EXHIBIT 10.2.2
EXHIBIT B
SOFTWARE LICENSE AGREEMENT
Lessee (hereinafter referred to as "Licensee") will acquire under lease certain
Siemens Xxxxxxxxx-Xxxxxxx (hereinafter referred to as "Licensor") products the
"Designated Product" (defined below), which utilizes the "Software Product" in
the operation of the Designated Product. The Software Product is furnished
pursuant to the following terms and conditions.
1. DEFINITIONS
In addition to definitions contained elsewhere herein, certain terms shall
have meanings as follows:
1.1 "Affiliate" means any other entity directly or indirectly
controlling or controlled by a party hereto or directly or
indirectly controlled by a parent entity in common with such party.
Control means the ownership of at least fifty (50) percent of the
voting rights in such entity. And, as to Licensor, includes the
partners comprising it and their parents, subsidiaries and
subsidiaries of such parents.
1.2 "Designated Product" means the Siemens Xxxxxxxxx-Xxxxxxx equipment
supplied to the Licensee under a lease of which this Software
License Agreement forms a part.
1.3 "Modification" means any change to the Software Product.
1.4 "Modification Grant-Back Rights" means royalty-free, worldwide
non-exclusive rights to make, have made, license (including
disposition to an end-user) and use under copyrights to software,
patents, copyrights to firmware and semiconductor mask registration
rights in and to Modifications and to make derivative works with the
right to sub-license to Affiliates (such sublicense to survive any
subsequent termination of the affiliation).
1.5 "Software Product" means the software computer program, including
activated and non-activated features, which is provided for use in
the operation of the Designated Product and which includes the
following materials: (i) a set of machine readable computer program
instructions recorded on magnetic tape or other storage media; (ii)
a source code listing of the data base portion (if any) of the
computer program instructions, augmented by the programmer's
annotations; (iii) an releases, issues or short sequences of
computer program instruction modifications ("patches") furnished by
Licensor to the Licensee as a replacement for, or for the
modification of, previously furnished materials; (iv) all derivative
works or Modifications, by whomever made, of any of the foregoing;
and (v) all copies of any of the foregoing, in whole or in part, by
whomever made.
2. LICENSE GRANT
In consideration of the right-to-use fee stated in the Licensor's invoice
for the Designated Product, the Licensor grants for as long as Licensee or
its authorized assignee uses the Designated Product in the manner provided
below, and the Licensee accepts, an indivisible, non-exclusive and
non-transferable (except as provided in Section 2.1) license in each
Software Product furnished hereunder to use the Software Product, less the
non-activated features, only on the Designated Product for the sole
purpose of operating the Designated Product as a public telecommunications
switching system subject to the following conditions.
2.1 The Licensee Agrees: (i) to limit its use of each Software Product
solely to the operation of the Designated Product on which it was
originally installed and no other purpose; (ii) to limit its making
of copies of the Software Product, in whole or in part, to copies
reasonably necessary for the operation of the Designated Product and
for archival purposes and shall make none other; (iii) to reproduce
all proprietary notices, including the copyright notices of the
Licensor, which appear on or are encoded within the Software Product
in the form or forms in which the Software Product is received from
the Licensor, upon all copies, derivative works or other
modifications which the Licensee shall make; (iv) that the Software
Product (physical materials, including all copies by whomever made)
shall be the property of the Licensor, (v) not to do, cause or
permit to be done, anything to activate any of the subsisting
non-activated computer instruction steps therein; (vi) not to, nor
attempt to, decompile or reverse assemble all or any portion of the
Software Product, nor shall it authorize or permit any others to do
so; and vii) that the Software Product is the proprietary material
of Licensor and Licensee shall keep the Software Product
confidential, treat it as it does its own proprietary materials and
disclose it only to its employees that have a need to know and third
parties who are needed to maintain the Designated Product provided
such third parties have agreed in writing to keep the Software
Product confidential.
2.2 Licensor reserves to itself the exclusive right to cause the
subsisting non-enabled program instruction steps to be activated (by
the issuance under this License of a version of Software Product
having the applicable additional computer instruction steps enabled)
pursuant to standard right-to-use software license upgrade fees or,
in the absence of a standard upgrade fee, for an upgrade fee to be
negotiated.
2.3 As an additional fee required hereunder for the Software Product,
the Licensee shall further pay to the Licensor any state or local
taxes, however designated, levied against and paid by the Licensor,
based upon this transaction or based upon Licensor's or the
Licensee's interests in the Software Product, including sales,
privilege, use, personal, property or intangible property taxes,
exclusive, however, of taxes based upon net income.
2.4 Notwithstanding any other provision hereof, in the event Licensor
develops or makes, or has developed or made, Modification(s) to the
Software Product which represent, in Licensor's sole judgment, value
added to the Designated Product or which represent an improvement of
performance of the Designated Product, the Licensor reserves the
right to market the Modification(s) as a separate offering requiring
payment of an additional right-to-use fee and which, at the
Licensor's option, may require the Licensee to execute a new
Software License Agreement.
