Exhibit 10.04
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SPECIAL
SUPPORT SERVICES AGREEMENT
This Special Support Services Agreement shall be effective as of the 1st day of
August, 1997 and is entered into between Davox Corporation, A Delaware
corporation with its principal place of business at 6 Technology Park Drive,
Westford, Massachusetts 01886 ("Davox") and Datapoint (UK) Ltd., a company
organized under the laws of England, with its principal place of business at 400
North Circular Rd., London, NW10 0JG, England ("Datapoint").
WHEREAS, Datapoint is an independent distributor of Davox products to British
Telecommunications plc Direct sales unit ("BT") under a certain and separate
distributor agreement as referenced herein;
WHEREAS, Datapoint has entered into an independent agreement solely between
Datapoint and BT to furnish products from Datapoint and Davox and to provide
support of those products; and
WHEREAS, Datapoint requests that Davox furnish certain technical support as
defined herein to better enable it to support he product furnished to BT;
NOW, THEREFORE, Datapoint and Davox agree as follows:
1. COVERAGE
A. Davox agrees to provide Datapoint and Datapoint agrees to accept from Davox
technical support services, training, consulting services, and spare parts
("Support Services") under the terms and conditions set forth in this
Special Support Services Agreement with respect to support by Datapoint of
the "Direct Sales" unit (aka "BT Direct Sales") of British
Telecommunications Plc, herein referred to as "BT", within the territory of
the United Kingdom ("UK").
B. Support Services are available for the Davox proprietary computer hardware
and peripheral equipment ("Equipment") and Davox computer software
("Software") which collectively comprise a Davox Unison (TM) brand call
management system (each referred to herein as a "System") as made available
to Datapoint under a certain and separate International Distributor
Agreement dated September 8, 1995 (the "Distributor Agreement") as said
Agreement survives to the extent provided under the terms of the Mutual
Early Termination Agreement between the parties dated March 31, 1997 (the
"Termination Agreement"). Equipment eligible for support hereunder does
not include third party hardware products remarketed by Davox, such
products include, but are not limited to Sun Microsystems Computer
Corporation products. The Equipment and Software eligible for inclusion
under this Agreement shall be added as provided in Section 1.C. and 9.A.
C. Datapoint agrees to cover under this Agreement, in accordance with the
terms herein, each Unison (TM) System sold and supported by Datapoint to
BT. New Systems, or additional "Seats" added thereto, will be
automatically be added to this Agreement upon "hand over" of the applicable
System, or add-on Equipment or Software comprising a "Seat", to BT. The
term "hand over" shall be construed to be that point in time when the
System, or add-on Seat, is installed, operates substantially in accordance
with its specifications and made available to BT for confirmation testing
or commercial use. Solely for administrative and invoicing purposes,
Datapoint shall confirm coverage by furnishing a purchase order in
accordance with Section 9A setting forth (i) the Equipment, Software, and
workstations comprising the System and the quantity of each, (ii) the
location of the System, (iii) name of the BT unit, and (iv) the name, phone
number, and e-mail address of a principle contact within Datapoint's
organization responsible for coordinating resolution of potential problems
with the designated System. However, notwithstanding anything herein to
the contrary, the effective date of Technical Support coverage shall
commence upon the hand over date, and the fees associated with Technical
Support shall also commence on said date. Orders for parts and other
Support Services shall be placed by Datapoint in accordance with the
provisions of Section 9 of this Agreement.
D. During the period prior to "hand over" as defined above, the System and
add-on seats shall not be covered by Support Services under this Agreement.
During said period, Datapoint may, at its election, order support on a time
and materials basis at the prices then in effect as set forth in Schedules
I and II of this Agreement. In the event Datapoint orders support on a
time an materials basis, the terms of this Agreement, exclusive of Sections
3, 4, 5, 6, and 7B shall apply. Datapoint shall submit a purchase order
conforming to Section 9, or a written request authorized by Datapoint's BT
account manager, for support ordered on a time and materials basis. Davox
shall have no obligation to support any system or Seat until said purchase
order conforming to this Agreement is received and accepted.
2. SERVICE HOURS
A. Davox shall use its best efforts (alternatively "best endeavors") to
provide Technical Support cover 24 hours, 7 days per week, out of the Davox
Worldwide Support Center in accordance with the terms below. Support
Services are managed from the Davox Worldwide Support Center, located in
Westford, Massachusetts, U.S.A. (the "WSC").
B. General WSC Coverage Hours and Mechanics.
WSC primary support hours are from 7:30 a.m. to midnight, Eastern time,
Monday through Friday and 8:00 a.m. to 5:00 p.m., Eastern time, on
Saturday, excluding Davox holidays ("WSC Standard Hours"). Supplemental
coverage for critical problems will be available between the hours of
midnight and 7:29 a.m., Eastern time, Monday through Friday and 5:01 a.m.
to midnight, Eastern time, Saturday, ("Supplemental WSC Hours"). Datapoint
is required to route all problems, questions and requests for service on
any System through the WSC. During Supplemental WSC Hours, (and any ad hoc
requests
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for service outside WSC Standard Hours and Supplemental WSC Hours)
inquiries for assistance will be handled through Davox third-party
messaging center and relayed to Davox support personnel, until Davox
establishes continuous staffing, excluding Davox holidays, directly in the
WSC. Support during Davox holidays will be handled as follows:
I. For general holidays (all holidays except those in Section B(II) below)
the procedure is as follows:
(a) Davox WSC operates on a reduced staff level; notwithstanding Davox
problem escalation procedures, no representation or commitment is made as
to any response time; and
(b) Calls to the WSC may be handled by an answering service, staff
notified by means of a pager, and Datapoint responded to by means of a
call back procedure.
II. On the holidays of July 4, Thanksgiving day (date varies annually) and
Christmas day (December 25) the procedure is as follows:
(a) Davox WSC operates on a reduced staff level; notwithstanding Davox
escalation procedures, no representation or commitment is made as to any
response time;
(b) Datapoint shall be permitted to contact the WSC solely for calls for
Critical problems; and;
(c) Calls to the WSC will be handled by an answering service, staff
notified by means of a pager, and Datapoint responded to be means of call
back procedure.
Note: Hours are quoted in Eastern time in the United States of America. Davox
holidays vary annually. A copy of the Davox holidays in effect for the
then current year will be furnished upon request.
C. Normal service hours for on-site support, when ordered by Datapoint and
authorized by Davox as provided herein, are 8:30 a.m. to 5:30 p.m. local
time, in the UK, Monday through Friday, excluding Davox holidays ("Normal
Service Hours").
Davox will provide on-site support outside of Normal Service Hours on the
following basis: On-site support outside Normal Service Hours ("Off Hours
Coverage") will be made available, at an additional charge, at Davox then
prevailing rates for time, with a minimum of 4 hours billable. Any such
request for Off Hours Coverage is subject to availability of local
personnel. Off Hours Coverage is not available during Davox local
holidays. Datapoint acknowledges that Davox makes no representation or
commitment that personnel will be available for Off Hours Coverage, and
Davox reserves the right to defer any request for on-site support until
Normal Service Hours during the next immediate local Davox work-day
following the request for on-site support.
3. TECHNICAL SUPPORT
Technical Support ("Technical Support") consists of the program offering set
forth in this Section 3. Datapoint will place an order to establish Technical
Support coverage, per System, as provided in Section 1(C) and Section 9 of this
Agreement.
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A. Datapoint assumes primary responsibility for the diagnosis and resolution
of problems with the System. All requests for support shall originate
solely with Datapoint. Davox will not accept requests for assistance from
BT for services to be delivered by Datapoint, unless such request is
acknowledged by Datapoint.
B. Datapoint, at Datapoint's expense, shall have an appropriate number of
employee(s), to be mutually agreed on by the parties in their reasonable
determination attend such Davox course(s), in the operation and repair of
Davox products consisting of such content as is similar in nature and
extent to that which Davox provides its own support employees as Davox in
its reasonable determination may deem necessary to enable Datapoint to
provide first line support of a quality consistent with that Davox
furnishes its own customers. Therefore, the standard of reasonableness
applicable to training requirements under this clause shall be limited to
requiring that a reasonably adequate number of Datapoint personnel, as
determined above, receive the same or substantially similar training as
that which Davox requires of its own personnel performing similar
functions.
One or more individuals(s) will be designated as a "Support Administrator"
and shall be the primary point of contact with Davox on matters pertaining
to the support of Systems. Datapoint's Support Administrator(s) shall
attend such additional courses as are required, in the reasonable opinion
of Davox, to support the Davox Equipment and Software which Datapoint has
installed or currently offers for sale. Datapoint also agrees that all
Datapoint employees, who are principally engaged in providing support on
Davox products to end user customers of Datapoint, shall receive training
as defined above.
C. Datapoint is responsible for contacting the WSC in the event of problems
with the system. Telephone support and remote diagnosis of problems is
available to Datapoint during WSC Standard Hours and WSC Supplemental
Hours. Upon notification that the System has malfunctioned or is
inoperative, Davox shall take steps to diagnose the cause of such
malfunction or failure to operate. Datapoint shall assist Davox in
diagnosing problems with the System. When in Davox opinion a failure has
occurred with the Equipment, Davox will advise Datapoint, and Datapoint
will replace the filed component with a functioning component from
Datapoint's Spare Parts Kit (refer Section 4, below). When in Davox
opinion there is a malfunction or failure of the Software on the System,
Davox shall correct the malfunction, or furnish a suitable work-around, and
shall furnish said correction or work-around by means of a copy of the
corrected Software on magnetic media or by means of a remote download
whichever in Davox reasonable determination is the most effective.
Datapoint is responsible for installing the corrected Software on the
System.
D. Davox will provide support on up to three (3) calls per 100 seats on
Systems covered under this Agreement per year, for the annual technical
support fee. Additional calls beyond the total of: (three calls times the
total number of seats covered annually, divided by 100), will be invoiced
to Datapoint at Davox then prevailing International Support Time and
Materials rates. Calls for Systems covered for a partial year will be pro-
rated, and added to the total allowable calls included for the annual
support fees paid to Davox.
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However, calls which are determined to be caused by inherent defects in the
Davox provided Equipment and/or Software, such that said Equipment and/or
Software fails to operate in accordance with its Specifications, and which
such defects have been previously un-communicated to Datapoint relative to
diagnosis and avoidance, relief procedure, or resolution, shall not count
toward the allowable number of calls for which support is included in the
basic annual fees under this Agreement.
