EXHIBIT 10.10
SOFTWARE MAINTENANCE AGREEMENT
THIS AGREEMENT, dated and effective as of January 31, 1996, is entered
into by and between Genesys Telecommunications Laboratories, Inc. ("Genesys"), a
California corporation with principle offices at 1111 Bayhill Drive, Suite 180,
San Bruno, California 94066 and MCI Telecommunications Corporation ("MCI"), a
Delaware corporation with offices at 1801 Pennsylvania Avenue, N.W., Washington,
D.C. 20006.
NOW THEREFORE, in consideration of the foregoing and mutual covenants
and consideration set forth herein, the parties hereby agree as follows:
ARTICLE 1 - DEFINITIONS
1.1 Any capitalized term used in this Agreement and not herein
defined shall have the meaning set forth in the License Agreement (as
hereinafter defined).
1.2 "Extended Hours" means telephone assistance service twenty-four
(24) hours a day, seven (7) days a week.
1.3 "License Agreement" means the agreement dated January 31, 1996,
pursuant to which the Licensed Software was licensed to MCI and all terms and
conditions contained therein.
1.4 "Maintenance and Support" means the services described in
Article 2 hereof.
1.5 "Standard Hours" means Monday through Friday, 9:00 a.m. to
5:00 p.m. California time, excluding holidays.
1.6 "Updates" means a release or version of the Licensed Software
containing functional enhancements, modifications, extensions, error corrections
or bug fixes. The content of all Updates shall be decided upon by Genesys in
its sole discretion and will generally include changes that correct defects as
well as upgrade the Licensed Software to the most current release or version of
the Licensed Software then being generally marketed by Genesys.
ARTICLE 2 - MAINTENANCE AND SUPPORT PROVIDED BY GENESYS
2.1 For so long as MCI is current in the payment of all fees set
forth in Article 6 of this Agreement, MCI is entitled to Maintenance and Support
as specified in this Article 2.
2.2 Maintenance and Support Services. "Maintenance and Support"
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means that Genesys will provide:
* Confidential Treatment Requested. Confidential portion has been filed
separately with the Securities and Exchange Commission.
(A) Updates, if any, and appropriate Documentation;
(B) telephone assistance with respect to the Licensed Software
within the hours of service as elected by MCI, such assistance to be
provided in accordance with the escalation, procedures and response time
targets set forth in Schedule B attached hereto and to otherwise include
(i) clarification of functions and features of the Licensed Software, (ii)
clarification of Documentation pertaining to the Licensed Software, (iii)
guidance in the operation of the Licensed Software, and (iv) error
verification, analysis and code corrections, as necessary, to cause the
Licensed Software to perform in accordance with the Applicable
Specifications and the most current Documentation as updated by Licensor
from time to time, to the extent possible (except for code corrections) by
telephone;
(C) access to an electronic bulletin board on which MCI may leave
messages for Genesys support engineers and receive Updates notifications
and other end-user information, and from which MCI may download Updates;
and
(D) remote dial-in diagnosis of and assistance in connection with
a reported error or bug by Genesys directly to the Designated CPU upon
which the Licensed Software is operating.
During the term of this Agreement, Genesys shall use its reasonable efforts to
correct any reproducible programming error in the Licensed Software attributable
to Genesys with a level of effort commensurate with the severity of the error,
provided that Genesys shall have no obligation to correct all errors in the
Licensed Software. Upon identification of any programming error, MCI shall
notify Genesys of such error and provide Genesys with enough information to
locate the error. MCI may obtain Updates either through delivery of a machine
readable copy pursuant to instructions contained in the Update notification or
by downloading the Update from Genesys' electronic customer service bulletin
board.
2.3 Hours of Telephone Assistance. Telephone assistance shall be
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provided to MCI by Genesys during Genesys' Standard Hours or, as MCI may elect
under each purchase order with respect to ordered Licensed Software, such
services may be provided for Extended Hours. Fees for Maintenance and Support
under this Agreement shall depend on the election by Customer between either
Standard Hours or Extended Hours of telephone assistance as set forth in Section
6 hereof.
