EXHIBIT 10.9
MASTER SOFTWARE LICENSE AGREEMENT
BETWEEN
GENESYS TELECOMMUNICATIONS LABORATORIES
AND
MCI TELECOMMUNICATIONS CORPORATION
January 31, 1996
* Confidential Treatment Requested. Confidential portion has been filed
separately with the Securities and Exchange Commission.
TABLE OF CONTENTS
Page
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ARTICLE 1 -- DEFINITIONS.............................. 1
ARTICLE 2 -- APPLICABILITY OF AGREEMENT............... 2
ARTICLE 3 - LICENSE................................... 3
ARTICLE 4 -- PRICE AND PAYMENT........................ 5
ARTICLE 5 -- LIMITED WARRANTY......................... 5
ARTICLE 6 -- DISCLAIMER............................... 6
ARTICLE 7 -- MAINTENANCE SERVICES..................... 7
ARTICLE 8 -- PROPRIETARY RIGHTS....................... 7
ARTICLE 9 -- CONFIDENTIALITY.......................... 7
ARTICLE 10 -- INTELLECTUAL PROPERTY RIGHT INDEMNITY... 9
ARTICLE 11 -- LIMITATION OF LIABILITY AND REMEDIES.... 11
ARTICLE 12 -- SOURCE CODE ESCROW...................... 11
ARTICLE 13 -- TERM AND TERMINATION.................... 12
ARTICLE 14 -- GENERAL................................. 13
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This MASTER SOFTWARE LICENSE AGREEMENT ("Agreement"), dated as of
January 31, 1996 ("Effective Date"), is made and entered into by and between
GENESYS TELECOMMUNICATIONS LABORATORIES, a California corporation with offices
at 1111 Bayhill Drive, Suite 180, San Bruno, CA 94066 ("Genesys") and MCI
TELECOMMUNICATIONS CORPORATION, a Delaware corporation with offices at 1801
Pennsylvania Ave., N.W., Washington, D.C. 20006 ("MCI").
ARTICLE 1 -- DEFINITIONS
1.1 "Affiliate" means, with respect to a named party, any corporation,
partnership, joint venture or other entity controlling, controlled by or under
common control with such party.
1.2 "Applicable Specification" means the functional and operational
characteristics of the Licensed Software as described in Licensor's current
Documentation, published product description and technical manuals, together
with such other performance, scaleability or other operational requirements and
standards agreed to between the parties and set forth in an attachment hereto or
as a part of MCI's purchase order, either of which shall be deemed to be
incorporated as a part hereof.
1.3 "Confidential Information" means information of a party (the "Owner")
which relates, respectively, to the matters contemplated by this Agreement,
including trade secrets, business and technical information and data, or which,
although not related to matters, is nevertheless disclosed to the other party
(the "Recipient") as a result of the relationship between the parties
established by this Agreement and which, in any case, (i) is disclosed by the
Owner to the Recipient in document, electronic media, or other form bearing an
appropriate legend indicating its confidential or proprietary nature, (ii)
which, if initially disclosed orally or visually is identified as confidential
at the time of disclosure and a written summary thereof, also marked with such a
legend, is provided to the Recipient within fifteen (15) days of the initial
disclosure, or (iii) is by its very nature, in the ordinary course of business,
customarily understood to be confidential or proprietary information, including,
but not limited to the object code of the Licensed Software and related
Documentation, product development plans, internal hardware and software systems
architecture, and unannounced business plans.
1.4 "Designated CPU" means a central processing unit or file server
machine as identified by the serial number and location in the Purchase Order
under which a license to Licensed Software is being obtained by MCI:
1.5 "Documentation" means manuals and other documentation which are
generally made available to licensees of the Licensed Software together with
such
other documentation specifically made available to MCI by Genesys with the
Licensed Software.
1.6 "Licensed Software" means the software programs described in Exhibit A
attached hereto, in object code format, including any accompanying
Documentation, and including all corrections, modifications, enhancements and
upgrades to such software which may be provided to MCI by Genesys hereunder
pursuant to the terms of Article 7 below.
1.7 "Simultaneous Users" means the number of end-users permitted to
concurrently access and use, at the same time, the Licensed Software.
ARTICLE 2 -- APPLICABILITY OF AGREEMENT
2.1 This Agreement establishes the general terms and conditions under
which MCI and its Affiliates (collectively, and individually, "MCI") shall now
or in the future acquire from Genesys its services and a license to use
Genesys's proprietary computer software systems or programs and related
documentation, all of which are referred to in this Agreement as a "Licensed
Software" (whether singular or plural).
2.2 Genesys's current product listing of all Licensed Software is attached
hereto as Exhibit A. Genesys shall, from time to time during the Term, at the
request of MCI, provide MCI with new listing Licensed Software as the same may
come available.
2.3 Genesys shall not be obligated to provide any Licensed Software to MCI
and MCI shall not be obligated to pay for or accept any Licensed Software by
virtue of this Agreement alone without the issuance of a purchase order (herein,
"Purchase Order") by MCI and the written acceptance thereof by Genesys. Any such
Purchase Order shall specifically reference this Agreement. The specified
Licensed Software, term (period of usage) and effective date of the license,
Applicable Specifications, shipping and billing information, payment terms,
delivery date of the Licensed Software, eligible computer site(s), Designated
CPU(s), Simultaneous User restrictions, operating system, license fee,
maintenance services or charges, as may be relevant, and any other matter not
provided for herein, shall be specified in such Purchase Order. The terms and
conditions of this Agreement shall control over any pre-printed words on a
Purchase Order. In the event of any conflict or inconsistency between the terms
and conditions of this Agreement and the terms on any Purchase Order, the terms
of this Agreement shall control unless such Purchase Order terms are approved in
writing by the parties' legal counsel.
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ARTICLE 3 -- LICENSE
3.1 Software License. Subject to the terms and conditions of this
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Agreement, for each Purchase Order issued by MCI and accepted by Genesys,
Genesys shall grant MCI a [*] (except as otherwise provided in Section 14.1),
[*] license to use the applicable Licensed Software in [*] solely on the
Designated CPU, [*] for the use by the number of Simultaneous Users for such
Designated CPU specified in the Purchase Order for the purposes of MCI's
business and the business(es) of its Affiliates.
3.2 Delivery and Acceptance.
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(A) Upon final acceptance by Genesys of a Purchase Order, MCI shall
pay the license fee referenced and in accordance with the payment schedule
specified in the Purchase Order or an exhibit or schedule thereto ("License
Fee"). The initial installation for the Licensed Software will be performed by
Genesys during MCI's normal working hours and will include the products and
services listed in the Purchase Order, to be provided according to the schedule
specified therein. Genesys will notify MCI when installation of the Licensed
Software has been completed. Genesys agrees to deliver, at the time of such
installation, Documentation in form and substance reasonably satisfactory to
MCI. Following installation, unless otherwise specified in the Purchase Order,
MCI shall have a period of [*] days for inspection and testing of the Licensed
Software to determine conformance with the Applicable Specifications for the
Licensed Software (the "Acceptance Criteria"). The designation in any Purchase
Order of an acceptance period of less than [*] days shall not be effective
unless such Purchase Order is countersigned by an MCI representative of Director
level. If any feature or module of the Licensed Software is found not to
conform, MCI shall, within the inspection period, notify Genesys and provide a
detailed description of such defects. Following confirmation by Genesys of such
defects, Genesys will provide MCI with a corrected version of the Licensed
Software, and if Genesys fails to deliver such corrected version within a
reasonable time (not to exceed [*] days from MCI's notification to Genesys), MCI
will have the option of canceling the Purchase Order within the next [*]
business days. In the event MCI exercises such option, MCI shall return all
copies of the Licensed Software and the Documentation to Genesys; Genesys shall
promptly refund to MCI all amounts paid by MCI to Genesys pursuant to the
applicable Purchase Order, and neither party shall have any future obligations
or liability under that Purchase Order with respect to the relevant Licensed
Software. Such full refund and cancellation shall be MCI's sole and exclusive
remedy for rejection of the Licensed Software.
