TELETECH’s® IDENTIFY! ™ AND IDENTIFY! PLUS™ SOFTWARE AND INTELLECTUAL PROPERTY LICENSE AGREEMENT LICENSE AGREEMENT
Exhibit 10.1
EXHIBIT C TO ASSET PURCHASE AGREEMENT
TELETECH’s® IDENTIFY! ™ AND IDENTIFY! PLUS™
LICENSE AGREEMENT
This Software and Intellectual Property License Agreement (“Agreement”) is effective as of
September 28, 2007 (“Effective Date”) by and between licensor TeleTech Holdings, Inc.
(“TeleTech”), a Delaware corporation with its principle place of business at ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, licensee Aspen Marketing Services, Inc. (“Aspen”), a Delaware
corporation its principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
and Aspen Acquisition Holdings LLC, a Delaware limited liability company (“Aspen’s Parent”)
(individually “Party”, collectively the “Parties”).
RECITALS
WHEREAS TeleTech is the owner of certain computer software, known as and referred to herein
as Identify! software and Identify! Plus software and associated intellectual property, for
use in the provision of telephone answering services; and
WHEREAS Aspen desires to obtain a license to use and revise the computer software licensed
from TeleTech in connection with providing telephone answering services to Aspen’s
customers, and TeleTech has agreed to license the computer software to Aspen upon the terms
and conditions of this Agreement;
NOW THEREFORE in consideration of the mutual covenants set forth herein, the receipt and
sufficiency of which are hereby acknowledged, and contingent upon the mutual endorsement and
execution of a corresponding Asset Purchase Agreement as defined herein, the Parties agree
as follows:
1 Definitions. The following terms shall have the meanings stated:
1.1 Affiliate. Any entity (but not a competitor) of TeleTech which now or in the future
controls, is controlled by, or is under common control with Aspen, with “control” defined as a
more than fifty percent (50%) ownership interest. This Agreement shall apply to the use of the
Software by Aspen and its Affiliates. For the Software used by an Affiliate, “Aspen” and “Party”
as used herein shall mean the applicable Affiliate.
1.2 Aspen’s Customers. Aspen’s customers, end users and/or subscribers of Aspen’s
Services.
1.3 Asset Purchase Agreement. The corresponding Asset Purchase Agreement between NewGen
Results Corporation (“NewGen”) and Aspen for the sale and transfer of certain assets of NewGen to
Aspen.
1.4 Automotive Field of Use. The design, creation, manufacturing, marketing,
distribution, sale and servicing of automobiles, including passenger cars, trucks and SUVs.
1.5 Calendar Quarter. Each of the following four calendar quarters: January 1 to March
31; April 1 to June 30; July 1 to September 30; and October 1 to December 31.
1.6 Confidential Information. Any data, material or information provided by TeleTech to
Aspen in printed, written, graphic, photographic or other tangible form, as well as stored,
transmitted and received electronically, or information of TeleTech that is presented,
communicated or disclosed orally, including but not limited to information marked as
“Confidential”, “Secret”, “Proprietary”, “Restricted”, “Private” or words of similar import,
information generally known in the business to be confidential, and any other information
disclosed to Aspen by TeleTech concerning the businesses and affairs of TeleTech and its
subsidiaries that is not already generally available to the public, including, without limitation,
trade secrets and know-how. Confidential Information shall include the Software, Source Code,
TeleTech IP, trade secrets and any Derivative Work (other than Derivative Works created by Aspen
pursuant to this Agreement) and shall also include any information which can be obtained from
examining, testing, utilizing or analyzing the Software or Derivative Work (other than Derivative
Works created by Aspen pursuant to this Agreement), or any software, hardware or component thereof
as well as any accompanying materials, manuals, records or documents of similar nature.
Confidential Information shall not include information that is: (i) lawfully known to Aspen prior
to its disclosure by TeleTech, and such knowledge is not a direct or indirect result of a breach
of any obligation by any third party; (ii) now or later becomes in the public domain other than as
a result of a breach by Aspen or its obligations
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hereunder; (iii) received subsequently by Aspen from a third party who has the lawful right to
disclose same; (iv) independently developed by Aspen without reference to the Confidential
Information received hereunder, as evidenced by Aspen’s records, or (v) Derivative Works created
by Aspen pursuant to this Agreement.
1.7 Mutual Confidential Information. Any Derivative Works created by Aspen pursuant to
this Agreement.
1.8 Copyrights. All “original works of authorship” as defined by copyright law, including
registered and/or unregistered copyrights associated with the Software.
1.9 Derivative Work. A work based on, or incorporating, the Software, including but not
limited to translations, abridgments, condensations, improvements, updates, fixes, modifications
and enhancements, or any other form in which the Software may be recast, transformed, adapted, or
revised, and includes any other work specifically so-designated by both Parties in writing in the
future.
1.10 Designated Engineers. Employees of Aspen who have access to the Source Code and/or
who are engaged in creating Derivative Works, selected by Aspen at any time during the term of
this Agreement and identified in writing to TeleTech.
1.11 Documentation. TeleTech’s existing documentation of the Software.
1.12 Gross Revenue. All receipts, revenues, credits and any other amounts received by
Aspen from, or generated by, (i) any and all contracts involving use of the Software or any
Derivative Work, or (ii) any other use of the Software or any Derivative Work, before deductions
of any expenses.
1.13 Identify!. Computer software, written in computer languages including XML, PLSQL,
TSQL and CSharp, owned by TeleTech for the provision of telephone answering services, including,
tracking, managing, recording and forwarding customer calls to a call center, including accessing
and forwarding customer data.
1.14 Identify! Plus. Computer software, written in computer languages including XML,
PLSQL, TSQL and CSharp, including version 2.0, owned by TeleTech for the provision of telephone
answering services, including, tracking, managing, recording and forwarding customer calls to a
call center, including accessing and forwarding customer data.
1.15 Intellectual Property. All of the following in any jurisdiction throughout the
world: (a) all inventions (whether patentable or unpatentable and whether or not reduced to
practice), all improvements thereto, and all patents, patent applications, and patent disclosures,
together with all reissuances, continuations, continuations-in-part, divisionals, extensions,
reexaminations, utility models, certificates of invention, industrial designs, and design patents,
as well as the rights to file for, and to claim priority to, any such patent rights, (b) all
Trademarks, service marks, trade dress, logos, slogans, trade names, corporate names, Internet
domain names, and rights in telephone numbers, together with all translations, adaptations,
derivations, and combinations thereof and including all goodwill associated therewith, and all
applications, registrations, and renewals in connection therewith, (c) all copyrightable works,
Copyrights, and all applications, registrations, and renewals in connection therewith, (d) all
mask works and all applications, registrations, and renewals in connection therewith, (e) all
trade secrets and confidential information (including ideas, research and development, know-how,
formulas, compositions, manufacturing and production processes and techniques, technical data,
designs, drawings, specifications, customer and supplier lists, pricing and cost information, and
business and marketing plans and proposals), (f) all computer software (including source code,
executable code, data, databases, and related documentation), (g) all advertising and promotional
materials, (h) all other proprietary rights, (i) all copies and tangible embodiments thereof (in
whatever form or medium); and (j) all income, royalties, damages and payments related to any of
the foregoing (including damages and payments for past, present or future infringements,
misappropriations or other conflicts with any intellectual property), and the right to ▇▇▇ and
recover for past, present or future infringements, misappropriations or other conflict with any
intellectual property.
