OBJECT CODE SOFTWARE LICENSE AGREEMENT
This Agreement is entered into by D2 Technologies, Inc. a corporation of the
State of California with a place of business at 000 Xxxx Xxxxxxx Xx., Xxxxx
Xxxxxxx, XX 00000 (hereinafter called "D2") and Vodavi Technology, Inc. a
Deleware corporation with a principal place of business at 0000 X. Xxxxxxxx Xx.,
Xxxxxxxxxx, XX 00000 (hereinafter called "LICENSEE"). The effective date of this
Agreement shall be the later of the dates executed by the respective parties.
RECITALS.
WHEREAS, D2 has the right to grant the rights to use and distribute the
Licensed Software specified in Exhibit A; and
WHEREAS, LICENSEE desires to obtain such rights to use and distribute the
Licensed Software described hereinafter; and
WHEREAS, D2 desires to provide LICENSEE with such rights upon the terms and
conditions set forth in this Agreement; and
WHEREAS, Connected Systems, Inc. a corporation of the State of California
having a place of business at 000 X. Xxxxxxxx Xx., Xxxxx Xxxxxxx, XX 00000
(herinafter CONNECTED) and LICENSEE have entered into a License Agreement
effective the date hereof, WHEREAS CONNECTED and D2 are affiliated
entities; WHEREAS LICENSEE requires the use of D2 technology to fulfill its
Agreement with CONNECTED;
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants and conditions set forth in this Agreement, the parties agree as
follows.
1.0 DEFINITIONS
1.1 "LICENSEE" shall mean the legal entity identified as the LICENSEE on
the face page of this Agreement.
1.2 "Licensed Software" shall mean D2's software products identified in
Exhibit A including all manuals and other related technical documentation
provided by D2, and including all updates thereto delivered to LICENSEE by D2.
1.3 "Object Code" means the Licensed Software in machine-readable, compiled
object code form.
D2 Technologies and Connected Systems Proprietary and Confidential
1.4 "Binary Code" means the binary executable form of the Licensed Software
which may be linked with other LICENSEE-provided software and embedded in the
Bundled Product.
1.5 "Bundled Product(s)" means one or more of the products or product
groups described in Exhibit B, which has been or will be developed by LICENSEE
and which incorporates in the Bundled Product, in any manner, any portion of the
Binary Code. A Bundled Product represents sufficient value enhancement to the
Licensed Software such that the primary reason for LICENSEE's customer to
license such Bundled Product is other than the right to receive a license to the
Licensed Software included in the Bundled Product.
2.0 GRANT OF RIGHTS
2.1 LICENSE. Subject to the terms and conditions of this Agreement: D2
grants a nontransferable, fully paid up, perpetual, nonexclusive license to
execute the Binary Code of the Licensed Software only in a configuration in
which the Licensed Software is embedded within LICENSEE's Bundled Product.
LICENSEE may transfer the Binary Code of the Licensed Software to LICENSEE'S
customers, embedded in LICENSEE's Bundled Product, provided that the Bundled
Product (including the embedded software) is transferred pursuant to an End-User
License which shall contain at a minimum all of the following provisions:
1. The Licensed Software is licensed, not sold. Title does not pass to the
LICENSEE customer. The LICENSEE customer will not make any copies of the
Licensed Software except as required for backup and archival purposes.
2. Each license granted to LICENSEE customer shall be a perpetual,
nonexclusive and nontransferable license to use the Binary Code version of
the Licensed Software.
3. A Protection of Confidential Software clause similar to the clause provided
in this Agreement.
4. A limitation of liability as set forth in this Agreement.
5. An export control notice similar to the clause in this Agreement.
2.2 RESERVATIONS. D2 reserves all rights and licenses not expressly granted to
LICENSEE.
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3.0 ADDITIONAL OBLIGATIONS
3.1 Delivery. D2 will ship to LICENSEE one (1) copy of the Licensed
Software upon execution of this Agreement and the CONNECTED License Agreement.
LICENSEE shall have no runtime License fee obligation to D2.
3.2 LIMITED WARRANTY
For a period of one year after delivery of the Licensed Software, D2
warrants that the Licensed Software will perform substantially according to the
description and specifications contained in D2's Software documents. During the
warranty period, LICENSEE may request and D2 shall provide, technical support,
as described in Paragraph 3.2 (a), (b), (c) and (d) of this Agreement, and
software updates, as requested by Licensee, at the Time and Material fees
charges offered to other similarly situated customers. For each year thereafter,
LICENSEE may renew such technical support and software updates on an annual
basis at the then-current D2 maintenance fee, if such support and updates
services are available.
D2 telephone and written technical support are as follows:
(a) D2 will assist LICENSEE in determining if problems LICENSEE may
encounter are caused by programming errors in the Licensed Software.
(b) D2 will answer questions concerning installation of the Licensed
Software in original delivered configuration, unmodified by Customer.
(c) D2 will provide assistance with resolving LICENSEE's problems which
occur during the normal usage of the Licensed Software.
(d) D2 will use reasonable efforts to remedy any programming error in the
Licensed Software which is attributable to D2 which causes the failure
to meet specifications.
