EXHIBIT 10.19
SOFTWARE LICENSE AND SUPPORT AGREEMENT
This Software License and Support Agreement is entered into by and between
Portal Software, Inc., a Delaware corporation with principal offices at
00000 Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 ("Portal") and
NetVoice Technologies a Texas corporation with principal offices at 00000
Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 ("Licensee") and describes
the terms and conditions pursuant to which Portal shall license to Licensee
and support certain Licensed Software (as defined below). This Agreement
shall become effective on the date it is signed by Portal ("Effective Date").
1. DEFINITIONS.
1.1 "Agreement means this Software License and Support Agreement,
including any and all attached schedules.
1.2 "Application" means the specific Application set forth in
Schedule A hereto of the Licensed Software running on one or more
related computers at a single location, that share the same
Licensed Software Database.
1.3 "Confidential Information" means this Agreement and all its
Schedules, any addenda hereto signed by both parties, all
software listings, Documentation, information, data, drawings,
benchmark tests, specifications, trade secrets, object code and
machine-readable copies of the Licensed Software, and any other
proprietary information supplied to Licensee by Portal or by
Licensee to Portal which is clearly marked as "confidential" if
in tangible form, or identified as "confidential" if orally disclosed.
1.4 "Designated Equipment" means the hardware make and model of the
server computer on which the Licensed Software will be installed
as set forth on Schedule A.
1.5 "Documentation" means the documentation and user manuals relating
to the use of the Licensed Software delivered by Portal to
Licensee in either printed or electronic form.
1.6 "Licensed Software" means (i) the software products designated on
Schedule A hereto provided to Licensee by Portal in executable
form (but not the Source Code), (ii) Documentation, (iii) any
source code or object code which Portal in its sole discretion
may provide to Licensee from time to time and (iv) any Updates,
modifications, maintenance releases, bug fixes or work-arounds
which Portal may provide to Licensee from time to time.
1.7 "Licensed Software Database" means the customer database
associated with the Licensed Software which contains the Customer
Records.
1.8 "Production Site" means the address and location of the server
computer on which the Licensed Software will be installed as set
forth on Schedule A.
1.9 "Prepaid Calling Card" means an Internet prepaid calling card.
The average retail price of a Prepaid Calling Card tracked by the
Licensed Software shall be equal to or less than thirty-five
dollars ($35.00), calculated as follows: total retail value of
all Prepaid Calling Cards divided by the total number of Prepaid
Calling Cards. For purposes of this Agreement, three (3) Prepaid
Calling Card personal identification numbers will count as one
Tier 1 Subscriber.
1.10 "Restricted Release" means any version of the Licensed Software
marked alpha, beta or which is otherwise designated as a
Restricted Release.
1.11 "Subscriber" means an individual customer record account object
("Customer Record") in the Licensed Software Database. The total
number of Subscribers is exactly equal to the number of Customer
Records in the Licensed Software Database. If the Licensed
Software is used to authenticate, xxxx, rate or otherwise track
the activities of individual users within a corporate or group
account, each such individual user will be deemed a Subscriber
for the purposes of this Agreement. There will be two classes of
Subscribers under this Agreement: (i) Tier 1 and (ii) Tier 2
Subscribers.
1.11.1 "Tier 1 Subscriber" means a Customer Record in the
Licensed Software Database representing a customer to
whom Licensee provides Consumer Voice-over-IP (Internet
protocol) services (b) for which Licensee receives a
periodic flat fee (e.g., regular month fee)
(recognizable under GAAP).
1.11.2 "Tier 2 Subscriber" means a Customer Record in the
Licensed Software Database (a) representing an end user
of Licensee's wholesale Voice-over-IP services for
which Licensee receives a monthly fee recognizable
under GAAP) for such services based on the number of
wholesale minutes per month (or otherwise linked to
usage time). For purposes of this Agreement no more
than fifteen (15) accounts may have access to the
wholesale minutes.
