ALLIANCE AGREEMENT
THIS ALLIANCE AGREEMENT (this "Agreement") by and between Call
Compliance Inc., a New York corporation ("CCI"), and Illuminet Inc., a
Delaware corporation ("Illuminet"; CCI, together with Illuminet, the
"Parties").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Call Compliance.com Inc. ("CCC"), the parent company of CCI,
has developed and patented the Licensed Patent (as such term is defined in
the "Patent License Agreement" among CCC, CCI, and Illuminet and dated as of
the Effective Date hereof);
WHEREAS, the Parties desire to set forth their respective rights,
duties and obligations concerning the development, marketing and operation of
the Service (as such term is defined below);
WHEREAS, concurrently with the execution of this Agreement, CCC, CCI,
and Illuminet are entering into the Patent License Agreement pursuant to
which CCC will grant a non-exclusive license to Illuminet to use the Licensed
Patent;
NOW, THEREFORE, in consideration of the mutual promises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1.0 DEFINITIONS
Terms not otherwise defined in the body of this Agreement shall have the
following meanings:
"Carrier Customer" means a telecommunication carrier that has agreed to
commercial deployment of the Service.
"Dip" means a database transaction whereby a SS7 TCAP message is sent from a
Carrier Customer's switch to the Illuminet SCP during the switch's processing
of an outbound telemarketing call. The SCP executes the Service logic in
order to determine the appropriate handling of the call in question (e.g.
complete the call normally, disconnect the call, route the call to an
announcement, etc.). The SCP replies to the switch with an SS7 TCAP message
containing the appropriate instructions for the disposition of the call in
question.
"Dip Charge" means the fee charged by Illuminet to a Carrier Customer each
time that Carrier Customer Dips the Service.
"Dip Charge Revenue" means the amount determined by multiplying the total
monthly number of Dips to the Service that are made by Carrier Customers
times the applicable Dip Charge(s).
"Illuminet System" refers individually and collectively to all of the
databases, servers, software, protocols, specifications, templates,
documents, rules and methodologies that comprise the SCP Based Application
but specifically excludes the Do Not Call List.
"Intellectual Property Rights" means any and all (by whatever name or term
known or designated) tangible and intangible rights now known or hereafter
existing in and to copyrights, patents, trade secrets, trademarks, service
marks, tradenames, know-how, any and all inventions, discoveries or
improvements, and any other intellectual and industrial property and
proprietary rights, of every kind and nature throughout the world and however
designated, and including all registrations, applications, renewals,
extensions thereof.
"Service Fees" means the amount of the Dip Charge Revenue that is retained by
Illuminet, which shall be calculated pursuant to Exhibit B, annexed hereto.
"SCP" stands for Service Control Point.
"SCP Based Application" means the SCP based software application, acquired or
developed by Illuminet, which will perform and execute the Service.
"Service" means the service described more fully in Exhibit A, annexed
hereto.
"SS7" stands for Signaling System No. Seven.
"TCAP" stands for Transaction Capability Application Part.
"Telemarketer" means an enterprise that markets, sells, performs market
research, and/or makes soliticitations through making outbound telephone
calls to businesses or consumers.
"Trademark" means any trade name, trademark, service mark, logo, symbol, or
other product or service designation of a Party, including any abbreviation,
contraction, or simulation thereof that is shown on Exhibit D annexed hereto.
2.0 SCOPE/TERRITORY
This Agreement sets forth the terms of the relationship between CCI and
Illuminet for the development, marketing, and operation of the Service within
the United States.
3.0 DEVELOPMENT AND OPERATIONAL OBLIGATIONS
3.1 Connectivity. Illuminet will work together with each Carrier
Customer to design connectivity between the SCP Based Application
and such Carrier Customer's network.
3.2 SCP Based Application.
3.2.1 Illuminet will use its commercially reasonable efforts to
acquire or develop, operate, host, and maintain, at its own
cost, a SCP Based Application. CCI shall provide
reasonable assistance to Illuminet in connection with the
development of the SCP Based Application, to the extent
requested by Illuminet.
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3.2.2 Illuminet's targeted milestones relating to beta testing of
the SCP Based Application and commercial launch of the
Service are set forth in Exhibit C, annexed hereto.
3.2.3 The Parties agree that Illuminet shall retain all rights
(including all Intellectual Property Rights), title,
interest, in the SCP Based Application and the Illuminet
System. The Parties agree that CCI acquires no license to
the SCP Based Application and/or the Illuminet System by
virtue of this Agreement.