2.4 Annual Account Review. Genesys shall provide MCI with one (1)
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day of free consulting at MCI's facility each year to review the status of the
Licensed Software, assess MCI's ongoing and future use of the Licensed Software,
solicit input from MCI on future development and direction of the Licensed
Software, and to make recommendations regarding MCI's use of the Licensed
Software.
2.5 Social Services. Genesys agrees to use reasonable efforts to
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respond
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to any requests by MCI for maintenance and support services not specifically
provided for above. MCI acknowledges that all such services provided by Genesys
shall be at Genesys' then current terms and conditions for such services.
ARTICLE 3 - ADDITIONS
3.1 The annual Maintenance and Support fees shall be adjusted to
reflect any increases in MCI's license fee that are attributable to MCI's
licensing, from time to time, additional software from Genesys pursuant to the
License Agreement. Such adjustment shall be equal to the percentage of the full
purchase price of such additional software corresponding to the maintenance plan
selected by MCI under the Purchase Order. Additionally, notwithstanding
anything herein to the contrary, continuation of Maintenance and Support to MCI
after any such increase in the license fee shall be subject to payment of a fee
equal to the difference between the Annual Maintenance Fee before and after
increase such adjustment, prorated for the remaining term of the then current
twelve (12) month term of this Agreement, as measured from the date of such
change.
ARTICLE 4 - EXCLUSIONS
4.1 Eligible Software. Genesys shall not be responsible for
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correcting any errors not attributable to Genesys. Genesys is not required to
provide any Maintenance or Support services relating to problems arising out of
(i) MCI's failure to implement all Updates which are issued under this
Agreement; (ii) changes to the operating system or environment which adversely
affect the Licensed Software; (iii) any alterations of or additions to the
Licensed Software performed by parties other than Genesys or not at the
direction of Genesys; (iv) use of the Licensed Software in a manner for which it
was not designed; (v) operation outside of environmental specifications; (vi)
interconnection of the Licensed Software with other software products not
supported by Genesys unless the intended interconnection with such other
software was known to or reasonably should have been anticipated by Genesys
given the use for which the Licensed Software was designed, or (vii) use of the
Licensed Software on equipment other than the equipment for which such software
was designed for and licensed for use on.
4.2 Prior Software Versions. Except as otherwise provided in Section
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6.1
(A) Maintenance and Support is provided with respect to versions
of the Licensed Software that, in accordance with Genesys policy, are then
being supported by Genesys; and
(B) Genesys shall only be obligated to support the then current
production version of the Licensed Software and the immediately prior
release for a period of twelve (12) months after the release of the then
current production version, provided that MCI has received and had
sufficient time to implement Updates upgrading its Licensed Software to the
then current production version
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thereof.
4.3 Additional Services. Support for any earlier versions or for
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other problems not covered under this Agreement may be obtained at Genesys' then
current rates for special technical services, subject to the reasonable
availability of Genesys staff.
ARTICLE 5 - MCI RESPONSIBILITIES
5.1 Responsibility. In consideration for Genesys' obligations to
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provide Maintenance and Support, MCI agrees to the following:
(A) MCI shall, during normal business hours, provide Genesys with
reasonable access either telephonically or on a remote basis to MCI's
personnel and equipment upon which the Licensed Software is loaded or
operating. This access shall include, when applicable, the ability to
dial-in to equipment on which the Licensed Software is operating when
applicable and subject to Licensee's security requirements. Genesys will
inform MCI of the specifications of the modem equipment needed, and MCI
will be responsible for the costs and use of said equipment at the MCI's
location.
(B) MCI shall provide supervision, control and management of the
use of the Licensed Software. In addition, MCI shall implement procedures
for the protection of information and the implementation of backup
procedures in the event of errors or malfunction of the Licensed Software
or equipment upon which the Licensed Software is loaded or operating.
