CONFIDENTIAL TREATMENT REQUESTED UNDER
17 C.F.R. SECTIONS 200.80(B)(4), 200.83 AND 230.406.
Exhibit 10.5
OEM AGREEMENT
This OEM AGREEMENT (this "Agreement") is made and entered into effective
as of the 28th day of March, 2002 (the "Effective Date"), by and between GENERAL
MAGIC, INC., a Delaware corporation having a place of business at 000 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 ("GMI"), and INTERVOICE-BRITE, INC., a Texas
corporation having a place of business at 00000 Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx
00000 ("IVB").
RECITALS
A. WHEREAS, GMI owns, develops, markets and supports a voice application
development platform and related software products that allow businesses to
develop and deploy voice applications that deliver voice access to enterprise,
Internet and telecommunications information and services; and
B. WHEREAS, IVB wishes to license a certain software from GMI under the
terms and conditions of this Agreement for the purpose of integrating or
bundling the GMI software with certain of IVB's products or technology, and to
distribute by sublicense GMI's software on a stand-alone basis and/or as part of
IVB's integrated offering.
NOW, THEREFORE, in consideration of the promises and covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
AGREEMENT
1. Definitions.
1.1 "ACCEPTED ORDER" has the meaning given in Section 6.3 (Delivery and
Acceptance).
1.2 "COMPOSITE PRODUCT" means any application or solution developed or
delivered by IVB to End Users that consists of an IVB Product bundled or
integrated with the Enterprise Platform, or a part of the Enterprise Platform,
and having substantial value in addition to that attributable to the Enterprise
Platform.
1.3 "CONFIDENTIAL INFORMATION" means any information concerning its
business that a party considers proprietary or confidential, including but not
limited to technical, financial, sales, marketing, strategic, personnel,
planning and other information subject to the terms of Section 13
(Confidentiality).
1.4 "DOCUMENTATION" means the user guides, operating manuals, technical
literature and other documentation for installation and use of the Enterprise
Platform furnished to IVB by GMI, whether in written or electronic form, and
whether in the form originally supplied by GMI to IVB, or as modified by IVB
pursuant to Section 2.2 (Documentation).
1.5 "END USER" means a person, company or other legal entity sublicensed
by IVB under this Agreement to use and copy the Enterprise Platform or the
Composite Product for its own internal purposes and not for remarketing, resale,
redistribution or sublicensing to, or use on behalf of, others.
1.6 "END USER AGREEMENT" has the meaning given in Section 3.3 (End User
Agreements).
1.7 "ENTERPRISE PLATFORM" means the magicTalk Enterprise Platform
software, which enables the development and deployment of voice-based
enterprise-scale applications, in Object Code and interpreted code form,
distributed by GMI, and any Updates and Upgrades that GMI may provide to IVB
pursuant to this Agreement or a separate maintenance and support agreement.
1.8 "ERROR" has the meaning given in Exhibit H (GMI Maintenance and
Support Services).
1.9 "GMI TRADEMARKS" means the trademarks, trade names, logos and
service marks of GMI listed on Exhibit C (GMI Trademarks), as such list may be
updated from time to time by GMI upon notice to IVB.
1.10 "INTELLECTUAL PROPERTY" means any and all patents and copyrights,
whether registered or unregistered, and all trade secrets and know-how.
1.11 "IVB PRODUCT" means IVB's commercially available product or
products identified in Exhibit A (IVB Product), which may be hardware, software
or a combination thereof, as Exhibit A may be updated from time to time upon
mutual agreement of the parties.
1.12 "IVB TRADEMARKS" means the trademarks, trade names, logos and
service marks of IVB listed on Exhibit B (IVB Trademarks), as such list may be
updated from time to time by IVB.
1.13 "KEY" means a numeric or alpha-numeric code that is necessary to
gain access to and operate the Enterprise Platform in accordance with the
license granted under this Agreement.
1.14 "LICENSE FEES" has the meaning given in Section 8.2 (Fees).
1.15 "MAINTENANCE AND SUPPORT FEES" has the meaning given in Section 8.2
(Fees).
1.16 "MAINTENANCE AND SUPPORT SERVICES" has the meaning given in Exhibit
H (GMI Maintenance and Support Services).
1.17 "MINIMUM TERMS" means those minimum terms and conditions for the
End User Agreement set forth in Exhibit D (Minimum Terms).
1.18 "OBJECT CODE" means the fully compiled machine-readable binary
version of a software program.
1.19 "ORDER FORM" has the meaning given in Section 6.1 (Issuance of
Purchase of Orders).
1.20 "PURCHASE ORDER" has the meaning given in Section 6.1 (Issuance of
Purchase Orders).
1.21 "SOURCE CODE" means the human-readable version of a software
program that can be compiled into Object Code.
1.22 "TAXES" has the meaning given in Section 8.3 (Taxes).
1.23 "TERM" has the meaning given in Section 14.1 (Term).
1.24 "TERRITORY" shall mean [**]. Within [**] after execution of this
Agreement the parties will extend the territory to jurisdictions [**] pursuant
to a separate written addendum or amendment. IVB understands and agrees that
such extension will only be made to countries listed on Exhibit J (Agreed
Countries) to this Agreement and to such other countries as the parties may
agree form time to time.
1.25 "UPDATE" means error corrections, patches, modifications and
enhancements to the Enterprise Platform made generally available by GMI at no
additional fee (other than shipping charges) to its licensees contracted to
receive maintenance and support services for the time period during which the
Update is made generally available. Updates shall not include any Upgrades.
1.26 "UPGRADES" means any new releases or new versions of the Enterprise
Platform that GMI licenses for an additional fee. Upgrades shall not include
software that GMI prices as a product offering separate from the Enterprise
Platform.
2. LICENSE.
2.1 ENTERPRISE PLATFORM. Subject to the terms and conditions of this
Agreement, including the payment of applicable fees pursuant to Section 8 (Fees
and Payment), GMI hereby grants to IVB a non-exclusive, non-transferable (except
as permitted under Section 15.13 (Assignment)), non-sublicensable and limited
license, to practice all GMI Intellectual Property rights to the extent such
Intellectual Property rights are practiced in the normal operation of the
Enterprise Platform and such other products as may be licensed to IVB hereunder;
however this grant does not confer any rights to practice any Intellectual
Property rights of GMI in connection with products other than the Enterprise
Platform and such other products as may be licensed to IVB hereunder, and any
services related thereto, in the Territory and during the Term:
(a) to internally reproduce and use the Enterprise Platform on
the number of CPUs (as defined in the Order Form) specified in an Accepted Order
for the purpose of developing, testing and staging the Composite Products and
applications for the Composite Products, for the purpose of developing
demonstration systems and conducting demonstrations of such systems for
potential customers, and for the purpose of supporting End Users of the
Enterprise Platform, whether as a stand-alone product, or as part of a Composite
Product;
(b) to modify, enhance and create derivative works of the
reusable dialogue components included in the Enterprise Platform (known as
Talklets(TM)) for the purpose of marketing and distributing such components by
sublicense as part of the Enterprise Platform;
(c) to market and distribute by sublicense one or more tangible
copies of the Enterprise Platform, in Object Code and interpreted code only, as
a stand-alone product, or as part of a Composite Product, to End Users, either
directly or indirectly through subdistributors pursuant to Section 3.4; and
(d) either directly or indirectly through subdistributors, to
permit such End Users to internally reproduce and use in accordance with the
restrictions set forth in an Accepted Order the Enterprise Platform as a
stand-alone product, or as part of a Composite Product, pursuant to an
enforceable End User Agreement; and
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(e) either directly or indirectly through subdistributors, to
permit such End Users to modify, enhance and create derivative works of the
reusable dialogue components included in the Enterprise Platform for its own
internal purposes in accordance with an enforceable End User Agreement, and not
for marketing, sale, distribution or licensing.
IVB may also make [**] of the Enterprise Platform reasonably necessary for
internal archival and backup purposes as well as for disaster recovery.
2.2 DOCUMENTATION. Subject to the terms and conditions of this
Agreement, GMI hereby grants to IVB a non-exclusive, non-transferable (except as
permitted under Section 15.13 (Assignment)), non-sublicensable and limited
license in the Territory and during the Term to modify and create derivative
works from the Documentation by creating technically accurate subsets and
supersets thereof, to internally use the Documentation in connection with those
uses of the Enterprise Platform permitted under this Agreement, and to reproduce
and distribute the Documentation in its original form or as modified by IVB
together with each copy of the Enterprise Platform distributed to End Users,
whether alone or as part of a Composite Product.
2.3 ADDITIONAL PRODUCTS. As GMI enhances the development environment of
the Enterprise Platform existing as of the Effective Date, GMI may make any
significant new features or functionality available as separate product. As such
product becomes available, GMI shall [**] license and distribution [**] to be
determined by the parties.
2.4 GMI TRADEMARKS. Subject to the terms and conditions of this
Agreement, GMI hereby grants to IVB a non-exclusive, non-transferable (except as
permitted under Section 15.13 (Assignment)), non-sublicensable and limited
license to use and reproduce the GMI Trademarks solely in connection with the
advertising, marketing and distribution of the Enterprise Platform, whether
alone or as a Composite Product, and related Documentation. IVB agrees to state
in appropriate places on all materials using the GMI Trademarks that such
trademarks are the trademarks of GMI, and to include the symbol (TM) or (R) as
appropriate. IVB agrees not to take any action inconsistent with GMI's ownership
of the GMI Trademarks and further agrees not to adopt, use or attempt to
register any trademarks or trade names that are confusingly similar to the GMI
Trademarks or in such a way as to create combination marks with the GMI
Trademarks. Any reproduction of a GMI Trademark shall be a true reproduction,
and samples of all materials that use the GMI Trademarks shall be provided to
GMI upon request. At GMI's request, IVB will modify or discontinue, in whole or
in part, any use of the GMI Trademarks if, in GMI's [**], IVB's use of the GMI
Trademarks does not comply with GMI's then-current trademark usage policy and
guidelines.
3. LICENSE RESTRICTIONS AND OBLIGATIONS.
3.1 LICENSE RESTRICTIONS. GMI, its licensors and suppliers reserve all
rights not expressly granted to IVB under this Agreement. The Enterprise
Platform is licensed, not sold. Without limiting the generality of the
foregoing, IVB agrees that it will not itself, or through any parent,
subsidiary, affiliate, agent or other third party:
(a) use, copy, duplicate or otherwise reproduce all or any part
of the Enterprise Platform or Documentation other than in accordance with this
Agreement;
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(b) modify, adapt, port, translate, localize or create derivative
works of the Enterprise Platform or Documentation except as authorized herein;
(c) except with the approval of GMI, merge, integrate or bundle
the Enterprise Platform with hardware, software or firmware other than IVB
Product;
(d) decompile, disassemble, reverse engineer, or attempt,
directly or indirectly, to identify, reconstruct, derive or discover the Source
Code (or the underlying ideas, user interface techniques, algorithms, structure
or organization) for the Enterprise Platform, in whole or in part;
(e) market or distribute to End Users, whether directly or
indirectly, either the Enterprise Platform or the Composite Product and
associated Documentation except under a valid and enforceable End User Agreement
and in accordance with this Agreement;
(f) sell, lease, rent, loan, assign, transfer, license or
sublicense the Enterprise Platform or the Composite Product except as permitted
under the terms of this Agreement;
(g) encumber or suffer to exist any lien or security interest in
the Enterprise Platform or the Composite Product;
(h) disclose directly or indirectly the results of any benchmark
or other performance test run on the Enterprise Platform to any third party
without GMI's prior written consent;
(i) provide any Update to an End User with respect to whom IVB
has not paid all Support and Maintenance Fees due to GMI for the period in which
the Update is available; or
(j) knowingly take any action that would cause all or any part of
the Enterprise Platform to be placed in the public domain.
