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EXHIBIT 10.17
CERTAIN CONFIDENTIAL
TREATMENT CONTAINED IN
THIS DOCUMENT, MARKED BY
BRACKETS AND DENOTED BY AN
ASTERISK, HAS BEEN OMITTED
AND FILED SEPARATELY WITH
THE SECURITIES AND
EXCHANGE COMMISSION
PURSUANT TO 17 C.F.R.
SECTIONS 200.80(b)(4),
200.83 AND SECTION
230.406.
JOINT DEVELOPMENT AND LICENSING AGREEMENT
This Agreement is entered into this 30th day of September, 1994 by
and between AirTouch Communications, Inc. (formerly known as PacTel
Corporation), a California corporation ("AirTouch") and Coral Systems, Inc., a
Colorado corporation ("Coral").
SECTION ONE
BACKGROUND
AirTouch is a provider of, among other things, cellular
telecommunications services in portions of the United States and owns various
equity interests in other providers of wireless telecommunications services
throughout the world. AirTouch is the owner of two software applications
relating to the detection of certain forms of fraud committed against providers
of wireless telecommunications services. Similarly, Coral Systems owns and has
developed computer software designed to detect certain forms of fraud
perpetrated against providers of wireless telecommunications services. The
parties desire to provide source code licenses to one another for their
respective fraud detection softwares and provide a mechanism for the joint
development of enhancements to these applications.
SECTION TWO
DEFINITIONS
2.1 AirTouch Applications. The two software applications owned by
AirTouch one of which is designed to detect certain forms of fraud perpetrated
against providers of wireless telecommunications services entitled the AirTouch
Fraud Profiler(TM) and the other interfaces Unix based applications to the
wireless fraud detection devise entitled PhonePrint(TM).
2.2 AirTouch Documentation. The documentation utilized in
conjunction with the AirTouch Applications.
2.3 AirTouch Enhancements. Enhancements to the Coral Applications
suggested and/or designed and paid for solely by AirTouch which are developed
in accordance with the provisions of Section 6 below.
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2.4 AirTouch Functional Specifications. The specifications of the
AirTouch Applications set forth in Exhibit "A" attached hereto and any future
version thereof provided by AirTouch to Coral.
2.5 AirTouch Markets. The following properties, markets and/or
companies which provide cellular telecommunications services to the general
public which are owned exclusively by AirTouch or in which AirTouch owns an
equity interest: San Diego, Los Angeles and Sacramento, California; Atlanta,
Georgia; the San Francisco Bay Area as owned by Bay Area Cellular Telephone
Company; and the current Michigan and Ohio markets.
2.6 Coral Applications. The software applications owned and/or
developed by Coral entitled FraudBuster(TM) version 2.0 which is designed to
detect certain forms of potentially fraudulent usage of a cellular
telecommunications system and, when developed, the PhonePrint Interface, as
defined below.
2.7 Coral Documentation. The documentation utilized in
conjunction with the Coral Applications which includes system and users guides.
2.8 Coral Enhancements. Changes or additions to the Coral
Applications that add functionality or substantially improve the performance of
the Coral Applications and which are not AirTouch or Joint Enhancements.
2.9 Coral Functional Specifications. The specifications of the
Coral Applications set forth in Exhibit "B" attached hereto and any future
versions thereof provided by Coral to AirTouch.
2.10 Error. A statement or condition in the Coral Applications or
the AirTouch Applications that is not in material conformity with the relevant
Functional Specifications.
2.11 Error Correction. A change to the AirTouch Applications or
the Coral Applications to conform to the relevant Functional Specifications in
all material respects.
2.12 Joint Enhancements. Enhancements to either the Coral
Applications or the AirTouch Applications determined collectively by AirTouch
and Coral for which AirTouch contributes a mutually agreed upon amount of the
development costs, calculated at Coral's then current standard rates, and
subject to the provisions of Section 6 below.
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2.13 Phone Print Interface. The interface between the FraudBuster
portion of the Coral Applications and the PhonePrint portion of the AirTouch
Applications developed by Coral in accordance with Section 9.4 below which
integrates and facilitates the reasonable and limited interoperability between
these two products.
SECTION THREE
GRANT OF LICENSE TO AIRTOUCH
3.1 Grant of License to AirTouch. Subject to the terms herein,
Coral hereby grants to AirTouch the non-exclusive, non-transferable, fully
paid, perpetual and irrevocable source code license to and for the Coral
Applications subject to the sublicensing restrictions provided in Section 4
below for the limited purpose of (a) use and reproduction of the Coral
Applications in AirTouch Markets (b) development of enhanced or modified
versions of the Coral Applications for use in AirTouch Markets, and (c)
sublicensing object code versions of the Coral Applications only as provided in
Section 4 below. The foregoing license specifically excludes any licenses to
the ancillary or third party software utilized by or in conjunction with the
Coral Applications, all of which must be purchased separately from Coral or the
manufacturers or distributors of the same.
3.2 Use of Name. Subject to the terms herein, Coral hereby grants
to AirTouch the non-exclusive and non-transferable right to use the name of
the Coral Applications in connection with any promotional, sales and marketing
materials it produces, provided AirTouch identifies such name as the trademark
of Coral. Additionally, AirTouch shall be permitted to sublicense the Coral
Applications or any derivative thereof under any name it chooses other than the
name of the Coral Applications. AirTouch accepts this license and agrees to
use it in accordance with the provisions of this Agreement.
3.3 Coral Documentation. Coral grants to AirTouch the
non-exclusive, non-transferable, fully paid, royalty free, perpetual and
irrevocable license to and for the Coral Documentation subject to the
sublicensing restrictions provided in Section 4 below to make such copies,
amendments, modifications or other uses which are necessary and appropriate in
connection with the exercise of the rights granted to AirTouch in this Section
3.
3.4 Delivery. Coral shall deliver to AirTouch complete electronic
copies of the Coral Applications and the Coral Documentation within 30 days of
the execution of this Agreement.
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CONFIDENTIAL TREATMENT REQUESTED
3.5 Ownership. The Coral Applications, the Coral Documentation
and all patents, copyrights and other intellectual property rights contained or
embodied in any of the forgoing shall be and remain the property of Coral
subject to the licenses granted to AirTouch herein.
