Common use of Software Development Services Clause in Contracts

Software Development Services. A. During the Term, GeoTel shall develop and provide to Licensee such modifications to the GeoTel Software (the "Modifications") as may be requested from time to time by Licensee (the "Software Development Services"), subject to GeoTel notifying Licensee in writing within thirty (30) days after receipt of each such request as to a reasonable, good faith basis upon which GeoTel believes that the development of the requested Modifications are either (i) not technically feasible, or (ii) inconsistent with GeoTel's core business. Such notice shall set forth in reasonably sufficient detail the basis for GeoTel's rejection. B. Unless GeoTel provides the foregoing notice to Licensee within the applicable thirty day time period, GeoTel shall work with Licensee to create a requirements document for the requested Modifications (the "Technical Specification"), which Technical Specifications are subject to the final approval of Licensee. Licensee shall reimburse GeoTel for the reasonable time and materials costs incurred by GeoTel in developing the Technical Specifications by either: (i) reimbursing GeoTel for such costs promptly after the Parties have failed to agree upon the development terms and conditions for the Modifications required pursuant to Section 11.3 C within a reasonable period of time after finalization of the Technical Specifications, or (ii) where such terms and conditions are agreed upon by the Parties within such reasonable time period, then such time and materials costs shall be incorporated into the agreed pricing for the development of the Modifications. The rates for GeoTel personnel developing the Technical Specifications shall be those set forth in Section C of Exhibit C. C. Upon finalization of the applicable Technical Specifications, GeoTel and Licensee shall negotiate, in good faith, the terms and conditions governing development by GeoTel of the requested Modifications pursuant to the Technical Specifications, including without limitation: (i) the applicable development milestones/deliverables and schedule, (ii) the payment mode, whether by fixed price, hourly or otherwise, but subject to Section 11.3 D, and in any event including payment of the reimbursable costs pursuant to Section 11.3 B unless previously paid by Licensee, and (iii) such other terms and conditions as may be agreed by the Parties. Upon agreement by the Parties as to the foregoing terms and conditions, the same shall be set forth in either a written amendment to this Agreement or a separate written agreement between the Parties. D. GeoTel shall perform the Software Development Services for any Modifications during the Term based upon the rates set forth in Section C of Exhibit C. E. GeoTel agrees that it shall develop Programs with so-called "service bureau capabilities" (formerly referred to as "partitioning"), such Programs hereinafter being referred to as the "Service Bureau Programs". GeoTel acknowledges and agrees that it has determined that such Service Bureau Programs are both technically feasible and consistent with the scope of GeoTel's core business. GeoTel agrees that it shall develop the Service Bureau Programs subject to the following: (i) GeoTel will commence developing the Service Bureau Programs within sixty (60) days after the Effective Date and make such Service Bureau Programs available for licensing by Licensee hereunder in their final generally commercially available form by no later than sixteen (16) months from the Effective Date; (ii) Licensee will participate in the development by GeoTel of the Technical Specifications for the Service Bureau Programs but shall have no liability for any costs, expenses or other moneys incurred by GeoTel in connection with that effort; (iii) Licensee will fund an acceleration of GeoTel's development calendar to include completion of the Service Bureau Programs in the time frame specified in Subitem (i) immediately above by placing an Order with GeoTel for the amount of Two Hundred Fifty Thousand Dollars ($250,000) upon the completion of the Technical Specifications for the Service Bureau Programs (the "Acceleration Fee"), and except for payment of the Acceleration Fee by Licensee, Licensee shall have no other obligation to fund any portion of the development of the Service Bureau Programs by GeoTel; (iv) in consideration for payment of the Acceleration Fee, GeoTel will further grant Licensee credits in the amount of the Acceleration Fee which Licensee shall be entitled to apply against fees for purchases of licenses for the Service Bureau Programs hereunder, or, at Licensee's sole discretion, instead as a credit against fees for purchases of any other Programs or Services hereunder if: (x) the Service Bureau Programs are made available by GeoTel to Licensee in final generally commercially available form at a list price per copy that exceeds sixty percent (60%) of the then applicable Exhibit C list price hereunder per copy of a dedicated call router Program as defined in Exhibit C, Model Number 12002 or its functional equivalent; or (y) in Licensee's sole judgment, the Service Bureau Programs do not meet the functional and performance requirements of Licensee. Any fees for purchases by Licensee utilizing any portion of the Acceleration Fee credit shall be considered as Eligible Purchases hereunder and as such will be applied towards meeting the Purchase Commitment; and (v) in the event that GeoTel does not make the Service Bureau Programs conforming with the applicable Technical Specifications available in final generally commercially available form for licensing by Licensee hereunder by the date required pursuant to Subitem (i) immediately above, then the Purchase Commitment shall from and after such due date be reduced by, and Licensee shall be released from and have no further obligation or liability in connection therewith, the amount of One Hundred Sixty Six Thousand Six Hundred Sixty Six Dollars ($166,666) for every full calendar month after such due date that the Service Bureau Programs are not made available for licensing by Licensee in final generally commercially available form, provided that from and after the date twenty four (24) calendar months from the Effective Date if such failure to make the Service Bureau Programs so available continues, Licensee shall further be entitled, at its option, in addition to the foregoing continuing reduction in the Purchase Commitment, to obtain, and GeoTel shall be obligated to provide, a prompt refund of the entire Acceleration Fee, provided, further, however, that except to the extent of the remedies expressly provided to Licensee pursuant to this Section 11.3 E(v) in the event of GeoTel's failure to make the Service Bureau Programs so available by the date required pursuant to Subitem (i) immediately above, such failure shall not otherwise be deemed a material breach of this Agreement by GeoTel.