EXHIBIT 99.17
EXECUTION COPY
EXHIBIT D
LICENSE AGREEMENT
This License Agreement (the "AGREEMENT") is entered into effective this
21st day of January, 2005 (the "EFFECTIVE DATE") by and between NACT
Acquisition, Inc., a Delaware corporation ("NACT"), and Verso Technologies,
Inc., a Minnesota corporation ("VERSO").
WHEREAS, Verso and NACT are parties to an Asset Purchase Agreement dated
as of even date hereof (the "ASSET PURCHASE AGREEMENT"); and
WHEREAS, pursuant to the Asset Purchase Agreement, NACT agreed to purchase
substantially all of the assets of NACT Telecommunications, Inc., a wholly owned
subsidiary of Verso; and
WHEREAS, the NTS software product created by NACT Telecommunications, Inc.
is included among the assets transferred to NACT under the Asset Purchase
Agreement; and
WHEREAS, NACT agreed in the Asset Purchase Agreement to grant to Verso a
license to the source code of the NTS product and certain other rights in
partial consideration for the transfer of assets to NACT; and
WHEREAS, Verso and Jacksonville Technology Associates, Inc. ("JTA") are in
negotiations for the purchase of substantially all of the assets of JTA by Verso
(the "JTA TRANSACTION").
NOW, THEREFORE, in consideration of the mutual promises set forth in this
Agreement, Verso and NACT agree as follows:
1. Definitions.
In addition to the other terms defined herein, the following definitions
shall apply to this Agreement:
"Affiliate" means any entity in which a party owns or controls 50% or more
of the voting securities or interest and any entity which controls 50% or more
of the voting securities or interest of a party.
"Documentation" means all notes, drawings, commentary, flow charts, user
documentation, and other documentation pertaining to the Licensed Software that
is reasonably required for Verso to integrate the Licensed Software into Verso
Products and to support and maintain the Licensed Software.
"Intellectual Property Rights" means all (i) rights associated with works
of authorship, including, without limitation, exclusive exploitation rights,
copyrights and moral rights; (ii) trademark, trade dress, and trade name rights;
(iii) trade secret rights; (iv) designs, algorithms, and all other industrial
property rights; (v) patents, patent applications, extensions, combinations,
divisions, or reissues of the foregoing; and (vi) other intellectual property
and proprietary rights of every kind.
"Licensed Software" means the NTS software version 2.5, in source code
form, including, without limitation, all software which makes up the build
environment required to compile and package the entire NTS product line and any
modifications, upgrades, updates and enhancements thereto in existence as of the
Effective Date or provided to Verso pursuant to Section 8(b) of this Agreement.
"Verso Products" means the products manufactured, offered, sold, licensed
or distributed by Verso and its Affiliates as of the Effective Date (which shall
include for this purpose (i) the products of JTA in existence as of the
Effective Date, provided that Verso and JTA consummate the JTA Transaction and
(ii) the Deliverables delivered to JTA in accordance with the Cable & Wireless
Project (as defined below)), and any future releases, upgrades, new versions or
enhanced versions of such products.
2. License.
NACT hereby grants to Verso and its Affiliates, effective as of the
Effective Date, a perpetual, irrevocable (except as expressly provided in
Section 13), non-exclusive, non-transferable (except as expressly provided in
Section 14(a)), world-wide, fully paid up, royalty free right and license (the
"LICENSE") to:
(a) use, merge, translate, reproduce, install, perform, display, modify,
alter, and adapt the Licensed Software and the Documentation, and to create
derivative works from the Licensed Software and the Documentation, solely for
purposes of integrating the Licensed Software into Verso Products and
maintaining such Licensed Software;
(b) compile the Licensed Software and any modifications or derivates
thereof into executable or machine readable versions, solely for purposes of
integrating the Licensed Software into Verso Products and maintaining such
Licensed Software;
(c) directly or through resellers or distributors, distribute, license,
and sublicense the Licensed Software and any modifications or derivatives
thereof created by Verso to end users and other customers in executable or
machine readable form only as a component and solely as a component of Verso
Products;
(d) create documentation for end users and other customers using all or
parts of the Documentation and to distribute such documentation to resellers,
distributors and end users and other customers of Verso Products; and
(e) escrow the source code of versions of the Licensed Software (excluding
any third-party software contained therein) distributed in executable form under
subparagraph (c) above in escrow accounts for the benefit of third parties;
provided, that (i) such escrow is subject to an agreement substantially in the
form of the Master Preferred Source Code Escrow Agreement attached as Attachment
A and (ii) the Addendum to the Master Preferred Source Code Escrow Agreement
attached as Attachment B is executed by the Escrow Agent, Preferred Beneficiary
and Verso prior to the deposit of such source code with the Escrow Agent.
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3. Delivery.
NACT hereby acknowledges the receipt of a CD purporting to contain the
Licensed Software and Documentation. To the extent such CD does not contain the
Licensed Software and Documentation, NACT shall promptly remedy such defect.
