M A S T E R P U R C H A S E A G R E E M E N T
BETWEEN
NEC CORPORATION
and
ACTIVE VOICE CORPORATION
TABLE OF CONTENTS
1. MPA CONSTRUCTION AND USE........................................ 2
2. PRODUCTS AND DEVELOPMENT........................................ 3
3. LICENSES........................................................ 6
4. LICENSE RESTRICTIONS............................................ 8
5. OWNERSHIP....................................................... 9
6. PRICING AND COMPENSATION........................................10
7. REPORTS AND PAYMENTS............................................11
8. NECAM APPOINTMENT AS RELATIONSHIP MANAGER.......................13
9. TERM AND TERMINATION............................................13
10. CONFIDENTIALITY.................................................14
11. WARRANTIES......................................................15
12. INDEMNIFICATION AND LIMITATION OF LIABILITY.....................17
13. DISPUTE RESOLUTION AND ARBITRATION..............................19
14. ADDITIONAL TERMS................................................19
EXHIBITS A DEFINITIONS
B SPECIFIC PRODUCT ADDENDA
C GENERAL DEVELOPMENT PROVISIONS
D SUPPORT PLANS
E TRAINING PROGRAMS
F MINIMUM END USER TERMS
G INDEMNIFIED COUNTRIES
H AFFILIATE ENROLLMENT
I TRADE SECRET TRANSMITTAL FOR AAINFO
MASTER PURCHASE AGREEMENT
This Master Purchase Agreement (the "Agreement") is made as of the 5th day of
May, 1999 ("Effective Date"), by and between:
ACTIVE VOICE CORPORATION, a Washington corporation, having its
principal place of business at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx,
00000 ("Active Voice"), and
NEC CORPORATION, a Japanese corporation with its registered offices at
0-0, Xxxxx-Xxxxx, Xxxxxx-xx, Xxxxx, 000-00 Xxxxx ("NEC").
Each entity shall hereafter be referred to as a "Party" and jointly as
the "Parties."
RECITALS
I. Active Voice develops, manufactures and distributes certain
software and hardware communications products in the voicemail and
computer telephony market segments.
II. NEC develops, manufactures and distributes certain personal and
business communications products, including products in the
voicemail and computer telephony market segments.
III. Active Voice and NEC have entered previously into the following
agreements and amendments thereto:
A. NEC/J REPLAY AGREEMENT: Agreement Between Active Voice and
NEC, between Active Voice and NEC Corporation, dated July 27,
1993.
B. NEC/J PHONEMAX AGREEMENT: License and Development Agreement,
between Active Voice and NEC Corporation, dated March 1, 1996.
(1) JANUARY 16, 1998, Amendment to License and Development
Agreement.
C. NEC/J AD-8 AGREEMENT: Agreement, between Active Voice and NEC
Corporation, dated February 3, 1998; amended as follows:
(1) FEBRUARY 18, 1998, amendment.
D. NEC/AUSTRALIA AD-8 AGREEMENT: Agreement, between Active Voice
and NEC Pty. Ltd., dated November 24, 1998.
E. NECAM AGREEMENT: Original Equipment Manufacturer Purchase
Agreement, between Active Voice and NEC America, Inc., dated
November 23, 1994; amended as follows:
(1) AUGUST 31, 1995, amendment to include additional
modifications to the computer program designated by
Active Voice as Replay Plus for the NEAX-Registered
Trademark-2000 IVS, NEAX-Registered Trademark-2400 IMS
(ICS). and Electra Professional ICTS;
(2) FEBRUARY 9, 1996, amendment to include private
labeled computer program products designated by Active
Voice as PhoneMax;
(3) JULY 1, 1996, amendment, to expand territories,
establish site license pricing and change the renewal
notice period;
(4) JULY 9, 1996, amendment, to include the Active Voice
In-Switch Voice Mail product;
(5) AUGUST 7, 1997, amendment to include as to the Active
Voice In-Switch Voice mail product for the NEC Electra
Professional switch;
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(6) DECEMBER 23, 1997, amendment to include the Phone Max
private labeled product;
(7) FEBRUARY 24, 1998, amendment to include a Product
Discontinuation Notice period and the NEAXMAIL AD-8
product;
(8) APRIL 20, 1998, amendment to include the NEC
Lingo-TM- voice messaging system;
(9) JUNE 15, 1998, amendment to include the Active voice
NEAXMAIL-TM- AD-40 product;
(10) SEPTEMBER 4, 1998, amendment to include the Active
Voice Electra Mail CTI voice messaging system; and,
(11) SEPTEMBER 30, 1998, amendment to include Electra
Elite VMS InMail.
ACCORDINGLY, the Parties now desire to supersede the previous agreements and
amendments thereto by entering into this Master Purchase Agreement and
establishing a common structure and library of provisions for future product
agreements.
AGREEMENT
1. MPA CONSTRUCTION AND USE:
1.1 OVERVIEW: This Agreement is comprised of the main body of this
Agreement, the Exhibits, and any subsequent addenda, amendments or
attachments thereto.
1.2 MAIN BODY OF THE AGREEMENT: The main body of this Agreement
includes the terms and provisions which are capable of being
standardized or elected from across product lines. In certain
sections, (e.g., licenses, warranties, invoices and payments), the
main body of the Agreement includes alternate provisions which may
be selected from and designated as the selection in Specific
Product Addenda ("SPA"), discussed further in Section 1.4 below.
1.3 DEFINITIONS: Definitions are included in Exhibit A. If any SPA
sets forth a definition that differs from the definition given in
Exhibit A, the SPA definition shall govern for that SPA only and
not as to the Master Purchase Agreement or any other SPA or Exhibit
unless otherwise specifically stated.
1.4 SPAS: Each Active Voice product licensed and/or provided under
this Agreement, including the terms specifically pertinent thereto,
shall be set forth in a SPA. SPAs shall be effective upon mutual
execution and included as Addenda to Exhibit B. The face page of
Exhibit B shall list each valid SPA, and shall be updated to
reflect each new or discontinued SPA. Unless otherwise stated, the
term of each SPA shall be assumed to be five (5) years from the
Effective Date of such SPA. The MPA may not expire during the valid
term of any SPA and shall be deemed extended by the Parties for the
full duration of the last valid SPA. The Parties, however, may
terminate the MPA for breach, under the provisions of Section 9
below, and any termination of the MPA for breach shall constitute
termination of each SPA under the MPA. Unless otherwise stated in a
SPA, Active Voice shall not have the ability to terminate a SPA
without cause prior to expiration of such SPA; however, if Active
Voice discontinues the product that is the subject of the SPA, then
the provisions governing Product Discontinuance in Section 2.6
below shall apply. Each SPA shall include any product-specific
terms, including but not limited to Statements of Work, variations
in licensing terms and conditions, royalty schedules, pricing,
support plans and/or training programs.
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1.5 AFFILIATES: This Agreement is initially executed by NEC. In the
event a NEC Affiliate desires and the Parties agree to have such
NEC Affiliate sign up as a direct Party to this Agreement, the
Parties shall amend this Agreement to add such NEC Affiliate via
an Enrollment Agreement, the form of which is attached as
Exhibit H. In addition, the face page of Exhibit H shall list
each NEC Affiliate that is enrolled as a Party to this
Agreement. For NEC Affiliates which are not enrolled as direct
Parties to this Agreement, the following provisions shall apply:
(a) ORDERING: NEC Affiliates which are not direct Parties to
this Agreement shall place orders for Active Voice
products through NEC or Enrolled Affiliates.
(b) DISTRIBUTOR TERMS: NEC Affiliates placing orders through
NEC or Enrolled Affiliates shall be deemed and treated as
NEC Distributors.
2. PRODUCTS AND DEVELOPMENT: The Parties agree to the following with
regard to products and development:
2.1 LICENSED SOFTWARE: Active Voice shall deliver the Licensed
Software to NEC in accordance with the provisions of the SPA
governing the Licensed Software. In addition, the following
provisions shall apply to New Releases, Maintenance Releases,
additional features and compatibility:
(a) NEW RELEASES:
(i) PROVISION OF NEW RELEASES: During the Term of the
Agreement, Active Voice agrees to offer New
Releases to NEC under mutually-agreeable terms and
conditions if Active Voice, in its sole
discretion, creates a New Release and makes such
New Releases publicly available to its customers
on a general basis.
(ii) INCORPORATION OF NEW RELEASES: If Active Voice
provides NEC with a New Release, NEC agrees to use
reasonable efforts to adopt such New Release in
NEC's next release of the applicable NEC Product,
and to cease shipping the previous release.
(b) MAINTENANCE RELEASES:
(i) PROVISION OF MAINTENANCE RELEASES: During the
Term of the Agreement, Active Voice agrees to
provide Maintenance Releases to NEC if Active
Voice, in its sole discretion, creates a
Maintenance Release and makes such Maintenance
Release publicly available to its customers on a
general basis.
(ii) INCORPORATION OF MAINTENANCE RELEASES: If Active
Voice provides NEC with a Maintenance Release, NEC
agrees to include such Maintenance Release in
NEC's next release of the NEC Products, and to
thereupon cease shipping the previous release. If,
however, Active Voice notifies NEC that continued
shipment of the prior release of the Licensed
Software might create liability for infringement
or breach of warranty, might result in loss of
customer goodwill, then NEC shall integrate such
Maintenance Release into its current applicable
NEC Product within ninety (90) days or within a
shorter period if possible to remedy potential
infringement, bugs or errors in the software or to
avoid claims for indemnification.
(c) ADDITIONAL FEATURES: The Parties shall negotiate in good
faith regarding the Specifications, terms and conditions
for prospective New or Maintenance Releases. Any request
for an additional feature not adopted by Active Voice may
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be proposed by NEC to become the subject of a Statement
of Work. The Parties shall negotiate in good faith with
respect to the Statement of Work.