(B) Upon acceptance by MCI of the Licensed Software pursuant to
Section 3.2(A) or if MCI fails to notify Genesys of any defects within the
inspection period specified therein, the Licensed Software shall be deemed
accepted. MCI's sole remedy for correction of problems after acceptance shall
be under the Limited Warranty set forth in Article 5 below.
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* Confidential Treatment Requested
3.3 Archival Copies. MCI may make a reasonable number of copies of
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the Licensed Software for archival purposes; provided, however, that MCI may
make a reasonable number of copies of Documentation for the use of MCI's
employees in their use of the Software. MCI agrees to reproduce and include any
copyright or proprietary notices of Genesys on all copies, in whole or in Part,
of the Licensed Software or Documentation.
3.4 Back-Up Hardware. A single back-up or replacement CPU or file
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server may be used as a substitute for a Designated CPU at any time; provided,
however, that MCI provides Genesys with written notice of such hardware
substitution, including information regarding the replacement hardware as
required for the Designated CPU in Exhibit A, within seven (7) days of such
replacement.
3.5 No Other Rights. This Agreement transfers to MCI neither title
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nor any proprietary or intellectual property rights to the Licensed Software,
Documentation or any copyrights, patents or trademarks embodied or used in
connection therewith, and except for the rights expressly granted herein, MCI
receives no other rights in or to the Licensed Software, Documentation and
intellectual property, either by implication, estoppel or otherwise.
Accordingly, MCI shall have no other rights with respect to the Licensed
Software other than the license expressly set forth herein.
3.6 License Restriction. MCI agrees that it will not itself, or
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through any parent, subsidiary, Affiliate, agent or other third party:
(A) sell, lease, license or sublicense the Licensed Software or
Documentation (except as otherwise provided in Section 14.1);
(B) decompile, disassemble or reverse engineer the Licensed Software,
in whole or in part, or otherwise attempt to derive source code therefrom;
(C) allow access to the Licensed Software by any Simultaneous User
other than MCI's employees, employees of MCI's customers, dealer and
distributors who use such Licensed Software solely for the purpose of conducting
business with MCI, and independent contractors and consultants who have a need
to access the Licensed Software for the purpose of performing services for or on
behalf of MCI and in accordance with the use restrictions contained herein; or
(D) write or develop any derivative works based upon the Licensed
Software (except as otherwise permitted by Section 12.3) or upon any
Confidential Information of Genesys.
ARTICLE 4 -- PRICE AND PAYMENT
4.1 Price. In consideration for the rights granted MCI hereunder,
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MCI
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agrees that it shall, upon acceptance by Genesys of an MCI Purchase Order, pay
Genesys the [*], and the [*], if applicable, in accordance with the payment
schedule set forth in the Purchase Order. If the Purchase Order fails to specify
a payment schedule, the [*] shall be due and payable as follows: [*] percent
([*]%) [*] of the [*] and [*] percent ([*]%) [*] of the relevant [*]; and, [*]
fees shall be payable, [*], within [*] business days of [*] for the [*], which
[*] shall submit at the [*] for the relevant [*].
4.2 Payment Terms. Except for the [*] and the [*], all amounts due
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Genesys shall be paid within forty-five (45) days of MCI's
receipt of the relevant invoice from Genesys.
4.3 Taxes. Unless otherwise agreed in writing, MCI shall be
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responsible for all 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 5 -- LIMITED WARRANTY
5.1 Software Media Warranty. Genesys warrants that the media in
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which the Licensed Software is embodied and the media on which any Update (as
defined in the Software Maintenance Agreement entered into between the parties
as of even date herewith ("Maintenance Agreement")) is delivered will be free
from material defects for a period of [*] days from the delivery date of the
Licensed Software or the Update to MCI. [*] and [*] under this warranty will be
to [*] on which such Licensed Software or Update was delivered. Genesys shall
have [*] any [*] media which is not [*] to Genesys within the warranty period or
which has [*] or [*].
5.2 Software Warranty. Genesys warrants that for a period of [*]
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days from the delivery of the Licensed Software or any subsequent Update, the
Licensed Software and such Update, if used by MCI in accordance with the then-
current Documentation therefor, shall operate in conformity with the Applicable
Specifications. Genesys [*], however, that the Licensed Software will [*] or
that the [*] will be [*] or [*].
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* Confidential Treatment Requested
[*], and [*], and [*] and [*], under this limited Software Warranty shall be, at
[*], to [*] to attempt, through reasonable efforts, (i) to [*] any material
nonconformities discovered within the relevant [*]-day warranty period or (ii)
to [*] the nonconforming Licensed Software or subsequent Update [*] which [*].
If Genesys is unable to achieve (i) or (ii) within a reasonable time (not to
exceed [*] days from MCI's notification to Genesys of a material nonconformity),
Genesys shall [*] to MCI all [*] by [*] to [*] pursuant to the relevant Purchase
Order, MCI shall [*] all relevant copies of the Licensed Software and the
Documentation to Genesys, and [*] with respect to such Licensed Software. The
above remedies are available [*] if Genesys is [*], upon discovery of the
nonconformities by MCI, and that the Licensed Software has not been used,
adjusted or installed other than in accordance with this Agreement and the most
recent version of Documentation provided to MCI by Genesys.
5.3 Warranty of Title. Genesys warrants that it owns all rights and
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interest in and has the marketing and distributing rights to the Licensed
Software as is necessary to provide MCI with the license rights set forth
herein.
5.4 Warranty Regarding Software Viruses. Genesys warrants that it or
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its employees shall not negligently or knowingly introduce a virus into MCI's
operating environment during the performance of services under this Agreement or
through the provision of Licensed Software. For the purposes of this Agreement,
a "virus" shall mean a computer code which may provide functions outside those
identified for the Licensed Software in the latest Documentation provided by
Genesys to MCI.
ARTICLE 6 -- DISCLAIMER
6.1 EXCEPT FOR THESE EXPRESS LIMITED WARRANTIES, NEITHER GENESYS NOR
ANY OF ITS SUPPLIERS MAKE ANY WARRANTIES EXPRESS, IMPLIED OR STATUTORY WITH
RESPECT TO THE LICENSED SOFTWARE, AND GENESYS AND ITS SUPPLIERS EXPRESSLY
DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
ARTICLE 7 -- MAINTENANCE SERVICES
7.1 Genesys agrees to offer maintenance and support for the Licensed
Software subject to the terms and conditions for such services as described in
the Maintenance Agreement.
ARTICLE 8 -- PROPRIETARY RIGHTS
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* Confidential Treatment Requested
8.1 MCI acknowledges that Genesys and its suppliers retain all right,
title and interest in and to the original, and any copies, of the Licensed
Software or Documentation, and ownership of all patent, copyright, trade secret
and other intellectual property rights pertaining thereto, shall be and remain
the sole property of Genesys. MCI shall not be an owner of any copies of, or
any interest in, the Licensed Software, but rather, is licensed pursuant to this
Agreement to use such copies. Genesys represents that it has the authority to
enter into this Agreement and to grant the licenses provided herein.
ARTICLE 9 -- CONFIDENTIALITY
9.1 General. Recipient may use Confidential Information of Owner
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only for the purpose of fulfilling its obligations as set forth in this
Agreement and for no other purpose. Recipient shall protect such Confidential
Information from disclosure to others using the same degree of care used to
protect its own confidential or proprietary information of like importance, but
in any case using no less than a reasonable degree of care. Recipient may
disclose Confidential Information received hereunder to (i) its Affiliates who
agree, in advance, in writing, to be bound by this Agreement, and (ii) to its
employees and consultants, and its Affiliates' employees and consultants, who
have a need to know, for the purpose of this Agreement, and who are bound to
protect the received Confidential Information from unauthorized use and
disclosure under the terms of a written agreement no less restrictive than the
terms herein. Confidential Information shall not otherwise be disclosed to any
third party without the prior written consent of the Owner.