4. Limitations; Covenants.
(a) Except as provided in Section 1(e) and Section 14(a), Verso shall not
disclose, distribute or otherwise make available the Licensed Software in source
code form to any third party other than to employees and contractors of Verso
and its Affiliates who (i) have signed a written confidentiality agreement
(containing provisions no less restrictive than the provisions set forth in
Section 11 hereof) and (ii) need to have access to such information for purposes
of exercising the rights granted to Verso under this Agreement on behalf of
Verso.
(b) In connection with distributing, licensing or sublicensing the
Licensed Software pursuant to Section 2(c) hereof, Verso shall enter into a
written agreement (or cause its distributors or resellers to enter into a
written agreement) with each end user or other customer containing terms no less
protective of the Licensed Software than the terms contained in Verso's form of
End User License Agreement set forth in Attachment C.
(c) Verso shall promptly deliver to NACT an executed copy of any Addendum
to the Master Preferred Source Code Escrow Agreement executed pursuant to the
terms of Section 2(e) or otherwise. NACT agrees that the information contained
in such documents shall be deemed to be the Confidential Information of Verso as
provided in Section 11 of this Agreement; provided, however, that NACT may
disclose any Addendum to the Master Source Code Escrow Agreement to the extent
necessary to enforce its rights thereunder or otherwise to effectuate the
purposes of such document.
5. Third Party Software.
To the knowledge of NACT, Verso will not need to license any third-party
software to exercise or enjoy any of its rights under this Agreement to develop
the Licensed Software except for the following third-party development tools:
(a) Informix Dynamic Server database licensed by IBM, (b) Rave 4.0 and 5.0
licensed by Nevrona Designs, (c) Infopower 2000 and 3000 Pro licensed by
Woll2Woll Software, (d) CodeSite 2 licensed by Raize Software, (e) Raize
Components 2.52 licensed by Raize Software, and (f) Delphi 6 Enterprise licensed
by Borland. Verso will be responsible, at its own cost, for obtaining its own
licenses of these development tools. In addition, Verso will need to obtain run
time licenses of Informix Dynamic Server database and Rave prior to
distributing, licensing, and/or sublicensing products containing the Licensed
Software to third parties.
6. Ownership.
(a) The Licensed Software and the Documentation and the Intellectual
Property Rights contained therein are owned by NACT. Verso shall have no right,
title or interest therein except as expressly set forth in this Agreement, and
NACT reserves all right in the Licensed Software and Documentation not expressly
granted herein.
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(b) All modifications, alterations, and derivations of the Licensed
Software and Documentation created by or on behalf of Verso and at Verso's
expense in accordance with the terms of this Agreement shall be the proprietary
information of Verso, and NACT shall have no right, title or interest therein.
Verso and its licensors shall own all Intellectual Property Rights in and to
such modifications, alterations and derivations subject only to NACT's rights in
the Licensed Software and Documentation. For the avoidance of doubt, NACT shall
retain all right, title and interest in and to corrected versions of the
Licensed Software provided to Verso in accordance with Section 8(b).
7. Bankruptcy.
In the event of the dissolution, bankruptcy or insolvency of NACT, NACT
acknowledges that, if NACT rejects this Agreement in any bankruptcy proceeding,
Verso may elect to retain its rights under this Agreement as provided in Section
365(n) of the United States Bankruptcy Code.
8. Warranties.
NACT hereby warrants and represents to Verso as follows:
(a) NACT has the right to grant the License to Verso, and, subject to
Section 5, Verso's exercise of its rights under this Agreement shall not violate
the rights of any third party granted by NACT or violate the obligations of NACT
under any agreement with a third party. As of the Effective Date, there is no
actual or, to the knowledge of NACT, threatened suit or claims by any third
party based on any of the foregoing.
(b) For a period of one (1) year from the Effective Date (the "WARRANTY
PERIOD"), (i) the version of the Licensed Software delivered to Verso by NACT
(as may, from time to time, be modified by updates, upgrades, modifications or
enhancements distributed by NACT to Verso in accordance with this Section 8(b))
shall be free from defects and shall operate in accordance with the
specifications for the Licensed Software and the relevant portions of the
Documentation in all material respects; and (ii) the Documentation shall reflect
the operation of the Licensed Software, in each case in all material respects.
NACT shall promptly correct any errors, defects or malfunctions in the Licensed
Software and Documentation reported by Verso during the Warranty Period and
shall promptly provide Verso with the corrected versions of the Licensed
Software and the Documentation free of charge. NACT agrees to respond to Verso's
requests for corrections to errors with a time estimate for the correction of
such errors as follows: those classified as high priority within 48 hours, those
classified as medium priority within 5 (five) business days, and those
classified as low priority within fifteen (15) business days, in each case
following written notice by Verso to NACT of such errors and the applicable
priority level. After expiration of the Warranty Period, NACT shall provide
Verso with the ability to obtain support and maintenance on terms and conditions
mutually agreeable to the parties.
