Exhibit 10.2
Vertical Networks, Inc. 8/24/2004
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
SOFTWARE PURCHASE AGREEMENT
THIS Software Purchase Agreement (the "Agreement") dated as of August
20, 2004 ("Effective Date") is by and between Vertical Networks, Inc., a
corporation organized and existing under the laws of the State of California and
having its principal office at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000
(hereinafter referred to as "Licensor"), and CVS Pharmacy, Inc., a corporation
organized and existing under the laws of the State of Rhode Island and having
its principal place of business at Xxx XXX Xxxxx, Xxxxxxxxxx, XX 00000
(hereinafter referred to as "CVS").
WITNESSETH:
WHEREAS, Licensor currently has the right and desires to license
INSTANTOFFICE VOICE SERVER SOFTWARE ("IOVS Software"), as defined below, to CVS,
such software to be embedded in, installed on, or used in conjunction with
equipment manufactured and/or sold by Licensor and purchased by CVS either
directly or from or through AT&T Solutions, Inc.; and
WHEREAS, Licensor also desires to sell CVS rights to all enhancements,
modifications, upgrades and new releases ("Upgrades") to IOVS Software; and
WHEREAS, CVS desires to purchase licenses to IOVS Software and rights
to Upgrades from Licensor;
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties wish to agree as
follows:
I. SCOPE OF THE AGREEMENT.
a. SOFTWARE LICENSE. CVS will purchase licenses to Licensor's IOVS
Software. A standard list of components and a general description
of IOVS Software is attached hereto as Exhibit C.
b. RIGHTS TO UPGRADES. CVS will have the right to purchase upgrades
to the IOVS Software listed in Exhibit A to the Agreement
(hereinafter, "Upgrades").
II. TERMS OF IOVS SOFTWARE PURCHASE.
a. COMMITMENT FOR PURCHASE. CVS commits to purchase a License for a
Pilot implementation and a Site License for the network rollout
of the IOVS Software from the Licensor, per the pricing set forth
in Exhibit B and per the payment terms set forth in Section IV
(d). The payment terms set out in Section IV (d) assume the
successful completion of a pilot implementation of CVS's Rapid
Prescription Refill Application project on or before December 31,
2004. In the event, however, that the pilot implementation is not
completed by this date, the quarterly payments for the Site
License that are scheduled to commence in January 2005, will be
deferred until such time as the pilot implementation has been
successfully completed. At that time, all such deferred payments
will become immediately due and payable. "Rapid Prescription
Refill Application Project" means the implementation of the
automated prescription refill application utilizing the
InstantOffice Voice Services platform and a custom application
developed by CVS utilizing VxML technology.
b. LICENSE. CVS's rights to, and use of, IOVS Software are governed
solely by the terms of this Agreement, including the Software
License Agreement for IOVS
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Vertical Networks, Inc. 8/24/2004
Software attached hereto as Exhibit D and any updates thereto
agreed to in writing by the parties.
c. DELIVERY; NUMBER OF LICENSES. Licensor shall deliver one copy of
the IOVS Software to CVS and hereby authorizes CVS to use such
copy subject to the terms of the Pilot implementation and Site
License indicated in Section II (a) of the Agreement and to the
number and type of licenses purchased hereunder, as specified in
Exhibit B to this Agreement.
d. WARRANTY OF SOFTWARE FUNCTION. For a period of ninety (90) days
after the initial implementation at CVS of the "released version"
of IOVS Software, Licensor warrants that the IOVS Software
provided hereunder will function according to Licensor's
specifications for such product (as set out in Exhibit C hereto),
including the ability to support a number of InstantOffice
systems that is equal to the number of CVS stores where such IOVS
Software has been deployed, subject to the limits of this site
license as set out in Section IV (b). If the IOVS Software fails
to perform as warranted and Licensor is unable to resolve the
problem within a forty five (45) day period, starting from the
initial date of notice to Vertical's Level 3 technical assistance
center, and such failure is confirmed pursuant to the arbitration
provisions of Section VII of the Agreement, CVS's sole recourse
will be for Licensor to refund the Purchase Price payments made
to date, as identified in Section IV below associated with the
initial purchase of the IOVS Software. Notwithstanding the
foregoing, Licensor shall use reasonable commercial efforts to
assist CVS in the successful implementation and deployment of
CVS's Rapid Refill Application.
