Exhibit 10.12
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (the "Agreement"), executed as of _March 1, 1999 (the
"Effective Date"), is between MATRIX Telecom, Inc. a Texas corporation
("Licensee"), and Electronic Data Systems Corporation, a Delaware corporation
("EDS").
ARTICLE I - GRANT
1.1 GRANT OF LICENSE TO THE LICENSED PROGRAMS. Subject to the terms and
conditions set forth in this Agreement, EDS grants to Licensee a
non-exclusive, non-transferable license:
(a) to use as provided in this ARTICLE I on the equipment
designated by type, model and serial number in SCHEDULE 1.1 (the
"Designated Equipment") and at the location designated in SCHEDULE
1.1 (the "Designated Location") one copy, in object code form, of
EDS' proprietary computer software programs more specifically
described in SCHEDULE 1.1 (such programs, including all new releases
thereof and modifications thereto which are provided to Licensee
under this Agreement, are referred to herein as the "Licensed
Programs"); and
(b) to use as provided in this ARTICLE I the documentation
relating to the Licensed Programs, including user manuals, narrative
descriptions, output reports, training materials and technical
manuals setting forth specifications for the Licensed Programs,
including all new releases thereof and modifications made thereto
which are provided to Licensee under this Agreement (collectively,
the "Documentation"). Such right of use will include Licensee's
reproduction of that number of copies of the Documentation
reasonably required in Licensee's operations.
1.2 DELIVERY AND TERM. EDS will deliver to Licensee the Licensed Programs and
the Documentation at the Designated Location on or before June 1, 1999 or
such other date agreed to by the parties in writing. The term of this
License will begin on the earlier of (a) the date EDS completes
installation of the Licensed Programs and furnishes Licensee written
notification of such completion, or (b) the date the Licensed Programs
first processes Licensee's Billable Messages to Licensee's reasonable
satisfaction (the "Installation Date"), and will continue for sixty (60)
months (the "License Term") unless earlier terminated pursuant to Article
VII. For purposes of this Agreement, a "Billable Message" means records of
those mutually agreed upon and legally permitted (i) telephone calls
originated by end-users through Licensee, or (ii) other services provided
by Licensee to Licensee's end-users. The original License Term will
automatically extend for successive one-year periods thereafter unless
either party notifies the other at least ninety days prior to the end of
the
original License Term or prior to the end of any such one-year extension
period, as the case may be, that this Agreement will not be so extended.
1.3 OWNERSHIP. For purposes of Section 117 of the Copyright Act of 1976, as
amended, and for all other purposes, EDS will be considered the owner of
the Licensed Programs, the Documentation and any copies thereof and of all
copyright, trade secret, patent and other intellectual or industrial
property rights contained or evidenced therein. Physical copies of the
Licensed Programs (in diskette, tape or other form provided by EDS) and
the Documentation will remain the property of EDS, and all such copies
will be deemed to be on loan to Licensee during the License Term.
1.4 RESTRICTIONS ON USE. Licensee will comply with the provisions set forth in
this SECTION 1.4 during the License Term.
(a) The Licensed Programs and the Documentation will be utilized only
for the internal data processing requirements of Licensee and only
as specified in the Documentation.
(b) The Licensed Programs and the Documentation will be utilized (i)
only by Licensee employees and/or Licensee agents who are directly
involved in the use and operation of the Licensed Programs and who
are bound by written agreement to comply with the confidentiality
obligations set forth in this Agreement, and (ii) only on the
Designated Equipment at the Designated Location. EDS reserves the
right to prohibit such utilization by specific individuals to whom
EDS has reasonable objection.
(c) With thirty days prior written notification to EDS, Licensee may
change the Designated Location or the composition or configuration
of the Designated Equipment (including the manufacturer,
description, model number or serial number of the Designated
Equipment) during the License Term.
(d) Licensee may transfer its use of the Licensed Programs to a backup
system on a temporary basis for disaster recovery purposes. ARTICLES
II and III will not apply to any such temporary backup system usage
of the Licensed Programs. If the usage of the backup system must
exceed a reasonable temporary period, the backup system will be
considered the new Designated Equipment and the location of the
backup system will be considered the new Designated Location, and
Licensee will give EDS written notification thereof.
(e) Licensee may not cause or permit disclosure, display, loan,
publication, transfer of possession (whether by sale, exchange,
gift, operation of law or otherwise), sublicensing or other
dissemination of the Licensed Programs or the Documentation, in
whole or in part, to any third party without the prior written
consent of EDS.
(f) Licensee will not, and will not permit any other person under
Licensee's control to, disassemble, decompile, reverse engineer or
otherwise recreate or modify the Licensed Programs. Licensee will
not, and will not permit any other person under Licensee's control
to, copy or reproduce the Licensed Programs or the Documentation,
except as may be necessary for backup and disaster recovery purposes
as specified in SECTION 1.4(D).
(g) Licensee will not alter or remove any copyright, trade secret,
patent, proprietary and/or other legal notices contained on or in
any EDS provided copies of the Licensed Programs or the
Documentation. Licensee will include on or in all copies authorized
hereunder of the Licensed Programs and the Documentation
designation(s) that EDS may reasonably require to indicate that such
material is the proprietary property of EDS.
(h) The Licensed Programs and the Documentation are being disclosed by
EDS to Licensee in confidence. Licensee will implement and maintain
precautions, no less rigorous than those Licensee uses to protect
its own confidential information, to safeguard the Licensed Programs
and the Documentation so that no unauthorized persons have access to
the Licensed Programs or the Documentation and that no persons
authorized to have such access will take any action which would
violate the confidentiality obligations set forth in this Agreement
if such action were taken by Licensee. Licensee will promptly report
to EDS any violation of such confidentiality obligations. Licensee
will, at its expense, take such steps as EDS may reasonably request
to remedy any such violation, including retrieving any portion of
the Licensed Programs or the Documentation that is being used or
otherwise possessed in breach of this Agreement, and will pay or
reimburse EDS for all reasonable expenses that EDS incurs which are
related to the remedy of any such violation.
(i) In using or possessing the Licensed Programs and the Documentation,
Licensee will not, by any action or inaction, violate laws or
regulations promulgated by governmental or quasi-governmental
authorities or cause EDS or its affiliates to violate any such laws
or regulations.
1.5 INJUNCTIVE RELIEF. Licensee acknowledges and agrees that the Licensed
Programs and the Documentation are the valuable property and trade secrets
of EDS, that any violation by Licensee of the confidentiality obligations
set forth in this Agreement would cause EDS irreparable injury for which
they would have no adequate remedy at law, and that, in addition to any
other remedies which EDS may have, it will be entitled to preliminary and
other injunctive relief against any such violation.
