EXHIBIT 10.11
[LOGO OF BEECHWOOD DATA SYSTEMS APPEARS HERE]
INTERCOM
END-USER LICENSE AGREEMENT
BETWEEN
BDSI, INC. D/B/A BEECHWOOD DATA SYSTEMS and ONE POINT COMMUNICATIONS
000 XXXXXX XXX. 0000 XXXXXXXXX XXXXXX
XXXXX, XXX XXXXXX 00000 XXXXXXXXXX, XX 00000
("Beechwood") ("Licensee")
"Effective Date" ______________
This Agreement is made and entered into as of the Effective Data between
Beechwood and Licensee. This Agreement is the complete and exclusive statement
of the parties obligations and responsibilities to each other and supersedes any
other proposal, representation, or other communication by or on behalf of
Beechwood relating to the subject matter herein, except as explicitly stated
herein. Exhibit A product and services descriptions and pricing attached hereto,
is made part of this License Agreement.
1. DEFINITIONS
1.1 "Licensed Program" or "Licensed Programs" shall mean the computer software
in executable code form described in Exhibit A (together with all manuals
and updates, as may be modified by Beechwood from time to time at
Beechwood's sole discretion).
1.2 "License Fee" or "License Fees" shall mean the fees payable by Licenses to
Beechwood in exchange for the license granted for the Licensed Programs.
The License Fees are set forth in Exhibit A.
1.3 "Primary License Location" and Secondary License Location" shall mean
those locations as described in Exhibit A.
1.4 "Authorized Processor" shall mean the computer system(s) on which the
Licensed Program is authorized to run, as described in Exhibit A.
1.5 "Warranty Period" shall mean the period of time described in Exhibit A as
the Warranty Period.
1.6 "Error" shall mean any failure of the Licensed Program to conform in all
material respects to the functional specifications as described in the End
User Manual and the System Administrator Guide for the Licensed Program
published from time to time by Beechwood.
1.7 "Error Correction" shall mean a software modification or addition that,
when made or added to the Licensed Program, establishes material conformity
of the Licensed Program to the functional specifications, or a procedure of
routine that, when observed in the regular operation of the Licensed
Program, eliminates the practical adverse effect on Licensee of such
nonconformity.
1.8 "Maintenance Release" shall mean a new version of the Licensed Program
which contains one or more Error Corrections.
1.9 "Enhancement" shall mean any modifications or addition that, when made or
added to the Licensed Program, materially changes or improves its utility,
efficiency or functional capability beyond what is described in the
functional specifications. Enhancements may be designated by Beechwood as
minor or major, depending on Beechwood's assessment of their value and of
the function added to the pre-existing Licensed Program.
1.10 "Upgrade" shall mean a new version of the Licensed Program which contains
one or more Enhancements.
1.11 "Releases" shall mean new versions of the Licensed Program, which new
versions may include either Maintenance Releases, Enhancement Releases or
Functional Releases. Now Releases delivered to Licensee shall be considered
part of the Licensed Program and shall replace previous Releases delivered
to Licensee.
1.12 All references to the "sale" of Licensed Programs shall mean the granting
of a license or sublicense to the user of the Licensed Programs.
1.13 "Normal Working Hours" shall mean the hours between 9:00 A.M, and 6:00 P.M,
(Beechwood local time) on the days Monday through Friday, excluding
regularly scheduled holidays of Beechwood.
1.14 "Maintenance Request" (MR) shall mean a request from Licensee to correct an
Error deleted in the Licensed Program or a written request for an
enhancement to the Licensed Program.
1.15 "Severity Level 1" shall mean that the Licensed Program is inoperative and
the Licensee's inability to use the Licensed Program has a critical effect
on the Licensee's operations. This condition is generally characterized by
complete system failure, but it is not restricted to that description.
Severe degradation of advertised system functionality, or other degradation
of service by the system in question is also a characteristic of a Severity
Level 1 condition. Severity #1 troubles require immediate response, and
continuous (7x24) attention until the problem is resolved to the customer's
satisfaction.
1.16 "Severity Level 2" shall mean that a major feature of the Licensed Program
is inoperative, but the system is usable by the Licensee to a limited
degree. The inoperative feature of the Licensed Program severely restricts
Licensee operations, but has a less critical effect than a Severity Level 1
condition.
1.17 "Severity Level 3" shall mean that the Licensed Program is usable by the
Licensee, but a non-critical feature is missing or inoperative. The
condition is not critical to overall customer operations, and does not
severely restrict such operations.
