Exhibit 10.5
SOFTWARE LICENSE AGREEMENT
BETWEEN
DATA CONNECTION LIMITED
AND
CONNECTSOFT COMMUNICATIONS CORPORATION
MASTER SOFTWARE LICENSE AGREEMENT
---------------------------------
PRINCIPALS
This Master Software License Agreement is made and entered into as of the
Effective Date, by and between Data Connection Limited, with a place of business
at 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx, XX0 0XX, Xxxxxxx (hereinafter called
"DCL"), on behalf of itself and its successors, permitted assigns and
Affiliates, and ConnectSoft Communications Corporation, with a place of business
at 00000 XX 00xx Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000, XXX (hereinafter called
"CCC") on behalf of itself and its successors, permitted assigns and Affiliates.
DCL is engaged in the business of creating computer software, and desires to
grant to CCC world-wide rights to that certain software technology owned by DCL
and currently referred to by DCL as "VoiceNet" (herein referred to as "Licensed
Programs") consisting of programs and related documentation described in
Addendum 1, Schedule A.
WHEREAS, CCC desires to integrate DCL's software technology with other computer
programs developed or licensed by CCC, which programs will be marketed and
licensed by CCC as a proprietary intelligent integrated communications software
system currently known as "FreeAgent" and DCL is willing to license CCC so to
do, on the terms and conditions herein provided.
NOW, THEREFORE, in consideration of the premises, the granting of the license,
and the mutual covenants, agreements and obligations of the parties hereinafter
set forth, it is hereby agreed between the parties hereto as follows.
(1 ) DEFINITIONS
1.1 "ADDENDUM" MEANS AN INSTRUMENT BY WHICH CCC ACQUIRES RIGHTS TO A PARTICULAR
SET OF LICENSED PROGRAMS FROM DCL UNDER THIS AGREEMENT. EACH LICENSED
PROGRAM FOR WHICH RIGHTS ARE ACQUIRED BY CCC IS OR WILL BE SPECIFIED IN AN
ADDENDUM WITH APPLICABLE SCHEDULES. ADDENDUM 1 SCHEDULES A THROUGH E IS
ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE AND SHALL BE EFFECTIVE
UPON EXECUTION OF THIS AGREEMENT BY THE PARTIES.
1.2 "BINDING PAYMENTS" MEANS A SPECIFIC SERIES OF PAYMENTS WITH AN ASSOCIATED
PAYMENT SCHEDULE OPTIONALLY IDENTIFIED IN EACH ADDENDUM TO THIS AGREEMENT.
1.3 "Defined Products means those software products identified in Schedule A of
each Addendum, within which the Licensed Programs may be distributed by CCC
pursuant to this Agreement.
1.4 "Derivative Work" means: (a) for copyrightable or copyrighted material, a
work which is based upon one or more pre-existing works, such as a
revision, modification, translation, abridgement, condensation, expansion,
collection, compilation, or any other form in which such pre-existing works
may be recast, transformed, or adapted; (b) for patentable or patented
materials, any adaptation, addition, improvement, or combination; and (c)
for material subject to trade secret protection, any new material,
information, or data relating to and derived from such existing trade
secret material, including new material which may be protectable by
copyright, patent or other proprietary rights. Each of the above shall be
considered a Derivative Work" only to the extent that such Derivative Work
is based upon the Licensed Programs, and in the absence of this Agreement
or other authorization by the owner of the pre-existing work, preparation,
copying, use and/or display thereof would constitute an infringement of a
party's Intellectual Property Rights in such pre-existing work.
1.5 "Documentation" means DCL's publications which facilitate the use of the
Licensed Programs (and the extensions to the base functions of the Licensed
Programs created by DCL pursuant to this Agreement and all addenda) by CCC
or by the users of CCC's products. Schedule B of each Addendum contains a
list of applicable Documentation.
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1.6 "Effective Date" means (a) the later of the dates on which the two parties
sign this Agreement (including Addendum 1), or (b) in the case of an
Addendum other than Addendum 1, "Effective Date" means the later of the
dates on which the two parties sign the Addendum in question.
1.7 "Licensed Programs" means DCL's computer programs listed in Schedule A of
each Addendum in Source Code, machine-readable Object Code, intermediate
code or interpreted from. Such definition shall also include all
corrections, modifications, enhancements, and Documentation to such
programs, but shall exclude New Software as defined in Paragraph 8 below.