1.6 VERIFICATION. EDS may conduct, at EDS' expense, an investigation to
determine Licensee's compliance with the terms of this Agreement. No more
often than twice each year during the License Term, with reasonable notice
to Licensee, EDS or its designated representative
may have access to the Designated Location, the Designated Equipment and
any records (in whatever form) related to this Agreement and Licensee's
use of the Licensed Programs and the Documentation. Licensee will
cooperate with EDS in any such investigation and, in particular, will take
all commercially reasonable actions to assist EDS in accurately
determining Licensee's compliance with the terms of this Agreement.
ARTICLE II - INSTALLATION, TRAINING, MAINTENANCE AND ADDITIONAL
SERVICES
2.1 INSTALLATION ASSISTANCE. EDS will provide to Licensee installation
assistance at EDS' then current time and material rates as Additional
Services in accordance with SECTION 2.4; provided, however, that EDS will
be relieved of its obligation to provide installation assistance unless
and until Licensee has fulfilled its obligation to acquire and install
required hardware and software pursuant to SECTIONS 5.2 and 5.3. EDS
estimates such assistance to take 1,600 hours.
2.2 TRAINING. EDS will provide to Licensee training with respect to the use
and operation of the Licensed Programs at EDS' then current time and
material rates as Additional Services in accordance with SECTION 2.4. EDS
estimates such training to take 40 hours.
2.3 MAINTENANCE.
(a) MAINTENANCE SERVICES. During the License Term, EDS will promptly
repair or replace the then current release of the Licensed Programs
if it is not performing in accordance with applicable Documentation
in all material respects upon receiving notice of the nonperformance
from Licensee as described below. The methods and techniques for
resolving nonperformance will be at the reasonable discretion of
EDS. If the Designated Equipment can be accessed remotely through
dial-up capability or otherwise, Licensee will make such remote
access capability available to EDS for use in performing maintenance
services. EDS will have no obligation to repair or replace the
Licensed Programs if the nonperformance is caused by computer
equipment malfunction, Licensee's negligence or fault, Licensee's
failure to follow instructions as set forth in the applicable
Documentation, improper or unauthorized use of the Licensed
Programs, hardware changes, changes in any software not provided by
EDS or any other cause beyond the control of EDS; provided, however,
that EDS will provide Licensee with assistance in resolving any
nonperformance resulting from such causes as Additional Services
pursuant to SECTION 2.4. As part of the maintenance to be provided
by EDS, EDS also will support, in the manner described in this
SECTION 2.3, one major release (such major releases to be made no
more frequently than semi-annually) of the Licensed Programs
previous to the then current major release of the Licensed Programs
in anticipation of Licensee eventually using the then current
release. Upgrades to a release will always be to the most recent
release. EDS may provide maintenance
services for releases of the Licensed Programs older than those
described in the preceding sentence in accordance with SECTION
2.4 hereof, however Licensee will continue to be subject to the
maintenance service fees specified in SECTION 4.2.
(b) NOTICE; REMEDY. To obtain the maintenance services described above,
Licensee must provide EDS with the following: (i) notice of the
operating problem; (ii) a detailed description of the failure to
perform in accordance with the applicable Documentation in all
material respects; (iii) a detailed description of the operating
conditions, including the specific hardware/software configuration,
under which such failure to perform occurred; and (iv), if
applicable, a representative sample of inputs and outputs for
replicating and analyzing such failure to perform. If, after using
commercially reasonable efforts to repair or replace the then
current release of the Licensed Programs so that it performs in
accordance with the Documentation in all material respects, EDS is
unable to make such repairs or replacement, Licensee's sole remedy
will be the refund of the maintenance service fees paid to EDS by
Licensee for the twelve months immediately preceding EDS'
determination that it is unable to so repair or replace, and this
Agreement will terminate either, at Licensee's discretion, (i) in
its entirety, or (ii) as it pertains to the nonoperable module(s)
with an appropriate reduction in maintenance service fees, as
applicable. Such choice by Licensee will be made within sixty (60)
days of the determination that EDS is unable to so repair or
replace.
(c) NEW RELEASES. From time to time, EDS may, in its sole discretion,
make updates, improvements or changes to the Licensed Programs in
separate releases to the Licensed Programs which are designed to
enhance the functionality of the Licensed Programs; provided,
however, that EDS has no obligation to make any such updates,
improvements or changes. During the License Term and at no
additional charge, EDS will make all new releases available to
Licensee which are generally made available by EDS at no additional
charge to other licensees of the Licensed Programs. During the
License Term, any data conversions or site specific code developed
by EDS for Licensee that require retrofitting to any new releases to
the Licensed Programs will be provided by EDS as Additional Services
pursuant to SECTION 2.4.
2.4 ADDITIONAL SERVICES. Licensee may from time to time request that EDS
provide support or services which are beyond the scope or amount of
support or services required of EDS under this Agreement ("Additional
Services"). EDS will provide to Licensee such Additional Services for
which the parties have reached a written agreement regarding (a) the
nature and scope of the Additional Services, (b) the time period during
which EDS will provide the Additional Services, and (c) the basis upon
which EDS will be compensated therefor based upon commercially reasonable
rates. Any developments, improvements, modifications, additions or
enhancements made by or for EDS to the Licensed Programs will be and will
remain solely EDS' property. New software developed or created by EDS
pursuant to this Agreement will be and will remain solely EDS' property
unless the parties otherwise agree in writing prior to such development or
creation being undertaken.
ARTICLE III - WARRANTY
3.1 RIGHTS IN LICENSED PROGRAMS. EDS warrants that it has all right, title,
ownership interest, marketing and/or sublicensing rights necessary to
grant the rights and license to Licensee set forth herein.
3.2 NONPERFORMANCE OF LICENSED PROGRAMS. EDS warrants that on the Installation
Date the Licensed Programs will be capable of performing in accordance
with the Documentation in all material respects. EDS will resolve any
failure of the Licensed Programs to perform in compliance with the
Documentation in all material respects in accordance with the terms and
conditions set forth in SECTION 2.3.
