EXHIBIT 10.4
CONFIDENTIAL
CONFIDENTIAL TREATMENT REQUESTED UNDER
17 C.F.R. SECTIONS 200.80(B)(4), 200.83 AND 230.406.
JOINT DEVELOPMENT AND CO-MARKETING
AGREEMENT
This Joint Development and Co-Marketing Agreement (the "Development Agreement")
is made and entered into this 28th day of March, 2002 (the "Effective Date"), by
and between InterVoice-Brite, Inc., a Texas corporation having a place of
business at 00000 Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000 ("IVB") and General
Magic, Inc., a Delaware corporation having a place of business at 000 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 ("GMI").
BACKGROUND
A. IVB markets the OneVoice VoiceXML Media Gateway system (the "IVB Gateway"),
which provides concurrent telephone and web-based access to enterprise data for
call center and other IVR applications.
B. GMI markets the magicTalk Enterprise Platform (the "Enterprise Platform"),
which enables the development and deployment of voice-based enterprise-class
applications.
C. The parties wish to enter into a strategic relationship to optimize the
interoperability of their respective products and grant each the right to
remarket the other's product on an OEM basis.
D. Concurrently with the execution of this Development Agreement, the parties
are entering into:
1. an OEM agreement (the "GMI OEM Agreement") under which IVB will
obtain the right to remarket the Enterprise Platform as well as a privately
labeled, IVB-branded version of the Enterprise Platform that has been enhanced
to reflect IVB's look and feel (the "EP Product"); and
2. an OEM agreement (the "IVB OEM Agreement") under which GMI will
obtain the right to remarket the IVB Gateway as well as a privately labeled,
GMI-branded version of the IVB Gateway and that has been enhanced to reflect
GMI's look and feel (the "Gateway Product").
The GMI OEM Agreement and the IVB OEM Agreement are collectively referred to as
the "OEM Agreements."
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:
1. DEFINITIONS
1.1. "Composite Product" means any application or solution marketed by one party
that consists of the Product of such party bundled or integrated with the
Customized Product, or a part of a Customized Product, of the other and having
substantial value in addition to that attributable to such Product.
1.2. "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.
1.3. "Customization Software" means software components and applicable technical
and user documentation developed by a party intended to customize its Product
for the other party in accordance with the Product Specifications.
1.4. "Customized Product" means any application or solution of a party that
consists of that party's Product customized for the other party in accordance
with the Product Specifications.
1.5. "End Users" means the current customers and/or prospective customers of
either or both parties, as the context requires.
1.6. "Enterprise Platform Product Plan" means the product development plan for
future releases of the Enterprise Platform, including a projected delivery
schedule that looks forward through the Term.
1.7. "EP Product Specification" means the scope of work and delivery timetable
to be mutually agreed upon by the parties within thirty (30) days after the
Effective Date for the customization of the Enterprise Platform for license to
IVB pursuant to the GMI OEM Agreement.
1.8. "IVB Gateway Product Plan" means the product development plan for future
releases of the IVB Gateway, including a projected delivery schedule that looks
forward through the Term.
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1.9. "Gateway Product Specification" means the scope of work and delivery
timetable to be mutually agreed upon by the parties within thirty (30) days
after the Effective Date for the customization of the IVB Gateway for license to
GMI pursuant to the IVB OEM Agreement.
1.10. "Intellectual Property" means any and all patents, trademarks, and
copyrights, whether registered or unregistered, and all trade secrets, know-how,
and other proprietary information or technology.
1.11. "Product or Products" means, individually, the Enterprise Platform or the
IVB Gateway as the context requires and, collectively, both the Enterprise
Platform and the IVB Gateway.
1.12. "Product Specifications" means collectively the EP Product Specification
and the Gateway Product Specification.
1.13. "Program" means the joint product development, marketing and sales and
support program more fully described in this Development Agreement.
1.14. "Program Plans" means collectively the Product Specifications, the
Marketing Plan and the Sales Plan.
1.15. "Territory" means [**], provided that the Territory will be expanded on
the same terms and subject to the same conditions as will the Territory as
defined in the OEM Agreements.