(c) THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL
OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED, OR STATUTORY,
REGARDING THE LICENSED SOFTWARE AND THE DOCUMENTATION, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES OF
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MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
9. Additional Support.
(a) During the Warranty Period, NACT shall provide to Verso, without
additional charge, reasonably necessary telephone or email consultation
requested by Verso in connection with its use and operation of the Licensed
Software or any problems therewith. Telephone consultation shall be requested
and provided only during NACT's normal business hours. NACT shall provide one
(1) standard two (2)-week training course on the Licensed Software to up to five
(5) Verso personnel without charge to Verso. The training course shall be
provided at NACT's Provo, Utah facility at a time mutually agreeable to the
parties. Verso shall be responsible for all travel, lodging and other living
costs for its personnel attending the training course.
(b) The effectiveness of subsections (i) and (ii) immediately below shall
be contingent on the consummation of the JTA Transaction or Verso entering into
a subcontract agreement with JTA to perform services for JTA for the Cable &
Wireless Project (as defined below).
(i) NACT agrees to provide the deliverables listed in Attachment D
hereto (the "DELIVERABLES") to Verso free of charge in connection with the
Cable & Wireless Panama S.A. ("CABLE & WIRELESS") project being performed
by Verso in Panama (the "CABLE AND WIRELESS PROJECT"). Verso hereby
acknowledges the receipt of the Phase 1 Deliverables. The Phase 3
Deliverables shall be delivered by NACT no later than thirty (30) business
days after specifications and definitions for such Deliverables have been
provided by Verso to NACT. The parties acknowledge that the definition of
the Phase 3 Deliverables has not been fully defined. The Deliverables
shall be subject to approval and acceptance by Cable & Wireless. NACT
agrees to make all corrections and changes in the Deliverables required to
obtain such acceptance and approval without charge; provided, that NACT
shall be obligated to contribute no more than 160 hours of development for
and testing of the Phase 3 Deliverables without charge. Once this level is
exceeded, Verso will pay NACT the rate of $100/hour for development for
and $80/hour for testing of the Phase 3 Deliverables. If the 160-hour
level is exceeded, NACT will provide weekly time reports for work
performed on the Phase 3 Deliverables stating in reasonable detail the
work performed and hours worked for each individual assigned to the Cable
& Wireless Project.
(ii) NACT will provide a warranty on each Deliverable at no charge
in accordance with the terms set forth in Section 8(b) for a one (1)-year
period commencing on the date of the acceptance of the Deliverable by
Cable & Wireless. Thereafter, NACT shall make support available for the
Deliverables at an additional charge on reasonable terms (including,
without limitation, price) mutually agreed upon by the parties.
(c) NACT and Verso agree that Verso may only seek damages or any other
remedy for breach of this Section 9 if Verso requests to NACT in writing
performance (or re-
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performance) by NACT of the applicable service and, within 30 days of the
receipt of such notice, NACT has failed to cure such breach.
10. Indemnity.
(a) NACT, at its own cost and expense, shall indemnify and hold harmless
Verso, its Affiliates or assignees, and their respective directors, officers,
employees and agents from and against any claim, demand, cause of action, debt
or liability, including, without limitation, costs and reasonable attorneys'
fees (collectively, "LOSSES"), to the extent that such Losses result from a
third-party claim that the Licensed Software or Documentation, as provided to
Verso by NACT, infringes or violates the Intellectual Property Rights of any
third party.
(b) Verso, at its own cost and expense, shall indemnify and hold harmless
NACT, its Affiliates or assignees, and their respective directors, officers,
employees and agents from and against any Losses to the extent that such Losses
result from a third-party claim that any modifications or alterations of the
Licensed Software or Documentation created by Verso infringe or violate any
Intellectual Property Rights of any third party, or any other third-party claim
arising from the exercise by Verso of its rights hereunder, except to the extent
(i) such Losses result from NACT's gross negligence or willful misconduct or
(ii) NACT would otherwise be responsible for such Losses pursuant to Section
10(a).
(c) The indemnifying party shall be responsible, at its cost and expense,
for the defense and all negotiations relative to the settlement of any claim
subject to the indemnification provisions of this Section 10; provided, however,
that (i) Verso may not settle any claim in a manner that would have an adverse
affect on the rights of NACT in the Licensed Software or Documentation without
the prior written consent of NACT (to be granted in its sole discretion) and
(ii) nothing in this Section 10(c) shall be deemed to prohibit either party from
engaging its own counsel in connection with such claim and participating in its
own defense. The indemnified party shall promptly provide the indemnifying party
with written notice of any claim which the indemnified party believes falls
within the scope of this Section 10 and, at the indemnifying party's cost and
expense, shall provide reasonable assistance to the indemnifying party in
connection with such claims.
