EXHIBIT 10.48
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Agreement No. __
MDTELECOM SOURCE LICENSE AGREEMENT
This Source License Agreement for the use of a single copy of MDTelecom's
MicroEOS/MDzeroplus source code ("Agreement") is made between MDTelecom, Inc.,
an Ohio corporation with its principal offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Company") and Boston Communications Group, Inc., a
Massachusetts corporation with its principal offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ ("Licensee").
1. Definitions.
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A. Affiliate. Any person that directly, or indirectly through one
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or more in intermediaries, controls or is controlled by, or is under common
control with, the specified person. Control means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities, by
contract or otherwise.
B. Application Software. All modules of the Licensed Software
--------------------
supplied by the Company, including any updates furnished to the Licensee by the
Company, and all related documentation.
C. Authorized User(s). Any employee of Licensee or its Affiliates,
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together with authorized agents or subcontractors of Licensee who shall require
access to or use of the Licensed Software solely in connection with the business
of Licensee.
D. Concurrent User. The number of users logged on to the system
---------------
manager module or any other module of the Licensed Software.
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E. Current Version. The latest release of the Licensed Software,
---------------
including the most recent upgrades.
F. Documentation. The user guides, manuals and associated
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documentation supplied by the the Company in connection with the Licensed
Software.
G. Licensed Software. The series of computer software programs
-----------------
which is listed on Exhibit "A".
H. Order. Company's standard procedure of ordering licenses of the
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Licensed Software.
I. Original Version. The release of the Licensed Software installed
----------------
in conjunction with this Agreement.
J. Person. Any individual, corporation, partnership, trust, limited
------
liability company or any other entity.
K. Prior Version. Any release of the Licensed Software preceding
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the most recent release.
L. Proprietary Material. The Licensed Software in any form, and the
--------------------
algorithms and know-how embodied therein.
M. Subsidiaries. A corporation at least a majority of the voting
------------
capital stock of which is owned directly or indirectly by the Licensee.
N. Updates. Any error corrections, enhancements or modifications
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released from time-to-time by the Company and related Documentation relating to
Licensed Software.
O. Use. Loading or transferring the Licensed Software, or any
---
portion thereof, into a computer and executing any portion of that program.
2. License.
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A. Subject to the terms and conditions of this Agreement, the
Company grants
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to the Licensee, a non-exclusive, non-transferrable license to use MDTelecom's
MicroEOS/MDzeroplus source code only for use on a Digital VMS/Open VMS operating
system ("Licensed Software"). A list of all program modules included in the
Licensed Software is on Exhibit "A". The Licensee is licensed to:
i. install a single copy of the Licensed Software on a single
network server at the Licensee's facilities listed on
Exhibit "B", which is operating on a single computer
network; and
ii. use the Documentation only in conjunction with the
installation and all uses permitted hereunder of the
Licensed Software.
B. The license granted hereunder shall be a license to use the
machine-readable object code and the source code of the Licensed Software. Use
of the source code shall be limited to support of the Licensee's internal
operations only. Neither the object code nor the source code may be used in any
way to develop, support or maintain any commercially available software product
that performs functions performed by the Licensed Software, including but not
limited to call completion, credit validation, or operator functions. All
utilities written by the Company to build an application program for internal
use (including use for services provided by Licensee to its customers) only by
the Licensee will be included with the Licensed Software when the same are
completed. Any and all tools, (including hardware or other software required for
the Licensee to build such an application program), will be the sole
responsibility of the Licensee, at its cost. A list of tools which the Company
reasonably believes are necessary for the Licensee to build such an application
is listed on Exhibit "C". If the Licensed Software is loaded on a second server,
for any reasonable business purpose, the Licensed Software must be removed from
the first server.
C. In addition to the rights granted in Section 2(A), the Company
grants to
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the Licensee the right to modify the source code version of the Licensed
Software for any reasonable business purpose limited to support of the
Licensee's internal operations only.
D. Licensee agrees not to use the Company's name, logo, or trademark
to market Licensee's software application products, and to include a valid
copyright notice on Licensee's software product.