e. Warranty of Software Upgrades. For a period of ninety (90) days
after the implementation at CVS of an "upgrade" of IOVS Software,
Licensor warrants that the IOVS Software upgrade provided
hereunder will function according to Licensor's specifications
for such product (as set out in Exhibit C hereto), including the
ability to support a number of InstantOffice systems that is
equal to the number of CVS stores where such IOVS Software has
been deployed, subject to the limits of this site license as set
out in Section IV (b). If the IOVS Software upgrade fails to
perform as warranted and Licensor is unable to resolve the
problem within a forty five (45) day period, starting from the
initial date of notice to Vertical's Level 3 technical assistance
center, and such failure is confirmed pursuant to the arbitration
provisions of Section VII of the Agreement, CVS's sole recourse
will be for Licensor to refund the Software Subscription Services
payments made to date, as identified in Section IV below
associated with the OPTION TO PURCHASE RIGHTS TO IOVS SOFTWARE.
f. PROBLEM DIAGNOSIS AND REPAIR. Licensor agrees to assist CVS's
Store Technical Services organization in diagnosing and repairing
any defects in the IOVS Software that disrupts CVS's ability to
perform its normal store business function and/or impacts CVS's
employees ability to perform their work.
III. TERMS OF RIGHTS TO UPGRADE PURCHASE
a. TERMS. Upgrades to the IOVS Software provided by Licensor to CVS
pursuant to this Amendment are for use as provided herein and
otherwise in accordance with the terms of the Agreement.
b. LICENSE. CVS's rights to, and use of, the Upgrades are governed
by the Software License Agreement for IOVS Software attached
hereto as Exhibit D and any updates thereto, rather than by the
General Description attached as Exhibit C to the Agreement.
IV. FEES AND CHARGES
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Vertical Networks, Inc. 8/24/2004
a. PURCHASE PRICE FOR IOVS SOFTWARE. For the purchase of a License
for a Pilot implementation and a Site License for the network
rollout on or before August 31, 2004 (as evidenced by a single
irrevocable purchase order or similar commitment, in form and
substance acceptable to Licensor), CVS shall pay Licensor the
price for IOVS Software set forth in Exhibit B.
b. SITE LICENSE. The Site License for the network rollout shall give
CVS the right to install IOVS Software in the lesser of (a) 6,500
sites and (b) the total number of sites owned by CVS on the sixth
(6th) anniversary of the Effective Date.
c. OPTION TO PURCHASE RIGHTS TO IOVS SOFTWARE UPGRADES. The right to
receive Upgrades for the first year from the Effective Date is
included in the initial purchase price of the Site License for
IOVS Software. Following the first year, in the event that CVS
wishes to exercise their option to purchase the rights to further
future Upgrades, CVS shall pay Licensor an annual fee that shall
be set at $[**] for the second year, regardless of the number
of sites installed, and at $[**] for the third year.
Thereafter, the annual software subscription service (SWS) fee
shall not be increased by Licensor at more than [**] percent
([**]%) per year, subject to the same restrictions on the number
of sites as set out in Site License above. Such fee shall give
CVS the right to receive Upgrades to the IOVS Software listed
in Exhibit A for all CVS sites where such IOVS Software is
installed, up to the limits of this site license, as set out in
Section IV (b). Licensor must receive irrevocable purchase orders
from CVS in respect of the purchase of Upgrades on or before the
date that the prior right to Upgrades expires. Payment will be
subject to the terms of Section IV (d) below.
d. PAYMENT TERMS. Payment of all fees and other charges due
hereunder is due forty-five (45) days from their respective
invoice date. Based on the prices set out in Appendix B, an
initial invoice for $[**] shall be issued on the Effective
Date and invoices for the balance of the IOVS Software purchase
price shall be issued in equal amounts over the six (6) quarters
commencing on January 1, 2005, subject to the terms set forth in
Section II (a).
V. LACK OF IMPLIED WARRANTY; LIMITATION OF LIABILITY
a. DISCLAIMER. LICENSOR SHALL USE REASONABLE COMMERCIAL EFFORTS TO
PERFORM ALL SERVICES IN ACCORDANCE WITH GENERALLY ACCEPTED
STANDARDS IN THE INDUSTRY. EXCEPT FOR THE WARRANTY IN THE
PRECEDING SENTENCE AS WELL AS THE WARRANTY OF SOFTWARE FUNCTION
AS DETAILED IN SECTION II (d), LICENSOR MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE PRODUCTS OR
SERVICES PROVIDED HEREUNDER. LICENSOR DISCLAIMS ALL OTHER
WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT.