3.3 System Traffic Reports. Illuminet will implement, prior to
commencement of the commercial launch of the Service, a
monitoring and reporting system that will track the number of
Dips made to the SCP Based Application by Carrier Customers.
Intentionally deleted
3.4 Do Not Call List.
3.4.1 CCI will use its commercially reasonable efforts to
develop, manage, maintain, update, and otherwise keep
current, at its own cost, the Do Not Call List.
3.4.2 For the purposes of this Agreement the "Do Not Call List"
means a master list which contains i) an updated list of
all of the telephone numbers that are not to be called by a
given Telemarketer, which includes all such government
lists, third party lists (i.e. Direct Marketing
Association), private company lists, and ii)
identification information related to a Carrier Customer's
subscribing Telemarketers, technical preferences related
to a Carrier Customer's subscribing Telemarketers, and
other identifiers related to a Carrier Customer's
subscribing Telemarketers.
3.4.3 CCI shall provide to Illuminet the interface specifications
necessary to integrate the Do Not Call List into the SCP
Based Application and the Parties shall jointly work
together to successfully integrate the Do Not Call List
into the SCP Based Application. CCI shall regularly
update the Do Not Call List and send to Illuminet all such
updates in the form and format of, and in the intervals,
mutually agreed in writing by the Parties.
3.4.4 For the duration of this Agreement and for any survival
period that may be applicable pursuant to Section 12.16
(Survival) of the Patent License Agreement, CCI grants
Illuminet a non-exclusive, license to use the data
contained in the Do Not Call List for the purposes of this
Agreement.
3.5 Customer Support. Illuminet will be responsible for customer
support issues relating to i) setup of the Service, ii)
connecting to the Service, and iii) the SCP Based Application.
CCI will be responsible for customer support issues relating to
the Do Not Call List.
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3.6 Quality Standards. The Parties agree to perform their respective
obligations relating to the SCP Based Application and the Do Not
Call List, to the extent reasonable and practicable, in
accordance with generally accepted industry standards.
4.0 SALES AND MARKETING
4.1 CCI, at its own expense, will use its commercially reasonable
efforts to promote the Service to Telemarketers throughout the
United States.
4.2 Illuminet, at its own expense, will use its commercially
reasonable efforts to promote the Service to prospective Carrier
Customers throughout the United States.
5.0 CARRIER CUSTOMER CONTRACTS
5.1 Prior to the commercial launch of the Service, the Parties shall
work together to develop and complete a contract for the
provision of the Service for Carrier Customers (the "Carrier
Contract"), with terms and conditions that are mutually agreeable
to both Parties. Intentionally modified
5.2 Illuminet shall enter into a Carrier Contract with each Carrier
Customer.
6.0 BILLING AND COLLECTION
6.1 Illuminet shall use its commercially reasonable efforts to
collect all monies paid by Carrier Customers for the Service
consistent with Illuminet's standards (including using the same
care and diligence) for other services it offers.
6.2 Illuminet shall be responsible for billing, collecting, and
paying, as applicable, sales and any other applicable federal,
state, or local taxes incurred with associated with the Dip
Charge Revenue collected by Illuminet under this Agreement ("Dip
Charge Revenue Taxes"). Provided, however, Illuminet shall have
the right to deduct the amounts Illuminet has paid in Dip Charge
Revenue Taxes (not including any such taxes associated with
Service Fees) from the Dip Charge Revenue owed to CCI under this
Agreement and Illuminet shall provide CCI documentation of such
Dip Charge Revenue Taxes in the applicable Transaction Statement
(as such term is defined below).
6.3 At the end of each calendar month Illuminet shall prepare a
statement detailing all amounts invoiced to Carrier Customers for
Dip Charge Revenue during such month (a "Transaction
Statement"). Illuminet shall, within forty-five (45) days
following the end of a given calendar month pay CCI by wire
transfer to an account specified in writing by CCI the Dip Charge
Revenue invoiced by Illuminet for such calendar month that CCI is
entitled to receive as set forth in this Agreement and
simultaneously therewith, provide CCI a copy of the applicable
month's Transaction Statement. Illuminet shall have the right to
deduct from the Dip Charge Revenue the Service Fees that
Illuminet is entitled to retain pursuant to this Agreement.
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6.4 Illuminet shall have the right to deduct from the Dip Charge
Revenue owed to CCI under this Agreement amounts from Carrier
Customers that are written off as uncollectable and Illuminet
shall provide CCI documentation of such uncollectable amounts in
the applicable Transaction Statement. If such uncollectable
amounts are subsequently collected by Illuminet, in part or in
whole, the applicable amount shall be re-added to the next
payment of Dip Charge Revenue owed to CCI.
