Exhibit 10.5
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (the "Agreement") is entered into this day of
September 23, 1998 between H.O. SOFTWARE, INC., a corporation having its
offices at 0 Xxxx Xxxxx, Xxxxx 0000, Xxxxxxxx, XX 00000, hereafter referred
to as "H.O." and American Cellular Corporation, having its principal office at
0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx XX, 00000 hereafter referred to as
Customer".
WHEREAS, Customer desires to obtain a limited nonexclusive license
right to use the H.O. Cellular information Management System gown as H.O. CIMS
billing and information management licensed Software (the "Licensed Software")
as described below, in each and every Cellular Market operated by Customer, and
WHEREAS. H.O. desires to license the Licensed Software to Customer
upon the terms and condition set forth in the Agreement, for use in each and
every Cellular Market operated by Customer.
THEREFORE. In consideration of the above declarations and the
covenants and conditions set forth in this Agreement, the parties agree as
follows:
1. GRANT; LICENSE FEE. In consideration of the payment of a one time
license fee of $1.00 H.O. hereby grants to Customer nontransferable,
nonexclusive license to use the Licensed Software. The initial term of
this Agreement will commence on January 1, 1999 ("the Effective Date")
and will end on the 3rd anniversary of the effective date unless
terminated earlier in accordance with the provisions of this Agreement.
Thereafter, the term of this Agreement will automatically extend for
successive one year periods after such anniversary date unless either
of the parties notifies the other party in writing at least 90 days
prior to such anniversary date, or 90 days prior to the end of any such
one year extension period as the case may be, that this Agreement will
not be so extended. Within sixty, (60) days after each anniversary of
the Effective Date, H.O. may increase the maintenance fees by no more
than the increase in the Consumer Price Index for the prior year during
the initial term of this Agreement.
2. LIMITATIONS ON USE. Customer shall use the Licensed Software only on
Central Processing Units provided and designated by H.O. (the
"Designated CPU"). Customer may make (1) backup copy of the Licensed
Software, for backup purposes, which must display the copyright notice
and information relating to the proprietary rights as they appear in
the Licensed Software. Customer shall not decompile disassemble, or
reverse engineer any portion of the Licensed Software. Customer shall
not allow the Licensed Software to be used for time-sharing or service
bureau, or any similar purpose.
3. CONFIDENTIALITY
A. Both parties acknowledge that the will possess Confidential
information of the other party, including the other's
proprietary or business information, the other's trade secrets
as well as, the Licensed Software, and other vital data on the
Customer's business. Each party will use Commercially
reasonable efforts, but not less stringent than the means that
it uses to protect its own confidential information, to
prevent the
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disclosure and to protect the confidentiality of written
information received from the other party which is marked or
identified as confidential, or which relates to the number of
subscribers (collectively, "Confidential Information"). Each
party will use Confidential Information received from the
other party only in connection with the purposes of this
Agreement. The provisions of this Paragraph (3) will not
prevent either party from disclosing its own Confidential
Information or from disclosing Confidential Information which
is (a) already known by the recipient party without an
obligation of confidentiality; (b) publicly known or becomes
publicly known through no unauthorized act of the recipient
party; (c) rightfully received from a third party; or (d)
required to be disclosed pursuant to a requirement of a
governmental agency or law so long as the disclosing party
provides the other party with notice of such requirement prior
to any such disclosure. This provision shall survive the
termination or expiration of this Agreement. Specific pricing
terms of this Agreement shall be considered Confidential
Information by both parties.
B. The term "Confidential Information" as used above shall also
include any and all terms and provisions of this Agreement,
including, without limitation, the pricing terms set forth in
or related to this Agreement (the "Pricing Terms"). In
addition to Customer's obligations set forth in Paragraph A
above, Customer shall at all times use its best efforts to
prevent the disclosure and protect the confidentiality of the
Pricing Terms. Customer shall not disclose any Pricing Term or
aspect thereof whatsoever to any person whatsoever unless (a)
expressly authorized in writing by H.O., or (b) Customer is
legally compelled to make such disclosure and Customer has
furnished H.O. prompt notice of such fact (so that H.O. may
seek an appropriate protective order or other remedy) and a
written opinion of its counsel reasonably acceptable to H.O.
opining that Customer is required to make such a disclosure or
else stand liable for contempt or suffer other material
censure or material penalty. In the event disclosure is
permitted under clause (b), Customer shall use its best
efforts to obtain reliable assurance that confidential
treatment will be accorded the Confidential Information so
disclosed.
