depositor; or
b. Depositor's failure to continue to do business in the ordinary course;
or
c. The filing by Depositor of a petition for protection under the
Bankruptcy Code of the United States, or an involuntary petition which
is not dismissed within ninety (90) days.
4.2 Filing For Release. If Preferred Registrant believes in good faith that a
Release Condition has occurred, Preferred Registrant may provide to DSI written
notice of the occurrence of the Release Condition and a request for the release
of the deposit materials. Upon receipt of such notice, DSI shall provide a copy
of the notice to Depositor, by certified mail, return receipt requested, or by
Federal Express or equivalent.
4.3 Contrary Instructions. From the date DSI mails the notice requesting
release of the deposit materials, Depositor shall have ten business days to
deliver to DSI Contrary Instructions. "Contrary Instructions" shall mean the
written representation by Depositor that a Release Condition has not occurred
or has been cured. Upon receipt of Contrary Instructions, DSI shall send a copy
to Preferred Registrant by registered or certified mail, return receipt
requested, or by Federal Express or equivalent. Additionally, DSI shall notify
both Depositor and Preferred Registrant that there is a dispute to be resolved
pursuant to the Dispute Resolution section of this Agreement. Subject to
Section 5.2, DSI will continue to store the deposit materials without release
pending (a) joint instructions from Depositor and Preferred Registrant, (b)
resolution pursuant to the Dispute Resolution provisions, or (c) order of a
court.
4.4 Release of Deposit. If DSI does not receive Contrary Instructions from
the Depositor, DSI is authorized to release the deposit materials to the
Preferred Registrant or, if more than one registrant is registered to the
deposit, to release a copy of the deposit materials to the Preferred
Registrant. However, DSI is entitled to receive any fees due DSI before making
the release. This Agreement will terminate upon the release of the deposit
materials held by DSI.
4.5 Use License Following Release. Unless otherwise provided in the license
agreement, upon release of the deposit materials in accordance with this Article
4, Preferred Registrant shall have a non-exclusive, non-transferrable,
irrevocable right to use the deposit materials for the sole purpose of
continuing the benefits afforded to Preferred Registrant by the license
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agreement. Preferred Registrant shall be obligated to maintain the
confidentiality of the released deposit materials.
ARTICLE 5 -- TERM AND TERMINATION
5.1 Term of Agreement. The initial term of this Agreement is for a period of
one year. Thereafter, this Agreement shall automatically renew from year-to-year
unless (a) Depositor and Preferred Registrant jointly instruct DSI in writing at
any time after one year that the Agreement is terminated; or (b) the Agreement
is terminated by DSI for nonpayment in accordance with Section 5.2. If the
deposit materials are subject to another escrow agreement with DSI, DSI reserves
the right, after the initial one year term, to adjust the anniversary date of
this Agreement to match the then prevailing anniversary date of such other
escrow arrangements.
5.2 Termination for Nonpayment. In the event of the nonpayment of fees owed to
DSI, DSI shall provide written notice of delinquency to all parties to this
Agreement. Any party to this Agreement shall have the right to make the payment
to DSI to cure the default. If the past-due payment is not received in full by
DSI within one month of the date of such notice, then DSI shall have the right
to terminate this Agreement any time thereafter by sending written notice of
termination to all parties. DSI shall have no obligation to take any other
action under this agreement so long as any payment due to DSI remains unpaid.
5.3 Disposition of Deposit Materials Upon Termination. Upon any termination of
this Agreement by joint instruction of Depositor and Preferred registrant, DSI
shall destroy, return, or otherwise deliver the deposit materials in accordance
with such instructions. Upon any termination for nonpayment, DSI may, at its
sole discretion, destroy the deposit materials or return them to Depositor. DSI
shall have no obligation to return or destroy the deposit materials if the
deposit materials are subject to another escrow agreement with DSI.
5.4 Survival of Terms Following Termination. Upon any termination of this
Agreement, the following provisions of this Agreement shall survive:
a. Depositor's representations (Section 1.5).
b. The obligations of confidentiality with respect to the deposit
materials.
c. The licenses granted in the sections entitled right to Sublicense Upon
Release (Section 3.3) and Use License Following Release (Section 4.5),
if a release of the deposit materials has occurred prior to
termination.
d. The obligation to pay DSI any fees and expenses due.
e. The provisions of Article 7.
f. Any provisions in this Agreement which specifically state they survive
the termination or expiration of this Agreement.
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ARTICLE 6 -- DSI'S FEES
6.1 Fee Schedule. DSI is entitled to be paid its standard fees and expenses
applicable to the services provided. DSI shall notify the parties at least 90
days prior to any increase in fees. For any service not listed on DSI's
standard fee schedule, DSI will provide a quote prior to rendering the service,
if requested.
6.2 Payment Terms. DSI shall not be required to perform any service unless the
payment for such service and any outstanding balances owed to DSI are paid in
full. All other fees are due upon receipt of invoice. If invoiced fees are not
paid, DSI may terminate this Agreement in accordance with Section 5.2. Late
fees on past due amounts shall accrue at the rate of one and one-half percent
per month (18% per annum) from the date of the invoice.
