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EXHIBIT 10.26
VALUE ADDED RESELLER AGREEMENT
TALARIAN CORPORATION
NORTHERN TELECOM LIMITED
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MEMORANDUM OF AGREEMENT effective from the 17th day of December, 1993.
BY AND BETWEEN:
TALARIAN CORPORATION, a corporation duly incorporated under the laws of
California, with offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America (hereinafter referred to as
"Talarian"),
AND:
NORTHERN TELECOM LIMITED, a corporation duly incorporated under the laws
of Canada, having its executive offices at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, for itself and its Subsidiaries
(individually and collectively hereinafter referred to as "Northern
Telecom").
WHEREAS Talarian is in the business of developing and marketing proprietary
advanced software products, having a commercial name RTworks(TM), for the
performance of intelligent real-time monitoring, analysis, display, and control
of complex systems; and
WHEREAS Northern Telecom wishes to acquire, and Talarian desires to grant
Northern Telecom, a right and license to develop applications using Talarian's
RTworks and distribute such applications incorporating run-time versions of
RTworks under the terms and conditions of this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES HEREINAFTER SET FORTH,
THE PARTIES AGREE AS FOLLOWS:
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VALUE ADDED RESELLER AGREEMENT
1. DEFINITIONS:
"Applicable Price List" shall mean Talarian's published U.S. price list
document effective at the Effective Date and attached hereto as Schedule
A and made a part hereof or as modified pursuant to the provisions of
Article 5.1.
"Critical Problem" shall mean any problem, bug or error caused by a
defective RTworks Software Product which causes such RTworks Software
Product to stop functioning.
"Contractor" shall mean a third party contracted by Northern Telecom to
develop for the benefit of Northern Telecom a NT System using the
RTworks Development System.
"Distribute" and "Distribution" shall mean Northern Telecom's, a
Manufacturing Licensee's or a Distributor's shipment or transmission of
a NT System to its customers or Northern Telecom's, a Manufacturing
Licensee's or a Distributor's use of a NT System within its premises for
end user purposes.
"Distributor" shall mean a third party entity, other than a
Manufacturing Licensee, who enters into an agreement with Northern
Telecom, a Manufacturing Licensee or a Distributor to lease, (except for
RTworks Runtime Application which is sublicensed) sell, sublicense or
Distribute NT Systems.
"End User" shall mean a third party licensed to use a NT System in the
Territory.
"Effective Date" shall mean the date first above mentioned.
"Knowledge Base" shall mean the application specific instructions, rules
and objects written by Northern Telecom and which through use of a
RTworks Development System are incorporated within a RTworks Runtime
Application.
"Manufacturing Licensee" shall mean a third party entity who enters into
an agreement with Northern Telecom or any of its Subsidiaries to
manufacture and Distribute NT Systems.
"Minor Problem" shall mean any problem, bug or error caused by a
defective RTworks Software Product and which is not a Critical Problem
or a Serious Problem.
"Northern Telecom Application Program" shall mean software created by
Northern Telecom other than by the use of a RTworks Development System
or obtained from sources other than Talarian which when combined with a
RTworks Runtime Application shall constitute a complete deliverable and
executable application as part of a NT System.
"NT System" shall mean a telecommunications system of a Type listed in
Schedule B attached hereto and made a part hereof, consisting in part of
either:
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(a) software which includes a RTworks Runtime Application and
Northern Telecom Application Program; or
(b) commercially available computing platforms for which Talarian
commercially provides RTworks Software Products, such platforms
having one or more CPUs, software which includes a RTworks
Runtime Application and a Northern Telecom Application Program,
and associated peripherals;
such telecommunications system being developed by or for Northern
Telecom or in modified or unmodified form by or for a Manufacturing
Licensee, and Distributed, leased, sublicensed or (except for RTworks
Runtime Application which is sublicensed) sold by Northern Telecom, a
Manufacturing Licensee, or a Distributor under Northern Telecom's or a
Manufacturing Licensee's name.
"RTworks Development System" shall mean a copy of all or any portion of
Talarian's proprietary product generally known as RTworks, and certain
tools and means which Talarian may provide to Northern Telecom from time
to time, RTworks Documentation and other associated documentation for
such product, and all Updates, enhancements and evolutions of such
product and its associated tools and means and associated documentation,
under whatever name, in object code form, which enable a user to develop
an application using such product and generate executable copies of such
an application. The RTworks Development System is more fully described
in the Specifications.