3.3 YEAR 2000. EDS represents that, when installed, the Licensed Programs will
be Year 2000 Compliant and that the Maintenance Services as specified in
SECTION 2.3 will include any updates, modifications or enhancements
necessary so that the Licensed Programs will continue to be Year 2000
Compliant. For purposes of this Agreement, "Year 2000 Compliant" means
that the Licensed Programs (i) will operate and produce data on and after
January 1, 2000 (including taking into effect that such year is a leap
year), accurately and without delay, interruption or error relating to the
fact that the time at which and the date on which the Licensed Programs is
operating is on or after 12:00 a.m. on January 1, 2000 (including taking
into effect that such year is a leap year), or (ii) will accept,
calculate, process, maintain, write and output, accurately and without
delay, interruption or error, all times or dates, or both, whether before,
on or after 12:00 a.m. on January 1, 2000 (including taking into effect
that such year is a leap year), and any time periods determined or to be
determined based on any such times or dates, or both. EDS will not be
responsible or penalized for any adverse impact on Licensee, services
performed hereunder or any service levels resulting from any software,
systems, hardware and related equipment, data, interfaces or processes of
Licensee or any third party not being Year 2000 compliant or from any
inaccuracies, delays, interruptions or errors as a result of receiving
data in two digit year date or other formats that are not Year 2000
Compliant from other software, systems, hardware and related equipment,
interfaces or processes or from third parties.
3.4 DISCLAIMER. EDS does not warrant that the functions contained in the
Licensed Programs will meet Licensee's requirements or, except as
otherwise specified in this ARTICLE III, that the operation of the
Licensed Programs will be uninterrupted or error free. Further, EDS will
have no responsibility with respect to the accuracy of Licensee's data
files. The remedy of Licensee under SECTION 2.3 is exclusive, and EDS'
liability for all matters relating to this ARTICLE III will be limited as
provided herein. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS ARTICLE
III, EDS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, TO
LICENSEE OR TO ANY OTHER
PERSON, INCLUDING ANY WARRANTIES REGARDING TITLE, THE MERCHANTABILITY,
SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE
(IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALINGS BETWEEN THE PARTIES OR
CUSTOM OR USAGE OF TRADE) OF ANY SERVICES, SOFTWARE OR MATERIALS PROVIDED
UNDER THIS AGREEMENT.
ARTICLE IV - PAYMENTS TO EDS
4.1 LICENSE FEE. There will be no license fee payable by Licensee to EDS
hereunder.
4.2 MAINTENANCE SERVICE FEE: For the maintenance services provided pursuant to
Section 2.3, Licensee will pay to EDS monthly maintenance fees as follows:
from the Installation Date through December 31, 1999, $15,000.00; for
2000, $18,000.00; for 2001, $20,700.00; for 2002, $23,805.00; after 2002
EDS may increase such monthly maintenance fee on an annual basis, but in
an incremental amount not to exceed fifteen percent (15%). The foregoing
notwithstanding, in the event that Licensee's monthly processing of
Billable Messages exceed 150,000,000, EDS reserves the right to
renegotiate subsequent annual maintenance fees.
4.3 OUT-OF-POCKET EXPENSES. Licensee will pay, or reimburse EDS for, all
actual out-of-pocket costs and expenses incurred by EDS in connection with
EDS' performance of its obligations under this Agreement with the prior
written approval of Licensee, including the travel, meals and lodging
expenses incurred by EDS personnel performing the installation assistance,
training, maintenance services and any Additional Services hereunder.
4.4 TIME FOR PAYMENT. Except as otherwise expressly provided herein, any
amount due EDS pursuant to this Agreement will be due and payable by
Licensee within thirty days after the date of an invoice from EDS. Any
amount owing to EDS pursuant to this Agreement that is not paid when due
and payable will thereafter bear interest until paid at a rate of interest
equal to four percent per annum more than the prime rate established from
time to time by Citibank, N.A. in New York, New York; provided, however,
that in no event will such interest rate exceed the maximum rate of
interest allowed by applicable law.
4.5 TAXES. There will be added to any charges under this Agreement, or
separately billed, and Licensee will either pay to EDS, or reimburse EDS
for the payment of, any taxes, assessments, duties, permits, fees and
other charges of any kind, however designated, assessed, charged or
levied, with respect to or measured by (a) charges under this Agreement,
(b) this Agreement, or (c) the services, software, equipment, materials or
other property (tangible or intangible), or the use thereof or the
resources used therefor, that are provided under this Agreement. Taxes
payable under this Agreement include state and local sales taxes, use
taxes, property taxes, telecommunications taxes, privilege taxes, excise
taxes (including federal excise taxes), value added taxes and any taxes or
amounts in lieu thereof paid or payable by EDS in respect of the
foregoing, exclusive however, of taxes based on
the net income of EDS. EDS and Licensee will cooperate to minimize and
properly calculate any applicable taxes, and in connection therewith,
Licensee will provide EDS any resale certificates, information regarding
out-of-state use of materials, services or sales or other exemption
certificates or information reasonably requested by EDS. EDS will have
sole control over the response to and settlement of any claims for taxes
that may be asserted by applicable taxing authorities. Licensee will be
entitled to any refunds or rebates of taxes granted to the extent such
refunds or rebates are of taxes that were paid by Licensee.
ARTICLE V - OTHER LICENSEE OBLIGATIONS
5.1 SELECTION, USE AND RESULTS. Licensee accepts responsibility, financial and
otherwise, for (i) the selection of the Licensed Programs to achieve the
desired results, (ii) the installation of the Licensed Programs (with
assistance from EDS as provided in SECTION 2.1), (iii) the use of the
Licensed Programs, and (iv) the results obtained from the Licensed
Programs. The foregoing will in no way limit warranties made by EDS in
ARTICLE III.
5.2 Q-TEL 9000 SOFTWARE. Licensee will, at its expense, (i) acquire a license
from United Communication Group for the Q-TEL 9000 software, (ii) install
or cause to be installed such software prior to delivery of the Licensed
Programs , and (iii) thereafter arrange for the maintenance of such
software during the License Term or any extensions thereof.
5.3 OPERATING ENVIRONMENT. Licensee will, at its expense, (i) acquire hardware
and associated operating system software specified by EDS to support the
Licensed Programs, (ii) install or cause to be installed such hardware and
software prior to the delivery of the Licensed Programs, and (iii)
thereafter arrange for any required maintenance for such hardware and
software during the License Term or any extensions thereof.
5.4 LICENSEE REPRESENTATIVE. Licensee will designate an officer or employee of
Licensee (the "Licensee Representative") who will be authorized to act
generally as the primary point of contact for EDS in dealing with Licensee
with respect to the Licensed Programs and any services performed
hereunder. If Licensee fails to expressly designate a Licensee
Representative, the principal executive officer of Licensee will be the
Licensee Representative. The Licensee Representative will be responsible
for directing, insofar as EDS is concerned, all activities of Licensee
affecting the provision by EDS of the Licensed Programs and related
services, including working with EDS to establish Licensee's priorities
for any services to be performed hereunder.
