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EXHIBIT 10.1
OEM AGREEMENT
BETWEEN
NORTHERN TELECOM INC.
AND
VOICETEK CORPORATION
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CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE OMISSIONS.
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THIS OEM AGREEMENT is made and entered into by and between Northern Telecom
Inc., a Delaware corporation, with offices located at 2305 Mission College
Boulevard, Santa Clara, California 95054-1591 (hereinafter "NTI") and Voicetek
Corporation, a Massachusetts corporation, having its principal place of business
at 19 Alpha Road, Chelmsford, Massachusetts 01824-4175
(hereinafter "VOICETEK").
RECITALS
WHEREAS, NTI shall assume the role of an original equipment manufacturer that
procures products from VOICETEK for incorporation into a number of Northern
Telecom applications;
AND WHEREAS, NTI wishes to obtain the nonexclusive rights and VOICETEK agrees to
extend nonexclusive rights to NTI to purchase, resell and distribute VOICETEK's
standard product(s) and/or services at NTI's option as enumerated in VOICETEK's
Price List;
AND WHEREAS, NTI wishes to obtain exclusive rights and VOICETEK agrees to extend
exclusive rights to NTI to purchase, resell, and distribute VOICETEK's
product(s) and/or services which VOICETEK has, or will in the future, as the
case may be, modify according to specifications agreed upon by NTI and VOICETEK
and for which NTI has paid development fees to VOICETEK under one or more
development agreements and/or annexes applicable to development agreements
unless otherwise negotiated;
AND WHEREAS, NTI wishes to obtain the nonexclusive rights and VOICETEK agrees to
extend nonexclusive rights to NTI to purchase hardware not manufactured by
VOICETEK (an example of which is Dialogic-manufactured circuit pack assemblies),
direct from VOICETEK's external supplier(s) for installation in and use with
SELF-HOSTED UNITS only, without such direct purchase and installation by NTI or
NTI's qualified technicians of such non-VOICETEK-manufactured hardware voiding
and/or negatively affecting any and all warranties granted to NTI, NORTHERN
TELECOM COMPANIES or MANUFACTURING LICENSEES for SELF-HOSTED UNITS herein;
AND WHEREAS, the procured products have specific utilitarian functions to carry
out within the Northern Telecom applications into which they are incorporated;
AND WHEREAS, the parties desire to establish a stable and dependable business
relationship to ensure the smooth flow of products between the parties and
timely resolution of performance-related issues identified in the products
supplied by VOICETEK;
NOW THEREFORE, in consideration of the mutual covenants and obligations
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, THE PARTIES HERETO
AGREE AS FOLLOWS:
ARTICLE I - DEFINITIONS
Terms in the Agreement (other than names of parties and Article headings) which
are in capital letters shall have the meanings set forth in this Article I for
all purposes in connection with the Agreement.
1.1 "AGREEMENT" as used herein shall mean this OEM Agreement, as amended,
modified, supplemented or otherwise altered from time to time.
1.2 "ANNUAL SUPPORT SERVICES PERIOD" as used herein shall mean the particular
twelve (12) month period for which NTI has paid the requisite annual fee
for RESELLER SUPPORT SERVICES.
1.3 "APPLICATION PROCESSOR" or "APPLICATION PROCESSORS" as used herein shall
mean the computing platform used specifically to develop and/or execute
GENERATIONS-based software in a client-server environment.
1.4 "AUTHORIZED DISTRIBUTOR" or "AUTHORIZED DISTRIBUTORS" as used herein shall
mean any company which has signed a Distributorship Agreement (or the
equivalent) with NTI, a NORTHERN TELECOM COMPANY or a MANUFACTURING
LICENSEE granting such company the right to distribute one or more of the
Northern Telecom product lines.
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1.5 "AUTHORIZED TERRITORY" as used herein shall mean the countries listed in
Schedule A, which is attached hereto and is by this reference made a part
of the AGREEMENT.
1.6 "BLANKET ORDER" or "BLANKET ORDERS" as used herein shall mean an ORDER
which does not set forth a DELIVERY DATE.
1.7 "CANCELLATION PERIOD" as used herein shall mean the period commencing on
VOICETEK's receipt of an ORDER or ORDER RELEASE and ending thirty (30) days
immediately prior to the SHIPMENT DATE thereof.
1.8 "CRITICAL PROBLEM" or "CRITICAL PROBLEMS" as used herein shall mean
problems characterized by one or more of the following: (i) system is
inoperable, or (ii) causes software reloads or initializations, or (iii)
substantially impairs a major application feature, or (iv) an error in USER
DOCUMENTATION and/or MODIFIED USER DOCUMENTATION which requires an
immediate revision and/or an immediate letter to NTI, and/or NORTHERN
TELECOM COMPANIES and/or MANUFACTURING LICENSEES and/or AUTHORIZED
DISTRIBUTORS in order to correct such problem(s).
1.9 "DELIVERY DATE" as used herein shall mean the date when PRODUCTS shall be
delivered to the DELIVERY LOCATION.
1.10 "DELIVERY LOCATION" as used herein shall mean the NTI, NORTHERN TELECOM
COMPANY or MANUFACTURING LICENSEE location where PRODUCTS shall be
delivered.
1.11 "EFFECTIVE DATE" as used herein shall mean the date upon which the latter
of the parties to execute the AGREEMENT performs that function.
1.12 "GENERAL AVAILABILITY" as used herein shall mean the date when the
PRODUCTS, or any of them, have been released for unrestricted commercial
sale and are available for sale by AUTHORIZED DISTRIBUTORS in any part of
the AUTHORIZED TERRITORY.
1.13 "GENERATIONS" as used herein shall mean the object-oriented applications
development and runtime environment developed and owned by VOICETEK.
1.14 "HARDWARE" as used herein shall mean all items that are designated as
hardware in a PRICE LIST including, but not limited to, VTK Base Systems,
Voice Ports/Network Interfaces, Voice Storage, APPLICATION PROCESSORS,
Parts and Spares, Technical Documentation, KEYLOCKS, VOICE RESPONSE UNITS,
SELF-HOSTED UNITS and Marketing Materials.
1.15 "HARDWARE PRODUCTS" as used herein shall mean either STANDARD HARDWARE
PRODUCTS or MODIFIED HARDWARE PRODUCTS or both, as the context requires.
1.16 "KEYLOCK" or "KEYLOCKS" as used herein shall mean the VOICETEK-supplied
hardware and keycode in object form functioning as a software lock and
preventing unauthorized use and/or duplication of SOFTWARE PRODUCTS
purchased by NTI, NORTHERN TELECOM COMPANIES or MANUFACTURING LICENSEES
hereunder.
1.17 "MANUFACTURING LICENSEE" or "MANUFACTURING LICENSEES"as used herein shall
mean those third parties properly authorized and empowered by NTI or a
NORTHERN TELECOM COMPANY to manufacture and market product lines
including, but not limited to, Northern Telecom proprietary hardware
systems such as the Meridian 1 PBX, under its or their own corporate
name(s), under a private brand, or under a Northern Telecom name and, as a
result, require certain rights to SOFTWARE PRODUCTS which are
substantially similar in scope to those granted directly to NTI by the
AGREEMENT.
1.18 "MARKS" as used herein shall mean the trademarks, trade names and service
marks now owned by, licensed to, or hereafter obtained by VOICETEK as may
from time to time be added to Schedule C, which is attached hereto and by
this reference made a part of the AGREEMENT.
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1.19 "MAXIMUM DELIVERY PERIOD" as used herein shall mean thirty (30) days for
HARDWARE PRODUCTS and two (2) days or less for SOFTWARE PRODUCTS commencing
on the date that VOICETEK receives an ORDER or an ORDER RELEASE therefor.
1.20 "MINOR PROBLEM" or "MINOR PROBLEMS" as used herein shall mean a problem
with the SOFTWARE PRODUCTS which causes or may cause degradation of feature
operation, or a problem with USER DOCUMENTATION, respectively, both for
which an acceptable workaround is available and the problem can persist
without customer complaint for a limited time.
1.21 "MODIFIED HARDWARE PRODUCT or "MODIFIED HARDWARE PRODUCTS" as used herein
shall mean any and all HARDWARE modified at NTI's direction and expense
under one or more Technology Development Agreements and annexes or addenda
thereto, and which may or may not be enumerated in Schedules D and/or E
which are attached hereto and are by this reference made a part of the
AGREEMENT and which are products VOICETEK sells exclusively to NTI,
NORTHERN TELECOM COMPANIES and MANUFACTURING LICENSEES.
1.22 "MODIFIED PRODUCT" or "MODIFIED PRODUCTS" as used herein shall mean either
MODIFIED HARDWARE PRODUCTS or MODIFIED SOFTWARE PRODUCTS or both, as the
context requires.
1.23 "MODIFIED SOFTWARE PRODUCT" or "MODIFIED SOFTWARE PRODUCTS" as used herein
shall mean any and all SIGNATURES, USER DOCUMENTATION, and software
modified at NTI's direction and expense under one or more Technology
Development Agreements and annexes or addenda thereto, and which may or may
not be enumerated in Schedules D and/or E and which are products VOICETEK
sells exclusively to NTI, NORTHERN TELECOM COMPANIES and MANUFACTURING
LICENSEES.
1.24 "MODIFIED USER DOCUMENTATION" as used herein shall mean USER DOCUMENTATION
and/or user manuals created by VOICETEK for the PRODUCTS and modified at
NTI's direction to reflect, but are not restricted to, such changes as
NTI's naming convention, product names, NTI-supplied platforms and removal
of options or features not sold by NTI and which may contain all or parts
of the USER DOCUMENTATION and/or user manuals.
1.25 "NORTHERN TELECOM COMPANY" or "NORTHERN TELECOM COMPANIES" as used herein
shall mean Northern Telecom Limited, the parent company of NTI, and all
subsidiaries or affiliates wholly or at least majority owned, directly or
indirectly, by Northern Telecom Limited, but not including NTI.
1.26 "OPTION PERIOD" as used herein shall mean the three (3) month period
immediately following conclusion of the TERM for which NTI can elect to
extend the AGREEMENT on these stated terms while a renewal hereof or a new
agreement are being negotiated by the parties.
1.27 "ORDER" or "ORDERS" as used herein shall mean the document issued or output
of an electronic "paperless" process initiated by NTI by which PRODUCTS are
ordered.
1.28 "ORDER RELEASE" or "ORDER RELEASES" as used herein shall mean the document
issued or output of an electronic "paperless" process initiated by NTI
pursuant to a BLANKET ORDER by which the DELIVERY DATE for such BLANKET
ORDER, or a portion thereof, is established.
1.29 "POINT RELEASE" or "POINT RELEASES" as used herein shall mean revision(s)
of any SOFTWARE PRODUCTS included as part of the applicable cost of
RESELLER SUPPORT SERVICES and supplied by VOICETEK at no additional charge
to NTI, NORTHERN TELECOM COMPANIES or MANUFACTURING LICENSEES, the
principle function of which is to provide bug fixes to the SOFTWARE
PRODUCTS but which can include minor new functionality, an example of which
would be a change from 3.xx to 3.xy.
1.30 "PRICE LIST" as used herein shall mean the Voicetek Corporation Price Book
For North America and Asia, and the Voicetek Corporation International
Pricebook, respectively, identified and incorporated by reference in
Schedule 8, that are in effect at the time NTI or NORTHERN
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TELECOM COMPANIES or MANUFACTURING LICENSEES procure(s) STANDARD PRODUCTS
from VOICETEK.
1.31 "PRODUCT" or "PRODUCTS" as used herein shall mean either STANDARD PRODUCTS
or MODIFIED PRODUCTS or both, as the context requires.
1.32 "RESCHEDULING PERIOD" as used herein shall mean the period commencing on
VOICETEK's receipt of an ORDER or ORDER RELEASE and ending thirty (30)
days immediately prior to the SHIPMENT DATE thereof.
1.33 "RESELLER SUPPORT SERVICES" as used herein shall mean those support
services enumerated in Article XIII and Schedule F, which is attached
hereto and is by this reference made a part of the AGREEMENT.
1.34 "RMA" as used herein shall mean Return Material Authorization.
1.35 "SELF-HOSTED UNIT" or "SELF-HOSTED UNITS" as used herein shall mean any
SYSTEM configuration comprised of SOFTWARE PRODUCTS executable on a single
hardware platform performing the combined functions of APPLICATION
PROCESSOR and VOICE RESPONSE UNIT.
1.36 "SERIOUS PROBLEM" or "SERIOUS PROBLEMS" as used herein shall mean a
problem that is characterized by a substantial reduction in service and/or
missing or incorrect USER DOCUMENTATION and/or MODIFIED USER DOCUMENTATION
of major functionality for which there is not an acceptable workaround or
interim solution available.
1.37 "SHIPMENT DATE" as used herein shall mean the date when PRODUCTS shall be
shipped by VOICETEK to the DELIVERY LOCATION.
1.38 "SIGNATURE" or "SIGNATURES" as used herein shall mean the
VOICETEK-supplied code(s) which are branded into the firmware of HARDWARE
components not manufactured by VOICETEK (examples of which are Dialogic
boards) which enable PRODUCTS (HARDWARE and software combined) to
compatibly perform their functions together as a SYSTEM.
1.39 "SOFTWARE PRODUCTS" as used herein shall mean either STANDARD SOFTWARE
PRODUCTS or MODIFIED SOFTWARE PRODUCTS or both, as the context requires.
1.40 "SOURCE CODE MATERIALS" as used herein shall mean the first version of the
following items and all subsequent POINT RELEASES, UPDATES, VERSION
RELEASES and enhancements thereof: (a) one copy of the source code of
SOFTWARE PRODUCTS in machine-readable form, and (b) one copy of all
development tools, editors and compilers normally supplied by VOICETEK in
making use of source code of the SOFTWARE PRODUCTS, and (c) any
documentation describing source code of SOFTWARE PRODUCTS normally
supplied by VOICETEK in making use of source code of SOFTWARE PRODUCTS.
1.41 "SPECIFICATIONS" as used herein shall mean the most current version of the
document or documents published by VOICETEK and applicable to PRODUCTS
that define the applicable PRODUCTS including, but not limited to,
materials, dimensions, quality performance criteria, Mean Time Between
Failures (MTBF), SYSTEM architecture, physical configuration, product
capabilities, functionality, functional parameters, performance standards,
operating characteristics and compliance with corresponding commercial and
regulatory requirements.
1.42 "STANDARD HARDWARE PRODUCT" or "STANDARD HARDWARE PRODUCTS" as used herein
shall mean HARDWARE as enumerated in the PRICE LIST and/or Schedule D
and/or Schedule E which are the same products VOICETEK sells to its
general customer base and which products have not been modified by
VOICETEK in any unique and/or specific manner to suit any NTI customer or
specific group of NTI customers.
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1.43 "STANDARD PRODUCT" or "STANDARD PRODUCTS" as used herein shall mean either
STANDARD HARDWARE PRODUCTS or STANDARD SOFTWARE PRODUCTS or both, as the
context requires.
1.44 "STANDARD SOFTWARE PRODUCT" or "STANDARD SOFTWARE PRODUCTS" as used herein
shall mean software and USER DOCUMENTATION as enumerated in the PRICE LIST
and/or Schedule D and/or Schedule E which are the same products VOICETEK
sells to its general customer base and which products have not been
modified by VOICETEK in any unique and/or specific manner to suit any NTI
customer or specific group of NTI customers.
1.45 "SUPPORT ORGANIZATION" as used herein shall mean the identified NTI or
NORTHERN TELECOM COMPANY or MANUFACTURING LICENSEE whose primary contact
persons are authorized to contact VOICETEK for warranty service during the
WARRANTY PERIOD or for RESELLER SUPPORT SERVICES thereafter, as the case
may be.
1.46 "SYSTEM" or "SYSTEMS" as used herein shall mean any combination of
PRODUCTS, USER DOCUMENTATION and/or MODIFIED USER DOCUMENTATION together
required to assemble, (load in the case of software), install and operate
as fully functional interactive voice response product(s).
1.47 "TERM" as used herein shall mean the three (3) year period from and
after the EFFECTIVE DATE.
1.48 "TRAINING MATERIALS" as used herein shall mean available course materials
such as instructor's notes, presentation materials, binders, slides,
videos and software examples, but not including equipment or HARDWARE.
1.49 "TRAINING PROGRAM" or "TRAINING PROGRAMS" as used herein shall mean the
VOICETEK-supplied instruction courses covering the subjects of, but not
limited to, Administration, Applications Development and Installation
and Maintenance.
1.50 "UPDATE" or "UPDATES" as used herein shall mean a release included as part
of the applicable cost of RESELLER SUPPORT SERVICES and supplied by
VOICETEK to NTI, NORTHERN TELECOM COMPANIES or MANUFACTURING LICENSEES of
SOFTWARE PRODUCTS in which minor new functionality has been added in
addition to the normal complement of bug fixes supplied, an example of
which would be a change from 3.x to 3.y.
1.51 "USER DOCUMENTATION" as used herein shall mean VOICETEK's user manuals,
technical manuals, release notes including advisements for PRODUCTS,
installation and operation, promotional materials and other data and
documentation describing the use of PRODUCTS normally supplied to
customers of VOICETEK.
1.52 "VERSION RELEASE" or "VERSION RELEASES" as used herein shall mean a
release of SOFTWARE PRODUCTS that is not included in the scope of RESELLER
SUPPORT SERVICES in which major new functionality has been added in
addition to any complement of bug fixes supplied, an example of which
would be a release from 3.x to 4.x, and for which NTI or NORTHERN TELECOM
COMPANIES or MANUFACTURING LICENSEES would be expected to pay a fee in
addition to the requisite annual fee for RESELLER SUPPORT SERVICES.
1.53 "VOICE RESPONSE UNIT" or "VOICE RESPONSE UNITS" as used herein shall mean
the computing platform used to execute VRS.
1.54 "VRS" as used herein shall mean the voice response server software, also
known as TSP, developed and owned by VOICETEK and executable on VOICE
RESPONSE UNITS whether supplied by NTI or VOICETEK.
1.55 "WARRANTY PERIOD" as used herein shall mean fifteen (15) months in the
case of SOFTWARE PRODUCTS and twelve (12) months in the case of HARDWARE
PRODUCTS beginning on the date of receipt thereof (in the case of SOFTWARE
PRODUCTS duplicated by NTI on the date of receipt of gold standard master)
by NTI, NORTHERN TELECOM COMPANIES, or MANUFACTURING LICENSEES.
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1.56 "WARRANTY REPAIR PERIOD" as used herein shall mean ten (10) calendar days
which shall commence on the date that VOICETEK receives HARDWARE PRODUCTS
which do not conform to the warranty set forth in Section 11.1 at
VOICETEK's repair facility in Chelmsford, Massachusetts, except that in
the case of HARDWARE PRODUCTS destined for locations outside of the United
States and Canada, the understanding is that the repaired or replaced item
will have been shipped but not necessarily received by a NORTHERN TELECOM
COMPANY or a MANUFACTURING LICENSEE within the ten (10) day period as
stated herein due to potential extended transit time for shipments outside
of North America and which actual transit time would be the shortest
period of time available from the carrier designated by NTI, NORTHERN
TELECOM COMPANIES or MANUFACTURING LICENSEES.