"RTworks Documentation" shall mean the documentation, whether provided
in printed form or on machine-readable media, which is generally
provided by Talarian to its licensees in conjunction with and in support
of the RTworks Development System, including all modifications,
revisions and enhancements to such documentation.
"RTworks Runtime Application" shall mean the executable copy of an
application developed by Northern Telecom using a RTworks Development
System. The RTworks Runtime Application consists of portions of software
included with and generated by a RTworks Development System and also
includes Knowledge Base but specifically excludes the Northern Telecom
Application Program and those portions of a RTworks Development System
which are necessary to enable a user to develop, generate or modify a
RTworks Runtime Application.
"RTworks Software Product" shall mean the RTworks Development System and
RTworks Runtime Application but shall specifically exclude Knowledge
Base and Northern Telecom Application Program(s).
"Serious Problem" shall mean any problem, bug or error caused by a
defective RTworks Software Product which seriously impacts the operation
of such RTworks Software Product without causing it to stop operating.
"Specification(s)" shall mean Talarian's published specifications for a
particular release of RTworks Software Products.
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"Sublicense Agreement" shall mean a license agreement form providing
terms and conditions substantially similar to those listed in Schedule C
attached hereto and made a part hereof.
"Subsidiary" shall mean any corporation or company in which Northern
Telecom Limited directly or indirectly owns and controls, and continues
to own and control, more than fifty percent (50%) of the shares entitled
to elect the Board of Directors.
"Technical Support" shall mean technical support Talarian provides to
Northern Telecom under the terms and conditions as set forth in Article
7 and Schedule D attached hereto and made a part hereof.
"Term" shall mean the period extending ten (10) years from the Effective
Date.
"Type" shall mean, in respect of NT Systems, a category of NT Systems,
definitions of which are given in Schedule B attached hereto and made a
part hereof, each category comprising an original NT System and all
enhancements, modifications and other evolutions thereof.
"Update" shall mean one (1) copy of all published revisions and
corrections to the printed documentation and one (1) copy of corrections
and new releases of each of the RTworks Software Products obtained by
Northern Telecom from Talarian pursuant to the provisions of this
Agreement provided that such new releases are not designated as new
products for which Talarian charges separately.
2. GRANT OF LICENSES
2.1 Talarian grants to Northern Telecom a personal, non-exclusive,
non-transferable, worldwide license:
(a) to use the RTworks Development Systems, at the license fee
set forth in Schedule E attached hereto and made a part
hereof, solely in connection with Northern Telecom's
development, modification, testing, Distribution, and
provision of technical support for NT Systems;
(b) to make and, directly or indirectly through Distributors,
Distribute copies of RTworks Runtime Applications to End
Users (pursuant to a Sublicense Agreement) solely when
incorporated within a NT System;
(c) to use RTworks Runtime Applications incorporated into NT
Systems, at no license fee, solely to demonstrate to
Northern Telecom's potential customers the features of a
NT System;
(d) to incorporate portions of RTworks Documentation in
Northern Telecom's NT System documentation provided
Northern Telecom properly incorporates and references
Talarian's copyrights in such documentation;
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(e) to authorize its End Users to copy RTworks Runtime
Applications for deployment within the End User's
telecommunications networks provided Northern Telecom
contractually or technically limits the rights of its End
Users to copy and use such RTworks Runtime Applications
only in connection with NT Systems and Northern Telecom
pays and reports royalties to Talarian based on the Type
of NT System basis. In the event any technical use
limitation code becomes available from Talarian for use by
Talarian's general customer base, the Parties shall
negotiate in good faith to determine whether to
incorporate any such code in RTworks Runtime Systems as
part of NT Systems;
(f) to make copies of and Distribute Updates to its End Users
who have a NT System;
(g) to sublicense Manufacturing Licensees within the scope of
the licenses granted in preceding sub-paragraphs (a)
through (f).