(C) MCI shall document and promptly report all errors or
malfunctions of the Licensed Software to Genesys. MCI shall take all steps
necessary to carry out procedures for the rectification of such errors or
malfunctions within a reasonable time after such procedures have been
provided by Genesys.
(D) MCI shall maintain a current backup copy of all programs and
data.
(E) MCI shall properly train its personnel in the use and
application of the Licensed Software and the equipment on which the
Licensed Software is loaded or operating.
5.2 Contact People. For each major department or organization
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issuing a purchase order for Licensed Software, MCI shall appoint up to two (2)
individuals within MCI's organization to serve as primary contacts between MCI
and Genesys and to receive support through Genesys' telephone support center.
All of MCI's support inquiries for the relevant Licensed Software shall be
initiated through these contacts.
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ARTICLE 6 - FEES AND PAYMENT
6.1 Fees. Maintenance and Support are offered on an annual basis.
The initial Maintenance and Support period shall begin upon the Effective Date
and end one year from such date. For the initial year of this Agreement, if [*]
under a Purchase Order to acquire [*] Maintenance and Support Services, the
price of maintenance shall be equal to [*]% of the [*] for the relevant
software; if [*] under a Purchase Order to acquire [*] Maintenance and Support
Services, the price of maintenance shall be equal to a [*]% of the [*] for the
relevant software ([*]). The fees shall be paid as provided in Section 3.1 of
the License Agreement. For each subsequent year, [*] the Maintenance and Support
fee rates; provided, however, that [*] of this Agreement, [*] shall the
Maintenance and Support fees [*] over the Base Maintenance Rates (i.e., an [*]
on average, for the [*]), excluding increases attributable to the license of
additional software, as further provided in Section 3.1. Notwithstanding
anything herein contained to the contrary, [*] and [*] of the Licensed Software,
and appropriate Documentation ("New Version Support") will be provided as part
of Maintenance and Support, [*], through the [*]. If [*] additional licenses for
any of the Licensed Software, and, if, as a result of [*] is required to pay
additional license fees, then the Maintenance and Support fee for the [*] as
appropriate. Beginning with the [*], Maintenance and Support fees and New
Version Support fees shall be separately priced as follows: The [*] Maintenance
and Support fee shall be [*] under the Purchase Order; and the [*] New Version
Support fee shall be [*] New Version Support fee that [*]. Notwithstanding the
foregoing, if, at any time, Genesys offers New Version Support on a [*] to a
[*], then [*] to receive such support at the [*]. [*] that if a Maintenance and
Support fee and/or New Version Support fee [*], or, [*], then [*] in writing,
and the fees stated herein shall be [*] by written amendment. Notwithstanding
anything herein contained to the contrary, if at anytime after the [*] New
Version Support then [*] to provide Maintenance and Support for the latest
version of the Licensed Software delivered to [*] for a period of [*] from the
date of [*]. [*] Maintenance and Support upon [*] days prior written notice.
Annual Maintenance and Support Fees shall be invoiced [*].
6.2 Time of Payment. Except as otherwise provided in this Agreement
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all amounts due Genesys shall be paid within forty-five (45) days of MCI's
receipt of the
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* Confidential Treatment Requested
relevant invoice from Genesys.
6.3 Taxes. Unless otherwise agreed in writing, all charges under
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this Agreement do not include any taxes, duties or charges of any kind
(including withholding or value added taxes) imposed by any federal, state, or
local governmental entity for products or services provided under this
Agreement, excluding only taxes based solely on Genesys's net income. When
Genesys has the legal obligation to collect such taxes, the appropriate amount
shall be invoiced to MCI unless MCI provides Genesys with a valid tax exemption
certificate authorized by the appropriate taxing authority. MCI shall hold
Genesys harmless from all claims and liability arising from MCI's failure to pay
any such taxes, duties, or charges.