(d) Limitation on Liability. EXCEPT FOR DAMAGES ARISING FROM CLAIMS OF
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, CLAIMS OF BREACH OF SECTION 11
("CONFIDENTIALITY") OR EITHER PARTIES' INDEMNIFICATION OBLIGATIONS UNDER THIS
SECTION 10, NEITHER PARTY, NOR ITS AFFILIATES NOR ITS NOR THEIR RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUBCONTRACTORS OR LICENSORS,
SHALL BE LIABLE TO THE OTHER PARTY, OR ITS DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS, AFFILIATES, SUBCONTRACTORS OR LICENSORS, FOR INCIDENTAL, INDIRECT,
PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING DAMAGES FOR
LOSS OF PROFITS, LOSS OF USE OR REVENUE, LOSS OF SAVINGS, OR LOSSES BY REASON OF
COST OF CAPITAL, CONNECTED WITH OR ARISING OR RESULTING FROM ANY PERFORMANCE OR
LACK OF PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH DAMAGES WERE FORESEEABLE
OR A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF
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WHETHER A CLAIM FOR SUCH DAMAGES IS BASED ON CONTRACT, WARRANTY, TORT
(INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), VIOLATION OF
ANY APPLICABLE DECEPTIVE TRADE PRACTICES ACT OR OTHER LAW OR ANY OTHER LEGAL OR
EQUITABLE PRINCIPLE.
11. Confidentiality.
(a) During the term of this Agreement, one party (the "DISCLOSING PARTY")
may disclose proprietary and/or confidential information ("CONFIDENTIAL
INFORMATION") to the other party (the "RECEIVING PARTY"). Information shall be
treated as Confidential Information under this Agreement if the information is
identified or labeled as confidential or proprietary by the Disclosing Party at
the time of disclosure. Notwithstanding the above, the parties agree that the
Licensed Software and the Documentation shall be deemed to be the Confidential
Information of NACT and may be disclosed by Verso only as expressly provided in
this Agreement. Except as expressly provided in this Agreement, the Receiving
Party shall maintain the confidentiality of and shall not disclose the
Confidential Information of the Disclosing Party to any third party. The
Receiving Party shall require its employees, agents and consultants to comply
with this Section. The Receiving Party shall use (and require that employees,
agents and contractors agree in writing to use) at least the same standard of
care as the Receiving Party uses to protect its own Confidential Information of
a similar nature from unauthorized use or disclosure, but in no event less than
reasonable care in the industry. The Receiving Party shall promptly notify the
Disclosing Party upon discovery of any unauthorized use or disclosure of
Confidential Information.
(b) The obligations contained in this Section shall not apply if the
information: (i) was already known to the Receiving Party, other than under an
obligation of confidentiality, at the time of disclosure by the Disclosing Party
(provided that this exclusion shall not apply to the Licensed Software and
Documentation); (ii) was generally available to the public or otherwise part of
the public domain at the time of its disclosure to the Receiving Party; (iii)
became generally available to the public or otherwise part of the public domain
after its disclosure and other than through an act or omission of the Receiving
Party in breach of this Agreement; or (iv) was disclosed to the Receiving Party,
other than under an obligation of confidentiality, by a third party who had no
obligation to the Disclosing Party not to disclose such information to others.
12. Proprietary Notices.
Verso agrees that any copies of the Licensed Software or Documentation (or
documentation containing parts of the Documentation) which it makes pursuant to
this Agreement shall bear all copyright, trademark and other proprietary notices
included therein by NACT or otherwise reasonably requested by NACT.
Notwithstanding the preceding sentence, Verso may add its own copyright or other
proprietary notice to any modification, alteration or derivative of the Licensed
Program or Documentation; provided, however, that such additional notice does
not cover or obliterate any proprietary notice included or requested by NACT.
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13. Termination.
(a) Upon any material breach or default under this Agreement by either
party, this Agreement may be terminated by the non-breaching party upon thirty
(30) days' written notice to the breaching party. Such notice shall become
effective at the end of such thirty (30) day period, unless such breach or
default is cured during such thirty (30) day period.
(b) In the event that this Agreement terminates, Verso shall immediately
cease all use of the Licensed Software and Documentation and return all tangible
embodiments thereof to NACT.
14. General Provisions.
(a) Neither Verso nor NACT may assign this Agreement without the other
party's prior written consent, except Verso or NACT may assign this Agreement
without the other party's consent to any Affiliate, or as part of the sale of
all or any part of its business that includes the Licensed Software, or pursuant
to any merger, consolidation, acquisition or reorganization. An assignee of
either party, if authorized hereunder, shall be deemed to have all of the rights
and obligations of the assigning party set forth in this Agreement. It is
understood that no assignment shall release the assigning party from any of its
obligations hereunder.
