EXHIBIT 10.35
-------------
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE PORTIONS OF THE
AGREEMENT INDICATED WITH AN ASTERISK (*). A COMPLETE COPY OF THIS AGREEMENT,
INCLUDING THE REDACTED TERMS, HAS BEEN SEPARATELY FILED WITH THE SECURITIES &
EXCHANGE COMMISSION.
OBJECTIVE SYSTEMS INTEGRATORS, INC.
ENTERPRISE LICENSE AGREEMENT
CONTRACT ELA - 352
THIS ENTERPRISE LICENSE AGREEMENT ("Agreement") is entered into as of September
22, 2000 ("Effective Date"), between OBJECTIVE SYSTEMS INTEGRATORS, INC.
("OSI"), and E.SPIRE COMMUNICATIONS, INC. ("e.spire").
1. DEFINITIONS
-----------
(A) COMBINED SOFTWARE. Computer code, data files or rules that result from
(1) other computer code, data files or rules being linked, combined or
otherwise operated with OSI Software, or (2) Licensee's extensions or
enhancements to OSI Software.
(B) CONFIDENTIAL INFORMATION. Written, machine-reproducible and visual
materials that are described in this Agreement, or clearly marked when
disclosed, as being confidential, together with all visual or oral
materials that are identified as confidential at the time of their
disclosure or, based on the circumstances of the disclosure, ought
reasonably understood to be confidential.
(C) DOCUMENTATION. User manuals and similar documents supplied to e.spire
with OSI Software. Documentation does not include product or service
descriptions, advertising materials or marketing materials.
(D) INSTALLATION DATE. The day that OSI declares OSI Software ready for
use, if it is to be installed by OSI, or the day it is installed by
Licensee, if it is not to be installed by OSI; provided, however, in
all events the Installation Date will be on or before December 31,
2000.
(E) LICENSEE. e.spire*.
(F) LICENSEE SOFTWARE. Computer code, modules, programs, data files or
rules that are owned by or licensed to Licensee and designed to be
linked, combined or otherwise operated with OSI Software. Licensee
Software does not include OSI Software.
(G) NETWORK. e.spire's internal local or wide area network, including
interfaces deployed outside of its facilities that are used for
communicating with other entities.
(H) OSI SOFTWARE. Computer code, data files and rules that are listed as
OSI Software in an Order or that are provided to Licensee in
connection with Support. OSI Software does not include Licensee
Software.
(I) .*
(J) SELF-HELP CODE. Any back door, time bomb, drop dead device or other
software routine designed to disable a computer program automatically
with the passage of time or under the positive control of a person
other than e.spire. Self-Help Code does not include authorization
codes or other software routines designed to permit
ELA - 352 PAGE 1
OSI or its agents to obtain access to e.spire's computer systems for
purposes of maintenance, usage statistics or technical support.
(K) SUPPORT. The update, maintenance and support services described in
Exhibit 4.
(L) UNAUTHORIZED CODE. Any virus, Trojan horse, worm, or other software
routines designed to permit unauthorized access, to disable, erase, or
otherwise harm software or data, or to perform any other similar
actions. Unauthorized Code does not include Self-Help Code.
(M) VENDOR. A third party that provides software modules embedded in OSI
Software.
2. FEES, ORDERS AND PAYMENT
------------------------
(A) FEES. Licensee will pay the fees set forth in Exhibit 1 and at the
time specified in Exhibit 1.
(1) Payment will be made in U.S. Dollars and in immediately available
funds. Amounts not paid when due will accrue interest at the
lesser of 1.5% per month or the highest rate permitted by law.
Licensee will reimburse OSI for all fees, costs and expenses
(including reasonable attorneys' fees) incurred to collect
overdue amounts.
(2) *.
(B) TAXES. Fees exclude, and Licensee will pay, all sales, value-added,
use or other governmental taxes and fees except for taxes based on
OSI's net income ("Taxes"). Taxes paid or payable by OSI will be
invoiced to and paid by Licensee. If Licensee is required to make a
Tax or other withholding in connection with a payment, the amount due
will be that which, having been grossed-up and the tax withheld, will
yield OSI the same amount as it would have received if no withholding
had been made. OSI will contest any Taxes that e.spire reasonably
deems improperly levied, at e.spire's sole expense and subject to its
direction and control.
(C) ORDERS. Licensee will use the Order form attached as Exhibit 2
("Order") to acquire any additional copies of OSI Software under this
Agreement. If Licensee modifies this form or submits a different form,
OSI will not be bound to any additional or different terms unless it
expressly consents to them. If Licensee is in material breach of this
Agreement, OSI may delay or cancel outstanding Orders. Otherwise, all
Orders will be filled and are included within the license fees set
forth in Exhibit 1.
(D) CHANGES AND CANCELLATIONS. Orders may be changed or cancelled on
notice to OSI not less than 30 days before scheduled shipment.
Licensee will pay any out-of-pocket expenses reasonably incurred by
OSI in connection with the change or cancellation.
