Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT 99.7
OEM/RESELLER AGREEMENT
This OEM/Reseller Agreement ("Agreement") is entered into by and between
Artisoft, Inc. ("Artisoft"), a Delaware corporation having a place of business
at 0 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, and the Telecommunication
Systems Division of Toshiba America Information Systems, Inc. ("TAIS"), a
California corporation having a place of business at 0000 Xxxxxx Xxxxxxxxx,
Xxxxxx, Xxxxxxxxxx 00000. The effective date of this Agreement shall be January
18th, 2000 ("Effective Date").
RECITALS
Artisoft and TAIS desire to enter into an arrangement under which, subject
to the terms of this Agreement, Artisoft will create custom versions of
Artisoft's TeleVantage(TM) or equivalent product or any successors, replacements
or enhanced versions of such product (the "Software") for TAIS, TAIS will brand
and market the custom versions of the Software, and the parties desire to
mutually pursue opportunities in the communication server and software PBX
market.
Therefore, in consideration of the mutual covenants herein, and for other
good and valuable consideration, the receipt and sufficiency of which is
acknowledged by the parties, the parties agree as follows:
AGREEMENT
1. DEFINITIONS. Defined terms are as set forth in the Glossary attached
hereto and incorporated herein.
2. GRANT OF LICENSE TO RESELL THE SOFTWARE
2.1 LICENSE. Artisoft hereby grants to TAIS a worldwide, perpetual
(subject only to termination pursuant to Section 14) license to use, reproduce,
have reproduced, market, have marketed, distribute and have distributed the
customized versions of the Software prepared for TAIS by Artisoft under Section
3 hereof (only in object code form), including, without limitation, all Updates
and Software Fixes and (collectively, the "Licensed Software"), in accordance
with the terms of this Agreement (the "License"). The License shall be
perpetually exclusive to TAIS with respect to the Branded Version and
Proprietary Version as defined in Sections 3.1 and 3.2, and exclusive to TAIS
for certain periods with respect to the [**] versions of the Software as set
forth in Sections 6.2 and 6.3. Artisoft hereby acknowledges and agrees that the
rights granted to TAIS hereunder shall include the right of TAIS to enter into
sublicense agreements with End Users; Dealers; TAIS Affiliates; and, with
respect to the OEM-branded Licensed Software described in Section 3.5 only, the
single TAIS original equipment manufacturer ("OEM") currently in TAIS'
distribution channel ("Current OEM") under End User License Agreements (as
defined in Section 2.2).
2.2 END USER LICENSE AGREEMENT. TAIS will distribute each copy of the
Licensed Software only in connection with an End User license agreement
containing terms and conditions substantially equivalent to those set forth in
Exhibit A, plus any additional nonconflicting terms and conditions to be
determined by TAIS. ("End User License Agreement"). TAIS will use commercially
reasonable efforts to enforce the terms of such End User License Agreements in a
manner consistent with TAIS' standard end user license agreement enforcement
policies and practices.
2.3 COPYRIGHT NOTICE AND LEGENDS. TAIS will not remove any copyright or
other proprietary rights or confidential notices or legends appearing on the
Licensed Software, User Documentation, Documentation or any other documentation
provided by Artisoft to TAIS under this Agreement, but may move such notices or
legends for the purpose of formatting.
3. SOFTWARE CUSTOMIZATION. Artisoft shall customize the Licensed Software
for TAIS, at no cost or expense to TAIS, in accordance with the specifications
and delivery dates set forth in Schedule 3, and shall provide TAIS with a Master
Copy of such software.
3.1 TOSHIBA NAME IDENTIFICATION. Artisoft shall customize a version of
the Software by [**] or other mutually agreed upon date that brands the Software
as a TAIS product in accordance with the specifications set forth in Schedule 3
("Branded Version"). TAIS shall have the final right of approval over all use
and placement of its trademarks in the Licensed Software. Nothing in this
Agreement shall transfer any rights in any TAIS trademarks to Artisoft.
3.2 TOSHIBA PROPRIETARY PHONE SUPPORT. Artisoft shall customize a
version of the Branded Version of the Software by [**] or on a schedule mutually
agreed to by the parties to support TAIS' proprietary telephones and other
features in accordance with the specifications mutually agreed to in writing and
appended hereto as a supplement into Schedule 3 ("Proprietary Version"). To the
extent feasible, Artisoft shall provide TAIS with a mechanism for adding support
for additional TAIS proprietary telephones without modification of the
Proprietary Version through the use of product definition files that may be
edited or added by TAIS and TAIS is hereby granted all rights necessary to edit
or add such files to the Proprietary Version.
3.3 [**] VERSION. Artisoft shall customize a version of the Software by
[**] or on a schedule mutually agreed to by the parties to support and implement
a [**] Extension Feature Set I [**] in accordance with the specifications
mutually agreed to in writing and appended hereto as a supplement into Schedule
3 ("[**] Version"), provided that TAIS makes [**] pre-release code available to
Artisoft at least 180 days prior to the mutually agreed delivery date. In the
event that [**] is not made available to Artisoft at least 180 days before the
mutually agreed to delivery date, Artisoft shall (i) provide TAIS with TAIS'
choice of (1) a Proprietary Version (as described in Section 3.2) of the [**] or
later based version of the Software, or (2) a Proprietary Version (as described
in Section 3.2) of the most advanced TeleVantage(TM) software version, in
accordance with the provisions of Section 3.7; and (ii) provide the [**] Version
to TAIS
within one year of the date on which TAIS makes [**] pre-release code
available to Artisoft. The [**] Version shall implement all features and other
specifications reasonably requested by TAIS, which specifications shall be added
to Schedule 3.
3.4 [**] VERSION. Artisoft shall customize a version of the Software by
[**] or on a schedule mutually agreed to by the parties to support and implement
a [**] Extension Feature Set 2 [**] in accordance with the specifications
mutually agreed to in writing and appended hereto as a supplement into Schedule
3 ("[**] Version"), provided that TAIS makes [**] pre-release code available to
Artisoft at least 180 days prior to the mutually agreed delivery date. In the
event that [**] is not made available to Artisoft at least 180 days prior to the
agreed to delivery date, Artisoft shall (i) provide the [**] Version to TAIS
within 180 days of the date on which TAIS makes [**] pre-release code available
to Artisoft, and (ii) if Artisoft has not previously provided TAIS with the [**]
Version as required herein, shall provide TAIS with TAIS' choice of (1) a
Proprietary Version (as described in Section 3.2) of the [**] or later based
version of the Software, or (2) a Proprietary Version (as described in Section
3.2) of the most advanced TeleVantage(TM) software version, in accordance with
the provisions of Section 3.7. The [**] Version shall implement all features and
other specifications reasonably requested by TAIS, which specifications shall be
added to Schedule 3.
3.5 OEM CUSTOMIZATIONS. Artisoft shall create versions of the Licensed
Software as defined in Sections 3.1, 3.2, 3.3, and 3.4 that brand the Licensed
Software as an OEM product as required by TAIS for its Current OEM. [**] shall
[**].
3.6 OWNERSHIP OF TAIS CUSTOMIZATIONS. All modifications to the Software
under Sections 3.1 and 3.2, including, without limitation, the TAIS
Customizations, shall be owned by TAIS. All TAIS Customizations are a "work for
hire" for the benefit of TAIS. In the event that any TAIS Customizations are not
for any reason deemed a work for hire, Artisoft hereby assigns all its right,
title and interest in and to the TAIS Customizations to TAIS, including, without
limitation, all patent rights, copyrights and trade secrets therein. Artisoft
shall cooperate with TAIS in any reasonable manner to perfect, secure and
evidence TAIS' ownership and rights in the TAIS Customizations.
3.7 MOST CURRENT TECHNOLOGY AND FEATURES. During the term of this
Agreement, Artisoft shall incorporate the most current technology and features
in the Licensed Software. Notwithstanding the previous sentence, Artisoft shall
have no obligation to incorporate any technology or features in the Licensed
Software that (i) TAIS has previous rejected in writing, or (ii) are necessary
to implement third party proprietary technology or interfaces. Artisoft shall
not license to any person any technology or features more advanced or more
efficient than those which exist in the Licensed Software. Artisoft shall not
remove any features or functionality from the Licensed Software without the
express written consent of TAIS.