1.18 "Severity Level 4" shall mean that the Licensed Program has non-critical or
intermittent defects which do not cause any features to be inoperative.
Questions concerning system operation, configuration, functionally or other
system related matters may be classified as Severity Level 4.
2. LICENSE
2.1 In consideration of the payment of the License Fees in accordance with the
schedule and in the amounts set forth in Exhibit A, Beechwood grants
Licensee a perpetual, non-transferable non-exclusive license to use the
Licensed Programs in machine-readable form solely on the computers and at
the locations set forth herein and to use related user documentation
provided to Licensee by Beechwood, subject to the terms and conditions of
this Agreement.
3. SCOPE OF RIGHTS
3.1 Licensee may:
3.1.1 Install the Licensed Program at the Primary License Location.
3.1.2 Use the Licensed Program on the Authorized Processor situated at
the Primary License Location, for the sole purpose of serving the
internal needs of Licensee and its subsidiaries.
3.1.3 make a number of copies, as set forth in Exhibit A, of the Licensed
Program in machine-readable form, for resting purposes only, on
secondary processors, provided that Beechwood's proprietary legends
are included. These secondary processors may be located at either
the Primary License Location or the Secondary License Location.
3.1.4 maintain at all times a single copy of the Licensed Program for
back-up and archival purposes.
3.2 Licensee may not
3.2.1 use, copy or modify the Licensed Program, or any copy, adaptation,
transcript, or merged portion thereof, except as expressly
authorized, in writing, by Beechwood:
3.2.2 transfer Licensee's rights or obligations under this Agreement
3.2.3 install the Licensed Program on any other computer systems or use it
at any other location not authorized by this Agreement,
3.2.4 reverse engineer or decompile the Licensed Program or any component
thereof:
3.2.5 remove any copyright notices, trademark notices, or other
proprietary legends on the Licensed Program.
3.2.6 rent, lease, or loan the Licensed Program or any portion thereof to
any third party.
3.2.7 use the Licensed Program to act as a service bureau, provide
multiuser licensing capability to any party, or enter into a
timesharing arrangement by which any third party may utilize the
Licensed program.
3.2.8 register or use any propriety legends of Beechwood including but not
limited to copyright and trademarks without the prior written
permission of Beechwood.
4. OBLIGATIONS OF LICENSEE
4.1 The Licensee shall pay the License Fee in accordance with the terms set
forth in Exhibit A. Failure of Licensee to pay amounts due within sixty
(60) days of the invoice shall give Beechwood the right to terminate this
Agreement. Invoices and payments may be transmitted electronically by prior
arrangement.
4.2 Licensee is solely responsible for the payment of any taxes, (including but
not limited to sales or use taxes, intangible taxes, and customs duty)
resulting from Licensee's acceptance of this License and Licensee's
possession and use of the Licensed Program. Beechwood reserves the right to
have Licensee pay any such taxes as they fall due to Beechwood for
remittance to the appropriate authority. Licensee agrees to hold harmless
Beechwood from any and all claims and liability arising out or from
Licensee's failure to report or pay such taxes.
4.3 Licensee hereby indemnifies Beachwood and any other party having a
proprietary interest in the Licensed Program from all claims, including but
not limited to attorneys fees, expert fees and costs of defense, settlement
or verdict or any other liability arising out of Licensee's use of the
Licensed Program.
5. INSTALLATION AND ACCEPTANCE
5.1 Licensee shall be responsible for the installation of the Licensed Program,
except as otherwise provided in Exhibit A.
5.2 The Licensed Program shall be deemed accepted by Licensee after thirty (30)
days from the date of installation or when put into production unless
Licensee provides Beechwood within ten (10) days thereafter with a written
description of any bona fide material defects in the Licensed Program.
6. PROPRIETARY PROTECTION OF LICENSED PROGRAM.
6.1 Beechwood shall have sole and exclusive ownership of all rights, title, and
interest in and to the Licensed Program and all modifications and
enhancements thereof (including ownership of all trade secrets and
copyrights pertaining thereof), subject only to the rights and privileges
expressly granted by Beechwood to Licensee by this Agreement. This
Agreement does not provide Licensee with title or ownership of the Licensed
Program, but only a right of limited use. Licensee must keep the Licensed
Program free and clear of all claims, liens and encumbrances.
