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EXHIBIT 10.4
DISTRIBUTOR AGREEMENT
BETWEEN
ROCKWELL INTERNATIONAL, SSD
AND
VOICETEK CORPORATION
9/26/96
CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE OMISSIONS.
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DISTRIBUTOR AGREEMENT................................................................... 4
RECITALS................................................................................ 4
1.0 SOLE AND ENTIRE AGREEMENT........................................................... 4
2.0 DEFINITIONS......................................................................... 4
3.0 LICENSE AND APPOINTMENT AS RESELLER................................................. 5
4.0 TERM................................................................................ 6
5.0 DUTIES OF VOICETEK.................................................................. 6
6.0 DUTIES OF ROCKWELL.................................................................. 8
7.0 TRADE NAMES, TRADEMARKS AND PRIVATE LABELS.......................................... 9
8.0 PRICING AND DISCOUNTS............................................................... 9
9.0 FIELD TESTING....................................................................... 10
10.0 SALES AND PRE-SALES SUPPORT........................................................ 11
11.0 ORDERING AND DELIVERY.............................................................. 11
12.0 WARRANTY........................................................................... 13
13.0 INDEMNIFICATION.................................................................... 13
14.0 TRAINING........................................................................... 14
15.0 TERMINATION........................................................................ 15
16.0 CONFIDENTIALITY.................................................................... 15
17.0 ESCROW............................................................................. 16
18.0 CUSTOM APPLICATIONS AND SCRIPTING.................................................. 17
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9/26/96
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19.0 LIMITED LIABILITY............................................. 18
20.0 GENERAL TERMS................................................. 18
21.0 SURVIVAL...................................................... 19
EXHIBIT A UNIT PRICE LIST AND DISCOUNT TERMS.............. 21
EXHIBIT B TERRITORY....................................... 22
EXHIBIT C TRAINING AND CONSULTING PRICE SCHEDULE.......... 23
EXHIBIT D CANCELLATIONS................................... 24
EXHIBIT E HARDWARE WARRANTY............................... 25
EXHIBIT F SOFTWARE PROGRAM LICENSE AND WARRANTY........... 26
EXHIBIT G ROCKWELL GENERAL TERMS AND CONDITIONS........... 30
EXHIBIT I VOICETEK SUPPORT SERVICE........................ XX
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DISTRIBUTOR AGREEMENT
This Agreement is made and entered into this 1st day of October, 1996, by and
between VOICETEK CORPORATION, a Massachusetts corporation with its principal
place of business at 19 Alpha Road, Chelmsford, MA 01824 ("VOICETEK") and
ROCKWELL International Corporation, Switching Systems Division, a Delaware
corporation with its principal place of business at 1431 Opus Place, Downers
Grove, Illinois 60515 ("ROCKWELL").
RECITALS
WHEREAS, Rockwell manufactures, markets and sells Automatic Call Distributor
("ACD") products known as Galaxy and Spectrum ACD Systems;
WHEREAS, Voicetek manufactures, markets, and sells certain computer hardware and
licenses certain software families known as Generations which can be used in
connection with the ROCKWELL Galaxy and Spectrum ACD systems:
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree to
enter into this Agreement as follows:
1.0 SOLE AND ENTIRE AGREEMENT
This Agreement, which constitutes the entire agreement between the parties,
supersedes and replaces any and all prior or contemporaneous understandings or
agreements. This Agreement may be amended, modified, or revoked only by a
written instrument executed by both ROCKWELL and VOICETEK.
2.0 DEFINITIONS
As used in this Agreement, the following terms shall have the designated meaning
detailed below:
2.1 "ROCKWELL PRODUCT" shall mean the Galaxy and Spectrum ACDs as the same may
be modified, revised, or enhanced from time to time.
2.2 "VOICETEK SOFTWARE" shall mean the Generations family of software and
firmware (in object code form) as described in Exhibit A including all
modifications, revisions, and enhancements thereto.
2.3 "VOICETEK HARDWARE" shall mean the hardware as listed in Exhibit A,
including all modifications, revisions, and enhancements thereto.
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2.4 "VOICETEK PRODUCT" shall mean the VOICETEK Hardware and the VOICETEK
Software.
2.5 "VOICETEK PRODUCT DOCUMENTATION" shall mean the user documentation for the
VOICETEK Hardware and VOICETEK Software, including but not limited to the
VOICETEK Installation, Training, Users', and Maintenance Manual, release notes
and updated installation instructions and user guides.
2.6 "CUSTOMER" shall mean ROCKWELL'S direct-end users customers to whom
Product(s) are supplied and licensed for internal use, and also shall mean
ROCKWELL's agents appointed for distribution or resale of Product(s), and
referred to in this Agreement as "End User/Agent.
3.0 LICENSE AND APPOINTMENT AS RESELLER
3.1 NON-EXCLUSIVE LICENSE TO ROCKWELL Subject to the terms and conditions
hereinafter set forth, VOICETEK hereby grants to and ROCKWELL hereby accepts
from VOICETEK, an unrestricted worldwide, non-exclusive, and non-transferable
license to resell, directly or indirectly, the VOICETEK Hardware and a
worldwide, non-exclusive and non-transferable license to sublicense the VOICETEK
Software, for use with standalone and networked Rockwell ACD equipment, and/or
applications, to End User/Agent during the term of this Agreement.
3.2 NATURE OF AGREEMENT The license granted in Section 3.1 only grants to
ROCKWELL a license to distribute VOICETEK Software and does not transfer any
right, title or interest to any VOICETEK Software to ROCKWELL or ROCKWELL'S End
User/Agents. VOICETEK will transfer title only to the VOICETEK Hardware. The
VOICETEK Software will be licensed to Rockwell and its End User/Agents on a
right to use in perpetuity basis with all intellectual property rights remaining
the property of VOICETEK. Use of the terms "sell," "license," "purchase,"
"license fees" and "price" will be interpreted in accordance with this Section.
3.3 INDEPENDENT CONTRACTORS The parties have entered into this Agreement solely
as independent Contractors and nothing contained herein shall be construed as
giving rise to a partnership, joint venture, or any other form of business
organization. Nothing contained in this Agreement shall be construed as giving
either party any exclusive rights to any products or technology of the other
party, as all rights and obligations under this Agreement are of a nonexclusive
nature. Subject to their respective confidentiality and related obligations set
forth in this Agreement, each party shall be free to market and sell its
products to and in conjunction with, and disclose its own unrestricted
technology to, competitors of the other party hereto.
3.4 ASSIGNMENT This Agreement is not assignable by either party in whole or in
part without prior written consent of both parties. Such consent shall not be
unreasonably withheld
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by either party. Neither change in ownership or control of either party nor
assignment of this Contract by either party shall be a valid basis for
termination of this Agreement.
3.5 ADDED DEVELOPMENT This Agreement may be altered from time to time by
mutually agreed to tasks for development by the parties. Costs for such
development as well as a definitive statement of the work to be accomplished
will be reduced to writing and signed by both parties in advance of any actual
work accomplishment or payment of funds.