3.8 If Artisoft fails to deliver any of the deliverables identified in
this Section 3 as required by this Agreement or to cure Defects in such
deliverables in accordance with Section 4.2 within [**] of the delivery date for
each such deliverable as
set forth in Section 3 or as mutually agreed to by the parties ("[**]"), as the
sole remedy, for failure to deliver or cure Defects in accordance with Sections
4.2, TAIS shall have the right to terminate this Agreement and obtain a payment
determined by the Joint Management Team.
4. SOFTWARE ACCEPTANCE
4.1 ACCEPTANCE TESTING. Upon delivery by Artisoft to TAIS, and notice
of such delivery, of each of the Branded Version, Proprietary Version, [**]
Version, [**] Version, and [**] Version ("Delivered Software"), TAIS shall have
[**] to inspect and test the Delivered Software to determine whether the
Delivered Software materially conforms to the Specifications. During such time,
TAIS shall either (i) accept the Delivered Software by written notice of its
approval to Artisoft, or (ii) provide Artisoft with notice of any Defects in the
Delivered Software. TAIS shall accept the Delivered Software if the software
materially conforms to the Specifications.
4.2 CORRECTION OF DEFECTS. If TAIS provides Artisoft with notice of any
Defects in accordance with Section 4.1, Artisoft shall use commercially
reasonable efforts to repair or remedy the Defects, deliver the repaired
software to TAIS, and provide notice of such to TAIS within [**] of such notice.
As TAIS' sole remedy for Artisoft's breach of this Section 4.2, TAIS may
terminate this Agreement and obtain the payments set forth and in accordance
with Section 3.8.
5. ROYALTY FEES, REPORTS AND AUDITS
5.1 ADJUSTMENTS TO ROYALTIES. If during the term of this Agreement, the
published, public list price of the Artisoft version of the Software (measured
by a standard configuration of [**] and [**], not to include [**] or [**]) is
[**] under this Agreement shall be [**]. In addition, all royalty fees shall be
adjusted in accordance with the provisions of Section 5.11.
5.2 EVALUATION, DEMO AND INTERNAL USE COPIES. TAIS shall have no
obligation to pay royalties on (i) a reasonable number of TAIS evaluation or
demonstration copies of the Licensed Software or (ii) a reasonable number of
copies used internally by TAIS, provided that TAIS shall reimburse Artisoft for
any Microsoft royalties paid by Artisoft in connection with the use of
Microsoft's SQL Server for such uses.
5.3 LICENSED SERVER VERSIONS AND SOFTWARE FIXES. No royalties shall be
due upon any distribution or sublicense of any Licensed Server Versions or
Software Fixes, provided that TAIS has already paid a royalty to Artisoft for
the copy of the software being updated.
5.4 ROYALTY FEES. Subject to Sections 5.1 and 5.11, TAIS shall pay
royalties to Artisoft as set forth in subsections (a) through (e) below.
(a) LICENSED CLIENT VERSION ROYALTY FEE. TAIS agrees to pay
Artisoft a royalty fee of $[**] for each copy of the Licensed Client Versions
licensed
by TAIS or its sublicenses to their respective Dealers and End Users ("Initial
Royalty Fee") and TAIS shall have the right to obtain a minimum of [**] copies
of Licensed Client Versions at such a royalty rate.
(b) ADDITIONAL ROYALTY FEE. TAIS agrees to pay Artisoft an
additional $[**] royalty for each copy of the Licensed Client Versions licensed
by TAIS or its subsidiaries through Qualified Artisoft Dealers ("Additional
Initial Royalty Fee").
(c) VoIP AND REPORTER APPLICATION ROYALTY FEES. TAIS agrees to pay
Artisoft (i) a royalty fee in the amount of the royalty for [**] Licensed Client
Versions for each Voice Over Internet Protocol connection ("VoIP Connection")
licensed by TAIS or its sublicensees, and (ii) a royalty fee in the amount of
the royalty for [**] Licensed Client Versions for each Reporter Application
licensed by TAIS or its sublicensees (each as applicable, a "Special Royalty
Fee").
(d) INITIAL PAYMENT SCHEDULE. Subject to subsection 5.4(e), until
such time as TAIS has paid to Artisoft the aggregate amount of $[**] under
this Agreement, all royalty payments shall be made in accordance with the
following schedule:
(1) At the end of the first six-month period after the Effective
Date, TAIS shall pay the greater of (i) the total of the Initial Royalty Fees,
Additional Initial Royalty Fees and Special Royalty Fees applicable under the
provisions of Section 5.4 ("Applicable Royalties") for products licensed in the
preceding six-month period in accordance with Section 5.4, or (ii) $[**];
provided, however, that if the amount in subsection (ii) is greater than the
amount in subsection (i), the difference shall be considered a prepayment of
future royalties and shall reduce any royalties owed to Artisoft in any future
period accordingly until exhausted.
(2) At the end of the second six-month period after the
Effective Date, TAIS shall pay the greater of (i) the Applicable Royalties for
products licensed in the preceding six-month period in accordance with Section
5.4, less any unused prepayments made in any previous period; or (ii) $[**];
provided, however, that if the amount in subsection (ii) is greater than the
amount in subsection (i), the difference shall be considered a prepayment of
future royalties and shall reduce any royalties owed to Artisoft in any future
period accordingly until exhausted.
(3) At the end of the third six-month period after the Effective
Date, TAIS shall pay the greater of (i) the Applicable Royalties for products
licensed in the preceding six-month period in accordance with Section 5.4 less
any unused prepayments made in any previous period; or (ii) $[**]; provided,
however, that if the amount in subsection (ii) is greater than the amount in
Subsection (i), the difference shall be considered a prepayment of future
royalties and shall reduce any royalties owed to Artisoft in any future period
accordingly until exhausted.
(4) At the end of the fourth six-month period after the
Effective Date, TAIS shall pay the greater of (i) the Applicable Royalties for
products
licensed in the preceding six-month period in accordance with Section 5.4, less
any unused prepayments made in any previous period; or (ii) $ [**]; provided,
however, that if the amount in subsection (ii) is greater than the amount in
subsection (i), the difference shall be considered a prepayment of future
royalties and shall reduce any, royalties owed to Artisoft in any future period
accordingly until exhausted.
(5) At the end of the fifth six-month period after the Effective
Date, TAIS shall pay the greater of (i) the Applicable Royalties for products
licensed in the preceding six-month period in accordance with Section 5.4, less
any unused prepayments made in any previous period; or (ii) $[**]; provided,
however, that if the amount in subsection (11) is greater than the amount in
subsection (i), the difference shall be considered a prepayment of future
royalties and shall reduce any royalties owed to Artisoft in any future period
accordingly until exhausted.
(6) At the end of the sixth six-month period after the Effective
Date, TAIS shall pay the greater of (i) the Applicable Royalties for products
licensed in the preceding six-month period in accordance with Section 5.4, less
any unused prepayments made in any previous period; or (ii) $[**]; provided,
however, that if the amount in subsection (ii) is greater than the amount in
subsection (i), the difference shall be considered a prepayment of future
royalties and shall reduce any royalties owed to Artisoft in any, future period
accordingly until exhausted.
(e) SUBSEQUENT PAYMENT SCHEDULE. Upon such time as TAIS has paid to
Artisoft the aggregate amount of $[**] under this Agreement, subsection 5.4(d)
shall no longer apply and TAIS shall pay, within thirty (30) days of the end of
each month, royalties to Artisoft for each Licensed Client Version, VoIP
Connection and Reporter Application licensed in such month in accordance with
the provisions of subsections 5.4 (a) through (c).
5.5 CONDITION TO TOTAL SALES COMMITMENT. Notwithstanding the payment
provisions set forth in Section 5.4, TAIS shall not be obligated to pay the
Minimum Commitment upon the termination or expiration of this Agreement, for any
reason.
5.6 RENEGOTIATION OF ROYALTY FEES. The parties shall, in good faith and
at the earliest possible time, renegotiate the Initial Royalty Fees applicable
to the [**] Version, [**] Version, and (if provided under Section 3.3) the [**]
version after shipment of the first [**] Licensed Client Versions. The parties
shall also, in good faith, renegotiate the Initial Royalty Fees applicable to
the Branded Version and the Proprietary Version after shipment of the first [**]
Licensed Client Versions, provided that the royalties set forth in subsections
5.4(a) through (c) shall remain in effect until such time as the parties agree
in writing on different royalty rates.
