EXHIBIT 10.9
[Material marked with an asterisk has been omitted
from this document pursuant to a request for
confidential treatment and has been filed
separately with the Securities and Exchange
Commission.]
AGREEMENT
Effective as of July 23, 2001 ("Effective Date"), LUCENT TECHNOLOGIES INC.,
a Delaware corporation, by and through its Switching Solutions Group,
having an office at 000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000
("LUCENT") and PAYSTAR SHS, a wholly owned subsidiary of PayStar
Corporation, having offices at located in 00 Xxxxxxxxxx Xxxxxx, Xxxxx X,
Xxxxxxxxxx, Xxxxxxxxxx 00000, ("COMPANY") agree as follows:
WHEREAS, COMPANY wishes to obtain the right to use, reproduce, market,
distribute and license certain LUCENT software, and LUCENT is willing to
grant COMPANY such right pursuant to the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the mutual promises made herein and
other good and valuable consideration, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 The following terms shall have the meanings set forth below unless the
context requires otherwise:
(a) ADAPTATION means a derivative work based on the LICENSED SOFTWARE
which includes (i) any work incorporating any of the LICENSED SOFTWARE
directly, (ii) any work incorporating any COMPUTER PROGRAM from the
LICENSED SOFTWARE rewritten in a different computer language or
converted to operate on a different type of CPU, (iii) any work
utilizing confidential or proprietary information from the LICENSED
SOFTWARE or (iv) any work otherwise covered by LUCENT'S patent,
copyright or other intellectual property rights in the LICENSED
SOFTWARE.
(b) CPU means central processing unit.
(c) COMPUTER PROGRAM means any source-code or object-code instruction or
plurality of such instructions for controlling the operation of a CPU.
(d) CUSTOMERS means all end-user customers to whom COMPANY furnishes
OBJECT CODE SOFTWARE and/or for whom COMPANY is or becomes obligated
to furnish warranty service and/or maintenance service in accordance
with this Agreement.
(e) DOCUMENTATION means the documentation related to the LICENSED SOFTWARE
as specifically identified in Attachment A.
(h) ENHANCEMENT means software developed by COMPANY and designed to
operate in conjunction with LICENSED SOFTWARE or in conjunction with
an ADAPTATION, but not software that is or includes LICENSED SOFTWARE
or any ADAPTATION.
(i) LICENSED PURPOSES means use of SOURCE CODE SOFTWARE by COMPANY to
develop, port, modify, edit, translate, and create ADAPTATIONS, and to
support and maintain COMPANY's and its CUSTOMERS' use of OBJECT CODE
SOFTWARE.
(j) LICENSED SOFTWARE means all or any portion of the source-code version
or object code version of the COMPUTER PROGRAMS, and other information
and DOCUMENTATION specifically listed in Attachment A of this
Agreement.
(k) OBJECT CODE SOFTWARE means LICENSED SOFTWARE and ADAPTATIONS in object
code format.
(l) SOURCE CODE SOFTWARE means LICENSED SOFTWARE and ADAPTATIONS in source
code format.
ARTICLE II
DELIVERABLES AND RIGHTS GRANTED
2.1 Grant of Rights
(a) Subject to receipt of the consideration specified in Attachment B and
compliance by COMPANY with all of the terms and conditions of this
Agreement, LUCENT grants to COMPANY a personal, non-transferable, non-
exclusive, perpetual (so long as COMPANY is not in breach of this
Agreement) limited license for use of SOURCE CODE SOFTWARE furnished
hereunder, solely in the country designated as COMPANY's address in
the first paragraph of this Agreement and solely for LICENSED
PURPOSES. These license rights are limited to the use of the LICENSED
SOFTWARE in conjunction with LUCENT switching equipment; use with
switching equipment of brands other than LUCENT is prohibited. LUCENT
reserves to itself and its subsidiaries all rights not expressly
granted to COMPANY under this Agreement, including without limitation
the right to use, copy, maintain and modify the LICENSED SOFTWARE and
prepare ADAPTATIONS thereof, and to market, license and grant the
right to any other persons to use, copy, maintain, modify, sublicense
and distribute the LICENSED SOFTWARE and ADAPTATIONS thereof.