3. Delivery and Training.
---------------------
Company will load the Licensed Software onto the tools provided by the
Licensee within a commercially reasonable period of time, not to exceed ten (10)
business days from execution date of this Agreement. Company will load the
Licensed Software and demonstrate a full build of the Licensed Software to a
designated representative of the Licensee at the offices of the Licensee on the
required tools provided by the Licensee. Company agrees to provide available
documentation and training at the Company's facilities to designated
representative(s) of the Licensee that will enable the Licensee to modify,
support and maintain the Original Version Source Code. Licensee agrees to
promptly undertake all due diligence it reasonably believes to be necessary, and
thereafter to accept the Licensed Software, subject to the terms and conditions
of this Agreement. If following the exercise of due diligence by Licensee, the
Licensed Software is not acceptable to Licensee, Licensee may return all copies
of the Licensed Software and any associated documentation, in their original
condition, to Company and all license fees paid by Licensee shall be refunded.
Prior to acceptance, the Licensee agrees not to utilize the source code except
for the purpose of acceptance testing.
4. License Fees.
------------
In consideration of the License provided hereunder, the Licensee
agrees to pay Company the fees set forth in the License Fee Schedule attached
hereto as Exhibit "E". Prices
4
quoted by the Company do not include any federal, state, municipal or other
governmental taxes of any kind or description all of which shall be the
responsibility of the Licensee.
5. Ownership and Copies of Licensed Software.
-----------------------------------------
A. All right, title and interest in and to the Licensed Software,
Documentation, enhancements or updates developed by the Company and furnished to
Licensee and the media on which the same are furnished to Licensee, and all
copyrights, patents, trademarks, service marks or other intellectual property or
proprietary rights relating thereto, are and shall remain the sole property of
Company. Licensee acknowledges that no such right, title or interest in these
items is granted under this Agreement, and that no such assertion shall be made
by Licensee. Licensee acknowledges that it is granted only a limited right of
use as set forth herein, which right of use is subject to termination in
accordance with Section 12 of this Agreement.
B. Except as provided in Section 14E of this Agreement, Licensee is
prohibited from distributing, transferring possession of, encumbering, or
otherwise making available the Licensed Software, Documentation, enhancements or
updates to any person other than Authorized Users under the terms of this
Agreement and from installing the Licensed Software, enhancements or updates for
use on any workstation or computer not within the property owned or leased by
Licensee. Licensee shall advise all Authorized Users that they are prohibited
from reproducing, distributing, transferring possession of or otherwise making
available copies of the Licensed Software, Documentation, enhancements or
updates and from using or installing the Licensed Software, enhancements or
updates on any computer at any other location.
C. Licensee may only make those copies of the Documentation as are
reasonably necessary under the terms of this Agreement. Licensee shall not make
any additional
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copies of the Licensed Software, enhancements or updates; provided, however,
that Licensee may make up to two (2) additional copies of the Licensed Software
for back-up or archival purposes and a reasonable number of copies for training
purposes. All authorized copies of the Licensed Software shall contain all
copyright notices or proprietary legends specified by the Company.
D. Licensee is permitted to transfer the Licensed Software for use
within and among the Licensee and its Affiliates, subject to the terms and
conditions of this Agreement. In the event of a change of control of the
Licensee, the Licensed Software may only be transferred with the Company's
written consent, such consent not to be unreasonably withheld or delayed. Under
no circumstances may the Licensed Software, in whole or in part, be transferred
by sale, assignment or otherwise, nor may it be encumbered as the subject of a
security interest of any Person, as a stand alone entity or as a part of a
particular business unit of the Licensee or its affiliates, except as otherwise
provided in this Agreement.
6. Confidentiality.
---------------
A. The parties hereto may have access to information that is
confidential to one another ("Confidential Information"). Confidential
Information shall include but not be limited to the Licensed Software and
updates, including all source and object code and Documentation related to such
software, the terms and pricing under this Agreement, business or financial
affairs of either party, including such financial results of operations,
business methods, pricing, competitor and product information and all other
information designated as confidential by the party disclosing the same. A
party's Confidential Information shall not include any information which (i)
becomes part of the public domain through no act or omission of the other party;
(ii) is lawfully acquired by the other party from a third party without any
breach of confidentiality; or (iii) is disclosed by a party to a third party
without any obligation of
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confidentiality. The parties agree to maintain the confidentiality of the
Confidential Information and to protect as a trade secret any portion of the
other party's Confidential Information by preventing any unauthorized copying,
use, distribution, installation or transfer of possession of such information.