(d) COMPATIBILITY: Active Voice shall use its Best Efforts
to design new Releases and Maintenance Releases to be
compatible with previous versions of the general release
versions of the Licensed Software. The Parties, however,
recognize that any development unique or specific to NEC
might negatively impact the possibility of compatibility
between the Licensed Software and any New Releases or
Maintenance Releases. Accordingly, provided that Active
Voice has a valid business or engineering purpose for
taking a particular product or design path, the taking of
such alternate path shall not constitute a failure by
Active Voice to meet its obligations hereunder. In
addition, if Active Voice makes any New Release or
Maintenance Release available to NEC and NEC does not
adopt such New Release or Maintenance Release, the
Parties acknowledge that such non-adoption is likely
to negatively impact the possibility of future
compatibility. Finally, if any additional work is
required to attain compatibility between any NEC
Product and any New Release or Maintenance Release,
the Parties may mutually agree on a Statement of Work
for such project.
2.2 ACTIVE VOICE HARDWARE PRODUCTS:
(a) ORDERING AND FULFILLMENT: Active Voice will use its Best
Efforts to fill NEC's Active Voice Hardware Product
orders promptly, but the Parties agree that Active Voice
shall not be responsible for late delivery resulting
from: (i) any cause beyond its reasonable control, (ii)
production allocations of its vendors, or (iii) the
inability of its vendors to supply Active Voice. Active
Voice reserves the right to allocate its production
and/or inventory in any manner it chooses. However, in
the event of product shortages, Active Voice will use its
Best Efforts to fill NEC's orders.
(b) PURCHASE ORDERS: NEC will submit in writing firm
purchase orders for all Active Voice Hardware Products.
Such orders shall be subject to the provisions of this
Agreement. Any provision of a purchase order inconsistent
with this Agreement shall be null and void. Active Voice
shall use its Best Efforts to accept any NEC forecasts
and purchase orders; however, based on the considerations
set forth in Section 2.2(a)(i)-(iii) above, Active Voice
shall have the right to reject any NEC forecasts and
purchase orders. If an order is rejected, Active Voice
will provide notification to NEC within three (3)
business days or receipt. If Active Voice fails to issue
the notice of rejection within such three (3) day period,
NEC's purchase order shall be deemed to have been
accepted by Active Voice on the last day of such three
(3) day period.
(c) SHIPMENT: Active Voice Hardware Product shipment will be
made F.O.B. ACTIVE VOICE plant, with risk of loss or
damage passing to NEC on delivery to common carrier at
F.O.B. point. Shipments will be made at a "declared
value" equal to the invoice price of the Active Voice
Hardware Product shipped. In the absence of specific
routing instructions, Active Voice may select the common
carrier and method of shipment.
(d) ACCEPTANCE: NEC, its Distributors or its End User
customers shall inspect the Active Voice Hardware
Products within a reasonable time upon receipt from
Active Voice, and shall: (i) within thirty (30) calendar
days of such receipt give written notice to Active Voice
of any claim for shortages; and (ii) within sixty (60)
calendar days of such delivery give written notice to
Active Voice of a claim for shortages or a claim that the
Active Voice Hardware Products, do not substantially
conform to the applicable Specifications for such Active
Voice Hardware Products, NEC shall ship, at NEC's cost,
any non-conforming product to Active Voice. As NEC's sole
and exclusive remedy for non-acceptance, Active
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Voice shall promptly replace any nonconforming Active Voice
Hardware and shall pay the shipping cost to NEC for the
replacement product.
2.3 THIRD PARTY HARDWARE: With respect to any Third Party Hardware, the
Parties shall determine terms for ordering, shipment and other
terms on a case-by-case basis in the SPA for such Third Party
Hardware. Unless otherwise agreed to in a SPA, NEC shall pursue its
remedies for product defects, nonconformity, warranties and other
bases for liability directly and exclusively against the Third
Party Hardware supplier and not Active Voice.
2.4 NEW PRODUCTS
(a) NEW PRODUCTS: If Active Voice, in its sole discretion,
creates any New Product, Active Voice shall offer such New
Product to NEC on MFB Terms.
2.5 PRODUCT CONTROL: Active Voice may modify the Licensed Software,
Third Party Software, Active Voice Hardware and/or Third Party
Hardware under a SPA in its sole discretion. If NEC does not accept
such modification the Parties shall terminate the SPA for that
product and such termination shall be NEC's sole and exclusive
remedy with respect to such SPA. A modified product shall supersede
the prior version of that product and the prior version shall not be
deemed discontinued if the modified version utilizes a significant
portion of the common core technology utilized in such prior
version.
2.6 PRODUCT DISCONTINUANCE:
(a) DEFINITION: Product Discontinuance for the Licensed Software
shall be evidenced by proof that any of the following
conditions has occurred: (i) Active Voice has terminated or
reassigned the employment of substantially all of the
personnel involved with the product alleged to be discontinued
and such termination or reassignment has resulted in Active
Voice's inability to provide product support; (ii) Active
Voice refuses to respond to support requests in violation of
the support agreement; and (iii) Active Voice has terminated
its continuing ability to manufacture and ship the product
alleged to be discontinued, as evidenced by termination
without plans for replacement of the key vendor relationships
necessary to supply such product.
(i) EXCEPTIONS: Notwithstanding anything to the contrary in
2.6(a) above, Product Discontinuance shall not be deemed
to have occurred if:
(1) Active Voice ceases to make, ship, provide or
license any product for any reason that relates to
any third party product or supplier of software or
hardware included in the product, (e.g., availability,
quality, reliability, support, price, liability),
provided that Active Voice shall use its Best Efforts
to find a comparable replacement for such third party
product or supplier; or
(2) Active Voice has replaced such product with another
product that uses a significant portion of common
core technology belonging to the product alleged to
be discontinued.
(b) CONSEQUENCE: If, under Sections 2.6(a) above, Product
Discontinuance has occurred within three (3) years of the
Effective Date of the SPA for that product, then the following
provisions shall apply:
(i) LICENSED SOFTWARE: Active Voice shall refund any NRE
paid by NEC to Active Voice singularly attributable to
the discontinued item of Licensed Software.
(ii) ACTIVE VOICE HARDWARE: Active Voice shall refund any NRE
paid by NEC to Active Voice for hardware qualification
costs or engineering costs singularly attributable to
the discontinued item of Active Voice Hardware.
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(c) NOTICE: Even if Active Voice's cessation of making, shipping,
providing or licensing a product does not constitute Product
Discontinuance under this Section, Active Voice shall use its
Best Efforts to provide NEC with the following advance written
notice:
(i) Licensed Software: Advance notice of one hundred and
twenty (120) days.
(ii) Active Voice Hardware, Third Party Software and Third
Party Hardware: Notice upon Active Voice's receipt of
notification from any third party supplier that the
product will no longer be provided, or sixty (60) days,
if possible.
2.7 THIRD PARTY SOFTWARE AND THIRD PARTY HARDWARE:
(a) SCOPE AND BASIC TERMS: Each SPA shall include a list of Third
Party Software and Third Party Hardware, if any, that Active
Voice anticipates will be shipped with the Licensed Software
or Active Voice Hardware. Active Voice may change such list in
its sole discretion at any time, provided that such change
does not diminish the functionality, reliability, or operation
of such product, except where no comparable replacement
product is available and Active Voice has used its Best
Efforts to find such comparable replacement product.
(a) LICENSING OF THIRD PARTY SOFTWARE AND THIRD PARTY HARDWARE:
According to the Parties' mutual agreement, Third Party
Software and Third Party Hardware shall be either sublicensed
through Active Voice to NEC under this Agreement or licensed
to NEC directly by the Third Party Software or Third Party
Hardware supplier in accordance with the Third Party
Documentation. If any Third Party Software or Third Party
Hardware supplier desires to conduct a compliance audit, NEC
shall cooperate with Active Voice in connection therewith.
(b) PRICING FOR THIRD PARTY SOFTWARE AND THIRD PARTY HARDWARE:
Pricing, if any, for Third Party Software and Third Party
Hardware shall be in accordance with the schedule or price
list for a SPA, or in accordance with the licensing agreement
directly between NEC and the Third Party Software or Third
Party Hardware supplier.
2.8 DEVELOPMENT OF MODIFIED SOFTWARE: If NEC desires development work
in connection with the Licensed Software, the Parties shall discuss
the goals and Specifications of such work and attempt to negotiate
in good faith mutually agreeable terms and conditions for the
development of any Modified Software. If the Parties reach
agreement on terms for the development, such terms shall be set
forth in a Statement of Work, included in or as an attachment to
the applicable SPA. Any such Statement of Work shall be governed by
this Agreement and the development provisions set forth in Exhibit
C, attached hereto. In addition, any Statement of Work shall
contain, at minimum, the following provisions: Specifications,
development responsibilities, NRE, payment schedule, license scope,
ownership and an estimated schedule for delivery.
3. LICENSES: The following license provisions are set forth in an elective
format where each SPA must designate which license grant(s) shall apply
to the particular product covered by such SPA. For example, a SPA for a
software product for which NEC shall have rights to distribute,
reproduce, and private label, shall designate in the license section of
that SPA that "Active Voice grants to NEC the license contained in
Section 3.1.c of the Agreement, under the terms set forth therein."
3.1 LICENSED SOFTWARE: During the Term and subject to the terms and
conditions of this Agreement, Active Voice, under its Intellectual
Property Rights, grants to NEC a limited,
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worldwide, nonexclusive, nontransferable (except in an allowed
assignment), irrevocable (except for material breach), non-sublicensable
(except for sublicense of the distribution right to Distributors and
archival reproduction to End Users), royalty-bearing license with the
following terms:
(a) DISTRIBUTION: To use, install, publicly display, publicly perform,
sell, market, import and distribute the Final Acceptance versions
of the Licensed Software, in Object Code format only.
(b) DISTRIBUTION AND REPRODUCTION: To use, install, copy, reproduce,
publicly display, publicly perform, sell, market, import and
distribute the Final Acceptance versions of the Licensed Software,
in Object Code format only.
