Exhibit 10.24
SOFTWARE LICENSE AND SERVICES AGREEMENT
BETWEEN
CONTROL DATA SYSTEMS, INC.
AND
FAX INTERNATIONAL, INC.
This Software License and Services Agreement ("Agreement") dated as of September
20, 1996 ("Effective Date"), is between Control Data Systems, Inc. ("Control
Data"), a Delaware corporation, having its principal place of business at 0000
Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx Xxxxx, XX, 00000-0000, and Fax International, Inc.
("FI"), a Delaware corporation, having its principal place of business at 00
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000X, Xxxxxxxxxx, XX, 00000-0000.
WHEREAS, Control Data is engaged in the development, manufacture, sale and
support of Mail*Hub software and the furnishing of related services on a world-
wide basis; and
WHEREAS, FI is engaged in the development, manufacture, sale and support of fax
and message services through its world-wide network; and
WHEREAS, FI desires to license the Mail*Hub Software Products for the purpose
of enhancing their fax services, and
WHEREAS, both parties have an interest in combining their strengths to offer
customers integrated fax and e-mail services for heterogeneous mail environments
on a world-wide basis.
NOW THEREFORE, in consideration of the mutual promises contained herein, the
parties agree as follows:
AGREEMENT
This Agreement consists of the following:
Section A GENERAL PROVISIONS APPLICABLE TO ALL SECTIONS
Section B SOFTWARE LICENSE
Section C SOFTWARE SUPPORT SERVICES
Section D PROFESSIONAL SERVICES
Section E TRAINING SERVICES
Section F THIRD PARTY EQUIPMENT AND SOFTWARE PRODUCTS
Exhibit A PRICING
The parties acknowledge that they have read, understood and agreed to the terms
and conditions of this Agreement. This is the entire Agreement and it
supersedes all prior oral and written proposals and communications between the
parties regarding this Agreement.
FAX INTERNATIONAL, INC. CONTROL DATA SYSTEMS, INC.
By:/s/ Xxxxxx Xxxxxxx By:/s/ Xxxxx Xxxxxxx
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Name:Xxxxxx Xxxxxxx Name:Xxxxx Xxxxxxx
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Title:VP of Technology Title:Director of Contracts
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SECTION A
GENERAL PROVISIONS APPLICABLE TO ALL SECTIONS
1. TERM AND ORDERS
a. Term. This Agreement begins on the Effective Date on its signature page
and continues unless earlier terminated in accordance with the terms of this
Agreement or by the mutual written consent of the parties.
b. Orders. FI and Control Data agree that the terms and conditions of this
Agreement apply to all purchase orders, letter orders, or other ordering
documents ("Order") issued by FI and accepted by Control Data. Each Order must
reference this Agreement and include or reference the particulars appropriate to
the transaction covered by the Order. Any terms within or accompanying an Order
not specifically agreed to by Control Data do not apply even if the Order
contains provisions to the contrary.
2. PAYMENT AND TAXES
Unless otherwise specified amounts invoiced, including any taxes that apply to
FI, are due and payable within thirty (30) days after date of invoice. If FI
claims exemption from any taxes, FI agrees to provide Control Data with
documentation required by the taxing authority to support an exemption.
3. CONFIDENTIALITY
Each party agrees to regard and preserve as proprietary all information it
receives or learns as a result of this Agreement, which, if in writing, is
marked as confidential, or which is disclosed orally, and is subsequently
contemporaneously confirmed in writing as confidential ("Confidential
Information"). Each party agrees to provide the same care to avoid disclosure
or unauthorized use of all Confidential Information as it provides to protect
its own Confidential Information of similar sensitivity. The parties agree to
use Confidential Information only for the purposes of fulfilling obligations
under this Agreement. Except as specifically provided in this Agreement, no
other rights or licenses to trademarks, inventions, copyrights, patents or other
intellectual property are implied or granted under this Agreement. All
confidential information remains the property of the party releasing it. Upon
termination of this Agreement and upon request, each party agrees to return the
Confidential Information, including all its copies, to the other party. The
parties agree to destroy Confidential Information after the need for it has
expired. Regardless of the foregoing, neither party has any obligation
regarding Confidential Information to the extent that it: (a) is already in the
possession of the party free from any obligation to keep the information
confidential; (b) is or becomes publicly known through no wrongful act of the
party; (c) is rightfully received from a third party who has the right to
deliver it without restriction and without breach of this Agreement; (d) is
independently developed without use of any confidential information of the
party; or (e) must be disclosed as required by a court order or as required by
any governmental or administrative authority having
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jurisdiction over a party. The provisions of this paragraph 3 of Section A
shall survive any termination of this Agreement.
4. DISCLAIMER OF WARRANTY AND LIMITATION OF REMEDIES
The parties agree as follows:
a. THE WARRANTIES IN THIS AGREEMENT REPLACE ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. ALL OTHER WARRANTIES ARE DISCLAIMED AND EXCLUDED BY THE PARTIES.
b. IN NO EVENT WILL EITHER PARTY'S LIABILITY OF ANY KIND INCLUDE ANY SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTIES HAD KNOWLEDGE OF THE
POSSIBILITY OF THE POTENTIAL LOSS OR DAMAGE.
c. In all events and circumstances not provided for in this Agreement, or if
any remedy is found to fail of its essential purpose, Control Data's liability
(regardless of the form of action) will be limited to FI's direct damages not to
exceed .
5. TERMINATION
Default exists by a party who: (1) does not perform when due any of its
obligations under this Agreement or breaches any term or condition of this
Agreement, and does not remedy any breach within thirty (30) days after receipt
of written notice from the other party, or (ii) becomes insolvent or makes an
assignment for the benefit of creditors or ceases to do business or if any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under any bankruptcy or other law for the relief of debtors
is instituted by or against that party and the proceedings are not terminated
within thirty (30) days after proceedings are started. On one party's default,
the other party has the right to terminate this Agreement and is entitled to
exercise all rights and remedies as are available to it under this Agreement.
Either party's remedies may be exercised concurrently or separately, and the
exercise of any one remedy is not an election of that remedy and does not
preclude the exercise of any other remedy.
6. ADVERTISING
Neither party may use the name of the other party or refer to it or any of its
affiliates, directly or indirectly, in any advertisement, news release or
professional or trade publication without receiving prior written approval from
the other party which approval will not be unreasonably withheld. Neither party
may disclose the business particulars of this Agreement to any third party
without the written consent of the other party. Such consent shall not be
unreasonably withheld.
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7. COMPLETE AGREEMENT; AMENDMENT
This Agreement represents a complete Agreement of the parties on this matter and
it supersedes all prior oral or written proposals related to this Agreement
between the parties. The parties The parties acknowledge that they have not
been induced to enter into this Agreement by any representations or statements,
oral or written, not contained in this Agreement. This Agreement may only be
modified or amended in writing by an instrument signed by both parties.
8. INDEPENDENT CONTRACTOR STATUS
Each party and its employees are independent contractors in relation to one
another with respect to all matters arising under this Agreement. Nothing in
this Agreement establishes a partnership, joint venture, association or
employment relationship between the parties. Each party remains responsible for
and indemnifies and holds harmless the other party for the withholding and
payment of all Federal, state and local personal income, wage, earnings,
occupation, social security, unemployment, sickness and disability insurance
taxes, payroll levies or employee benefit requirements (under ERISA, state law
or otherwise) now existing or hereafter enacted and attributable to their
respective people.
9. ALTERNATIVE DISPUTE RESOLUTION
FI's satisfaction is a Control Data objective in performing its obligations
under this Agreement. If FI is not satisfied with Control Data's performance,
FI agrees to give Control Data a written description of the problem and to make
a good faith effort to amicably resolve the problem with Control Data before
bringing any action. No action under this Agreement may be brought by either
party more than two years after the cause of action has accrued or in the case
of an action for nonpayment, more than three years from the date the last
payment was due or such lesser period as provided by applicable statute.