(b) Subject to receipt of the consideration specified in Attachment B and
compliance by COMPANY with all of the terms and conditions of this
Agreement, LUCENT grants to COMPANY a worldwide (subject to COMPANY
satisfying U.S. government export requirements), non-exclusive,
nontransferable license to use, market, reproduce, distribute and
grant sub-licenses of OBJECT CODE SOFTWARE to its CUSTOMERS solely for
use on or in conjunction with LUCENT switching equipment and solely
for each such CUSTOMER's internal business purposes. Each OBJECT CODE
SOFTWARE sublicense granted by COMPANY must be in written form and
shall include in substance at least the terms set forth in Section 2.5
below.
2.2 COMPANY's Obligations
(a) COMPANY may copy and install SOURCE CODE SOFTWARE on a reasonable
number of CPUs in connection with the LICENSED PURPOSES. COMPANY
agrees to preserve
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and reproduce all copyright, trademark and other notices appearing
in the LICENSED SOFTWARE materials furnished hereunder by LUCENT.
(b) COMPANY shall not use LICENSED SOFTWARE furnished hereunder for any
development, except as expressly authorized herein, or for any other
commercial or production purposes for itself or for third parties.
Except as expressly set forth herein, no right is granted by this
Agreement for the use of LICENSED SOFTWARE directly or indirectly for,
on behalf of, or by third parties.
(c) COMPANY shall have no right to sublicense, disseminate, distribute or
otherwise furnish to third parties any SOURCE CODE SOFTWARE materials,
in whole or in part. COMPANY shall permit access to SOURCE CODE
SOFTWARE only by its employees with a need to know for performing the
LICENSED PURPOSES, and shall not permit access to SOURCE CODE SOFTWARE
or any part thereof by any third parties; provided, however, that
COMPANY shall have the right to provide access to SOURCE CODE SOFTWARE
to its subcontractors solely for purposes of performing the LICENSED
PURPOSES, subject to written agreements with such subcontractors
having terms substantially the same in substance as set forth herein
for protecting such SOURCE CODE SOFTWARE.
(d) COMPANY expressly covenants and agrees that it will not extend to its
CUSTOMERS or any third party, directly or indirectly, any warranty or
representation in the name of LUCENT or purporting to bind LUCENT in
any way with respect to the LICENSED SOFTWARE or otherwise. COMPANY
agrees to indemnify LUCENT and hold LUCENT harmless from any claim
arising out of COMPANY's exercise of any of the rights granted to
COMPANY pursuant to this Agreement, including but not limited to
losses LUCENT may sustain in connection with or as a result of
COMPANY's failure to meet its obligations under Section 2.2.
2.3 Deliverables
LUCENT shall, promptly upon payment by COMPANY of all fees due upon
execution of this Agreement, deliver to COMPANY a single copy of the
LICENSED SOFTWARE materials (including OBJECT CODE SOFTWARE and SOURCE CODE
SOFTWARE), together with the appropriate documentation and other
information related thereto, identified on Attachment A. Further, promptly
upon payment of such fees, LUCENT shall deliver to COMPANY the development
hardware and/or software identified on Attachment A solely for use with
such LICENSED SOFTWARE.
2.4 Intellectual Property Rights
(a) All patents, inventions (whether or not patentable), copyrights, trade
secrets, trademarks and other intellectual property rights worldwide
("Intellectual Property Rights") in LICENSED SOFTWARE are and shall
remain the property of LUCENT unless otherwise expressly stated in
this Agreement. LUCENT shall retain all right, title and interest to
the Intellectual Property Rights in LICENSED SOFTWARE, now existing or
hereafter acquired.
(b) Other than as expressly stated herein, and subject to LUCENT's pre-
existing Intellectual Property Rights in LICENSED SOFTWARE, COMPANY
shall retain all right, title and
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interest to the Intellectual Property Rights in any ADAPTATIONS and
ENHANCEMENTS that COMPANY develops.