(c) DISTRIBUTION, REPRODUCTION AND LOCALIZATION: To use, install, copy,
reproduce, publicly display, publicly perform, sell, market, import
and distribute the Final Acceptance versions of the Licensed
Software, in Object Code format only. In addition, NEC may create
Derivative Works from the Licensed Software solely for the purposes of
Localizing the Licensed Software for a particular market.
(i) OWNERSHIP AND LICENSE BACK OF DERIVATIVE WORKS: Upon NEC's
independent creation of any Derivative Work from the Licensed
Software, NEC shall own such modification or Derivative Work
subject to:
(1) Active Voice's underlying rights in the Licensed Software;
(2) Payment to Active Voice of any royalties therefor in
accordance with the SPA for the underlying work.
(ii) NON-BLOCKING OF ACTIVE VOICE DEVELOPMENT: Notwithstanding the
Derivative Works license granted to NEC by Active Voice in this
Section 3.1 and the Ownership rights in Section 5.5 below,
Active Voice shall not be blocked from undertaking development
similar to that of the NEC-created Derivative Works. Provided
that Active Voice and/or its licensees have not substantially
copied any part of the NEC-created Derivative Works, NEC
covenants not to xxx Active Voice or its licensees for any
similarity resulting from similar development paths. If Active
Voice desires to use or copy from the NEC-created Derivative
Works, the Parties shall discuss the terms for such use.
(d) PRIVATE LABEL BRANDING AND PACKAGING: In connection with exercising
its other rights granted in this Section 3.1(d), NEC may privately
brand, label and package the Licensed Software with NEC's trademarks,
including, but not limited to NEC's house xxxx and any product line
or specific product xxxx. If NEC exercises such rights, use of such
trademarks shall be exclusive to NEC without any right granted to
Active Voice. To the extent NEC desires to use any Active Voice xxxx
apart from the marks appearing within the running program of the
Licensed Software itself, NEC and Active Voice shall discuss and
negotiate mutually agreeable, non-royalty bearing terms for such
trademark license.
3.2 END USER DOCUMENTATION LICENSE: During the Term and subject to the terms
and conditions of the Agreement, Active Voice, under its Intellectual
Property Rights, grants to NEC a limited, worldwide, nonexclusive,
nontransferable (except in an allowed assignment), irrevocable (except
for material breach), royalty-free license with the following terms:
(a) DISTRIBUTION AND REPRODUCTION: To copy, reproduce, publicly display,
publicly perform, sell, market, import and distribute the End User
Documentation solely in connection with the Licensed Software.
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(b) DISTRIBUTION, REPRODUCTION AND LOCALIZATION: To copy, reproduce,
publicly display, publicly perform, sell, market, import and
distribute the End User Documentation solely in connection with the
Licensed Software. In addition, NEC may make modifications to and
create Derivative Works from the End User Documentation solely for
the purposes of Localizing the End User Documentation for a
particular market.
(i) OWNERSHIP OF DERIVATIVE WORKS: Upon NEC's independent creation
of any Derivative Work from the End User Documentation,
NEC shall own such Derivative Works subject to Active Voice's
underlying rights in the End User Documentation.
(ii) NON-BLOCKING OF ACTIVE VOICE DEVELOPMENT: Notwithstanding the
Derivative Works license granted to NEC by Active Voice in this
Section 3.2 and the Ownership rights in Section 5.5 below,
Active Voice shall not be blocked from undertaking development
similar to that of the NEC-created Derivative Works. Provided
that Active Voice and/or its licensees have not substantially
copied any part of the NEC-created Derivative Works, NEC
covenants not to xxx Active Voice or its licensees for any
similarity resulting from similar development paths. If Active
Voice desires to use or copy from the NEC-created Derivative
Works, the Parties shall discuss the terms for such use.
(c) PRIVATE LABEL BRANDING AND PACKAGING: In connection with exercising
its other rights granted in this Section, NEC may privately brand,
label and package the End User Documentation with NEC's trademarks,
including, but not limited to NEC's house xxxx and any product line
or specific product xxxx. If NEC exercises such rights, use of such
trademarks shall be exclusive to NEC without any right granted to
Active Voice. To the extent NEC desires to use any Active Voice xxxx
apart from the marks already appearing in the End User
Documentation, i.e., as part of a compound xxxx used as a brand name
or product name, NEC and Active Voice shall discuss and negotiate
mutually agreeable non-royalty bearing terms for such trademark
license with adequate usage guidelines. In creating and
distributing such privately-labeled Derivative Works, NEC shall
preserve at least one Active Voice (and Active Voice vendor, if
any) copyright notice and trademark legend in the modified End User
Documentation.
3.3 TRADEMARK LICENSE GRANT: During the Term and subject to the terms and
conditions of this Agreement, Active Voice hereby grants to NEC a
worldwide, non-exclusive, nontransferable, irrevocable (except for
material breach), royalty-free license, without the right to sub-license,
to use the Active Voice trademarks in or on advertising, marketing
materials, and/or packaging for the Licensed Software and in the End User
Documentation. Active Voice shall have a right of prior written approval
over the first instantiation of each use by NEC of the Active Voice
trademarks in any context other than as such marks already appear on or
within the Licensed Software or End User Documentation. NEC also agrees
to use the Active Voice trademarks only as adjectives and to include -TM-
and -Registered Trademark- legends where appropriate. Active Voice, in
its sole discretion, may issue and amend guidelines for trademark usage.
NEC agrees to comply with any such guidelines.
4. LICENSE RESTRICTIONS: The following license restrictions are not elective
and shall apply to the Licensed Software under each SPA unless
specifically stated otherwise therein.
4.1 RESERVATION OF RIGHTS: All rights not expressly granted herein are
reserved to the owner, and no other licenses are granted herein by
implication, estoppel or otherwise.
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4.2 SINGLE COPY RESTRICTION: When NEC sublicenses the distribution
right to the Object Code of the Licensed Software, NEC shall not
include more than one copy each of the Licensed Software with each
NEC Product sold or otherwise distributed by NEC or NEC's
Distributors. Notwithstanding the above, Licensed Software that is
sold or otherwise distributed as a pre-loaded image on an NEC
Product may also include one back-up copy of such Licensed Software
on a CD-ROM, and together shall constitute one Royalty Unit.
4.3 NO REVERSE ENGINEERING: NEC shall not reverse engineer, decompile
or disassemble the Licensed Software provided to NEC under this
Agreement.
4.4 PROPRIETARY MARKINGS: NEC agrees to reproduce and to not alter,
obscure, or remove any Active Voice (or Active Voice vendor)
proprietary notice included in or on the Licensed Software and/or
End User Documentation. Notwithstanding the foregoing, however, in
connection with any modifications NEC might be permitted to make to
the Licensed Software, NEC may reduce the number of Active Voice or
Active Voice vendor's proprietary markings so that such markings
appear only in the opening or splash screen of the NEC Product and
in the "about box" of such NEC Product.
4.5 NONCOMPLIANCE: NEC agrees to promptly notify Active Voice if the
Licensed Software is used in any manner except as noted above. The
restrictions of this Section 4 shall be subject to the audit right
in Section 7.5 herein if Active Voice suspects noncompliance by NEC
with this provision. Additionally, the Parties agree that Section 4
of this Agreement was an essential, material term in establishing
the consideration under this Agreement and that upon any breach
hereof, which if uncured in accordance with Section 9.2(a) of this
Agreement, Active Voice may terminate this Agreement.
5. OWNERSHIP:
5.1 OWNERSHIP OF LICENSED SOFTWARE AND DERIVATIVE WORKS THEREFROM: As
between NEC and Active Voice, unless under Section 3.1.c.i. or
otherwise provided, NEC acknowledges that Active Voice and/or
Active Voice's vendors have sole and exclusive right, title and
interest in and to all of the Intellectual Property Rights in the
Licensed Software and any Derivative Works therefrom created by
Active Voice or the Parties jointly.
5.2 OWNERSHIP OF ACTIVE VOICE HARDWARE AND DERIVATIVE WORKS THEREFROM:
As between NEC and Active Voice, except as provided under Section
3.1.c.i., NEC acknowledges that Active Voice and/or Active Voice's
vendors have sole and exclusive right, title and interest in, and
to all of the Intellectual Property Rights in the Active Voice
Hardware and Derivative Works therefrom created by Active Voice or
the Parties jointly.
5.3 OWNERSHIP OF END USER DOCUMENTATION AND DERIVATIVE WORKS THEREFROM:
As between NEC and Active Voice, except as provided under Section
3.1.c.i., NEC acknowledges that Active Voice and/or Active Voice's
vendors have sole and exclusive right, title and interest in and to
all of the Intellectual Property Rights in the End User
Documentation and any Derivative Works therefrom created by Active
Voice or the Parties jointly.
5.4 OWNERSHIP OF TECHNICAL DOCUMENTATION AND DERIVATIVE WORKS
THEREFROM: As between NEC and Active Voice, NEC acknowledges that
Active Voice and/or Active Voice's vendors have sole and exclusive
right, title and interest in and to all of the Intellectual
Property Rights in the Technical Documentation and any Derivative
Works therefrom created by Active Voice or the Parties jointly.
5.5 OWNERSHIP OF INDEPENDENT NEC DEVELOPMENT: As between NEC and Active
Voice, Active Voice acknowledges that NEC and/or NEC's vendors have
sole and exclusive right, title and interest in and to all of the
Intellectual Property Rights in any independent
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development to the NEC Products done by NEC, subject to any
ownership rights of Active Voice in and to any underlying works
thereto. For purposes of this Agreement, "independent development"
shall mean NEC development done by NEC and not by the Parties
jointly.
5.6 OWNERSHIP OF NEC TRADE SECRETS: As between NEC and Active Voice,
Active Voice acknowledges that NEC has sole and exclusive right,
title and interest in and to the trade secrets that NEC discloses
to Active Voice and documents in a trade secret transmittal form
pursuant to the Notice provisions in Section 14.5 below. Such
transmittal form shall describe the general nature of the trade
secret being disclosed and protected. In addition, the Parties
acknowledge the Trade Secret Transmittal Form covering NEC's
proprietary AAInfo, attached hereto as Exhibit I.