b. LIMITATION OF LIABILITY. LICENSOR'S LIABILITY ARISING OUT OF THIS
AGREEMENT, SALE OF THE IOVS SOFTWARE, UPGRADES OR PROVISION OF
SERVICES RELATED THERETOR SHALL BE LIMITED TO THE AMOUNT PAID BY
CVS HEREUNDER. EXCEPT FOR BODILY INJURY OF A PERSON, IN NO EVENT
SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER
ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT
DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER OR
NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
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Vertical Networks, Inc. 8/24/2004
VI. GENERAL
a. ASSIGNMENT. Neither party shall assign this Agreement without the
prior written consent of the other party, which consent shall not
be unreasonably withheld.
b. WAIVER. No waiver of any of the provisions of this Agreement or
the failure to exercise any right herein shall be deemed nor
shall constitute a waiver of any other provision, whether or not
similar, nor shall a waiver be deemed a continuing waiver.
c. BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto as well as their
respective successors, assigns and legal representatives, and
likewise shall be binding upon the heirs, successors and assigns
thereof. If any of the provisions of this Agreement are held to
be invalid under any applicable statute or rule of law, they are,
to that extent, deemed omitted, and the validity of the remaining
provisions shall not be affected thereby. If any provision is
held invalid or unenforceable with respect to particular
circumstances, it shall, nevertheless remain in full force and
effect in all other circumstances.
d. FORCE MAJEURE. Except for the obligation to make payments,
neither party is responsible for failure to fulfill its
obligations under this Agreement due to causes beyond its
control, such as natural disaster, decrees of governmental bodies
or communications failure, provided that the party invoking this
provision gives notice to the other party and does everything
possible to resume performance. If the period of non-performance
exceeds thirty (30) days, the party whose ability to perform has
not been so affected may terminate this Agreement by giving
written notice. Delays during any delivery or warranty period
shall automatically extend such period for a period equal to the
force majeure duration.
e. RIGHT TO AUDIT. CVS, in its sole discretion, shall have the
right, but not the obligation, to audit any and all business and
operations practices and procedures of Licensor as they pertain
to this Agreement, including, but not limited to, billing
practices and procedures. CVS will also have the right to verify
/ audit that all service levels agreed to in this Agreement are
being met via use of an outside audit company. CVS or its
designated agent shall perform any such audits at mutually agreed
to times during regular business hours. CVS shall provide prior
reasonable notice of an audit to Licensor. Following such audit,
CVS may provide a written report of its findings to Licensor,
including a timetable for correction of any issues or problems
discovered by the auditors. In the event Licensor fails to
correct such issues or problems in a timely manner satisfactory
to CVS, this Agreement may be terminated by CVS for cause in
accordance with the termination provisions of the Agreement.
f. DISASTER RECOVERY/BUSINESS RESUMPTION. Licensor warrants that it
will, within twelve (12) months of the date of this Agreement
prepare a business resumption plan (the "plan") which thereafter
will be updated and validated periodically, with a minimum twice
per year. The following information must be supplied to CVS upon
request: copy of the plan, including all updates; most recent
call list; and any outside contracts required under the plan.
g. GOVERNING LAW. This Agreement is governed by the laws of the
State of California and the United States and will be governed by
and construed in accordance with the laws of the State of
California.
h. ARBITRATION. Should any dispute occur between the Parties arising
out of or related to this Agreement, the dispute will first be
submitted to the level of management within each company with the
authority to resolve the issue. If the dispute is not resolved by
the respective management involvement, any controversy or claim
between the
4
Vertical Networks, Inc. 8/24/2004
Parties will be resolved by arbitration pursuant to this Section
13.10 and the then-current Commercial Arbitration Rules (the
"Rules") of the American Arbitration Association ("AAA") and the
supervision of the AAA. The duty to arbitrate will extend to any
employee, officer, shareholder, agent, or affiliate of a Party
hereto making or defending a claim that would be subject to
arbitration if brought by a Party hereto. If any part of this
Section H is held to be unenforceable, it will be severed and
will not affect either the duty to arbitrate hereunder or any
other part of this Section H.