Each party agrees to maintain at least the same procedures regarding
Confidential Information that it maintains with respect to its own Confidential
Information. Without limiting the generality of the foregoing, Licensee shall
not permit any Person or Authorized User to remove any proprietary or other
legend or restrictive notice contained or included in any material provided by
the Company.
B. Parties hereto acknowledge that any use or disclosure of the
other party's Confidential Information in a manner inconsistent with the
provisions of this Agreement may cause the non-disclosing party irreparable
damage for which remedies other than injunctive relief may be inadequate.
Parties hereto agree that the non-disclosing party shall be entitled to receive
from a court of competent jurisdiction in Lake or Cuyahoga County, Ohio or
Middlesex County, Massachusetts injunctive or other equitable relief to restrain
or enjoin such use or disclosure in addition to other appropriate remedies.
C. The terms and provisions of this Section 6 shall survive any
termination of this Agreement for any reason for a period of five (5) years.
D. This Section 6 incorporates by reference Ohio Revised Code
Sections 1333.61, et seq. and 1333.81 copies of which are appended hereto as
-- ---
Exhibit "F".
7. Limited Warranties.
------------------
Company represents and warrants:
A. That it is the lawful owner or licensee of the Licensed Software
and has the full right and authority to grant the licenses hereunder.
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B. That the magnetic media on which the Licensed Software or an
update is recorded and any Documentation provided under the terms of this
Agreement will be free from defects in material and workmanship under normal use
for a period of ninety (90) days following acceptance by Licensee.
C. That the Licensed Software will perform substantially in
accordance with the specifications set forth in the Documentation for a period
of ninety (90) days from the date it is accepted by the Licensee (the "Warranty
Period"), and, during the Warranty Period, the Company will maintain the current
version of the Licensed Software such that it conforms in all material respects
with the functions described in the Company's current user manual for the
Licensed Software, including enhancements developed specifically for Licensee.
Company will provide up to sixty (60) hours of telephone or e-mail technical
consulting support to the Licensee by representatives of the Company selected by
the Company during the Warranty Period. For each of the eleven (11) subsequent
ninety (90) day periods following the Warranty Period, the Company will provide
in a timely manner up to thirty (30) hours of telephone or e-mail technical
consulting support to the Licensee by qualified representatives of the Company
selected by the Company, subject to the approval of the Licensee, which approval
shall not be unreasonably withheld. Such consulting is limited to technical
support covering the internal structure of the Original Version of the Licensed
Software, and how to create an application build utilizing the Licensed
Software. If during the term of this Agreement the Company and the Licensee
enter into a contract for the provision of enhancements by the Company to the
Original Version of the Licensed Software, such modifications would also be
included under the terms of this Section 7. Additional consulting can be made
available at the then prevailing hourly rates as established by the Company.
8
D. Company warrants that the Licensed Software, including any
embedded third party software, will function without error or interruption
related to Date Data (defined as any data or input which includes an indication
of or reference to date), provided that all Date Data from any other source, of
any type, includes an indication of century. No other warranty, express or
implied, is made by the Company for the Licensed Software relating to year 2000
functions.
8. Warranty Limitation.
-------------------
A. Company does not warrant that the functions contained in the
Licensed Software or in any update will meet the requirements of the Licensee or
Authorized Users or that the operation of the Licensed Software or any update
will be uninterrupted or error-free. The warranties set forth in this Section do
not cover any copy of the Licensed Software, update or any Documentation which
has been altered or changed in any way by the Licensee or any Authorized User.
Company is not responsible for problems caused by changes in, or modifications
to, the operating characteristics of any computer hardware or operating system
for which the Licensed Software or any update is procured, nor is the Company
responsible for problems which occur as a result of the use of the Licensed
Software in conjunction with software of third parties or with hardware which is
incompatible with the operating system for which the Licensed Software is being
procured.
B. ANY IMPLIED WARRANTIES, TERMS OR CONDITIONS, INCLUDING
WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, ARE EXPRESSLY EXCLUDED. The warranties, terms and conditions contained
in Section 8 of this Agreement are made in lieu of all other express warranties,
terms or conditions, whether oral or written. Only an authorized officer of the
Company may make modifications to this warranty or additional warranties binding
on the
9
Company, and such modifications or additional warranties must be in writing.