1.8 "Object Code" means code resulting from the translation or processing of
Source Code by a computer into machine language or intermediate code, and
thus is in a form that would not be convenient to human understanding of
the program logic, but which is appropriate for execution or interpretation
by a computer.
1.9 "Prime Support" means the assistance which is provided to users of a CCC
product incorporating the Licensed Programs as specified in CCC's customer
license agreements or otherwise provided by CCC.
1.10 "PROPRIETARY INFORMATION" MEANS THE SOURCE CODE, SOURCE CODE LISTING,
TECHNICAL INFORMATION AND ANY OTHER DCL DOCUMENTATION AND INFORMATION
REQUIRED TO ADAPT THE LICENSED PROGRAMS TO RUN ON THE DEFINED COMPUTERS.
1.11 "SOFTWARE DELIVERABLES" SHALL MEAN THE ACTUAL LICENSED PROGRAMS MATERIALS
AND DOCUMENTATION TO BE DELIVERED UNDER THIS AGREEMENT, AS DESCRIBED IN
SCHEDULES A AND B OF EACH ADDENDUM HERETO.
1.12 "SOURCE CODE" MEANS THE LICENSED PROGRAMS IN A FORM IN WHICH THE PROGRAM
LOGIC IS EASILY DEDUCED BY A HUMAN BEING, INCLUDING A PRINTED LISTING OF
THE PROGRAMS AND RELATED SYSTEM DOCUMENTATION INCLUDING ALL COMMENTS AND
ANY PROCEDURAL CODE SUCH AS JOB CONTROL LANGUAGE.
1.13 AN "AFFILIATE" SHALL MEAN ANY:
(a) DIRECT PARENT ENTITY OF CCC, OR
(b) JOINT VENTURE, OR
(c) OTHER CORPORATION, COMPANY OR OTHER ENTITY INTO WHICH CCC IS MERGED, OR
(d) OTHER ENTITY.
(i) A SUFFICIENT PROPORTION OF WHOSE OUTSTANDING SHARES OR
SECURITIES, REPRESENTING THE RIGHT TO VOTE FOR THE ELECTION OF
DIRECTORS OR OTHER MANAGING AUTHORITY, IS NOW OR HEREAFTER, OWNED OR
CONTROLLED, DIRECTLY OR INDIRECTLY, BY A PARTY HERETO; OR WHICH DOES
NOT HAVE OUTSTANDING SHARES OR SECURITIES, AS MAY BE THE CASE IN A
PARTNERSHIP, JOINT VENTURE OR UNINCORPORATED ASSOCIATION, BUT A
SUFFICIENT PROPORTION OF WHOSE OWNERSHIP INTEREST, REPRESENTING THE
RIGHT TO MAKE THE DECISIONS FOR SUCH CORPORATION, COMPANY OR ENTITY,
IS NOW OR HEREAFTER, OWNED OR CONTROLLED, DIRECTLY OR INDIRECTLY, BY A
PARTY HERETO.
(2) LICENSE
Upon and subject to the terms of this Agreement, DCL hereby grants to CCC the
following world-wide license rights:
(a) A NON-EXCLUSIVE LICENSE TO REPRODUCE, USE, MODIFY AND/OR ENHANCE (INCLUDING
WITHOUT LIMITATION TO DELETE AND ADD MATERIAL AND CREATE DERIVATIVE WORKS)
THE LICENSED PROGRAMS
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AND THE PROPRIETARY INFORMATION SOLELY FOR THE PURPOSES OF DEVELOPMENT,
MAINTENANCE AND SUPPORT OF PRODUCTS AND/OR RELATED SERVICES, INCLUDING
WITHOUT LIMITATION THE RIGHT TO INCORPORATE THE PROPRIETARY INFORMATION
INTO THE DEFINED PRODUCTS.