The arbitration will be held in the United States headquarters'
city of the Party not initiating the claim before a sole
arbitrator knowledgeable in business information and electronic
data processing. The arbitrator's award will be final and binding
and may be entered in any court having jurisdiction thereof. The
arbitrator will not have the power to award punitive or exemplary
damages, or any damages excluded by, or in excess of, any damage
limitations expressed in this Agreement. Issues of arbitrability
will be determined in accordance solely with the federal
substantive and procedural laws relating to arbitration; in all
other respects, the arbitrator will be obligated to apply and
follow the substantive law of the state or nation specified in
this Agreement. Each Party will bear its own attorneys' fees
associated with the arbitration and other costs and expenses of
the arbitration will be borne as provided by the Rules.
i. NOTICES. All notices, requests, demands or other communications
and deliveries required or authorized by this Agreement shall be
in writing and shall be given by sending the same by certified
mail return receipt requested, personal delivery, overnight
courier service, telegram, facsimile, or the equivalent thereof.
1. If to Licensor addressed to:
VERTICAL NETWORKS, INC.
0000 XXXX XXXXXX XXXXXX
XXXXXXXXX, XX 00000
ATTN: CONTROLLER
2. If to CVS addressed to:
CVS PHARMACY, INC.
XXX XXX XXXXX
XXXXXXXXXX, XX 00000
ATTN: GENERAL COUNSEL
or to such other addresses as either party may
designate by notice to the other party.
j. CONFIDENTIAL INFORMATION
PROPRIETARY INFORMATION. Proprietary Information shall mean
confidential or other proprietary information that is
disclosed by either Licensor or CVS (each, a "Party") under
this Agreement including, without limitation, patent rights,
copyrights, mask work rights, trade secret rights, sui
generis database rights, hardware and software designs,
software source code, specifications and documentation,
customer names and contact information, business and product
plans and all other confidential business information.
CONFIDENTIALITY. Proprietary Information must be clearly
marked as confidential at the time of disclosure or, if
disclosed in intangible form, identified as confidential
5
Vertical Networks, Inc. 8/24/2004
at the time of disclosure and summarized in tangible form
clearly marked as confidential and delivered to the
recipient within thirty (30) calendar days thereafter.
Notwithstanding the foregoing, any information disclosed by
either Party that is not so marked (if tangible) or
summarized (if intangible) shall be treated as Proprietary
Information if a reasonable person would believe that the
information is of a nature that is intended to be kept
confidential. Each Party will hold the disclosing Party's
Proprietary Information in confidence and take all
reasonable precautions to protect the confidentiality of any
Proprietary Information received hereunder and will exercise
at least the same degree of care in safeguarding the
Proprietary Information as it would with its own
confidential information. Without granting any right or
license, the Parties agree that the receiving Party will
have no obligation with respect to any information which:
(a) is or becomes public knowledge through no wrongful act
of the receiving Party; (b) was rightfully in the receiving
Party's possession prior to disclosure by the disclosing
Party; (c) is rightfully obtained by the receiving Party
from any third party without similar restriction and without
breach of any obligation owed to the disclosing Party; (d)
is disclosed pursuant to a lawful requirement of a
governmental agency provided that the receiving Party gives
the disclosing Party sufficient prior notice to contest such
order and cooperates with any efforts by the disclosing
party to limit such disclosure; (e) was independently
developed by the receiving Party by persons without access
to such information and without use of such information or
(f) is approved for release by written authorization of the
disclosing Party. The receiving Party must promptly notify
the disclosing Party of any information that it believes
falls into any circumstance listed in the preceding sentence
and will bear the burden of proving the existence of such
circumstance. The receiving Party will not use the
disclosing Party's Proprietary Information except as
contemplated under this Agreement. CVS may only provide
Proprietary Information of Licensor to Affiliates and to
third party contractors of CVS who have executed a written
obligation of confidentiality conforming to those of this
Section J. Except as required by law or by the order of a
court of competent jurisdiction, or as provided herein,
neither Party will publicize or otherwise advertise the
existence of this Agreement or its terms without the prior
written consent of the other Party. The Parties acknowledge
and agree that due to the unique nature of the disclosing
Party's Proprietary Information, there may be no adequate
remedy at law for any breach of obligations under this
Section J, that such breach may cause irreparable harm to
the disclosing Party and therefore, that upon any such
breach or upon threat thereof, the disclosing Party shall be
entitled to seek appropriate equitable relief in addition to
whatever remedies it might have at law.
NON-PUBLICITY. Each Party agrees that neither it nor any of
its employees, agents or sub-contractors shall use the other
party's name or any photo or visual or audio facsimiles of
the other party's facilities or employees for any purpose.
