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EXHIBIT 10.5
GEOTEL COMMUNICATIONS CORPORATION
AGREEMENT # 20-810816
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SOFTWARE LICENSE AND TECHNICAL SUPPORT AGREEMENT
This Agreement is entered into between GeoTel Communications Corporation, a
Delaware corporation with its principal place of business at 00 Xxxxxx Xxxx,
Xxxxxxxxx, XX 00000 ("GeoTel") and MCI Telecommunications Corporation, a
Delaware Corporation with a principal place of business at 0000 Xxxxxxxxxxxx
Xxxxxx, XX, Xxxxxxxxxx, XX 00000 ("Licensee") as of June 17, 1996 (the
"Effective Date").
WHEREAS, GeoTel is in the business of licensing software and related
documentation that provide and support call management services, and further
makes available related technical support, configuration and installation
services, and other support services; and
WHEREAS, GeoTel and Licensee desire to establish the terms and conditions,
including without limitation pricing, pursuant to which Licensee as well as
Licensee Affiliates and Alliance Partners, as such terms are defined below, can
elect to obtain licenses to copies of such GeoTel software and documentation and
further obtain such services, all on a worldwide basis.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
promises set forth below, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS
As used throughout this Agreement, the following terms shall have the meanings
set forth below unless otherwise indicated:
1.1 "ACCELERATION FEE" shall have the meaning set forth in Section 11.3 E
(iii).
1.2 "ACCEPTANCE PERIOD" shall have the meaning set forth in Section 7.1.
1.3 "ADDITIONAL ACCEPTANCE PERIOD" shall have the meaning set forth in
Section 7.2.
1.4 "ADDITIONAL SERVICES" shall have the meaning set forth in
Section 11.4.
1.5 "AFFILIATE" of a named party or other entity shall mean a corporation,
partnership, joint venture or other entity controlling, controlled by or under
common control with such party or other entity. Licensee's Affiliates as of the
Effective Date are set forth on Exhibit A ("Affiliates and Alliance Partners")
attached hereto and incorporated herein by this reference.
1.6 "ALLIANCE PARTNER" shall mean any person or legal entity (i) in which
Licensee or
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an Affiliate thereof has an equity ownership of at least twenty percent (20%) or
(ii) with which Licensee or an Affiliate thereof has an agreement requiring or
permitting (x) the large-scale licensing of technology to such person or entity
or (y) the exclusive distribution of one or more products or services by such
person or entity. Licensee's Alliance Partners as of the Effective Date are set
forth on Exhibit A.
1.7 "AUTHORIZED PLATFORM" shall mean a central processing unit certified by
GeoTel as capable of running the Programs in conformity with the applicable
Specifications.
1.8 "COMMENCEMENT DATE" shall mean the date on which Licensee receives the
applicable Installation Certificate, as defined below, from GeoTel pursuant to
Section 11.2A.2 in connection with GeoTel's installation of Programs and/or
Designated Computers hereunder.
1.9 "CONFIDENTIAL INFORMATION" shall have the meaning set forth in Section
8.1 A.
1.10 "CONTRACT YEAR" shall have the meaning set forth in Section 2.4.
1.11 "CORRECTION PERIOD" shall have the meaning set forth in
Section 7.1.
1.12 "CRITICAL SITUATION" shall have the meaning set forth in Section 11.1
B 1(i).
1.13 "CURRENT RELEASE" shall have the meaning set forth in
Section 11.1 D.
1.14 "CUSTOMER" shall mean a third party which obtains products and/or
services provided by Licensee which utilize the Program(s).
1.15 "DEFICIENCY ORDER" shall have the meaning set forth in Section 2.4 C1.
1.16 "DEPOSIT AGREEMENT" shall have the meaning set forth in Section 9.2 A
(ix).
1.17 "DESIGNATED COMPUTER" shall mean the central processing unit(s)
designated by Licensee on an Order, whether such central processing unit is
owned, leased or otherwise available for use by Licensee or a Customer, provided
that each such central processing unit is an Authorized Platform.
1.18 "ELIGIBLE PURCHASES" shall have the meaning set forth in Section 2.4
B.
1.19 "ERROR" shall mean any malfunction, error, bug or other deficiency in
a copy of a Program which prevents it from performing substantially in
accordance with the applicable Specifications.
1.20 "ESCROW AGENT" shall have the meaning set forth in Section 13.1.
1.21 "EXTENSION PERIODS" shall have the meaning set forth in
Section 4.1.
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1.22 "GEOTEL PERSONNEL" shall mean any and all GeoTel employees, agents,
servants, and subcontractors performing Services hereunder for Licensee, whether
or not the Services are provided on the premises of Licensee, a Customer or a
third party, provided that in no event or for any purpose will these persons be
considered employees of Licensee.
1.23 "INITIAL TERM" shall have the meaning set forth in Section 4.1.
1.24 "INSTALLATION CERTIFICATE" shall have the meaning set forth in Section
11.2 A 2.
1.25 "INSTALLATION DEPOSIT" shall have the meaning set forth in
Section 6.1.
1.26 "LIQUIDATED DAMAGES" shall have the meaning set forth in Section 11.1
B 2.
1.27 "MODERATE SITUATION" shall have the meaning set forth in Section 11.1
B 1(ii).
1.28 "MODIFICATIONS" shall have the meaning set forth in Section
11.3 A.
1.29 "NEW PRODUCTS" shall mean new software products that are separately
priced by GeoTel on its price list published to all existing GeoTel customers
and to potential customers.
1.30 "NORTH AMERICA" shall mean Canada, the fifty states of the United
States, Puerto Rico and the U.S. Virgin Islands, and Mexico.
1.31 "OBJECT CODE" shall mean the Programs assembled or compiled in
magnetic or electronic binary form on software media, which are readable and
usable by machines, but not generally readable by humans without reverse
assembly, reverse compiling, or reverse engineering.
1.32 "ORDER" shall mean the standard purchase order form as utilized from
time to time by Licensee, a Licensee Affiliate or an Alliance Partner, as
applicable, which has been properly signed by a representative of the
procurement function of the purchasing entity authorized to execute such
purchase order on behalf of the entity and shall include all exhibits and
attachments incorporated as part of the purchase order. The term "Order" shall
further include change orders thereto and delivery orders.
1.33 "ORDER ACCEPTANCE" shall have the meaning set forth in Section
6.2.
1.34 "PERFORMANCE CRITERIA" shall mean as to a given Program the applicable
requirements for system availability and through-put, i.e. calls per second in a
given environment, and such other performance criteria or requirements as
specified on Exhibit B ("Performance Criteria") attached hereto and incorporated
herein by this reference.
1.35 "PROGRAM(S)" shall mean the computer software that is owned or
distributed by GeoTel from time to time during the Term, including specifically
but without limitation such
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computer software specified on Exhibit C ("Programs and Services Pricing")
attached hereto and incorporated herein by this reference, and in any event
listed in a completed and signed Order referencing this Agreement by number, and
the related User Documentation, and any subsequent Updates and Releases
furnished by GeoTel, whether in printed or machine readable form.
1.36 "RDG" shall have the meaning set forth in Section 3.1 E.
1.37 "RELEASE" shall mean a new version of a Program that contains
significant new functionality and/or features for which there is a published fee
charged to all commercial customers not under Technical Support and which is
identified by the numeral(s) to the right of the first decimal point from the
left of the designation for such Release or as otherwise mutually agreed by the
Parties, with the latest Release having the larger numeral. A Release shall also
include any new or modified related User Documentation.
1.38 "SERVICE BUREAU PROGRAMS" shall have the meaning set forth in Section
11.3 E.
1.39 "SERVICES" shall mean, collectively, the Technical Support, Support
Services and any other services available and/or obtained by Licensee from time
to time pursuant to this Agreement.
1.40 "SEVERITY LEVELS" shall have the meaning set forth in Section
11.1 B 1.
1.41 "SOFTWARE DEVELOPMENT SERVICES" shall have the meaning set forth in
Section 11.3 A.
1.42 "SOURCE CODE" shall mean the Programs written in programming
languages, such as C and FORTRAN, including all 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, including without limitation flow charts, schematics, statements
of principles of operations, and architecture standards, describing the data
flows, data structures, and control logic of the Programs.
1.43 "SOURCE CODE ESCROW AGREEMENT" shall have the meaning set forth in
Section 13.1.
1.44 "SOURCE CODE MATERIALS" shall mean, collectively, the Source Code for
the Programs, and any other materials as agreed by the Parties, required to be
on deposit with the Escrow Agent as of the Effective Date pursuant to Section
9.2 A (x) and from time to time on deposit with the Escrow Agent pursuant to
Section 13.2.
1.45 "SPECIFICATIONS" shall mean as to a given Program, collectively the
applicable User Documentation and the Performance Criteria.
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1.46 "SUPPORT SERVICES" shall mean the installation, training and other
services more specifically described in Section 11.2.
1.47 "TECHNICAL SPECIFICATIONS" shall have the meaning set forth in Section
11.3 B.
1.48 "TECHNICAL SUPPORT" shall mean the software maintenance and other
related services more specifically described in Section 11.1.
1.49 "TERM" shall have the meaning set forth in Section 4.1.
1.50 "TRANSFEREE CUSTOMER" shall have the meaning set forth in Section
3.2 C.
1.51 "TRUE-UP NOTICE" shall have the meaning set forth in Section
2.4 C 1.
1.52 "UPDATES" shall mean a modification to a Program intended to resolve
any Error in the Program but that does not necessarily include additional
capacity or functionality for the Program and is identified by the numeral(s)
two places to the right of the first decimal point from the left in the
designation for such Update or as otherwise mutually agreed by the Parties, with
the latest Update having the larger numeral. An Update shall also include any
new or modified related User Documentation
1.53 "USER DOCUMENTATION" shall mean any user guides, manuals, operator
guides, installation guides, and other similar materials generally made
available by GeoTel to its licensee end-users of the Programs to facilitate
their use.
1.54 "WARRANTY PERIOD" shall have the meaning set forth in Section 9.2 B.
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2. SCOPE; PURCHASES BY AFFILIATES AND ALLIANCE PARTNERS
2.1 SCOPE OF AGREEMENT.
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A. During the Term, any division, segment or other business unit or
group within Licensee, as well as any Licensee Affiliate or Alliance Partner as
provided in this Section 2.1, shall be entitled to license Programs and/or
obtain Technical Support, Support Services, or any other Services available
hereunder from GeoTel on a worldwide basis pursuant to, and subject to, the
terms and conditions of this Agreement, including specifically but without
limitation the volume discounts and pricing afforded hereunder, and the
limitation of liability set forth in Article 10, by issuing Orders for such
Programs and/or Services pursuant to Article 6, but as to any such Order
submitted by an Alliance Partner, subject to the Licensee consent requirement
specified in Section 2.2 A.
B. Exhibit A sets forth a list of Licensee Affiliates and Alliance
Partners as of the Effective Date. Licensee may from time to time notify GeoTel
of changes to said Exhibit A which shall promptly be amended accordingly by the
Parties; provided, however, that the addition of any entity as an Alliance
Partner by virtue of such entity complying with the requirements of Subitems
(ii) (x) or (ii)(y) of Section 1.2 shall be subject to the prior consent of
GeoTel, which consent shall not be unreasonably withheld or delayed. GeoTel
acknowledges and agrees that since Exhibit A may not be a complete list of all
Licensee Affiliates and Alliance Partners at any given time during the Term,
Licensee shall be entitled at any given time to certify in writing to GeoTel
that one or more additional entities not then listed on Exhibit A are Licensee
Affiliates or Alliance Partners and GeoTel shall afford such additional entities
the right to purchase Programs and/or Services as otherwise provided under this
Article 2 pending amendment of Exhibit A, but subject as to any such Alliance
Partner to the Licensee consent specified in Section 2.2 A.