(b) A NON-EXCLUSIVE LICENSE TO MARKET, SELL, DISTRIBUTE AND SUBLICENSE, VIA ANY
DIRECT OR INDIRECT CHANNEL OF DISTRIBUTION, THE OBJECT CODE (OR OBJECT CODE
DERIVED FROM MODIFIED SOURCE CODE IN ACCORDANCE WITH SUBPARAGRAPH (A)
ABOVE) FOR USE SOLELY WITHIN THE DEFINED PRODUCTS, SUBJECT TO THE PROVISION
THAT CCC WILL ONLY GRANT OBJECT CODE LICENSES FOR THE LICENSED PROGRAMS TO
A THIRD PARTY ON THE CONDITION THAT THE THIRD PARTY LICENSEE AGREES:
1. Not to make copies of the Licensed Programs, other than for its own
internal purposes;
2. NOT TO ALTER, REVERSE ENGINEER OR DISASSEMBLE THE LICENSED PROGRAMS,
EXCEPT AS MAY BE SPECIFICALLY PERMITTED BY LAW, INCLUDING, BUT NOT
LIMITED TO, REVERSE ENGINEERING OR DISASSEMBLY FOR THE PURPOSE OF
ACHIEVING INTEROPERABILITY WITH THE LICENSED PROGRAMS AND OTHER
PRODUCTS;
3. THAT THE LICENSE DOES NOT GRANT ANY RIGHT IN OR TO INTELLECTUAL
PROPERTY WITH RESPECT TO THE LICENSED PROGRAMS;
4. THAT TITLE TO AND OWNERSHIP OF THE LICENSED PROGRAMS AND DOCUMENTATION
AND ANY COPIES OR REPRODUCTIONS THEREOF SHALL REMAIN WITH DCL AND ITS
SUPPLIERS AND LICENSERS.
(c) A NON-EXCLUSIVE LICENSE TO INCORPORATE AND DISTRIBUTE INTO CCC'S OWN
PUBLICATIONS MODIFIED OR UNMODIFIED INFORMATION FROM THE DOCUMENTATION, AND
TO MARKET, SELL, DISTRIBUTE AND SUBLICENSE SUCH PUBLICATIONS IN PRINT OR
ELECTRONIC FORM AS AN INTEGRAL PART OF CCC'S SOFTWARE PRODUCT OFFERINGS.
(d) an exclusive license to market, sell, distribute and sublicense, either
directly or via a third party, Object Code (in accordance with Subparagraph
(b) above) to be incorporated into a product or service for use by a
telephone network or telephone service provider, including but not limited
to the Internet Services division of a telephone network or telephone
service provider.
The exclusive license rights granted by DCL to CCC in Subparagraph (d) of this
Paragraph do not apply to certain parties explicitly named in Exhibit B attached
to this Agreement.
(3) DURATION
The term of this Agreement shall commence on the Effective Date and shall
continue in perpetuity until terminated by either party in accordance with the
provisions of Paragraph 22.
(4) TITLE
Except as provided under Paragraph 2, neither CCC nor any third party shall
acquire under this Agreement any right, title or interest in the Licensed
Programs, Proprietary Information or Documentation.
Any additions, adaptations or improvements of the Licensed Programs made by CCC
and included in Derivative Works shall be the sole and exclusive property of
CCC, and DCL hereby irrevocably assigns all copyright and other intellectual
property rights thereto to CCC.
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If necessary, DCL shall obtain a written agreement not to assert any moral
rights, including any rights to identification of authorship, rights or approval
on modifications or limitation on subsequent modification, from any person or
entity having moral rights with respect to any materials, assigned, delivered or
licensed by DCL to CCC hereunder or under any additional agreements. DCL hereby
agrees not to assert any moral rights, including any right of identification of
authorship, rights of approval on modifications or limitation on subsequent
modification, DCL has or may have in the Licensed Products delivered hereunder.
Title in the Licensed Programs remains with DCL and DCL's suppliers and
licensers.
(5) LICENSE FEES
The license fees from CCC to DCL are set forth in Schedule D of each Addendum.
(6) RELATIONSHIP
The only relationship between DCL and CCC which is created by this Agreement is
that of licenser and licensee, and neither party shall be, nor represent itself
to be, an agent, employee, partner or joint venturer of the other, nor on the
other's behalf, nor in any manner or form make promises, representation or
warranties or incur any liability, direct or indirect, contingent or fixed, for
or on behalf of the other party.
(7) DCL CONSULTING AND ENGINEERING SERVICES
DCL will provide consulting and engineering services to CCC as set forth in
Schedule E of each Addendum (the "Services").
DCL will assign appropriately qualified, trained and experienced personnel to
perform the Services and will use its best efforts to minimize changes of
personnel so assigned and to promptly address all concerns of CCC with respect
to such assigned personnel.
CCC will give to DCL promptly on request such information and facilities as DCL
reasonably requires for the provision of the Services, and as are specified in
Schedule E of each Addendum.