10. FORCE MAJEURE
Neither party shall be liable for delays or any failure to perform under this
Agreement due to causes beyond its reasonable control. Such delays include, but
are not limited, fire, explosion, flood or other natural catastrophe,
governmental legislation, acts, orders, or regulation, strikes or labor
disturbances, to the extent not occasioned by the fault or negligence of the
delayed party and which the delayed party could not otherwise have reasonably
foreseen or mitigated. Any excuse for delay lasts only as long as the event
remains beyond the reasonable control of the delayed party. However, the
delayed partners agrees to use commercially reasonable efforts to minimize the
delays caused by any event beyond its reasonable control. The delayed party
must notify the other party promptly upon the occurrence of any event, or
performance by the delayed party will not be considered excused under this
Article, and inform the other party of its plans to resume performance.
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11. EXPORT RESTRICTIONS
FI acknowledges that technical data or software, as defined in 22 CFR, Section
120.21, and the Export Administration Regulations, Section 379.1(a) acquired and
generated under this Agreement, may be subject to either the International
Traffic in Arms Regulations (ITAR) or Export Administration Regulations and may
require appropriate authorization from the Department of State, Office of
Munitions Control or Department of Commerce, Office of Export Administration if
it is released or disclosed to a foreign entity or person. Therefore, FI must
not export or re-export any technical data or software acquired under this
Agreement without first notifying Control Data and obtaining written
authorization from the appropriate U.S. Government agency. Notwithstanding the
foregoing, Control Data acknowledges that FI intends to export the Software to
the countries identified on Attachment 1 to the SOW (defined in paragraph 1 of
Section D of this Agreement) and agrees that such exports by FI are permitted
under a general license or otherwise without requiring the specific prior
approval of any U.S. government agency. Control Data agrees to provide all
reasonable information and assistance requested by FI in connection with
obtaining export and import authorization with respect to FI's export of the
Software to any country.
12. NONSOLICITATION
During the term of this Agreement and for one year thereafter, neither party may
solicit or use a third party to solicit the services of any employee or
subcontractor of the other party who is working for FI or Control Data as
employees or subcontractors in conjunction with this Agreement without prior
written consent of the other party.
13. NOTICES
Notices sent to either party are effective when delivered in person or by
telecopier "fax" machine with hard copy follow-up, one (1) day after being sent
by overnight courier, or two (2) days after being sent by first class mail
postage prepaid to the address set forth on the signature page of this Agreement
or at such other address as the parties may from time to time give notice. The
parties agree to treat as "original" documents a facsimile of notices generated
in good form from a fax machine unless a document's authenticity is genuinely
placed in question.
14. GENERAL PROVISIONS
a. Minnesota laws apply to this Agreement.
b. Neither party may assign nor otherwise transfer its rights or obligations
under this Agreement except with the written consent of the other party which
consent will not be unreasonably withheld. Control Data may assign all or part
of the payments under this Agreement. Any prohibited Assignment will be void.
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SECTION B
SOFTWARE LICENSE
1. CONTROL DATA SOFTWARE
Control Data hereby grants to FI a worldwide, perpetual, personal.
nontransferable (except as (provided in this License) and non-exclusive right
and license to install and use the Control Data software described in Section 1
of Exhibit A hereto, all revisions, corrections, bug fixes, enhancements,
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upgrades and other modifications or additions thereto supplied by Control Data,
and all associated documentation, manuals and specifications provided in
connection therewith (collectively, the "Software"), on a maximum of fifteen
(15) FI network nodes/hubs worldwide plus three (3) "backup systems" plus fifty
(50) micronodes, subject to the provisions contained under the heading "Special
Pricing Provisions Applicable to Micronode Licenses" in Section 1 of Exhibit A
to this Agreement (the "Original Nodes"), for a total one-time license fee of
. Control Data agrees to ship the Software promptly after the Effective
Date of this Agreement and will invoice charges after shipment. FI agrees to pay
the total one-time license fee within ninety (90) days following the Effective
Date of this Agreement. FI shall have the right to reproduce and modify the
Software in connection with its use thereof on the Original Nodes. FI may at any
time license the Software for use on additional FI network nodes/hubs
("Additional Nodes") upon payment to Control Data of the prescribed fee for each
Additional Node set forth in Section 1 of Exhibit A. The number of users of the
Software installed on each Original Node and Additional Node shall be unlimited.
In conjunction with the foregoing license, FI may also order the same complement
of Software at no additional charge (under different Software Product numbers
that identify use restrictions) for use on the same or additional network nodes
or computer systems exclusively for either: (i) test or development or (ii)
backup on a "Hot Standby" basis. For Software Products designated for test and
development use only, FI agrees to: (i) use the Software Products for those
purposes only and (ii) not use the Software Products for commercial network
operation or production use ("Production Use"). If the network node or computer
system being used for Production Use malfunctions and is not available for
processing, FI may use the Software Products designated for backup use on the
backup machine to process the same work until the machine that malfunctioned is
restored to operation. "Hot Standby" is understood to mean the backup network
node or computer system is ready to assume the Production Use workload in thirty
minutes or less.
2. FI SPECIFICATIONS AND TECHNOLOGY
FI hereby grants to Control Data a personal, non-transferable, non-exclusive,
royalty-fee license to use and reproduce the specifications and technology
(including without limitation software) (collectively, the "FI Technology")
provided, disclosed or otherwise made available by FI to Control Data in
connection with Control Data's services to be performed pursuant to Section D of
this Agreement solely for the purpose of performing such services for FI.
Control Data agrees that it shall not (i) disclose any of the FI Technology to
any third party nor to any of its own employees or contractors not having a need
to know such FI Technology in the course of performance by Control Data of the
aforementioned services, or (ii) use any of the FI
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Technology for its own benefit or in any manner calculated or reasonably
expected to cause loss, harm or damage to FI.
3. RESTRICTIONS
Except as otherwise provided in this Agreement, FI may not distribute,
sublicense, or copy (except copying authorized by loading procedures, or for
backup or archival purposes) any portion of the Software, or modify, adapt,
translate, reverse engineer, decompile, disassemble or create derivative works
based on the Software. Except as otherwise provided in this Agreement,
Software documentation may not be copied without Control Data's written
authorization. FI will reproduce and affix copyright and other proprietary
notices to all or any part of authorized Software copies as those notices appear
on the original or as otherwise specified by Control Data in writing.
If this Agreement is used to license Software Products that perform encryption,
FI agrees that it will not ship or use the Software Products outside the
continental United States unless specifically granted permission by the U. S.
Government.
4. LIMITED WARRANTY, DISCLAIMER OF WARRANTY, AND LIMITATION OF LIABILITY
Control Data warrants that it has the authority and right to license the
Software, that the media will be free of defects from the date of original
delivery of such Software for a period of ninety (90) days thereafter, and that
the Software will substantially perform to its published specifications and
descriptions for a period of twelve (12) months from the date(s) of acceptance
thereof by FI pursuant to the SOW. Except as provided in the preceding
sentences the Software is furnished to FI on an "AS IS" basis, and Control Data
makes no other warranty of any kind, express or implied, with regard to the
Software furnished to FI.
Control Data does not warrant or represent that the Software will operate
uninterrupted or error free or that all defects in the Software are correctable
or will be corrected. This warranty does not apply if the Software is used
other than in accordance with Control Data's written instructions, or if any
failure of the Software to perform in accordance with the above-stated warranty
is a result of the malfunction of any FI equipment.
Control Data's entire liability and FI's exclusive remedy for any defects in the
media is the provision of a set of replacement media.
If Control Data is unable to cause the Software to perform to its published
specifications within a commercially reasonable period and after a commercially
reasonable number of attempts during the warranty period, FI may terminate the
license and receive an equitable refund up to the license charge FI paid for the
Software.