2.2 ORDERS BY AFFILIATES AND ALLIANCE PARTNERS.
A. 1. GeoTel shall not accept any Order submitted against this
Agreement by an Alliance Partner unless: (i) such Order expressly references
this Agreement and this Article 2, and (ii) GeoTel receives the prior express
written consent of Licensee, which consent specifically refers to the proposed
Order, the ordering Alliance Partner, and this Section 2 of this Agreement, and
is signed on behalf of Licensee by both a Senior Vice President of Licensee and
Licensee's Chief Technology Counsel, provided that such consent of Licensee may
be granted or withheld at the sole discretion of Licensee. Under no
circumstances shall Licensee be deemed to be a party to, to have any liability
or obligation whatsoever in connection with, or to be a guarantor of the
obligations under, any Order submitted by an Alliance Partner against this
Agreement as to which Licensee has not provided to GeoTel the prior written
consent required by this Section and which otherwise fails to comply with
Subitem (i) of this Section.
2. Any conforming Order submitted by an Alliance Partner as to
which
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Licensee has consented as required pursuant to Section 2.2 A shall be accepted
by GeoTel pursuant to Section 6.2 but subject to Section 2.2 C below.
B. 1. Software programs and services obtained by an Alliance
Partner from GeoTel pursuant to agreement separately negotiated between such
Alliance Partner and GeoTel and not resulting from Section 2.1 A, shall not
accrue to the benefit of, or be credited to, Licensee for purposes of this
Agreement, including without limitation for purposes of Licensee's volume
discount, pricing or Purchase Commitment hereunder, nor shall such Alliance
Partner be afforded the benefit under such separate agreement of the volume
discounts and pricing otherwise available hereunder unless otherwise agreed to
between the Alliance Partner and GeoTel.
2. Software programs and services obtained by a Licensee
Affiliate from GeoTel pursuant to agreement separately negotiated between such
Affiliate and GeoTel and not resulting from Section 2.1 A, shall nonetheless
accrue to the benefit of, and be credited to, Licensee for purposes of
Licensee's volume discount, pricing and Purchase Commitment hereunder, and such
Affiliate shall be entitled to the pricing and volume discounts available
hereunder as to any purchases pursuant to such separate agreement but shall
otherwise not be afforded the benefit of any other terms and conditions
hereunder unless expressly agreed by the Affiliate and GeoTel.
3. Under no circumstances shall Licensee be deemed to be a party
to, to have any liability or obligation whatsoever in connection with, or to be
a guarantor of the obligations of any Alliance Partner or Licensee Affiliate
under any such separate agreement between such Alliance Partner or Affiliate
with GeoTel as referred to in Sections 2.2 B 1 and 2.
C. Notwithstanding the provisions of Sections 2.2 A 2 and 6.2, GeoTel
may nonetheless reject the Order of a Licensee Affiliate or the Order of an
Alliance Partner otherwise consented to by Licensee as required pursuant to
Section 2.2 A 1, where the site of the Designated Computer for use of Programs
is located outside of North America and GeoTel has a reasonable basis to believe
that it will be unable to adequately provide Technical Support for such Programs
in such location, provided that such rejection and reasonable basis are
communicated by GeoTel in writing to the ordering party promptly after receipt
of the Order.
2.3 ACCRUAL OF PURCHASES. All Programs licensed to, and Services
obtained by, any Affiliate or Alliance Partner resulting from Sections 2.1 A or
2.2 B 2 shall accrue to the benefit of, and be credited to, Licensee for
purposes of (i) determining pricing and volume discounts under this Agreement,
and (ii) fulfillment by Licensee of the Purchase Commitment, as defined in
Section 2.4. Nothing herein shall limit the right of Licensee or any Affiliate
or Alliance Partner from obtaining at any time from any third party the same or
similar software and/or services as may be obtained or available hereunder or
obtaining from GeoTel more favorable pricing than the pricing otherwise
available hereunder.
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2.4 PURCHASE COMMITMENT; NO OTHER MINIMUM COMMITMENTS.
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A. REDACTED MATERIAL
B. REDACTED MATERIAL
C. REDACTED MATERIAL
3. PROGRAM LICENSES
3.1 LICENSES GRANTED.
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A. Upon GeoTel's acceptance of an Order for Programs pursuant to
Article 6, GeoTel grants to Licensee a non-exclusive, fully paid-up (subject to
payment of the applicable license fees as determined pursuant to Article 5),
worldwide, nontransferable (except as otherwise herein provided), license to use
the copies of the Programs covered by such Order and related User Documentation
pursuant to this Agreement, including without limitation as follows:
(i) to use the Programs on the Designated Computer referenced
in the relevant Order or on a backup computer on a temporary basis if the
Designated Computer is inoperative, and in either event on Licensee's premises
or the premises of a Customer:
(x) for Licensee's own internal telecommunications
operations, and in connection with such operations to process the information of
Licensee;
(y) to provide telecommunications and related services to,
and access by Customers, as required during the normal course of providing
Licensee products and/or services, and to process Customer information in
connection therewith; and
(z) to cause or permit a third party to use or operate the
Programs solely for the benefit of Licensee and its Customers, including without
limitation for the purposes set forth in (x) and (y) immediately above, and in
such event on said third party's premises;
(ii) to locate and allow a Customer to use the Programs,
including pursuant to item (iii) immediately below, at its customer call center
locations on the Designated Computer(s) referenced in the relevant Order (or on
a backup computer on a temporary basis if the Designated Computer is
inoperative) solely in connection with such Customer's use of products and/or
services provided by Licensee which in turn utilize the Program(s), provided
that Licensee shall use its reasonable best efforts to ensure compliance by such
Customer with the requirements of Article 8 of this Agreement;
(iii) to copy the Program for archival or backup purposes,
provided that all such archival and backup copies of the Program are subject to
the provisions of this Agreement, and all titles, trademarks, and copyright and
restricted rights notices appearing on the copies of the Programs as received by
Licensee from GeoTel shall be reproduced in such copies;
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and
(iv) to use the User Documentation as reasonably necessary in
connection with Licensee's use of the Programs and to further distribute copies
of the User Documentation, including as may be modified by GeoTel at Licensee's
request pursuant to Section 11.2 D, to Customers for use solely in connection
with their use of the Programs and any related Licensee products and/or
services, all at no additional cost or expense to Licensee and/or such
Customers.
B. LIMITED RIGHTS. By virtue of this Agreement, Licensee acquires
only the right to use the Programs as provided in this Article 3 and does not
acquire any other rights or ownership therein.
C. NO DISTRIBUTION RIGHTS. Licensee acknowledges that it is not a
distributor of GeoTel for the Programs, that it has no right to sublicense or
otherwise locate elsewhere any copies of the Programs other than as explicitly
set forth herein, and that it has no right to permit third parties to resell any
Licensee services based upon the Programs.
D. LICENSE TERM. The term of each license for Programs granted
hereunder shall remain in effect perpetually (if not otherwise specified on the
Order), unless terminated as provided in Article 4.
E. CHANGES TO RDG. Upon any change in Licensee's 800 remote data
gateway interface or its commercially available equivalent (the "RDG"), Licensee
will use its reasonable efforts to provide to GeoTel: (i) early notice of such
change to the RDG, (ii) a copy of the changed specifications to the changed RDG
promptly after such specifications become generally commercially available, and
(iii) engineering and technical support to facilitate access by GeoTel to
Licensee's certification lab for purposes of GeoTel obtaining and maintaining
during the Term certification from Licensee that all of the Programs, at the
then most Current Release level, and/or Update level being utilized by Licensee
during the Term, shall function in conformity with the Specifications when
operating and interacting with all Authorized Platforms and Licensee networks.
3.2 TRANSFER.
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A. GENERAL RIGHT TO TRANSFER LOCATION. Subject to Section 3.2 B, a
Program may be transferred to a different Designated Computer of like
configuration or the Designated Computer may be transferred to another location,
whether within Licensee's organization, within a Customer's organization, or
among Licensee and its Customers, and in any event without incurring any
additional license fee or other cost directly related to the transfer, provided
that in each case Licensee shall give timely written notice thereof to GeoTel,
and subject to Section 14.7, and provided further that Licensee shall remain
responsible for payment for any Support Services required in connection with any
such transfer.
B. REDACTED MATERIAL
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C. REDACTED MATERIAL
D. NO OTHER TRANSFER OR ASSIGNMENT OF COPIES. Except as otherwise
provided in this Article 3 and Section 14.5, the rights granted herein as to
Program copies are restricted for use solely by Licensee and may not be assigned
or transferred to a third party.
4. TERM; TERMINATION
4.1 TERM. This Agreement shall have an initial term of three (3) years
from the Effective Date (the "Initial Term") after which Initial Term this
Agreement shall automatically renew for consecutive one (1) year periods
("Extension Periods") based upon the terms and conditions then contained in this
Agreement (other than the provisions of Section 2.4 regarding the Purchase
Commitment which shall not be automatically renewed), unless either Party
provides written notice to the other no later than ninety (90) days prior to the
end of the Initial Term or the then-current Extension Period of its intent to
terminate this Agreement in which event this Agreement shall terminate as of the
end of such Initial Term or Extension Period, as applicable. The Initial Term
and any Extension Periods may be collectively referred to in this Agreement as
the "Term".
4.2 TERMINATION OF AGREEMENT. Upon thirty (30) days' prior written notice,
either Party may terminate this Agreement in the event:
(i) that the other Party breaches any of its material obligations
hereunder and fails to cure such breach by the end of such thirty-day period; or
(ii) of either Party's application for or consent to the
appointment of or the taking of possession by a receiver, custodian, trustee or
liquidator of itself or of all or a substantial part of its property; its
general assignment for the benefit of creditors; its commencement of a voluntary
case under the Federal Bankruptcy Code (as now or hereinafter in effect); its
failure to contest in a timely or appropriate manner, or its acquiescence in
writing to, any petition filed against it in an involuntary case under such
Bankruptcy Code, or its liquidation, reorganization or dissolution;
provided, however, that GeoTel agrees that any termination by GeoTel of this
Agreement shall not affect any licenses for Programs previously granted to
Licensee hereunder pursuant to Article 3 unless the underlying breach of this
Agreement provides a separate basis for termination of one or more such licenses
pursuant to Section 4.3 below.
4.3 TERMINATION OF PROGRAM LICENSES.
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A. TERMINATION BY GEOTEL. Upon thirty (30) days' prior written
notice, GeoTel may terminate a license to a copy of a Program granted to
Licensee hereunder only in the event Licensee breaches any of its material
obligations pursuant to Sections 3.1,5.3, 8.1 or 8.2 specifically as to such
copy and Licensee fails to cure such breach by the end of such thirty-day
period; provided, however, that GeoTel agrees that any termination by GeoTel of
the license to
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a copy of a Program pursuant to this Section 4.3 A shall not constitute a basis
for termination of either (i) any other license to a Program copy as to which
such breach does not specifically apply or (ii) this Agreement pursuant to
Section 4.2.
B. TERMINATION BY LICENSEE. Licensee may terminate a license to a
copy of a Program granted to License hereunder as provided in Sections 7.2 and
9.2 B.
4.4 EFFECT OF TERMINATION.
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A. AVAILABLE REMEDIES. Termination of this Agreement or any license
granted hereunder shall not limit either party from pursuing any other remedies
available to it, including injunctive relief.
B. NO EFFECT ON LICENSES. Neither the expiration nor the
termination of this Agreement shall serve to terminate, modify or otherwise
affect any licenses for Programs granted to Licensee hereunder, all of which
licenses shall remain in full force and effect after any such termination or
expiration.
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C. REDACTED MATERIAL
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4.5 RETURN OF PROGRAM UPON TERMINATION. If this Agreement or a license as
to a copy of a Program granted pursuant to this Agreement expires or is
otherwise terminated, each Party shall as to this Agreement or such license, as
applicable: (i) pay to the other Party any related moneys then due and owing,
(ii) cease using the affected Confidential Information of the other Party, and
(iii) certify to the other Party within one month after such expiration or
termination that the Party has destroyed or has returned all affected
Confidential Information; provided, however, that the foregoing shall not apply
to any Program copies and related User Documentation or other Confidential
Information of GeoTel related to the use of such Program copies, and the right
of Licensee and its Customers to continue using the same, under licenses
surviving any expiration or termination of this Agreement pursuant to Section
4.4 B. The foregoing provision applies to the Confidential Information of either
Party and all copies thereof in all forms, partial and complete, in all types of
media and computer memory, and whether or not modified or merged into other
materials.