9.2 Exceptions.
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(A) The restrictions of this Agreement on use and disclosure of
Confidential Information shall not apply to information that:
(1) Was publicly known at the time of Owner's communication
thereof to Recipient;
(2) Becomes publicly known through no fault of Recipient
subsequent to the time of Owner's communication thereof to Recipient;
(3) Was in Recipient's possession free of any obligation of
confidence at the time of Owner's communication thereof to Recipient;
(4) Is developed by Recipient independently of and without
reference to any of Owner's Confidential Information or other
information that Owner disclosed in confidence to any third party;
(5) Is rightfully obtained by Recipient from third parties
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authorized to make such disclosure without restriction; or
(6) Is identified by Owner as no longer proprietary or
confidential.
(B) In the event Recipient is required by law, regulation or court
order to disclose any of Owners Confidential Information, Recipient will
promptly notify Owner in writing prior to making any such disclosure in order to
facilitate Owner seeking a protective order or other appropriate remedy from the
proper authority. Recipient agrees to cooperate with Owner in seeking such
order or other remedy. Recipient further agrees that if Owner is not successful
in precluding the requesting legal body from requiring the disclosure of the
Confidential Information, it will furnish only that portion of the Confidential
Information which is legally required and will exercise all reasonable efforts
to obtain reliable assurances that confidential treatment will be accorded the
Confidential Information.
9.3 Return of Confidential Information. All Confidential Information
----------------------------------
disclosed under this Agreement (including information in computer software or
held in electronic storage media) shall be and remain the property of Owner.
All such information in tangible form shall be returned to Owner promptly upon
written request or the termination or expiration of this Agreement, and shall
not thereafter be retained or used in any form by Recipient.
9.4 Terms. The parties agree that the terms and conditions of this
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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 9.2;
(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, 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.
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9.5 Remedies. Each party acknowledges that the breach of any of its
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obligations under this Article 9 is likely to cause or threaten irreparable harm
to the other party and, accordingly, each party agrees that in such event, the
other party shall be entitled to equitable relief to protect its interests
therein, including but not limited to preliminary and permanent injunctive
relief, as well as money damages.
ARTICLE 10 -- INTELLECTUAL PROPERTY RIGHT INDEMNITY
10.1 Indemnity. Genesys agrees, at its own expense, to defend or, at
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its option, to settle any claim or action brought against MCI [*] based on an
allegation that MCI's [*] of the Licensed Software within the scope of the
license granted hereunder (a) infringes a patent under the laws of [*] (or, in
the event of the expiration or termination of the treaty, the countries
signatory at the time of such expiration or termination), or (b) infringes a
copyright, trademark, or other intellectual property right of a third party or
constitutes misuse or misappropriation of a trade secret under the laws of any
country (a claim under either (a) or (b) herein, an "Infringement"), and to
indemnify MCI against all [*] which may be assessed against MCI under any such
claim or action. Promptly after receipt [*] of notice of any claim or the
commencement of any claim for which indemnification or reimbursement may be
sought hereunder, [*] shall give written notice to [*] thereof, but the failure
to so notify [*] shall [*] it may have [*] hereunder [*] shall be obligated to
[*] of such claim, [*], and shall have [*] and [*] over the [*] or [*] of such
claim, provided that [*] will be required to the extent (i) any such [*] or [*]
will impose any obligation whatsoever [*] that is [*] or [*], or [*] other than
the payment of monies that are readily measurable for purposes of determining
the monetary indemnification or reimbursement obligations [*], or (ii) [*] will
not be [*] of [*] pursuant to such [*] or [*], including the [*] to pay when due
[*] to pay pursuant to such [*] or [*]. [*] shall have the right, [*], to [*] in
the investigation [*] of such claim, [*]. [*] shall otherwise provide reasonable
[*] with respect to such claim, provided that [*] for its [*] with respect
thereto. Moreover, should any of the Licensed Software become, or, in [*], be
likely to become, the subject of a claim of [*], or should [*] use thereof be
finally [*], [*] and [*]:
(A) [*] the right to [*] such material; or
(B) [*] or [*] such material to make it [*] provided
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* Confidential Treatment Requested
such [*] or [*] is the functional equivalent of the Licensed Software in light
of the Applicable Specifications, and [*] for any additional [*], and [*] and
caused by any such [*] or [*]; or
(C) If neither of the foregoing can be suitably accomplished, [*] for
all [*] of the [*] paid for the Licensed Software pursuant to this Agreement,
provided that such amounts shall be [*] beginning with the [*] of the Licensed
Software (i.e., a change from version A.x to version B.0) was received [*].
10.2 Exceptions.
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(A) Notwithstanding the provisions of Section 10.1 above, [*] for [*]
claims to the extent arising from (i) the [*] of the Licensed Software with
other products [*] and not within the [*] given the use for which the Licensed
Software was designed; (ii) any [*] to the Licensed Software unless such [*] was
made or otherwise authorized [*]; or (iii) any [*] held by [*] derived through
[*] issued by the countries other than [*] .
(B) Notwithstanding anything in Section 10.1 to the contrary, [*] for
[*] or [*] as a [*] (but not including the [*], pursuit of [*], and any other
legal and related [*] claims of [*]), shall be limited to [*] times the amount
of the license fees paid [*] for the [*] Licensed Software for any [*] claim
with respect to [*] of the Licensed Software in a [*], to the extent arising
from (a) the [*] of the Licensed Software with any other product [*], even if
[*] such [*] or, (b) a [*] to the Licensed Software made or [*] for the [*]. It
is understood and acknowledged that the foregoing [*] for certain [*] claims
shall [*], for all such claims in all proceedings in accordance with Section
10.1, subject to the limitations of Section 10.2(A).
10.3 [*]
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10.4 Limitation. THE FOREGOING PROVISIONS OF THIS ARTICLE 10 STATE
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THE ENTIRE LIABILITY AND OBLIGATIONS OF
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* Confidential Treatment Requested
GENESYS, AND THE EXCLUSIVE REMEDY OF MCI, WITH RESPECT TO ANY ACTUAL OR ALLEGED
INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL
PROPERTY RIGHT BY THE LICENSED SOFTWARE OR ANY PART THEREOF.
ARTICLE 11 -- LIMITATION OF LIABILITY AND REMEDIES
11.1 THE PARTIES AGREE, [*] UNDER SECTION 5.4, AND 10, AND BOTH
PARTIES CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9 ABOVE, [*] FOR EACH CLAIM
[*] OR THE [*] OF ANY LICENSED SOFTWARE [*] UNDER THE RELEVANT PURCHASE ORDER
AND [*], ARISING IN ANY WAY OUT THIS AGREEMENT UNDER ANY CAUSE OF ACTION, [*].
ARTICLE 12 -- SOURCE CODE ESCROW
12.1 Within thirty days of the signing of this Agreement and from time
to time thereafter, but not more than sixty days following any subsequent Update
of the Licensed Software, to secure MCI's rights hereunder Genesys shall place
copies of its then current source code and documentation (the "Escrow
Materials") for all the Licensed Software with Data Securities International,
Fort Knox Escrow Services, Inc. or another independent escrow agent mutually
satisfactory to MCI and Genesys on the standard terms and conditions of such
agent and in accordance with the following provisions of this Article 12.
12.2 Release of the Escrow Materials to MCI shall be on terms and
conditions (including notice, redeposit and other provisions) to be agreed in
the escrow agreement, but such release shall be granted whenever:
(A) Genesys is unable or unwilling to perform its maintenance and/or
support obligations under this Agreement or any separate agreement between the
Parties with respect to maintenance and support; or
(B) Genesys applies for or consents to the appointment of or the
taking of possession by a receiver, custodian, trustee, or liquidator of itself
or of all or a substantial part of its property; makes a general assignment for
the benefit of creditors;
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* Confidential Treatment Requested
commences a voluntary case under the Federal Bankruptcy Code (as now or
hereafter in effect); or fails to contest in a timely or appropriate manner or
acquiesces in writing to any petition filed against it in an involuntary case
under such Bankruptcy Code or any application for the appointment of a receiver,
custodian, trustee or liquidation of itself or of all or a substantial part of
its property, or its liquidation, reorganization or dissolution.