3.6 Reservation of Rights. All rights not specifically granted to
AirTouch by this Agreement are reserved by Coral. Except as specifically
provided hereunder, Coral grants to AirTouch no rights to any intellectual
property in or to the Coral Applications or the Coral Documentation.
SECTION FOUR
SUBLICENSES GRANTED BY AIRTOUCH
4.1 Coral Applications Sublicense. AirTouch shall be permitted to
sublicense the Coral Applications or any derivative thereof or other
application incorporating any of the Coral Applications and the Coral
Documentation only to those entities providing cellular telecommunication
services in which AirTouch directly owns a 10% or greater equity interest. For
purposes of the section, AirTouch shall be deemed to have the requisite equity
interest in US WEST New Vector Group, regardless of the current phase of the
proposed merger.
4.2 Sublicense Limitations. Absent written authorization to the
contrary, AirTouch shall not be permitted to grant any sublicense of the Coral
Applications, or any part thereof, to be used in the providing of service
bureau work or remote computing services for or on behalf of any cellular
service provider other than AirTouch for AirTouch Markets.
4.3 Sublicense Royalty. In providing the sublicenses authorized
in this Section 4, AirTouch shall be permitted to determine the price and terms
under which the sublicense shall be granted. In connection with each
sublicense granted by AirTouch, AirTouch shall provide Coral with [*] of the
list price for the Coral Applications, as such may vary from time to time, as a
royalty for the sublicense rights provided to AirTouch in this Agreement. By
December 1st of each year, Coral shall provide AirTouch with the domestic and
international list prices for the Coral Applications for the next calendar
year. In the event Coral fails to provide the amended list prices, the list
prices from the previous year shall be applied. AirTouch shall provide the
requisite compensation provided in this Section 4.3 within 30 days of receipt
of payment from AirTouch's sublicensee.
4.4 Sublicense Acknowledgment. AirTouch shall submit to Coral an
acknowledgment for each license or sublicense installation, sale or other
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deployment involving the Coral Applications, or any portion or derivative
thereof, with appropriate detail of the market, carrier, AirTouch equity
interest, size and license or sublicense terms prior to installation or
deployment of the same.
4.5 Audit. AirTouch shall keep accurate and complete records of
all copies made and sublicenses granted of the Coral Applications. Coral shall
be permitted, at its cost, to conduct a quarterly audit of those books and
records of AirTouch relating to Coral Application sublicenses to determine the
accuracy of the payments to Coral. In the event the audit reveals a 10% or
greater discrepancy in the amount that should have been paid to Coral, AirTouch
shall reimburse Coral the costs and expenses associated with such audit in
addition to paying all sums owing.
SECTION FIVE
GRANT OF LICENSE TO CORAL
5.1 Grant of AirTouch Applications License to Coral. Subject to
the terms herein, AirTouch hereby grants to Coral the non-exclusive,
non-transferable, fully paid, royalty free, perpetual and irrevocable source
code license to and for the AirTouch Applications to use, reproduce, and/or
modify the Air Touch Applications to develop enhanced or modified versions of
the Coral Applications for use by Coral in sublicensing object code versions to
third parties.
5.2 Use of Name. Subject to the terms herein, AirTouch hereby
grants to Coral the non-exclusive and non-transferable right to use the names
of the AirTouch Applications in connection with any promotional, sales and
marketing materials it produces, provided Coral identifies such name as the
trademark of AirTouch. Additionally, Coral shall be permitted to license and
sublicense the Coral Applications as modified by the incorporation of the
AirTouch Applications under any name it chooses. Coral accepts this license
and agrees to use it in accordance with the provisions of this Agreement.
5.3 AirTouch Documentation. AirTouch grants to Coral the
non-exclusive, non-transferable, fully paid, royalty free, perpetual and
irrevocable license to and for the AirTouch Documentation to make such copies,
amendments, modifications or other uses which are necessary and appropriate in
connection with the exercise of the rights granted to Coral in this Section 5.
5.4 Grant of DMX License to Coral. Subject to the terms herein,
AirTouch grants to Coral the non-exclusive, non-transferable, fully paid,
royalty
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free, perpetual and irrevocable license, in object or source code form as may
be received from time to time by AirTouch, to the Motorola DMX switch interface
format (the "DMX license"). Coral acknowledges that AirTouch is in the process
of attempting to obtain the foregoing license and may be unable to provide the
DMX license.
5.5 Delivery. AirTouch shall deliver to Coral complete electronic
copies of the AirTouch Applications and the AirTouch Documentation within 30
days of the execution of this Agreement.
5.6 Ownership. The AirTouch Applications and the AirTouch
Documentation and all patents, copyrights and other intellectual property right
contained or embodied in any of the foregoing shall be and remain the property
of AirTouch subject to the licenses granted to Coral herein.
5.7 Reservation of Rights. All rights not specifically granted to
Coral by this Agreement are reserved by AirTouch. Except as specifically
provided hereunder, AirTouch grants to Coral no rights to any intellectual
property in or to the AirTouch Applications or AirTouch Documentation.
SECTION SIX
APPLICATION ENHANCEMENTS
6.1 AirTouch Enhancements. In the event AirTouch desires Coral to
undertake the development of any AirTouch Enhancements it shall provide a
detailed description of such enhancement to Coral and provide reasonable
assistance to Coral should further definition be required. Prior to commencing
work on any AirTouch Enhancement, Coral shall submit to AirTouch a detailed
summary of the work necessary, the approximate cost and the approximate time
necessary to complete the AirTouch Enhancement. Coral shall have 45 days to
submit the foregoing proposal from the date AirTouch provides Coral with a
detailed written request for the AirTouch Enhancement. AirTouch shall have 45
days from the submission by Coral of the foregoing proposal to determine if it
desires Coral to undertake the development of the AirTouch Enhancement. In the
event AirTouch accepts the proposal or the parties negotiate a mutually
acceptable alternative, Coral shall undertake and complete the AirTouch
Enhancement. Coral reserves the right not to submit a proposal on any
AirTouch Enhancement. The parties shall act reasonably and in good faith in
their discussions regarding the development of AirTouch Enhancements. Nothing
in this Section or this Agreement shall prevent AirTouch from developing any
AirTouch Enhancement without the aid of Coral.