(b) Nothing contained in this Agreement shall be deemed or construed as
creating a joint venture or partnership between the parties. Verso and NACT
shall have no power to control the activities and operations of the other and
their relationship shall be as independent contractor with respect to each
other.
(c) All notices required or permitted to be given by one party to the
other under this Agreement will be sufficient if in writing and sent by
certified mail, return receipt requested, to the parties at the following
addresses or to such other address as the party to receive the notice has
designated by notice to the other party pursuant to this paragraph:
if to NACT:
NACT Acquisition, Inc.
000 Xxxx 0000 Xxxxx
Xxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
if to Verso:
Verso Technologies, Inc.
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: CFO
(d) This Agreement shall be governed by and construed under the laws of
the State of Utah.
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(e) If any provision of this Agreement is held invalid or otherwise
unenforceable, the enforceability of the remaining provisions of this Agreement
will not be impaired thereby.
(f) The failure by any party to exercise any right or remedy provided for
herein will not be deemed a waiver of any right or remedy hereunder.
(g) This Agreement sets forth the entire understanding of the parties as
to the subject matter hereof and may not be modified except in a writing
executed by both parties.
(h) Except as expressly provided herein, the rights and remedies of the
parties set forth in this Agreement are not exclusive and are in addition to any
other rights and remedies available to it in law or in equity. Each party agrees
that certain breaches of this Agreement may result in irreparable harm to the
other party, the extent of which would be difficult and impracticable to assess,
and that money damages would not be an adequate remedy for such breach.
Accordingly, each party shall be entitled to seek immediate equitable and other
provisional relief, including, without limitation, specific performance, a
temporary restraining order, and preliminary and permanent injunction, as a
remedy for such breach in addition and without prejudice to any other remedies
available at law or in equity.
(i) The following provisions shall survive any termination or expiration
of this Agreement: Sections 4(a), 5, 6, 7, 8(c), 9(c), 10, 11, 12, 13(c), and
14.
(j) Any delay in or failure of performance by either party under this
Agreement shall not be considered a breach of this Agreement if and to the
extent such delay or failure is caused by an occurrence or occurrences beyond
the reasonable control of the party affected, including, without limitation,
acts of God; acts, regulations or laws of any government; strikes or other
concerted acts of workers; fires; floods; explosions; riots; terrorism, illness;
death; incapacity; disability; wars; rebellion and sabotage; and any time for
performance hereunder shall be extended by the actual time of delay caused by
such occurrence.
(k) This Agreement and any amendment may be signed in counterparts, each
of which will constitute an original and all of which together shall constitute
one and the same instrument. Any signature may be delivered by facsimile, which
shall have the effect of an original signature.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF the parties have executed this Agreement on the date
first set forth above.
VERSO TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
NACT ACQUISITION, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President
ATTACHMENT A
SEE ATTACHED.
ATTACHMENT B
ADDENDUM
TO
MASTER PREFERRED SOURCE CODE ESCROW AGREEMENT
This ADDENDUM to the Master Preferred Source Code Escrow Agreement (this
"Addendum") is made as of January ___, 2005 among DSI Technology Escrow
Services, Inc. ("Escrow Agent"), Verso Technologies, Inc. ("Depositor"), and
________________________ ("Preferred Beneficiary"), who may collectively be
referred to in this Addendum as the Parties.
WHEREAS, Escrow Agent, Depositor (as successor in interest to all of
the assets of Clarent Corporation) and Preferred Beneficiary are parties to a
Master Source Code Escrow Agreement, Master Number 0312027 (together with all
acceptance forms, schedules, addendums, riders, terms and conditions and
amendments thereto, the "Escrow Agreement"), pursuant to which Depositor and
Preferred Beneficiary agree to establish an escrow with DSI to provide for the
retention, administration and controlled access of certain proprietary
technology materials of Depositor or otherwise in Depositor's possession (the
"Deposit Materials");
WHEREAS, the Deposit Materials include certain proprietary
technology and other materials of NACT (the "NACT Materials"); and
WHEREAS, the Parties wish to grant NACT sufficient rights,
independent of Verso, to protect the NACT Materials against unauthorized
disclosure to or use by Escrow Agent or Preferred Beneficiary.
NOW THEREFORE, the Parties hereby agree to modify and supplement the terms
of the Escrow Agreement as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the meanings given to such terms in the Escrow
Agreement.
2. Third Party Beneficiary. The Parties agree that NACT shall be an express
third party beneficiary of the Escrow Agreement with rights to enforce the
provisions of the Escrow Agreement (including, without limitation, Section
2.1, Section 3.3, Article 4 and Section 5.5) with respect to the NACT
Materials against Preferred Beneficiary and Escrow Agent as if it were the
Depositor thereunder.
3. NACT Materials. Depositor shall, in connection with providing any Deposit
Materials to Escrow Agent under the Escrow Agreement, designate for Escrow
Agent that portion of the Deposit Materials constituting NACT Materials
and Escrow Agent agrees to hold such NACT Materials in a separate escrow
account.