1.12 "Updates" means any updates to the Licensed Software licensed
hereunder which Portal, in its discretion, makes generally
available to its Licensed Software licensees.
2. GRANT OF LICENSE
2.1 For so long as this Agreement remains in force Portal grants to
Licensee a perpetual, non-exclusive and non-transferable right to
use the Licensed Software on the Designated Equipment and on a
single Licensed Software Database located at the designated
Production Site only for the specified Application. Licensee may
possess only the number of copies of any Licensed Software
necessary for the type of use specified herein and may use such
copies only in accordance with this Agreement and the Documentation.
Portal shall at all times retain ownership of all Licensed
Software including any Documentation and any copies thereof.
2.2 Licensee shall implement reasonable controls to ensure that it
does not exceed the maximum number of Subscribers licensed hereunder.
2.3 Portal will deliver to Licensee, as soon as is practicable, the
necessary password to enable Licensee to download from Portal's
website one machine-readable copy of the Licensed Software, along
with one machine-readable copy of the Documentation. Licensee
may not reproduce Licensed Software or Documentation except as
expressly provided under this Agreement.
2.4 Licensee may copy the Licensed Software and Documentation for
backup or archival purposes provided that all titles, trademark
symbols, copyright symbols and legends, and other proprietary
markings are reproduced.
2.5 Licensee shall be permitted to develop, use and modify APIs,
macros and user interfaces provided by Portal. For the purposes
of this Agreement, such development shall be deemed an authorized
modification of the Licensed Software.
2.6 To use the Licensed Software specified on an Order Form Licensee
may need to use an ancillary program embedded in or delivered
with the ordered Licensed Software. The ancillary program shall
be used only as described in the Order Form of Documentation for
implementation of the ordered Licensed Software and for no other
purpose. Licensee shall have no right to use any other software
program that may be delivered with the ordered Licensed Software.
2.7 Portal grants and Licensee receives no other rights or licenses
to the Licensed Software, derivative works (as defined in the
United States Copyright Act of 1976, Title 17 USC Section 101 et.
seq.) or any intellectual property rights related thereto,
whether by implication, estoppel or otherwise, except those
rights expressly granted in this Section 2.
3. LICENSE RESTRICTIONS
3.1 Licensee agrees that it will not itself, or through any parent,
subsidiary, affiliate, agent or other third party:
3.2 sell, lease, license, sublicense, encumber or otherwise deal with
any portion of the Licensed Software or Documentation;
3.3 except to the minimum extent necessary to comply with EC
Directive, if applicable, or other applicable legislation,
decompile, disassemble, or reverse engineer any portion of the
Licensed Software or attempt to discover any source
code or underlying ideas or algorithms of any Licensed Software;
3.4 other than to the extent permitted by Section 2.4 above, create
any Derivative Work based on the Licensed Software or any Portal
Confidential Information;
3.5 except to the extent provided by Section 2.1 above, use the
Licensed Software to provide processing services to third
parties, commercial timesharing, rental or sharing arrangements,
or on a "service bureau" basis or otherwise use or allow others
to use the Licensed Software for the benefit of any third party;
3.6 provide, disclose, divulge or make available to, or permit use of
the Licensed Software by persons other than Licensee's employees
who have signed a confidentiality agreement consistent with the
terms and provisions herein, without Portal's prior written consent;
3.7 use any Licensed Software, or all the transfer, transmission,
export, or re-export of any Licensed Software or portion thereof
in violation of any export control laws or regulations
administered by the U.S. Commerce Department, OFAC, or any other
government agency. All the limitations and restrictions on the
Licensed Software in this Agreement also apply to the Documentation.