ARTICLE 7 - TERM AND TERMINATION
7.1 Term. This Agreement shall take effect on the Effective Date and
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shall remain in effect for an initial term of one (1) year. This Agreement
shall automatically renew at the end of the initial term and each subsequent
term for a renewal term of one (1) year. Notwithstanding the foregoing, any MCI
organization obtaining Support and Maintenance services hereunder may, without
penalty to MCI, terminate the services being provided under this Agreement in
whole or in part upon forty-five (45) days' written notice to Genesys. In the
event of such termination, Genesys, within fortyfive (45) days of its receipt of
such notice, shall deliver to MCI a pro-rated refund of the Maintenance and
Support fee for the then current Maintenance Year.
7.2 Termination. This Agreement shall terminate upon (i) termination
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of the License Agreement or (ii) with respect to any MCI organization acquiring
support hereunder, upon thirty (30) days notice of material breach of a party's
obligations hereunder if such breach, if capable of being cured, is not cured
within thirty (30) days of notice of such breach. Upon such termination, all
earned and unpaid fees and other charges payable under this Agreement shall
become immediately due and payable.
7.3 Survival. Termination of Maintenance and Support upon failure to
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renew will not affect the license of the Licensed Software. The provisions of
Articles 8, 9 and 10 shall survive any termination or expiration of this
Agreement.
ARTICLE 8 - OWNERSHIP AND USE
8.1 Title. All Updates and other changes, improvements, bug fixes or
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other modifications to the Licensed Software provided under this Agreement shall
be deemed to be included within the Licensed Software and will be subject to the
terms and conditions of the License Agreement.
ARTICLE 9 - WARRANTY DISCLAIMER
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Nothing in this Agreement shall be construed as expanding or adding to any
warranty in the License Agreement. Genesys will use all reasonable commercial
efforts to provide the support requested by MCI under this Agreement in a
professional and workmanlike manner, but Genesys cannot guaranty that every
question or problem raised by MCI will be resolved. GENESYS MAKES, AND MCI
RECEIVES, NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, ARISING IN
ANY WAY OUT OF, RELATED TO, OR UNDER THIS AGREEMENT OR THE PROVISION OF
MATERIALS OR SERVICES THEREUNDER, AND GENESYS SPECIFICALLY DISCLAIMS ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE 10 - LIMITATION OF LIABILITY
[*] that, other than for any [*] with respect to software viruses, which is
incorporated by reference herein from the License Agreement, [*] under this
Agreement is [*] the [*]. [*] HAVE ANY [*] FOR ANY [*] INCLUDING, [*] OR
SERVICES, ARISING IN ANY WAY OUT OF THIS AGREEMENT UNDER ANY CAUSE OF ACTION,
[*].
ARTICLE 11 - GENERAL PROVISIONS
11.1 Confidentiality. The parties agree that the terms and
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conditions of this Agreement shall be treated by each party as the Confidential
Information of the other party, and that neither party shall disclose the
contents of this Agreement without the prior written consent of the other party;
provided, however, that the general existence of this Agreement shall not be
treated as Confidential Information and that either party may disclose the terms
and conditions of this Agreement
(A) under the circumstances and subject to the conditions set
forth in Section ? of the License Agreement;
(B) in confidence, to such party's legal counsel;
(C) in confidence, to such party's accountants; or
(D) in confidence, in connection with the enforcement of this
Agreement or rights under this Agreement.
Notwithstanding the foregoing, either party may, without the other party's prior
consent
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* Confidential Treatment Requested
disclose the aggregate dollar amounts associated with this Agreement (but no
other terms and conditions), in confidence to its banks, proposed investors and
financing sources.
11.2 Assignment. Neither party shall have the right to transfer,
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assign or otherwise dispose of its rights or obligations hereunder, by operation
of law or otherwise, without the prior written consent of the other party.