7.0 EXCLUSIVITY
7.1 For the duration of this Agreement and subject to the terms
hereof, Illuminet agrees it will not enter into an agreement with
any third party for the purpose of marketing to
telecommunications carriers and their subscribing Telemarketers a
service (other than the Service) that automatically blocks
outbound calls made by such Telemarketers to consumers and
businesses that are listed on government, third party (i.e.,
Direct Marketing Association), and/or private company do not call
lists.
7.2 During the Exclusivity Period, CCI agrees that it shall not
license any right under the License Patent to any third party
that is not already licensed from the Effective Date of this
Agreement until the earlier of the date Illuminet has received
[intentionally deleted] of Service Fees, or December 31, 2003
(the "Exclusivity Period"). Provided, however, the foregoing
sentence shall not apply with respect to i) existing agreements
(or any renewals of such agreements) CCI has with [intentionally
deleted] as of the Effective Date of this Agreement, or ii) any
telecommunications carrier whose use of the Licensed Patent is
restricted to developing, marketing, operating, or providing a
service similar to the Service exclusively to such
telecommunications carrier's own subscribers (a "Carrier
Competitor").
7.3 Intentionally deleted
8.0 RECORDS AND ACCOUNTING
Illuminet shall keep and maintain true and accurate records, files and books
of account containing all the data reasonably required for the full
computation and verification of the amounts paid and to be paid to CCI
pursuant to this Agreement for a six (6) year period from the end of the
calendar year that such records, files, and/or books of account were
created. Illuminet shall at all reasonable times and upon reasonable advance
written notice of at least ten (10) business days permit CCI or its
representatives to inspect the same for the purpose of determining the
amounts payable by Illuminet pursuant to this Agreement. The inspection
shall occur only once in each twelve (12) consecutive month period. If an
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inspection uncovers an underpayment error for the audited period, (except to
the extent, if any, that it is offset by overpayment errors as may be found
for the audited period), Illuminet shall, within ten (10) days of the
conclusion of such inspection, pay the amount of such underpayment error.
CCI shall bear the expenses of the inspection unless that inspection uncovers
an underpayment error of greater than ten percent (10%) for the audited
period, in which case Illuminet shall bear all such reasonable and customary
expenses. All such inspections shall be conducted during normal business
hours and pursuant to appropriate written commitments from CCI's
representatives to maintain any information obtained or developed in the
course of the audit as confidential and to use such information only for the
purpose of auditing Illuminet's compliance with this Agreement and ensuring
that all monies to be paid are paid.
9.0 TRADEMARKS
9.1 CCC hereby grants to Illuminet a limited, non-exclusive
royalty-free right and license to use the CCC Trademarks shown on
Exhibit D within the United States only in the form provided to
Illuminet on Exhibit D and only to the extent necessary for
Illuminet to market, advertise, and promote the Service within
the United States. The foregoing license shall automatically and
immediately terminate upon the expiration or termination of this
Agreement.
9.2 Title to and ownership of all CCC Trademarks and all
Intellectual Property Rights thereto shall remain entirely with
CCC and use of the such Trademarks shall be in conformance with
applicable trademark usage policies established by CCI or CCC and
provided to Illuminet in writing prior to the completion of
Exhibit E, annexed hereto. Illuminet shall take no action that
is inconsistent with the ownership rights and benefits (including
goodwill) accruing from use of the such Trademarks, all of which
shall inure to the benefit of CCC.
9.4 VeriSign Inc. ("VeriSign"), hereby grants to CCI a limited,
non-exclusive, non-transferable, non-sublicensable, royalty-free
right and license to use the VeriSign Trademarks shown on Exhibit
D within the United States only in the form provided to CCI on
Exhibit D and only to the extent necessary for CCI to market,
advertise, and promote the Service within the United States. The
foregoing license shall automatically and immediately terminate
upon the expiration or termination of this Agreement.
9.5 Title to and ownership of all VeriSign Trademarks and all
Intellectual Property Rights thereto shall remain entirely with
VeriSign and use of the such Trademarks shall be in conformance
with applicable trademark usage policies established by Illuminet
or VeriSign and provided to CCI in writing from time to time.
CCI shall take no action that is inconsistent with the ownership
rights and benefits (including goodwill) accruing from use of the
such Trademarks, all of which shall inure to the benefit of
VeriSign.