(E) DELIVERY. OSI will pack and ship OSI Software according to its
standard practice, F.O.B. OSI's factory. Freight and insurance charges
will be prepaid and invoiced to Licensee. Licensee will not acquire
title to OSI Software. Risk of loss will pass when OSI Software is put
on a carrier at OSI's facility. OSI will have no liability in
connection with shipment except in the case of its gross negligence,
in which case OSI's liability will be limited to promptly providing
replacement OSI Software. Partial shipment is not allowed without
Licensee's prior approval. If a partial shipment occurs without
Licensee's prior approval, Licensee will have no obligation to pay for
the shipment until any shortfall has been delivered by OSI.
(F) AUDITS. On reasonable notice and no more than once per year, OSI or
its agents (who will not be a competitor of e.spire or a Related
Entity) may during normal business hours have access to Licensee's
facilities to inspect Licensee's facilities (including its computers)
and records to verify Licensee's proper use of the OSI Software
governed by this Agreement. Licensee will keep records, in a format
reasonably chosen by Licensee, regarding its use in sufficient detail
to permit this verification. Licensee will also provide OSI with
on-site access to its network and on-site access to its records, all
as reasonably necessary to conduct a proper audit. Audits will be
made, if at all, only in connection with (1) the termination or
non-renewal of this Agreement, (2) the termination or non-renewal of
any license under this Agreement, or (3)
ELA - 352 PAGE 2
use by a Related Entity in connection with that Related Entity ceasing
to be a Related Entity as defined in this Agreement.
3. LICENSES
--------
(A) GENERAL. This Section contains the rights granted to Licensee in OSI
Software. Except for rulesets, which are provided in OSI's 4GL
programming language, Licensee will receive only an object code
license for OSI Software.
(B) LICENSE GRANTS. Licensee is granted a personal, non-transferable,
non-exclusive, * license, solely for its own internal use and without
rights to sublicense, to (1) load, install, execute, display and store
OSI Software, (2) use the Documentation for that purpose, (3) extend
or enhance OSI Software, and (4) use OSI Software as a part of
Combined Software.
(C) TERM AND LIMITATIONS. * Licensee will not, nor will it permit others
to, use OSI Software to develop code, objects, modules or programs
that modify or substitute for code, objects, modules or programs in
OSI Software. Use of OSI Software is limited those uses for which
Licensee has paid the applicable fees. OSI Software may contain
authorization codes and lockout software that restricts their
operation to properly licensed uses.
(D) INTELLECTUAL PROPERTY. Licensee will not copy, alter, adapt, modify or
make derivative works of OSI Software except as permitted by this
Section. A reasonable number of backup copies of OSI Software may be
made (and a reasonable number of copies of the Documentation for
Licensee's internal use) provided that all proprietary notices on and
in the OSI Software and Documentation are simultaneously copied. OSI
Software may contain processes or techniques that are patented. No
license to use those processes and techniques apart from the OSI
Software is granted.
(E) REVERSE ENGINEERING. Licensee will not, and waives to the fullest
extent permitted by law any right to, reverse engineer, decompile,
disassemble or otherwise derive the source code for OSI Software, or
to decode, de-encrypt or engineer around any security measures in OSI
Software.
(F) TRANSFERS. Licensee may transfer OSI Software to computers that are
owned by or leased to Licensee. However, it will need to obtain the
requisite authorization codes from OSI before making the transfer.
Licensee will not otherwise rent, license, sell or transfer any
portion of the OSI Software. Any purported transfer will be void, will
be a breach of this Agreement and will cause the licenses granted in
this Agreement to automatically terminate without notice to Licensee.
(G) THIRD PARTY SERVICES. Licensee will not use OSI Software to provide
network management or operations support services to a third party,
other than another Related Entity, except in combination with
providing other services to the third party via Licensee's Network.
This will apply whether the elements of the Network are owned by the
third party, leased to the third party by Licensee, or fully owned by
Licensee.
(H) *
4. OWNERSHIP AND PROPRIETARY RIGHTS
--------------------------------
(A) OWNERSHIP. All right, title and interest to copyrights, trade secrets,
patents and other intellectual property rights (1) in OSI Software
will remain the exclusive property of OSI and its Vendors, and (2) in
Licensee Software and the Network will remain the exclusive property
of Licensee. For Combined Software, the parties will each retain full
and exclusive rights to those portions of their respective software
that are incorporated into the Combined Software. Combined Software
will not be a joint work, and on termination of the license to OSI
Software included in Combined Software, Licensee's right to use that
OSI Software will end, even as part of Combined Software.
ELA - 352 PAGE 3
(B) OSI CONFIDENTIAL INFORMATION. All aspects of OSI Software, including
programs, methods of processing, program design and structure, and the
interaction and unique programming techniques they employ, are
Confidential Information.
(C) LICENSEE CONFIDENTIAL INFORMATION. All aspects of Licensee's Network,
including programs, methods of processing, structure, the interaction
of elements within the Network and unique programming techniques
employed by Licensee to facilitate that interaction, are Confidential
Information.