5.5 RELIANCE ON INSTRUCTIONS. In performing its obligations under this
Agreement, EDS will be entitled to rely upon any routine instructions,
authorizations, approvals or other information provided to EDS by the
Licensee Representative or, as to areas of competency specifically
identified by the Licensee Representative, by any other Licensee personnel
identified by the Licensee Representative, from time to time, as having
authority to provide the same on behalf of Licensee in such person's area
of competency. Unless EDS knew of any error, incorrectness or inaccuracy
in such instructions, authorizations, approvals or other information, EDS
will incur no liability or responsibility of any kind in relying on or
complying with any such instructions, authorizations, approvals or other
information.
5.6 PRIORITIES AND COOPERATION. Licensee will cooperate with EDS in good faith
in the performance of Licensee's activities contemplated by this Agreement
through, but not limited to, (a) establishing priorities for the services
to be provided to Licensee, and (b) making available, as reasonably
requested by EDS, such information, facilities, management
decisions, approvals, authorizations and acceptances so that EDS'
provision of the Licensed Programs and related services may be
accomplished in a proper, timely and efficient manner.
5.7 FACILITIES. Licensee will, at no cost to EDS, provide EDS personnel or
agents who are performing implementation, training or Additional Services
on-site at Licensee's facilities the following items or services to the
extent reasonably required for EDS to effectively provide such services or
Additional Services hereunder: space, office furnishings, janitorial
service, parking, computer hardware, computer software, voice
communication services, data communication services, utilities (including
heat and air conditioning), office-related equipment (such as telephones,
file cabinets and desks), supplies, duplicating and facsimile equipment,
training facilities and premises security services.
5.8 OTHER FINANCIAL OBLIGATIONS. In addition to any other financial
responsibilities of Licensee contemplated by this Agreement, Licensee will
pay all costs and expenses related to each item that is to be provided by
Licensee pursuant to this Agreement and for which the financial
responsibility has not been expressly assigned to EDS.
5.9 LICENSEE SPECIFIC SOFTWARE MODIFICATIONS. The parties acknowledge and
agree that Licensee will be responsible for (i) any retrofitting,
recoding, reengineering and ongoing maintenance of any and all Licensee
specific software modifications existing as of the Effective Date of this
Agreement as well as any such modifications made by Licensee subsequent to
the Effective Date of this Agreement, and (ii) any and all modifications
required to make such Licensee specific software modifications Year 2000
Compliant. Such modifications and retrofitting, recoding and reengineering
thereof will be done in such a way so as not to affect or impact the
source code or operations of the Licensed Programs.
ARTICLE VI - ARBITRATION
6.1 DISPUTE ESCALATION. In the event of any dispute, controversy or claim of
any kind or nature arising under or in connection with this Agreement
(including disputes as to the creation, validity, interpretation, breach
or termination of this Agreement) (a "Dispute"), then upon the written
request of either party, each of the parties will appoint a designated
senior business executive whose task it will be to meet for the purpose of
endeavoring to resolve the Dispute. The designated executives will meet as
often as the parties reasonably deem necessary in order to gather and
furnish to the other all information with respect to the matter in issue
which the parties believe to be appropriate and germane in connection with
its resolution. Such executives will discuss the Dispute and will
negotiate in good faith in an effort to resolve the Dispute without the
necessity of any formal proceeding relating thereto. The specific format
for such discussions will be left to the discretion of the designated
executives but may include the preparation of agreed upon statements of
fact or written statements of position furnished to the other party. No
formal proceedings for the resolution of the Dispute under SECTION 6.2 may
be commenced until the earlier to occur of (a) a good
faith conclusion by the designated executives that amicable resolution
through continued negotiation of the matter in issue does not appear
likely, or (b) the fifteenth day after the initial request to negotiate
the Dispute.
6.2 ARBITRATION. Any Dispute that the parties are unable to resolve through
escalation pursuant to SECTION 6.1 will be submitted to arbitration in
accordance with the following procedures:
(a) DEMAND FOR ARBITRATION; LOCATION. Either party may demand
arbitration by giving the party written notice to such effect, which
notice will describe, in reasonable detail, the facts and legal
grounds forming the basis for the filing party's request for relief
and will include a statement of the total amount of damages claimed,
if any, and any other remedy sought by that party. The arbitration
will be held before one neutral arbitrator in Plano, Texas if the
proceedings are initiated by Licensee and in Fort Worth, Texas if
the proceedings are initiated by EDS.
(b) IDENTIFICATION OF ARBITRATOR. Within thirty days after the other
party's receipt of such demand, the parties will mutually determine
who the arbitrator will be. If the parties are unable to agree on
the arbitrator within that time period, the arbitrator will be
selected by the American Arbitration Association ("AAA"). In any
event, the arbitrator will have a background in, and knowledge of,
the information technology services industry and will be an
appropriate person based on the nature of the Dispute. If a person
with such industry experience is not available, the arbitrator will
be chosen from the large and complex case panel or, if an
appropriate person is not available from such panel, the retired
federal judges pool.
(c) CONDUCT OF ARBITRATION. The arbitration will be governed by the
Commercial Arbitration Rules of the AAA, except as expressly
provided in this SECTION 6.2 However, the arbitration will be
administered by any organization mutually agreed to in writing by
the parties. If the parties are unable to agree on the organization
to administer the arbitration, it will be administered by the AAA.
Pending the arbitrator's determination of the merits of the Dispute,
either party may apply to any court of competent jurisdiction to
seek injunctive or other extraordinary relief.
(d) SCOPE OF DISCOVERY. Discovery will be limited to the request for and
production of documents, depositions and interrogatories.
Interrogatories will be allowed only as follows: a party may request
the other party to identify by name, last known address and
telephone number (i) all persons having knowledge of facts relevant
to the Dispute and a brief description of that person's knowledge,
(ii) any experts who may be called as an expert witness, the subject
matter about which the expert is expected to testify, the mental
impressions and opinions held by the expert and the facts known by
the expert (regardless of when the factual information was acquired)
which relate to or form the basis for the mental impressions and
opinions held by the expert, and (iii) any experts who have been
used for consultation, but who are not expected to be called as an
expert witness, if such consulting expert's opinions or
impressions have been reviewed by an expert witness. All discovery
will be guided by the Federal Rules of Civil Procedure. All issues
concerning discovery upon which the parties cannot agree will be
submitted to the arbitrator for determination.