9.6 Each Party may from time to time request, for quality control
purposes, representative samples of materials
incorporating/displaying the other Party's Trademarks or
proprietary rights notices that are distributed or intended for
distribution hereunder. If either Party determines, in its sole
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discretion, that any of the foregoing does not meet such Party's
trademark usage policies or procedures or is inconsistent with
the rights granted in this Agreement, then such Party shall have
the right to require that such deficiencies be cured prior to
distribution or use of such materials. If such deficiencies are
not cured prior to distribution, such Party reserves the right to
withdraw the other Party's permission to use such Party's
Trademarks upon written notice to the other Party. In addition,
each Party shall promptly notify the other Party if such Party
reasonably believes that a third party is infringing upon one or
more of the other Party's Trademarks. For the purposes of this
Section 9.6 only, the term "Party" shall also include VeriSign
and CCC, as applicable.
10.0 PROPRIETARY INFORMATION
10.1 Identification of Proprietary Information. Each Party may make
available or otherwise disclose to the other Party during the
negotiation or performance of this Agreement certain business
information, including information that is proprietary to a third
party. Except as otherwise stated herein, all such information
shall be considered the confidential and proprietary information
of the Party disclosing such information ("Disclosing Party") if,
when disclosed in writing, it is clearly marked as confidential
and/or proprietary, and if, when disclosed orally, it is clearly
identified at the time of disclosure as being confidential and/or
proprietary ("Proprietary Information"). For the purposes of this
Agreement, "Receiving Party" shall mean the party and its
parties to whom Proprietary Information is disclosed under
Section 10.3 herein.
10.2 Exclusions. Notwithstanding anything to the contrary in this
Section 10, Proprietary Information shall not include information
that the Receiving Party can demonstrate: (i) was known to the
Receiving Party prior to disclosure by the Disclosing Party as
evidenced by documentation that was in existence prior to any
disclosure by the Disclosing Party to the Receiving Party and
that is free from any obligation to keep it confidential; (ii)
was independently developed by the Receiving Party without
reference to or knowledge of the Disclosing Party's Proprietary
Information as evidenced by documentation that was in existence
prior to any disclosure by the Disclosing Party to the Receiving
Party; (iii) is within the public domain through no action on the
part of the Receiving Party as evidenced by documentation; (iv)
was received from a third party who was under no obligation to
keep such information confidential; or (v) was authorized in
writing by the Disclosing Party for release prior to such
release.
10.3 Permitted Uses. Neither Party shall disclose the Proprietary
Information of the other Party, except to its directors,
officers, employees, agents, consultants and attorneys, and those
of its subsidiary and parent entities who have a need to know
such Proprietary Information for negotiation or performance of
this Agreement or the Patent License Agreement, as the case may
be, and who have agreed to maintain the confidentiality of such
Proprietary Information as provided herein ("Related Parties").
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10.4 Return of Proprietary Information. The Disclosing Party may
request, at any time, that the Receiving Party return or destroy
the tangible copies and erase from its computer systems
("Eliminate(d)") the Proprietary Information of the Disclosing
Party, unless such Proprietary Information is critical for the
Receiving Party to perform its obligations under this Agreement.
Such request shall describe with reasonable particularity the
Proprietary Information to be Eliminated. Within fifteen (15)
days of receipt of such a request, the Receiving Party shall
either Eliminate the Information described in the request, or, if
required by law or regulation to retain copies of such
Proprietary Information, notify the Disclosing Party of and
comply with such requirement.
10.5 Discovery. If a demand under legal or regulatory authority of
competent jurisdiction or a requirement of law for the discovery
or disclosure of Proprietary Information is made known to the
Receiving Party, the Receiving Party shall give the Disclosing
Party notice of the demand or requirement prior to disclosing the
Proprietary Information and shall, upon the request and at the
expense of the Disclosing Party, obtain or cooperate in any
efforts by the Disclosing Party to seek reasonable arrangements
to protect the confidential and proprietary nature of such
Proprietary Information.
10.6 Duration of Obligations. The obligations described in this
Section 10 shall subsist during the term of this Agreement, and
survive the termination of this Agreement for a period of three
(3) years, except for that Proprietary Information marked
"Sensitive Proprietary Information," for which the obligations of
this Section 10 shall subsist during the term of this Agreement
and survive the termination of this Agreement in perpetuity.
10.7 Injunctive Relief. Both Parties agree that a breach of any of
the obligations set forth in this Section 10 would irreparably
damage and create undue hardships for the other party.
Therefore, the non-breaching Party shall be entitled to immediate
court ordered injunctive relief to stop any apparent breach of
this Section 10, such remedy being in addition to any other
remedies available to such non-breaching Party.