1.16. "Third Party Licensor" means a third party from whom a party has obtained
marketing and distribution rights to any portions of its Product and/or
Customization Product.
2. PROGRAM DESCRIPTION
2.1. During the Term, the parties will participate in the Program.
2.2. The Customized Product development goals of the Program are set forth in
Section 3 and will be more particularly described in the Product Specifications.
2.3. The marketing goals of the Program are set forth in Section 4 and will be
more particularly described in a marketing plan to be mutually agreed upon by
the parties within ninety (90) days of the Effective Date and updated by the
parties every three (3) months thereafter based on market conditions (the
"Marketing Plan").
2.4. The sales and support goals of the Program are set forth in Section 5 and
will be more particularly described in a sales plan to be mutually agreed upon
by the parties within thirty (30) days after the Effective Date and updated by
the parties every three (3) months thereafter based on market conditions (the
"Sales Plan").
2.5. Within ten (10) days after the execution of this Development Agreement, the
parties will in consultation with one another appoint a joint project team
containing employees of each party to oversee the Program, including, but not
limited to, support and sales. Each party agrees to make available to the other
party a contact list with names and phone numbers of those of its employees on
the project team.
2.6. Upon completion of the Program Plans, the parties shall devote [**]
efforts, and shall work in [**], to complete the Program Plans and to implement
the Program in accordance with the Program Plans. Once completed, the Program
Plans may be amended only upon agreement of the parties.
2.7. Promptly following development of the Program Plans, the designated senior
business persons of the parties will meet to review the Program Plans, as well
as the forecasts by each of its sales of the Customized Product of the other,
and shall meet [**] thereafter to review progress against the Program Plans and
the forecasts, and to establish action plans for future [**].
3. DEVELOPMENT
3.1. CUSTOMIZATION EFFORT.
(a) EP PRODUCT DEVELOPMENT. GMI will customize the Enterprise Platform
and deliver the resulting EP Product in accordance with the EP Product
Specification. IVB will cooperate in good faith with, and supply any information
reasonably requested by, GMI solely for the purposes of the development of the
EP Product. Except as set forth herein, GMI shall be responsible for [**] the EP
Product. Ownership of the Customization Software and the Customization Product
developed with
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regard to the Enterprise Platform pursuant to this Section 3.1(a), and all
Intellectual Property rights therein, shall be retained by GMI.
(b) GATEWAY PRODUCT DEVELOPMENT. IVB will customize the IVB Gateway and
deliver the resulting Gateway Product in accordance with the Gateway Product
Specification. GMI will cooperate in good faith with, and supply any information
reasonably requested by, IVB solely for the purposes of the development of the
Gateway Product. Except as set forth herein, IVB shall be responsible for [**]
the Gateway Product. Ownership of the Customization Software and the
Customization Product developed with regard to the IVB Gateway under this
Section 3.1(b), and all Intellectual Property rights therein, shall be retained
by IVB.
3.2. FUTURE DEVELOPMENT.
(a) ENTERPRISE PLATFORM. GMI will develop the Enterprise Platform
Product Plan in consultation with IVB, and will make [**] efforts to accommodate
the product requirements of IVB with respect to the Enterprise Platform,
provided, however, that GMI shall have ultimate discretion to determine the
content of the Enterprise Platform Product Plan and any revisions thereto made
during the Term of this Development Agreement. The Enterprise Platform Product
Plan will be provided to IVB, and will be updated by GMI in consultation with
IVB every three (3) months during the Term of this Development Agreement based
on customer and market feedback. GMI shall make [**] efforts to execute the
Enterprise Product Plan in accordance with the schedule set forth therein. In
the event IVB wishes to accelerate a planned release, or to initiate product
development outside of the Enterprise Platform Product Plan, IVB may do so at
GMI's cost [**] on a schedule to be mutually agreed by the parties.