Derivative Works created by DCL, its employees, consultants and subcontractors
as a result of consulting and engineering services provided by DCL to CCC
pursuant to this Agreement, including all matter created which is subject to
copyright, shall be the property of the party designated as the owner of such
Derivative Work. To the extent that such Derivative Works are to be the property
of CCC, all such works shall be deemed to be created as a "work made for hire"
within the meaning of Section 101 of the United States "Copyright" law and all
rights to copyright shall be vested entirely in CCC. If for any reason CCC may
not be deemed to have commissioned a "work made for hire," and its rights to
copyright are thereby in doubt, this Agreement shall constitute an irrevocable
assignment by DCL of all rights in the copyright of the work prepared for CCC.
The parties intend that any and all rights to the Derivative Works are to be
conveyed to CCC in full. DCL hereby agrees not to assert any moral rights,
including any right of identification of authorship, rights of approval on
modifications or limitation on subsequent modification, with respect to any
product or deliverable produced as a result of Services performed for CCC by
DCL.
No master and servant relationship will be deemed to exist between CCC on the
one hand and any employee of DCL on the other hand.
During the service and for the six months after termination of this service
neither party will solicit the employment of any employee of the other party who
has been engaged in the service.
(8) NEW SOFTWARE
The Licensed Programs include only (i) the current versions of such programs as
of the Effective Date of this Agreement or the Effective Date of any subsequent
Addendum, and (ii) enhancements, modifications or revisions to such programs
prepared by DCL pursuant to an Addendum to this Agreement. Any new DCL software
or revisions to the Licensed Programs which provide significant functional
capabilities over and above those of the Licensed Programs other than
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revisions prepared for CCC pursuant to this Agreement or an applicable Addendum
("New Software") shall be considered outside the terms of this Agreement; the
two parties may agree that DCL will license such New Software to CCC by
execution of a new Addendum to this Agreement. In such an event, such license
will be at terms no less favourable than licenses granted for the corresponding
function to any other DCL licensees.
(9) SUPPORT SERVICES
9.1 CCC shall be responsible for providing all installation and support
services for CCC customers.
9.2 After CCC has accepted the Licensed Programs as set out in Paragraph
21 below, DCL shall provide support and maintenance for each Licensed
Program as set out in Schedule C of the applicable Addendum.
During such periods, CCC shall document and notify DCL regarding any
Licensed Program deficiencies and DCL shall, as described in Schedule
C of the applicable Addendum, correct promptly the defects or errors,
both in the Source Code and Documentation. This correction service
does not cover any changes, adaptations, modifications or Derivative
Works created with or without authority of DCL, except those provided
by DCL under the maintenance service set out in Schedule C of each
Addendum.
Software corrections, changes, adaptations, modifications or
Derivative Works created by DCL for CCC shall be furnished to CCC by
DCL in Source Code form and, if requested by CCC, also in Object Code
form.
(10) DOCUMENTATION
DCL shall provide documentation for the Licensed Programs of the type and to the
extent as stated in Schedule B of each Addendum.
(11) DELIVERY OF LICENSED PROGRAMS
DCL shall deliver to CCC the Software Deliverables as set out in Schedules A and
B of each Addendum. DCL shall be solely responsible for all shipping procedures
and costs, including, but not limited to, compliance with and obtaining of any
export licenses associated with the delivery of the Software Deliverables to
CCC.
Without limiting the effect of the foregoing, if DCL is aware of, or should be
aware of, a delay that will prevent a delivery date of a specific Software
Deliverable from being met, DCL will immediately inform CCC, in writing.
(12) PUBLICITY
CCC may prepare and release any material for publicity purposes which advertises
the existence of functionality provided by the Licensed Programs in CCC
products.
Neither CCC nor DCL is precluded from publicizing the existence of this
agreement, but can only do so with the prior agreement of the other party, and
may not otherwise disclose the terms and conditions enclosed herein, except as
necessary to enforce its rights hereunder or as required by the national laws or
regulations applicable to either party.
(13) DISTRIBUTION
13.1 CCC may distribute the Licensed Programs on media supplied by CCC in
accordance with the rights set out in Paragraph 2 of this Agreement.
13.2 CCC agrees to duplicate the trademark and copyright notices on all
Licensed Programs and Documentation, and to contractually require that
any Affiliate, distributor or dealer to whom CCC grants a right to
reproduce the Licensed Programs and Documentation also duplicates such
notices. Standard copyright notices should read, with the proper year:
"-C- DATA CONNECTION LIMITED 19xx".