1.16 License Fees. All fees owed to TeleTech pursuant to this Agreement including the
First Year Royalty Fee, Second Year Royalty Fee, Running Royalty Fees — Automotive, Running
Royalty Fees — Non-Automotive, as each of those are defined in Sections 3.1, 3.2, 3.3, and 3.5
respectively of this Agreement.
1.17 Non-Automotive Field of Use. Any and all business, industry and/or commerce in a
field other than the Automotive Field of Use.
1.18 Services. Telephone answering services, including, without limitation, tracking,
managing, recording and forwarding customer calls to a call center, including accessing and
forwarding customer data and routing customer calls to a professional customer care agent.
1.19 Site(s). The physical location or locations in the Territory used, controlled or
owned by Aspen where the Software is permissibly deployed under the Agreement.
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1.20 Software. TeleTech’s most recent version of Identify! and Identify! Plus software,
as of the Effective Date, in Source Code and executable form.
1.21 Source Code. The source code of the Software written in programming language,
including comments and procedural code, such as job control language statements, in a form
intelligible to trained programmers and capable of being translated into object code for operation
on computer equipment through assembly or compiling, and accompanied by documentation in
sufficient detail to enable a trained programmer through study of such documentation to maintain
and/or modify the Software without undue experimentation.
1.22 Territory. The United States of America, Canada and Mexico, including their
respective territories and possessions.
1.23 [Intentionally omitted].
1.24 Trademarks. Identify! and Identify! Plus, including all trademark rights, trademark
applications and trademark registrations associated therewith. This includes trademark
application serial numbers 77/263,087 and 77/263,226.
1.25 USD. United States Dollars.
2 Software License.
2.1 Automotive Field of Use. TeleTech grants to Aspen, and Aspen accepts, subject to all
of the terms and conditions of this Agreement: (i) an exclusive, perpetual, non-assignable,
revocable, nontransferable, limited license to use the Software in executable form within the
Territory solely in connection with providing the Services to Aspen’s Customers doing business in
the Automotive Field of Use; and (ii) in connection therewith, a non-exclusive, revocable,
non-assignable, nontransferable, limited license to use, solely through Designated Engineers, the
Source Code to modify and create, use and reproduce Derivative Works of the Software, by Aspen’s
Designated Engineers for Aspen’s Customers in connection with providing the Services in the
Automotive Field of Use. All Designated Engineers must execute a Non-Disclosure Agreement in the
form attached hereto as Exhibit A, with copies of the executed Non-Disclosure Agreements provided
to TeleTech, and be identified in writing to TeleTech before accessing the Source Code. If a
Designated Engineer’s employment with Aspen terminates then that individual’s status as a
Designated Engineer terminates and Aspen shall take commercially reasonable steps to ensure that
Confidential Information in the possession of such terminated Designated Engineer is returned.
2.2 Non-Automotive Field of Use. TeleTech grants to Aspen, and Aspen accepts, subject to
all of the terms and conditions of this Agreement: (i) a non-exclusive, perpetual, non-assignable,
revocable, nontransferable, limited license to use the Software in executable form within the
Territory solely in connection with providing the Services to Aspen’s Customers doing business in
the Non-Automotive Field of Use; and (ii) in connection therewith, a non-exclusive, revocable,
non-assignable, nontransferable, limited license to use, solely through Designated Engineers, the
Source Code to modify and create, use and reproduce Derivative Works of the Software, by Aspen’s
Designated Engineers for Aspen’s Customers in connection with providing the Services in the
Non-Automotive Field of Use. All Designated Engineers must execute a Non-Disclosure Agreement in
the form attached hereto as Exhibit A, with copies of the executed Non-Disclosure Agreements
provided to TeleTech, and be identified in writing to TeleTech before accessing the Source Code.
If a Designated Engineer’s employment with Aspen terminates then that individual’s status as a
Designated Engineer terminates and Aspen shall take reasonable steps to ensure that Confidential
Information in the possession of such terminated Designated Engineer is returned.
2.3 No Sublicense; Copies; No Other Rights Granted. Aspen shall have no right to
sublicense the Software or Derivative Works, or to grant sublicenses under this Agreement, without
the prior written consent of TeleTech. Aspen may make a reasonable number of copies of the
Software as needed for back-up, archival and testing purposes and of the Documentation as needed
for Aspen’s business purposes as granted herein. The equipment and location where the archival
copies are stored shall be listed on Exhibit B attached to this Agreement and shall be deemed
Authorized Equipment and Site consistent with Section 4.2 below. Aspen shall have no other right
to copy, in whole or in part, the Software. Any copy of the Software made by Aspen is the
exclusive property of TeleTech. Aspen’s rights in the Software shall at no time exceed the scope
of the license granted under Sections 2.1 and 2.2 of this Agreement. TeleTech reserves all rights
not expressly granted to Aspen hereunder.
3 License Fees and Terms.
3.1 First Year Royalty Fee, Automotive Field of Use. On the Effective Date, Aspen shall
pay TeleTech a royalty fee equal to $225,000 USD (“First Year Royalty Fee”), for the license
provided in Section 2.1 in the Automotive Field of Use for the period of time beginning on the
Effective Date and ending twelve (12) months thereafter.
3.2 Second Year Royalty Fee, Automotive Field of Use. On the first year anniversary of
the Effective Date, Aspen shall pay TeleTech a royalty fee equal to $2,000,000 USD (“Second Year
Royalty Fee”), for the license provided in Section 2.1 in the
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Automotive Field of Use for the
period of time beginning twelve (12) months after the Effective Date and ending twenty-four (24)
months after the Effective Date.
3.3 Running Royalty Fees — Automotive Field of Use; Minimums. Unless Aspen shall give
written notice of termination to TeleTech not less than 60 days prior to the beginning of any
applicable one-year term, beginning on the second year anniversary of the Effective Date and
continuing throughout the term of this Agreement, Aspen shall pay TeleTech an ongoing annual
royalty fee equal to five percent (5%) of all Gross Revenue received by Aspen (“Running Royalty
Fees-Automotive Field of Use”),
subject to Section 3.4. Aspen shall pay TeleTech the Running Royalty Fees-Automotive Field of Use
within thirty (30) days after the expiration of each Calendar Quarter, accompanied by the
certified reports as required by Section 3.9. If the Running Royalty Fees-Automotive Field of Use
paid by Aspen in a calendar year is less than $150,000 USD, then Aspen shall pay TeleTech, by
February 1 of the next calendar year, an amount equal to the difference between $150,000 USD and
the Running Royalty Fees-Automotive Field of Use paid to date for the calendar year.