4. Notices. Escrow Agent and Preferred Beneficiary shall provide to NACT all
notices (or copies of notices) required to be given to Depositor under the
Escrow Agreement in the same manner and within the same time period for
giving such notice (or copy of such notice) specified in the Escrow
Agreement.
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5. Audit Rights. During the term of the Escrow Agreement, NACT shall have the
right to inspect the written records of Escrow Agent pertaining to the
NACT Materials. Any inspection shall be held during normal business hours
and following reasonable prior notice.
6. Replacement of Escrow Agent. In the event that a new escrow agent is
designated by Depositor and/or Preferred Beneficiary in accordance with
Section 5.3 of the Escrow Agreement or otherwise, such new escrow agent
shall agree to the terms and conditions of this Addendum and (along with
Preferred Beneficiary) terms and conditions substantially similar to the
terms and conditions of the Escrow Agreement prior to the deposit of any
NACT Materials with such escrow agent.
7. Precedence. Except as expressly set forth herein, all provisions of the
Escrow Agreement shall remain in full force and effect. In the event of a
conflict between the terms of the Escrow Agreement and this Addendum, the
terms of this Addendum shall control.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
Effective Date by their duly authorized representatives.
VERSO TECHNOLOGIES, INC. DSI TECHNOLOGY ESCROW SERVICES, INC.
By: By:
Title: Title:
Date: Date:
PREFERRED BENEFICIARY
By:
Title:
Date:
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ATTACHMENT C
VERSO END USER SOFTWARE LICENSE AGREEMENT
This Verso End User Software License Agreement ("Agreement") governs the
provision of software and related documentation ("Software" or "Product") from
Verso Technologies, Inc., a Minnesota corporation ("Verso" or "Seller") to you
("Buyer" or "you") unless you have previously entered into an agreement that by
its provisions supersedes this Agreement. BY USING THE SOFTWARE OR PRODUCT,
BUYER IS EXPRESSLY ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF BUYER DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, BUYER IS
NOT ENTITLED TO USE THE SOFTWARE OR PRODUCT. BUYER MAY RETURN THE SOFTWARE OR
PRODUCT TO THE SOURCE FROM WHICH IT WAS PURCHASED FOR A REFUND IF THE TERMS AND
CONDITIONS OF PURCHASE SO PROVIDE.
1. SOFTWARE LICENSE. The Software is licensed, not sold, to Buyer, and is
provided in object code form only. Subject to the terms of this Agreement
("Terms"), Verso grants to Buyer a personal, non-transferable, non-exclusive
license to use the object code of the Software solely for Buyer's own internal
business purposes (or the provision of telecommunication services to Buyer's
direct customers) in accordance with the documentation, in the country in which
Buyer acquired the Software, and only on the computer on which the Software is
first installed (or a similar replacement unit) (the "License"). UNLESS
OTHERWISE PROVIDED, EACH COPY OF THE SOFTWARE MAY BE USED ON A SINGLE COMPUTER
ONLY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE LICENSE IS LIMITED TO BUYER
AND IS NON-TRANSFERABLE. ANY ATTEMPTED TRANSFER OF THE SOFTWARE IN VIOLATION OF
THIS RESTRICTION WILL BE VOID.
Buyer shall not (nor shall Buyer permit any third party to): (i) use the
Software to manage, use or control telephony resources in excess of those for
which Buyer have validly acquired the right to do so (e.g. the maximum number of
"ports", "spans" or other measures for which a valid and accepted sales order
has been placed with Verso or its authorized resellers); (ii) decompile,
disassemble, reverse engineer, or otherwise attempt to derive the source code of
the Software; (iii) embed the Software, in whole or in part, within another
product; (iv) modify, adapt, translate, copy, create derivative works of the
Software; (v) distribute, sell or resell, assign, pledge, sublicense, lease,
loan, rent, timeshare, use in a service bureau, assign, deliver or otherwise
transfer the Software; and (vi) remove from the Software or alter any of the
trademarks, trade names, logos, patent or copyright notices or markings, or add
any other notices or markings to the Software. Buyer may copy the Software
solely for archival and back-up purposes or to replace a worn or defective copy.
All copies of the Software and Product documentation including, without
limitation, translations, compilations, or partial copies, are the proprietary
property and confidential information of Verso and may not be used or disclosed
except as permitted by these Terms. Buyer shall not disclose, provide or
otherwise make available the Software or Product documentation or any part or
copies thereof to any person other than employees of the Buyer who have a
legitimate need to know. Buyer shall take all appropriate actions necessary to
extend Buyer's confidentiality obligations under these Terms to any person
permitted access to the Software or Product documentation.