6.2 The Licensed Program is a commercially valuable proprietary product of
Beechwood, and the design and development of which reflect the effort of
skilled development experts and the Investment of considerable time and
money. The Licensed Program is treated by Beechwood as confidential and
contains substantial trade secrets of Beechwood which Beechwood has
entrusted to Licensee in confidence to use only as expressly authorized by
this Agreement. Beechwood reserves all rights and benefits afforded under
U.S. Federal Copyright Law and applicable International treaties, in all
software programs and user materials that constitute the Licensed Program,
and in all system documentation related thereto.
6.3 Licensee may not, at any time, disclose or disseminate the Licensed Program
to any person who does not need to obtain access thereto consistent with
Licensee's rights under this Agreement. Under no circumstances may Licensee
disclose or disseminate the Licensed Program to any competitor of
Beechwood. Licensee will devote its best efforts to insure that all
Licensee's personnel and other persons afforded access to the Licensed
Program shall protect it against improper use, dissemination or disclosure.
Licensee shall use its best efforts to assist Beechwood in identifying and
preventing any unauthorized use or disclosure of the Licensed Program or
any portions thereof or any of the algorithms or logic contained therein.
Without limitation of the foregoing, Licensee shall advise Beechwood
immediately in the event Licensee learns of or has reason to believe that
any person who Licensee has given access to the License Program, or any
portion thereof, has violated or intends to violate the terms of this
Agreement or any related non-disclosure agreement and the Licensee will, at
Licensee's expense, cooperate with Beechwood in seeking injunctive or other
equitable relief in the name of Licensee or Beechwood against any such
person.
6.4 Licensee acknowledges that, in the event of Licensee's breach of any of the
foregoing provisions, Beechwood will not have an adequate remedy in money
or damages, Beechwood shall therefore be entitled to obtain an injunction
against such breach from any court, or forum of competent jurisdiction
immediately upon request. Beechwood's right to obtain injunctive relief
shall not limit its rights to seek further remedies.
6.5 Licensee's obligations hereunder shall survive the termination of this
Agreement.
7. MAINTENANCE AND SUPPORT SERVICES
7.1 The Maintenance Agreement is attached hereto and made a part of this
Agreement. During the Initial Term and each Renewal Term, as long as
maintenance is made generally available by Beechwood to its customers.
Beechwood shall provide the maintenance services (the "Maintenance
Services") described in the Maintenance Agreement.
8. TERM AND TERMINATION
8.1 Upon execution of this Agreement by both parties and payment of all license
fees, Beechwood grants to Licensee and Licensee hereby accepts a perpetual
license to use the Licensed Program in accordance with the terms of this
Agreement.
8.2 In addition to its rights as set forth elsewhere in this Agreement,
Beechwood shall have the right to terminate this Agreement upon ten (10)
days written notice to Licensee upon: (a) violation or breach by Licensee,
its officers or employees of any provisions of this Agreement (b) failure
of Licensee to pay all license fees within sixty (60) days of receipt of
invoice; (c) the termination of the business of the Licensee; (d) voluntary
or involuntary filing of bankruptcy petition or similar proceeding under
state law with respect to Licensee; or (e) Licensee's becoming insolvent or
making any assignment for the benefit of creditors.
8.3 The termination of this Agreement, shall automatically, and without any
further action by Beechwood, terminate and extinguish all licenses granted
herein, in the event of termination of this Agreement pursuant to any
provision of this Agreement, Beechwood shall have the right, at any time,
to take immediate possession of the licensed Program, and all copies
thereof wherever located, without demand or notice. Within five (5) days
after the termination of the License granted hereunder, Licensee shall
return to Beechwood the Licensed Program, or upon request of Beechwood,
destroy the Licensed Program and all copies thereof and certify in writing
that the same have been destroyed. Notwithstanding the foregoing, all
provisions hereof relating to confidentiality or non-disclosure shall
survive the termination or expiration of this Agreement.
9. PROPRIETARY RIGHTS AND CONFIDENTIALITY
9.1 Beechwood represents, and Licensee acknowledges that Beechwood owns all
right, title and interest in the Products, trademarks, copyrights, and all
intellectual property relating thereto, subject to the rights expressly
granted by Beechwood hereunder.