11.0 REPRESENTATIONS
Each of CCI and Illuminet represents to the other as follows:
11.1 Each is a corporation duly organized, validly existing, and in
good standing under the laws of its jurisdiction of incorporation
with all requisite corporate power, authority, and legal right to
own its property and conduct its business as now conducted and as
contemplated under this Agreement.
11.2 Each is duly qualified to do business in each jurisdiction in
which the nature of its properties or its business requires such
qualification and in which the failure to so qualify would
materially adversely affect its business or financial condition.
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11.3 The execution, delivery, and performance by each of this
Agreement and the performance by each of its obligations
hereunder (i) are within their respective power and authority;
(ii) has been duly authorized by all necessary action on the part
of their respective governing bodies; (iii) will not contravene
any provision of law or regulation, or any writ or decree of any
court or governmental instrumentality or their respective
jurisdictions of incorporation or other agreement of either, and
(iv) will not conflict with or result in a breach of or default
under (with or without notice or lapse of time), any contract,
agreement, indenture, mortgage, deed of trust, lease, or other
instrument to which either Party is bound or any of their
respective assets are subject.
11.4 This Agreement has been duly executed and delivered by each Party
and constitutes the valid, legal and binding obligation of each
Party, enforceable in accordance with its terms.
11.5 As of the Effective Date, no approval or consent of, or filing
with, any governmental authority is required to be obtained or
effected by either Party in connection with its execution,
delivery, and performance of this Agreement.
11.6 As of the Effective Date, there is no pending or, to its
knowledge, threatened action, suit or proceeding or investigation
before any court, board of arbitration or arbitrator,
governmental body, agency, instrumentality or official against or
affecting either Party, the outcome of which, if adversely
determined, would have a material adverse effect on the ability
of either Party to fully perform its obligations under this
Agreement.
11.7 Neither Party is a party to any agreement or instrument or
subject to any restriction having a materially adverse effect on
its ability to perform its obligations under this Agreement.
11.8 As of the Effective Date, neither Party is in default under any
applicable order, writ, injunction, or decree of any court,
governmental department, board or agency or instrumentality of
any arbitrator.
11.9 Each Party has obtained or shall obtain in respect of this
Agreement and the transactions contemplated hereby, on or prior
to the date hereof, all governmental permissions, rights,
licenses and permits, if any, to carry out the transactions
contemplated thereby. Neither Party has received notice of any
violation of any applicable law, regulation, order or requirement
which would have a materially adverse effect on the transactions
contemplated by this Agreement, and which has not been complied
with or corrected in all material respects.
11.10 EXCEPT AS SPECIFICALLY SET FORTH HEREIN OR IN THE PATENT LICENSE
AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES
OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, THE
FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF.
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12.0 INDEMNITY
12.1 Except as otherwise stated herein, each Party (the "Indemnifying
Party") will defend, indemnify and hold harmless the other Party
(the "Indemnified Party") from and against any loss, cost, claim,
liability, damage, and expense (including reasonable attorney's
fees) brought or claimed by third parties (collectively,
"Claims"), arising out of negligence or misconduct or omission by
the Indemnifying Party, its employees, agents, or contractors in
the performance of this Agreement. The Indemnified Party shall
notify the Indemnifying Party promptly in writing of any Claims
for which the Indemnified Party alleges that the Indemnifying
Party is responsible under this Section 12 and tender the defense
of such Claims to the Indemnifying Party. The Indemnified Party
shall cooperate in every reasonable manner with the defense or
settlement of such Claims at the Indemnifying Party's expense.
The Indemnifying Party shall not be liable under this Section 12
for settlements by the Indemnified Party of any Claims unless the
Indemnifying Party has approved the settlement in advance or
unless the defense of such Claims has been tendered to the
Indemnifying Party in writing and the Indemnifying Party has
failed to promptly undertake the defense.
12.2 Intentionally deleted
12.3 Intentionally deleted
12.4 Intentionally deleted.
13.0 LIMITATION OF LIABILITY
EXCEPT AS PROVIDED IN SECTION 12 HEREINABOVE, NEITHER PARTY SHALL HAVE ANY
LIABILITY TO THE OTHER PARTY WITH RESPECT TO THIS AGREEMENT FOR ANY LOST
INCOME OR PROFITS OR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR
INCIDENTAL DAMAGES OF ANY KIND WHATSOEVER, EVEN IF IT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
14.0 DISPUTES
14.1 Informal Resolution. The Parties agree that they shall attempt
to resolve any dispute regarding any right, obligation, duty, or
liability arising out of the provisions of this Agreement through
informal discussions or negotiations prior to resorting to formal
dispute resolution procedures contained in Section 14.2 below.