5.7 OWNERSHIP OF TRADEMARKS: As between the Parties, each Party
acknowledges the other Party's sole and exclusive right, title and
interest in and to all of the Intellectual Property Rights in such
other Party's trademarks. At no time during or after the term of
this Agreement shall either Party challenge or assist others to
challenge the other Party's trademarks, or the registration thereof
in the attempt to register any trademarks, marks or similar rights
for marks the same as or confusingly similar to those of the other
Party.
6. PRICING AND COMPENSATION:
6.1 PRICE FOR LICENSED SOFTWARE: NEC shall pay to Active Voice the
royalties per Royalty Unit and/or Use for the Licensed Software as
specified in the applicable SPA.
6.2 PRICE FOR HARDWARE PRODUCTS: NEC shall pay to Active Voice the
price per unit for the Hardware Products as specified in the
applicable SPA. Except as otherwise provided in any such SPA,
Active Voice may increase such pricing upon sixty (60) days notice
to NEC. However, to the extent that NEC has provided a binding
quotation to a distributor prior to or within five (5) days of Active
Voice's notice of a price change, Active Voice shall honor its prior
pricing for such product provided Active Voice receives the order
pursuant to the quotation together with a copy of the dated and
numbered quotation within one hundred (100) days of the date of
Active Voice's notice of the price change. Upon request, NEC shall
verify the information on the quote.
(a) MINIMUMS: If, during the Term of this Agreement, NEC desires
to commit to a minimum royalty amount and/or minimum quantity,
Active Voice shall consider and negotiate in good faith price
and other terms consistent with such commitments.
(b) PRICE REDUCTIONS: If Active Voice reduces its standard pricing
for the Hardware Products, it will notify NEC immediately and
shall apply such price reduction to all pending, unshipped
purchase orders.
6.3 MFB TERMS: NEC shall receive MFB Terms from Active Voice on all
Licensed Software and Hardware Products subject to this Agreement.
6.4 ROYALTY AND FEE EXEMPT COPIES AND/OR USES: No royalties or fees
will be payable for the number of copies of the Licensed Software,
as shall be agreed in a SPA, which are: (i) used internally by NEC
for customer support; (ii) used for evaluation, demonstration or
marketing purposes to promote the sale of royalty-bearing copies or
uses of the Licensed Software (provided NEC does not receive any
revenue or revenue equivalent therefor); or (iii) used by NEC
internally for demonstration or training. In addition, no royalties
or fees will be payable for copies of the Licensed Software which
are distributed merely as bug fixes in Maintenance Releases at the
direction of Active Voice to End Users licensed for the previous
release of the Licensed Software.
In addition, Active Voice acknowledges that no royalties shall be
due in connection with any reinstallation of the Licensed Software
into a new hardware configuration, provided
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that: (i) the reinstalled system replaces the original system due
to hardware defect; (ii) the reinstalled system is used by the same
customer at the same site; and, (iii) there would otherwise be no
New Release charge for the Licensed Software that is reinstalled.
6.5 TAX AND WITHHOLDING: NEC is responsible for all taxes, duties,
tariffs and withholdings in any jurisdiction imposed in connection
with transactions between Active Voice and NEC under this Agreement
other than taxes based on Active Voice's income in the United
States. In the event that such taxes, duties, tariffs or
withholdings are legally imposed initially on Active Voice or
Active Voice is later assessed by any taxing authority, then NEC
shall promptly reimburse Active Voice for the same. This clause
shall survive the termination of the Agreement.
6.6 PRICING FOR NEW RELEASES: Pricing for New Releases shall be
according to the mutual agreement of the Parties. Nothing in this
Section shall restrain or restrict Active Voice in any way from
pricing its products in accordance with its sole discretion.
6.7 STATEMENT OF WORK AND ENGINEERING COMPENSATION: Provided that
Active Voice meets its development obligations to NEC under Exhibit
C, attached hereto and the particular Statement of Work and/or SPA
under which NRE is incurred, NEC shall compensate Active Voice in
accordance with the provisions of such Statement of Work and/or SPA.
6.8 CONSULTING AND ENGINEERING WORK: Prices for consulting and
engineering work provided by Active Voice which are not covered in
an SPA shall be negotiated in good faith by the parties.
7. REPORTS AND PAYMENTS:
7.1 REPORTS FOR LICENSED SOFTWARE: Within ten (10) days following the
end of each calendar month, commencing with the month during which
the first sale or shipment of Royalty Units and/or Uses of Licensed
Software by NEC or its Affiliates occurs, NEC or its Affiliates
shall furnish to Active Voice a written statement in English, in a
form reasonably acceptable to Active Voice and signed by an
authorized employee or agent of NEC or its Affiliates, showing the
number of Royalty Units and/or Uses of Licensed Software made,
distributed, licensed and/or sold by NEC or its Affiliates to
Distributors and End Users during such calendar month. If in any
quarter, no reportable activity has occurred, that fact shall be
shown on such report. The reports shall specify the applicable NEC
Product including the Licensed Software, the SPA under which the
Licensed Software was distributed, and the NEC Affiliate
responsible for such distribution, if that NEC Affiliate is not
reporting activity directly.
7.2 INVOICE AND PAYMENT PROVISIONS:
(a) PAYMENT BASIS: The following invoice and payment provisions
are alternative depending on the type of product, e.g.,
Licensed Software, Hardware Product, and licensing
arrangement, e.g., gold master, production key, system key, as
set forth in a SPA. Each SPA shall specify which invoice and
payment provisions shall apply:
(i) LICENSED SOFTWARE: GOLD MASTER: Upon receipt of NEC's
Report, described in Section 7.1 above, Active Voice
shall issue an invoice to NEC in a form acceptable to
NEC. Upon receipt of Active Voice's invoice, and within
sixty (60) days following the end of each calendar
quarter (March 31, June 30, September 30 and December
31), commencing with the calendar quarter during which
the first sale or shipment of Royalty Units and/or Uses
of Licensed Software by NEC occurs, NEC shall,
irrespective of its own business and accounting
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methods, pay in United States Dollars to Active Voice the
royalties payable for such quarter as shown in the Report
and invoice described above for the Licensed Software.
(ii) LICENSED SOFTWARE: PRODUCTION AND SYSTEM KEYS: HARDWARE
PRODUCTS: Upon receipt of NEC's purchase order for
authorization to load or enable the Licensed Software via
any production or system keys, or to ship Hardware
Products, Active Voice shall issue an invoice to NEC,
which NEC shall pay within sixty (60) days from receipt.
(b) PAYMENT INSTRUCTIONS: Royalties, invoice payments and all
other compensation due to Active Voice pursuant hereto will be
paid by check tendered or wire transfer at the following
address:
REMITTANCE ADDRESS WIRE TRANSFER ACCOUNT
Active Voice Corporation Xxxxx Fargo Bank N.A.
0000 Xxxxx Xxx. Xxx Xxxxxxxxx, XX 00000
Xxxxxxx, XX 00000 ABA#121000246
Attn: Accounts Payable FBO Active Voice Corporation
Account #4159633163
or to such other payment addressees as Active Voice shall
hereafter designate in a notice given in accordance with
Section 14.5.
7.3 FORECASTS: Within sixty (60) days following the end of each
calendar quarter (March 31, June 30, September 30 and December 31),
commencing with the calendar quarter during which the first sale or
shipment of Royalty Units and/or Uses of Licensed Software by NEC
or its Affiliates occurs, or purchase orders to Active Voice occur,
NEC shall provide Active Voice with its best forecast or expected
sales or purchase orders in the next quarter.
7.4 RECORDS: For so long as NEC and its Affiliates may be obligated to
pay any royalties or make any payments under this Agreement, and
for a period of three (3) years thereafter, NEC and its Affiliates
agree to keep and maintain complete and accurate records for the
current year and the preceding (3) three years of all data
reasonably required for the verification of: (a) the amounts to be
paid under this Agreement; (b) the information to be reported
under this Agreement; and (c) the license terms or other
restrictions to be complied with under this Agreement.
Notwithstanding the foregoing, NEC and its Affiliates shall not be
obligated to maintain such records for more than one year after
termination or expiration of this Agreement.
7.5 AUDIT RIGHTS: During the term of required records set forth in
Section 7.4 above, Active Voice may conduct an audit of NEC's or
its Affiliate's records and a written certification by a mutually
acceptable independent Certified Public Accountant that the
reports, payments and records are correct or that NEC is performing
in accordance with this Agreement. Active Voice shall provide NEC
with at least thirty (30) calendar days notice of such audit. In
the event the Parties cannot in good faith agree as to an auditor
within such ten (10) day notice period, Active Voice may select any
of the top five (5) CPA firms to conduct the audit. Such auditor
will report to Active Voice only whether the amounts due or
payable to Active Voice pursuant to this Agreement were correct,
any amount that is due and payable to Active Voice, and information
related to compliance or noncompliance with this Agreement. Such
auditor will hold such information in confidence and will not
disclose such information to any other person or entity, other than
Active Voice, without the prior written consent of NEC. Audits will
occur during normal business hours and no more frequently than once
per calendar year, unless Active Voice can present a reasonable
basis for its belief that an audit in a lesser time period is
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needed. The cost of such audits will be borne by Active Voice
unless a payment discrepancy unfavorable to Active Voice greater
than or equal to five percent (5%) of the amounts owed for any
reporting period covered by the audit is discovered, in which case
NEC shall pay the costs of the audit as well as any payment
deficiency and interest thereon. A copy of the audit shall be
submitted to NEC.
8. NECAM APPOINTMENT AS RELATIONSHIP MANAGER:
The Parties hereby agree that NECAM shall be the relationship
manager for all NEC Affiliates that become direct Parties to this
Agreement with respect to this Agreement and any SPAs hereunder.