ARTICLE 7 -- LIABILITY AND DISPUTES
7.1 Right to Reply on Instructions. DSI may act in reliance upon any
instruction, instrument, or signature reasonably believed by DSI to be genuine.
DSI may assume that any employee of a party to this Agreement who gives any
written notice, request, or instruction has the authority to do so. DSI shall
not be responsible for failure to act as a result of causes beyond the
reasonable control of DSI.
7.2 Indemnification. DSI shall perform its obligations under this Agreement
in a reasonable and prudent manner. Provided DSI is not in breach of its
obligations under the terms of this Agreement, the Depositor or Preferred
Registrant (the "Indemnifying Party") each agree to indemnify, defend and hold
harmless DSI from any and all claims, actions, damages, arbitration fees and
expenses, costs, attorneys' fees and other liabilities incurred by DSI.
7.3 Dispute Resolution. Any dispute relating to or arising from this
Agreement shall be resolved by arbitration under the Commercial Rules of the
American Arbitration Association by a single arbitrator knowledgeable in
computer systems. No punitive, exemplary, consequential or special damages
shall be awarded. Unless otherwise agreed by Depositor and Preferred Registrant,
arbitration will take place in San Diego, California, U.S.A. Any court having
jurisdiction over the matter may enter judgment on the award of the
arbitrator(s). Service of a petition to confirm the arbitration award may be
made by First Class mail or by Federal Express or equivalent, to the attorney
for the party or, if unrepresented, to the party at the last known business
address.
7.4 Controlling Law. This Agreement is to be governed and construed in
accordance with the laws of the state of California, without regard to its
conflict of law provisions.
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7.5 Notice of Requested Order. If any party intends to obtain an order from the
arbitrator or any court of competent jurisdiction which may direct DSI to take,
or refrain from taking any action, that party shall:
a. Give DSI at least two business days' prior notice of the hearing;
b. Include in any such order that, as a precondition to DSI's obligation,
DSI be paid in full for any past due fees and be paid for the
reasonable value of the services to be rendered pursuant to such
order; and
c. Ensure that DSI not be required to deliver the original (as opposed to
a copy) of the deposit materials if DSI may need to retain the
original in its possession to fulfill any of its other escrow duties.
ARTICLE 8 -- GENERAL PROVISIONS
8.1 Entire Agreement. This Agreement, which includes the Exhibits described
herein, embodies the entire understanding between all of the parties with
respect to its subject matter and supersedes all previous communications,
representations or understandings, either oral or written. No amendment or
modification of this Agreement shall be valid or binding unless signed by all
the parties hereto, except Exhibit A need not be signed by DSI and Exhibit B
need not be signed by Preferred Registrant.
8.2 Notices. All notices, invoices, payments, deposits and other documents and
communications shall be given to the parties at the addresses specified in the
attached Exhibit C. It shall be the responsibility of the parties to notify each
other as provided in this Section in the event of a change of address. The
parties shall have the right to rely on the last known address of the other
parties. Unless otherwise provided in this Agreement, all documents and
communications may be delivered by First Class Mail.
8.3 Severability. In the event any provision of this Agreement is found to be
invalid, voidable or unenforceable, the parties agree that unless it materially
affects the entire intent and purpose of this Agreement, such invalidity,
voidability or unenforceability shall affect neither the validity of this
Agreement nor the remaining provisions herein, and the provision in question
shall be deemed to be replaced with a valid and enforceable provision most
closely reflecting the intent and purpose of the original provision.
Page 7
67
8.4 Successors. This Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the parties. However, DSI shall have
no obligation in performing this Agreement to recognize any successor of
Depositor or Preferred Registrant unless DSI receives clear, authoritative and
conclusive written evidence of the change of parties.
Nabnasset Corporation Lucent Technologies Inc.
- --------------------- ------------------------
Depositor Preferred Registrant
By: /s/ DUNCAN I. MACKAY By: /s/ CHARLES KNOPF
----------------------- ------------------------
Name: Duncan I. Mackay Name: Charles Knopf
Title: Executive Vice President Title: Relationship Manager
------------------------ ------------------------
Date: May 2nd, 1997 Date: May 5, 1997
------------------- --------------------
Data Securities International, Inc.
By: /s/ KATHLEEN M. CUMMINS
-------------------------
Name: Kathleen M. Cummins
Title: Contract Administrator
----------------------
Date: 5/14/97
-------------------
Page 8
68
EXHIBIT A
MATERIALS TO BE DEPOSITED
Account Number ________________________
Depositor represents to Preferred Registrant that Deposit Materials delivered
to DSI shall consist of the following:
VESP Source Code
Nabnasset Corporation Lucent Technologies Inc.