3.4 Offsets to License Fees. Running Royalty Fees-Automotive Field of Use Field of Use
may be offset in the following manner: if TeleTech’s gross revenue from Aspen for call center
services provided by TeleTech to Aspen pursuant to the Master Services Agreement and Statement of
Work between the Parties (“TeleTech Call Center Services”) exceeds $5,000,000 USD annually, each
$1,000,000 USD of gross revenue annually in excess of $5,000,000 USD will reduce the Running
Royalty Fees-Automotive Field of Use Field of Use by $100,000 USD, up to a maximum reduction of
$150,000 USD per year. For illustration purposes only, if TeleTech Call Center Services are
$6,000,000 USD in a calendar year, then the Running Royalty Fees-Automotive Field of Use Field of
Use owed by Aspen will be reduced by $100,000 USD for the calendar year.
3.5 Running Royalty Fees—Non-Automotive Industry. Commencing on the Effective Date and
continuing unless Aspen shall give written notice of termination to TeleTech not less than 60 days
prior to the beginning of any applicable one-year term, Aspen shall pay TeleTech, within thirty
(30) days after the end of each Calendar Quarter, an ongoing annual royalty fee equal to five
percent (5%) of all Gross Revenue received by Aspen for such Calendar Quarter (and without
duplication of any other License Fees payable hereunder) derived from utilizing the Software or
any Derivative Work in the Non-Automotive Field of Use (“Running Royalty Fees—Non-Automotive”)
accompanied by the certified reports as required by Section 3.9.
3.6 Transmission of Payments. All License Fees and any other payments payable by Aspen
pursuant to this Agreement shall be paid in cash in immediately available USD funds by check or
wire transfer to TeleTech.
3.7 Late Payments. TeleTech’s obligations and Aspen’s rights are contingent on full and
timely payment of all amounts required to be paid hereunder. Failure to make timely payment
within 30 days of the due date thereof will be deemed a material breach of this Agreement and
entitle TeleTech to terminate this Agreement pursuant to Section 9.2. TeleTech reserves the right
to invoice Aspen for interest on any overdue sum at the rate of one and a half percent (1.5%) per
month (or the highest rate allowed by applicable law), calculated from the due date of payment to
the date of collection. Payment subsequently received from Aspen will be first applied to such
late charges, then to amounts past due and then to new ▇▇▇▇▇▇▇▇.
3.8 Taxes, Etc. All amounts are net of, and Aspen shall pay all additional sums for, any
sales and use taxes, duties, and other similar assessments related to the Software under this
Agreement (exclusive of taxes based on TeleTech’s net income). Teletech shall provide Aspen
reasonable detail of such taxes and shall request compensation by Aspen of such taxes within 180
days of the date such taxes were paid or required to be paid by Teletech, whichever is later. If
Teletech fails to notify Aspen of any such taxes within the 180-day period referred to above,
Aspen shall not be required to pay or reimburse Teletech for any such taxes. Aspen shall indemnify
and hold harmless TeleTech from all claims and liability arising from Aspen’s failure to comply
with the requirements of this Section 3.8.
3.9 Reporting Obligations.
a. Aspen shall maintain, during the term of this Agreement and for a period of two (2) years
following termination of this Agreement, records showing the Gross Revenue under the license herein
granted in sufficient detail to enable the License Fees payable hereunder by Aspen to be audited
pursuant to Section 3.10.
b. Aspen will provide to TeleTech, within thirty (30) days after the end of each Calendar
Quarter, a written report reporting all Gross Revenue by Aspen during the preceding three-month
period and the License Fees due thereon. The report shall contain all information necessary for
the determination of License Fees payable hereunder. The report shall be signed and certified by
the Chief Financial Officer of Aspen. If, for any three-month period, no License Fee payments
shall be due, Aspen shall submit a written report to TeleTech to that effect. All reports shall be
delivered to TeleTech at the address specified in this Agreement and substantially in the format of
the report attached as Exhibit D.
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c. The reports provided by Aspen pursuant to this Section 3.9 and any information provided by
Aspen in any audit performed pursuant to Section 3.10 and all records used or generated in any such
audit shall be confidential, and TeleTech shall take reasonable measures to maintain the
confidentiality of such reports and information.
3.10 Audit Rights.
a. During the term of this Agreement and for a period of two (2) years following termination
of this Agreement, Aspen agrees to permit its books and records to be examined, and/or its use of
the Software and Derivative Works to be examined, upon written request from TeleTech and at a
reasonable time during Aspen’s normal business hours and at a location where Aspen normally keeps
its records, Software and Derivative Works, to the extent necessary to verify the reports provided
for in Section 3.9(b) and Aspen’s compliance with the terms and conditions of the Agreement
regarding use of the Software and Derivative Works, such examination to be made at the expense of
TeleTech by TeleTech or its agents or any certified public accountant appointed by TeleTech (with
respect to any audit in connection with Section 3.9).
b. If the results of the audit reveal that Aspen has underpaid amounts due under this
Agreement, Aspen shall pay, within thirty (30) days of written notice of the audit results,
TeleTech the amount of such deficiency, together with interest as provided for under this Agreement
plus an additional 2.00% per annum. If an audit shows that Aspen has paid more than required under
this Agreement, any excess amounts shall, at the option of Aspen, be refunded by TeleTech or
credited against future royalties. TeleTech shall assume the costs of such audits, provided that
Aspen shall be liable to TeleTech for the cost of such audits in the event that such audit results
in a determination that Aspen has paid less than ninety percent (90%) of the monies owed TeleTech
under this Agreement for the period of the audit.
3.11 Non-Compete. Upon receipt of the Source Code, Aspen may have the opportunity to
discover TeleTech’s trade secret information in that Source Code and as such, except as otherwise
stated in this Agreement, Aspen, on its own or indirectly through others, shall not create or
attempt to create any software outside of this Agreement to function as, take the place of or
replace the Software during the term of this Agreement; provided however that the parties agree
that Aspen’s use, improvements, updates, enhancements or modifications to the Appointnet software
which do not contain the Software, shall not be considered to be a breach of this Agreement or
competition with Teletech; and provided further than the parties agree that Aspen’s modifications,
creation, use or reproduction of Derivative Works of the Software in accordance with and as
contemplated by this Agreement shall not be considered to be a breach of this Agreement or
competition with Teletech.
4 Delivery, Installation and Support.
4.1 Delivery. TeleTech shall deliver the Software at Closing. With respect to the Source
Code, within 5 business days of the execution of this Agreement, TeleTech shall deliver the Source
Code on CD-ROM or DVD-ROM to ▇▇▇▇ ▇▇▇▇▇▇▇ at Aspen .