5. INSTALLATION, SUPPORT AND TRAINING
----------------------------------
(A) INSTALLATION AND SUPPORT. OSI will not be responsible for installing,
testing, managing or controlling OSI Software. Exhibit 4 contains the
terms that will apply to Support.
(B) TRAINING. OSI will make available to Licensee a total of * OSI
Training Units that can be used by Licensee at any time during the
Term for OSI training. Training classes will be held at mutually
agreed times and at OSI's designated facilities within the continental
United States. The cost of these training credits is included within
the fees in Exhibit 1. Additional training will be in accordance with
the OSI's standard rates in effect at the time the training occurs, or
at any other rates the parties may later agree, and subject to OSI's
standard cancellation policies. Licensee will be responsible for the
travel and other out-of-pocket expenses of its employees attending OSI
training.
6. WARRANTIES
----------
(A) WARRANTIES. OSI makes the following warrants for the benefit of
e.spire:
(1) For 90 days after the Installation Date, the media on which the
each component of OSI Software is recorded will be free from
defects.
(2) For 90 days after the Installation Date, each component of OSI
Software will operate in all material respects as described in
its Documentation.
(3) OSI has all necessary authority, right and power to convey the
licenses granted in this Agreement.
(4) OSI knows of no infringement claims or facts that would give rise
to an infringement claim regarding its ownership or license of
the OSI Software.
(5) The OSI Software, including future updates, does not and will not
contain any Self-Help Code or any Unauthorized Code. OSI makes
this warranty notwithstanding any state law that authorizes the
use of Self-Help Code.
(B) LIMITATIONS. THE WARRANTY IN SECTION 6(A) IS EXCLUSIVE. EXCEPT FOR
THAT WARRANTY, OSI SOFTWARE AND SUPPORT ARE PROVIDED "AS-IS." THIS
WARRANTY DOES NOT GUARANTEE THAT (1) OSI SOFTWARE WILL PERFORM IN
EVERY OPERATING ENVIRONMENT OR BE UNINTERRUPTED OR ERROR FREE IN ITS
OPERATION, OR (2) ANY DEFECT OR MALFUNCTION CAN OR WILL BE CORRECTED.
NO OTHER WARRANTY OR CONDITION IS EXPRESSED OR IMPLIED, INCLUDING
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY.
OSI will have no warranty obligation with respect to (1) any portion
of OSI Software that has been modified, altered or combined with other
software by a party other than OSI, unless the modification has been
approved in writing or required by OSI, or (2) defects or malfunctions
resulting from causes other than ordinary and proper use, or from
hardware or software other than that provided, approved in writing or
required by OSI and in the form provided, approved or required by OSI.
(C) EXCLUSIVE REMEDIES. Licensee's sole remedy for a breach of the limited
warranties in Section 6(a) will be for OSI to use commercially
reasonable efforts to restore the OSI Software so that it materially
conforms to its Documentation as described in Exhibit 4. If it cannot
do so, Licensee may terminate its license for the non-conforming OSI
Software and obtain a refund of the pro rata license fees paid to OSI
for the license.
ELA - 352 PAGE 4
(D) PRE-RELEASE SOFTWARE. On request, OSI may provide Licensee with
Pre-Release OSI Software (such as "alpha" or "beta" versions of new or
existing OSI Software) for evaluation and familiarization. Pre-Release
OSI Software is provided "as is" and without warranty of any kind. It
may contain bugs or inoperable features that will not be corrected.
OSI may change Pre-Release OSI Software significantly before
commercial release, or even not produce a commercial product based on
Pre-Release OSI Software.
7. DAMAGES AND LIMITATIONS
-----------------------
(A) DAMAGES. NEITHER PARTY WILL BE LIABLE, REGARDLESS OF THE FORM OF
ACTION, FOR LOST DATA, REVENUES, PROFITS OR SAVINGS, OR FOR INDIRECT,
CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF THE
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES. THIS
LIMITATION WILL NOT APPLY TO A BREACH OF SECTIONS 3, 4 OR 10(A).
(B) AGGREGATE LIABILITY. OSI WILL NOT BE LIABLE FOR DAMAGES IN EXCESS OF
*. THIS LIMITATION WILL (1) APPLY REGARDLESS OF THE FORM OF ACTION,
WHETHER CONTRACT OR TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY,
AND (2) NOT APPLY TO INDEMNITY UNDER SECTION 8 OR TO LIABILITY FOR
REAL PROPERTY DAMAGE, DEATH OR BODILY INJURY CAUSED BY OSI'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
8. INFRINGEMENT INDEMNITIES
------------------------
(A) OSI INDEMNIFICATION.
(1) So long as Licensee complies with the material terms of Sections
3 and 4, OSI will defend Licensee against any claims, and
indemnify and hold it harmless against any judgments, directly or
indirectly resulting from a claimed infringement or violation of
copyright, patent or other intellectual property rights with
respect to OSI Software. However, OSI will not be liable for any
claims or judgments based directly on (a) the actions of
Licensee, its employees or agents, unless those actions were on
the express instructions or authorization of OSI, (b) use of a
version, modification or adaptation of OSI Software, if the
infringement would have been avoided by the use of a then-current
unaltered release of OSI Software that had been provided to
Licensee under this Agreement before the claim, (c) use of
Combined Software, if OSI Software operated independently of the
Combined Software is not the cause of the infringement unless the
infringement arises from OSI's express instructions to Licensee,
or (d) use of OSI Software in combination with any hardware,
software or data not delivered in that combination by OSI, unless
the use or combination was made on the express instructions to
Licensee.