C. Licensee agrees that once Licensee has modified some or all of
the source code included in the Licensed Software in any manner, the Company has
no responsibility in any manner for the performance of any portion of the
Licensed Software affected in any way by the modifications undertaken by the
Licensee.
D. Any service rendered by the Company to revise or repair any
modifications to the Licensed Software by the Licensee will be on a consulting
basis at the then prevailing hourly rates as set by the Company.
9. Limitation of Remedies.
----------------------
A. Company's entire liability and Licensee's exclusive remedy for
the breach of the Company's warranty obligations in Section 8 shall be: (i) in
the case of defects in media the replacement by the Company of any magnetic
media or Documentation not meeting the Company's Limited Warranties, and (ii) in
case of any nonconformity or defect in the Licensed Software, the Company shall
use commercially reasonable efforts to provide maintenance modifications or
fixes with respect to any such error in a timely manner or at its option replace
the Licensed Software. The Company, shall not be obligated to correct, cure or
otherwise remedy any error or defect in the Licensed Software not covered by
Company's warranty contained in Section 8 of this Agreement including but not
limited to corrections or remedies resulting from (i) modifications of the
Licensed Software by Licensee, (ii) misuse or damage of the Licensed Software,
or (iii) failure of Licensee to notify the Company of the existence and nature
of such nonconformity or defect promptly upon its discovery.
B. COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS)
10
ARISING OUT OF THIS AGREEMENT OR WITH RESPECT TO THE INSTALLATION, USE,
OPERATION OR SUPPORT OF THE LICENSED SOFTWARE OR ANY UPDATE OF THE LICENSED
SOFTWARE, EVEN IF THE COMPANY HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH
DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY.
C. Licensee agrees that any liability on the part of the Company
arising from breach of warranty, breach of contract, negligence, strict
liability in tort or any other legal theory shall not exceed the aggregate
amounts paid by Licensee in software license fees for the Licensed Software,
prorated over a five (5) year period from the date of this Agreement
notwithstanding any failure of essential purpose of any limited remedy.
10. Taxes.
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Licensee shall promptly pay all local, state and federal taxes (but
excluding taxes imposed on the Company's income) levied or imposed by reason of
the transactions contemplated in this Agreement. Licensee shall promptly pay to
the Company any such taxes actually paid or required to be collected or paid by
the Company. If the Licensee claims it is exempt from any taxes, it shall
furnish the Company with a true copy of the certificate showing its exemption
upon demand.
11. Definition of Default.
---------------------
A default shall be and is hereby defined to mean any of the following:
A. The breach or violation of any material term, condition or
provision of this Agreement by the Licensee, which is not cured within fifteen
(15) days after written notice by Company to Licensee.
B. The bankruptcy or insolvency of the Licensee.
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C. The filing of a voluntary bankruptcy proceeding or reorganization
proceeding or the assignment for the benefit of creditors, or the filing against
the Licensee of any involuntary bankruptcy or reorganization proceedings whether
such proceedings are under federal or state law which adjudicates the Licensee
as bankrupt or insolvent.
D. The attachment of all or substantially all of the Licensee's
property for the failure to pay any judgment or debt of that party.
12. Term, Default and Termination.
-----------------------------
A. This Agreement is effective from the date of its execution and
continues until terminated by either party as provided herein. The license
granted under this Agreement is perpetual.
B. The Company may terminate this Agreement by written notice to
Licensee for default, as defined in Section 11, and upon such termination the
license granted under this Agreement to use the Licensed Software shall be
immediately revoked. Within ten (10) calendar days after the termination of this
Agreement, for default as defined in Section 11, Licensee shall return to the
Company all copies of the Licensed Software, and/or updates and Documentation in
Licensee's possession, including all copies of the Licensed Software, and/or
updates and Documentation under the supervision and control of the Licensee and
Authorized Users. In the alternative, upon written request of the Company,
Licensee shall destroy all such copies of the Licensed Software and/or updates
and/or Documentation and certify in writing that they have been destroyed.