4.2 Installation, Authorized Equipment and Site. Aspen shall be solely responsible for
installing the Software. Aspen shall install and use the Software and Source Code only on the
computer equipment (“Authorized Equipment”) at the Site(s) listed on Exhibit B attached to this
Agreement. Exhibit B shall be amended by Aspen each time there is a change to the Authorized
Equipment and/or Site(s). Upon the sale or transfer of any Site, the license grants to the
Software and Source Code with respect to such Site will immediately terminate, unless TeleTech and
the purchaser of such Site (“Purchaser”) agree in writing to the transfer of the Software and
Source Code and enter into a Software License Agreement with respect to the Software and Source
Code. If the Software and Source Code are not transferred to the Purchaser as provided for
herein, Aspen may elect to transfer the licenses at no additional cost for use at a different
Aspen location and all such use of the Software and Source Code at the new Site shall be governed
by the terms of this Agreement, provided that Exhibit B has been amended accordingly.
4.3 Support. TeleTech shall have no responsibility for supporting, maintaining,
correcting and/or updating the Software in any manner under this Agreement.
5 Limited Warranty and Disclaimers.
5.1 Limited Warranty. TeleTech warrants to Aspen that (i) the Software is the most recent
version as of the Effective Date, (ii) TeleTech exclusively owns and possess all right, title and
interest to the Software, free and clear of any lien, license or other restriction or limitation,
including regarding use or disclosure, (iii) to Seller’s Knowledge the Software does not infringe
any third-party’s Intellectual Property, and (iv) TeleTech has the right to grant the licenses to
Aspen hereunder.
5.2 Disclaimer. OTHER THAN THE LIMITED WARRANTY SET FORTH IN SECTION 5.1 AND MADE FOR THE
BENEFIT OF ASPEN ONLY, THE SOFTWARE IS PROVIDED “AS IS”, AND TELETECH MAKES NO, AND HEREBY
DISCLAIMS ALL, OTHER WARRANTIES OR REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL,
EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SUBJECT MATTER HEREOF, INCLUDING ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
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PARTICULAR PURPOSE. TELETECH DOES NOT WARRANT THAT ANY OR ALL ERRORS CAN BE CORRECTED, OR THAT
OPERATION OF THE SOFTWARE SHALL BE UNINTERRUPTED OR ERROR-FREE. STATEMENTS MADE BY TELETECH’S
SALES REPRESENTATIVES OR IN PROMOTIONAL MATERIALS DO NOT CONSTITUTE WARRANTIES.
6 Limitation of Liability.
6.1 Limitation of Liability. Except for the Confidentiality and Indemnification
obligations under this Agreement and for claims based upon infringement or misappropriation of
TeleTech’s Intellectual Property, either Party’s maximum liability under this Agreement shall be
limited to direct actual damages not to exceed the actual License Fees paid to TeleTech under this
Agreement during the immediately preceding twelve (12) month period from the date the claim in
question first arose. except for the confidentiality and indemnification obligations under
this agreement, In no event shall TeleTech or Aspen, any parent, subsidiary, or
affiliate, or any of their officers, directors, employees or representatives, be liable to any
third party for damages of any kind or nature or in any manner whatsoever, or for any
consequential, indirect, exemplary, incidental, Punitive or special damages or costs (including
attorneys’ fees) regarding this Agreement or resulting from or in connection with the use, misuse,
or inability to use the Software, even if TeleTech or Aspen has been advised of the possibility
thereof.
6.2 Survival. Sections 1, 3.1, 3.2, 3.6 through 3.11, 5, 6, 7 and 8 shall survive the
termination of this Agreement.
7 IP & Confidentiality.
7.1 Ownership. (a) Aspen acknowledges and agrees that all right, title, and interest in
the Software, Source Code, and all information and materials related to the Software, Source Code,
and TeleTech’s business, regardless of form, including all, Confidential Information, Intellectual
Property of TeleTech, and other intellectual property rights pertaining thereto (collectively,
“TeleTech IP”) are owned by TeleTech and shall remain vested in TeleTech. Each of Aspen and
Teletech acknowledges and agrees that each of Aspen and Teletech are joint and undivided owners in
all right, title, and interest in the Derivative Works created by Aspen pursuant to this
Agreement. Each of Aspen and Teletech acknowledges and agrees that any profits derived from use or
license of Derivative Works by third parties, created by Aspen pursuant to this Agreement, shall
be divided between Aspen and Teletech in a reasonable and good faith manner reflecting the
relative contribution to the Derivate Work created by Aspen, pursuant to this Agreement. Neither
Teletech nor Aspen shall license the Derivative Works created by Aspen pursuant to this Agreement
to a competitor of the other party without the prior written consent of such other party. This
Section 7 of the Agreement shall survive the termination of this Agreement.
(b) Aspen further acknowledges that the Software, Source Code and Documentation are unpublished and
constitute TeleTech copyrights, trade secrets, and Confidential Information. Aspen does not claim
any ownership or other proprietary rights in or to any TeleTech IP (other than Derivative Works
created by Aspen pursuant to this Agreement) and to the extent such ownership or proprietary rights
exist, Aspen agrees to transfer such ownership and/or proprietary rights to TeleTech. Aspen shall
provide TeleTech with a copy of the most recent versions of all Derivative Works that Aspen makes
or has made in each Calendar Quarter, no later than thirty (30) days after the last day of each
Calendar Quarter, and shall keep and maintain accurate and complete records, notes, materials,
reports and any other information related to, regarding, or in connection with, any and all
Derivative Works created by Aspen. Aspen further understands that TeleTech has full, complete and
exclusive ownership of the Derivative Works (other than Derivative Works created by Aspen pursuant
to this Agreement). If Aspen refuses or TeleTech is unable for any reason to secure Aspen’s
signature to execute any assignment or to apply for or to pursue any application of any United
States or foreign patents, trademarks or copyright applications or registrations covering a
Derivative Work (other than Derivative Works created by Aspen pursuant to this Agreement), then
Aspen hereby irrevocably designates and appoints TeleTech and its duly authorized managers,
members, representatives and agents as Aspen’s agent and attorney in fact, to act for and in
Aspen’s behalf and stead to execute and file any such applications and to do all other lawfully
permitted acts to further the protection and issuance of patents, trademarks or copyright
registrations thereon with the same legal force and effect as if executed by Aspen. Aspen further
agrees that Aspen’s obligation to execute or cause to be executed, when it is in Aspen’s power to
do so, any such instrument or papers shall continue after the termination of this Agreement until
the expiration of the last such intellectual property right to expire in any country in the world.
Aspen shall not, at any time, dispute or take any objection to the validity or the registration of
any patent, copyright, or other intellectual property right, in any country, contemplated under
this Agreement with respect to any Derivative Work (other than Derivative Works created by Aspen
pursuant to this Agreement) or any other TeleTech IP (other than Derivative Works created by Aspen
pursuant to this Agreement).