The Enrolled Affiliates hereby authorize NECAM to act as their
general agent with general authority, including the ability to
enter into contracts, release claims and make legally binding
commitments on behalf of such Enrolled Affiliates in all matters
arising from or connection with this Agreement. Active Voice shall
be entitled to rely on communications from NECAM on behalf of such
Enrolled Affiliates as though such communications came directly
from such Enrolled Affiliates. Notwithstanding anything to the
contrary herein, Active Voice and any Enrolled Affiliate may
communicate and deal directly with each other in full contractual
privity in connection with any SPAs, Statements of Work,
development activities, training, support and technical
specifications relating to such NEC Affiliate. The relationship
manager shall be provided copies of all of the aforementioned
agreements. In addition, nothing in this Agreement prevents Active
Voice, its Affiliates and/or its Distributors from entering into
any agreements with NEC Affiliates or Distributors, including in
connection with the Licensed Software, Third Party Software, Active
Voice Hardware and Third Party Hardware.
9. TERM AND TERMINATION:
9.1 TERM: The initial term of this Agreement shall be five (5) years
beginning on the Effective Date. Thereafter, the Agreement shall
automatically renew at the end of such initial term on the
anniversary date of the Effective Date for additional one (1) year
renewal terms, unless either Party provides written notice to the
contrary at least ninety (90) calendar days before any renewal date.
9.2 TERMINATION FOR CAUSE:
(a) ACTIVE VOICE TERMINATION FOR CAUSE: Active Voice may
terminate, with respect to NEC or any of its Affiliates, this
Agreement if NEC fails to pay for Licensed Software or
Hardware Products in accordance with the terms of this
Agreement, unless NEC has a good faith basis to dispute such
payment obligation, or if NEC fails to comply with any
material term or condition of this Agreement, provided Active
Voice has given NEC thirty (30) calendar days written notice
of such failure to pay or comply and NEC has not remedied such
failure within the thirty (30) day period. However, if the
nature of such breach does not permit remediation within
thirty (30) calendar days despite NEC's good faith efforts,
the breach cure period shall be extended for such reasonable
time as the Parties may agree. Additionally, Active Voice may
terminate this Agreement immediately if NEC: (a) files or has
filed against it a petition in bankruptcy, (b) has a receiver
appointed to handle its assets or affairs, (c) makes or
attempts to make an assignment for the benefit of creditors,
or (d) violates the confidentiality provisions of this
Agreement.
(b) NEC TERMINATION FOR CAUSE: NEC may terminate this Agreement if
Active Voice fails to comply with any material term or
condition of this Agreement provided NEC has given Active
Voice thirty (30) days written notice of such failure and
Active Voice has not remedied such failure within the thirty
(30) day period. However, if the nature of such breach does
not permit remediation within thirty
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(30) calendar days despite Active Voice's good faith efforts,
the breach cure period shall be extended for such reasonable
time as the Parties may agree. Additionally, NEC may terminate
this Agreement immediately if Active Voice: (a) files or has
filed against it a petition in bankruptcy, (b) has a receiver
appointed to handle its assets or affairs, (c) makes or
attempts to make an assignment for the benefit of creditors,
or (d) violates the confidentiality provisions of this
Agreement.
(c) CUMULATIVE REMEDIES: Each Party's rights to terminate are in
addition to any other rights that Party may have, subject to
the limitations on liability imposed in this Agreement.
9.3 EFFECT OF TERMINATION OR EXPIRATION: Upon the termination or
expiration of this Agreement, all licenses granted hereunder shall
terminate immediately and without any requirement of further
notice, except that: (a) all completed and delivered sales by NEC
and its Distributors to its End Users and the validly granted
sublicenses to the Licensed Software thereunder, shall survive any
termination or expiration of this Agreement, (b) NEC and its
Affiliates and Distributors may distribute any product in its or
its Affiliates or Distributor's inventory, and (c) all licenses
back to Active Voice shall survive, provided that termination was
not due to an unremediated Active Voice material breach. Upon
termination or expiration of this Agreement, each Party shall
return or certify it has destroyed all copies of material and
Confidential Information owned by the other.
10. CONFIDENTIALITY:
10.1 CONFIDENTIAL INFORMATION: For purposes of this Agreement, the term
"Confidential Information" shall mean all non-public information
that a Party designates as being confidential, or which, under the
circumstance of disclosure ought to be treated as confidential.
Confidential Information includes, without limitation, information
that relates to research, development, trade secrets, know-how,
product development plans, inventions, technical data, software
programming, concepts, designs, procedures, manufacture,
purchasing, accounting, engineering, marketing, merchandising and
selling, business plans or strategies, customers, and information
entrusted to a Party or its principal officers and employees by
third parties. Confidential Information shall not include
information that was known to a Party prior to disclosure by the
other Party, information that was independently developed by the
other Party by an employee with no exposure to the Confidential
Information, information that was independently discovered by the
other Party by an employee with no exposure to the Confidential
Information, or information that becomes publicly available through
no fault of the recipient, or is approved for disclosure by the
owner of the Confidential Information, in writing, prior to its
disclosure. Both parties shall provide the same type and degree of
care to prevent disclosure or unauthorized use of the other party's
Confidential Information as they would provide to protect their own
Confidential Information. As a minimum requirement, NEC and Active
Voice shall retain each other's Confidential Information in one on
more secure places with access limited only to their respective
representatives, officers, employees or agents who have a "need to
know" such Confidential Information.
10.2 OBLIGATION: Each Party agrees that at all times during the Term of
this Agreement, and for a period of three (3) years thereafter, it
shall hold in strictest confidence, and will not use the
Confidential Information, except as necessary to perform its
obligations under the Agreement. Each Party shall disclose
Confidential Information only to its employees, Affiliates and
independent contractors who have a need to know such information
for purposes of performance under this Agreement and who have
executed confidentiality agreements with such Party sufficient to
prohibit unauthorized use and disclosure of the Confidential
Information disclosed. A Party shall not disclose the Confidential
Information
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of the other Party to any third Party without the prior written
consent of the disclosing Party.
10.3 CONFIDENTIALITY OF AGREEMENT: Each Party agrees that the terms,
conditions and contents of this Agreement shall be treated
confidentially and that no reference thereto shall be made in any
form without the prior written consent of the other Party, except
to accountants, banks, financing sources, lawyers and related
parties or in connection with the enforcement of this Agreement.
The Parties shall mutually agree upon any public announcements of
this Agreement. Both Parties shall have the right of written
pre-approval with respect to any and all press releases referring
to the subject matter of this Agreement.
10.4 EXCEPTIONS: The confidentiality provisions of this Section 10 shall
apply to prohibit disclosure of the Confidential Information
except (i) as required by applicable disclosure laws; or (ii) in
connection with a court order requiring disclosure, in which case
the Party under order must provide immediate notice and cooperate
in any attempt to quash such order.
11. WARRANTIES:
11.1 LICENSED SOFTWARE:
(a) LIMITED MEDIA AND PERFORMANCE WARRANTY: Active Voice represents
and warrants that: (i) upon initial delivery by Active Voice
of the Final Acceptance version of the Licensed Software and
for fourteen (14) months thereafter, the media on which the
Licensed Software is furnished, exclusive of Third Party
Software and Third Party Hardware, will be free from defects
in materials and workmanship, and (ii) upon shipment of the
Licensed Software to the End User and for fourteen (14) months
thereafter, the Licensed Software will perform substantially
in accordance with the Specifications for the Licensed
Software when used as permitted under this Agreement and in
accordance with the End User Documentation, provided that the
NEC-developed software, NEC Products, Third Party Software and
Third Party Hardware operate substantially in accordance
with their applicable specifications. Active Voice does not
warrant that the operation of the Licensed Software will be
interruption or error free, or will be free from bugs,
defects, viruses, and/or security issues.
(b) NECESSARY RIGHTS: As of the Effective Date, Active Voice
represents and warrants that it has no actual or constructive
knowledge of any claim of infringement by any third party in
any jurisdiction with respect to the Licensed Software.
(c) YEAR 2000
(i) LICENSED SOFTWARE: Active Voice represents and warrants
that the Licensed Software is Year 2000 Ready.
(ii) THIRD PARTY SOFTWARE OR THIRD PARTY HARDWARE: Active
Voice represents and warrants that it shall use its Best
Efforts to investigate the Third Party Software and Third
Party Hardware to determine whether the Third Party
Software and Third Party Hardware are Year 2000 Ready.
Active Voice makes no other representation or warranty
regarding the Year 2000 or any date data sensitivity in
connection with the Third Party Software, Third Party
Hardware or the data interface or interoperability of
such Third Party Software and Third Party Hardware with
respect to the Licensed Software. Active Voice agrees to
provide any product literature or non-confidential
technical information in Active Voice's possession to
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NEC regarding the Year 2000 Readiness of such Third Party
Software and Third Party Hardware.
(d) DISCLAIMER: EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE
LICENSED SOFTWARE IS AND SHALL BE PROVIDED STRICTLY ON AN "AS
IS" BASIS. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, ACTIVE
VOICE HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER
EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION
ANY: (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE; (III) WARRANTY ARISING FROM COURSE
OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; AND/OR
(IV) WARRANTY OF TITLE OR NONINFRINGEMENT.
(e) TERMINATION OF WARRANTIES: With respect to the Licensed
Software, all warranties in this Section 11 shall terminate
upon the earlier occurring of the following events: (i)
fourteen (14) months after shipment of the Licensed Software
to the End User, (ii) twelve (12) months after expiration or
termination of the Agreement, or, (iii) upon any NEC
modification to the Licensed Software if such modification
might affect the warranties herein.