ARTICLE II - WARRANTIES OF OWNERSHIP
2.1 VOICETEK warrants that it has developed, it is the owner of, and/or it
possesses all necessary rights to market the use of STANDARD SOFTWARE
PRODUCTS and owns and/or has the right to use as of the EFFECTIVE DATE
certain MARKS and VOICETEK's goodwill of the businesses symbolized
thereby.
2.2 VOICETEK warrants and represents that STANDARD SOFTWARE PRODUCTS, or any
substantial portions thereof, have not been published or otherwise made
available to third parties without appropriate copyright and/or other
proprietary notices to preserve VOICETEK's ownership and proprietary or
licensed rights therein.
2.3 VOICETEK warrants that it is either the owner, or is otherwise in
possession of sufficient licensed rights pertaining to any portion of the
proprietary and intellectual property rights owned by third parties, of
all proprietary and intellectual property rights in and to all STANDARD
HARDWARE PRODUCTS. VOICETEK further warrants that title to all STANDARD
HARDWARE PRODUCTS shipped to NTI and/or NORTHERN TELECOM COMPANIES and/or
MANUFACTURING LICENSEES pursuant to the AGREEMENT shall pass to NTI or a
NORTHERN TELECOM COMPANY or a MANUFACTURING LICENSEE, as the case may be,
free and clear of any liens, charges, encumbrances, restrictions or rights
created in, by or against the STANDARD HARDWARE PRODUCTS or against
VOICETEK, except any intellectual property rights of VOICETEK and/or one
or more of VOICETEK's licensors in the STANDARD HARDWARE PRODUCTS, if any.
Without investigating the nature and scope of any intellectual property
rights that may exist in or to the STANDARD HARDWARE PRODUCTS, the parties
agree that NTI undertakes no obligation to protect any such intellectual
property rights as may be claimed by VOICETEK and/or one or more of
VOICETEK's licensors in the STANDARD HARDWARE PRODUCTS in connection with
purchase and sale of STANDARD HARDWARE PRODUCTS pursuant to the AGREEMENT.
2.4 VOICETEK warrants that USER DOCUMENTATION or any substantial portions
thereof, have not been published or otherwise made available to third
parties without appropriate copyright and/or other proprietary notices to
preserve VOICETEK's ownership and proprietary or licensed rights therein.
2.5 VOICETEK warrants and represents that no prior license or other agreement
is violated by or is inconsistent with the terms and conditions of the
AGREEMENT.
ARTICLE III - GRANT OF NONEXCLUSIVE RIGHTS
3.1 In accordance with and subject to the terms and conditions of the
AGREEMENT, VOICETEK hereby grants to NTI the nonexclusive right:
(a) to market and distribute STANDARD HARDWARE PRODUCTS and to market and
sublicense STANDARD SOFTWARE PRODUCTS only in object form and/or USER
DOCUMENTATION under the MARKS respectively applicable, if any, or, at
NTI's option, under NTI's trademarks and/or trade dress, directly or
indirectly, as components of a Northern Telecom-manufactured
application to AUTHORIZED DISTRIBUTORS and/or
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end-user customers in the AUTHORIZED TERRITORY, and to grant these
same rights to MANUFACTURING LICENSEES.
(b) to use, adapt, merge, copy and incorporate, as necessary, the
STANDARD SOFTWARE PRODUCTS, or portions thereof, as a part of a
Northern Telecom-manufactured application, and to grant these same
rights to MANUFACTURING LICENSEES. The right to reproduce copies of
STANDARD SOFTWARE PRODUCTS, or portions thereof, shall include the
right to have such reproduction performed by another party on NTI's
behalf, provided such party has signed a substantially unmodified
version of NTI's Reproduction Services Agreement, a copy of which is
attached hereto as Schedule G and is by this reference made a part
hereof.
(c) to use, modify, translate, reproduce and distribute, either directly,
or through AUTHORIZED DISTRIBUTORS to customers in the AUTHORIZED
TERRITORY, and to use, translate and reproduce for internal use,
copies of the USER DOCUMENTATION delivered to NTI under the AGREEMENT
and to grant all of these same rights to MANUFACTURING LICENSEES. The
right to reproduce copies of USER DOCUMENTATION shall include the
right to have such reproduction performed by another party on NTI's
behalf, provided such party has signed a substantially unmodified
version of NTI's Reproduction Services Agreement.
(d) to manufacture and distribute copies of POINT RELEASES, UPDATES and
VERSION RELEASES [for STANDARD SOFTWARE PRODUCTS only] either
directly or indirectly, to end-user customers in the AUTHORIZED
TERRITORY.
(e) to purchase HARDWARE not manufactured by VOICETEK (an example of
which is Dialogic-manufactured circuit pack assemblies), direct from
VOICETEK's external supplier(s) for installation and use in
VOICETEK-supplied components without such direct purchase, sale,
distribution and installation by NTI or NTI's qualified technicians
of such HARDWARE not manufactured by VOICETEK voiding and/or
negatively affecting in any way the warranties granted to NTI,
NORTHERN TELECOM COMPANIES or MANUFACTURING LICENSEES elsewhere in
the AGREEMENT.
(f) to brand SIGNATURES for any HARDWARE purchased under the rights
granted to NTI under subsection (e) above at NTI's option and at no
additional cost to NTI, NORTHERN TELECOM COMPANIES and MANUFACTURING
LICENSEES and to have such branding of SIGNATURES not void and/or
negatively affect in any way the warranties granted to NTI elsewhere
in the AGREEMENT.
ARTICLE IV - GRANT OF EXCLUSIVE RIGHTS
4.1 In accordance with and subject to the terms and conditions of the
AGREEMENT, VOICETEK hereby grants to NTI the exclusive right:
(a) to market and distribute MODIFIED HARDWARE PRODUCTS and to market and
sublicense MODIFIED SOFTWARE PRODUCTS only in object form and/or
MODIFIED USER DOCUMENTATION under NTI's trademarks and/or trade
dress, directly or indirectly, as components of a Northern Telecom
application to AUTHORIZED DISTRIBUTORS and/or end-user customers in
the AUTHORIZED TERRITORY, and to grant these same rights to
MANUFACTURING LICENSEES.
(b) to use, adapt, merge, copy and incorporate, as necessary, the
MODIFIED SOFTWARE PRODUCTS, or portions thereof, as a part of a
Northern Telecom application, and to grant these same rights to
MANUFACTURING LICENSEES. The right to reproduce copies of MODIFIED
SOFTWARE PRODUCTS shall include the right to have such reproduction
performed by another party on NTI's behalf, provided such party has
signed a substantially unmodified version of NTI's Reproduction
Services Agreement.
(c) to use, modify, translate, reproduce and distribute, either directly,
or through AUTHORIZED DISTRIBUTORS to customers in the AUTHORIZED
TERRITORY, and to
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use, translate and reproduce for internal use, copies of the MODIFIED
USER DOCUMENTATION and to grant all of these same rights to
MANUFACTURING LICENSEES. The right to reproduce copies of MODIFIED
USER DOCUMENTATION shall include the right to have such reproduction
performed by another party on NTI's behalf, provided such party has
signed a substantially unmodified version of NTI's Reproduction
Services Agreement.
(d) to manufacture and distribute copies of POINT RELEASES, UPDATES and
VERSION RELEASES [for MODIFIED SOFTWARE PRODUCTS only], either
directly or indirectly, to end-user customers in the AUTHORIZED
TERRITORY.
ARTICLE V - DISTRIBUTION AND SUBLICENSING
5.1 Subject to the terms and conditions set forth herein, VOICETEK agrees to
sell [or license, in the case of SOFTWARE PRODUCTS] and NTI shall have the
right to purchase or otherwise procure, as the case may be, PRODUCTS at
the license fees and/or prices set forth in Schedule B, Schedule D or
Schedule E, as the case may be, during the TERM.
5.2 Except as may otherwise be required by VOICETEK's agreements with its
suppliers of STANDARD PRODUCTS, NTI reserves the right to market and
distribute HARDWARE PRODUCTS and to market and sublicense SOFTWARE
PRODUCTS in object form under its own trademarks, service marks and/or
trade dress associated with the various Northern Telecom applications into
which such PRODUCTS are incorporated. NTI and/or NORTHERN TELECOM
COMPANIES and/or MANUFACTURING LICENSEES may request that a Northern
Telecom logo or other form of trade dress be placed on MODIFIED PRODUCTS
by NTI or a NORTHERN TELECOM COMPANY or MANUFACTURING LICENSEE itself or
by VOICETEK. Regardless of which party places a Northern Telecom logo or
other form of trade dress on MODIFIED PRODUCTS, it is the understanding of
the parties that any MODIFIED PRODUCTS provided with a warranty pursuant
to the AGREEMENT shall carry the same warranty from VOICETEK whether or
not Northern Telecom logos and/or trade dress are applied thereto.
5.3 If NTI or any NORTHERN TELECOM COMPANY, MANUFACTURING LICENSEE OR
AUTHORIZED DISTRIBUTOR desires to distribute the PRODUCTS in object form
in countries outside of the AUTHORIZED TERRITORY, NTI shall first submit
the name of such country or countries to VOICETEK for VOICETEK's prior
written approval, which approval shall not be unreasonably withheld. In
the event a particular country is not approved by VOICETEK, the parties
shall arrange to discuss the merits of proceeding with the proposed
distribution in such country and the reservations and/or objections of
VOICETEK in an effort to reach a mutually satisfactory resolution.
5.4 NTI understands and agrees that the PRODUCTS, and any copies thereof
acquired or reproduced hereunder, and any direct product thereof, are
subject to the export control laws and regulations of the United States,
and any amendments thereof. NTI hereby assures (and shall require any
NORTHERN TELECOM COMPANIES and/or MANUFACTURING LICENSEES and/or
AUTHORIZED DISTRIBUTORS receiving rights directly or indirectly from NTI
hereunder) VOICETEK that it does not intend to and will not knowingly,
without the prior written consent, if required, of the Office of Export
Licensing of the U.S. Department of Commerce, P.O. Box 273, Washington,
D.C. 20230, transmit directly or indirectly:
(i) PRODUCTS and/or technical information provided in relation to
PRODUCTS; or
(ii) any immediate products (including processes and services) produced
directly by the use of PRODUCTS and/or associated technical
information;
to (1) Afghanistan, The Federal Republic of Yugoslavia (Serbia and
Montenegro), Haiti, Iraq, the People's Republic of China or any Group Q,
S, W, Y or Z country specified in Supplement No. 1 to Part 370 of the
Export Administration Regulations issued by the U.S. Department of
Commerce or (2) any citizen or resident of the foregoing countries.
Country Groups Q, S, W, Y and Z currently include the following: Albania,
Armenia, Azerbaijan, Belarus, Bulgaria, Cambodia, Cuba, the Czech
Republic, Estonia, Laos, Latvia, Libya, Lithuania, Mongolia, North Korea,
Poland, Romania,
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Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan and Vietnam. NTI
further assures VOICETEK that it will not transmit, sell, convey or
transfer any PRODUCTS or any other commodities or technical information
received under or in connection with the AGREEMENT to any individuals or
entities listed in the Table of Denial orders as published in Supplement
Nos. 1 and 2 to Part 788 of the above-referenced regulations.
5.5 NTI and all NORTHERN TELECOM COMPANIES and MANUFACTURING LICENSEES agree
to reproduce, upon each copy of the SOFTWARE PRODUCTS in object form and
the USER DOCUMENTATION and MODIFIED USER DOCUMENTATION, respectively,
made, the copyright notice attributing ownership of the copyright rights
therein as delivered to NTI under Article VII of the AGREEMENT. In the
event that NTI and/or a NORTHERN TELECOM COMPANY and/or a MANUFACTURING
LICENSEE creates modifications to the USER DOCUMENTATION, NTI and/or such
NORTHERN TELECOM COMPANY and/or such MANUFACTURING LICENSEE shall have the
right to include its own copyright notice therewith in addition to
VOICETEK's or VOICETEK's suppliers' copyright notice, if any, which
VOICETEK requires to be used under the terms of this Section 5.5.
5.6 For SOFTWARE PRODUCTS in object form which NTI distributes either (i)
directly to end-user customers, or (ii) indirectly through NORTHERN
TELECOM COMPANIES, MANUFACTURING LICENSEES and through AUTHORIZED
DISTRIBUTORS, NTI shall, as appropriate, require every such end-user
customer to execute or contractually impose upon such NORTHERN TELECOM
COMPANIES, MANUFACTURING LICENSEES and AUTHORIZED DISTRIBUTORS the
obligation to distribute SOFTWARE PRODUCTS to their end-user customers
under the software agreement (or an agreement in which such language is
contained) that NTI uses in distributing NTI's own proprietary software
applications, as set forth in Schedule H, which is attached hereto and is
by this reference made a part of the AGREEMENT. Any MANUFACTURING LICENSEE
receiving rights through NTI pursuant to Section 3.1 and Section 4.1 shall
be bound in a written sublicense by terms and conditions no less stringent
than those applicable to NTI herein.
5.7 The parties understand and acknowledge that NTI may elect to license the
SOFTWARE PRODUCTS to United States government customers. In order to
obviate the unintentional grant of rights to such customers pursuant to
existing federal regulations, the parties hereby agree that the following
legend shall appear on copies of the SOFTWARE PRODUCTS distributed to
United States government customers:
RESTRICTED RIGHTS LEGEND
Use, duplication, or disclosure by the U.S. Government is subject to
restrictions as set forth in subdivision (c)(1) of FAR 52.227-19 or
(c)(1)(ii) of DFAR 52.227-7013.
Northern Telecom Inc., 2305 Mission College Blvd., Dept. 0521,
Santa Clara, CA 95054-1591.
5.8 NTI, and any NORTHERN TELECOM COMPANIES, MANUFACTURING LICENSEES and
AUTHORIZED DISTRIBUTORS receiving rights to the SOFTWARE PRODUCTS directly
or indirectly from NTI, may transfer rights to use copies of the SOFTWARE
PRODUCTS in object form to their customers for any fee which NTI, and said
NORTHERN TELECOM COMPANIES, MANUFACTURING LICENSEES and AUTHORIZED
DISTRIBUTORS individually deem appropriate.
5.9 VOICETEK hereby grants to NORTHERN TELECOM COMPANIES the same scope of
rights as are granted by VOICETEK to NTI in the AGREEMENT, subject to such
NORTHERN TELECOM COMPANIES being bound in a written sublicense by NTI to
terms and conditions equivalent to those set forth in the AGREEMENT or by
manifesting their consent to abide by the terms and conditions of the
AGREEMENT in a signed writing directed to VOICETEK referencing the name,
date and parties to the AGREEMENT. Any MANUFACTURING LICENSEES receiving
rights through NTI pursuant to Section 5.2 and Section 5.3 or through a
NORTHERN TELECOM COMPANY pursuant to this Section 5.9 and/or Section 3.1
and/or Section 4.1 shall also be bound in a written sublicense by terms
and conditions no less stringent than those applicable to
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NTI herein. A grant of rights by NTI or a NORTHERN TELECOM COMPANY to a
MANUFACTURING LICENSEE shall not relieve NTI or such NORTHERN TELECOM
COMPANY of its obligations under the AGREEMENT.
5.10 Except as provided herein, VOICETEK reserves all rights, title and
interest in and to the SOFTWARE PRODUCTS, including the underlying ideas,
inventions, processes and data embodied in the SOFTWARE PRODUCTS, and NTI
acknowledges that no rights, title or interest in or to the SOFTWARE
PRODUCTS is granted under the AGREEMENT other than the specified limited
rights set forth in Articles III and IV, which, subject to Section 18.4,
shall continue only so long as the AGREEMENT remains in effect.
ARTICLE VI - MARKS
6.1 VOICETEK warrants that it owns and/or has the right to use, as of the
EFFECTIVE DATE, certain MARKS and VOICETEK's and/or VOICETEK's suppliers'
goodwill of the businesses symbolized thereby.
6.2 VOICETEK hereby grants to NTI the nonexclusive right during the TERM to
use for itself, and to grant directly or indirectly to NORTHERN TELECOM
COMPANIES and AUTHORIZED DISTRIBUTORS, the right to use the MARKS listed
in Schedule C of the AGREEMENT in association with the advertising and
distribution of PRODUCTS in the AUTHORIZED TERRITORY subject to VOICETEK
quality control review. Upon the request of VOICETEK, NTI, a NORTHERN
TELECOM COMPANY or an AUTHORIZED DISTRIBUTOR shall deliver to VOICETEK any
media containing the MARKS to be used by NTI or a NORTHERN TELECOM COMPANY
or an AUTHORIZED DISTRIBUTOR, as the case may be, in advertising or
promotional materials. NTI, NORTHERN TELECOM COMPANIES and AUTHORIZED
DISTRIBUTORS shall abide by any and all guidelines promulgated by VOICETEK
regarding use of the MARKS in such advertising and promotions. VOICETEK
may advise NTI or a NORTHERN TELECOM COMPANY or an AUTHORIZED DISTRIBUTOR
of any corrections or modifications to such use of the MARKS, and NTI or
the NORTHERN TELECOM COMPANY or the AUTHORIZED DISTRIBUTOR shall effect
such changes within a reasonable period of time. NTI, NORTHERN TELECOM
COMPANIES and AUTHORIZED DISTRIBUTORS shall at least once in the most
prominent first usage of the MARKS, cause "TM" to be placed adjacent to
the MARKS on all advertising, marketing and other promotional material
and, when so instructed by VOICETEK, shall cause "(R)" to replace "TM"
within a reasonable period of time.
6.3 NTI and NORTHERN TELECOM COMPANIES hereby acknowledge and agree that
nothing herein gives them any right, title or interest in the MARKS and
that, upon termination of the AGREEMENT by expiration or for any other
reason, NTI, NORTHERN TELECOM COMPANIES and AUTHORIZED DISTRIBUTORS shall
no longer use the MARKS in advertising or in any other manner. NTI,
NORTHERN TELECOM COMPANIES and AUTHORIZED DISTRIBUTORS shall not challenge
the validity of VOICETEK's ownership of or right to use any of the MARKS,
nor otherwise impair the interest of VOICETEK in the MARKS. NTI, NORTHERN
TELECOM COMPANIES and AUTHORIZED DISTRIBUTORS shall not use any MARK which
is confusingly similar to, or a colorable imitation of, any MARK.
6.4 In the event NTI and/or NORTHERN TELECOM COMPANIES discover apparent
infringing activity involving the MARKS by third parties, then NTI,
NORTHERN TELECOM COMPANIES and/or MANUFACTURING LICENSEES, as the case may
be, shall promptly notify VOICETEK of such apparent infringing activity.