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7.2 Protection of TeleTech IP. Aspen shall not itself (unless specifically authorized
under this Agreement) nor permit any other party to:
a. [Intentionally omitted];
b. Alter, remove or suppress any copyright or other proprietary notices or marks or any
confidentiality legends embedded or otherwise appearing in or on the TeleTech IP (other than
Derivative Works created by Aspen pursuant to this Agreement); or fail to ensure that all such
notices and legends appear on all full or partial copies of the TeleTech IP or any related
material, and Aspen shall insure that such notices, modified as appropriate under this Agreement,
continue to appear or exist in any Derivative Work that Aspen develops; or
c. Sell, sublicense, lease, assign, transfer, distribute, encumber, or otherwise transform the
TeleTech IP, this Agreement or any of Aspen’s rights hereunder other than as necessary in
connection with the provision of the Services pursuant to this Agreement.
7.3 Confidentiality. The unauthorized disclosure or use of Confidential Information would
cause great injury and harm to TeleTech. Therefore, Aspen agrees to take all appropriate action to
ensure the confidentiality and security of TeleTech’s Confidential Information, but in any event
no less than the same standard of care it uses to protect its own confidential information of like
kind and value. Without limiting the generality of the foregoing, and in addition to Aspen’s
obligations in Section 7.2, Aspen agrees that it: (i) shall maintain TeleTech’s
Confidential Information in the strictest confidence, including compliance with reasonable remote
access security requirements, and will take all necessary and proper precautions to prevent any
unauthorized use or disclosure of the Confidential Information; (ii) shall not disclose, display,
publish, transmit, or otherwise make available such Confidential Information or the benefit
thereof, in whole or in part, except in confidence to its own employees on a need-to-know basis
who have agreed to the confidentiality terms set forth in this Section 7.3, and with respect to
the Source Code, Aspen agrees that it will not disclose it to anyone other than Designated
Engineers; (iii) except as expressly permitted hereunder, shall not copy, duplicate, replicate,
transform, or reproduce such Confidential Information; and (iv) inform TeleTech immediately of any
breach or threatened breach of the confidentiality obligations set forth in this Section 7.3.
Notwithstanding the foregoing restrictions, Aspen may use and disclose any Confidential
Information (1) to the extent required by an order of any court or other governmental authority or
(2) as necessary for it to protect its interest in this Agreement, but in each case only after
TeleTech has been so notified and has had the opportunity, if possible, to obtain reasonable
protection for such information in connection with such disclosure. Aspen acknowledges that
monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential
Information and that in addition to any other remedies it may have at law or in equity, TeleTech
shall be entitled to seek a restraining order, injunction, or other similar remedy without posting
bond as a condition of such relief.
7.4 Applicability. The restrictions set forth in this Section 7 shall apply during the
Term of this Agreement, and shall remain in full force and effect after any termination: (i) for
trade secrets and any Confidential Information that rises to the level of a trade secret, as long
as such information qualifies as a trade secret; and (ii) for all other Confidential Information,
during a period of five (5) years after initial disclosure. Notwithstanding the foregoing, Aspen
acknowledges and agrees that the Software, including Derivative Works, and Documentation contain
trade secrets and shall be kept confidential throughout the term of this Agreement and for as long
thereafter as they remain trade secrets under applicable law.
7.5 Trademark License. TeleTech grants to Aspen the right to use the Trademarks in
connection with the advertising and marketing of the Software and Services and provision of the
Services in accordance with the terms and conditions set forth in the Trademark License Agreement
attached hereto as Exhibit C (“Trademark License”), which Trademark License shall be executed by
Aspen concurrently with the execution of this Agreement. If this Agreement is terminated for any
reason, the Trademark License shall automatically and immediately terminate.
8 Indemnity and Guarantee.
a. Teletech agrees to defend, indemnify and hold Aspen, its employees, agents,
officers, directors, managers, shareholders, members or representatives or any one of them,
or any Affiliate or its respective officers, managers, directors, employees, shareholders,
members, agents or representatives or any one of them harmless from any and all third party
claims, actions, suits, awards, costs (including without limitation reasonable attorney
fees), expenses and liabilities incurred in connection with (i) TeleTech’s violation of any
applicable law, (ii) any violation or breach of this Agreement by TeleTech, and (iii) any
claim that the Derivative Work infringes any third-party’s Intellectual Property.
b. Aspen agrees to defend, indemnify and hold TeleTech, its employees, agents,
officers, directors, managers, shareholders, members or representatives or any one of them,
or any Affiliate or its respective officers, managers, directors,
| Software and Intellectual Property License Agreement | Page 7 of 21 | 9/28/2007 |
employees, shareholders, members, agents or representatives or any one of them
(“TeleTech Indemnified Parties”) harmless from any and all third party claims, actions,
suits, awards, costs (including without limitation reasonable attorney fees), expenses and
liabilities incurred in connection with (i) Aspen’s violation of any applicable law, (ii)
any violation or breach of this Agreement by Aspen, and (iii) any claim that the Derivative
Work infringes any third-party’s Intellectual Property.
c. Guaranty of Aspen’s Parent. Aspen’s Parent agrees to be guarantor and
unconditionally guarantees to TeleTech and its successors and assigns the full and punctual
payment by Aspen, of the First Year Royalty Fee and the Second Year Royalty Fee pursuant to
this Agreement. If, at any time, Aspen shall default in the payment of the First Year Fee
and/or the Second Year Royalty Fee, Guarantor will pay the same, as the case may be, in
place and stead of Aspen. In the event of a dispute arising under Section or the Agreement
as relates to this Section, Aspen’s Parent agrees to accept service of process on behalf of
Aspen.
9 Term & Termination.
9.1 Agreement Term. This Agreement shall commence on the Effective Date and continue
unless earlier terminated as provided in Section 9.2.
9.2 Termination of Agreement.
a. This Agreement may be terminated by TeleTech immediately if:
| (1) | Aspen fails to timely pay any amount owed to TeleTech pursuant to this Agreement, including without limitation, any License Fees; or | ||
| (2) | Aspen breaches any of its confidentiality obligations under this Agreement. |
b. This Agreement may be terminated by either Party if:
| (1) | a Party breaches this Agreement and such breach is not cured within thirty (30) days from the date of written notice of such breach by the non-breaching Party; or | ||
| (2) | a Party ceases to do business, or becomes insolvent, or files a petition in bankruptcy or an involuntary petition in bankruptcy is filed against the Party and it is not dismissed within thirty (30) days of such filing, or makes an assignment for the benefit of its creditors, or is subject to the appointment of a trustee, receiver or other custodian for such Party or such Party’s property. |
c. This Agreement may be terminated by Aspen in accordance with Section 3.3 or Section 3.5,
as applicable.