(c) Subject to payment by COMPANY of the fees specified in Attachment B,
LUCENT grants to COMPANY a license under the claims of any patents (i)
which LUCENT has the right to grant such license and to the extent it
has that right as of the Effective Date of this Agreement and (ii)
which but for this grant are unavoidably infringed by the execution of
the inherent functionality of the LICENSED SOFTWARE in the form
provided hereunder by LUCENT. The patent license shall not extend to
the use outside of COMPANY of any COMPANY software product which does
not qualify as LICENSED SOFTWARE. Further, such patent license shall
not extend (i) to any ADAPTATIONS or ENHANCEMENTS developed by COMPANY
to the extent that the claims of any LUCENT patent are infringed
thereby or (ii) to the use of LICENSED SOFTWARE with other products or
software. Nothing herein shall be construed as conferring by
implication, estoppel or otherwise any license or right under any
existing or later issued patent claim which is directed to a
combination of the functionality of LICENSED SOFTWARE with the
functionality of any other software programs or hardware.
2.5 The written agreement between COMPANY and each of its CUSTOMERS
specified in Section 2.1 (b) shall provide that:
(1) only a personal, nontransferable and nonexclusive right to use
such copy of the OBJECT CODE SOFTWARE on one CPU at a time is
granted to such CUSTOMER;
(2) no title to the intellectual property in the OBJECT CODE SOFTWARE
is transferred to such CUSTOMER;
(3) such CUSTOMER will not copy the OBJECT CODE SOFTWARE, except as
necessary to use such OBJECT CODE SOFTWARE on such CPU;
(4) such CUSTOMER will not export or re-export the OBJECT CODE
SOFTWARE without the appropriate United States and foreign
government licenses; and
(5) the OBJECT CODE SOFTWARE is derived from third-party software and
that no such third party warrants the OBJECT CODE SOFTWARE,
assumes any liability regarding use of the OBJECT CODE SOFTWARE,
or undertakes to furnish any support or information relating to
the OBJECT CODE SOFTWARE.
2.6 Enhancements
LUCENT grants no rights and imposes no restrictions with respect to the
creation or treatment of ENHANCEMENTS by COMPANY.
2.7 Ownership
No ownership interest in LICENSED SOFTWARE is transferred to COMPANY
hereunder.
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2.8 Export Control
COMPANY acknowledges and understands that any products, software, and
technical information (including without limitation LICENSED SOFTWARE and
DOCUMENTATION) provided under this Agreement, and any ADAPTATIONS thereof,
are subject to U.S. export laws and regulations and any use or transfer of
such products, software, and technical information must be authorized under
those regulations. COMPANY agrees that it will not use, distribute,
transfer, or transmit the products, software, or technical information
(even if incorporated into other products) except in compliance with U.S.
export regulations. If requested by LUCENT, COMPANY also agrees to sign
written assurances and other export-related documents as may be required
for LUCENT to comply with U.S. export regulations.
ARTICLE III
TECHNICAL SUPPORT AND SERVICES
3.1 COMPANY Technical Support Responsibilities
Company shall be solely responsible for providing all training, technical
support and other services to its CUSTOMERS. LUCENT may, at its sole
option and upon COMPANY's request, offer certain training and/or technical
support services to COMPANY or its CUSTOMERS for a reasonable fee.
3.2 LUCENT's Technical Support Responsibilities
Company acknowledges and understands that the LICENSED SOFTWARE and all
related information and materials furnished by LUCENT under this Agreement
or otherwise are provided "AS IS", and that LUCENT shall have no support,
maintenance or warranty responsibilities of any kind whatsoever with
respect thereto.
3.3 Compliance with Rules
(a) COMPANY'S personnel shall, while on any location of LUCENT, comply
with LUCENT's rules and regulations with regard to safety and
security. LUCENT shall inform such personnel of such rules and
regulations. COMPANY shall have full control over such personnel and
shall be entirely responsible for their complying with LUCENT's rules
and regulations. COMPANY agrees to indemnify and save LUCENT harmless
from any claims or demands, including the costs, expenses and
reasonable attorney's fees incurred on account thereof, that may be
made by (i) anyone for injuries to persons or damage to property to
the extent they result from the willful misconduct or negligence of
COMPANY's personnel; or (ii) COMPANY's personnel under Worker's
Compensation or similar laws. COMPANY agrees to defend LUCENT, at
LUCENT's request, against any such claim or demand.
(b) LUCENT personnel shall, while on any location of COMPANY, comply with
COMPANY's rules and regulations with regard to safety and security.