5.7 RETURNED PRODUCTS. Artisoft agrees to allow TAIS and its Dealers to
pass along Artisoft's 30-day money-back guarantee on the Licensed Software to
End Users. TAIS shall be credited the full amount of any royalty fees associated
with Licensed Client Versions returned from End Users tinder such money-back
guarantee. If
such royalty fees have already been paid to Artisoft with respect
to the returned copy, TAIS may deduct them from the amount of any future
payments of royalty fees to Artisoft.
5.8 OTHER CHARGES. Fees stated are inclusive of any federal, state,
municipal or other governmental taxes, duties, licenses, fees, excises or
tariffs ("Charges") imposed on the licensing of the Licensed Software by
Artisoft to TAIS; however, Artisoft shall not be responsible for taxes based on
TAIS' income or sales by TAIS. Each party agrees to pay, and to indemnify and
hold the other party harmless from any Charges for which a party is responsible
under this Section 5.7 and shall provide the other party an exemption
certificate as necessary.
5.9 REPORTS. With each payment of royalties, TAIS shall include a
written summary of the number and type of Licensed Software licensed or
sublicensed by TAIS or its Dealers, TAIS Affiliates or OEMs in the relevant
period. TAIS shall maintain an accurate record of the number and type of
Licensed Software licensed or sublicensed by TAIS or its Dealers, TAIS
Affiliates or OEMs and documents reasonably necessary to demonstrate any basis
for any returns under Section 5.7.
5.10 [**]. For the complete period covered by this Agreement, [**]
agrees to [**] represents that the [**] hereunder are [**] in any arrangement
whereby [**] to a [**] terms and conditions. If, during the term of this
Agreement, [**] shall [**] with [**], this Agreement shall thereupon be deemed
[**] during the term of this Agreement, an [**] shall [**] that [**] with this
section. [**] shall maintain an [**] of such [**].
5.11 UPDATE ROYALTIES. In accordance with Section 5.10, if Artisoft
shall provide any Updates to any customer for free, TAIS shall have no royalty
obligations with respect to its distribution and license of such Updates. If
Artisoft charges its customers an update fee specifically for a particular
Update, then TAIS' royalty obligation with respect to its distribution and
license of such Update shall be calculated at the [**] rate provided to
Artisoft's customers from the royalty rate hereunder applicable to the product
being updated.
6. MARKETING
6.1 SHARED DEALERS. TAIS may and shall offer Shared Dealers a proposal
to obtain the Licensed Software from TAIS, and Artisoft shall assist TAIS in the
development of any such proposal and assist TAIS in marketing any such proposal.
6.2 EXCLUSIVE FEATURES. The Branded Version and the Proprietary Version
of the Software shall be exclusive to TAIS. Artisoft shall not license or sell
the Branded Version, the Proprietary Version or any version of the Software
containing any TAIS Customizations to any other person or entity. The features
in the [**] Version and [**] Version that are related to [**] and [**] extension
sets ("[**]") will be exclusive to TAIS for one year after the date that TAIS
accepts (pursuant to Section 4) the respective final, completed [**] Versions.
During each such one-year period, Artisoft shall not
license, sell or otherwise transfer the [**] Version or [**] Version or any
version of the Software containing any [**] Features to any other person or
entity.
6.3 EXCEPTION FOR ARTISOFT-BRANDED SOFTWARE. Notwithstanding, the
provisions of Section 6.2, if Artisoft licenses the [**] or [**] directly from
[**], Artisoft may include the [**] Features in Artisoft's own Artisoft-branded
version of the Software ("Artisoft Software"); provided that:
(a) Artisoft may not sell, license, sublicense or otherwise
transfer the Artisoft Software to any TAIS Dealers, or to any Shared Dealers who
elect to become TAIS Dealers. Such Dealers shall be listed on Schedule 6.3(a),
as such may be amended from time to time;
(b) In light of the disclosure of the confidential information of
TAIS which would inevitably occur in such relationships, Artisoft does not and
shall not have an OEM relationship with [**] or [**];
(c) Neither [**] nor [**] acquires, directly or indirectly, a
thirty (30%) percent or more interest in Artisoft; and
(d) Artisoft agrees to comply with guidelines established by the
Joint Management Team regarding distribution through the Interconnect channel.
6.4 ARTISOFT SUPPORT. Artisoft will proactively support TAIS' sales of
the Licensed Software through Artisoft Dealers as reasonably requested by TAIS
in recognition of the Additional Initial Royalty Fee of $[**] paid to Artisoft
under the provisions of Section 5.4(b).
6.5 ADDITIONAL COVENANTS. Artisoft agrees as follows and agrees to cause
[**] the following provisions:
(a) [**] shall be limited to [**];
(b) As mutually agreed in good faith, [**] will [**]; and
(c) [**] will [**] before [**].
6.6 DEALER LISTS. Each party shall provide to the other a complete
listing of its Dealers at the beginning of each calendar quarter. Such lists
shall be considered Confidential Information and shall be disclosed only as
directed by the Joint Management Team (as defined in Section 7.1 (a) below).
6.7 LIMITATIONS ON UPGRADES. TAIS agrees that, during the term of this
Agreement, TAIS and its sublicensees will not sell (license) upgrades of the
Artisoft-branded software to End Users. Notwithstanding the preceding sentence,
TAIS and its sublicensees may sell (license) Licensed Software to any End Users
in accordance with the royalty and other provisions of this Agreement.
7. MANAGEMENT, PERSONNEL AND ASSETS
7.1 JOINT MANAGEMENT TEAM.
(a) APPOINTMENT OF JOINT MANAGEMENT TEAM. TAIS and Artisoft shall
each appoint an equal number of members, which number shall be mutually agreed
in writing, to a team which shall consist of management representatives (the
"Joint Management Team"). The task of the Joint Management Team will be to meet
as needed, but at least quarterly, for the purpose of providing for efficient
operation under this Agreement and to resolve any continuing dispute between the
parties that has not been resolved after reasonable attempts between tile
parties.
(b) MEETINGS OF THE JOINT MANAGEMENT TEAM. The Joint Management
Team shall meet as often as either party reasonably deems necessary in order to
gather and furnish to the other all information with respect to the matter at
issue which the parties believe to be appropriate in connection with its
resolution. Such representatives shall discuss the problem and negotiate in good
faith in an effort to resolve the dispute without the necessity of any formal
proceeding relating thereto. During the course of such negotiation, and subject
to non-disclosure agreements with third parties, all reasonable requests made by
one party to the other for information will be honored in order that each of the
parties maybe fully advised as to the details of the dispute. The specific
format for such discussions will be left to the discretion of the Joint
Management Team. In the event any issue or dispute is not resolved for whatever
reason within thirty (30) days after the initial request to negotiate such
dispute or issue is given, either party may pursue formal legal remedies. Except
where prevented by the dispute, both parties agree to continue performing their
respective obligations under this Agreement while the dispute is being resolved.
8. TECHNOLOGY
8.1 TECHNOLOGY TRANSFER. Upon or prior to the execution of this
Agreement, TAIS has delivered or will deliver to TAIS the Master Copy of the
current version of the Software (in object code form), User Documentation,
Documentation and any technical documentation reasonably sufficient to permit
programmers skilled in the art to understand the Software, excluding the source
code for the Software, provided that the delivery of such technical
documentation for the Software shall not require Artisoft to create any new
documentation specifically for TAIS ("Technical Documentation"). TAIS hereby
acknowledges and agrees that the Technical Documentation provided to TAIS by
Artisoft hereunder is, and shall remain, the sole and exclusive property of
Artisoft.
9. REPRESENTATIONS AND WARRANTIES
9.1 RIGHTS AND AUTHORITY. Each party, represents and warrants that the
execution, delivery and performance of this Agreement (i) are within its
corporate powers, (ii) have been duly authorized by all necessary corporate
action under its organizational documents, (iii) require no action by or in
respect of, or filing with, any governmental body, agency or official other than
those which have already been duly
taken or made or will be duly taken or made as and when required, (iv) do not
contravene or constitute a default under any provision of applicable law or
regulation or of the organizational documents of it or any agreement, judgment,
order, decree or other instrument binding upon it, and (v) this Agreement
constitutes a legal, valid and binding obligation of each party hereto.
9.2 SERVICES. Artisoft represents and warrants that, in rendering any
services hereunder, it employees shall have the proper skill, background and
training so as to be able to perform in a competent and professional manner and
that all work will be so performed.