2.2 Northern Telecom may provide access to the RTworks Development
System to its Contractors for such Contractors' use in developing
NT Systems for Northern Telecom, provided such use is exclusively
for Northern Telecom in connection with work called for in
written agreements between Northern Telecom and such Contractors
which shall require that:
(a) any claim, demand or right of action arising on behalf of
a Contractor from the provision of access to it or use by
it of a copy of the RTworks Development System shall be
solely against Northern Telecom;
(b) a Contractor shall incur the same responsibilities and
obligations and other restrictions pertaining to the use
of copies of the RTworks Development System as those
incurred by Northern Telecom under this Agreement.
Northern Telecom shall enter into a written agreement with a
Contractor before or at the time Northern Telecom provides access
to a copy of the RTworks Development System to such Contractor.
2.3 Northern Telecom may at any time while this Agreement is in
effect request in writing the addition of further Types of NT
Systems to the Types in respect of which licenses are granted
hereunder and such request shall not unreasonably be refused by
Talarian. The addition of further Types shall thereupon be made
by the substitution for then current Schedule B of revised
Schedule B mutually agreed to and signed by duly authorized
representatives of the Parties.
3. LICENSE EXCLUSIONS
3.1 Except as expressly provided herein, Northern Telecom shall make
no other use or Distribution of the RTworks Development Systems
or RTworks Runtime Applications.
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3.2 Northern Telecom warrants that it will not, without the prior
written consent, if required, of the U.S. Department of Commerce,
export directly or indirectly the RTworks Development Systems or
RTworks Runtime Applications to any prohibited country specified
in the then current U.S. Department of Commerce Export
Administration Regulations.
4. LICENSE TO USE TALARIAN'S TRADEMARKS AND TRADENAMES
4.1 Northern Telecom may use Talarian's tradenames and trademarks
which relate to the RTworks Development Systems solely in
connection with Northern Telecom's distribution of marketing
materials associated with this Agreement, provided Northern
Telecom clearly identifies Talarian's ownership of such
tradenames or trademarks and provided further that Northern
Telecom abides by Talarian's guidelines in this respect. A list
of such tradenames and trademarks is attached hereto as Schedule
F and made a part hereof and the associated guidelines document
is attached hereto as Schedule G and made a part hereof. Talarian
may at any time request an amendment to Schedule F and/or
Schedule G by providing a written notice to Northern Telecom and
such request shall not unreasonably be refused by Northern
Telecom. Such amendment shall thereupon be made by the
substitution for the then current Schedules F and/or G of revised
Schedules F and/or G mutually agreed to and signed by duly
authorized representatives of the Parties.
5. ROYALTIES AND FEES
5.1 In the event Talarian publishes a revised U.S. price list,
Talarian shall provide a copy of such price list to Northern
Telecom and such price list shall become the Applicable Price
List from the date of receipt by Northern Telecom provided that:
(a) in the event the new Applicable Price List includes
products in the old Applicable Price List with the
addition of bug fixes and minor enhancements and
improvements, then the percentage increase in the prices
between the old Applicable Price List and the new
Applicable Price List shall not at any time exceed the
cumulative percentage increase in the Unadjusted Consumer
Price Index (UCPI), published by the Bureau of Labor
Statistics, U.S. Department of Labor between the dates of
the most recent price increase (or the Effective Date of
this Agreement, whichever is later) and the date of
receipt by Northern Telecom of the new Applicable Price
List; and
(b) in the event the new Applicable Price List includes
existing products with major enhancements and
improvements, then Northern Telecom shall have the right
to exercise its rights hereunder using the version of the
RTworks Software Products and the fees, for such products,
based on the old Applicable Price List.
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5.2 For each copy or partial copy of a RTworks Runtime Application
Distributed by Northern Telecom, a Manufacturing Licensee or a
Distributor, Northern Telecom shall pay to Talarian a license fee
based on the Type of NT System as set forth in So1iedule E
attached hereto and made a part hereof, provided no additional
royalty shall be payable hereunder in the event Northern Telecom,
a Manufacturing Licensee or a Distributor furnishes a substitute
NT System to an End User previously licensed to use a NT System.