(f) EXCLUSIVE REMEDY FOR LICENSED SOFTWARE: If any item of the
Licensed Software fails to comply with the warranties as set
forth above, Active Voice will, at its own expense and as its
sole obligation and NEC's sole and exclusive remedy for any
breach of this warranty, use its Best Efforts to correct the
noncompliance (e.g., by furnishing a modification or
replacement), provided that Active Voice is able to reproduce
the noncompliance on the computer and telecommunication system
for which the item was designed. If after the expenditure of
such Best Efforts, Active Voice is unable to correct the
noncompliance, the Parties shall terminate the SPA for that
Licensed Software and Active Voice shall refund NEC the
compensation paid by NEC for any defective units of the
Licensed Software, if any, in which event such refund shall be
in full satisfaction of all claims relating to such
noncompliance.
11.2 ACTIVE VOICE HARDWARE:
(a) LIMITED PRODUCT AND PERFORMANCE WARRANTY: Active Voice
represents and warrants that upon initial delivery by Active
Voice and for fourteen (14) months thereafter: (i) the Active
Voice Hardware, exclusive of Third Party Hardware and Third
Party Software, will be free from defects in materials and
workmanship, and (ii) the Active Voice Hardware will perform
substantially in accordance with the Specifications for the
Active Voice Hardware, when used as permitted under this
Agreement and in accordance with the End User Documentation,
provided that the NEC-developed software, NEC Products, Third
Party Software and Third Party Hardware operate substantially
in accordance with their applicable specifications. Active
Voice does not warrant that the operation of the Active Voice
Hardware will be interruption or error free, or will be free
from bugs, defects, viruses, and/or security issues.
(b) NECESSARY RIGHTS: As of the Effective Date, Active Voice
represents and warrants that it has no actual or constructive
knowledge of any claim of infringement by any third party in
any jurisdiction with respect to the Active Voice Hardware.
(c) DISCLAIMER: EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE
ACTIVE VOICE HARDWARE IS AND SHALL BE PROVIDED STRICTLY ON AN
"AS IS" BASIS. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, ACTIVE
VOICE HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER
EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION
ANY: (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS
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FOR A PARTICULAR PURPOSE; (III) WARRANTY ARISING FROM
COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF
TRADE; AND/OR (IV) WARRANTY OF TITLE OR NONINFRINGEMENT.
(d) TERMINATION OF WARRANTIES: With respect to the Active
Voice Hardware, all warranties in this Section 11 shall
terminate upon the earlier occurring of the following
events: (i) fourteen (14) months after delivery by Active
Voice of the specific unit of Active Voice Hardware,
(ii) twelve (12) months after expiration or termination of
the Agreement, or, (iii) upon any NEC modification to
the Active Voice Hardware if such modification might
affect the warranties herein.
(e) EXCLUSIVE REMEDY FOR ACTIVE VOICE HARDWARE: If any unit
of the Active Voice Hardware fails to comply with the
warranties as set forth above, Active Voice will, at
its own expense and as its sole obligation and NEC's sole
and exclusive remedy for any breach of this warranty, use
its Best Efforts to correct the noncompliance (e.g., by
furnishing a modification or replacement); provided that
(i) NEC returns the unit with an Active Voice issued Return
Authorization (RA) number to Active Voice (c/o Active Voice
Customer Service Representative at the Active Voice address
set forth in this Agreement), and (ii) Active Voice is able
to reproduce the noncompliance on the computer and
telecommunication system for which the item was designed.
If after the expenditure of its Best Efforts Active Voice
is unable to correct the noncompliance, Active Voice shall
refund NEC the compensation paid by NEC for the defective
unit of the Active Voice Hardware in which event such refund
shall be in full satisfaction of all claims relating to such
noncompliance.
11.3 THIRD PARTY SOFTWARE AND THIRD PARTY HARDWARE: Although Active
Voice provides a limited warranty on Active Voice Hardware, Third
Party Software and Third Party Hardware suppliers shall be
responsible for any warranties in connection with those products.
If any Third Party Software or Third Party Hardware fails to
operate in accordance with its specifications or is defective in
any way, NEC's sole and exclusive remedy shall be against the
Third Party Software or Third Party Hardware supplier. Third Party
Software and Third Party Hardware are provided subject to all of
the terms and conditions of the Third Party Documents and without
any Active Voice warranties, indemnities or support obligations
therefor. However, to the extent NEC requests Active Voice's
reasonable help in resolving any warranty claims NEC might have
against the Third Party Software and Third Party Hardware
suppliers, Active Voice agrees to cooperate and provide such help.
11.4 NEC WARRANTIES: Any warranties offered by NEC to NEC's Distributors
and End Users are not binding on Active Voice, even if Active Voice
becomes aware of such warranties, and NEC shall hold Active Voice
harmless from any and all claims arising from such warranties to
the extent they exceed Active Voice's warranties herein.
12. INDEMNIFICATION AND LIMITATION OF LIABILITY:
12.1 ACTIVE VOICE INDEMNIFICATION: Active Voice shall defend, indemnify
and hold NEC harmless from and against any and all actions,
claims, damages, expenses (including reasonable attorney's fees)
and liabilities arising from any claim against NEC that the
Licensed Software infringes any patent, copyright, or trade secret
in the countries listed in Exhibit G, attached hereto. This
indemnity shall apply provided that NEC (a) gives Active Voice
prompt, written notice of such claim; (b) permits Active Voice
to defend or settle the claim; and (c) provides Active Voice with
the assistance, information and authority necessary to defend or
settle the claim. Active Voice shall reimburse NEC for reasonable
out-of-pocket expenses incurred in providing such assistance. For
any covered claim, Active Voice shall pay the amount of any
settlement or the costs and damages awarded,
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but shall not be responsible for any settlement made without its
prior written consent, which shall not be unreasonably withheld or
delayed.
(a) LIMITATIONS: Active Voice shall have no liability for or
obligation to defend, settle or indemnify against any claim
of infringement arising from use by NEC of: (a) any version of
the Licensed Software that has been modified by NEC if such
modification contributed to the basis for bringing the claim
for which indemnification is sought, (b) any unauthorized
combination of the Licensed Software with other software,
equipment or devices, if such combination contributed to the
basis bringing of the claim for which indemnification is
sought, (c) any Third Party Software or Third Party Hardware
supplied with the Licensed Software, or (d) Modified Software
that has been modified according to NEC's specification or
request and such specification or request contributes to the
basis of the claim for which indemnification is sought.
(b) OPTIONS: If the Licensed Software, in the opinion of Active
Voice might become subject to a claim of infringement, Active
Voice may elect to: (a) obtain the right of continued use of
the Licensed Software for NEC, or (b) replace or modify the
Licensed Software to avoid such a claim as long as the
functionality of the Licensed Software remains substantially
the same. If neither alternative is available on commercially
reasonable terms, Active Voice may discontinue the specific
Licensed Software and pay to NEC a full refund of the price
paid to Active Voice for the affected and recalled Licensed
Software, and terminate the license for such product under
the Agreement.
(c) TERMINATION OF INDEMNITY: Any indemnity obligation of Active
Voice undertaken in this Section shall terminate upon the
earlier occurring of the following events: (i) twelve (12)
months after expiration or termination of the Agreement, or,
(ii) upon any NEC modification to the Licensed Software if
such modification might affect the basis for indemnified claim
herein.
(d) EXCLUSIVE REMEDY: The indemnity set forth in this Section 12.1
shall be NEC's sole and exclusive remedy with respect to any
infringement claim brought in connection with the Licensed
Software.
12.2 NEC INDEMNIFICATION: NEC agrees to defend, indemnify and hold
Active Voice harmless from and against any and all actions, claims,
damages, expenses (including reasonable attorney's fees) and
liabilities arising from NEC's use, modification, distribution and
sale of the Active Voice Deliverables and the NEC Products,
including but not limited to, suits and claims brought against
Active Voice by any third parties for NEC's breach of warranty to
such third party, but excluding infringement claims against the
Licensed Software covered under Section 12.1 above. NEC's duties
under this Section 12 extend to any matters arising out of the
alleged infringement by any NEC development, whether or not owned
by Active Voice and any NEC Products of any patent, copyright,
trade secret or trademark right in Japan and/or in the countries
listed in Exhibit G, attached hereto. This indemnification shall
apply provided that: (i) NEC is notified promptly in writing of
such claim; (ii) NEC controls the defense or settlement of the
claim; and (iii) Active Voice cooperates reasonably and gives all
necessary authority, information and assistance (at NEC's expense).
Active Voice will not be liable for any costs or damages, and NEC
will indemnify, defend and hold Active Voice harmless from any
expenses, damages, costs or losses resulting from any suit or
proceeding based upon a claim arising from: (a) Active Voice's
compliance with NEC's designs, specifications or instructions; (b)
modification of any product by a party other than Active Voice
after delivery by Active Voice, (c) the use of any product or any
part thereof furnished hereunder in combination with any other
product not furnished or authorized by Active Voice; (d) the direct
or contributory infringement of any process patent using any
product furnished hereunder.
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12.3 LIMITATION OF LIABILITY: EXCEPT FOR A BREACH BY EXCEEDING THE
LICENSE GRANTS OR VIOLATING THE RESTRICTIVE PROVISIONS IN
SECTIONS 3 AND 4 ABOVE OR A VIOLATION OF THE CONFIDENTIALITY
PROVISIONS IN SECTION 10 ABOVE, LIABILITY ARISING UNDER THIS
AGREEMENT SHALL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE
DAMAGES AND NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY INDIRECT
OR SPECULATIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO
CONSEQUENTIAL, INCIDENTAL AND SPECIAL DAMAGES, SUCH AS LOSS OF USE,
BUSINESS INTERRUPTIONS, AND LOSS OF PROFITS, IRRESPECTIVE OF
WHETHER THE PARTY HAS ADVANCE NOTICE OF THE POSSIBILITY OF ANY SUCH
DAMAGES. NOTWITHSTANDING THE FOREGOING, ACTIVE VOICE'S TOTAL
LIABILITY TO NEC UNDER THIS AGREEMENT, INCLUDING UNDER SECTION
12.1, SHALL NOT EXCEED THE AMOUNT HAVING ACTUALLY BEEN PAID BY NEC
TO ACTIVE VOICE UNDER SECTION 7 OF THIS AGREEMENT FOR A PARTICULAR
PRODUCT DURING THE PREVIOUS TWELVE (12) MONTHS PRIOR TO NEC'S
NOTIFICATION OF ANY CLAIM AGAINST SUCH PRODUCT. THE PARTIES
ACKNOWLEDGE THAT THESE LIMITATIONS ON POTENTIAL LIABILITIES WERE AN
ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT.