ARTICLE VII - ORDERING AND DELIVERY
7.1 With one exception, NTI may, but shall not be obligated to, issue ORDERS
during the TERM. Regardless of other considerations, NTI shall issue an
ORDER for RESELLER SUPPORT SERVICES as specifically enumerated in
paragraph 1 of Schedule F no later than GENERAL AVAILABILITY. ORDERS may
also be issued directly by one or more NORTHERN TELECOM COMPANIES that
have been sublicensed by NTI pursuant to the terms of Section 5.9 of the
AGREEMENT. In the event NTI provides VOICETEK with a forecast or estimate
of the quantity
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that may be ordered, whether set forth in Schedule B or otherwise,
VOICETEK acknowledges that NTI shall not be obligated to submit an ORDER
for any portion of such forecast or estimate.
7.2 VOICETEK shall accept any ORDER issued by NTI, provided such ORDER is
consistent with the AGREEMENT. The AGREEMENT shall continue to apply to
any ORDER issued during the TERM until all obligations herein are
performed. The terms and conditions of the AGREEMENT shall supersede any
preprinted terms and conditions appearing on any purchase order form used
by NTI and/or any NORTHERN TELECOM COMPANY and/or MANUFACTURING LICENSEE.
7.3 An ORDER shall reference the AGREEMENT and shall set forth a description
of the following: (a) PRODUCTS and/or TRAINING MATERIALS and/or TRAINING
PROGRAMS ordered, (b) price, (c) DELIVERY LOCATION, (d) the location where
the invoice shall be rendered for payment, (e) method of shipment, (f)
quantity and (g) SHIPMENT DATE.
7.4 Within two (2) business days of the date of VOICETEK's receipt of an ORDER
or an ORDER RELEASE or a modification by NTI to ORDERS or ORDER RELEASES,
VOICETEK shall either provide verbal confirmation of the SHIPMENT DATE or
propose an alternate SHIPMENT DATE. Any verbal confirmations issued by
VOICETEK pursuant to this Section 7.4 shall be followed up by a written or
electronic acknowledgment within ten (10) calendar days of the date of
VOICETEK's receipt of such ORDER or ORDER RELEASE and/or modifications
thereto. If VOICETEK fails to respond, it shall be deemed to have agreed
to the SHIPMENT DATE and/or modification(s) set forth by NTI. If VOICETEK
proposes an alternate SHIPMENT DATE, then NTI shall within two (2)
business days of its receipt of notice of such alternate SHIPMENT DATE
notify VOICETEK that either such alternate SHIPMENT DATE is acceptable or
that such ORDER or ORDER RELEASE is canceled. Notwithstanding the above,
VOICETEK shall comply with any SHIPMENT DATE specified by NTI which is to
occur on or after the end of the MAXIMUM DELIVERY PERIOD.
7.5 An ORDER or an ORDER RELEASE may not be delivered in partial shipments
unless otherwise specified by NTI. In the event VOICETEK fails to ship (or
present in the case of TRAINING PROGRAMS) PRODUCTS and/or TRAINING
MATERIALS and/or TRAINING PROGRAMS by the SHIPMENT DATE, NTI may cancel,
without charge, the ORDER or ORDER RELEASE, as the case may be, or
applicable portion thereof, seven (7) calendar days following the SHIPMENT
DATE therefor.
7.6 Except as provided in Subsection 7.6.1 below, NTI may, without charge,
postpone the SHIPMENT DATE for an ORDER or an ORDER RELEASE at any time
during the RESCHEDULING PERIOD applicable to such ORDER or ORDER RELEASE.
If NTI cancels an ORDER or an ORDER RELEASE during the CANCELLATION PERIOD
for such ORDER or ORDER RELEASE there shall be no charge to NTI, except as
provided in Subsection 7.6.1 below. No cancellations shall occur after a
CANCELLATION PERIOD unless mutually agreed upon by the parties.
7.6.1 The following PRODUCTS are excepted out from the rescheduling and
cancellation rights afforded to NTI in Section 7.6:
Order Code Product Description
---------- -------------------
HL-5250-HW-S 5250 Synchronous Interface (SSI HW & SW)
HL-5250-HW-TR 5250 Token Ring Interface (SSI HW & SW)
HL-3270-HW-S 3270 Synchronous Interface (SSI HW & SW)
HL-3270-HW-TR 3270 Token Ring Interface (SSI HW & SW)
HCOM-SC08-VT100 VT100 for 8 ports on the PC
HCOM-SC016-VT100 VT100 for 16 ports on the PC
HCOM-SC032-VT100 VT100 for 32 ports on the PC
17-852066-02 2 Channel Fax Option
17-852066-01 4 Channel Fax Option
17-852066-00 8 Channel Fax Option
17-852062-00 DMX Option
PMT-000-NT Notch Filter
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13
Order Code Product Description
---------- -------------------
TTS-04-LH TTS 4-port Assembly
17-852072-00 Audio Interface Unit
PT-30-E1 E1 Interface Card (Aculab)
Also, single orders for 15 or more Rackmount units or 30 or more
Tower units will not be candidates for unlimited rescheduling or
cancellation without charge.
7.7 During the RESCHEDULING PERIOD NTI may modify ORDERS and/or ORDER RELEASES
and VOICETEK shall confirm such ORDERS and/or ORDER RELEASES at the prices
set forth in the AGREEMENT.
7.8 Upon providing VOICETEK at least thirty (30) days notice prior to the end
of the TERM, NTI shall have the right to extend the TERM for the OPTION
PERIOD, in which event NTI and VOICETEK shall have the rights and
obligations in the AGREEMENT during the OPTION PERIOD, including, without
limitation, NTI's right to purchase at the prices and applicable discount
levels set forth or incorporated by reference, as the case may be, in
Schedules B, D, E and/or G, the last of which is attached hereto and is by
this reference made a part of the AGREEMENT.
7.9 Except in the case of a change for health or safety reasons, VOICETEK
shall notify NTI at least one hundred twenty (120) days prior to
implementing any change which affects the form, fit or function of any
STANDARD PRODUCTS. Changes which do not affect form, fit or function, and
changes made to HARDWARE PRODUCTS for health or safety reasons may be
implemented at any time. In the event a change to HARDWARE PRODUCTS is
made for health or safety reasons, VOICETEK shall retrofit NTI's existing
inventory of such HARDWARE PRODUCTS purchased from VOICETEK, free of
charge, with such retrofit being limited to the replacement of the
specific item that is deemed to be the cause of the retrofit. Unless a
change is designed by VOICETEK to eliminate or reduce a safety or health
hazard, NTI, at its option, may issue ORDERS or ORDER RELEASES under the
terms and conditions of the AGREEMENT for such PRODUCTS as they existed
prior to the change in form, fit or function, for a period of at least one
hundred eighty (180) days following the date of NTI's receipt of
VOICETEK's change notification.
ARTICLE VIII - PRICE, PAYMENT AND RISK OF LOSS
8.1 Prices for PRODUCTS, RESELLER SUPPORT SERVICES, TRAINING MATERIALS and
TRAINING PROGRAMS, respectively, purchased and/or licensed hereunder shall
be list price according to the then current PRICE LIST or the prices set
forth in Schedule E, as the case may be, less the current discount level
where applicable as established in Schedule 1, which is attached hereto
and is by this reference made a part of the AGREEMENT.
8.2 Special pricing for PRODUCTS, RESELLER SUPPORT SERVICES, TRAINING
MATERIALS and TRAINING PROGRAMS, respectively, purchased and/or licensed
hereunder which may or may not be included in the then current PRICE LIST
shall be as indicated in Schedule E.
8.3 Prices for SYSTEMS, RESELLER SUPPORT SERVICES, TRAINING MATERIALS and
TRAINING PROGRAMS, respectively, for internal use by NTI, NORTHERN TELECOM
COMPANIES or MANUFACTURING LICENSEES shall be as set forth in Schedule D
and shall be applicable only up to a total quantity of twenty-five (25)
SYSTEMS. The allocation of SYSTEMS for internal use by NTI, NORTHERN
TELECOM COMPANIES and/or MANUFACTURING LICENSEES shall be as directed by
the NTI contact designated in Section 26.2.
8.4 Subject to any applicable discount as enumerated in Schedule 1, prices for
(i) products and/or services, and (ii) right-to-use fees not enumerated in
Schedule B, Schedule D and/or Schedule E shall be as mutually agreed upon
by the parties prior to the time NTI issues ORDERS and/or ORDER RELEASES
therefor.
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8.5 Prices and license fees set forth in Schedules B, D, and/or E or otherwise
agreed upon pursuant to Section 8.4 are (a) in U.S. dollars and shall
apply during the TERM; (b) exclusive of any applicable excise and sales
taxes now existing or hereafter imposed by any applicable taxing
authority; (c) exclusive of the transportation charges and duty applicable
between the SHIPPING LOCATION and the DELIVERY LOCATION; and (d) inclusive
of all other taxes, transportation charges, duties and charges for
packaging and handling. Such taxes, transportation charges and duty for
which NTI is liable shall be separately stated on the invoice. VOICETEK
agrees not to assess any applicable excise or sales tax where NTI
furnishes VOICETEK a tax exemption certificate, a certificate of
authority, a direct pay permit and/or any equivalent acceptable to the
applicable taxing authority.
8.6 VOICETEK may issue invoices to NTI, NORTHERN TELECOM COMPANIES and
MANUFACTURING LICENSEES, respectively, issuing ORDERS and/or ORDER
RELEASES for PRODUCTS and/or TRAINING MATERIALS upon consignment to the
carrier designated by NTI for such PRODUCTS and/or TRAINING MATERIALS.
[*]
8.7 VOICETEK may issue invoices to NTI, NORTHERN TELECOM COMPANIES or
MANUFACTURING LICENSEES, respectively, issuing ORDERS and/or ORDER
RELEASES for RESELLER SUPPORT SERVICES and/or TRAINING PROGRAMS at the
beginning of an ANNUAL SUPPORT SERVICES PERIOD and, in the case of
TRAINING PROGRAMS, upon presentation of such TRAINING PROGRAMS. [*]
8.8 For copies of SOFTWARE PRODUCTS manufactured by NTI, NORTHERN TELECOM
COMPANIES and MANUFACTURING LICENSEES, respectively, VOICETEK shall, upon
receipt of quarterly notices from a copying location, as set forth in
Section 9.1, invoice such copying location for the total amount of per
copy fees due, if any, for the period covered by the notice. Any
MANUFACTURING LICENSEE copying location shall be required to report its
activity to the NORTHERN TELECOM COMPANY by which it was sublicensed to
make copies of SOFTWARE PRODUCTS in sufficient time to enable such
NORTHERN TELECOM COMPANY to include the details of such activity in its
quarterly notice to VOICETEK. [*]
ARTICLE IX - REPORTS; AUDITS
9.1 Within fifteen (15) calendar days after the end of each calendar quarter,
each copying location will send to VOICETEK a written report summarizing
its internal use and its external distribution of copies of the SOFTWARE
PRODUCTS in object form manufactured under the AGREEMENT. Each quarterly
report will specify:
(a) The total number of copies of the SOFTWARE PRODUCTS by individual
product in object form made and distributed during the reporting
period by a copying location for any of the following purposes:
- for internal use by NTI, or by NORTHERN TELECOM COMPANIES or
MANUFACTURING LICENSEES granted manufacturing rights directly
or indirectly by such copying location;
- for distribution by a copying location directly to end users;
- for distribution by a copying location for further
distribution by NORTHERN TELECOM COMPANIES, by MANUFACTURING
LICENSEES or by AUTHORIZED DISTRIBUTORS to end users.
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS
15
(b) The total amount of license fees due to VOICETEK for the reporting
period from the copying location submitting the report, which shall
be determined by multiplying the total number of copies reported
under Section 9.1 a) by the applicable license fee(s) referenced in
Article VIII.
9.2 Upon VOICETEK's written request, NTI will, not more frequently than once
during each twelve (12) month period of the AGREEMENT, cause an authorized
representative of NTI to certify to VOICETEK the accuracy of the quarterly
reporting of the number of copies of the SOFTWARE PRODUCTS in object form
made by NTI, NORTHERN TELECOM COMPANIES and MANUFACTURING LICENSEES for
distribution to customers or to internal use sites during such twelve
(12) month period. Further, upon VOICETEK's written request, NTI will
permit, at the end of each twelve (12) month period of the AGREEMENT, a
mutually acceptable independent certified public accountant paid by
VOICETEK to examine the necessary books and records of NTI to audit such
quarterly reporting, provided such accountant shall undertake in writing
with NTI to protect the confidentiality of the business data and records
of NTI and to disclose to VOICETEK only the accuracy or inaccuracy of the
reporting hereunder. In the event an audit reveals a discrepancy between
what is properly due to VOICETEK and what has been reported and paid to
VOICETEK, and such discrepancy results in a shortfall in the amounts paid
to VOICETEK that is both (i) a minimum of twenty (20) units, and (ii) at
least ten percent (10%) of the amount actually due to VOICETEK for the
twelve (12) months covered by the audit, then in addition to full payment
by NTI of such shortfall NTI shall reimburse VOICETEK for all reasonable
and customary costs incurred by VOICETEK related to such audit.
9.3 For all MANUFACTURING LICENSEES that are authorized by NTI or a NORTHERN
TELECOM COMPANY to make copies of the SOFTWARE PRODUCTS in object form,
NTI shall either:
(i) retain for itself, or require that the NORTHERN TELECOM COMPANY
granting rights to a MANUFACTURING LICENSEE retain, the right to
audit the books and records of any such MANUFACTURING LICENSEE; or
(ii) require that the MANUFACTURING LICENSEE agree, in writing, to
permit, upon the written request of VOICETEK to NTI, a mutually
acceptable independent certified public accountant paid by NTI
or such MANUFACTURING LICENSEE to examine the necessary books
and records of any such MANUFACTURING LICENSEE, provided that
such accountant shall undertake in writing to such
MANUFACTURING LICENSEE to protect the confidentiality of the
business data and records of such MANUFACTURING LICENSEE and to
disclose to VOICETEK only the accuracy or inaccuracy of the
reporting required hereunder. Where such audits are requested
by VOICETEK, they shall be arranged through NTI.
In no event shall the identities of any MANUFACTURING LICENSEE and/or
end-users be disclosed to VOICETEK.
ARTICLE X - SOFTWARE PERFORMANCE WARRANTY
10.1 VOICETEK warrants that, during the WARRANTY PERIOD, SOFTWARE PRODUCTS,
as delivered to NTI
(i) will be compatible with and will operate in accordance with
VOICETEK's then most current USER DOCUMENTATION delivered with
SOFTWARE PRODUCTS for the then most recent release of SOFTWARE
PRODUCTS, and
(ii) to the best of VOICETEK's knowledge, shall be substantially free
of CRITICAL PROBLEMS and SERIOUS PROBLEMS, and
(iii) that the accompanying USER DOCUMENTATION shall be substantively
complete and accurate.
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10.2 During the WARRANTY PERIOD for SOFTWARE PRODUCTS, VOICETEK shall provide
to NTI promptly, upon release by VOICETEK, a copy of all corresponding
POINT RELEASES and UPDATES.
10.3 During the WARRANTY PERIOD, VOICETEK shall provide unlimited telephone
support between the hours of 8:00 a.m. and 6:00 p.m. Monday through Friday
(EDT or EST, as applicable) to the SUPPORT ORGANIZATION for SOFTWARE
PRODUCTS. VOICETEK's telephone "hotline" shall be staffed by technical
personnel with a detailed, working knowledge of the PRODUCTS. VOICETEK
shall make all reasonable efforts to have each call made on the "hotline"
returned by a qualified technical expert possessing the ability to discuss
the details of problems as follows:
(a) CRITICAL PROBLEMS = less than 30 minutes;
(b) SERIOUS PROBLEMS = less than 2 hours;
(c) MINOR PROBLEMS = less than 2 days;
VOICETEK shall issue a call number to each problem reported by NTI. A bug
report must contain sufficient information, on machine readable media if
possible, for VOICETEK to reproduce the bug on VOICETEK premises. As a
follow-up to any bug reports the SUPPORT ORGANIZATION may issue verbally
to VOICETEK through the telephone "hotline," the SUPPORT ORGANIZATION
shall provide such bug report details in writing to VOICETEK in a timely
manner. VOICETEK's telephone "hotline' support shall be available for
unlimited use by the SUPPORT ORGANIZATION for the PRODUCTS during the
WARRANTY PERIOD.
10.4 Upon receiving notice from NTI of a bug or error in any SOFTWARE PRODUCTS
during the WARRANTY PERIOD therefor, VOICETEK shall verbally acknowledge
receipt of such notice. A bug report must contain sufficient information,
on machine-readable media if possible, for VOICETEK to reproduce the bug
on VOICETEK premises. VOICETEK's acknowledgment shall contain a unique
number identifying the particular bug or error for tracking purposes.
VOICETEK shall provide NTI with a status on any bug or error logged for
NTI, provided that NTI identifies the particular bug or error by the
tracking number assigned to it by VOICETEK. NTI may make inquiries
regarding the status of any bug or error logged for NTI either orally or
in writing. VOICETEK shall provide NTI with a response (i) verbally via
the SUPPORT ORGANIZATION, or (ii) in writing, by number, describing the
closing resolution of the bug or error, including the projected date that
the necessary fix will be released and the nature of any known workaround.
Each bug or error logged for NTI shall remain open until closure
notification is received by NTI.
10.5 Patches or workarounds, made to fix reliability or specific performance
deficiencies not reported by NTI in SOFTWARE PRODUCTS, may be made by
VOICETEK when required, and, upon request, shall be either delivered to
NTI within fourteen (14) days or made available to NTI through electronic
means or electronic bulletin board (BBS) (e.g. Compuserve, Internet), if
requested. Each patch and/or workaround requires a written description of
the problem that the patch and/or workaround addresses and the requisite
installation procedure.
10.6 VOICETEK shall make all reasonable efforts to provide a workaround or
resolution for SOFTWARE PRODUCTS and any associated changes to the
accompanying USER DOCUMENTATION, or MODIFIED USER DOCUMENTATION as
applicable according to the following schedule:
(a) CRITICAL PROBLEMS - within twenty-four (24) hours of receipt of
notice of existence from NTI;
(b) SERIOUS PROBLEMS - within five (5) days of receipt of notice of
existence from NTI;
(c) MINOR PROBLEMS - fixed in the next POINT RELEASE or UPDATE issued by
VOICETEK.
The parties acknowledge and understand the potentially idiosyncratic
nature of any bug or error in SOFTWARE PRODUCTS. Recognizing this, the
turnaround times set forth previously in this
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Section 10.6 constitute targeted goals of warranty services to be provided
by VOICETEK to NTI. Repetitive failure to meet these targeted goals, as
implied by the language of Section 10.7, is required before NTI is
entitled to pursue its remedies as set forth in Section 10.7 and/or
Article XVIII of the AGREEMENT. Sporadic failures by VOICETEK to meet or
beat these targeted turnaround times do not constitute a default on the
AGREEMENT.
