Exhibit 10.7
SUPPORT SERVICES AGREEMENT
DIALOGIC CORPORATION ("DIALOGIC"), a New Jersey corporation with offices at 0000
Xxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, and INTERACTIVE INTELLIGENCE,
INCORPORATED an Indiana corporation, with offices at 0000 Xxxxxx Xxxx.
Xxxxxxxxxxxx, Xxxxxxx ("Customer") hereby agree that the following terms and
conditions will apply to certain technical and/or professional support services
("Services") provided by DIALOGIC to Customer:
1. COVERAGE
This Agreement will cover Support Services and Delivered Information provided by
DIALOGIC to Customer, as specified in Exhibit A, Statement of Work.
2. TERM
This Agreement will become effective when signed by Customer and accepted in
writing by DIALOGIC and will remain in effect for the period specified in
Exhibit A or until terminated as set forth in Section 11.
3. NOTICES
All notices in connection with this Agreement will be deemed given as of the day
they are deposited in the U.S. Mails, postage prepaid, certified or registered,
return receipt requested, or by facsimile message addressed to the recipient at
the address set forth above, or by electronic mail provided that the receipt of
the electronic mail is confirmed by sender.
4. PRICE AND PAYMENT
A. Services will be provided for the charges specified in Exhibit B, Schedule
of Charges. Prior to acceptance, DIALOGIC may require an advance payment and/or
a form of security acceptable to DIALOGIC.
B. Customer will pay the full amount due on the invoice notwithstanding
restrictive endorsements or other statements on or accompanying checks accepted
by DIALOGIC.
C. Customer agrees to pay taxes, however designated (excluding taxes on
DIALOGIC's net income), imposed or based upon the provision, license or use for
Services unless a tax exemption certificate is provided to DIALOGIC by Customer.
D. Customer agrees to reimburse DIALOGIC for attorneys' fees, interest and any
applicable costs associated with collecting delinquent payments. Delinquent
payments shall bear interest at the lower of one and one half per cent per
month, or the highest rate permitted by law.
E. If DIALOGIC agrees to perform work at Customer's request outside of the
work described in Exhibit A, Customer agrees to pay any additional charges for
such work.
5. USE OF INFORMATION
In order to enable DIALOGIC personnel to perform the Services contemplated by
this Agreement, and in order to enable Customer to satisfy its obligations
hereunder, it may become necessary for each party to receive or have access to
Background Information (such term being defined to include specifications,
designs, plans, drawings, software, data prototypes or other technical or
business information that either existed prior to performance of services
hereunder or is subsequently developed independent of performance of such
services) of the other which is considered proprietary or confidential. In
addition, Delivered Information, as defined in Section 6, which is provided
pursuant to this Agreement is considered by the parties to be proprietary or
confidential. All such Background Information and all Delivered Information
will be collectively referred to in this section as Information.
A. The party receiving the Information will:
1. Hold the Information of the furnishing party in confidence, and
restrict its disclosure solely to those of the receiving party's employees with
a need to know, and not disclose it to third parties; and
2. Advise employees who received the Information of the obligation of
confidentiality hereunder; and
3. Use and require employees to use the same degree of care to protect
the information as is used with the receiving party's information of a similar
nature;
4. Use the Information it receives only in connection with Services it
performs or obligations it fulfills pursuant to this Agreement, or pursuant to
the applicable license granted in Section 6.
B. The receiving party will have no obligation to preserve the confidentiality
or restrict the use of any Information which:
Page 1/5
1. Was previously known to the receiving party free of any obligation to
keep it confidential, or
2. Is or becomes publicly available, by other than unauthorized
disclosure, or
3. Is independently developed by the receiving party, or
4. Is disclosed to third parties by the furnishing party without
restriction,
5. Is lawfully received free of restriction from another source having
the right to so furnish the Information.
C. Upon request, the receiving party will return to the furnishing party all
Background Information received in tangible form.