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5. PATENT AND COPYRIGHT INDEMNITY
Control Data shall defend any claim, action, suit or proceeding brought against
FI alleging infringement by the Software or any component thereof of any third
party's patent, copyright, trademark, trade secret or other intellectual
property right. Control Data agrees to pay all damages and costs finally
awarded therein against FI with respect to the matter, provided that Control
Data is promptly informed and furnished with a copy of each communication,
notice or other action relating to the alleged infringement and is given
authority, information and assistance reasonable necessary to settle, compromise
or litigate the claim, action, suit or proceeding. In addition to the above,
following notice of a claim of a threatened or actual suit, Control Data may,
without obligation to do so, at its sole option (i) procure for FI the right to
continue to use the Software as furnished, or (ii) replace or modify same to
make it non-infringing.
Control Data is not obligated to defend or be liable for costs and damages if
the infringement or claim thereof arises out of: (i) use or combination of
Software with products or data not furnished by Control Data, (ii) use of other
than the latest unmodified release of Software made available to FI by Control
Data if such infringement would have been avoided by the use of such release of
Software (iii) modification of Software by anyone other than Control Data or its
agents after delivery by Control Data if such infringement would have been
avoided if the Software had not been modified, (iv) use of Software after
receiving notice that Software infringes a patent or copyright of a third party,
unless, after written notice thereof is given to Control Data, Control Data
authorizes in writing the continued use of Software.
6. PROPRIETARY RIGHTS
FI agrees that Control Data claims that the Software belongs to Control Data or
its suppliers, to keep it confidential and use reasonable efforts, but no less
than due care, to avoid unauthorized disclosure of its contents.
7. TERMINATION
Control Data may terminate any license of Software granted herein if FI (i)
materially breaches any provision of paragraph 1, paragraph 3 or paragraph 6 of
this Section B or (ii) fails to make any license fee payment with respect to
such license when due; provided, that Control Data shall first provide written
notice of such breach to FI and a period of thirty (30) days from FI's receipt
of such notice in which to cure such breach except FI agrees to discontinue
willful violations of paragraphs 1, 3 or 6 forthwith upon receipt of Control
Data's notice. FI agrees to destroy the Software immediately after termination
and, if requested by Control Data, certify, in writing that the Software was
destroyed.
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SECTION C
SOFTWARE SUPPORT SERVICES AND SOURCE CODE LICENSE
FI shall be the first-call responder with its end-user customers and Control
Data shall provide first call responder and deeper level support to FI. FI
shall assign a person, or persons, by name, to act as the official contact for
FI in obtaining backup support from Control Data. Control Data will provide
backup support for the Software in accordance with the following provisions.
1. DEFINITIONS
a. Successor Product - software Control Data offers generally and designates
as an upgrade successor to specific Software that is an incremental version
increase of X in the version scheme X.YY.
b. Support End Date - date Control Data establishes after which Support for
specific Software is no longer available.
c. Upgrade - software Control Data offers generally and designates as an
upgrade to specific Software that is an incremental version increase of YY in
the version scheme X.YY or that does not involve any changes in the version
designation of the specific Software.
2. TERM
Support is furnished for an Initial Term of 12 months and continues until
terminated as provided in this Agreement. Unless specified otherwise in the
SOW, the Initial Term begins on the date FI accepts the Software.
3. SUPPORT SERVICE
Control Data will use reasonable efforts to furnish Support as available and
then constituted for currently released levels of Software using the following
Support descriptions.
a. Programming System Report (PSR) - Control Data will receive, review,
classify and make available PSRs FI submits to Control Data for problems in
using Software. Control Data will decide whether FI's suggested corrections
will be published. Control Data will respond to PSR through a means Control
Data then currently uses.
b. Corrections, Improvements and Enhancements - Control Data will distribute
corrections to Software and its documentation to resolve problems in either
Software, its documentation, or both at no additional charge to FI. Control
Data may be unable to correct every problem. Control Data or its suppliers may
develop improvements and enhancements as part of Support. Corrections,
improvements and enhancements are integrated into a release, validated against
appropriate standards, verified within current configuration environments using
latest Software release levels and delivered periodically in response to FI's
request.
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c. Upgrades and Successor Products - With respect to all Software for which FI
purchases and is current in payment for Support hereunder, or for which FI has
terminated Support hereunder by reason of Control Data's nonfulfillment of its
obligations hereunder, Control Data shall, at no additional charge to FI, (i)
provide FI with all Upgrades to such Software, as and when such Upgrades are
released by Control Data, and (ii) for a period of twenty-four (24) months
following FI's acceptance of the Software, provide FI with all Successor
Products to such Software, as and when such Successor Products are released by
Control Data. After the expiration of the foregoing 24-month period, Control
Data shall provide FI with Successor Products in accordance with the following:
Control Data will notify FI when a Successor Product is available and furnish it
after receiving FI's order specifying Control Data's then current terms,
conditions and prices. If Support was furnished for the predecessor product,
the predecessor product license charge paid by FI will be credited in full up to
the amount of, and toward the Successor Product license charge. FI must order
the Successor Product before the predecessor product's Support End Date and
specify a Requested Date earlier than the Support End Date.
d. Help Desk Support - Control Data's central software support personnel are
available during Control Data's normal working hours to answer questions about
Software usage. Control Data will furnish FI a toll-free number for Help Desk
Support within the 48 contiguous states.
e. SOLVER Access - Control Data will grant reasonable access to the
centralized problem symptom database (SOLVER) through a FI furnished
communications link. FI may use SOLVER to: (i) submit PSR; (ii) review PSR on a
product by product basis to see if PSR already exist for a particular problem;
(iii) retrieve preliminary corrections (which may not be fully validated) or
instructions on how to obtain and use, at FI's risk, those corrections on FI's
Original Nodes and Additional Nodes.
f. Emergency Remote Assistance Support - When Software problems prevent FI's
productive Software use, Control Data will assist FI to correct or bypass the
problem via Help Desk Support or by Remote Assistance Support through a
communications link established by FI for system to system data exchanges. The
link allows Control Data's support personnel to remotely access and exercise
Software. Diagnostic programs may be remotely executed and stored programs and
data may be examined by Control Data's personnel.
If Control Data doesn't have access to FI's system, Emergency Remote Assistance
Support effectiveness is greatly diminished. Although Control Data will take
reasonable precautions to safeguard FI's program and data files, when FI grants
access Control Data is not responsible for FI's program and data files integrity
or security. FI must establish and maintain recovery and data protection
procedures FI considers necessary when Control Data is granted access. However,
Control Data will consider all data relating to FI's business to be
"Confidential Information".
g. Support End Date - Control Data may change or withdraw Support by
specifying a Support End Date on the proposal, or giving FI twelve (12) months
written notice.
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4. CHARGES
FI will pay all Software Support Charges specified in section 2 of Exhibit A.
5. REMEDY
If Control Data doesn't fulfill its obligations under this Section C, FI may
immediately terminate Support for the affected Software. Control Data will
refund Support Charges paid in advance for the terminated portion of the
recurring period plus an amount equal to one month's Support Charges for the
Software for which Support is terminated.
6. TERMINATION
FI may terminate Support by giving Control Data written notice thirty (30) days
or more before the end of the Initial Term and upon 30 days written notice after
the Initial Term. Support for all interdependent Software must be terminated
concurrently.