- --------------------- ------------------------
Depositor Preferred Registrant
By: /s/ DUNCAN I. MACKAY By: /s/ CHARLES KNOPF
----------------------- ------------------------
Name: Duncan I. Mackay Name: Charles Knopf
Title: Executive Vice President Title: Relationship Manager
------------------------ --------------------
Date: May 2nd, 1997 Date: May 5, 1997
------------------- --------------------
Page 9
69
Date:___________________
EXHIBIT B
DESCRIPTION OF DEPOSIT MATERIALS
Account Number_________________________________________________________________
Depositor Company Name_________________________________________________________
DEPOSIT TYPE: ____________________ Initial _______________ Supplemental
ENVIRONMENT:
Host System CPU/OS_________________ Version___________________ Backup _________
Source System CPU/OS_________________ Version_________________ Compiler _______
Special Instructions: _________________________________________________________
DEPOSIT COPYING REQUIREMENT:
Hardware needed:________________________________________________________________
Software needed/Instructions:___________________________________________________
DEPOSIT MATERIALS:
Exhibit B Name__________________________________________ Version _______________
Item label description Media Quantity
For Depositor, I certify that the above For DSI, I certify that the deposit
described deposit materials have been inspection has been completed
transmitted to DSI: (any exceptions are noted above):
By_____________________________________ By_________________________________
Print Name_____________________________ Print Name_________________________
Date___________________________________ Date of Acceptance_________________
ISE______EX. B# ___________________
Page 10
70
EXHIBIT C
DESIGNATED CONTACT
Account Number 1401056-00001-1221012
Notices, Deposit Material returns and
communication, including delinquencies Invoices to Depositor should be
to Depositor should be addressed to: addressed to:
Company Name: Nabnasset Corporation
--------------------- -------------------------------
Address: 15 Craig Road
--------------------- -------------------------------
Acton, MA 01720
--------------------- -------------------------------
--------------------- -------------------------------
Designated Contact: Contact:
---------------- -------------------------------
Telephone: (508) 787-2800
--------------------------------------------------------------
Facsimile: (508) 787-2834
--------------------------------------------------------------
State of Incorporation:
----------------------------------------------------
Notices and communications, including Invoices to Preferred Registrant
delinquencies to Preferred Registrant should be addressed to:
should be addressed to:
Company Name: Lucent Technologies Inc.
-------------------------------------------------------------
Address: 211 Mt. Airy Road
-------------------------------------------------------------
Basking Ridge NJ 07920
-------------------------------------------------------------
Room 26468
-------------------------------------------------------------
Designated Contact: Charles Knopf Contact: William Riley
-------------------- ----------------------
Telephone: 908 953 7037 908 953 8594
-------------------- -------------------------------
Facsimile: 908 953 2486 908 953 2486
-------------------- -------------------------------
Requests from Depositor or Preferred Registrant to change the Designated
Contact should be given in writing by the Designated Contact or an authorized
employee of Depositor or Preferred Registrant.
Invoice Inquiries and fee
Contracts, Deposit Material and notices remittances to DSI should be
to DSI should be addressed to: addressed to:
DSI DSI
Contract Administration Accounts Receivable
Suite 200 Suite 1450
9555 Chesapeake Drive 425 California Street
San Diego, CA 92123 San Francisco, CA 94104
Telephone: (619) 694-1900 (415) 398-7900
Facsimile: (619) 694-1919 (415) 398-7914
Date: 5-14-97
-------------------
Page 11
71
AMENDMENT NO. 1
TO THE
SOFTWARE DISTRIBUTORSHIP AGREEMENT
BETWEEN
LUCENT TECHNOLOGIES INC. ("LUCENT")
AND
NABNASSET CORPORATION ("SUPPLIER")
WHEREAS, the parties entered into a Software Distributorship Agreement
("Agreement") dated May 5, 1997; and
WHEREAS, the parties have identified additional pricing information to be added
to Exhibit B attached to and incorporated into the Agreement; and
WHEREAS, the parties have agreed to replace Exhibit B in its entirety to
address such missing information;
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
LUCENT and SUPPLIER hereby mutually agree as follows:
1. Exhibit B of the Agreement is deleted in its entirety and replaced it
with Exhibit B(1), dated June 19, 1997 as attached hereto.
In all other respects, the Agreement dated May 5, 1997 remains unchanged.
ACCEPTED AND AGREED:
LUCENT TECHNOLOGIES INC. NABNASSET CORPORATION
By: /s/ CHARLES KNOPF /s/ DUNCAN I. MACKAY
------------------------ ---------------------------
Printed: Charles Knopf Printed: Duncan I. Mackay
------------------ ------------------
Title: Relationship Manager Title: EVP Field Operations
--------------------- --------------------
Date: 6/20/97 Date: 6/20/97
--------------------- --------------------
72
EXHIBIT B(1)
PAYMENT SCHEDULE
Unless otherwise specified herein, all capitalized terms used in this Exhibit
shall have the same meanings as described in the Agreement.