3.2 PROPRIETARY NOTICES. IVB agrees that as a condition of its rights
hereunder it will not delete, alter or obscure any proprietary rights notices
(including but not limited to copyright and trademark notices) of GMI, its
licensors or suppliers that appear on or within each copy of the Enterprise
Platform and the Documentation as delivered by GMI to IVB, and that it will
reproduce all such notices on any copies of the Enterprise Platform and
Documentation permitted under this Agreement.
3.3 END USER AGREEMENTS. Before distributing the Enterprise Platform,
the Composite Product or the Documentation to any End User, whether alone or as
a Composite Product, IVB must enter into a binding, written agreement with such
End User, enforceable against the End User, whether for commercial or evaluation
purposes, that contains terms at least as protective of and beneficial to GMI as
the Minimum Terms ("End User Agreement"). IVB will enforce each such agreement
with at least the same degree of diligence that it uses to enforce similar
agreements for its own products or other software products distributed by it,
but in no event less than reasonable diligence. IVB will immediately notify GMI
if it becomes aware of any breach of any such agreement to the extent it relates
to the Enterprise Platform or Documentation.
3.4 SUBDISTRIBUTOR AGREEMENTS. Before allowing a subdistributor to
distribute the Enterprise Platform, whether alone or as a Composite Product, or
the Documentation to any End User, IVB must enter into a binding, written
agreement with such subdistributor, enforceable against the subdistributor, that
contains terms and conditions at least as protective of and beneficial to GMI as
the terms of this Agreement ("Subdistributor Agreement"). IVB will enforce each
such agreement with at least the same degree of diligence that it uses to
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enforce similar agreements for its own products or other software products
distributed by it or other subdistributors, but in no event less than reasonable
diligence. IVB will immediately notify GMI if it has actual knowledge of any
breach of any such agreement to the extent it relates to the Enterprise Platform
or Documentation.
3.5 INTEROPERATION AND INSTALLATION. IVB will integrate and install the
Enterprise Platform only into systems that are compatible with and fully
interoperate with the Enterprise Platform. GMI will not be responsible for
installation, integration or interoperation of any Composite Product sold by IVB
unless otherwise mutually agreed in writing.
4. PROPRIETARY RIGHTS. The parties acknowledge and agree that GMI shall retain
all of its right, title and interest in and to the Enterprise Platform and
Documentation, and all copies, modifications, extensions and derivative works
thereof, including all Intellectual Property rights therein and thereto, and
that IVB does not acquire any rights or licenses therein or thereto, except
those expressly granted in this Agreement. The parties acknowledge and agree
that IVB shall retain all of its right, title and interest in and to IVB
Product, and all copies, modifications, extensions and derivative works thereof
(by whomever produced), including all Intellectual Property rights therein and
thereto, and that GMI does not acquire any rights or licenses therein or
thereto. Subject to the foregoing, any modifications, enhancements and
derivative works created by IVB as permitted under Section 2.1(b) above shall be
owned by IVB.
5. EXCLUSIVITY. During the Term, IVB will not directly or indirectly distribute,
develop or have developed any product or functionality substantially similar to
all or any part of the run-time environment of the Enterprise Platform, as more
particularly described in the document entitled Enterprise Platform Run-Time
Environment, executed concurrently herewith.
6. ORDER AND DELIVERY.
6.1 ISSUANCE OF PURCHASE ORDERS. During the Term, IVB may issue to GMI
purchase orders that describe the Enterprise Platform licenses that IVB wishes
to purchase from GMI under this Agreement ("Purchase Orders"). Each such
Purchase Order for software to be licensed to an End User shall be issued to GMI
and shall specify the shipment date. Each Purchase Order shall be in a form
substantially similar to the form attached hereto as Exhibit F (Order Form).
Alternatively, for administrative convenience, IVB may use its standard form of
purchase order, but shall ensure that any such purchase order contains all of
the information requested on the Order Form. Notwithstanding the foregoing, GMI
hereby rejects any terms or conditions appearing on any Purchase Order that are
in addition to, or different from, the terms and conditions of this Agreement
("Other Terms"), and the Parties agree that all Other Terms shall be void and of
no force or effect unless expressly agreed to in writing by both parties. The
terms of this Agreement will govern all Purchase Orders.
6.2 ORDER PROCESSING. GMI shall accept all Purchase Orders from IVB that
meet the requirements of this Agreement and confirm receipt and acceptance of
each Purchase Order submitted by IVB within [**] after receipt; provided,
however, that for so long as IVB is delinquent in payment of any amounts due and
payable hereunder, GMI shall be under no obligation to accept such orders in
excess of [**].
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6.3 DELIVERY AND ACCEPTANCE. In the event that GMI accepts a Purchase
Order ("Accepted Order"), GMI shall use [**] efforts to deliver ordered copies
of the Enterprise Platform and related Documentation to IVB, together with any
applicable Keys, within [**] thereafter, which shall be deemed accepted by IVB
upon receipt.
7. SUPPORT.
7.1 BY IVB. IVB will be solely responsible for providing first-level
support to each End User who contracts and pays for such service. First-level
support shall include at a minimum those services detailed in Exhibit G (IVB
Support Services).
7.2 BY GMI. Subject to the terms and conditions of this Agreement,
including the payment of applicable fees pursuant to Section 8, GMI will use
[**] efforts to provide to IVB second-level support and direct support and
training services to IVB for the Enterprise Platform as described in Exhibit I
(GMI Maintenance and Support Services). GMI will be responsible for providing
these services only to IVB, and not directly to the End Users or to IVB
subdistributors, unless the End User or subdistributor contracts directly with
GMI for support services.
7.3 LIMITATIONS. IVB shall elect annually on behalf of each End User to
receive Maintenance and Support Services with respect either to all or none of
the production licenses of the Enterprise Platform granted hereunder. Should IVB
elect with respect to any End User not to receive or not to renew its right to
receive Maintenance and Support Services, and subsequently desire to initiate or
renew such services, IVB shall pay to GMI an amount equal to the unpaid
Maintenance and Support Fees that would have been due for the period during
which Maintenance and Support Services were not received.
8. FEES AND PAYMENT.
8.1 FEES. The fees for each license of the Enterprise Platform and
Documentation granted to IVB for distribution pursuant to Sections 2.1(c)-(e)
shall be as set forth in GMI's standard price list (as it exists from time to
time) ("End User License Fees"), [**], and the annual fee for Maintenance and
Support Services provided hereunder with respect such licenses ("End User
Maintenance and Support Fees") shall be as specified in Exhibit E (GMI Pricing).
GMI agrees to provide IVB at least [**] prior written notice of any increases in
the standard list price. The End User Discounts and End User Maintenance and
Support Fees listed shall be effective as of the date of this Agreement and
shall continue until expiration of the Agreement. End User License Fees and End
User Maintenance and Support Fees are non-refundable.
8.2 FEES FOR INTERNAL USE. The fees for each license of the Enterprise
Platform and Documentation granted to IVB pursuant to Sections 2.1(a) and 2.1(b)
of this Agreement ("IVB License Fees"), and the annual fee for Maintenance and
Support Services provided hereunder ("IVB Maintenance and Support Fees"), will
be as specified in Exhibit E (GMI Pricing). IVB License Fees and IVB Maintenance
and Support Fees are non-refundable. The End User License Fees and the IVB
License Fees shall be collectively referred to in this Agreement as License
Fees. The End User Maintenance and Support Fees and the IVB Maintenance and
Support Fees shall be collectively referred to in this Agreement as the
"Maintenance and Support Fees."
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8.3 INVOICING AND PAYMENT. Fees for software ordered on a given purchase
order will be invoiced by GMI upon receipt of the order. The amount invoiced
shall be due and payable from IVB to GMI within [**] after the date of shipment
to InterVoice-Brite. Payment of the annual Maintenance and Support Fees will be
due quarterly at [**] after the end of each quarter. IVB will pay GMI all other
amounts due under this Agreement within [**] after the date of receipt of the
GMI invoice therefor. All invoices will be expressed in U.S. dollars, and all
payments shall be made in U.S. dollars.
8.4 DISPUTED INVOICE. IVB shall notify GMI in writing if it disputes
payment of any charges and will provide reasonable evidence for such dispute,
and GMI agrees to work with IVB in good faith to resolve such dispute within
[**] of receipt of such notice. [**]. If the parties cannot agree on a
resolution within [**], they shall escalate the dispute as provided in Section
15.8 (Dispute Resolution).
8.5 TAXES. All amounts payable by IVB to GMI under this Agreement are
exclusive of any tax, levy or similar governmental charge (together "Taxes")
that may be assessed by any jurisdiction, whether based on the delivery,
possession or use of the Enterprise Platform, the provision of services, the
execution or performance of this Agreement or otherwise, and including without
limitation all sales, use, excise, import, export and value-added taxes or
levies. IVB will pay, and will defend and indemnify GMI against, all such Taxes,
other than those based on GMI's income, and any related penalties and interest,
or furnish GMI with evidence acceptable to the taxing authority to sustain an
exemption therefrom. If, as a result of any such Taxes, IVB is required to
withhold any amount on any payment to GMI, then the amount of the payment will
be automatically increased to offset such Taxes so that the amount actually
remitted to GMI, net of all Taxes, equals the amount invoiced or otherwise due,
and IVB will promptly furnish GMI with the official receipt for payment of such
Taxes to the appropriate taxing authority.
8.6 RECORDS. At all times during the Term of this Agreement, and for at
least [**], IVB will maintain complete and accurate records with respect to its
activities under this Agreement, including a complete list of all copies of the
Enterprise Platform and Documentation made by IVB and a complete list of End
User names, and addresses, and any other data needed for verification of amounts
to be paid to GMI under this Agreement. All information referred to in this
Section 8.6 maintained by IVB shall be subject to the confidentiality and access
restrictions set forth in Section 8.7, and GMI agrees that it will have no
access to such information unless consent to such access is expressly agreed to
in writing by IVB.
8.7 AUDIT RIGHTS. At GMI's written request not more frequently than
[**], IVB shall furnish GMI with a certificate signed by an officer of IVB
verifying that the Enterprise Platform and Documentation are being used in
accordance with the provisions of this Agreement. In addition, GMI may, not more
than once annually, during normal business hours and upon at least [**] prior
written notice, have an independent audit firm selected by GMI ("Auditor") and
reasonably acceptable to IVB audit IVB's records relating to its compliance,
including payment, under this Agreement in order to verify compliance with the
terms of this Agreement. The audit will be conducted at GMI's expense unless the
audit reveals that IVB has underpaid amounts owed to GMI by [**] or more in any
given quarter, in which case IVB will reimburse GMI for all reasonable costs and
expenses incurred by GMI in connection with such audit. The Auditor is not
authorized to reveal to GMI or any third party any other information concerning
IVB's business or End Users including without limitation, the names of such End
Users. IVB will pay to GMI any amounts shown by any such audit to be owing
within [**] of the receipt of an invoice.
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All information provided to GMI or the independent audit firm pursuant to this
Section 8.7 shall be deemed Confidential Information of IVB.