4.6 SURVIVAL OF PROVISIONS. The Parties agree that the provisions of
Articles 3, 6, 8, 9, 10, 12, and 13, and Sections 4.3, 4.4, 4.5, 4.6, 5.3, 5.4,
5.5, 11.1, 11.2, 11.5, 11.6, 11.7, 11.8 and 14.4 shall survive the expiration or
any earlier termination of this Agreement, along with such other provisions as
would reasonably be expected to survive such expiration or termination.
5. PRICE AND PAYMENT PROVISIONS
5.1 PRICING Licensee shall pay to GeoTel for licenses for Programs,
Technical Support, Support Services and other Services obtained pursuant to this
Agreement the applicable prices determined pursuant to the pricing and discounts
set forth in Exhibit C, but subject to the other requirements of this Article 5.
The pricing and discounts for both the Programs and Services set forth in said
Exhibit C shall be firm for the Term of this Agreement, provided that on any
anniversary of the Effective Date during the Term of this Agreement, GeoTel may,
by providing written notice of the same to Licensee no less than one hundred
twenty (120) days prior to said anniversary date, increase the then-current
license fees for the Programs set forth in Exhibit C by the lesser of (i) five
percent (5%) or (ii) the difference between the then-current license fee for a
Program set forth in Exhibit C and the commercially available list price for
such Program that will be in effect as of said anniversary date. Should GeoTel
at any time make any of the Programs or Services generally commercially
available at a lower price than as then listed in Exhibit C prior to application
of any available discount, then the Exhibit C pricing shall be reduced
accordingly retroactive to the effective date of such lower generally
commercially available prices.
5.2 MOST FAVORED CUSTOMER. GeoTel agrees that the prices charged, and
discounts available, hereunder from time to time for license(s) for the
Programs, or for Technical Support, Support Services or any other materials or
Services provided under this Agreement are and shall be no less favorable than
the prices charged, and discounts made available, to any other customer of
GeoTel for substantially similar volumes of such licenses, services or other
materials under
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similar business arrangements. Where GeoTel breaches the foregoing obligation,
the more favorable prices and/or discounts shall apply to Licensee from the date
that the same were made available to such other customer of GeoTel.
5.3 INVOICING. GeoTel's invoices for Programs will be forwarded after the
applicable Commencement Date and, subject to acceptance of Program copies
pursuant to Article 7, are then due and payable net forty five (45) days from
receipt of invoice by Licensee's Vendor Services Department. Unless otherwise
expressly provided herein, GeoTel invoices for Services will be forwarded after
the completion of the applicable Service and the invoices will then be due and
payable net forty five (45) days from receipt of invoice by Licensee's Vendor
Services Department; provided, however, that invoices for Technical Support will
be forwarded to Licensee after commencement of the applicable month of Technical
Support and the invoices will then be due and payable net forty five (45) days
from receipt of invoice by Licensee's Vendor Services Department.
5.4 TAXES. The prices listed in this Agreement are exclusive of sales,
use, value-added, or other federal, state or local taxes or import duties or
tariffs imposed on a purchaser or licensee of by law, which Licensee agrees to
pay. In the event that Licensee provides GeoTel with an applicable direct
payment permit, sale for resale exemption certificate, sales tax exemption
certificate or other applicable exemption certificate, GeoTel agrees that it
will not invoice taxes for any licenses granted in this Agreement, the Support
Services, Technical Support or on Licensee's use of Programs or other materials
or services subject to this Agreement.
5.5 DUTIES. Licensee shall pay any import duties and tariffs incurred as a
result of shipment by GeoTel at Licensee's direction of Programs and User
Documentation to a destination outside the United States.
6. ORDERING; DELIVERY; TITLE AND RISK OF LOSS
6.1 ORDERING.
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A. ORDERS. Licensee shall order Programs, Technical Support,
Support Services and any other Services available hereunder by means of
individual Orders. Each such Order shall specify, as applicable, quantity,
price, ship date, delivery date, shipping destination, ship method, and other
details pertaining to the products and services ordered thereunder. The terms of
this Agreement shall be expressly referred to in the Order. The printed
provisions on Orders or attached to Orders shall be deemed deleted with respect
to the Orders placed hereunder.
B. INSTALLATION DEPOSIT. When copies of Programs are being ordered,
License shall further, within forty five (45) days after Order Acceptance
pursuant to Section 6.2, forward to GeoTel a prepayment of one hundred percent
(100%) of the applicable Installation Services fees for such copy, such
prepayment hereinafter being referred to as the "Installation Deposit".
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6.2 ORDER ACCEPTANCE. Except as otherwise provided in Section 2.2C as to
certain Affiliate and Alliance Partner Orders, GeoTel shall within fifteen (15)
days after the receipt of an Order from Licensee hereunder accept such Order
("Order Acceptance") by signing and returning the "Vendor Acknowledgment" copy
of the Order to Licensee's Vendor Services Department. In the event GeoTel fails
to so return the Acknowledgment copy of the Order within thirty (30) days from
receipt, Order Acceptance shall nonetheless be deemed to have occurred as of
such thirtieth (30th) day from receipt of the Order by GeoTel.
6.3 ORDER CANCELLATION
------------------
A. RIGHT TO CANCEL. Licensee shall be entitled to cancel any Order
submitted hereunder, in whole or in part, without any penalty, cancellation fee
or other liability of any kind, except as expressly provided in the following
sentence, by providing written notice up until, as to line items in Orders for
the providing of Services, the start of the provision of such Services, and for
line items for copies of Programs in Orders, the applicable Commencement Date.
As to cancellation of line items for copies of Programs in Orders only, GeoTel
shall be entitled to retain the lesser of (i) actual charges incurred by GeoTel
in performing Installation Services up until the effective date of cancellation,
or (ii) the percentage of any applicable Installation Deposit determined as
follows:
15
Receipt of Cancellation Notice % Installation
------------------------------ --------------
by GeoTel Deposit Retained
--------- ----------------
Before Order Acceptance 0
After Order Acceptance, but before
receipt of Designated Computer
by GeoTel 25
After receipt of Designated Computer
by GeoTel, but before shipment to
installation site 50
After shipment of Designated Computer
by GeoTel but before Commencement Date 75
After Commencement Date 100
B. PORTIONS OF INSTALLATION DEPOSITS RETURNED. Any portion of an
Installation Deposit that GeoTel is not permitted to retain in the event of
cancellation of an Order as to Program copies pursuant to this Section 6.3 shall
be repaid to Licensee within thirty (30) days after the effective date of
cancellation.
C. PORTIONS OF INSTALLATION DEPOSITS RETAINED. Any portion of an
Installation Deposit retained by GeoTel in connection with the cancellation of
any line item for copies of Programs in an Order pursuant to this Section 6.3
shall nonetheless be deemed an "Eligible Purchase" and credited against any
applicable Purchase Commitment. Any portion of an Installation Deposit refunded
to Licensee in connection with any such cancellation, shall not be so credited.
6.4 DELIVERY; TITLE/RISK OF LOSS. Delivery by GeoTel of the combined
Programs/Designated Computers pursuant to Section 11.2 A 3, or of separate
Program, Update or Release copies, shall be made FOB the applicable Licensee or
Customer site as specified in the Order or as otherwise designated by Licensee.
Risk of loss of, or damage to, any of the foregoing items, and title to the
media for any uninstalled Program, Update or Release copies shall pass to
Licensee upon delivery to such applicable Licensee or Customer site.
7. ACCEPTANCE
7.1 ACCEPTANCE PERIOD. Licensee may test Program copies during a thirty
(30) day period (the "Acceptance Period") beginning on the date of receipt by
Licensee of the GeoTel Installation Certificate, as defined in Section 11.2 A.
Licensee may reject the Program copy within the Acceptance Period, or any such
period as extended by mutual agreement of Licensee and GeoTel, for reasons of
the presence of Errors or the failure of the Program copy to perform
16
in accordance with such other test and acceptance criteria as may be mutually
agreed by the Parties in writing, provided that failure of Licensee to accept or
reject a Program copy within the applicable Acceptance Period shall be deemed
acceptance.
7.2 REJECTION OF PROGRAM COPIES. If any copy of the Programs is rejected,
GeoTel shall have fifteen (15) days from receipt of notice of rejection to
correct the Errors or other nonconformity's at no additional cost to Licensee
(the "Correction Period") and Licensee shall have a new acceptance period of
thirty (30) days from Licensee's receipt of the corrected copy of the Program to
accept or reject the Program as provided above (the "Additional Acceptance
Period"). Should GeoTel either be unable to correct the Errors or other
nonconformity's within such Correction Period or should Licensee again reject
the corrected Program during the Additional Acceptance Period, then Licensee, at
its sole option, shall be entitled to either:
(i) a full refund of any payments made to GeoTel, including but not
limited to any related Installation Deposit, Support Services or other Services,
in connection with the rejected copy, provided, that (x) the full value of the
Eligible Purchases as to which the refunds applied as determined pursuant to
Section 2.4 B shall nonetheless continue to be credited against any applicable
Purchase Commitment, and (y) as of the second time within any rolling sixth
month period that Licensee rejects any Program copy after the Additional
Acceptance Period pursuant to this Section 7.2, Licensee shall further be
entitled, in addition to such refund, to treat such second failure to correct as
a material breach of this Agreement pursuant to Section 4.2 (but without the
further right of GeoTel to cure as otherwise set forth therein), and to
immediately terminate this Agreement by written notice to GeoTel pursuant to
said Section 4.2; or
(ii) prompt replacement of the rejected Program copy with a substitute
acceptable to, and at no additional cost to, Licensee.
7.3 ABATEMENT OF PAYMENT. Licensee's obligation to pay an invoice issued
by GeoTel pursuant to Section 5.3 in connection with any Program copy rejected
pursuant to Section 7.1 shall be abated during the Correction Period and
Additional Acceptance Period provided pursuant to Section 7.2.
8. PROTECTION OF PROGRAMS: CONFIDENTIAL INFORMATION, ENFORCEMENT
8.1 CONFIDENTIALITY.
----------------
A. CONFIDENTIAL INFORMATION. By virtue of this Agreement, the
Parties may have access to, or exchange, information that is confidential to one
another. As used in this Agreement, the term "Confidential Information" shall
mean only such information which: (i) if disclosed in writing or other tangible
form bears an appropriate legend indicating its confidential or proprietary
nature; or (ii) if initially disclosed orally, visually or in other nontangible
form, is identified as confidential or proprietary at the time of disclosure.
Notwithstanding the foregoing, Licensee agrees that any Programs licensed by
GeoTel hereunder, any User Documentation
17
provided by GeoTel hereunder and any Source Code that may be provided by GeoTel
to Licensee hereunder pursuant to Article 13, shall be deemed the Confidential
Information of Licensor to be treated by Licensee in conformity with the
requirements of this Article 8. Notwithstanding the foregoing, GeoTel agrees
that the existence and terms and conditions of this Agreement, as well as all
Customer information which GeoTel may obtain in the course of performance under
this Agreement, including without limitation in the course of performing any of
the Services, shall be deemed the Confidential Information of Licensee to be
treated by GeoTel in conformity with the requirements of this Article 8.