(b) IVB GATEWAY. IVB will develop the IVB Gateway Product Plan in
consultation with GMI, and will make [**] efforts to accommodate the product
requirements of GMI with respect to the IVB Gateway, provided, however, that IVB
shall have ultimate discretion to determine the content of the IVB Gateway
Product Plan and any revisions thereto made during the Term of this Development
Agreement. The IVB Gateway Product Plan will be provided to GMI, and will be
updated by IVB in consultation with GMI every three (3) months during the Term
of this Development Agreement based on customer and market feedback. IVB shall
make [**] efforts to execute the IVB Gateway Product Plan in accordance with
the schedule set forth therein. In the event GMI wishes to accelerate a planned
release, or to initiate product development outside of the IVB Gateway Product
Plan, GMI may do so at IVB's cost [**] on a schedule to be mutually agreed by
the parties.
(c) COST. For purposes of this Section 3.2, "cost" shall be defined as
the fully burdened cost of labor (including wages, fringes, facilities, and IT)
plus any direct costs of the effort, but excluding any G&A allocation.
(d) UPDATES AND UPGRADES. Each release of product under the Product Plan
of a party shall be made available to the other party as an Update or Upgrade,
as the case may be, under the applicable OEM Agreement; provided that Upgrades
shall be made available [**] by each party for the internal development purposes
of the other undertaken pursuant to this Development Agreement.
3.3. CUSTOMER-SPECIFIC REQUIREMENTS. To support their respective sales efforts,
the parties will meet as needed to review customer-specific product requests and
requirements outside of the Enterprise Platform Product and IVB Gateway Product
Plans, and to determine a strategy for addressing those requests and
requirements. In addition, the parties agree to give each other the benefit of
their respective [**] to enable each other to respond in [**] situations.
3.4. PRODUCT DEVELOPMENT ARRANGEMENT. Each party will dedicate a product
development team to delivering the Customized Product for which it is
responsible hereunder in accordance with the Product Specifications. Each team
will be committed to the project and focus on the successful development and
delivery of the Customized Product for which it is responsible. Each party will
assign an integration engineer to provide reasonable assistance to the other in
the form of advice and counsel in the development of Customized Product.
3.5. INABILITY TO MEET SCHEDULED DEVELOPMENT. In the event a party is unable or
unwilling to meet an agreed scheduled delivery date under the Product Plans and
such delay extends up to [**] after the scheduled date, the other party may
accelerate the issue to the executive management of each of the parties for
resolution pursuant to Section 15.5 (a). If the executives are unable to resolve
the issue, then the party that accelerated the issue shall be entitled to [**]
without any liability or obligation to the other party.
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3.6. INABILITY TO PROVIDE DEVELOPMENT OUTSIDE THE SCOPE OF THE PRODUCT PLAN. If
a party requests (the "Requesting Party") that the other party accelerate a
planned release or initiate product development outside the scope of the Product
Plan of the other party (the "Receiving Party") and the Receiving Party either
refuses or fails to agree or refuse within [**] of the request, then the
Requesting Party may accelerate the issue to the executive management of each of
the parties for resolution pursuant to Section 15.5 (a). If the executives are
unable to resolve the issue, then the Requesting Party shall be entitled to [**]
without any liability or obligation to the Receiving Party.
4. MARKETING, SUPPORT AND COOPERATIVE OBLIGATIONS
4.1. RESOURCES. Each party will assign a marketing resource to the project who,
together with their counterpart, will be accountable for developing and
implementing the Marketing Plan, including the product launch plans for the
Composite Products. Each shall also be responsible for delivering marketing and
sales collateral pursuant to the terms of this Development Agreement and the
applicable OEM Agreement to support the other party's marketing and sales
efforts.
4.2. JOINT MARKETING AND SALES ARRANGEMENT.
(a) GMI will diligently cooperate with IVB to facilitate sales of the EP
Product to IVB's existing and potential customers and provide technical and
sales training under the GMI OEM Agreement to accelerate IVB's sales efforts.
IVB will diligently cooperate with GMI to facilitate sales of the Gateway
Product to GMI's existing and potential customers and provide technical and
sales training under the IVB OEM Agreement to accelerate GMI's sales efforts.