E. On-site support by Davox personnel may be ordered when necessary. Davox
support personnel will be dispatched on a "first come, first served" basis
subject to availability of personnel and transportation. The price to
Datapoint for on-site support shall be at Davox then prevailing UK
Datapoint daily support rate, for support in the UK. For support in the UK
to be sourced from the U.S., the price shall be the International Daily
Support rate, with labor hours calculated on a portal to portal basis, plus
the reasonable costs of transportation, (which shall be "coach" or like
class unless a higher class is authorized by Datapoint as in an emergency
or where immediate on-site assistance is required and no seat in coach
class is available) meals and lodging (which shall be of average quality
associated with business travel of like kind within the industry generally)
(incurred by Davox support personnel. Davox also agrees to provide, at no
additional cost to Datapoint, on site assistance to Datapoint in resolving
up to one support call per month, using Davox UK based personnel only.
Such on site assistance will be provided subject to availability of
personnel, and will be provided on a best efforts basis once a request for
such assistance is received by Davox through the WSC, or direct to the
Davox Support Services Manager in the UK. If UK based Davox personnel are
not available at the time a request for on site assistance is received from
Datapoint, then Datapoint shall have the option to request US based
personnel to provide such assistance, at the rates and terms provided for
herein.
F. Technical Support to be provided under this Agreement does not include
repair of damage, replacement of parts or increase in support service time
attributable to reasons other than normal wear and tear, including but not
limited to the combination or operation or use of Equipment or Software
with materials not supplied by Davox or for purposes for which the
Equipment, Software or workstation was not designed, unusual physical or
electrical stress, accident, neglect, acts of God, or misuse, abuse, or
modification of the Equipment, Software or workstations by persons other
than Davox unless such modifications have been authorized in writing by
Davox signed by the Vice president of Customer Service expressly amending
this Agreement. In the event Davox reasonably determines that such
approved modifications add to the support requirements associated with the
Equipment or Software or workstation. Davox reserves the right to charge a
premium for said support and will endeavor to quote this additional charge
upon receipt of Datapoint's request for authorization. When support is
required for reasons other than normal wear and tear, support services will
be provided at Davox then prevailing time and material rates and an invoice
issued to Datapoint. If the System has been modified, except as permitted
in the preceding sentence, or if foreign devices have been added to the
System, then Davox may at its option, (i) terminate coverage on the
modified System or (ii) support such modifications and foreign devices at
its then prevailing rates for time
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and material; or (iii) refuse to support the modifications or foreign
devices. Third party hardware, including, but not limited to Sun
Microsystems Computer Corporation products are not eligible for Technical
Support (unless mutually agreed to in writing and set forth in an order for
Technical Support accepted by Davox).
G. Updates and engineering changes will be made to the Software when, in Davox
opinion, such updates and changes are necessary to correct operational
errors or deficiencies in order to conform the Software to Davox published
specifications. Davox may also make changes to the Software to enhance
performance, reliability, or service ability. All updates and changes to
the Software released by Davox shall be deemed "Revisions". Davox shall
provide Datapoint one (1) copy of general Revisions of the Software, upon
release by Davox, Datapoint shall be responsible for installation of all
Revisions. Davox shall be relieved of any liability arising out of errors
or defects in any prior version or Revision of Software twenty-one (21)
days following delivery to Datapoint of the latest Revision. The parties
agree that all of the systems covered by Technical Support shall run
Software at the appropriate Revision level as mutually agreed to from time
to time in writing by the parties, provided that any Revision does not
materially adversely affect the performance of the System in accordance
with Davox published specifications.
H. Davox agrees to provide access to Datapoint to Davox Website, where
Datapoint may elect to log calls for Davox action, to view the status of
Datapoint's open calls with Davox, to view technical documentation, and to
use search capabilities to find information or seek known solutions to
certain problem symptoms.
I. Datapoint agrees to share with Davox selected call data, on a quarterly
basis, for Systems covered under this Agreement. Such data will consist,
at a minimum, of all call incidents per identified system, a description of
each problem reported, and a description of problem resolution actions
taken on each call, as well as summary data on the achievement of targeted
response, relief, and problem resolution time frames by severity category
of problems. Datapoint also agrees to survey BT monthly during the first
year of this agreement, and thereafter quarterly, in a manner to be agreed
between BT, Datapoint, and Davox, in order to assess customer satisfaction
with support services provided, and with personnel delivering such support.
Datapoint agrees to share responses with Davox in a timely manner after
responses are received, and to meet with Davox to agree on appropriate
measures to establish, or increase customer satisfaction with product
effectiveness and support delivery. If BT expresses dissatisfaction with
individual Datapoint support personnel providing services on Unison
Systems, Datapoint agrees to seek Davox assessment of the skills and
capabilities of such personnel, and to take mutually agreed actions as may
be warranted, including additional training or change of assigned
personnel.
J. The Technical Support furnished under this Section 3 shall consist of
technical consultation, diagnosis, replacement of Equipment components
pursuant to clause 3B, and remedial measures, as defined herein, consistent
with restoring the Equipment and/or
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Software to a standard such that it operates in accordance with Davox
published specifications ("Specifications").
4. SPARE PARTS/LOGISTICS
A. As a condition to Davox furnishing Technical Support hereunder, Datapoint
shall purchase appropriate spare parts from Davox. The contents and prices
of Spare Parts Kits are as set forth on Schedule I hereto. The number of
Spare Parts Kits shall coincide with the number of Systems under Technical
Support, in accordance with the matrix in Schedule I.
B. Davox will ship replacement Equipment components to Datapoint, at Davox
expense. Datapoint will return the replacement component to the Spare
Parts Kit. Datapoint shall be responsible for removing the failed
component and installing the functioning component. Datapoint shall return
the failed component to Davox via surface carrier, at Datapoint's expense,
using the packaging and return label provided with the replacement
component. Failed components must be returned to Davox within twenty-one
(21) days of receipt of the replacement component(s) or Datapoint shall be
deemed to have purchased the replacement component(s) at Davox then
prevailing list price for such component and Davox shall issue an invoice
which shall be due in thirty (30) days from the date thereof.
C. When in the course of furnishing Support Services hereunder, the support
calls for Davox to replace a defective or malfunctioning component of the
Equipment and furnish a functioning component, the replacement component
shall become the property of Datapoint, or as applicable, the owner of the
System, and the removed component shall become the property of Davox.
D. Upon the expiration of this Agreement, Davox shall repurchase any spare
parts acquired under this Section 4, then in the possession of Datapoint
acquired for use by and held for BT. Davox shall be permitted to evaluate
the spares parts prior to purchase and those spare parts determined to be
in good working order shall be purchased at a price equal to the price of
the spare parts at cost less 20% annual depreciation measured from the time
of purchase. Datapoint shall provide Davox with a list, annually, of the
spare parts which Datapoint holds for BT and which may in the future
qualify for repurchase.
5. PRODUCT TRAINING AND TRAINING MATERIALS
Product training shall be made available to Datapoint in accordance with the
terms of this Section 5.
A. Datapoint personnel shall be permitted to attend any of Davox then offered
training courses at Davox then prevailing price and scheduled times.
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B. Datapoint may purchase course materials and the license to reproduce and
distribute these materials, under Davox Train the Trainer program, as
outlined in Schedule III.
Unless otherwise agreed in writing by Davox, courses will be taught at Davox
training facility in Westford or Acton, Massachusetts, U.S.A. Datapoint is
responsible for the cost of tuition, transportation, meals and lodging of
Datapoint's personnel attending Davox training courses, other than as provided
for below.
Davox agrees to provide, as a service included with the basic annual fees for
support services under this Agreement (Refer Schedule II (1)), five (5) days of
training per quarter at Datapoint's facilities in the UK. Datapoint agrees to
reimburse Davox for all reasonable travel, lodging, and expenses associated with
providing this training, but shall not be invoiced for tuition or instructor
time associated with this quarterly on-site training. Datapoint shall be
responsible for providing proper and adequate facilities, equipment, and
software installed and configured suitable for the training agreed to be
provided each quarter. Datapoint also agrees to name a contact to serve as
training coordinator with Davox Educational Services to act for Datapoint in
planning and implementing each quarter's training. The training (i.e. course
instruction) under this paragraph shall be deemed to have a pro forma quarterly
fee of $7,500. Datapoint may also elect, at its option, to use the $7500 pro
forma quarterly fee of this on-site training toward tuition fees for Datapoint
employees for courses at Davox training facilities in Acton, Massachusetts,
U.S.A.
6. PRODUCT DOCUMENTATION
Davox shall furnish to Datapoint one (1) copy of Davox standard user
documentation. Any internal support documentation which is provided shall be
deemed to be the confidential and proprietary information of Davox, subject to
Section 15 of this Agreement.
7. SOFTWARE
A. The Software furnished hereunder and any Revisions, modifications or
updates thereto, and the Master Release referenced below are subject to,
and shall be governed by, the terms and conditions of the Datapoint
Agreement, in particular, Section 2(f.) thereof and Schedule V, Software
License, of this Agreement, except that Datapoint shall be permitted to
furnish under sublicense Software provided hereunder, to the extent
authorized herein, to BT under the sublicense terms previously agreed to
between Datapoint and BT as expressly set forth in Schedule VI hereto.
B. Davox will furnish Datapoint one (1) master media (tape) set, as may be in
effect from time to time during the term of this Agreement, (the "Master
Release") containing the following:
a. The then current standard Revision of the commercially most
significant Software including Davox standard Software previously
included in Products furnished under the Datapoint Agreement for
distribution to BT;
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b. Sub-revisions or modifications to the Software referred to in sub-
clause a, above;
c. Code fixes or patches to the Software referred to in the sub-clause a,
above; and
d. A listing of director structure and module revision levels.
The Master Release is the confidential and proprietary information of Davox and
is authorized for use solely by Datapoint on a single system at Datapoint's
central support location. Except as permitted under clause 7A, above, Datapoint
shall not duplicate the Software in whole or in part.
8. TERM
A. This Agreement shall have a term, for a period of five (5) years from the
date first referenced above 1 August 1997, provided that neither party has
terminated for cause.
B. The term of Technical Support for each covered System shall be as follows:
The "Initial Term" shall commence upon Davox written acknowledge that an order
for coverage has been accepted by Davox and shall be for a period of one (1)
year, thereafter renewable annually. Notwithstanding the foregoing, except as
otherwise provided in this clause, either part shall be permitted to terminate
coverage for cause at any time upon thirty (30) days prior written notice to the
other, and should the cause not be extinguished by the 30th day, terminate
forthwith. Notwithstanding the above: (i) should BT terminate for any reason,
Datapoint shall be permitted to terminate upon fifteen (15) days written notice
to Davox and nay prepaid amounts for support and services not then rendered
shall be duly refunded by Davox; and (ii) Davox shall be permitted to terminate
upon fifteen (15) days prior written notice in the event Datapoint fails to make
timely payment and cure such failure with said fifteen (15) day period.