5.3 No additional fee shall be payable to Talarian under this
Agreement for the transfer of a RTworks Runtime Application from
one End User to another End User in conjunction with the transfer
of a NT System between such End Users provided the first End User
does not retain any portion of the RTworks Runtime Application
after such transfer and provided the second End User enters into
a Sublicense Agreement. Such transfer of a RTworks Runtime
Application may result from, for example, a sale of a NT System
by the first End User to a second End User or the termination of
a lease with a first End User and the execution of a new lease
with the second End User for such NT System.
5.4 No additional fee shall be payable to Talarian under this
Agreement for the Updates provided by Northern Telecom, a
Manufacturing Licensee or a Distributor to an End User having a
NT System. Fees that may be associated with Updates shall be
included in the Technical Support fees.
5.5 Northern Telecom may elect, under conditions such as the
discontinuation of the marketing, sales and support of a
particular Type of NT System, to have the provision of Technical
Support for a Type of NT System and the associated RTworks
Development Systems suspended by providing written notice to
Talarian and, thereupon, shall have no further obligation to pay
Technical Support fees for such Type of NT System or the
associated RTworks Development Systems. In the event Northern
Telecom elects to have the provision of Technical Support
suspended and, at a subsequent date, reverses its decision due to
conditions such as the opportunity for new sales of the same Type
of NT System in a new market, and elects to have the provision of
Technical Support resumed for such a Type of NT System and the
associated RTworks Development Systems, then on receiving written
notice thereof from Northern Telecom, Talarian shall resume the
provision of Technical Support for such Type of NT System and the
associated RTworks Development Systems and Northern Telecom shall
resume payment of Technical Support fees for such Type of NT
System and the associated RTworks Development Systems. In the
event Northern Telecom elects to have the provision of Technical
Support suspended, then Northern Telecom shall have no right to
receive Updates for that Type of NT System or the associated
RTworks Development Systems.
5.6 Northern Telecom shall pay all royalties due to Talarian within
forty-five (45) calendar days of the end of the calendar quarter
in which a NT System is Distributed by Northern Telecom, a
Manufacturing Licensee or a Distributor to an End User. Payments
when provided for in this Agreement, when overdue, bear
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interest at a rate one and a half percent (1.5%) over the
Canadian Prime Rate as quoted by the Royal Bank of Canada, at
Toronto, Ontario, computed on a daily basis.
6. RTWORKS DEVELOPMENT SYSTEM/AUTHORIZATION STRINGS
6.1 Northern Telecom shall have the right to order RTworks
Development Systems adapted by Talarian to any commercially
available computing platform provided that Talarian commercially
provides such RTworks Development Systems.
6.2 The RTworks Development Systems obtained from Talarian hereunder
shall contain all permanent authorization strings necessary to
enable the RTworks Development Systems to function fully. In
respect of the licenses granted under Article 2.1 of this
Agreement, Talarian shall provide to Northern Telecom, promptly
after the Effective Date, a copy of the license management system
Talarian uses in its regular operations in similar situations, so
as to allow Northern Telecom to copy and provide RTworks Runtime
Applications as part of NT Systems to End Users.
7. WARRANTY, TECHNICAL SUPPORT AND TRAINING
7.1 Talarian represents that it has the right to enter into this
Agreement. Talarian represents that, to the best of its
knowledge, the RTworks Development Systems and RTworks Runtime
Applications do not infringe any third party patent, copyright or
other intellectual property rights when used in accordance with
the Specifications.
7.2 Talarian warrants that, while this Agreement is in effect, and so
long as Northern Telecom pays for Technical Support hereunder,
the RTworks Development Systems shall comply, and operate in
accordance, with the Specifications. Talarian shall use its
diligent efforts to repair or replace RTworks Software Products
based on the discrepancies discovered and reported to Talarian by
Northern Telecom based on the Specifications. Talarian does not
represent that RTworks Software Products are error-free. These
are the sole and exclusive remedies of Talarian with respect to
this Article 7.2. Talarian makes no other warranties,
representations or conditions, express or implied, in fact or in
law, including without limitation, the implied warranties on
conditions of merchantability and fitness for a particular
purpose.
7.3 Talarian shall provide Northern Telecom with Technical Support
for the RTworks Software Products. Notwithstanding anything to
the contrary elsewhere in the Agreement, Northern Telecom shall
not be obligated to receive Technical Support from Talarian.