9.2 Notwithstanding anything contained herein to the contrary, Beechwood, at
its own expense, shall indemnify and hold harmless Licensee and defend any
action brought against same, with respect to any claim, demand, cause of
action, or proceeding to the extent that it is based upon a claim that the
Licensed Program infringes or violates any patents, copyrights, trade
secrets, licenses or other proprietary rights of any third party. Beechwood
shall have the right to defend, or as its option settle, any such claim,
and Beechwood will have sole control of any such action or settlement
negotiations. Licensee may, at its own expense, assist in such defense if
it so chooses, provided that Beechwood shall control such defense and all
negotiations relative to the settlement of any such claim. Licensee shall
promptly notify Beechwood of any claim which Licensee believes fails within
the scope of this Section. Furthermore, in the event that any such Licensed
Program is held to constitute an infringement and its use is enjoined,
Beechwood shall have the obligation, at its option and at its own expense,
to either (a) procure for Licensee the right to continue to use the
infringing Licensed Program, (b) replace it with suitable non-infringing
software, (c) suitably modify the Licensed Program so it no longer
infringes, or (d) refund the unamortized portion of the License Fee paid by
Licensee to Beechwood under this Agreement based upon a five (5) year
straightline depreciation and terminate this Agreement. The foregoing
states Beechwood's entire liability with regard to the infringement of any
rights of any third party and Licensee hereby expressly waives any other
such liabilities.
9.3 As used in this Agreement the term "Confidential Information" shall mean
any information in tangible form disclosed by one party to another pursuant
to this Agreement, which is marked "Confidential", "Proprietary" or in some
other manner to indicate its confidential nature. Confidential Information
may also include oral information disclosed by one party to another
pursuant to this Agreement, provided that such information is designated as
confidential at the time of disclosure and reduced to a written summary by
the disclosing party, within thirty (30) days, after its oral disclosure.
9.4 Each party shall treat as confidential all Confidential Information
provided by the other party, shall not use such Confidential Information
except as expressly set forth herein or otherwise authorized in writing,
shall implement reasonable procedures to prohibit the disclosure,
unauthorized duplication, misuse or removal of the Confidential Information
and shall not disclose such Confidential Information to any third party.
Without limiting the foregoing, each of the parties shall use at least the
same procedures and degree of care which it uses to prevent the disclosure
of its own confidential information of like importance to prevent the
disclosure of Confidential Information, and shall in any event use no less
than reasonable procedures and a reasonable degree of care.
9.5 Notwithstanding the above, neither party shall have liability to the other
with regard to any Confidential Information which:
9.5.1 was generally known and available in the public domain at the time
it was disclosed or becomes generally known and available in the
public domain through no fault of the receiver.
9.5.2 was known to the receiver at the time of disclosure as shown by the
files to the receiver in existence at the time of disclosure;
9.5.3 is disclosed with the prior written approval of the discloser.
9.5.4 becomes known to the receiver from a source other than the discloser
without breach of this Agreement by the receiver and in a manner
which is otherwise not in violation of the discloser's rights; or
9.5.5 is disclosed pursuant to the order or requirement of a court,
administrative agency, or other governmental body; provided, that
the receiver shall provide reasonable advance notice thereof to
enable the discloser to seek a protective order or otherwise prevent
such disclosure.
10. WARRANTY
10.1 Beechwood warrants that the Licensed Program will perform substantially as
set forth in the documentation during the Warranty Period as specified in
Exhibit A.
10.2 TO THE FULL EXTENT PERMITTED BY LAW. Beechwood HEREBY DISCLAIMS ANY
CONDITIONS, PROMISES, REPRESENTATIONS, AND WARRANTIES, WHETHER IMPOSED BY
STATUTE OR BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE LICENSED
PROGRAM, INCLUDING ITS CONFORMITY TO ANY REPRESENTATIONS OR DESCRIPTIONS
NOT EXPRESSLY SET OUT HEREIN, Beechwood HEREBY DISCLAIMS THE EXISTENCE OF
ANY OTHER WARRANTIES OR CONDITIONS WHATSOEVER INCLUDING THE IMPLIED
WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NO ORAL
OR WRITTEN INFORMATION OR ADVICE GIVEN BY Beechwood, ITS AGENTS OR
REPRESENTATIVES SHALL CREATE A WARRANTY OR CONDITION OR IN ANY WAY INCREASE
THE SCOPE OF THIS WARRANTY.