9. ORDERS AND DELIVERY
A. Placement. Datapoint will place orders for the Support Services directly
with Davox. Unless otherwise mutually agreed to in writing by the parties,
any term of any such order that conflicts with any term of this Agreement
will have no legal force or effect. All orders will be placed in writing
and reference this Agreement (either by date "Agreement of 1 August 1997"
or by number "Agreement no: D1") or in the case of orders on a time and
material basis, will be authorized in writing by Datapoint's BT account
manager. In the absence of any such designation, any order for products or
service covered by this Agreement shall be deemed governed by the terms and
conditions herein.
B. All orders are subject to credit approval by Davox, except that any order
accompanied by payment in full shall be deemed to have satisfied this
requirement.
C. Shipment/Delivery Date for Support Services. Technical Support shall be
effective in accordance with Section 1(C). For all other Support Services
the parties shall mutually agree on a performance schedule for each order
accepted from Datapoint. With respect to
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spare parts, Software, and other products available hereunder (each
referred to in this Section 9 as a "Product") Davox will ship the Products
from its distribution or support facility, as designated by Davox, in
accordance with this schedule, subject to delays beyond Davox's control.
Davox will select the method of shipment for Datapoint's account and obtain
all licenses required to export the Products from the country of origin.
Datapoint will (i) obtain all licenses required to import the Products into
the United Kingdom, (ii) clear the Products through local customs promptly
upon their arrival at the United Kingdom and (iii) pay all customs duties
and other charges assessed on such imports in the United Kingdom, if
applicable.
D. Rescheduling. Datapoint may reschedule a shipment date for the products by
notifying Davox of the proposed new shipment date, but any such proposed
new date cannot extend the original shipment date by more than one-hundred-
twenty (120) days.
E. Delivery. Davox will deliver Products to Datapoint at the distribution or
support facility designated by Davox. In the absence of written
confirmation to the contrary, the distribution or support facility shall be
deemed to be Davox facility in Westford, MA, USA ("Davox Facility"). Risk
of loss will pass to Datapoint upon delivery to a common carrier. Any use
of "EX WORKS," "FOB" or other INCOTERMS will apply only to price and not to
delivery or passage of title or risk of loss. Delivery of airway bills or
other bills of lading before or after the Products arrive in the United
Kingdom will not affect the place of delivery. Datapoint shall provide
shipping instructions either in the order or otherwise to Davox in writing
at least thirty (30) days prior to the shipment date. In the absence of
shipping instructions, Davox shall select a common carrier on behalf of
Datapoint. In no event shall Davox be liable for shipment by common
carrier nor shall such common carrier be construed to be an agent of Davox.
Technical Support shall be deemed delivered at the Davox Facility where
remote support is rendered, or , when applicable, at the system location
where on-site support is furnished.
F. Title. Title to the, components and spare parts and all risk of loss
thereto shall pass to Datapoint upon delivery to the common carrier.
Datapoint acknowledges that title to the Software will not, under any
circumstances, pass to Datapoint or BT, and Software is licensed to
Datapoint for sublicense to BT.
G. Costs. Except as otherwise provided in Clause 4B, Datapoint will pay or
reimburse Davox for all brokerage, handling, transportation, demurrage and
other delivery costs that Davox may incur in delivering Products to
Datapoint from Davox's designated distribution or support facility. Davox
will separately identify all reimbursable costs in its order confirmation
or invoice issued to Datapoint.
10. PRICES AND PAYMENT
A. The prices for Technical Support and other Support Services available
hereunder are as set forth in Schedule I, Schedule II and Schedule III
hereto. In the event no price or fee is set forth for a particular
service, the price or fee shall be Davox then prevailing
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international price or fee for the applicable time or material.
Notwithstanding the foregoing, Davox agrees not to modify the prices on
Schedules II and III on the effective date of this Agreement for a period
of one (1) year commencing on said date.
B. The fees stated for Technical Support are annual charges, quoted and to be
paid in United States dollars. The fees shall be invoiced and paid
quarterly in advance of the commencement date, except that the first
billing shall be prorated from the date Technical Support commenced to the
date of the end of the then current Datapoint quarterly period.
Datapoint's quarterly period end on October 31, January 31, April 30 and
July 31. All other charges for Support Services are quoted in United
States dollars, and shall be due and payable thirty (30) days from the date
of invoice.
C. Currency and Place. Datapoint will pay all amounts due to Davox pursuant
to this Agreement in U.S. Dollars at Davox's offices in Westford,
Massachusetts, U.S.A. Any late payment will accrue interest at the lower
of the LIBOR rate quoted on the date that the payment became past due, plus
one percent (1%) or such rate as may be allowable under the laws of
England, it being the agreement of the parties that the lower rate shall
apply.
D. Taxes. All amounts payable by Datapoint to Davox under this Agreement 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 Support Services or Products, the execution or
performance of this Agreement or otherwise, except for net income, net
worth or franchise taxes assessed on Davox outside of the United Kingdom.
Subject to these exceptions, Datapoint will pay all taxes, VAT, levies or
similar governmental charges or provide Davox with a certificate of
exemption acceptable to the taxing authority. If Datapoint is required
under the laws of the united Kingdom to deduct any withholding taxes from
payments to Davox, then (i) Datapoint will notify Davox prior to
withholding any such taxes, (ii) the price payable by Datapoint for the
Products will be increased so that the actual amount received by Davox, net
of all taxes, will be equal to the amount invoiced to Datapoint and (iii)
Datapoint will promptly furnish Davox with the official receipt of payment
of these taxes to the appropriate taxing authority.
E. For the purposes of the calculation of fees, fees for Technical Support
coverage shall commence on the date of "hand over" for the applicable
system or Seat notwithstanding the date of Datapoint's purchase order.
11. ESCALATION
During the period of Technical Support coverage on a System, Davox will use
best efforts to deal with the escalation of unresolved problems with the
system reported to the WSC in accordance with the Escalation Procedures set
forth in Schedule IV hereto, to the extent applicable. Davox Escalation
procedures do not represent a guarantee that Davox will be able to provide
problem resolution within any specified time.
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12. LIMITED WARRANTIES
A. Davox warrants that the services render under this Agreement shall be of
professional quality conforming to generally accepted practices in the
industry.
B. Warranty. Davox warrants that any spare parts furnished under this
Agreement will be free from defects in materials and workmanship and
Software furnished under this Agreement will operate substantially in
accordance with Davox then current published specifications as set forth in
Davox documentation for a period of sixty (60) days from the date Datapoint
delivers the spare part or Software to Customer. Davox does not warrant
that (i) the spare parts and Software will satisfy or may be customized to
satisfy all of the customers' requirements or (ii) the use of the Software
will be uninterrupted or error-free. Datapoint further acknowledges that
(i) the prices contemplated under this Agreement are based on the limited
warranty, disclaimer and limitation of liability specified in Sections 12,
13 and 14 and (ii) such charges would be substantially higher if any of
these provisions were unenforceable.
C. Remedies. Datapoint will promptly notify Davox in case of any alleged
breach of warranty or any other duty related to the quality of the
Equipment, spare parts, Software or other support Service. If the alleged
defect is demonstrated to fall within the express warranty contemplated
under Section 12(b), Davox will, at its option, correct or replace the
defective Equipment, spare part of Software. If the alleged deficiency is
a failure to confirm to Section 12(A) Davox shall re-perform the Support
Service, or material portion thereof, which fails to conform to the
professional standard in Section 12(A) at no additional charge. If Davox
is unable to remedy any defect in the Equipment, spare part or any non-
conforming Software under Section 12(B), or remedy any failure of
performance under Section 12(A) as required by the foregoing warranties,
Davox's liability to Datapoint shall in no event exceed the purchase price
received hereunder by Davox for the Equipment or spare part or the amount
of any license fees received by Davox for the Software, or the fee for the
applicable Support Service as of the date of the applicable warranty claim
is first made.
D. Limitation. The warranties and remedies specified in this Section will not
apply if the spare part or Software malfunctions due to extrinsic causes,
such as (i) natural disasters, including fire, smoke, water, earthquakes or
lightning, (ii) electrical power fluctuations or failures, (iii) the
neglect or misuse of the, spare part or Software or other failure to comply
with the instructions set forth in the Davox documentation, (iv) a
correction or modification of the, spare part of Software not provided by
Davox, (except to the extent expressly authorized in writing by Davox Vice
President of Customer Service referencing these Agreement) (v) a
malfunction of the customer's hardware equipment, (vi) interfaces not
developed and installed by Davox or (vii) the combination of the System
with other products not provided by Davox.
-12-
E. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 12 AND SECTION
13, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES
WITH RESPECT TO THE SPARE PARTS, SOFTWARE AND OTHER SUPPORT SERVICES,
WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN
STATEMENTS BY DAVOX OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE) ARE HEREBY
OVERRIDDEN, EXCLUDED AND DISCLAIMED. However, nothing in this Section 12E
shall be deemed to modify any other warranty which may exist under the
certain and separate Distributor Agreement as modified by the Termination
Agreement with respect to Products furnished thereunder, in accordance with
the terms therein.
13. DAVOX INDEMNIFICATION OF DATAPOINT
A. Infringement. Davox will defend Datapoint and pay the costs involved in
any claim, suit or proceeding brought against Datapoint insofar as such
suit or proceeding is based on a claim that the spare part or Software
furnished hereunder infringes on any United States, Belgium, France, Spain,
Germany, Switzerland, Netherlands, Italy, Sweden, or United Kingdom, or
Republic of Ireland, patent, copyright or trademark, but only if Datapoint
notifies Davox promptly upon learning that such claim is threatened or has
been filed and served on Datapoint and gives Davox sole control of the
defense and all related settlement negotiations. Notwithstanding anything
herein to the contrary, the notice referred to by this Section shall be
sent by fax to Davox's United States headquarters. Attention: President,
at (508) 952-0200. (or such other number as Davox may notify Datapoint in
accordance with Section 21) with a confirming copy sent in accordance with
the procedures set forth in Section 21. If any claim which Davox is
obligated to defend has occurred, or in the reasonable opinion of Davox is
likely to occur, Datapoint agrees to permit Davox, at the option and
expense of Davox, either to procure for Datapoint the right to continue
using the spare part or Software or to replace or modify the spare part or
Software so that it becomes non-infringing without materially impairing
functionality and existing compliance with legal and regulatory
requirements. If neither of the foregoing alternatives is available on
terms which are reasonably acceptable to Davox, Datapoint shall return the
spare part or Software upon written request by Davox ad Datapoint agrees to
accept a refund equal to the amount paid by Datapoint less depreciation at
a rate per year over the life (five years in the case of Software and five
years in the case of spare parts) of the spare part or Software.