B. OBLIGATIONS. Each of the Parties agrees that as to any
Confidential Information disclosed to it hereunder:
(i) to use such Confidential Information only in the performance
of this Agreement or as otherwise expressly permitted by this Agreement or by
the disclosing Party (the "Discloser");
(ii) not to make copies of any such Confidential Information or
any part thereof except to the extent otherwise expressly permitted by this
Agreement or by the Discloser;
(iii) not to disclose any such Confidential Information to any
third party using the same degree of care used to protect the confidential or
proprietary information of like importance of the receiving Party ("Recipient"),
but in any case using no less than a reasonable degree of care; provided,
however, that Recipient may disclose Confidential Information received hereunder
to (x) its Affiliates who are bound to protect the received Confidential
Information from unauthorized use and disclosure under the terms of a written
agreement, and (y) to its employees, consultants and agents, and its Affiliates'
employees, consultants and agents, who have a need to know to perform or
exercise rights under this Agreement, and who are bound to protect the received
Confidential Information from unauthorized use and disclosure under the terms of
a written agreement. GeoTel expressly agrees that Licensee shall further be
entitled to disclose the Confidential Information of GeoTel received hereunder
to Customers and prospective Customers and their respective employees,
consultants and agents who have a need to know in connection with the exercise
of the rights set forth in Section 3.1 above or otherwise in connection with use
or the prospective use of Licensee services and products based on use of the
Programs. Confidential Information shall not otherwise be disclosed to any
person without the prior written consent of the Discloser; and
(iv) to return or destroy such Confidential Information and any
copies thereof upon the expiration or earlier termination of this Agreement, or
Program license, as applicable, to the extent, and as required pursuant to,
Section 4.5.
C. EXCEPTIONS. The restrictions set forth in this Article 8 on use
and disclosure of Confidential Information shall not apply to information that:
(i) was publicly known at the time of Discloser's communication
thereof to Recipient;
18
(ii) becomes publicly known through no fault of Recipient
subsequent to the time of Discloser's communication thereof to Recipient;
(iii) is in Recipient's possession free of any obligation of
confidence at the time of Discloser's communication thereof to Recipient;
(iv) is developed by Recipient independently of and without use
of any of Discloser's Confidential Information or other information that
Discloser disclosed in confidence to any third party;
(v) is rightfully obtained by Recipient from third parties
authorized to make such disclosure without restriction; or
(vi) is identified by Discloser in writing as no longer
proprietary or confidential.
D. DISCLOSURE PER ORDER. In the event Recipient is required by law,
regulation or court order to disclose any of Discloser's Confidential
Information, Recipient will promptly notify Discloser in writing prior to making
any such disclosure in order to facilitate Discloser seeking a protective order
or other appropriate remedy from the proper authority. Recipient agrees to
cooperate with Discloser in seeking such order or other remedy. Recipient
further agrees that if Discloser is not successful in precluding the requesting
legal body from requiring the disclosure of the Confidential Information, it
will furnish only that portion of the Confidential Information which is legally
required and will exercise all reasonable efforts to obtain reliable assurances
that confidential treatment will be accorded the Confidential Information.
E. PUBLICITY. No news, media or other informational releases,
public announcements, public disclosures, advertising or marketing materials
concerning any part or terms and conditions of this Agreement or any of GeoTel's
or Licensee's respective performances hereunder shall be made, issued or
distributed by either Party without the prior written consent of the other
Party, which consent shall not be unreasonably withheld or delayed.
F. SURVIVAL. The provisions of this Article 8 shall survive for a
period of five (5) years beyond the effective date of any expiration or earlier
termination of this Agreement.
19
8.2 OWNERSHIP OF PROGRAMS.
----------------------
A. Licensee acknowledges that GeoTel claims that: (i) GeoTel is
the owner of the Programs and any copies thereof, and of all copyright, trade
secret, patent, trademark, or other intellectual property rights therein, and
(ii) the ideas and the expressions thereof contained in the Programs are the
confidential and proprietary information and trade secrets of GeoTel.
B. Licensee agrees that physical copies of the Programs, in
firmware, diskette, tape, paper, or other form provided by GeoTel shall remain
the property of GeoTel, and such copies shall be deemed to be on loan to
Licensee during the term of the licenses granted pursuant to this Agreement.
C. Licensee agrees that it will not decompile, disassemble or
attempt in any way to reverse engineer the Programs.
8.3 ENFORCEMENT. Each Party acknowledges that the Confidential Information
of the other Party, including without limitation the Programs and User
Documentation, is valuable and unique to such Party and that disclosure, use or
treatment of the same in breach of the provisions of this Article 8, will result
in irreparable injury to the disclosing Party for which monetary damages alone
would not be an adequate remedy. Therefore, each Party agrees that, in the event
of a breach or threatened breach of the confidentiality or restricted use
provisions of this Article 8 by the other Party, the disclosing Party shall be
entitled to seek specific performance and injunctive or other equitable relief
from a court of competent jurisdiction as a remedy for any such breach or
anticipated breach, and the disclosing Party shall further have no obligation to
post bond or other surety in connection therewith. Any such relief shall be in
addition to and not in lieu of any appropriate available relief in the way of
monetary damages and shall not otherwise limit such Party's other available
rights and remedies.
9. INDEMNITY RE INFRINGEMENT; WARRANTIES; DISCLAIMERS
9.1 WARRANTY OF OWNERSHIP; INDEMNITY RE INFRINGEMENT.
-------------------------------------------------
A. GeoTel warrants and represents that it is the sole owner of all
patent, copyright, trade secret, trademark and other intellectual property
rights in the Programs and User Documentation or, if the Programs or User
Documentation contains third party software or other materials, GeoTel has the
unrestricted right to grant to Licensee all of the licenses and other rights
necessary for complying with this Agreement, and in any event has the full power
and authority to sell, convey, license, and deliver copies of the Programs and
User Documentation free from any liens and encumbrances of all kinds.
B. GeoTel shall at its expense defend or, at its option, settle,
any claim, action or proceeding brought against Licensee and/or any Customer
that any Program, the User Documentation or any services provided by Licensee
and/or any Customer based on the use of the Programs, or the use of any of the
foregoing, infringes a patent, copyright, trade secret,
20
trademark or other intellectual property right, and shall indemnify and hold
Licensee and its Customers harmless against all losses, damages, liabilities,
expenses and costs incurred and/or awarded against or by Licensee and/or any
Customers in connection with any such claim, action or proceeding. Licensee
shall: (i) notify GeoTel in writing of any such claim promptly after Licensee
becomes aware of the same, (ii) give GeoTel such information and assistance as
reasonably required in connection therewith but at the expense of GeoTel, and
(iii) give GeoTel sole control of the defense of such claim and all negotiations
for the compromise or settlement thereof; provided, however, that the failure of
Licensee to undertake any of the foregoing actions shall not relieve GeoTel of
any liability or obligation it may have under this Section 9.1 except to the
extent that GeoTel has been adversely affected thereby. Notwithstanding Subitem
(iii) in the preceding sentence:
(i) Licensee shall have the right to participate in the
investigation and defense of any such claim, action or proceeding, with separate
counsel chosen and paid for by Licensee; and
(ii) at any time, Licensee may at its own cost and expense
purchase intellectual property or rights thereto from any third party.
C. Without limiting the rights of Licensee pursuant to Section
9.1 F, if the use of any Program, the User Documentation or any service based on
the use of the Programs or User Documentation or any part thereof, is enjoined
in connection with a claim of infringement of any patent, copyright, trade
secret right or other intellectual property right, GeoTel shall, at its sole
expense, take the following actions listed in the order of requirement (but in
no event shall GeoTel be relieved of any obligations of defense and indemnity
hereunder):
(i) obtain for Licensee a license permitting the continued use
of the Program, User Documentation and/or service or such part thereof pursuant
to the terms of this Agreement;
(ii) replace or modify the affected Program, user Documentation
or part thereof, so that it becomes non-infringing, while still complying with
the applicable Specifications and other requirements of this Agreement; or
(iii) if neither of the foregoing can be accomplished without
impacting the economic viability of GeoTel, terminate the license for the
affected Program(s) or User Documentation and promptly refund to Licensee: (x)
the license or other fees paid for the same under this Agreement amortized over
a seven (7) year period commencing as of the Commencement Date for the
applicable Program, and (y) the pro-rated unused portion of any Technical
Support fees paid in connection with the same; provided, however, that the full
value of the Eligible Purchases as to which any refunds pursuant to Subitems (x)
and (y) of this sentence relate, as determined pursuant to Section 2.4 B, shall
nonetheless continue to be deemed "Eligible Purchases" and credited against any
applicable Purchase Commitment pursuant to Section 2.4 C.
21
D. GeoTel shall have no liability under Section 9.1B for any costs
of defense incurred, or settlement entered into, by Licensee as to an
indemnifiable claim hereunder without GeoTel's prior written consent.
E. GeoTel shall have no liability under this Section 9.1 to the
extent that any claim of infringement is based upon (i) the combination of a
Program with other products, equipment or materials that are either not
furnished or approved by GeoTel, not an Authorized Platform, or where GeoTel
should not reasonably have anticipated such combined use, and provided that in
any event the claim of infringement would not have occurred but for such
combination, (ii) any addition to or modification to the Program, including
without limitation to any new Release of the Program, by any person or entity
other than GeoTel made without GeoTel's consent or concurrence, if such claim of
infringement would not have occurred but for such addition or modification,
(iii) GeoTel furnishing to Licensee any information, data, service or
applications assistance, other than the Services, Programs and the related User
Documentation, if the claim of infringement would not have occurred but for such
information, data, service or applications assistance, or (iv) use of a
superseded Release of the Program beyond the time frame specified in Section
11.1D, provided that a replacement Release has been made available to Licensee
within such timeframe specified in Section 11.1D, that such replacement Release
still complies with the applicable Specifications, and that the claim of
infringement would not have occurred but for Licensee continuing to use such
superseded Release of the Program as opposed to the replacement Release.
F. Upon the receipt by Licensee or any Customer within a Contract
Year of either notice by or on behalf of a third party alleging or asserting any
claims of infringement within the scope of this Section 9.1, service upon
Licensee or any Customer of any legal action or other proceeding instituted by
or on behalf of a third party alleging in whole or in part an infringement
within the scope of this Section 9.1, or the imposition of a temporary
restraining order, or temporary or permanent injunction on Licensee or any
Customer based in whole or in part upon a claim by or on behalf of a third party
of infringement within the scope of this Section 9.1, then, in addition to, and
without limiting any of the other obligations of GeoTel pursuant to this Section
9.1 in connection with any of the foregoing, the Purchase Commitment shall from
the date of receipt of such notice, service of process, or imposition as to
Licensee or any Customer, be waived, and Licensee shall be released from and
have no further obligation or liability in connection therewith, on a day to
day, pro rata basis until such time as such claim, action or other proceeding is
finally resolved, or such temporary restraining order, or temporary or permanent
injunction is finally lifted or dissolved, as applicable, provided that from and
after the ninetieth day without such final resolution, Licensee shall be
entitled, at its option, to then or at any time while such situation continues
unresolved, to treat such failure to resolve any of such events as a material
breach of this Agreement pursuant to Section 4.2 (but without the further right
of GeoTel to cure as otherwise set forth therein), and to immediately terminate
this Agreement by written notice to GeoTel pursuant to said Section 4.2.
G. THE PROVISIONS OF THIS SECTION 9.1 STATE THE EXCLUSIVE LIABILITY
OF GEOTEL, AND THE EXCLUSIVE REMEDY OF LICENSEE, WITH RESPECT TO ANY BREACH OF
THE WARRANTY SET FORTH IN SECTION 9.1 A OR
22
ANY CLAIM OF INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR
OTHER INTELLECTUAL PROPERTY RIGHT BY THE PROGRAMS, THE USER DOCUMENTATION, OR
ANY SERVICES PROVIDED BY LICENSEE AND/OR ANY CUSTOMER BASED ON THE USE OF THE
PROGRAMS, OR THE USE OF ANY OF THE FOREGOING.