7.4 Talarian shall provide to Northern Telecom a copy of all Updates
for all RTworks Software Products obtained from Talarian
hereunder promptly upon each such
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Update becoming commercially available provided that Northern
Telecom pays the applicable fees for Technical Support in respect
of such RTworks Software Products.
7.5 Talarian shall provide Technical Support to Northern Telecom for
the RTworks Software Products provided that Talarian provides
technical support for the same software to its general customer
base.
7.6 Conditional upon Northern Telecom's payment for Technical
Support, each Party shall designate one (1) senior representative
for the purpose of discussing and resolving warranty and
Technical Support issues and disputes. Senior representatives of
the parties shall meet (face to face or through telephone
conferences) on the first week of every other calendar month
during the Term or at any other time mutually agreed to by the
Parties and discuss, in general, the matters related to Technical
Support and issues brought to their attention by their respective
organizations. As of the Effective Date, the names of the senior
representatives of the Parties are as follows:
for Northern Telecom: ▇▇▇▇▇ ▇▇▇▇▇▇▇
telephone no. (▇▇▇) ▇▇▇ ▇▇▇▇
facsimile no. (▇▇▇) ▇▇▇ ▇▇▇▇
and
for Talarian: ▇▇▇ ▇▇▇▇▇
telephone no. (▇▇▇) ▇▇▇ ▇▇▇▇
facsimile no. (▇▇▇) ▇▇▇ ▇▇▇▇.
7.7 Northern Telecom shall be the sole authority in designating each
bug or error in RTworks Runtime Applications and in the RTworks
Development Systems, as a Critical Problem, Serious Problem or a
Minor Problem.
8. ANNUAL TECHNICAL SUPPORT FEE
8.1 For the first year while this Agreement is in effect, Talarian
shall provide, free of charge, Technical Support for RTworks
Software Products under terms and conditions listed in Schedule
D. Thereafter within forty-five (45) days of each Effective Date
anniversary, Northern Telecom shall pay Talarian a Technical
Support fee for RTworks Software Products as set forth in
Schedule E.
9. PAYMENTS
9.1 All amounts specified herein are in U.S. dollars. All payments
shall be made to Talarian in U.S. dollars at the address first
set forth above or as changed by Talarian with forty-five (45)
days prior written notice. Unless otherwise specified herein, all
payments are due within forty-five (45) days of receipt of
invoice.
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9.2 Northern Telecom shall pay any withholding tax required to be
withheld from payments made to Talarian pursuant to this
Agreement so that Talarian receives the full amounts calculated
pursuant to Schedules A and E. Talarian shall claim the
withholding taxes paid by Northern Telecom hereunder to the
extent such tax is allowable as a credit against U.S. income
taxes of Talarian covering the period such withholding taxes were
paid by Northern Telecom. Talarian shall reimburse such credits
promptly to Northern Telecom. In the event Talarian shall not
able to claim and use all such credits, Talarian shall provide
Northern Telecom with a written disclosure, signed by an
authorized representative of Talarian, indicating such amount it
was unable to claim and use. To assist in obtaining such credit,
Northern Telecom shall promptly furnish Talarian with such
evidence as may be required by U.S. taxing authorities to
establish that any such tax has been paid. Subject to the
provisions immediately preceding in this paragraph, Northern
Telecom shall pay all taxes and duties associated with this
Agreement, other than taxes based on Talarian's income.
10. TERM
10.1 Unless otherwise terminated as provided herein, upon expiration
of the Term, this Agreement shall be renewed automatically for
successive one (1) year terms unless either Party requests the
termination of the Agreement by providing a written notice of
termination to the other Party sixty (60) days prior to
expiration of the then-current one year term, such request not to
be unreasonably refused, provided that the addition of new Types
of NT Systems to the existing Types of NT Systems after the ten
(10) year term shall be subject to the mutual written agreement
of the Parties.
11. RECORDS AND REPORTS
11.1 Northern Telecom, its Manufacturing Licensees and Distributors
shall keep full, true and accurate records and accounts in
accordance with generally accepted accounting practices to show
the amount of fees payable to Talarian for a period of three (3)
years from the date of Distribution.