3.6 APPROVAL OF SUBCONTRACTORS It is expressly agreed by the Parties that
VOICETEK intends, where applicable and reasonable, to effect manufacture of
assemblies through contract manufacturers who are ISO 9000 certified/registered.
It is agreed by the Parties that VOICETEK will inform ROCKWELL if VOICETEK
enters into any major long term relationship with a manufacturing contractor who
is not ISO 9000 certified/registered. VOICETEK shall manage subcontractor(s)
issues and to fully execute the Contractual obligations of VOICETEK, including
but not limited to cost and schedule matters, under this Agreement. It is
expressly agreed that VOICETEK may obtain emergency components and assemblies to
support immediate production requirements from vendors VOICETEK deems
appropriate.
4.0 TERM
4.1 The initial term of this Agreement shall be for a period of three (3) years
from the date of execution by both parties and, upon expiration of such term,
shall renew itself for (2) successive periods of one (1) year each unless the
parties mutually agree in writing a minimum of 90 days in advance that the
Agreement shall be canceled.
5.0 DUTIES OF VOICETEK
VOICETEK shall, at its own expense and without remuneration from ROCKWELL,
perform the following during the term and the option period, if exercised, of
this Agreement:
5.1 DEMONSTRATION SETS VOICETEK shall supply for ROCKWELL'S use
for the period of this Agreement, and, upon ROCKWELL request, may continue to
supply during the extensions thereto, one (1) demonstration system and one (1)
application system, complete product documentation, installation instructions,
user manuals, and suitable quantities of sales support materials to perform
application development, and demonstrate the system in ROCKWELL'S demo center.
Up to 50 copies of additional collateral material and 2 manuals may be
reasonably requested by ROCKWELL and be supplied by VOICETEK. All copies will be
updated by VOICETEK within a reasonable time after the effective date of each
release. ROCKWELL at its own expense with prior permission by VOICETEK,
reproduce for internal use only any such printed or electronically recorded
material pertaining to Demonstration Sets and manuals which were
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originally supplied by VOICETEK. VOICETEK may, at its option and its expense,
lease a communication link to establish a connection with ROCKWELL'S test bed,
the use of which shall be coordinated and approved by ROCKWELL in advance.
VOICETEK shall not have access to any embedded software in ROCKWELL'S test bed.
Upon the expiration or termination of the Agreement, each party will return to
the other party in good condition, wear and tear excepted, all supplied hardware
and software. All documentation, whether in hard copy or soft files, shall be
returned by each party to the other party or destroyed, as the other party may
direct.
5.2 MARKETING REPORTS VOICETEK shall provide ROCKWELL on-line or physical
access to reports detailing marketing or technical information on products
competitive comparisons, special sales or service suggestions, competitive
announcements, and new marketing or technical support material for the VOICETEK
Product. VOICETEK shall respond reasonably to all inquiries and reasonable
requests for sales support from ROCKWELL.
5.3 WARRANTY SUPPORT VOICETEK will provide Hardware warranty support to
ROCKWELL'S End User/Agent for a 1 year period of warranty measured from the date
product is installed and accepted or fifteen (15) months from date of shipment
by VOICETEK, which ever period occurs first. Software will be warranted from 90
days after customer acceptance or 180 days from shipment, which ever occurs
first. In the event a Customer chooses to purchase support services directly
from VOICETEK, VOICETEK will also be responsible to take first call during any
warranty period. The procedural steps for warranty service shall be as set forth
in Exhibits E, F and I of this Agreement.
5.4 VOICETEK PRODUCT SUPPORT VOICETEK shall provide to ROCKWELL enhancements
and updates to the VOICETEK Product when changes occur. All proposed
enhancements and updates will be subjected to a reasonable compatibility check
with the ROCKWELL Product prior to release. Such compatibility test shall be
conducted by VOICETEK and verified by ROCKWELL. VOICETEK will provide a Product
Change Notice a minimum of thirty (30) days in advance of a new release or the
deletion of any feature(s). Engineering Change Notices and adequate sustaining
technical support for all interfaces encompassed under this Agreement for its
term shall be provided to ROCKWELL at no cost so long as VOICETEK continues to
support such interfaces.
5.5 PRODUCT DISCONTINUANCE VOICETEK may discontinue the production or
availability of any Product at any time during the term of the Agreement by
twelve (12) months prior written notice. In the event of a Product
discontinuance hereunder, VOICETEK shall at the option of ROCKWELL either
provide substitute Products which under normal and proper use: (i) shall not
materially or adversely affect physical or functional interchangeability or
performance
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(except where there is written agreement between the parties that specific
characteristics will be so affected), (ii) shall not detract from the safety of
the Product or allow ROCKWELL to make an end of cycle buy of such discontinued
product the manufacture of which shall not extend beyond twenty four (24) months
from the time notice is given. VOICETEK agrees to provide repair services of any
such product for a period of five (5) years from date of notification.
6.0 DUTIES OF ROCKWELL
ROCKWELL shall, at its own expense and without remuneration from VOICETEK,
perform the following during the entire period of this Agreement:
6.1 SALES AND MARKETING ROCKWELL shall maintain a sufficient world-wide
marketing and sales program augmented by outside third party sales and marketing
arrangements as Rockwell may determine to be appropriate to sell the VOICETEK
Products, perform all necessary promotion and advertising of the VOICETEK
Products, and use its diligent efforts to effect the maximum amount of gross
sales of the VOICETEK Products. This will include provisions for VOICETEK to
participate in Rockwell sponsored trade shows, user group forums and product
demonstrations subject to availability and approval by Rockwell.
6.2 SALES FORECASTS ROCKWELL shall submit a rolling six-month non-binding sales
forecast as specified in Exhibit A, solely for the purpose of VOICETEK internal
planning.
6.3 TERMS AND CONDITIONS OF RESALE For each unit of the VOICETEK Product sold
ROCKWELL will obtain from End User/Agent its customer a fully executed ROCKWELL
standard General Terms and Conditions of Sale document attached hereto as
Exhibit G. End User/Agents shall receive no interest in the VOICETEK Software
other than a sublicense. Title to the VOICETEK Software shall not be transferred
to End User/Agent. All ROCKWELL End Users will be prohibited from re-license of
the VOICETEK Software or further distribution of the VOICETEK Hardware.
6.4 PRODUCT SUPPORT ROCKWELL will promptly provide information regarding
enhancements and updates of the ROCKWELL Products to the extent they will impact
the operation or functionality of the VOICETEK Product, when such changes occur.
Pertinent Engineering Change Notices and adequate sustaining technical support
shall be provided to VOICETEK at no cost so long as ROCKWELL continues to
support such interfaces.
6.5 ASSIGNMENT OF LIAISON ROCKWELL agrees to assign a technical, service and
sales individual to act as the focal point and liaison with VOICETEK.
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6.6 SEMIANNUAL REVIEWS ROCKWELL agrees to meet with representatives on a
semiannual basis to review the relationship between ROCKWELL and VOICETEK, sales
opportunities, service status and product requirement. This meeting will take
place at a mutually agreed upon time and location, the location to alternate
between each companies facilities.