All right, title and interest to, and all applicable rights in patents,
copyrights, trademarks, trade names and trade secrets and other proprietary
rights relating to or in the Software or any of its parts shall remain solely
vested in Verso or its suppliers. The License is strictly limited to its express
terms and Verso reserves any rights in the Software not explicitly granted to
Buyer. Any use of the Software outside the scope of the License will be deemed
to be a material breach of these Terms.
Verso may terminate the License if (i) Buyer breaches any of the provisions of
these Terms and fails to cure such breach within fifteen (15) days after receipt
of written notice thereof from Verso or (ii) if payment to Verso for Product is
more than thirty (30) days past due. Buyer agrees that upon expiration of the
License, it will immediately return or destroy all copies of the Software of
portions thereof and, if requested by Verso, will certify in writing to Verso
the destruction or return of the Software and all copies thereof. Buyer
acknowledges that Products may contain features that would prevent the use of
the Products without a valid license. Buyer agrees that Verso may update,
upgrade or revise its software products at any time and in doing so incurs no
obligation to furnish the same to Buyer under these Terms. Additional
restrictions may apply if a new or updated version of the Software is provided
to Buyer.
2. LIMITED SOFTWARE WARRANTY. If Buyer has purchased the software directly from
Verso, then Verso warrants to Buyer that for a period of ninety (90) days (the
"Software Warranty Period") beginning upon the date of shipment, the Software
will substantially conform to its associated documentation when used in a
computing environment (including on computer hardware and with operating
systems) specified as "compatible" in the documentation. Verso's sole and
exclusive obligation, and Buyer's sole and exclusive remedy, for breach of the
foregoing warranty shall be, at Verso's option, to (a) correct any reproducible
error in the Software; (b) replace the Software with a substantially equivalent
substitute that conforms to the warranty set forth above; or (c) refund to Buyer
the fees actually paid by Buyer to Verso for the non-conforming Software.
THE EXPRESS WARRANTIES IN THIS SECTION 2 ARE IN LIEU OF ALL OTHER WARRANTIES,
WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PRODUCTS INCLUDING,
WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, QUIET ENJOYMENT, AND
ACCURACY. NEITHER VERSO NOR ITS SUPPLIER REPRESENT OR WARRANT THAT THE OPERATION
OF THE PRODUCTS (INCLUDING THE SOFTWARE) WILL BE UNINTERRUPTED OR ERROR-FREE.
BUYER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS
WARRANTIES IN THIS SECTION 2 AND THAT NO WARRANTIES ARE MADE BY VERSO OR ANY OF
ITS SUPPLIERS.
Some jurisdictions do not allow the disclaimer of implied warranties, so the
above disclaimer of implied warranties may not apply to Buyer, in which case the
duration of the implied warranties is sixty (60) days from when the Product is
received by Buyer.
3. LIMITATION OF LIABILITY. IN NO EVENT WILL VERSO OR ITS SUPPLIERS BE LIABLE
FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING
WITHOUT LIMITATION LOST PROFITS) ARISING UNDER THESE TERMS, ANY ORDER OR IN
CONNECTION WITH THE PRODUCT REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH
DAMAGES (WHETHER IN CONTRACT, TORT, OR OTHERWISE), EVEN IF VERSO OR ITS
SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH
DAMAGES ARE FORESEEABLE. VERSO'S TOTAL AGGREGATE LIABILITY IN CONNECTION WITH
THESE TERMS, ANY ORDER AND THE PRODUCTS REGARDLESS OF THE FORM OF ACTION GIVING
RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE), SHALL NOT
EXCEED THE ORIGINAL COST TO BUYER OF THE SPECIFIC PRODUCT, PRO-RATED ON A
MONTHLY BASIS OVER THE SIXTY (60) MONTH PERIOD BEGINNING ON ITS INSTALLATION
DATE. THE BUYER AGREES THAT SECTIONS 2 AND 3 SHALL BE ENFORCEABLE TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW AND ARE FUNDAMENTAL PARTS OF THE BASIS OF
VERSO'S BARGAIN HEREUNDER, AND VERSO WOULD NOT BE ABLE TO PROVIDE THE PRODUCT TO
BUYER ABSENT SUCH LIMITATIONS. "DAMAGES" AS USED IN THESE TERMS MEANS CLAIMS,
LIABILITIES, DAMAGES, LOSSES AND EXPENSES OF ANY KIND.
NEITHER VERSO NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY THIRD PARTY CLAIMS
RELATING TO THE PRODUCTS AND BUYER AGREES TO INDEMNIFY, DEFEND AND HOLD VERSO
AND ITS SUPPLIERS HARMLESS AGAINST ANY SUCH CLAIMS OR DAMAGES RELATED THERETO.
4. INTELLECTUAL PROPERTY INFRINGEMENT. Verso will defend any action brought by a
third party against Buyer to the extent that the action is based upon a claim
that Product in its original manufactured form when used strictly in accordance
with Verso documentation infringes any U.S. patent, copyright or trademark or
misappropriates any trade secret, and will pay those costs and damages finally
awarded in any such action that are specifically attributable to such claim,
provided that Verso is notified promptly in writing of the action, and at
Verso's request and at its expense, is given control of such action and Buyer
provides all requested information and assistance to settle or defend the same.