Notwithstanding the foregoing, (i) MCI may transfer or assign its rights and
obligations, in whole or in part, to an Affiliate, provided that MCI shall,
however, notify Genesys of such transfer or assignment, and (ii) Genesys may
assign this Agreement as part of the sale of all or substantially all of its
assets or as part of any transaction resulting in a change in control of
Genesys, provided that Genesys shall notify MCI of such assignment and that MCI
shall have the option of terminating (without prejudice to other provisions of
this Agreement) any development obligations then in effect.
11.3 Captions. The captions used in this Agreement are included for
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convenience only and shall not be considered part of this Agreement for any
purpose.
11.4 Governing Law. This Agreement shall be governed, construed and
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enforced in accordance with the laws of the state of New York, without reference
to conflict of laws principles.
11.5 Dispute Resolution and Jurisdiction. Any dispute arising out of
-----------------------------------
or related to this Agreement, which cannot be resolved by negotiation, shall be
settled in accordance with the provisions set forth for dispute resolution and
jurisdiction in the License Agreement.
11.6 Independent Contractors. The relationship of Genesys and
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Contractor established by this Agreement is that of independent contractors, and
nothing contained in this Agreement shall be construed (i) to give either party
the power to direct or control the day-to-day activities of the other or (ii) to
constitute the parties as partners, joint venturers, co-owners or otherwise as
participants in a joint or common undertaking.
11.7 Severability. If any provision of this Agreement is held to be
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invalid by a court of competent jurisdiction, then the remaining provisions
shall nevertheless remain in full force and effect. The parties further agree
to negotiate in good faith a substitute, valid and enforceable provision that
most nearly effects the parties' intent and to be bound by mutually agreed
substitute provision.
11.8 No Waiver. The failure of either party to enforce at any time
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any of the provisions of this Agreement shall not be deemed to be a waiver of
the right of such party thereafter to enforce any such provisions.
11.9 Force Majeure. Except for the obligation to make payments,
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nonperformance of either party shall be excused to the extent that performance
is rendered
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impossible by strike, fire, flood, governmental acts or orders or restrictions,
failure of suppliers, or any other reason where failure to perform is beyond the
reasonable control of the non-performing party.
11.10 Notices. Any required notices hereunder shall be given in
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writing at the address of each party set forth above, or to such other in the
manner contemplated herein, and shall be deemed served when delivered or, if
delivery is not accomplished by reason or some fault of the addressee, when
tendered.
11.11 Entire Agreement. This Agreement and Schedules attached hereto
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and incorporated herein constitute the entire, final, complete and exclusive
agreement between the parties and supersede all previous agreements or
representations, oral or written, relating to this Agreement. This Agreement
may not be modified or amended except in a writing signed by a duly authorized
representative of each party. Both parties acknowledge having read the terms
and conditions set forth in this Agreement and Schedules attached hereto,
understand all terms and conditions, and agree to be bound thereby.
This Agreement is accepted and made effective as of the date first
written above.
Genesys Telecommunications MCI Telecommunications
Laboratories Corporation
By: /s/ Gregory Shenkman By: /s/ H. A. Shartel
---------------------------- -------------------------
Name: Gregory Shenkman Name: H. A. Shartel
-------------------------- -----------------------
Title: President Title: Sr. Manager
------------------------- ----------------------
Date: January 31, 1996 Date: January 31, 1996
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SCHEDULE B
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Escalation Procedures and Response Time Targets
1. Technical Support Availability:
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Genesys will provide [*]. [*] may be achieved through [*].
2. Problem Severity Identification:
-------------------------------
[*]
Severity 1 - [*]
Severity 2 - [*]
Severity 3 - [*]
Severity 4 - [*]
3. Problem Acknowledgment:
----------------------
Severity 1 - Genesys shall [*] and [*]. Weekend and holiday status updates
will be provided [*], unless the End-User, MCI and Genesys have agreed to
[*] until the [*] .
Severity 2 - Genesys shall [*] and provide [*].
Severity 3 - Genesys shall [*] and provide [*].