[*]
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
1B
Revised 06/20/97
73
[*]
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
2B
Revised 06/20/97
74
[*]
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
3B
Revised 06/20/97
75
[*]
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
4B
Revised 06/20/97
76
[*]
MAINTENANCE PRICING
[*]
SUPPLIER's Maintenance Agreement shall be sold by LUCENT according to the
following Table**:
- -------------------------------------------------------------------------
Term of Maintenance Agreement (years) 1 2 3 4 5 6
Commission [*] [*] [*] [*] [*] [*]
Maintenance price to End User** [*] [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------
[*]
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
5B
Revised 06/20/97
77
[*]
***Maintenance Pricing shall be adjusted in accordance with the provisions
of Section 12 of this Agreement.
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
78
For Maintenance Services on a 7X24 basis, the following surcharge percentages
shall be added to the above Maintenance fees:
- -------------------------------------------------------------------------
Term of Agreement (years) [*] [*] [*] [*] [*] [*]
Surcharge [*] [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------
In the event an End User that is not under warranty or a Maintenance Agreement
wishes to license Minor Releases and/or Maintenance Releases made available by
SUPPLIER, such End User may license such Minor Releases and/or Maintenance
Releases on a time and materials basis at the then current SUPPLIER prices for
such Minor Release and/or Maintenance Releases. In the event an End User wishes
to license Minor Releases and/or Maintenance Releases from LUCENT, such End
User shall be able to do so. SUPPLIER and LUCENT agree to negotiate a
reasonable fee to be paid to SUPPLIER by LUCENT for the license of such Minor
Releases and or Maintenance Releases.
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
7B
79
AMENDMENT NO. 2
TO THE
SOFTWARE DISTRIBUTORSHIP AGREEMENT
BETWEEN
LUCENT TECHNOLOGIES INC. ("LUCENT")
AND
NABNASSET CORPORATION ("SUPPLIER")
WHEREAS, the parties entered into a Software Distributorship Agreement
("Agreement") dated May 5, 1997; and
WHEREAS, the parties have identified additional pricing information to be added
to Exhibit B attached to and incorporated into the Agreement; and
WHEREAS, the parties have agreed to replace Exhibit B in its entirety to
address such missing information;
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
LUCENT and SUPPLIER hereby mutually agree as follows:
1. Exhibit B of the Agreement is deleted in its entirety and replaced it
with Exhibit B(2), dated August 27, 1997 as attached hereto.
In all other respects, the Agreement dated May 5, 1997 remains unchanged.
ACCEPTED AND AGREED:
LUCENT TECHNOLOGIES INC. NABNASSET CORPORATION
By: /s/ CHARLES KNOPF By: /s/ DUNCAN I. MACKAY
------------------------- --------------------------
Printed: Charles Knopf Printed: Duncan I. Mackay
-------------------- ---------------------
Title: Relationship Manager Title: EVP Field Operations
-------------------- ---------------------
Date: 9/2/97 Date: 9/5/97
----------------------- ------------------------
80
EXHIBIT B(2)
PAYMENT SCHEDULE
Unless otherwise specified herein, all capitalized terms used in this Exhibit
shall have the same meanings as described in the Agreement.
[*]
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
1B
Revised 08/27/97
81
[*]
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
2B
Revised 08/27/97
82
[*]
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
3B
83
[*]
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
4B
84
[*]
Should the parties identify an opportunity for a site and/or corporate license
which requires the establishment of a specific License Fee, the parties shall
negotiate such specific Licence Fee, negotiate the percentage that each party
shall receive for the licensing of the PRODUCT and negotiate the proportion of
the License Fee that shall accumulate toward the total License Fees payable to
SUPPLIER.
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
5B
85
MAINTENANCE PRICING
Within thirty (30) days from the end of each quarter, SUPPLIER will send
payment to LUCENT equal to the percentage specified as commission associated
with SUPPLIER's Maintenance Agreements sold by Lucent during the quarter.
Unless otherwise specified by LUCENT, SUPPLIER shall send payment to the
address stated in the "Notices" section of the Agreement.
SUPPLIER's Maintenance Agreement shall be sold by LUCENT according to the
following Table**:
- --------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
Term of Maintenance Agreement (years) [*] [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------
Commission [*] [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------
Maintenance price to End User** [*] [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------
[*]
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
6B
86
[*]
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
87
***Maintenance Pricing shall be adjusted in accordance with the provisions of
Section 12 of this Agreement.
For Maintenance Services on a 7X 24 basis, the following surcharge percentages
shall be added to the above Maintenance fees:
- -------------------------------------------------------------------------
Term of Agreement (years) [*] [*] [*] [*] [*] [*]
Surcharge [*] [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------
In the event an End User that is not under warranty or a Maintenance Agreement
wishes to license Minor Releases and/or Maintenance Releases made available by
SUPPLIER, such End User may license such Minor Releases and/or Maintenance
Releases on a time and materials basis at the then current SUPPLIER prices for
such Minor Release and/or Maintenance Releases. In the event an End User wishes
to license Minor Releases and/or Maintenance Releases from LUCENT, such End
User shall be able to do so. SUPPLIER and LUCENT agree to negotiate a
reasonable fee to be paid to SUPPLIER by LUCENT for the license of such Minor
Releases and or Maintenance Releases.