Verso may also, at its option, (a) obtain for Buyer the right to continue to use
the Product; (b) modify or replace the Product with non-infringing Product; or
(c) require Buyer to return the Product and upon its return refund the value of
the Product as amortized over a presumed sixty (60) month depreciation period.
Verso shall have no obligation to defend or indemnify Buyer for any claims
arising out of (i) combinations of the Product with other products not of
Verso's original manufacture or (ii) any use of the Product not in strict
accordance with the Verso documentation or these Terms. THE FOREGOING STATES THE
SOLE AND EXCLUSIVE LIABILITY OF VERSO AND BUYER'S SOLE AND EXCLUSIVE REMEDY FOR
CLAIMS AND ACTIONS RELATING TO OR ARISING OUT OF THE INFRINGEMENT OF
INTELLECTUAL PROPERTY RIGHTS AND IS IN LIEU OF ANY WARRANTY AGAINST INFRINGEMENT
OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY.
5. ENTIRE AGREEMENT. These Terms constitutes the entire understanding between
the parties relating to the subject matter hereof and supersede all prior or
concurrent communications, representations or agreements, either oral or
written, with respect to the subject matter hereof. No amendment or modification
of any provision of these Terms or waiver thereof shall be binding upon Verso
unless made in writing by Verso. ANY OF THE TERMS AND PROVISIONS OF BUYER'S
PURCHASE ORDER OR OTHER DOCUMENTS WHICH ARE DIFFERENT FROM, IN ADDITION TO, OR
INCONSISTENT WITH CONDITIONS HEREOF OR WHICH CREATE ADDITIONAL OBLIGATIONS ON
VERSO ARE REJECTED AND SHALL NOT BE BINDING ON VERSO.
6. MISCELLANEOUS. Buyer may not assign this Agreement or its rights hereunder
without obtaining the prior written approval of Verso. Any assignment in
violation of the foregoing will be voidable at the election of Verso. If the
Software or Product is for use outside the United States, Buyer agrees to comply
fully with all relevant regulations of the United States Department of Commerce
and with the United States Export Administration Act to insure that the Software
and Product is not exported in violation of United States law. Buyer shall
defend, indemnify and hold Verso and Verso suppliers harmless from and against
any claims arising out of its violation of any export control laws. These Terms
shall for all purposes be governed by and interpreted in accordance with the
laws of the State of Georgia as those laws are applied to contracts entered into
and to be performed entirely in Georgia by Georgia residents. The parties
expressly agree that the United Nations Convention on the International Sale of
Goods shall not apply to these Terms. The Buyer agrees that it shall commence
any suit or proceeding arising out of or relating to this Agreement in a federal
court in Atlanta, Georgia or in state court in Xxxxxx County, Georgia, and
irrevocably submits to the jurisdiction and venue of such courts. No action,
regardless of form, arising out of this Agreement may be brought by Buyer more
than two (2) years after the cause of action has arisen. The waiver by either
party of a breach of any obligation shall not constitute a waiver of any
subsequent breach. All prices are in U.S. dollars unless otherwise indicated or
apparent from the context. All subsequent purchases of Product by Buyer shall be
subject to these same terms and conditions unless otherwise provided. This
Agreement is prepared and executed in the English language only, which language
shall be controlling in all respects. If any provision (or portions thereof) of
this Agreement is held by a court of competent jurisdiction to be unenforceable
for any reason, the remaining provisions (or portions thereof) shall be
unaffected and remain in full force and effect and the unenforceable provision
shall be given effect as near as possible to its original intent. Signatures on
documents may be in counterparts, which together constitute one and the same
document. Signatures may be transmitted by facsimile and are deemed delivered
when transmitted to the other party.
Version dated: April 23, 2003
15
ATTACHMENT D
PHASE 1 DELIVERABLES
NTS Modifications
- Call detail report
- Account revenue report
- Global revenue report
- International revenue report
- Regional revenue report
- Public telephone revenue report
- Public versus other revenue report
- CDR export to NTS
This task is necessary to off-load the CDRs to the NTS for detailed
reporting. This task is also beneficial as it will be required to
integrate the JTA and NACT products.
- Fraud control report
PHASE 3 DELIVERABLES
- Generate queries
Cable & Wireless to provide a definition of queries that will be run
against the CDR database that will check user activity against history
looking for various types of potential fraud activity.
As of the Effective Date, NACT does not have the definition of these
queries
- Generate alerts
When offending accounts are found using the process outlined in the prior
requirement, Cable & Wireless wants to send out alerts via email and/or
lock the account. The definition of the action to take will be defined by
Cable & Wireless.
As of the Effective Date, NACT does not have the definition of the action
to take.
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