Licensor agrees that it shall not, and its employees, agents
and subcontractors shall not reveal the nature of the goods
or services provided pursuant hereto or any details
regarding the services provided pursuant hereto to any third
party for any purpose, unless prior written consent of CVS
has been obtained. Licensor shall not use, disseminate,
disclose or publish any work product or any other materials
related to such services in whole or part without prior
written consent of CVS save to disclosures to Licensor's
lawyers, accountants, bankers and other similar advisors who
are under an obligation of confidentiality. Notwithstanding
any consent given by CVS under this Section J, Licensor will
cease using the CVS name in any materials immediately upon
the reasonable request of CVS.
k. INDEMNIFICATION
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Vertical Networks, Inc. 8/24/2004
INDEMNIFICATION. Licensor will defend, at its expense, with
attorneys reasonably acceptable to CVS, any claim, action,
suit, or proceeding brought against CVS to the extent that
it is based on (i) a claim that the IOVS Software and/or
Upgrades infringe any United States patent or copyright, or
(ii) Licensor's breach of any warranty under this Agreement,
or (iii) Licensor's gross negligence or willful misconduct,
or (iv) Licensor's failure to comply with or abide by any
applicable law (other than by reason of an act or omission
of CVS), and Licensor will indemnify CVS from any costs,
damages, expenses and reasonable attorney's fees finally
awarded or payable under any settlement agreement against
CVS which are attributable to such claim, provided CVS
notifies Licensor promptly, in writing, of any claim,
permits Licensor in its sole discretion to defend,
compromise or settle the claim and provides all available
information and assistance regarding such claim. This
indemnity does not extend to: (a) any infringement that is a
direct result of Licensor's adhering to a specific design
provided by CVS and not originating with Licensor; (b) the
combination, operation or use of any IOVS Software and/or
Upgrades with equipment, devices or software not supplied or
specified by Licensor; (c) the alteration or modification of
any IOVS Software and/or Upgrades that was not made by
Licensor, provided that use of the unaltered product would
have avoided the claim; or (d) where CVS continues allegedly
infringing activity after notification thereof or after
being informed of modifications that would have avoided the
alleged infringement. Licensor's duty to defend CVS under
this Section shall apply to any complaint or claim that
makes allegations that, if proved, place the alleged breach
of duty, whether tortious or contractual, within the
purviews of the duties, responsibilities and obligations
undertaken by Licensor pursuant to this Agreement. The
provisions of this Section shall survive the expiration or
termination of this Agreement.
REMEDIES. Should any IOVS Software and/or Upgrades become,
or in Licensor's opinion be likely to become, the subject of
a claim for infringement of a United States patent or
copyright, Licensor may (a) procure for CVS the right to
continue to use the IOVS Software and/or Upgrades, (b)
replace or modify the IOVS Software and/or Upgrades to make
such IOVS Software and/or Upgrades non-infringing, provided
that the replacement or modified IOVS Software and/or
Upgrades provides substantially similar function and
performance; or (c) if neither (a) or (b) are practical,
terminate the right to use such IOVS Software and/or
Upgrades, remove the IOVS Software and/or Upgrades and grant
CVS credit thereon as depreciated on a straight-line five
(5) year basis.
ENTIRE LIABILITY. This Section K states the entire liability
of Licensor with respect to infringement of any intellectual
property rights by the IOVS Software and/or Upgrades and
Licensor shall have no additional liability with respect to
any alleged or proven infringement.
NOTIFICATION OF UNAUTHORIZED USE. CVS shall promptly notify
Licensor in writing of any known unauthorized use or
infringement of the IOVS Software and/or Upgrades,
documentation relating thereto, Proprietary Information, or
Licensor's Intellectual Property Rights. Licensor shall have
the sole and exclusive right to bring an infringement action
or proceeding against any third party, and, in the event
that Licensor brings such an action or proceeding, CVS shall
cooperate and provide full information and assistance to
Licensor and its counsel in connection therewith at
Licensor's expense.