(b) The parties may mutually agree to engage in marketing activities
that promote each other's Products and services, including without limitation,
trade shows, press releases, joint sales and marketing engagements, and user
groups.
(c) Each party will use its [**] efforts to market and promote its
strategic relationship with the other party by identifying the other party as a
strategic partner in marketing materials and promotions where applicable and as
it [**] determines.
(d) Except as may be required by law, neither party will issue any press
release nor publish any materials for public distribution that make reference to
or discuss the other party or its Products or Composite Products and related
products and services without the prior approval of the other party, which
approval shall not be unreasonably withheld or delayed.
(e) The parties may produce joint marketing materials but only with each
party's prior written consent, which consent and authorization for any
associated costs shall be obtained prior to production of the material. The use
of any and all materials relating to the above activities shall be restricted to
only those activities contemplated by this Development Agreement.
(f) Unless otherwise set forth in this Development Agreement or
otherwise agreed to in writing, [**] arising out of or related to the marketing
and support activities under this Development Agreement shall be paid by [**],
and [**].
5. SALES AND TEAMING ACTIVITY
(a) IVB will devote [**] efforts to maximizing sales of the EP
Product. In addition, IVB will devote its [**] efforts to generating at least
[**] in revenue to GMI from sales of EP Products under the GMI OEM Agreement in
calendar year 2002, and to achieving IVB's forecasts for succeeding years. To
that end, the parties will agree to an aggressive account penetration plan as
part of the Sales Plan. GMI acknowledges and agrees that the [**] figure is a
target only, and that if despite its [**] efforts, IVB is unable to achieve the
target, such failure will not be considered a breach of this Development
Agreement.
(b) GMI will commit its [**] efforts to maximizing sales of the Gateway
Product. In addition, GMI will devote its [**] efforts to generating at least
[**] in revenue to IVB from sales of Gateway Products under the IVB OEM
Agreement in calendar year 2002, and to achieving GMI's forecasts for succeeding
years. IVB acknowledges and agrees that the [**] figure is a target only, and
that if despite its [**] efforts, GMI is unable to achieve the target, such
failure will not be considered a breach of this Development Agreement.
(c) In order to carry out the parties' responsibilities in Sections 5(a)
and 5(b) above, the parties will agree to determine how sales of the EP Products
and the Gateway Products will be handled in order to avoid channel conflicts.
Each party
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agrees to use [**] efforts to provide information regarding its product, product
pricing and product positioning and value proposition that will allow the other
party's sales team to recognize potential sales opportunities for such product.
(d) The parties agree to use [**] efforts to develop and execute a plan
to engage their respective sales account teams. Such plan will detail a strategy
to [**] new customers and introduce each party's Products and Customized
Products to the [**].
(e) Where the parties are awarded a contract for Customized Products,
and if the parties so agree in writing on a case by case basis, then, as of the
date of receipt of notice of such award, neither of them will seek to sell
further products or services to modify, enhance or expand the sale of Customized
Products for [**] from the execution date for the contract under which the
Customized Products were sold without (i) involving the other party or (ii) the
written consent of the other party, which consent shall not be unreasonably
withheld or delayed.
(f) Except as otherwise provided herein, it is understood and agreed
that neither party shall have any obligation to notify the other party of the
existence of any opportunity or to agree to submit, or offer to submit, any
opportunity or related project to the other party. It is further understood and
agreed that each party has the absolute right to pursue any opportunity alone or
with third parties.
(g) Unless otherwise set forth in this Development Agreement or
otherwise agreed to in writing, any and all cost, expense or liability to either
party arising out of or related to the marketing, support and sales activities
under this Development Agreement shall be paid by the party incurring such cost,
expense or liability, and neither party shall be liable or obligated to pay any
cost, expense or liability paid or incurred by the other.
6. REFERRALS FOR PRODUCTS
6.1. If IVB, [**], determines that an End User may desire or have an interest in
purchasing and deploying the GMI Products and IVB elects not to market the GMI
Products directly to the End User under the GMI OEM Agreement, IVB may refer
such End User to GMI.