7. SOURCE CODE LICENSE
a. Definition. Source Code is defined as the complete human-readable source
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listing statement for all Software listed in Exhibit A, Paragraph 1, except
those Software products that are identified as "Third-party Software," and any
corrections, updates, modifications, revisions, or enhancements of the Software
developed during the Term of this Agreement (other than modifications or
enhancements developed by Control Data on behalf of FI pursuant to Section D of
this Agreement) and all flow charts, logic diagrams, programmers' notes, user
manuals, listings, and such other material necessary (including without
limitation any and all computer programs, applications, compilers and other
tools and utilities required to generate, install and/or operate object-code
versions of the Software and used by Control Data that are not generally
commercially available from third parties) to allow a reasonably skilled third
party programmer to maintain, modify, use, upkeep, all or any portion of the
Software. Source Code includes without limitation, the algorithms,
specifications, or other code or Software Source Code includes, information
required to "unlock", remove, or disable any restriction to access.
b. Escrow. Control Data has placed the currently released version of Source
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Code in escrow with Fort Xxxx Escrow Services, Inc. ("Fort Xxxx"). Control Data
agrees to deposit any revisions of the Source Code simultaneously with any
changes in the Software generally released by Control Data. In addition.
Control Data agrees to also deposit any revision of the Source Code made under
this Agreement especially for FI. Fort Xxxx will provide written notice to FI
that FI is a beneficiary of Control Data's Master Escrow Agreement with Fort
Xxxx. As a protected party, FI will receive written notification of all account
activity from Fort Xxxx. Within fifteen days written following FI's acceptance
of the Software pursuant to the SOW (as defined in Section D of this Agreement),
FI agrees to pay Control Data Escrow Fees specified in Exhibit A, Paragraph 6.
x. Xxxxx. FI's use of the Source Code released under this Article 7 is
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limited to temporary, nonexclusive, fully-paid, nontransferable, world-wide (to
the extent the processor on which the
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Source Code will be used is outside of the United States) license to install and
use the Source Code on the number of processors required by FI consistent with
FI's source code control and test processes, and modify the Source Code if and
to the extent deemed necessary by FI, for the purpose of maintaining and
supporting the Software at the level of functionality contemplated by this
Agreement and for no other purpose. FI and Control Data agree that this license
is an "agreement supplementary to" the license specified in Section B ("License
Agreement") as provided in Section 365(n) of Xxxxx 00, Xxxxxx Xxxxxx Code (the
"Bankruptcy Code"). Control Data acknowledges that if Control Data as a debtor
in possession or a trustee in Bankruptcy in a case under the Bankruptcy Code
rejects the License Agreement or this Source Code License, FI may elect to
retain its rights under the License Agreement and this Source Code License as
provided in Section 365(n) of the Bankruptcy Code. Upon written request of FI to
Control Data or the Bankruptcy Trustee, Control Data or such Bankruptcy Trustee
shall not interfere with the right of FI as provided in the License Agreement
and this Source Code License, including the right to obtain the Source Code from
Fort Xxxx. However, FI shall only obtain access to the Source Code from Control
Data or Fort Xxxx, at FI's option, following the events specified in Article
7.f, Trigger Events. (Fort Xxxx may charge a nominal fee to FI for releasing
the Source Code.)
d. Proprietary Rights/Source Code. The parties acknowledge and agree that the
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Source Code is owned by Control Data and its suppliers and, except as expressly
set forth in this Article 7, nothing in this Agreement grants to FI, whether
expressly, by implication, estoppel, forfeiture or otherwise, any ownership,
license, entitlement or other proprietary rights under any foreign or domestic
law, governing inventions, patents, trademarks, service marks, trade secrets,
copyrights or franchise, with respect to the Source Code beyond those expressly
granted in this Article 7. Notwithstanding the foregoing, except for
modifications to Control Data's existing works and derivative works based on
Control Data's Software, Control Data agrees that all Source Code to all
original programs and materials developed by Control Data for FI pursuant to
Section D of this Agreement shall belong to and be the sole and exclusive
properly of FI and shall not be subject to the limitations set forth in this
Section C.
e. Confidentiality - Source Code. FI agrees that it will not make or have
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made any copies of the Source Code except for those copies which are reasonably
necessary for use hereunder by FI and all such copies will upon reproduction by
FI, contain the same proprietary and confidentiality notices or legends which
appear on the Source Code provided by this Agreement. FI agrees to safeguard
and protect the Source Code in accordance with Section A, Article 3 of this
Agreement.
f. Trigger Events. Subject to prior and full compliance with all terms,
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conditions and procedures set forth in this Agreement. Control Data agrees to
release to FI or, at FI's option, FI may obtain from Fort Xxxx, a copy of the
Source Code only on the following limited conditions for release:
(1) The filing of a petition in Bankruptcy by Control Data.
(2) The filing of a petition in Bankruptcy against Control Data and the
failure of the Trustee in Bankruptcy or debtor in possession either to
assume or perform this
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Agreement or to have the Bankruptcy proceedings terminated within
forty-five (45) days after the initial filing of such Petition.
(3) The material unexcused failure of Control Data to perform software
support obligations imposed by this Agreement.
(4) Control Data's discontinuance or sale to unrelated third parties of
all or any part of its ownership in the Software and the failure of
Control Data to arrange substitute performance of support obligations
by a designated agent or such third party purchaser reasonably
acceptable to FI.
(5) The sale by Control Data of a controlling portion of its voting equity
securities to a purchaser or group of purchasers, any of which
purchaser or purchasers are a direct competitor of FI, in a single
transaction or series of related transactions; (ii) the sale or other
transfer by Control Data's shareholders to a purchaser or group of
purchasers, any of which purchaser or purchasers are a direct
competitor of FI, in a single transaction or series of related
transactions of a majority of Control Data's issued and outstanding
voting equity securities; or (iii) the merger or consolidation of
Control Data with or into another entity which is a direct competitor
of FI in which the shareholders of Control Data following completion
of such merger or consolidation own less that fifty-one percent (51%)
of the issued and outstanding Voting equity securities of the
resulting equity.
g. Release Procedures. The parties agree to observe the following procedures
------------------
in all cases involving the release of the Source Code.
(1) FI's Demand for Release. If FI in good faith believes that a Trigger
Event has occurred, FI may initiate the release process by delivering
to Control Data or its trustee in bankruptcy, FI's notice of Demand
for Release.
(2) Control Data's Response to Demand for Release. Within five (5) days
after receiving, FI's Demand for Release, Control Data agrees to
release the Source Code to FI unless Control Data or its trustee in
bankruptcy delivers notice of objection to release to FI. After
receiving Control Data's notice of Objection to Release, FI may Invoke
the Dispute Resolution Procedures specified in this Article 7,
paragraph h.
h. Dispute Resolution Procedures. Except as otherwise specifically agreed,
-----------------------------
the parties agree to first submit all disputes between them with respect to FI's
entitlement to the Source Code in conjunction with a good faith Demand for
Release for informal resolution by their respective officers. Either party may
submit any dispute not promptly settled for expedited consideration to a panel
of three (3) arbitrators. with each party choosing one (1) panel member and the
third member chosen by the first two (2) panel members. The parties agree to
conduct the proceedings in Boston, Massachusetts in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. The
parties acknowledge that the award of the arbitrators will include a written
explanation of their decision and that decision is binding upon the parties
14
and enforceable in any court of competent jurisdiction. Any Source Code
deposited with a court or other tribunal must be under seal and subject to
Section A, Article 3 and Section B, Article 2 of this Agreement.
i. Source Code License Term. The license granted under this Article 7 for the
------------------------
Source Code will remain in effect for the duration of the Trigger Event plus a
reasonable transition period during which Control Data resumes performance of
its support obligations to FI's reasonable satisfaction; provided, FI is not
otherwise in default of its payment or other material obligations under Section
B of this Agreement.
j. Return of the Source Code. FI agrees to return or destroy all Source Code
-------------------------
in possession, and any additions to the Source Code created by FI, if FI has no
demonstrable need to have continued access to the Source Code.
k. Hiring of Employees. Should FI exercise its rights to obtain Source Code,
-------------------
regardless of any prohibition to the contrary contained in this Agreement, FI
may, at its sole discretion, solicit for employment and hire any of Control
Data's employees who are or may be able to assist FI in understanding the
Software Product and exercising this license. Provided and to the extent FI
does so, Control Data releases any such employees from any restrictions imposed
on him or her by any contrary provision in any agreement between Control Data
and such employees. In addition, Control Data waives, releases, and renounces
any claim against FI or any of its subsidiaries arising out of the solicitation
or hiring of such employees as provided in this paragraph.