9. MARKETING AND SALES.
9.1 MARKETING, SALES AND SUPPORT. IVB agrees to use [**] efforts to
market, promote and solicit orders for the Enterprise Platform, whether on a
stand-alone basis or as part of a Composite Product, in a manner that reflects
favorably on the good will and reputation of the parties. IVB, [**], shall
maintain adequate supplies of promotional materials and documentation to promote
and sell the Enterprise Platform in accordance with this Agreement. Except as
authorized by GMI in writing, IVB will not make or publish any representation,
warranty or guarantee on behalf of GMI or its licensors concerning the
Enterprise Platform not set forth in the Documentation. IVB will promptly inform
GMI of any problems or errors in the Enterprise Platform of which it becomes
aware. GMI will use [**] efforts to provide to IVB [**] versions of new releases
of the Enterprise Platform at least [**] prior to the date that such software
becomes generally available and IVB will make [**] efforts to achieve [**] with
GMI's new releases of the Enterprise Platform within [**] after the date such
software becomes generally available.
9.2 BRANDING. Except as set forth in Section 3 (License Restrictions and
Obligations), IVB may use GMI Trademarks to advertise, market, or promote the
Enterprise Platform or the Composite Product in a manner mutually acceptable to
GMI and IVB. IVB's use of the GMI Trademarks is subject to the limitations and
requirements set forth in Section 2.4 (GMI Trademarks).
9.3 PRIVATE LABELING. Notwithstanding any other provision of this
Agreement, GMI hereby acknowledges and agrees that IVB may, in its absolute and
sole discretion, private label or brand the Enterprise Platform licensed under
this Agreement using IVB Trademarks. If IVB determines to private label or brand
the Enterprise Platform or Composite Product, IVB may do so using any IVB
Trademark. Any such IVB Trademark may be displayed on or with the Enterprise
Platforms in any manner chosen by IVB. Except as otherwise agreed to in Section
3.2 (Proprietary Notices), IVB will have no obligation to in any way display or
use any name, xxxx, trade name, brand or trademark of GMI on or with any
products that IVB chooses to private label or brand. Except as otherwise
provided in this Agreement nothing herein will in any way convey to either party
any right, title or interest in any names, marks, trade names, brands and/or
trademarks of the other party. IVB may also, if it so chooses, display any GMI
Trademark in accordance with Section 2.4 (GMI Trademarks) or in accordance with
reasonable instructions conveyed to IVB in writing in accordance with the notice
provisions of this Agreement. As between the parties, all goodwill in any IVB
Trademark shall belong exclusively to IVB.
10. GMI WARRANTIES.
10.1 MEDIA WARRANTY. GMI warrants that, for a period of [**] after the
date of delivery (the "Media Warranty Period"), the CD-ROM or other media on
which the Enterprise Platform is delivered to IVB will be free of any
time-bombs, back door, drop-dead routines, virus, worms, trojan horses and
defects in materials and workmanship under normal use. GMI will, at its expense
and as its sole obligation and IVB's exclusive remedy for any breach of this
warranty, replace any defective media returned by IVB to GMI within the Media
Warranty Period. This warranty does not apply to damage resulting from misuse,
abuse or neglect.
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10.2 PERFORMANCE WARRANTY. GMI warrants that for a period of [**] after
the date of delivery of the initial copy of each release of the Enterprise
Platform, or for a period of [**] after the delivery of each such copy to a End
User, whichever is shorter (the "Product Warranty Period"), the Enterprise
Platform, when used as permitted under this Agreement and in accordance with the
instructions in the Documentation (including use on a computer hardware and
operating system platform supported by GMI), will operate in substantial
accordance with the Documentation. GMI will, [**], use [**] efforts to correct
any [**] in the Enterprise Platform that causes the Enterprise Platform not to
comply with the foregoing warranty, provided the error is reported to GMI by IVB
during the Product Warranty Period. Any such error correction will not extend
the original Product Warranty Period. The foregoing shall constitute GMI's sole
obligation and IVB's exclusive remedy for any breach of the warranty set forth
in this Section 10.2.
10.3 EXCLUSIONS. The warranty set forth in Section 10.2 will apply only
if (a) the Enterprise Platform has been properly installed and used at all times
in accordance with the Documentation; (b) no unauthorized modification or
alteration has been made to the Enterprise Platform by persons other than GMI or
its authorized representatives; and (c) IVB has not requested modifications,
alterations, or additions to the Enterprise Platform that cause it to deviate
from the Documentation.
10.4 DISCLAIMER OF WARRANTIES. THE WARRANTIES SET FORTH IN THIS SECTION
10 ARE THE SOLE AND EXCLUSIVE WARRANTIES REGARDING THE ENTERPRISE PLATFORM AND
DOCUMENTATION AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED,
OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A
PARTICULAR PURPOSE. IVB ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY WARRANTIES OR
REPRESENTATIONS OTHER THAN THE EXPRESS WARRANTIES AND REPRESENTATIONS IN THIS
AGREEMENT, AND THAT NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY, ARE MADE BY OR ON BEHALF OF GMI'S LICENSORS OR SUPPLIERS. GMI DOES
NOT WARRANT THAT USE OF THE ENTERPRISE PLATFORM WILL BE ERROR-FREE OR
UNINTERRUPTED.
10.5 HAZARDOUS APPLICATIONS. THE ENTERPRISE PLATFORM IS NOT INTENDED FOR
USE IN CONNECTION WITH ANY NUCLEAR, AVIATION, MASS TRANSIT, LIFE SUPPORT OR
WEAPONS SYSTEM APPLICATION OR ANY OTHER INHERENTLY HAZARDOUS APPLICATION THAT
COULD RESULT IN DEATH, PERSONAL INJURY, CATASTROPHIC DAMAGE, OR MASS
DESTRUCTION. GMI AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY EXPRESS
OR IMPLIED WARRANTY OF FITNESS FOR SUCH USE. IVB REPRESENTS AND WARRANTS THAT IT
WILL NOT DIRECTLY OR INDIRECTLY USE THE ENTERPRISE PLATFORM TO DEVELOP ANY
APPLICATIONS FOR SUCH PURPOSES.
10.6 APPLICATION DEVELOPMENT AND SYSTEMS INTEGRATION. IVB acknowledges
that improper or substandard application development or systems integration may
affect the usefulness of the Enterprise Platform. IVB agrees that under no
circumstances shall GMI be responsible for inefficiencies, under-performance, or
dissatisfaction with the Enterprise Platform due to factors involved in
application development or systems integration, unless such inefficiencies or
under-performance results from IVB's conformance with the Documentation or with
written instruction from GMI.
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10.7 NO OTHER WARRANTIES. No employee, agent, representative, or
affiliate of GMI has authority to bind GMI to any oral representation or
warranty concerning the Enterprise Platform. Any representation or warranty not
expressly set forth in this Agreement will be unenforceable.
11. INDEMNIFICATION.
11.1 INDEMNITY BY GMI.
(a) INTELLECTUAL PROPERTY INDEMNITY. GMI shall, at its expense,
defend, indemnify and hold harmless IVB in any action brought by a third party
against IVB to the extent that the action is based upon a claim that the
Enterprise Platform [**], or that the GMI Trademarks, when used in accordance
with this Agreement, [**], and shall pay those costs (including attorney's fees)
and damages finally awarded against IVB, or those costs and damages agreed to in
a monetary settlement of such action, provided that IVB (i) promptly notifies
GMI in writing of the action, (ii) gives GMI sole control of the defense thereof
and all related settlement negotiations, and (iii) cooperates with GMI and, at
GMI's request and expense, assists in such defense. Without limiting the
foregoing, IVB will have the right to participate in any such defense at its
cost and subject to GMI's ultimate authority and control.
In the event the Enterprise Platform is held or is believed by GMI
likely to be held to infringe any copyright, patent, or other intellectual
property right of a third party, GMI shall have the option, at its expense, to
(x) procure for IVB the right to continue use of the Enterprise Platform; (y)
modify or replace the Enterprise Platform to make it noninfringing; or, (z) if
neither of the foregoing is commercially practicable, terminate the license for
the Enterprise Platform and refund the license fees paid for such Product less
an amount for use of the Enterprise Platform calculated pro-rata on the basis of
a [**] depreciation schedule.
(b) EXCLUSIONS. Notwithstanding the foregoing, GMI will have no
obligation under this Section 11.1 or otherwise with respect to any infringement
claim based upon or arising out of (i) any unauthorized use, reproduction, or
distribution of the Enterprise Platform by IVB or any of its End Users, (ii) any
use of the Enterprise Platform in combination with other products, equipment,
software or data not furnished by GMI, if the alleged infringement would have
been avoided by use of the Enterprise Platform alone; (iii) any use,
reproduction, or distribution of any release of the Enterprise Platform other
than the most current release, if the alleged infringement would have been
prevented by use of the current release; (iv) any modification or marking of the
Enterprise Platform by any person other than GMI or its authorized contractors,
if the alleged infringement would not have occurred but for such modification or
marking; or (v) IVB's continuation of allegedly infringing activities after
having been supplied with a modification or replacement of the Enterprise
Platform that would have avoided such infringement.
(c) ENTIRE LIABILITY. This Section 11.1 states the entire
liability of GMI, and IVB's sole remedy, with respect to infringement of any
patent, copyright, trade secret or other proprietary right arising under or in
connection with this Agreement.
11.2 INDEMNITY BY IVB.
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(a) Except to the extent GMI is obligated to defend and indemnify
IVB pursuant to Section 11.1, or to the extent GMI is held liable under any
final judgment thereunder, IVB shall, at its expense, defend, indemnify and hold
GMI harmless from and against any action brought by a third party against GMI to
the extent that the action is based upon a claim arising from or related to
[**], and shall pay those costs and damages finally awarded against GMI, or
those costs and damages agreed to in a monetary settlement of such action,
provided that GMI (a) promptly notifies IVB in writing of the action, (b) gives
IVB sole control of the defense thereof and all related settlement negotiations,
and (c) cooperates with IVB and, at IVB's request and expense, assists in such
defense. Without limiting the foregoing, GMI will have the right to participate
in any such defense at its cost and subject to IVB's ultimate authority and
control.
(b) IVB will indemnify, hold harmless and defend GMI at IVB's own
expense against any claim, suit, damages, liabilities, costs and expenses
(including reasonable attorneys fees) to the extent incurred because of any
third party claim that use or license of any modification, enhancement or
derivative work developed by IVB pursuant to Section 2.1(b) hereof infringes
[**]; provided that GMI (a) promptly notifies IVB in writing of the action, (b)
gives IVB sole control of the defense thereof and all related settlement
negotiations, and (c) cooperates with IVB and, at IVB's request and expense,
assists in such defense. Without limiting the foregoing, GMI will have the right
to participate in any such defense at its cost and subject to IVB's ultimate
authority and control.
(c) ENTIRE LIABILITY. This Section 11.2 states the entire
liability of IVB, and GMI's sole remedy, with respect to infringement of any
patent, copyright, trade secret or other proprietary right arising under or in
connection with this Agreement.