(e) AUTHORITY OF ARBITRATOR. In rendering an award, the arbitrator will
determine the rights and obligations of the parties according to the
substantive and procedural laws of the State of Texas. The
arbitrator will not have authority to award damages in excess of the
amount or other than the types allowed by SECTION 8.2 and may not,
in any event, make any ruling, finding or award that does not
conform to the terms and conditions of this Agreement.
(f) JOINDER OF PARTIES. Each of EDS and Licensee agree that it will use
commercially reasonable efforts to join (and will allow the other
party to join) any third party that the parties have agreed is
indispensable to the arbitration. If any such third party does not
agree to be joined, the arbitration will proceed nonetheless.
(g) AWARD. The decision of, and award rendered by, the arbitrator will
be final and binding on the parties. Upon the request of a party,
the arbitrator's award will include written findings of fact and
conclusions of law. Judgment on the award may be entered in and
enforced by any court of competent jurisdiction. Each party will
bear its own costs and expenses (including filing fees) with respect
to the arbitration, including one-half of the fees and expenses of
the arbitrator.
6.3 EXCLUSIVE REMEDY. Other than those matters involving injunctive or other
extraordinary relief or any action necessary to enforce the award of the
arbitrator, the parties agree that the provisions of this ARTICLE VI are a
complete defense to any suit, action or other proceeding instituted in any
court or before any administrative tribunal with respect to any Dispute or
the provision of the Licensed Programs or related services by EDS. Nothing
in this ARTICLE VI prevents the parties from exercising their rights to
terminate this Agreement in accordance with ARTICLE VII.
6.4 CONTINUED PERFORMANCE. Unless (a) EDS has commenced a proceeding or has
presented a claim pursuant to this ARTICLE VI for nonpayment by Licensee
of amounts due under this Agreement, or (b) this Agreement has been
terminated in accordance with ARTICLE VII, EDS will continue to provide
services during any mediation or arbitration proceedings commenced
pursuant to this ARTICLE VI and Licensee will continue to perform its
obligations (including the making of payments to EDS) in accordance with
this Agreement.
ARTICLE VII - TERMINATION
7.1 TERMINATION FOR CAUSE. Subject to SECTION 9.12, if either party materially
defaults in the performance of any of its duties or obligations under this
Agreement (excluding a default in payments to be made to EDS, which will
be governed by SECTION 7.2), which default is not substantially cured
within fifteen days after written notice is given to the defaulting party
specifying the default, or, with respect to those defaults that cannot
reasonably be cured within fifteen days, if the defaulting party fails to
proceed within fifteen days to commence curing said default and thereafter
to proceed with all reasonable diligence substantially to cure the same,
then the non-defaulting party may, by giving written notice thereof to the
defaulting party, terminate this Agreement as of the date of receipt by
the defaulting party of such notice or as of a future date specified in
such notice of termination.
7.2 TERMINATION FOR NONPAYMENT. If Licensee defaults in the payment when due
of any amount due to EDS pursuant to this Agreement and does not cure such
default within fifteen days after being given written notice of such
default, then EDS may, by giving written notice thereof to Licensee,
terminate this Agreement as of the date of receipt by Licensee of such
notice or as of a future date specified in such notice of termination.
7.3 TERMINATION FOR BANKRUPTCY AND RELATED EVENTS. Subject to Title 11, United
States Code, if either party becomes or is declared insolvent or bankrupt,
is the subject of any proceedings relating to its liquidation, insolvency
or for the appointment of a receiver or similar officer for it, makes an
assignment for the benefit of all or substantially all of its creditors or
enters into an agreement for the composition, extension or readjustment of
all or substantially of its obligations, then the other party may, by
giving written notice thereof to such party, terminate this Agreement as
of a date specified in such notice of termination.
7.4 TERMINATION FOR REGULATORY EVENT. Either party may terminate this
Agreement if any statute, rule, regulation, interpretation, judgment,
order or injunction will have been enacted, enforced, promulgated,
amended, issued or deemed applicable to (a) either party or any of its
affiliates or (b) this Agreement or the transactions contemplated by this
Agreement, by any Governmental Authority that renders illegal, or
materially inhibits the performance of this Agreement by EDS. To terminate
this Agreement pursuant to this SECTION 7.4, the party seeking such
termination will give written notice thereof to the other party at least
thirty days prior to the date on which such party desires to terminate
this Agreement.
7.5 Termination by Licensee Without Cause. At any time after the third
anniversary of the Installation Date, Licensee may terminate this
Agreement for any reason or no reason upon (i) ninety days prior written
notice to EDS, and (ii) payment of fifty percent (50%) of the maintenance
fees that would have been payable to EDS pursuant to Section 4.2 during
the twelve month period immediately following the effective date of such
termination.
7.6 RIGHTS UPON TERMINATION. Upon expiration or termination of the License
Term for any reason, then, in addition to any other rights which either
party may have, Licensee will promptly return to EDS all copies of the
Licensed Programs and the Documentation in Licensee's possession and
completely erase the Licensed Programs and all elements thereof from the
Designated Equipment and any other Licensee computer system, and upon EDS'
request, will execute and deliver to EDS a written certification that
Licensee has complied with the provisions of this SECTION 7.6 and no
longer retains any material relating to the Licensed Programs or the
Documentation. In addition, Licensee will pay EDS for all
services provided and expenses incurred through the date of such
expiration or termination. Upon expiration or termination of this
Agreement, Licensee will retain all Licensee's data. The expiration or
termination of the License Term for any reason will not release either
party from any liabilities or obligations set forth herein which (a) the
parties have expressly agreed will survive any such expiration or
termination, or (b) remain to be performed or by their nature would be
intended to be applicable following any such expiration or termination.
Should Licensee require access to the Licensed Programs post termination,
EDS agrees to provide such access in good faith upon terms consistent with
the terms of this Agreement; provided, however, that such commitment by
EDS to provide such post termination access will is conditioned upon EDS'
commercially reasonable capability to do so.
ARTICLE VIII - INDEMNIFICATION, REMEDIES AND LIABILITY
8.1 INDEMNITIES.
(a) CLAIMS RELATING TO PERSONAL INJURY AND PROPERTY DAMAGE.
(i) GENERAL. EDS and Licensee each will be responsible for any and
all claims, actions, damages, liabilities, costs and expenses,
including reasonable attorneys' fees and expenses
(collectively, "Losses"), to their respective tangible
personal or real property (whether owned or leased), and each
party agrees to look only to its own insuring arrangements (if
any) with respect to such Losses. EDS and Licensee each will
be responsible for Losses for the death of or personal injury
to any person (including any employee of either party) and
Losses for damages to any third party's tangible personal or
real property (whether owned or leased), in accordance with
the law of the jurisdiction in which such Loss is alleged to
have occurred. Subject to SECTIONS 8.1(D) and 8.2, each party
will indemnify and defend the other party and hold the other
party harmless from any and all Losses arising out of, under
or in connection with claims for which the indemnitor is
responsible under the preceding sentence.