12.3 MCI is hereby granted a license to use such Materials upon their
release to MCI only to perform and authorize the performance of such maintenance
and/or support, and for no other purpose. Such escrow shall be established and
maintained at the expense and for the sole benefit of MCI. Genesys warrants
that the Escrow Materials will accurately reflect the then current version of
the Licensed Software and will be sufficiently detailed and documented so as to
permit a reasonably competent computer professional conversant in the
languages(s) used by the Licensed Software to understand, maintain and modify
the Licensed Software.
12.4 Any dispute or disagreement between the Parties arising out of
this Article 12 shall be resolved by arbitration in accordance with Section
14.4, provided that if the arbitrator(s) are unable to render an award within
sixty (60) days of the demand for arbitration, through no fault or act of delay
by MCI, the Escrow Materials shall be released to MCI notwithstanding the
pendency of any such arbitration. At all time, the parties shall use their best
efforts to expedite the arbitration proceedings. If the arbitrator(s)
ultimately find that under the terms of this Agreement release of the Escrow
Materials to MCI should not have occurred, MCI shall return the Escrow Materials
to the Escrow Agent.
12.5 The obligations of Genesys under this Article 12 shall remain in
effect until the termination of the maintenance and support obligations of
Genesys.
ARTICLE 13 -- TERM AND TERMINATION
13.1 Term and Termination. MCI may terminate this Agreement or any
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license obtained hereunder upon ninety (90) days' prior written notice to
Genesys.
13.2 Return of Materials. Upon termination of any license for any
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reason, MCI shall immediately discontinue use of the relevant Licensed Software
and Documentation and within ten (10) days certify in writing to Genesys that
all copies of the Licensed Software and Documentation, in whole or in part, in
any form, have either been returned to Genesys or destroyed in accordance with
Genesys's instructions. Upon such termination Genesys shall immediately refund
to MCI any related unamortized prepayments made by MCI for maintenance and
support.
13.3 Termination by Genesys. Genesys may terminate a license granted
----------------------
hereunder with respect to any one or more Purchase Orders if MCI commits any
material breach of the license grant set forth in Section 3 or the
confidentiality
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obligations in Section 9 above and fails to remedy such breach within thirty
(30) days after written notice by Genesys of such breach and such material
breach causes irreparable damage to Licensor or cannot adequately be remedied by
the payment of monetary damages by Genesys.
13.4 Effect of Termination. Notwithstanding any termination of this
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Agreement, the following provisions shall survive: Articles 3 (except to the
extent Genesys terminates this Agreement as a result of MCI's material breach of
the license granted by such Article), 4 (to the extent of any amounts due and
owing as of such termination), 5, 7, 8, 9, 10, 11, 12 and 14. All other rights
and licenses granted hereunder will cease upon termination.
ARTICLE 14 -- GENERAL
14.1 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.
14.2 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.
14.3 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.
14.4 Dispute Resolution. Any dispute arising out of or related to
------------------
this Agreement, which cannot be resolved by negotiation, shall be settled by
binding arbitration in accordance with the J.A.M.S/ENDISPUTE arbitration Rules
and Procedures ("Endispute Rules"), as amended by this Agreement. The costs of
arbitration, including the fees and expenses of the arbitrator, shall be shared
equally by the parties unless the arbitration award provides otherwise. Each
party shall bear the cost of preparing and presenting its case. The parties
agree that this provision and the arbitrator's authority to grant relief shall
be subject to the United States Arbitration Act, 9 U.S.C. 1-16 et seq. ("USAA"),
the provisions of the Agreement, and the ABA-AAA Code of Ethics for Arbitrators
in Commercial Disputes. The parties agree that the arbitrator shall have no
power or authority to make awards or issue orders of any kind except as
expressly permitted by this Agreement, and in no event shall the arbitrator
13
have the authority to make any award that provides for punitive or exemplary
damages. The arbitrator's decision shall follow the plain meaning of the
relevant documents, and shall be final and binding. The award may be confirmed
and enforced in any court of competent jurisdiction. All post-award proceedings
shall be governed by the USAA. The location of such a proceeding shall be
mutually agreed by the parties or if agreement cannot be reached, then the
location chosen by the arbitrator. This provision shall not preclude either
party seeking injunctive relief as permitted hereunder in any court of competent
jurisdiction. Unless the parties otherwise agree, all arbitration proceedings
shall take place in San Francisco, California.
14.5 Jurisdiction. The federal and state courts within San Francisco,
------------
California, shall have exclusive jurisdiction with respect to any action sought
by either party to enforce Section 14.4 above. Each party hereto expressly
consents to the personal jurisdiction of, and venue in, such courts and service
of process being effected upon it by registered mail and sent to the address set
forth at the beginning of this Agreement.
14.6 Independent Contractors. The relationship of Genesys and MCI
-----------------------
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.
14.7 Severability. If any provision of this Agreement is held to be
------------
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.
14.8 No Waiver. The failure of either party to enforce at any time
---------
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.
14.9 Force Majeure. Except for the obligation to make payments,
-------------
nonperformance of either party shall be excused to the extent that performance
is rendered 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 nonperforming party.
14.10 Notices. Any required notices hereunder shall be given in
-------
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.
14
14.11 U.S. Government Licensees. Any use of the Licensed Software by
-------------------------
the U.S. Government is conditioned upon the Government agreeing that the
Licensed Software is subject to Restricted Rights as provided under the
provisions set forth in subdivision (c)(1)(ii) of Clause 252.227-7013 of the
Defense Federal Acquisition Regulations Supplement, or the similar acquisition
regulations of other applicable U.S. Government organizations.
14.12 Entire Agreement. This Agreement and Exhibits attached hereto
----------------
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 Exhibits attached hereto, understand
all terms and conditions, and agree to be bound thereby.
IN WITNESS WHEREOF, the parties by their duly authorized
representatives have executed this Agreement as of the Effective Date set forth
above.
GENESYS TELECOMMUNICATIONS MCI TELECOMMUNICATIONS
LABORATORIES CORPORATION
/s/ Gregory Shenkman /s/ H.A. Shartel
- --------------------------- -------------------------------------
Signature Signature
Gregory Shenkman, President H.A. Shartel, Sr. Manager Procurement
- --------------------------- -------------------------------------
Printed Name and Title Printed Name and Title
January 31, 1996 February 7, 1996
- --------------------------- -------------------------------------
Date Date
15
EXHIBIT A
---------
LICENSED SOFTWARE
16
EXHIBIT A
[*]
*Confidential Treatment Requested
ADDENDUM TO MASTER LICENSE AGREEMENT
This ADDENDUM ("Addendum") is entered into this 1st day of February, 1996
("Effective Date"), by and between Genesys Telecommunications Laboratories
("Genesys"), a California corporation with offices at 1111 Bayhill Drive, Suite
180, San Bruno, CA 94066 and MCI Telecommunications Corporation ("MCI"), a
Delaware corporation with offices at 1801 Pennsylvania Avenue, N.W., Washington,
D.C. 20006.
In consideration of the promises and conditions of this Addendum, the parties
agree as follows:
BACKGROUND
A. Genesys and MCI have entered into a Master Software License Agreement dated
January 31, 1996 (the "Agreement").
B. The parties desire to amend the Agreement as set forth in this Addendum.
AMENDMENT
1. AMENDMENT OF AGREEMENT. This Addendum hereby amends and revises the
Agreement to incorporate the terms and conditions set forth in this Addendum.
The relationship of the parties shall continue to be governed by the terms of
the Agreement as amended.
2. DEFINITIONS. A used in this Addendum, all capitalized terms shall have the
meanings assigned to such terms in this Addendum, or, if not specified in this
Addendum, the meanings defined elsewhere in the Agreement.