12. LIMITATIONS OF LIABILITY. EXCEPT WITH [**], IN NO EVENT WILL EITHER PARTY BE
LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR
INCIDENTAL DAMAGES, INCLUDING LOSS OF PROFITS, LOSS OF USE, BUSINESS
INTERRUPTION, OR LOSS OR CORRUPTION OF DATA, OR FOR THE COST OF PROCUREMENT OF
SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, INCURRED IN CONNECTION WITH OR ARISING
OUT OF THIS AGREEMENT, INCLUDING THE FURNISHING, PERFORMANCE OR USE OF THE
ENTERPRISE PLATFORM OR DOCUMENTATION PROVIDED HEREUNDER, WHETHER ALLEGED AS A
BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE AND STRICT PRODUCT
LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A
BREACH OF SECTION 3 (LICENSE RESTRICTIONS AND OBLIGATIONS) OR SECTION 13
(CONFIDENTIALITY) AND [**], IN NO EVENT WILL EITHER PARTY'S TOTAL CUMULATIVE
LIABILITY UNDER THIS AGREEMENT (OTHER THAN FOR PAYMENT OF LICENSE FEES, SUPPORT
AND MAINTENANCE FEES, AND ANY OTHER AMOUNTS OWED TO GMI UNDER THIS AGREEMENT)
[**]. THE ENTERPRISE PLATFORM IS NOT INTENDED FOR USE IN CONNECTION WITH ANY
NUCLEAR, AVIATION, MASS TRANSIT, LIFE SUPPORT OR WEAPONS SYSTEM APPLICATION OR
ANY OTHER INHERENTLY HAZARDOUS APPLICATION THAT COULD RESULT IN DEATH, PERSONAL
INJURY, CATASTROPHIC DAMAGE, OR MASS DESTRUCTION, AND IVB AGREES THAT GMI WILL
HAVE NO LIABILITY OF ANY KIND AS A RESULT OF ANY SUCH USE OF THE ENTERPRISE
PLATFORM. IVB AGREES THAT IN NO EVENT
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WILL ANY GMI LICENSOR OR SUPPLIER HAVE ANY LIABILITY OF ANY KIND TO IVB UNDER OR
IN CONNECTION WITH THIS AGREEMENT, AND ALL SUCH PARTIES ARE INTENDED
BENEFICIARIES OF THIS SECTION.
The foregoing limitations of liability are independent of any exclusive
remedies for breach of warranty and shall apply even if any remedy available to
the parties hereunder is found to have failed of its essential purpose. IVB
acknowledges that the compensation to GMI provided in this Agreement reflects
the allocation of risks between the parties under this Agreement, including the
foregoing limitations on liability, and that GMI would not enter into this
Agreement in the absence of these limitations on its liability.
13. CONFIDENTIALITY.
13.1 Each party may from time to time during the Term of this Agreement
disclose its Confidential Information to the other party. The disclosing party
will xxxx all Confidential Information in tangible form as "confidential" or
"proprietary" or with a similar legend. The disclosing party will identify all
Confidential Information disclosed orally as confidential at the time of
disclosure. Regardless of whether so marked or identified, however, any
information that the receiving party knew or should have known was considered
confidential or proprietary by the disclosing party, will be considered to be
Confidential Information of the disclosing party for the purposes of this
Agreement.
13.2 Each party agrees that it will not make use of the other party's
Confidential Information, nor will it disseminate or in any way disclose such
information to any person, firm or business, except in each case as authorized
by this Agreement and then only to the extent necessary for performance of this
Agreement. Each party agrees that it will disclose Confidential Information of
the other party only to those of its employees and individual independent
contractors who need to know such information to perform their duties in
connection with the performance of this Agreement and who are bound by an
obligation of confidentiality with respect thereto no less restrictive than the
receiving party's obligation hereunder. Each party agrees that it will protect
all Confidential Information of the other party from unauthorized use, access or
disclosure with the same degree of care as it protects its own confidential
information of like nature, and in no case less than reasonable care.
13.3 The receiving party's obligations with respect to any portion of
the Confidential Information of the disclosing party shall terminate when the
receiving party can show that (i) the Confidential Information was in the public
domain at the time it was communicated to the receiving party by the disclosing
party; (ii) it entered the public domain subsequent to the time it was
communicated to the receiving party by the disclosing party through no fault of
the receiving party; (iii) it was in the receiving party's possession free of
any obligation of confidence at the time it was communicated to the receiving
party by the disclosing party; (iv) it subsequently came into the receiving
party's possession from a third party free of any obligation of confidence to
the disclosing party; or (v) it was developed by employees or agents of the
receiving party independently of and without reference to any Confidential
Information communicated to the receiving party by the disclosing party. In
addition, Section 13.2 will not be construed to prohibit any disclosure to the
extent that it is (x) necessary to establish the rights of either party under
this Agreement; or (y) required by the valid order or subpoena of a court or
other governmental body or otherwise required by law, provided that the party
required to make such disclosure notifies the other party promptly and in
writing and reasonably cooperates with the other party in any effort to contest
or limit the scope of such disclosure.
13.4 Upon termination or expiration of this Agreement, each party shall
promptly return or destroy all Confidential Information disclosed by the other
party, and, upon request of the other party, shall promptly certify in a writing
signed by an officer that all such materials of the requesting party have been
returned or destroyed.
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14. TERM AND TERMINATION.
14.1 TERM. The term of this Agreement will commence on the Effective
Date and will continue for a period of three (3) years thereafter ("Initial
Term") unless earlier terminated in accordance with the provisions hereof. This
Agreement will automatically renew for successive one (1) year periods (each a
"Renewal Term") unless either party notifies the other at least [**] before the
expiration of the then-current term of an intention not to renew (the Initial
Term and Renewal Terms are collectively referred to as the "Term").
14.2 TERMINATION FOR CAUSE. Either party may terminate this Agreement
immediately upon written notice (a) if the other party breaches a material term
or condition of this Agreement and fails to cure such breach within [**]
following written notice from the non-breaching party of the breach; (b) if the
other party breaches the provisions of Section 13 (Confidentiality); (c) if the
other party infringes the Intellectual Property rights of the terminating party;
or (d) if the other ceases to do business. Additionally, GMI may terminate this
Agreement immediately upon written notice to IVB if (x) IVB fails to pay any
portion of the fees payable under this Agreement within [**] after receiving
written notice from GMI that payment is due; or (y) in the reasonable opinion of
GMI, IVB has materially breached Section 3 (License Restrictions and
Obligations).
14.3 EFFECT OF TERMINATION.
(a) WIND DOWN; LICENSE TERMINATION. During the [**] period
beginning upon the effective date of any termination or expiration of this
Agreement for any reason ("Wind Down Period"), all rights and obligations of the
parties under this Agreement, including under the third sentence of Section 9.1
(Marketing, Sales and Support) but excluding the balance of Section 9.1 and the
entirety of Section 5 (Exclusivity), will continue in accordance with, and
subject to, the terms and conditions of this Agreement at the same prices and
[**] as in effect in the last year of this Agreement in order to allow the
parties to wind down their relationship. Upon expiration of the Wind Down
Period, all licenses granted to IVB, and all support obligations of the parties,
under this Agreement will immediately terminate, and all amounts payable to GMI
hereunder shall become immediately due and owing. Except as permitted pursuant
to Section 14.4 (b) (Permitted Uses), upon expiration of the Wind Down Period,
IVB shall discontinue all further use of the GMI Trademarks and all further use,
reproduction and distribution of the Enterprise Platform and Documentation, and
shall immediately return to GMI all copies of the Enterprise Platform and
Documentation, and certify to GMI in a writing, signed by an officer of IVB,
that it has fully complied with this requirement.
(b) PERMITTED USES. IVB may keep a reasonable number of copies of
the Enterprise Platform and Documentation solely for use by IVB in supporting
End Users subject to valid and existing End User Agreements for the duration of
any support obligation of IVB to any such End User.
(c) END USER AGREEMENTS. Each End User to whom the Enterprise
Platform and/or the Composite Product is licensed hereunder shall be permitted
the continued use of such Product for the balance of the term, and in accordance
with the provisions, of the applicable End User Agreement, provided that and so
long as such End User is not in default of its End User Agreement.
(d) SURVIVAL. Sections 1 (Definitions), 4 (Proprietary Rights), 8
(Fees and Payment), 10 (GMI Warranties), 11 (Indemnification), 12 (Limitations
of Liability), 13 (Confidentiality), 14 (Term and Termination),
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and 15 (General Provisions) (other than Section 15.2 (Use of IVB's Name and
Trademarks) and 15.20 (Insurance)) shall survive expiration or termination of
this Agreement for any reason, provided that Section 8.6 (Records) shall survive
only for the period set forth therein and Sections 8.7 (Audits) and 11
(Indemnification) shall survive only for a period of [**] following expiration
or termination of this Agreement.
(e) SOURCE CODE ESCROW AND LICENSE. Promptly after execution of
this Agreement, and in accordance with the Escrow Agreement attached hereto as
Exhibit I (Escrow Agreement) and executed by the parties concurrently with this
Agreement, GMI shall deliver the applicable Deposit Materials (as defined in the
Escrow Agreement) to the identified escrow company to be held in escrow at IVB's
expense. Subject to the terms and conditions of this Agreement and the Escrow
Agreement, GMI grants to IVB upon release of the Deposit Materials a perpetual,
non-exclusive, non-transferable, non-sublicensable license to the Deposit
Materials to allow IVB to maintain the Enterprise Platform, correct errors in
that software, and otherwise provide support to IVB customers of the Enterprise
Platform (but not to otherwise modify or create derivative works of the Deposit
Materials); provided that IVB may exercise this license to the Deposit Materials
with respect to the Enterprise Platform if, only if, and only to the extent that
at any time during the Term of this Agreement GMI terminates the sales and/or
support of the Enterprise Platform or ceases to do business (a "Release
Condition"), and IVB obtains the Deposit Materials pursuant to the terms and
conditions of the Escrow Agreement, and further provided that IVB may exercise
this license to the Deposit Materials if, and only if, it is not then in
material breach of this Agreement.
15. GENERAL PROVISIONS.
15.1 CONFIDENTIALITY OF AGREEMENT. Either party may disclose its
relationship with the other party, but neither may disclose the terms of this
Agreement to anyone other that its attorneys, accountants and other advisors,
who in each case agree to maintain the confidentiality of the terms of this
Agreement, or subject to notice and execution of a non-disclosure agreement
between the disclosing party and a third party in connection with a financing or
transfer of all or substantially all of its business or assets, whether by sale,
merger or other combination, except pursuant to a mutually agreeable press
release which shall be issued by the parties promptly following execution
hereof, or as otherwise approved by the other party in writing or required by
law.
15.2 USE OF IVB'S NAME AND TRADEMARKS. IVB grants to GMI the right to
disclose on its web site and in its advertising, marketing and public relations
materials that IVB is a licensee of the Enterprise Platform and to include in
any such disclosure information about IVB, subject in each case to the prior
written approval of IVB, which approval shall not be unreasonably withheld or
delayed. Failure to obtain IVB's prior written consent of press releases shall
be considered a material breach by GMI hereunder. Solely for the purpose of the
foregoing, IVB grants to GMI the worldwide, non-exclusive, non-transferable
(except as permitted under Section 15.13 (Assignment)), non-sublicensable and
limited license to use and reproduce IVB Trademarks on GMI's web site and in its
advertising, marketing and public relations materials. GMI agrees to state in
appropriate places on all materials using IVB Trademarks that such trademarks
are the trademarks of IVB, and to include the symbol (TM) or (R) as appropriate.