B. Limitations. Davox shall have no obligations under this Section 13 with
respect to claims, suits, or proceedings to the extent based on the use of
the system, spare part or Software in combination or connection with
hardware or software not provided by Davox, customization of the Software,
or upon the use of the system, spare part or Software in a manner for which
such System, spare part or Software was not designed. NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, DAVOX'S TOTAL AGGREGATE LIABILITY UNDER
THIS SECTION 13 FOR ANY AND ALL
-13-
CLAIMS ARISING UNDER THIS SECTION SHALL IN NO EVENT EXCEED AN AGGREGATE
DOLLAR AMOUNT OF THREE MILLION U.S. DOLLARS (US$3,000,000), EXCEPT THAT NO
SUCH LIMIT SHALL APPLY TO ANY CLAIM, SUIT, OR PROCEEDING ASSERTING
INFRINGEMENT OF A PATENT ISSUED UNDER THE LAWS OF THE UNITED STATES OR THE
UNITED KINGDOM.
C. Exclusive Liability. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY
OF DAVOX FOR INFRINGEMENT OF ANY KIND AND IS IN LIEU OF ALL WARRANTIES ,
EXPRESS OR IMPLIED, IN REGARD THERETO.
D. Survival. The provisions of this Section 13 shall survive the termination
of this Agreement.
14. NO CONSEQUENTIAL DAMAGES.
UNDER NO CIRCUMSTANCES WILL DAVOX OR ITS LICENSORS BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES OR LOST
PROFITS, WHETHER FORESEEABLE OR UNFORSEEABLE. BASED ON CLAIMS OF
DATAPOINT, OR BT OR THEIR CUSTOMERS (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. EXCEPT FOR DAVOX'S OBLIGATIONS UNDER
SECTION 13, IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH DAVOX AND ITS
LICENSORS MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT
ACTUALLY PAID TO DAVOX BY DATAPOINT FOR THE SPECIFIC SUPPORT SERVICE OR
PRODUCT FURNISHED HEREUNDER THAT DIRECTLY CAUSED THE DAMAGE. THIS SECTION
WILL NOT APPLY ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY
REQUIRES LIABILITY, DESPITE THE FOREGOING EXCLUSION AND LIMITATION.
15. INFORMATION
A. Confidentiality.
(1) Datapoint acknowledges that the Support Services and other products
furnished hereunder incorporate confidential and proprietary information
developed or acquired by or licensed to Davox (the "Information").
Datapoint will take all reasonable precautions necessary to safeguard the
confidentiality of the Information, including (i) those taken by Datapoint
to protect its own confidential information and (ii) those which Davox may
reasonably request from time to time. Datapoint will not allow the removal
or
-14-
defacement of any confidentiality or proprietary notice placed on the
Support Service's materials, products or other items of Information. The
placement of copyright notices on these items will not constitute
publication or otherwise impair their confidential nature.
(2) Davox shall take all reasonable steps to insure that all documentation
and such other confidential information provided to Davox by Datapoint and
marked as "confidential" remains confidential.
B. Ownership. All patents, copyrights, circuit layouts, trade secrets and
other proprietary rights in or related to the Support Services and products
furnished hereunder are and will remain the exclusive property of Davox or
its licensors, whether or not specifically recognized or perfected under
the laws of the United Kingdom, Republic of Ireland, United States or any
other jurisdiction. Datapoint will not take any action that jeopardizes
Davox's or its licensors' proprietary rights or acquire any right in the
Support Services, products or Information, except the limited use rights
specified in Section 15(C). Datapoint hereby assigns to Davox or its
licensor all rights in any translation, modification or adaptation of, or
derivative work based on, the Support Services, products, or other items of
Information, including any improvement or development thereof, that may be
developed by or for Datapoint, but excluding external interfaces developed
by Datapoint to enable a System to operate in combination with BT's
particular computer or telephony systems. Datapoint will obtain at Davox
request, the execution of any instrument that be may appropriate to prefect
these rights in Davox or its licensor's name. Datapoint shall retain any
rights in and to any shell or supplemental software it develops to the
extent and as provided in 15C.
C. Use. Datapoint will use the Support Services, products and other items of
Information exclusively to perform its service and support activities with
respect to its BT, in accordance with the terms of this Agreement. Except
as specifically contemplated in Section 3(G), 5(B), 7(A) of this Agreement,
or Section 9(c) of the Distributor Agreement, Datapoint will not copy,
translate, modify or adapt the Support Services, Software products, or
other items of Information without Davox's prior written approval.
Datapoint will reproduce Davox's or its licensors' confidentiality and
proprietary notices on all such copies. Datapoint will not decompile,
disassemble or reverse engineer the Software or products, except as and to
the extent specifically permitted under applicable law. Datapoint will
promptly notify Davox if Datapoint intends to create any shell or
supplemental software that will be combined with the Software, Equipment or
products. At Davox's request, Datapoint will provide Davox with the
specifications, flow charts, source and object code and other documentation
for such shell or supplemental software programs ("Supplemental Software
Information") for the purpose of enabling Davox to fulfill its support
obligations under this Agreement with respect to the Equipment, Software or
products and to ascertain Datapoint's compliance with the terms herein.
Davox agrees not to disclose to any third party and treat as confidential
the Supplemental Software Information with the same degree of care Davox
uses to protect its own confidential information, which shall not be less
than a reasonable standard of care not to disclose. Davox confidentiality
obligations with respect to the Supplemental Software
-15-
Information do not apply to information which: (i) is in the public domain;
(ii) has been received by Davox from a third party not under
confidentiality restrictions; (iii) is already known to Davox at the time
of disclosure, or is independently developed by Davox without use of the
Supplemental Software Information; (iv) is authorized to be disclosed to a
third party by Datapoint; or (v) is disclosed to BT pursuant to Davox
rightfully performing it diagnostic and support obligations under the
Agreement.
Datapoint, or its licensors, shall retain all rights, title and interest in
and to any such shell or supplemental software, except to the extent such
shell or supplemental software contains software code or Information of
Davox or its licensors.
D. Disclosure. Datapoint will not disclose, in whole or in part, the
Information except to those of Datapoint's employees who require access to
perform its obligations under this Agreement and have executed a
confidentiality agreement conforming to that set out in Schedule H of the
Distributor Agreement (the "Confidentiality Agreement"). Datapoint will
execute all Confidentiality Agreements as principal on its own behalf and,
exclusively to accept or otherwise perfect Davox's rights thereunder, as
agent on behalf of Davox. At Davox request, Datapoint will provide Davox
with copies of all Confidentiality Agreements. In no event will Datapoint
amend or cancel any Confidentiality Agreement without Davox's prior
approval.
E. Unauthorized Use or Disclosure. Datapoint acknowledges that any
unauthorized use or disclosure of the Information may cause irreparable
damage to Davox or its licensors. If an unauthorized use or disclosure
occurs, Datapoint will promptly notify Davox and take, at Datapoint's
expense, all steps which are necessary to recover the Information and to
prevent its subsequent unauthorized use or dissemination, including
availing itself of actions for seizure and injunctive relief. If Datapoint
fails to take these steps in a timely and adequate manner, Davox may take
them in its own or Datapoint's name and at Datapoint's expense.
F. Limitation. Datapoint will have no confidentiality obligation with respect
to any portion of the Information that (i) Datapoint independently knew or
developed before receiving the Support Services or Information from Davox,
(ii) Datapoint lawfully obtained from a third party under no obligation of
confidentiality or (iii) became available to the public other than as a
result of an act or omission of Datapoint or any of its employees or
customers. Under any of these circumstances, Datapoint will notify Davox
at least 30 days before disclosing such portion of the Information to any
other person.
16. COMPLIANCE WITH LAWS
A. Local Compliance. Datapoint will, at its expense, obtain and maintain the
governmental authorizations, registrations and filings that may be required
under the laws of the United Kingdom for Datapoint to execute or perform
under this Agreement any agreements with BT and will pay and bear all stamp
taxes related thereto. Datapoint will otherwise comply with all laws,
regulations and other legal requirements within the United
-16-
Kingdom that apply to Datapoint's performance arising under this Agreement,
including tax and foreign exchange legislation.
B. Compliance With U.S. Laws. Datapoint agrees that it will not directly or
indirectly do any act or thing which will constitute a violation of the
United States Foreign Assets Control Regulations.
Datapoint further acknowledges and agrees that the Support Services, other
products furnished hereunder and all related technical information,
documents and materials are subject to export controls under the U.S.
Export Administration Regulations. Datapoint will comply with all
applicable requirements of the Export Administration Regulations and other
applicable export control regulations of the United States, as modified
from time to time by the Administration or the US Department of Commerce
and any corresponding export control requirements with the United Kingdom.
C. Unlawful Payments. Datapoint will not use any payment or other benefit
derived from Davox to offer, promise or pay any money, gift or any other
thing of value to any person for the purpose of influencing official
actions or decisions affecting this Agreement, while knowing or having
reason to know that any portion of this money, gift or thing will, directly
or indirectly, be given, offered or promised to (i) any employee, officer
or other person acting in an official capacity for any government or its
instrumentalities or (ii) any political party, party official or candidate
for political office. Datapoint will provide Davox with the assurances and
official documents that Davox periodically may request to verify
Datapoint's compliance with this Section.
17. INDEMNITY
Datapoint will indemnify Davox against any damage, loss, liability or
expense (including lawyers' fees) that Davox may incur (i) arising out of
any wrongful action of Datapoint, its employees, agents, subcontractors,
representatives or customers (ii) as a result of (a) any modification or
amendment of the prescribed terms of the Software Agreement in Schedule V
and, with respect to furnish Software to BT, the Software License in
Schedule VI that Davox did not specifically approve, (b) Datapoint's
failure to comply with Section 7(A), Section 15, any warranty, condition,
representation, indemnity or guarantee granted by Datapoint or provided by
applicable law with respect to the Support Services and products furnished
hereunder in addition to or in lieu of the limited warranties specified in
Section 12, (d) any omission or inaccuracy in Datapoint's advertisements
and promotional materials that relate to the Support Services and products,
(e) any modification of the Support Services or products hereunder, or (f)
Datapoint's failure to comply with Section 16. Davox shall use all
reasonable efforts to notify Datapoint of any threatened claim within ten
(10) days after Davox's receipt of written notification that such claim is
threatened and within five (5) days of the filing and service on Davox of
such claim and giving Datapoint sole control of the defense and all related
settlement negotiations. Notwithstanding anything herein to the contrary,
the notice referred to by this Section shall be sent by fax to Datapoint
(UK) Limited's
-17-
headquarters, Attention: Legal Department, at 0181-830-1516 (or such other
number as Datapoint may notify Davox of in accordance with Section 21 with
a confirming copy sent in accordance with the procedures set forth in
Section 21. This Section will not be construed to limit or exclude any
other claims or remedies which Davox may assert under this Agreement or by
law.