4. PAYMENTS AND TAXES
4.1 All payments due hereunder shall be made inside the U.S., in U.S.
dollars. In addition to any remedies Portal may have hereunder
or at law, any payments more than thirty (30) days overdue will
bear a late payment fee of 1.5% per month, or, if lower, the
maximum rate allowed by law. Delinquency in payment will result
in a delay or suspension of the Licensed Software implementation
timetable or services (including Support Services) provided by
Portal. Resumption of services will occur after Licensee has
brought itself current on all of its outstanding payment
obligations to Portal. The services will be scheduled in
accordance with the availability of Portal resources. Portal
will not be liable for any damages caused by rescheduling of
suspended services pursuant to this Section 4.1.
4.2 Licensee agrees to pay or reimburse Portal for all federal,
state, dominion, provincial, or local sales, use personal
property, payroll, excise or other taxes, fees, or duties arising
out of this Agreement or the transactions contemplated by this
Agreement (other than taxes on the net income of Portal.) If any
tax is payable by Licensee under this Section 4.2, then the
Licensee shall provide evidence of payment to Portal and Portal
shall use all reasonable efforts to obtain a credit, rebate, or
benefit for that amount against its own tax, and if it receives
such credit, rebate, or benefit it shall refund to Licensee an amount
equal to the lesser of the amount paid by Licensee and the
credit, rebate, or benefit obtained by Portal.
5. LICENSE FEE
In consideration of the rights granted herein, Licensee shall pay Portal
the license fee(s) as set forth in Schedule A.
6. MAINTENANCE AND TECHNICAL SUPPORT
6.1 Upon payment of the annual maintenance and support fee set forth
on Schedule A, Licensee shall be entitled to receive Updates and
technical support in accordance with Portal's Gold Level Support
Policy ("Support Services). Portal's current Gold Level Support
Policy appears at Schedule B. Support Services shall commence on
the Effective Date of this Agreement.
6.2 In the event Licensee fails to make any required Support Services
payment or otherwise elects to discontinue Support Services,
Portal shall have no obligation to provide the Support Services
described in this Section 6. In order to reinstate or renew
Support Services, Licensee must first pay Portal the then current
annual support services fee and all past support service fees.
In the event Licensee fails to make any required payment or in
the event Licensee breaches any of its obligations under the
Support Services provisions and such breach has not been cured
within thirty (30) days of receipt of notice of breach, Portal
may suspend or cancel Support Services. No updates of the
Licensed Software will be provided to Licensee and no updates may
be copied by Licensee to update any copies of the Licensed
Software unless Support Services have been purchased for such
copies, Support Services fees shall be billed on an annual basis,
payable in advance.
6.3 Portal shall have no obligation to support (a) altered, damaged
or modified Licensed Software (except as authorized by Portal) or
any portion of the Licensed Software incorporated into other
software, (b) Licensed Software that is not the then current or
immediately previous sequential release, (c) problems caused by
Licensee's negligence, abuse, or misapplication, or use of the
Licensed Software other than as specified in Portal's user
documentation or other causes beyond the control of Portal, or
(d) Licensed Software installed in an operating environment or
hardware environment for which the Licensed Software has not been
licensed. Portal shall have no liability for any changes in
Licensee's hardware which may be necessary to use the Licensed
Software.
6.4 Portal reserves the right to change its technical support
guidelines and procedures provided (i) Portal provides Licensee
with at lease sixty (60) days prior written notice of such
changes, and (ii) such changes do not diminish Portal's overall
technical support obligations to Licensee in any material regard.
7. RESTRICTED RELEASE
If Licensee is selected for participation and elects to participate in a
Restricted Release program, Licensee agrees (i) Portal shall have no
obligation to correct errors in or deliver updates to the Restricted
Release, (ii) Portal shall have no obligation to otherwise support the
Restricted Release, (iii) Licensee will provide Portal with appropriate
test data for the Restricted Release if necessary to resolve problems in
the Restricted Release encountered by Licensee and will promptly report to
Portal any error discovered in the Restricted Release, (iv) the Restricted
Release is experimental, may contain problems and errors and is being
provided to Licensee on an "AS-IS" basis with no warranty of any kind,
express or implied, (v) neither party will be responsible to the other for
any losses, claims or damages of whatever nature, arising out of or in
connection with the performance or nonperformance of the Restricted
Release, (vi) Licensee will not xxx the Restricted Release in production
applications without the prior written approval of Portal, and (vii)
Licensee will stop using and return or destroy any Restriction Release
promptly upon Portal's request.