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CONFIDENTIAL TREATMENT REQUESTED
6.2 Joint Enhancements. Coral and AirTouch shall work together to
develop the enhancements to the Coral Applications, the AirTouch Applications
or any other application incorporating the code, ideas or concepts of any of
the above. In the event the parties identify a Joint Enhancement, they shall
collectively determine the detailed requirements for the same and Coral shall
subsequently provide AirTouch with an estimate of the time and cost necessary
for the development of the same. AirTouch shall have the option of paying
Coral for a mutually agreed upon amount of the actual development time
necessary to complete the Joint Enhancement calculated at Coral's then current
development rates. All Joint Enhancements shall be the joint property of
AirTouch and Coral. In the event AirTouch elects not to participate in the
development of the Joint Enhancement, Coral shall be permitted to develop the
same at its cost as a Coral Enhancement and AirTouch shall be provided the
opportunity to license the same under terms to be mutually agreed upon.
6.3 Title to AirTouch and Joint Enhancements. Title to all Joint
Enhancements developed by Coral shall be jointly held by AirTouch and Coral.
Coral shall turnover to AirTouch an electronic copy of the source code for the
AirTouch and Joint Enhancements upon completion of the project and provide
reasonable assistance to AirTouch in the use and incorporation of the AirTouch
or Joint Enhancement into the AirTouch network. Coral shall be permitted,
without royalty or other obligation, to incorporate any Joint Enhancement
developed by Coral into the Coral Applications [ * ] after the completion
of the Joint Enhancement. Nothing in this section or this Agreement shall
prevent or interfere with the ability of AirTouch or, after expiration of the
appropriate period above, Coral, to license any Joint Enhancement to any entity
either chooses. AirTouch shall be the exclusive owner of the AirTouch
Enhancements with the sole discretion to license Coral certain of the AirTouch
Enhancements under the terms hereof.
6.4 Enhancement Payments. All AirTouch or Joint Enhancements
developed by Coral shall be billed at Coral's then current standard rates which
is currently [ * ] per person week. Coral shall invoice AirTouch monthly for
work associated with any AirTouch or Joint Enhancements. AirTouch shall pay
all invoices within 60 days of receipt. AirTouch's liability for Coral
developed AirTouch or Joint Enhancements shall be for the actual person weeks,
or pro rata portion thereof, incurred by Coral multiplied by the appropriate
percentage contribution (as negotiated by the parties on a case by case basis)
plus all necessary and reasonable ancillary expenses, including travel and
accommodations.
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CONFIDENTIAL TREATMENT REQUESTED
6.5 Coral Enhancements. Coral shall be permitted to develop any
feature, function or application similar or identical to any AirTouch or Joint
Enhancement at anytime, provided Coral develops the same independently of such
enhancement. All enhancements which are not AirTouch Enhancements or Joint
Enhancements shall be the sole property of Coral, subject, however, to
AirTouch's right to receive the same under Section 8.5 below. AirTouch
acknowledges that throughout the term of this Agreement, Coral shall be
developing and deploying Coral Enhancements to the Coral Applications.
SECTION SEVEN
PAYMENTS TO CORAL
7.1 License Payment. AirTouch shall pay to Coral [ *
] upon the turnover to AirTouch of any
electronic copy of (1) the source code for the FraudBuster portion of the Coral
Applications and (2) the Coral Documentation.
7.2 Maintenance Fees. Coral shall provide the maintenance and
support provided in Section 8 below in AirTouch Markets free of charge for the
first year following execution of this Agreement. Beginning on the second
anniversary of this Agreement, AirTouch shall pay Coral a minimum of [ * ]
per year for such maintenance and support for AirTouch Markets. AirTouch or
the appropriate sublicensee shall have the option of purchasing the support and
maintenance provided in Section 8 below for the authorized sublicensee, within
30 days of the earlier of the execution of a sublicense agreement for or the
installation of any portion of the Coral Applications, at the rate of [*] per
annum of the sublicense price, provided such price is determined in a good
faith, arm's length and market reflective transaction. Coral may adjust the
annual fee charged for support and maintenance annually by providing written
notice to AirTouch or the sublicensee at least 90 days prior to the anniversary
date of maintenance and support services. Notwithstanding the foregoing, Coral
may not raise the annual fee charged for support and maintenance by more than
[*] per year with a cap of [*] over the life of the Agreement. Once commenced,
maintenance and support shall automatically renew each year at the previous
year's fee, or if proper notice is given, at the amended fee, unless AirTouch
or the sublicensee provides Coral with 60 days prior written notice of its
election to terminate the same.
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SECTION EIGHT
CORAL'S SUPPORT OBLIGATIONS
8.1 Application Installation. Coral shall install the Coral
Applications in AirTouch Markets under a schedule to be determined by the
mutual agreement of the parties. AirTouch shall reimburse Coral for its actual
costs of installation, including travel, accommodations and actual personnel
costs, at no uplift. Coral shall provide the Coral Applications and AirTouch
shall provide all hardware, ancillary software, network connectivity and all
such other interfaces and items as may be necessary for the installations.
8.2 Support & Maintenance. Coral shall have primary responsibility
for the support and maintenance of the Coral Applications. The foregoing
support and maintenance shall be provided by telephone weekdays between 9:00
a.m. to 5:00 p.m. Mountain Time, excluding Coral holidays. Coral support
personnel may be reached during the foregoing hours at (000) 000-0000 or at
anytime via voice mail at the foregoing number plus the appropriate extension
or via electronic mail at xxxxxxx@xxxxxxxx.xxx or at any other numbers or
addresses as may be provided to AirTouch from time to time. Reasonable efforts
will be made to return messages at the commencement of the next service day and
calls received during normal service hours will be attempted to be worked to
completion the same day.
8.3 Technical Training. Coral shall provide, at its own expense,
two one day seminars in Longmont, Colorado to provide technical training on the
operation and support of the Coral Applications. The dates and times of the
foregoing shall be at the mutual agreement of the parties. Additionally, Coral
shall provide, at its own expense, a one day technical training seminar in
Longmont, Colorado for all AirTouch Enhancements and Joint Enhancements and
Coral Enhancements which are purchased by AirTouch.