15
SECTION D
PROFESSIONAL SERVICES
1. TIME AND COMPLETION OF SERVICES
a. Control Data agrees to use commercially reasonable efforts to complete the
services (the "Services") described in the "Fax International/Mail*Hub
Integration Statement of Work" dated September 19, 1996 and attached hereto, or
any modification or successor thereto agreed upon in writing by the parties
("SOW") according to the schedules described in such SOW. FI agrees that
Control Data will not have breached this Agreement and will receive an
appropriate adjustment in completion time if the Services have been delayed or
interrupted from causes attributable to delays of subcontractors or suppliers
which delays could not have been reasonably foreseen or mitigated by Control
Data.
b. The parties agree to establish mutualIy agreeable acceptance criteria for
each deliverable which will become a part of any SOW. Within the period
specified in the SOW, FI agrees to acknowledge, in writing, receipt, and
acceptance or rejection of each deliverable. In the absence of FI's written
acknowledgment or written description of the reasons FI considers the Services
to be unacceptable being received by Control Data within the period specified in
the SOW, FI agrees that the affected deliverables will be considered accepted.
c. If Control Data is precluded from performing the Services because items to be
furnished and made available by FI are not available when agreed, Control Data
reserves the right to invoice FI and FI agrees to pay Control Data for its
unproductive hours and related out-of-pocket expenses. Control Data's labor
rates set forth in Table 3-1 of section 3 of Exhibit A will apply.
2. OWNERSHIP RIGHTS
a. Unless otherwise agreed in writing, all original material and programs,
whether written or readable by machine, prepared with or by FI under this
Agreement, are considered "works for hire" and will belong to and be the
property of FI, including without limitation the X.400/SMTP/MIME APIs for
routing of facsimile and electronic message traffic and the related X.500
Directory Routing Implementation technology. Any: (i) modification to Control
Data's existing works or (ii) derivative works based on Control Data's Software
will belong to Control Data; however, Control Data grants to FI an irrevocable,
nonexclusive, unrestricted worldwide and fully paid license to use, those
modifications to existing works and derivative works prepared under this
Agreement for as long as FI has need for the modifications.
b. FI agrees that its rights and ownership of original material and programs
will not extend to or include all or any part of commercially-available software
belonging to Control Data or Control Data's suppliers, or all or any part of
other software previously developed by Control Data or Control Data's suppliers
or to the ideas, concepts, know-how, or techniques used by Control Data or
Control Data's suppliers in furnishing Services to FI.
16
3. CHARGES AND PAYMENTS
a. In consideration for the timely performance of the Services with respect to
the Original Nodes, FI shall pay to Control Data the total "Fixed Price" fee
described in Section 3 of Exhibit A to this Agreement. Control Data shall from
time to time invoice FI for portions of such fee in accordance with the schedule
set forth in the SOW, and, provided FI has accepted the Services with respect to
such invoice was issued, FI agrees to pay each such invoice no later than thirty
(30) days after the later of its receipt of such invoice or its acceptance of
such Services. In the case of Services performed at the request of FI with
respect to an Additional Node, FI may elect to pay for such Services on a "Fixed
Price" or a "Time and Materials" basis, each as set forth in Section 3 of
Exhibit A. If FI elects to pay for Services with respect to an Additional Node
on a "Fixed Price" basis, such fee shall be invoiced by Control Data upon its
completion of the Services for such Additional Node and shall be paid by FI no
later than thirty (30) days after the later of its receipt of such invoice or
its acceptance of such Services. If FI elects to pay for Services with respect
to an Additional Node on a "Time and Materials" basis, such fee shall be paid in
accordance with paragraph (c) below.
b. Invoices for any balance due will be submitted by Control Data upon
acceptance of the Services.
c. For Services furnished on a time and materials basis, FI agrees to pay all
charges for Services. Charges will be as set forth in Section of Exhibit A. A
four hour minimum charge will apply for Services scheduled by Control Data at
FI's location. In addition, FI agrees to reimburse Control Data for its
reasonable, actual out-of-pocket expenses for travel, meals and lodging of its
employees engaged in the performance of the Services; provided, that Control
Data shall comply with Control Data's expense reimbursement policies and
procedures, and in no event shall incur any business entertainment expenses
involving FI's employees without prior written authorization from FI.
d. Charges for Services furnished on a time and materials basis will be invoiced
at the end of each calendar month in which Services are furnished. Upon FI's
request, Control Data will furnish a Service Report with the invoice that
summarizes Services activities for each month. All other charges will be
invoiced when incurred.
4. CHANGES
The parties may change the scope of Services by amending the SOW in writing as
mutually agreed. Both parties must sign the amendment before the change is
effective.
5. REPRESENTATIVES
The parties agree to: (i) designate a representative to represent their
respective entities in all matters concerning the Services; (ii) address all
communications related to the Services to the designated representative; and
(iii) notify each other in writing if there is a change in the designated
representative.
17
6. PERSONNEL SUPPLIED BY CONTROL DATA
Control Data will furnish personnel on an independent contractor basis to
perform the Services specified in this Agreement. Control Data agrees to replace
personnel who are not acceptable to FI and FI must approve, in advance, Control
Data's use of subcontractors. All assigned personnel agree to abide by FI's
security requirements and other workplace procedures. Control Data may allocate
its personnel as appropriate or necessary, and have Control Data personnel who
have furnished Services to FI, furnish Services for any other customer of
Control Data. FI agrees that the qualifications and skills required to furnish
the Services to FI in any given situation will vary with the complexity, of the
tasks involved and FI's requests. Services furnished on a time and materials
basis will be furnished according to the then current Control Data Service
Classifications subject to FI's prior approval in each case.
7. NATURE OF SERVICES
a. Control Data will use commercially reasonable efforts to perform the Services
in accordance with the SOW using generally accepted industry practices.
b. When Control Data furnishes Services which require use of FI's computer
resources, FI agrees to make them available during scheduled working hours and
for reasonable time increments at no charge to Control Data; provided, that each
such use of FI's computer resources shall be requested by Control Data at least
three (3) business days in advance and shall not unreasonably interfere (in FI's
sole discretion) with FI's business operations. If delays result because FI
does not timely perform its obligations under this Agreement or SOW, FI agrees
to equitably adjust the schedule and pricing to reasonably compensate Control
Data for the delay.
c. For work performed by Control Data under specifications prepared by FI,
Control Data makes no representations or warranties that the results of the
Services will not infringe any patent, copyright, trademark, or proprietary
rights of any third person.
8. REMEDY
a. Until FI accepts the Services as provided in Article D.1., should Control
Data not fulfill its obligations as specified in this Agreement or the Statement
of Work: (i) Control Data will reperform the Services to the extent reasonably
necessary to fulfill its obligations; and (ii) if Control Data is unable to
fulfill its obligations through reperformance, FI may recover an equitable
amount not to exceed charges paid to Control Data for the Services and any
directly related Software in question.
18
SECTION E
TRAINING SERVICES
1. DEFINITIONS
a. Course - Training identified by a course number or description in the SOW or
Exhibit A, Paragraph 5.
b. Class Maximum - The maximum number of students that may be authorized for
enrollment in the class.
2. DESCRIPTION OF SERVICES
Control Data will deliver each course specified in the SOW or Order.
3. COMMENCEMENT OF COURSES
a. Control Data will use reasonable efforts to start a Course on the agreed to
course start date specified in the SOW or Order.
b. A Course will be scheduled during normal working hours (except lab),
excluding holidays observed by Control Data locally. Lab classes may require
scheduling during the second or third shift, based on available system time.