8. TERMINATION
8.1 This Agreement commences on the Effective Date and will remain in
force until it is terminated.
8.2 Portal may, by written notice to Licensee, terminate this
Agreement if any of the following events ("Termination Events")
occur, provided that such termination will not relieve Licensee
of its payment obligations hereunder or otherwise entitle
Licensee to a refund of any portion which have been paid to Portal;
8.3 Licensee is in breach of this Agreement, which breach, if capable
of being cured, is not cured within thirty (30) days (ten (10)
days in the case of nonpayment) after Portal gives Licensee
written notice of such breach; or Portal may terminate this
Agreement immediately upon notice if Licensee breaches any of its
obligations under Section 3 above;
8.4 Licensee terminates its business activities or becomes insolvent,
admits in writing to inability to pay its debts as they mature,
makes and assignment for the benefit of creditors, or becomes
subject to direct control of a trustee, receiver or similar authority.
8.5 Termination will become effective immediately or on the date set
forth in the written notice of termination and any payment
obligations under this Agreement shall immediately become due and
owing. Termination of this Agreement will not affect the
provisions regarding Licensee's or Portal's treatment of
Confidential Information, provisions relating to the payments of
amounts due, provisions limiting or disclaiming Portal's
liability, and/or provisions regarding applicable law, which
provisions will survive termination of this Agreement.
8.6 Upon termination, all licenses granted hereunder shall cease to
be effective and Licensee shall immediately cease all use of any
affected Licensed Software, Documentation and Portal Confidential
Information.
8.7 Within fourteen (14) days of the date of termination or
discontinuance of this Agreement for any reason whatsoever,
Licensee shall return the Licensed Software, derivative works and
all copies thereof, in whole or in part, all related
Documentation and all copies thereof, and any other Confidential
Information in its possession. Licensee shall furnish Portal
with a certificate signed by an executive officer of Licensee
verifying that the same has been done.
8.8 Termination is not an exclusive remedy and all other remedies
will be available whether or not termination occurs.
9. PATENT AND COPYRIGHT INDEMNITY
9.1 Portal will defend and indemnify Licensee for all costs
(including reasonable attorneys fees) arising from a claim that
the Licensed Software infringes a copyright or patent provided
that (i) Licensee notifies Portal in writing within thirty (30)
days of the claim (ii)Portal has sole control of the defense and
all related settlement negotiations, and (iii) Licensee provides
Portal with the assistance, information, and authority necessary
to perform the above; reasonable out-of-pocket expenses incurred
by Licensee in providing such assistance will be reimbursed by Portal.
9.2 Portal shall have no liability for any claim of infringement
based on (i) use of a superseded or altered release of the
Licensed Software, except for which alteration(s) or
modification(s) has been made by Portal or under Portal's
direction, if such infringement would have been avoided by the
use of the current unaltered release of the Licensed Software
that Portal provides to Licensee, or (ii) the combination,
operation, or use of any Licensed Software furnished under this
Agreement with programs or data not furnished by Portal if such
infringement would have been avoided by the use of the Licensed
Software without such programs or data.
9.3 In the event that the Licensed Software is held or believed by
Portal to infringe, or Licensee's use of the Licensed Software is
enjoined, Portal shall have the option, at its expense, to (a)
modify the Licensed Software to be noninfringing, (b) obtain for
Licensee a license to continue using the Licensed Software, (c)
substitute the Licensed Software with other software reasonably
suitable to Licensee, or (d) if none of the foregoing remedies
are commercially feasible, terminate the license for the
infringing Licensed Software and refund the fees paid for that
Licensed Software, prorated over a five-year term from
the Effective Date of this Agreement or applicable amendment or
additions schedule. This Section 9.3 states Portal's entire
liability for infringement.