3. ACCEPTANCE OF EXISTING SYSTEMS. MCI agrees to accept prior to December 31,
1995, the Software Licenses provided for the following projects:
(i) The MCI Diamond Center
(ii) The MCI-ICSD Compaq Project
(iii) The MCI NILE Project
4. MODIFICATIONS TO THE AGREEMENT.
4.1 Section 10 of the Agreement is amended by adding the following
subsection.
10.5 Indemnity Contingent on Purchase of Maintenance.
-----------------------------------------------
[*] contained in this section 10, [*] of any kind with respect
[*] for [*] of any Licensed Software for which [*] at the time
such [*].
5. ENTIRE AGREEMENT. This Addendum and the Agreement constitute the entire
Agreement between the parties in connection with the subject matter of this
Addendum and supersede all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the parties.
IN WITNESS WHEREOF, Genesys and MCI have caused this Addendum to be executed by
their duly authorized representatives, effective as of the Effective Date set
forth above.
AGREED TO AND ACCEPTED BY:
GENESYS TELECOMMUNICATIONS MCI TELECOMMUNICATIONS
LABORATORIES CORPORATION
/s/ Gregory Shenkman /s/ H.A. Shartel
- ------------------------------ --------------------------------
Signature Signature
Gregory Shenkman, President H.A. Shartel Sr Mgr--Procurement
- ------------------------------ --------------------------------
Printed Name and Title Printed Name and Title
February 1, 1996 February 7, 1996
- ------------------------------ --------------------------------
Date Date
*Confidential Treatment Requested
2
AMENDMENT NUMBER ONE TO MASTER LICENSE AGREEMENT
This AMENDMENT NUMBER ONE (the "Amendment") is entered into this 26th day
of February, 1997 ("Effective Date"), 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.
In consideration of the promises and conditions of this Amendment, the parties
agree as follows:
BACKGROUND
A. Genesys and MCI have entered into a Master Software License Agreement dated
January 31, 1996 (the "Agreement"); and
B. Genesys and MCI have entered into a Master Consulting Agreement as of even
date herewith, pursuant to which Genesys has undertaken to incorporate certain
functionality in the development of an intelligent network call router software
product that will be developed through enhancements and modifications to certain
of Genesys' products; and
C. Genesys and MCI desire to amend the Agreement to reflect agreed upon terms
and conditions under which MCI will license such call router software product
and other Genesys products; and
D. The parties desire to amend the Agreement as set forth in this Amendment
Number One.
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 with respect to the subject matter hereof shall
continue to be governed by the terms of the Agreement as amended.
2. EXHIBITS.
a. Licensed Software and Pricing. Exhibit A to the Agreement is hereby
deleted in its entirety and replaced by a new Exhibit A attached hereto as
Schedule A.
b. MCI Minimum Purchase Guarantee. A new Exhibit B to the Agreement
attached hereto as Schedule B is hereby incorporated by reference.
3. 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.
a. Section 1.2 is modified, in part, to read as follows:
" . . . of the Licensed Software as (i) accepted by MCI pursuant to
the MCA, if applicable, or (ii) described in Genesys' current Documentation,
published product description and technical manuals, together in either case
with such other performance . . . part of MCI's Purchase Order, either . . ."
b. Section 1.4 is modified, in part, to read as follows:
". . . the serial number and location on which the Licensed Software
is deployed as to which MCI shall notify Genesys in a written quarterly report
within thirty (30) days following the end of the calendar quarter during which
the Licensed Software was deployed."
c. The following new sentence is added to the end of Section 1.6:
"The software programs set forth on Exhibit A attached hereto may be
modified by Genesys from time to time; provided, however, that the Licensed
Software designated as Genesys Network Applications in Exhibit A hereto shall at
all times comply with the specifications set forth in Exhibit A-SOW-1 to the MCA
which shall constitute the Applicable Specifications for such Network
Applications unless otherwise mutually agreed to by the parties."
d. Section 1.7 is modified, in part, to read as follows:
" . . . the Licensed Software; provided, however, that this Section
1.7 shall have no application to Network Applications."
e. The following new definitions are added to Article 1 "DEFINITIONS."
"1.8 "Advanced T-Server Functionality" shall have the meaning
specified in Section 4.7(C)."
"1.9 "Basic T-Server Functionality" shall have the meaning specified
in Section 4.7(B)."
-2-
"1.10 "Customer" shall mean a third party end-user of the Premises
Software and network-based call routing and other related services provided
directly by MCI or an MCI Affiliate which utilize the Licensed Software within
the scope of the licenses granted hereunder."
"1.11 "Eligible Fees" shall mean the aggregate of (i) all [*], but not
including the [*] and [*], and (ii) [*] dollars [*] in fees for (x) [*] provided
under this Agreement and (y) [*] (as defined in the MCA) to the extent such [*]
are provided to ensure that [*], and as to any of the foregoing [*] or by such
[*] in interest [*] of this Amendment."
"1.12 "Initial Network Applications Software" shall mean [*] and [*]
of the Network Applications, provided that if such [*] upon their [*], then [*]
of Network Applications shall be included in the Initial Network Applications
Software until the earlier of (i) [*] of Network Applications are [*] or (ii)
[*] of Network Applications are [*]."
"1.13 "License Fee" shall mean such amount as results from a [*]
percent ([*]) [*] from the [*] for any Licensed Software as set forth on Exhibit
A attached hereto, but subject to the provisions of Section 4.4."
"1.14 "Network License Fee" shall mean the [*] dollar ([*]) payment
paid [*] pursuant to Section 4.6 hereof."
"1.15 "MCA" shall mean the Master Consulting Agreement entered into
by the Parties as of even date herewith."
"1.16 "MCI Competitor" shall have the meaning set forth in the MCA."
"1.17 "Network Applications" shall mean that portion of the Licensed
Software that is identified as Network Applications on Exhibit A hereto and that
is designed to be deployed in a telecommunications carrier's network in order to
provide network-based call routing and related services."
"1.18 "Operating Environment" shall mean a configuration of
substantially similar computer hardware platform(s), computer operating
system(s) and external interfaces to a PBX, IVR and other similar critical
network components."
"1.19 "Premises Software" shall mean Licensed Software that a
Customer obtains in order to benefit from Basic T-Server Functionality and/or
Advanced T-Server Functionality."
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* Confidential Treatment Requested
"1.20 "SMA" shall mean the Software Maintenance Agreement, as
amended, between Genesys and MCI dated January 31, 1996."
"1.21 "TPS" shall mean the number of transactions per second that can
be supported by Network Applications assuming that the Network Applications
routing strategies are allocated as follows: (i) [*] percent [*] to [*], (ii)
[*] percent [*] to [*], (iii) [*] percent [*] to [*] and (iv) [*] percent [*] to
[*]."
"1.22 "Transaction Fees" shall mean the fees that are payable to
Genesys pursuant to Section 4.7."
4. APPLICABILITY OF AGREEMENT.
a. Section 2.1 is deleted in its entirety and replaced with the
following:
"This Agreement establishes the general terms and conditions under
which MCI and its Affiliates shall now or in the future acquire from Genesys
certain services and a license to use the Licensed Software."
b. The first sentence in Section 2.3 is modified, in part, to read as
follows:
". . . issuance of a purchase order by MCI and the written acceptance
thereof by Genesys (herein referred to as a "Purchase Order"); provided,
however, that a Purchase Order issued hereunder by an MCI Affiliate shall
contain a provision stating that such Purchase Order shall be subject to the
terms and conditions of the Agreement and incorporating this Agreement by
reference modified so as to be made applicable between Genesys and such MCI
Affiliate."
c. The fourth sentence in Section 2.3 is deleted in its entirety and
replaced with the following:
"The pre-printed provisions on or attached to Purchase Orders, Genesys
acknowledgment forms or other similar forms shall be deemed deleted with respect
to the Purchase Orders placed hereunder and of no legal effect."
d. The last sentence in Section 2.3 is modified, in part, to read as
follows:
". . . and the terms (other than pre-printed terms) on any Purchase
Order . . . in writing by Genesys' Chief Financial Officer or his designee and
an MCI Vice President."