8.4 Error Correction. In the event an Error is discovered in the
Coral Applications, AirTouch shall immediately report the same to Coral in
writing of sufficient detail to diagnose the Error. Coral shall use its
reasonable best efforts to remedy all Errors in a time frame commensurate with
the severity of the Error. All such corrections shall be the sole
responsibility of Coral to remedy unless the cause of such Error is due to
incorrect or improper information, assistance, action or inaction provided by
AirTouch, in which case Coral shall use its best efforts to undertake the
correction and AirTouch shall be responsible for the cost of the same at
Coral's standard rates.
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8.5 Upgrades. Coral shall provide to AirTouch, without charge,
all Coral Enhancements as are made generally available. Coral shall provide
source code and object code versions of all Coral Enhancements to AirTouch for
installation in AirTouch Markets and shall provide object code versions of the
same to authorized sublicensees. All Coral Enhancements to any entity or in
any form are not permitted to be licensed, sublicensed, transferred or
otherwise used by any entity not authorized to receive the same under this
Agreement.
SECTION NINE
ADDITIONAL OBLIGATIONS OF CORAL
9.1 Application Protection. Coral shall protect the AirTouch
Applications from unauthorized use, copying, modification, or distribution with
at least the same level of effort and security as it has in effect with respect
to its own proprietary computer programs. All copies of the AirTouch
Applications, the AirTouch Documentation and all derivative works thereof shall
be marked with Coral's or AirTouch's copyright and proprietary notice as
appropriate.
9.2 Reverse Engineering. Coral shall take reasonable steps to
ensure all sublicensees do not reverse assemble, reverse compile or reverse
engineer the AirTouch Applications. Coral shall obtain agreements from all
sublicensees who are given access to the AirTouch Applications or any
supporting documentation, that prohibit the unauthorized copying (except one
archival copy), modification, distribution, reverse engineering, reverse
assembly and reverse compiling of the AirTouch Applications. Coral shall use
all reasonable efforts to enforce the foregoing. Where the AirTouch
Applications are sublicensed for use in the European Community, Coral and
AirTouch shall comply with legislation implementing Article 6.1 (b) of the EC
Directive for the Legal Protection of Software (Directive 91/250) by way of
providing information on interoperability of the AirTouch Applications upon
request of Coral.
9.3 Use of Name. Coral shall obtain the written consent of
AirTouch prior to the use of the AirTouch name or the name of the AirTouch
Applications in any sales, marketing or promotional materials.
9.4 Interface. Coral shall use reasonable efforts to develop the
PhonePrint Interface in a timely fashion after delivery of the AirTouch
Applications to Coral. AirTouch shall provide information, assistance and
personnel as may be reasonably requested by Coral in furtherance of the
development of the PhonePrint Interface. Upon completion of such development,
Coral shall deliver to AirTouch electronic copies of the source code and any
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documentation that Coral may have developed to and for the PhonePrint
Interface. The PhonePrint Interface shall be subject to the licensing and
sublicensing provisions of this Agreement by inclusion in the definition of the
Coral Applications.
9.5 Beta Functionality. Coral grants to AirTouch the right of
first refusal to test new applicable Coral Enhancements as such are ready for
beta installation. Coral shall provide AirTouch with a minimum of 45 days
prior written notice of the estimated date an applicable Coral Enhancement
shall be available for beta installation and testing. AirTouch shall have 15
days within which to notify Coral of its desire to test the same in a beta
installation in a mutually agreed upon AirTouch market. Upon receipt of the
foregoing notice from AirTouch, the parties shall work together to install and
test the beta version of the Coral Enhancement.
SECTION TEN
OBLIGATIONS OF AIRTOUCH
10.1 Application Protection. AirTouch shall protect the Coral
Applications and Coral Enhancements from unauthorized use, copying,
modification, or distribution with at least the same level of effort and
security as it has in effect with respect to its own proprietary computer
programs. All copies of the Coral Applications, the Coral Documentation, all
Coral Enhancements received or purchased by AirTouch, the documentation
produced by AirTouch and all derivative works thereof shall be marked with
Coral's or AirTouch's copyright and proprietary notice as appropriate.
10.2 Reverse Engineering. AirTouch shall take reasonable steps to
ensure all sublicensees do not reverse assemble, reverse compile or reverse
engineer the Coral Applications or any Coral Enhancements. AirTouch shall
obtain agreements from all employees, sublicensees who are given access to the
Coral Applications, or any supporting documentation, that prohibit the
unauthorized copying (except one archival copy), modification, distribution,
reverse engineering, reverse assembly and reverse compiling of the Coral
Applications or Coral Enhancement. AirTouch shall use all reasonable efforts
to enforce the foregoing. Where the Coral Applications is sublicensed for use
in the European Community, Coral and AirTouch shall comply with legislation
implementing Article 6.1 (b) of the EC Directive for the Legal Protection of
Software (Directive 91/250) by way of providing information on interoperability
of the Applications upon request of AirTouch.
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10.3 Use of Name. AirTouch shall obtain the written consent of
Coral prior to the use of the Coral name or the name of the Coral Applications
in any sales, marketing or promotional materials.
10.4 Error Correction. In the event an Error is discovered in the
AirTouch Applications, Coral shall immediately report the same to AirTouch in
writing of sufficient detail to diagnose the Error. AirTouch shall use its
reasonable best efforts to remedy all Errors in a time frame commensurate with
the severity of the Error. All such corrections shall be the sole
responsibility of AirTouch to remedy unless the cause of such Error is due to
incorrect or improper information, assistance, action or inaction provided by
Coral, in which case AirTouch shall use its best efforts to undertake the
correction and Coral shall be responsible for the cost of the same at
AirTouch's standard rates.
SECTION ELEVEN
PUBLICITY
11.1 Press Releases. Upon the execution of this Agreement, the
parties shall issue a joint press release announcing the execution of this
Agreement with appropriate supporting details. The text of the press release
shall be determined by the mutual agreement of the parties and may not be
released to the public until both parties have provided their written consent.
From time to time in the future, the parties may elect to issue additional
press releases announcing enhancements or successes of the Coral Applications
in detecting, preventing and/or the apprehension or arrest of fraudulent users
of the cellular telecommunications services provided by AirTouch. Such press
releases are subject to the prior written consent of both parties prior to
release to the public.