9.3 TITLE. Artisoft represents and warrants that it has sufficient
right, title and interest in the Licensed Software, User Documentation and
Documentation to enter into this Agreement and perform all of its obligations
hereunder. TAIS' sole remedy for any breach of this section shall be as set
forth in Section 11.
9.4 NO INFRINGEMENT. Artisoft represents and warrants that the Licensed
Software and the license granted herein do not and will not infringe the
intellectual property rights of any party, including, without limitation,
copyrights, patents, trademarks, and trade secrets. TAIS' sole remedy for any
breach of this section shall be as set forth in Section 11.
9.5 SOFTWARE QUALITY. Artisoft represents and warrants that the Licensed
Software will operate in material conformance with the Specifications.
9.6 YEAR 2000. Artisoft represents and warrants that the Licensed
Software shall accurately process date data (including, without limitation,
calculating, comparing and sequencing) from, into and between the twentieth and
twenty-first centuries, including leap years and shall provide all of the
following functions: (i) properly process and store date information before,
during, and after January 1, 2000, including, but not limited to, accepting date
input, providing date output, and performing calculations on dates or portions
of dates; (ii) function accurately and without interruption before, during and
after January 1, 2000, without any change in operations associated with the
advent of the new century; (iii) respond to two-digit year-date input in a way
that resolves the ambiguity as to century in a disclosed, defined, and
predetermined manner; and (iv) store and provide output of date information in
ways that are unambiguous as to century.
9.7 COMPLIANCE, WITH LAWS. Artisoft represents and warrants that the
Licensed Software, Documentation, and User Documentation shall comply with all
applicable federal, state and local laws, rules, regulations and certification
requirements.
9.8 DOCUMENTATION. The Documentation and User Documentation shall be
sufficient to operate all features and functions of the Licensed Software.
9.9 MARKETING. TAIS makes no representation or warranty, express or
implied, regarding the amount, effectiveness or sufficiency of the marketing and
sales efforts of TAIS related to this Agreement.
9.10 FULFILLMENT OF WARRANTY, OBLIGATIONS TO TAIS. At any time after
acceptance of the Licensed Software by TAIS, if either party shall discover one
or more Defects in the Licensed Software, Documentation, Technical Documentation
or User Documentation or any other respect in which the Licensed Software,
Documentation, Technical Documentation or User Documentation materially fails to
conform to the provisions of any warranty contained in this Agreement, Artisoft
shall, entirely at its own expense, use commercially reasonable efforts to
correct such Defects and nonconformity's in accordance with the problem severity
assignments and response time requirements established by the Joint Management
Team in accordance with Section 12.4, by, among other things, supplying TAIS
with such corrective code and making such additions, modifications or
adjustments to the Licensed Software, Documentation, Technical Documentation or
User Documentation as may be necessary to keep the Licensed Software,
Documentation, Technical Documentation and User Documentation in material
conformity with the Specifications and the warranties herein.
10. LIMITATIONS ON WARRANTIES AND LIABILITY
10.1 LIMITATIONS ON WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, BOTH PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, ANY AND ALL, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
10.2 LIMITED LIABILITY. SUBJECT TO SECTION 11, NEITHER PARTY SHALL BE
LIABLE TO THE OTHER PARTY FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF
PROFITS OR REVENUE, OR INTERRUPTION OF BUSINESS IN ANY WAY ARISING OUT OF OR
RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN
CONTRACT OR TORT, EVEN IF ANY REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
11. INDEMNITY
11.1 INDEMNITY BY ARTISOFT. Artisoft agrees at its expense to
indemnify, defend, protect and hold harmless TAIS and its Dealers, customers,
TAIS Affiliates, officers, directors, employees and agents from and against any
third party suits, claims, proceedings and causes of action, and the resulting
damages, costs (including attorneys' fees and expenses) or expenses arising or
resulting from (i) any third party claim that the Licensed Software infringes
any intellectual property right of any third party, including, without
limitation, patent rights, trademark rights, copyrights, or trade secrets, but
excluding claims to the extent they arise from modifications made to the
Licensed Software directly by TAIS or which are made by Artisoft but are
necessary and unavoidable to implement ideas, features, techniques, interfaces
or processes requested by TAIS, or (b) combinations of the Licensed Software
with third party hardware or software, which combinations could not reasonably
be anticipated by reference to the Specifications; or (ii) any third party claim
arising out of the fault or negligence of Artisoft in connection with this
Agreement, provided that, in the event of any such
claims, Artisoft is promptly notified, rendered reasonable assistance as
required, and permitted to direct the defense or settlement negotiations.
Notwithstanding the foregoing, TAIS shall have approval rights of any
settlement, which approval shall not be unreasonably withheld or delayed. Should
the use of the Licensed Software by TAIS be enjoined or, in the event that
Artisoft desires to minimize its liabilities hereunder, Artisoft may at its
option and expense (a) substitute a functionally equivalent non-infringing
version of the Licensed Software, (b) modify the infringing item so that it no
longer infringes but remains functionally equivalent, or (c) obtain for TAIS the
right to continue use of Such item. If Artisoft is unable after commercially
reasonable efforts to obtain one of the foregoing alternatives, Artisoft shall
have the right to terminate this Agreement and refund any Minimum Commitment
that TAIS has paid in excess of the actual royalty payments that would have been
owed hereunder by TAIS to Artisoft absent the Minimum Commitment.
11.2 INDEMNITY BY TAIS. TAIS agrees at its expense to indemnify, defend,
protect and hold harmless Artisoft and its officers, directors, employees and
agents from and against any Suits, claims, proceedings and causes of action, and
the resulting damages, costs (including attorneys' fees and expenses) or
expenses arising or resulting from (i) any third party claim that (a)
modifications made to the Licensed Software directly by TAIS or (b)
modifications made to the Licensed Software by Artisoft that are necessary arid
unavoidable to implement ideas features, techniques, interfaces or processes
requested by TAIS infringe any intellectual property right of any third party,
including, without limitation, patent rights, trademark rights, copyrights, or
trade secrets; or (ii) any third party claim arising out of the fault or
negligence of TAIS in connection with this Agreement; provided that, in the
event of any such claims, TAIS is promptly notified, rendered reasonable
assistance as required, and permitted to direct the defense or settlement
negotiations. Notwithstanding the foregoing, Artisoft shall have approval rights
of any settlement, which approval shall not be unreasonably withheld or delayed.
12. SUPPORT AND ERROR CORRECTION
12.1 TRAINING. Artisoft shall provide training on the operation,
support and maintenance of the Licensed Software for the number of TAIS
employees reasonably deemed necessary for TAIS to meet its obligations
hereunder. The schedule for such training shall be determined by mutual written
agreement of the parties. Artisoft shall make such TAIS employees aware of all
diagnostics and tools available to support the Licensed Software.
12.2 STRUCTURE OF SUPPORT. TAIS' Dealers shall provide the first line
of support for the Licensed Software sublicensed by TAIS; that is, TAIS' Dealers
shall be the initial interface, responding to telephone or other inquires from
such customers. TAIS shall provide the second line of support for the Licensed
Software. Artisoft will provide to TAIS know-how, tools and diagnostics such
that resolution of problems can be adequately addressed by TAIS. Artisoft shall
provide the third line of support for the Licensed Software, which support
obligations shall be further defined by mutual written
agreement of the parties and which shall include, without limitation, the
support obligations of Artisoft set forth in this Section 12.
12.3 ARTISOFT SUPPORT. Artisoft technical/engineering support staff will
provide support to TAIS in those instances where TAIS support engineers cannot
successfully resolve problems relating to the License Software. Artisoft is
obligated to have testing and debugging tools that are typical for the software
industry.
12.4 SEVERITY ASSIGNMENT AND RESPONSE TIME. Problem severity assignments
and response time requirements will be defined by the Joint Management Team.
12.5 UPDATES AND SOFTWARE-FIXES. Artisoft shall provide TAIS with all
Software Fixes and Updates of the Licensed Software at the same time as their
public release.
12.6 SUPPORTED VERSIONS. Artisoft shall meet its support obligations
described in Sections 12.1 through 12.5 ("Artisoft Support") for the current
version of the Licensed Software and for the prior version of the Licensed
Software free of charge.