9.3 Obligations Upon Termination. Upon termination of this Agreement for any reason: (i)
all outstanding amounts owed by Aspen to TeleTech shall be immediately due to TeleTech; (ii) Aspen
shall immediately cease all uses of the Software and Source Code, remove all copies from any
equipment on which they have been installed, return them with all Documentation and other TeleTech
Confidential Information and TeleTech IP in Aspen’s possession or control, including the most
recent version of the Software, and provide TeleTech an officer’s certificate confirming the
foregoing within thirty (30) days of the date of termination; (iii) Aspen shall immediately cease
all use of the Trademarks and return or destroy, at TeleTech’s sole option, all copies of
materials in Aspen’s possession or control that bear or use the Trademarks, and provide an
officer’s certificate confirming same, within thirty (30) days of the date of termination; and
(iv) the licenses and all other rights and obligations of the Parties pursuant to this Agreement
shall immediately terminate except as provided in section 6.2.
10 Governing Law & Remedies.
This Agreement shall be governed by and construed in accordance with the substantive laws of the
State of Colorado without regard to its principles governing conflict of laws, and the Parties
agree to submit to the exclusive jurisdiction of and venue in, the courts in Denver, Colorado.
Aspen shall comply with all laws, rules, and regulations directly or indirectly applicable to use
and possession of the Software, including regulations under the US Export Administration Act and
the US Foreign Corrupt Trade Practices Act. Aspen shall indemnify and hold harmless TeleTech for
any failure to do so. Aspen represents that it will not export or otherwise remove the Software or
any portion thereof from the Territory, either directly or indirectly, without first obtaining a
license to do so from TeleTech, and any licenses or approvals as may be required from the
applicable agency or department of the US Government
| Software and Intellectual Property License Agreement | Page 8 of 21 | 9/28/2007 |
or from any other competent governmental authority. The United Nations Convention on Contracts for
the International Sale of Goods shall not apply hereto in any respect.
11 General.
11.1 Headings/Counterparts. Section headings are for convenience only. This Agreement may
be executed in one or more counterparts, each of which shall for all purposes are deemed to be an
original and all of which shall constitute the same instrument.
11.2 Consent. Wherever consent or other approval is required, such consent shall not be
unreasonably withheld or delayed; provided, however, it shall not be considered unreasonable for
TeleTech to withhold its consent if consent could serve to jeopardize the confidentiality of
and/or TeleTech’s interests in TeleTech IP.
11.3 Assignment. Aspen shall not assign this Agreement without the prior written consent
of TeleTech provided, however that no such consent shall be required in the event of an
assignment of this Agreement by Aspen (i) to an affiliate of Aspen, or (ii) in connection with a
merger, reorganization or sale of substantially all of the assets of Aspen.
11.4 Force Majeure. Except for obligations of confidentiality and payment, neither Party
shall be liable for any delay or failure in performance if caused by any factor beyond its
reasonable control, and performance shall be deferred until such cause of delay is removed.
11.5 No Agency. Nothing herein shall make either Party the agent of the other for any
purpose whatsoever. The Parties are independent of each other and this Agreement does not create
the relationship of partnership, principal-agent, employer-employee or joint venture between Aspen
and TeleTech.
11.6 Notices. Notices and other communications required hereunder must be in writing,
delivered by hand delivery or nationally recognized overnight courier or certified or registered
mail with postage prepaid and addressed to the following addresses:
TeleTech Holdings, Inc. ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: Chief Financial Officer Fax: |
||
with copies to: |
||
TeleTech Holdings, Inc.
|
TeleTech Holdings, Inc. | |
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
|
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
Attention: General Counsel
|
Attention: Assistant General Counsel of Intellectual Property | |
Fax: ▇▇▇-▇▇▇-▇▇▇▇
|
Fax: ▇▇▇-▇▇▇-▇▇▇▇ | |
and: |
||
Aspen Marketing Services, Inc. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: General Counsel Fax: ▇▇▇-▇▇▇-▇▇▇▇ |
Notices will be deemed given and delivery will be deemed made, when delivered, if hand delivered,
and on the next business day after deposit if sent by nationally recognized overnight courier or 48
hours after being deposited in the mail, if certified or registered mail. Notices may only be sent
in this manner unless otherwise agreed to by the Parties.
11.7 Waiver. Any failure or delay by either Party in exercising any right or remedy shall
not be deemed a waiver of any further, prior, or future right or remedy hereunder.
| Software and Intellectual Property License Agreement | Page 9 of 21 | 9/28/2007 |
11.8 Severability. Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining portions hereof or affecting the validity
or enforceability of such provision in any other jurisdiction. The invalidity or unenforceability
of any provision shall not constitute a failure of consideration hereunder.
11.9 Entire Agreement/Modification. This Agreement and its Exhibits together constitute
the entire agreement between TeleTech and Aspen, and supersede all prior agreements and
understandings, whether oral or written, relating to the subject matter hereof. No other
agreements shall be effective to change, modify, or terminate this Agreement in whole or in part
unless in writing specifically referencing this Agreement and duly signed by authorized
representatives of both Parties. No terms, provisions or conditions of any purchase order, invoice
or other business form or written authorization used by either Party will have any effect on the
rights, duties or obligations of the Parties under, or otherwise modify, this Agreement,
regardless of any failure of either Party to object to such terms, provisions or conditions. In
case of any conflict between this Agreement and (i) any Exhibit or other attachment hereto or (ii)
that certain Asset Purchase Agreement dated as ___, 2007 by and among the Parties and Newgen
Results Corporation, ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. and Newgen Results Canada, Ltd, the provisions of this
Agreement shall control.
11.10 Counterparts, Facsimile Signatures. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but which together shall constitute one
and the same instrument. If this Agreement is executed in counterparts, no signatory hereto shall
be bound until both the Parties named below have duly executed or caused to be duly executed a
counterpart of this Agreement. A signature on a copy of this Agreement received by either Party by
facsimile is binding upon the other Party as an original. Both Parties agree that a photocopy of
such facsimile may also be treated by the Parties as a duplicate original.
| Software and Intellectual Property License Agreement | Page 10 of 21 | 9/28/2007 |
IN WITNESS WHEREOF, TeleTech and Aspen have caused this Agreement to be executed as of the
Effective Date by their duly authorized representatives, and each represents and warrants to the
other that it is legally free to enter in to this Agreement.