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13.3 CCC agrees to attribute the trademarks listed in Schedule A of each
Addendum to DCL in any advertising, brochures, documentation and
literature that use such trademarks. Such attribution need only be
made for the first use in a particular document. Attribution shall be
made by footnote reference and/or by use of the international symbols
"ah" and "TM", as specified in Schedule A of each Addendum. It is
expressly understood and agreed that CCC is not obligated to use any
trademarks of DCL in its marketing and promotion of any CCC product
incorporating the Licensed Programs or Derivative Works.
13.4 CCC shall be solely responsible for compliance with and obtaining of
any export licenses which may be required for the distribution of CCC
products incorporating the Licensed Programs or Derivative Works. DCL
shall provide answers to CCC technical questions relating to the
Licensed Programs where such questions are not answered by the
Documentation to enable CCC to obtain such export licenses.
(14) REPRESENTATIONS AND WARRANTIES OF DCL
14.1 DCL hereby represents and warrants CCC as follows.
(a) That DCL has the full right and power to enter into and perform
according to the terms of this Agreement, and that it possesses
all worldwide copyright, trademark, trade secret and similar
property and other rights in the Software which are necessary for
DCL's performance of this Agreement; that, to the best of DCL's
knowledge, there is no pending or threatened litigation,
including court, administrative or arbitral proceedings, which if
decided adversely to DCL would interfere in any material manner
whatever with CCC's rights to use the Licensed Programs; and that
CCC's use of the Licensed Programs and Documentation in
accordance with the terms and conditions of this Agreement will
not infringe such rights of any person or entity.
(b) That, commencing upon each delivery made by DCL and continuing
until the earlier of (i) ninety (90) days from the date of CCC's
first delivery of the Defined Product to a commercial customer or
(ii) one hundred eighty (180) days from Acceptance of the
deliverable by CCC, the Licensed Programs and Documentation will
be substantially free from defects in design and from program
errors, and conform to the specifications in Schedule A of the
applicable Addendum.
14.2 Except as set forth in this Paragraph, DCL MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
(15) REPRESENTATIONS AND WARRANTIES OF CCC
CCC hereby represents and warrants to DCL as follows.
(a) That CCC shall not disclose or distribute (except as expressly authorised
in this Agreement) the Proprietary Information to any third party except
with prior written agreement from DCL.
The following disclosures and distributions of the Proprietary Information
are expressly permitted, provided that the party to whom disclosure is made
is correspondingly bound (to the same extent that CCC is bound hereunder)
to keep the disclosed information secret and confidential:
(i) those required to comply with any relevant source code escrow
provision to which CCC is, or may become, subject to;
(ii) those designed solely to permit CCC to have a CCC product
incorporating the Licensed Programs translated into a language other
than English;
(iii)those third party contract programmers, consultants and other such
contractors, who are authorized by CCC to perform work on the Source
Code of the Licensed Programs, or on other Proprietary Information,
solely for the purpose of developing or supporting a CCC product
incorporating the Licensed Programs.
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(b) That CCC shall not sell or otherwise distribute the Licensed Programs
or Proprietary Information except pursuant to the terms of this
Agreement.
(16) CONFIDENTIALITY
16.1 CCC agrees that the Proprietary Information may constitute secret and
confidential information of DCL, and CCC agrees that, it will not
disclose to others, and will use reasonable efforts to prevent any of
its officers, employees, Affiliates, distributors and agents from
disclosing to others, any such confidential information if clearly
marked "confidential", except only to the extent necessary to parties
installing or licensing the Licensed Programs, who shall
correspondingly be bound to keep all such information secret and
confidential.
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16.2 Except where required by law to do so, each party will refrain from
disclosing to any third party any information obtained from the other
party, which the other party has designated as confidential,
concerning its operations, strategies, relationships, communications,
methods, customers, information pertaining to sublicensees, vendors,
subscribers, product offerings, service offerings, business plans or
other proprietary or confidential information, without advance written
approval from the other party.
16.3 For purposes of this Paragraph, the party owning rights in or
disclosing confidential information is termed the "Discloser", and the
party receiving such information is termed the "Recipient". The
following information shall not be considered confidential.
(a) Information presently in the public domain;
(b) Information which hereafter becomes part of the public domain
except as a result of the fault of the Recipient;
(c) Information which CCC and DCL agree in writing may be disclosed;
(d) Information independently developed by the Recipient without use
of information derived from the Discloser;
(e) Information which the Recipient is obliged to produce as a result
of a court order or pursuant to governmental action provided the
Discloser shall have been given notice and an opportunity to
appear and object to such disclosure, but is unsuccessful.