l. INSURANCE. During the term of this Agreement, Licensor shall, at
its expense, carry and maintain: (a) Workers Compensation and
Employers Liability Insurance meeting minimum statutory
requirements, (b) Commercial General Liability insurance
policy(s)
7
Vertical Networks, Inc. 8/24/2004
with a combined single limit of not less than $2,000,000 per
occurrence, (c) Automobile Liability Insurance with a combined
single limit of not less than $1,000,000 per occurrence. The
policy shall be underwritten by an insurance company that carries
an A- or better rating from A.M. Best. If requested, Licensor
shall furnish CVS with a certificate of insurance evidencing
coverage, and a certificate of insurance as evidence of renewal
at least thirty (30) days prior to expiration of each policy. The
amount of insurance coverage required under this Article shall
not limit Licensor's obligations under this Agreement. To the
extent that aggregate fees paid to Licensor by CVS under this
Agreement and any related agreements exceed $1,000,000 in any
calendar year, Licensor will ensure that each of Licensor's
policies shall provide that CVS Corporation and its subsidiaries
and affiliates shall be named as an additional insured.
m. ENTIRE AGREEMENT, AMENDMENT. This Agreement including all
exhibits constitutes complete and exclusive statement of the
Agreement between Licensor and CVS and supersedes all oral or
written proposals, prior agreements and other prior
communications between the parties, concerning the subject matter
of this Agreement. In the event of a conflict between this
Agreement and an exhibit, this Agreement shall control. No
amendment, waiver or modification of this Agreement shall be
binding unless it is in writing and signed by authorized officers
of both parties.
IN WITNESS WHEREOF, the parties have executed this Agreement on the above date.
VERTICAL NETWORKS, INC. CVS PHARMACY, INC.
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxxxx X. Xxxx III
----------------------- ------------------------------------
Name: Xxxxxxx Xxxxxxxx Name: Xxxxxxx X. Xxxx III
----------------------- ------------------------------------
Title: President Title: VP Bus Relationship & Tech Officer
----------------------- ------------------------------------
Date: Sept. 1, 2004 Date: August 30, 2004
----------------------- ------------------------------------
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Vertical Networks, Inc. 8/24/2004
EXHIBIT A
RIGHTS TO UPGRADE
SOFTWARE ELIGIBLE FOR UPGRADES
1. InstantOffice Voice Server
a. Including all applicable [**] technology components
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Vertical Networks, Inc. 8/24/2004
EXHIBIT B
PRICING OF IOVS SOFTWARE
1. BASE IOVS S/W EXCLUDING ALL TEXT-TO-SPEECH (SPEECHIFY) S/W COMPONENTS
a. License for Pilot Implementation.........................$ [**]
b. Site License.............................................$ [**]
i. Includes SWS (S/W Upgrades for Year One)
c. OPTIONAL SWS (S/W Upgrades)
i. Year Two.......................................$ [**]
ii. Year Three.....................................$ [**]
d. Total Cost
i. Total for IOVS Software (Incl. Year 1 SWS)..................$ [**]
ii. Total for IOVS Software AND optional Years 2&3 SWS..........$ [**]
2. BASE IOVS S/W INCLUDING ALL TEXT-TO-SPEECH (SPEECHIFY) S/W COMPONENTS
a. License for Pilot Implementation.........................$ [**]
b. Site License.............................................$ [**]
i. Includes SWS (S/W Upgrades for Year One)
c. OPTIONAL SWS (S/W Upgrades)
i. Year Two.......................................$ [**]
ii. Year Three.....................................$ [**]
d. Total Cost
i. Total for IOVS Software (Incl. Year 1 SWS)..................$ [**]
ii. Total for IOVS Software AND optional Years 2&3 SWS..........$ [**]
3. SITE LICENSE OPTION FOR STANDALONE PURCHASE OF TEXT-TO-SPEECH (SPEECHIFY) S/W
COMPONENTS, AVAILABLE FOR UP TO ONE YEAR AFTER EXECUTION OF THIS AGREEMENT
a. License for TTS Components...............................$ [**]
i. Includes upgrades for TTS components for
first year following purchase date
b. OPTIONAL SWS (S/W Upgrades for TTS components)
i. Year Two.......................................$ [**]
ii. Year Three.....................................$ [**]
iii. Thereafter, the annual software subscription
service (SWS) fee for TTS components shall
not be increased by Licensor at more than
[**]% per year
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Vertical Networks, Inc. 8/24/2004
EXHIBIT C
GENERAL DESCRIPTION OF INSTANTOFFICE VOICE SERVER ("IOVS") SOFTWARE
INSTANTOFFICE VOICE SERVER
The purpose of this exhibit is to provide a list of features for the
InstantOffice Voice Server (IOVS). IOVS is an IVR solution that is based on the
VoiceXML standard.
IOVS is designed for creating audio dialogs that feature synthesized speech,
digitized audio, recognition of spoken and DTMF key input, recording of spoken
input, telephony, and mixed initiative conversations. Its major goal is to bring
the advantages of web-based development and content delivery to interactive
voice response applications.