9.2 OTHER WARRANTIES
----------------
A. GeoTel warrants and represents that:
(i) the Programs delivered hereunder will provide substantially
fault free performance in the processing of date and date dependent data
(including, but not limited to calculating, comparing, and sequencing
operations) from the Effective Date through the year 2100. Upon request, GeoTel
shall provide sufficient evidence to demonstrate adequate testing of the
Programs to meet this requirement;
(ii) it has full power and authority to enter into and perform
this Agreement, and the person signing this Agreement on behalf of GeoTel has
been properly authorized and empowered to enter into this Agreement;
(iii) disputes over specific named Programs or copies thereof
will not interfere with Technical Support or any other Services for Programs or
copies thereof separately licensed and paid for by Licensee;
(iv) no material portion of the Programs is or will be intended,
other than under documented control of Licensee:
(x) at some specific time or on a specific instruction or
occurrence of a given event, to stop, limit or interfere with the operation of
the Programs in conformity with the applicable Specifications, or;
(y) to damage or materially alter or render inaccessible the
Programs, or any other hardware, software or data which the Programs are
designed to process or use, or any other hardware, programs or data attached to,
resident on, or accessible to the system on which the Programs are executed or
stored; and
GeoTel shall be responsible for, indemnify and hold Licensee harmless from any
damages, costs, liabilities, and/or expenses, including attorneys' fees and
other legal costs, arising out of the breach of the foregoing Subitems (x) and
(y);
(v) the Programs licensed hereunder do not contain any feature
which would impair in any way the operation of the Programs including, but not
limited to, software locks or drop-dead devices, date/time expiration codes, or
serial number dependent passwords, and GeoTel further warrants that GeoTel will
not impair the operation of the Programs in any way;
23
(vi) the Programs, at the then most Current Release level
and/or Update level being utilized by Licensee during the Term, shall at all
times function in conformity with the Specifications when operating and
interacting with all Authorized Platforms and Licensee networks, provided,
however, that where Licensee makes a change in the RDG, then this warranty shall
be abated for a period of ninety (90) days commencing with the effective date of
such change and, subject to Licensee fulfilling its obligation pursuant to
Section 3.1 E, commencing with the ninety first (91st) day from the effective
date of the change to the RDG this warranty shall once again be in full force
and effect as to GeoTel, the Parties expressly agreeing that the foregoing
warranty is intended as a warranty separate from that set forth in Section 9.2
B;
(vii) during the Term, the Programs, at the then most current
Update level and then most Current Release level, will remain competitive with
respect to software made available by other vendors of call routing software;
(viii) it may lawfully grant the licenses for the Programs;
(ix) as of the Effective Date the Deposit Agreement between
GeoTel and Data Securities International, Inc. dated August 25, 1995, in the
form attached hereto as Exhibit G for information purposes only (the "Deposit
Agreement"), is in full force and effect; and
(x) as of the Effective Date, full and complete copies of
GeoTel's then-current Source Code for all of the Programs either then being
licensed to Licensee or otherwise available to Licensee pursuant to this
Agreement along with any other documentation or materials as agreed by the
Parties are held by Data Securities International, Inc. as provided for by, and
subject to, the Deposit Agreement.
B. ADDITIONAL PROGRAM LICENSE WARRANTIES. GeoTel warrants and
represents that for a period of ninety (90) days following the acceptance of a
copy of any Program by Licensee pursuant to Article 7 (the "Warranty Period"),
the copy will be free of Errors when operated on the Authorized Platforms for
such Program. Without limiting any rights or remedies that Licensee may have for
GeoTel's breach of any other warranties set forth in this Section 9.2, in the
event of breach of the foregoing warranty GeoTel shall correct the Error(s)
pursuant to the requirements of Section 11.1 at no additional cost to Licensee,
including without limitation payment to Licensee of Liquidated Damages as
defined and provided in Section 11.1 B 2. Should GeoTel fail to resolve a
Critical Situation in a copy of a Program, as required by Section 11.1 B 1 (i),
by the tenth (10th) day after receipt of notification of the same from Licensee
during the applicable Warranty Period, Licensee can elect, in its sole
discretion either to:
(i) continue to receive such Liquidated Damages until the
Critical Situation is so resolved; or
(ii) at any time from and after the twentieth (20th) day while
such Critical Situation remains unresolved, elect to immediately terminate the
license for such copy and GeoTel shall immediately refund to Licensee all
license fees plus any other moneys paid to GeoTel in
24
connection with such copy, including but not limited to any fees paid for
Technical Support, Installation Services (including such fees paid as an
Installation Deposit) or other Services in connection therewith, provided,
however, that (x) the full value as determined pursuant to Section 2.4 B of the
Eligible Purchases as to which any refunds pursuant to this Subitem (ii) relate,
including without limitation the terminated license for the Program copy and any
related Services, shall nonetheless continue to be deemed Eligible Purchases and
credited against any applicable Purchase Commitment pursuant to Section 2.4 C,
and (y) as of the second instance within any rolling six (6) month period that
Licensee terminates any license to a copy of a Program pursuant to this Subitem
(ii), Licensee shall further be entitled at its option, and in addition to such
rights of termination, refund and continued crediting against the Purchase
Commitment, to treat such second failure to resolve a Critical Situation as a
material breach of this Agreement pursuant to Section 4.2 (but without the
further right of GeoTel to cure as otherwise set forth therein), and to
immediately terminate this Agreement by written notice to GeoTel pursuant to
said Section 4.2.
C. MEDIA WARRANTY. GeoTel warrants the tapes, diskettes or other
media of the Program copies to be free of defects in materials and workmanship
under normal use during the applicable Warranty Period. During such Warranty
Period, Licensee may return defective media to GeoTel and it will be replaced
without charge within twelve (12) business days of receipt by GeoTel.
D. SERVICES WARRANTY. GeoTel warrants that its Technical Support,
Support Services and any other Services provided hereunder will be performed in
a workmanlike manner and in conformity with the professional standards for
comparable services in the industry, and in compliance with the requirements of
this Agreement. This warranty shall be valid for ninety (90) days from the
completion of the Service. In the event of breach of the foregoing warranty,
GeoTel shall immediately reperform the deficient Service and correct the breach
at no additional cost to Licensee.
25
9.3 OTHER LIMITATIONS ON WARRANTIES.
--------------------------------
A. No employee or agent of GeoTel is authorized to give a greater
or different warranty than those set forth herein, unless provided by way of an
amendment to this Agreement pursuant to Section 14.11.
B. Portions of the Programs are derived from third-party software
licensed to GeoTel for integration into GeoTel Programs and sublicensing. No
such third party warrants the Programs or any such portion, assumes any
liability regarding use of such portion or the Programs, or undertakes to
furnish any support or information relating to such portion or the Programs,
provided that the foregoing shall not in any manner limit the applicability of
any obligations as to the Programs undertaken by GeoTel pursuant to this
Agreement as to the Programs in their entirety.
C. DISCLAIMERS. THE EXPRESS WARRANTIES SET FORTH IN SECTION 9.1
AND 9.2 ARE THE ONLY WARRANTIES MADE BY GEOTEL WITH RESPECT TO THE PROGRAMS,
SUPPORT SERVICES AND TECHNICAL SUPPORT. GEOTEL MAKES NO OTHER WARRANTIES,
EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, AND SPECIFICALLY MAKES NO
WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY
10.1 REDACTED MATERIAL
-----------------
10.2 MORE FAVORABLE LIMITATIONS. GeoTel agrees that the foregoing
limitations of liability, both separately and in the aggregate, afforded to
Licensee hereunder shall from time to time and at all times during the Term, be
no less favorable than any limitations of liability, offered to, or agreed to,
by GeoTel with any third party. Where GeoTel offers, or agrees to, any such more
favorable limitation(s) of liability with a third party, GeoTel shall
immediately notify Licensee in writing of the same, such more favorable
limitation(s) shall apply retroactively to Licensee from the date that the same
were offered, or otherwise agreed to, and the Parties shall promptly amend this
Agreement accordingly.
10.3 ALLOCATION OF RISKS. The provisions of this Article 10 allocate the
risks under this Agreement between GeoTel and Licensee. GeoTel's pricing
reflects this allocation of risk and the limitations of liability specified
herein.
11. SERVICES
11.1. TECHNICAL SUPPORT SERVICES.
---------------------------
A. During the applicable Warranty Period, GeoTel will provide
Licensee for each copy of the Programs obtained by License hereunder without
additional charge the technical
26
support as specified in this Section 11.1 and Section 4 of Exhibit D
("collectively the "Technical Support"), provided, that in the event of conflict
between the terms and conditions of this Section 11.1 and those of said Section
4 of Exhibit D, the terms and conditions of this Section 11.1 shall prevail.
Thereafter, during the Term and after any expiration or earlier termination of
this Agreement during such period as Licensee desires to continue, or obtain,
the same as to each such copy, Licensee shall be entitled to purchase Technical
Support, in its sole discretion, and GeoTel shall be obligated to provide such
Technical Support, upon payment by Licensee pursuant to Article 5 of the
applicable Technical Support fee as determined pursuant to Exhibit C, provided
that where Licensee elects to purchase Technical Support after the expiration or
termination of this Agreement, the applicable Technical Support fee shall be
determined based on Exhibit C as in effect as of the effective date of such
expiration or termination.
B. 1. Upon receipt of notice(s) from Licensee specifying Errors in
the current unaltered Release of the Program copy, and upon receipt of such
additional information as GeoTel may reasonably request, GeoTel will, without
cost to Licensee, resolve situations involving Errors according to the following
Severity Levels as assigned to such Errors by Licensee, provided such notice is
received by GeoTel within the Warranty Period or during the term of the
Technical Support, as the case may be:
(i) CRITICAL SITUATIONS: A "Critical Situation" is defined as a
situation in which an Error materially impacts Licensee's and/or a Customer's
productivity and/or service levels. Upon receipt of notification of a Critical
Situation by the GeoTel support organization, GeoTel will work with Licensee
and/or the Customer on a continuous, 24 hour per-day basis, and resolve the
Critical Situation within five (5) calendar days from such notification. GeoTel
can respond to a Critical Situation through providing an Update, patch, revision
or temporary workaround solution or by replacing the affected Program copy with
a Program copy conforming to the Specifications, and GeoTel shall be deemed to
have "resolved" a Critical Situation if it has either corrected the Error(s) or
moved Licensee and the Customer to either a "Moderate" or "Other Situation"
status, as defined below.
(ii) MODERATE SITUATIONS: A "Moderate Situation" is defined as
a situation in which Licensee's and/or Customer's operations are continuing but
the Error impairs the ability to use one or more functions of, or the
performance of, services based on the Program copy. GeoTel will respond to, and
resolve the Moderate Situation by providing to Licensee an Update, patch,
revision or temporary workaround or by replacing the affected Program copy with
a Program copy conforming to the Specifications and in any event correcting the
Error within fourteen (14) days after receiving notice from Licensee of the
situation.
(iii) OTHER SITUATIONS: In all other instances, GeoTel will
provide a solution to a reported GeoTel Program Error in the time frame
reasonably determined by GeoTel.
Where the resolution provided by GeoTel to either a Moderate Situation, or a
Critical Situation that has been reduced to a Moderate Situation, is not
permanent, then GeoTel shall provide a
27
permanent solution as a part of the next Update or Release.
2. The Parties agree that it would be difficult to ascertain the
damages which might be incurred by Licensee as the result of the failure of
GeoTel to resolve a Critical Situation in a copy of a Program as required
pursuant to Section 11.1 B.1(i). Therefore, GeoTel acknowledges and agrees that
for each Error giving rise to a Critical Situation as to a copy of a Program
which GeoTel fails to resolve in the manner specified in Section 11.1 B.1(i)
within the required five days from receipt of notification from Licensee of the
Critical Situation as to such copy, GeoTel shall be liable to Licensee by way of
liquidated damages, and not by way of a penalty, for the amount of REDACTED
MATERIAL per day for each day in excess of such five day maximum that GeoTel
fails to resolve each such Error (the "Liquidated Damages"). Any such Liquidated
Damages shall be paid by GeoTel to Licensee, in Licensee's sole discretion, by
way of either: (i) a payment or payments to be made by GeoTel to Licensee at
such intervals during the continuation of any such failure to correct such
Errors as determined in Licensee's sole discretion, or (ii) one or more offsets
against any then outstanding or subsequent invoices submitted by GeoTel to
Licensee under this Agreement, again as determined in Licensee's sole
discretion, until all Liquidated Damages incurred pursuant to this Section are
paid by GeoTel in full, or (iii) a combination of the foregoing methods of
payment until all such Liquidated Damages are paid in full.