(17) PRINTING AND REPRODUCTION OF DOCUMENTATION
CCC may incorporate any information contained in the Documentation into CCC's
Own manuals, but may not distribute DCL's actual Documentation.
CCC may not reproduce DCL's Documentation except for use by CCC in installing,
modifying, testing and using the Licensed Programs or in preparing CCC's own
manuals, except as otherwise permitted in Paragraph 15.
The responsibility of and expense associated with any publishing of end-user
documentation associated with CCC's use of the Licensed Programs shall be that
of CCC.
(18) END USER RIGHTS AND SUPPORT
When a Licensed Program or Derivative Work has been sublicensed by CCC to a
third party, the third party may use the Licensed Programs for the term and in
the manner provided for in the agreement between CCC and the third party
applicable to such Licensed Program or Derivative Work. The rights and
obligations set forth therein are independent of this Agreement and will survive
the termination of the relationship between CCC and DCL. CCC is responsible for
Prime Support of all CCC customers. In the event that a CCC customer contacts
DCL for support, DCL shall refer the customer to CCC.
(19) INFRINGEMENT
DCL shall defend, at its expense, and shall pay the cost and damages awarded in
any action brought against CCC, or any customer of CCC, based on allegation that
the Licensed Programs or Documentation, or any portion thereof, or trademark
provided hereunder, infringes a patent, copyright, trademark or trade secret
wherever issued, or constitutes an unauthorized of any trade secret or other
proprietary information belonging to a third party, provided that CCC promptly
notifies DCL in writing of such claim and DCL shall have had sole control of the
defense of any such action and all negotiations for its settlement or compromise
(except that any such settlement or compromise that admits any liability or
wrongdoing by CCC, or may adversely affect CCC's reputation or business, must
first be approved by CCC, which may withhold such approval in its sole
discretion), and provided further that DCL shall have no liability to CCC or any
Affiliate, distributor, dealer or
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customer of CCC under this Paragraph if any infringement or allegation thereof
is based upon any material modification to the Licensed Programs not made or
approved by DCL.
(20) INDEMNIFICATION
DCL shall defend, at its expense, and shall pay all reasonable cost and damages
of (a) any settlement to which DCL has given written consent, or (b) a final
court decision, in both cases resulting from any claim or demand brought against
CCC or CCC customers based on an allegation of incorrect design, analysis or
error in the Licensed Programs, if CCC or CCC's customer, as applicable, (i)
promptly notifies DCL in writing of the claim; (ii) gives DCL all reasonably
requested information which CCC or CCC's customer has concerning-.the claim;
(iii) reasonably cooperates with and assists DCL in defending the claim; and
(iv) gives DCL sole authority to defend or settle the claim (except that any
such settlement that admits any liability or wrongdoing by CCC, or may adversely
affect CCC's reputation or business, must first be approved by CCC, which may
withhold such approval in its sole discretion).
If an injunction is issued against CCC's sale, use, marketing or distribution of
the Licensed Programs or the Documentation as permitted under this Agreement, or
if in DCL's opinion the Licensed Programs or the Documentation are likely to
become the subject of claim or demand, DCL shall, at its option and at its
expense, do one of the following: (i) obtain for CCC the right to continue that
use or marketing; or (ii) replace or modify the Licensed Programs with other
programs having substantially similar functionality and performance or the
Documentation so that it becomes noninfringing.
DCL will not have any liability under this Paragraph (20) if (i) any claim of
such incorrect design, analysis, error, or infringement is caused by the use of
the Licensed Programs or the Documentation in combination with any materials not
furnished directly by DCL, or is based on a material modification of the
Licensed Programs or the Documentation otherwise than at DCL's direction or
approval, (ii) the Licensed Programs are used in a manner for which they were
not designed, or are not used according to their specifications, or (iii) DCL
provided CCC with a later version of the Licensed Programs or Documentation, and
CCC's use of that later version would have avoided the claim of incorrect
design, analysis or error in the Licensed Programs.
(21) ACCEPTANCE
CCC shall evaluate the Licensed Programs and the Proprietary Information and
shall submit a written Acceptance, deferral of Acceptance, or rejection to DCL
within thirty (30) days after final delivery as defined in Schedule A of the
applicable Addendum (the "Notice Date").