10.3 Nothing in this Agreement is intended or shall be construed as excluding or
modifying any statutory rights, warranties or conditions which are
applicable to this Agreement or the software supplied hereunder by virtue
of any national or state Fair Trading, Trade Practices or other consumer
legislation and which may not be modified or excluded. If permitted by such
legislation, however, Beechwood's liability for any breach of any such
warranty or condition shall be and is hereby limited to, as Licensee's
exclusive and sole remedy for any breach of warranty for which Beechwood
may be responsible, return of any License Fees paid to Beechwood by
Licensee.
10.4 IN NO EVENT SHALL Beechwood BE LIABLE FOR ANY LOSS OF PROFIT, ANY
INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES;
(INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS,
BUSINESS INTERRUPTION, AND LOSS OF BUSINESS INFORMATION OR COMPUTER
PROGRAMS OR BUSINESS RECORDS) EVEN IF Beechwood HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH CLAIMS OR DEMANDS, THE LIMITATION UPON DAMAGES AND
CLAIMS INTENDED TO APPLY WITHOUT REGARD TO WHICH OTHER PROVISIONS OF THIS
AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. In any event the
cumulative liability of any party to Licensee for all claims related to the
Licensed Program and this Agreement whether in contract, ?????, strict
liability or otherwise, shall not exceed the License Fee paid to Beechwood
hereunder.
10.5 This warranty and limitation of liability reflects an allocation of risk
between the parties as is permitted by the Uniform Commercial Code as
adopted in New Jersey, U.S.A.
10.6 In any event the cumulative liability of any party to Licensee for all
claims related to the Licensed Program and this Agreement, whether in
contract, ????, or strict liability, shall not exceed the total amount of
License Fee paid to Beechwood hereunder.
11. ARBITRATION
11.1 Unless otherwise set forth in this Agreement any dispute arising from or
related to this Agreement, with the exception of any violation of
Beechwood's proprietary rights, shall be settled by binding arbitration.
The arbitration shall be venued in New Jersey and be conducted under the
auspices and, unless otherwise set forth herein, pursuant to the rules to
the American Arbitration Association. Licensee hereby submits itself to the
jurisdiction of the American Arbitration Association in New Jersey. A panel
of three (3) arbitrators shall be selected from the American Arbitration
Association computer disputes panel. The New Jersey Rules of Evidence in
effect as of the hearing shall be applicable. Both parties shall be
entitled to full discovery except for depositions. The decision of the
arbitrator shall be binding and may be entered as a judgment and finding of
fact in any court of competent jurisdiction in the United States in any
state.
12. GENERAL
12.1 This Agreement shall be goverened by and construed in accordance with the
laws of the State of New Jersey, U.S.A.
12.2 No modification of this Agreement shall be binding unless it is in writing
and is signed by an authorized representative of both parties.
12.3 Any notices required or permitted under this Agreement shall be in writing
and delivered in person or sent by Registered of Certified Mail, Return
Receipt Requested, with proper postage affixed, Federal Express, UPS or
such other private carrier which provides the sender with a proof of
delivery. Notice shall be deemed effective upon proof of receipt.
12.4 The relationship of Beechwood and Licensee established herein is that of
independent contractors, and nothing contained in this Agreement shall be
construed (i) to give either party the power to direct or control the
day-to-day activities of the other, or (ii) to constitute the parties as
partners, joint ventures, or otherwise as participants in a joint
undertaking, Licensee, its agents and employees are not the
representatives of Beechwood for any reason, and shall have no power to
represent, act for, bind, or otherwise create or assume any obligation on
behalf of Beechwood.
12.5 Force Majeure. Neither party shall be liable to the other for its failure
to perform any of its obligations hereunder during any period in which
such performance is delayed by circumstance beyond its reasonable control
including, but not limited to: fire, flood, war, embargo, strike, riot,
inability to secure materials and transportation facilities, or the
intervention of any government authority. If such delaying cause shall
continue for more than ninety (90) days, the party injured by the
inability of the other to perform shall have the right upon written
notice to either (1) terminate the Agreement with respect to materials
not already shipped, or (2) treat this Agreement as suspended during the
delay, and postpone any deadlines by the duration of the delay.
12.6 This Agreement is the complete and exclusive statement of the parties'
obligations and responsibilities to each other and supersedes any other
proposal, representation, or other communication by or on behalf of
Beachwood relating to the subject matter herein, except as explicitly
stated herein, Exhibit A, attached hereto, is made part of this License
Agreement.
12.7 In the event that any of the terms of this Agreement is or becomes or is
declared to be invalid or void by an Court or tribunal of competent
jurisdiction, such terms or term shall be null and void and shall be
deemed severed from this Agreement and all the remaining terms of this
Agreement shall remain in full force and effect.