7.0 TRADE NAMES, TRADEMARKS AND PRIVATE LABELS
7.1 USE OF VOICETEK TRADEMARKS During the term of this Agreement, ROCKWELL
shall have the right to use the trade names and trademarks of VOICETEK applied
to the VOICETEK Products by VOICETEK whether registered or not, in advertising
and promotional literature solely in connection with ROCKWELL's sales of the
VOICETEK Products. Such use shall identify the trade names and trademarks as the
exclusive property of VOICETEK. Upon termination or expiration of this
Agreement, ROCKWELL shall immediately cease and desist from use of all trade
names and trademarks of VOICETEK in any manner whatsoever for new installations.
VOICETEK shall have the same rights to Rockwell Tradenames and Trademarks with
respect to this section, except that such use shall be subject to prior review
and approval by Rockwell.
7.3 PROPRIETARY RIGHTS ROCKWELL acknowledges that VOICETEK owns and retains all
trade names and trademarks and other proprietary rights in or associated with
the VOICETEK Product, and agrees that it will not at any time during or after
this Agreement assert or claim any interest in or do anything that may adversely
affect the validity of, or cause confusion in the ownership of, any Mark or
copyright belonging to or licensed to VOICETEK (including, without limitation,
any act which may infringe or lead to the infringement of any of VOICETEK'S
proprietary rights).
7.4 OBLIGATION TO PROTECT ROCKWELL agrees to use reasonable efforts to protect
VOICETEK's proprietary rights and to cooperate in VOICETEK'S efforts to protect
its proprietary rights. ROCKWELL agrees to promptly notify VOICETEK of any known
or suspected breach of VOICETEK's proprietary rights that comes to ROCKWELL's
attention.
8.0 PRICING AND DISCOUNTS
8.1 PRICE STABILITY * from date the Agreement is signed, after which
VOICETEK may adjust prices for increased production costs, but limited to a
* for the prior year, upon no less than ninety (90) days prior written notice
to ROCKWELL. No such increase shall be effective for any ROCKWELL order accepted
from an End User/Agent or for any proposal to an End User/Agent which was dated
prior to the date notice of such increase was received by ROCKWELL, provided
that ROCKWELL notifies VOICETEK upon receipt of notice of such increase which
End User/Agent orders and/or
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CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE OMISSIONS.
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proposals are outstanding, and provided further that ROCKWELL places all orders
to VOICETEK resulting from such outstanding orders and/or proposals within 180
days of the date notice of such increase was received by ROCKWELL.
8.2 MOST FAVORED CUSTOMER VOICETEK represents that the charges, fees, costs,
and discounts set forth in this Agreement are no less favorable to ROCKWELL than
the most favorable terms given to any other distributor or like type of
strategic alliance with like quantities and commitments and with similar terms
and conditions entered into by VOICETEK as of the Effective Date of this
Agreement. If, during the term of this Agreement, VOICETEK, in its sales to
other End User/Agents, reduces prices for like quantities of the same or
essentially the same component or materials or labor embodied in the VOICETEK
Product under similar terms and conditions to a level below the prices
established by this Agreement and detailed in Exhibit A, then VOICETEK will
immediately adjust its price(s) to ROCKWELL for any open or future orders to
equal the levels charged to such other customer(s) providing ROCKWELL's
purchases represent similar terms, quantities, and conditions.
8.3 DISCOUNTS VOICETEK agrees that sales and licenses of VOICETEK Products to
ROCKWELL shall be at the "ROCKWELL Purchase Price" as detailed in Exhibit A.
VOICETEK agrees to explore and identify cost reduction opportunities in the
Products provided. Any cost savings generated by Voicetek shall be shared in a
reduction in the unit price of the Product supplied under this Agreement,
effective at a mutually agreed upon time.
8.4 ******.
8.5 MAINTENANCE RELEASES Sets of VOICETEK Product Documentation and software
media for all maintenance updates and releases will be provided by VOICETEK
throughout the warranty and maintenance periods as set forth in Exhibits E and
F.
9.0 FIELD TESTING
Upon mutual agreement, VOICETEK and ROCKWELL may jointly conduct a field test of
the VOICETEK Product for a ROCKWELL End User. VOICETEK will provide reasonable
sales, engineering, and marketing support in a close technical working
relationship with ROCKWELL for the designated customer.
10.0 SALES AND PRE-SALES SUPPORT
10.1 JOINT SALES PRESENTATIONS VOICETEK and ROCKWELL mutually agree that it
will be in the best interests of both parties to make joint presentations to End
User/Agent prospects. VOICETEK and ROCKWELL agree that neither party will
unreasonably decline to support joint sales
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS
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presentations. Each party shall be responsible for its respective sales
expenses. Any sales prospect for which ROCKWELL requested joint sales effort
shall not be solicited by VOICETEK alone, unless mutually agreed to in writing.
10.2 PRE-SALES SUPPORT ROCKWELL shall provide primary pre-sales application,
engineering and configuration support for ROCKWELL Products. ROCKWELL shall to
the best of its ability pre-qualify prospective customers of VOICETEK products,
and upon mutual agreement, VOICETEK shall provide pre-sales support to ROCKWELL
at a place and time reasonably requested by ROCKWELL. As described herein, the
term pre-sales shall mean any systems engineering, configuration design,
technical application support related to customer evaluation of the VOICETEK
product prior to submission of an order by a customer. VOICETEK shall provide
and maintain a highly-trained and qualified pre-sales technical capability for
the primary purpose of technically configuring and presenting VOICETEK solutions
to ROCKWELL customers. VOICETEK shall prepare and submit quotations
incorporating final configurations and installation requirements to ROCKWELL'S
Sales Support personnel for their approval prior to any submission of pricing
and availability to ROCKWELL'S customer.
10.3 POST SALES SUPPORT VOICETEK shall provide post-sales support and maintain
a customer support center for any VOICETEK Products(s) described in Exhibit A
sold by ROCKWELL. The term "post-sales" shall mean any activity related to
delivery of warranty services or Product(s) support for VOICETEK Product(s).
VOICETEK will continue to provide the support service detailed in Exhibits E, F
and I for post-Warranty VOICETEK PRODUCT services to all ROCKWELL End
User/Agents for which VOICETEK has authorized an annual maintenance Contract.
VOICETEK will provide said services as may be in effect and offered to its other
End User/Agents at the time of Contract.
11.0 ORDERING AND DELIVERY
11.1 FOB/RISK OF LOSS Prices for the VOICETEK Products are FOB Chelmsford,
Massachusetts. Risk of loss for all VOICETEK Products sold shall pass from
VOICETEK to ROCKWELL upon delivery of the VOICETEK Products to the designated
freight carrier at the FOB point.
11.2 DELIVERY PERIOD VOICETEK shall use its best commercially reasonable
efforts to deliver the VOICETEK Product to the customer site within thirty (30)
days of the date the order is accepted providing that such products are
substantially as forecasted.
