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Exhibit 10.21
ADDENDUM NO. 3
TO
SUPPORT AGREEMENT
This Addendum No. 3 to Support Agreement (the "Addendum") is made and
entered into the 1st day of October, 1995, by and between Voice Control
Systems, Inc., a Delaware corporation, successor by merger to VCS Industries,
Inc., having its principal place of business at 00000 Xxxxxx Xxxx, Xxxxx 000,
Xxxxxx, Xxxxx 00000 ("VCS") and Dialogic Corporation, a New Jersey corporation,
with its principal place of business at 0000 Xxxxx 00, Xxxxxxxxxx, Xxx Xxxxxx,
00000 ("Dialogic").
W I T N E S S E T H:
WHEREAS, VCS and Dialogic entered into a certain License Agreement
dated June 8, 1990, which was amended as of September 20, 1991, January 31,
1993, September 1, 1993, and March 14, 1994, and is being further amended by an
agreement of even date herewith (as so amended, the "License Agreement") under
which Dialogic obtained a license from VCS with respect to certain technology
and related documentation on certain terms and conditions; and
WHEREAS, VCS and Dialogic entered into a certain Support Agreement
dated September 20, 1991, under which VCS agreed to provide support services
with respect to certain Licensed Technology under certain terms and conditions
(the "Support Agreement"); and
WHEREAS, VCS is developing a new version of the Licensed Technology
for use on Dialogic's Antares VR Platform; and
WHEREAS, the parties wish to provide that the new version of the
Licensed Technology shall be subject to the Support Agreement; and
WHEREAS, the Support Agreement contemplates that new versions of
Licensed Technology would be subjected to the Support Agreement by the parties
executing an addendum to the Support Agreement.
NOW, THEREFORE, IN CONSIDERATION of the premises and of the mutual
covenants and conditions contained herein, the parties agree as follows:
1. All terms defined in the Support Agreement shall have, when
used in this Addendum, the meanings ascribed to them in the Support Agreement.
For purposes of the Support Agreement and this Addendum:
1.16 "Antares Platform" shall mean Dialogic's open DSP
platform developed for high density telecommunications applications
based on the SCSA standard.
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1.20 "Antares VR Software" shall mean that subset of Licensed
Technology consisting of the various speaker-independent telephone
channel, discrete or continuous utterance, voice recognition
algorithms and reference tables of VCS which are presently, or are to
be, implemented in software to operate on the Antares Platform with
the basic discrete and continuous vocabulary sets Dialogic generally
makes available to its customers. Antares VR Software shall be
distributed as a separate medium to be input onto the Antares
Platform.
2. The term Supported Technology shall include Antares VR
Software and, as such, Antares VR Software shall be subject to the terms of the
Support Agreement.
3. Exhibit C of the Support Agreement is amended to include a
new subparagraph 4 to read as follows:
4. For any Antares VR Platform manufactured by or for
Dialogic which utilizes the Antares VR Software, Dialogic shall pay
VCS an amount calculated from the table set forth in Appendix I based
on the volume of sales.
and to amend Appendix I to read in its entirety as the Appendix I attached to
this Addendum No. 3.
4. The Support Term for the Antares VR Software shall commence on
the date of this Addendum No. 3 and continue until September 30, 1997.
5. The Antares VR Software shall be licensed for use solely in
conjunction with the Antares Platform. VCS and Dialogic shall develop a method
for protecting against unlicensed copying of the Antares VR Software, and
Dialogic shall not distribute Antares VR Software until mutually agreed upon
protection is implemented.
6. Since the Antares VR Software is not imbedded in an Antares
Platform but is distributed as a separate medium (such as a floppy disk) with
the Antares Platform, Dialogic may either (i) distribute a single copy of the
Antares VR Software with each unit of the Antares Platform; (ii) distribute a
single master copy of the Antares VR Software and authorize the purchaser to
make only as many copies of the Antares VR Software as it has purchased Antares
Platforms; or (iii) distribute Antares VR Software in its purchased
configuration to a customer who already owns an Antares Platform.