(2) On receiving notice of a claimed infringement, OSI may (a) settle
on terms that permit continued use of the OSI Software, (b)
modify the OSI Software to be non-infringing, or (c) if these
remedies are not reasonably available, grant Licensee a credit
equal to the depreciated value of the OSI Software that is the
cause of the claim on its return to OSI. Depreciation will be
based on a 48-month life that begins on the Installation Date.
(3) THIS SECTION PROVIDES LICENSEE'S SOLE REMEDY FOR INFRINGEMENT OF
PATENTS, COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS.
(B) LICENSEE INDEMNIFICATION. Licensee will defend OSI and its Vendors
against any claims, and indemnify and hold them harmless against any
judgments, directly or indirectly resulting from a claimed
infringement or violation of copyright, patent or other intellectual
property rights with respect to OSI Software to the extent that
Licensee Software or any of the acts described in Section 8(a)(1)(a) -
(d) is the cause of the claimed infringement or violation.
(C) COOPERATION. Notwithstanding the above, an indemnifying party not
obligated to defend or indemnify another party unless: (1) it has been
promptly notified of the claim or suit and furnished with a copy of
each pleading, communication, notice and other action relating to the
claim or suit, (2) it is allowed, at its
ELA - 352 PAGE 5
expense, to assume sole authority to conduct the trial or settlement
of the claim or suit and any negotiations related to it, and (3) the
party being indemnified promptly provides all information and
assistance the indemnifying party reasonably requests in connection
with the claim or suit.
9. TERM AND TERMINATION
--------------------
(A) TERM. This Agreement will start as of the Effective Date and will
remain in effect for * months ("Term").
(B) TERMINATION OF AGREEMENT. This Agreement may be terminated (1) by
either party on breach by the other remaining uncured 30 days after
notice specifying the breach with particularity, (2) immediately on
notice by OSI under Section 3(f), or (3) by notice from either party
if the other party becomes insolvent, bankrupt or makes an assignment
for the benefit of creditors.
(C) TERMINATION OF LICENSES. The licenses granted in Section 3 will
terminate on the earliest of the following to occur: (1) termination
of this Agreement by OSI under Section 9(b), (2)* or (3) notice from
Licensee. On termination of a license, Licensee will immediately
destroy or return to OSI, at Licensee's option, all copies of the
relevant OSI Software in its possession or under its control. If
Licensee elects to destroy the OSI Software, it will provide written
confirmation from a full time employee at the Vice President level or
above to the effect that the OSI Software has been destroyed. Licensee
will thereafter have no continuing rights to that OSI Software,
whether alone or as part of Combined Software.
(D) RENEWAL. Not less than 60 days before expiration of this Agreement,
the parties will meet to (1) determine the scope of Licensee's
then-current use of the OSI Software, and (2) agree pricing that will
apply to Licensee's use, if any, of the OSI Software in excess of its
volume of use on the date of expiration. Absent agreement, pricing for
additional usage increments of OSI Software will be set at OSI's
then-current list prices.
(E) SURVIVAL. On expiration or termination of this Agreement, the
obligations of Licensee to pay amounts owed to OSI and to discharge
any liability incurred before expiration or termination will survive,
together with the provisions of Sections 2- 4 and 6-10.
10. GENERAL
-------
(A) CONFIDENTIAL INFORMATION. In the course of their dealings, each party
will acquire Confidential Information about the other and its
partners, including Confidential Information regarding business
activities and operations, technical information and other trade
secrets. Each party will hold the other party's Confidential
Information in confidence. Neither party will use the other's
Confidential Information for purposes other than to perform this
Agreement nor will they disclose the other's Confidential Information
except to those employees or advisors who (1) have a need to know it,
and (2) are bound by law or have otherwise agreed in writing to
maintain its confidence. Confidential Information includes all
nonpublic components of OSI Software, including program design and
structure, the unique programming techniques employed, and performance
data or test results. It also includes a party's non-public plans for
new products or services, product improvements and business
strategies. If a party discovers Confidential Information has been
improperly used or disseminated, it will immediately notify the other
party and take all reasonable actions to minimize the impact of the
use or disclosure.
(B) EXCLUDED INFORMATION. Even if marked as confidential, Section 10(a)
will not apply to information that is (1) generally available to the
public, (2) known by the receiving party without obligation of
confidentiality before the negotiations leading to this Agreement, (3)
independently developed by the receiving party outside the scope of
this Agreement, (4) lawfully disclosed to the receiving party without
restriction by a third party having the right to make the disclosure
or (5) required to be publicly disclosed to a court or other tribunal.