GMI agrees not to take any action inconsistent with IVB's ownership of IVB
Trademarks and further agrees not to adopt, use or attempt to register any
trademarks or trade names that are confusingly similar to IVB Trademarks or in
such a way as to create combination marks with IVB Trademarks. Any reproduction
of a IVB Trademark shall be a true reproduction, and samples of all materials
that use IVB Trademarks shall be provided to IVB upon request. At IVB's request,
GMI will modify or discontinue, in whole or in part, any use of
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IVB Trademarks if, in IVB's sole discretion, GMI's use of IVB Trademarks does
not comply with IVB's then-current trademark usage policy and guidelines.
15.3 NON-SOLICITATION. IVB and GMI agree that during the period
beginning on the Effective Date and ending [**] after termination or expiration
of this Agreement, neither party shall actively solicit any employee(s) of the
other party for employment or consulting services or otherwise encourage any
such employee(s) to leave the employment of the other party. The parties are
agreeing to this non-solicitation provision with the understanding that each
party has invested considerable time and money in training its employees and has
a strong interest in retaining its employees. Further, each party acknowledges
and agrees that the employees of the other have knowledge of information
confidential and proprietary information to the other that this provision is
intended to protect. The restriction set forth in this Section 15.3 shall not
apply to the terminating party in the event that this Agreement is terminated
pursuant to Section 14.2 (Termination for Cause).
15.4 NONEXCLUSIVE AGREEMENT. Except as otherwise set forth in Section 5
(Exclusivity), each party acknowledges that this Agreement does not create an
exclusive agreement between the parties. Either party may design, develop,
manufacture, acquire or market competitive products or services.
15.5 AUTHORITY. Each party represents that it has full power to enter
into and perform this Agreement, and the person signing this Agreement on such
party's behalf has been duly authorized and empowered to enter in this
Agreement.
15.6 NO AGENCY. Each party will in all matters relating to this
Agreement act as an independent contractor, and neither will have the power to
obligate or bind the other party in any manner whatsoever. Neither execution nor
performance of this Agreement shall be construed to have established any agency,
joint venture or partnership.
15.7 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the United States of America and of the State of California without
giving effect to any choice of law principles that would require the application
of the laws of a different state. The parties agree that the United Nations
Convention on Contracts for the International Sale of Goods is specifically
excluded from application to this Agreement.
15.8 DISPUTE RESOLUTION.
(a) The parties will attempt in good faith to informally resolve
any dispute arising out of or relating to this Agreement according to the
following procedure. Upon written request of a party identifying a dispute, each
party will designate a management representative with the responsibility and
authority to resolve the dispute. The designated management representatives will
initially meet within fifteen (15) days after the request is received from the
requesting party. At this first meeting, the designated management
representatives will identify the scope of the dispute and the information
needed to discuss and attempt to resolve the dispute. These management
representatives will then gather relevant information regarding the dispute and
will meet to discuss the issues and negotiate in good faith to resolve the
dispute. Such second meeting will occur within fifteen (15) days after the
initial meeting. Nothing in this Section 15.8 will restrict the right of either
party to apply to a court of competent jurisdiction for injunctive relief or
damages at any time. However, the right of either party to file a lawsuit does
not abrogate each party's obligations under this Section 15.8.
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(b) Should any dispute, claim or controversy remain unresolved at
the end of the time periods set out above, then all remaining matters shall be
referred to an office of J.A.M.S located in or near the city of the party that
did not initiate the dispute for mediation, that is, an informal, non-binding
conference or conferences between the parties in which a mediator for the
J.A.M.S panel will seek to guide the parties to a resolution of the dispute
between them.
(c) No provision of, or the exercise of any rights under this
Section 15.8 shall limit the right of any party to obtain provisional or
ancillary remedies such as injunctive relief or the appointment of a receiver
from any court having jurisdiction before, during or after the pendency of any
mediation. The institution and maintenance of an action for pursuit of
provisional or ancillary remedies shall not constitute a waiver of the right of
any party, including the plaintiff, to submit the controversy or claim to
mediation.
15.9 REMEDIES. The parties acknowledge and agree that any actual or
threatened breach of this Agreement will constitute irreparable harm for which
monetary damages would be an inadequate remedy, and that in such event the
non-breaching party shall be entitled to obtain immediate injunctive relief to
protect its rights under this Agreement. If IVB continues to use or sublicense
the Enterprise Platform or Documentation after its right to do so has terminated
or expired, GMI will be entitled to immediate injunctive relief without the
requirement of posting bond, including an order directing that any copies of the
Enterprise Platform or Documentation, or any portion thereof, that IVB attempts
to import into any country or territory be seized, impounded and destroyed by
customs officials. If any legal action is brought to enforce this Agreement, the
prevailing party will be entitled to recover its reasonable attorneys' fees and
costs.
15.10 NOTICES. All notices, consents, approvals and reports permitted or
required under this Agreement or required by law shall be in writing and must be
either (a) delivered in person, (b) sent by first class registered or certified
mail, postage prepaid, return receipt requested, or (c) sent by major commercial
overnight courier, in each case properly posted to the other party at the
address set forth above. Either party may change such address by notice to the
other party given in accordance with this Section 15.10. All such notices,
consents, approvals and reports shall be deemed given at the time of actual
delivery in person, three (3) business days after deposit in the mail as set
forth above, or one (1) day after delivery to an overnight air courier service,
as applicable. Notices shall be sent to the attention of the other party's
signatory of this Agreement, with a copy to its General Counsel.
15.11 COMPLIANCE WITH LAWS.
(a) LOCAL LAWS. IVB and GMI shall comply with all applicable
laws, regulations and other legal requirements of, and shall at its sole expense
obtain and maintain the governmental authorizations, registrations and filings
required by, any jurisdiction in connection with the execution or performance of
this Agreement.
(b) UNLAWFUL PAYMENTS. Neither IVB nor GMI will use any payment
or other benefit derived from this Agreement to offer, promise or pay any money,
gift or other thing of value to any person for the purpose of influencing
official actions or decisions with respect to this Agreement, while knowing or
having reason to know that any portion of such money, gift or thing will,
directly or indirectly, be given, offered or promised to (i) an employee,
officer, or other person acting in an official capacity for any government or
its instrumentalities, or (ii) any political party, party official or candidate
for political office.
(c) EXPORT CONTROLS. IVB hereby acknowledges and agrees that it
will not export or re-export the Enterprise Platform, the Composite Product or
the Documentation supplied by GMI, or any part thereof,
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directly or through third parties, in contravention of any export laws,
regulations or decrees of the United States government or any agency thereof.
15.12 U.S. GOVERNMENT END USERS. The Enterprise Platform provided under
this Agreement is commercial computer software developed exclusively at private
expense, and in all respects is proprietary data belonging to GMI and/or its
licensors. The Enterprise Platform and Documentation are "commercial items" as
that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer
software" and "commercial computer software documentation" as such terms are
used in 48 C.F.R. 12.212 and 227.7202. Consistent with 48 C.F.R. 12.212 and 48
C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the
Enterprise Platform and Documentation only as commercial items and with only
those rights as are granted to all other End Users pursuant to the terms and
conditions of this Agreement. Unpublished rights are reserved under the
copyrights laws of the United States.
15.13 ASSIGNMENT. Neither party shall assign any rights or obligations,
nor delegate any duties, arising under this Agreement without the prior written
consent of the other party except pursuant to a transfer of all or substantially
all of a party's business and assets, whether by merger, sale of assets, sale of
stock, or otherwise. Any attempted assignment or transfer in violation of the
foregoing will be null and void and of no effect. Subject to the above
restriction on assignment, this Agreement shall inure to the benefit of and bind
the successors and assigns of the parties.
15.14 WAIVER. Any waiver of the provisions of this Agreement or of a
party's rights or remedies under this Agreement must be in writing to be
effective. No delay or omission or failure to enforce any provision or to
exercise any right, remedy, power or privilege provided for under this Agreement
will be deemed to be a waiver thereof and any single or partial exercise of any
such right or remedy, power or privilege will not preclude any later exercise
thereof.
15.15 SEVERABILITY. If any term, condition, or provision in this
Agreement is found by a court of competent jurisdiction to be invalid, unlawful
or unenforceable to any extent, the parties shall endeavor in good faith to
replace such provision with a provision that will preserve, as far as possible,
the purposes intended by the parties under the provision held invalid, unlawful
or unenforceable. If the parties fail to agree on such an amendment, the
invalid, unlawful or unenforceable provision shall be changed and interpreted so
as to best accomplish the objectives of such provision within the limits of
applicable law.
15.16 FORCE MAJEURE. A failure or delay in performance of any duties or
obligations of either party (except the payment of money owed) will not be
considered a breach of this Agreement if such failure or delay is caused by an
event beyond the reasonable control of such party, provided that such party must
use reasonable efforts under the circumstances to notify the other party, and to
minimize the duration and consequences, of any such failure or delay.
15.17 HEADINGS. The section headings appearing in this Agreement are
inserted only as a matter of convenience and in no way define, limit, construe
or describe the scope or extent of such section, or in any way affect this
Agreement.
15.18 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be considered an original, but all of which
together will constitute one and the same instrument. To expedite order
processing, the parties may treat faxed counterparts of this Agreement
(including signed counterparts) as originals; nevertheless, either party may
require the other to exchange original signed documents.
-18-
15.19 ENTIRE AGREEMENT. This Agreement and the exhibits hereto, together
with any Accepted Orders, and the InterVoice-Brite OEM Agreement and the Joint
Development and Co-Marketing Agreement between the parties, both of even date
herewith, constitute the entire agreement between the parties with respect to
the strategic relationship between them. This Agreement supersedes, and the
terms of this Agreement govern, any prior or collateral proposals or agreements
with respect to the subject matter hereof. This Agreement may only be modified
by a written agreement signed by authorized representatives of each party.
15.20 INSURANCE. IVB shall at all times during the Term of this
Agreement, at its own cost and expense, carry and maintain comprehensive general
liability, errors and omissions, automobile liability and workers compensation
insurance coverage in amounts reasonably acceptable to GMI. IVB shall forward to
GMI certificates of such insurance issued by the insuring carrier or carriers.
The certificate(s) shall provide that [**] prior written notice of cancellation
of, or material change or exclusions in the policy to which certificate(s)
relate shall be given to GMI. IVB shall not commence any work hereunder until
the obligations of IVB with respect to insurance have been fulfilled. The
fulfillment of such obligations, however, shall not otherwise relieve IVB of any
liability assumed hereunder or in any way modify IVB's obligations to indemnify
GMI. IVB shall require its subcontractors who may enter upon GMI's premises to
maintain insurance as described above.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their respective authorized representatives.
GENERAL MAGIC, INC. INTERVOICE-BRITE, INC.
/s/ XX Xxxxxx /s/ Xxx-Xxx X. Xxxxxx
------------------------------------- -------------------------------------
Authorized Signature Authorized Signature
Xxxxxx Xxxxxx Xxx-Xxx X. Xxxxxx
------------------------------------- -------------------------------------
Printed Name Printed Name
President/CEO CFO
------------------------------------- -------------------------------------
Title Title
3/28/02 3/28/02
------------------------------------- -------------------------------------
Date Date
--------
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
-19-
EXHIBIT A
IVB PRODUCT
IVB OneVoice VoiceXML Gateway, and related products and services
-20-
EXHIBIT B
IVB TRADEMARKS
INTERVOICE-BRITE(TM)
ONEVOICE(R) MEDIA GATEWAY
INVISION(R) STUDIO
INTERSOFT(R)
-21-
EXHIBIT C
GMI TRADEMARKS
General Magic(R)
magicTalk(R)
magicTalk(R) Enterprise Platform
magicTalk Logo
General Magic Logo
-22-
EXHIBIT D
MINIMUM TERMS
1. The End User may not, directly or indirectly (a) modify, decompile,
disassemble, reverse engineer, or derive the Source Code for the EP
Product, in whole or in part; (b) merge, integrate or bundle the EP
Product with hardware, software or firmware other than IVB Product; (c)
sell, lease, rent, loan, assign, transfer, license or sublicense the EP
Product or the Composite Product; or (d) disclose directly or indirectly
the results of any benchmark or other performance test run on the EP
Product to any third party.