2.5 The Licensee hereby grants and agrees to grant to the Licensor, to
the extent it lawfully may, Modification Grant-Back Rights related
to any development, whether made by the Licensor, Licensee or agents
of the Licensee, of all or any portion of any Software Product
furnished hereunder pursuant to any request or specifications by the
Licensee for a design different from Licensor's design, and
regardless of whether or not the Licensee has compensated the
Licensor for its performance of such development. Title to patents,
copyrights, trade secrets and mask registrations developed by
Licensor pursuant to any request or specification by the Licensee,
and regardless of whether the Licensee has compensated the Licensor
for its performance of such development, shall vest in Licensor.
Licensee, however, shall receive a royaltyfree license of the same
scope as this Software License Agreement to the results of such
development.
2.6 The Licensee shall not merge any Software Product with other
software computer program materials to form a derivative work or
otherwise make Modifications or alter a Software Product in any
manner whatsoever.
2.7 The Licensee agrees that any communication or other disclosure of
information it makes to the Licensor related to a
request/specification for any Modification to Licensor's design of
the Software Product shall be made upon a non-confidential basis
without any manner of restriction of the Licensor in its use or
dissemination of received information.
2.8 The Licensor or the Licensee shall have the right to terminate this
License in the event of any default by the other party which the
defaulting party fails to correct within a period of sixty (60) days
after the receipt of notice thereof from the non-defaulting party,
or immediately and without notice in the event that any bankruptcy
arrangement for the benefit of creditors or insolvency proceedings
are commenced by or against the Licensee, or in the event of the
appointment of an assignee for the benefit of creditors or a
receiver of the Licensee or its properties. However, in the event at
the time the Licensor shall be entitled to exercise the foregoing
right to immediately and without notice terminate this License, and
such termination would cause interruption of service to
governmentally franchised telephone common carrier subscribers, the
Licensor agrees in good faith (but with due regard to the protection
of licensed interests) to provide its best efforts to cooperate with
the enfranchising authority to avoid disruption of such services. No
termination hereunder shall prejudice any of the non-defaulting
party's rights arising prior thereto or shall limit in any way the
other remedies available to the non-defaulting party.
2.9 Upon cessation of use of the Designated Product, the Licensee shall,
as instructed by the Licensor, either return the Software Product to
the Licensor or destroy the Software Product.
2.10 Should any obligation of either party under this License be found
illegal or unenforceable in any respect, such illegality or
unenforceability shall not affect any other provision of this
License, all of which shall remain enforceable in accordance with
their terms. Should any obligations of either party under this
License be found illegal or unenforceable by reason of being
excessive in extent or breadth with respect to duration, scope or
subject matter, such obligations shall be deemed and construed to be
reduced to the maximum duration, to the end that such obligations
shall be and remain enforceable to the maximum extent allowable.
2.11 Any notice or other communication required or permitted to be made
or given hereunder to either party hereto shall be sufficiently made
or given on the date of mailing, if sent to such party by certified
mail, return receipt requested, postage prepaid, addressed to it at
its address set forth in this Agreement.
2.12 The Licensee's rights hereunder are assignable, but only as part of
a transaction in which ownership of the Designated Product is
transferred to an Affiliate of Licensee or as part of a sale or
transfer of substantially all of the assets of Licensee. It is
agreed that as a condition to the exercise of the Licensee's right
to assign this License, the Licensee shall have previously obtained
and provided to Licensor a written assignment in which the assignor
identifies and incorporates by reference this License and
intermediate assignments prior to any physical transfer or Turnover
of the Software Product to such assignee.
3. PATENT OR COPYRIGHT OR TRADEMARK INFRINGEMENT
Licensor agrees, at its expense, to defend and indemnify Licensee in any
suit, claim or proceeding brought against Licensee alleging that any
Software Product licensed hereunder directly infringes any U.S. Letters
Patent, U.S. Copyright or U.S. Trademark, provided Licensor is promptly
notified, given assistance required and permitted to direct the defense.
Further, Licensor agrees to pay any judgment based on infringement
rendered in such suit by final judgment of a court of last resort, but
Licensor shall have no liability for settlements or costs incurred without
its consent. Should the use of the Software Product by Licensee be
enjoined, or in the event that Licensor desires to minimize its liability
hereunder, Licensor may fulfill its obligations hereunder by either
substituting non-infringing equivalent software or modifying the
infringing Software Product or portion thereof so that it no longer
infringes, but remains functionally equivalent, or to obtain for Licensee,
at the expense of Licensor, the right to continue use of such Software
Product, or if in the sole judgment of Licensor none of the foregoing is
feasible, Licensor may take back the Software Product and refund to
Licensee the undepreciated amount of any paid-up fee that has been paid to
Licensor. The foregoing states the entire liability of Licensor for
patent, copyright or trademark infringement or for any breach of warranty
of non-infringement, express or implied. The foregoing indemnity shall not
apply to any suit, claim or proceedings based upon allegations that a
process or method claim of a patent is infringed, nor to Infringements
arising from modification of the Software Product by anyone other than
Licensor, or to allegations of infringement based on the combination of
the Software Product with software or products supplied by Licensee or
others, nor to infringements arising from Software Products made to the
specification or design of Licensee, and Licensee agrees to indemnify
Licensor to an extent equivalent to that provided to the Licensee
hereinabove in the event that any suit, claim or proceeding is brought
against Licensor based upon any of the foregoing infringement
circumstances which are excluded from the Licensor's indemnification to
the Licensee.