Severity 4 - Genesys shall [*] and provide [*].
* Confidential Treatment Requested
4. Problem Resolution Targets (applicable to both workstation and host
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software problems):
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Severity 1 Severity 2 Severity 3
[*] of Problems Resolved In: [*] [*] [*]
[*] of Problems Resolved In: [*] [*] [*]
[*] of Problems Resolved In: [*] [*] [*]
[*] of Problems Resolved In: [*] [*] [*]
[*] of Problems Resolved In: [*] [*] [*]
2.
* Confidential Treatment Requested
AMENDMENT NUMBER ONE TO SOFTWARE MAINTENANCE AGREEMENT
THIS AMENDMENT NUMBER ONE (the "Amendment") to the Software Maintenance
Agreement by and between Genesys Telecommunications Laboratories, Inc.
("Genesys"), a California corporation with a principal place of business at 1155
Market Street, 11th Floor, San Francisco, Ca 94103 and MCI Telecommunications
Corporation ("MCI"), a Delaware corporation with offices at 1801 Pennsylvania
Avenue, N.W., Washington, D.C. 20006 dated January 31, 1996 (the "Agreement") is
entered into this 26th day of February, 1997 (the "Effective Date").
In consideration of the promises and conditions set forth below, the parties
agree as follows:
BACKGROUND
A. Genesys and MCI have entered into a Master Consulting Agreement as of even
date herewith pursuant to which Genesys has undertaken, among other things, the
development of an intelligent network call router software product which Genesys
intends to productize as a new software product;
B. Genesys and MCI have previously entered into a Master Software License
Agreement dated January 31, 1996 (the "License Agreement"), and have entered
into an amendment to the License Agreement as of even date herewith pursuant to
which, among other things, MCI is licensing such intelligent network call router
software product;
C. Genesys and MCI desire to amend the Agreement as set forth in this
Amendment Number One to reflect the licensing by MCI of such new software
product as Licensed Software pursuant to the License Agreement and to make other
mutually agreed to amendments to the Agreement;
AMENDMENT
1. AMENDMENT OF AGREEMENT. This Amendment hereby amends and revises the
Agreement to incorporate the terms and conditions set forth in this Amendment.
The relationship of the parties shall continue to be governed by the terms of
the Agreement as amended.
2. DEFINITIONS. As used in this Amendment, all capitalized terms shall have
the meanings assigned to such terms in this Amendment, or, if not specified in
this Amendment, the meanings defined elsewhere in the Agreement.
3. ARTICLE 1 - DEFINITIONS.
a. Section 1.5 is modified by replacing "9:00 a.m. to 5:00 p.m." with
"9:00 a.m. to 5:30 p.m."
b. The following definitions are added to this article 1:
1.7 "CUSTOMER" shall have the meaning set forth in Section 1.10 of the
MSLA.
1.8 "EFFECTIVE DATE" means the effective date of Amendment Number One to
this Software Maintenance Agreement.
1.9 "LICENSE FEE" shall have the meaning set forth in Section 1.13 of the
MSLA.
1.10 "NETWORK APPLICATIONS" shall have the meaning set forth in Section
1.17 of the MSLA."
4. ARTICLE 2 - MAINTENANCE AND SUPPORT PROVIDED BY GENESYS.
a. Section 2.1 is deleted and replaced with the following:
"For so long as MCI or a specific MCI Affiliate is current in the
payment of all fees set forth in Article 6 of this Agreement, then MCI
or such specific MCI Affiliate, as applicable, is entitled to
Maintenance and Support as specified in this Article 2."
b. Subsection D. of Section 2.2 ("Maintenance and Support Services") is
modified, in part, to read as follows:
"...upon which the Licensed Software is operating; provided, however,
that such access shall be subject to MCI's prior consent and will be
provided by MCI solely for the purpose of, and only during such time
as required for, such diagnosis and assistance in connection with the
reported error or bug."
c. In the first sentence of the last paragraph of Section 2.2, such
sentence commencing with the words "During the term of this Agreement...",
the clause "provided that Genesys shall have no obligation to correct all
errors in the Licensed Software" is deleted.
d. The following sentences are added to the last paragraph of Section 2.2
at the end of the second sentence.