4. STUDENT ENROLLMENT
FI may enroll any of its students who meet Control Data's defined Course
prerequisites in a Course. Qualified students may be enrolled at any time tip
to the Course Start Date, subject to the availability of class space.
5. COURSE CONTENT AND INSTRUCTION
Course content will be established by Control Data. Control Data will provide
appropriate material and instructional aids to conduct each Course.
6. COURSE LOCATION
a. A Course will be conducted at either a FI-provided facility, or at a Control
Data-provided facility, specified as in the SOW or Order.
b. For a Course to be conducted at a FI-provided facility, FI agrees to arrange
for and provide at no charge to Control Data, appropriate facilities including
any necessary equipment as specified by Control Data.
c. FI is responsible for all travel and related expenses for its students.
19
7. COURSE CANCELLATION
FI may cancel a Course for any reason by giving at least thirty (30) days
written notice to Control Data before the course start date. Cancellation does
not relieve FI of any of its obligations under this Section for any Course not
canceled.
8. PROPRIETARY INFORMATION
FI agrees that any information designated proprietary, which is furnished by
Control Data to FI or its employees under this Section will not be published or
otherwise transmitted to any third parties by FI or its employees without
Control Data's prior written consent.
9. NOTICE OF ATTENDANCE
Upon completion of a Course, Control Data will furnish FI with a listing of
students who attended.
10. WARRANTY DISCLAIMER
Control Data makes no guarantees, representations or warranties as to the
results of Services furnished under this Section, including, without limitation,
the level of competence attained by those enrolled in any Course.
11. REMEDY
If Control Data does not fulfill its obligations as specified in this Section:
(1) Control Data will reperform the Services to the extent reasonably necessary
to fulfill its obligations; and (ii) if Control Data is unable to fulfill its
obligations through reperformance, FI will have the right to terminate the
Services and recover an equitable amount not to exceed the charge paid by FI to
Control Data for the particular Course in question.
12. CHARGES AND INVOICES
a. Control Data will invoice charges for training delivered on a per class basis
upon completion of the class unless otherwise specified in the SOW or Order.
Control Data will invoice charges for training delivered on a per student basis
following student enrollment unless otherwise specified in the SOW.
b. Students enrolled on a per student basis must attend classes within 12 months
from the date of invoice. Control Data has no obligation to refund any charges
paid for students who do not attend classes within the 12-month period.
c. FI agrees to: (1) pay all costs of transporting Control Data's training
personnel and instructional aids and materials to and from the customer-provided
facility where the Course is delivered; and (2) reimburse Control Data for
additional charges incurred to incorporate changes requested by FI to any
Course. These additional charges will be invoiced as incurred.
20
13. TERM
Except as otherwise provided, this Section will remain in effect until
completion of all Courses specified for delivery under this Agreement.
21
SECTION F
THIRD PARTY EQUIPMENT AND SOFTWARE PRODUCTS
1. GENERAL
Control Data assigns to FI all of its supplier's warranties, remedies, and
software licenses. The price of the equipment includes a license for software
imbedded in the equipment by the manufacturer. FI agrees to honor the terms of
any licenses furnished to FI, including, if required, signing and returning
license agreements to Control Data's supplier. FI agrees to pursue any warranty
claims directly with the manufacturers. Except for the manufacturer's standard
warranty FI is not relying on any other representation or warranties made by
manufacturer to Control Data. The manufacturer's warranty begins upon
installation of the equipment at the Control Data staging facility. Equipment
and software products are furnished F.O.B. point of origin except shipments from
Hewlett-Packard are F.O.B. destination until notified by Control Data to the
contrary. For shipments not originating at Hewlett Packard, Control Data agrees
to purchase replacement value insurance coverage for in-transit risks of loss or
damage and invoice those insurance charges to FI. Title to equipment transfers
to FI at the point of origin upon shipment. Control Data retains a security
interest in the Products until FI satisfies its payment obligations. If
requested by Control Data, FI agrees to sign appropriate documents which protect
Control Data's security interest. If FI delays installation or suspends the
delivery date for any reason and the delay or suspension is unacceptable to
Control Data and exceeds fifteen (15) calendar days, FI agrees to pay the
contract price to Control Data immediately for the delayed or suspended
equipment or software products.
2. INVOICES
Charges for third-party equipment or software furnished will be invoiced upon
installation of the equipment at the Control Data staging facility.
3. HIGH RISK ACTIVITIES
PRODUCTS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED, MANUFACTURED OR INTENDED
FOR USE OR RESALE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, SUCH
AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION
SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT, OR WEAPONS SYSTEMS ("HIGH RISK
ACTIVITIES"). CONTROL DATA SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED
WARRANTY OF FITNESS FOR SUCH HIGH RISK ACTIVITIES.
FI represents and warrants that it will not use or knowingly allow the use of
Products for such High Risk Activities and that it will ensure that its end-
users of Products are aware of this notice.
22
EXHIBIT A
PRICING
1. SOFTWARE LICENSE PRICING
------------------------
Continent Hubs - Production Systems
================================================================================
Product Description Quantity Price
--------------------------------------------------------------------------------
NMH9-301 Mail*Hub core components: 3
- GDS500 (X.500 1993 - greater
than 150k users)
- MHS 400
- Document Conversion Manager
- Advance Operation Manager
- TurboSendmail
- Directory Synchronization Manager
- Mail*Hub Hypertext Manuals
--------------------------------------------------------------------------------
XXX0-000 XX Exchange Directory Synchronization 3
--------------------------------------------------------------------------------
NMH9-710 XXXX (greater than 150K users) 3
--------------------------------------------------------------------------------
TBD High Availability Software (Third Party Software) 3
================================================================================
Continent Hubs - Backup Systems
================================================================================
Product Description Quantity Price
--------------------------------------------------------------------------------
NMH9-301B Mail*Hub core components: 3
- GDS500 (X.500 1993 - greater
than 150k users)
- MHS 400
- Document Conversion Manager
- Advance Operation Manager
- TurboSendmail
- Directory Synchronization Manager
- Mail*Hub Hypertext Manuals
--------------------------------------------------------------------------------
XXX0-000X XX Exchange Directory Synchronization 3
--------------------------------------------------------------------------------
XXX0-000X XX Exchange Directory Synchronization 3
--------------------------------------------------------------------------------
TBD High Availability Software (Third Party Software) 3
================================================================================
23
FI Hubs - Production Systems
================================================================================
Product Description Quantity Price
--------------------------------------------------------------------------------
NMH9-301 Mail*Hub core components: 12
- GDS500 (X.500 1993 - greater
than 150k users)
- MHS 400
- Document Conversion Manager
- Advance Operation Manager
- TurboSendmail
- Directory Synchronization Manager
- Mail*Hub Hypertext Manuals
--------------------------------------------------------------------------------
XXX0-000 XX Exchange Directory Synchronization 12
--------------------------------------------------------------------------------
NMH9-710 XXXX (greater than 150K users) 12
================================================================================
================================================================================
Total Software License Price (15 Production + 3 Backup Systems + 50
Micronodes)
================================================================================
Software License Pricing for Additional Hubs:
Software Configurations for Additional Hubs:
==========================================================================
Product Description
--------------------------------------------------------------------------
NMH9-301 Mail*Hub core components:
- GDS500 (X.500 1993 - greater than 150k users)
- MHS 400
- Document Conversion Manager
- Advance Operation Manager
- TurboSendmail
- Directory Synchronization Manager
- Mail*Hub Hypertext Manuals
--------------------------------------------------------------------------
XXX0-000 XX Exchange Directory Synchronization
--------------------------------------------------------------------------
NMH9-710 XXXX (greater than 150K users)
==========================================================================
24
Pricing for Additional Hub Licenses:
==========================================================================
No. of Additional Hub Software License Price per
Licenses Additional Hub
--------------------------------------------------------------------------
16 - 20
--------------------------------------------------------------------------
21 - 25
--------------------------------------------------------------------------
25+
==========================================================================
Software License Pricing for Additional Micronodes:
Software Configurations for Additional Micronodes:
==========================================================================
Product Description
--------------------------------------------------------------------------
NMH2-301 Mail*Hub core components:
- GDS500 (X.500 1993 greater than 10k users)
- MHS 400
- Document Conversion Manager
- Advance Operation Manager
- TurboSendmail
- Directory Synchronization Manager
- Mail*Hub Hypertext Manuals
--------------------------------------------------------------------------
XXX0-000 XX Exchange Directory Synchronization
--------------------------------------------------------------------------
NMH2-710 XXXX (greater than 10K users)
==========================================================================
Pricing for Additional Micronode Licenses:
==========================================================================
No. of Additional Micronode Software License Price per
Licenses Additional Micronode
--------------------------------------------------------------------------
51+
==========================================================================
Special Pricing Provisions Applicable to Micronode Licenses:
(a) User levels for Micronode Licenses shall not exceed 10,000 users per
Micronode. (Defined as: when the sum of the directory entries on all
Micronode servers in use, less duplicate directory entries, divided by the
total number of Micronode servers in use is equal to less than 10,000
users.)