7. VCS represents and warrants that it has the right to enter
into this Addendum No. 3 to the Support Agreement and to provide services and
releases with respect to the Antares VR Software. VCS will defend and hold
Dialogic harmless and their end users harmless and shall pay any resulting
costs, damages, and
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attorney fees that arise in connection with any action brought against Dialogic
based on an allegation that the Antares VR Software infringes any patent,
copyright, trademark, or other intellectual property rights of any third party
conditioned on the following:
(i) Dialogic notifies VCS in writing within ten (10)
business days of its knowledge of any allegations; and
(ii) VCS is given sole control of the defense and all
related settlement negotiations and settlements.
Should the Antares VR Software become, or in VCS' opinion be likely to
become, the subject of a claim of infringement of such intellectual property
rights, Dialogic shall permit VCS at its option and expense, either to procure
for Dialogic the right to continue using the Antares VR Software or to replace
or modify same so that it becomes noninfringing but is still commercially
marketable.
Notwithstanding the foregoing, VCS shall have no liability to Dialogic
with respect to any claim of infringement to the extent that it is based upon
the modification by Dialogic of the Antares VR Software, or is based on a claim
that the application in which the product is used, but not the Antares VR
Software itself, violates the intellectual property of any third party.
8. VCS shall be available to sell enhanced software to purchasers
of Antares Platforms upon the request of Dialogic or any such purchaser. VCS
shall make reasonable efforts to inform Dialogic regarding all Antares-based
enhanced software selling activity. VCS will test all enhanced software on the
Antares Platform to ensure their intended functionality before delivering them.
Dialogic shall not be entitled to any compensation received on account of the
sales of such enhanced software.
9. VCS shall make the first deposit of the Antares VR Software
with the Escrow Agent at the same time the Antares VR Software object code is
delivered to Dialogic, and shall thereafter deliver it to the Escrow Agent
quarterly, pursuant to Section 8 of the Support Agreement.
10. VCS shall provide sales and technical training for use of
Antares VR Software up to 3 times per year when requested by Dialogic upon
reasonable advance notice to permit preparation.
11. Non-proprietary standard vocabularies developed by VCS in
wireless and wire-based telecommunications environments, and all
non-proprietary phonetic dictionary-based language models will be supported on
the Antares VR Software. At Dialogic's request, non-proprietary custom word
vocabularies developed by VCS will be tested and supported by VCS on Antares VR
Software.
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12. VCS-generated vocabularies shall only be used with the Antares
VR Software and other VCS products licensed to Dialogic.
13. VCS will deliver a VR/160 Software manual modified for
application to the Antares VR Software for all operating systems used for
Antares Platforms and sections suitable for inclusion in Dialogic's software
and hardware installation manuals pertaining to Antares VR Software.
14. VCS will actively market and provide sales support for Antares
within the current and potential Dialogic customer base.
15. VCS may exhibit, at its discretion, its Antares VR Software at
industry conferences, exhibitions, and trade shows at which it exhibits its
products, and Dialogic, at its discretion, may provide VCS the opportunity to
exhibit its Antares VR Software offerings in the Dialogic exhibition booth,
pavilion, or space at industry conferences, exhibitions, and trade shows at
which Dialogic exhibits its products.
16. Dialogic shall not use an alternative speech recognition
supplier in meeting the voice recognition requirements for an Antares prospect
identified to Dialogic by VCS.
17. Exhibit F of the Support Agreement is amended to replace
"Chief Technical Officer" with "VCS Vice President, Software Development.
DIALOGIC CORPORATION VOICE CONTROL SYSTEMS, INC.
By: By:
----------------------- --------------------------
Its: Its:
----------------------- --------------------------
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APPENDIX I
TO
EXHIBIT C
TO
SUPPORT AGREEMENT
BETWEEN DIALOGIC CORPORATION AND
VCS INDUSTRIES, INC.