(a) In the event an opportunity from IVB is referred to and accepted by
GMI, GMI and IVB will jointly coordinate and participate in the initial sales
meeting or conference call with the relevant End User referred to GMI.
(b) GMI shall have [**] as to whether or not it will contract directly
with End Users referred by IVB for the design, deployment, delivery and hosting
of the GMI Products, including, without limitation, invoicing and collections,
development and set-up and technical service and support.
(c) IVB shall not have any liability or obligation with respect to such
contracts entered into between GMI and End Users of IVB (or GMI's failure to
enter into such contract) or orders submitted by End Users of IVB to GMI
pursuant to such contracts or otherwise.
6.2. If GMI, [**], determines that an End User may desire or have an interest in
purchasing and deploying the IVB Products and GMI elects not to resell the IVB
Products directly to the End User under the IVB OEM Agreement, GMI will refer
such End User to IVB.
(a) In the event an opportunity from GMI is referred to and accepted by
IVB, IVB and GMI will jointly coordinate and participate in the initial sales
meeting or conference call with the relevant End User referred to IVB.
(b) IVB shall have [**] as to whether or not it will contract directly
with End Users referred by GMI for the design, deployment, delivery and hosting
of the IVB Products, including, without limitation, invoicing and collections,
development and set-up and technical service and support.
(c) GMI shall not have any liability or obligation with respect to such
contracts entered into between IVB and End Users of GMI (or IVB's failure to
enter into such contract) or orders submitted by End Users of GMI to IVB
pursuant to such contracts or otherwise.
7. FEES AND PAYMENT TERMS
7.1. IVB will pay to GMI a total of [**] for the licenses and services to be
provided by GMI under this Development Agreement ("Fees"). The Fees shall be
paid in [**], commencing July 1, 2002, which shall be paid by IVB on [**] of
each
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month. GMI shall invoice IVB therefor [**] in advance of the date each
payment is due.
7.2. All amounts payable by IVB to GMI under this Development 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 EP Product, the provision of services, the execution or
performance of this Development 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. WARRANTS. Upon execution hereof, GMI will issue three-year warrants for the
purchase of seven hundred fifty thousand (750,000) shares of GMI common stock at
an exercise price equal to the closing price of GMI's common stock on The NASDAQ
National Market upon the date of issuance. IVB shall have customary assignable
"piggy-back" registration rights to have the common stock issuable on exercise
of such warrants (but not the warrants) registered for resale on any
registration statement which GMI files for any purpose on a form available for
such registration after the issuance date of such warrants, subject to customary
obligations of IVB to provide information to GMI as required for completion of
the registration statement. The warrants will not include anti-dilution
protections except in the case of the subdivision (by stock split, stock
dividend, recapitalization or otherwise) or combination (by combination, reverse
stock split or otherwise) of GMI's common stock.
9. LICENSE TO CUSTOMIZED PRODUCTS
9.1. The term "Enterprise Platform" as defined in the GMI OEM Agreement shall
mean and include the EP Product and the associated Customization Software. The
term "Product Software" as defined in the IVB OEM Agreement shall mean and
include the Gateway Product and the associated Customization Software.
9.2. Except as provided in the IVB OEM Agreement, IVB reserves all proprietary
rights in all designs, engineering details and other information pertaining to
its Products, the Gateway Product and associated Customization Software and to
all discoveries, modifications, improvements, inventions, patent rights, trade
secrets, know-how, software (including Product and Customization Software) and
other proprietary data arising out of work done by or on behalf of IVB in
connection with designing, manufacturing, servicing, installing and testing of
the Gateway Product and associated Customization Software, including the sole
right to manufacture and market the Gateway Product and associated Customization
Software. Except as provided in the GMI OEM Agreement, GMI reserves all
proprietary rights in all designs, engineering details and other information
pertaining to its Products, the EP Product and associated Customization Software
and to all discoveries, modifications, improvements, inventions, patent rights
trade secrets, know-how, software (including Product and Customized Product) and
other proprietary data arising out of work done by or on behalf of GMI in
connection with designing, manufacturing, servicing, installing and testing of
the EP Product and associated Customization Software, including the sole right
to manufacture and market the EP Product and associated Customization Software.