CCC will begin evaluation of the Licensed Programs promptly, and will, in good
faith, use its reasonable best efforts to complete its evaluation testing in a
timely fashion, such that DCL is given reasonable notice of outstanding problems
in the Licensed Programs.
In the absence of written deferral of Acceptance or rejection by such date, CCC
will be deemed to have accepted the Licensed Programs.
CCC may defer Acceptance, or may reject the Licensed Programs if:
(i) on the Notice Date, there are any unresolved problems of Severity 1 or
2 (as set forth in Schedule C of each Addendum), or
(ii) on the Notice Date, there are an unreasonable number of open problems
of Severity 3 or 4.
In the event of deferral of Acceptance by CCC, DCL shall deliver to CCC fixes
for those unresolved problems in the Licensed Programs defined by the criteria
in 21 (i) and 21 (ii) above (the "Fix Package"), within thirty (30) days of
receipt of written notification of deferral of Acceptance by CCC. CCC shall then
re-evaluate the Licensed Programs and the Proprietary Information and shall
submit a written Acceptance or rejection to DCL within fifteen (15) days of
receipt of the Fix Package. CCC may reject the Licensed Programs if, after
delivery of the Fix Package, the Licensed Programs contain (a) any problems of
Severity 1 and Severity 2 (as set forth in Schedule C of each Addendum), or (b)
an UNREASONABLE number of open problems of Severity 3 or 4; and, in both cases,
DCL does not correct these problems within three (3)
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working days of notification to DCL thereof. In the absence of written
Acceptance or rejection, CCC will be deemed to have accepted the Licensed
Programs.
In the event that CCC rejects the Licensed Programs, CCC may, at its sole
option, terminate this Agreement and receive a full refund of all amounts paid
to DCL by CCC hereunder.
In no event shall CCC make any product containing the Licensed Programs
commercially available to third parties prior to Acceptance.
Following acceptance of the Licensed Programs by CCC, DCL will have no liability
for the consequences of any use which CCC makes of the Licensed Programs except
as otherwise provided in this Agreement.
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(22) TERM AND TERMINATION
CCC shall have all rights granted under this Agreement on a continuing basis
until this Agreement and/or any Addenda hereto are terminated according to the
provisions of this Paragraph 22.
Either party may terminate this Agreement or any applicable Addendum: (1 ) for a
breach of any material provision thereof by not less than thirty (30) days
written notice to the nonbreaching party specifying any such breach, unless
within the time period stated in such notice all breaches specified therein
shall have been remedied, or, if any such breach is not susceptible of being
cured within such time period, the other party has begun and is continuing to
remedy such breach diligently and without delay; or (2) immediately upon written
notice to the other party in the event that such other party ceases operations
in the normal course or seeks to make a compromise, assignment, or other
arrangement for the benefit of creditors. Either party may similarly terminate
this Agreement if the other becomes a party to bankruptcy, receivership, or
similar proceedings affecting its financial condition, unless such proceedings
are discharged within sixty (60) days.
Upon termination of this Agreement, other than for material breach solely by CCC
due to failure to make payments to DCL as specified in Addendum 1 Schedule D,
which failure to make payments does not result from a good faith dispute between
the parties, CCC may retain copies of the Licensed Programs solely for the
purpose of providing maintenance and support to CCC's customers with sublicenses
for the Licensed Programs or Derivative Works preexisting at the date of
termination. The obligations of confidentiality, indemnity and payment on both
parties shall survive the termination of this Agreement. No other obligation
shall survive termination of this Agreement except those which by their
language, nature or context are intended to survive termination hereunder.
(23) NOTICES
Service of all notices under this Agreement shall be sufficient only if mailed
by certified or registered mail or recognized courier service, or personally
delivered, to the DCL address or CCC address as stated herein under
"PRINCIPALS", and shall be deemed given as of the day they are actually
received. Either party may change its address for service by written notice to
the other.
(24) UNFORESEEN EVENTS
Notwithstanding anything else in this Agreement, no default, delay or failure to
perform on the part of either party shall be considered a breach of this
Agreement if such default, delay or failure to perform is shown to be directly
related to causes beyond the reasonable control of the party charged with a
default, including, but not limited to, causes such as strikes, lockouts or
other labour disputes, riots, civil disturbances, actions or in action's of
governmental authorities or suppliers, epidemics, war, embargoes, severe
weather, fire, earthquake, acts of God or public enemy, nuclear disasters, or
default of a common carrier. If any such delay on either party's part extends
beyond sixty (60) days, the other party may cancel any deliverable or service so
delayed without liability or obligation therefore.