C. H.O. and Customer acknowledge and agree that it may be
difficult, if not impossible, to accurately determine the
amount of damaged that H.O. will incur if Customer breaches or
otherwise fails to comply with Paragraph 13 above.
Accordingly, the parties agree that as liquidated damages for
such breach or noncompliance Customer shall pay immediately an
amount equal to 2 times the xxxxxxxx charged by H.O. under the
Agreement for the month immediately preceding the month during
which the breach or noncompliance occurred. In addition to
such liquidated damages or any other remedy available to H.O.
and in addition to and notwithstanding Section 10 below, upon
such breach or noncompliance with Paragraph B, H.O. shall have
the right to immediately (without opportunity to cure)
terminate this Agreement including, without limitation, all
licenses granted thereunder, at its sole discretion upon
notice to Customer as of the date specified in such notice of
termination; provided, however, that if H.O. fails to exercise
such termination right, Customer shall remain obligated to pay
the liquidated damages in addition to any other amounts due
H.O. under the Agreement, and neither the failure nor the
delay in exercising any right, power or privilege under this
Paragraph C will operate as a waiver of such right, power or
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privilege and no single or partial exercise of any such right,
power or privilege by H.O. will preclude any other or further
exercise of such right, power or privilege or the exercise of
any other right, power or privilege.
D. Customer agrees to indemnify and hold H.O. harmless from any
damages, loss, cost, or liability (including legal fees and
the cost of enforcing this indemnity) arising out of or
resulting from any unauthorized use or disclosure by Customer
or Customer's employees or agents of the Confidential
Information or other violation of this Section 3. In addition,
because an award of money damages (whether pursuant to the
foregoing sentence or otherwise) would be inadequate for any
breach of this Agreement by Customer of Customer's employees
or agents and any such breach would cause H.O. irreparable
harm, Customer also agrees that, in the event of any breach or
threatened breach of this Agreement H.O. will also be
entitled, without the requirement of posting a bond or other
Security, to equitable relief, including injunctive relief and
specific performance. No right or remedy conferred upon H.O.
by any provision of this Agreement is intended to be exclusive
or any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or
now or thereafter existing at law or in equity or otherwise.
4. WARRANTY. H.O. warrants that it his the power and Authority to grant
this License to Customer and that the Licensed Software will be free
from material errors. H.O, also warrants that the Licensed Software
will perform substantially in compliance with the Specifications of the
cellular telephone industry standards applicable to the Services to be
performed, including roaming clearinghouse standard for the processing
or roaming records as promulgated from time to time contained in the
software. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES
DRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF MERCHANTABILITY.
5. INSTALLATION AND TRAINING.
X. X.X. shall provide initial training, free of charge, at each
file server location, or where deemed appropriate by Customer
and H.O., in the operation and use of the Licensed Software
and associated systems either at the Customer's site or in
Savannah, Georgia, as requested by Customer. Reasonable out of
pocket expenses, such as travel, meals and lodging, shall be
paid by Customer. Training shall consist of the following:
Installation and optimization of all computer network
components.
Understanding accounting, monthly, and daily reports.
Administration of A/R collection procedures.
Work order, payment, and adjustment processing.
Switch Manager (if applicable)
Table updates and changes
Roamer distribution (incollects and outcollects).
Documentation.
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B. Any additional training requested by Customer shall be at the
hourly rate of $95.00. The Customer shall reimburse H.O. for
all reasonable out of pocket expenses, such as travel, meals
and lodging, incurred by H.O. in connection with any
additional training requested by Customer.
C. H.O. shall invoice Customer on a monthly basis following the
final xxxx run for the month, a maintenance fee equal to the
greater of:
i) the sum of:
(1) $1.65 for each active phone from 0 to 75,000
(2) $1.50 for each active phone from 75,001 to 150,000
(3) $1.46 for each active phone from 150,001 to 225,000
(4) $1.32 for each active phone from 225,001 to 350,000
(5) $1.00 for each active phone from 350,001 and up.
ii) $3,000.00 per file server Site
iii) $1.00 for each noncellular/PCS service, LDX, paging
& internet.
6. MAINTENANCE. The maintenance pricing fee covers (a) all updates and
modifications as requested by Customer which H.O. furnishes without
charge to all Customers of the Licensed Software (software releases)
and (b) telephone support from 3:00 AM 6:00 PM Eastern Standard Time,
Monday through Friday, except holidays. Maintenance shall be performed
from remote location through the use of one, or more if necessary,
frame relay or equivalent connection to H.O. offices. The expense of
such lines shall be passed through to, and paid for by the Customer.