13. DISPUTE RESOLUTION; CHOICE OF LAW; JURY WAIVER:
13.1 DISPUTE ESCALATION PROCEDURE: In the event a dispute arises between
the Parties with respect to the subject matter of this Agreement,
both Parties agree to attempt to resolve the dispute through the
Project Managers in the ordinary course of business. However,
either Party may by written notice commence this escalation
procedure at any time should the Party feel the dispute cannot be
resolved in the ordinary course. Within five (5) days after
receipt, the Parties' first level contacts, Xxxx X. XxXxxxxx for
NEC and Xxxxx Xxxxxx, for Active Voice, will confer. If they are
unable to resolve the matter, the Parties' second level contacts,
Xxx Xxxxxx for NEC and Xxxxx Xxxxx, for Active Voice, will confer
within ten (10) days after receipt of the initial notice. If the
matter has not been resolved within twenty (20) days after receipt
of the initial notice, then the Parties may commence arbitration
as set forth below.
13.2 CHOICE OF LAW: The construction, interpretation and performance of
this Agreement shall be governed by and construed in accordance
with the domestic laws of the State of Washington. The Parties
hereby consent to sole and exclusive jurisdiction of and venue in
the federal courts located in Seattle, Washington.
13.3 JURY WAIVER: Each of the Parties waives trial by jury and the right
to trial by jury in any and all actions or proceedings in any court
between them or to which they may be Parties, whether arising out
of, under or by reason of this Agreement, or any acts or
transactions, hereunder to the interpretation or validity thereof,
or under, or by reason of any other contract, agreement, loan, or
transaction of, any kind between them, or to which they may be
Parties, of any kind, nature, or description whatsoever.
14. ADDITIONAL TERMS:
14.1 RELATIONSHIP COMMITMENT: The Parties both acknowledge their intent
that this Agreement shall confirm the Parties' long-term commitment
to each other and provide a basis for the increasing priority of
the Parties' relationship. Accordingly, Active Voice on its part,
has agreed to provide NEC Most-Favored Buyer Terms on all of its
products and to enter into an investment agreement. In addition,
Active Voice agrees to provide free Licensed Software to NEC for
internal deployment and use at NEC and its Affiliates. NEC, on its
part, agrees that no other messaging company shall be given
preference
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over Active Voice with respect to volume commitments by NEC,
exclusivity in territories, market segments or sales channels
granted by NEC, or opportunities to bid on future product and sales
opportunities, without providing Active Voice an occasion to offer
better terms and lower prices to NEC on such future products and
sales opportunities.
14.2 CONFLICTS: Unless specifically stated to the contrary, in the event
of a conflict between this Agreement and any other document related
to the subject matter of this Agreement, or the body of this
Agreement and any of the Exhibits to this Agreement, the terms of
this Agreement, or the body of the SPA shall govern.
14.3 FORCE MAJEURE: Neither Party will be liable for any failure to
perform due to unforeseen circumstances or causes beyond its
reasonable control, including, but not limited to, acts of God,
war, embargoes, acts of civil or military authorities, delay in
delivery by vendors not caused by Active Voice, fire, flood, accident,
strikes, inability to secure transportation, facilities, fuel,
energy, labor or materials. In the event of force majeure, time for
delivery or other performance will be extended for a period equal
to the duration of the delay caused thereby.
14.4 EXPORT: NEC agrees to comply with the export laws and regulations
of Japan, the United States and any other country with jurisdiction
over the Licensed Software, the NEC Products and/or either Party or
its Affiliates. Active Voice agrees to observe and comply with the
export laws and regulations of the United States to the extent such
compliance depends on Active Voice. Without limiting the foregoing,
NEC agrees:
NEC shall not re-export the Licensed Software or any technology or
documentation it receives under this Agreement to a national of
Cuba, Iran, Iraq, Libya, North Korea, Sudan or Syria unless
specifically authorized by U.S. regulations, including, but not
limited to, the Export Administration Regulations ("EAR"),
including any successors or related laws or regulations, or by a
license issued by the U.S. Government.
NEC shall defend, indemnify and hold Active Voice harmless from and
against any and all claims, judgments, costs, awards, expenses
(including reasonable attorneys fees) and liability of any kind
arising out of the non-compliance with applicable government
regulations, statute, decree or other obligation with respect to
NEC's exportation or re-exportation of the Licensed Software. The
obligations under this Section shall survive the expiration or
termination of this Agreement.
14.5 NOTICES: Any notice required or permitted to be given under this
Agreement shall be effective on receipt if it is in writing and
sent by certified or registered mail, or insured courier, return
receipt requested, to the appropriate Party hereto at the address
set forth below and with the appropriate postage affixed. Either
Party may change its address for receipt of notice by notice to the
other Party in accordance with this Section.
If to NEC: NEC Corporation
0-0, Xxxxx-Xxxxx
Xxxxxx-xx, Xxxxx
000-00 Xxxxx
Attn: General Manager, Legal Division
With a copy to: NEC America, Inc.
0000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: Director, Contracts & Credit
Administration
And to: NEC USA, Inc.
0 Xxxxxxxxx Xxxxxx Xxxxx
-00-
Xxxxxxxx, Xxx Xxxx 00000
Attn: General Counsel
If to Active Voice: Active Voice Corporation
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: President
With a copy to: Active Voice Corporation
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: General Counsel
14.6 SURVIVAL: All of the provisions in Sections 1, 3.1(c)(ii),
3.2(b)(i), 3.2(b)(ii), 4, 5, 6.5, 10, 12, 13, 14.2-14.13, and any
other provisions that expressly survive, shall survive expiration
or termination of this Agreement.
14.7 ASSIGNMENT: Neither Party may assign this Agreement or any rights,
benefits or obligations hereunder, without the other Party's
written consent, except to an Affiliate, or, in the event of: (a) a
merger of the assigning Party, (b) an acquisition of the assigning
Party wherein more than fifty-percent (50%) of the outstanding
voting stock of the assigning Party is acquired, or (c) a sale of
all or substantially all of the assets of the assigning Party to
which this Agreement relates.
14.8 RELATIONSHIP: In all matters relating to this Agreement, NEC and
Active Voice shall act as independent contractors. Neither Party
will represent that it has any authority to assume or create any
obligation, expressed or implied, on behalf of the other Party, or
to represent the other Party as agent, employee, or in any other
capacity. Neither Party shall have any obligation, expressed or
implied, except as expressly set forth herein.
14.9 INTERPRETATION: This Agreement has been negotiated at arm's length
and between persons sophisticated and knowledgeable in the matters
dealt with in this Agreement. Each Party has been represented by
experienced and knowledgeable legal counsel. Accordingly, any rule
of law or legal decision that would require interpretation of any
ambiguities in this Agreement against the drafting Party is not
applicable and is hereby waived.
14.10 ENTIRE AGREEMENT, SUPERSEDURE AND AMENDMENT: This Agreement
supersedes all of the agreements, amendments, exhibits and/or
addenda listed in Section III of the Recitals or otherwise and
supersedes all prior proposals, agreements and representations
between them, whether written or oral, relating to the subject
matter contained herein. This Agreement may be amended only if
agreed to in writing and signed by an authorized signatory of each
Party.
14.11 SEVERABILITY: All rights and remedies, whether conferred hereunder,
or by any other instrument or law will, unless otherwise expressly
stated, be cumulative and may be exercised singularly or
concurrently. The failure of any Party to enforce any of the
provisions hereof shall not be construed to be a waiver of the
right of such Party thereafter to enforce such provisions. The
terms and conditions stated herein are declared to be severable. If
any provision or provisions of the Agreement shall be held to be
invalid, illegal or unenforceable, they shall be enforced to the
maximum amount possible. The validity, legality and enforceability
of the remaining provisions shall not in any way be affected or
impaired thereby.
14.12 COUNTERPARTS: This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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14.13 EXHIBITS: The Exhibits listed below are attached and made a part of
this Agreement. Any capitalized items used in the Exhibits shall be
as defined in the Agreement.
EXHIBITS A DEFINITIONS
B SPECIFIC PRODUCT ADDENDA
C GENERAL DEVELOPMENT PROVISIONS
D SUPPORT PLANS
E TRAINING PROGRAMS
F MINIMUM END USER TERMS
G INDEMNIFIED COUNTRIES
H AFFILIATE ENROLLMENT
I TRADE SECRET TRANSMITTAL FOR AAINFO
AGREED TO AND ACCEPTED:
NEC CORPORATION ACTIVE VOICE CORPORATION
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------------ -------------------------------
Title: V.P. Switching & Mobile Systems, Title: President & CEO
--------------------------------- ----------------------------
Operations Unit Date: May 5, 1999
--------------------------------------- ------------------------------
Date: May 5, 1999
----------------------------------
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EXHIBIT A
DEFINITIONS
1. "ACTIVE VOICE DELIVERABLES" shall mean the Licensed Software, Active
Voice Hardware, Technical Documentation, End User Documentation, and any
other materials, information or rights disclosed, provided or licensed
by Active Voice under this Agreement, specifically excluding any Third
Party Software or Third Party Hardware. The Active Voice Deliverables
for a particular product are listed and described in the SPA for that
product, attached as an addenda to Exhibit B.
2. "ACTIVE VOICE HARDWARE" shall mean the hardware components that Active
Voice provides to NEC under this Agreement for which Active Voice
undertakes any warranty, support and/or indemnity obligation to NEC.
Components deemed Active Voice Hardware shall be so specified in any SPA.