(25) SEVERABILITY
In the event that any one or more of the provisions of this Agreement shall for
any reason be held to be unenforceable in any respect under the law, such
unenforceability shall not affect any other provision, but this Agreement shall
then be construed as if such unenforceable provision or provisions had never
been contained herein.
(26) ENTIRE AGREEMENT
This Agreement supersedes all prior proposals, oral or written, all
negotiations, conversations or discussions between the parties relating to this
Agreement and all past course of dealing or industry custom. CCC and DCL
acknowledge that they have not been induced to enter into this Agreement by any
representations or statements, oral or written, not expressly contained herein,
and that they have had an opportunity to have this Agreement reviewed by legal
counsel. The terms and conditions of this Agreement shall prevail,
notwithstanding any variance with the terms and conditions of any subsequent
purchase order or other written instrument submitted by CCC, unless such
variation is accepted by DCL.
(27) GENERAL CONDITIONS
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This Agreement shall be construed and exclusively enforced in accordance with
the laws of the State of Washington, USA, applicable to contracts made and to be
performed entirely in the State of Washington, without reference to principles
of conflicts of laws.
Except in connection with an action by either party for an injunction or to
compel specific performance (or for other equitable relief), in the event of a
disagreement or dispute between DCL and CCC relating in any way to this
Agreement or the rights and obligations of DCL or CCC under this Agreement, the
matter will be settled by an arbitration conducted in Seattle, Washington in
accordance with the rules of the International Chamber of Commerce by one or
more arbitrators appointed in accordance with said rules. Both parties agree to
be bound by the unanimous or, if there is no unanimity, the majority decision of
the arbitrators, which shall be final and unappealable, and to share equally the
fees and expenses of the arbitrators. Judgement upon any award of the
arbitrators may be entered in any court for the judicial acceptance of the award
and on order of enforcement. By agreeing to arbitration, neither party is
waiving any benefit of the statute of limitations or other equitable defenses.
In the event of legal action by one party against the other, DCL consents to
jurisdiction in any competent court located in the United States and agrees that
service of process on DCL will be proper if such service complies with the
United States Federal Rules of Civil Procedure.
The International Sale of Goods Convention will not apply to this Agreement.
This Agreement may be modified only by a writing signed by each party. However,
this Agreement consists of this document and various schedules which shall be
deemed a part of the full Agreement. If additional products are brought under
this Agreement by an Addendum, such Addendum shall be deemed a part of this
Agreement from the date of its execution and attachment.
Headings included in this Agreement are for convenience only and are not to be
used to interpret the agreement between the parties.
The failure of either party to enforce at any time any of the provisions hereof
shall not be construed to be a waiver of the right of such party thereafter to
enforce any such provisions.
All rights and remedies of the parties are cumulative.
(28) ASSIGNABILITY
The provisions of this Agreement shall inure to the benefit of and be binding
upon the parties hereto, their successors and assigns, but neither party may
assign this Agreement without the express written consent of the other party,
which consent shall not be unreasonably withheld or delayed. Notwithstanding the
foregoing, CCC may assign this Agreement to another division of CCC or to an
Affiliate of CCC without the consent of DCL but with prior written notification
to DCL.
(29) LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE FOR INDIRECT OR CONSEQUENTIAL DAMAGES TO THE OTHER
PARTY, ARISING FROM, OR RELATED TO THIS AGREEMENT IN ANY WAY WHATSOEVER.
(30) INTERPRETATION
The following shall apply in the interpretation or construction of this
Agreement and/or any applicable Addendum:
(a) the terms "include" or including'' mean without limitation;
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(b) the terms therein", hereof' or like terms refer to this Agreement
and any applicable Addenda; and
(c) whenever a party is required to perform an act under this
Agreement and/or any applicable Addendum, such party has an
obligation to perform reasonably and in good faith.
(31) COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same document.
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EXECUTED BY THE PARTIES BELOW:
DATA CONNECTION LIMITED CONNECTSOFT COMMUNICATIONS
CORPORATION
By: /s/Xxxx Xxxxx By: /s/Xxxxxx Xxxxxx
XXXX XXXXX XXXXXX XXXXXX
Typed Name: Xxxx Xxxxx Typed Name: Xxxxxx Xxxxxx
Title: DIRECTOR Title: PRESIDENT & CEO
Date: July 14, 1997 Date: July 10, 1997
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