All updates and modification will be furnished in operable condition.
The maintenance fee does not cover "customizations". Customizations are
substantial modifications to the Licensed Software made on behalf of
Customer and not furnished to all other H.O. clients. Customizations,
if feasible, shall be made at Customers written request, at the rate of
$100.00 per man-hour. Customer shall not make any modifications or
additions to the Licensed Software or derivative works of the Licensed
Software without the prior written consent of H.O. H.O. shall not be
responsible for maintenance or support of any portion of the Licensed
Software affected by modifications, additions, or derivative works made
by the Customer H.O. shall have sole and exclusive rights in and
ownership of all additions to, modifications, derivative works, and
customizations of the Licensed Software. Customer will afford to the
representatives of H.O. access, during normal business hours, to
Customer's premises sufficient to enable H.O. to inspect, repair,
replace or remove any equipment or other assets of H.O. installed or
otherwise present on Customer's premises.
X. X.X. Software shall provide roaming distribution for Customer
at no additional charge. Roaming distribution is considered
the processing of Customer outcollects, timely delivery of
those records to the appropriate clearinghouse and timely
delivery of incollects as they are received from the
appropriate clearinghouse for inclusion in Customers monthly
billing process. Timely is defined is the submission of
outcollect messages to the appropriate clearinghouse within 30
days of the call occurrence, or the industry standard as
defined by Cibernet Corp. of Washington DC, whichever is
shorter.
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B. H.O. Software will contract with a third party vendor (or
print and mail services for Customers' monthly xxxx processing
(including postage, printing, stuffing. mailing, micro
fiche/CD Rom). Customer may also transmit xxxxxxx messages to
the printing vendor supplying print and mail services. Upon
receipt of the printers xxxx image tape or electronic
transmission from Customer, H.O. guarantees a turnaround time
of three (3) days if the tape or electronic transmission is in
readable format. In the event H.O. is unable to provide
printing services Customer shall, in addition to any other
rights it may possess, have the right to contract directly
with any third party, including H.O.'s vendor, for printing
services. All costs associated with this Paragraph B shall be
the responsibility of the Customer.
C. H.O will provide the necessary computer equipment for Customer
use during the term or terms of the Agreement. This equipment
does not include any adjunct processors needed for
communication to or from the switch for call collection and/or
service provisioning or any point-of-sale equipment. The right
to title of ownership of the equipment shall be retained by
H.O. Software. Provision of the computer hardware shall
include the Designated CPU; printer, necessary tape drive
devices; I/O terminal device server for remote offices and &
high- speed modem for maintenance communications. H.O. will
not provide cables or cabling, services, back up tapes,
terminals or paper stock for reports and/or xxxxxxx notices.
H.O. shall be responsible for the maintenance, repair,
upgrade, and replacement of the computer hardware in the event
of failure or factory defects (excluding misuse, abuse,
neglect, or natural disaster) during the term of this
Agreement. In the event of a failure, replacement components
shall be shipped via overnight carrier to Customer.
D. H.O. will maintain enough memory (RAM) and disk drive space to
provide on line retrieval of six (6) months call detail and 12
months account level detail inclusive of memos and work
orders. Postage and shipping charges shall be paid by the
shipping party in all cases for the shipment of repaired or
replacement pans. All costs arising from the maintenance,
repair or replacement of the hardware resulting from
lightning, electrical surges or Acts of God shall be the
responsibility of the Customer.
7. LIMITATION OF LIABILITY, H.O.'s LIABILITY FOR ALL DAMAGES OCCURRING
UNDER THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER EXCEPT
INTENTIONAL, WILLFUL MALFEASANCE SHALL NOT EXCEED THE AVERAGE OF THE
THREE PREVIOUS MONTHS MAINTENANCE FEES PAID BY CUSTOMER.
NOTWITHSTANDING ANY OTHER PROVISION CONTAINED HEREIN, H.O. SOFTWARE
SHALL IN NO WAY BE LIABLE FOR LOST PROFITS, LOST COMPUTER TIME, OR ANY
OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES. THE OCCURRENCE OF ANY LOSS
REIMBURSED TO CUSTOMER UNDER THIS PROVISION SHALL BE IN THE FOAM OF
CREDITS AGAINST OUTSTANDING INVOICE BALANCES DUE TO H.O.