D. Background Information may be disclosed to non-parties to this Agreement
only upon the prior written authorization of the party furnishing such
Background Information, and only if the non-party to whom the Background
Information is disclosed agrees in writing (a copy of which will be provided to
the party furnishing such information upon request) to the same conditions
respecting such Background Information as are contained in this Section 5.
However, with respect to requests made by formal legal process or by a
government agency, each party receiving Background Information of the other will
use reasonable efforts to safeguard such Background Information using
established legal means (e.g., protective orders, etc.). This obligation may be
satisfied by the receiving party notifying the other party in writing when any
such request has been made and cooperating with the other party's efforts to
protect the Background Information.
E. The terms of confidentiality under this Agreement shall not be construed to
limit either party's right to independently develop products without the use of
the Information. Further, either party shall be free to use for any purpose the
residuals resulting from work with the other party's Information, provided that
the receiving party shall maintain the confidentiality of the Information as
provided herein. The term "residuals" means information in non-tangible form,
which may be retained by persons who have had access to the Information,
including ideas, concepts, know-how or techniques contained therein. Neither
Party shall have any obligation to limit or restrict the assignment of such
persons or to pay royalties for any works resulting from the use of residuals.
6. OWNERSHIP OF INVENTIONS AND DELIVERED INFORMATION
All information (including specifications, designs, plans, drawings, software,
date prototypes or other technical or business information) delivered or made
available by DIALOGIC to Customer in accordance with Exhibit A, Statement of
Work, and the rights to any underlying patent, copyrights, mask work protection
rights and other intellectual property rights, will be designated as "Delivered
Information" and will be treated as follows:
A. In the event that Delivered Information is developed or generated solely by
DIALOGIC employees or jointly by DIALOGIC and Customer's employees, DIALOGIC
will own all right, title and interest therein. DIALOGIC grants to Customer a
non-exclusive, irrevocable, royalty-free license to use such Delivered
Information in the United States for the defined business purposes specified in
Exhibit A.
B. In the event that Delivered Information is generated solely by Customer's
employees, Customer will own all right, title and interest therein. Customer
grants to DIALOGIC a non-exclusive, irrevocable, royalty-free license to use
such Delivered Information for any lawful business purposes.
C. In the event that DIALOGIC Background Information is incorporated in
Delivered Information provided to Customer, DIALOGIC grants to Customer a
non-exclusive, irrevocable, royalty-free license to use such Delivered
Information in the United States for the defined business purposes specified
in Exhibit A.
D. Except as expressly set forth herein, no license is granted by either party
to the other with respect to any technical or business information, or with
respect to rights in any patents, trademarks, copyrights, mask work protection
rights and other intellectual property rights.
7. PERSONNEL
In recognition of the fact that DIALOGIC may perform similar Services from time
to time for others, this Agreement will not prevent DIALOGIC from performing
such similar Services or restrict DIALOGIC from using any personnel which may be
provided to the Customer under this Agreement. DIALOGIC will make a reasonable
effort consistent with sound business practices to honor the specific request of
the Customer with regard to the assignment of its employees; however DIALOGIC
reserves the sole right to determine the assignment of its employees.
8. RIGHTFUL EMPLOYER
Page 2/5
Customer agrees that DIALOGIC is acting as an independent contractor and that
each of the parties will be responsible for all management matters, taxes or
wages, etc., relating to its own employees.
9. NON-SOLICITATION
Customer agrees not to solicit for employment any DIALOGIC personnel performing
Services for Customer under this agreement. Customer agrees to pay DIALOGIC
the amount of $100,000 if a DIALOGIC employee who has performed Services under
this Agreement is employed by Customer within twelve (12) months of the
expiration of this Agreement. Customer agrees that this payment represents a
reasonable estimation of DIALOGIC's actual expenses incurred should Customer
hire a DIALOGIC employee under these conditions.
10. SUBCONTRACTING
DIALOGIC may subcontract any or all of the work to be performed by it under
this Agreement but will retain responsibility for the work subcontracted.