18. INDEPENDENT PARTIES
Davox and Datapoint are independent parties. Nothing in this Agreement
will be construed to make Datapoint an agent, employee, franchisee, joint
venturer, partner or legal representative of Davox. Except as otherwise
provided in this Agreement, Datapoint will neither have nor represent
itself to have any authority to act on Davox's behalf.
Davox is not a party to any agreement or undertaking between Datapoint and
BT by virtue of this Agreement and does not otherwise endorse or ratify any
such undertakings or agreements.
19. FORCE MAJEURE
Neither party will be liable for any failure or delay in performing an
obligation under this Agreement that is due to causes beyond its reasonable
control.
Notwithstanding the foregoing, nothing in this Section shall be construed
to excuse or delay Datapoint's payments to Davox hereunder, such payment
being a condition to the rendering of Support Service by Davox.
20. ARBITRATION
A. General. Except as contemplated under Section 20(D), any controversy or
claim arising out of or relating to this Agreement or the existence,
validity, breach or termination thereof, whether during or after its term,
will be finally settled by compulsory arbitration in accordance with the
Commercial Arbitration Rules and Supplementary Procedures for International
Commercial Arbitration of the American Arbitration Association ("AAA"), as
modified or supplemented under this Section 20.
B. Proceeding. To initiate arbitration, either party will file the
appropriate notice at the Regional Office of the AAA in Boston,
Massachusetts U.S.A. The arbitration proceeding will take place in Boston,
Massachusetts U.S.A. and will be conducted in the English language. The
arbitration panel will consist of 3 arbitrators, one arbitrator appointed
by each party and a third neutral arbitrator appointed by the two
arbitrators designated by the parties. The third arbitrator shall be a
retired US federal court or state appellate court judge. Any communication
between a party and any arbitrator will be directed to the AAA for
transmittal to the arbitrator.
-18-
C. Award. The arbitral award will be the exclusive remedy of the parties for
all claims, counterclaims, issues or accountings presented or plead to the
arbitrators. The award will (i) be granted and paid in U.S. dollars
exclusive of any tax, deduction or offset and (ii) include interest form
the date of breach or other violation of the Agreement until the award is
fully paid, computed at the then-prevailing LIBOR rate. Judgment upon the
arbitral award may be entered in any court that has jurisdiction thereof.
Any additional costs, fees or expenses incurred in enforcing the arbitral
award will be charged against the party that resists its enforcement. The
parties expressly agree that the arbitrators will be empowered to (i) issue
an interim order or award, which may include but is not limited to
requiring Datapoint to cease using the Products or Information pending the
outcome of the arbitration, or (ii) grant injunctive relief.
D. Legal Actions. Nothing in this Section will prevent Davox from enforcing
its copyrights, patents or other proprietary rights against Datapoint
(including, but not limited to, obtain injunctive relief from a court of
competent jurisdiction) or filing legal actions for payment of outstanding
and past due debts in the courts of the United Kingdom, or court of
competent jurisdiction, nor shall anything in this Section prevent
Datapoint from enforcing its copyrights, patents or other proprietary
rights against Davox (including, but not limited to, obtaining injunctive
relief) in a court of competent jurisdiction.
21. GENERAL
A. No relationship with customer created. - The Datapoint Agreement and this
Agreement do not create any direct relationship with, or obligations to
Datapoint's customer BT (including any parent, subsidiary, or affiliate
entity of BT) on the part of Davox.
B. Right to request support. - The sole and exclusive remedy of Datapoint
hereunder with respect to a defective or inoperative System (inclusive of
Equipment, spare parts and Software) is to request Support Services or
replacement Equipment as provided herein.
C. Availability of personnel. - Davox shall be excused from providing on-site
support: (i) when to do so will violate the laws or regulations of the
United Kingdom and (ii) where the laws of the UK require a work permit or
visa, and then only for the period of time until such work permit or visa
is issued.
D. Notices. - Notices and approvals required hereunder shall be given in
writing and will be sent by facsimile transmission, with electronically
dated confirmation, or independent carrier, with written confirmation of
receipt or registered mail, to the designated representative, identified
below, at the address first set forth above;
If to Datapoint:
Datapoint UK Ltd.
Attn: Managing Director
Telephone: 0181 469 1222
Facsimile: 0181 830 1516
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With copy to Company Attorney
If to Davox Corporation:
Attn: Vice President Customer Service
Telephone: 508 952 0200
Facsimile: 508 952 0201
With copy to Company Attorney
F. Severability. - In the event that any portion of this Agreement shall be
deemed to be illegal or unenforceable by any court of competent
jurisdiction, the remaining provisions shall be severable and enforceable
in accordance with their terms so long as the omission of such terms or
provision does not cause this Agreement to fail in its essential purpose or
purposes. The parties will negotiate in good faith to replace any such
illegal or unenforceable provisions with legal and enforceable provisions
that are intended to restore the purpose of this Agreement.
G. Waiver and Modification. - Except as otherwise provided above, any waiver,
amendment or other modification of this Agreement will not be effective
unless in writing and signed by the parties against whom it is sought to be
enforced.
H. Assignment. - Neither party may assign, delegate, subcontract or otherwise
transfer this Agreement or any rights or obligations without the other's
prior approval. Any attempt to do so will be void. Notwithstanding the
foregoing, Davox may assign or subcontract any or all of its rights and
obligations to its wholly owned subsidiary in the England, Davox (Europe)
Limited.
I. Governing Law. - This Agreement will be governed and interpreted by the
laws of the Commonwealth of Massachusetts, USA, excluding its conflict of
law principles. Davox and Datapoint exclude the United nations Convention
on Contracts for the International Sale of Goods from this Agreement and
any transaction between them that may be implemented in connection with
this Agreement.
J. Survival. - The provisions of Sections 13, 14, 15, 16, 17, 18, 20, 21(A)
and 21(H) shall survive the termination or expiration of this Agreement.
K. Breach.- In the event of a material breach of this Agreement the non-
breaching party shall give the party in breach written notice of the breach
and the breaching party shall have thirty (30) days to cure, or if the
breach is not capable of cure within thirty days then the breaching party
must have commenced to make diligent efforts to cure and actually cured
within a reasonable period of time in light of the severity and materiality
of the breach.
L. Upon termination or expiration of this Agreement, Datapoint shall return to
Davox all Information, documentation, Software, and other materials
provided to Datapoint hereunder pursuant to Sections 3(G), 7 and 15.
-20-
M. Nothing in this Agreement shall be construed to relieve or modify either
party's independent obligations under the certain and separate Datapoint
Agreement.
N. Non-solicitation.- During the term of this Agreement neither party shall
knowingly solicit the technical personnel then in the direct, current,
full-time employment of the other. Notwithstanding the foregoing nothing
herein shall be construed to prevent either party from interviewing and
making offers to an employee of the other party or hiring employees of the
other party to the full extent permitted under the laws of the United
Kingdom or European Union. However, in the event a party hires an employee
of the other, the hiring party shall by way of full and complete
compensation, and without further obligation or liability hereunder, pay to
said other party an amount equal to 3 month's base salary calculated at the
monthly base salary rate then in effect for said employee by the other
party at the time the offer of employment is extended. Each party
expressly acknowledges and agrees that it is not the intent to prevent or
otherwise interfere with any employees right or privilege to freely seek
and accept employment with the other party, but to provide a mechanism to
provide compensation to the affected party in the event of the loss of an
employee material to the affected party's operation. The employment
process being personal to the candidate seeking employment, neither party
shall be required to disclose the identity of any potential employment
candidate prior to the date such candidate accepts an offer of employment
from the tendering party.
O. Special Definitions: 1. "Datapoint" - For the sake of clarity, whereas
Datapoint has limited distribution rights with respect to BT under the
Datapoint Agreement, the term "Distributor" as used with respect to this
Agreement between the parties shall refer to Datapoint UK Limited.
2. "Software" - The term Software as used herein refers to software as the
term is first used in Section 1.B and upgrades, modifications,
customization, bug fixes and enhancements thereto, Revisions, and all
software code furnished under this Agreement.
P. In the event of any conflict between the terms of this Agreement and the
Schedules set forth in Section 23, the terms of this Agreement shall
control, except that the parties agree that this Agreement and the
Schedules shall be interpreted as being consistent to the extent reasonably
possible.
22. ENTIRE AGREEMENT
This Agreement and its Schedules constitute the complete and entire
statement of all terms, conditions, and representations of the agreement
between the parties with respect to the subject matter.
It is the intent of the parties that the Distribution Agreement as modified
by the Termination Agreement (collectively the "Outside Agreements") remain
independent agreements with independent legal significance and are not made
part hereof, except that reference to specific sections or clauses of said
agreements herein shall be deemed to
-21-
incorporate the same terms or obligations under this Agreement to the
extent necessary to give effect to the obligations or undertakings
expressly set forth in this Agreement, or as the context may suggest, to
acknowledge the existence of rights or obligations under such Outside
Agreements and shall not be deemed to revive, extend or modify said Outside
Agreements.
23. SCHEDULES AND EXHIBITS
Schedule I Spare Parts List and Pricing
Schedule II Annual Support and Time and Materials
Pricing
Schedule III Davox Education Course Pricing
Schedule IV BT Problem Escalation Procedure
Schedule V Software License
Schedule VI BT Sublicense
AGREED: AGREED:
Datapoint Davox
By: /s/ Blake Thomas By: /s/ John J. Connolly
--------------------------------------- -------------------------------
Title: President & Chief Operating Officer Title: VP Finance & CFO
----------------------------------- ---------------------------
Date: Date: 10/31/97
----------------------------------- ---------------------------
-22-
ADDENDUM 1
This Addendum amends and modifies the Special Support Services Agreement between
Datapoint (UK) Ltd. ("Datapoint") and Davox Corporation ("Davox") with an
effective date of 1 August 1997 (the "Agreement"). To the extent of any
inconsistencies between the terms of this Addendum and the terms of the
Agreement, the terms of this Addendum shall govern. All other terms and
conditions of the Agreement remain unchanged.
1. In Clause 1.A. of the Agreement, between the phrase "United Kingdom" and
the parenthetical term "UK" insert the words "of Great Britain and Northern
Ireland."
2. Clause 21.L. of the Agreement is deleted in its entirety and replaced with
a new Clause 21.L. as follows:
"Upon expiration or termination of this Agreement, except in the event of
an uncured breach of Sections 7, Software; 10, Payment; and 15,
Information, Datapoint shall be permitted to retain and use under license,
in accordance with the terms of this Agreement, such Information, Software
and documentation furnished hereunder, as may be reasonably necessary to
support BT pursuant to any existing contractual commitments between BT and
Datapoint. Datapoint shall return all other Information, Software and
documentation upon said expiration or termination of this Agreement.