"In such event, Genesys shall together with other applicable
participants use its commercially reasonable efforts to isolate the
error and determine whether or not it is attributable to the Licensed
Software. Once any such problem is identified not to be attributable
to the Licensed Software, MCI agrees to pay for any additional Genesys
support services under Section 2.5."
-2-
5. ARTICLE 3 ADDITIONS. This Article is deleted in its entirety.
6. ARTICLE 5 - MCI RESPONSIBILITIES
a. The second sentence of Subsection (A) of Section 5.1 ("Responsibilities
of MCI"), such second sentence commencing with the words "This access shall
include..." is modified, in part, to read as follows:
"...subject to Licensee's security requirements; provided, however,
that such dial-in access, including as referred to in the immediately
preceding sentence, shall be subject to MCI's prior consent and will
be provided by MCI solely for the purpose of, and only during such
time as required for, the particular specified Genesys maintenance
activity."
7. ARTICLE 6 - FEES AND PAYMENT
a. Subsection 6.1 is deleted and replaced in its entirety, as follows:
"6.1 Fees.
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(A) Maintenance and Support are offered on an annual basis. The cost
of [*] Maintenance and Support for [*] shall be equal to [*] of the
[*] of the applicable Licensed Software effective as of the date of
the Purchase Order for such Maintenance and Support; and the cost of
[*] Maintenance and Support Services for [*] shall be equal to [*] of
the License Fees for the applicable Licensed Software effective as of
the date of the Purchase Order for such Maintenance and Support (such
foregoing applicable Maintenance and Support fees are referred to
herein collectively as "[*]"). Notwithstanding the foregoing, (i)
maintenance fees [*] of Network Applications [*] under the MSLA shall
be [*] dollars [*] during the [*] and [*] dollars (following such [*],
the maintenance fees for Network Applications shall be the [*] and
(ii) all maintenance fees for Premises Software shall be [*]
(B) The [*] maintenance fees for Licensed Software (other than the
[*], shall be payable, one year in advance, within thirty (30) days
following [*] of an invoice [*] for such maintenance fees or, for
Network Applications, the [*] or (ii) the [*] for the relevant
Licensed Software. The maintenance fees for Network Applications [*]
shall be payable within thirty (30) days following [*] of an invoice
[*] for such fees or (y) [*]
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*Confidential Treatment Requested
[*] of the Network Applications. For each year [*] the applicable
maintenance fees for the applicable Licensed Software, the [*] shall
be the [*], payable, one year in advance, within thirty (30) days
following [*] of an invoice [*] for such [*]. To the extent [*]
Licensed Software, [*], the Maintenance Rates for such [*] Licensed
Software may be [*] for [*] or [*] a full year to cause the [*]
maintenance periods for such [*] Licensed Software to have [*] with
previously Licensed Software licensed hereunder. [*] maintenance fees
shall be invoiced each year [*]."
b. SECTION 6.2. ("TIME OF PAYMENT") is modified, in part, to read as
follows:
"...shall be paid within thirty (30) days..."
8. ARTICLE 7 - TERM AND TERMINATION.
a. The first sentence of Section 7.1 ("Term") is deleted and replaced with
the following:
"This Agreement shall take effect on the Effective Date of this
Amendment Number One and shall remain in effect for an initial term of
two (2) years."
b. The second sentence of Section 7.3 is modified, in part, to read as
follows:
"...Articles 8, 9, 10 and 11 shall survive any termination..."
9. ARTICLE 9 - WARRANTY DISCLAIMER. The first sentence of Article 9 is
modified, in part, to read as follows:
"...shall be construed to modify any warranty..."