For required disclosures to a court or tribunal, the receiving party
will promptly notify the disclosing party of the proceedings and fully
assist it, at the expense of the party seeking protection, in
obtaining protective orders to maintain the confidentiality of its
Confidential Information.
ELA - 352 PAGE 6
(C) COMPLIANCE WITH EXPORT AND OTHER LAWS.
--------------------------------------
(1) OSI Software, and all related rights, technical data and
information, are subject to export controls imposed by the U.S.
Government and other countries. Licensee will comply with all
applicable import, export or other control restrictions. To the
extent Licensee wishes to export OSI Software, OSI will provide
Licensee with reasonable assistance to enable it to comply with
applicable export laws.
(2) Each party, at its expense, will comply with all applicable laws,
regulations, codes and ordinances. In addition to being a breach
of this Agreement, to the extent that any such non-compliance
results in liability which flows in whole or in part to the
non-violating party, the non-violating party will be entitled to
require the violating party to provide full and complete
indemnification. Neither party will be bound by any provision of
this Agreement to the extent, but only to the extent, that it
violates applicable law.
(D) TRADEMARKS. Neither party will have any claim or right in the other's
name, logo, trademarks, and other identifying xxxx, including
trademarks, service marks, or trade names owned, used or claimed by
the other ("Identifying Marks"). Neither party will lodge any filings
with respect the other party's Identifying Marks nor to marks
confusingly similar to the Identifying Marks.
(E) ORDERLY TRANSITION. If the Agreement terminates other than as a result
of Licensee's material breach, OSI will provide Licensee with
reasonable assistance in its transition to another vendor. This
assistance will not include providing Confidential Information or
protected intellectual property to the new vendor, but will include
such items as the provision of reports, files or similar documents
necessary for the continued operation of Licensee's Network. OSI will
be compensated for this assistance but the amount of that
compensation, if any, will be as mutually agreed by the parties.
(F) NO SOLICITATION. Neither party will (1) solicit the other's employees
or otherwise aid, encourage, or advise employees of the other to
terminate their employment, or (2) hire an individual who has been an
employee of the other at any time within the six months after the
individual has ceased being an employee of the other. The foregoing
will not be deemed to preclude a party from hiring an employee of the
other who has responded to a notice of a vacant position open to the
general public.
(G) NOTICES AND CONSENTS. Notices, consents, approvals and communications
given under this Agreement will be (1) in the English language, (2) in
writing, (3) sent by registered or certified mail, return receipt
requested, postage prepaid, sent by confirmed facsimile, or sent by a
courier service that obtains a signed receipt, in all cases to the
address indicated below or to such other address as a party designates
by prior notice, and (4) effective on the date received unless a later
date is otherwise indicated in the notice, consent or communication.
(H) ASSIGNMENT. This Agreement is not assignable, including by operation
of law, by either party, either in whole or in part, without the prior
consent of the other party, which consent will not be unreasonably
withheld. * This Agreement will be binding on and inure to the benefit
of the parties and their respective successors and permitted assigns.
(I) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of California, United States of
America, excluding its choice of law principles. The United Nations
Convention on Contracts for the International Sale of Goods will not
apply.
(J) ARBITRATION. Any dispute, controversy or claim arising out of or
relating to this Agreement will be finally resolved by binding
arbitration under the Commercial Arbitration Rules of Arbitration of
the American Arbitration Association in effect at the time of the
arbitration ("AAA Rules"). There will be one arbitrator selected by
mutual agreement of the parties within 45 days after the initiation of
arbitration. If the parties do not agree on the arbitrator within that
period, the President of the State Bar of California at that time will
make the selection.
(1) The venue of the arbitration will be Folsom. California. All
proceedings will be conducted in English and, translations into
English of all non-English language documents filed, submitted or
exchanged
ELA - 352 PAGE 7
during the proceedings will be supplied concurrently by the
producing party. On reasonable notice to the other party and the
arbitrator, a party may use expert and rebuttal witnesses.
(2) Each party will pay its own fees and expenses in connection with
the arbitration. Common expenses (such as the fees of the
arbitrator) will be borne by the parties as the arbitrator may
determine.
(3) The award of the arbitrator will be (a) in writing (including
reasons), and (b) final and binding on the parties. Judgment on
the award may be entered and enforced by any court of competent
jurisdiction.
(4) In no event will the arbitrator award punitive damages or any
other damages that are not permitted under the express terms of
this Agreement.
(5) Without prejudice to the AAA Rules, either party may apply to any
court of competent jurisdiction for such interim relief as it
considers appropriate, without the need to post bond or other
security, or if required, then the minimum bond or security
required.
(K) EQUITABLE RELIEF. Breach of a party's obligations regarding
intellectual property rights will cause irreparable injury for which
there is no adequate remedy at law. The aggrieved party will be
entitled to equitable relief in addition to all other remedies that
may be available, without the posting of bond or other security, or if
required, then the minimum bond or security required.
(L) FORCE MAJEURE. Neither party will be liable or held in default for a
failure or delay in performing its obligations under this Agreement,
other than to make payment for amounts owing or to comply with
Sections 3 4 and 10(a), due to any causes beyond its control provided
it takes all reasonable steps to avoid and minimize the impact of the
cause.