12.8 Licensee hereby submits itself to personal jurisdiction in the State
Courts and Federal Courts located in the State of New Jersey and to an
appropriate court of competent jurisdiction for injunctive relief and to
the venue of the New Jersey office of the American Arbitration
Association in the event of other disputes arising from or out of this
Agreement.
12.9 The failure of Beachwood to enforce any provision of this Agreement shall
not constitute or be construed as a waiver of Beachwood's rights to do
so.
12.10 In the event that Beachwood retains counsel and/or consultants or expert
witnesses to enforce any right under this Agreement and is successful in
the prosecution of its claims or in its defense. Licensee agrees to pay
to Beachwood the actual dollar fees incurred by Beachwood for counsel
fees, consultant fees, and expert witness fees, collection agency costs
or any other costs of any nature whatsoever in addition to all costs of
suit incurred in connection with the prosecution of any such matter.
12.11 Any purchase orders or other documents sent to Beachwood by Licensee,
subsequent to the execution of this Agreement in so far as any terms of
such document(s) are inconsistent with this Agreement shall be void and
the terms of this Agreement shall prevail.
12.12 The Licensee may not assign its rights of duties under this Agreement
without the prior written consent of Beachwood.
12.13 The parties agree that the Uniform Commerical Code shall apply to this
Agreement.
12.14 The waiver by either party of any term of this Agreement shall not be
deemed to constitute a continuing waiver thereof nor of any further or
additional right that such party may hold under this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their authorized representatives.
BDSI, INC. ONEPOINT COMMUNICATIONS
----------------------------------- ----------------------------------------
("Beachwood") ("Licensee")
/s/ Xxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxxx
----------------------------------- ----------------------------------------
SIGNATURE SIGNATURE
Xxxx Xxxxxx Xxxxxxx X. Xxxxxxx
----------------------------------- ----------------------------------------
NAME NAME
President President
----------------------------------- ----------------------------------------
TITLE TITLE
3/7/97 2-28-97
----------------------------------- ----------------------------------------
DATE DATE
EXHIBIT A
PRODUCT AND SERVICES DESCRIPTIONS AND PRICING
ONEPOINT COMMUNICATIONS
INTERCOM Software:
. LSR Send Component
. Data Translator
. Message Formatter
. External Communication Engine
. Industry standard LSR validation and editing rules
. Web Forms GUI Interface
. API Contracts
Total License Fee:
INTERCOM core and one trading partner implementation; $375,000
Additional trading partner implementation (LSR Send) $ ***
Total Maintenance Fee:
INTERCOM core and one trading partner implementation; $ ***
Pricing for Additional INTERCOM modules; (pricing good for 2 years)
1. Two Additional Trading Partner Implementations (LSR Send) $ ***
2. Directory Service Requests* $ ***
3. Pre-Service* $ ***
4. Maintenance for Items 1, 2 ,3 $ ***
* OnePoint agrees to act as a Beta test site (30 days) for these INTERCOM
modules including Implementation testing with up to (4) Trading Partners.
Payment Terms:
Lease Fees: 50% due upon approval of contract $217,500
50% due upon delivery of INTERCOM software $217,500
Maintenance Fee: Annual maintenance payable in advance and will be
invoiced at the end of the warranty period.
(LSR Send) $ ***
Maintenance Fee for other components $ ***
Annual Maintenance Fee (not to exceed) $ ***
[LOGO OF BEECHWOOD DATASYSTEMS APPEARS HERE]
Addendum No.1
to
Software license Agreement
Between
OnePoint Communications
and
BDSI, Inc.
Date of Agreement: February 28 1997
Date of this Addendum: February 28, 1997
Licensor: BDSI, Inc.
1.16 Beechwood shall from time to time issue new or modified documentation
to reflect functional changes in the Licensed Program.
2. FEES AND CHARGES
2.1 Licensee shall pay to Beechwood the Maintenance Service fees and
charges based on the rate schedule set forth in Exhibit A. Beechwood
reserves the right to change its rate schedule from time to time,
provided that no such change will be effective until at least 90 days
after Beechwood has given Licensee written notice of such change.
2.2 Beechwood shall invoice Licensee at the beginning of each calendar year
for all Maintenance Service fees and charges for that coming year, and
Licensee shall pay the invoiced amount within 30 days of receipt of
such invoice.