10. WARRANTY
10.1 Portal warrants that it has title to and/or the authority to
grant licenses of the Licensed Software.
10.2 Portal warrants to Licensee that the Licensed Software will
perform in substantial accordance with the Documentation for a
period of ninety (90) days from the Effective Date. If the
Licensed Software does not perform as herein warranted, Portal
shall undertake at its own expense to correct the non-conforming
part of the Licensed Software. If correction is not reasonably
possible or commercially practicable, Portal shall refund the
monies paid by Licensee for that non-conforming Licensed Software.
10.3 Portal warrants that the Licensed Software is designed to be used
prior to, during and after the calendar year 2000 and that the
Licensed Software will operate during each such time period
without error relating to, or the product of, date data which
references different centuries or more than one century. If the
Licensed Software does not perform as warranted, Portal shall
undertake at its own expense to correct the non-conforming part
of the Licensed Software, or if correction is reasonably not
possible, replace such non-conforming part of the Licensed
Software, or if correction is reasonably not possible, replace
such non-conforming part of the Licensed Software free of charge.
If neither of the foregoing is commercially practicable, Portal
shall refund the license and annual maintenance support fees paid
by Licensee for the non-conforming Licensed Software. If a
refund is made in the manner herein contemplated, the parties
will amend the definition of "Licensed Software" in Section A to
reflect the same. The foregoing Year 2000 Warranty shall not
apply (i) if the Licensed Software is used or interfaced with
other software, data or operating systems which are not Year 2000
compliant, (ii) if the Licensed Software has been modified in a
manner not authorized by Portal, or (iii) if Licensee fails to
install an Update if the non-compliance would have been avoided
by installation of such Update. THE FOREGOING ARE LICENSEE'S
SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY.
10.4 Portal's warranty obligations as set forth above are made to and
for the benefit of Licensee only and shall be enforceable against
Portal only if:
10.4.1 The Licensed Software has been properly installed and
has been used at all times in accordance with the
Documentation and this Agreement;
10.4.2 All modifications, alterations or additions to the
Licensed Software, if any, have been made using
Licensed Software Customization Tools provided by
Portal to Licensee; and
10.4.3 Licensee has not made or caused to be made
modifications, alterations or additions to the Licensed
Software that cause it to deviate from the
Documentation.
10.5 Except as set forth in this Section 10, Portal makes no
warranties, whether express or implied, or statutory regarding or
relating to the Licensed Software or the Documentation, or any
materials or services furnished or provided to Licensee under
this Agreement. Specifically, Portal does not warrant that the
Licensed Software will be error free or will perform in an
uninterrupted manner. To the maximum extent allowed by law,
Portal specifically disclaims all implied warranties of
merchantability and fitness for a particular purpose (even if
Portal had been informed of such purpose) with respect to the
Licensed Software, Documentation and support and with respect to
the use of any of the foregoing.
11. LIMITATION OF LIABILITY
11.1 IN NO EVENT WILL PORTAL OR ITS SUBCONTRACTORS BE LIABLE FOR ANY
LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF
DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OR ANY KIND IN CONNECTION WITH OR ARISING
OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE LICENSED
SOFTWARE OR SERVICES PERFORMED HEREUNDER OR ANY DELAY IN DELIVERY
OR FURNISHING THE LICENSED SOFTWARE OR SAID SERVICES WHETHER
ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING
NEGLIGENCE, EVEN IF PORTAL HAD BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE.
11.2 PORTAL'S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT
OR ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER
ARISING OR CAUSED, WHETHER OR NOT ARISING FROM PORTAL'S
NEGLIGENCE, SHALL IN NO EVENT BE GREATER THAN (A) IN THE EVENT
SUCH DAMAGE IS NOT RELATED TO SUPPORT, THE LICENSE FEE SPECIFIED
IN SCHEDULE A RELATED TO THE PARTICULAR LICENSED SOFTWARE PROGRAM
WHICH CAUSED THE DAMAGE OR LOSS, OR (B) IN THE EVENT SUCH DAMAGE
OR LOSS IS RELATED TO SUPPORT, THE SUPPORT FEES PAID BY LICENSEE
FOR THE THEN CURRENT SUPPORT TERM.