12.7 SOURCE CODE ESCROW. Artisoft shall escrow the source code form of
the Licensed Software, the related Support documentation, and all other
information reasonably necessary to maintain, revise, upgrade and correct the
Licensed Software, but shall not include Microsoft's SQL Server (the "Escrowed
Materials") pursuant to the terms of an Escrow Agreement that contains the
provisions of this Section 12.7 and such other terms and conditions as mutually
agreed to by the parties ("Escrow Agreement"); provided, however, that except to
the extent that the existing Escrowed Materials fail to reasonably document the
Licensed Software, Artisoft shall not be obligated to create any new materials
or documentation for any escrow deposit but shall be obligated to label, index
and organize all Escrowed Materials. Artisoft shall make an initial deposit of
the Escrowed Materials within thirty (30) days of the Effective Date and shall
make updated deposits within ten (10) days of any material change in the
Licensed Software, including, without limitation, Software Fixes and Upgrades,
and within ten (10) days of the provision to TAIS of any customized versions of
the Licensed Software identified in Section 3). The Escrow Agreement shall
provide for the escrow agent to perform an independent review of the Escrowed
Materials, at TAIS' expense, to determine whether they meet the requirements of
this Agreement, which review may include compiling the source code. In the event
that (i) Artisoft materially breaches Sections 9.2, 9.5, 9.6, 9.7, 9.10, 12.2 or
12.3 of this Agreement pursuant to Section 14.3, or (ii) Artisoft is in default
of this Agreement under Section 14.4 (any of which, a "Release Event"), the
Escrowed Materials shall be released to TAIS pursuant to the terms of the Escrow
Agreement. Upon delivery of the Escrowed Material to TAIS, Artisoft hereby
grants to TAIS a worldwide, fully-paid, royalty-free, perpetual, irrevocable
license to the intellectual property rights in the Licensed Software and
Escrowed Materials, in such scope as is reasonably necessary to enable TAIS to
support and correct Defects in the Licensed Software and to provide such support
and corrections to its Dealers and its and their End Users.
12.8 EXTENDED SUPPORT OBLIGATIONS. For [**] after any termination or
expiration of this Agreement, regardless of cause, TAIS and Artisoft shall
support each item of the Licensed Software as follows (and Artisoft hereby
grants to TAIS all rights necessary to provide such support):
12.8.1 If the End User's Licensed Software is not the current
version or the immediately preceding version of the Licensed Software, both
Artisoft and TAIS shall make available to the End User all upgrades necessary to
upgrade the End User to the current version of the Licensed Software, which
upgrades may require the End User to change telephone equipment. If such
upgrades are provided to the End User by TAIS, TAIS shall pay the applicable
royalties fees for such upgrades as set forth herein. All such upgrades shall be
provided in an upgrade path that is the most efficient and economical for the
End User. Both TAIS and Artisoft shall maintain an archive of Licensed Software
versions and upgrades as necessary to provide such upgrades.
12.8.2 If the End User's Licensed Software is the current version
or the immediately preceding version of the Licensed Software, or has been
upgraded to the current version or the immediately preceding version of the
Licensed Software under Section 12.8.1, Artisoft shall support the End User's
Licensed Software in accordance with Artisoft's then-applicable standard support
terms and conditions.
13. Confidentiality
13.1 CONFIDENTIAL INFORMATION means the information of either party
("Disclosing Party") which is disclosed to the other party ("Receiving Party")
pursuant to this Agreement in written form and marked "Confidential" or
"Proprietary" or, if disclosed orally or in writing but not so marked, the
Disclosing Party shall send a written summary of such information to the
Receiving Party within thirty (30) days of disclosure and xxxx such summary
"Confidential" or "Proprietary." Confidential Information shall include, but not
be limited to, Documentation, trade secrets, know-how, inventions, techniques,
processes, algorithms, schematics, designs, contracts, manufacturing, assembly
and test process descriptions and procedures, component specifications and
sources, test suites, mechanical drawings, assembly drawings, source code,
internal documentation, test diagnostics source and object code, bills of
materials, customer lists, financial information, sales and marketing plans and
business information.
13.2 USE OF CONFIDENTIAL INFORMATION EXPRESSLY LIMITED. Each party
acknowledges that in the course of the performance of this Agreement, it may and
has obtained the Confidential Information of the other party or its suppliers.
All confidential information disclosed as part of the discussions leading to the
execution of this Agreement shall be deemed to have been disclosed during the
term of this Agreement and shall be subject to this section. The Receiving Party
shall, at all times, both during the term of this Agreement and thereafter for
the longer of (a) five (5) years or (b) such time as the Receiving Party returns
all copies of the Confidential Information to the Disclosing Party, retaining no
copies thereof, keep in confidence and trust all of the Disclosing Party's
Confidential Information received by it and shall not disclose such Confidential
Information to any third party, other than (i) as expressly permitted under this
Agreement, (ii) to the Receiving Party's employees on a "need to know" basis,
(iii) as necessary to further objectives permitted under this Agreement, or (iv)
by a separate agreement between the parties. The Receiving Party shall not use
the Confidential Information of the Disclosing Party other than as expressly
permitted under the terms of this Agreement or by a separate written agreement.
The Receiving Party shall protect the Disclosing Party's Confidential
Information in the same manner and to the same degree as it protects its own
confidential and proprietary information of comparable type and value, but in no
event shall the Receiving Party use less than reasonable care. The Receiving
Party shall immediately give notice to the Disclosing Party of an unauthorized
use or disclosure of Disclosing Party's Confidential Information. The Receiving
Party agrees to assist the Disclosing Party in remedying such unauthorized use
or disclosure of its Confidential Information.
These obligations shall not apply to the extent that Confidential
Information includes information which:
(a) is already known to the Receiving, Party at the time of
disclosure, which knowledge the Receiving Party shall have the burden of
proving;
(b) is, or, through no act or failure to act of the Receiving Party,
becomes publicly known;
(c) is received by the Receiving Party from a third party without
restriction on disclosure where such third party has a right to disclose;
(d) is independently developed by the Receiving Party without
reference to the Confidential Information;
(e) is approved for release by written authorization of the
Disclosing Party; or
(f) is required to be disclosed by a government agency or by a
proper order of a court of competent jurisdiction; provided, however that the
Receiving Party will use its best efforts to minimize such disclosure and will
consult with and assist the Disclosing party in obtaining a protective order
prior to Such disclosure.
14. TERM AND TERMINATION
14.1 TERM. The term of this Agreement is three (3) years, subject to
termination as set forth in this Section and elsewhere in this Agreement.
14.2 RENEWAL. The term of this Agreement may be renewed by either
party, in its sole discretion, for one additional one-year term upon written
notice to the other party thirty (30) days prior to the expiration of the
current term.
14.3 TERMINATION. Either party may terminate this Agreement upon
written notice in the event a material breach by the other party (i) is not
cured within thirty (30) days after written notice thereof ("Breach Notice") to
the other party or, (ii) if
such breach cannot reasonably be cured within such thirty (30) day period, if
the breaching party does not commence to cure such breach within such thirty
(30) day period or fails to diligently pursue and achieve a cure of the breach
within ninety (90) days after the Breach Notice. The Breach Notice shall be
delivered in accordance with the terms of this Agreement and shall specify the
exact nature of the breach.
14.4 CERTAIN EVENTS OF DEFAULT BY THE PARTIES. Either party has the
right to terminate this Agreement and its further obligations by giving a
written notice to the other party upon the occurrence of any of the following
events of default on the part of the other party ("Default Notice") and, unless
the default specified in the Default Notice is cured within the cure period
specific below for such default, this Agreement shall be terminated effective on
the date of the Default Notice:
(a) The other party is involved in any voluntary or involuntary
bankruptcy proceeding, and the proceeding is not dismissed within sixty (60)
days or is placed in a receivership or reorganization proceeding or is placed in
a trusteeship involving an insolvency;
(b) The other party is involved in any proceeding (other than in
bankruptcy court) concerning insolvency, dissolution, cessation of operations,
reorganization or indebtedness or the like, and the proceeding is not dismissed
within sixty (60) days; or
(c) the other party becomes insolvent or unable to pay its debts
as they come due in the ordinary course of business (other than an extension of
payables consistent with normal industry practices) or makes an assignment for
the benefit of its creditors.