(b) FI, at its option, may substitute one (1) FI Hub for four (4) Micronodes up
to a total of five (5) FI Hubs for a total of twenty (20) Micronodes, at no
additional cost to FI. Such substitutions will be accomplished by written
request from FI executive management 9 approved in writing by Control Data
executive management. Such approval shall not be unreasonably withheld.
25
(c) With the exception of (b) above, additional sets of Micronode Licenses must
be ordered in minimum quantities of 5 per order.
(d) Micronode Licenses are intended for the exclusive use of FI within their
network infrastructure, and are not for resale by FI.
2. SOFTWARE SUPPORT PRICING
------------------------
Monthly Software Support Charges shall be calculated based on an annual
rate of fifteen percent (15%) of the cumulative Software License fees paid,
divided by 12, and billed on a monthly basis. The Initial Term starts
effective March 1, 1997.
Monthly Software Support charges for additional Software ordered will be
calculated as above.
Charges begin when the Initial Term starts, are pro-rated for partial
periods and are invoiced in advance of each period. Control Data will
adjust Charges for Software Support by five percent (5%) annually effective
upon expiration of its Initial Term or the end of any calendar month after
its expiration, by giving at least ninety (90) days written notice which
may be given during the Initial Term. The adjustment will be effective on
the later of: (i) expiration of the Initial Term; (ii) the effective date
of the adjustment; or (iii) the beginning of the next recurring period.
3. PROFESSIONAL SERVICES CHARGES (Integration Services)
----------------------------------------------------
Fixed Price - Professional Services (Integration Services)
==========================================================================
Description Fixed Price
--------------------------------------------------------------------------
Mail*Hub Global Design
--------------------------------------------------------------------------
Implementation & Project Management for
Initial Rollout (Includes initial 15 Production +
3 Backup Hubs)
==========================================================================
Additional FI Hubs - Fixed Price - Professional Services (Integration Services)
==========================================================================
No. of Additional FI Fixed Price Per Additional FI
Hubs Hub
--------------------------------------------------------------------------
16 - 25+
==========================================================================
a. Fixed Price Professional Services Charges for the Additional FI Hubs are
valid for a period of twenty-four (24) months from the Effective Date of
this contract. Thereafter,
26
these charges will be escalated annually, rounded to the
nearest whole dollar ($.50 rounded up), effective with the twenty-fifth
(25th) month of the contract and each succeeding year.
b. The Fixed Price Professional Services Charges listed above do not include
reimbursement by FI of certain Control Data expenses in accordance with
paragraph 3.c of Section D.
c. FI has the option to perform the above fixed price task (Additional FI
Hubs) on a T&M basis at the rates specified in Table 3-1. Paragraphs a.
and b. that follow this table are understood to be integral to this table.
Time & Material Charges for Professional Services (Integration Services)
Table 3-1 Time and Material (T&M) Charges
==========================================================================
Product Description Hourly Rate
No.
--------------------------------------------------------------------------
ISG-EM-01 EM Technician
--------------------------------------------------------------------------
ISG-EM-02 Electronic Messaging Installer
--------------------------------------------------------------------------
ISG-EM-03 Sr. EM Installer
--------------------------------------------------------------------------
ISG-EM-04 Electronic Messaging Designer
--------------------------------------------------------------------------
ISG-EM-05 Sr. EM Designer
--------------------------------------------------------------------------
ISG-EM-06 EM Technology Consultant
--------------------------------------------------------------------------
ISG-EM-07 Sr. EM Technology Consultant
--------------------------------------------------------------------------
ISG-EM-08 Principal EM Technology Consultant
--------------------------------------------------------------------------
ISG-EM-09 Chief EM Technologist
--------------------------------------------------------------------------
ISG-EM-10 Sr. EC/Security Designer
--------------------------------------------------------------------------
ISG-EM-11 EC/Security Technology Consultant
--------------------------------------------------------------------------
ISG-EM-12 Sr. EC/Security Technology Consultant
==========================================================================
a. Time & Material Hourly Rates shall be escalated annually, rounded to
the nearest whole dollar ($.50 rounded up), on the anniversary Date of the
Effective Date of this contract, and each succeeding anniversary date
thereafter.
b. The Time & Material Hourly Rates listed above do not include reimbursement
by FI of certain Control Data expenses in accordance with paragraph 3.c of
Section D.
27
4. SPECIAL PRICING PROVISIONS (REVENUE SHARING)
--------------------------------------------
In addition to the other fees and charges payable by FI set forth in this
Agreement, FI agrees to pay to Control Data certain percentages of FI's net
revenues from certain facsimile and message traffic carried on the FI network as
follows:
A. Definitions. For purposes of this Section 4, the following terms shall
-----------
have the respective meanings set forth below:
(1) "FI network" shall mean FI's worldwide value-added telecommunications
and massaging network; provided, that where any of the definitions of types of
--------
traffic set forth below requires that a transmission be transmitted to or over
the FI network, such transmission must be transmitted originally to an Original
Node or an Additional Node.
(2) "Facsimile Traffic" shall mean facsimile transmissions (i) originated
by a FI customer, (ii) (a) using Control Data software or other technology
installed at such customer facility where such transmission was originated to
provide connectivity directly to the FI network or (b) where such customer
--
originally subscribed to FI's service through the joint efforts of FI and
Control Data (such joint effort to be evidenced by a sales lead sheet initialed
by authorized representatives of each party or other mutually agreeable method)
or (c) where Control Data has a contractual relationship with the customer under
which Control Data is furnishing electronic commerce related products or
services, (iii) transmitted over the FI network, and (iv) terminating at an
international or domestic long-distance destination. Facsimile traffic shall
not include transmissions over the FI network originated by a customer using
FI's FaxLink device.
(3) "Intranet Traffic" shall mean facsimile or other electronic message
transmissions (i) originated by a FI customer using its local area network
("LAN"), (ii) (a) using Control Data software or other technology installed on
such customer's LAN where such transmission was originated to provide
connectivity directly to the FI network or (b) where such customer originally
--
subscribed to FI's service through the joint efforts of FI and Control Data
(such joint effort to be evidenced by a sales lead sheet initialed by authorized
representatives of each party or other mutually agreeable method) or (c) where
Control Data has a contractual relationship with the customer under which
Control Data is furnishing electronic commerce related products or services,
(iii) transmitted over the FI network, and (iv) terminating on another FI
customer's LAN on which Control Data software or other technology is installed
or where Control Data has previously provided such customer with software or
--
technology integration services required to establish connectivity to the FI
network.