11.3 No employee, agent, representative or affiliate of Portal has
authority to bind Portal to any oral representations or warranty
concerning the Licensed Software. Any written representation or
warranty not expressly contained in this Agreement is
unenforceable.
12. AUDIT RIGHTS/QUARTERLY REPORTS
12.1 Licensee shall keep and maintain full, accurate and detailed
records regarding its obligations under this
Agreement and the number of Subscribers of the Licensed Software
Database. Portal of its representatives shall be entitled to
review and audit such books and records and/or Licensee's
compliance with the provisions of this Agreement from time to
time during normal business hours by providing written notice to
Licensee at least ten (10) business days prior to such audit. If
any such audit reveals a deficiency in any amounts due to Portal
hereunder, Licensee will immediately pay such amounts as are
required to re-establish compliance with the terms of this Agreement.
12.2 Commencing ninety (90) days from the Effective Date, Licensee
will provide Portal with calendar quarterly reports setting forth
the total number of Subscribers. Licensee will provide Portal
with all such reports and any payments required hereunder within
thirty (30) days of the end of each calendar quarter.
13. ASSIGNMENT/BINDING AGREEMENT
Neither this Agreement nor any rights under this Agreement may be assigned
or otherwise transferred by Licensee (by operation of law or otherwise), in
whole or in part, including by way of merger, acquisition or sale of all or
substantially all of the voting rights in one or more related transactions,
without Portal's prior written consent.
14. CONFIDENTIALITY
14.1 Each party acknowledges that the Confidential Information
constitutes valuable trade secrets and each party agrees that it
shall use the Confidential Information of the party solely in
accordance with the provisions of this Agreement and it will not
disclose, or permit to be disclosed, the same directly or
indirectly, to any third party without the other party's prior
written consent. Each party agrees to exercise due care in
protecting the Confidential Information from unauthorized use and
disclosure. However, neither party bears any responsibility for
safeguarding any information that it can document in writing (i)
is in the public domain through no fault of its own, (ii) was
properly known to it, without restriction, prior to disclosure by
Disclosing Party, (iii) was properly disclosed to it, without
restriction, by another person with the legal authority to do so,
(iv) is independently developed by Receiving Party without use or
reference to Disclosing Party's Proprietary Information or (v) is
required to be disclosed pursuant to a judicial or legislative
order or proceeding; provided that, to the extent permitted by
and practical under the circumstances. Receiving Party provides
to Disclosing Party prior notice of the intended disclosure and
an opportunity to respond or object to the disclosure and an
opportunity to respond or object to the disclosure or if prior
notice is not permitted or practical under the circumstances,
prompt notice of such disclosure.
14.2 In the event of actual or threatened breach of the provisions of
Section 3 or Section 14, the non-breaching party will be entitled
to immediate injunctive and other equitable relief, without bond
and without the necessity of showing actual damage.
15. NOTICE
Any notice required or permitted under the terms of this Agreement or
required by law must be in writing and must be (a) delivered in person, (b)
sent by registered mail, return receipt requested, (c) sent by overnight
air courier, or (d) by facsimile, in each case forwarded to the appropriate
address set forth above. Either party may change its address for notice by
written notice to the other party. Notices will be considered to have been
given at the time of actual delivery in person, three (3) business days
after posting, or one day after (i) delivery to an overnight air courier
service of (ii) the moment of transmission by facsimile.
16. MISCELLANEOUS
16.1 FORCE MAJEURE. Neither party will incur any liability to the
other on account of any loss or damage resulting from any delay
or failure to perform all or any part of this Agreement is such
delay or failure is caused, in whole or in part, by events,
occurrences, or causes beyond its control and without negligence
of the parties. Such events, occurrences or causes will include,
without limitation, acts of God, strikes, lockouts, riots, acts
of war, earthquakes, fire and explosions, but the ability to meet
financial obligations is expressly excluded.