11.2 Reference Account. AirTouch shall act as a reference account
for Coral for the Coral Applications. Such activities shall include, without
limitation, the granting of permission to Coral to bring its potential
customers into markets utilizing the Coral Applications or portions thereof and
providing the endorsement set forth in Section 11.3 below. Such visits shall
be limited to a reasonable number per year and shall be conducted only upon
consultation with and the consent of AirTouch, which consent may not be
unreasonably withheld.
11.3 Endorsement. AirTouch shall provide the public endorsement
of the Coral Applications as is reasonably appropriate. Occasions in which the
endorsement shall be given shall include, without limitation, interviews, press
releases, reference sites visits, telephone inquiries by potential Coral
customers
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and such other events and occasions in which it is reasonable to provide the
endorsement.
11.4 Trade Shows; Public Forums. The parties shall provide
reasonable support to one another in connection with respective efforts at
industry trade shows, speaking engagements and other public forums relating to
fraud detection in the wireless telecommunications industry. The foregoing
support shall include, without limitation, providing reasonable access to and
presence in booths and displays at relevant trade shows (including CTIA).
SECTION TWELVE
CORAL WARRANTIES
12.1 Ownership. Coral represents and warrants to AirTouch that it
owns the FraudBuster portion of the Coral Applications, with the exception of
all third party software applications and operating systems which are a part of
the same, and that it has the right and ability to grant the licenses granted
herein.
12.2 No Infringement. Coral represents and warrants that no claim
or action relating to the infringement of any copyright, trademark, or other
intellectual property right has been made or is pending against Coral with
respect to the Coral Applications (excluding the PhonePrint Interface) or the
Coral Documentation.
12.3 Compliance With Functional Specifications. Coral represents
and warrants that the Coral Applications (excluding the PhonePrint Interface)
shall comply in all material respects with the Coral Functional Specifications
and shall function on the computer equipment and with the operating systems
identified in the Coral Functional Specifications as such may be modified from
time to time.
12.4 Limitation of Warranties. Other than the warranties provided
in Sections 12.1, 12.2 and 12.3 above, CORAL MAKES NO OTHER WARRANTY OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AirTouch has been
provided the opportunity to evaluate the Coral Applications (excluding the
PhonePrint Interface) and is responsible for determining the suitability of
this application.
12.5 Limitation of Remedies. AirTouch's sole remedy against Coral
for breach of any warranty under this Agreement shall be to request Error
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Corrections and, if such Error Corrections are not effected so as to correct
the Error, to terminate this Agreement.
12.6 Limitation of Liability. IN NO EVENT SHALL AIRTOUCH BE
ENTITLED TO AND CORAL SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST
PROFITS) OR DAMAGES EXCEEDING THE AMOUNTS PAID IN CONNECTION WITH THE LICENSING
OF THE CORAL APPLICATION UNDER THIS AGREEMENT.
SECTION THIRTEEN
AIRTOUCH WARRANTIES
13.1 Ownership. AirTouch represents and warrants to Coral that it
owns the AirTouch Applications, with the exception of all third party software
applications and operating systems which are a part of the AirTouch
Applications, and that it has the right and ability to grant the licenses
granted herein.
13.2 No Infringement. AirTouch represents and warrants that no
claim or action relating to the infringement of any copyright, trademark, or
other intellectual property right has been made or is pending against AirTouch
with respect to the AirTouch Applications or the AirTouch Documentation.
13.3 Compliance With Functional Specifications. AirTouch
represents and warrants that the AirTouch Applications shall comply in all
material respects with the AirTouch Functional Specifications and shall
function on the computer equipment and with the operating systems identified in
the AirTouch Functional Specifications as such may be modified from time to
time.
13.4 Limitation of Warranties. Other than the warranties provided
in Sections 13.1, 13.2 and 13.3 above, AIRTOUCH MAKES NO OTHER WARRANTY OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Coral has been provided
the opportunity to evaluate the AirTouch Applications and is responsible for
determining the suitability of the AirTouch Applications.
13.5 Limitation of Remedies. Coral's sole remedy against AirTouch
for breach of any warranty under this Agreement shall be to request Error
Corrections and, if such Error Corrections are not effected so as to correct
the Error, to terminate this Agreement.
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13.6 Limitation of Liability. IN NO EVENT SHALL CORAL BE ENTITLED
TO AND AIRTOUCH SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) OR DAMAGES
EXCEEDING THE AMOUNTS PAID IN CONNECTION WITH THE LICENSING OF THE AIRTOUCH
APPLICATION UNDER THIS AGREEMENT.
SECTION FOURTEEN
TERM AND TERMINATION
14.1 Term. The initial term of this Agreement shall commence upon
the effective date above and shall continue for a period of five (5) years,
unless sooner terminated as provided below. This Agreement shall automatically
renew for additional terms of one (1) year each, unless and until either party
elects to terminate this Agreement upon the expiration of the then current term
by giving the other at least ninety (60) days prior written notice.
14.2 Termination. Either party may, by written notice, terminate
this Agreement with immediate effect if the other party has committed a
substantial breach of this Agreement, and has not rectified the same within a
time which shall be reasonable, taking into account previous technical and
other relevant conditions after receipt of a written request specifying the
breach from the other party. Additionally, either party may terminate this
Agreement by providing written notice to the other in the event the Technical
Review may not be successfully completed.
14.3 Support and Maintenance. Upon termination of this Agreement,
all obligations of Coral to provide support and maintenance, including
obligations under Section 8, shall cease.
14.4 No Impact On Granted Licenses. Termination of this Agreement
shall have no effect on sublicenses granted under this Agreement, including the
sublicenses granted by AirTouch, or the continued payments to Coral associated
with such sublicenses.
15
16
SECTION FIFTEEN
CORAL INDEMNIFICATION
15.1 Coral Intellectual Property Indemnification. Coral agrees to
indemnify and hold AirTouch harmless from and against any claims and expenses,
including reasonable attorneys' fees, that the Coral Applications (excluding
the PhonePrint Interface) or the Coral Documentation infringes a copyright,
trademark, trade secret, or other intellectual property right of any other
party. The foregoing indemnification does not apply to any ancillary or third
party software which is not developed by Coral but is purchased by Coral or
AirTouch and incorporated into the Coral Applications.