(ii) WAIVER OF SUBROGATION. EDS and Licensee waive all rights to
recover against each other for any Losses to their respective
tangible personal property (whether owned or leased) from any
cause covered by insurance maintained by each of them,
including their respective deductibles or self-insured
retentions. EDS and Licensee will cause their respective
insurers to issue appropriate waivers of subrogation rights
endorsements to all property insurance policies maintained by
each party. Each party will give the other written notice if a
waiver of subrogation is unobtainable or obtainable only at
additional expense. If the party receiving such notice agrees
to reimburse the other party for such additional expense, the
other party will obtain such
waiver of subrogation. If a waiver is unobtainable or if a
party elects not to pay the additional expense of a waiver,
then neither party nor their insurers will waive such
subrogation rights.
(b) INFRINGEMENT CLAIMS.
(i) GENERAL. Subject to SECTIONS 8.1(D) and 8.2 and the
limitations set forth below in this SECTION 8.1(B), EDS and
Licensee each agree to defend the other party against any
action to the extent that such action is based upon a claim
that the software (other than third party software) or
confidential information provided by the indemnitor, or any
part thereof, (i) infringes a copyright perfected under United
States statute, (ii) infringes a patent granted under United
States law, or (iii) constitutes an unlawful disclosure, use
or misappropriation of another party's trade secret. The
indemnitor will bear the expense of such defense and pay any
damages and attorneys' fees that are attributable to such
claim finally awarded by a court of competent jurisdiction.
(ii) EXCLUSIONS. Neither EDS nor Licensee will be liable to the
other for claims of indirect or contributory infringement. In
particular, the indemnitor will have no liability to the
indemnitee hereunder if any claim of infringement is based
upon the use of software provided by the indemnitor hereunder
in a manner for which the software was not designed. Also, the
indemnitor will have no liability if the indemnitee modifies
any software provided by the indemnitor hereunder and such
infringement would not have occurred but for such
modification, or uses the software in the practice of a
patented process and there would be no infringement in the
absence of such practice, or such claim arises out of the
indemnitor's compliance with specifications provided by the
indemnitee and such infringement would not have occurred but
for such compliance.
(iii) ADDITIONAL REMEDY. If software or confidential information
becomes the subject of a claim under this SECTION 8.1(B), or
in the indemnitor's opinion is likely to become the subject of
such a claim, then, in addition to defending the claim and
paying any damages and attorneys' fees as required above in
this SECTION 8.1(B), the indemnitor will either (A) replace or
modify the software or confidential information to make it
noninfringing or cure any claimed misuse of another's trade
secret, or (B) procure for the indemnitee the right to
continue using the software or confidential information
pursuant to this Agreement. Any costs associated with
implementing either of the above alternatives will be borne by
the indemnitor but will be subject to SECTION 8.2. If neither
option is available to the indemnitor through the use of
reasonable, diligent efforts, (x) the indemnitee will return
such software or confidential information to the indemnitor
and (y) if requested by the
indemnitee in good faith, the Parties will negotiate, pursuant
to ARTICLE VI but subject to SECTION 8.2, to reach a written
agreement on what, if any, monetary damages (in addition to
the indemnitor's obligation to defend the claim and pay any
damages and attorneys' fees as required above in this SECTION
8.1(B) are reasonably owed by the indemnitor to the indemnitee
as a result of the indemnitee no longer having use of such
software or confidential information.
(c) THIRD PARTY INDEMNIFICATION OF EDS. Without limiting EDS' liability
to Licensee under this Agreement, each of the parties acknowledge
that by entering into and performing its obligations under this
Agreement EDS will not assume and should not be exposed to the
business and operational risks associated with Licensee's business,
and Licensee therefore agrees, subject to SECTIONS 8.1(D), to
indemnify and defend EDS and hold EDS harmless from any and all
third party Losses arising out of the conduct of Licensee's
business.
(d) PROCEDURES. The indemnification obligations set forth in this
SECTION 8.1 will not apply unless the party claiming indemnification
(i) notifies the other promptly in writing of any matters in respect
of which the indemnity may apply and of which the notifying party
has knowledge in order to allow the indemnitor the opportunity to
investigate and defend the matter; provided, however, that the
failure to so notify will only relieve the indemnitor of its
obligations under this SECTION 8.1 if and to the extent that the
indemnitor is actually prejudiced thereby; and (ii) gives the other
party full opportunity to control the response thereto and the
defense thereof, including any agreement relating to the settlement
thereof; provided, however, that the indemnitee will have the right
to (i) participate in any legal proceeding to contest and defend a
claim for indemnification involving a third party, (ii) to be
represented by legal counsel of its choosing, and (iii) be party to
any settlement agreement of such a claim, all at the indemnitee's
cost and expense. However, if the indemnitor fails to promptly
assume the defense of the claim, the party entitled to
indemnification may assume the defense at the indemnitor's cost and
expense.
(e) The indemnitor will not be responsible for any settlement or
compromise made without its consent, unless the indemnitee has
tendered notice and the indemnitor has then refused to assume and
defend the claim and it is later determined that the indemnitor was
liable to assume and defend the claim. The indemnitee agrees to
cooperate in good faith with the indemnitor at the request and
expense of the indemnitor.
8.2 LIABILITY.
(a) GENERAL LIMITATION. EDS' liability for all damages arising out of or
related to this Agreement, regardless of the form of action that
imposes liability, whether in contract, equity, negligence, intended
conduct, tort or otherwise, will be limited to
and will not exceed, in the aggregate for all claims, actions and
causes of action of every kind and nature, an amount equal to the
total amounts paid by Licensee to EDS in the twelve months
immediately preceding the event giving rise to such damages, then
divided by twelve, and then multiplied by three.
(b) EXCLUSIONS. Except for EDS' loss of income or profits related to
Licensee's breach of the provisions of SECTION 1.4, in no event will
the measure of damages payable by a party include, nor will either
party be liable for, any amounts for loss of income, profit or
savings or indirect, incidental, consequential, exemplary, punitive
or special damages of any party, including third parties, even if
such party has been advised of the possibility of such damages in
advance, and all such damages are expressly disclaimed.
(c) EXCEPTIONS TO LIMITATIONS. The limitation set forth in SECTIONS 8.2
(A) will not apply to EDS's liability to the extent such liability
results from a claim under SECTION 8.1(B), nor to amounts due
Licensee pursuant to SECTION 2.3(B).