3. "AFFILIATES" shall mean any entity on or after the Effective Date
controlling, controlled by or under common control with a Party. The
term "control" herein shall mean the legal, beneficial or equitable
ownership, directly or indirectly of more than fifty percent (50%) of
the aggregate of all voting equity in such entity. An entity shall be
deemed an Affiliate only for so long as such common control shall last.
4. "BEST EFFORTS" shall mean that a Party has exercised its best efforts
possible under the circumstances to effect a particular result; however,
such standard shall not obligate a Party to incur any significant
hardship, cost or other detriment that is disproportionate in comparison
to the benefit to either Party or the desired result. If a Party
obligated to exercise Best Efforts encounters any situation where Best
Efforts are not feasible or practical, the parties agree to discuss in
good faith the appropriate amount of effort that should be required in
that case.
5. "BETA TESTING" shall mean the external field test activity intended to
demonstrate that the Licensed Software substantially conforms to the
Specifications in the applicable Statement of Work.
6. "CHANGE ORDER" shall mean a written agreement executed by authorized
representatives of both Parties to modify and amend a Statement of Work.
7. "DERIVATIVE WORK" shall mean any modification, alteration or adaption
to an existing work and/or any work that would be deemed a derivative
work under the Copyright Act, Title 17 of the U.S. Code, as amended.
8. "DISTRIBUTOR" shall mean any party, including any NEC Affiliate, that
receives a license from NEC to market and distribute the Licensed
Software and/or Hardware Products. The term "Distributor" shall include,
but not be limited to, resellers, original equipment manufacturers,
value added resellers, systems integrators, dealers, agents and
subdistributors of NEC Products.
9. "END USER" shall mean any person or entity that purchases the Licensed
Software for his, her or its personal use.
10. "END-USER DOCUMENTATION" shall mean any End User installation and user
guides, manuals, and other technical information in printed and
machine-readable form that are normally provided by Active Voice to End
Users of the Licensed Software, as further described in Exhibit H.
11. "ENROLLED AFFILIATE" shall mean any NEC Affiliate enrolled as a direct
Party to this Agreement via execution of an Enrollment Agreement with
Active Voice and NEC.
12. "FINAL ACCEPTANCE" shall mean final acceptance of an Active Voice
Deliverable under the provisions of Section 3.2 in Exhibit C to the
Agreement.
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13. "HARDWARE PRODUCT" shall mean a hardware product delivered by Active
Voice to NEC hereunder that might be comprised of Active Voice Hardware,
Third Party Hardware, Licensed Software and/or Third Party Software.
14. "NEC HARDWARE SYSTEM" shall mean an interface board providing voicemail
functionality when used with telephone systems which are manufactured by
or for NEC, or supplied by or to NEC on an OEM basis. Such Hardware
Systems shall meet applicable specifications for the Licensed Software,
as such specifications may be set forth in a SPA.
15. "HDD" shall mean a hard disk drive onto which either Active Voice or NEC
installs the Licensed Software and any Third Party Software.
16. "INTELLECTUAL PROPERTY RIGHTS" shall mean rights, whether prospective,
pending or registered, including any renewals thereof, under or in
connection with any patents (for the duration thereof), copyrights,
maskworks, trade secrets, trademarks, service marks, trade dress,
tradenames and other intangible property rights.
17. "KEY" shall mean a key device designated by Active Voice as: (a) a
"Production Key" which allows the Licensed Software to be downloaded to
the NEC Hardware System, or (b) a "System Key" which allows an End User
to utilize a specified number of ports in the Licensed Software.
18. "LICENSED SOFTWARE" shall mean an Active Voice computer program,
including any Maintenance Release or New Release thereto, and any
Derivative Work created therefrom by Active Voice or the Parties
jointly, specifically delivered to NEC by Active Voice under a SPA and
licensed by Active Voice to NEC under the Agreement. Licensed Software
may be installed in Hardware Products. In such case, the installed
Licensed Software shall not lose its independent identity and shall
still be identified as Licensed Software under this Agreement and not as
part of or merged into any such Hardware Product. For purposes of this
Agreement, "Licensed Software" shall not include: (a) any software owned
by NEC under the provisions of Section 5.5 of the Agreement, even if
Active Voice has contributed to the design or development of such
software; (b) any Third Party Software unless specifically included in
the Licensed Software; or (c) any software in any Third Party Hardware
unless specifically included in the Licensed Software.
19. "LOCALIZING" or "LOCALIZATION" shall mean translating the Licensed
Software, End User or Technical Documentation from English into another
language and making any other changes for reasonably necessary cultural
reasons. Localizing or Localization shall not include feature
improvement, added functionality, and/or engineering changes for
interoperability or compatibility purposes.
20. "MAINTENANCE RELEASE" shall mean any release or patch to an existing
release of Licensed Software designed primarily to correct bugs or
errors in previous releases.
21. "MFB TERMS" shall mean Most-Favored Buyer Terms. For purposes of this
Agreement, Most-Favored Buyer Terms means that NEC shall receive a price
at least as low as the lowest price Active Voice offers to another
similarly-situated customer in connection with substantially equivalent
products, services or the Licensed Software. For purposes of this
definition, "substantially equivalent" shall mean substantially
equivalent in terms of features, functionality, development
responsibilities, Intellectual Property Rights contributions, payment
terms, funding, promotional and marketing efforts and abilities, market
served and unit volume levels and guarantees. In addition to receiving
MFB Terms for price, NEC shall also receive overall terms at least as
favorable as those granted to any other party with respect to the
Licensed Software.
22. "MODIFIED END USER DOCUMENTATION" shall mean End User Documentation that
has been modified, translated or localized by NEC or by Active Voice for
NEC pursuant to a Statement of Work, for distribution with NEC Products.
23. "MODIFIED SOFTWARE" shall mean any modification to or Derivative Work
created from the Licensed Software pursuant to a Statement of Work.
24. "NEC" shall mean NEC Corporation and any Enrolled Affiliate.
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25. "NEC PRODUCTS" shall mean products distributed by NEC under the NEC
name or the name of an NEC Affiliate, that include or incorporate
the Licensed Software or Hardware Product, in whole or in part,
and/or upgrades, modifications, new releases and/or new versions of
such products.
26. "NEW RELEASE" shall mean an enhanced or revised release of the
Licensed Software, as sometimes signified in the software industry
by a change in the digit which appears immediately to the left or
right of the decimal point in the version number.
27. "NEW PRODUCT" shall mean a product that Active Voice adds to its
product line on a general basis. New Products do not include any
products, features or functionality developed by Active Voice at
the request, with the assistance, or implementing the Intellectual
Property Rights of any third party.
28. "NRE" shall mean non-recurring expenses associated with development
of NEC Products.
29. "OBJECT CODE" shall mean software, including all computer
programming code, entirely in binary form, which is directly
executable by a computer after suitable processing but without the
intervening steps of compilation or assembly, and all help,
message, and overlay files thereto.
30. "PRODUCT DISCONTINUANCE" shall mean discontinuance of an Active
Voice product as determined by the criteria set forth in Section
2.6 of the Agreement.
31. "ROYALTY UNIT AND/OR USE" shall mean a copy of the Licensed
Software, in whole or in part, or an authorized use of the Licensed
Software on a per server, per seat or per function basis, that is
sold, licensed or distributed by NEC or its Distributors under the
terms of this Agreement.
32. "SOURCE CODE" shall mean the software code from which Object Code
is compiled. Source Code includes the commented software source
code, as well as other materials such as design documents, data
models, help materials, tutorial programs and any information or
other programs necessary to compile the Source Code into
executable, fully-functioning Object Code.
33. "SPA" shall mean a Specific Product Addendum, as described in
Section 1.4 of the Agreement and as shall be attached to Exhibit B.
34. "SPECIFICATIONS" shall mean the technical specifications for the
Licensed Software, as referenced in Exhibit H, attached hereto.
Specifications shall also mean the technical specifications in any
Statement of Work.
35. "STANDARD PRODUCT SPECIFICATION DOCUMENTS" shall mean the
specifications published and made available by Active Voice on a
general basis for various Active Voice products, as such
specifications shall be referenced in particular SPAs.
36. "STATEMENT OF WORK" shall mean a Statement of Work for the Licensed
Software, as may be attached to any SPA.
37. "SUPPORT" shall mean the support services that Active Voice
provides to NEC in accordance with the Support Plan set forth in
Exhibit D, attached hereto.
38. "TECHNICAL DOCUMENTATION" shall mean the design and architecture
documentation that Active Voice provides to NEC under this
Agreement.
39. "TEST PLAN" shall mean the plan used to evaluate the substantial
conformity of an Active Voice Deliverable to a particular Statement
of Work or Specification.
40. "THIRD PARTY HARDWARE" shall mean any third party hardware,
including any documentation or other materials provided therewith,
that Active Voice provides, or reprovides after loading, to NEC, its
Distributors and/or End User customers on a pass-through license
and warranty basis, with no additional Active Voice obligation
undertaken.
41. "THIRD PARTY SOFTWARE" shall mean any software licensed or sold by
any third party to Active Voice and/or NEC, including documentation
or other materials, that Active Voice provides to NEC on a
pass-through basis with the Licensed Software or Active Voice
Hardware.
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42. "THIRD PARTY DOCUMENTS" shall mean the end-user license agreements
and documentation for Third Party Software or Third Party Hardware
that contain the terms and conditions of use for such Third Party
Software or Third Party Hardware.
43. "TRAINING" shall mean the training services that Active Voice
provides to NEC in connection with the Licensed Software or Active
Voice Hardware, in accordance with Exhibit E, attached to the
Agreement.
44. "YEAR 2000 READY" shall mean that a product, will during the
applicable warranty period set forth in the Agreement, be capable
of accurately and correctly performing calculations and fully
performing all operations involving dates falling on or after
January 1, 2000, including leap year calculations, but not
limited to storing, retrieving, processing, presenting,
manipulating and/or receiving such dates, and regardless of whether
such dates are read from an internal clock within hardware or
entered by a user provided that all products (for example,
hardware, software and firmware) used with the product properly
exchange accurate date data with it.
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