5. LICENSE.
a. The following two new sentences are added to the end of Section 3.1 of
the Agreement:
-4-
*Confidential Treatment Requested
"Genesys hereby grants to MCI the right to grant sublicenses of the
foregoing rights (as well as the rights granted to MCI under Sections 3.3 and
3.4 below) to Customers to use the Premises Software, including without
limitation the use of Documentation related thereto; provided, however, that
such sublicenses shall be granted solely in connection with a Customer's use of
products and/or services that utilize the Network Applications and are provided
by MCI or MCI's Affiliates. Genesys further hereby grants to MCI the right to
reproduce the Network Applications, Premises Software and related Documentation
solely for the purposes of MCI's business and the businesses of its Affiliates;
provided, however, that MCI shall within thirty (30) days following the end of
each calendar quarter provide a quarterly report to Genesys which shall include,
among other things, the Serial number, CPU type and location on which each new
copy of the Network Applications and Premises Software is deployed."
b. The first sentence in Section 3.2(A) is modified, in part, to read as
follows:
". . . of a Purchase Order, Genesys will deliver to MCI an invoice for
the License Fee and MCI shall pay the License Fee in accordance with the payment
schedule specified in the Purchase Order or an exhibit or schedule thereto."
c. The second sentence in Section 3.2(A) is modified, in part, to read as
follows:
"If an applicable Purchase Order provides for installation services to
be performed by Genesys, unless otherwise provided for in such Purchase Order,
the initial installation . . ."
d. The following new sentence is added between the second and third
sentences of Section 3.2 (A):
"Unless otherwise provided in a Purchase Order ordering such services,
MCI agrees to pay to Genesys its then standard rate for installation and
implementation services."
e. The following new sentence is added to the end of Section 3.2(A):
"Notwithstanding anything to the contrary herein, upon acceptance of
the first copy of a specific release of any Licensed Software by MCI or any MCI
Affiliate pursuant to this Section 3.2(A) or to Section 3.2(C) below, additional
copies of the same release of such Licensed Software intended for a
substantially similar Operating Environment shall be deemed accepted upon
delivery to MCI or an MCI Affiliate. Furthermore, in the event any Licensed
Software is deemed not to be accepted upon delivery to MCI pursuant to the
preceding sentence or an applicable Purchase Order, then Section 4.1(ii) shall
provide that [*] percent [*] of the [*] for such [*] shall be payable to Genesys
[*] of such [*]."
f. The following new subsection (C) is added to Section 3.2:
-5-
*Confidential Treatment Requested
"(C) Where Work (as that term is defined in the MCA) has been accepted
by MCI pursuant to the MCA and is subsequently licensed hereunder as Licensed
Software without being materially modified, such acceptance shall constitute
acceptance of such Licensed Software pursuant to Section 3.2A above. However,
where Work has been accepted by MCI pursuant to the MCA and is subsequently
licensed hereunder as Licensed Software and has been materially modified prior
to being so licensed, such Licensed Software shall be subject to Section 3.2(A)
of this Agreement."
g. Section 3.4 is modified in part to read as follows:
" . . . hardware substitution within thirty (30) days following the
end of each calendar quarter as part of a quarterly report to Genesys which
shall include, among other things, the serial number, CPU type and location on
which each copy of the Licensed Software is deployed."
h. The following new sentence is inserted at the beginning of Section
3.5:
"Genesys acknowledges that to the extent the Licensed Software may,
pursuant to a specific Statement of Work, contain the intellectual property of
MCI or its third party licensors licensed to Genesys pursuant to Section 9.1B(3)
or jointly owned by MCI and Genesys pursuant to Section 9.1C of the MCA and that
except as expressly provided therein, incorporation of such intellectual
property in the Licensed Software shall not limit the ownership rights of MCI or
such licensors in such intellectual property."
i. The last sentence of Section 3.5 is deleted and replaced in its
entirety to read as follows:
"Except as to the underlying rights of MCI or its third party
licensors as referred to in the first sentence of this Section 3.5, MCI shall
have no other rights with respect to the Licensed Software other than the
license expressly set forth herein."
j. Section 3.6(A) is modified, in part, to read as follows:
". . . or Documentation (except as otherwise provided in Sections 3.1
or 14.1);"
k. Section 3.6(C) is modified, in part, to read as follows:
". . . employees of MCI's Customers, dealers and distributors who use
such Licensed Software solely for purposes of conducting business with MCI, and
independent contractors and consultants who have a need to access the Licensed
Software for the purpose of performing services for or on behalf of MCI and in
accordance with the use restrictions contained herein; provided, however,
Customers shall have access to the Premises Software pursuant to MCI's right to
grant and authorize sublicenses under Section 3.1 hereof; or"
-6-
l. The following new Section 3.7 is added:
"3.7 Enterprise License. Upon the written request of either Party
------------------
after December 31, 1997, the Parties agree to conduct good faith negotiations to
discuss the possibility of entering into an "enterprise license" agreement."
m. The following new Section 3.8 is added:
"3.8 Value Added Reseller Agreement. The parties agree to conduct
------------------------------
good faith negotiations to enter into a value added reseller agreement which
would enable MCI to purchase for value added resale Licensed Software at the
License Fee."
6. PRICE AND PAYMENT; PURCHASE COMMITMENTS.
a. The heading of Article 4 is relabeled to read as follows:
"ARTICLE-4 PRICE AND PAYMENT; PURCHASE COMMITMENTS"
b. The first sentence of Section 4.1 is modified, in part, to read as
follows:
". . . [*], if applicable, unless otherwise agreed to in writing by
the parties hereto, in accordance . . ."
c. The second sentence in Section 4.1 is modified, in part, to read as
follows:
"If the Purchase Order fails to specify a payment schedule, subject to
Section 3.2(A) hereof, the License Fee shall be due and payable as follows: (i)
[*] percent [*] [*] of the [*] and (ii) [*] percent [*] [*] of the relevant [*];
and, [*] fees shall be payable [*] unless otherwise agreed to in writing by the
parties hereto, within [*] days . . ."
d. Section 4.2 is modified, in part, to read as follows:
"Except for [*] and . . . shall be paid within thirty (30) days . . ."
e. The following new Section 4.4 is added:
"4.4 Increases in Licensed Software Prices. The prices set forth on
-------------------------------------
Exhibit A hereto may be [*] from time to time, upon [*] days [*], to [*] for the
[*]. The parties agree that the prices set forth on Exhibit A shall be [*] of
each year [*] for the [*], provided, further, that the prices
to be set forth in Exhibit A for
-7-
*Confidential Treatment Requested
[*] that [*] during the calendar year shall [*] of such [*]. Notwithstanding the
foregoing, in the event that [*] and [*] dollars [*] during any calendar year,
then the prices set forth on Exhibit A as of [*] of that calendar year (as [*]
pursuant to this Section 4.4) as well as the [*] to Exhibit A during such
calendar year shall remain in effect for the entire calendar year. In the event
that [*] during a calendar year in which [*] and [*] dollars [*] and [*] such
[*] subject to such [*], then [*] equal to the [*] for such [*] as of [*] of
such calendar year [*] to Exhibit A during such calendar year) and the [*]."
f. The following new Section 4.5 is added:
"4.5 Minimum Purchase Guarantee.
--------------------------
(A) Commitment. [*] agrees to (i) issue to Genesys no later than [*],
----------
Purchase Orders for Licensed Software which provide for the payment of
License Fees that are [*] a total of [*] dollars [*] and (ii) [*] in
accordance with the [*] and [*] set forth in Schedule B ("Minimum Purchase
Commitment"). In the event that [*] as set forth in Schedule B hereto, then
[*] an amount equal to the [*] and the [*] as of such date (a "[*]") within
[*] days after such date. Any [*] paid to [*] shall be [*] future Purchase
Orders for Licensed Software or services, to the extent of the [*] set
forth in Section 1.11(ii). In consideration of the foregoing minimum
purchase guarantee, [*] Licensed Software at the [*].