9.3. Neither party shall (nor permit any employee or other third party to) copy,
use, analyze, reverse engineer, decompile, disassemble, translate, convert, or
apply any procedure or process to the other party's Products, Customized
Products or Customization Software in order to ascertain, derive, and/or
appropriate for any reason or purpose, the source code or source listings for
the Products, Customized Products or the Customization Software of the other
party or any trade secret information or process contained therein.
9.4. Except as expressly provided in the OEM Agreements, each party shall retain
all ownership and intellectual property rights, titles and interests to any
modifications or enhancements to its Products, Customized Products and
Customization Software and any software development using its proprietary
software design tools.
10. CONFIDENTIALITY
10.1. Each party may from time to time during the Term of this Development
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
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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 Development Agreement.
10.2. 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 Development Agreement and then only to the extent necessary for
performance of this Development 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
Development 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.
10.3. 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 9.2 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 Development 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.
10.4. Upon termination or expiration of this Development Agreement, each party
shall promptly return or destroy all Confidential Information disclosed by the
other party hereunder, 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.
11. WARRANTY
11.1. Each party warrants and represents that it:
(a) has the right to enter into this Development Agreement;
(b) will not misrepresent the functionality or performance of the
other's Products, Customized Products or Customization Software; and
(c) is the original developer of all code provided and incorporated into
the Customization Software developed by it under this Development Agreement, or
has been granted appropriate rights from Third Party Licensors to allow it to
provide and incorporate such code.
11.2. Each party acknowledges that the other party has not made any
representation or warranty (regarding the products and services that are the
subject of this Development Agreement) which is not expressly set forth herein.
EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT OR THE OEM AGREEMENTS, NEITHER
PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
12. LIMITATION OF LIABILITY. [**], 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
DEVELOPMENT AGREEMENT OR THE BREACH OR TERMINATION HEREOF, 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. [**], IN NO EVENT
WILL EITHER PARTY'S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT (OTHER THAN
FOR PAYMENT OF LICENSE FEES, SUPPORT AND
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MAINTENANCE FEES, AND ANY OTHER AMOUNTS OWED TO GMI UNDER THIS AGREEMENT) EXCEED
THE [**]. EACH PARTY AGREES THAT IN NO EVENT WILL ANY LICENSOR OR SUPPLIER OF
THE OTHER HAVE ANY LIABILITY OF ANY KIND UNDER OR IN CONNECTION WITH THIS
AGREEMENT, AND ALL SUCH PARTIES ARE INTENDED BENEFICIARIES OF THIS SECTION.
13. TERM AND TERMINATION
13.1. TERM. The term of this Development Agreement shall commence upon the
Effective Date, and shall terminate upon the expiration or termination of the
first of the OEM Agreements to expire or terminate (the "Term").
13.2. TERMINATION. Upon expiration or termination of this Development Agreement,
and except as expressly set forth in Section 13.3 (Survival), all rights and
obligations of the parties as set out in this Development Agreement shall cease.
13.3. SURVIVAL. Sections 1 (Definitions), 9 (License to Customization Products),
10 (Confidentiality), 12 (Limitations of Liability), 13 (Term and Termination)
and 15 (General Provisions) shall survive expiration or termination of this
Development Agreement for any reason.
14. NONEXCLUSIVITY
Except as expressly provided in the OEM Agreements, the strategic alliance
established between the parties by this Development Agreement and the OEM
Agreements is not intended to create any exclusive relationship. Nothing in this
Development Agreement shall be construed as limiting, in any manner, either
party's development, deployment, marketing, referral, licensing or distribution
activities or its appointment of other dealers, distributors, licensees, agents
or resellers, or its ability to market its own products and services or those of
third parties, provided that in engaging in such agreements or arrangements,
neither party violates its obligations to the other party as more particularly
set forth in this Development Agreement or in the OEM Agreements.