11.2 Talarian shall have the right to appoint an independent auditor
(under appropriate non-disclosure conditions) reasonably
acceptable to Northern Telecom to conduct an audit of records of
Northern Telecom once per year to determine Northern Telecom's
compliance with this Agreement. For all Manufacturing Licensees
authorized by Northern Telecom to Distribute NT Systems, Northern
Telecom, in its sole discretion, shall either.
(a) retain the right to audit the records of any such
Manufacturing Licensee; or
(b) require that such Manufacturing Licensee shall, at the
written request of Talarian to Northern Telecom, permit an
independent auditor appointed by
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Talarian and reasonably acceptable to Northern Telecom
annually to audit such records (under appropriate
non-disclosure conditions) provided where any such audit
is requested by Talarian, it shall be arranged through
Northern Telecom.
11.3 Talarian shall bear the expenses of all audits unless any such
audit reveals that Northern Telecom has understated the
cumulative amount of fees that Northern Telecom is obligated to
pay to Talarian under this Agreement by an amount more than seven
percent (7%) for any twelve (12) month period, in which case,
Northern Telecom shall pay all reasonable costs associated with
the audit.
11.4 In the event of an audit, prompt adjustment shall be made by the
proper Party to compensate for any errors or omissions disclosed
by such audit.
11.5 Forty-five (45) days after the end of each calendar quarter,
Northern Telecom shall provide Talarian with a completed
reporting statement
12. TITLE AND PROTECTION OF SOFTWARE
12.1 Talarian (or its third party providers) shall retain all right,
title, copyright and interest to the RTworks Development Systems
and RTworks Runtime Applications.
12.2 Talarian acknowledges that the licenses granted to Northern
Telecom hereunder shall not imply any ownership by Talarian of
Northern Telecom's Knowledge Base or Northern Telecom Application
Programs.
12.3 Northern Telecom shall obtain (and shall require its
Manufacturing Licensees and Distributors to obtain) signed
Sublicense Agreements from each End User prior to the delivery of
a NT System to such End User.
12.4 Northern Telecom shall use reasonable efforts to enforce its
Sublicense Agreements and its agreements with Manufacturing
Licensees and Distributors. If a Manufacturing Licensee or
Distributor shall be in material breach of its manufacturing
license agreement or its distributor agreement, respectively, in
contravention to the provisions of this Agreement, Talarian may,
at any time, notify Northern Telecom in writing of such breach
and require Northern Telecom to terminate all rights granted to
such entity under the rights granted by Talarian herein by not
less than two (2) months written notice to such Manufacturing
Licensee or Distributor specifying any such breach, unless within
the period of such notice, all breaches specified therein are
remedied. Upon such termination, such Manufacturing Licensee or
Distributor shall, within thirty (30) days, immediately
discontinue use of and return to Northern Telecom or destroy all
copies of RTworks Development Systems and RTworks Runtime
Applications in its possession other than copies thereof
necessary for the Manufacturing Licensee or Distributor to meet
reasonable support obligations to existing End Users.
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12.5 Northern Telecom shall affix to any media containing a copy of
all or any portion of the RTworks Development Systems or RTworks
Runtime Applications and to each copy or partial copy of RTworks
Documentation all copyright, proprietary information notices and
restricted rights legends as were affixed to the original media
or documents. All NT Systems Distributed to the U.S. Government
shall contain the correct "Restricted Rights" legend as defined
in DEAR 52.227-7013 (c) (1) (ii) or pertinent subsequent
regulation citation.
12.6 Within a reasonable period of time following the Effective Date
of this Agreement, the Parties shall enter into an escrow
agreement containing terms and conditions substantially similar
to the terms and conditions of the Escrow Agreement attached
hereto as Schedule H and made a part hereof.
13. LIMITATION OF LIABILITY
13.1 Except for the indemnification provided in the section entitled
"Indemnification" below, Talarian's liability for damages under
this Agreement in respect of each Type of NT Systems (whether in
contract or tort) shall not exceed the amount paid by Northern
Telecom to Talarian for the RTworks Development Systems, RTworks
Runtime Applications and any technical services including
Technical Support in respect of such Type of NT Systems. Neither
Party shall be liable for any lost data, lost profits,
incidental, consequential or indirect damages of any kind even if
a Party has been advised of the possibility of such damages.