(B) Limitations. MCI's obligations under Section 4.5(A) are subject to the
-----------
following limitations:
(i) If [*] Licensed Software pursuant to Section 3.2(A), its
obligations under Section 4.5(A) shall be [*] of the Purchase
Order to which such [*] Licensed Software relates.
-8-
*Confidential Treatment Requested
(ii) If [*] pursuant to Section 5.2 or 10.1(D) of the Agreement, the
[*] Purchase Order to which such [*] relates will nonetheless be
[*] under Section 4.5(A).
(iii) If [*] this Agreement to an [*] under Section 4.5(A).
(iv) If [*] this Agreement pursuant to Section 13.1 hereof [*] under
Section 4.5(A)."
g. The following new Section 4.6 is added:
"4.6 Network Applications Software Licenses. On the Effective Date of
--------------------------------------
Amendment Number One to this Agreement, MCI shall issue a Purchase Order to
Genesys in the amount of [*] dollars ("[*]") (the "[*]") and to pay to Genesys
the Network License Fee within thirty (30) days of receipt of an invoice from
Genesys for such Network License Fee, and Genesys agrees to license hereunder to
MCI in consideration for such Network License Fee the Initial Network
Applications Software. [*].
h. The following new Section 4.7 is added:
"4.7 Transactional Pricing. For the first [*] receiving services from
---------------------
[*] as set forth in the following pricing model; provided, however, that such
model shall be [*] to the extent necessary for [*] that includes the [*];
provided, further, that such pricing shall continue to apply [*] unless one
party notifies the other Party in writing within [*] days following [*] of the
applicable [*].
(A) Consultation Regarding Pricing of Services. [*] concerning the [*] or
------------------------------------------
[*] to be paid by [*] for [*] and related services offered by [*] that
utilize Premises Software; provided, however, that such [*] shall in [*] be
interpreted to grant to [*] or otherwise [*] for such services.
(B) Sites Employing Basic T-Server Functionality. Where a site employs
--------------------------------------------
[*] to support Network Applications [*] only ("[*]"), in consideration for
such use, [*] the following amounts:
-9-
* Confidential Treatment Requested
(i) [*] percent ([*]%) of the [*] received by [*] as a result of
offering network-based [*] and related services that utilize [*]
over the [*] a given Customer for its [*], including charges for
queuing calls in the network. For example, [*] per call for
network-based [*] and related services utilizing [*] over the [*]
to such Customer for its [*], including charges for queuing calls
in the network, then [*];
(ii) notwithstanding the foregoing, [*] any Customer an [*] per call
for network-based [*] and related services that utilize [*] over
the [*] that [*] a given Customer for its [*], including charges
for queuing calls in the network, [*] and an [*] that employs [*]
to support [*]; provided, however, that if the Customer at such
site has [*] and [*] and has continuously maintained such
products by [*] at least up to the date that [*]
(C) Sites Employing Advanced T-Server Functionality. Where a site
-----------------------------------------------
employs [*] to support Network Applications [*], in consideration for such
use, [*] the following amounts:
(i) [*] percent ([*]%) of the [*] received by [*] as a result of
offering network-based [*] and related services that utilize [*]
over the [*] a given Customer for its [*], including charges for
queuing calls in the network. For example, [*] per call for
network-based [*] and related services utilizing [*] over the [*]
to such Customer for its [*], including charges for queuing calls
in the network, then [*]
(ii) notwithstanding the foregoing, if [*] an [*] per call, for
network-based [*] and related services that utilize [*] over the
[*]
-10-
* Confidential Treatment Requested
that [*] a given Customer for its [*], including charges for
queuing calls in the network, [*] and an [*] that employs [*];
provided, however, that if the Customer at such site has [*] and
[*] and continuously maintained such products by [*] at least up
to the date that [*].
(D) Statements and Payment. Within [*] days after of the end of each
----------------------
calendar [*] a statement calculating the [*] pursuant to Sections 4.6(B)
and (C) above along with [*] of such [*].
(E) Books and Records; Audit Rights. MCI and its Affiliates agree to make
-------------------------------
and maintain for a period of [*] years after the applicable payment under
Section 4.6(D) is due, such books, records and accounts regarding MCI's and
its Affiliates' network-based call routing or related services that utilize
either Basic or Advanced T-Server Functionality as reasonably required in
order to calculate and confirm MCI's payment obligations hereunder. [*] If
any such examination discloses a shortfall in payment to Genesys, [*] such
amounts to Genesys ([*]), and, in addition, where such examination
discloses a shortfall of [*] for any calendar year, [*].
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*Confidential Treatment Requested
7. WARRANTY.
a. The third sentence in Section 5.2 is modified, in part, to read as
follows:
". . . and [*] and [*] under this limited Software Warranty (including
Sections 5.5 and 5.6) shall be, at [*], (i) to [*] to attempt, through
reasonable efforts, to [*] any material nonconformities discovered during the
relevant [*] day warranty period (or at any time with respect to material
nonconformities under Sections 5.5 and 5.6) or (ii) . . . the [*] or otherwise
complies with the warranties in Sections 5.5 and 5.6, as applicable."
b. The fourth sentence in Section 5.2 is modified, in part, to read as
follows:
". . . nonconformity), upon receipt by Genesys of a written request
from MCI, Genesys shall . . ."
c. The fifth sentence in Section 5.2 is modified, in part, to read as
follows:
". . . of the nonconformities by MCI and that in Genesys' reasonable
judgment such nonconformities do not result from the Licensed Software having
been used, adjusted . . ."
d. The second sentence in Section 5.4 is modified, in part, to read as
follows:
". . . a "virus" shall mean Object Code (as defined in the MCA) that
is designed to cause and does cause Licensed Software to fail to comply with the
Applicable Specifications."
e. The following new Section 5.5 is added:
"5.5 Warranty Regarding Processing of Dates/Data Dependent Data. The
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Licensed Software will provide [*] (including, but not limited to, [*] and
otherwise [*] and that upon request [*] through adequate testing of the Licensed
Software or otherwise [*] with this warranty."
f. The following new Section 5.6 is added:
"5.6 Warranty Regarding Time Bombs. No material portion of the Work is or
-----------------------------
will be intended, other than under the documented control of MCI:
(i) at some specific time or on a specific instruction or occurrence
of a given event, to stop, limit or interfere with the operation of
the Licensed Software in conformity with the Applicable
Specifications;
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(ii) to damage or materially alter or render inaccessible the Licensed
Software, or any other hardware, software or data which the Licensed
Software is designed to process or use, or any other hardware,
programs or data attached to, resident on, or accessible to the system
on which the Licensed Software may be executed or stored;
(iii) to contain any feature which would impair in any way the
operation of the Licensed Software including, but not limited to,
software locks or drop-dead devices, date/time expiration codes, or
serial number dependent passwords; or
(iv) to otherwise be impaired in its operation now or in the future in
any way by Genesys.
Genesys shall be responsible for, indemnify and hold MCI harmless from
any damages, costs, liabilities, and/or expenses (including without
limitation reasonable attorneys' fees), arising out of the breach of
this Section 5.6."
8. PROPRIETARY RIGHTS.
a. The following new sentence is inserted at the beginning of Section
8.1:
"Genesys acknowledges that to the extent the Licensed Software may,
pursuant to a specific Statement of Work, contain the intellectual property of
MCI or its third party licensors licensed to Genesys pursuant to Section 9.1B(3)
or jointly owned by MCI and Genesys pursuant to Section 9.1C of the MCA and that
except as expressly provided therein, incorporation of such intellectual
property in the Licensed Software shall not limit the ownership rights of MCI or
such licensors in such intellectual property."
b. The second sentence of Section 8.1 is modified, in part, to read as
follows:
"Subject to the foregoing sentence, MCI acknowledges that Genesys and
its licensors . . . remain the sole property of Genesys and its licensors."
c. The third sentence in Section 8.1 is modified, in part, to read as
follows:
"Subject to the provisions of this Section 8.1, MCI shall not be an
owner . . ."