14.5 OBLIGATIONS UPON TERMINATION OR EXPIRATION. In order to provide for
an uninterrupted supply of software critical to TAIS' business during any
transition from Artisoft to another supplier upon termination or expiration of
this Agreement, TAIS' license under Section 2, payment obligations under Section
5, marketing rights under Section 6, and source code escrow protections under
Section 12 shall survive any termination or expiration of this Agreement,
regardless of cause, for a period of two (2) years after such termination or
expiration (the "Transition Period"). After the expiration of the Transition
Period, except as set forth in Section 15.8, all rights and obligations of the
parties hereunder shall terminate, and TAIS shall immediately discontinue
distribution of the Licensed Software, User Documentation and Documentation and
derivatives and any products based thereon or documentation relating thereto and
shall deliver to Artisoft or destroy all such product(s), Master Copies and
related materials in its possession furnished hereunder by Artisoft, together
with all copies thereof, and shall warrant in writing within thirty (30) days of
termination that all such materials and all copies thereof have been returned to
Artisoft or erased or destroyed. Notwithstanding the preceding provisions, TAIS
may retain any materials necessary for TAIS to support End Users.
Both parties shall continue to be responsible for safeguarding the trade
secrets and proprietary rights of the other party in accordance with the terms
of this Agreement after any termination or expiration. Regardless of any
expiration or termination of this Agreement for any reason, End User License
Agreements existing as of the date of expiration or termination of the Agreement
or the Transition Period shall continue uninterrupted by such expiration or
termination as perpetual licenses subject to the terms of such End User License
Agreements. Upon termination of this Agreement, any obligation to pay sums due
hereunder continues and such sums shall become due and payable upon the date of
termination.
During the Transition Period, Artisoft shall supply TAIS with new versions
of the Software at mutually agreeable prices.
15. GENERAL PROVISIONS
15.1 ANNOUNCEMENT. Artisoft and TAIS will jointly announce the
agreement upon signing. The content of such announcement shall be mutually
agreed upon by the parties. Both companies will cooperate to make a smooth
transition and avoid any inconvenience to their respective customers and to
accommodate Artisoft's current OEM customers.
15.2 TRANSFER AND ASSIGNABILITY. In order to avoid any potential
conflict between TAIS and other potential investors, including, without
limitation, the inevitable disclosure of TAIS' Confidential Information, except
upon a merger, acquisition or sale of all or substantially all assets related to
the line of business within which the rights granted herein are employed,
neither party may assign, voluntarily, any rights or delegate any duties under
this Agreement (other than to receive payments) without the other party's prior
written consent (which shall not be unreasonably withheld or delayed) and any
attempt to do so without consent will be void. Because of the inevitable
disclosure of Confidential Information incident thereto, it shall not be
unreasonable to withhold consent in the case of a proposed assignment to a
competitor of the party whose consent is requested. This Agreement will bind and
inure to the benefit of the parties and their permitted and respective
successors and permitted assigns. Each party shall be fully responsible and
liable for the obligations of all of its affiliates under the provisions of this
Agreement. For the purposes of this Section 15.2, assignment shall include the
acquisition by a third party of [**] or more of the ownership or voting
interests in Artisoft, provided that, in the case Of Such a proposed acquisition
not consented to by TAIS, and notwithstanding the preceding provisions of this
section, TAIS's sole remedy, which it may choose to exercise in its sole
discretion, shall be to terminate this Agreement and to receive within ten (10)
days of written demand therefor a refund of the total amount of TAIS payments
toward the Minimum Commitment in excess of the actual royalty payments that
would have been owed hereunder by TAIS to Artisoft absent the Minimum
Commitment.
15.3 KEY ASSETS. Artisoft shall not transfer any assets or rights that
are required to meet any of Artisoft's covenants or obligations hereunder,
including, without limitation, the licensing, development and support Of the
Software, unless, in connection
with such transfer, Artisoft causes the transferee to enter into an agreement
with TAIS that meets TAIS' reasonable satisfaction, pursuant to which transferee
agrees to perform Artisoft's duties relating, to the asset or right set forth
herein. In the event that Artisoft breaches this section 15.3, as TAIS's sole
remedy, which it may choose to exercise in its sole discretion, TAIS shall have
an immediate right to terminate this Agreement and to receive within ten (10)
days of written demand therefor a refund of the total amount of TAIS payments
toward the Minimum Commitment in excess of the actual royalty payments that
Would have been owed hereunder by TAIS to Artisoft absent the Minimum
Commitment.
15.4 NOTICES. Any notice or reports required or permitted to be given
under this Agreement shall be given in writing and shall be delivered by
personal delivery, telegram, telex, telecopier, facsimile transmission or by
certified or registered mail, postage prepaid, return receipt requested, and
shall be deemed given upon personal delivery, five (5) days after deposit in the
mail, or upon acknowledgment of receipt of electronic transmission. Notices
shall be sent to the signatory of this Agreement at the address set forth at the
beginning of this Agreement or such other address as either party may specify in
writing.
15.5 WAIVER OR DELAY. Any waiver of any kind or character by either
party of a breach of this Agreement must be in writing, shall be effective only
to the extent set forth in such writing, and shall not operate or be construed
as a waiver of any subsequent breach by the other party. No failure of either
party to insist upon strict compliance by the other party with any obligation or
provision hereunder, and no custom or practice of the parties at variance with
the terms hereof, shall constitute a waiver of either party's right to demand
exact compliance with the terms of this Agreement. Nor shall either party's
delay or omission in exercising any right, power or remedy upon a breach or
default by the other party impair any such right, power or remedy. The exercise
of any right or remedy provided in this Agreement shall be without prejudice to
the right to exercise any other right or remedy provided by law or equity.
15.6 FORCE MAJEURE. If by reason of labor disputes, strikes, lockouts,
riots, war, inability to obtain labor or materials, earthquake, fire or other
action of the elements, accidents, governmental restrictions, appropriation or
other causes beyond the control of a party hereto, either party is unable to
perform in whole or in part its obligations as set forth in this Agreement, then
such party shall be relieved of those obligations to the extent it is so unable
to perform and such inability to perform shall not make such party liable to the
other party. Neither party shall be liable for any loss, injury, delay or
damages suffered or incurred by the other party due to the above causes;
provided, however, that if Artisoft does not perform its obligations in whole or
in part for a period of sixty (60) days or more due to the above causes, TAIS
shall have the right to terminate this Agreement and to receive within ten (10)
days of written demand therefor a refund of the total amount of TAIS payments
toward the Minimum Commitment in excess of the actual royalty payments that
would have been owed hereunder by TAIS to Artisoft absent the Minimum
Commitment.
15.7 INTERDEPENDENCIES. To the extent that a party (the "Excused Party")
is delayed in the performance of an obligation hereunder due to the delay of the
other party (the "Delaying Party") to perform a material obligation hereunder,
then the time allowed for the Excused Party's impacted performance shall be
extended for the number of days that the Delaying Party's performance is
delayed, provided that the Excused Party has given the Delaying Party, prompt
written notice of any such impact upon the Excused Party's performance, which
notice shall detail both the nature of the delay and the impact upon the Excused
Party.
15.8 SURVIVAL OF OBLIGATIONS. The parties agree that their respective
obligations under Sections 3.6, 5.5, 5.7, 5.8, 5.9, 6.2, 10, 11, 12.8, 13, 14.5,
15.8, and 15.19 shall survive any expiration or termination of this Agreement
regardless of cause.
15.9 SEVERABILITY. The provisions of this Agreement are severable, and
if any one or more such provisions shall be determined to be invalid, illegal or
unenforceable, in whole or in party, the validity, legality and enforceability
of any of the remaining provisions or portions thereof shall not in any way be
affected or impaired thereby and shall nevertheless be binding between the
parties hereto. Any such invalid, illegal or unenforceable provision or portion
thereof shall be changed and interpreted so as to best accomplish the objectives
of such provision or portion thereof within the limits of applicable law or
applicable court decisions.
15.10 HEADINGS. The paragraph headings and captions of this Agreement
are included merely for convenience of reference. They are not to be considered
part of, or to be used in interpreting, this Agreement and in no way limit or
affect any of the contents of this Agreement or its provisions.
15.11 GOVERNING LAW. This Agreement shall be construed in accordance
with and all disputes hereunder shall be governed by the laws of the State of
California as applied to transactions taking place wholly within California
between California residents. The Superior Court located in Orange County and/or
the United States District Court for the Central District of California shall
have jurisdiction and venue over all controversies in connection herewith.
15.12 ATTORNEYS' FEES. In any action to interpret or enforce this
Agreement, the prevailing party shall be awarded all court costs and reasonable
attorneys' fees incurred.