C. RESTRICTIONS ON PROVIDING ERROR CORRECTIONS. GeoTel is not
obligated to perform investigation and/or corrections of Errors reasonably found
by GeoTel to be either: (i) in other than a current, unaltered Release, provided
that GeoTel has made a current Release available to Licensee within the
timeframe specified in Section 11.1D and such new Release still complies with
the applicable Specifications; (ii) caused by Licensee's negligence; (iii)
caused by a modification to the Program by any person or entity other than
GeoTel made without GeoTel's consent or concurrence; (iv) use of the Program in
combination with programs either not furnished or approved by GeoTel or
otherwise certified by GeoTel as working in combination with such Program, or
the use of which in such combination should not reasonably have been anticipated
by GeoTel; (v) caused by use of the Program outside the scope of the User
Documentation; or (vi) due to external causes such as, but not limited to, power
failure or electric surges.
D. UPDATES AND RELEASES. Promptly after making the same generally
commercially available or otherwise available to its other licensees of the
Programs, GeoTel will provide Licensee with one (1) complete copy of each new
Release or Update and one (1) copy of the corresponding User Documentation for
each copy of the Program licensed by Licensee and covered by the Update or
Release. Following shipment of the Release materials, the previous Release shall
remain "current" for purposes hereof for a period of one hundred eighty (180)
days; thereafter only the newly delivered Release will be current. Such newly
delivered Release and the immediately prior Release for such period of 180 days
may be referred to collectively hereinafter as the "Current Release". Releases
will only be issued if Licensee has Technical Support in effect. GeoTel shall
have no obligation hereunder to furnish Licensee with separately priced
components to a Program for which Licensee has not obtained a license.
28
E. RENEWAL/TERMINATION OF TECHNICAL SUPPORT. Each initial term of
Technical Support shall be for a period of one (1) year from the day after the
date of expiration of the Warranty Period and shall automatically renew for
additional, consecutive one-year terms pursuant to the terms and conditions of
this Section 11.1 unless, not less than thirty (30) days prior to the date upon
which the then-current term is due to end, Licensee notifies GeoTel in writing
of its intention to terminate Technical Support in which event Technical Support
shall terminate as of the end of the then-current term of Technical Support. In
addition, Licensee shall be entitled to terminate Technical Support at any time
for a Program copy on thirty (30) days prior written notice to GeoTel, in which
event Licensee shall receive a prorated refund, on a per diem basis, of any
remaining balance of Technical Support fees paid.
F. PRORATED STARTING DATE. GeoTel will prorate Technical Support
fees so that Technical Support for all Programs on a single Designated Computer
or in a single local area network are renewable on the same date, even if all
the Programs or Technical Support were not ordered at the same time. When GeoTel
and Licensee jointly designate such a common renewal date, then renewal and/or
termination pursuant to Section 11.1.E shall take place with reference to that
date.
G. REINSTATEMENT OF TECHNICAL SUPPORT. Licensee may reinstate
Technical Support which has been terminated by payment of a "Reinstatement Fee"
equal to the Technical Support fees that would otherwise have been applicable
pursuant to Exhibit C to the period between the effective date of termination of
Technical Support and the effective date of reinstatement plus payment of the
annual Technical Support fee for the one year period commencing upon the
effective date of reinstatement.
11.2 SUPPORT SERVICES.
----------------
A. Installation Services.
----------------------
1. During the Term Licensee shall purchase for each copy of a
Program obtained hereunder Installation Services as described in this Section
11.2 A and Section 2 of Exhibit D, and GeoTel shall be obligated to provide such
Installation Services upon the ordering of the same by Licensee pursuant to
Section 6.1 at the prices set forth in Exhibit C. Prices set forth in Exhibit C
shall cover Installation Services within North America; Installation Services
for copies of Programs to be installed outside of North America shall be
pursuant to quote from GeoTel.
2. Upon completion of the installation of each Program copy and
associated Designated Computer at Licensee's or Customer's site, such site being
designated in the Order, GeoTel will issue an Installation Certificate
confirming that GeoTel has successfully completed in conformity with the
Specifications, the configuring, installation and testing of the system
comprised of the Program copy and the Designated Computer within the intended
operational environment.
29
3. Licensee shall pay the costs of any shipment of any
Designated Computers to GeoTel's facilities for purposes of installation and
configuration of the Programs on the Designated Computers. GeoTel shall prepay
the costs of shipment and any required packaging, handling and insurance, of the
combined Programs/Designated Computers to the applicable Licensee or Customer
site as specified in the Order, and shall add all such costs to Licensee's final
invoice for the installed Programs.
B. Training Services.
------------------
1. During the Term, Licensee shall be entitled, in its sole
discretion, to purchase Training Services, in addition to those otherwise
included as part of Installation Services, as described in this Section 11.2 B
and Section 3 of Exhibit D (provided that in the event of conflict between the
terms and conditions of this Section 11.2 B and those of said Section 3, the
terms and conditions of this Section 11.2 B shall prevail) and GeoTel shall be
obligated to provide such Training Services at GeoTel's training facilities or
at another location mutually agreeable to GeoTel and Licensee, upon the ordering
of the same by Licensee pursuant to Section 6.1 at the prices determined
pursuant to Exhibit C.
2. GeoTel and Licensee may agree to a "Train the Trainer"
program whereby GeoTel will provide in-depth training services to individuals
designated by Licensee as "Trainers". These "Trainers" will then develop
training materials, documentation and curricula, at Licensee's sole cost, to
support a training program in which Licensee's employees or contractors may
participate to become trained in the use and/or operation of the Programs. The
charge, if any, to Licensee for each such "Trainer" to attend GeoTel training
classes will be the same cost as for any other attendee pursuant to the charges
set forth in Exhibit C. "Trainers" may attend training classes provided in the
normal course of Installation Services pursuant to Section 2 of Exhibit D at no
additional cost.
C. PROJECT MANAGEMENT. GeoTel shall provide a qualified person for
each Customer as a point of contact for Licensee to provide project management,
coordination and other ancillary services to Licensee in connection with the
design and implementation of the project. There shall be no additional charge to
Licensee or Licensee's Customer for these services.
D. MODIFICATION OF USER DOCUMENTATION. At Licensee's request and
cost, but such cost subject to the prior approval of Licensee, GeoTel will make
reasonable modifications to the User Documentation, including without limitation
the addition of Licensee's "MCI logo" to the cover and title pages of the User
Documentation. GeoTel shall not be obligated to replace the GeoTel product names
on the User Documentation.
11.3 SOFTWARE DEVELOPMENT SERVICES
-----------------------------
A. During the Term, GeoTel shall develop and provide to Licensee
such modifications to the GeoTel Software (the "Modifications") as may be
requested from time to time by Licensee (the "Software Development Services"),
subject to GeoTel notifying Licensee in
30
writing within thirty (30) days after receipt of each such request as to a
reasonable, good faith basis upon which GeoTel believes that the development of
the requested Modifications are either (i) not technically feasible, or (ii)
inconsistent with GeoTel's core business. Such notice shall set forth in
reasonably sufficient detail the basis for GeoTel's rejection.
B. Unless GeoTel provides the foregoing notice to Licensee within
the applicable thirty day time period, GeoTel shall work with Licensee to create
a requirements document for the requested Modifications (the "Technical
Specification"), which Technical Specifications are subject to the final
approval of Licensee. Licensee shall reimburse GeoTel for the reasonable time
and materials costs incurred by GeoTel in developing the Technical
Specifications by either: (i) reimbursing GeoTel for such costs promptly after
the Parties have failed to agree upon the development terms and conditions for
the Modifications required pursuant to Section 11.3 C within a reasonable period
of time after finalization of the Technical Specifications, or (ii) where such
terms and conditions are agreed upon by the Parties within such reasonable time
period, then such time and materials costs shall be incorporated into the agreed
pricing for the development of the Modifications. The rates for GeoTel personnel
developing the Technical Specifications shall be those set forth in Section C of
Exhibit C.
C. Upon finalization of the applicable Technical Specifications,
GeoTel and Licensee shall negotiate, in good faith, the terms and conditions
governing development by GeoTel of the requested Modifications pursuant to the
Technical Specifications, including without limitation: (i) the applicable
development milestones/deliverables and schedule, (ii) the payment mode, whether
by fixed price, hourly or otherwise, but subject to Section 11.3 D, and in any
event including payment of the reimbursable costs pursuant to Section 11.3 B
unless previously paid by Licensee, and (iii) such other terms and conditions as
may be agreed by the Parties. Upon agreement by the Parties as to the foregoing
terms and conditions, the same shall be set forth in either a written amendment
to this Agreement or a separate written agreement between the Parties.
D. GeoTel shall perform the Software Development Services for any
Modifications during the Term based upon the rates set forth in Section C of
Exhibit C.
E. GeoTel agrees that it shall develop Programs with so-called
"service bureau capabilities" (formerly referred to as "partitioning"), such
Programs hereinafter being referred to as the "Service Bureau Programs". GeoTel
acknowledges and agrees that it has determined that such Service Bureau Programs
are both technically feasible and consistent with the scope of GeoTel's core
business. GeoTel agrees that it shall develop the Service Bureau Programs
subject to the following:
(i) GeoTel will commence developing the Service Bureau Programs
within sixty (60) days after the Effective Date and make such Service Bureau
Programs available for licensing by Licensee hereunder in their final generally
commercially available form by no later than sixteen (16) months from the
Effective Date;
(ii) Licensee will participate in the development by GeoTel of
the Technical Specifications for the Service Bureau Programs but shall have no
liability for any costs, expenses
31
or other moneys incurred by GeoTel in connection with that effort;
(iii) Licensee will fund an acceleration of GeoTel's development
calendar to include completion of the Service Bureau Programs in the time frame
specified in Subitem (i) immediately above by placing an Order with GeoTel for
the amount of Two Hundred Fifty Thousand Dollars ($250,000) upon the completion
of the Technical Specifications for the Service Bureau Programs (the
"Acceleration Fee"), and except for payment of the Acceleration Fee by Licensee,
Licensee shall have no other obligation to fund any portion of the development
of the Service Bureau Programs by GeoTel;
(iv) in consideration for payment of the Acceleration Fee,
GeoTel will further grant Licensee credits in the amount of the Acceleration Fee
which Licensee shall be entitled to apply against fees for purchases of licenses
for the Service Bureau Programs hereunder, or, at Licensee's sole discretion,
instead as a credit against fees for purchases of any other Programs or Services
hereunder if: (x) the Service Bureau Programs are made available by GeoTel to
Licensee in final generally commercially available form at a list price per copy
that exceeds sixty percent (60%) of the then applicable Exhibit C list price
hereunder per copy of a dedicated call router Program as defined in Exhibit C,
Model Number 12002 or its functional equivalent; or (y) in Licensee's sole
judgment, the Service Bureau Programs do not meet the functional and performance
requirements of Licensee. Any fees for purchases by Licensee utilizing any
portion of the Acceleration Fee credit shall be considered as Eligible Purchases
hereunder and as such will be applied towards meeting the Purchase Commitment;
and
(v) in the event that GeoTel does not make the Service Bureau
Programs conforming with the applicable Technical Specifications available in
final generally commercially available form for licensing by Licensee hereunder
by the date required pursuant to Subitem (i) immediately above, then the
Purchase Commitment shall from and after such due date be reduced by, and
Licensee shall be released from and have no further obligation or liability in
connection therewith, the amount of One Hundred Sixty Six Thousand Six Hundred
Sixty Six Dollars ($166,666) for every full calendar month after such due date
that the Service Bureau Programs are not made available for licensing by
Licensee in final generally commercially available form, provided that from and
after the date twenty four (24) calendar months from the Effective Date if such
failure to make the Service Bureau Programs so available continues, Licensee
shall further be entitled, at its option, in addition to the foregoing
continuing reduction in the Purchase Commitment, to obtain, and GeoTel shall be
obligated to provide, a prompt refund of the entire Acceleration Fee, provided,
further, however, that except to the extent of the remedies expressly provided
to Licensee pursuant to this Section 11.3 E(v) in the event of GeoTel's failure
to make the Service Bureau Programs so available by the date required pursuant
to Subitem (i) immediately above, such failure shall not otherwise be deemed a
material breach of this Agreement by GeoTel.