9. INTELLECTUAL PROPERTY RIGHT INDEMNITY.
a. Section 10.1 is deleted in its entirety and replaced with the
following:
"10.1 Indemnity for Infringement of Intellectual Property Rights. [*]
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agrees, [*] to [*] or, [*], to [*], any claim or action brought against [*], or
[*], or [*] (collectively, the "Indemnified Parties" and individually an
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"Indemnified Party") based on an allegation that the [*] of the Licensed
Software within the scope of the license granted hereunder, which includes use
of the Licensed Software as a part of a service, (a) infringes a patent under
the laws of the [*] (the "Indemnified Countries") or (b) infringes a copyright,
trademark or other intellectual property right of a third party (other than
patent rights), or constitutes misuse or misappropriation of a trade secret
under the laws of any country (a claim under either (a) or (b) herein, an
"Infringement"), and to indemnify and hold harmless against all [*] which may be
assessed against or incurred by any of such [*] under any such claim or action.
Promptly after receipt [*], as applicable, of notice of any claim or action or
the commencement of any claim or action for which indemnification or
reimbursement may be sought hereunder, [*] shall give written notice to [*]
thereof, but the failure to so notify [*] shall [*] of any liability it may have
to [*] hereunder [*] shall be obligated to [*] of such claim or action, [*], and
shall have the [*] and [*] over the [*] or [*] of such claim or action, provided
that the [*] will be required to the extent any such [*] or [*] will impose any
obligation whatsoever on [*] that is [*] or, [*] or [*], other than the payment
of monies that are readily measurable for purposes of determining the monetary
indemnification or reimbursement obligations [*]. The [*] shall have the right,
[*] to [*] in the investigation [*] of such claim or action; [*]; provided,
however, that notwithstanding the foregoing, [*] to a complaint for equitable
relief in connection with a claim of [*] and upon notification [*] shall be [*]
for its [*] until such time as [*]. The [*] shall otherwise provide reasonable
[*] with respect to such claim or action, provided that [*] for its [*] with
respect thereto. Moreover, should the Licensed Software, or any use of the
Licensed Software within the reasonable scope of its intended use, become, or in
[*], be likely to become, the subject of a claim or action of [*], or should [*]
use thereof be finally enjoined, [*]:
(A) [*] the right to [*] such Licensed Software; or
(B) [*] or [*] such Licensed Software to make it [*] provided such [*] or [*]
is the functional equivalent of the Licensed Software in light of the
Applicable Specifications, and [*] for any additional [*] and caused by any
such [*] or [*]; or
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(C) If neither of the foregoing Subitems (A) and (B) can be reasonably
accomplished, [*], to undertake to [*] or [*] the Licensed Software
provided that (i) such [*] or [*] shall be treated as [*] as defined in the
Master Consulting Agreement, (ii) [*] of such [*] or [*], and (iii) the
undertaking of such [*] shall [*] of this Agreement; or
(D) [*] its right to act under Subsection (C) above or if [*] (C) can not
be reasonably accomplished, [*], as applicable, for all [*] of the [*] for
the Licensed Software, provided that such amounts shall be [*] beginning
with the [*] of the Licensed Software (i.e., a change from version A.x to
version B.0) was delivered to [*]."
b. Section 10.2 is deleted in its entirety and replaced with the
following:
"10.2. Exceptions.
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(A) Notwithstanding the provisions of Section 10.1 above, [*] for [*]
claims to the extent (i) the Licensed Software is not or ceases to be an
element of the alleged [*], (ii) the alleged [*] is based upon a [*] to the
Licensed Software [*], or (iii) the alleged [*] results from the [*] of the
Licensed Software with any products not [*] (a "Combination") where the
Combination is [*] of the Licensed Software. If an alleged [*] is based
upon a Combination and at the time of such claim or thereafter products are
[*] that could result in a [*] Combination, then the Parties will meet to
discuss the option of [*].
(B) Notwithstanding anything in Section 10.1 to the contrary, where the
Licensed Software is being [*] in its [*] or [*] as a [*] (but not
including the [*], pursuit of [*], and any other legal and related expenses
[*] claims of [*]), shall be limited to [*] times the amount of the License
Fees paid [*] for the [*] Licensed Software for any [*] claim with respect
to [*] of the Licensed Software in a [*], to the extent arising from (a)
the [*] of the Licensed Software with any other product [*], even if [*]
such [*] or, (b) a [*] to the Licensed Software made or [*] for the [*].
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It is understood and acknowledged that the foregoing [*] for certain
[*] claims shall [*], for all such claims in all proceedings in
accordance with Section 10.1, subject to the limitation of Section
10.2 (A).
(C) Notwithstanding anything in Section 10.1 or 10.2 B to the
contrary, where the Network Applications and Premises Software is
being utilized to provide [*] to Customers, [*], including without
limitation [*] or [*] as a [*] (collectively, "Liability") for any
[*] claim with respect to such use of the Licensed Software in a [*],
to the extent such Liability arose out of or resulted from a [*],
shall [*] percent ([*]%) of such Liability. It is understood and
acknowledged that the foregoing [*] claims shall [*] in all
proceedings in accordance with Section 10.1 [*] but subject to the
[*] of this Section 10.2(C). At such time as [*] under Section 10.1 as
to a claim subject to this Section 10.2 C, then the [*] of this
Section and the [*]."
c. Section 10.4 is deleted in its entirety and replaced with the
following:
"10.4 Limitation. THE FOREGOING PROVISIONS OF THIS ARTICLE 10 STATE THE
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ENTIRE LIABILITY AND OBLIGATIONS OF GENESYS, AND THE EXCLUSIVE REMEDY OF ALL
INDEMNIFIED PARTIES, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY
PATENT, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE
LICENSED SOFTWARE OR ANY PART THEREOF OR ANY WARRANTY OR REPRESENTATION RELATED
THERETO."
d. The following new Section 10.6 is added:
"10.6 Licensed Software. "Licensed Software" for purposes of this Article
-----------------
10 only, shall include, without limitation, [*] pursuant to the MCA to the
extent [*] are used within the scope specified in Section 14.1 thereof, even if
any of [*] are intended to be subsequently licensed by MCI or such MCI Affiliate
pursuant to this Agreement as Licensed Software."
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10. LIMITATION OF LIABILITY AND REMEDIES.
a. Section 11.1 is modified, in part, to read as follows:
". . . UNDER THE RELEVANT PURCHASE ORDER. [*] . . . "
11. TERM AND TERMINATION. Section 13.1 is modified, in part, to read as
follows:
". . . upon one hundred eighty (180) days prior written . . ."
12. ASSIGNMENT.
a. The first sentence in Section 14.1 is modified, in part, to read as
follows:
". . . consent of the other party, which consent shall not be
unreasonably withheld or delayed."
b. The second sentence in Section 14.1 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."
13. DISPUTE RESOLUTION. The sixth sentence in Section 14.4 is modified, in
part, to read as follows:
"The arbitrator's decision shall be final and binding."
14. ENTIRE AGREEMENT. This Amendment and the Agreement, and to the extent
referenced herein or in the Agreement, the MCA, 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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IN WITNESS WHEREOF, Genesys and MCI have caused this Amendment Number One to be
executed by their duly authorized representatives, effective as of the Effective
Date set forth above.
AGREED TO AND ACCEPTED BY:
GENESYS TELECOMMUNICATIONS MCI TELECOMMUNICATIONS
LABORATORIES, INC. CORPORATION
/s/ Gregory Shenkman /s/ John W. Gerdelman
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Signature Signature
Gregory Shenkman John W. Gerdelman
President and Chief
Executive Officer
- -------------------------- -----------------------------
Printed Name and Title Printed Name and Title
February 26, 1997 February 26, 1997
- -------------------------- -----------------------------
Date Date
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SCHEDULE A
EXHIBIT A
LICENSED SOFTWARE AND PRICING
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SCHEDULE B
EXHIBIT B
MINIMUM PURCHASE COMMITMENT
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* Confidential Treatment Requested