(M) ENTIRE AGREEMENT. This Agreement, including its Exhibits, is the
entire agreement between the parties regarding its subject matter and
supersedes all prior communications between them, both oral and
written. Except as set forth in Section 10(k), this Agreement may not
be modified, and no rights will be waived, except by an instrument in
writing signed by a duly authorized representative of both parties.
Section headings are for convenience only and will not be relevant in
interpreting this Agreement. As used in this Agreement, the term
"including" means by way of example and not limitation. Absent an
express indication to the contrary, all references to a "day" or
"days" are to calendar days.
(N) MODIFICATIONS TO EXHIBITS. OSI may change Exhibit 4 on 30 days prior
notice. If a change to Exhibit 4 materially reduces Support, Licensee
may terminate Support for the remainder of any prepaid period and
receive a pro rata refund.
(O) WAIVERS AND REMEDIES. No waiver of a breach will constitute a waiver
of any other breach of the same or any other provision of this
Agreement. Except as otherwise provided, the rights and remedies in
this Agreement are cumulative and in addition to any other rights or
remedies available at law or equity.
(P) EXECUTION. Neither this Agreement nor any modification of it will be
binding on OSI unless signed by one of its Executive Officers. This
Agreement may be executed in multiple counterparts, each of which will
be deemed an original. A counterpart delivered by facsimile or similar
electronic means will be deemed an original, equivalent in all
respects to a manually executed counterpart.
(Q) INTENTIONAL RISK ALLOCATION. The provisions of this Agreement reflect
an informed, voluntary allocation between the parties of the risks
(known and unknown) that may exist in connection with its subject
matter. This allocation was a material part of the bargain between the
parties. The economic and other terms of this Agreement were
negotiated and agreed to by them in reliance on that allocation.
(R) INDEPENDENT CONTRACTORS. The parties are independent contractors.
Under no circumstances will the employees of one party be deemed the
employees of the other. This Agreement does not grant authority for
either party to act for the other in an agency or other capacity, or
to make commitments of any kind for the account of or on the behalf of
the other.
(S) SEVERABILITY. If any provision of this Agreement is determined to be
invalid or unenforceable, it will be deemed to be modified to the
minimum extent necessary to be valid and enforceable. If it cannot be
so
ELA - 352 PAGE 8
modified, it will be deleted and the deletion will not affect the
validity or enforceability of any other provision unless, as a result,
the rights of either party are materially diminished or the
obligations and burdens of either party are materially increased so as
to be unjust or inequitable.
ELA - 352 PAGE 9
IN WITNESS WHEREOF the parties have caused this Agreement to be executed by
their duly authorized representatives.
OBJECTIVE SYSTEMS INTEGRATORS, INC. E.SPIRE COMMUNICATIONS, INC.
By: By:
--------------------------------- --------------------------------
Name: Name:
------------------------------- ------------------------------
Title: Title:
------------------------------ -----------------------------
Date: Date:
------------------------------- ------------------------------
Address for Notices:
Objective Systems Integrators, Inc. e.spire Communications, Inc.
000 Xxxxxxxxx Xxxxx 00000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000 X.X.X. Xxxxxxx, Xxxxxxxx 00000
Attn: Contracts Administration Attn: Chief Information Officer
Business Telephone: (1) (000) 000-0000 Business Telephone: (000) 000-0000
Facsimile for Notices: (1) (000) 000-0000 Facsimile for Notices: (000) 000-0000
With a copy to the same address:
Attn: General Counsel
Facsimilie: (000) 000-0000
ELA - 352 PAGE 10
EXHIBIT 1
---------
CONTRACT ELA - 352
LICENSE TERMS
1. OSI SOFTWARE COVERED.*
--------------------
2. FEES. *
----
3. ON-SITE PROFESSIONAL SERVICES. OSI will also provide e.spire, in
consideration of the Fees paid under this Agreement, with on-site
professional services assistance for a period of * . Provision of these
professional services will be under the Enterprise Professional Services
Agreement (EPSA - 129) entered into between the parties contemporaneously
with this Agreement, and will be as detailed in a Statement of Work under
that Agreement.
ELA - 352 PAGE 11
EXHIBIT 2
---------
CONTRACT ELA - 352
ORDER NO. _____
THIS ORDER is entered into as of ________ ("Effective Date") under the above
Enterprise License Agreement ("Agreement"). All capitalized terms are defined in
the Agreement unless otherwise expressly defined in this Order. On acceptance of
this Order by OSI, the software and manuals described below will be OSI Software
and Documentation for purposes of the Agreement.
1. DESCRIPTION OF OSI SOFTWARE.
---------------------------
Product
ITEM # QUANTITY DESCRIPTION
2. ATTACHMENT OF LICENSEE'S PURCHASE ORDER.
---------------------------------------
Instead of completing the description and listing prices in this Order,
Licensee may incorporate that information by attaching its standard form
of purchase order. If Licensee does so, it agrees that, except for this
information, no provisions in its purchase order will (1) be incorporated
into this Order or into the Agreement, or (2) modify or amend the terms
of this Order or the Agreement.