15.13 RELATIONSHIP OF THE PARTIES. Nothing contained in this Agreement
shall be construed as creating any agency, partnership, or other form of joint
enterprise between the parties. The relationship between the parties shall at
all times be that of independent contractors. Neither party shall have authority
to contract for or bind the other in any manner whatsoever. This Agreement
confers no rights upon either party except those expressly granted herein.
15.14 NEUTRAL CONSTRUCTION. Each party has cooperated in the drafting
and preparation of this Agreement and been represented by counsel in Such
drafting and
preparation. Accordingly, any rule of law, including but not limited to Section
1654 of the California Civil Code, or any legal decision that would require
interpretation of any claimed ambiguities in this Agreement against the party
that drafted it has no application and is expressly waived.
15.15 COUNTERPARTS. This Agreement may, be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15.16 REPRESENTATIONS. Each party, represents and acknowledges that it
is relying upon its own judgment, including its own estimation of the market for
the Licensed Software and the extent of the Support obligation incurred in
entering into this Agreement and that it has had adequate opportunity to make
whatever investigation or inquiry it deemed necessary or desirable in connection
with the subject matter of this Agreement.
15.17 COMPLIANCE WITH LAWS AND REGULATIONS. Each party shall comply with
all federal, state, local, and foreign laws, rules, and regulations applicable
to its performance of this Agreement.
15.18 ENTIRE AGREEMENT. This Agreement, along with its Schedules,
Exhibits and Glossary, is the complete, entire, final and exclusive statement of
the terms and conditions of the agreement between the parties with respect to
the subject matter hereof. This Agreement supersedes, and the terms of this
Agreement govern, any prior or collateral agreements between the parties with
respect to the subject matter hereof. This Agreement may not be modified except
in a writing, executed by duly authorized representatives of the parties. The
terms and conditions of this Agreement shall prevail notwithstanding any
variance with the terms and conditions of any purchase order or other instrument
submitted by either party.
15.19 EXPORT CONTROL. This agreement involves products and/or technical
data that may be controlled under the U.S. Export Administration Regulations and
that may be subject to the approval of the U.S. Department of Commerce prior to
export. Both parties shall comply with any such export regulations. Any
exportation or reexportation of such products or data, directly or indirectly,
in contravention of the U.S. Export Administration Regulations is prohibited.
15.20 TIME IS OF THE ESSENCE. TIME IS OF THE ESSENCE as to each
provision of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives on the date(s) shown below.
ARTISOFT, INC.
Date: January 14, 2000 By: /s/ T. Xxxx Xxxxxx
------------------------------ -----------------------
T. Xxxx Xxxxxx
President and CEO
TOSHIBA AMERICA INFORMATION
SYSTEMS, INC.,
By: /s/ Xxxx X. Xxxxxx
-----------------------
Xxxx X. Xxxxxx
Date: January 14, 2000 : Senior V.P. Communications
------------------------------- Information Group
EXHIBIT A
END USER LICENSE AGREEMENT
END-USER LICENSE AGREEMENT
FOR 1-1 SOFTWARE
IMPORTANT - READ CAREFULLY BEFORE OPENING THIS PACKAGE: OPENING THIS PACKAGE
INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS AND IS A
REPRESENTATION BY YOU THAT YOU HAVE THE AUTHORITY TO ACCEPT THEM. IF YOU DO
NOT AGREE WITh THESE TERMS AND CONDITIONS, YOU SHOULD PROMPTLY RETURN THE
UNOPENED PACKAGE AND YOUR MONEY WILL BE REFUNDED.
This End-User License Agreement ("Agreement") is a binding, legal agreement
between you (either an individual or a legal entity) and Toshiba America
Information Systems Inc. ("TAIS"). By opening this TAIS [_______________]
Software (the "Software") package, you agree to be bound by the terms of this
Agreement. (The term Software includes the computer software, the associated
media, any printed materials, and any "on-line" or electronic documentation). If
you do not agree to the terms of this Agreement, TAIS is unwilling to license
tile Software to you. In such event, you may not install, use or copy the
Software, and you should promptly contact TAIS or your dealer for instructions
on return of the unused product(s) for a refund.
SOFTWARE LICENSE
The Software is protected by copyright laws and international copyright
treaties, as well as other intellectual property laws and treaties. The Software
is licensed to you, not sold. TAIS and its licensors retain all right and title
to the Software and related documentation.
1. GRANT OF LICENSE: This Agreement grants you the following rights:
- Software: [You may install and use one copy of the Software on one
Computer.]
- Network Use: [_______________]
- Back-Up Copy: [You may make a single back-up copy of the Software. You may
use the back-up copy solely for archival purposes. You must clearly label
any such copy with any copyright notices and any other proprietary legends
which appear on the original copy.]
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS
- LIMITATIONS ON COPYING AND DISTRIBUTION: Except as provided in section I
above, you may not copy, transmit, or distribute the Software, except and
only to the extent that such activity is expressly permitted by applicable
law despite this limitation.
- LIMITATIONS ON REVERSE ENGINEERING AND MODIFICATION: You may not reverse
engineer, decompile, disassemble, modify or create works derivative of the
Software.
- SEPARATION OF COMPONENTS: This Software is licensed as a single product.
Its components may not be separated for use on more than one computer.
- SUBLICENSE, RENTAL AND THIRD PARTY USE: You may not sublicense, rent,
timeshare, loan or lease the Software, or directly or indirectly permit a
third party to use or copy the Software.
- SOFTWARE TRANSFER: [You may permanently transfer your right under this
Agreement, provided you retain no copies, you transfer all of the Software
(including all components, the media, all printed materials, any upgrades,
this Agreement and the recipient reads and agrees to the terms of this
Agreement. Any other transfer, assignment or delegation by you of the
Software or this agreement shall be void. If the Software is an upgrade,
any transfer must include all prior versions of the Software.]
- EXPORT: You may not export the Software without prior written approval from
TAIS. If the Software was purchased in the United States of America, you
agree to comply with all applicable United States laws and regulations
pertaining to export controls. If the Software was purchased outside the
U.S., you may not re-export the Software except as permitted by, the laws
of the United States and the laws of the jurisdiction in which you
purchased the software.
- TERMINATION: Without prejudice to any other rights, TAIS may terminate this
Agreement if you fail to comply with all of the terms and conditions set
forth in this Agreement. In such event, you must return all copies of the
Software and all of its components and documentation to TAIS or certify
that you have destroyed all such copies.
3. COPYRIGHT: All title and copyrights in and to the Software (including, but
not limited to, any images, photographs, animations, video, audio, music, text,
incorporated in the Software, the accompanying printed materials, and any copies
of the Software, are owned by TAIS
or its licensors. You may not copy the printed materials accompanying the
Software.
4. U.S. GOVERNMENT RESTRICTED RIGHTS: The Software and documentation are
provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the
Government is subject to restrictions as set forth in subparagraphs (c)(1)(ii)
of the Rights in Technical Data and Computer Software clause at DFARS
252.227-7013 or subparagraphs (a) through (d) of the Commercial Computer
Software - Restricted Rights at 48 DFR 52.227-19, and in similar clauses in the
NASA FAR Supplement, as applicable. Contractor/Manufacturer is [Toshiba America
Information Systems, Inc., Telecommunications Systems division, 0000 Xxxxxx
Xxxxxxxxx, P.O. Box 19724, Irvine, California 92618-1697.]
5. LIMITED WARRANTY: The Software and related documentation is provided "AS-IS"
and without warranty of a kind, including, but not limited to, the implied
warranties of merchantability and fitness for a particular purpose. TAIS and its
licensors disclaim any warranties relating to the quality and performance of the
Software. If the Software proves defective, you shall be responsible for the
entire cost of all necessary servicing, repair, or correction. TAIS does not
warrant that the functions contained in the software will meet your requirements
or that the operation of the software will be uninterrupted or error free.
However, TAIS warrants that any media accompanying the Software will be free
from defects in materials and workmanship under normal use and services for a
period of ninety (90) days from the date of receipt. Any implied warranties on
the Software and media are limited to ninety (90) days. Some states or
jurisdictions do not allow limitations on the duration of an implied warranty,
so the above limitation may not apply to you.
6. CUSTOMER REMEDIES: TAIS's and its licensors' entire liability and your
exclusive remedy shall be, at TAIS's option, either (a) return of the price
paid, or (b) repair or replacement of the Software that does not meet the
limited warranty in section 5 above and which is returned to TAIS with a copy of
your receipt. Any replacement Software will be warranted for the remainder of
the original warranty period or thirty (30) days, whichever is longer.