Subject to the limitations set out below, the sole remedy for failure to meet
the limited warranty shall be D2's reasonable efforts to remedy any programming
error in the Licensed Software which is attributable to D2 and which causes the
failure to meet the warranty. Such remedy may consist of supplying corrected
portion(s) of Licensed Software, or communication to LICENSEE of a workaround
which gives LICENSEE the ability to achieve substantially the same functionality
as would be obtained without the programming error, as may be determined by D2.
If D2 is unable to provide such remedy within a reasonable time, D2 shall accept
return of that portion of Licensed Software which is in breach of this warranty
and refund to LICENSEE the full value of such portion of the Licensed Software.
Limitations:
D2's efforts shall be promptly initiated only after LICENSEE has provided D2
with written notice of its claim of any such programming error. An error report
must contain sufficient information, on computer-readable media if practicable,
for D2 to reproduce the
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problem. D2 shall have no obligations for any Licensed Software which includes
any modifications made by LICENSEE, or for LICENSEE-specific application
software and drivers. D2 shall also have no obligations for the correction of
errors or problems which are due to operational characteristics of the computer
equipment on which the Licensed Software is used.
In order to have the benefit of D2's efforts, LICENSEE must provide D2 with data
and information, as requested, and with sufficient support and test time on the
LICENSEE's Development Computer system and Bundled Product to duplicate the
problem, determine if the problem is with the Licensed Software covered
hereunder, correct the problem and determine that the problem has been
corrected.
LICENSEE shall reimburse D2 for traveling expenses if D2 personnel are required
to travel to either the LICENSEE'S premise or LICENSEE'S customer's premise in
order to fix the reported problem. LICENSEE must designate a named contact
person and alternate contact person per installation who will submit problem
reports and receive all corrections, upgrades, correspondence and other
communications concerning the Licensed Software.
THE LIMITED WARRANTIES IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES, IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, GIVEN BY D2 INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
4.0 PROPRIETARY RIGHTS
4.1 LICENSED SOFTWARE. LICENSEE shall not be an owner of any copies of the
Licensed Software, but, rather, is granted a limited license pursuant to this
Agreement to use such copies. LICENSEE acknowledges and agrees that, as between
LICENSEE and D2, all right, title and interest in the Licensed Software and any
part thereof, including, without limitation, all rights to patent, copyright,
trademark and trade secret rights and all other intellectual property rights
therein and thereto, and all copies thereof, in whatever form, including any
written documentation and all other material describing such Licensed Software,
shall at all times remain solely with D2.
5.0 CONFIDENTIALITY
5.1 GENERAL. LICENSEE acknowledges and agrees that the Licensed Software
constitutes the confidential and proprietary trade secrets of D2, and that
LICENSEE's protection thereof is essential to this Agreement and a condition of
LICENSEE's use and possession of the Licensed Software. LICENSEE shall retain in
strict confidence any and all elements of the Licensed Software and use the
Licensed Software only as expressly licensed herein. LICENSEE agrees that it
will under no circumstances distribute or in any way disseminate or disclose the
Licensed Software to third parties, except as
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expressly provided in Section 2.3 above. LICENSEE shall be relieved of this
obligation of confidentiality to the extent that such information was in the
public domain at the time it was disclosed, required to be disclosed by law,
received from a third party with no obligation, or has become in the public
domain through no fault of LICENSEE.
5.2 SECURITY. LICENSEE agrees to use the Licensed Software for the purposes
set forth in this Agreement under similar care and control LICENSEE uses for its
own proprietary software.
5.3 NOTIFICATION. LICENSEE agrees to notify D2 promptly in the event of any
breach of its security under conditions in which it would appear that the
Licensed Software were prejudiced or exposed to loss. LICENSEE shall, upon
request of D2, take all other reasonable steps necessary to recover any
compromised trade secrets disclosed to or placed in the possession of LICENSEE
by virtue of this Agreement. The cost of taking such steps shall be borne solely
by LICENSEE.
5.4 REMEDIES. LICENSEE acknowledges that any breach of any of its
obligations under this Section 5 may cause or threaten irreparable harm to D2,
and, accordingly, LICENSEE agrees that in such event, D2 shall be entitled to
equitable relief to protect its interest therein, including but not limited to
preliminary and permanent injunctive relief, as well as money damages.
6.0 TERMINATION
6.1 TERMINATION. This Agreement is perpetual unless terminated as set forth
herein. Upon prior written notice, either party may terminate this Agreement if
the other party ceases doing business, , or fails to cure a material breach of
any term or condition of this Agreement within thirty (30) days of receipt of
written notice specifying such breach.
6.2 EFFECT OF TERMINATION. Upon termination of this Agreement for any
reason, LICENSEE shall immediately discontinue use of the Licensed Software and
within ten (10) days certify in writing to D2 that all copies of the Licensed
Software, in whole or in part, in any form, have either been returned to D2 or
destroyed in accordance with D2's instructions. All payments made by LICENSEE to
D2 hereunder are non-refundable except as set forth herein.
6.3 SURVIVAL. The provisions of Sections 4, 5, 6, 7 and 8 shall survive
termination of this Agreement.