16.2 WAIVER. Any waiver of the provisions of this Agreement or of a
party's rights or remedies under this Agreement must be in
writing to be effective. Failure, neglect or delay by a party to
enforce the provisions of this Agreement or its rights or
remedies at any time will not be construed to be deemed a waiver
of such party's rights under this Agreement and will not in any
way affect the validity of the whole or any part of this
Agreement or prejudice such party's right to take subsequent action.
16.3 SEVERABILITY. If any term, condition or provision in this
Agreement is found to be invalid, unlawful or unenforceable to
any extent, the parties shall endeavor in good faith to agree to
such amendments that will preserve, as far as possible, the
intentions expressed in this Agreement. If the parties fail to
agree on such an amendment, such invalid term, condition or
provision will be severed from the remaining terms, conditions
and provisions, which will continue to be valid and enforceable
to the fullest extent permitted by law.
16.4 PORTAL LICENSORS. The parties acknowledge that the Licensed
Software may contain software licensed by Portal from third
parties ("Portal Licensors"). Portal Licensors may be direct and
intended third party beneficiaries
of this Agreement and may be entitled to enforce it directly
against Licensee.
16.5 ENTIRE AGREEMENT. This Agreement (including the Schedules and
any addenda hereto signed by both parties) contains the entire
agreement of the parties with respect to the subject matter of
this Agreement and supercedes all previous communications,
representations, understandings and agreements, either oral or
written, between the parties with respect to said subject matter.
16.6 STANDARD TERMS OF LICENSES. No terms, provisions or conditions
of any purchase order, acknowledgement or other business form
that Licensee may use in connection with the acquisition or
licensing of the Licensed Software will have any effect on the
rights, duties or obligations of the parties under, or otherwise
modify, this Agreement, regardless of any failure of Portal to
object to such terms, provisions, or conditions.
16.7 PUBLIC ANNOUNCEMENTS/PUBLICITY. Licensee and Portal agree to
cooperate regarding public relations activities, including public
announcements, joint press releases, and other activities to be
mutually agreed. Neither party will perform such activities
without the prior written consent of the other party, which
consent shall not be unreasonably withheld.
COUNTERPARTS. This Agreement may be executed in counterparts,
each of which so executed will be deemed to be an original and
such counterpart together will constitute one and the same Agreement.
16.8 APPLICABLE LAW. This Agreement will be interpreted and construed
pursuant to the laws of the State of California and the United
States without regard to conflict of laws provisions thereof, and
without regard to the United National Convention on the
International Sale of Goods. Any legal action or proceeding
relating to this Agreement shall be instituted in a state or
federal court in Santa Xxxxx County, California. Portal and
Licensee agree to submit to the jurisdiction of, and agree that
venue is proper in, these courts in any such action or
proceeding. This prevailing party in any action to enforce this
Agreement will be entitled to recover its attorney's fees and
costs in connection with such action. Licensee represents that
it is not a government agency and it is not acquiring the license
pursuant to a government contract or with government funds.
IN WITNESS WHEREOF, the authorized representatives of the parties hereby
bind the parties by signing below:
NETVOICE TECHNOLOGIES
"Licensee"
By:_______________________________
Print Name:_______________________
Title:____________________________
Date:_____________________________
PORTAL SOFTWARE, INC.