11.4 ADDITIONAL SERVICES During the Term, Licensee may request, and GeoTel
may perform, services in connection with the Programs which GeoTel is not
otherwise required to perform under the terms of this Agreement (the "Additional
Services") and Licensee shall pay to GeoTel a mutually agreed upon fee based on
the fees set forth in Section C of Exhibit C, including
32
reasonable travel expenses and out-of-pocket expenses approved by Licensee, for
any such Additional Service which GeoTel agrees to perform.
11.5 ONSITE SERVICES GeoTel shall comply with the following requirements as
to any onsite services to be performed for Licensee hereunder:
A. INSURANCE. During the Term, GeoTel shall comply with the
Insurance Requirements set forth in Exhibit E ("Insurance Requirements")
attached hereto and incorporated herein by this reference.
B. INCIDENTAL EXPENSES. Licensee shall not be obligated to
reimburse GeoTel for travel and out-of-pocket expenses incurred by GeoTel in
connection with on-site services expressly included in the provision of the
Support Services or Technical Support. Unless otherwise agreed by the Parties,
Licensee shall reimburse GeoTel pursuant to Exhibit F ("Licensee Travel Policy")
attached hereto and incorporated herein by this reference, for reasonable travel
and out-of-pocket expenses actually incurred by GeoTel in connection with
on-site services either requested by Licensee pursuant to Section 11.4 or
otherwise outside of the scope of the on-site services expressly included in the
Technical Support or Support Services.
11.6 DESIGNATED COMPUTERS. GeoTel acknowledges and agrees that any
Designated Computers while in its possession or control during the performance
of any Services is and shall remain the property of Licensee, its xxxxxx or its
designee, and GeoTel shall have no right, title or interest in or to such
Designated Computers other than the limited right of possession and use in order
to perform any of the Services as may be requested by Licensee from time to time
hereunder. While in GeoTel's possession or control, GeoTel shall:
(i) keep the Designated Computers in a secure environment, free
and clear of any and all claims, liens, security interests and other
encumbrances;
(ii) permit Licensee personnel or Licensee's designees
reasonable and free access to the Designated Computers; and
(iii) bear all risk of loss of and damage to the Designated
Computers, and shall further insure the Designated Computers against, and upon
receipt of an invoice, reimburse Licensee for any damage to the Designated
Computers sustained during such possession or control.
11.7 GEOTEL PERSONNEL. GeoTel represents and warrants that pursuant to the
Internal Revenue Code of 1986, as it may be amended or interpreted from time to
time, the regulations promulgated thereunder, and applicable provisions of the
common law, all GeoTel Personnel will be independent contractors in relation to
Licensee. Accordingly, GeoTel will file, or cause to filed, all required forms
and necessary payments appropriate to the status of GeoTel Personnel as
independent contractors in relation to Licensee.
33
11.8 GEOTEL INDEMNITY. GeoTel at GeoTel's own expense, shall defend, hold
harmless and indemnify Licensee, its Affiliates, and its and their respective
directors, officers, employees and agents, from and against any and all claims,
costs, liabilities, damages, losses or expenses (including reasonable attorneys'
fees and allocated in-house legal expenses) arising from: (i) third party claims
of injury to or death of any person or loss of or damage to any tangible
property (excluding claims for lost data) to the extent caused by the
intentional or negligent acts or omissions of GeoTel or any GeoTel Personnel in
the performance of any of the Services, or (ii) any GeoTel Personnel being
declared to have "employee" status with respect to Licensee.
12. LICENSEE RESPONSIBILITIES REGARDING INSTALLATION SERVICES
12.1 OTHER REQUIREMENTS. Licensee will plan, select and order the quantity,
types and providers of telephone, data access lines or circuits, local area and
wide area network hardware and network services in connection with the
Installation Services and will arrange for their wiring, interconnection,
delivery and setup, as the case may be, at a demarcation point mutually agreed
upon by Licensee and GeoTel. Licensee will take appropriate steps to assure that
the date for GeoTel installation will not be delayed due to non-availability of
such lines, circuits, local area or wide area network hardware or services.
12.2 TELEPHONE ACCESS. Licensee shall provide at the installation site in
connection with Installation Services, at its expense, one telephone access line
for remote support and testing of the Programs and business use of GeoTel at the
demarcation point.
12.3 ADDITIONAL RESPONSIBILITIES. GeoTel shall also advise Licensee of any
additional Licensee responsibilities to enable installation of Programs by
GeoTel.
13. SOURCE CODE ESCROW
13.1 ESCROW AGREEMENT Simultaneously with the execution of this Agreement,
the Parties shall execute an "Additional Party Agreement" in the form of
Appendix C to the Deposit Agreement that shall be effective as of the Effective
Date to secure Licensee's rights hereunder and which Licensee shall be entitled
to maintain in effect during the period specified in Section 13.6. GeoTel
expressly agrees that any and all breaches by, or liability of, Licensee under
or in connection with the Source Code Escrow Agreement and such Additional Party
Agreement shall be subject to the limitations of liability set forth in Section
10.1 ("Limitations") of this Agreement, and that any Source Code Materials or
other Source Code received by Licensee thereunder or hereunder shall be subject
to the provisions of Section 9.1 hereto. GeoTel agrees that at its sole expense
during the period specified in Section 13.6 it shall maintain the Deposit
Agreement in full force and effect with Data Securities International, Inc., or
should such Deposit Agreement with Data Securities International, Inc. terminate
or otherwise expire for any reason during such period, then GeoTel shall
immediately enter into a replacement escrow arrangement for the Source Code
Materials, as defined below, with a replacement independent escrow agent
mutually satisfactory to GeoTel and Licensee (Data Securities International,
Inc. or such replacement escrow agent, as applicable, hereinafter being referred
to as the "Escrow Agent") pursuant to a
34
form of agreement either substantially similar in form to the Deposit Agreement
or as otherwise mutually agreed by the Parties and in any event in accordance
with the provisions of this Article 13 (the Deposit Agreement or such
replacement agreement, as applicable, hereinafter being referred to as the
"Source Code Escrow Agreement").
A. SOURCE CODE RELEASE. Release of the Source Code Materials to
Licensee for a particular Program shall be on terms and conditions (including
notice, redeposit and other provisions) as set forth in the Source Code Escrow
Agreement, but in any event such release shall be granted if:
(i) GeoTel becomes unable to support such Program by reason of
insolvency, making an assignment for the benefit of creditors, having a receiver
appointed to manage its affairs, ceasing to do business or being adjudicated a
bankrupt under the laws of the United States; and
(ii) Licensee's use of such Program is likely to be seriously
impaired as a result.
B SOURCE CODE LICENSE. In the event that Licensee is furnished a
copy of any Source Code Materials, Licensee shall be authorized to use such
Source Code Materials only for the purpose of performing those support services
and Technical Support with respect to the affected Program that GeoTel was to
perform hereunder or as otherwise referred to in Section 13.6 at the time
Licensee is furnished such copy of the Source Code Materials. Any such Source
Code Materials shall be treated as proprietary and confidential material of
GeoTel under this Agreement and shall also be subject to all conditions and
restrictions set forth in Licensee's Additional Party Agreement under the Source
Code Escrow Agreement.
13.2 SOURCE CODE MATERIALS; AUDIT The Source Code Materials required to be
deposited with the Escrow Agent as of the Effective Date pursuant to Section 9.2
A (x) shall be kept current so as to accurately reflect the Source Code for the
then Current Releases of the Programs either under license to Licensee or
otherwise available to Licensee pursuant to this Agreement from time to time and
promptly updated by GeoTel, but in any event no less frequently than following
each material upgrade, modification or enhancement thereto, including without
limitation any new Releases or Updates provided to Licensee hereunder, and the
same shall be part of the Source Code Materials. GeoTel shall designate a
mutually acceptable neutral third party who, at the expense and request of
Licensee made from time to time, shall audit the materials deposited with the
Escrow Agent under the Source Code Escrow Agreement for purposes of determining
whether GeoTel has fulfilled its deposit obligations. GeoTel will promptly
correct any deficiency disclosed by the audit.
13.3 BANKRUPTCY, LIQUIDATION, ETC. The obligations of GeoTel under this
Article 13 shall extend to any trustee in bankruptcy, receiver, administrator or
liquidator appointed for
35
GeoTel and GeoTel as debtor-in-possession ("Trustee"), as well as to any other
successor in interest to GeoTel. Without limiting the generality of the
foregoing, upon written request of Licensee, GeoTel shall not interfere with the
rights of Licensee as provided in this Agreement or the Source Code Escrow
Agreement to obtain the Source Code Materials from the Trustee, the escrowee or
any other person or entity having possession thereof, and shall, if requested
under the conditions specified in the Source Code Escrow Agreement for release
of the Source Code Materials, cause a copy of such Source Code Materials to be
made available to Licensee.
13.4 DISPUTES REGARDING SOURCE CODE MATERIALS. Notwithstanding that GeoTel
has submitted the affidavit referred to in Section 4 of the Source Code Escrow
Agreement in response to Licensee's written notice to the Escrow Agent of the
occurrence of an Event of Release, as defined in said Section 4, or that a
dispute between GeoTel and Licensee pursuant to the Source Code Escrow
Agreement, including arising under Section 4, has been submitted to arbitration
pursuant to Section 5 of that agreement, the Parties agree that the Source Code
Materials shall nonetheless be released to Licensee by the Escrow Agent. If the
arbitrator(s) ultimately find that under the terms of this Agreement release of
the Source Code Materials to Licensee should not have occurred, Licensee shall
return the Source Code Materials to the Escrow Agent.
13.5 FUTURE EVENTS. In the event that Licensee and GeoTel enter into a
separate agreement or an amendment to this Agreement providing for broader
distribution rights than set forth herein as of the Effective Date in which
Licensee becomes a reseller of GeoTel's Programs and Services, and/or services
based upon GeoTel's Programs and Services, directly or indirectly to the
end-user marketplace under Licensee's or third party private brand labels and is
marketing the Programs, Services and/or services as strategic Licensee products
and services, then GeoTel and Licensee will as a function of such separate
agreement or amendment to this Agreement negotiate in good faith the addition to
the then existing Source Code Escrow Agreement under this Agreement and any
escrow agreement under any such separate agreement a Source Code Materials
release trigger to address a failure of GeoTel to provide Technical Support.
13.6 SURVIVAL. The obligations of GeoTel under this Article 13 shall
survive and remain in effect until the later to terminate or expire of (i) this
Agreement or (ii) any separate agreement or other arrangement between the
Parties with respect to Technical Support or other maintenance and support for
the Programs, including without limitation any such agreement or other
arrangement between the Parties pursuant to Section 11.1 A in effect after the
expiration or termination of this Agreement.
14. GENERAL TERMS
14.1 INDEPENDENT CONTRACTORS. Notwithstanding anything herein contained to
the contrary, GeoTel and Licensee shall operate in the capacity of independent
contractors hereunder and nothing contained in this Agreement shall be deemed or
construed as creating a joint venture or partnership between GeoTel and
Licensee. Neither Party is by virtue of this Agreement authorized as an agent,
employee or legal representative of the other nor shall either Party have any
power or authority to bind or commit the other. Neither Party will represent to
any third
36
parties that it has any right to enter into any binding obligation on the other
Party's behalf. Neither Party shall have power to control the activities and
operations of the other, it being intended that each Party is and at all times
will remain an independent contractor.
14.2 SEVERABILITY. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity without invalidating the remainder of
such provision or the remaining provisions of this Agreement, and the prohibited
or invalid provision, to the extent of such prohibition or invalidity, shall be
replaced by a mutually acceptable provision which, being valid and enforceable,
comes closest to the intention of the Parties underlying the invalid or
unenforceable provision.
14.3 WAIVER. The waiver by either Party of any default or breach of this
Agreement shall not constitute a waiver of any other or subsequent default or
breach.