The voice browser component within VXML is used to interpret and process the
IVR application's VXML pages. IOVS leverages [**]. This [**] will be
integrated with the TAPI/ Wav ports that reside on the InstantOffice platform.
IOVS implementation is fully compliant with the VoiceXML 2.0 specification.
Reference xxxx://xxx.x0.xxx/XX/xxxxxxxx00/
Following is a list of functionality of IOVS Release 1.0:
[**]
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Vertical Networks, Inc. 8/24/2004
EXHIBIT D
VERTICAL NETWORKS, INC.
SOFTWARE LICENSE AGREEMENT FOR INSTANTOFFICE VOICE SERVER SOFTWARE
NOTICE: Please carefully read this Software License Agreement before copying or
using the accompanying software or installing the software (collectively
"Software"). BY COPYING OR USING THE SOFTWARE, YOU ACCEPT ALL OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT. THE TERMS EXPRESSED IN THIS AGREEMENT ARE THE ONLY
TERMS UNDER WHICH VERTICAL NETWORKS WILL PERMIT YOU TO USE THE SOFTWARE. If you
do not accept these terms and conditions, return the product, unused and in the
original shipping container, within 30 days of purchase to obtain a credit for
the full purchase price. Written approval is NOT a prerequisite to the validity
or enforceability of this Agreement and no solicitation of any such written
approval by or on behalf of Vertical Networks shall be construed as an inference
to the contrary.
LICENSE GRANT. Vertical Networks, Inc. ("Licensor") grants you a
personal, nonsublicensable, nonexclusive, nontransferable license: a)
to use the Software either on specifically numbered licensed
computer(s) or, if applicable, on a specifically licensed number of
devices identified by host ID, for which it was originally acquired;
b) to copy the Software solely for backup purposes in support of
authorized use of the Software; and c) to use and copy the
documentation related to the Software solely in support of your
authorized use of the Software. In the event that an outsourcing
partnership is utilized, Licensee may allow third party that provides
outsourcing services to Licensee to access and use the Licensed
Products and Documentation as part of such outsourcing services to
Licensee. No license is granted to other Licensor software or hardware
products. You have no right to receive any source code or design
documentation relating to the Software.
RESTRICTIONS ON USE; RESERVATION OF RIGHTS. The Software and related
documentation are protected under copyright laws. Licensor and its
licensors retain all title and ownership in both the Software and
related documentation, including any revisions made by Licensor. The
copyright notice must be reproduced and included with any copy of any
portion of the Software or related documentation. You may not modify,
translate, decompile, disassemble, use for any competitive analysis,
or reverse engineer the Software or related documentation or any copy,
in whole or in part. Except as expressly provided in this Agreement,
you may not copy or transfer the Software or related documentation, in
whole or in part. The Software and related documentation embody
Licensor's confidential and proprietary intellectual property. You
shall not disclose to any third party the Software, or any information
about the operation, design, performance or implementation of the
Software and related documentation. Software and related documentation
may be delivered to you subject to export authorization required by
governments of the United States and other countries. You agree that
you will not export or reexport any Software or related documentation
without the proper export licenses required by the governments of
affected countries.
LIMITED WARRANTY. Licensor warrants that any media on which the
Software is recorded will be free from defects in materials and
workmanship under normal use for a period of 90 days from the date the
program is shipped to reseller or user. If a defect in any such media
should occur during this 90-day period, the media may be returned to
Licensor and Licensor will replace the media without charge. Licensor
shall have no responsibility to replace media if the failure of the
media results from accident, abuse or misapplication of the media.