15. GENERAL PROVISIONS
15.1. NON-SOLICITATION. IVB and GMI agree that during the period beginning on
the date of execution of this Development Agreement and ending [**] after the
termination or expiration of this Development Agreement, neither party shall
actively solicit any employee(s) of the other party for employment or consulting
services or otherwise encourage any 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 to the other that this
provision is intended to protect.
15.2. CONFIDENTIALITY OF AGREEMENT. Either party may disclose its relationship
with the other party, but neither may disclose the terms of this Development
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
Development Agreement, or subject to notice and execution of a non-disclosure
agreement between the disclosing party and the 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 (which
approval shall not be unreasonably withheld or delayed), or as required by law.
15.3. INDEPENDENT CONTRACTOR. Each party will in all matters relating to this
Development 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 Development Agreement shall be construed to
have established any agency, joint venture or partnership.
15.4. GOVERNING LAW. This Development Agreement shall be governed in all
respects by the laws of the United States of America and of the State of New
York 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 Development Agreement.
15.5. DISPUTE RESOLUTION.
(a) The parties will attempt in good faith to informally resolve any
dispute arising out of or relating to this Development Agreement according to
the following procedure. Upon written request of a party identifying a dispute,
each
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[**] 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.
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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 15.5 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 15.5.
(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
15.5 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 shall not constitute a waiver of the right of any party, including the
plaintiff, to submit the controversy or claim to mediation.
15.6. REMEDIES. The parties acknowledge and agree that any actual or threatened
breach of Section 10 of this Development 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, without the requirement of posting bond, to protect its rights under
this Development Agreement. If any legal action is brought to enforce this
Development Agreement, the prevailing party will be entitled to recover its
reasonable attorneys' fees.
15.7. NOTICES. All notices, consents, approvals and reports permitted or
required under this Development 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 15.7. 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 Development Agreement, with a copy to its General
Counsel.
15.8. COMPLIANCE WITH LAWS.
(a) Local Laws. The parties 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 Development Agreement.
(b) Unlawful Payments. Neither party will use any payment or other
benefit derived from this Development 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 Development 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. Each party hereby acknowledges and agrees that it
will not export or re-export Customizations of the other party's Product or any
documentation supplied therewith, directly or through third parties, in
contravention of any export laws, regulations or decrees of the United States
government or any agency thereof.
15.9. ASSIGNMENT. Neither this Development Agreement nor any rights or
obligations under it may be assigned without the other party's prior written
consent 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 void.
15.10. WAIVER. Any waiver of the provisions of this Development Agreement or of
a party's rights or remedies under this Development 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
Development Agreement will be deemed to be a waiver
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thereof and any single or partial exercise of any such right or remedy, power or
privilege will not preclude any later exercise thereof.
15.11. SEVERABILITY. If any term, condition, or provision in this Development
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.
15.12. 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 Development 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.
15.13. HEADINGS. The section headings appearing in this Development 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 Development Agreement.
15.14. COUNTERPARTS. This Development 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. The parties may treat
faxed counterparts of this Development Agreement (including signed counterparts)
as originals; nevertheless, either party may require the other to exchange
original signed documents.
15.15. ENTIRE AGREEMENT. This Development Agreement together with the OEM
Agreements, constitute the entire agreement between the parties with respect to
their strategic relationship. This Development Agreement together with the OEM
Agreements supersede, and the terms of this Development Agreement and the OEM
Agreements govern, any prior or collateral proposals or agreements with respect
to the subject matter hereof. This Development Agreement may only be modified by
a written agreement signed by authorized representatives of each party.
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IVB and GMI each represent that the individual signing this Development
Agreement on its behalf has the power and authority to enter into this
Development Agreement and that this Development Agreement constitutes a valid
and binding obligation of each party.
INTERVOICE-BRITE, INC. GENERAL MAGIC, INC.
By: /s/ Xxx-Xxx X. Xxxxxx By: /s/ XX Xxxxxx
------------------------------- -------------------------------
Name: Xxx-Xxx X. Xxxxxx Name: Xxxxxx Xxxxxx
----------------------------- -----------------------------
Title: CFO Title: President/CEO
---------------------------- ----------------------------
Date: 3/28/02 Date: 3/28/02
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