If, at any time following the commencement of any such
discussions or negotiations, either Party determines such
discussions or negotiations are not likely to result in a
reasonable resolution of the dispute, it may send to the other
Party a written statement of the issues or problems being
discussed or negotiated ("Dispute Statement"). If the dispute
has not been resolved within thirty (30) days after the mailing
of the Dispute Statement, either Party shall have the right to
serve a written demand for arbitration upon the other and thereby
commence binding arbitration in accordance with the provisions
set forth below. The mailing of the Dispute Statement and the
passage of thirty (30) days from the date of the mailing of such
Dispute Statement shall be conditions precedent to the
commencement of any arbitration proceedings hereunder.
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14.2 Binding Arbitration.
Within five (5) business days of delivery of a demand, each Party
shall designate an arbitrator. The two designated arbitrators
shall then select a third arbitrator to complete the full
arbitration panel within twenty (20) business days, or as
otherwise agreed.
The arbitration panel shall commence hearing within sixty
(60) days of the selection of the panel. The scope of document
production and the enforcement of document requests may be
ordered by the arbitrators to the extent economical and
reasonable. All discovery requests shall be subject to the
proprietary rights of the Parties, and the arbitrators shall
adopt procedures to protect such rights. Except where contrary to
the provisions set forth in this Agreement, the rules of the
American Arbitration Association ("AAA") shall be applied;
provided, however, that the arbitration need not be conducted
under the auspices of the AAA, in which event the fee schedule of
the AAA shall not apply. The Parties agree that the arbitration
panel shall have the authority to order injunctive relief and
such order shall be enforceable by a court of competent
jurisdiction.
All costs of arbitration and any award of attorney's fees shall
be awarded pursuant to the provisions of Section 18.14 of this
Agreement.
14.3 Time Limitations. The provisions of this Section 14 shall
survive the termination of this Agreement. The commencement of
formal dispute resolution procedures (i.e., the delivery of a
Dispute Statement), or any other action in law or equity arising
out of this Agreement, may not occur more than three (3) years
after the event giving rise to the dispute has occurred.
15.0 TERM; TERMINATION
15.1 The initial term (the "Initial Term") of this Agreement shall be
five (5) years from the date hereof. At the expiration of the
Initial Term, this Agreement shall extend for successive one
(1) year terms (each a "Renewal Term") unless either Party shall
have delivered to the other Party a notice of termination at
least 90 days prior to expiration of the Initial Term or the
applicable Renewal Term.
15.2 Termination. Notwithstanding the above Section 15.1, this
Agreement may be terminated by:
15.2.1 The non-defaulting or non-breaching Party, if the other
Party otherwise defaults in the performance of or
materially breaches any of the provisions of this
Agreement, with the default or breach continuing
unremedied for a period of thirty (30) days after receipt
of written notice from the non-defaulting or
non-breaching Party to the Party in default or breach,
specifying in reasonable detail the nature of such
default or breach.
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15.2.2 Intentionally deleted
15.2.3 Upon the mutual written agreement of the Parties to
terminate this Agreement.
15.2.4 Intentionally deleted
15.3 In the event that the Licensed Patent is determined to be invalid
or unenforceable this Agreement shall continue in accordance with
the terms herein.
16.0 TRANSITION PERIOD FOLLOWING TERMINATION
Following any termination of this Agreement in which any Carrier Contract
remains in effect, the Parties shall work together for a period of six (6)
months to ensure a seamless transition of operations and customer support for
the Service. The Parties shall work together to ensure that the provision of
the Service remains uninterrupted and that the Service operates in the
ordinary course of business during such six (6) month period.
17.0 WAIVER
The waiver of a breach of any of the terms hereof or of any default hereunder
shall not be deemed a waiver of any subsequent breach or default, whether of
the same or similar nature, and shall not in any way affect the other terms
thereof. No waiver or modification hereof shall be valid or binding unless
in writing and signed by the Parties.
18.0 GENERAL PROVISIONS
18.1 Notice. All notices, demands and statements to be given under
this Agreement will be made in writing and shall be deemed given
three (3) days after deposit thereof in the U.S. Mail, postage
prepaid, and addressed as follows:
If to CCI:
Call Compliance Inc.
Attention: Alison Garfinkel
90 Pratt Oval
Glen Cove, New York 11542
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With a copy to:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
Telephone:(212) 504-5555
Facsimile:(212) 504-6666
Attention: Dennis J. Block, Esq.