(d) DUTY TO MITIGATE. Each party has a duty to mitigate the damages that
would otherwise be recoverable from the other pursuant to this
Agreement by taking appropriate and reasonable actions to reduce or
limit the amount of such damages.
(e) CONTRACTUAL STATUTE OF LIMITATIONS. No claim and demand for
mediation or arbitration or cause of action which arose out of an
event or events which occurred more than two years prior to the
filing of a demand for mediation or arbitration or suit alleging a
claim or cause of action may be asserted by either party against the
other.
(f) ACKNOWLEDGMENT. The Parties expressly acknowledge that the
limitations and exclusions set forth in this SECTION 8.2 have been
the subject of active and complete negotiation between the Parties
and represent the Parties' agreement taking into account each
party's level of risk associated with the performance or
nonperformance of its obligations under this Agreement and the
payments and other benefits to be derived by each party pursuant to
this Agreement. The provisions of this SECTION 8.2 will survive the
expiration or termination of this Agreement for any reason.
ARTICLE IX - MISCELLANEOUS
9.1 OTHER CONFIDENTIAL INFORMATION. In addition to the terms and conditions of
SECTION 1.4, the parties will comply with the confidentiality obligations
set forth in this SECTION 9.1.
(a) SCOPE OF OBLIGATION. Except as otherwise expressly provided in this
Agreement, EDS and Licensee each agree that (i) all information
communicated to it by the other
and identified as confidential, whether before or after the date
hereof, (ii) all information identified as confidential to which it
has access in connection with this Agreement, whether before or
after the date hereof, and (iii) this Agreement and the parties'
rights and obligations hereunder, will be and will be deemed to have
been received in confidence and will be used only for purposes of
this Agreement, and each of EDS and Licensee agrees to use the same
means as it uses to protect its own confidential information, but in
no event less than reasonable means, to prevent the disclosure and
to protect the confidentiality thereof. No such information will be
disclosed by the recipient party without the prior written consent
of the other party; provided, however, that each party may disclose
this Agreement and the other party's confidential information to
those of the recipient party's attorneys, auditors (including the
Federal Communications Commission), insurers (if applicable), agents
and full time employees who have a need to have access to such
information in connection with their employment (or engagement, if
applicable) by the recipient party, so long as the recipient party
advises each such person of the confidentiality obligations set
forth in this SECTION 9.1. In any event, compliance by each of the
persons referenced in the preceding sentence with the
confidentiality obligations set forth in this SECTION 9.1 will
remain the responsibility of the party employing or engaging such
persons. The foregoing will not restrict either party from
disclosing this Agreement in a filing with the United States
Securities and Exchange Commission, if required to do so.
(b) EXCEPTIONS. The foregoing will not prevent either party from
disclosing information that belongs to such party or (i) is already
known by the recipient party without an obligation of
confidentiality other than under this Agreement, (ii) is publicly
known or becomes publicly known through no unauthorized act of the
recipient party, (iii) is rightfully received from a third party,
(iv) is independently developed without use of the other party's
confidential information or (v) is disclosed without similar
restrictions to a third party by the party owning the confidential
information. If confidential information is required to be disclosed
pursuant to a requirement of a governmental authority, such
confidential information may be disclosed pursuant to such
requirement so long as the party required to disclose the
confidential information, to the extent possible, provides the other
party with timely prior notice of such requirement and coordinates
with such other party in an effort to limit the nature and scope of
such required disclosure. If confidential information is required to
be disclosed in connection with the conduct of any mediation or
arbitration proceeding carried out pursuant to ARTICLE VI, such
confidential information may be disclosed pursuant to and in
accordance with the approval and at the direction of the mediator or
arbitrator, as the case may be, conducting such proceeding. Upon
written request at the expiration or termination of the License Term
for any reason, all documented confidential information (and all
copies thereof) owned by the requesting party will be returned to
the requesting party or will be destroyed, with written
certification thereof being given to the requesting party. The
provisions of this SECTION 9.1 will survive the expiration or
termination of the License Term for
any reason.
9.2 RIGHT TO ENGAGE IN OTHER ACTIVITIES. Nothing in this Agreement will impair
EDS' right to acquire, license, market, distribute, develop for itself or
others or have others develop for EDS similar technology performing the
same or similar functions as the technology and services contemplated by
this Agreement.
9.3 INDEPENDENT CONTRACTORS. The parties are independent contractors, and this
Agreement will not be construed as constituting either party as partner,
joint venturer or fiduciary of the other or to create any other form of
legal association that would impose liability on one party for the act or
failure to act of the other or as providing either party with the right,
power or authority (express or implied) to create any duty or obligation
of the other. Except as otherwise expressly provided in this Agreement,
each party has the sole right and obligation to supervise, manage,
contract, direct, procure, perform or cause to be performed all work to be
performed by it pursuant to this Agreement.
9.4 HIRING OF EMPLOYEES. During the License Term and for a period of twelve
months thereafter, neither party will solicit, directly or indirectly, for
employment nor employ any employee of the other party actively involved in
the performance, consumption or evaluation of services under this
Agreement without the prior written consent of the other party.
9.5 ENTIRE AGREEMENT. This Agreement (including the Schedules and Exhibits
attached hereto, each of which is incorporated into this Agreement by this
reference) constitutes the full and complete statement of the agreement of
the parties with respect to the subject matter hereof and supersedes any
previous agreements, understandings or communications, whether written or
oral, relating to such subject matter. The foregoing notwithstanding,
Licensee agrees to continue payment of monthly maintenance fees to EDS in
accordance with the provisions of that certain IXPLUS License Agreement
(as amended) between the parties dated April 23, 1991 until the
Installation Date of the Licensed Programs hereunder.
9.6 AMENDMENTS; WAIVER. Changes or modifications to this Agreement may not be
made orally, but only by a written amendment or revision signed by the
parties. Any terms and conditions varying from this Agreement on any
order, invoice or other notification from either party are not binding on
the other unless specifically accepted by the other. Unless otherwise
expressly provided in this Agreement, a delay or omission by either party
to exercise any right or power under this Agreement will not be construed
to be a waiver thereof. No waiver of any breach of any provision of this
Agreement will constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provision hereof.
9.7 BINDING NATURE; ASSIGNMENT. This Agreement will be binding on the parties
and their successors and permitted assigns (it being understood and agreed
that nothing contained in this Agreement is intended to confer upon any
other person any rights, benefits or remedies
of any kind or character whatsoever under or by reason of this Agreement).