10. ARTICLE 11 - GENERAL PROVISIONS
a. Subsection A of Section 11.1 ("Confidentiality"), is modified to read,
in part, as follows:
"...the conditions set forth in Section 9.2 of the MSLA."
b. The following new paragraph is added to the end of Section 11.1:
"Information disclosed by one Party to the other or otherwise obtained
by one Party in the performance of this Agreement shall be subject to
the provisions of Article 9 of the MSLA modified so as to be
applicable to this Agreement."
-4-
*Confidential Treatment Requested
c. The first sentence of Section 11.2 is modified, in part, to read
as follows:
"... consent of the other party, which consent shall not be
unreasonably withheld or delayed."
d. The second sentence in Section 11.2 is modified, in part, to read as
follows:
"... transfer or assignment, and (ii) either party may assign this
Agreement as part of the sale of all or substantially all of the
business assets to which this Agreement relates or as part of any
transaction resulting in a merger, consolidation or other change in
control of the assigning party, provided that the assigning party
shall notify the non-assigning party of such assignment."
e. The first sentence of Section 11.11 ("Entire Agreement") is modified to
read, in part, as follows:
"This Agreement and the Schedules attached hereto and incorporated
herein, along with any provisions of the MSLA expressly incorporated
herein by reference, constitute the entire..."
11. SCHEDULE B ("ESCALATION PROCEDURES AND RESPONSE TIMES TARGETS")
1. TECHNICAL SUPPORT AVAILABILITY. This section is deleted and replaced
in its entirety with the following:
"Genesys will provide [*] for both [*]. [*] may be [*] through [*]."
3. PROBLEM ACKNOWLEDGMENT. This section is deleted and replaced in its
entirety with the following:
"Unless otherwise [*] to by [*] on a [*], the currently stated [*] for
[*], are modified to the following:
SEVERITY 1 - Genesys shall [*] of notice thereof and [*], including on
[*] unless for such [*] have agreed to [*] until the [*].
SEVERITY 2 - Genesys shall [*] of notice thereof and [*], including
on [*] unless for such [*] have agreed to [*] until the next [*].
SEVERITY 3 - Genesys shall [*] of notice thereof and [*], excluding
[*].
SEVERITY 4 - Genesys shall [*] of receipt of notice thereof and [*].
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*Confidential Treatment Requested
4. PROBLEMS RESOLUTION TARGETS. The current section is deleted and
replaced, in is entirety, with the following:
"The following problem resolution targets are applicable to both
workstation and host software problems:
SEVERITY 1 SEVERITY 2 SEVERITY 3
---------- ---------- ----------
[*] of problems [*] [*] [*]
resolved in:
[*] of problems [*] [*] [*]
resolved in:
[*] of problems [*] [*] [*]
resolved in:
[*] of problems [*] [*] [*]
resolved in:
[*] of problems [*] [*] [*]
solved in:
12. ENTIRE AGREEMENT. This Amendment and the Agreement, and the MSLA to the
extent incorporated herein by reference, constitute the entire Agreement between
the parties in connection with the subject matter of this Amendment and
supersede all prior and contemporaneous agreements, understandings, negotiations
and discussions, whether oral or written, of the parties.
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* Confidential Treatment Requested
IN WITNESS WHEREOF, Genesys and MCI have caused this Amendment Number One
to the Software Maintenance Agreement to be executed by their duly authorized
representatives, effective as of the Effective Date set forth above.
AGREED AND ACCEPTED BY:
Genesys Telecommunications MCI Telecommunications
Laboratories, Inc. Corporation
/s/ Gregory Shenkman /s/ John W. Gerdelman
----------------------------- ------------------------------
Signature Signature
Gregory Shenkman John W. Gerdelman
----------------------------- ------------------------------
Print Name Print Name
President and Chief Executive
Officer Executive Vice President
----------------------------- ------------------------------
Title Title
February 26, 1997 February 26, 1997
----------------------------- ------------------------------
Date Date
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