COMPANY shall inform such personnel of such rules and regulations.
LUCENT shall have full control over such personnel and shall be
entirely responsible for their complying with COMPANY's rules and
regulations. LUCENT agrees to indemnify and save COMPANY harmless
from any claims or demands, including the costs, expenses and
reasonable attorney's fees
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[Material marked with an asterisk has been omitted
from this document pursuant to a request for
confidential treatment and has been filed
separately with the Securities and Exchange
Commission.]
incurred on account thereof, that may be made by (i) anyone for
injuries to persons or damage to property to the extent they result
from the willful misconduct or negligence of LUCENT personnel; or
(ii) LUCENT's personnel under Worker's Compensation or similar laws.
LUCENT agrees to defend COMPANY, at COMPANY's request, against any
such claim or demand.
3.4 Hardware Maintenance
COMPANY agrees to enter into and maintain with LUCENT hardware maintenance
and support agreements, on LUCENT's standard terms and conditions for such
agreements, for all LUCENT switching equipment in conjunction with which
the LICENSED SOFTWARE is used pursuant to the rights granted to COMPANY
under this Agreement.
ARTICLE IV
FEES
In consideration of the rights granted by LUCENT to COMPANY under this
Agreement, COMPANY agrees to pay to LUCENT, in the manner and at the times
specified therefor, the license and other fees set forth in Attachment B.
All such fees are specified in and shall be paid in United States dollars.
In further consideration of such rights, COMPANY agrees to a minimum
purchase requirement of LUCENT hardware, software and services on the terms
and in the manner set forth in Attachment B. Payments shall be made to
LUCENT at the address specified in this Agreement.
COMPANY shall pay all taxes, including any sales or use tax (and any
related interest or penalty), however designated, imposed as a result of
the existence or operation of this Agreement, except any income tax imposed
upon LUCENT by any governmental entity within the United States proper (the
fifty states and the District of Columbia). Fees specified in Attachment B
do not include any taxes, import duties or any other charges that may be
imposed by governmental authorities. If LUCENT is required to collect a
tax or other such charge to be paid by COMPANY, COMPANY shall pay such tax
or other charge to LUCENT immediately upon demand.
ARTICLE V
TERM AND TERMINATION
5.1 Term
This Agreement shall be for an initial term of * commencing upon the
Effective Date, unless terminated earlier as set forth below. This
Agreement shall renew automatically for successive one (1) year terms
thereafter for so long as COMPANY is not in breach of any of the terms of
this Agreement, unless terminated at any time as set forth below, or unless
COMPANY gives LUCENT written notice of termination at least sixty (60) days
prior to the expiration of the initial term or then current renewed term.
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5.2 Breach
If either party fails to fulfill one or more of its material obligations
under this Agreement, the other party may, upon its election and in
addition to any other remedies that it may have, at any time terminate all
the rights granted by it hereunder by not less than thirty (30) days'
written notice to the breaching party specifying any such breach, unless
within the period of such notice all breaches specified therein shall have
been remedied.
5.3 Payment of Fees Upon Termination
The termination of COMPANY'S rights under this Agreement shall not relieve
COMPANY of its obligation to pay any fee hereunder. In the event of
termination, all fees that COMPANY has become obligated to pay hereunder
shall become immediately due and payable. Notwithstanding anything
contained in this Article V, if COMPANY should not fulfill any or all of
its payment or other obligations set forth in Attachment B, all rights
granted under this Agreement shall immediately become null and void, and
the provisions of Section 5.4 shall apply.
5.4 COMPANY'S Termination Obligations
Upon termination as contemplated in this Article V, and except as otherwise
needed to fulfill its post-termination obligations hereunder, COMPANY shall
destroy or return all copies of SOURCE CODE SOFTWARE and OBJECT CODE
SOFTWARE in its possession and certify such destruction in writing to
LUCENT within thirty (30) days. In the event of termination, LUCENT shall
have no obligation to refund any amounts paid it pursuant to Attachment B.