10.7 In the event that, while NTI is receiving services under Article X for any
SOFTWARE PRODUCTS from VOICETEK during a WARRANTY PERIOD, VOICETEK
repeatedly fails to perform its obligations (after written notice to
VOICETEK to such effect and specification of the nature of such failures)
or VOICETEK unilaterally decides to discontinue warranty support for one
or more SOFTWARE PRODUCTS so as to seriously jeopardize the ability of NTI
to support the use of SOFTWARE PRODUCTS by NORTHERN TELECOM COMPANIES,
MANUFACTURING LICENSEES, AUTHORIZED DISTRIBUTORS and/or end-user
customers, then NTI shall have the right, after giving notice of its
intentions to VOICETEK, to send one (1) or more qualified engineering
personnel to VOICETEK's facilities, where such personnel shall have access
to the source code form of the SOFTWARE PRODUCTS to which the failure to
receive required warranty support pertains, the remaining SOURCE CODE
MATERIALS related to such SOFTWARE PRODUCTS and the assistance of
VOICETEK's engineering personnel in connection with such failure.
VOICETEK's and NTI's engineering personnel shall have sixty (60) days from
the date of arrival of the NTI engineering personnel to remedy the
consequences of failure to receive the required warranty services from
VOICETEK. Access to the source code form of any SOFTWARE PRODUCTS and the
remaining SOURCE CODE MATERIALS related to such SOFTWARE PRODUCTS granted
to NTI's engineering personnel pursuant to this Section 10.7 shall not
include the right to retain any copies thereof upon leaving VOICETEK's
facilities.
10.8 All notifications required pursuant to this Article X, except those sent
pursuant to Section 10.7 shall be sent to NTI at the address set forth for
other communications in Section 26.1.
10.9 VOICETEK has established a written formal escalation procedure, as set
forth in Schedule J, which is attached hereto and is by this reference
made a part of the AGREEMENT, that identifies contact persons and
telephone numbers within VOICETEK's management that NTI may notify in the
event VOICETEK personnel fail to:
(a) provide a response within two (2) hours to a CRITICAL PROBLEM and/or
a SERIOUS PROBLEM;
(b) provide a workaround or resolution within twenty-four (24) hours to a
CRITICAL PROBLEM;
(c) deliver a workaround or resolution that fixes a SERIOUS PROBLEM
within five (5) days.
10.10 The exclusive remedy of NTI or a NORTHERN TELECOM COMPANY and the sole
measure of recoverable damage by NTI or a NORTHERN TELECOM COMPANY for
breach of the performance warranty on SOFTWARE PRODUCTS is, in VOICETEK's
sole discretion, to provide NTI with (i) instructions for curing such
nonconformity, or (ii) updated versions of SOFTWARE PRODUCTS which are
free of such nonconformity, or (iii) a functionally equivalent software
package which is free of such nonconformity and which, following delivery,
will be regarded as a particular STANDARD SOFTWARE PRODUCT and/or MODIFIED
SOFTWARE PRODUCT under the AGREEMENT. In the event VOICETEK is unable to
accomplish (i), (ii) and/or (iii) above, it shall accept a return of the
SOFTWARE PRODUCTS in question and fully refund to NTI the license and/or
sublicense fees paid therefor pursuant to Article VIII.
ARTICLE XI - HARDWARE PERFORMANCE WARRANTY
11.1 VOICETEK warrants to NTI (or a NORTHERN TELECOM COMPANY) that each unit of
HARDWARE PRODUCTS as delivered by VOICETEK hereunder will, under normal
use and service, be free from defects in materials and workmanship during
the WARRANTY PERIOD and shall conform to the SPECIFICATIONS in effect on
the SHIPMENT DATE. VOICETEK's sole obligation and NTI's sole remedy under
this HARDWARE performance warranty are limited to the
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repair or replacement, at VOICETEK's option, of the defective HARDWARE
PRODUCTS. VOICETEK's obligation and NTI's remedy under this Section 11.1
are conditioned upon:
(a) VOICETEK's receipt of written notice of a defect in HARDWARE PRODUCTS
from NTI within the WARRANTY PERIOD; and
(b) the HARDWARE PRODUCTS not having been altered or repaired BY others
without VOICETEK's written consent except in cases where NTI
purchases hardware not manufactured BY VOICETEK direct from
VOICETEK's suppliers) and such direct purchase and installation is
undertaken by NTI or NTI's qualified technicians; and
(c) the alleged defect not being the result of mishandling, improper
servicing or improper operation (including use in conjunction with
hardware electrically or mechanically incompatible).
This warranty shall survive inspection, acceptance and payment.
11.2 VOICETEK warrants to NTI and/or NORTHERN TELECOM COMPANIES that all
HARDWARE PRODUCTS shipped pursuant to the AGREEMENT will be manufactured
and/or assembled from new and unused components.
11.3 No HARDWARE PRODUCTS shall be returned to VOICETEK without VOICETEK's
authorization pursuant to an RMA issued by VOICETEK's designated repair
coordinator. The costs and risk of loss associated with shipping defective
HARDWARE PRODUCTS to VOICETEK's factory shall be borne by NTI, a NORTHERN
TELECOM COMPANY or MANUFACTURING LICENSEE. Costs and risk of loss
associated with returning repaired or replacement HARDWARE PRODUCTS to NTI
or a NORTHERN TELECOM COMPANY or MANUFACTURING LICENSEE shall be borne by
VOICETEK. VOICETEK shall return the repaired HARDWARE PRODUCTS or a
replacement within the WARRANTY REPAIR PERIOD. In all cases, an RMA shall
be issued within one (1) business day of a request therefor by NTI or a
NORTHERN TELECOM COMPANY or MANUFACTURING LICENSEE.
11.4 In the event NTI or a NORTHERN TELECOM COMPANY or MANUFACTURING LICENSEE
contacts VOICETEK and requests an RMA, and the defective HARDWARE PRODUCTS
are circuit boards under warranty, VOICETEK shall upon request by NTI,
NORTHERN TELECOM COMPANIES or MANUFACTURING LICENSEES ship replacement
boards within twenty-four (24) hours to the requesting office of NTI or
NORTHERN TELECOM COMPANIES or MANUFACTURING LICENSEES or AUTHORIZED
DISTRIBUTORS, as the case may be. In the event the original boards are not
received by VOICETEK within ten (10) calendar days, VOICETEK shall have
the right to invoice the NTI, NORTHERN TELECOM COMPANY or MANUFACTURING
LICENSEE location requesting the replacement boards.
ARTICLE XII - LIMITATION OF WARRANTY
12.1 EXCEPT IN THE CASE OF WARRANTIES OF OWNERSHIP SET FORTH IN ARTICLE II, THE
WARRANTIES SET FORTH IN ARTICLE X AND ARTICLE XI OF THE AGREEMENT ARE MADE
TO AND FOR THE BENEFIT OF NTI ONLY, EXCEPT THAT VOICETEK ACKNOWLEDGES THAT
NTI SHALL RELY UPON SUCH WARRANTIES IN PROVIDING WARRANTIES TO NORTHERN
TELECOM COMPANIES, MANUFACTURING LICENSEES, AUTHORIZED DISTRIBUTORS AND
END-USER CUSTOMERS. SUCH WARRANTIES CONSTITUTE THE ONLY LIABILITIES OF
VOICETEK FOR BREACH OF WARRANTY AND ARE IN LIEU OF ALL OTHER WARRANTIES,
WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED IN REGARD TO STANDARD
PRODUCTS AND/OR MODIFIED PRODUCTS, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHICH ARE HEREBY
DISCLAIMED BY VOICETEK AND EXCLUDED FROM THE AGREEMENT.
ARTICLE XIII - RESELLER SUPPORT SERVICES
13.1 Upon payment of the requisite annual fee by NTI, VOICETEK shall provide
RESELLER SUPPORT SERVICES to NTI for an ANNUAL SUPPORT SERVICES PERIOD in
accordance with
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the terms and conditions of the support program set forth in Schedule F.
RESELLER SUPPORT SERVICES shall not include support for application
development which is available at standard rates as described in the PRICE
LIST.
13.2 In consideration of the provision of RESELLER SUPPORT SERVICES, NTI shall
pay VOICETEK in accordance with the RESELLER SUPPORT SERVICES pricing
structure set forth in Schedule F.
13.3 During an ANNUAL SUPPORT SERVICES PERIOD for which NTI has paid the
requisite annual fee, VOICETEK shall provide RESELLER SUPPORT SERVICES
with respect to the current VERSION RELEASE and for the last two (2)
VERSION RELEASES immediately prior to the current one.
13.4 From time to time VOICETEK may develop corrections, enhancements and major
improvements to SOFTWARE PRODUCTS. After the WARRANTY PERIOD has expired
and in the event NTI does not request and pay for RESELLER SUPPORT
SERVICES, then VOICETEK shall be under no obligation to issue any further
POINT RELEASES and UPDATES to NTI. However, promptly upon issuance of any
such POINT RELEASES and UPDATES by VOICETEK to any licensee holding a
license similar in scope to the AGREEMENT, VOICETEK shall offer such POINT
RELEASES and UPDATES to NTI.
13.5 Fees for POINT RELEASES and UPDATES shall be included in the annual fee
paid by NTI for an ANNUAL SUPPORT SERVICES PERIOD, but in the event NTI
has elected not to purchase RESELLER SUPPORT SERVICES, then the applicable
fee for POINT RELEASES and UPDATES shall be as specified in Schedule B or
as otherwise agreed upon in writing by VOICETEK and NTI. Each POINT
RELEASE and UPDATE shall be regarded as the applicable SOFTWARE PRODUCT as
denoted in the PRICE LIST or elsewhere, and shall upon release to NTI be
subject to all of the terms and conditions of the AGREEMENT.
ARTICLE XIV - ACCEPTANCE
14.1 The acceptance of PRODUCTS is subject to inspection at the DELIVERY
LOCATION and such acceptance shall be deemed to occur thirty (30) days
after receipt of such PRODUCTS at the DELIVERY LOCATION unless NTI shall
have provided VOICETEK with notice of nonacceptance within such period.
14.2 HARDWARE PRODUCTS will be inspected by NTI for major defects, with major
defect being defined as (i) any functional failure, or (ii) a workmanship
defect that is highly likely to cause infant mortality or significantly
reduced product life, or (iii) a cosmetic or visual defect that is highly
likely to cause the customer to request a replacement unit.
14.3 SOFTWARE PRODUCTS will be inspected by NTI for major defects, with major
defects being defined as (i) SOFTWARE PRODUCTS missing labels, or (ii)
SOFTWARE PRODUCTS with labels lacking accurate information as to the
identity and POINT RELEASE, UPDATE or VERSION RELEASE contained therein,
or (iii) defective media.
14.4 It any unit of PRODUCT does not conform to the requirements of an ORDER or
an ORDER RELEASE or to the warranties set forth in Articles X and XI, as
determined by NTI's inspection pursuant to the terms stated in Section
14.2 and Section 14.3, the entire quantity delivered with such PRODUCT may
be returned to VOICETEK at VOICETEK's expense, subject to failure
verification by VOICETEK, unless the only defect found by NTI's inspection
pursuant to the terms of Section 14.3 is a quantity of media with labels
missing in which case NTI shall work with VOICETEK to obtain such label(s)
without returning the entire quantity of PRODUCTS to VOICETEK. Payment
shall neither be deemed to constitute acceptance nor be a waiver to NTI's
right to cancel any ORDER or ORDER RELEASE.
ARTICLE XV - INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY
15.1 VOICETEK shall defend, indemnify and hold NTI, NORTHERN TELECOM COMPANIES,
MANUFACTURING LICENSEES and AUTHORIZED DISTRIBUTORS receiving rights
directly or
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indirectly (from NORTHERN TELECOM COMPANIES, MANUFACTURING LICENSEES
and/or AUTHORIZED DISTRIBUTORS) through NTI harmless from any and all
claims, costs, expenses, damages or other liability, including reasonable
and customary attorneys' fees, which is the result of patent, trademark or
copyright infringement claims or claims based on misappropriation OF trade
secret rights arising out of or relating to the use, copying or
distribution of any of the SOFTWARE PRODUCTS in the AUTHORIZED TERRITORY
or damages resulting from use of the MARKS in connection with such
distribution in the AUTHORIZED TERRITORY. NTI, NORTHERN TELECOM COMPANIES,
MANUFACTURING LICENSEES and/or AUTHORIZED DISTRIBUTORS shall notify
VOICETEK promptly, in writing, In the event of any such claim, and grant
to VOICETEK the right, at VOICETEK's expense, to control the defense
thereof, including the sole right to settle any such claim or suit on such
terms as VOICETEK shall deem desirable. If the use, copying or
distribution of any SOFTWARE PRODUCTS or use of the MARKS under which the
SOFTWARE PRODUCTS are distributed is held to constitute an infringement
and enjoined in one or more countries within the AUTHORIZED TERRITORY,
VOICETEK shall, at its own expense and option, (i) procure for NTI,
NORTHERN TELECOM COMPANIES, MANUFACTURING LICENSEES and AUTHORIZED
DISTRIBUTORS the right to continue using and distributing the allegedly
infringing SOFTWARE PRODUCTS, or (ii) modify the allegedly infringing
SOFTWARE PRODUCTS so that they become noninfringing, while maintaining to
the extent possible the same form and function, or (iii) replace the
allegedly infringing SOFTWARE PRODUCTS with noninfringing substitutes,
while maintaining to the extent possible the same form and function, or
(iv) arrange for the return of all allegedly infringing SOFTWARE PRODUCTS
shipped to NTI, NORTHERN TELECOM COMPANIES, MANUFACTURING LICENSEES and/or
AUTHORIZED DISTRIBUTORS the total amount of license fees paid therefor
plus all transportation and handling costs incurred for cooperating in the
return effort.
15.1.1 VOICETEK shall not have any liability to NTI under Section 15.1
for infringement and/or misappropriation, or claims thereof,
that are based upon (i) the use of SOFTWARE PRODUCTS in
combination with hardware and/or software furnished to NTI or a
NORTHERN TELECOM COMPANY or a MANUFACTURING LICENSEE or an
AUTHORIZED DISTRIBUTOR by a third party (unless approved by
VOICETEK) if such infringement and/or misappropriation, or
claim thereof, would have been avoided by the use of SOFTWARE
PRODUCTS in combination with different hardware and/or software
or, to the extent such use is possible, use of the SOFTWARE
PRODUCTS without any combination, or (ii) the modification
and/or enhancement of the SOFTWARE PRODUCTS by NTI, a NORTHERN
TELECOM COMPANY, a MANUFACTURING LICENSEE, an AUTHORIZED
DISTRIBUTOR or an end-user customer of any of the foregoing if
such infringement and/or misappropriation, or claim thereof,
would have been avoided by using the SOFTWARE PRODUCTS in their
unmodified or unenhanced form.
15.2 VOICETEK shall defend, indemnify and hold NTI, NORTHERN TELECOM COMPANIES,
MANUFACTURING LICENSEES, AUTHORIZED DISTRIBUTORS and, if applicable, their
end-user customers harmless from any and all claims, costs, expenses,
damages or other liability, including reasonable and customary attorneys'
fees, which is the result of patent or trademark infringement claims
arising out of or relating to the use, sale and/or distribution of
HARDWARE PRODUCTS in the AUTHORIZED TERRITORY or damages resulting from
use of the MARKS in connection with such distribution in the AUTHORIZED
TERRITORY. NTI, a NORTHERN TELECOM COMPANY, a MANUFACTURING LICENSEE or an
AUTHORIZED DISTRIBUTOR, as the case may be, shall notify VOICETEK
promptly, in writing, in the event of any such claim, and grant to
VOICETEK the right, at VOICETEK's expense, to control the defense thereof,
including the sole right to settle any such claim or suit on such terms as
VOICETEK shall deem desirable. If the use, sale and/or distribution of
HARDWARE PRODUCTS or use of the MARKS under which the HARDWARE PRODUCTS is
distributed are held to constitute an infringement and enjoined in one or
more countries within the AUTHORIZED TERRITORY, VOICETEK shall, at its own
expense and option, (i) procure for NTI, NORTHERN TELECOM COMPANIES,
MANUFACTURING LICENSEES and AUTHORIZED DISTRIBUTORS the right to continue
using, selling and distributing the allegedly infringing HARDWARE
PRODUCTS, or (ii) modify the allegedly infringing HARDWARE PRODUCTS so
that it becomes noninfringing, while maintaining to the extent possible
the same form and function, or (iii) provide a noninfringing substitute
for HARDWARE PRODUCTS which is acceptable to NTI, or (iv) arrange for the
return of all allegedly infringing HARDWARE PRODUCTS
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shipped to NTI, NORTHERN TELECOM COMPANIES, MANUFACTURING LICENSEES and
AUTHORIZED DISTRIBUTORS pursuant to the AGREEMENT in the countries within
the AUTHORIZED TERRITORY in which the injunction is in effect and
reimburse NTI, NORTHERN TELECOM COMPANIES, MANUFACTURING LICENSEES and/or
AUTHORIZED DISTRIBUTORS the total purchase price therefor plus all
transportation and handling costs incurred for cooperating in the return
effort.
15.2.1 VOICETEK shall not have any liability to NTI, NORTHERN TELECOM
COMPANIES, MANUFACTURING LICENSEES and/or AUTHORIZED DISTRIBUTORS
under Section 15.2 for infringement, or claims thereof, that are
based upon the use of HARDWARE PRODUCTS in combination with
hardware and/or software furnished to NTI or a NORTHERN TELECOM
COMPANY or a MANUFACTURING LICENSEE or an AUTHORIZED DISTRIBUTOR
by a third party if such infringement, or claim thereof, would
have been avoided by the use of HARDWARE PRODUCTS in combination
with different hardware and/or software or, to the extent such use
is possible, use of the HARDWARE PRODUCTS without any combination,
or (ii) the modification of the HARDWARE PRODUCTS by NTI, a
NORTHERN TELECOM COMPANY, a MANUFACTURING LICENSEE, an AUTHORIZED
DISTRIBUTOR or an end-user customer of any of the foregoing if
such infringement and/or misappropriation, or claim thereof, would
have been avoided by using the HARDWARE PRODUCTS in its unmodified
or unenhanced form.
15.3 SECTION 15.1 THROUGH SUBSECTION 15.2.1 INCLUSIVE STATE THE ENTIRE AND SOLE
LIABILITY OF VOICETEK TO NTI AND OF NTI TO VOICETEK WITH RESPECT TO
INFRINGEMENT AND/OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS
PURSUANT TO THIS AGREEMENT.
15.4 The indemnity obligations set forth in Section 15.1 through Subsection
15.2.1, inclusive, of the AGREEMENT shall survive the termination or
expiration of the AGREEMENT.