15.2 Limitation of Indemnification. Notwithstanding the
foregoing, Coral shall have no obligation of indemnity with respect to claims
based on AirTouch Enhancements or the combination of the Coral Applications
with data, modifications or alterations made by AirTouch, or with equipment or
operating systems other than those identified in the Coral Functional
Specifications. Additionally, any indemnity liability of Coral under this
Section 15 shall be limited to, at Coral's option, the obtaining of the
necessary licenses and rights to use all necessary patents, copyrights and
other intellectual property rights in the Coral Applications, the modification
of the Coral Applications to provide for the avoidance of such infringement or
the return of the payments made to Coral in connection with the sale of the
Coral Applications. Coral shall have no liability whatsoever in addition to
the foregoing.
15.3 Coral Indemnification. Coral agrees to indemnify and hold
AirTouch harmless from and against any claims and expenses, including
reasonable attorneys' fees, based on or arising out of any statements, actions
or inactions made by Coral personnel. Further, Coral shall indemnify and hold
AirTouch harmless from and against any claims and expenses, including
reasonable attorneys' fees, that a Coral Enhancement infringes a copyright,
trademark, trade secret or other intellectual property right of any other
party.
15.4 Indemnification Procedures. In the event AirTouch desires to
make a claim under the foregoing indemnification provisions AirTouch must (a)
provide written notification of any claim for which indemnity is sought within
thirty (30) days of becoming aware of such claim; (b) cooperate in the defense
of any such claim, with each party bearing its respective costs of such
cooperation; and (c) receive the prior written approval from the party from
whom the indemnity is sought of any settlement or offer of settlement, which
approval shall not be unreasonably withheld.
16
17
SECTION SIXTEEN
AIRTOUCH INDEMNIFICATION
16.1 AirTouch Intellectual Property Indemnification. AirTouch
agrees to indemnify and hold Coral harmless from and against any claims and
expenses, including reasonable attorneys' fees, that the AirTouch Applications
or the AirTouch Documentation infringes a copyright, trademark, trade secret,
or other intellectual property right of any other party. Notwithstanding the
foregoing, the foregoing indemnification does not apply to any ancillary or
third party software which is not developed by AirTouch but is purchased by
Coral or AirTouch and incorporated into the AirTouch Applications.
16.2 Limitation of Indemnification. Notwithstanding the
foregoing, AirTouch shall have no obligation of indemnity with respect to
claims based on Coral Enhancements or the combination of the AirTouch
Applications with data, modifications or alterations made by Coral, or with
equipment or operating systems other than those identified in the AirTouch
Functional Specifications. Additionally, any indemnity liability of AirTouch
under this Section 16 shall be limited to, at AirTouch's option, the obtaining
of the necessary licenses and rights to use all necessary patents, copyrights
and other intellectual property rights in the AirTouch Applications, the
modification of the AirTouch Applications to provide for the avoidance of such
infringement or the return of the payments made to AirTouch in connection with
the sale of the AirTouch Applications. AirTouch shall have no liability
whatsoever in addition to the foregoing.
16.3 AirTouch Indemnification. AirTouch agrees to indemnify and
hold Coral harmless from and against any claims and expenses, including
reasonable attorneys' fees, based on or arising out of any statements, actions
or inactions made by AirTouch personnel. Further, AirTouch shall indemnify and
hold Coral harmless from and against any claims and expenses, including
reasonable attorneys' fees, that an AirTouch Enhancement infringes a copyright,
trademark, trade secret or other intellectual property right of any other
party.
16.4 Indemnification Procedures. In the event Coral desires to
make a claim under the foregoing indemnification provisions Coral must (a)
provide written notification of any claim for which indemnity is sought within
thirty (30) days of becoming aware of such claim; (b) cooperate in the defense
of any such claim, with each party bearing its respective costs of such
cooperation; and (c) receive the prior written approval from the party from
whom the indemnity is sought of any settlement or offer of settlement, which
approval shall not be unreasonably withheld.
17
18
SECTION SEVENTEEN
MISCELLANEOUS
17.1 Other Applications. The parties shall discuss with one
another prospective future software applications which are similar or
cooperative to or interface with the Coral Applications or AirTouch
Applications and consider entering into arrangements similar to that herein.
17.2 Governing Law; Venue. This Agreement and all disputes and
related issues shall be interpreted under the substantive and procedural laws
of California.
17.3 Information and Assistance. Throughout the term of this
Agreement, both parties shall provide the other with all reasonable
information, help and assistance necessary for the performance of each party's
obligations hereunder.
17.4 Export Controls. Unless an appropriate license, exemption,
or similar authorization has been duly obtained to the satisfaction of Coral or
AirTouch, as appropriate, either party shall not, nor shall either party
authorize or permit its employees, and/or agents to, export or re-export any
products or technology of the other to any country or entity specified as a
prohibited destination in applicable U.S. or local laws, regulations, and
ordinances, including the Regulations of the U.S. Department of Commerce
and/or other government agencies. Each party agrees to defend, indemnify, and
hold harmless the other from and against any claim, loss liability, expense, or
damage (including fines or legal fees) incurred by Coral or AirTouch, as
applicable, with respect to any export or reexport activities contrary to the
foregoing instructions.
17.5 Force Majeure. Other than the obligation to pay any money
hereunder, neither party shall be liable for the failure to perform any
obligation under this Agreement where such failure is due to fire, flood, labor
dispute, natural calamity, or acts of governments or if such causes are
otherwise beyond the reasonable control of such party.
17.6 Unenforceability. If any provision of this Agreement is
deemed by a court of competent jurisdiction to be unenforceable or contrary to
any applicable law or regulation, such provision shall be considered deleted
and the remainder of this Agreement shall continue in full force and effect.
18
19
17.7 No Assignment. This Agreement is not assignable by either
party without the prior written consent of the other, except that this
Agreement may be assigned to a controlled subsidiary, or to a successor to all
or substantially all of the assets and business of the assigning party, and
further provided that the assigning party guarantees performance of such
controlled subsidiary or successor in interest.