7.0 INDEMNIFICATION
7.1 D2 will defend any suit brought against LICENSEE based on the grounds
that the Licensed Software furnished under this Agreement infringes any patent,
trade secret or other Intellectual Property Right of any third party
("Indemnified Right"), and will pay all damages and costs that a court or
arbitration awards against LICENSEE as a result of such claim and all amounts
paid in settlement of such claim, provided that LICENSEE
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gives D2 (i) prompt written notice of such claim, (ii) the sole right to defend
and/or settle the claim, and (iii) all reasonable information and assistance, at
D2's expense, excluding time spent by employees or consultants of LICENSEE) to
handle the defense and settlement thereof. Should the Licensed Software become
the subject of a claim of infringement of an Indemnified Right, D2 shall, at its
option, either: (a) procure for LICENSEE the right to continue using such
Licensed Software or (b) modify such Licensed Software to make it
non-infringing. If neither of the foregoing alternatives is reasonably
available, D2 shall accept return of the infringing portion of Licensed Software
and refund to LICENSEE the depreciated value of such portion of Licensed
Software, as measured over a thirty-six (36) month life span.
7.2 D2 hereby represents that, insofar as is presently known to D2, the
Licensed Software and Developed Programs do not infringe any patent, copyright,
trade secret or other Intellectual Property Right of any third party, and D2
knows of no such claims thereof.
7.3 LICENSEE will indemnify and hold D2 harmless from any loss, damage, or
liability arising in connection with LICENSEE's improper or unauthorized use of
the Licensed Software.
8.0 LIMITATION OF LIABILITY
8.1 IN NO EVENT SHALL D2 HAVE ANY LIABILITY FOR ANY LOST PROFITS, LOSS OF
DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY
SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING IN ANY WAY OUT OF THIS
AGREEMENT, OR OTHERWISE ARISING UNDER ANY COVER OF ACTION AND WHETHER OR NOT D2
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL
APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY.
9.0 MISCELLANEOUS PROVISIONS
9.1 GOVERNING LAW. This Agreement shall be interpreted and governed by the
laws of the State of California, without reference to conflict of laws
principles.
9.2 JURISDICTION. For any disputes arising out of this Agreement the
parties consent to the personal and exclusive jurisdiction of, and venue in, the
state or federal court within Santa Xxxxxxx County, California.
9.3 ENTIRE AGREEMENT. This Agreement constitutes the entire and exclusive
Agreement between the parties hereto with respect to the subject matter hereof
and supersedes and cancels all previous registrations, agreements, commitments
and writings in respect thereof.
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9.4 MODIFICATION. No modification to this Agreement, nor any waiver of any
rights, shall be effective unless assented to in writing by the party to be
charged and the waiver of and breach or default shall not constitute a waiver of
any other right hereunder or any subsequent breach or default.
9.5 ASSIGNMENT. Each party's obligations under this Agreement and all
rights and obligations hereunder are personal to the parties hereto and may not
be assigned in whole or in part by either party without the prior written
consent of the other. Notwithstanding the foregoing, either party may assign
this Agreement without the prior written consent of the other party, pursuant to
a sale by the assigning party of the portion of that party's business to which
this Agreement pertains, whether by merger, sale of stock, sale of assets, or
otherwise.
9.6 EXPORT ADMINISTRATION ACT. In conformity with the United States Export
Administration Act and regulations promulgated thereunder, LICENSEE and its
employees and agents shall not disclose, export or re export, directly or
indirectly, any of the Licensed Software or technical data (or direct products
thereof) provided under this Agreement to destinations in Country Groups Q, S,
W, Y and Z as modified from time to time by the US Department of Commerce, or
that are otherwise controlled under said Act and regulations.
9.7 SEVERABILITY. If any provision of this Agreement is held to be invalid
by a court of competent jurisdiction, then the remaining provisions will
nevertheless remain in full force and effect. The parties agree to renegotiate
in good faith any term held invalid and to be bound by the mutually agreed
substitute provision.
9.8 NO WAIVER. The failure of D2 to enforce any term or condition of this
Agreement shall not constitute a waiver of D2's rights to enforce subsequent
breaches of any term or condition under this Agreement.
9.9 NOTICES. Any notices required to be given under this Agreement shall be
in writing and addressed to the respective party at the address shown on the
face page of this Agreement or such other address as may be provided by each
party from time-to-time. Notices shall be effective when received and shall be
sent by certified or registered mail, return receipt requested, or by overnight
courier.
9.10 US GOVERNMENT RESTRICTED RIGHTS. LICENSEE will legend or xxxx the
Licensed Software provided pursuant to any agreement with the United States
Government or any contractor therefor, as required by law.
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D2 and LICENSEE each hereby acknowledge that they have read and understand the
terms of this Agreement, and that by signing below they become parties to the
Agreement and agree to be bound by all terms, conditions, and obligations
contained therein.
D2 LICENSEE
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxx
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Print Name: Xxxxx X. Xxxx Print Name: Xxxxxxx X. Xxxxxx
Title: President Title: President
Date: May 17, 1999 Date: May 24, 1999
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