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Vertical Networks, Inc. 8/24/2004
EXCEPT AS PROVIDED ABOVE AND AS PROVIDED EXPRESSLY IN AN ASSOCIATED
SOFTWARE PURCHASE AGREEMENT, THE SOFTWARE IS PROVIDED "AS IS" AND
LICENSOR AND ITS LICENSORS MAKE NO WARRANTIES, EXPRESS OR IMPLIED,
WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION. LICENSOR AND ITS
LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO
IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NONINFRINGEMENT. FURTHER, LICENSOR DOES NOT WARRANT,
GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE
RESULTS OF THE USE, OF THE SOFTWARE OR RELATED WRITTEN DOCUMENTATION
IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
LIMITATION OF LIABILITY. IN NO EVENT SHALL LICENSOR BE LIABLE TO
LICENSEE OR ANY THIRD PARTY FOR (A) ANY MATTER BEYOND ITS REASONABLE
CONTROL OR (B) ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL
DAMAGES ARISING OUT OF THIS LICENSE OR USE OF THE SOFTWARE, EVEN IF
LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR
WILL NOT BE LIABLE FOR THE LOSS OF, OR DAMAGE TO, YOUR RECORDS OR
DATA, THE RECORDS OR DATA OF ANY THIRD PARTY, OR ANY DAMAGES CLAIMED
BY YOU BASED ON A THIRD PARTY CLAIM. IN NO EVENT SHALL THE LIABILITY
OF LICENSOR RELATING TO THE SOFTWARE OR THIS AGREEMENT EXCEED THE
PRICE PAID TO LICENSOR FOR THE LICENSE. ALTHOUGH IBM XML PARSER FOR
JAVA EDITION IS INCORPORATED IN THE SOFTWARE, INTERNATIONAL BUSINESS
MACHINES, INC. ("IBM") ASSUMES NO LIABILITY FOR ANY CLAIM THAT MAY
ARISE REGARDING THE SOFTWARE OR ANY MODIFICATION TO THE SOFTWARE. IBM
DISCLAIMS ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, REGARDING THE
SOFTWARE AND ANY MODIFICATION TO THE SOFTWARE.
GOVERNMENT LICENSEES. This provision applies to all Software and
related documentation acquired directly or indirectly by or on behalf
of the United States Government. The Software and related
documentation are commercial products, licensed on the open market at
market prices, and were developed entirely at private expense and
without the use of any U.S. Government funds. The License to the U.S.
Government is granted only with restricted rights and use, and
duplication or disclosure by the U.S. Government is subject to the
restrictions set forth in subparagraph (c)(1) of the Commercial
Computer Software Restricted Rights clause of FAR 52.227-19 or
subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer
Software clause of DFARS 252.227-7013 or their successors, whichever
is applicable.
TERM AND TERMINATION. The License is effective until terminated;
however, all of the restrictions with respect to Licensor's copyright
in the Software and related documentation will cease being effective
at the date of expiration of the Licensor copyright; those
restrictions relating to use and disclosure of Licensor's confidential
information shall continue in effect. You may terminate the License at
any time. The License will automatically terminate if you fail to
comply with any of the terms and conditions of the Agreement. Upon
termination for any reason, you will immediately destroy or return to
Licensor the Software, related documentation and all copies of each.
GENERAL. If any provision of this Agreement is held to be invalid or
unenforceable by a court of competent jurisdiction, the remainder of
the provisions of this
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Vertical Networks, Inc. 8/24/2004
Agreement shall remain in full force and effect. This Agreement will
be governed by the laws of the State of
California without respect to
any conflict of laws principles. Neither the License nor this
Agreement is assignable or transferable by you without Licensor's
prior written consent, and any attempt to do so shall be void. Any
notice, report, approval or consent required or permitted hereunder
shall be in writing. No failure to exercise, and no delay in
exercising, on the part of either party hereto, any privilege, any
power or any rights hereunder will operate as a waiver thereof, nor
will any single or partial exercise of any power hereunder preclude
further exercise of any other right hereunder. The parties hereto
agree that a material breach of this Agreement could cause irreparable
injury to Licensor for which monetary damages may not be an adequate
remedy and that Licensor shall be entitled to seek equitable relief in
addition to any remedies it may have hereunder or at law.
Should you have any questions concerning this Agreement, contact
Vertical Networks, Inc., 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxx, 00000.
I ACKNOWLEDGE THAT I HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE
BOUND BY ITS TERMS AND CONDITIONS. I FURTHER AGREE THAT THIS AGREEMENT IS THE
ENTIRE AND EXCLUSIVE AGREEMENT BETWEEN ME AND LICENSOR, WHICH SUPERSEDES ALL
PRIOR ORAL AND WRITTEN AGREEMENTS AND COMMUNICATIONS BETWEEN THE PARTIES
PERTAINING TO THE SUBJECT MATTER OF THIS AGREEMENT. NO DIFFERENT OR ADDITIONAL
TERMS WILL BE ENFORCEABLE AGAINST LICENSOR UNLESS LICENSOR GIVES ITS EXPRESS
WRITTEN CONSENT, INCLUDING AN EXPRESS WAIVER OF THE TERMS OF THIS AGREEMENT
14