ARTICLE XVI - LIMITATION OF LIABILITY AND DAMAGES
16.1 EXCEPT AS PROVIDED IN ARTICLE II AND ARTICLE XV, RESPECTIVELY, IN NO EVENT
WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGE OR LOSS OF ANY NATURE (e.g., DAMAGE TO
PROPERTY, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOST SAVINGS, LOSS OF
USE, LOST OR DAMAGED FILES OR DATA, INJURY TO PERSON, OR ANY CLAIMS OF
THOSE NOT A PARTY TO THE AGREEMENT) WHICH MAY ARISE IN CONNECTION WITH THE
USE, ADAPTATION, MERGER, INCORPORATION, DISTRIBUTION, INSTALLATION,
REMOVAL OR SUPPORT OF STANDARD PRODUCTS AND/OR MODIFIED PRODUCTS
(SEPARATELY OR IN COMBINATION WITH OTHER HARDWARE OR SOFTWARE NOT PROVIDED
BY VOICETEK) BY NTI, NORTHERN TELECOM COMPANIES, MANUFACTURING LICENSEES
AND AUTHORIZED DISTRIBUTORS PURSUANT TO THE AGREEMENT, REGARDLESS OF
WHETHER SUCH CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN WARRANTY,
CONTRACT, NEGLIGENCE, STRICT TORT, PRODUCTS LIABILITY OR OTHERWISE, EVEN
IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
EXCEPT AS PROVIDED IN ARTICLE II AND ARTICLE XV, RESPECTIVELY, THE MAXIMUM
LIABILITY FOR ANY BREACH OF THE AGREEMENT BY EITHER PARTY SHALL IN NO
EVENT EXCEED THE SUM OF ONE MILLION DOLLARS ($1,000,000.00) OR THE
AGGREGATE AMOUNT OF PRICES AND/OR LICENSE FEES PAID UNDER THE AGREEMENT
OVER THE IMMEDIATELY PRECEDING FOUR CONSECUTIVE QUARTERS, WHICHEVER IS
GREATER.
ARTICLE XVII - REGULATORY COMPLIANCE
17.1 To the extent applicable, and unless otherwise provided in Schedule B
and/or Schedule D and/or Schedule E, all HARDWARE PRODUCTS delivered to
NTI or a NORTHERN TELECOM COMPANY by VOICETEK under the AGREEMENT shall :
(a) be approved and listed by Underwriter's Laboratories ("U.L.") and
bear appropriate U.L. approval labeling;
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(b) be approved and listed by the Canadian Standards Association
("C.S.A.") and bear appropriate C.S.A. approval labeling;
(c) be verified, accepted, approved and in compliance with Class A
limits, as applicable, under Part 15 of the Regulations of the U.S.
Federal Communications Commission and bear the appropriate labels and
warning notices as required;
(d) be verified, accepted, approved and in compliance with Part 68 of the
Regulations of the U.S. Federal Communications Commission and bear
the appropriate labels and warning notices as required;
(e) be verified, accepted, approved and in compliance with each of the
following European Union (EU) regulatory requirements:
(i) EN 60 950 Safety
(ii) EN 55 022 Class B EMC
(iii) EN 50 082-1 EMC
(f) be verified, accepted, approved and in compliance with other EU
regulatory requirements provided that NTI has requested VOICETEK to
secure such compliance and has paid to VOICETEK the requisite fee
specified in the applicable development agreement and applicable
annexes and addenda thereto to cover (TUV) testing and administrative
costs as agreed by NTI and VOICETEK thereunder.
17.2 To the extent applicable, all user manuals or other operator manuals
and/or written material supplied with the HARDWARE PRODUCTS shall contain
any warning notices required by any of the regulatory or testing bodies
referenced in Section 17.1.
17.3 Upon the EFFECTIVE DATE, both parties acknowledge that if all approvals
have not been issued by the appropriate agencies as defined in Section
17.1 above, and in the event any of the agencies fail to certify such
HARDWARE PRODUCTS within ninety (90) days of the EFFECTIVE DATE, provided
any delay in approvals is attributable solely to VOICETEK's obligations
hereunder and not delayed by the appropriate agencies or NTI, the
AGREEMENT may be terminated at the option of NTI. VOICETEK agrees that it
shall ship no HARDWARE PRODUCTS prior to issuance of the approvals as set
forth in Section 17.1 without the prior written consent of NTI.
17.4 Subject to the terms of Subsection 17.4.1, VOICETEK agrees that any
HARDWARE PRODUCTS shipped prior to securing all of the necessary
certificates, as defined in Section 17.1 above, will be made to comply
with those respective agency requirements. VOICETEK will bear any cost
necessary to modify or update any STANDARD HARDWARE PRODUCTS delivered to
meet those specifications relative to any HARDWARE delivered to NTI, a
NORTHERN TELECOM COMPANY or MANUFACTURING LICENSEE. VOICETEK shall
indemnify and hold NTI, NORTHERN TELECOM COMPANIES, MANUFACTURING
LICENSEES and AUTHORIZED DISTRIBUTORS harmless from any and all claims,
suits, or actions brought against NTI, NORTHERN TELECOM COMPANIES,
MANUFACTURING LICENSEES, and/or AUTHORIZED DISTRIBUTORS by end-user
customers for any damages, including reasonable and customary attorney's
fees, for the failure of VOICETEK to obtain the necessary certificates, as
defined in Section 17.1, prior to shipment of any STANDARD HARDWARE
PRODUCTS.
17.4.1 In the event of any shipment having been made at NTI's written
request, as described in Section 17.3, NTI, NORTHERN TELECOM
COMPANIES, MANUFACTURING LICENSEES, or AUTHORIZED DISTRIBUTORS
shall indemnify and hold VOICETEK harmless from any and all
claims, suits, or actions brought against NTI, NORTHERN TELECOM
COMPANIES, MANUFACTURING LICENSEES, or AUTHORIZED DISTRIBUTORS by
end-user customers, for any damages including reasonable and
customary attorney's fees, for the failure of VOICETEK to obtain
the necessary certificates as defined in Section 17.1, prior to
the shipment of any STANDARD HARDWARE PRODUCTS.
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ARTICLE XVIII - DEFAULT AND TERMINATION
18.1 Any of the following shall constitute sufficient cause for a party to the
AGREEMENT to seek the remedies available to a nondefaulting party, as
provided in Sections 18.2 through 18.4:
(a) The failure of the other party to perform any material term, condition
or covenant of the AGREEMENT, which shall constitute a default of the
AGREEMENT, and such default has not been corrected within thirty (30)
days of the date of receipt of written notice of such default given by
the nondefaulting party;
(b) The other party is or becomes insolvent, or a party to any bankruptcy
or receivership proceeding or any similar action affecting the
financial condition of such other party, or seeks to make a
compromise, arrangement or assignment for the benefit of its
creditors, or ceases doing business in the normal course.
18.2 In the event any act of default constituting sufficient cause pursuant to
either Section 18.1(a) or Section 18.1(b) shall occur, the party not in
default shall have the right to and may elect any or all of the following
remedies, which shall be cumulative and not exclusive:
(a) Declare the AGREEMENT to be immediately terminated;
(b) Pursue each and every remedy available at law and in equity.
18.3 In the event VOICETEK is the defaulting party pursuant to Section 18.1(b)
above, NTI shall, in lieu of terminating the AGREEMENT, have the option of
furnishing written notice to VOICETEK of NTI's intention to continue to
perform the AGREEMENT under the following terms and conditions:
(i) Each end-user customer's rights, with respect to any and all copies
of SOFTWARE PRODUCTS distributed directly or indirectly (through
NORTHERN TELECOM COMPANIES, MANUFACTURING LICENSEES or AUTHORIZED
DISTRIBUTORS) to end-user customers, pursuant to the AGREEMENT, shall
remain in full force and effect;
(ii) With the exception of any SOURCE CODE MATERIALS not proprietary to
VOICETEK (unless the required rights to such have been granted to
VOICETEK by VOICETEK's suppliers), NTI shall have a right of access,
by written notice given to VOICETEK, to gain possession of the source
code form of the SOFTWARE PRODUCTS and the remaining SOURCE CODE
MATERIALS and make use of them free of charge solely for the purposes
of directly granting rights to use copies of SOFTWARE PRODUCTS
incorporated into HARDWARE PRODUCTS to customers and for support
activities. Upon receipt of written notice, VOICETEK or its trustee
or receiver in bankruptcy, as the case may be, shall immediately and
forthwith deliver SOURCE CODE MATERIALS, including specifically the
source code form of SOFTWARE PRODUCTS, to NTI. NTI shall have the
right to use, make bug fixes in and recompile the source code form of
SOFTWARE PRODUCTS and the right to distribute object code copies of
SOFTWARE PRODUCTS to customers in the AUTHORIZED TERRITORY, either
directly or through NORTHERN TELECOM COMPANIES, MANUFACTURING
LICENSEES and AUTHORIZED DISTRIBUTORS, provided NTI pays to VOICETEK
right-to-use fees for such SOFTWARE PRODUCTS at the prices set forth
in Schedule B or Schedule E, subject to application of the applicable
discount levels set forth in Schedule H. VOICETEK hereby agrees and
acknowledges that either the failure of VOICETEK or its trustee or
receiver in bankruptcy to deliver all SOURCE CODE MATERIALS,
including specifically the source code form of SOFTWARE PRODUCTS
hereunder or, in the event SOURCE CODE MATERIALS for SOFTWARE
PRODUCTS are deposited in escrow, affirmative actions or omissions by
VOICETEK in any way hindering the release of SOURCE CODE MATERIALS
from escrow will cause irreparable harm to NTI for which there is no
adequate remedy at law and, therefore, NTI shall be entitled to
specific performance of such delivery obligation and, in addition,
and without being an election of remedies, NTI may pursue each and
every remedy available at law or in equity;
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(iii) In the event VOICETEK's Section 18.1(b) default is resolved in such
a way that VOICETEK resumes its operations as they pertain to NTI in
a manner substantially equivalent to its operations prior to the
occurrence of such default, NTI shall promptly return the source
code form of SOFTWARE PRODUCTS and the other SOURCE CODE MATERIALS
made available to NTI by VOICETEK solely pursuant to Section
18.2(b), Section 18.3(ii) and/or Section 19.2, but not otherwise.
18.4 In the event the AGREEMENT is terminated by VOICETEK for default by NTI,
VOICETEK shall permit NTI to retain limited rights to use the SOFTWARE
PRODUCTS thereafter for up to one (1) year following the date of
termination of the AGREEMENT by VOICETEK in order to allow NTI to satisfy
its then existing contractual obligations for support for SOFTWARE
PRODUCTS to NORTHERN TELECOM COMPANIES, MANUFACTURING LICENSEES,
AUTHORIZED DISTRIBUTORS and end-user customers. Exceptions to VOICETEK's
obligation to permit NTI to continue to exercise such limited rights shall
include the case where such default by NTI relates to the payment of
applicable prices or license fees, as set forth in Sections 8.1 through
8.8 inclusive, which are not reasonably in dispute, or any obligation that
would unreasonably jeopardize VOICETEK's intellectual property rights in
one or more SOFTWARE PRODUCTS or VOICETEK's confidential information in
which event only the SOFTWARE PRODUCTS to which intellectual property
rights in jeopardy and/or VOICETEK's confidential information pertain
would not be subject to the continued exercise of limited rights by NTI.
The limited rights to use the SOFTWARE PRODUCTS, as provided in this
Section 18.4, shall survive the termination or expiration of the AGREEMENT
for up to one (1) year.
18.5 Subject to the provisions of Section 18.3 and Section 18.4, respectively,
it is understood that, upon termination of the AGREEMENT, NTI shall,
within thirty (30) days following such termination, destroy its copies of
the SOFTWARE PRODUCTS and any whole or partial reproductions thereof in
any form, and all materials related to the SOFTWARE PRODUCTS which are
still under the control of NTI, and so certify in writing to VOICETEK,
except that NTI may retain a sufficient number of copies of such SOFTWARE
PRODUCTS as is reasonably necessary for NTI to fulfill its contractual
obligations, as set forth in Section 18.4.
ARTICLE XIX - SOURCE CODE ESCROW OPTION
19.1 NTI shall, in its sole discretion, have the option to require that the
SOURCE CODE MATERIALS (excluding those not proprietary to VOICETEK unless
the right to deposit them in escrow has been granted to VOICETEK by
VOICETEK's suppliers) for any or all SOFTWARE PRODUCTS be deposited in
escrow. If requested by NTI, the parties shall, in good faith, negotiate
the selection of a fair, impartial and competent escrow agent and deposit
the SOURCE CODE MATERIALS for any or all SOFTWARE PRODUCTS in escrow for
the benefit of NTI or, if such SOURCE CODE MATERIALS were previously
deposited by VOICETEK, designate NTI as a registered beneficiary. The
express purpose for depositing the SOURCE CODE MATERIALS in escrow or
designating NTI as a registered beneficiary, as the case may be, shall be
to secure a means of access to all materials reasonably necessary or
useful in enabling NTI to maintain, modify, enhance and/or support the
SOFTWARE PRODUCTS in order to maintain the functionality of the SOFTWARE
PRODUCTS with limited assistance or without assistance from VOICETEK. In
any event, NTI shall pay the costs and expenses assessed for the deposit
of any SOURCE CODE MATERIALS not proprietary to VOICETEK into escrow. In
no event shall NTI be required to pay more than the proportionate costs
and expenses attributable to the deposit of VOICETEK's proprietary SOURCE
CODE MATERIALS into escrow, if all or any portion of VOICETEK's
proprietary SOURCE CODE MATERIALS have been, or during the TERM are,
deposited into escrow at the request of and for the benefit of any third
party.
19.2 In the event VOICETEK is or becomes insolvent, or a party to any
bankruptcy or receivership proceeding or any similar action affecting the
financial condition of VOICETEK, or seeks to make a compromise,
arrangement or assignment for the benefit of its creditors, or ceases
doing business in the normal course, and NTI provides written notice to
VOICETEK, as required by Section 18.3(ii), NTI shall be given access to
and rights to use the SOURCE CODE MATERIALS held in escrow, beginning ten
(10) days after receipt by VOICETEK of NTI's written notice demanding
access to such SOURCE CODE MATERIALS.
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ARTICLE XX - FORCE MAJEURE
20.1 If the performance of the AGREEMENT (including, without limitation, any
deliveries hereunder) is interfered with by reason of any circumstance
beyond the reasonable control of the party affected including, without
limitation, fire, act of God, labor unrest, and discontinuance of
manufacture of sole-sourced components, then the party affected shall be
excused from such performance on a day-for-day basis to the extent of such
interference (and the other party shall likewise be excused from
performance on a day-for-day basis to the extent such party's obligations
relate to the performance so interfered with; provided that the party so
affected shall use reasonable efforts to remove such causes of
nonperformance.
ARTICLE XXI - CONFIDENTIALITY
21.1 Any information designated as "Confidential", "Restricted" or
"Proprietary" in writing by the disclosing party prior to disclosure shall
be considered confidential information under the AGREEMENT. In the case of
any oral disclosure of confidential information, such information shall be
treated as confidential if the disclosing party (a) states that such
information is confidential at the time of disclosure, and (b) summarizes
such information in a writing setting forth the date, nature and extent of
the oral disclosure and indicating the same to be confidential, and
delivers such written summary to the other party within thirty (30) days
after the date of such oral disclosure.
21.2 The parties shall use reasonable efforts and at least the same care that
each uses to protect its own confidential information of like importance,
to prevent unauthorized dissemination or disclosure of the other party's
confidential information during and for three (3) years following the last
day of the TERM.
21.3 The confidentiality obligations set forth in this Article XXI will not
apply to any information that:
(a) becomes known to the general public without fault or breach on
the part of the receiving party;
(b) either party, disclosing its own confidential information,
customarily provided to others without restriction on disclosure;
(c) the receiving party obtains from a third party without breach of
a nondisclosure obligation and without restriction on disclosure;
(d) is furnished to a third party by the disclosing party without a
similar restriction on such third party's rights;
(e) can by written records be shown to have been known by the
receiving party at the time of disclosure;
(f) can by written records be shown to have been developed independently
by the receiving party without using any information as defined in
Section 21.1 which is received from the disclosing party.
21.4 The parties agree and acknowledge that any confidential and proprietary
information of the other party in its possession shall, upon termination
of the AGREEMENT and upon the request of the other party, be returned to
the disclosing party.
21.5 Neither party shall publicly disclose any information regarding the terms
and conditions contained herein without having received prior approval, in
writing, from the other party.
21.6 NTI agrees not to (a) attempt to reverse engineer, decompile, or reverse
assemble the SOFTWARE PRODUCTS, or create or attempt to create any
derivative work of the SOFTWARE PRODUCTS, nor (b) directly or indirectly,
through a third party, use the SOFTWARE PRODUCTS, or a derivative thereof,
or any confidential or proprietary information of VOICETEK to create any
computer software program or documentation which is functionally,
visually, or otherwise
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26
substantially similar to any SOFTWARE PRODUCT, whether or not such
SOFTWARE PRODUCT is then available for license or sale by VOICETEK.
ARTICLE XXII - LAWS AND REGULATIONS
22.1 At no additional charge to NTI, VOICETEK shall comply with and obtain all
licenses and permits required by, and PRODUCTS shall be in conformance
with, all applicable laws and governmental orders and regulations in
effect at the time of shipment of PRODUCTS including without limitation
the following United States laws and regulations:
Comprehensive Environmental Response, Compensation and Liability Act
of 1980, Consumer Product Safety Act, Toxic Substances Control Act,
Occupational Safety and Health Act of 1970, Radiation Control for
Health and Safety Act of 1968, Resource Conservation and Recovery
Act of 1976, Clean Air Act, Clean Water Act, Hazardous Materials
Transportation Act, Vietnam Era Veterans Readjustment Assistance Act
of 1972, Rehabilitation Act of 1973 and the clauses set forth in
Federal Acquisition Regulations (subject to "Contractor,"
"Subcontractor" and "Contract' used in such clauses meaning NTI,
VOICETEK and AGREEMENT, respectively) 52.219-8, 52.219-9, 52.219-13,
52.220-3, 52.220-4, 52.222-1, 52.222-4, 52.222-20, 52.222-21,
52.222-26 (subparagraphs b(l) - b(11), 52.222-35 and 52.222-36,
which clauses are incorporated by reference, with the same force and
effect as it they were given in full text.
ARTICLE XXIII - INSURANCE
23.1 VOICETEK shall maintain during its performance under the AGREEMENT General
Liability Insurance, including contractual, products liability and broad
form vendors' property damage endorsement with the limits of either
$5,000,000.00 combined single limit per occurrence for bodily injury and
property damage or $3,000,000.00 bodily injury per occurrence and
$2,000,000.00 property damage per occurrence.
23.2 Insurance requirements stated in Section 23.1 shall be primary and
noncontributory with respect to any insurance which NTI may have, and NTI
shall under such insurance be named as an additional insured with a
cross-liability endorsement. Prior to the commencement of the TERM,
VOICETEK shall furnish to NTI a certificate of insurance evidencing that
such insurance is in effect. The certificate shall also state that NTI
shall be notified by VOICETEK's insurance carrier(s) within thirty (30)
days of any cancellation, material change or exhaustion of the
aforementioned limits. VOICETEK shall in such event furnish a new
certificate in the event of cancellation or expiration of any insurance.