11.3 VOICETEK PRODUCT CONFIGURATION & SUPPORT VOICETEK may modify the VOICETEK
Product and availability as detailed in Exhibit A upon ninety (90) days prior
written
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notice to ROCKWELL. VOICETEK shall provide support for any VOICETEK Product sold
and installed under this Contract for a period of not less than five (5) years
from the Effective Date of the contract
11.4 ORDERS ROCKWELL may purchase VOICETEK Products listed in Exhibit A during
the term of this Agreement by written purchase order. Any new product or
applications developed by VOICETEK shall be outside the scope of this agreement
unless they are added to Exhibit A by mutual written consent of the parties.
Each written order shall include (as a minimum): the name of the Product(s)
ordered; VOICETEK Product code(s); price(s) net of the then applicable discount;
quantity(s); and, desired delivery date(s). All purchase orders are subject to
acceptance by VOICETEK. ROCKWELL'S order shall be deemed to have been accepted
unless VOICETEK provides written notice of order rejection within seven (7)
business days after receipt of the ROCKWELL order by Voicetek. ROCKWELL shall
have no obligation to purchase any VOICETEK Products hereunder except to the
extent as may be incorporated in written orders placed subject to this
Agreement. Cancellation or rescheduling of any order is subject to a restocking
fee as specified in Exhibit D.
11.5 TERMS & CONDITIONS OF ORDER All VOICETEK Product(s) ordered by ROCKWELL
from VOICETEK pursuant to this Agreement shall be subject solely to the
provisions of this Agreement and any other provisions in addition to or not
specifically covered by this Agreement shall be governed by ROCKWELL'S standard
purchase order terms and conditions then in effect.
11.6 SHIPMENTS All ordered VOICETEK Product(s) shall be prepared for shipment
in accordance with VOICETEK's standard practices in a manner to assure the
VOICETEK Product is not damaged in transit and shipped using a ROCKWELL approved
carrier listed in ROCKWELL'S routing instructions. ROCKWELL shall pay all
freight costs, however, no shipments will be insured unless specific written
instructions are issued by ROCKWELL prior to shipment.
11.7 INSTALLATION Upon shipment of Products from VOICETEK'S facility, VOICETEK
agrees to assume full responsibility for project management, system programming,
equipment integration, installation and maintenance, as specified on the
ROCKWELL purchase order to VOICETEK, provided Rockwell pays for these services.
11.8 PERMITS & APPROVALS VOICETEK agrees to determine the permits and approvals
necessary to import, export, buy, sell and maintain the VOICETEK Product in a
country for which VOICETEK Product is not approved at the time a marketing
opportunity may present itself. Upon agreement by ROCKWELL and VOICETEK that it
is in the best interest of both parties to do so, VOICETEK shall, at its own
expense, obtain all necessary governmental permits and approvals necessary for
ROCKWELL to import, export, buy, sell and maintain the VOICETEK Product or
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otherwise fully perform its obligations under this Agreement. ROCKWELL agrees to
provide as much advance notice as possible to VOICETEK with regard to new
countries into which ROCKWELL intends to market the VOICETEK Product and to work
with VOICETEK to obtain required approvals.
12.0 WARRANTY
12.1 CONFIGURATION COMPLIANCE VOICETEK warrants the Hardware Products for a
period of (1) year and Software Products for a period of (90) ninety days as
specified in Exhibits A, E and F.
12.2 PRODUCT LICENSE VOICETEK warrants that ROCKWELL or its End User/Agent, as
the case may be, shall acquire a license to the VOICETEK Product(s) (software)
purchased free and clear of all encumbrances.
12.3 LIENS & INFRINGEMENTS VOICETEK warrants that it has and will guarantee to
ROCKWELL or its End User/Agent, the right, title, and interest to convey the
VOICETEK Products free of all liens and encumbrances, and that the VOICETEK
Products or any part thereof, do not infringe on any intellectual property
interest. If at any time VOICETEK shall incur any indebtedness that has become a
lien upon such VOICETEK Products or any part thereof or which may become a claim
against ROCKWELL, VOICETEK shall immediately pay such claim or indebtedness, or
cause such lien to be released and discharged by giving bond or otherwise at
VOICETEK'S sole expense.
12.4 LIMITATIONS Except as expressly provided in this Agreement, all WARRANTIES
shall be void as to any VOICETEK Product damaged or rendered unserviceable by:
improper or inadequate maintenance by anyone other than VOICETEK; unauthorized
modifications or physical or electrical abuse to the VOICETEK Product by anyone
other than VOICETEK; unreasonable refusal to comply with engineering change
notice programs; negligence by other than VOICETEK or VOICETEK'S
representative(s); theft; water or other perils; damage caused by containment
and/or operation outside the environmental specifications; and, alteration or
connection of the VOICETEK Product to other machines, equipment, or devices
(other than VOICETEK'S approved devices) without the prior written approval of
VOICETEK.
13.0 INDEMNIFICATION
13.1 NEGLIGENCE INDEMNIFICATION Each party (the "Indemnitor") hereby
indemnifies and holds the other party (the "Indemnitee"), its directors,
officers, agents and employees harmless against any and all claims, actions and
damages, liabilities or expenses, including attorney's fees and other legal
costs for injury to or death to any person, and for loss of
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or damage to any and all property arising out of the negligent acts or omissions
of the Indemnitor under this Agreement.
13.2 INTELLECTUAL PROPERTY INDEMNIFICATION VOICETEK shall defend, at its
expense, any claim against ROCKWELL alleging that the VOICECTEK Product, or any
part thereof, infringes any patent, copyright, trademark, trade name, trade
secret, mask work, or other intellectual property interest in any country and
shall pay all costs and damages awarded, provided that VOICETEK is promptly
informed in writing and furnished with a copy of each communication, notice, or
other action relating to the alleged infringement and is given authority,
information, and assistance necessary to defend or settle such claim. If an
injunction against ROCKWELL'S use, sale, lease, license, other distribution of
the VOICETEK Product, or any part thereof, results from such a claim (or if
ROCKWELL reasonably believes such an injunction is likely), VOICETEK shall, at
its option, (and in addition to VOICETEK'S other obligations hereunder) (i)
procure for ROCKWELL the right to continue using, selling, leasing, or licensing
the VOICETEK Product or part thereof; (ii) replace such Voicetek Product or
part thereof with non-infringing substitutes otherwise complying substantially
with all the requirements of this Agreement; or (iii) credit the purchase price,
less a charge equal to one-thirty-sixth (1/36) of the purchase price of the
VOICETEK Product for each month that ROCKWELL enjoyed beneficial use, and accept
the return of such equipment. Any unused and unopened stock may be returned for
full credit. The provisions of this section shall not apply to any claim for
infringement resulting solely from VOICETEK'S compliance with ROCKWELL'S
detailed design specifications, where provided. THIS SECTION 13.2 STATES THE
SOLE AND EXCLUSIVE LIABILITY OF THE PARTIES TO THIS AGREEMENT FOR PATENT,
COPYRIGHT, TRADE SECRET, OR OTHER PROPRIETARY RIGHTS INFRINGEMENT AND IS IN LIEU
OF ALL CONDITIONS OR WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, IN REGARD
THERETO.