C. Licensee may terminate this Agreement, and the license provided
hereunder, at any time upon prior written notice to the Company. Upon any such
termination, Licensee shall forthwith deliver the Licensed Software and all
copies thereof, in whatever form,
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and all documentation and other information relating to the Licensed Software to
the Company; however, Licensee will remain obligated to make any payment which
by the terms hereof is scheduled to be made after the date of such termination.
D. TERMINATION SHALL NOT RELIEVE LICENSEE AND AUTHORIZED USERS OF
THEIR OBLIGATIONS REGARDING THE CONFIDENTIALITY OF THE LICENSED SOFTWARE,
UPDATES AND DOCUMENTATION, OR EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS
REGARDING CONFIDENTIAL INFORMATION SUCH PARTY HAS RECEIVED.
13. Infringement Indemnity.
----------------------
Company, at its own expense, will indemnify and defend any action
brought against Licensee to the extent that it is based on a claim that the
Licensed Software or any update of the Licensed Software used within the scope
of this Agreement infringes any United States patent or copyright provided that
the Company is promptly notified in writing of such claim. Company shall have
the right to control the defense of all such claims, lawsuits, and other
proceedings. In no event shall Licensee settle any such claim, lawsuit, or
proceeding without the Company's prior written approval. Company shall have no
liability for any claim under this Section 13 if a claim for a United States
patent or copyright infringement is based on the use of a superseded or altered
version of the Licensed Software if such infringement would have been avoided by
use of the latest unaltered version of the Licensed Software available as an
update, or in the event such claim is based upon any modification or enhancement
to the Licensed Software made by Licensee or Authorized Users. In the event a
third party infringement claim is sustained in a final judgment from which no
further appeal is taken or possible, or if Licensee's use of the Licensed
Software is enjoined by a court, then the Company shall, in its sole election
and at is
13
expense either: (i) procure for Licensee the right to continue to use the
Licensed Software pursuant to this Agreement, (ii) replace or modify the
Licensed Software to make it non-infringing, or (iii) terminate this Agreement
and refund to Licensee the depreciated value of the Licensed Software, based on
straight line depreciation over a period of five (5) years. The Company shall
have no other liability or obligation to Licensee except as expressly set forth
above.
14. Miscellaneous.
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A. This Agreement may not be modified or altered except by written
instrument duly executed by both parties. All exhibits referred to in this
Agreement are incorporated into and part of this Agreement.
B. Any notice or other communication required or permitted in this
Agreement shall be in writing and shall be deemed to have been duly given on the
day of service if personally or by facsimile transmission with confirmation, or
three (3) days mailing if mailed by First Class mail, registered or certified,
postage prepaid, and addressed to the respective parties at the addresses set
forth above, or at such other addresses listed below unless notified of a change
in writing pursuant to the terms and provisions of this paragraph:
If to MDTelecom: MDTelecom, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, President
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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If to BCG: Boston Communications Group, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Counsel
Boston Communications Group, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
C. This Agreement and performance under this Agreement shall be
governed by the laws of the State of Ohio.
D. If any provision of this Agreement is invalid under any
applicable statute or rule of law, it is to that extent to be deemed omitted.
The remainder of the Agreement shall be valid and enforceable to the maximum
extent possible.
E. Licensee may not assign or sub-license, without the prior written
consent of Company, its rights, duties, or obligations under this Agreement to
any person or entity, in whole or in part, provided, however, that this
Agreement may be assigned by Licensee without the consent of the Company to any
successor corporation or entity whether by purchase of all or substantially all
of the assets or outstanding capital stock of Licensee or by merger or
consolidation, provided that the transferee of the Licensed Software or this
Agreement agrees in writing to be bound by and subject to all of the terms and
provisions of this Agreement.
F. The waiver or failure of either party to exercise in any respect
any right provided for in this Agreement shall not be deemed a waiver of any
further right under this Agreement.
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G. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original and each of which together shall
constitute a single instrument.
H. Neither party shall be responsible for failure to perform in a
timely manner under this Agreement when its failure results from any of the
following causes: Acts of God or public enemies, civil war, insurrection or
riot, fire, flood, explosion, earthquake or serious accident, strike, labor
trouble or work interruption or any cause beyond its reasonable control.