ARTICLE XXIV - EXPORTERS CERTIFICATE OF ORIGIN
24.1 With the assistance of NTI, VOICETEK shall initially provide and update,
as necessary, any certificates as may be required for any PRODUCTS which
qualify under the North American Free Trade Agreement between the United
States, Canada, and Mexico, or to any other Free Trade Agreements of which
the United States is or may become a party.
ARTICLE XXV - INDEPENDENT CONTRACTORS
25.1 VOICETEK and NTI are independent contractors in all relationships and
actions under and contemplated by the AGREEMENT. The AGREEMENT is not to
be construed to create, or to authorize the creation of, any employment,
partnership, or agency relation or to authorize NTI or any NORTHERN
TELECOM COMPANIES, MANUFACTURING LICENSEES or AUTHORIZED DISTRIBUTORS to
enter into any commitment or agreement binding on VOICETEK or to allow one
party to accept service of any legal process addressed to, or intended
for, the other party. NTI and the NORTHERN TELECOM COMPANIES,
MANUFACTURING LICENSEES and AUTHORIZED DISTRIBUTORS shall not make any
warranties, guarantees or any other commitments on behalf of VOICETEK
pursuant to the AGREEMENT.
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27
ARTICLE XXVI - NOTICES AND REQUESTS
26.1 All official or formal notices required or otherwise provided under the
AGREEMENT shall be sent by certified or registered mail (return receipt
requested), postage prepaid, or by cable, telegram, facsimile, telex or
hand delivery to the other party at the address listed below for the other
party and addressed as follows:
NTI: NORTHERN TELECOM INC.
2305 Mission College Boulevard
Santa Clara, California 95054-1591
Attention: Manager, Technology Acquisition
Dept. 0521
VOICETEK: VOICETEK CORPORATION
19 Alpha Road
Chelmsford, Massachusetts 01824-4175
Attention: Contracts Manager
or to such other address as the party to receive the notice so designates
by written notice to the other party.
26.2 All other written communications required or otherwise provided hereunder
by one party to the other shall be mailed by First Class Mail, postage
prepaid, to the following addresses or to such changed address as either
party entitled to notice hereunder shall have communicated in writing to
the other party:
NTI: NORTHERN TELECOM INC.
2305 Mission College Boulevard
Santa Clara, California 95054-1591
Attention: Art Hazeldine
Dept. 0521
VOICETEK: VOICETEK CORPORATION
19 Alpha Road
Chelmsford, Massachusetts 01824-4175
Attention: Contracts Manager
26.3 Except in the case of notices sent by certified or registered mail (return
receipt requested), notices given pursuant to Article XXVI shall be deemed
to have been received five (5) days after mailing if given by First Class
Mail, and one (1) business day after sending if given by cable, telegram,
facsimile, telex and upon delivery if given by hand.
ARTICLE XXVII - GENERAL
27.1 The interpretation of the AGREEMENT and the rights and obligations of the
parties shall be governed by the laws of the State of California, except
as to patent, copyright and trademark matters, which are governed by
federal law. The parties agree that Santa Clara, California, is both the
place of making and the place of performance of the AGREEMENT for all
purposes.
27.2 The AGREEMENT, including all applicable Schedules constitutes the entire
agreement between the parties and supersedes any and all prior or
contemporaneous oral and written communications, understandings or
agreements relating to the subject matter hereof. Any amendments, or
alternative or supplementary provisions, must be made in writing and be
duly executed by an authorized representative or agent of each of the
parties hereto. The provisions of the Software License and Distribution
Agreement dated 31 July 1992 shall not be superseded
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28
in any respect by the AGREEMENT. The parties hereby agree that a
resolution to any and all unfulfilled obligations of the parties, as set
forth in Technology Development Agreement 2 between them, shall be
mutually agreed upon, with the results being set forth in a Master
Technology Development Agreement and Annexes applicable to specific
projects, which is to be executed by NTI and VOICETEK.
27.3 The AGREEMENT shall inure to the benefit of and be binding upon the
respective successors and assigns, if any, of the parties hereto.
27.4 The invalidity of any provision of the AGREEMENT shall not affect the
validity of any other provision thereof.
27.5 Neither party shall, in any advertising, sales promotion materials, press
releases or any other publicity matters use the name of the other party,
any subsidiary or affiliate of the other party or any variation of the
foregoing or language from which the connection of said names may be
implied without such other party's prior written approval.
27.6 The AGREEMENT may be executed in one or more counterparts, each of which
shall constitute one and the same instrument.
27.7 Neither party shall assign the AGREEMENT or any rights received hereunder
without the prior written consent of the other party. Notwithstanding the
foregoing, either party may assign the AGREEMENT or any rights received
hereunder to a subsidiary or affiliate in which it owns at least a
majority interest or to an affiliate that owns a majority interest in such
party without such prior written consent, but upon notice to the other
party. In addition, VOICETEK may assign the AGREEMENT or any rights
received hereunder to its successor in interest by virtue of a merger or
corporate reorganization or to the purchaser of substantially all of
VOICETEK's assets, without prior written consent, but upon notice to NTI.
In the event VOICETEK should merge with, or be acquired by, or sell
substantially all its assets to, a direct competitor of NTI, NTI may
terminate the AGREEMENT, subject only to the obligations set forth in
those provisions of the AGREEMENT which, by their terms or clear intent,
survive termination hereof.
27.8 No provision of the AGREEMENT shall be deemed waived, amended or modified
by either party, unless such waiver, amendment or modification be in
writing and signed by the party against whom enforcement of the waiver,
amendment or modification is sought. Any such amendment or modification
shall be binding with or without tender of any consideration.
27.9 The headings used herein are for convenience only and shall not be deemed
to be part of the AGREEMENT or used to construe or interpret any of the
provisions hereof.
27.10 Each party to the AGREEMENT hereby represents to the other that it has
full power and authority to enter into and perform the AGREEMENT and that
the person signing the AGREEMENT on its behalf has been properly
authorized and empowered to do so. Each party further acknowledges that it
has read the AGREEMENT, that it understands the terms and conditions
hereof, and that it agrees to be bound by the AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have, by their duly authorized
representatives, executed the AGREEMENT as of the day and year of the latter
signature set forth below.
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NORTHERN TELECOM INC. VOICETEK CORPORATION
By: /s/J. Michael Camp By: /s/Roger Tuttle
_______________________________ _______________________________
Name: J. Michael Camp Name: Roger Tuttle
_____________________________ _____________________________
(type/print) (type/print)
Title: Vice President Title: V.P. Finance
____________________________ ____________________________
(type/print) (type/print)
Date: 6/16/95 Date: 16 JUNE 1995
_____________________________ ______________________________
- ------------------------
| APPROVED AS |
| TO LEGAL FORM |
|--------------------- |
| BY: Joel M. Erickson |
- ------------------------
15 JUNE 1995
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SCHEDULE A
AUTHORIZED TERRITORY
Canada United States (U.S.)
NORTHERN TELECOM INC. VOICETEK CORPORATION
BY: /s/J. Michael Camp By: /s/Roger Tuttle
____________________________ ________________________________
Name: J. Michael Camp Name: Roger Tuttle
__________________________ ______________________________
(type/print) (type/print)
Title: Vice President Title: V.P. Finance
_________________________ _____________________________
(type/print) (type/print)
Date: 6/16/95 Date: 16 June 1995
__________________________ ______________________________
- ------------------------
| APPROVED AS |
| TO LEGAL FORM |
|--------------------- |
| BY: Joel M. Erickson |
- ------------------------
15 JUNE 1995
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31
SCHEDULE B
PRICE LIST
PAGE 33
32
SCHEDULE C
MARKS
Voicetek(R)
VTK(R)
Generations(TM)
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33
SCHEDULE D
INTERNAL USE PRICING
Under the terms of the AGREEMENT, NTI, NORTHERN TELECOM COMPANIES and
MANUFACTURING LICENSEES may purchase SYSTEMS to be used internally at the prices
enumerated in Schedule B and/or Schedule E, as qualified by the applicable
discount level set forth in Schedule 1. The prices for SYSTEMS for NTI's
internal use will include:
- VTK-Base System with twelve (12) ports Loopstart eight (8) ports
ISDN/BRI, or twenty-four (24) ports T1 and forty (40) hours of
voice storage
- GENERATIONS Development/Runtime Licenses
- All optional software features enabled
- Full set of USER DOCUMENTATION (including all optional features
USER DOCUMENTATION)
- Warranties as provided by VOICETEK under the AGREEMENT
Under the terms of the AGREEMENT, NTI, NORTHERN TELECOM COMPANIES and
MANUFACTURING LICENSEES may purchase GENERATIONS Development licenses for
SELF-HOSTED UNITS to be used internally at the prices set forth in Schedule B
and/or Schedule E, as qualified by the applicable discount level set forth in
Schedule 1. The price for the GENERATIONS Development license intended for use
with SELF-HOSTED UNITS to be used internally will include:
- GENERATIONS Development License;
- All Optional software features enabled; and
- Warranties as provided by VOICETEK under the AGREEMENT.
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SCHEDULE E
* PRICING
Order Code Product Description Price
PT-04-ESC D-41ESC 4-Port Assembly $ *
PT-12-LS Loopstart 12-Port Assembly $ *
PT-08-BRI BRI8-Port Assembly $ *
VR-02-VCS Continuous ASR $ *
(2-Port Assembly)
VR-02-VCSE Continuous ASR Expansion $ *
(2-Port Expansion)
PT-24-T1 T1 24-Port Assembly $ *
PT-30-E1 E1 30-Port Assembly $ *
PT-60-E1 E1 60-Port Assembly $ *
PT-04-NS D41 Northstar Assembly $ *
TSP-SW TSP Runtime License $ *
TTS-04-LH TTS 4-Port Assembly $ *
(HW & SW)
TTS-04-LE TTS 4-Port Expansion $ *
(SW only)
VR-04-VCS-D Discrete ASR 4-Port Expansion $ *
(HW & SW)
HL-5250-HW-S 5250 Synchronous I/F $ *
(SSI HW & SW)
HL-5250-HW-TR 5250 Token Ring I/F $ *
(SSI HW & SW)
HL-3270-HW-S 3270 Synchronous I/F $ *
(SSI HW & SW)
HL-3270-HW-TR 3270 Token Ring I/F $ *
(SSI HW & SW)
HL-5250-SW TRS 5250 Software $ *
HL-3270-SW TRS 3270 Software $ *
HL-VT100-SW TRS VT100 Software $ *
RED-AP-SW Redundant AP Software $ *
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
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SCHEDULE E
* PRICING
(Continued)
Order Code Product Description Price
RW-OPT Report Writer Software *
(Customized Version)
PBX-RM Rolm ACD I/F *
PBX-NT Ml ACD I/F *
PBX-C1 Customized PBX I/F *
VR-04-VCS-DSO Discrete ASR SW Only *
TTS-04-LHSO TTS Software Only *
FAX-02-BTSO Fax SW Only *
RM-CAB-01 Rack Cabinet *
PT-12-DID 12-Port Assembly *
(D(D)
TBD SMDI Software *
TBD UPS Software Support *
N Non-discountable
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
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SCHEDULE G
REPRODUCTION SERVICES AGREEMENT
THIS REPRODUCTION SERVICES AGREEMENT (hereinafter 'Agreement") is made and
executed by and between ,
a corporation
with offices at (hereinafter "CONTRACTOR")
and
N0RTHERN TELEC0M INC., a Delaware corporation with offices at
(hereinafter "NTI") this _
day of 199___.
RECITALS
WHEREAS, NTI requires the services of a contractor to perform certain
reproduction tasks involving computer programs, user documentation and technical
documentation, among other things;
AND WHEREAS, CONTRACTOR is in the business of providing services such as volume
reproduction of an assortment of items, including computer programs and written
materials of various kinds;
NOW THEREFORE, in consideration of the mutual terms and conditions hereinafter
set forth, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, THE PARTIES HERETO AGREE AS
FOLLOWS:
ARTICLE I - DEFINITIONS
1.1 "CAMERA-READY COPY" or "CAMERA-READY COPIES" shall mean a professional
quality reproducible master copy of a WORK OF AUTHORSHIP other than a
COMPUTER PROGRAM.
1.2 "COMPUTER PROGRAM" or "COMPUTER PROGRAMS" shall mean a set of statements
or instructions to be used directly or indirectly in a computer in order
to bring about a certain result.
1.3 "REPRODUCIBLE MASTER" or "REPRODUCIBLE MASTERS" shall mean a reproducible
master copy of a COMPUTER PROGRAM.
1.4 "WORK OF AUTHORSHIP" or "WORKS OF AUTHORSHIP" shall mean works expressed
in words, numbers, or other verbal or numerical symbols or indicia,
regardless of the nature of the material objects, such as books,
periodicals, manuscripts, tapes, disks, or cards in which they are
embodied.
ARTICLE II - NTI WARRANTIES AND REPRESENTATIONS
2.1 NTI warrants and represents that, as of the date of delivery of a
REPRODUCIBLE MASTER and/or a CAMERA-READY COPY by NTI to CONTRACTOR
hereunder, the COMPUTER PROGRAM embodied in such REPRODUCIBLE MASTER
and/or the WORK OF AUTHORSHIP embodied in such CAMERA-READY COPY is/are
not known by NTI to be the subject of any claims of infringement of any
patent, trademark, copyright and/or trade dress or of any claims of
misappropriation of any trade secret of any third party. NTI warrants and
represents that, to the best of its knowledge, NTI either owns or
otherwise has been granted the necessary rights to authorize and/or grant
all necessary rights to make reproductions of each REPRODUCIBLE MASTER
and/or CAMERA-READY COPY provided to CONTRACTOR hereunder.
ARTICLE III - GRANT OF RIGHTS
3.1 In accordance with and subject to the terms and conditions of this
Agreement, NTI hereby grants to CONTRACTOR a personal, nonexclusive,
nontransferable license:
(a) to make copies from each REPRODUCIBLE MASTER delivered by NTI to
CONTRACTOR for such purpose.
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(b) to make copies from each CAMERA-READY COPY delivered by NTI to
CONTRACTOR for such purpose.
ARTICLE IV - DELIVERABLES
4.1 NTI shall deliver purchase orders to CONTRACTOR either accompanied by the
REPRODUCIBLE MASTER and/or CAMERA-READY COPY of which copies are being
ordered or referencing the appropriate REPRODUCIBLE MASTER and/or CAM-
ERA-READY COPY already in the custody of the CONTRACTOR to the following
address:
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
ARTICLE V - PRICE; PAYMENT
5.1 Upon the latter of the actual date of delivery of copies of COMPUTER
PROGRAMS and/or WORKS OF AUTHORSHIP to NTI and the date of receipt of the
invoice therefor by NTI, payment for such copies shall be due and payable
by NTI to CONTRACTOR within forty-five (45) days. NTI shall make its
payments to CONTRACTOR as provided herein, in lawful United States currency
at the registered office of CONTRACTOR in .
ARTICLE VI - DISCLAIMER OF WARRANTY AND LIMITED WARRANTY
6.1 THE REPRODUCIBLE MASTERS AND/OR CAMERA-READY COPIES ARE PROVIDED "AS IS"
WITHOUT WARRANTY OF ANY KIND BY NTI TO CONTRACTOR IN THE FIRST INSTANCE
AND BY CONTRACTOR TO NTI DURING THE RETURN OF SUCH REPRODUCIBLE MASTERS
AND/OR CAMERA-READY COPIES. NEITHER PARTY WARRANTS, GUARANTEES, OR MAKES
ANY REPRESENTATIONS TO THE OTHER REGARDING THE USE, OR THE RESULTS OF THE
USE, OF THE REPRODUCIBLE MASTERS AND/OR CAMERA-READY COPIES IN TERMS OF
CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS OR OTHERWISE.
6.2 THE ENTIRE RISK AS TO COST OF ALL REPAIR AND/OR CORRECTION OF DEFECTIVE
COPIES OF COMPUTER PROGRAMS AND/OR WORKS OF AUTHORSHIP ASSUMED HEREUNDER
SHALL BE ALLOCATED TO NTI IF IT CAN BE ESTABLISHED THAT THE REPRODUCIBLE
MASTER AND/OR CAMERA-READY COPY WAS DEFECTIVE AT THE TIME OF ITS DELIVERY
TO CONTRACTOR. THE ENTIRE RISK AS TO COST OF ALL REPAIR AND/OR CORRECTION
OF DEFECTIVE COPIES OF COMPUTER PROGRAMS AND/OR WORKS OF AUTHORSHIP
ASSUMED HEREUNDER SHALL BE ALLOCATED TO CONTRACTOR IF IT CAN BE
ESTABLISHED THAT THE REPRODUCIBLE MASTER AND/OR THE CAMERA-READY COPY WAS
NOT DEFECTIVE AS OF THE DATE OF ITS DELIVERY BY NTI TO CONTRACTOR PURSUANT
TO SECTION 4.1 OF THIS AGREEMENT.
6.3 CONTRACTOR warrants to NTI that each unit of storage media on which a copy
of a COMPUTER PROGRAM is recorded is free from defects in materials and
workmanship under normal use and service for a period of ninety (90) days
from the date of delivery of such unit of storage media to NTI, as
evidenced by a copy of the packing slip. Further, CONTRACTOR hereby limits
the duration of any implied warranty on each unit of storage media to the
period stated above.
6.4 In the case where risk as to cost of all repair and/or correction of
defective copies of COMPUTER PROGRAMS is allocated to CONTRACTOR under
Section 6.2 of this Agreement, CONTRACTOR's entire liability and NTI's
exclusive remedy as to the units of storage media shall be replacement of
the units of storage media that do not meet CONTRACTOR's Limited Warranty
as set forth in Section 6.3 and which are returned to CONTRACTOR. If
failure of a unit of storage media has resulted from accident, abuse, or
misapplication, CONTRACTOR shall have no responsibility to replace such
unit of storage media. Any replacement unit of storage media will be
warranted for the remainder of the original warranty period or thirty (30)
days, whichever is longer.
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6.5 EXCEPT AS SET FORTH IN ARTICLE II OF THIS AGREEMENT, THE ABOVE ARE THE
ONLY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, THAT ARE MADE BY CONTRACTOR TO NTI AND BY NTI TO
CONTRACTOR PURSUANT TO THIS AGREEMENT.