14.0 TRAINING
14.1 TRAINING VOICETEK will provide training courses as described in Exhibit C.
14.2 TRAINING MATERIALS VOICETEK shall provide ROCKWELL, * to ROCKWELL, with
VOICETEK developed training documentation and materials for the VOICETEK
Products in electronic format for ROCKWELL'S internal training purposes only,
during the term of this Agreement.
CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE OMISSIONS.
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15.0 TERMINATION
15.1 BANKRUPTCY Either party shall have the right to terminate this Agreement
immediately upon written notice in the event either party files or has filed
against it any bankruptcy or similar proceedings or enters into any form of
arrangement with and/or for the benefit of its creditors.
15.2 BREACH In the event either party materially breaches this Agreement, the
non-breaching party may provide written notice of such breach to the other
party. Should the party asserted to be in breach fail to cure such breach within
a period of sixty (60) days from the date of such notice, the non-breaching
party shall have the right to terminate this Agreement immediately upon written
notice to the other party. In addition, if one party commits three (3) or more
material breaches of this Agreement the non-breaching party shall have the right
to terminate this Agreement immediately upon written notice to the breaching
party.
15.3 EFFECT OF TERMINATION Upon the termination or expiration of this
Agreement: (i) each party will return to the other party all of the Confidential
Information received hereunder in such party's possession or control; (ii) in
the event of a Breach, all unshipped orders will automatically be canceled, and
(iii) VOICETEK will have the option, in its sole discretion of electing to offer
support for ROCKWELL'S End User/Agents or permitting ROCKWELL to continue to
provide maintenance and support for the VOICETEK Products to the extent needed
to. provide such services pursuant to a written agreement to be promptly
executed by the parties allowing ROCKWELL to purchase the VOICETEK Hardware and
license the VOICETEK Software only for the purpose of providing such services.
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information for its own account (except in connection with this Agreement),
until and unless such information:
(i) is lawfully disclosed in such manner as is not a
breach of this Section ;
(ii) is otherwise available in the public domain;
(iii) is released from the restrictions imposed in this
Section by written consent of the disclosing party;
(iv) shall be established to have been lawfully known to
the receiving party prior to receipt of such information from
the disclosing party;
(v) is previously and independently developed by the
receiving party, which the receiving party can prove with
written evidence;
(vi) is required to be released by law or such order of a
governmental agency or a court of law or equity.
Each party acknowledge that the Confidential Information contains trade
secrets of the other party, the disclosure of which would cause substantial harm
to such other party that could not be remedied by the payment of damages alone.
Accordingly, each party will be entitled to preliminary and permanent injunctive
relief and other equitable relief for any breach of this Section 16.
17.0 ESCROW
VOICETEK agrees to place with its escrow agent all machine processed and printed
materials, data, and other information constituting the source code and any
documentation for the VOICETEK Software listed in Exhibit A which shall include
but not be limited to all existing user manuals, control procedures, record
layouts, and program listings throughout the term of this Agreement. During the
term of this Agreement, VOICETEK shall deposit with the Escrow Agent the source
code, listings, and related programmer-level documentation for every update,
correction, or new release of the VOICETEK Software released to ROCKWELL or its
End User/Agents in object code form. VOICETEK shall provide that the copy of the
source code placed in the Escrow Agent's vault will be reproduced in a magnetic
medium compatible with the equipment on which ROCKWELL maintains the VOICETEK
Product. When a change is made to the source code by VOICETEK during the term of
this Agreement, the revised source code as well as the immediately preceding
version of the source code shall be deposited by VOICETEK into the Escrow
Agent's vault promptly after the source code has been revised. ROCKWELL shall be
permitted access to the source code solely to provide service ROCKWELL'S
existing customer base, without the need for
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VOICETEK'S concurrence, immediately upon VOICETEK'S failure to support such
VOICETEK Software.
18.0 CUSTOM APPLICATIONS AND SCRIPTING
For custom software application services developed by VOICETEK, on behalf of a
ROCKWELL customer order, VOICETEK shall provide the same quality of
documentation normally developed to support its own customers and a copy of the
software to ROCKWELL, which will enable ROCKWELL to support its customer, if
required.
18.1 ROCKWELL at its option, may provide similar custom application services to
ROCKWELL's customers and will also be responsible for any documentation and
support required.
19.0 LIMITED LIABILITY
19.1 DAMAGES AND LOST PROFITS
REGARDLESS WHETHER ANY REMEDY SET FORTH HEREIN OR IN VOICETEK'S LIMITED WARRANTY
ACCOMPANYING DELIVERY OF VOICETEK PRODUCTS FAILS OF ITS ESSENTIAL PURPOSE OR
OTHERWISE, VOICETEK WILL NOT BE LIABLE FOR ANY LOST PROFITS OR FOR ANY DIRECT,
INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER SPECIAL DAMAGES SUFFERED
BY ROCKWELL, ITS END USER/AGENTS OR OTHERS ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE VOICETEK PRODUCTS, FOR ALL CAUSES OF ACTION OF ANY KIND
(INCLUDING TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, AND BREACH OF WARRANTY)
EVEN IF VOICETEK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
19.2 CUMULATIVE LIABILITY
EXCEPT FOR LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE ARISING FROM
VOICETEK'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL VOICETEK'S
TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR VOICETEK
PRODUCTS, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT,
NEGLIGENCE, STRICT LIABILITY AND BREACH OF WARRANTY, EXCEED THE PRECEDING 12
MONTH DOLLAR VOLUME PURCHASED BY ROCKWELL.
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20.0 GENERAL TERMS
20.1 COMPLIANCE WITH LAWS & RULES In all of their respective operations related
to this Agreement, the parties shall comply with all applicable federal, state,
and local laws, rules, and regulations, including but not limited to export
control laws. Each party also agrees to indemnify and hold harmless the other
party from any and all damages and liabilities assessed against the other party
as a result of party's non-compliance therewith. Any permission required to be
included herein shall be deemed included as a part of this Agreement whether or
not specifically referenced.
20.2 GOVERNING LAW This Agreement and any Purchase Order(s) issued hereunder
shall be governed by and interpreted in accordance with the laws of the
Commonwealth of Massachusetts.
20.3 CONTINUED PERFORMANCE Any dispute arising under this Agreement which is not
resolved by VOICETEK and ROCKWELL shall be decided by a court of law under the
terms of this Section. Pending settlement of the final decision by the court,
each party shall proceed diligently with the performance of the Agreement in
accordance with the other party's direction.
20.4 TAXES, DUTIES, & FEES All amounts payable under this Agreement are
exclusive of all sales, use, value-added, withholding, and other taxes and
duties. ROCKWELL shall be responsible for the payment of, and shall indemnify
and hold harmless VOICETEK from, any and all such taxes, duties, customs
charges, or other costs or charges of any nature arising in any manner out of
the sale, use, storage, or delivery of the VOICETEK Product(s), except taxes
based upon the income of VOICETEK. VOICETEK will be promptly reimbursed by
ROCKWELL for any and all taxes or duties that VOICETEK may be required to pay in
connection with this Agreement or its performance.