I. Prepayment: $* payable as follows:
$* upon Beta release and $* upon production release of Antares VR Software for
operation on each of the following operating systems: OS/2, UnixWare 2.0, DOS
and Unix2.
The prepayment will be recovered at a rate of $* per recognizer during the
first year of the Support Term if sufficient sales are made. Any amounts not
recovered from sales of recognizers in the first year will belong to Licensor
and will not be subject to refund or other recovery by Licensee.
II. Volume-Based Payment:
Basic Basic
Annual Speaker- Speaker-
Purchase Independent Independent
Volume Discount Discrete Vocabulary Continuous Technology
------------- -------- ------------------- ---------------------
(Recognizers) (Per Recognizer) (Per Recognizer)
* * * *
A "Recognizer" is an individual channel capable of recognition using a Dialogic
Platform with Supported Technology. The recognizers can be used as a shared
resource in systems or they can be deployed on every line in a system. Partial
utilization of the capabilities of a Dialogic Platform shall not reduce the
royalty amount due.
1. The Annual Purchase Volume is based on the number of recognizers on any
Boards sold during the year, including VR/40, VRM/40, VRM/2C, Antares, and
others. It does not include VRSoft.
2. Licensor will initially grant Licensee a volume discount at the *% discount
level for the nine-month period commencing October 1, 1995. A review process
will take place semi-annually in June and December of each year, excluding
December 1995. The volume discount for the next six month period will be
adjusted to the appropriate discount level based on annualized actual sales
during the six months preceding any semiannual review.
* Confidential treatment requested.
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A true-up process will take place annually in October of each year for the
prior twelve calendar months.
If actual sales were greater than were projected and entitle Licensee to a
higher volume discount, Licensor will issue Licensee a credit, within fifteen
(15) days following completion of the true-up, against future royalties due in
an amount equal to the difference between royalties actually paid in the prior
year and royalties which would have been paid based upon the higher volume
discount level.
If actual sales were less than projected and entitle Licensor to additional
royalties, Licensee shall pay Licensor, within fifteen (15) days following
completion of the true-up, an amount equal to the difference between the
royalties actually paid in the prior year and the amount of royalties due based
on the proper discount level.
III. Schedule for Delivery of Antares VR Software
VCS shall determine which operating systems to support based on input from
Dialogic, market opportunities and availability of Antares platform support
from Dialogic. VCS shall deliver to Dialogic Beta releases of Antares VR
Software to run under selected software operating systems. These releases
shall include executable VR Software, demo source code, documentation, release
notes and all supported vocabularies. VCS shall deliver the first four
releases pursuant to the following matrix:
BETA RELEASE TO DIALOGIC # LANGUAGES # CHANNELS PER DSP
==========================================================================================================
Discrete 5 8
----------------------------------------------------------------------------------------------------------
Discrete w/Cut-Thru 5 4
----------------------------------------------------------------------------------------------------------
Continuous w/Cut-Thru(1) 4 2
==========================================================================================================
BETA RELEASE TO DIALOGIC DOS UNIXWARE 2.0 UNIX2 OS/2
=============================================================================================================
Discrete 11/15/95 11/6/95 12/1/95 10/23/95
-------------------------------------------------------------------------------------------------------------
Discrete w/Cut-Thru 11/15/95 11/6/95 12/1/95 10/23/95
-------------------------------------------------------------------------------------------------------------
Continuous w/Cut-Thru(1) 11/15/95 11/6/95 12/1/95 10/23/95
=============================================================================================================
1 Includes support for 2 continuous and 2 discrete channels.
2 UNIX release includes support for the Dialogic UNIX SDK.
The dates on the matrix shall be adjusted for any delays caused by actions of
Dialogic, including, without limitation, late delivery of Dialogic's Antares
firmware, drivers, or boards, or by any force majeure, but otherwise may be
delayed only with the approval of Dialogic and advanced only with the approval
of VCS.