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
8B
88
AMENDMENT NO. 3
TO THE
SOFTWARE DISTRIBUTION AGREEMENT
BETWEEN
LUCENT TECHNOLOGIES INC. ("LUCENT")
AND
NABNASSET CORPORATION ("SUPPLIER")
WHEREAS, the parties entered into a Software Distribution Agreement
("Agreement") dated May 5, 1997 and amended such Agreement June 20, 1997 and
September 5, 1997; and
WHEREAS, the parties have identified additional pricing information to be added,
deleted and modified to Exhibit B attached to and incorporated into the
Agreement; and
WHEREAS, the parties have agreed to replace Exhibit B(2) in its entirety to
address such information;
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
LUCENT and SUPPLIER hereby mutually agree as follows:
1. Exhibit B(2) of the Agreement is deleted in its entirety and replaced
with Exhibit B(3), dated December 15, 1997 as attached hereto.
In all other respects, the Agreement dated May 5, 1997 remains unchanged.
ACCEPTED AND AGREED:
LUCENT TECHNOLOGIES INC. NABNASSET CORPORATION
By: /s/ CHARLES KNOPF By: /s/ DUNCAN I. MACKAY
--------------------------------- -----------------------------------
Printed: Charles Knopf Printed: Duncan I. Mackay
---------------------------- ------------------------------
Title: Business Development Manager Title: Vice President & General Manager
---------------------------- --------------------------------
Date: 12/10/97 Date: 12/15/97
------------------------------ ---------------------------------
1B
Revised 12/15/97
89
EXHIBIT B(3)
PAYMENT SCHEDULE
Unless otherwise specified herein, all capitalized terms used in this Exhibit
shall have the same meanings as described in the Agreement.
[*]
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
2B
Revised 12/15/97
90
[*]
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
3B
91
[*]
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
4B
92
[*]
Should the parties identify an opportunity for a site and/or corporate license
which requires the establishment of a specific License Fee, the parties shall
negotiate such specific License Fee, negotiate the percentage that each party
shall receive for the licensing of the PRODUCT and negotiate the proportion of
the License Fee that shall accumulate toward the total License Fees payable to
SUPPLIER.
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
5B
93
MAINTENANCE PRICING
Within thirty (30) days from the end of each quarter, SUPPLIER will send
payment to LUCENT equal to the percentage specified as commission associated
with SUPPLIER's Maintenance Agreement sold by Lucent during the quarter. Unless
otherwise specified by LUCENT, SUPPLIER shall send payment to the address
stated in the "Notices" section of the Agreement.
SUPPLIER's Maintenance Agreement shall be sold by LUCENT according to the
following Table**:
- -------------------------------------------------------------------------
Term of Maintenance Agreement (years) [*] [*] [*] [*] [*] [*]
Commission [*] [*] [*] [*] [*] [*]
Maintenance price to End User** [*] [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------
[*]
LUCENT shall include a statement in all quotations for multiple year
Maintenance Agreements which states that discounts for multi-year term
Maintenance Agreements as described in the schedule above shall be available to
End Users who agree to be invoiced by and pay in full to SUPPLIER the total
cost of the multi-year term of the Maintenance Agreement prior to the
commencement of services.
Should SUPPLIER and LUCENT identify an opportunity to sell maintenance services
to an End User which requires the establishment of special maintenance pricing
or terms different from those stated in this Section of Exhibit B, the parties
shall negotiate mutually acceptable prices, terms and commissions.
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
6B
94
[*]
[*]
***Maintenance Pricing shall be adjusted in accordance with the provisions of
Section 12 of this Agreement.
For Maintenance Services on a 7x24 basis, the following shall be used in lieu of
the above Maintenance fees:
Term of Agreement (years) 1 2 3 4 5 6
Maintenance Price to End User [*] [*] [*] [*] [*] [*]
Commission [*] [*] [*] [*] [*] [*]
In the event an End User that is not under warranty or a Maintenance Agreement
wishes to license Minor Releases and/or Maintenance Releases made available by
SUPPLIER, such End User may license such Minor Releases and/or Maintenance
Releases on a time and materials basis at the then current SUPPLIER prices for
such Minor Release and/or Maintenance Releases. In the event an End User wishes
to license Minor Releases and/or Maintenance Releases from LUCENT, such End User
shall be able to do so. SUPPLIER and LUCENT agree to negotiate a reasonable fee
to be paid to SUPPLIER by LUCENT for the license of such Minor Releases and/or
Maintenance Releases.