20.5 WAIVER No waiver by either party of any default or breach by the other
party of any of the previsions hereof shall constitute a waiver of any prior or
subsequent default or breach hereunder.
20.6 FORCE MAJEURE Neither party shall be liable for failure to perform any of
its obligations under this Agreement during any period in which such party
cannot perform due to matters beyond their control, including, but not limited
to, labor disputes, strike, fire, flood, or other natural disaster, war,
embargo, or riot provided that the party so delayed immediately notifies the
other party of such delay. If VOICETEK'S performance is delayed for these
reasons for a cumulative period of thirty (30) days or more, ROCKWELL may
terminate this Agreement and/or any Purchase Order hereunder by giving VOICETEK
written notice, which termination shall become effective upon receipt of such
notice. If ROCKWELL terminates, its sole liability under this
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Agreement or any Purchase Orders issued hereunder will be to pay any balances
due for conforming Product(s): (a.) delivered by VOICETEK before receipt of
ROCKWELL'S termination notice; and, (b.) ordered by ROCKWELL for delivery and
actually delivered within fifteen (15) days after receipt of ROCKWELL'S
termination notice.
20.7 CONFLICT IN TERMS If any conflict arises with the terms and conditions in
the exhibits or attachments to this document, the terms and conditions contained
within the body of this Distributor Agreement will prevail.
20.8 NOTICES Any notices under this Agreement shall be sent in writing to the
parties at their following addresses, by registered mail, provided either party
may change such address by providing notice of same to the other party:
For VOICETEK:
VOICETEK COMMUNICATIONS INC.
19 Alpha Road
Chelmsford, MA 01824
Telephone: 508-250-7875 Facsimile: 508-250-7926
For ROCKWELL:
ROCKWELL INTERNATIONAL CORPORATION
1431 Opus Place
P.O. Box 1494
Downers Grove, IL 60515
Attn: OEM Supplier Management
Telephone: 708-960-8536 Facsimile: 708-769-1641
20.8 VALIDITY If any provision of this Agreement shall be rendered invalid, then
such invalidity shall not affect the remainder of this Agreement which shall
remain in full force and effect.
20.9 EXHIBITS The Exhibits attached hereto are incorporated into this Agreement
by reference and made a part of this Agreement as though they were recited
herein in their entirety.
21.0 SURVIVAL
The provisions of Sections 1 (Sole and Entire Agreement), 3.2 (Nature of
Agreement), 7 (Trade Names, Trademarks, and Private Labels), 12 (Warranty), 13
(Indemnification), 16 (Confidentiality), 17 (Escrow), 19 (Limited Liability), 20
(General), and this Section 21 (Survival) shall survive termination or
expiration of this Agreement.
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IN CONSIDERATION of the mutual covenants and conditions herein set forth, the
parties have executed this Agreement as of the day and year written below.
VOICETEK CORPORATION ROCKWELL INTERNATIONAL CORP.
By: /s/ Scott Ganson By: /s/ Robert K. Nash
------------------------- ------------------------------
Typed Name: Scott Ganson Typed Name: Robert K. Nash
-------------------- ----------------------
Title: VP Sales Title: Sr. Subcontract Mgr.
-------------------- ----------------------
Date: 10/1/96 Date: 9-26-96
-------------------- ----------------------
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EXHIBIT A UNIT PRICE LIST AND DISCOUNT TERMS
1. Within thirty (30) days of the effective date of this Agreement,
ROCKWELL shall make a good faith estimate (the Forecast) as to ROCKWELL'S likely
sales volume of Products under this Agreement for the first twelve (12) month
period.
2. ROCKWELL agrees to provide VOICETEK with a quarterly six (6) month
forecast within twenty-one (21) calendar days after the start of each new
quarter.
SEE HARD COPY OF CONTRACT EXHIBIT "A" AND PRICE BOOK FOR PRODUCT
LIST AND DISCOUNT SCHEDULE AND TERMS
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EXHIBIT A OCTOBER 1, 1996
Rockwell Telecommunications / Voicetek Corporation
Discount Agreement Terms and Conditions
3 YEAR AGREEMENT
Year Voicetek Sales Volume Discount
1 * from Oct. 1 - Sept 31, 1997 *
* in FY97 *
2 * in FY98 *
3 * in FY99 *
For example: In year two Rockwell successfully sells * of Voicetek
products and services. Rockwell will be entitled to a * discount in year
three. If Rockwell sells * of Voicetek products and services in year two,
the Rockwell discount for year three is *.
The above discount terms are provided under the following conditions:
1. In order to qualify for the above discount terms in the second and third
years, the sales volumes must be met in the prior year or the discount
offered will be * for the following year.
2. *
3. The above discounts will be applied to the current price book in effect at
the date of the agreement.
4. The Voicetek product and services are listed in the price book as
discountable and non-discountable. The following is a sample list of
Voicetek products that qualify for a discount. (This list may not be all
inclusive):
_ *
_ *
_ *
_ *
_ *
_ *
_ *
The following is a sample list of Voicetek products that are not discountable.
(This list may not be all inclusive):
_ *
_ *
_ *
_ * *
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
23
EXHIBIT A OCTOBER 1, 1996
_ *
_ *
_ *
_ *
_ *
_ *
5. Sales of all Voicetek products and services listed in the current
price book catalog apply toward the sales volume levels required for
the discount.
6. Sales of Application Development & Software Consulting will be
discounted to Rockwell at * or * per hour per the current
price list.
7. Spares will be discounted at the rate of *.
8. Sales of Voicetek maintenance and software support agreements will be
discounted to Rockwell based on Voicetek Sales volume as follows:
Year Voicetek Sales Volume Discount
1 * from Oct. 1 - Sept 31, 1997 *
* in FY97 *
2 * in FY98 *
Sales above * *
3 * in FY 99 *
sales above * *
CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE OMISSIONS.
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EXHIBIT B TERRITORY
ROCKWELL will have the non-exclusive rights to market the Product
worldwide under its own label or VOICETEKS' label subject to the terms and
conditions set forth in this Agreement.
COMPLIANCE WITH THE LAW
In General. If ROCKWELL markets the Products outside the United States, ROCKWELL
will be solely responsible, and agrees to comply with all laws, rules,
regulations, orders, decrees, judgments and other governmental acts of the
United States of America and any country or territory, and their political
subdivisions and agencies, that may be applicable to the ROCKWELL and its
activities hereunder. This includes without limitation any approval,
registration or testing of the Products for this Agreement in which VOICETEK has
not received such approvals or registration. VOICETEK expressly agrees that
VOICETEK shall be solely responsible for identification of and compliance with
any applicable laws, rules, regulations, orders, decrees, and regulatory
requirements of any nature in any area named by ROCKWELL which is in addition to
the areas covered by Exhibit J providing the parties have agreed to obtain such
approvals as described in Article 11.7 of the main Agreement. VOICETEK shall be
under no obligation to ship Products to ROCKWELL for marketing outside the U.S.
until ROCKWELL has provided VOICETEK with satisfactory evidence that such
approval, registration or testing is not required or that it has been obtained.