17.8 Attorneys' Fees. In the event litigation is necessary to
interpret or enforce this Agreement, the most prevailing party shall be
entitled to recover, along with any award or judgment, its fees and costs,
including reasonable attorneys' fees.
17.9 Entire Agreement, Amendments, Etc. This Agreement,
constitutes the sole and exclusive understanding of the parties in respect of
the subject matter hereof. Other than any existing confidentiality agreements,
there are no understandings or agreements between Coral and AirTouch which are
not fully expressed or otherwise referred to in this Agreement and no statement
or agreement, oral or written, made prior to or at the signing hereof
including, but not limited to, any bid, tender, quotation, offer or proposal
that either party has submitted shall affect or modify the terms hereof or
otherwise be binding on the parties hereto. No modifications or amendments of
this Agreement shall be valid unless the same is agreed to in writing by the
parties hereto by their authorized representatives and specifically stating the
same as an amendment to this Agreement. The failure or delay of any party to
exercise any right or remedy hereunder shall not constitute a waiver of such
right or remedy and the express waiver of any right or remedy shall not
constitute a waiver of any other or future right or remedy.
AIRTOUCH COMMUNICATIONS, INC. CORAL SYSTEMS, INC.
By: /s/ [ILLEGIBLE] By: /s/ XXXX X. XXXXXXX
----------------------------------- -----------------------------------
Title: Vice President Xxxx X. Xxxxxxx, President & CEO
--------------------------------
APPROVED FOR
EXECUTION
By: /s/ [ILLEGIBLE]
-----------------------------------
Attorney
10/3/94
19
20
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT "A"
AIRTOUCH SYSTEM FEATURES
FRAUD DETECTION
[ * ]
HISTORICAL PROFILING
[ * ]
PHONE PRINT INTERFACE
[ * ]
REPORTING
[ * ]
20
21
CONFIDENTIAL TREATMENT REQUESTED
HARDWARE/SOFTWARE
[ * ]
[ * ]
21
22
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT "B"
CORAL FUNCTIONAL SPECIFICATIONS
Systems Features:
[ * ]
Call Pattern Analysis:
[ * ]
Called Party Analysis:
[ * ]
Time and Distance Analysis:
[ * ]
Credit Limit Analysis:
[ * ]
Security Features:
[ * ]
Network Features:
[ * ]
22
23
CONFIDENTIAL TREATMENT REQUESTED
Administrative Functions:
[ * ]
Reporting Functions:
[ * ]
Hardware Platform: [ * ]
Operating System: [ * ]
Third Party Software: [ * ]
23
24
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT "C"
SCHEDULE OF INITIAL ENHANCEMENTS AND INSTALLATIONS
Phase 1: Coral shall install its FraudBuster version 2.1 in all
AirTouch markets [ * ] In addition to
the FraudBuster installations, Coral shall establish data feeds among all
installed markets within the given time frame with the San Diego connection
anticipated to be completed by [ * ] Throughout the installation, the
parties shall work together to determine the functional specifications of the
features identified in the AirTouch Profiler Feature List, attached to this
exhibit (the "List"), and to commence coding.
Phase 2: Coding of the features identified in the List with
Coral's delivery of a beta product for installation in the AirTouch [ *
] during [ * ] and with acceptance by AirTouch by [ *
] Coral shall have such reasonable time as may be necessary to remedy any
nonacceptable components of the beta product.
Phase 3: General availability of version 1.0 of the
FraudBuster/AirTouch Profiler incorporating all of the features on the List
during [ * ]
The foregoing timeframes are dependent upon the accuracy of the
AirTouch Functional Specifications and the usability and compatibility of the
source code of the AirTouch Applications, which shall be determined within two
weeks of execution of the Agreement. Upon completion of the functional
specifications for the features on the List, the parties shall determine the
reasonability of delivering some or all of the features in light of the
delivery timeframes provided above. The features included in the products to
be delivered shall be adjusted as reasonably necessary to provide for timely
product delivery, provided AirTouch shall have the discretion to determine
which features shall comprise the reasonable feature list to be delivered at
each delivery date. AirTouch shall provide Coral with such assistance and
personnel as my be reasonably necessary to accomplish these goals.
The following features of the List will be considered Joint
Enhancements under the Agreement, however, not subject to the [ * ]
exclusivity provisions of Section 6 above: (1) [ * ] (2)
[ * ] and (3) [ * ] The parties shall
24
25
CONFIDENTIAL TREATMENT REQUESTED
negotiate their respective contributions to the development of these features
upon completion of the functional specifications for the same.
The following features of the List shall be considered AirTouch
Enhancements under the Agreement: (1) [ * ] and (2)[ * ]
[ * ]
The following features of the List shall be considered Coral
Enhancements under the Agreement: [ * ]
25
26
CONFIDENTIAL TREATMENT REQUESTED
AIRTOUCH PROFILER FEATURE LIST
PHONEPRINT INTERFACE INCLUDING:
[ * ]
REPORTING
[ * ]
CASE MANAGEMENT
[ * ]
27
CONFIDENTIAL TREATMENT REQUESTED
INTERFACES
[ * ]
USER INTERFACE FEATURES
[ * ]
ADMINISTRATIVE FEATURES
[ * ]
28
CONFIDENTIAL TREATMENT REQUESTED
FIRST AMENDMENT AGREEMENT
This Agreement is entered into this 30th day of June, 1995 by
and between AirTouch Communications of California (formerly known as PacTel
Corporation), a California corporation ("AirTouch"), and Coral Systems, Inc., a
Delaware corporation ("Coral").
1. Recitals. The parties have executed a Joint Development
and License Agreement dated September 30, 1994 (the "License Agreement") which
provides for, among other things, the cross licensing of certain software
applications, the integration of certain portions of the software applications
provided by each party and the enhancement and deployment of such software
(collectively, the "Application"). As used herein, the Application refers to
software created by merging the AirTouch Applications and the Coral
Applications, as those terms are defined in the License Agreement. The parties
desire to supplement and modify certain terms of the License Agreement as
provided for below under the terms and conditions of this Agreement.