ASPEN MARKETING SERVICES, INC.
|
TELETECH HOLDINGS, INC. | |||||
Signed By: |
Signed By: |
|||||
Printed Name: |
Printed Name: |
|||||
Title: |
Title: |
|||||
Date: |
Date: |
|||||
ASPEN ACQUISITION HOLDINGS LLC
|
||||||
Signed By: |
||||||
Printed Name: |
||||||
Title: |
||||||
Date: |
| Software and Intellectual Property License Agreement | Page 11 of 21 | 9/28/2007 |
LIST OF EXHIBITS
EXHIBIT A: CONFIDENTIAL INFORMATION AND NON-DISCLOSURE AGREEMENT
EXHIBIT B: SOFTWARE AND SOURCE CODE SITES
EXHIBIT C: TRADEMARK LICENSE AGREEMENT
EXHIBIT D: ROYALTY REPORTING FORM
EXHIBIT A
CONFIDENTIAL INFORMATION AND NON-DISCLOSURE AGREEMENT
This Confidential Information and Non-Disclosure Agreement (the “Agreement”), is entered
into this day of , 20___ (the “Effective Date”) by and among TeleTech
Holdings, Inc., a corporation organized under the laws of Delaware with offices located at ▇▇▇▇ ▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (“TeleTech”), and Aspen Marketing Services, Inc., a
corporation organized under the laws of Delaware, with offices located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (“Aspen”), and , an individual residing at
(“Recipient”)(collectively, the “Parties”).
WHEREAS, Recipient is an employee of Aspen who is or will be engaged in creating Derivative Works
(as defined below) of TeleTech’s Identify! and/or Identify! Plus software (the “Software”)
and consequently will have access to TeleTech’s Source Code (as defined below) and other
Confidential Information (as defined below);
NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement,
and the disclosure of confidential information between the Parties, the receipt and sufficiency of
such consideration hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS
a. “Automotive Field of Use” shall mean the design, creation, manufacturing,
marketing, distribution, sale and servicing of automobiles, including passenger cars, trucks, SUVs
and the like.
b “Confidential Information” shall mean any data, material or information provided by
TeleTech to Aspen in printed, written, graphic, photographic or other tangible form, as well as
stored, transmitted and received electronically, or information of TeleTech that is presented,
communicated or disclosed orally, including but not limited to information marked as
“Confidential”, “Secret”, “Proprietary”, “Restricted”, “Private” or words of similar import,
information generally known in the business to be confidential, and any other information disclosed
to Aspen by TeleTech concerning the businesses and affairs of TeleTech and its subsidiaries that is
not already generally available to the public, including, without limitation, trade secrets and
know-how. Confidential Information shall include the Software, Source Code, Intellectual Property
of TeleTech, trade secrets and any Derivative Work (other than Derivative Works created by Aspen)
and shall also include any information which can be obtained from examining, testing, utilizing or
analyzing the Software or Derivative Work, or any software, hardware or component thereof as well
as any accompanying materials, manuals, records or documents of similar nature. Confidential
Information shall not include information that is: (i) lawfully known to Aspen prior to its
disclosure by TeleTech, and such knowledge is not a direct or indirect result of a breach of any
obligation by any third party; (ii) now or later becomes in the public domain other than as a
result of a breach by Aspen or its obligations hereunder; (iii) received subsequently by Aspen from
a third party who has the lawful right to disclose same; or (iv) independently developed by Aspen
without reference to the Confidential Information received hereunder, as evidenced by Aspen’s
records.
c. “Confidential Materials” shall mean all tangible materials containing Confidential
Information, including without limitation written or printed documents and computer disks or tapes,
whether machine or user readable.
d. “Derivative Work” shall mean a work that is based on, or incorporating, the
Software, including but not limited to, translations, abridgments, condensations, improvements,
updates, fixes, modifications and enhancements, or any other form in which the Software may be
recast, transformed, adapted, or revised, and includes any other work specifically so-designated by
Aspen and TeleTech in writing in the future.
e. “Intellectual Property” shall mean all of the following in any jurisdiction
throughout the world: (a) all inventions (whether patentable or unpatentable and whether or not
reduced to practice), all improvements thereto, and all patents, patent applications, and patent
disclosures, together with all reissuances, continuations, continuations-in-part, divisionals,
extensions, reexaminations, utility models, certificates of invention, industrial designs, and
design patents, as well as the rights to file for, and to claim priority to, any such patent
rights, (b) all trademarks, service marks, trade dress, logos, slogans, trade names, corporate
names, Internet domain names, and rights in telephone numbers, together with all translations,
adaptations, derivations,
and combinations thereof and including all goodwill associated therewith, and all applications,
registrations, and renewals in connection therewith, (c) all copyrightable works, copyrights, and
all applications, registrations, and renewals in connection therewith, (d) all mask works and all
applications, registrations, and renewals in connection therewith, (e) all trade secrets and
confidential information (including ideas, research and development, know-how, formulas,
compositions, manufacturing and production processes and techniques, technical data, designs,
drawings, specifications, customer and supplier lists, pricing and cost information, and business
and marketing plans and proposals), (f) all computer software (including source code, executable
code, data, databases, and related documentation), (g) all advertising and promotional materials,
(h) all other proprietary rights, (i) all copies and tangible embodiments thereof (in whatever form
or medium); and (j) all income, royalties, damages and payments related to any of the foregoing
(including damages and payments for past, present or future infringements, misappropriations or
other conflicts with any intellectual property), and the right to ▇▇▇ and recover for past, present
or future infringements, misappropriations or other conflict with any intellectual property.
f. Mutual Confidential Information. Any Derivative Works created by Aspen
pursuant to this Agreement.
g. “Non-Automotive Field of Use” shall mean any business, industry and/or commerce in
a field other than the Automotive Field of Use.
h. “Object Code” shall mean the Software assembled or compiled or fixed in magnetic or
electronic binary form on media, which is readable and usable by machines, but not generally
readable by humans without reverse assembly, reverse compiling, or reverse engineering.
i. “Services” shall mean telephone answering services, including, without limitation,
tracking, managing, recording and forwarding customer calls to a call center, including accessing
and forwarding customer data and routing customer calls to a professional customer care agent.
j. “Source Code” means the source code of the Software written in programming
language, including comments and procedural code, such as job control language statements, in a
form intelligible to trained programmers and capable of being translated into Object Code for
operation on computer equipment through assembly or compiling, and accompanied by documentation in
sufficient detail to enable a trained programmer through study of such documentation to maintain
and/or modify the Software without undue experimentation.
2. RESTRICTIONS
a. Recipient may only use Confidential Information and Confidential Materials during
Recipient’s employment with Aspen in connection with creating, using, modifying and reproducing
Derivative Works of the Software for Aspen in connection with providing the Services in the
Automotive Field of Use and Non-Automotive Field of Use. Recipient agrees to segregate all such
Confidential Materials from the confidential materials of others in order to prevent commingling.