2. End User acknowledges and agrees that GMI, its licensors and suppliers
own all right, title and interest in and to the EP Product and
Documentation, and all copies, modifications, extensions and derivative
works thereof (by whomever produced), including all Intellectual
Property Rights therein and thereto.
3. IVB expressly disclaims on behalf of GMI, its licensors and suppliers
any and all warranties, express, implied or statutory, including without
limitation any warranties of non-infringement, merchantability or
fitness for a particular purpose.
4. End User agrees that neither GMI nor its licensors and suppliers shall
have any liability of any kind to End User in connection with use of the
EP Product or Documentation or otherwise arising under the End User
Agreement.
5. In no event shall GMI, its licensors or suppliers be liable for any
special, indirect, incidental, exemplary or consequential damages,
including, but not limited to, loss of revenues and loss of profits,
even if GMI, its licensors or suppliers have been advised of the
possibility of such damages.
6. In agreements for use of the EP Product, Composite Product and
Documentation outside of the United States of American: The End User
acknowledges and agrees that it will not export or re-export the EP
Product, the Composite Product or the Documentation, or any part
thereof, directly or through third parties, in contravention of any
export laws, regulations or decrees of the United States government or
any agency thereof, or of any other governmental authority or
instrumentality to which it may be subject.
7. For U.S. Government End Users: The EP Product and Documentation are
"commercial items" as that term is defined in 48 C.F.R. 2.101,
consisting of "commercial computer software" and "commercial computer
software documentation" as such terms are used in 48 C.F.R. 12.212 and
227.7202. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1
through 227.7202-4, all U.S. Government end users acquire the EP Product
and Documentation only as commercial items and with only those rights as
are granted to all other End Users pursuant to the terms and conditions
of this Agreement. Unpublished rights are reserved under the copyrights
laws of the United States.
-23-
EXHIBIT E
GMI PRICING
ENTERPRISE PLATFORM [**] SCHEDULE
[**] the Enterprise Platform and any Upgrades through 2/28/03
[**] the Enterprise Platform and any Upgrades from 3/1/03 through the
termination or expiration of the Agreement
Orders to be placed on or before receipt of customer purchase order.
ENTERPRISE PLATFORM EVALUATION LICENSES
Evaluation licenses shall be [**].
ANNUAL END USER MAINTENANCE AND SUPPORT FEE SCHEDULE
[**] software license fees paid with respect to each Accepted Order.
IVB LICENSE FEES FOR INTERNAL USE LICENSES
[**] per Seat or Connection (as defined in the Order Form), as applicable.
ANNUAL IVB MAINTENANCE AND SUPPORT FEE SCHEDULE
[**] of software license fees paid with respect to each Accepted Order.
--------
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
-24-
EXHIBIT F
GENERAL MAGIC ORDER FORM
-----------------------------------------------------------------------------------------------------------
(1) CUSTOMER INFORMATION
-----------------------------------------------------------------------------------------------------------
Sold and Billed To: Ship To:*
---------------------------------------------------- ------------------------------------------------------
Address: Address:
---------------------------------------------------- ------------------------------------------------------
City: State: City: State:
---------------------------------------------------- ------------------------------------------------------
Country: Zip Code: Country: Zip Code:
---------------------------------------------------- ------------------------------------------------------
Contact: Contact:
---------------------------------------------------- ------------------------------------------------------
Phone: Phone:
---------------------------------------------------- ------------------------------------------------------
Fax: Fax:
---------------------------------------------------- ------------------------------------------------------
Email: Email:
---------------------------------------------------- ------------------------------------------------------
---------------------------------------------------- ------------------------------------------------------
* If different from Billing Address
---------------------------------------------------- ------------------------------------------------------
---------------------------- -------- ------------- -------- ------------------------------ ---------------
magicTALK(R)ENTERPRISE SEATS CONNECTIONS CPUs (2) Site(s) LICENSE FEE
PLATFORM 1.1 LICENSES
---------------------------- -------- ------------- -------- ------------------------------ ---------------
IVB licenses pursuant to
Sections 2.1 (a) and (b)
of the Agreement
---------------------------- -------- ------------- -------- ------------------------------ ---------------
Evaluation
---------------------------- -------- ------------- -------- ------------------------------ ---------------
Development
---------------------------- -------- ------------- -------- ------------------------------ ---------------
Staging
---------------------------- -------- ------------- -------- ------------------------------ ---------------
Deployment
---------------------------- -------- ------------- -------- ------------------------------ ---------------
---------------------------- -------- ------------- -------- ------------------------------ ---------------
---------------------------- -------- ------------- -------- ------------------------------ ---------------
TOTAL LICENSE FEES:
---------------------------- -------- ------------- -------- ------------------------------ ---------------
---------------------------------------------- ---------------------- --------------------- ---------------
GMI SERVICES ANNUAL PERIOD FURTHER DESCRIPTION SERVICE FEES
---------------------------------------------- ---------------------- --------------------- ---------------
Maintenance and Support Services
---------------------------------------------- ---------------------- --------------------- ---------------
Training
---------------------------------------------- ---------------------- --------------------- ---------------
TOTAL SERVICE FEES:
---------------------------------------------- ---------------------- --------------------- ---------------
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---------------------- --------------
II. SUBTOTAL
---------------------- --------------
State Sales Tax
---------------------- --------------
---------------------- --------------
ADDITIONAL DEFINITIONS. Capitalized terms used but not defined in this Order
Form shall have the meaning given them in the main body of the Agreement. For
purposes of the Agreement and this Order Form the following additional terms
have the meanings indicated below:
"CONNECTIONS" means the number of connections that may be simultaneously
maintained with the Enterprise Platform and for which GMI has provided Keys
in accordance with the Agreement.
"CPUs" means the number of single microprocessors on which the Enterprise
Platform may be operated and for which GMI has provided Keys in accordance
with the Agreement.
"DEVELOPMENT LICENSE" means use of the Enterprise Platform by the Seats
designated on the Order Form for the purpose of designing, developing and
testing applications for Composite Products.
"DEPLOYMENT LICENSE" means use of the Enterprise Platform on the CPUs
designated on the Order Form for the purpose of testing for deployment and
deploying applications for Composite Products.
"SEATS" means the number of employees and individual independent contractors
of a licensee who may concurrently use the Enterprise Platform.
"STAGING LICENSE" means use of the Enterprise Platform on the CPUs
designated on the Order Form for the purpose of testing for deployment
applications for Composite Products.
FURTHER LICENSE RESTRICTIONS. Each license granted pursuant to this Order Form
shall be subject to the limitations set forth in this Order Form. In no event
shall use of the Software exceed the number of Connections, CPUs or Seats
designated above, unless IVB has placed and GMI has accepted an order for such
additional Connections, CPUs or Seats, all in accordance with the Agreement.
This order is placed subject to the terms and conditions of the OEM Agreement by
and between GMI and IVB with the Effective Date of March ____, 2002.
-26-
INTER-VOICEBRITE, INC. ACCEPTED BY GENERAL MAGIC, INC.:
Signature: Signature:
-------------------------- --------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
Date: Date:
------------------------------- -------------------------------
-27-
EXHIBIT G
IVB SUPPORT SERVICES
1. IVB shall offer, at a minimum, the following first level support services to
each End User who sublicenses the Enterprise Platform from IVB, and shall
provide such services to each End User who contracts and pays for such
services:
a. direct response to all inquiries by designated End User personnel with
respect to installation, operation, performance, features or
functionality of the Enterprise Platform;
b. direct response to all inquiries by designated End User personnel with
respect to errors or deficiencies in the performance of the Enterprise
Platform;
c. diagnosis and resolution of each such reported error or deficiency by
reference to the Documentation, to GMI's technical support information
database or to other materials made available by GMI to IVB for such
purposes; and
d. communication of any work-around or correction of the error or
deficiency to the designated personnel of the End User.
2. If, after using [**] efforts, IVB is unable to diagnose or resolve a
reported error or deficiency in the performance of the Enterprise Platform,
IVB shall (i) immediately report the matter to GMI, (ii) deliver to GMI the
information and data reasonably necessary to enable GMI to reproduce and
correct the error or deficiency, and (iii) deliver to the End User any
resolution provided by GMI in response.
3. IVB shall also offer the following services to End Users who receive the
Enterprise Platform from IVB, and shall provide such services to each End
User who contracts and pays for such services:
a. regular training for designated End User personnel on the features,
functionality, installation and operation of the Enterprise Platform;
and
b. prompt distribution to the End User of all Updates that GMI may make
available to IVB for distribution during the Term of this Agreement,
provided, however, that the End User must be current in its payment of
all applicable Maintenance and Support Fees for the period during which
the Update is released.
--------
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
-28-
EXHIBIT H
GMI MAINTENANCE AND SUPPORT SERVICES
Commencing upon IVB's receipt of the Enterprise Platform, and for so long as IVB
is current in the payment of all Maintenance and Support Fees, GMI will provide
to IVB the support services described in this Exhibit ("Maintenance and Support
Services").
1. TELEPHONE AND ELECTRONIC SUPPORT. GMI will provide its standard telephone
and electronic support services to IVB's Designated Support Contacts,
currently from 8:00 a.m. to 5:00 p.m. Pacific Time, site specific times 8:30
AM to 5:30 PM, Monday through Friday, excluding regularly scheduled GMI
holidays. Telephone and electronic support will consist of the following:
a. Clarification of functions and features of the Enterprise Platform,
guidance in the installation, operation and performance of the
Enterprise Platform, and clarification of the Documentation; and
b. Assistance in diagnosing and resolving suspected Errors in the
Enterprise Platform. "Error" means a reproducible defect or deficiency
in the Enterprise Platform that causes the Enterprise Platform not to
operate [**] and that, despite IVB's commercially reasonable efforts,
cannot be resolved by reference to the Documentation, to GMI's technical
support information database or to other materials made available by GMI
to IVB for such purposes.
2. RESOLUTION OF ERRORS. GMI will use [**] efforts to acknowledge IVB's report
of an Error within [**], and to initially respond to the report within [**]
with a course of action to verify and resolve the reported Error. GMI will
prioritize reported Errors in consultation with IVB, and will use
commercially reasonable efforts to provide a prompt resolution to each
reported Error. Resolution may include: (a) a determination that the Error
is not reproducible; (b) a determination that the Error is an enhancement
request; (c) guidance on the installation, function and operation of the
Enterprise Platform; (d) the creation of a workaround for an Error in the
Enterprise Platform; or (e) the creation of modifications to the Enterprise
Platform that enable the temporary or permanent correction of an Error in
the Enterprise Platform. GMI will provide IVB reasonable access to its Error
tracking database so that IVB may determine the status of GMI's progress
with respect to Errors reported by IVB.
3. PLACE OF PERFORMANCE. The Maintenance and Support Services provided by GMI
hereunder shall be performed remotely from GMI's facilities in the United
States. Upon IVB's request, and subject to availability, GMI may elect to
furnish qualified personnel for on-site assistance to IVB or End Users to
resolve Errors in the Enterprise Platform. In such event, IVB shall pay GMI
at its [**] for the time of required personnel and [**] GMI for reasonable
[**] of such personnel incurred in rendering the requested assistance.