Except in the event of the sale or transfer of all or substantially all of
a party's business or assets, neither party may, nor will it have the
power to, assign this Agreement, or any part hereof, without the consent
of the other. In the event of the sale or transfer of all or substantially
all of a party's business or assets, the parties may mutually agree to
terminate this Agreement. EDS may subcontract the performance of any
portion of this Agreement to a third party so long as EDS remains
responsible for such performance.
9.8 COMPLIANCE WITH LAWS. In performing its obligations under this Agreement,
neither party will be required to undertake any activity that would
conflict with the requirements of any applicable statute, rule,
regulation, interpretation, judgment, order or injunction of any
Governmental Authority.
9.9 EXPORT REGULATIONS. This Agreement is expressly made subject to any United
States government laws, regulations, orders or other restrictions
regarding export from the United States of computer hardware, software,
technical data or derivatives of such hardware, software or technical
data. Notwithstanding anything to the contrary in this Agreement, Licensee
will not directly or indirectly export (or reexport) any computer
hardware, software, technical data or derivatives of such hardware,
software or technical data, or permit the shipment of same: (a) into (or
to a national or resident of) Cuba, North Korea, Iran, Iraq, Libya, Syria
or any other country to which the United States has embargoed goods; (b)
to anyone on the U.S. Treasury Department's List of Specially Designated
Nationals, List of Specially Designated Terrorists or List of Specially
Designated Narcotics Traffickers, or the U.S. Commerce Department's Denied
Parties List; or (c) to any country or destination for which the United
States government or a United States governmental agency requires an
export license or other approval for export without first having obtained
such license or other approval. Each party will reasonably cooperate with
the other and will provide to the other promptly upon request any end-user
certificates, affidavits regarding reexport or other certificates or
documents as are reasonably requested to obtain approvals, consents,
licenses and/or permits required for any payment or any export or import
of products or services under this Agreement. The provisions of this
SECTION 9.9 will survive the expiration or termination of the License Term
for any reason.
9.10 APPROVALS AND SIMILAR ACTIONS. Except as otherwise expressly provided in
this Agreement, where agreement, approval, acceptance, consent or similar
action is required of either party by any provision of this Agreement,
such action will not be unreasonably withheld or delayed. An approval or
consent given by a party under this Agreement will not relieve the other
party from responsibility for complying with the requirements of this
Agreement, nor will it be construed as a waiver of any rights under this
Agreement, except as and to the extent otherwise expressly provided in
such approval or consent.
9.11 NOTICES. Except as otherwise expressly provided in this Agreement, all
notices under this Agreement will be in writing and will be deemed to have
been duly given if delivered personally or by courier service, faxed or
mailed by registered or certified mail, return receipt requested, postage
prepaid, to the parties at the addresses set forth in SCHEDULE 9.11. All
notices under this Agreement that are addressed as provided in this
SECTION 9.11, (a) if delivered personally or by courier service, will be
deemed given upon delivery, (b) if delivered by facsimile, will be deemed
given when electronic confirmation is received by the sending party and
(c) if delivered by mail in the manner described above, will be deemed
given on the fifth business day after the day it is deposited in a regular
depository of the United States mail. Either party from time to time may
change its address or designee for notification purposes by giving the
other party notice of the new address or designee and the date upon which
such change will become effective.
9.12 EXCUSED PERFORMANCE. Neither party will be deemed to be in default
hereunder, or will be liable to the other, for failure to perform any of
its non-monetary obligations under this
Agreement for any period and to the extent that such failure results from
acts or omissions of the other party or third parties, natural disasters,
riots, war, civil disorder, court order, labor dispute or any other causes
beyond that party's reasonable control (including failures or fluctuations
in electrical power, heat, light, air conditioning or telecommunications
equipment or lines) and which it could not have prevented by reasonable
precautions or could not have remedied by the exercise of reasonable
efforts.
9.13 MEDIA RELEASES. Each party will coordinate with the other regarding any
media release, public announcement or similar disclosure relating to this
Agreement or its subject matter and will give the other party a reasonable
opportunity to review and comment on the content of such release,
announcement or disclosure prior to its release. This provision does not
alter the restrictions on the disclosure of confidential information set
forth in SECTION 9.1 and, subject to SECTION 9.1, will not be construed so
as to delay or restrict either party from disclosing any information
required to be disclosed in order to comply with any applicable law, rule
or regulation. Notwithstanding the foregoing, EDS will have the right to
make general references to Licensee and the type of services being
provided by EDS to Licensee under this Agreement in EDS' promotional and
marketing materials as well as in EDS' oral and visual presentations to
prospects.
9.14 CONSTRUCTION RULES. The Article and Section headings used in this
Agreement are for convenience of reference only and will not enter into
the interpretation hereof. As used in this Agreement, unless otherwise
expressly provided to the contrary, (a) any reference to a "Section",
"Article" or "Schedule" is a reference to a Section or Article of this
Agreement or a Schedule attached to this Agreement, and (b) all references
to days, months or years are references to calendar days, months or years.
To the extent that the provisions of this Agreement and the Schedules are
inconsistent, to the extent possible such provisions will be interpreted
so as to make them consistent, and if that is not possible, the provisions
of the Schedules will prevail. If any provision of this Agreement is held
to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected
or impaired, and such provision will be deemed to be restated to reflect
the original intentions of the parties as nearly as possible in accordance
with applicable law. The parties agree that this Agreement is an executory
contract as contemplated by 11 U.S.C. Section 365. In performing its
obligations under this Agreement, neither party will be required to
undertake any activity that would conflict with the requirements of any
applicable law, rule, regulation, interpretation, judgment, order or
injunction of any governmental authority. The parties acknowledge and
agree that each has been represented by legal counsel of its choice
throughout the negotiation and drafting of this Agreement, that each has
participated in the drafting hereof and that this Agreement will not be
construed in favor of or against either party solely on the basis of a
party's drafting or participation in the drafting of any portion of this
Agreement.
9.15 COOPERATION. EDS will cooperate with Licensee in good faith in the
performance of EDS' activities contemplated by this Agreement in a proper,
timely and efficient manner.
9.16 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of Texas, without giving
effect to any choice-of-law rules that may require the application of the
laws of another jurisdiction.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be
signed and delivered by its duly authorized officer or representative as of the
Effective Date.
ELECTRONIC DATA SYSTEMS CORPORATION
By: /S/WALTER SCHORTMANN
Typed Name: Walter Schortmann
Title: Vice President, Telecommunications Industry
Date: March 11, 1999
MATRIX TELECOM, INC.
By: /s/ JOE RENTERIA, JR.
Typed Name: Joe Renteria, Jr.
Title: Vice President, Information Services
Date: March 8, 1999