I. Licensee agrees to comply with all export and re-export
restrictions and regulations ("Export Restrictions") imposed by the government
of the United States. Licensee will not commit any act or omission which will
result in a breach of any such Export Restrictions. Licensee agrees that it will
comply in all respects with any governmental laws, orders or other restrictions
on the export of the Licensed Software (and related information and
Documentation) which may be imposed from time to time by the governments of the
United State and Canada ("Export Requirements"). Licensee will take all actions
which may be reasonably necessary to ensure that it does not contravene the
Export Requirements. This Section shall survive the expiration or termination of
this Agreement.
J. For purposes of this Agreement Licensee is not an agent of the
Company and Licensee has no express or implied authority to act on behalf of, or
make any representations whatsoever on behalf of the Company. The Company has no
right to control any activities of License outside the terms of this Agreement.
The Company is an independent contractor and neither party shall have the power
or authority to bind the other party to any control or obligation.
K. Any action against Licensee arising out of or relating to Section
6 of this Agreement or to its breach shall be brought in any federal or state
court sitting in Cuyahoga or
16
Lake County, Ohio and both parties hereby submit to the exclusive jurisdiction
of the state and federal courts of Cuyahoga or Lake County, Ohio with respect to
such action. The parties hereto consent to service of process by any means
authorized by Ohio or federal law. The prevailing party shall be entitled to
receive from the other party its reasonable attorneys' fees and costs incurred
in connection with any action or proceeding hereunder. Any controversy or claim
arising out of or relating to any section of this Agreement other than Section 6
or the breach thereof shall be settled by binding arbitration in the City of
Cleveland, Ohio, in accordance with the rules then obtaining of the American
Arbitration Association, and judgment upon the award rendered may be entered in
any court having jurisdiction thereof, but the arbitrator may not change any of
the terms of this Agreement. The prevailing party shall be entitled to receive
from the other party its reasonable attorneys' fees and costs incurred in
connection with any arbitration proceeding hereunder, but such arbitration
proceedings shall preclude a party from obtaining immediate injunctive relief
pending a decision in the arbitration proceeding.
L. On the Company's request, no more frequently than annually,
License shall furnish the Company with a signed certification: (i) verifying
that the Licensed Software is being used pursuant to the terms of this
Agreement, including any user limitations, and (ii) listing the locations, types
and serial numbers of the computer on which the Licensed Software is being used.
Licensee agrees to grant the Company reasonable access to Licensee's site, upon
prior written notice during normal business hours to audit the use of the
Licensed Software.
M. Any undisputed amounts payable by Licensee which are not paid
when due shall bear interest at a rate of 1% per month from the due date until
such amount is paid.
N. Each person signing this Agreement represents that such person is
authorized to sign for and on behalf of the party for whom such person has
signed this
17
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate by their duly authorized representatives as of this 17th day of
December, 1998.
MDTELECOM, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇
---------------------------------------
▇▇▇ ▇. ▇▇▇▇, President & COO
BOSTON COMMUNICATIONS GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
____________________ ---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
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EXHIBIT A
CALL PROCESS
CUSTOMER INQUIRY
CUSTOMER SERVICE
OPERATOR PROCESS
REPORTS
19
EXHIBIT B
Boston Communications Group, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
EXHIBIT C
REQUIRED TOOLS
1. DEC C compliler [**] on OpenVMS Alpha [**]
2. Other tools as provided with OpenVMS Alpha
21
EXHIBIT D
ACCEPTANCE FORM
IN WITNESS WHEREOF, the parties hereto accept the items within this Agreement
by their duly authorized representatives as of this day of , 1998.
--- ---------
WITNESSES: BOSTON COMMUNICATIONS GROUP, INC.
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT E
SOURCE CODE PAYMENT SCHEDULE
AMOUNT TIME OF PAYMENT
------ ---------------
[**] Upon execution of Agreement
[**] Upon acceptance of Source Code by Licensee
[**] In 12 equal quarterly payments commencing upon
completion of training and provision of
documentation by Company, which enables
the Licensee to modify, support and maintain
the Source Code.
_______
[**] Total
23
EXHIBIT F
OHIO REVISED CODE SECTIONS 1333.61, ET SEQ. AND 133.81
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