5.5 Survival and Continuing Rights
Notwithstanding expiration or termination of this Agreement, COMPANY
(except as otherwise provided in Section 5.2 and 5.3) and its CUSTOMERS
shall perpetually retain the right to use and support OBJECT CODE SOFTWARE
distributed or placed in use hereunder prior to such expiration or
termination and for which all fees therefor have been paid to LUCENT. The
obligations of COMPANY under Sections 2.5, 6.4 and 6.6 shall survive and
continue after any termination of rights under this Agreement.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Agreement Prevails
This Agreement shall prevail notwithstanding any conflicting terms or
legends which may appear on or in LICENSED SOFTWARE.
6.2 Disclaimer
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, LUCENT AND ITS
SUBSIDIARIES MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND
THE LICENSED SOFTWARE IS PROVIDED HEREUNDER TO COMPANY
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"AS IS". BY WAY OF EXAMPLE, BUT NOT OF LIMITATION, LUCENT AND ITS
SUBSIDIARIES MAKE NO REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE, OR THAT THE USE OF THE LICENSED
SOFTWARE, OBJECT CODE SOFTWARE, OR SOURCE CODE SOFTWARE WILL NOT
INFRINGE ANY PATENT, COPYRIGHT OR TRADEMARK. LUCENT AND ITS SUBSIDIARIES
SHALL NOT BE HELD TO ANY LIABILITY WITH RESPECT TO ANY CLAIM BY COMPANY,
ITS CUSTOMERS, OR ANY THIRD PARTY ON ACCOUNT OF, OR ARISING FROM, THE USE
OF SUCH LICENSED SOFTWARE, OBJECT CODE SOFTWARE, OR SOURCE CODE SOFTWARE.
6.3 Limitation of Liability
EXCEPT FOR LIABILITY UNDER SECTIONS 6.4 AND 6.6, NEITHER PARTY SHALL HAVE
ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT
LIMITATION RELIANCE, COVER, OR LOSS OF ANTICIPATED PROFITS, EVEN IF THE
OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.4 Indemnity
(a) In the event of any claim, action, proceeding or suit by a third party
against COMPANY, its successors and assigns, alleging an infringement
of any copyright, trademark, trade secret or any other proprietary
rights by reason of the use, reproduction, distribution, operation, or
license of LICENSED SOFTWARE by COMPANY and its CUSTOMERS pursuant to
this Agreement, LUCENT, at its expense, will indemnify, defend and
hold harmless COMPANY, its successors and assigns, subject to the
conditions and exceptions stated below. LUCENT will reimburse COMPANY
for any and all costs, expenses, or other losses including court costs
and attorney's fee, incurred at LUCENT's written request or
authorization, and will defend, indemnify, and hold harmless COMPANY,
its successors and assigns, against any liability and damage assessed
against COMPANY and its successors and assigns, by final judgment on
account of such infringement or violation arising out of such use,
reproduction, distribution, operation, or license. The total
liability of LUCENT hereunder shall not exceed the sum of all fees
paid by COMPANY under this Agreement during the twelve (12) month
period prior to LUCENT receiving notice of such claim or suit.
(b) COMPANY shall give LUCENT prompt written notice of all such claims,
actions, proceedings or suits alleging infringement or violation and
LUCENT shall have full and complete authority to assume the sole
defense thereof, including appeals, and to settle same except if the
potential or actual liability exceeds any monetary limitation of
LUCENT's indemnification obligations. COMPANY shall, upon LUCENT's
request and at LUCENT's expense, furnish all information and
assistance reasonably available to COMPANY and cooperate in a
reasonable way to facilitate the defense and/or settlement of any such
claim, action, proceeding or suit.
(c) No undertaking of LUCENT under this Section 6.4 shall extend to any
such alleged infringement or violation to the extent that it:
(i) arises from adherence to design modifications, specifications,
drawings, or written instructions which LUCENT is directed by COMPANY
to follow; or (ii) arises from adherence to instructions to apply
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COMPANY's or a third party's trademark, trade name, or other company
identification; or (iii) relates to use of products, licensed
materials or other items provided by LUCENT in combinations with other
products, licensed materials or other items, furnished either by
LUCENT or others if such infringement would not have occurred but for
such use or combination. In the foregoing cases numbered (i) through
(iii), COMPANY will defend and save LUCENT harmless, subject to the
same terms and conditions and exceptions and liability cap stated
above with respect to LUCENT 's rights and obligations under this
Section 7.1.