7. NO OTHER WARRANTIES: YOU ACKNOLWEDGE AND AGREE THAT THE USE OF THE SOFTWARE
IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TAIS AND
ITS LICENSORS DISCLIAM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED,
INCLUIDNG, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER TAIS NOR ITS
LICENSORS WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR
REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTARE WILL BE UNINTERRUPTED OR
ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE AND RELATED DOCUMENTATION WILL BE
CORRECTED, FURTHERMORE, NEITHER TAIS NOR ITS LICENSORS WARRANTS OR MAKES ANY
REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR
RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELAIBLITY, OR
OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TAIS OR A TAIS
WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD THE TAIS
SOFTWRE PROVE DEFECTIVE, YOU (AND NOT TAIS OR A TAIS AUTHORIZED REPRESENTATIVE)
ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. THIS
LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS WHICH VARY
FROM STATE OR JURISDICTION TO STATE OR JURISDICTION.
8. NO LIABILITY FOR CONSEQUENTIAL DAMAGES: TO THE MAXIMUM EXTENT PERMITTED BY
LAW, IN NO EVENT SHALL TAIS OR ITS LICENSORS BE LIABILE FOR ANY DAMAGES
WHATSOVER (INCLUDING, WITHOUT LIMITATION, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR
INDIRECT DAMAGES FOR PERSONAL INJURY, LOSS OF BUSINESS PROFITS, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER LOSS) ARISING OUT OF
THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF TAIS HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, IN ANY CASE, TAIS' AND ITS LICENSORS' ENTIRE
LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE PRICE
PAID FOR THE SOFTWARE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES,
THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
9. GOVERNING LAW: This Agreement is governed by and construed in accordance with
the laws of the State of California, U.S.A. as applied to agreements entered
into and wholly performed within California between California residents. This
Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the
International Sale of Goods.
10. COMPLETE AGREEMENT. This Agreement is the entire agreement between TAIS and
you with respect to the Software. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY
YOU IS MADE CONDITIONAL ON
YOUR AGREEMENT TO THE TERMS SET FORTH IN THIS AGREEMENT, AND TAIS AGREES TO
FURNISH THE SOFTWARE ONLY UPON THESE TERMS AND NOT UPON THOSE IN YOUR PURCHASE
ORDER. This Agreement replaces all prior understandings and agreements, whether
written or oral. This agreement may not be modified unless TAIS and you both
assent in writing.
11. SEVERABILITY: If for any reason a court of competent jurisdiction finds any
provision or part of any provision of this Agreement unenforceable, that part or
provision shall be enforced to the maximum extent permitted by law so as to
effect the intent of the parties, and the remainder of the agreement shall
continue in full force and effect.
GLOSSARY
[**]
ARTISOFT DEALERS means Dealers authorized by Artisoft and used by
Artisoft from time to time as of the Effective Date and thereafter,
excluding Shared Dealers.
CLIENT means a personal computer, telephone or connected central
office trunk.
[**]
DEALER means resellers and remarketers, at any tier of distribution,
including but not limited to OEMs, VARs, dealers and distributors and
other third party sales channels.
DEFECT means any material nonconformity of the Licensed Software with
the Specifications.
DOCUMENTATION means all documentation, specifications and information
about the Licensed Software that Artisoft makes generally available to
licensees.
END USER is a person or business enterprise which licenses a software
product for its ordinary personal purposes or use in its normal
operations and not for sublicense or transfer to others.
INTERCONNECT DEALERS means Dealers whose primary business is dealing
in business telephone systems and voice products.
LICENSED CLIENT VERSIONS means the versions of the Licensed Software
designed for use on a Client.
LICENSED SERVER VERSIONS means the versions of the Licensed Software
designed for use on a Server.
MASTER COPY means the original copy of the Licensed Software and
Documentation, which shall be delivered by Artisoft to TAIS on
appropriate media.
OEM means any TAIS original equipment manufacturer.
QUALIFIED ARTISOFT DEALERS means Artisoft Dealers certified and
accepted by Artisoft as an authorized dealer to carry Artisoft
telecommunication products and who have signed an Artisoft Dealer
Agreement and are certified to carry the Software.
QUALIFIED TAIS DEALERS means TAIS Dealers certified and accepted by
TAIS as an authorized dealer to carry Toshiba telecommunication
products and who have signed a Toshiba Dealer Agreement and are
certified and adequately trained to carry the Licensed Software.
REPORTER APPLICATION means the statistical analysis Reporter
Application that works with the Software.
SERVER means a computer whose primary function is to provide services
to Clients.
SPECIFICATIONS means the specifications as set forth in the
Documentation, as set forth in Schedule 3, and as otherwise Mutually
agreed to in writing by the parties.
SHARED DEALERS means the Dealers who are both TAIS Dealers and
Artisoft Dealers as of the Effective Date, as listed on Schedule A.
SOFTWARE FIXES are patches, corrective releases, emergency releases,
bug fixes and software fixes developed by Artisoft to correct errors
in the Software.
TAIS AFFILIATES means any entities, directly or in-directly, through
one or more intermediaries, controlling, controlled by, or under
common control with TAIS. The term "control," as used in the
immediately preceding sentence, means with respect to a corporation,
limited liability company, limited life company or limited duration
company (collectively, "limited liability company"), the right to
exercise, directly or indirectly, more than [**] of the voting rights
attributable to the controlled corporation or limited liability
company and, with respect to any individual, partnership, trust,
estate, association or other entity, the possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of the controlled entity.
TAIS CUSTOMIZATIONS means any modifications made by Artisoft to the
Software relating to branding the Software as a TAIS product or which
implements any TAIS trademarks, service marks, trade names,
proprietary information, confidential information, proprietary
interfaces, technology or patents.
TAIS DEALERS means Dealers authorized by TAIS and used by TAIS from
time to time as of the Effective Date and thereafter.
UPDATES means any updates or enhanced versions of the Software,
excluding Software Fixes, that Artisoft makes available to its
customers.
USER DOCUMENTATION means the End User documentation for the Licensed
Software which Artisoft distributes to End Users in the Usual course
of business.
[**]
SCHEDULE A
SHARED DEALERS
[**]
FINAL -2 July 2001 - CONFIDENTIAL
OEM/RESELLER AGREEMENT
ADDENDUM I - June 20, 2001
1. Software Customization
1.1. Toshiba Proprietary Phone Support. In compliance with section 3.2
of the Agreement, Artisoft has customized a version of the Branded Version of
the Software to support the TAIS proprietary telephones and other specifications
mutually agreed to.
2. Fees for new version (with proprietary phone support)
2.1. Fees continue as stated in section 5.4 of original agreement unless
otherwise noted below in this addendum.
2.2. [**] is not available for [**] in new "Proprietary" version. [**]
functionality will be enabled in software via inclusion of [**] Call Center
Agent licenses.
2.3. Call Center Agent Royalty Fees. TAIS agrees to pay Artisoft a
royalty fee in the amount of the royalty for [**] for each Call Center Agent
license. Payment of such royalties count toward minimums of section 5.4(d).
3. Update Royalties
3.1. Per section 5.11 of the Agreement, TAIS agrees to pay Artisoft
royalty fees for software to update existing customers to the new version.
3.2. To update any Licensed Client Version license, TAIS agrees to pay
Artisoft a royalty fee in the amount [**] in the Agreement [**]. Licensed Client
Version licenses independently account for personal computer, telephone, or
connected central office trunk (see Glossary definition of "Licensed Client
Versions" and "Client").
3.3. To update any VoIP Connection, TAIS agrees to pay Artisoft in the
amount of the royalty [**] in the Agreement [**].
3.4. To update any Reporter Application, TAIS agrees to pay Artisoft in
the amount of the royalty [**] in the Agreement [**].
Artisoft: TAIS:
ARTISOFT, INC. TOSHIBA AMERICA INFORMATION
SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx By:/s/ Xxxx X. Xxxxxx
-------------------- -------------------------
Printed: Xxxxxx X. Xxxxxx Printed: Xxxx X. Xxxxxx
------------------------------------- --------------------
Title: President and Chief Executive Officer Title: Senior V.P.
------------------------------------- Communications
Information Group
Date: July 2, 2001 ----------------------
----------------------------------------
Date: July 10, 2001
----------------------