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
7B
Revised 12/15/97
95
AMENDMENT NO. 4
TO THE
SOFTWARE DISTRIBUTION AGREEMENT
BETWEEN
LUCENT TECHNOLOGIES INC. ("LUCENT")
AND
NABNASSET CORPORATION ("SUPPLIER")
WHEREAS, the Lucent Technologies Inc. and Nabnasset Corporation entered into a
Software Distribution Agreement dated May 5, 1997, which was subsequently
amended on June 20, 1997; September 5, 1997; and December 15, 1997
(collectively, the "Agreement"); and
WHEREAS, Quintus Corporation ("Quintus") assumed all of the rights,
obligations, and duties of Nabnasset Corporation pursuant to a letter agreement
dated October 29, 1997; and
WHEREAS, Lucent and Quintus now wish to further amend the Agreement,
specifically related to the provision of services by Quintus to Lucent.
NOW THEREFORE, in consideration of the premises and other good an valuable
consideration, the receipt and sufficiency of which is acknowledged hereby,
Lucent and Quintus hereby mutually agree as follows:
1. The parties hereby change the title of this Agreement to "Software
Distribution Agreement between Lucent Technologies Inc. and Quintus
Corporation." The parties acknowledge that all references to SUPPLIER in the
Agreement are to Quintus Corporation.
2. Exhibit B(3) is hereby modified to delete, in its entirety, the section
entitled Maintenance Pricing and to insert, in its place, a new section
entitled Maintenance Fee, attached hereto as Addition to Exhibit B(3).
3. Exhibit D of the Agreement is hereby deleted in its entirety and replaced
with Exhibit D(1), attached hereto, which Exhibit shall be effective as of the
Effective Date of this Amendment No. 4. Notwithstanding anything contained in
the Agreement to the contrary, all references to a Maintenance Agreement
between the parties in the Agreement shall henceforth refer solely to Exhibit
D(1).
4. Section 20 of the Agreement is hereby amended as follows: The last
sentence in the second paragraph of Section 20 is amended to read, "Should the
original reporting End User wish to receive the bug fix or workaround patch,
SUPPLIER reserves the right to charge Lucent for the reasonable time and
material expended pursuant to Exhibit D(1) (Technical Support) for such
correction if the End User is not under a Maintenance Agreement."
96
5. The Effective Date of this Amendment shall be the later date that either
of the parties executes this Amendment.
In all other respects, the Agreement, as amended, remains unchanged.
ACCEPTED AND AGREED:
LUCENT TECHNOLOGIES INC. QUINTUS CORPORATION
By: /s/ CHARLES KNAPF By: /s/ ROGER A. NUNN
--------------------------------- -----------------------------------
Name: Charles Knapf Name: Roger A. Nunn
------------------------------- ---------------------------------
Title: Business Development Title: Senior VP Sales
------------------------------ --------------------------------
Date: 3/8/99 Date: 3/12/99
------------------------------- ---------------------------------
97
ADDITION TO EXHIBIT B(3)
MAINTENANCE FEE
Within [*] from the end of each calendar month, Lucent shall send SUPPLIER a fee
of [*] per Site per month for those customers who elect to take, through Lucent,
a post-warranty maintenance contract for Quintus Products for work performed
from [*] Monday through Friday. For each customer, this fee will be paid by
Lucent to Quintus monthly beginning at the conclusion of each customer's
warranty period, as set forth in the Distribution Agreement in Section 18A. In
addition, Quintus will be available for out of hours coverage by pager. Lucent
will pay Quintus [*] for work performed outside of Quintus' normal business
hours [*] Monday through Friday). Billing for such out-of-hours work will occur
in 30 minute increments.
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
98
EXHIBIT D(1)
TECHNICAL SUPPORT
This Exhibit applies to support given by SUPPLIER for the PRODUCT.
LUCENT OBLIGATIONS
Lucent is to provide first, second and third level technical support to their
customers and shall be responsible for receiving and responding to all calls
for maintenance and support. Lucent shall be responsible to identify and track
their customers issues. For problems that cannot be resolved by Lucent, Lucent
will escalate the problem to Quintus for fourth level support. Quintus will be
under no obligation to accept any calls from Lucent's customers.
Definition of Levels
o FIRST LEVEL technical problems are usually questions about a Quintus
product that requires an explanation of a feature, function, error message,
installation or system administration. The answers to these questions are
usually found in Quintus product manuals.
o SECOND LEVEL technical problems are usually questions about customization,
recommendations with design, integration, or development. Other second
level problems may require debugging the customers' designs and code.
o THIRD LEVEL technical problems are suspected to be product defects, product
performance issues, or product enhancement requests.
o FOURTH LEVEL technical problems are all Third Level issues which, given
best efforts by Lucent, could not be resolved.
SERVICE CENTER
Lucent will equip, staff and maintain a Quintus CTI-enabled Service Center.
This Service Center will have laboratory environment that will have a dedicated
set of servers, agents, phones, switch(es) and IVRs provided by Lucent.