2.3 Licensee shall be responsible for procuring, installing, and
maintaining all equipment, telephone lines, communications interfaces,
and other hardware, and third party software (other than the hardware
and third party software maintained by Beechwood at Beechwood's
facilities) necessary to operate the Licensed Program.
3. TERMINATION
3.1 This Maintenance Agreement shall immediately terminate upon the
termination of the License Agreement.
3.2 This Maintenance Agreement may be terminated by either party upon the
expiration of the then-current term of the Maintenance Agreement,
provided that at least 90 days prior written notice is given to the
other party.
3.3 This Maintenance Agreement may be terminated by either party upon 45
days prior written notice if the other party has materially breached
the provisions of this Maintenance Agreement and has not cured such
breach within such period.
3.4 Following termination of this Agreement, Beechwood shall immediately
invoice Licensee for all accrued fees and charges and all reimbursable
expenses, and Licensee shall pay the invoiced amount immediately upon
receipt of such invoice. Licensee may continue to use any work supplied
to Licensee by Beechwood for the remaining term of the Licensee
Agreement. Any amount not paid within 30 days after the invoice date
shall bear interest at the lesser 1-1/2 percent per month or the
highest rate allowed by applicable law.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their authorized representatives.
BDSI, Inc. OnePoint Communications
------------------------------------- --------------------------------------
(Beechwood) ("Licensee")
/s/ Xxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxxx
------------------------------------- --------------------------------------
SIGNATURE SIGNATURE
Xxxx Xxxxxx Xxxxxxx X. Xxxxxxx
------------------------------------- --------------------------------------
NAME NAME
President President
------------------------------------- --------------------------------------
TITLE TITLE
3/7/97 2-28-97
------------------------------------- --------------------------------------
DATE DATE
[LOGO OF BEECHWOOD DATASYSTEMS APPEAR HERE]
Addendum No.1
to
InterCom Maintenance Agreement
Between
OnePoint communications
and
BDSI, Inc.
Date of Agreement: February 28 1997
Dated of this Addendum: February 28, 1997
Licensor: BDSI, Inc.
[LOGO] BEECHWOOD
DATA SYSTEMS
INTERCOM
MAINTENANCE AGREEMENT
BETWEEN
BDSI, INC. O/B/A BEECHWOOD DATA SYSTEMS and ONEPOINT COMMUNICATIONS
000 XXXXXX XXX. 0000 XXXXXXXXX XXXXXX
XXXXX, XXX XXXXXX 00000 XXXXXXXXXX, XX 00000
("Beechwood") ("Licensee")
"Effective Date":____________
This Maintenance Agreement is made and entered into as of the Effective Date
between Beechwood and Licensee.
WITNESSETH:
WHEREAS, Beechwood and Licensee entered into an End-User License Agreement
effective date _________ (the "License Agreement") under which Licensee obtained
a non-exclusive, non-transferrable license to use certain computer software in
executable code form and related user documentation (the "Licensed Program") on
certain terms and conditions:
WHEREAS, Beechwood by this document offers the maintenance modifications,
enhancements, and new releases provided for herein; and
WHEREAS, Beechwood desires to offer Licensee certain services with respect to
the Licensed Program on the terms and conditions set forth herein:
NOW THEREFORE, in consideration of the premises hereof, and the mutual
obligations herein, the parties hereto, intending to be legally bound, hereby
agrees as follows:
1. MAINTENANCE SERVICES
1.1 Maintenance services will be effective from the end of the warranty
period through December of the then current year or on an annual basis
from January 1 through December 31 of the then current year. This
Maintenance Agreement will automatically renew for a one year period
beginning on January 1 of each year, unless terminated by either party
with ninety (90) day written notice.
1.2 Beechwood shall maintain capability to receive MRs, assign a severity
level and to provide reasonable consultation and assistance in resolving
Errors during Beechwood's Normal Working Hours.
1.3 Beechwood shall maintain a trained staff capable of rendering the
Maintenance Services. Licensee shall designate one primary and one backup
contact person. All communications between Licensee and Beechwood
regarding maintenance shall be made through the primary contact person,
if available, otherwise through the backup contact person. Licensee may
replace such contact persons upon written notice to Beechwood.
1.4 Beechwood shall take one or more of the following actions in regards to
resolution of all Errors: (1) an Error Correction consisting of an
update, patch, revision, or temporary bypass solution; or (2) a statement
that more information is required from Licensee to diagnose or reproduce
the Error, or (3) a statement that the Error will be corrected in a
future Maintenance Release of the software.