11. TERMINATION
A. Customer may terminate this Agreement, subject to accrued charges, if
DIALOGIC fails to perform or observe any material term or condition of this
Agreement and such failure continues unremedied for thirty (30) days after
DIALOGIC's receipt of written notice thereof from Customer.
B. Customer will be in default of this Agreement if Customer fails to pay any
charge when due or fails to perform or observe any other material term or
condition of this Agreement. DIALOGIC may terminate this Agreement and
exercise any applicable rights, if (i) the failure to pay any charge when due
continues unremedied for ten (10) days or, (ii) for 30 days from receipt of
written notice by DIALOGIC for other breaches. In the event of such
termination by DIALOGIC, Customer shall be liable for any accrued charges.
C. Either party may terminate this Agreement by notice in writing in the event
that the other makes an assignment for the benefit of creditors; or admits in
writing an inability to pay debts as they mature; or a trustee or receiver of
the other or of any substantial part of the other's assets, is appointed by any
court; or a proceeding is instituted under any provision of the Federal
Bankruptcy Act by the other, or against the other, and is acquiesced in or is
not dismissed within 60 days, or results in adjudication in bankruptcy.
12. EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY
A. FOR PURPOSES OF THE EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY SET
FORTH IN THIS SECTION 12, "DIALOGIC" WILL BE DEEMED TO INCLUDE DIALOGIC, ITS
PARENT AND THEIR AFFILIATED ENTITIES AND THE DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS, REPRESENTATIVES, SUBCONTRACTORS AND SUPPLIERS OF ALL OF THEM; AND
"DAMAGES" WILL BE DEEMED TO REFER COLLECTIVELY TO ALL INJURY, DAMAGE LOSS OR
EXPENSE INCURRED.
B. DIALOGIC'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDIES AGAINST
DIALOGIC FOR LOSS OR DAMAGE ARISING FROM THE PERFORMANCE OR NONPERFORMANCE OF
ANY WORK UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, WILL BE AS
FOLLOWS:
1. FOR DELAYS IN THE RESPONSE TIMES, AS SPECIFIED IN EXHIBIT A, DIALOGIC
WILL HAVE NO LIABILITY UNLESS DIALOGIC IS CONSISTENTLY UNABLE TO MEET THE
RESPONSE TIME TARGETS FOR REASONS NOT ATTRIBUTABLE EITHER TO CUSTOMER OR TO
FORCE MAJEURE CONDITIONS (AS DEFINED IN SECTION 13), IN WHICH CASE CUSTOMER WILL
HAVE THE RIGHT, AS ITS SOLE REMEDY, TO CANCEL THIS AGREEMENT, SUBJECT TO ANY
ACCRUED CHARGES.
2. FOR CLAIMS OTHER THAN SET FORTH ABOVE, DIALOGIC'S LIABILITY FOR
IMPROPER PERFORMANCE OR NON-PERFORMANCE OF ITS OBLIGATIONS PURSUANT TO, OR IN
ANY OTHER WAY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, WILL BE LIMITED
TO DIRECT DAMAGES THAT ARE PROVEN OR $100,000 WHICHEVER IS LESS. THE LIMITATION
OF LIABILITY IN THIS SUBPARAGRAPH 12(B)(2) DOES NOT APPLY TO CUSTOMER'S RIGHT TO
RECOVER PROVEN DIRECT DAMAGES TO REAL OR TANGIBLE PERSONAL PROPERTY OR FOR
BODILY INJURY OR DEATH PROXIMATELY CAUSED BY DIALOGIC.
Page 3/5
CUSTOMER REPRESENTS THAT IT SHALL NOT USE DIALOGIC'S DELIVERED MATERIALS IN
AVIATION, PROCESS CONTROL, MEDICAL APPLICATIONS OR OTHER ULTRAHAZARDOUS
ACTIVITIES AND ACKNOWLEDGES THAT DIALOGIC SHALL NOT BE RESPONSIBLE FOR ANY
PERSONAL INJURY OR PROPERTY DAMAGE ARISING FROM SUCH ACTIVITIES AND THAT
CUSTOMER WILL INDEMNIFY DIALOGIC FOR ANY COSTS OR EXPENSES, INCLUDING COSTS
OF DEFENSE, RESULTING FROM USE OF DIALOGIC DELIVERED MATERIALS IN SUCH
APPLICATIONS.
3. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, DIALOGIC WILL
NOT BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR
LOST PROFITS, LOST SAVINGS OR LOST REVENUES OF ANY KIND WHATSOEVER, WHETHER OR
NOT DIALOGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4. ANY LEGAL ACTION AGAINST DIALOGIC UNDER OR WITH RESPECT TO THIS
AGREEMENT OR WITH RESPECT TO ANY SERVICE CONTRACTED FOR OR FURNISHED UNDER THIS
AGREEMENT WILL BE BARRED UNLESS IT IS COMMENCED WITHIN TWO (2) YEARS AFTER THE
DATE THE CAUSE OF THE ACTION ARISES.
13. FORCE MAJEURE
DIALOGIC will have no liability for damages due to fire; explosion; lightning;
pest damage; power surges or failures; strikes or labor disputes; water; acts of
God; the elements; war; civil disturbances, acts of civil or military
authorities or the public enemy; inability to secure raw materials, products or
transportation facilities; fuel or energy shortages; acts or omissions of
communications carriers; or other causes beyond DIALOGIC's control, whether or
not similar to the foregoing.
14. WORKMANSHIP
The Services to be provided by DIALOGIC under this Agreement will proceed with
diligence and will be executed in accordance with ordinarily acceptable
practices in the field to which the work pertains, as well as any standards set
forth in Exhibit A.
15. CHANGES
Customer may request changes in the work being performed under this Agreement.
If DIALOGIC agrees to the change, the change must be confirmed in writing and
signed by authorized representatives of both parties. A reasonable adjustment
will be made if any such change affects the time of performance or the cost of
the work to be performed under this Agreement. If Customer delays matters in
the course of the work, a commensurate deferral of the due date and/or an
adjustment in the price will occur.
16. PLANT RULES AND SECURITY REQUIREMENTS
The employees and agents of each party will, while on the premises of the other,
comply with all plant rules and regulations in effect at such premises,
including security requirements.
17. PUBLICITY
Customer will not issue or release for publication any articles or advertising
or publicity matter relating to the work performed hereunder or mentioning or
implying the name of DIALOGIC or any of its affiliates or personnel of the
foregoing, unless prior written consent is granted by DIALOGIC .
18. WARRANTIES
EXCEPT AS SPECIFICALLY MADE HEREIN, DIALOGIC AND ITS AFFILIATED SUBCONTRACTORS
AND SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
19. GENERAL
A. If any paragraph, or clause thereof, of this Agreement will be held to be
invalid or unenforceable in any jurisdiction in which this Agreement applies,
then the meaning of such paragraph or clause will be construed so as to render
it enforceable to the extent feasible; and if no feasible interpretation would
save such paragraph or clause, it shall be severed from this Agreement and the
remainder will remain in full force and effect. However, in the event such
paragraph or clause is considered an essential element of the Agreement, the
Parties will promptly negotiate a replacement thereof.
B. If either party fails, at any time, to enforce any right or remedy
available to it under this Agreement, that failure will not be construed to be a
waiver of the right or remedy with respect to any other breach or failure by the
other party.
C. The construction, interpretation and performance of this Agreement will be
construed in accordance with and governed by the laws of the State of New
Jersey.
Page 4/5
D. Exhibits A and B are incorporated herein.
E. THIS IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE
SERVICES PROVIDED HEREUNDER AND SUPERSEDES ALL PRIOR AGREEMENTS, PROPOSALS OR
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL.
DIALOGIC CORPORATION INTERACTIVE INTELLIGENCE, INC.
By:/s/ Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxx
---------------------------------- ----------------------------------
Title: President Sales & Services Title: Executive Vice President
The Americas
------------------------------- -------------------------------
Date: February 19, 1999 Date: February 24, 1999
-------------------------------- --------------------------------
Page 5/5