PAYMENT
Lucent will pay Quintus a fee [*] per Site per month for those customers who
elect to take, through Lucent, a post-warranty maintenance contract for Quintus
Products for work performed from [*] Monday through Friday. For each customer,
this fee will be paid by Lucent to Quintus monthly beginning at the conclusion
of each customer's warranty period, as set forth in the Distribution Agreement
in Section 18A. In addition, Quintus will be available for out of hours coverage
by pager, Lucent will pay Quintus [*] for work performed outside of Quintus'
normal business hours ([*] Monday through Friday). Billing will occur in 30
minute increments. The fee out of hours support will be reviewed annually.
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
99
Definition of Site: Each customer installation of the Quintus Core Services is
considered a separate Site.
In addition, Lucent will pay Quintus the time and expense (T&E) rates in
effect at the time Quintus provides services for those Lucent's customers that
require support but are not under current maintenance contract. These customers
which are not under maintenance contracts will not be entitled to patches or
upgrades.
NOTIFICATION
At least five (5) days prior to the beginning of each month, Lucent will
provide Quintus a list of Lucent's customers who will be entering maintenance
contracts for Quintus products during the upcoming months. Said list will
include the following information:
o Customer name
o Site address(es)
REMOTE ACCESS
During the term of this Agreement Lucent will make a good faith effort to
provide Quintus with remote access to the system(s) upon which the Software is
installed. Such access will be provided upon request by Quintus and will be
continuously available in any period when a problem reported by Lucent to
Quintus remains unresolved. Lucent and Quintus will mutually agree upon the
hardware and software facilities for remote access, and Lucent will make best
efforts to provide such facilities. In the event Lucent fails to provide such
access in a timely manner, Quintus shall not be deemed in breach of this
Agreement due to inability to respond.
QUINTUS OBLIGATIONS
SUPPORT SERVICES DESCRIPTION
Standard Quintus Support Services provides Lucent with fourth level technical
support and consists of the following:
o A toll free Quintus Customer Support Line
o Direct access to a Technical Support Engineer during Quintus business hours
o 24 hours access to Quintus' call tracking system
o 24 hours access to Quintus' call solutions database
o 24 hours access to Quintus' defects database
o Problem Solving
o Problem Tracking
o Bug Reporting
o Clarification of documentation
o Software maintenance releases and updates
o Bug fixes
o Reporting mechanism for Lucent to generate summaries of problems logged
o Priority problem escalation to engineering
100
- - Enhancements and Feature upgrades at no additional charge
Quintus will also make available, at the time and expense rates in effect at
the time Quintus provides services, 24 by 7 on-call pager support for CRITICAL
Priority (Severity Level 4) Problems.
COMMUNICATIONS
This Agreement shall provide technical support access for two (2) named Lucent
contacts that have received appropriate Quintus training. Additional support
contacts may be purchased at the price in effect at the time Lucent requests
the service.
Lucent will notify Quintus of problems via phone calls, emails or direct entry
into the Quintus' Call Tracking System via WebQ. Quintus Technical Support
staff will log and track all Lucent assistance requests and responses in its
database. Lucent may contact Quintus Technical Support staff to track the
progress of their requests during normal Quintus business hours using the call
ID provided at the time the problem is logged. Lucent also has 24-hour WebQ
access to the Quintus Call Tracking System to monitor progress on issues.
Where required for cross-referencing purposes, Lucent may use WebQ annotate the
Quintus call to include the Lucent's ticket number.
SERVICE LEVEL AGREEMENT
DEFINITION
Quintus prioritizes support in relation to the severity of the problem.
Quintus' standard descriptions used to determine the level of support to be
provided are:
- - A CRITICAL Priority (Severity Level 4) Problem is defined as a problem that
causes significant impact to a production system for the majority of agents.
Typical examples would include a production system down condition; when
Quintus Software located on a production system is unusable; is causing data
loss or corruption; or fails catastrophically in response to internal errors,
invalid input or user error. For NABNASSET-CTI Programs, this will only apply
to the server software supplied by Quintus and its connectivity to PC-based
programs. The severity level does not apply to Lucent- or Customer- provided
or installed program(s) affecting individual Quintus PC software
installations.
- - A HIGH Priority (Severity Level 2) Problem is defined as a moderate production
system impact, when important features of the Software do not function in
accordance with the documentation or restricted use of one or more functions.
A problem affecting a Test or Development System, severely affecting the "Go
Live" date is also considered "high." This includes PC-based CTI programs.
- - A MEDIUM Priority (Severity Level 1) Problem is defined as a minor system
impact that restricts the use of features and functionality of the Software. A
problem that
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moderately impacts a Test or Development System or is isolated to a few
agents is also given Medium Priority.
- - A LOW Priority Problem is defined as a "How To" question or Enhancement
request.
RESOLUTION
During the term of this Agreement, Quintus shall use reasonable efforts to
correct or provide workarounds for all reproducible programming Problems in the
Products attributable to Quintus with a level of effort commensurate with the
severity of the Problem or Error.