14.4 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of New York, without reference to its choice of law provisions. This
Agreement will not be governed by the United Nations Convention for the
International Sale of Goods.
14.5 ASSIGNMENT. This Agreement shall be binding on and inure to the
benefit of the Parties hereto and their respective successors and assigns.
Either Party may assign this Agreement, and, at such respective Party's option,
all of such Party's rights and obligations under all licenses to Program copies
then held by Licensee, subject to the prior express written consent of the other
Party, which consent shall not be unreasonably withheld or delayed; provided,
however, that notwithstanding the foregoing, either Party may, without the
consent of the other Party, assign its rights and obligations hereunder, and at
such assigning Party's option, all of such Party's rights and obligations in
Program licenses then held by Licensee, to an Affiliate, or to a successor in
interest or to a purchaser of all or substantially all of the assets of that
portion of such Party's business as to which this Agreement pertains, provided,
further, however that where any such assignment without consent is made by
GeoTel pursuant to this clause to any of the entities or any Affiliates of such
entities as listed in Exhibit H ("Prohibited Entities for Assignment"), then as
of the effective date of such assignment Licensee shall be released from and
have no further obligation or liability in connection with, and GeoTel shall be
deemed to have waived, the Purchase Commitment for the Contract Year in which
such assignment is effective as well as any Purchase Commitments for any
subsequent Contract Years, and Licensee and the assignee covered by Exhibit G as
to which GeoTel has made such assignment shall each further be entitled, at
their respective sole option, to terminate this Agreement by providing written
notice thereof to the other Party without any liability of any kind, but subject
to the provisions of Sections 4.4 A, 4.4 B, 4.5 and 4.6. Any prohibited
assignment shall be null and void.
14.6 NOTICES. All notices, requests, demands, or communications required or
permitted hereunder shall be in writing and shall be either delivered personally
(including delivery by Federal Express or other comparable nation-wide overnight
courier service), sent by facsimile
37
transmission, or sent by certified or registered mail, postage prepaid, return
receipt requested, to the respective addresses set forth below (or at such other
addresses as shall be given in writing by either Party to the other) to:
Licensee: MCI Telecommunications Corporation
0 Xxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attn.: Xxxx Xxxxxxxx, Contract Administrator
GeoTel: GeoTel Communications Corporation
00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn.: Xxx Xxxxx, Chief Financial Officer
All notices, requests, demands or communications shall be deemed delivered
(a) on the date of delivery (or first business day thereafter if delivered on
Saturday, Sunday or legal holiday, or after normal business hours) when
delivered personally, (b) on the date of transmission (or first business day
thereafter if delivered on Saturday, Sunday or legal holiday, or after normal
business hours) when sent by facsimile transmission with telephonic confirmation
of receipt, and (c) on the date shown on the receipt when sent by certified or
registered mail unless delivery is refused or delayed by the addressee, in which
event they shall be deemed delivered one (1) day after dispatch.
14.7 EXPORT ADMINISTRATION. GeoTel and Licensee shall comply with all
applicable laws, regulations and rules, including, without limitation, the
export control laws of the United States of America and prevailing regulations
which may be issued from time to time by the United States Department of
Commerce and Office of Munitions Control, U.S. Department of State, concerning
the exporting, importing and re-exporting of the Programs, in their respective
performances under this Agreement. Without limiting the generality of the
foregoing, GeoTel and Licensee each agrees that it shall not export or re-export
any Programs or the direct product thereof in violation of the regulations of
the United States Department of Commerce or the U.S. Export Administration Act.
14.8 APPROVAL OF APPROPRIATE GOVERNMENTAL AUTHORITIES. Prior to
delivery of the Programs, GeoTel and Licensee shall apply to the appropriate
governmental authorities and obtain all approvals necessary for their respective
execution and fulfillment of this Agreement and the payment of the fees or other
moneys due hereunder.
14.9 HEADINGS Headings used in this Agreement are for convenience of
reference only and shall not be construed as altering the meaning of an Article,
Section or this Agreement.
4.10 COUNTERPARTSARTICLE . This Agreement may be executed simultaneously in
two counterparts, each of which shall be deemed an original but both of which
together shall constitute one and the same agreement.
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14.11 EXHIBITS. In the event of conflict between the terms and conditions
of this Agreement and the provisions of any Exhibit hereto, the terms and
conditions of this Agreement shall prevail.
14.12 ENTIRE AGREEMENT. This Agreement, including all Orders, along with
the Deposit Agreement, and the Additional Party Agreement constitute the
complete agreement between the Parties and supersedes all previous agreements or
representations, written or oral, with respect to the matters specified herein.
This Agreement may not be modified or amended, or any provision hereunder
waived, except in a writing signed by a duly authorized representative of each
Party (unless otherwise expressly provided to the contrary herein as to any
waiver). This Agreement shall supersede the terms of any unsigned license
agreement included in a package for GeoTel furnished Programs.
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IN WITNESS WHEREOF, the duly authorized representatives of the Parties have
executed this Agreement.
GEOTEL: LICENSEE:
GEOTEL COMMUNICATIONS MCI TELECOMMUNICATIONS
CORPORATION CORPORATION
By: By:
------------------------------ ----------------------------
(Authorized Signature) (Authorized Signature)
Name: Name:
---------------------------- --------------------------
(Type or Print) (Type or Print)
Title: Title:
--------------------------- -------------------------
Date: Date:
---------------------------- -------------------------
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EXHIBIT A
AFFILIATES AND ALLIANCE PARTNERS
A.LICENSEE AFFILIATES
1.networkMCI, Inc.
2.MCImetro Access Transmission Services, Inc.
3.MCI International, Inc.
4.MCI International Telecommunications Corporation
5.MCI Equipment Acquisition Corporation
6.MCI Wireless, Inc.
7.Overseas Telecommunications, Inc.
8.SHL Systemhouse Inc. (Canada)
9.SHL Systemhouse Corp. (U.S.)
10.SHL Computer Innovations, Inc. (Canada)
11.Telecom*USA, Inc.
B.REDACTED MATERIAL
-----------------
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EXHIBIT B
PERFORMANCE CRITERIA
The Programs shall be subject to the following Performance Criteria:
1. uptime measured over a rolling thirty (30) day period/Programs
availability in fully redundant configurations: ninety nine percent (99%)
uptime; and
2. response time to network: 60 calls per second in a properly
configured and redundant system.
a
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EXHIBIT C
PROGRAMS AND SERVICES PRICING
A. PROGRAMS AND LIST PRICES.
The GeoTel list prices for Program copy licenses, Technical Support and
Installation Services in effect as of the Effective Date are set forth in
Attachment A ("GeoTel Price List") attached to this Exhibit C and incorporated
herein by this reference.
B. REDACTED MATERIAL
a
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EXHIBIT D
TECHNICAL SUPPORT AND SUPPORT SERVICES
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EXHIBIT E
INSURANCE REQUIREMENTS
During the term of this Agreement the following insurance shall be maintained by
Licensor:
COMPREHENSIVE OR COMMERCIAL GENERAL LIABILITY INSURANCE. Comprehensive or
Commercial General Liability Insurance naming Licensor and its affiliates as the
named insured. LICENSEE, et al is to be named as an ADDITIONAL INSURED for
purposes of this Agreement. This policy shall cover liability for injury to or
death of persons or damage to property including but not limited to work
associated with this Agreement, including such liability as may arise from the
use of independent contractors, and contractual liability assumed under this
Agreement. The policy shall provide a limit of $1 Million combined single limit
(CSL) per occurrence and aggregate (where applicable) for bodily injury,
personal injury and property damage, and shall:
Cover broad form property damage;
Cover broad form/blanket contractual liability (both oral and written
contracts); Cover personal injury liability;
Cover employees as additional insured;
BUSINESS AUTOMOBILE LIABILITY INSURANCE. Business Automobile Liability
Insurance including coverage for owned, hired, and non-owned vehicles in the
amount of:
$1 Million CSL per occurrence/accident for bodily injury and property
damage. LICENSEE, et al is to be named as an ADDITIONAL INSURED for purposes of
this Agreement.
WORKER'S COMPENSATION AND EMPLOYERS' LIABILITY INSURANCE. Workers'
Compensation in the statutory amount(s) and with benefits required by the laws
of the state in which the Work is performed and the state(s) in which employees
are hired, if the state(s) are other than that in which the Work is performed.
Employers' Liability with minimum limit of liability of:
$1 Million for bodily injury by accident/each accident; $1
Million for bodily injury by disease/each employee; and $1 Million
for bodily injury by disease/policy limit (aggregate).
Certificates of such insurance shall be submitted to LICENSEE naming LICENSEE,
et al as ADDITIONAL INSURED on such policies as appropriate, prior to the start
of Licensor's performance or this Agreement. The certificates shall certify
that no material alteration, modification or termination of such coverage
shall be effective without at least thirty (30) days advance notice to LICENSEE.
Licensor's carriers shall waive
45
all rights of recovery against LICENSEE for any injuries to persons or damage
to property related to of this Agreement.
Licensor shall require each subcontractor to provide and
maintain at all times during the term of this Agreement insurance
equivalent to that which is required of Licensor.
Subcontractor and Subcontractor's carriers shall waive all right
to recovery against LICENSEE for any injuries to persons or
damage to property in the execution of Work
performed under this Agreement.
Licensor shall permit any authorized representative of LICENSEE
to examine Licensor's original insurance policies should LICENSEE so request.
Should Licensor at any time neglect or refuse or provide the insurance
required, or should such insurance be canceled or non-renewed, LICENSEE shall
have the right to purchase such insurance, and the cost shall be billed to
Licensor. In addition, should Licensor at any time neglect or refuse to pay the
necessary premium, LICENSEE shall have the right to deduct this amount
from moneys due Licensor. Licensor and all subcontractors shall ensure full
compliance with the terms of the Occupational Safety and Health Administration
(OSHA) and all locations, jurisdictions' safety and health regulations
during the full term of this Agreement.
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EXHIBIT F
LICENSEE TRAVEL POLICY
(a)Authorization. The Licensee Technical Representative may request GeoTel
Personnel to travel in the performance of duties. GeoTel Personnel must receive
approval from GeoTel and must have the written authorization of the appropriate
Licensee Director before commencing travel.
(b) Payment Procedure.
(1) GeoTel shall initially be responsible for travel expenses and shall
reimburse GeoTel Personnel, as appropriate.
(2)GeoTel will then invoice Licensee for the travel. A
separate Purchase Order will be used for all travel expenses. All
travel, transportation, and per diem expenses, copies of which shall
accompany invoices, for which reimbursement is sought, shall have
the signature of the Licensee Technical Representative and shall be itemized
and substantiated with appropriate receipts.
(3)Expense reports must be filed within five (5) days of completion of travel
and invoiced on the next regular invoice submission to Licensee.
(c) Payment Policy. Licensee-approved travel and related Licensee-approved
out-of-pocket expenses incurred in performing services for Licensee under the
Agreement shall be invoiced to Licensee at cost. All travel expenses must comply
with Licensee's corporate travel policy in effect during the term of
this Agreement (a copy of which is on file with Licensee).
(d) Reimbursement will be as follows:
(1)Commercial transportation - Reimbursable on an "incurred cost" basis at
economy, tourist or coach rates; or business class for international travel.
(2)Private automobile - Reimbursable at Licensee's standard rate, not to
exceed $0.24 per mile.
(3)Per diem - Reimbursable for actual lodging and local transportation and
actual meal expenses not to exceed $30.00 per day.
(4)Licensee will not reimburse for rental cars in conjunction with visits
to Licensee's Arlington facility.
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(e)Licensee will not reimburse GeoTel for local travel incurred as a result
of commuting to Licensee's facility to perform Work.
(f) In no event shall Licensee be liable for any travel charges
associated with relocation of GeoTel's personnel without the written approval of
the Licensee Authorized Representative.
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EXHIBIT G
DEPOSIT AGREEMENT
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EXHIBIT H
PROHIBITED ENTITIES FOR ASSIGNMENT
REDACTED MATERIAL