If to Illuminet:
Illuminet Inc.
Attention: Contract Administration
4501 Intelco Loop S.E.
Olympia, WA 98507
A change of address for the giving of notice shall be made in the
same manner as the giving of notice.
Any notice given by facsimile transmissions shall be followed by
a hard copy thereof sent in the manner set forth above, and shall
be deemed given upon receipt of confirmation of transmission of
facsimile.
18.2 Assignment. Neither Party may assign its rights or obligations
under this Agreement, in whole or in part, by operation of law or
otherwise, without the prior express written consent of the other
Party. Any purported assignment in violation of this article
shall be null and void. Notwithstanding any other provision in
this Agreement, either Party may assign this Agreement, in whole
or in part, to any entity acquiring substantially all of the
stock or assets of such Party or to the surviving company
pursuant to a merger.
18.3 Conformity to Laws, Rules, Regulations and Orders.
Notwithstanding any other provision of this Agreement, each Party
agrees to perform all of its obligations and undertakings
prescribed in this Agreement in compliance with all applicable
laws, orders, rules and regulations that may affect the matters
covered by this Agreement.
18.4 Construction. This Agreement is the product of negotiation among
the Parties and their respective counsel. This Agreement shall
be interpreted fairly in accordance with its terms and conditions
and without any strict construction in favor of any party. Any
ambiguity shall not be interpreted against the drafting party.
18.5 Entire Agreement. This Agreement, together with the attached
exhibits, and together with the Patent License Agreement embodies
the entire understanding and agreement between the Parties and
supersedes any prior understanding and agreement between and
among them respecting the subject matter hereof. There are no
representations, agreements, arrangements or understandings, oral
or written, between the Parties hereto relating to the subject
matter of this Agreement, which are not fully expressed herein or
in the Patent License Agreement. No change, modification,
extension, termination or waiver of this Agreement, or any of the
provisions herein, shall be valid unless made in writing and
signed by duly authorized representatives of the Parties.
13
18.6 Conflict. If there is a conflict between this Agreement and the
exhibits attached hereto, such exhibit will prevail. In the
event of a conflict between the terms and conditions of this
Agreement and the terms and conditions of the Patent License
Agreement, the terms and conditions of the Patent License
Agreement shall control.
18.7 Governing Law. This Agreement shall be construed, interpreted and
the rights of the Parties determined in accordance with the laws
of the Commonwealth of Virginia, without regard to the conflict
of law principles thereof.
18.8 Venue. Any arbitration or other judicial proceeding brought
with respect to this Agreement must be brought in the state
courts sitting in Fairfax County, Virginia and by execution and
delivery of this Agreement, each signatory hereto (i) hereby
submits to and accepts, generally and unconditionally, the
exclusive jurisdiction of such courts and any related appellate
court, and irrevocably agrees to be bound by any judgment
rendered thereby in connection with this Agreement and (ii)
irrevocably waives any objection it may now or hereafter have as
to the venue of any such suit, action or proceeding brought in
such a court or that such court is an inconvenient forum.
18.9 Headings. The titles of the Sections in this Agreement are
inserted merely for convenience and identification and are not to
be used in the interpretation or construction of this Agreement.
18.10 No Agency. Nothing contained in this Agreement shall be
construed as making either Party the partner, joint venturer,
agent, or employer/employee of the other. Neither Party shall
have the authority to make any statements, representations, or
commitments of any kind, or to take or omit to take any action,
which shall be binding on the other, except and unless as
expressly and explicitly provided for herein or expressly and
explicitly authorized in writing by the Party to be bound.
18.11 Original Agreement. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
18.12 Publicity. Any press release issued by a Party describing this
Agreement or otherwise referencing the Parties to this Agreement
shall be subject to the prior written approval of the other
party, which approval (or disapproval) shall not be unreasonably
delayed.
18.13 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of the prohibition or
unenforceability without invalidating the remaining provisions
hereof, and shall not invalidate or render unenforceable such
provision in any other jurisdiction. In the event any provision
or portion in this Agreement is held to be unenforceable or
invalid by a court of competent jurisdiction, the validity and
enforceability of the remaining portion of any such provision
and/or the remaining provisions of this Agreement shall not be
affected thereby.