Notwithstanding anything elsewhere herein to the contrary, Davox shall have
no obligation to support, revise, or update any Information, Software or
documentation retained and used pursuant to this Clause 21.L."
AGREED: AGREED:
Datapoint Davox
By: /s/ Blake Thomas By: /s/ John J. Connolly
--------------------------------------- -------------------------------
Title: Chairman of the Board of DPT UK Title: VP Finance & CFO
----------------------------------- ---------------------------
Date: Date:
----------------------------------- ---------------------------
-23-
SCHEDULE I
SPARE PARTS LIST AND PRICING
BASE CABINET -- INTERNATIONAL
SPARES ASSEMBLY EXPEDITED
PART INSTALLED SYSTEMS LIST REPAIR REPAIR
NUMBER DESCRIPTION "1-5" "6-15" "16-30" "30+" PRICE CHARGE PRICE
881194* PWA DSP CPU 1 2 2 3 $10,000 $ 3,000 $ 5,000
881202-CNET* PWA PDL BD CPU CNET 1 2 2 3 $ 750 $ 225 $ 375
881200** PWA PDL BD I/F T1 CEPT 1 2 2 3 $ 575 $ 173 $ 288
881210** PWA SW DIG DSP 1 2 2 3 $ 1,240 $ 372 $ 620
881207** PWA PDL BD SW DIG 1 2 2 3 $ 500 $ 150 $ 250
881302** POWER SUPPLY ASSY 1 1 1 2 $ 4,500 $ 1,350 $ 2,250
905349 DCS CABINET CARD CAGE 1 1 1 1 $48,675 $14,603 $24,338
883240 RIBBON CABLE DCS 1 1 1 2 $ 15 N/A N/A
881301 FAN ASSEMBLY 1 1 1 1 $ 430 N/A N/A
883245-05 CABLE T1 1 1 1 2 $ 35 N/A N/A
881300 BACK PLANE ASSEMBLY 1 1 1 2 $ 5,230 $ 1,569 $ 2,615
881197-E1 PWA INTERFACE E1 1 2 2 3 $ 5,000 $ 1,500 $ 2,500
881197-T1 PWA INTERFACE T1 1 2 2 3 $ 5,000 $ 1,500 $ 2,500
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CABLES & ACCESSORIES
SPARES ASSEMBLY EXPEDITED
PART INSTALLED SYSTEMS LIST REPAIR REPAIR
NUMBER DESCRIPTION "1-5" "6-15" "16-30" "30+" PRICE CHARGE PRICE
883195-04 MODEM CABLE 1 1 1 2 $46 N/A N/A
901585 PARALLEL CABLE 1 1 1 2 $48 N/A N/A
883246-05 SP10-WYSE CABLE 1 1 1 2 $45 N/A N/A
905450-50 THIN NET CABLE 1 1 1 2 $85 N/A N/A
905524 ADAPTER BNC 1 1 2 2 $18 N/A N/A
883192-50 SERIAL PRINTER CABLE 1 1 1 2 $58 N/A N/A
883243-20 10 BASE T CABLE 1 1 1 3 $20 N/A N/A
905836 AUDIO ADAPTER SP10 1 1 1 2 + N/A N/A
905828 SPLITTER SERIAL 1 1 1 2 + N/A N/A
**/1/ For use with T1 and E1 interface
X Items required for 95% repairability
* Single point of failure if only one line DSP card in system
** Single point of failure
+ Contact your local SUN dealer for pricing and availability
-25-
NON-PROPRIETARY ITEMS
PART SPARES ASSEMBLY EXPEDITED
NUMBER INSTALLED SYSTEMS LIST REPAIR REPAIR
VENDOR DESCRIPTION "1-5" "6-15" "16-30" "30+" PRICE CHARGE PRICE
905822 HUB TEN BASE T 1 1 2 3 $ 350
MIL-4000H MILAN TECH
906026 MODEM 14 4K BD 1 1 2 3 $ 650
00268-00 U.S. ROBOTICS
905865 DRIVE DISK OPTICAL 1 1 2 3 $1,500
PMO-130 PINNACLE
905979 PRINTER LA 424 1 1 1 2 $1,875
LA424-CA DIGITAL EQUIP
10VSK7 FILTER CORCOM 1 1 2 2 $ 60
JA2&A8E CIRCUIT BREAKER 1 1 2 2 $ 120
JO1HA510 HEINEMANN
UNIX BASED PRODUCTS (SUN MICRO)
PART
NUMBER
VENDOR DESCRIPTION
? CARD E NET
N814N TAPE DRIVE 8MM
X546A HARD DRIVE 1.05 GB (INTERNAL)
VARIOUS SMC SERVER
VARIOUS WORKSTATION W/KEYBOARD
X116F EXPANSION MEMORY 16 MB
X132R/13 EXPANSION MEMORY 32 MB
Contact your local Sun dealer for service and pricing of all Sun products.
**Single point of failure.
COUNTRY SPECIFIC
PART SPARES ASSEMBLY EXPEDITED EMERGENCY
NUMBER INSTALLED SYSTEMS LIST REPAIR REPAIR EXCHANGE
VENDOR DESCRIPTION "1-5" "6-15" "16-30" "30+" PRICE CHARGE PRICE PRICE
MEXICO
881332 PWA I/F CEPT E1 1 1 2 3 $5,000 $1,500 $2,500 $3,250
AUSTRALIA
881332 PWA I/F CEPT E1 1 1 2 3 $5,000 $1,500 $2,500 $3,250
-26-
OPTIONS
PART SPARES ASSEMBLY EXPEDITED EMERGENCY
NUMBER INSTALLED SYSTEMS LIST REPAIR REPAIR EXCHANGE
VENDOR DESCRIPTION "1-5" "6-15" "16-30" "30+" PRICE CHARGE PRICE PRICE
TIP & RING
881322 PWA SLAC 1 1 2 3 $2,350 $ 705 $1,175 $ 1,528
881323 PDI BD SLAC 1 1 2 3 $2,020 $ 606 $1,010 $ 1,313`
HEADSET
DIRECT TO
DIALER
881084 DIGITAL SWITCH OPERATOR EE 1 1 2 3 $ 828 $ 248 $ 414 $ 538
881204 PDB BD BDIG SW OPERATOR 1 1 2 3 $ 320 $ 96 $ 160 $ 208
SLAC
881338 PWA ISLAC 1 1 2 3 $1,500 $ 450 $ 750 $ 975
881846 PBD BD ISLAC 1 1 2 3 $3,500 $1,050 $1,750 $ 2,275
-27-
SCHEDULE II
ANNUAL SUPPORT AND TIME & MATERIALS PRICING
1. Base Technical Support: Annual Support under the Support Services
Agreement is priced at $[CONFIDENTIAL TREATMENT REQUESTED]/*/ per seat, per
System paid quarterly in advance, for the first year of support, beginning
upon installation. For the second and subsequent years of support, the
price is $[CONFIDENTIAL TREATMENT REQUESTED]/*/ PER SEAT, per System, paid
quarterly in advance.
2. Time and Materials: Time and Materials pricing for W.S.C. International
Support for additional services provided outside the scope of the services
included under the annual service fee is:
LABOR RATES: WORLDWIDE SUPPORT CENTER - LABOR RATES
US $[CONFIDENTIAL TREATMENT REQUESTED]/*/ per hour
During WSC Standard Hours of Operation - Contract Systems
- (7:30 am-midnight weekdays, plus 8:00 am-5:00 p.m.
Saturdays, US EST, Davox Holidays excluded)
US $[CONFIDENTIAL TREATMENT REQUESTED]/*/ per hour
Outside USC Standard Hours of Operation - Contract
Systems - (12:00 am-7:20 am Tuesday through Saturdays,
and 5:01 pm Saturdays through 7:29 am Mondays, Davox
Holidays excluded)
US $[CONFIDENTIAL TREATMENT REQUESTED]/*/ per hour
All Hours - Non-Contract Systems
ON-SITE SUPPORT LABOR RATES
US $[CONFIDENTIAL TREATMENT REQUESTED]/*/ per hour
FOR SUPPORT PROVIDED FROM THE UNITED STATES:
Labor Charges will be billed at the prevailing labor
rate, and are billed for both travel and actual on-site
labor hours, portal to portal. Travel and related
expenses will be billed at actual costs.
UK [CONFIDENTIAL TREATMENT REQUESTED]/*/ per day
FOR SUPPORT PROVIDED FROM THE UNITED KINGDOM: Charges are
per day, or will be pro-rated for a half-day if agreed
and for support local to Davox support personnel. Travel
and related expenses will be billed at actual costs.
BASE TECHNICAL SUPPORT PRICING IS SUBJECT TO CHANGE AT THE CONCLUSION OF YEAR __
OF THIS AGREEMENT UPON 90 DAYS WRITTEN NOTICE, PRIOR TO THE __ ANNIVERSARY DATE
OF THIS AGREEMENT.
LABOR RATES AND RATES FOR TIME AND MATERIALS AND RATES FOR SERVICES OTHER THAN
BASE TECHNICAL SUPPORT ARE SUBJECT TO CHANGE AT ANY TIME UPON 90 DAYS PRIOR
WRITTEN NOTICE.
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
-28-
Schedule III
DAVOX EDUCATION COURSE PRICING
Pricing for Davox Courses
===========================================================================
COURSE TITLE COURSE CODE DURATION PRICE
- ---------------------------------------------------------------------------
Unison Supervisor Training UST-101 5 days $ *
Advanced Unison Supervisor AUS-201 3 days *
Unison Overview UO-100 1 day *
Unison Architecture UA-102 3 days *
Physical Layer PL-103 5 days *
Application Development Tools ADT-105 3 days *
Power Script PS-106 2 days *
Smart Button Development SBD-107 3 days *
Client API CAPI-108 1 day *
Davox Call Center Management CCM-202 2 days *
Workshop
In the event Datapoint requests, and Davox provides, training at the Datapoint
Training Facility, or at the End-User site, the on-site delivery rate is
$[CONFIDENTIAL TREATMENT REQUESTED]/*/ per day plus all reasonable Davox T&E.
This applies to all courses.
PRICING MAY BE CHANGED UPON 90 DAYS WRITTEN NOTICE.