4. SERVICE LIMITATIONS. GMI will have no obligation with respect to any
Error arising out of use of the Enterprise Platform other than in accordance
with this Agreement. In addition, GMI will have no obligation with respect
to any Error not attributable to GMI, including but not limited to an Error
resulting from or related to any of the following causes: (a) installation
or use of the Enterprise Platform other than in accordance with the
Documentation; (b) any alteration of, modification of or addition to, or
attempted alteration of, modification of or addition to the Enterprise
Platform undertaken by other than GMI or its
--------
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
-29-
authorized representatives; (c) accident, neglect, failure or fluctuation of
electric power, air conditioning or humidity control, or unusual physical,
electrical or electromagnetic stress; (d) combination, merger or use of the
Enterprise Platform with any hardware, software or telecommunication
interfaces not supplied or identified as compatible by GMI, or not meeting
or maintained in accordance with GMI's specifications; (e) maintenance or
repair of the Enterprise Platform not performed by or at the direction of
GMI; (f) failure to implement within three (3) months all Updates and Error
corrections issued by GMI; or (g) use of any release of the Enterprise
Platform other than the current release or the one immediately preceding it.
Any services performed by GMI at its sole discretion in connection with
Errors described in the preceding sentence or otherwise outside the scope of
the Agreement will be billed to IVB at GMI's [**].
5. RESPONSIBILITIES OF IVB. GMI's provision of Maintenance and Support
Services is subject to the following:
a. IVB must select at least [**] and not more than [**] qualified IVB
employees as Designated Support Contacts, who shall be identified below.
In order to avoid interruptions in Maintenance and Support Services, IVB
must notify GMI whenever the duties of a Designated Support Contact are
transferred to another IVB employee.
b. IVB will properly train its Dedicated Support Contact(s) and all other
of its personnel responsible for rendering support services to End Users
in the installation, operation, support and maintenance of the
Enterprise Platform.
c. IVB will document and promptly report all Errors in the Enterprise
Platform to GMI. Upon GMI's request, IVB shall obtain and provide to GMI
system information, transaction data and reproducible test cases as
necessary to determine the nature of the Error and to isolate any
defects in the Enterprise Platform.
d. IVB will provide GMI reasonable access to the Dedicated Support
Contact(s) and such of IVB's personnel and equipment as may be necessary
to verify, analyze and resolve any unresolved Error reported by IVB.
This access must include the ability to remotely access the equipment on
which the Enterprise Platform is operating and to obtain the same access
to the equipment as those of IVB's employees having the highest
privilege or clearance level. GMI will inform IVB of the specifications
of the equipment and associated software needed for such remote access,
and IVB will be responsible for the costs and use of said equipment at
IVB's site.
e. IVB will supply first level support to End Users as required pursuant to
Section 7.1 of the Agreement, and will not refer any End User directly
to GMI for support services, except where the End User has contracted
directly with GMI for such services.
f. IVB will utilize any tools provided by GMI to report, track and resolve
Errors. These tools may include an e-mail account and an online Error
tracking database accessible through the GMI website.
6. UPDATES AND UPGRADES. For so long as IVB is entitled to Maintenance and
Support Services, GMI will furnish to IVB all Updates and related
Documentation, [**] when and as available. Upgrades shall be made available
to IVB for internal use [**] and will be made available for distribution
under this Agreement at GMI's [**] reflected in Exhibit F (GMI Pricing).
7. TRAINING. GMI shall provide up to [**] IVB employees initial training in the
installation, support, maintenance and operation of the Enterprise Platform.
At IVB's request, GMI may in its discretion provide training for additional
IVB employees at a rate to be agreed upon by the parties, and subject to
prior enrollment commitments. If GMI issues an Update or Upgrade of the
Enterprise Platform for which it
--------
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
-30-
provides additional training, GMI shall notify IVB and upon IVB's request
enroll up to [**] IVB employees in the next available training course, at no
charge, subject to prior enrollment commitments. IVB will pay all travel and
living expenses incurred by its personnel in obtaining training provided by
GMI hereunder.
8. ADDITIONAL GMI SERVICES. IVB shall have access to GMI technical support
databases regarding installation, function and operation of the Enterprise
Platform as such databases are made commercially available. IVB shall also
have access to such other GMI tools relating to the installation,
configuration, operation, maintenance and support of the Enterprise Platform
as may become commercially available during the Term of the Agreement, on
such terms and conditions as are provided in the Agreement.
9. TERMINATION OF SUPPORT. In the event that GMI terminates support for a
specific version or release of the Enterprise Platform, GMI's support
obligations to IVB with respect to that product shall terminate at the same
time such support is terminated for GMI's direct customers and subject to
the same notice period, provided that such notice period shall not be less
than [**].
10. OWNERSHIP. All Updates, Upgrades, Error corrections and any other changes,
improvements, extensions or other modifications or additions to the
Enterprise Platform provided hereunder shall be deemed a part of the
Enterprise Platform, and their use will be governed by and subject to all
terms and conditions of the Agreement.
DESIGNATED SUPPORT CONTACTS (UP TO FIVE)
NAME:
-------------------------
Address
-----------------------
--------------------------------
Phone No.
----------------------
Fax No.
------------------------
Email:
-------------------------
NAME:
-------------------------
Address
-----------------------
--------------------------------
Phone No.
----------------------
Fax No.
------------------------
--------
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
-31-
Email:
-------------------------
NAME:
-------------------------
Address
-----------------------
--------------------------------
Phone No.
----------------------
Fax No.
------------------------
Email:
-------------------------
NAME:
-------------------------
Address
-----------------------
--------------------------------
Phone No.
----------------------
Fax No.
------------------------
Email:
-------------------------
NAME:
-------------------------
Address
-----------------------
--------------------------------
Phone No.
----------------------
Fax No.
------------------------
Email:
-------------------------
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EXHIBIT I
ESCROW AGREEMENT
This ESCROW AGREEMENT is entered into this __ day of __________, 2002, by and
among General Magic, Inc., a corporation organized and existing under the laws
of the State of Delaware, and having its principal offices at 000 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 (hereinafter "GMI"); InterVoice-Brite, Inc.,
a corporation organized and existing under the laws of the State of Texas and
having its principal offices at 00000 Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000
(hereinafter "IVB"); and Brambles NSD, Inc. (doing business as Recall Total
Information Management) , a corporation organized and existing under the laws of
the State of Delaware and having its principal offices at 0000 Xxxxxx Xxxxx Xxx
Xxxx 00000 (hereinafter the "Escrow Agent").
WITNESSETH
WHEREAS, GMI and IVB entered into an OEM Agreement effective March ___, 2002,
(the "GMI OEM Agreement"). A copy of the GMI OEM Agreement is attached hereto as
Exhibit A and incorporated herein by reference. Pursuant to the GMI OEM
Agreement, GMI has licensed to IVB the magicTalk Enterprise Platform software
("Enterprise Platform") on the terms and conditions set forth in the GMI OEM
Agreement; and
WHEREAS, the GMI OEM Agreement provides that GMI and IVB will enter into an
escrow agreement providing for deposit by GMI of the Deposit Materials, as
defined below, with an escrow agent, and for release of those Deposit Materials
to IVB upon the occurrence of certain events specified in Section 14.3(e)
(Source Code Excrow and License) of the GMI OEM Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein and for other
valuable consideration, the adequacy and receipt of which are hereby
acknowledged, GMI, IVB and the Escrow Agent hereby agree as follows:
1. APPOINTMENT. IVB and GMI hereby appoint Escrow Agent as the escrow
holder under this Escrow Agreement, and the Escrow Agent accepts such
appointment on the terms and conditions set forth in this Escrow
Agreement.
2. DEPOSIT. Promptly following execution of this Escrow Agreement, GMI
shall deliver to the Escrow Agent TWO (2) copies of the Deposit
Materials. "Deposit Materials" means a full source language statement of
the program or programs comprising the Enterprise Platform, and all
existing program maintenance documentation, including schematics for
such software, but excluding that for software provided to GMI by third
party vendors. GMI shall promptly supplement the Deposit Materials with
the Deposit Materials all Updates (as defined in the GMI OEM Agreement)
as released.
3. RECEIPT BY ESCROW AGENT. The Escrow Agent shall acknowledge receipt of
each deposit of DEPOSIT Materials received from GMI by sending written
acknowledgement thereof to both IVB and GMI.
4. RECORDS. The Escrow Agent will keep complete written records of the
activities undertaken and the materials prepared and delivered to the
Escrow Agent pursuant to this Escrow Agreement. GMI and IVB will each be
entitled at reasonable times during normal business hours, and upon
reasonable notice to the Escrow Agent, to inspect the records of the
Escrow Agent with respect to the Deposit Materials.
5. STORAGE AND SECURITY.
(a) The Escrow Agent shall act as custodian of the Deposit Materials
until the escrow is terminated pursuant to Section 15 of this
Escrow Agreement. The Escrow Agent shall establish, under its
control, a secure receptacle for the purpose of storing the
Deposit Materials; provided, however, that the Escrow Agent's
obligation for safekeeping shall be limited to providing the same
degree of care for the Deposit Materials as it maintains for its
valuable documents and those of its customers lodged in the same
location with appropriate atmospheric or other safeguards.
-33-
Notwithstanding the foregoing, the parties acknowledge and agree
that the Escrow Agent shall not be responsible for any loss or
damage to any of the Deposit Materials due to changes in such
atmospheric conditions (including, but not limited to, failure of
the air conditioning system), unless such changes are proximately
caused by the gross negligence or malfeasance of the Escrow
Agent.
(b) The Deposit Materials deposited with the Escrow Agent by GMI
shall remain the exclusive property of GMI.
(c) Except as otherwise provided in this Escrow Agreement, the Escrow
Agent agrees that: (i) it shall not divulge, disclose or
otherwise make available to any party other than GMI, or make any
use whatsoever of, the Deposit Materials; (ii) it shall not
permit any person access to the Deposit Materials, except such
authorized representatives of the Escrow Agent as may require
access to the Deposit Materials to perform the functions of the
Escrow Agent under this Escrow Agreement; (iii) access to the
Deposit Materials by GMI shall be granted by Escrow Agent only to
those persons duly authorized in writing by a competent officer
of GMI; and (iv) access to the Escrow Material shall not be
granted without compliance with all security and identification
procedures instituted by the Escrow Agent.
(d) The Escrow Agent shall have no obligation or responsibility to
verify or determine that the Deposit Materials deposited with
Escrow Agent by GMI do in fact consist of those items which GMI
is obligated to deliver under the GMI OEM Agreement, and the
Escrow Agent shall bear no responsibility whatsoever to determine
the existence, relevance, completeness, currency or accuracy of
the Deposit Materials.
(e) The Escrow Agent's sole responsibility shall be to accept, store
and deliver the Deposit Materials deposited with it by GMI in
accordance with the terms and conditions of this Escrow
Agreement.