14
18.14 Removed.
18.15 Force Majeure. Neither party shall be deemed in default of this
Agreement to the extent that performance of its obligations or
attempts to cure any breach are delayed, restricted or prevented
by reason of any act of God, fire, natural disaster, governmental
regulations, or other causes arising out of a state of national
emergency or war ("Force Majeure Event"), provided that such
party gives the other party written notice thereof promptly and,
in any event, within thirty (30) days of discovery thereof and
uses its best efforts to cure the delay and one party so informs
the other in writing of such causes and its desire to be
released. In the event that any Force Majeure Event prevents
either party from carrying out its obligations under this
Agreement for a period of more than thirty (30) days, the other
party may terminate this Agreement upon thirty (30) days written
notice without liability.
18.16 Amendments. This Agreement may be amended only by an instrument
in writing signed by an authorized representative of each party
subsequent to the Effective Date of this Agreement.
18.17 Insurance. CCI shall at all times during the term of this
Agreement, at its own cost and expense, carry and maintain the
insurance coverage listed below.
Workers' Compensation Insurance with statutory limits as required
in the state(s) of operation; and providing coverage for any CCI
employee entering onto Illuminet's premises, even if not required
by statute. Employer's Liability insurance with limits of not
less than $100,000 each accident.
Commercial General Liability Insurance covering claims for bodily
injury, death, personal injury or property damage occurring or
arising out of the performance of this Agreement, including
coverage for independent contractor's protection (required if any
work will be subcontracted), premises-operations,
products/completed operations, and contractual liability with
respect to the liability assumed by CCI hereunder. The limits of
insurance shall not be less than:
Each Occurrence $1,000,000
General Aggregate Limit $2,000,000
Personal and Advertising Injury Limit $1,000,000
The insurance limits required herein may be obtained through any
combination of primary and excess or umbrella liability
insurance. Upon Illuminet's written request, CCI shall forward
to Illuminet certificate(s)of such insurance.
15
18.19 Survival. Any termination of this Agreement shall not discharge
either party from any right, duty, obligation or liability that
arose or occurred prior to the effective date of such
termination. Sections 1, 8, 10, 12, 13, 14, 16, and 18 shall
survive any termination of this Agreement.
18.20 Incorporation by Reference. Exhibits A, B, C, D, and E annexed
hereto are respectively by each and every reference thereto
incorporated herein by reference.
16
IN WITNESS WHEREOF, this Agreement has been executed for and on behalf of
each party by and through its authorized representative to be effective the
date of last signature hereto (the "Effective Date").
Each party represents and warrants that it has not altered this
Agreement in any manner other than as agreed to in writing by the Parties or
as an inter-delineation initialed by both Parties.
The signatories to this Agreement hereby warrant and represent that
they have the authority to execute this Agreement on behalf of the entity or
entities for which they sign.
# # #
CALL COMPLIANCE, INC. ("CCI") ILLUMINET INC. ("ILLUMINET")
By:______________________________ By:___________________________
Name:____________________________ Name:________________________
Title:_____________________________ Title:_________________________
Date:_____________________________ Date:_________________________
CALL COMPLIANCE.COM INC. ("CCC") VERISIGN INC. ("VERISIGN")
Solely with respect to Section 9.0 Solely with respect to
Section 9.0
By:__________________________ By:__________________________
Name:________________________ Name:________________________
Title:_________________________ Title:_________________________
Date:_________________________ Date:_________________________
17
Exhibit A
SERVICE DESCRIPTION--revised language
The Service is an AIN (Advanced Intelligent Network) service, which is
resident on a SCP (Service Control Point) located within the Illuminet SS7
network. The Service provides telecommunication carriers, who utilize SS7,
the ability to offer a do-not-call (DNC) solution to their subscribing
Telemarketers. Such Telemarketer may order the Service from its
telecommunication carrier. A Telemarketer who has ordered the Service will
have the ability to Dip the Service to ascertain whether a given telephone
number is listed in the Do Not Call List. The Service provides the
Telemarketer i) a method to stop or block outbound telephone calls to
telephone numbers that are listed in the Do Not Call List, and ii) an
enhanced ability to comply and adhere to do-not-call related rules and
regulations.
Exhibit C
MILESTONES
Beta testing of the SCP Based Application is targeted to begin within ninety
(90) days from the Effective Date of this Agreement.
Commercial launch of Service is targeted to begin within one hundred and four
(104) days from the Effective Date of this Agreement.
2
Exhibit D
VERISIGN TRADEMARKS
[VeriSign Logo]
CCC TRADEMARKS
[CallCompliance Logo]
[Teleblock Logo]
CampaignListManager(SM)
3
Exhibit E
SAMPLE CARRIER CONTRACT
(to be attached upon its completion)
4