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
-29-
COURSEWARE LICENSING PRICING
TRAIN THE TRAINER PROGRAM
This program provides Datapoint with the training materials and information
necessary to enable delivery of Davox Courses. Datapoint Instructors attend
each course once as a student to learn the product content. Student Instructors
attend a second time in a train the trainer role to learn how to deliver the
training. This includes time to work with the Davox Instructor and evaluate how
best to use the Davox training materials. When the Datapoint's Instructor first
begins to deliver the course at the end user site, they will be able to call
Davox Instructors with questions (1 hour of phone support per course).
The program's major components are:
A Unison Lecture/Lab Course attended first in a student role by the Datapoint's
Instructor
A Unison Lecture/Lab Course attended in a Train the Trainer mode by the
Datapoint's Instructor
1 hour of Davox Telephone Trainer Support is provided for each course
A License fee to use Davox Courseware materials
Optional product documentation can be ordered from Davox on a quarterly basis
and purchased at standard prices
The following Davox courses can be completed pursuant to the above requirements.
Please refer to description of each course on the Davox Website at
http://www.davox.com/educational services.
Unison Supervisor Training (the basic course and a prerequisite to other
courses)
Advanced Unison Supervisor
Unison Overview
Unison Architecture
Physical Layer
Smart Button Development
Application Development Tools
Davox Call Center Management Workshop
Client API
Script+
The following non-Davox provided courses or their equivalent are required to
effectively train Datapoint employees or end users.
Sybase SQL
TI "Video"
Network "Video"
Advanced UNIX
Solaris Administration
Shell Scripting
-30-
LICENSED COURSEWARE PRICING
The Davox Licensed Courseware fee includes one hard copy of Student and
Instructor Guides, an electronic soft copy file for each guide, and one Train-
the-Trainer Program per instructor per course. To train additional instructors,
Datapoint will need to purchase each additional Train-the-Trainer Programs for a
fee of $[CONFIDENTIAL TREATMENT REQUESTED]/*/ US/course per instructors.
- -----------------------------------------------------------------------------------------------------------------------
Courseware License
Licensed # TTT Fee includes one Yearly Maintenance of
Courseware # Days Days instructor per course Course Curriculum
- -----------------------------------------------------------------------------------------------------
Unison Supervisor Training 5 5 * *
- -----------------------------------------------------------------------------------------------------
Advanced Unison Supervisor 3 3 * *
- -----------------------------------------------------------------------------------------------------
Call Center Management 2 2 * *
- -----------------------------------------------------------------------------------------------------
Unison Overview 1 1 * *
- -----------------------------------------------------------------------------------------------------
Unison Architecture 3 3 * *
- -----------------------------------------------------------------------------------------------------
Physical Layer 5 5 * *
- -----------------------------------------------------------------------------------------------------
Application Development Tools 3 3 * *
- -----------------------------------------------------------------------------------------------------
Power Script 2 2 * *
- -----------------------------------------------------------------------------------------------------
Smart Button Development 3 3 * *
- -----------------------------------------------------------------------------------------------------
Client API 1 1 * *
- -----------------------------------------------------------------------------------------------------
COURSEWARE LICENSING PRICING MAY BE CHANGED WITHOUT NOTICE.
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
-31-
DAVOX
CORPORATION
WORLDWIDE SUPPORT CENTER
DATAPOINT (B.T.) CALL HANDLING PROCEDURE
SCHEDULE IV
I. INTRODUCTION
------------
This procedure defines the process for handling and escalating calls from
DATAPOINT for B.T. support within DAVOX. It describes how problem calls are
placed, how problems are prioritized, how problems are escalated, and how
higher levels of technical and management resources are brought to bear on
especially difficult problems.
II. PURPOSE
-------
To establish the lines of communications and to identify the responsible
DAVOX personnel and/or ensure all calls are managed in a consistent and
expeditious manner to minimize downtime and disruption to the customer
environment.
1) This procedure applies to all service requests on equipment and
software covered by the Davox Support Services Agreement with
Datapoint, subject to any restrictions that may be written into the
specific agreement. Further, it is requested Datapoint cooperate
fully by providing unlimited access to the affected equipment, timely
response to Davox's request for information such as dumps, logs,
configurations, and network access as may be required in order for
Davox to effectively troubleshoot and diagnose the problem.
2) Initial problem escalation is the responsibility of the WSC and is
effected via a predetermined set of timeframes based upon the priority
of the problem (Attachment "B").
3) All call handling will be in accordance with the following procedure:
I. Datapoint contacts the WSC with the nature of the problem and the
pertinent information is entered into the on-line system (Support
Center 0800-898-376).
II. The WSC technical representative in conjunction with Datapoint
assesses the technical and business impact of the problem and
assigns the priority (see Case Priority Definitions "Attachment
A").
III. After consultation with the Datapoint representative the WSC
will escalate the call based on the following set of conditions:
A. During normal business hours in the United Kingdom the call
will be placed in the EAM Queue and the Mgr. European
Service will be notified and an engineer assigned within 30
min. of receipt of call.
B. If after hours in the U.K., or in the event of
unavailability of the EAM engineer, the call will be placed
in the SES Queue and the Mgr. Escalation Group will be
notified and an engineer assigned within 30 min. of receipt
of call.
C. After Hours support (midnight to 07:30 a.m. EST, US) will be
for critical priority problems only as defined in Attachment
"A".
4) If during the course of problem resolution Datapoint determines Davox
is not meeting the goals established in the attachments escalation will
be as follows: DATAPOINT will contact Doug Wiltz, Mgr. European
Services (0410-850-925 U.K. Cell Phone or 508-864-2054 USA Cell Phone).
If the Mgr. European Services is unavailable escalation will be in the
following order: John Henderson Mgr. Escalation (SES) 508-952-0260
pager 1-888-503-1480, Joe Venskus Dir. Worldwide Support 508-952-0299
pager 1-888-604-2936, Doug Langenberg VP, Customer Service 508-952-
0315.
5) All times in this document are (MAXIMUM TIMES) to be viewed as "Stated
Company Business Hours/Days" management reserves the right to move
calls as required to meet specific business demands.
ATTACHMENT "A"
- --------------
CASE PRIORITY DEFINITIONS
- -------------------------
"CRITICAL"
--------
Severe Operational Impact (i.e., loss of system productivity)
Down System
Data Corruption
Network Down
MAY REQUIRE DAILY UPDATES TO CUSTOMER
"HIGH"
----
Intermittent System Failure
Loss of Some Functionality
No Workaround Available
Moderate Degradation in Performance or Functionality
REQUIRES WEEKLY UPDATES TO CUSTOMER
"MEDIUM"
------
Minor Operational Impact
Initial RAID Notifications
Workaround Available
Product Feature not Working to Specifications
REQUIRES BI-WEEKLY UPDATES TO CUSTOMER
"LOW"
---
Non-critical issue, Documentation error
REQUIRES MONTHLY UPDATES TO CUSTOMER
ATTACHMENT "B"
TIME TABLE
PROBLEM ESCALATION
CONTACT HOURS MAXIMUM
- -------------------------------------------------------------------
Escalation
Priority (EAM/SES) Product Support Development
- -------------------------------------------------------------------
CRITICAL 3 Hrs 5 Hrs Continuous Effort
(as required)
- -------------------------------------------------------------------
HIGH 5 Days 10 Days 20 Days
- -------------------------------------------------------------------
MEDIUM 7 Days 14 Days 25 Days
- -------------------------------------------------------------------
LOW 15 Days 20 Days 30 Days
- -------------------------------------------------------------------
Schedule V
----------
Software Agreement
------------------
----------------------------
----------------------------
----------------------------
(Tel: Fax: )
------------------- -------------
("Distributor")
END-USER SOFTWARE SUBLICENSE
----------------------------
("Customer"
---------------------------------------------------------------------
(street)
- -----------------------------------------------------------------------
- --------------------------------------------------------------------------------
(city) (state) (postal code) (country)
Tel: Fax:
--------------------------------- --------------------------------------
Contact:
------------------------------------------------------------------------
Hardware Platform: Serial Number(s)
-------------------- --------------------------
This End-User Software Sublicense Agreement ("Agreement") amends the quotation
issued by ("Distributor") or Customer's purchase order or any
----------------
other agreement with Distributor pursuant to which Customer has agreed to
purchase any Davox Corporation ("Davox") product, including, but not limited to,
the Davox Smart Management Center, Davox UNISON brand call management system,
Davox Prelude call management system, predictive dialer, and/or any other Davox
products ("Quotation") Notwithstanding anything in the Quotation to the
contrary, the Davox software furnished Customer under the Quotation or furnished
with or made part of Davox products (referred to herein as the "Software") is
provided to Customer under the terms and conditions of this Agreement. This
Agreement will control and take precedence over the Quotation.
GENERAL TERMS AND CONDITIONS
1. SOFTWARE
"Software" means (i) the machine-readable object code version of the computer
programs provided to Customer under this Agreement (the "Programs"), (ii) the
published user manuals and documentation that Distributor makes generally
available for the Programs (the "Documentation"), (iii) the updates enhancements
or revisions of the Programs or Documentation that Distributor may provide to
Customer (the "Updates") and (iv) any copy of the Programs, Documentation or
Updates. Nothing in this Agreement will entitle Customer to receive the source
code of the Programs or Updates in whole or in part.
2. USE
Subject to the terms of this Agreement, Distributor hereby grants to Customer a
personal nontransferable, nonexclusive license ("License") to use the Software
for Customer's own use and only on the single Computerized
Autodial System, automated call system, Davox UNISON brand call management
system, Davox Prelude brand call management system predictive dialer controller
unit, personal computer, workstation, or other item of equipment ("Unit") for
which the Software is first provided or installed except as otherwise herein
provided. The Programs and Updates may be copied in whole or in part subject to
the proper inclusion of any and all copyright and proprietary notices, only as
may be necessary for Customer's use on such single Unit, solely for archival and
back-up purposes or to replace a worn or defective copy. Customer shall not copy
the Documentation or technical information provided with the Software. If
Customer is unable to operate the Software on the single Unit due to an
equipment malfunction, the Software may be transferred temporarily to another
Unit during the period of equipment malfunction. Customer shall not reverse
compile, disassemble or otherwise reverse engineer, embed within any other
software product or modify in any manner, including modifications to source code
with respect thereto, the Software in whole or in part. If an Update replaces a
prior version of a Program, Customer will immediately destroy such prior version
and all copies thereof upon installing the Update.