Recipient shall not disclose the Confidential Information or Confidential Materials to any third
party without TeleTech’s prior written consent.
b. For purposes of this Agreement, Mutual Confidential Information shall be treated as
Confidential Information except that both Parties are considered to be both owner and discloser
(“Discloser”) and Recipient of Mutual Confidential Information, for example, each Party shall treat
Mutual Confidential Information as the Confidential Information of the other, and neither Party
can disclose Mutual Confidential Information to non-employee third parties without the express,
written permission of the other Party.
c. In the event a Recipient is required by law, applicable regulation or judicial process to
disclose all or any portion of the Confidential Information or Confidential Materials, the
Recipient agrees to (i) promptly notify TeleTech of the existence, terms and circumstances
surrounding such requirement sufficiently in advance of the time for such disclosure to allow
TeleTech to protect its Confidential Information and Confidential Materials by limiting or
resisting the disclosure requirement and (ii) if disclosure of such information is required,
exercise its reasonable efforts to obtain an order or other reliable assurance that confidential
treatment will be accorded to such Confidential Information and Confidential Materials. If such
order or assurance is not obtained, Recipient shall be permitted to disclose only such portion
of the Confidential Information or Confidential Materials that it is advised by opinion of counsel
is required to be disclosed.
d. Recipient shall take security precautions, no less than the precautions it takes to protect
confidential information of Aspen, but in no event less than reasonable care, to keep confidential
the Confidential Information and Confidential Materials. In addition to the precautions taken
above, Recipient shall do the following:
i. maintain the confidentiality of any passwords, keys, combinations or other security
devices used to maintain the confidentiality of the Confidential Information and
Confidential Materials;
ii. report immediately any instance of any such security devices being lost or stolen
to appropriate personnel at Aspen and TeleTech;
iii. keep Confidential Information and Confidential Materials on Aspen premises except
as temporarily required to perform tasks at a different location when authorized and
instructed to do so by Aspen, but in no event maintaining Confidential Information and
Confidential Materials off such premises for longer than necessary to perform the offsite
tasks;
iv. regularly destroy Confidential Materials through shredding or burning when such
Confidential Materials are no longer necessary for carrying out the purposes of this
Agreement; and
v. share Confidential Information and Confidential Materials only with other employees
of Aspen who have executed a copy of this Agreement.
3. RIGHTS AND REMEDIES
a. Recipient shall notify Aspen and TeleTech immediately upon discovery of any unauthorized
use or disclosure of Confidential Information or Confidential Materials, or any other breach of
this Agreement and will cooperate with Aspen and TeleTech in every reasonable way to help Aspen and
TeleTech regain possession of the Confidential Information or Confidential Materials and prevent
its further unauthorized use or disclosure.
b. In the event of termination of employment of Recipient, Recipient shall immediately return
to Aspen all originals, copies, reproductions and summaries of Confidential Information or
Confidential Materials in Recipient’s possession and certify in writing to that it has complied
with this provision. Aspen shall take reasonable steps to ensure that Recipient complies with this
requirement.
c. Recipient acknowledges that monetary damages may not be a sufficient remedy for
unauthorized disclosure of Confidential Information and that TeleTech shall be entitled, without
waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed
proper by a court of competent jurisdiction.
d. TeleTech or its designated agent may interview, orally or in writing, Recipient with
reasonable prior notice and during normal business hours, to review Recipient’s compliance with the
terms of this Agreement.
4. MISCELLANEOUS
a. All Confidential Information and Confidential Materials are and shall remain the property
of TeleTech. By disclosing information to Recipient or Aspen, TeleTech does not grant any express
or implied
right to Recipient or Aspen as to any of TeleTech’s patents, copyrights, trademarks, or trade
secret information, or any other Intellectual Property.
b. This Agreement constitutes the entire agreement between the Parties with respect to the
subject matter hereof. This Agreement shall not be modified except by a written agreement dated
subsequent to the date of this Agreement and signed by both Parties. None of the provisions of
this Agreement shall be deemed to have been waived by any act or acquiescence on the part of
TeleTech, its agents, or employees, but only by an instrument in writing signed by an authorized
officer of TeleTech. No waiver of any provision of this Agreement shall constitute a waiver of any
other provision(s) or of the same provision on another occasion.
c. If TeleTech employs attorneys to enforce any rights arising out of or relating to this
Agreement, TeleTech shall be entitled to recover its reasonable attorneys’ fees. This Agreement
shall be construed in accordance with the laws of the state of Colorado, without regard to that
state’s conflict of laws principles.
d. Subject to the limitations set forth in this Agreement, this Agreement will inure to the
benefit of and be binding upon the Parties, their successors and assigns.
e. If any provision of this Agreement shall be held by a court of competent jurisdiction to be
illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
f. The Parties to this Agreement acknowledge that each has had the opportunity to consult with
legal counsel of their own choosing. The Parties therefore agree that the Rule of Construction
which provides that ambiguities in a contract shall be construed against the drafter shall not
apply to this Agreement and the Parties waive any such defense to the terms of this Agreement.
g. All obligations created by this Agreement shall survive change or termination of
Recipient’s employment with Aspen.
In WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.
| TELETECH HOLDINGS, INC. | |||||
| By: | |||||
| Name: | |||||
| Its: | |||||
| ASPEN MARKETING SERVICES, INC. |
|||||
| By: | |||||
| Name: | |||||
| Its: | |||||
| RECIPIENT |
|||||
| Name: | |||||
| Address: | |||||
EXHIBIT B
SOFTWARE AND SOURCE CODE SITES
EXHIBIT C
TRADEMARK LICENSE AGREEMENT
EXHIBIT D
ROYALTY REPORTING FORM
From Licensee:
|
Aspen Marketing Services, Inc. (“Aspen”) | |
In Connection With:
|
The Software and Intellectual Property Agreement between Aspen and TeleTech Holdings, Inc. dated (“License Agreement”). | |
Calendar Quarter (circle one):
|
(January 1 to March 31) or (April 1 to June 30) or (July 1 to September 30) or (October 1 to December 31) |
|
For the Year:
|
||
Date of this Report:
|
||
Scope:
|
All Gross Revenues in connection with Identify! software, Identify! Plus software, or any Derivative Work (as defined in the License Agreement) |
| ROYALTY DUE UNDER SECTION 3.5 OF LICENSE AGREEMENT | ||||||||
| Invoice Date | Invoice Number | Gross Revenues Received During Calendar Quarter for Non-Automotive Field of Use | ||||||
Total of Gross Revenue for Non-Automotive
Field of Use: |
||||
Total Running Royalty Fee-Non-Automotive1 (5.0% of
Gross Revenue for Non-Automotive Field of Use): |
||||
Amount Due: |
(A) |
| 1 | Begins accruing upon Effective Date of License Agreement. |
| ROYALTY DUE UNDER SECTION 3.3 OF LICENSE AGREEMENT | ||||||||
| Invoice Date | Invoice Number | Gross Revenues Received During Calendar Quarter for Automotive Field of Use | ||||||
Total of Gross Revenue for Automotive Field of Use: |
||||
Total Running Royalty Fee-Automotive2 (5.0% of
Gross Revenue for Automotive Field of Use): |
||||
Offset: |
||||
Amount Due: |
(B) | |||
TOTAL AGGREGATE ROYALTIES DUE |
(A + B) |
| 2 | Begins accruing on second year anniversary of the Effective Date of License Agreement, and shall not be less than $150,000 USD annually as specified in Article 3. |