4. WARRANTY AND DISCLAIMER OF WARRANTY
4.1 Licensor warrants that the Software Products, other than the data
base portion of the Software Product covered by this Agreement,
will, at the time of Turnover, substantially conform to its
functional description in Licensor's technical proposal. Licensee's
sole remedy and Licensor's sole obligation shall be to deliver any
amendments or alterations required to correct any such
non-conforming Software which is found to be defective within a
period of one (1) year after Turnover and which significantly
affects its performance.
4.2 Licensor warrants that the data base portion of the Software Product
covered by this License shall substantially conform to the site
dependent data submitted by Licensee. Licensee's sole remedy and
Licensor's sole obligation shall be to correct any nonconforming
data base which is found to be defective within a period of ninety
(90) days after Turnover.
4.3 The foregoing warranties do not extend to defects or
non-conformities from any cause, including but not limited to,
abuse, acts of God, improper installation, modifications or
maintenance (if performed by other than Licensor) and other defects
traceable to Licensee's acts or omissions; or defects or
nonconformities in software, firmware or data base traceable to
Licensee's errors, modifications or system changes.
4.4 THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
BUYER FURTHER AGREES THAT LICENSOR WILL NOT BE LIABLE FOR ANY LOSS
OF DATA OR USE, LOST PROFITS OR REVENUE, OR FOR ANY CLAIM OR DEMAND
AGAINST BUYER BY ANY OTHER PARTY. IN NO EVENT WILL LICENSOR BE
LIABLE FOR CONSEQUENTIAL DAMAGES, EVEN IF LICENSOR HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
5. LIMITATION OF LIABILITY
5.1 LICENSOR SHALL NOT BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY NATURE AND FROM ANY CAUSE, WHETHER
BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF
STATUTORY PROPRIETARY RIGHTS, INCLUDING PATENT, COPYRIGHT OR
TRADEMARK (EXCEPT AS EXPRESSLY PROVIDED IN SECTION 3 ABOVE), OR ANY
OTHER LEGAL THEORY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. LICENSEE FURTHER AGREES THAT LICENSOR
WILL NOT BE LIABLE FOR ANY LOSS OF DATA OR USE, LOST PROFITS OR
REVENUE, OR FOR ANY CLAIM OR DEMAND AGAINST LICENSEE BY ANY OTHER
PARTY.
5.2 LICENSEE ASSUMES SOLE RESPONSIBILITY FOR ENSURING THAT THE BILLING
CENTER CAN CORRECTLY READ CALL RECORDS. LICENSEE'S RESPONSIBILITY
INCLUDES READING DAILY THE AMA FRAME AND/OR POLLING SYSTEM TAPE(S)
BY THE BILLING SYSTEM COMPUTER TO ENSURE ALL TICKET INFORMATION IS
PRESENT. RISK OF LOSS FOR ANY DATA, USE, REVENUE OR PROFIT
ASSOCIATED THEREWITH IS ON LICENSEE.
6. CHOICE OF LAW AND JURISDICTION
The validity, performance and construction of these terms and conditions
shall be governed by the laws of the State of Florida without regard to
its Choice of Law provisions. Licensee hereby irrevocably consents and
agrees that any legal action, suit or proceeding arising out of or in any
way in connection with this Software License Agreement shall be brought in
the courts of the State of Florida or in the United States court sitting
in the State of Florida and hereby irrevocably accepts and submits to, for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of any such court and to all proceedings in such court.
7. INTEGRATION
This Software License Agreement constitutes the entire understanding of
the parties hereto and supersedes all previous communications,
representations and understandings between the parties with respect to the
subject matter of this Software License Agreement.
WHEREFORE, the parties hereto manifest their agreement to the terms and
conditions hereinabove, effective on the date first above written, by affixing
hereto the signatures of their respective authorized representatives
hereinbelow.
SIEMENS XXXXXXXXX-XXXXXXX TELECOMMUNICATIONS SERVICE CENTER, INC.
(LICENSOR) (LICENSEE)
By: /s/ [ILLEGIBLE] By: /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx, Pres.
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(Name & Title) (Name & Title)
Date Signed: 28 May 1996 Date Signed: May 1, 1996
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