ROCKWELL shall indemnify and hold VOICETEK harmless for any loss or damages
suffered by VOICETEK as a result of ROCKWELL'S failure to comply with this
section. This indemnity shall continue in force whether or not VOICETEK asks
ROCKWELL to verify its compliance with any laws or regulations before shipping
Products.
United States Export Laws. ROCKWELL acknowledges and agrees that the Products
and other technical data delivered by VOICETEK are subject to the United States
Export Administration Act of 1979, as amended (the "Act") and all the
regulations promulgated thereunder.
Taxes. ROCKWELL shall remit 100 percent (100%) of the fees owed to VOICETEK
without the deduction of withholding, customs, import or export, or other taxes.
VOICETEK agrees to provide ROCKWELL with a list of all relevant approvals or
certifications received by VOICETEK.
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EXHIBIT C
Training
INITIAL TRAINING
VOICETEK will provide a one day training session in the United States for
ROCKWELL sales and marketing personnel at *. ROCKWELL is responsible
for travel and living expenses of VOICETEK personnel assigned to perform this
training. Training will be conducted at a site mutually agreed upon.
ROCKWELL personnel may attend up to a total of 10 class seats in VOICETEK'S
scheduled classes at *. Additional class seats will be made available at *. A
limit of up to two (2) ROCKWELL personnel may attend the same class at the same
time. ROCKWELL is responsible for their own travel and living expenses. If this
training is held at ROCKWELL facilities, travel expenses as incurred by
VOICETEK will be invoiced.
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
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EXHIBIT D CANCELLATIONS
1. Cancellation policy:
a) Less than 31 days prior to scheduled shipment date - *
b) Less than 60 days prior to scheduled shipment date - *
c) Less than 90 days prior to scheduled shipment date - *
2. Return Authorization for warranty returns on stock updates shall be
accomplished by following the procedures outlined in Exhibit E.
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
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EXHIBIT E HARDWARE WARRANTY
1. All Product is warranted to perform, when given normal, proper and
intended usage, substantially in accordance with the published release
specifications for each Product and, except for Licensed Software, against
defects in materials and workmanship.
2. VOICETEK warrants that all hardware Product delivered shall be free from
defects under normal use in material and workmanship for a period of one
(1) year from customer acceptance. VOICETEK shall, at its option replace or
repair, free of charge, any equipment covered by this warranty which shall
be returned to the original shipping point, transportation charges prepaid,
within one (1) year from the date of customer acceptance. If material upon
examination proves to be damaged due to an accident, misuse, neglect,
alteration, improper installation, repair, or improper testing, the
warranty will not be applicable and voided. If VOICETEK elects to repair or
replace such equipment, VOICETEK shall have reasonable time to make such
repairs or replace such equipment. This warranty shall not apply to any
equipment, or parts thereof, which has been repaired or altered, without
VOICETEK'S written consent, by anyone other than VOICETEK'S employees or
trained personnel, or has not been operated in accordance with VOICETEK'S
printed instructions or has been operated under conditions more severe
than, or otherwise exceeding, those set forth in the specifications for
such equipment.
3. If during the stated warranty period any defect in material, or workmanship
is discovered in any Product covered by the above warranty, VOICETEK shall,
at the request of ROCKWELL, immediately advance replacement of any such
products provided that (a) VOICETEK is promptly notified in writing
immediately upon discovery of such defect, which notice shall contain a
detailed explanation of any alleged deficiency, (b) such Product is
returned to VOICETEK no more than fifteen (15) days after issuance of a
return material authorization (RMA) by VOICETEK, freight prepaid to
VOICETEK'S Customer Service Department, and (c) VOICETEK is satisfied upon
examination that claimed deficiencies actually exist and were not caused by
accident, misuse, neglect, alteration, improper installation, improper
repair, improper testing, lightning, power surges, fire, flood, or
earthquake. Unauthorized modification or unauthorized or improper
alteration of Products shall invalidate this warranty. If the failed
product is not returned within fifteen (15) days to VOICETEK, ROCKWELL
will be invoiced at the then current discounted List Price and ROCKWELL
agrees to pay such invoice.
4. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS AGREEMENT, VOICETEK
DISCLAIMS ALL WARRANTIES ON PRODUCTS FURNISHED UNDER THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE; AND THE EXPRESS WARRANTIES IN THIS
AGREEMENT ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON THE PART OF
VOICETEK ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THE
PRODUCT. THE FOREGOING WARRANTIES EXTEND ONLY TO ROCKWELL AND SHALL NOT BE
ASSIGNABLE TO ANY OTHER PARTY.
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EXHIBIT F SOFTWARE PROGRAM LICENSE AND WARRANTY
1. LICENSE
1.1 Subject to the following terms and conditions VOICETEK grants to ROCKWELL
and ROCKWELL accepts a perpetual, non-exclusive license to use the object code
software provided by VOICETEK (the Software Product only within VOICETEK
equipment with all copyright, patent and intellectual property rights remaining
the sole property of VOICETEK.
1.2 ROCKWELL shall receive software support and upgrades for the Software
Product in accordance with the applicable then current VOICETEK software support
policy in effect and upon payment of any applicable discounted software
maintenance fees, should ROCKWELL elect to implement the upgrades.
2. PROTECTION AND SECURITY OF SOFTWARE PRODUCTS
2.1 ROCKWELL acknowledges and agrees that the Software Product contains
proprietary and confidential information of VOICETEK and/or its third party
supplier. ROCKWELL agrees to protect the confidential and proprietary nature of
the Software Product in the same manner that it protects its own confidential
information of like value, provided that ROCKWELL will in all cases use
reasonable care to protect the Software Product.
2.2 ROCKWELL shall not use, print, copy, translate, adapt, create derivative
works from, record, transmit, display, disclose, publish, encumber by way of
security interest or otherwise pledge or transfer, modify, assign, distribute,
rent, loan or make available to any third party the Software Product in whole or
in part, except as expressly provided in this Agreement.
2.3 ROCKWELL shall refrain from and shall prevent others from decompiling or
applying any procedure to the Software Product, including reverse engineering or
any similar process, in order to derive and/or appropriate for use, the source
code or source listings for the Software Product.
3. TERM
3.1 This Agreement shall become effective for each Software Product upon
delivery of the Software Product to ROCKWELL.
3.2 VOICETEK may terminate this Agreement and the license upon notice to
ROCKWELL if any amount payable by ROCKWELL in respect of any of the Software
Products is not paid in accordance with Article 8.4 of the main Contract, or if
ROCKWELL otherwise breaches any provision of this Agreement and fails to cure
such breach within thirty (30) days of notice thereof, or if ROCKWELL becomes
bankrupt, makes an assignment for the benefit of creditors or a trustee is
appointed for ROCKWELL, or if the assets of ROCKWELL vest in or become subject
to the rights of any trustee, receiver, board, tribunal, commission or any body,
corporate or person, other than ROCKWELL, or if bankruptcy, reorganization or
insolvency proceedings are instituted against ROCKWELL and are not dismissed
within 30 days.