"Portal"
By:_______________________________
Print Name:_______________________
Title:____________________________
Date:_____________________________
SCHEDULE A
SECTION 1.0 LICENSED SOFTWARE
The following Portal Software products and their associated online
documentation will be provided by Portal and will comprise the "Licensed
Software:"
* Infranet(R), including Infranet Server, Infranet Developer,
Infranet Administrator, Infranet Payment Tool, Infranet Pricing
Tool, Policy Configuration Tool, Invoice Designer Tool, Infranet
Reports;
* Infranet IPT Manager
SECTION 2.0 APPLICATION DESCRIPTION/PLATFORM/INITIAL SUBSCRIBER LIMIT
2.1 Application: (i) Billing and customer management of Tier 1
Subscribers of Licensee's Consumer Voice-over-IP
services: including customer of Licensee's Prepaid
Calling Card, and "Flat-Rate-One Plus" services. The
Licensed Software will only be used for IP Telephony
services.
(ii) Billing and customer management of Tier 2
Subscribers of Licensee's Wholesale Voice over IP
services. The Licensed Software will only be used for
IP Telephony services.
2.2 Platform (O/S): Solaris
2.3 Initial Subscriber Limit:
(i) 20,000 Tier 1 Subscribers
(ii) 15 Tier 2 Subscribers for up to a total 15,000,000 minutes per month
SECTION 3.0 INSTALLATION SITES
3.1 Production Site: NetVoice Technologies, 00000 Xxxxxxxx Xxxxx, Xxxxx
000, Xxxxxx, XX 00000
3.2 Development Site: NetVoice Technologies, 00000 Xxxxxxxx Xxxxx, Xxxxx
000, Xxxxxx, XX 00000
3.3 Backup Site: NetVoice Technologies, 00000 Xxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, XX 00000
SECTION 4.0 LICENSE AND MAINTENANCE SUPPORT SERVICE FEES
4.1 Software License Fees
The following table sets forth the license fees for the Licensed
Software for the above-stated Application for up to the number of
Subscribers set forth in Section 2.0.
Licensed Tier 1 Tier 2 Payment Due Date
Software Subscriber Subscriber
Component License Fees License Fees
Infranet $40,000.00 $50,000.00 See Section 5.0 below
4.2 Annual Gold Level Support Services Fees
Portal will provide Gold Level Maintenance Support Services in
accordance with Schedule B ("Support Services") for up to the number of
Subscribers set forth in Section 2.0 for one (1) year from the Effective
Date for the fees set forth below. Support Services will be automatically
renewed in one-year periods unless Licensee terminates such Support
Services by providing written notice to Portal at least sixty (60) days
prior to the end of the then-current annual support services term. Portal
agrees to offer Support Services for at least three (3) years from the
Effective Date.
Portal Support Services Annual Fee Annual Payment Date
Gold Level Support Services $18,000.00 Effective Date and each
anniversary thereafter
4.3 Additional Subscriber License and Support Service Fees
For up to two (2) years from the Effective Date ("Option Period")
Licensee shall be entitled to use the Licensed Software listed in Section
1.0 above for the designated Application in connection with additional
Subscribers ("Additional Subscribers") provided Licensee shall pay the
amounts set forth in the following table. Additional Subscribers must be
licensed in the incremental blocks specified and not one at a time.
Associated Annual Support Services fees are due when Additional Subscribers
are licensed but will be prorated over the remainder of the annual Support
Services term during which they are added.
4.3.1 Additional Tier 1 Subscribers
Subscribers in License Fee License Fee Per Annual Gold
Block Per Subscriber Block Support Services
Fee Per Block
25,000 $2.00 $50,000.00 $10,000.00
4.3.2 Additional Tier 2 Subscribers
Subscribers in Minutes per License Fee Per Annual Gold
Block Month per Block Block Support Services
Fee Per Block
15 15,000,000 $50,000.00 $10,000.00
SECTION 5.0 PAYMENT SCHEDULE
Licensee agrees to make payment in accordance with the following table:
DESCRIPTION AMOUNT PAYMENT DUE DATE
License Fee $90,000.00 Effective Date
Annual Gold Support Payment $18,000.00 Effective Date
Basic Infranet Developer
Training $2,500.00 per Within 30 days
student of Invoice Date
Advanced Infranet Developer
Training $2,500.00 per Within 30 days
student of Invoice Date