3. CONFIDENTIALITY
Customer agrees and acknowledges that the Software is confidential and
proprietary information. Customer shall not disclose, provide or otherwise make
available the Software or any part or copies thereof to any person other than
employees of Customer who have a legitimate need therefor, without prior written
consent of Distributor and Davox. Customer shall take all appropriate actions
by instruction, agreement or otherwise with any persons permitted access to the
Software necessary to satisfy Customer's obligations under this Agreement. All
copies of the Software whether provided by Distributor or made by Customer as
permitted by this Agreement, including without limitation, translations,
compilations or partial copies are the property of Davox and its licensors and
may not be used or disclosed except as permitted by this Agreement. Customer
will not allow the removal or defacement of any confidentiality or proprietary
notice placed on the Software. If an unauthorized use or disclosure occurs
Customer will immediately notify Distributor and take, at Customer's expense,
all steps which may be available to recover the Software and to prevent its
subsequent unauthorized use or dissemination. Customer will have no
confidentiality obligation with respect to any portion of the Software that (i)
Customer independently developed before receiving the Software under this
Agreement, (ii) Customer lawfully obtained from a third party under no
confidentiality obligation or (iii) became available to the public other than as
a result of an act or omission by Customer or any of its employees or
consultants.
4. OWNERSHIP
All rights, title and interest to and all applicable rights in patents,
copyrights and trade secrets in the Software or any of its parts shall remain
vested in Davox or in any third party vendor from whom Davox Corporation has
acquired rights to license the Software, notwithstanding the grant of the
License pursuant to the terms of this Agreement. Customer will not take any
action that jeopardizes Davox's or its licensors' proprietary rights or acquire
any right in the Software, except the limited use rights specified in this
Agreement. Davox or its licensors will own all rights in any copy, translation,
modification or adaptation of, or derivative work based on, the Software,
including any improvement or development thereof. Customer will obtain, at
Distributor's request, the execution of any instrument that may be appropriate
to assign these rights to Davox or its licensors or perfect these rights in
Davox's or its licensor's name.
5. INFRINGEMENT
If an action is brought against Customer claiming that the Software owned by
Davox (the "Davox Software") infringes a patent or copyright within the country
of installation (the "Territory"). Davox will defend Customer and, subject to
this Section and Section 6, pay the damages and costs finally awarded against
Customer in the infringement action, but only if (i) Customer notifies Davox
promptly upon learning that the claim might be asserted, (ii) Davox has sole
control over the defense of the claim and any negotiation for its settlement or
compromise and (iii) Customer takes no action that, in Davox's judgment, is
contrary to Davox's interest. If a claim described in this Section may be or
has been asserted, Customer will permit Davox, at Davox's option, to (i) procure
the right to continue using the Software, (ii) replace or modify the Software to
eliminate the infringement while providing functionally equivalent performance
or (iii) accept the return of the Software and refund to Customer the amount
actually paid to Distributor for such Software, less depreciation based on a 5-
year straight-line depreciation schedule. Davox will have no indemnity
obligation to Customer under this Section if the patent or copyright
infringement claim results from (i) a correction or modification of the Software
not provided by Davox, (ii) the failure to promptly install an Update or (iii)
the combination of the Software with other products not provided by Davox.
6. DISCLAIMER
Customer acknowledges that the warranties, conditions, guarantees or
representations with respect to the Software, if any, are or will be set forth
in a separate agreement executed between Customer and Distributor. NEITHER
DAVOX NOR ITS LICENSORS GRANT CUSTOMER ANY WARRANTY, GUARANTEE, CONDITION OR
REPRESENTATION WITH RESPECT TO THE SOFTWARE OR HARDWARE, AND DAVOX AND ITS
LICENSORS DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. Any
claim for breach of warranty guarantee condition or representation, whether
express or implied may be brought solely against Distributor except as and to
the extent otherwise specifically permitted under applicable law, despite the
foregoing disclaimer.
7. EXCLUSION AND LIMITATION
UNDER NO CIRCUMSTANCES WILL DAVOX OR ITS LICENSORS BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST
PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CUSTOMER'S CLAIMS OR
THOSE OF ITS CUSTOMERS (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.
IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH DAVOX OR ITS LICENSORS MAY INCUR
IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER
FOR THE SPECIFIC PRODUCT THAT DIRECTLY CAUSED THE DAMAGE. THIS SECTION WILL NOT
APPLY ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES
LIABILITY, DESPITE THE FOREGOING EXCLUSION AND LIMITATION.
8. TERMINATION
Unless otherwise provided herein, the License shall expire at such time as
Customer discontinues use of the applicable Software on
the single Unit for which the Software is first provided, but otherwise shall be
without restriction as to time. Customer may terminate this Agreement, without
right to refund, by notifying Distributor of such termination. This Agreement
will terminate automatically if Customer becomes insolvent or enters into
bankruptcy, suspension of payments, moratorium, reorganization or any other
proceeding that relates to insolvency or protection of creditors' rights.
Notwithstanding the foregoing, Distributor shall have the right to terminate the
License if Customer fails to pay any and all required license fees, otherwise
fails to comply with the terms and conditions of the License set forth in this
Agreement and the Quotation, or fails to cure any breach of this Agreement or
the Quotation within ten (10) days after receipt of written notice from
Distributor. Customer agrees that upon expiration of the License or upon notice
of termination thereof, it will immediately return or destroy the Software and
all portions and copies thereof as directed by Distributor and, if requested,
will certify in writing to Distributor as to the destruction or return of the
Software and all copies thereof. The provisions of Sections 5, 6, 8, 9 and 11
will survive the termination of this Agreement.
9. U.S. EXPORT RESTRICTIONS
Customer acknowledges that the Software and all related technical information,
documents and materials are subject to export controls under the U.S. Export
Administration Regulations. Customer will (i) comply strictly with all legal
requirements established under these controls, (ii) cooperate fully with Davox
in any official or unofficial audit or inspection that relates to these controls
and (iii) not export, re-export, divert or transfer directly or indirectly, any
such item or direct products thereof to Cuba, Libya, North Korea or any country
that is embargoed by Executive order, or to any national of the aforementioned
countries, unless Customer has obtained the prior written authorization of Davox
and the U.S. Commerce Department. Upon notice to Customer, Davox may modify
this list to conform to changes in the U.S. Export Administration Regulations.
10. INSPECTION
During the term of this Agreement, Distributor or its designees may, upon prior
notice to Customer, inspect the files, computer processors, equipment and
facilities of Customer during normal working hours to verify Customer's
compliance with this Agreement. While conducting such inspection, Distributor
or its designees will be entitled to copy any item that Customer may posses in
violation of this Agreement.
11. BENEFICIARIES
Davox and any third party from whom Davox has acquired rights to license the
Software or any part thereof is a direct and intended third party beneficiary of
this Agreement and the Quotation to the extent this Agreement or the Quotation
relates to the Software, and may enforce this Agreement and the Quotation
directly against Customer to such extent, provided, however, that no such
licensor shall be liable to the Customer for any general, special, direct,
indirect, consequential, incidental or other damages arising out of or relating
to the Software.
12. ASSIGNMENT
Customer shall not assign, delegate or otherwise transfer this Agreement or any
of its rights or obligations hereunder without Distributor's prior approval. If
Distributor ceases to be Davox's authorized distributor for any reason, this
Agreement may be assigned to Davox or its designee effective immediately upon
notice from Davox, and Customer consents to such assignment in advance.
13. MISCELLANEOUS
All notices or approvals required or permitted under this Agreement must be
given in writing. Any waiver or modification of this Agreement
will not be effective unless executed in writing and signed by Distributor and
approved by Davox. This Agreement will bind Customer's successors-in-interest.
This Agreement will be governed by and interpreted in accordance with the laws
of the Territory. If any provisions of this Agreement is held to be
unenforceable, in whole or in part, such holding will not affect the validity of
the other provisions of this Agreement, unless Distributor in good faith deems
the unenforceable provision to be essential, in which case Distributor may
terminate this Agreement effective immediately upon notice to Customer. No
failure or delay on the part of Distributor to exercise any right or remedy
specified herein shall be construed as a waiver of such right or remedy. Except
as otherwise expressly set forth herein, all terms of the Quotation shall remain
in full force and effect.
SCHEDULE
--------
Terms and Conditions Relating to the Davox Software to be included as an
------------------------------------------------------------------------
Appendix to the agreement to be executed between Datapoint and BT
-----------------------------------------------------------------
1. BT shall have personal, non-transferable, non-exclusive license to use the
Davox Software [in machine readable object form] solely for BT's own
internal business use and only on a single automated call system, Davox
Unison System, controller unit, personal computer or worksession ("Unit")
for which the Davox Software is first provided or installed, except as
otherwise provided in the Appendix (the "Licenses").
2. If BT is unable to operate the Davox Software on a single Unit due to an
equipment malfunction, the Davox Software may be transferred temporarily to
another Unit during the period of such equipment malfunction.
3. The Davox Software may be copied in whole or in part, subject to the proper
inclusion of any and all copyright and proprietary actions, only as may be
necessary for BT's use as a single Unit, solely for archival and back-up
purposed or in replace a worn or defective copy. All such copies shall be
subject to the provisions of this Appendix. BT shall not copy any other
materials or documentation generally made available with the Davox software
(the "Documentation") as any other archival information provided with the
Davox Software.
4. BT shall not reverse compile, disassemble or otherwise reverse engineer,
embed within any other software product, or modify in any manner (including
modifications to source code with respect thereto) the Davox Software in
whole or in part. The information necessary to achieve interoperability of
the Davox Software with independently created program within the meaning of
the Copyright (Computer Programs) Regulations 1992 will be made available
to BT on request and payment of Davox's then current fee for such
information.
5. BT agrees and acknowledges that the Davox Software is the Davox
Corporation's ("Davox") confidential and proprietary information. BT
shall not disclose, provide or otherwise make the Davox Software or the
Documentation, or any part of copies thereof, available to any person other
than employees of BT who have a legitimate need thereafter. BT shall take
all appropriate actions by instruction, agreement or otherwise with any
persons permitted access to the Davox Software necessary to satisfy BT's
obligations in the Appendix.
6. All copies of the Davox Software, whether provided by the Customer or
made by BT under the terms of this Appendix, including, without limitation,
trademarks, compilations or partial copies, are and shall remain the
property of Davox and its Licensors and may not be used or disclosed except
as permitted by the terms of this Appendix.
7. All right, title and license (together with applicable rights in patents,
copyrights, trade secrets or other intellectual property rights) in and to
the Davox Software and the Documentations of any part thereof are and shall
remain the exclusive property of Davox or its licensors (as appropriate)
notwithstanding the grant of the License.
8. Unless otherwise provided in this Appendix, the License shall expire at
such time as BT discontinues use of the Davox Software but otherwise shall
be without restriction as to time. Notwithstanding the foregoing, the
Contractor shall have the right to terminate the License if BT fails to
comply with the terms and conditions thereof. BT agrees that upon
expiration of the License or on notice of termination thereof, it will
immediately return or destroy all copies of the Davox Software and all
portions and copies thereof as directed by the Contractor and shall certify
in writing to the Contractor that such action has been taken.