(d) If the use, distribution, operation, or license of any portion of the
LICENSED SOFTWARE is enjoined or held to be infringing pursuant to a
claim of which LUCENT was notified in accordance with this Section
6.4, LUCENT will, at its expense and subject to the liability
limitations set forth above, use reasonable efforts (i) to procure for
COMPANY the right to continue using and distributing the LICENSED
SOFTWARE, or (ii) to replace or modify the LICENSED SOFTWARE to make
its use, operation, or distribution hereunder non-infringing and have
substantially equal or superior functional capability. If neither
option is reasonably available in LUCENT's judgment and on terms
reasonably acceptable to COMPANY, and subject to COMPANY and its
CUSTOMERS obtaining such right to continue, COMPANY shall cease use
and distribution of the LICENSED SOFTWARE or portions thereof that
resulted in the final judgment and LUCENT shall refund any license
fees paid under this Agreement for such affected LICENSED SOFTWARE or
portions thereof (subject to five year straight line depreciation).
(e) The liability of LUCENT and COMPANY with respect to any and all
claims, actions, proceedings, or suits by third parties alleging
infringement of patents, trademarks, or copyrights or violation of
trade secrets or proprietary rights because of, or in connection with,
any items furnished pursuant to this Agreement shall be limited to the
specific undertakings contained in this Section 6.4.
6.5 Nothing Construed
Nothing contained herein shall be construed as:
(i) conferring by implication, estoppel or otherwise, any license or
right to use any name, trade name, trademark, service xxxx,
symbol or any other identification or any abbreviation,
contraction or simulation thereof; or
(ii) conferring by implication, estoppel or otherwise, any license or
right under any existing or future patents of LUCENT or its
subsidiaries with respect to the making, use or distribution of
any ADAPTATIONS or ENHANCEMENTS; or
(iii) other than as expressly provided herein, an obligation upon
LUCENT or any of its affiliates to furnish any person,
including COMPANY, any assistance of any kind whatsoever, or
any information or documentation other than LICENSED
SOFTWARE to be furnished pursuant to Section 2.2; or
(iv) other than as expressly provided herein, a grant to COMPANY to
sell, lease, sublicense or otherwise transfer or dispose of
LICENSED SOFTWARE or ADAPTATIONS in whole or in part.
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6.6 Confidentiality
(a) COMPANY agrees to hold all parts of LICENSED SOFTWARE in confidence
for LUCENT. COMPANY further agrees not to make any disclosure of
LICENSED SOFTWARE (including methods or concepts utilized therein) to
anyone except to employees of COMPANY or to designated agents who are
approved by LUCENT in advance of such disclosure (such approval shall
not be unreasonably withheld), to whom such disclosure is necessary
for the use for which rights are granted hereunder. ADAPTATIONS are
to be treated as LICENSED SOFTWARE for these purposes.
(b) COMPANY shall appropriately notify all persons to whom any such
disclosure is made that such disclosure is made in confidence and
shall be kept in confidence by them.
(c) All related documentation and explanatory materials are to be treated
with the same care as the LICENSED SOFTWARE.
(d) SOURCE CODE SOFTWARE and related materials must be under controlled
circulation. A log must be kept of all SOURCE CODE SOFTWARE and
related materials, the log identifying the individuals who obtain
copies or originals of SOURCE CODE SOFTWARE.
(e) Paper copies and representations in other media of SOURCE CODE
SOFTWARE and related materials must be kept in a secured location at
all times when not being used.
(f) The CPUs at COMPANY'S facilities on which the LICENSED SOFTWARE and
ADAPTATIONS reside must be protected from outside access to prevent
unauthorized persons from gaining entry to the system and compromising
the security of the LICENSED SOFTWARE and ADAPTATIONS.
(g) COMPANY will, in addition, implement any other security measures to
protect the SOURCE CODE SOFTWARE that it implements with respect to
its own source code software.
6.7 Partner Program
As of the Effective Date of this Agreement, COMPANY will become a "Partner"
in LUCENT's "Open Network Solutions Partner Program." The benefits of
being a member of this program are more fully described at
xxxx://xxx.xxxxxx-xxx.xxx/xxx/xxxxxxxx. The terms of membership may be
changed at any time by LUCENT without previous notice.