6. RELEASE CONDITIONS.
(a) The Escrow Agent is hereby specifically authorized to provide the
Deposit Materials to IVB on the fifth business day following
written notice from IVB (a "Release Notice") certifying that one
or more of the Release Conditions specified in Section 14.3(e) of
the GMI OEM Agreement has occurred and that IVB in not in
material breach of the GMI OEM Agreement, provided that the
Escrow Agent has not received a notarized affidavit executed by
an executive officer of GMI certifying that no such event has
occurred and/or that IVB is in material breach of the GMI OEM
Agreement (a "Notice of Objection"). As defined in the GMI OEM
Agreement, a Release Conditions occurs if, only if, and only to
the extent that at any time during the Term of the GMI OEM
Agreement, GMI terminates the sales and/or support of the
Enterprise Platform (as set forth in the GMI OEM Agreement) or
GMI ceases to do business, provided that IVB is not in material
breach of the GMI OEM Agreement. A Release Notice must identify
which Release Condition has occurred. IVB shall provide to GMI by
facsimile and by certified mail, return receipt requested, a copy
of any Release Notice delivered to the Escrow Agent pursuant
hereto. GMI shall provide to IVB by facsimile and by certified
mail, return receipt requested, a copy of any Notice of Objection
delivered to the Escrow Agent pursuant hereto.
(b) If the Escrow Agent receives a timely Notice of Objection, the
Escrow Agent shall not release the Deposit Materials, but shall
continue to hold them pursuant to this Escrow Agreement until
otherwise jointly directed by GMI and IVB, or until resolution of
the dispute pursuant to Section 7 ("Dispute Resolution") of this
Escrow Agreement.
(c) IVB will have only those rights to the Deposit Materials that are
expressly set forth in Section 14.3 of the GMI OEM Agreement.
7. DISPUTE RESOLUTION. If, subsequent to delivery of a Release Notice to
the Escrow Agent pursuant to Section 6, any dispute arises concerning
the delivery of the Deposit Materials to IVB by the ESCROW
-34-
Agent, such dispute will be settled pursuant to the Dispute Resolution
procedures set forth in Section 15.8 of the GMI OEM Agreement and
restated in this Escrow Agreement as follows:
15.8 Dispute Resolution.
(a) Upon written request of a party identifying a dispute, each party
will designate a management representative with the
responsibility and authority to resolve the dispute. The
designated management representatives will initially meet within
fifteen (15) days after the request is received from the
requesting party. At this first meeting, the designated
management representatives will identify the scope of the dispute
and the information needed to discuss and attempt to resolve the
dispute. These management representatives will then gather
relevant information regarding the dispute and will meet to
discuss the issues and negotiate in good faith to resolve the
dispute. Such second meeting will occur within fifteen (15) days
after the initial meeting. Nothing in this Section 15.8 will
restrict the right of either party to apply to a court of
competent jurisdiction for injunctive relief or damages at any
time. However, the right of either party to file a lawsuit does
not abrogate each party's obligations under this Section 15.8.
(b) Should any dispute, claim or controversy remain unresolved at the
end of the time periods set out above, then all remaining matters
shall be referred to an office of J.A.M.S located in or near the
city of the party that did not initiate the dispute for
mediation, that is, an informal, non-binding conference or
conferences between the parties in which a mediator for the
J.A.M.S panel will seek to guide the parties to a resolution of
the dispute between them.
(c) No provision of, or the exercise of any rights under this Section
15.8 shall limit the right of any party to obtain provisional or
ancillary remedies such as injunctive relief or the appointment
of a receiver from any court having jurisdiction before, during
or after the pendency of any mediation. The institution and
maintenance of an action for pursuit of provisional or ancillary
remedies shall not constitute a waiver of the right of any party,
including the plaintiff, to submit the controversy or claim to
mediation.
8. BANKRUPTCY. IVB and GMI acknowledge that this Escrow Agreement is an
"agreement supplementary to" the GMI OEM Agreement as provided in
Section 365(n) of Xxxxx 00, Xxxxxx Xxxxxx Code ("Bankruptcy Code"). GMI
acknowledges that if GMI, as a debtor in possession or a trustee in
bankruptcy in a case under the Bankruptcy Code, rejects the GMI OEM
Agreement or this Escrow Agreement, IVB may elect to retain its rights
under the GMI OEM Agreement and this Escrow Agreement as provided in
Section 365(n) of the Bankruptcy Code. Neither GMI nor such bankruptcy
trustee will interfere with the rights of IVB as provided in the GMI OEM
Agreement and this Escrow Agreement, including the right to obtain the
Deposit Materials.
9. LIMITATION ON ESCROW AGENT'S RESPONSIBILITY AND LIABILITY
(a) The Escrow Agent will incur no liability for acting upon any
instruction, notice, direction or other document believed by it
in good faith to be genuine and to have been made, signed, sent
or presented by the person or persons authorized to perform such
act under the terms of this Escrow Agreement.
(b) GMI and IVB jointly and severally agree to indemnify the Escrow
Agent from and against any and all third party liabilities,
claims, suits and other proceedings, all judgments and other
awards against the Escrow Agent in connection therewith, and all
costs and expenses incurred in connection with the defense
thereof, in each case which may be imposed on, or incurred by, or
asserted against, the Escrow Agent in any way relating to, or
arising out of, this Escrow Agreement, provided that neither GMI
nor IVB shall be liable for that portion of any such
indemnification amount resulting from the Escrow Agent's gross
negligence or willful misconduct or violation by the Escrow Agent
of any terms or provisions of this Escrow Agreement.
10. NOTICES. All notices, instructions, deliveries, and other
communications required or permitted to be given hereunder or necessary
or convenient in connection herewith shall be in writing and must be
-35-
delivered to the intended recipient at the address set forth above (or
at such other address as a party shall designate pursuant to the terms
hereof) by personal delivery, certified mail (postage prepaid), or a
nationally recognized overnight courier, and will be effective upon
receipt (or when delivery is refused).
11. ENTIRE AGREEMENT. This Escrow Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter
hereof.
12. WAIVER, AMENDMENT OR MODIFICATION; SEVERABILITY. This Escrow Agreement
shall not be waived, amended, or modified except by the written
agreement of all the parties hereto. Any invalidity, in whole or in
part, of any provision of this Escrow Agreement shall not affect the
validity of any other of its provisions.
13. GOVERNING LAW. This Escrow Agreement shall be governed in all respects
by the laws of the United States of America and of the State of
California without giving effect to any choice of law principles that
would require the application of the laws of a different state.
14. RESIGNATION/REPLACEMENT.
(a) Upon sixty (60) days' prior written notice given to GMI and IVB,
the Escrow Agent may resign. Within fifteen (15) days after the
giving of such notice, GMI and IVB shall mutually designate a
successor Escrow Agent. Such successor Escrow Agent shall be
bound by the terms and provisions of this Escrow Agreement. In
the event that no such agreement is reached within such fifteen
(15) day period, the Escrow Agent shall continue to hold the
Deposit Materials then held by it and shall take no further
actions and shall have no further obligations hereunder except to
cooperate with its successor in order to effectuate the transfer
of its duties to the successor Escrow Agent.
(b) Upon notice, GMI and IVB may replace the Escrow Agent with a
successor who shall replace Escrow Agent and be bound by all of
the terms of this Escrow Agreement.
15. ESCROW FEES. IVB agrees to pay the fees of the Escrow Agent for its
services hereunder during he term of this Escrow Agreement. Such fees
shall consist of periodic escrow maintenance charges, at Escrow Agent's
standard rates, and fees charged for carrying out its duties hereunder.
16. TERM. This Escrow Agreement will be effective upon execution by all
three parties and will terminate only (a) if and when all of the Deposit
Materials are delivered to IVB pursuant to Section 6 ("Release
Conditions"); (b) upon or at any time after termination of the GMI OEM
Agreement; or (c) if and when IVB notifies GMI and the Escrow Agent that
IVB desires to terminate this Escrow Agreement. Upon termination of this
Escrow Agreement pursuant to clause (b) or (c) above, the Escrow Agent
will return all copies of the Deposit Materials to GMI.
17. COUNTERPARTS. This Escrow Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of
which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement
to be duly executed as of the year and date first above written.
--------------------------------------- -----------------------------------
General Magic, Inc. InterVoice-Brite, Inc.
--------------------------------------
ESCROW AGENT
-36-
EXHIBIT J
AGREED COUNTRIES
------------------------------------------------------------------------------------------
COUNTRY HOMOLOGATED PROTOCOL TYPE BOARD TYPE
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
[**] MFCR2 E1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 3 MB & DB
------------------------------------------------------------------------------------------
[**] EuroISDN E1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 4 MB
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 4 DB
------------------------------------------------------------------------------------------
[**] EuroISDN E1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 1
------------------------------------------------------------------------------------------
[**] MFCR2 E1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 1
------------------------------------------------------------------------------------------
[**] T1 T1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 1
------------------------------------------------------------------------------------------
[**] MFCR2 E1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 1
------------------------------------------------------------------------------------------
[**] XX0 X0
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 1
------------------------------------------------------------------------------------------
[**] MFCR2 E1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 1 MB & DB
------------------------------------------------------------------------------------------
[**] EuroISDN E1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 2 MB & DB
------------------------------------------------------------------------------------------
[**] EuroISDN E1
------------------------------------------------------------------------------------------
[**] EuroISDN E1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 7 MB & DB
------------------------------------------------------------------------------------------
[**] EuroISDN E1
------------------------------------------------------------------------------------------
[**] EuroISDN E1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 1
------------------------------------------------------------------------------------------
[**] T1 T1
------------------------------------------------------------------------------------------
--------
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
-37-
------------------------------------------------------------------------------------------
[**] ISDN T1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 2
------------------------------------------------------------------------------------------
[**] EuroISDN E1
------------------------------------------------------------------------------------------
[**] R2 E1
------------------------------------------------------------------------------------------
[**] EuroISDN E1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 1
------------------------------------------------------------------------------------------
[**] T1 T1
------------------------------------------------------------------------------------------
[**] ISDN T1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 2 MB & DB
------------------------------------------------------------------------------------------
[**] Analog E1
------------------------------------------------------------------------------------------
[**] EuroISDN E1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 1
------------------------------------------------------------------------------------------
[**] MFCR2 E1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 6 MB & DB
------------------------------------------------------------------------------------------
[**] DDI E1
------------------------------------------------------------------------------------------
[**] EuroISDN E1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 1 MB & DB
------------------------------------------------------------------------------------------
[**] DDI E1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 1 MB
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 1 DB
------------------------------------------------------------------------------------------
[**] EuroISDN E1
------------------------------------------------------------------------------------------
[**] Analog
------------------------------------------------------------------------------------------
[**] X0 X0
------------------------------------------------------------------------------------------
[**] EuroISDN E1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 1 MB & DB
------------------------------------------------------------------------------------------
[**] X0 X0
------------------------------------------------------------------------------------------
[**] X0 X0
------------------------------------------------------------------------------------------
[**] EuroISDN E1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 1 MB & DB
------------------------------------------------------------------------------------------
[**] EuroISDN E1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 5 MB & DB
------------------------------------------------------------------------------------------
[**] EuroISDN E1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 1
------------------------------------------------------------------------------------------
[**] R2 E1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 2 MB & DB
------------------------------------------------------------------------------------------
[**] CAS E1
------------------------------------------------------------------------------------------
[**] EuroISDN E1
------------------------------------------------------------------------------------------
--------
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
-38-
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 1
------------------------------------------------------------------------------------------
[**] T1 T1
------------------------------------------------------------------------------------------
[**] Analog AI5 Type 1
------------------------------------------------------------------------------------------
[**] MFCR2 E1
------------------------------------------------------------------------------------------
The listed countries have the CP Telephony interfaces listed under protocol type
Homologated for the referenced countries.
--------
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
-39-