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4. LIMITED WARRANTIES
4.1 VOICETEK warrants for a period of 90 days, from the date when the Software
Product is successfully installed and accepted at a customer's site, or 180 days
from date of shipment, whichever occurs first, that it substantially conforms to
the functional specifications and shall be substantially free from errors,
provided, however, that this warranty shall apply only to those portions of the
Software Product, or its replacement, that incorporate all programs corrections
and Enhancements, if any, delivered to ROCKWELL, and provided, further that its
warranty shall not apply to any physical form or part thereof which has been
abused or misused, or which shall have been modified by End-user/Agent except as
supplied by VOICETEK.
VOICETEK'S sole obligation hereunder shall be to remedy
any such non-conformance of the software Product when reported to VOICETEK by
End-user/Agent and this shall be completed in accordance with exhibit I, after
VOICETEK has agreed that the product does not meet VOICETEK'S specifications.
4.2 THE WARRANTY SET OUT IN SECTION 4.1 SHALL CONSTITUTE THE SOLE LIABILITY OF
VOICETEK AND THE SOLE REMEDY OF ROCKWELL FOR ANY FAILURE OF ANY PROGRAM TO
FUNCTION AS WARRANTED.
4.3 EXCEPT AS EXPRESSLY PROVIDED HEREIN THERE ARE NO WARRANTIES, CONDITIONS OR
REPRESENTATIONS EXPRESS OR IMPLIED BY STATUTE, USAGE, CUSTOM OF THE TRADE OR
OTHERWISE WITH RESPECT TO THE SOFTWARE PRODUCTS PROVIDED BY VOICETEK HEREUNDER,
INCLUDING BUT NOT LIMITED TO, WARRANTIES OR REPRESENTATIONS OF WORKMANSHIP,
MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR DURABILITY,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VOICETEK DOES NOT WARRANT THAT
THE SOFTWARE PRODUCT WILL MEET ALL OF ROCKWELL'S NEEDS OR THAT OPERATION OF THE
SOFTWARE PRODUCT WILL BE ERROR FREE.
5. LIMITATION OF LIABILITY
5.1 IN NO EVENT WHATSOEVER, REGARDLESS OF THE FORM OR CAUSE OF ACTION WHETHER IN
CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR THE NUMBER OF CLAIMS ASSERTED, SHALL
VOICETEK, ITS EMPLOYEES, DIRECTORS, OFFICERS AND AGENTS TOTAL COLLECTIVE
LIABILITY TO ROCKWELL FOR ALL CLAIMS EXCEED THE AMOUNT PAID UNDER THIS AGREEMENT
FOR THE SOFTWARE PRODUCT THAT IS THE SUBJECT MATTER OF OR THAT IS DIRECTLY
RELATED TO CAUSE OF ACTION, PROVIDED THAT IN NO EVENT SHALL THE TOTAL COLLECTIVE
LIABILITY OF VOICETEK, ITS EMPLOYEES, OFFICERS, AGENTS AND DIRECTORS EXCEED THE
AMOUNT PAID TO VOICETEK PURSUANT TO THIS AGREEMENT.
5.2 VOICETEK, ITS EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS SHALL NOT BE LIABLE
IN ANY WAY WHATSOEVER, WHETHER AS A RESULT OF A CLAIM OR
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ACTION IN CONTRACT OR TORT, INCLUDING NEGLIGENCE OR OTHERWISE FOR ANY INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS OR
LOST BUSINESS REVENUE, LOST BUSINESS, FAILURE TO REALIZE EXPECTED SAVINGS, OR
OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND WHATSOEVER, OR FOR ANY DAMAGES,
DIRECT OR INDIRECT, SPECIAL OR CONSEQUENTIAL ARISING OUT OF ANY CLAIM AGAINST
ROCKWELL BY ANY PERSON WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE AND WHETHER
OR NOT VOICETEK, ITS EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES WHICH ARE IN ANY WAY RELATED TO THIS
AGREEMENT OR THE SOFTWARE PRODUCT.
5.3 THE FOREGOING PROVISIONS LIMITING THE LIABILITY OF VOICETEK EMPLOYEES,
AGENTS, OFFICERS AND DIRECTORS SHALL BE DEEMED TO BE TRUST PROVISIONS FOR THE
BENEFIT OF SUCH EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS AND SHALL BE
ENFORCEABLE BY SUCH AS TRUST BENEFICIARIES.
6. PATENT, COPYRIGHT, TRADE NAME AND TRADE SECRET INFRINGEMENT
6.1 VOICETEK shall defend any suit alleging the infringement of any patent,
copyright or trade secret which is brought against ROCKWELL on account of its
use of the Software Product and shall pay all reasonable legal costs and
expenses incurred by ROCKWELL in conjunction therewith and satisfy all monetary
judgments and decrees against ROCKWELL, provided that ROCKWELL notifies VOICETEK
within ten (10) business days of the date any such claim becomes known to
ROCKWELL, that VOICETEK shall have sole control of the defense or settlement of
such actions, and that ROCKWELL provides such assistance and cooperation to
VOICETEK as is reasonably requested.
6.2 In the event ROCKWELL is enjoined from its use of VOICETEK'S Software
Product due to proceeding based upon any infringement of any patent, copyright
or trade secret, VOICETEK shall either:
(i) promptly render the Software Product non-infringing and
capable of providing services as intended, or
(ii) procure for ROCKWELL the right to continue using the Software
Product, or
(iii) replace the Software Product with a non-infringing version, or
(iv) remove the Software Product and refund the purchase price,
less a monthly usage fee equal to one sixtieth of the license
for each month that ROCKWELL has had use of the Software
Product.
6.3 The foregoing constitutes the entire liability of VOICETEK to ROCKWELL with
respect to infringement of patents, copyrights, and trade secrets for Products
purchased pursuant to this Agreement and VOICETEK hereby disclaims any implied
warranty of non-infringement.
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7. MISCELLANEOUS
7.1 Notwithstanding anything else in this Exhibit, VOICETEK shall not, in any
way whatsoever, be held liable or responsible for any failure by it to meet its
obligations or responsibilities under this Exhibit where such failure results
from causes beyond VOICETEK'S reasonable control.
7.2 This Exhibit constitutes the entire understanding between VOICETEK and
ROCKWELL with respect to the licensing of the Software Products to ROCKWELL by
VOICETEK and supersedes all prior oral and written communications with respect
to the Software Products licensed under this Exhibit. This Exhibit may be
amended or modified only by means of a written Agreement signed by both VOICETEK
and ROCKWELL.
7.3 If any provision of this Exhibit shall be held to be invalid, illegal or
unenforceable, such provision shall be served therefrom and the validity,
legality or enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
7.4 ROCKWELL shall comply with all export regulations pertaining to the Software
Product in effect from time to time. In particular, without limiting the
generality of the foregoing, ROCKWELL hereby warrants that it will not directly
or indirectly export, re-export or transship the Software Product or such other
information, media or products in violation of or otherwise in contravention of
the export laws, rules and regulations.
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