4. DESIGNATION OF INITIAL DELIVERY POINT.
-------------------------------------
Licensee directs OSI to deliver the OSI Software to ___________________.
IN WITNESS WHEREOF, Licensee has caused this Order to be executed by its duly
authorized representative as of the date indicated below.
-------------------------------------------------
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Date:
------------------------------------------
ELA - 352 PAGE 12
EXHIBIT 3
---------
CONTRACT ELA - 352
*
OBJECTIVE SYSTEMS INTEGRATORS, INC.
-----------------------------------
LICENSEE
By: By:
------------------------------ --------------------------------
Name: Name:
---------------------------- ------------------------------
Title: Title:
--------------------------- -----------------------------
Date: Date:
---------------------------- ------------------------------
ELA - 352 PAGE 13
EXHIBIT 4
---------
CONTRACT ELA - 352
SUPPORT
1. DEFINITIONS
-----------
(A) DEFECT. An error in OSI Software or a failure of OSI Software to
conform substantially with the Documentation supplied to Licensee in
connection with the OSI Software that can be reproduced by OSI.
Defects fall into three categories as follows:
(1) PRIORITY 1 (PRODUCTION SYSTEM FAILURE). Licensee's primary
production system (a) is completely unavailable, (b) has a
problem that occurs with sufficient frequency that the system is
effectively rendered inoperable, or (c) is affected such that
critical business processes are unavailable. In each case, no
Workaround can be immediately identified. For Priority 1 Defects,
both OSI and Licensee will commit full-time resources to resolve
the situation.
(2) PRIORITY 2 (SYSTEM IMPAIRMENT). Licensee's business processes are
impacted or impaired, but its primary production system still
functions.
(3) PRIORITY 3 (MINOR FAULT). There is no material operational impact
on Licensee's business processes or a Workaround has been
identified.
(B) MAINTENANCE RELEASE. An updated release of OSI Software that
incorporates all Patches since the last Maintenance Release or Product
Release. A Maintenance Release is denoted by a change in the third
number of the Version ID. Release notes are generally included.
(C) PATCH. A specific change to resolve a Defect that is made between
Maintenance Releases or Product Releases. A Patch may include
additional or replacement Documentation.
(D) PRODUCT RELEASE. A release of OSI Software that incorporates new
enhancements, features and fixes since the last Product Release. A
Product Release is denoted by a change in the first or second number
in the OSI Software Version ID. Release notes and full Documentation
are included.
(E) REMOTE ACCESS. Access to Licensee's systems reasonably required by OSI
to provide Support. Remote Access may include a dedicated connection,
dial-up modem, internet, telnet or other means by which OSI can gain
the needed access.
(F) VERSION ID. A designation used to denote different versions of OSI
Software. A Version ID consists of two or more numbers, each separated
by a period (i.e. X.X.X), where the first two numbers designate the
Product Release, the third number designates the Maintenance Release
within a Product Release and any subsequent numbers designate the
Patch level.
(G) WORKAROUND. A change to the procedures Licensee follows or the data it
supplies when using OSI Software. A Workaround is designed to enable
OSI Software to operate without a material, adverse effect on it use
by Licensee in its production environment.
2. SUPPORT COVERAGE
----------------
(A) OSI SOFTWARE. So long as Licensee is current in paying all undisputed
Support charges and is not then in material breach of this Agreement,
Licensee will receive the Support as described below for all OSI
Software. Support is provided only for the current and the just prior
Product Release of OSI Software, with all OSI recommended operating
system, database and other Patches applied. For further information
regarding non-current Product Releases, see OSI's Product Lifecycle
Guidelines on its Web-based Technical Assistance Center, URL:
xxxx://xxx.xxx.xxx/ ("WebTAC").
ELA - 352 PAGE 14
(B) EXCLUDED ITEMS. Support does not include (1) installation of
Maintenance Releases, Patches, Product Releases and Workarounds, (2)
their integration into Licensee's system, or (3) their customization
to conform to Licensee's environment.
3. SUPPORT
-------
(A) OSI SOFTWARE. If Licensee believes that there is a Defect in OSI
Software, Licensee will (1) promptly notify OSI, describing the
parameters, procedures and conditions resulting from the Defect in
sufficient detail to permit OSI to isolate the code that has caused
the Defect, and (2) provide OSI with all data files, database rules
and other software, together with Remote Access and (if OSI requires)
on-site access, reasonably believed necessary by OSI for it to
reproduce and analyze the Defect. If the Defect cannot be reproduced,
no further action will be taken.
(B) RESPONSE TIMES. On notice of a Defect and during the hours set forth
below, OSI will initiate work to verify a Defect, advise Licensee of
its plans for resolving the Defect, and use commercially reasonable
efforts to resolve the Defect, as follows:
(1) PRIORITY 1. OSI will promptly initiate work to verify the Defect,
will use commercially reasonable efforts to resolve the Defect
within 2 hours and, if unable to do so, will continue diligently
to pursue resolution of the Defect.