6.8 Publicity
COMPANY agrees that it will not, without the prior written permission of
LUCENT:
(i) use in advertising, publicity, packaging, labeling, or otherwise
any trade name, trademark, trade device, service xxxx, symbol or
any other identification or any abbreviation, contraction or
simulation thereof owned by LUCENT or any of its affiliates or
used by LUCENT or any of its affiliates on any of its or their
products or services, or
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(ii) represent, directly or indirectly, that any product or service of
COMPANY is a product or service of LUCENT or any of its
affiliates or is made in accordance with or utilizes any
information or documentation or LUCENT or any of its affiliates,
6.9 Nonassignability
The parties hereto have entered into this Agreement in contemplation of
personal performance by COMPANY and intend that the rights granted to
COMPANY hereunder not extend to other entities without LUCENT'S express
written consent. LUCENT agrees to not unreasonably withhold such consent
to COMPANY'S assignment of its rights and obligations hereunder to a third
person. All of LUCENT'S rights in this Agreement may be assigned to any
subsidiary, affiliate, or direct or indirect successor to the LICENSED
SOFTWARE business of LUCENT, which assignee shall thereafter be deemed
substituted for LUCENT as the party hereto, mutatis mutandis, effective
upon such assignment; but neither this Agreement nor any rights hereunder
shall be otherwise assignable or transferable (in insolvency proceedings or
otherwise) by either party without the express written consent of the other
party. In the event that COMPANY'S business is transferred in its entirety
at any time to a third person, LUCENT will not unreasonably withhold such
consent.
6.10 Notices
(a) All notices required or allowed to be given by either party under this
Agreement will be in writing and will be addressed to the parties as
follows:
To LUCENT: Lucent Technologies Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xx Xxxxx
To COMPANY: PayStar SHS
00 Xxxxxxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxxx, XX 00000
Attn: E. Xxxxx XxXxxxxx
(b) Any address for delivery of notices may be changed from time to time
upon thirty (30) days advance written notice from the party making any
such change.
(c) All notices required or allowed to be given hereunder will be deemed
to have been given when actually received by the addressee thereof.
All notices shall be sent by: (i) hand delivery (including courier
service); (ii) facsimile service or telex with confirmed answer back;
(iii) registered airmail with return or confirmed receipt requested;
or (iv) by some other method chosen by the party sending the notice
that provides satisfactory proof of receipt of such notice. The
burden of proving receipt will be on the party sending the notice.
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6.11 Non-solicitation of Employees
Neither party shall directly or indirectly solicit or make an offer of
employment to, nor otherwise induce to terminate his or her employment, any
employee of the other party for a period of one (1) year after the
Effective Date of this Agreement.
6.12 Integration
This Agreement and the Attachments hereto set forth the entire agreement
and understanding between the parties as to the subject matter hereof and
merge all prior agreements, communications and discussions between them.
The parties expressly acknowledge and agree that the prior Agreement
between them dated December 6, 2000, relating to such subject matter is
null and void and of no further force or effect. Neither of the parties
shall be bound by any warranties, understandings or representations with
respect to such subject matter other than as expressly provided herein or
in a writing executed with or subsequent to the execution of this Agreement
by an authorized representative of the party to be bound thereby.
6.13 Choice of Law/Commencement of Action
(a) The parties are familiar with the substantive principles of New York
commercial law, and desire and agree that the substantive law of New
York shall apply in any dispute arising with respect to this
Agreement.
(b) No action by one party against the other party under this Agreement
may be commenced more than twenty-four (24) months after the cause of
action accrues.
6.14 Non-Waiver
The failure of any party to insist, in any one or more instances, on
performance of any of the terms and conditions of this Agreement shall not
be construed as a waiver or relinquishment of any rights granted hereunder
or of the future performance of any such term, covenant or condition, but
the obligations of the parties with respect thereto shall continue in full
force and effect.
6.15 Resolution Of Disputes
If any dispute concerning this Agreement arises between the parties
concerning this Agreement, LUCENT and COMPANY agree to endeavor in good
faith to negotiate between themselves a resolution to the dispute before
resorting to litigation.