2. Application Integration. Coral shall undertake the
integration and development work necessary to accomplish the following
milestones relating to the Application:
a. Initial Delivery. Coral shall deliver to AirTouch
for installation into its L.A. market the Application operating with the
features identified in Exhibit "A" attached hereto (the "Initial Delivery").
b. Interim Delivery. Should AirTouch reach written
agreement to license the Application to one of its affiliates, to whom it is
permitted to sublicense the Application, between the execution date of this
Agreement and [ * ] Coral shall integrate the appropriate switch
interface software into the Initial Delivery software, at no charge, within six
(6) weeks of written notice by AirTouch of such license to its affiliate (the
"Interim Delivery"). From and after the 43rd day after AirTouch's written
notice, Coral shall owe AirTouch [ * ] per day for every day such Interim
Delivery is delayed.
c. Final Delivery. Coral shall deliver to AirTouch
by [ * ] the Application operating with the features identified in
Exhibit "C" attached hereto (the "Final Delivery"). From and after the 15th
day of [ * ] Coral shall owe AirTouch [ * ] per day for every day
such Final Delivery is delayed.
29
CONFIDENTIAL TREATMENT REQUESTED
The foregoing delivery date for the Interim and Final
Deliveries shall be extended on a day-for-day basis for each day AirTouch fails
to provide to Coral any information, personnel or facilities necessary to
develop or deliver the Interim or Final Deliveries.
The development and integration work associated with the
delivery of the Initial Delivery, Interim Delivery and the Final Delivery shall
collectively be referred to as the "Development Work".
3. Development Compensation. In addition to all compensation
provided or to be provided to Coral in and under the License Agreement,
AirTouch shall pay to Coral the sum of [ * ] in consideration of the
Development Work which shall be paid to Coral in the following amounts and upon
satisfaction of the identified milestones: [ * ] within fifteen days of the
execution of this Agreement; [ * ] within fifteen days of the delivery of the
Initial Delivery; [ * ] within fifteen days of the delivery of the Interim
Delivery; and [ * ] within fifteen days of the delivery of the Final Delivery
(collectively, the "Development Compensation"). AirTouch shall have no
responsibility to pay for or reimburse Coral for any travel or accommodation
expenses associated with travel by Coral personnel which may be necessary to
accomplish the Development Work. All other travel and associated expenses
shall be reimbursed to Coral by AirTouch, if applicable, as provided for in the
License Agreement. In consideration of the Development Compensation provided
for herein, Coral hereby releases and waives any obligation of AirTouch under
Coral invoice numbers 930042 and 930047, which shall be satisfied in full upon
payment of the Development Compensation herein.
4. Enhancement License. In partial consideration of the
Development Work undertaken by Coral, AirTouch provides to Coral the
non-exclusive, non-transferable, fully paid, royalty free, perpetual and
irrevocable source code license to and for the Reporting Features and Case
Management Features as described in Exhibit "D" to the License Agreement and as
further described in Exhibit "D" attached hereto, as such may be amended,
enhanced or modified from time to time by AirTouch or another entity on behalf
of AirTouch (the "Source Code"), for Coral's use, modification, licensing and
sublicensing under any terms and conditions as it shall desire or determine.
AirTouch shall deliver to Coral the Source Code within 10 days of the delivery
of the Initial Delivery by Coral. AirTouch shall provide Coral with electronic
copies of the Source Code. AirTouch hereby provides to Coral the warranties
and indemnifications for the Source Code identical to those provided for the
2
30
AirTouch Applications (as defined in the License Agreement) in the License
Agreement.
5. Cooperation; Timing. The parties shall cooperate with one
another and provide such assistance, information and personnel as may be
reasonably requested by the other to facilitate the Development Work.
6. Construction With License Agreement. The parties reaffirm
the License Agreement which, except as modified herein, shall remain in full
force and effect. This Agreement modifies and supplements the License
Agreement and shall govern in the event of a conflict between the provisions of
this Agreement and the License Agreement.
7. Miscellaneous. This Agreement and the License Agreement
constitute the entire agreement between the parties regarding the subject of
this Agreement and the License Agreement and all other writings, discussions,
representations and agreements concerning the subject matter of this Agreement
and the License Agreement shall be merged into a superseded by this Agreement
and the License Agreement. The failure or delay of either party to enforce at
any time any provision of this Agreement shall not constitute a waiver of such
party's right thereafter to enforce each and every provision of this Agreement
and the express waiver of any right in one occurrence hereunder by either party
shall not constitute a waiver of such party's right to enforce such right in
another occurrence in the future. This Agreement shall be governed by the laws
of the State of California and may only be amended by a writing signed by
authorized representatives of the parties. In the event litigation is
necessary to interpret or enforce this Agreement, the prevailing party, as
determined by a court of competent jurisdiction, shall be entitled to recover,
in addition to any award or judgment, its costs and expenses, including
reasonable attorneys' fees.
AirTouch Communications Coral Systems, Inc.
of California
By: /s/ XXXXXXX SEULLIN By: /s/ XXXX X XXXXXXX
---------------------------- -------------------------------
Xxxxxxx Seullin for
Name: Xxx Xxxxxxx Name: Xxxx X. Xxxxxxx
Title: DIR, CORPORATE TECHNOLOGY Title:
-------------------------- -----------------------------
Director of Corporate Technology President & CEO
REVIEWED BY /s/ ASP/AM
----------
AIRTOUCH COMMUNICATIONS
LEGAL DEPARTMENT 6/30/95
3
31
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT A - INITIAL DELIVERY
I. PhonePrint Interface
[
*
]
II. Reports
[
*
]
III.Interfaces
[ * ]
4
32
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT B - INTERIM DELIVERY
I. Network Features
[ * ]
5
33
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT C - FINAL DELIVERY
I. System Features
[
*
]
II. Call Pattern Analysis (All over 3 comparative periods)
[
*
]
III.Called Party Analysis
[ * ]
IV. Time and Distances Analysis
[ * ]
V. Credit Limit Analysis
[ * ]
VI. Security Features
[
*
]
XXX.Xxxxxxx Features
[
*
]
6
34
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT D - CASE MANAGER
I. Interface with Decision Support Systems (DSS) for Customer Information
II. Manual Case Assignment
III. Actions Log
IV. Reporting
[
*
]
V. Customer Letters
[
*
]
VI. System Administration
7