1.5 Periodically, Beechwood shall issue a "Maintenance Release" of the
Licensed Program. These Maintenance Releases will contain corrections to
error conditions for which MRs have been created within a reasonable time
prior to such release.
1.6 The "Enhancement Releases" of the Licensed Programs will be scheduled to
coincide with the order releases as defined by the Ordering and Billing
Forum (OBF) of ATIS. These releases will contain any industry defined
charges to the components listed in Exhibit A.
1.7 An Enhancement Release may also contain error corrections which have been
detected since the previous Maintenance Release.
1.8 Beechwood shall not be responsible for correcting Errors in any version
of the Licensed Program other than the most recent Maintenance or
Enhancement Release whichever is most recent. Beechwood shall continue to
support a prior release for a reasonable period of time sufficient to
allow Licensee to implement the newest Maintenance or Enhancement
Release, not to exceed 90 days.
1.9 Beechwood may from time to time issue new "Functional Releases" of the
Licensed Program to its Licensees. A Functional Release will generally
contain Error Corrections, minor enhancements and if Beechwood elects,
major enhancements. At Beechwood's discretion "Functional Releases" may
not be covered by this Maintenance Agreement.
1.10 There will be at least one scheduled maintenance release per year.
1.11 From time to time, Beechwood may subcontract with one or more third party
organizations to provide Maintenance Services on behalf of Beechwood.
1.12 Beechwood shall not be responsible for providing Maintenance Services for
Errors caused by Licensee's misuse or improper use of the Licensed
Program, use of the Licensed Program in connection with any hardware or
software not supplied by Beechwood or approved by Beechwood,
modifications made to the Licensed Program by Licensee or modifications
made to the operating environment by Licensee.
1.13 Additional support services will be available from Beechwood billed
separately from the annual maintenance.
1.14 An Enhancement Release of a Trading Partner map specified in Exhibit A
will require sixty day notice to Beechwood, at which time the Licensee
will supply Beechwood with the complete requirements of the mapping
changes. Beechwood will supply up to two Enhancement Releases of Trading
Partner maps per year.
1.15 When a Release is issued, Maintenance, Enhancement or Functional, the API
will reflect any necessary changes or additions.
[LOGO OF BEECHWOOD DATASYSTEMS APPEARS HERE]
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Rider to InterCom Maintenance Agreement
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The following changes are hereby incorporated into the Intercom Maintenance
Agreement between BDSI, Inc. and OnePoint Communications:
Section 1.3
In the last sentence, please replace "written notice" with the following:
"written or verbal notice".
Section 1.9
Please insert the following sentence at the end of the paragraph:
"In the event that the "Functional Release" is not covered by this Maintenance
Agreement, Licensee has the right to terminate this agreement provided that at
least ten (10) days written notice is given to Beechwood".
[LOGO APPEARS HERE]
BEECHWOOD
DATASYSTEMS
______
RIDER TO INTERCOM END USER LICENSE AGREEMENT
The following changes are hereby incorporated into the InterCom End User License
Agreement between BDSI, Inc. and OnePoint Communications:
Section 2.1
In the third line, after the words non-transferable, insert the words "(except
to an affiliate or successor of Licensee by merger, acquisition or other
refinancing/restructuring.)".
Section 3.1.2
At the end of this section, after the word subsidiaries, insert the words "and
affiliates".
Section 3.2.2
Insert after the word `agreement', "(except to an affiliate or successor of
Licensee by merger, acquisition or other refinancing/restructuring.)".
Section 3.2.3
At the end of the second line, insert the words "or any amendment hereto".
Section 3.2.7
In the second line, after the word `party', and in the third line after the
words "third party", insert the words "other than affiliates of Licensee".
Section 8.0
Insert the following section:
"8.0 If written ten (10) business days of receiving the Application Program
Interface Specifications, Licensee deems that for either technical or economic
reasons implementation of the licensed program is not feasible, Licensee shall
have the right to terminate this Agreement for a full and complete refund of all
fees paid to Beechwood associated with this License. In this event, all
provisions relating to confidentiality, non-disclosure, and proprietary
protection (in particular Section 6), shall survive the termination of this
agreement.
Section 12.5
In the second sentence, please replace the phrase "more than ninety (90) days"
with the following:
"more than thirty (30) days".