- - For CRITICAL Priority (Severity Level 4) Problem, Quintus will use
reasonable efforts to respond to Lucent within one (1) hour to determine
the problem. Quintus will work diligently to assist Lucent with the
Critical Priority Problem and will make all reasonable efforts to
reproduce and resolve all issues within twenty-four hours (24) of receipt
of all pertinent information regarding the problem from Lucent. If a
solution or workaround can not be found, or if progress towards problem
resolution is stalled after the twenty-four hour period, the problem is
escalated to Engineering for resolution. The problem is deemed resolved
if a solution or a workaround is provided to Lucent. If the problem is due
to a Quintus product defect, a patch may be provided to Lucent. Quintus
will provide Lucent with four (4) hour updates until problem is resolved.
- - For HIGH Priority (Severity Level 2) Problem, Quintus will use reasonable
efforts to respond to Lucent within four (4) hours to determine the
problem and to make a first attempt at problem reproduction and
resolution. If the first attempt is unsuccessful, Quintus Technical
Support Engineers will provide continuous effort to resolve Lucent issues
for two (2) business days after which time the problem is escalated to
Engineering for assistance. The problem is deemed resolved if a solution
or a workaround is provided to Lucent. Quintus will provide Lucent with
updates twice a week until problem is resolved.
- - For MEDIUM Priority (Severity Level 1) Problem, Quintus will use
reasonable efforts to respond within eight (8) hours to give an
assessment of the problem and a time period in which the problem may be
addressed. A Medium Priority problem is deemed resolved once a solution
is provided, a workaround is provided or a defect identified to be
addressed in the next product update.
- - For LOW Priority Problems Quintus will use reasonable efforts to respond.
Preliminary status will be provided within forty-eight (48) hours.
Resolution time begins when Quintus is notified of the problem and is measured
in Quintus business hours. 24x7 support for Critical Priority problems is
available at additional charge.
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Quintus will provide customer on-site support for Critical (Severity Level 4)
trouble resolution, if deemed necessary by all parties. If Quintus provides
on-site support at the customer's request, Quintus will bill Lucent at then
current time and expense (T&E) rates.
ESCALATION
If during the course of problem resolution Lucent determines that Quintus is
not meeting established goals, Lucent can escalate the problem to the Manager
of Technical Support, then Director of Technical Support, then Vice President
of WorldWide Customer Support Services.
TERMS OF SUPPORT
Maintenance is limited to versions of the Software that are supported by
Quintus and to problems that are reproducible in that version of the Software,
running unaltered on the Designated Computers.
Quintus shall provide technical support for the current version of the
Software. Additionally, Quintus will support the previous sequential release of
the Software for a period of twelve (12) months following the release of a
subsequent version.
Corrections to certain problems may only be available through a future version
of the Software or through a documentation update.
Maintenance services will not be provided if the:
- - Software is not used in accordance with the software license agreement
under which the Software was supplied to Lucent;
- - Software has been altered or modified by Lucent, its Customer or a third
party;
- - Lucent makes significant changes to the hardware and/or software in their
operating environments that are not supported by the Software.
SOFTWARE UPDATE SERVICE
There will be no additional charge for providing new/current releases to
customers with a current Maintenance Contract. Customers under Maintenance
shall receive all generally released enhancements to the Software and all
documentation updates as well as new versions of the Software ("Updates") as
they are made commercially available. This does not include significant changes
in functionality and new releases of the Quintus Software. It will be Lucent's
responsibility to provide their customers with the software updates.
If Lucent requests Quintus support with the installation of new/current
releases, then Quintus will provide support and charge Lucent at the time and
expense (T&E) rates in effect at the time Quintus provides the service.
YEAR 2000 COMPLIANCE
Subject to any hardware limitations with respect to time and date stamps,
Quintus certifies that CustomerQ version 3.3 and higher, HelpQ versions 3.3
and higher,
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CallCenterQ version 4.0 and higher, SalesQ version 4.0 and higher, and Nab CTI
version 3.6 and higher ("Software") are "Year 2000" compliant. "Year 2000"
compliant means that the Software will record, maintain and process accurate
dates for all dates including and following January 1, 2000, including leap
years, provided that all other products used by the Customer in connection or
combination with the Software, including without limitation, hardware, software
and firmware, accurately exchange date data with the Software.
KNOWLEDGE TRANSFER
Quintus will make a good faith effort to provide Lucent with knowledge transfer
on all new Product Releases/Maintenance Releases. This knowledge transfer may
include release notes, invitations to appropriate internal trainings, and ride
alongs on appropriate engagements or presentations.
Quintus will also share access to our Solutions database which contains
frequently asked questions and answers.
CESSATION OF SERVICE
In the event that Quintus ceases to offer maintenance on any Quintus software
licensed by Lucent, or any component thereof used by Lucent, Quintus agrees to
provide Lucent with reasonable notice and options for continued support of the
software on an as needed basis for a period of one (1) year from the date of
cessation of service.
REINSTATEMENT FEES
In the event maintenance is not renewed or was never originally procured; a
reinstatement fee will be assessed. The reinstatement fee is equal to the
maintenance fee for the period in which the Software was not under maintenance
plus [*] of such fee.
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.