6.16 Severability
In case any one or more of the provisions contained in this Agreement shall
be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not
in any way be affected or impaired thereby. The parties shall endeavor in
good faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as
close as possible that of the invalid, illegal or unenforceable provisions.
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6.17 Use of Particular Terms
The use of "person" throughout this Agreement shall be construed to mean an
individual, a corporation, or other business entity as under the particular
circumstances are appropriate. Such term is to be viewed as expansive and
inclusive, as opposed to exclusive. The words "maintenance agreement" and
"service agreement" have been used interchangeably without any distinction
in meaning or significance. The use of certain rubrics throughout this
Agreement are merely for convenience purposes and shall not be construed as
limiting or constrictive as to the content of the respective provisions.
6.18 Attachments Incorporated
Attachments A and B hereto, and any Exhibits or Schedules thereto, are
hereby incorporated in and made a part of this Agreement.
6.19 Agreement Counterparts
This Agreement may be executed in one or more counterparts each of which
shall be deemed an original and all of which together shall constitute one
and the same instrument,
IN WITNESS THEREOF, each of the parties has caused this Agreement to be
executed in duplicate originals by its duly authorized representatives on
the respective dates entered below:
LUCENT TECHNOLOGIES, INC. PayStar SHS
/s/ Xxxxxx X. Xxxxxxx /s/ E. Xxxxx XxXxxxxx
(Signature) (Signature)
Xxxxxx X. Xxxxxxx E. Xxxxx XxXxxxxx
(Name) (Name)
VP and GM, OPEN et President, COO
(Title) (Title)
7-31-01 7/23/2001
(Date) (Date)
THIS AGREEMENT DOES NOT BIND OR OBLIGATE EITHER PARTY
IN ANY MANNER UNLESS DULY EXECUTED BY AUTHORIZED
REPRESENTATIVES OF BOTH PARTIES
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ATTACHMENT A
DELIVERABLES
LICENSED SOFTWARE Deliverables
The LICENSED SOFTWARE includes the two most recent versions of
LUCENT's ADS software, including the host, VRU; and the most recent
version of the server. The release numbers of the LICENSED SOFTWARE
to be provided to COMPANY are:
Host: Version 5.0 and 5.1
VRU: Version 5.0 and 5.1
Server: Version 4.39
COMPANY understands and acknowledges that LUCENT is not able to pass
through licenses to some third-party software that is used in the
development of this product. LUCENT recommends that COMPANY contact
the provider(s) of this third party software to acquire the
appropriate licenses. Following is a list of certain third party
software and hardware that may be needed; but LUCENT does not
represent or guarantee that this is a complete list.
Company Web Site Product
------- -------- -------
Rational xxx.xxxxxxxx.xxx Rational Rose Professional
Edition for C++
Microsoft xxx.xxxxxxxxx.xxx Visual Studio: Enterprise
Edition
Installshield xxx.XxxxxxxXxxxxx.xxx Installshield Professional
Sequiter xxx.Xxxxxxxx.xxx CodeBase 6 for Windows
(Supports Win 2000)
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[Material marked with an asterisk has been omitted
from this document pursuant to a request for
confidential treatment and has been filed
separately with the Securities and Exchange
Commission.]
ATTACHMENT B
FEES AND PURCHASE COMMITMENT
License Fees
COMPANY agrees to pay to LUCENT a nonrefundable upfront fee of *
Dollars ($*), with an initial fee payment of * Dollars ($*) of such
upfront fee due and payable by COMPANY upon execution of this
Agreement, and the remaining * Dollars ($*) due and payable by COMPANY
on or before July 31, 2001.
Minimum Purchase Commitment
COMPANY agrees to purchase from LUCENT a minimum of * Dollars ($*) of
new LUCENT products on or before December 31, 2001. A total of *
Dollars ($*) of such minimum commitment must be purchased by COMPANY
and paid for no later than September 28, 2001, and the remaining *
Dollars ($*) of such minimum commitment must be purchased by COMPANY
and paid for no later than December 31, 2001.
LUCENT agrees to furnish such minimum commitment of products to
COMPANY at a discount of * percent (*%) off the standard list prices
for such products. Purchase of future LUCENT products by COMPANY
shall be subject to terms and conditions, including prices and
discounts, to be mutually agreed upon in writing by the parties.
15