ARTICLE VII - ALLEGATION OF INFRINGEMENT; LITIGATION
7.1 In the event a COMPUTER PROGRAM embodied in a REPRODUCIBLE MASTER and/or
a WORK OF AUTHORSHIP embodied in a CAMERA-READY COPY provided by NTI to
CONTRACTOR for reproduction under this Agreement becomes the subject of
claims of intellectual property infringement and/or infringement
litigation, CONTRACTOR shall have the right to cease performance of its
obligations pursuant to this Agreement, except with respect to
CONTRACTOR's confidentiality obligations, declare this Agreement to be
immediately terminated and return to NTI all REPRODUCIBLE MASTERS and all
CAMERA-READY COPIES received from NTI together with any existing inventory
of COMPUTER PROGRAMS and/or WORKS OF AUTHORSHIP already reproduced for NTI
ARTICLE VIII - LIMITATION OF LIABILITY
8.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER
ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
ARTICLE IX - TERM
9.1 This Agreement shall become effective on the date of signature by the
latter of the parties to sign, and extend for a period of five (5) years,
unless earlier terminated pursuant to the terms of Section 10.1.
ARTICLE X - CONFIDENTIALITY
10.1 CONTRACTOR understands that the REPRODUCIBLE MASTERS and the CAMERA-READY
COPIES supplied by NTI to CONTRACTOR pursuant to this Agreement contain
proprietary information of NTI and/or NTI's suppliers, and that such
REPRODUCIBLE MASTERS and CAMERA-READY COPIES are protected by copyright.
CONTRACTOR agrees not to use, copy and/or distribute copies made from such
REPRODUCIBLE MASTERS and/or CAMERA-READY COPIES other than as authorized
to do so by NTI pursuant to this Agreement.
ARTICLE XI - MARKING; LABELING
11.1 CONTRACTOR agrees to affix, upon each copy of each COMPUTER PROGRAM made
from a REPRODUCIBLE MASTER delivered by NTI, the appropriate label,
including the copyright notice, which copyright notice and/or label either
appears on the REPRODUCIBLE MASTER of such COMPUTER PROGRAM supplied by
NTI to CONTRACTOR or is provided to CONTRACTOR along with instructions
regarding placement by CONTRACTOR on all copies of such COMPUTER PROGRAM
made by CONTRACTOR for NTI.
11.2 In connection with its handling and reproduction of the COMPUTER PROGRAMS
and/or WORKS OF AUTHORSHIP supplied to CONTRACTOR by NTI pursuant to this
Agreement, CONTRACTOR shall not alter or modify the copyright notice
supplied by NTI for placement by CONTRACTOR on each copy of such COMPUTER
PROGRAMS and/or WORKS OF AUTHORSHIP made by CONTRACTOR for NTI in
accordance with the provisions of the U.S. Copyright Act, 17 U.S.C. 101,
et. seq., specifically 17 U.S.C. 401 through 406.
ARTICLE XII - OWNERSHIP OF TRADEMARKS AND COPYRIGHTS
12.1 CONTRACTOR hereby acknowledges and agrees that nothing herein gives
CONTRACTOR any right, title or interest in the trademarks and/or
copyrights of NTI and/or NTI's suppliers pertaining to
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the REPRODUCIBLE MASTERS and/or CAMERA-READY COPIES supplied by NTI to
CONTRACTOR, nor in any copies of the same made by CONTRACTOR at the
direction of NTI. Upon termination of this Agreement by expiration or for
any other reason, CONTRACTOR shall no longer use the trademarks and
copyrights associated with the REPRODUCIBLE MASTERS and/or CAMERA-READY
COPIES supplied by NTI to CONTRACTOR in the making of any copies the same
or in any other manner. Except as set forth in Section 3.1 of this
Agreement, no license or other grant is expressed or implied to CONTRACTOR
to produce, reproduce, copy or in any other manner use the REPRODUCIBLE
MASTERS and/or the CAMERA-READY COPIES supplied to CONTRACTOR by NTI
pursuant to this Agreement.
ARTICLE XIII - INSPECTION; ACCEPTANCE
13.1 The acceptance by NTI of copies of COMPUTER PROGRAMS and/or WORKS OF
AUTHORSHIP reproduced by CONTRACTOR is subject to inspection at the
delivery location and such acceptance shall be deemed to occur ten (10)
days after receipt of such copies at the delivery location unless NTI shall
have provided CONTRACTOR with notice of nonacceptance within such period.
If one or more copies do not conform to the requirements of a purchase
order issued by NTI to CONTRACTOR or, in the case of COMPUTER PROGRAMS, to
the warranty set forth in Section 6.3, the entire quantity of copies
delivered with the defective copy or copies may be returned to CONTRACTOR
at CONTRACTOR's expense.
ARTICLE XIV - TERMINATION; REMEDIES
14.1 Except as provided to the contrary in Section 7.1, in the event either
party fails to perform any term, condition or covenant of this Agreement
and such failure continues uncorrected for at least fifteen (15) days
following the date of receipt by the nonperforming party of written notice
of the specific failure to perform from the other party, the nonperforming
party shall be deemed to be in default of this Agreement. Upon the
occurrence of a default of this Agreement, the party not in default shall
have the right to and may elect to declare this Agreement to be
immediately terminated and/or pursue each and every available remedy at
law and in equity.
14.2 CONTRACTOR acknowledges that the COMPUTER PROGRAMS and/or WORKS OF
AUTHORSHIP provided by NTI to CONTRACTOR hereunder are the confidential
and proprietary property of NTI and/or NTI's suppliers, that a violation
in any material respect of Section 10.1, 11.1 and 11.2, respectively, of
this Agreement by CONTRACTOR would cause NTI irreparable injury for which
NTI would have no adequate remedy at law, and that NTI shall be entitled
to preliminary and other injunctive relief against any such violation by
CONTRACTOR. Such injunctive relief shall be in addition to, and in no way
in limitation of, any and all other rights and remedies which NTI may have
at law or in equity.
ARTICLE XV - INDEPENDENT CONTRACTORS
15.1 CONTRACTOR and NTI are independent contractors in all relationships and
actions under and contemplated by this Agreement. This Agreement is not to
be construed to create, or to authorize the creation of, any employment,
partnership, or agency relation or to authorize CONTRACTOR to enter into
any commitment or agreement binding on NTI or to allow one party to accept
service of any legal process addressed to, or intended for, the other
party.
ARTICLE XVI - NOTICES
16.1 All notices required or provided hereunder by one party to the other party
shall be in writing and shall be mailed by First Class United States Mail,
postage prepaid, and in the case of a notice of default or termination also
by Certified or Registered Mail, return receipt requested, to the following
addresses or to such changed address as either party entitled to notice
herein shall have communicated in writing to the other party:
Page 43
41
For CONTRACTOR:
----------------------------------------
----------------------------------------
----------------------------------------
Attn:
---------------------------------
For NTI: Northern Telecom Inc.
----------------------------------------
----------------------------------------
Attn:
---------------------------------
All written notices, properly addressed and mailed, shall be deemed given
when actually received by the addressee.
ARTICLE XVII - GENERAL
17.1 This Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns, if any, of the parties hereto.
17.2 This Agreement constitutes the entire understanding and agreement between
the parties and supersedes any and all prior or contemporaneous oral and
written communications, understandings or agreements relating to the
subject matter hereof. To the extent that the terms and conditions
appearing on any purchase order issued by NTI to CONTRACTOR or on any
acknowledgement issued by CONTRACTOR to NTI conflict with the terms and
conditions set forth in this Agreement, the terms and conditions of this
Agreement shall be deemed to control and the conflicting terms appearing
in any such purchase order or acknowledgement shall be null and void.
17.3 Neither party shall either (a) assign this Agreement or any purchase order
or any rights under either, or (b) subcontract any of its obligations
under this Agreement or any purchase order, without the prior written
consent of the other party. Notwithstanding the foregoing, NTI may assign
this Agreement or any purchase order or any rights under either to its
parent company, Northern Telecom Limited, or to any company which is
majority owned on a class by class basis of its voting stock by Northern
Telecom Limited without such prior written consent but upon notice to
CONTRACTOR.
17.4 The interpretation of this Agreement and the rights and obligations of the
parties shall be governed by the laws of the State of California.
17.5 Each party to this Agreement hereby represents to the other that it has
full power and authority to enter into and perform this Agreement and that
the person signing this Agreement on its behalf has been properly
authorized and empowered to do so. Each party further acknowledges that it
has read this Agreement, that it understands the terms and conditions
hereof, and that it agrees to be bound by this Agreement.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
by their duly authorized corporate officers and consider this Agreement to be
effective as of the day and year first set forth above.
Page 44
42
NORTHERN TELECOM INC. CONTRACTOR:
By: By:
--------------------------- --------------------------------
Name: Name:
----------------------- ----------------------------
Title: Title:
----------------------- ----------------------------
Date: Date:
----------------------- ----------------------------
Page 45
43
SCHEDULE H
END-USER SOFTWARE LICENSE AGREEMENT
Page 46
44
ANNEX G
MERIDIAN SOFTWARE LICENSE
NORTHERN TELECOM INC. ("NTI") TELECOMMUNICATIONS PRODUCTS
THIS LEGAL DOCUMENT IS A LICENSE AGREEMENT ("LICENSE") BETWEEN YOU, THE END-USER
("CUSTOMER") AND NORTHERN TELECOM INC. ("NTI"). BY OPENING THE SEALED DISK
PACKAGE WHICH CONTAINS THE SOFTWARE DISKETTE(S), OR BY EXECUTING A CONTRACT FOR
PURCHASE OF A SYSTEM WHICH INCORPORATES THIS USER SOFTWARE AGREEMENT, YOU, THE
CUSTOMER, AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE.
Subject to the terms hereinafter set forth, NTI grants to CUSTOMER and/or
representatives, with a "need to know," a personal, non-exclusive license (1) to
use certain Licensed Software, proprietary to NTI or its suppliers, contained as
an integral part of the Hardware; and (2) to install and use each item of
Licensed Software not an integral part of the Hardware; and (3) to use the
associated documentation. CUSTOMER is granted no title or ownership rights, in
or to the Licensed Software, in whole or in part, and CUSTOMER acknowledges that
title to and all copyrights, patents, trade secrets and/or any other
intellectual property rights to and in all such Licensed Software and associated
documentation are and shall remain the property of NTI and/or NTI's suppliers.
The right to use Licensed Software may be restricted by a measure of usage of
applications based upon number of lines, number of ports, number of terminal
numbers assigned, number of users, or some similar measure. Expansion beyond
the specified usage level may require payment of an incremental charge or
another license fee.
NTI considers the Licensed Software to contain "trade secrets" of NTI and/or its
suppliers. Such "trade secrets" include, without limitation thereto, the
specific design, structure and logic of individual Licensed Software programs,
their interactions with other portions of Licensed Software, both internal and
external, and the programming techniques employed therein. In order to maintain
the "trade secret" status of the information contained within the Licensed
Software, the Licensed Software is being delivered to CUSTOMER in object code
form only.
NTI or any of its suppliers holding any intellectual property rights in any
Licensed Software, and/or any third party owning any intellectual property
rights in software from which the Licensed Software was derived, are intended
third party beneficiaries of this License. All grants of rights to use
intellectual property intended to be accomplished by this License are explicitly
stated. No other grants of such rights shall be inferred or shall arise by
implication.
CUSTOMER warrants to NTI that CUSTOMER is not purchasing the rights granted by
this License in anticipation of reselling those rights.
CUSTOMER shall:
- - Hold the Licensed Software in confidence for the benefit of NTI and/or NTI's
suppliers using no less a degree of care than it uses to protect its own
most confidential and valuable information; and
- - Keep a current record of the location of each copy of Licensed Software
made by it; and
- - Use each copy of Licensed Software only on a single CPU at a time (for this
purpose, single CPU shall include systems with redundant processing units);
and
- - Affix to each copy of Licensed Software made by it, in the same form and
location, a reproduction of the copyright notices, trademarks, and all other
proprietary legends and/or logos of NTI and/or NTI's suppliers, appearing on
the original copy of such Licensed Software delivered to CUSTOMER; and
retain the same without alteration on all original copies; and
- - Issue instructions to each of its authorized employees, agents,. and/or
representatives to whom Licensed Software is disclosed, advising them of
confidential nature of such Licensed Software and to provide them with a
summary of the requirements of this License; and
- - Return the Licensed Software and all copies through an Authorized
Distributor to NTI at such time as CUSTOMER chooses to permanently cease
using it.
CUSTOMER shall not:
- - Use licensed Software (i) for any purpose other than CUSTOMER's own internal
business purposes and (ii) other than as provided by this License; or
- - Allow anyone other than CUSTOMER's employees, agents and/or representatives
with a "need to know" to have physical access to Licensed Software; or
- - Make any copies of Licensed Software except such limited number of object
code copies in machine readable form only, as may be reasonably necessary
for execution or archival purposes only; or
- - Make any modifications, enhancements, adaptations, or translations to or
of Licensed Software, except as may result from those CUSTOMER interactions
with the Licensed Software associated with normal use and explained in the
associated documentation; or
- - Attempt to reverse engineer, disassemble, reverse translate, decompile, or
in any other manner decode Licensed Software, in order to derive the source
code form or for any other reason; or
- - Make full or partial copies of any documentation or other similar printed or
machine-readable matter provided with Licensed Software unless the same has
been supplied in a form by NTI intended for periodic reproduction of partial
copies; or
- - Export or re-export Licensed Software and/or associated documentation from
the fifty states of the United States and the District of Columbia.
- - NOTE: notwithstanding the above restrictions, if Customer has licensed the
Licensed Software under a "site license" option as set forth in Customer's
Purchase Agreement, Customer is authorized to make a limited number of
copies of the Licensed Software and documentation to support additional
users as specified in Customer's Purchase Agreement.
CUSTOMER may assign collectively its rights under this License to any subsequent
owner of the Hardware, but not otherwise, subject to the payment of the then
current license fee for new users, if any. No such assignment shall be valid
until CUSTOMER (1) has delegated all of its obligations under this License to
the assignee; and (2) has obtained from the assignee an unconditional written
assumption of all such obligations; and (3) has provided NTI a copy of such
assignment, delegation and assumption; and (4) has transferred physical
possession of all Licensed Software and all associated documentation to the
assignee and destroyed all archival copies. Except as provided, neither this
License nor any rights acquired by CUSTOMER through this License are assignable.
Any attempted assignment of rights and/or transfer of Licensed Software not
specifically allowed shall be void and conclusively presumed a material breach
of this License.
If NTI (i) claims a material breach of this License, and (ii) provides written
notice of such claimed material breach to CUSTOMER and (iii) observes that such
claimed material breach remains uncorrected and/or unmitigated more than thirty
(30) days following CUSTOMER's receipt of written notice specifying in
reasonable detail the nature of the claimed material breach, then CUSTOMER
acknowledges that this License may be immediately terminated by NTI and CUSTOMER
further acknowledges that any such termination shall be without prejudice to any
other rights and remedies that NTI may have at law or in equity.
EXPRESS LIMITED WARRANTIES FOR ANY ITEM OF LICENSED SOFTWARE, IF ANY, WILL BE
SOLELY THOSE GRANTED DIRECTLY TO CUSTOMER BY DISTRIBUTOR AS DESCRIBED IN THE
BODY OF THE AGREEMENT TO WHICH THIS LICENSE IS ATTACHED OR, IN THE CASE OF
LICENSED SOFTWARE DISTRIBUTED IN A SEALED DISK PACKAGE, THOSE WHICH APPEAR AT
THE END OF THIS LICENSE AGREEMENT. OTHER THAN AS SET FORTH THEREIN, THIS LICENSE
DOES NOT CONFER OR GRANT ANY WARRANTY TO CUSTOMER FROM OR BY NTI; THE LICENSED
SOFTWARE IS PROVIDED BY NTI "AS IS" AND WITHOUT WARRANTY OF ANY KIND OR NATURE,
WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. THIS
LIMITATION OF WARRANTIES WAS A MATERIAL FACTOR IN THE ESTABLISHMENT OF THE
LICENSE FEE CHARGED FOR EACH SPECIFIC ITEM OF SOFTWARE LICENSED.
IN NO EVENT WILL NTI AND/OR NTI'S SUPPLIERS AND THEIR DIRECTORS, OFFICERS,
EMPLOYEES OR AGENTS BE LIABLE TO OR THROUGH CUSTOMER FOR INCIDENTAL, INDIRECT,
SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING
LOST PROFITS, LOSS OF BUSINESS OR BUSINESS INFORMATION, BUSINESS INTERRUPTION,
OR OTHER ECONOMIC DAMAGE, AND FURTHER INCLUDING INJURY TO PROPERTY, AS A RESULT
OF USE OR INABILITY TO USE THE LICENSED SOFTWARE OR
PLEASE REFER TO THE REVERSE SIDE
45
BREACH OF ANY WARRANTY OR OTHER TERM OF THIS LICENSE, REGARDLESS OF WHETHER NTI
AND/OR NTI'S SUPPLIERS WERE ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW
OF THE POSSIBILITY THEREOF, CUSTOMER ACKNOWLEDGES THAT THE FOREGOING SENTENCE
REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS
(KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS LICENSE, THAT SUCH
VOLUNTARY RISK ALLOCATION WAS A MATERIAL PART OF THE BARGAIN BETWEEN THE
PARTIES, AND THAT THE ECONOMIC AND OTHER TERMS OF THIS LICENSE WERE NEGOTIATED
AND AGREED TO BY THE PARTIES IN RELIANCE ON SUCH VOLUNTARY RISK ALLOCATION.
IN THE EVENT CUSTOMER HAS NOT EXECUTED A SEPARATE PURCHASE AGREEMENT WITH A
DISTRIBUTOR, AND THIS LICENSE BECOMES EFFECTIVE BY REASON OF YOUR OPENING A
SEALED DISK PACKAGE, THE ADDITIONAL WARRANTY PROVISIONS AND LIMITATIONS LISTED
BELOW APPLY:
- - "LICENSED SOFTWARE" SHALL MEAN THE COMPUTER PROGRAMS WHICH ARE EITHER OWNED
BY OR LICENSED TO NTI AND WHICH ARE CONTAINED ON THE DISKS SUPPLIED TO
CUSTOMER. "HARDWARE" SHALL MEAN EQUIPMENT ON WHICH CUSTOMER USES THE
LICENSED SOFTWARE.
- - NTI WARRANTS THAT THE DISKS ON WHICH THE LICENSED SOFTWARE IS RECORDED WILL
BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE FOR A
PERIOD OF NINETY (90) DAYS AS EVIDENCED BY A COPY OF THE RECEIPT. NTI'S
ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WILL BE REPLACEMENT OF THE DISK
NOT MEETING NTI'S LIMITED WARRANTY AND WHICH IS RETURNED TO NTI OR AN NTI
AUTHORIZED REPRESENTATIVE WITH A COPY OF THE RECEIPT. NTI WILL HAVE NO
RESPONSIBILITY TO REPLACE A DISK DAMAGED BY ACCIDENT, ABUSE OR
MISAPPLICATION.
- - IN PARTICULAR, NO WARRANTY IS BEING PROVIDED ON SOFTWARE DEVELOPED BY THIRD
PARTY SOFTWARE SUPPLIERS. SUCH SOFTWARE SUPPLIERS MAKE NO WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE
SOFTWARE. NTI'S SOFTWARE SUPPLIERS DO NOT WARRANT, GUARANTEE OR MAKE ANY
REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE
IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. THE
ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF ANY SUCH SOFTWARE
DEVELOPED BY SOFTWARE SUPPLIERS IS ASSUMED BY YOU. THE EXCLUSION OF IMPLIED
WARRANTIES IS NOT PERMITTED BY SOME JURISDICTIONS. THE ABOVE EXCLUSION MAY
NOT APPLY TO YOU.
- - BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS
MAY NOT APPLY TO YOU. NTI'S AND NTI'S SOFTWARE SUPPLIERS COMBINED LIABILITY
TO YOU FOR ACTUAL DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE
FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE),
PRODUCT LIABILITY OR OTHERWISE), WILL BE LIMITED TO $50.
- - THE RIGHTS AND OBLIGATIONS ARISING UNDER THIS LICENSE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF TEXAS.
CUSTOMER HEREBY AGREES TO ADHERE TO THE TERMS AND
CONDITIONS OF THIS MERIDIAN SOFTWARE LICENSE AGREEMENT:
CUSTOMER SIGNATURE:
------------------------------------
PRINTED NAME:
------------------------------------------
DATE:
---------------------------------------------------
NORTHERN TELECOM INC.
Rick P. Faletti
President, Multimedia Communication Systems
Northern Telecom Inc.
Meridian Software License Version 5.00
Northern Telecom Inc. Products 1994
46
SCHEDULE I
DISCOUNT LEVEL
***** Base Systems
***** Discountable standard products:
- including all discountable products
listed in Schedule B
- including all discountable products
listed in Schedule F
***** Discountable spares and spares kits
Page 47
CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE OMISSIONS.
47
SCHEDULE J
ESCALATION PROCEDURE
1. First point of contact Voicetek Corporation Hotline
2. Second point of contact Technical Support Manager
3. Third point of contact Engineering Manager
4. Fourth point of contact Senior Staff
5. Fifth point of contact Chief Operating Officer
Page 48
48
SCHEDULE F
RESELLER SUPPORT SERVICES
PART I: SOFTWARE PRODUCTS (EXCLUDING GENERATIONS DEVELOPER)
A. VOICETEK shall provide RESELLER SUPPORT SERVICES which shall be
identical in scope to the software support services set forth in
Article XIII together with the additional out-of-warranty HARDWARE
repair services set forth in Part III of this Schedule F to SUPPORT
ORGANIZATION(s) for each ANNUAL SUPPORT SERVICES PERIOD during the TERM
for which NTI, or any NORTHERN TELECOM COMPANY or any MANUFACTURING
LICENSEE, as the case may be, elects to pay the requisite annual fee(s)
for the desired level(s) of service, the available options of which are
enumerated for the respective calendar years as indicated in the tables
below:
RESELLER SUPPORT SERVICES fees for calendar year 1995 are as follows:
Service Level Hours (EDT or Days NTI Price Additional Northern
EST as applicable) Per Week Telecom Company
Direct Support Price
Basic 8:00 a.m. - 6:00 p.m. M-F * *
Optional 7:00 a.m. - 10:00 p.m. M-F * *
Extended
Twenty-four Twenty-four hours M-Su * *
hour
* Not available at this price if NTI is not paying for RESELLER SUPPORT SERVICES
at the time this service is ordered.
Renewal fees for RESELLER SUPPORT SERVICES for calendar year 1996 will be as
follows:
Service Level Hours (EDT or Days NTI Price Additional Northern
EST as applicable) Per Week Telecom Company
Direct Support Price
Basic 8:00 a.m. - 6:00 p.m. M-F * *
Optional 7:00 a.m. - 10:00 p.m. M-F * *
Extended
Twenty-four Twenty-four hours M-Su * *
hour
*Not available at this price if NTI is not paying for RESELLER SUPPORT
SERVICES at the time this service is ordered.
Fees for RESELLER SUPPORT SERVICES can be paid to VOICETEK by NTI and/or
NORTHERN TELECOM COMPANIES and/or MANUFACTURING LICENSEES, as the case
may be, on a quarterly basis. In the event any entity ordering RESELLER
SUPPORT SERVICES elects to pay the requisite fee to VOICETEK on a
quarterly basis, then VOICETEK shall invoice such ordering entity for each
quarterly payment forty-five (45) days prior to the start of each calendar
quarter and such ordering entity shall pay such invoices, pursuant to the
payment terms set forth in Section 8.7.
Renewal fees for RESELLER SUPPORT SERVICES for calendar years 1997 and
beyond will be based on the total software revenue to VOICETEK generated
during the last calendar quarter immediately preceding a now ANNUAL
SUPPORT SERVICES PERIOD. The renewal fees will be as follows:
Previous Quarter Service Level NTI Annual Additional Northern
software revenue Renewal Fee Telecom Company
Direct Support Price
* Basic $* $*
" " " " Optional extended $* $*
Page 38
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
49
" " " " Twenty-four hours ***** *****
***** Basic ***** *****
" " " " Optional extended ***** *****
" " " " Twenty-four hours ***** *****
***** Basic ***** *****
" " " " Optional extended ***** *****
" " " " Twenty-four hours ***** *****
Less than $***** Basic ***** *****
" " " " Optional extended ***** *****
" " " " Twenty-four hours ***** *****
For the purpose of determining how to apply the software revenue levels
set forth in the table above, software revenue generated will be
calculated on all software licenses (development and runtime),
software-only options and the software-only component of hardware/software
packaged PRODUCTS (e.g., ASR, TTS and FAX).
B. Under all service level options, VOICETEK shall provide unlimited
telephone consultation on the use of PRODUCTS including, but not limited
to, advice on use, diagnosis of user problems, diagnosis of possible
problems in PRODUCTS and direction or remedies to be employed until
problems are corrected. POINT RELEASES and UPDATES are to be included at
no additional charge as part of RESELLER SUPPORT SERVICES.
PART II: OUT-OF-WARRANTY HARDWARE REPAIR
A. During an ANNUAL SUPPORT SERVICES PERIOD for which NTI or any NORTHERN
TELECOM COMPANY or MANUFACTURING LICENSEE has/have paid to VOICETEK the
requisite annual fee for any level of RESELLER SUPPORT SERVICES, VOICETEK
shall provide out-of-warranty repair service to such entity on any and all
HARDWARE ordered during the TERM in accordance with the terms set forth in
Section 11.3, provided that such entity (requesting an RMA for
out-of-warranty repair) simultaneously issues to VOICETEK a "no charge"
ORDER. Subsequently, VOICETEK, within three (3) business days following
receipt of the HARDWARE for out-of-warranty repair services, shall provide
to the requesting entity a quotation for the out-of-warranty repair of
such HARDWARE, which quotation may either be accepted or rejected by the
requesting entity.
In the event the out-of-warranty repair quotation is accepted by NTI, or a
NORTHERN TELECOM COMPANY or MANUFACTURING LICENSEE, then the requesting
entity shall issue a change to the applicable "no charge" ORDER which sets
forth the price quoted by VOICETEK for the out-of-warranty repair.
In the event a requesting entity decides not to proceed with the
out-of-warranty repair, then such entity shall direct VOICETEK to return
the out-of-warranty HARDWARE in question to the requesting entity F.O.B.
VOICETEK, freight colled to NTI, or the NORTHERN TELECOM COMPANY or
MANUFACTURING LICENSEE, as the case may be.
NORTHERN TELECOM INC. VOICETEK CORPORATION
By: By: /s/ Sheldon L. Dinkes
------------------------------ ----------------------------
Name: Name: SHELDON L. DINKES
--------------------------- --------------------------
(type/print) (type/print)
Title: Title: President
--------------------------- --------------------------
(type/print) (type/print)
Date: Date: June 20, 1995
--------------------------- --------------------------
APPROVED AS
TO LEGAL FORM
BY: /s/ Joel M.Erickson
-----------------------
16 June 1995
Page 39
CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE OMISSIONS.
50
SCHEDULE F
RESELLER SUPPORT SERVICES
PART I: SOFTWARE PRODUCTS (EXCLUDING GENERATIONS DEVELOPER)
A. VOICETEK shall provide RESELLER SUPPORT SERVICES which shall be
identical in scope to the software support services set forth in
Article XIII together with the additional out-of-warranty HARDWARE
repair services set forth in Part III of this Schedule F to SUPPORT
ORGANIZATION(s) for each ANNUAL SUPPORT SERVICES PERIOD during the TERM
for which NTI, or any NORTHERN TELECOM COMPANY or any MANUFACTURING
LICENSEE, as the case may be, elects to pay the requisite annual fee(s)
for the desired level(s) of service, the available options of which are
enumerated for the respective calendar years as indicated in the tables
below:
RESELLER SUPPORT SERVICES fees for calendar year 1995 are as follows:
Service Level Hours (EDT or Days NTI Price Additional Northern
EST as applicable) Per Week Telecom Company
Direct Support Price
Basic 8:00 a.m. - 6:00 p.m. M-F $********* $**********
Optional 7:00 a.m. - 10:00 p.m. M-F $********* $**********
Extended
Twenty-four Twenty-four hours M-Su $********* $**********
hour
* Not available at this price if NTI is not paying for RESELLER SUPPORT SERVICES
at the time this service is ordered.
Renewal fees for RESELLER SUPPORT SERVICES for calendar year 1996 will be as
follows:
Service Level Hours (EDT or Days NTI Price Additional Northern
EST as applicable) Per Week Telecom Company
Direct Support Price
Basic 8:00 a.m. - 6:00 p.m. M-F $********** $**********
Optional 7:00 a.m. - 10:00 p.m. M-F $********** $**********
Extended
Twenty-four Twenty-four hours M-Su $********** $**********
hour
*Not available at this price if NTI is not paying for RESELLER SUPPORT
SERVICES at the time this service is ordered.
Fees for RESELLER SUPPORT SERVICES can be paid to VOICETEK by NTI and/or
NORTHERN TELECOM COMPANIES and/or MANUFACTURING LICENSEES, as the case
may be, on a quarterly basis. In the event any entity ordering RESELLER
SUPPORT SERVICES elects to pay the requisite fee to VOICETEK on a
quarterly basis, then VOICETEK shall invoice such ordering entity for each
quarterly payment forty-five (45) days prior to the start of each calendar
quarter and such ordering entity shall pay such invoices, pursuant to the
payment terms set forth in Section 8.7.
Renewal fees for RESELLER SUPPORT SERVICES for calendar years 1997 and
beyond will be based on the total software revenue to VOICETEK generated
during the last calendar quarter immediately preceding a now ANNUAL
SUPPORT SERVICES PERIOD. The renewal fees will be as follows:
Previous Quarter Service Level NTI Annual Additional Northern
software revenue Renewal Fee Telecom Company
Direct Support Price
$********** or greater Basic $********* $*********
Page 1
CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE OMISSIONS.
51
" " " " Optional extended [*] [*]
" " " " Twenty-four hours [*] [*]
$[*] Basic [*] [*]
" " " " Optional extended [*] [*]
" " " " Twenty-four hours [*] [*]
$[*] Basic [*] [*]
" " " " Optional extended [*] [*]
" " " " Twenty-four hours [*] [*]
Less than $[*] Basic [*] [*]
" " " " Optional extended [*] [*]
" " " " Twenty-four hours [*] [*]
For the purpose of determining how to apply the software revenue levels
set forth in the table above, software revenue generated will be
calculated on all software licenses (development and runtime),
software-only options and the software-only component of hardware/software
packaged PRODUCTS (e.g., ASR, TTS and FAX).
B. Under all service level options, VOICETEK shall provide unlimited
telephone consultation on the use of PRODUCTS including, but not limited
to, advice on use, diagnosis of user problems, diagnosis of possible
problems in PRODUCTS and direction or remedies to be employed until
problems are corrected. POINT RELEASES and UPDATES are to be included at
no additional charge as part of RESELLER SUPPORT SERVICES.
PART II: OUT-OF-WARRANTY HARDWARE REPAIR
A. During an ANNUAL SUPPORT SERVICES PERIOD for which NTI or any NORTHERN
TELECOM COMPANY or MANUFACTURING LICENSEE has/have paid to VOICETEK the
requisite annual fee for any level of RESELLER SUPPORT SERVICES, VOICETEK
shall provide out-of-warranty repair service to such entity on any and all
HARDWARE ordered during the TERM in accordance with the terms set forth in
Section 11.3, provided that such entity (requesting an RMA for
out-of-warranty repair) simultaneously issues to VOICETEK a "no charge"
ORDER. Subsequently, VOICETEK, within three (3) business days following
receipt of the HARDWARE for out-of-warranty repair services, shall provide
to the requesting entity a quotation for the out-of-warranty repair of
such HARDWARE, which quotation may either be accepted or rejected by the
requesting entity.
In the event the out-of-warranty repair quotation is accepted by NTI, or a
NORTHERN TELECOM COMPANY or MANUFACTURING LICENSEE, then the requesting
entity shall issue a change to the applicable "no charge" ORDER which sets
forth the price quoted by VOICETEK for the out-of-warranty repair.
In the event a requesting entity decides not to proceed with the
out-of-warranty repair, then such entity shall direct VOICETEK to return
the out-of-warranty HARDWARE in question to the requesting entity F.O.B.
VOICETEK, freight collect to NTI, or the NORTHERN TELECOM COMPANY or
MANUFACTURING LICENSEE, as the case may be.
NORTHERN TELECOM INC. VOICETEK CORPORATION
By: /s/ J. Michael Camp By: /s/ Sheldon Dinkes
------------------------------ ----------------------------
Name: J. Michael Camp Name: Sheldon Dinkes
--------------------------- --------------------------
(type/print) (type/print)
Title: Vice President, MBA Title: President
--------------------------- --------------------------
(type/print) (type/print)
Date: 8/31/95 Date: 8-28-95
--------------------------- --------------------------
APPROVED AS
TO LEGAL FORM
BY: /s/ Joel M.Erickson
-----------------------
24 August 1995
Page 2
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATEY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS
52
ADDENDUM
This Addendum ("ADDENDUM") to the OEM Agreement between Northern Telecom Inc.
("NTI") and Voicetek Corporation ("VOICETEK") which was executed on June 16,1995
(the "AGREEMENT") hereby adds the substantive terms of support pertaining only
to the SOFTWARE PRODUCT identified as GENERATIONS Developer and addresses an
upgrade offer pertaining to the SOFTWARE PRODUCTS identified as GENERATIONS and
VRS, respectively. The entirety of the ADDENDUM shall constitute the text of
what shall be called Schedule F-1, which shall be attached to and become a part
of the AGREEMENT as of the date of the latter signature set forth below.
SCHEDULE F-1
PART I: OPTIONAL GENERATIONS DEVELOPER SUPPORT SERVICE AND FEE
A. VOICETEK shall provide to NTI optional support services covering
GENERATIONS Developer which shall be equivalent in scope to RESELLER
SUPPORT SERVICES pertaining to all other SOFTWARE PRODUCTS in
consideration of, and in the event NTI elects to remit NTI's payment of
the requisite annual optional support services fee ("Requisite Annual
Fee"). The Requisite Annual Fee payable for the support of GENERATIONS
Developer shall be calculated by determining the amount equal to seven
percent (7%) of the total of all GENERATIONS Developer software license
fees paid cumulatively by NTI from the EFFECTIVE DATE until the date
upon which NTI notifies VOICETEK of its desire to have VOICETEK
commence the provision of optional support services covering
GENERATIONS Developer. The Requisite Annual Fee for renewing optional
support services covering GENERATIONS Developer shall be determined by
establishing a total of GENERATIONS Developer licenses in place on the
anniversary date of the commencement of optional support services for
GENERATIONS Developer and using the seven percent (7%) multiplier with
the new total of GENERATIONS Developer software license fees.
B. In contrast to the arrangement for RESELLER SUPPORT SERVICES for the
balance of SOFTWARE PRODUCTS, which expressly excludes VERSION RELEASES,
NTI shall receive, when commercially available, a copy of all VERSION
RELEASES for GENERATIONS Developer and for VRS, respectively, released
during any ANNUAL SUPPORT SERVICES PERIOD for which NTI has paid the
Requisite Annual Fee, as described in Paragraph A.
PART II: ONE-TIME UPGRADE OFFER
As part of the AGREEMENT, when the first VERSION RELEASE of the SOFTWARE
PRODUCTS known as GENERATIONS and VRS, respectively, (referred to as 2.1/3.0) to
be released following the EFFECTIVE DATE becomes commercially available from
VOICETEK, VOICETEK will allow NTI six (6) months from the date of NTI's receipt
of a copy of such VERSION RELEASE to migrate NTI's installed base customers to
such VERSION RELEASE at no charge to NTI.
IN WITNESS WHEREOF, the parties hereto have, by their duly authorized
representatives, executed this ADDENDUM to the AGREEMENT as of the day and year
set forth below.
NORTHERN TELECOM INC. VOICETEK CORPORATION
By: /s/ J. Michael Camp By: /s/ Sheldon Dinkes
------------------------------ ----------------------------
Name: J. Michael Camp Name: Sheldon Dinkes
--------------------------- --------------------------
(type/print) (type/print)
Title: Vice President, MBA Title: President
--------------------------- --------------------------
(type/print) (type/print)
Date: 8/31/95 Date: 8-28-95
--------------------------- --------------------------
APPROVED AS
TO LEGAL FORM
BY: /s/ Joel M.Erickson
-----------------------
24 August 1995
Page 1
53
SCHEDULE A
AUTHORIZED TERRITORY
Canada United States (U.S.)
Europe Region CALA Region Asia/Pacific Region
United Kingdom Brazil Australia
France Mexico Bahrain
Holland Chile Hong Kong
Sweden Columbia India
Denmark Argentina Indonesia
Norway Antigua Japan
Iceland Bahamas Kuwait
Germany Barbados Malaysia
Switzerland Br. Virgin Islands Oman
Austria Costa Rica Pakistan
Belgium Dominica China
Finland Dominican Republic Philippines
United Arab Emirates Ecuador Russia
Greece El Salvador Saudi Arabia
Ireland Guadeloupe Singapore
Israel Guatemala South Korea
Italy Honduras Syria
Netherlands Jamaica Taiwan
Poland Jordan Thailand
Portugal Martinique New Zealand
Spain Netherlands Antilles
Turkey St. Kitts & Nevis
Trinidad St. Lucia
Nicaragua St. Vincent
Turks & Caicos Is. Panama
Paraguay
Peru
Puerto Rico
Virgin Islands
U.S. Virgin Islands
NORTHERN TELECOM INC. VOICETEK CORPORATION
By: /s/ John A. Ryan By: /s/ Sheldon L. Dinkes
------------------------------ ----------------------------
Name: John A. Ryan Name: Sheldon L. Dinkes
--------------------------- --------------------------
(type/print) (type/print)
Title: VP/GM, MBA Title: President
--------------------------- --------------------------
(type/print) (type/print)
Date: 2/5/96 Date: January 1, 1996
--------------------------- --------------------------
APPROVED AS
TO LEGAL FORM
BY: /s/ Joel M.Erickson
-----------------------
Page 1