Licensee will also receive a support telephone/paging number to
be used after normal business hours to report Priority 1 Defects.
OSI will endeavor to respond within 15 minutes of receiving a
call, message or page.
OSI will be available to resolve Priority 1 Defects 24 hours per
day, 7 days per week, 365 days per year.
(2) PRIORITY 2. OSI will initiate work to verify a Priority 2 Defect
no later than the next business day and will try to resolve it in
10 business days. OSI will be available to resolve Priority 2
Defects from 9 am until 6 p.m. PST, Monday through Friday
excluding local OSI holidays.
(3) PRIORITY 3. OSI will initiate work to verify a Priority 3 Defect
and provide a reasonable Workaround in 30 business days. OSI will
also try to include a correction for the Defect in the next
Maintenance Release or Product Release. OSI will be available to
resolve Priority 3 Defects from 9 am until 6 p.m. PST, Monday
through Friday excluding local OSI holidays.
If a Defect cannot be resolved within the times described above, OSI
will notify Licensee and the parties will cooperate in good faith to
arrive at a mutually satisfactory alternative.
(C) NOTICE. OSI will work diligently to resolve Priority 1 and Priority 2
Defects with a Workaround or Patch. Whenever practical, OSI will
verbally advise Licensee of a Workaround, followed by a confirmation
posted on WebTAC, or otherwise provided to Licensee. If a Workaround
does not resolve the Defect, OSI will use commercially reasonable
efforts to provide a Patch.
4. OSI SOFTWARE UPDATES
--------------------
Support fees include the right to receive a license to Maintenance Releases
and Product Releases at the time each Release is made generally available.
Revisions and enhancements to OSI Software will be made as OSI deems
necessary and appropriate. OSI may discontinue updating OSI Software at any
time or may incorporate any portion of existing OSI Software into a new and
distinct product. In this latter case, OSI will offer to make the new
product available to Licensee at its then current price.
ELA - 352 PAGE 15
5. GENERAL ASSISTANCE
------------------
OSI will provide Licensee with a reasonable amount of generalized advice
regarding the proper installation, configuration and operation of OSI
Software in the form provided by OSI ("General Assistance"). Additional
General Support is available on a time and materials basis.
6. TELEPHONE HOTLINE
-----------------
Telephone Support for Basic Support and General Assistance is available
6:00 a.m. to 5:00 p.m., PST, Monday - Friday, excluding local OSI holidays.
7. WEBTAC
------
Subject to system availability, Support includes 24 hour-a-day, 7
day-a-week access to OSI's WebTAC. Use of the WebTAC is subject to the
terms, conditions and procedures that are posted on the WebTAC site.
8. GENERAL MATTERS
---------------
(A) CONTACTS AND INTERNAL SUPPORT.
(1) Licensee will designate one employee who will be the primary
contact and one employee who will be the backup contact (either
of whom is a "Contact") for all matters related to Support. Each
Contact will have will have reasonable knowledge of the OSI
Software. In addition, they will have reasonable knowledge of
both Unix system administration and database administration,
troubleshooting and operation. Only the Contacts will have full
use of OSI's WebTAC, although "read only" access and report
generation can be provided to other of Licensee's employees.
(2) All requests for Support will be made through the Contacts. In
addition, Licensee will take and document the following actions
(to the extent appropriate) both before and after reporting a
Defect:
o Maintain an up-to-date record of system changes, such as
upgrades, Patches and modifications to operating systems,
databases, devices, device software and OSI Software.
o Identify the nature of the Defect.
o Describe the events that led up to the problem.
o Reproduce the error and document the steps needed to do so.
o Provide OSI with proper Remote Access and any required
assistance.
Licensee will also commit appropriate resources to clearing the
Defect until its source has been agreed.
(B) CANCELLATION. Support will end if Licensee's license for OSI Software
is terminated. If Support ends, it will end, effective immediately,
for all OSI Software. Previously paid fees will not be refunded.
(C) REINSTATEMENT. Licensee may reinstate lapsed Support by paying all
Support fees that are in arrears, plus (1) a reinstatement fee equal
to 50% of the then-current annual fee, and (2) any costs, on a time
and material basis, that OSI incurs to update Licensee's installations
to current versions of OSI Software.
(D) MODIFICATIONS AND UNAUTHORIZED USES. OSI will have no obligation to
support OSI Software if it (1) has been modified by anyone other than
OSI or at OSI's express authorization or request, or (2) is being used
in violation of the terms of the Agreement. If a reported problem is
not a Defect in OSI Software but is actually a problem caused by user
error, modification of OSI Software by a party other than OSI, or
third party hardware or software, OSI may invoice Licensee on a time
and materials basis for efforts provided by OSI personnel for the
problem.
ELA - 352 PAGE 16
(E) LIMITATIONS. OSI WILL USE COMMERCIALLY REASONABLE EFFORTS TO REPAIR
DEFECTS, BUT DOES NOT GUARANTEE THAT IT WILL BE ABLE TO DO SO, OR THAT
ANY REPAIR WILL BE SATISFACTORY TO LICENSEE.
ELA - 352 PAGE 17