(4) "X.400 Traffic" shall mean facsimile or other electronic message
transmissions (i) originated by a FI customer, (ii) (a) using Control Data
software or other technology installed on such customer's LAN where such
transmission was originated to provide connectivity directly to the FI network
or (b) where such customer originally subscribed to FI's service through the
--
joint efforts of FI and Control Data (such joint effort to be evidenced by a
sales lead sheet initialed by authorized representatives of each party or other
mutually agreeable method) or (c) where Control Data has a contractual
relationship with the customer under which Control Data is furnishing electronic
commerce related products or services, (iii) transmitted to the FI network and
from the FI network to an ADMD or similar X.400 capable service provided by a
third party for re-transmission to destination.
(5) "Internet Traffic" shall mean facsimile or other electronic message
transmissions (i) originated by a FI customer, (ii) (a) using Control Data
software or other technology installed on such customer's
28
LAN where such transmission was originated to provide connectivity directly to
the FI network or (b) where such customer originally subscribed to FI's service
--
through the joint efforts of FI and Control Data (such Joint Effort to be
evidenced by a sales lead sheet initialed by authorized representatives of each
party or other mutually agreeable method) or (c) where Control Data has a
contractual relationship with the customer under which Control Data is
furnishing electronic commerce related products or services, (iii) transmitted
to the FI network and from the FI network to a third party Internet service
provider for re-transmission to destination.
(6) "Net Revenue" shall mean revenue invoiced and actually collected by FI
in respect of Fax Traffic, Intranet Traffic and X.400 Traffic, less all taxes
assessed on such revenue (but excluding taxes based on the net income of FI) and
all discounts, credits, adjustments or rebates granted by FI to such customers.
In the case of X.400 Traffic, Net Revenue shall also be reduced by the amount of
aux, transfer-pricing or similar charges payable by FI to the third-party ADMD
or other X.400 capable service provider in respect of such traffic.
(7) "Micronode Traffic" shall mean all bidirectional traffic flowing
through each Micronode.
B. Payment Provisions
------------------
(1) With respect to the types of Traffic over the FI network described in
Paragraph A above, FI shall pay Control Data a percentage of FI's Net Revenue
from such Traffic at the following rates:
. Upon any termination of this Agreement by FI other than for
Control Data's breach of any provision hereof, FI shall continue to pay
royalties on each Joint Offering Customer sold by Control Data prior to the
effective date of such termination, calculated in accordance with clauses (i)
and (ii) above, through the 60th month from commencement of such customer's
billable use of the FI Service.
(2) Payments by FI pursuant to Clause B(1) above shall be calculated and
paid calendar-quarterly in arrears, commencing with Traffic invoiced by FI
during the first quarter of 1997, on or before the thirtieth (30th) day of the
first month in each succeeding quarter. Simultaneously with each such payment,
FI shall issue Control Data a report showing in reasonable detail the gross
revenue invoiced by FI to each customer generating any of the types of Traffic
described in Clauses B(2), (3) or (4) above during the preceding quarter and
containing a calculation of the amounts payable to Control Data in respect of
such Net Revenue. All such payments by FI shall be in US dollars and shall be
made by FI's personal check, bank or certified check or wire transfer of funds.
(3) Control Data acknowledges and agrees that the payments described in
this Section 4 of Exhibit A are due and payable only with respect to Net Revenue
actually collected by FI from its customers, although FI shall make such
payments on an invoice basis in advance of actual collection. Control Data
agrees that, with respect to any customer who fails to pay any FI invoice when
due and such amount remains outstanding for ninety (90) or more days from date
of original invoice, FI shall be entitled in its sole discretion to elect any
one or more of the following: (i) FI may withhold Control Data's payment with
respect to such invoiced charges, if FI has not previously made such payment to
Control Data, (ii) FI may, if such payment has been previously made by FI to
Control Data with respect to such invoiced charges, deduct the amount of such
previously-paid amount from payments then or in the future owing to Control Data
with respect to the same or other customers, or (iii) FI may require Control
Data to refund such previously-paid amounts. FI shall use all reasonable
efforts, in accordance with sound business practice and applicable law, to
collect amounts due from customers. Control Data agrees, if requested by FI, to
reasonably assist FI in collecting amounts due from any customer.
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C. Records and Audit Rights:
------------------------
1. Records. FI agrees to keep proper records, books of account and/or logs
-------
concerning the amounts payable to Control Data under this Section 4 of
Exhibit A. FI agrees that such records will be: (1) adequate to determine
the amount of payment owed to Control Data by FI and (2) preserved by FI in
a safe place for a period of one (1) year following termination of this
Agreement.
2. Audit Rights. During the term of this Agreement and during the one year
------------
period immediately following termination of this Agreement, Control Data
shall have the right, but not more often than once per year, at its
expense, to audit FI's records concerning revenue sharing items. The audit
will be conducted by a mutually acceptable independent accountant during
FI's annual corporate audit and upon prior reasonable written notification
to FI.
3. Noninterference. The audit must be conducted in a manner so as not to
---------------
unreasonably interfere with FI's business operations.
4. Confidentiality. Control Data agrees to keep all information derived from
---------------
any audit or audits confidential. This information shall not be used by
Control Data for any purpose other than to verify or resolve any
discrepancy involving the payment of charges due Control Data under this
Section 4 of Exhibit A.
5. Adjustments. If an audit of FI's records, books of account and/or logs,
-----------
reveals that FI has underpaid the charges due Control Data for the period
under audit, FI agrees to promptly pay to Control Data the amount of the
underpayment. If any such audit reveals that FI has overpaid the charges
due Control Data for the period under audit, Control Data agrees to
promptly refund to FI the amount of such over-payment.
6. Rights Preserved. Neither the right to examine and audit nor the right to
----------------
receive an adjustment will be affected by any statement to the contrary,
appearing on checks or otherwise, unless expressly agreed to in writing by
the party having such right.
D. Joint Marketing Provision
-------------------------
To facilitate the development of FI's marketing of the fax and messaging
services ("FI Services") associated with the revenue sharing provisions of this
Agreement, Control Data agrees, during the period from the Effective Date of
this Agreement through June 30, 1997, to introduce and make joint sales
presentations with FI for these FI Services to a minimum of twenty-five (25)
Control Data Mail*Hub customers in the United States and twenty (20)
international Control Data Mail*Hub customers. The number of customers and
time-frame of this provision may be extended by the mutual consent of both
parties. In addition, the parties agree to develop mutually acceptable tactical
plans to manage these joint marketing activities.
30
5. TRAINING PRICING
----------------
================================================================================
At Control Data Site At FI Site
Course (Price Per Person) (Price Per Site)
--------------------------------------------------------------------------------
Introduction to Mail*Hub
--------------------------------------------------------------------------------
Mail*Hub Overview & Administration
--------------------------------------------------------------------------------
Mail*Hub Theory and Configuration
--------------------------------------------------------------------------------
Mail*Hub Integration Workshop
--------------------------------------------------------------------------------
Mail*Hub Implementation Lab
--------------------------------------------------------------------------------
Mail*Hub Certification
--------------------------------------------------------------------------------
Mail*Hub Open Lab
================================================================================
6. ESCROW FEES
-----------
==========================================================================
Escrow Fees Amount
--------------------------------------------------------------------------
Initial Fee
--------------------------------------------------------------------------
Annual Fee
==========================================================================
FI agrees to pay the Initial Fee and the first year's Annual Fee in accordance
with the table above when FI pays the first invoice for Software Support
charges. The Annual Fee shall be escalated by per year, and
shall be due and payable on each anniversary date of the initial payment
thereafter.
7. THIRD-PARTY HARDWARE PRICING
----------------------------
Hewlett-Packard hardware products may be ordered by FI at from
Hewlett-Packard's then current list prices. Orders for hardware products must
contain specific product numbers. This discount applies until Control Data
notifies FI of a change.
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