8. INFRINGEMENT INDEMNITY. Notwithstanding anything to the contrary in
this Agreement, H.O. will, at its own expense, defend any action
brought against Customer to the extent such action is based on a claim
that the Licensed Software, used within the scope of the license
granted herein, infringes a copyright perfected under United States
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statute, infringes a patent granted under United States law, or
constitutes an unlawful disclosure, use, or misappropriation of another
party's trade secrets or similar property right. H.O. Software will
bear the expense of such defense and pay any damages and attorneys'
fees finally awarded by a court of competent jurisdiction which are
attributable to such claim, provided that Customer notifies H.O
Software promptly in writing of the claim, and that Customer allows H.O
Software to fully direct the defense or settlement of such claim. H.O.
will not be responsible for any settlement or compromise made without
its consent. Should the Licensed Software, or any component thereof,
become, or in H.O.'s reasonable opinion, be likely to become, the
subject of a claim subject to the provisions of this Section 8, then
H.O. may, at its option, use commercially reasonable means to procure
for the Customer the right to continue using the Licensed Software so
that it becomes non-infringing provided that the level of services
rendered to Customer will be materially equivalent to the services
rendered prior to such replacement or modification.
9. NO TRANSFER OR EXPORT. Except to a wholly owned subsidiary, Customer
shall not assign, sub license, or otherwise transfer, in whole or in
part, this Agreement or any license or right granted hereunder, and
Customer shall not permit any such assignment, sub license, or other
transfer without H.O's written consent Customer shall not export the
Licensed Software outside of the United States without the prior
written consent of H.O.. H.O. may at its sole discretion assign or
otherwise transfer its rights and obligations under this Agreement to
any third party, whether or not affiliated with H.O., upon notice to
Customer of such assignment or transfer, with such assignment or
transfer being effective as of the date specified in such notice.
10. DEFAULT AND TERMINATION.
A. Termination for cause. Except as provided in Section 3, in the
event that either party hereto materially defaults in the
performance of any of its duties or obligations hereunder,
which default shall not be substantially cured within 30 days
after written notice is given to the defaulting party
specifying the default, or, with respect to any default which
cannot be reasonably cured within 30 days, if the defaulting
party fails to proceed within 30 days to Commence curing said
default and thereafter to proceed expeditiously to
substantially cure the same, then the party not in default
may, by giving written notice thereof to the defaulting party,
terminate this Agreement as of a date specified in such notice
of termination.
B. If Customer fails to comply with Paragraph 2, 3.A, or 9, then
the provisions of Section 10.A apply, except to the extent a
different remedy is otherwise specified. Upon termination of
the Agreement pursuant to Section 3 or Section 10.A, the
License granted hereunder shall cease and Customer shall
immediately destroy the Licensed Software and any related
materials, equipment or other assets, unless H.O. requests, in
writing, the return of any such materials. In this event, such
materials shall be immediately returned. Customer shall
furnish H.O. with a written certificate stating that the
original Licensed Software and any backup copies of the
Licensed Software in the Customer's possession have been
destroyed. Notwithstanding any provisions contained herein, if
notification to
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terminate this Agreement is received from the Customer during
the initial term, the Customer agrees to reimburse H.O. for
hardware purchases, start up expenses, and installation
expenses incurred by H.O..
11. GENERAL. This Agreement shall constitute the entire agreement between
the parties and supersedes all prior agreements and understandings
between the parties with respect to the subject matter hereof Subject
to the limitation contained in Section 9 of this Agreement, this
Agreement shall be binding on the parties and their respective
successors and assigns. This Agreement shall not be modified except by
written document signed by both parties. This Agreement shall be
governed by the laws of the State of Georgia. Any waiver of any breach
of any provision of this Agreement shall not operate is a waiver of any
subsequent breach. If any provisions of this Agreement are held invalid
or unenforceable, the validity and enforceability of the remaining
provisions shall in no way be affected or impaired thereby.
Customer represents that it has read this Agreement and understands and agrees
to all terms and conditions stated herein.
ACCEPTED: ACCEPTED:
H.O. SOFTWARE, INC. AMERICAN CELLULAR
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/s/ Xxxxxxx X. Xxxx /s/ Xxxx Xxxxx
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Signature: Signature:
NAME: XXXXXXX X. XXXX NAME: XXXX XXXXX
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TITLE: PRESIDENT TITLE: CHIEF EXECUTIVE OFFICER
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