Notwithstanding the foregoing in this Article 13.1, nothing
herein limits Talarian's liability in respect of any claim for
bodily injury or tangible property damage caused by the negligent
or willful actions of any Talarian employee or employees,
provided that such claim shall not include any claims related to
the functioning of the RTworks Software Products.
14. INDEMNIFICATION
14.1 Talarian shall indemnify and defend Northern Telecom against any
claim that the RTworks Development Systems and RTworks Runtime
Applications infringes any third party patent, copyright or other
intellectual property rights in any country which is a member of
the Berne Convention, when used by Northern Telecom,
Manufacturing Licensees, Distributors or End Users in accordance
with the terms of this Agreement. Northern Telecom shall give
Talarian prompt notice of such claim and shall give information,
reasonable assistance and authority to defend or settle the
claim. Talarian shall have the right, at its option, either to
obtain for Northern Telecom the right to continue using the
RTworks Development Systems and RTworks Runtime Applications,
substitute other software with equivalent functional capabilities
or modify the RTworks Development Systems and RTworks Runtime
Applications so as to be no longer infringing while retaining
equivalent functions.
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14.2 Notwithstanding the provisions of Article 14.1 above, Talarian
shall have no liability to Northern Telecom, its Manufacturing
Licensees and Distributors under this Article 14 to the extent
that any infringement or claim thereof results from:
(i) use of RTworks Software Products in combination with
equipment, software or documentation not supplied by
Talarian where such RTworks Software Products would not
themselves be infringing; or
(ii) components of a NT System which do not derive directly
from RTworks Software Products but which are introduced
into RTworks Software Products by Northern Telecom or its
Manufacturing Licensees, or from compliance with Northern
Telecom's designs, specifications or instructions.
15. DEFAULT
15.1 Any of the following shall constitute an event of default:
(a) either Party fails to perform any of its material
obligations under this Agreement and such failure remains
uncured for sixty (60) days after receipt of written
notice thereof; or
(b) either Party ceases to conduct business, becomes or is
declared insolvent or bankrupt, is the subject of any
proceeding relating to its liquidation or insolvency which
is not dismissed within thirty (30) calendar days or makes
an assignment for the benefit of its creditors.
15.2 In the event Talarian becomes insolvent or is declared bankrupt
and the Agreement is rejected by a trustee in bankruptcy, then if
Northern Telecom elects to continue exercising any of the rights
granted herein, such trustee shall provide to Northern Telecom
all materials Talarian is obligated to provide hereunder to
enable Northern Telecom to continue to exercise such rights.
Unless and until this Agreement is rejected, the trustee shall
perform the Agreement.
15.3 In the event of a default, the non-defaulting Party, in addition
to any other rights available to it under law or equity, may
withhold its performance hereunder or may terminate this
Agreement and the licenses granted hereunder by written notice to
the defaulting Party. Unless otherwise provided in this
Agreement, remedies shall be cumulative and there shall be no
obligation to exercise a particular remedy.
16. TERMINATION
16.1 All sublicenses of RTworks Runtime Applications properly granted
by Northern Telecom, Manufacturing Licensees or Distributors to
End Users pursuant to this Agreement shall survive termination of
this Agreement.
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16.2 Within sixty (60) days of termination, Northern Telecom shall pay
to Talarian all sums properly due under this Agreement.
16.3 Within sixty (60) days of termination, Northern Telecom shall
return to Talarian or certify in writing to Talarian that all
copies or partial copies of RTworks Development Systems and
RTworks Runtime Applications in Northern Telecom's possession or
control have been destroyed except that Northern Telecom shall be
entitled to retain a necessary number of copies of the RTworks
Development Systems for use by Northern Telecom solely to provide
technical support for NT Systems to existing End Users.
16.4 In addition to this section, the sections entitled "License
Exclusions", "Royalties", "Title and Protection of Software",
"Representations", "Limitation of Liability", and
"Indemnification", shall survive termination of this Agreement.
17. GENERAL
17.1 Any and all notices or other information to be given by one of
the Parties to the other shall be deemed sufficiently given when
forwarded by prepaid registered or certified first class mail or
by facsimile transmission or hand delivery to the other Party at
the following address or such other address as either Party shall
designate by written notice given to the other Party:
If to Talarian:
Talarian Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Mountain View, California 94041
United States of America
Facsimile Number: (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: President
If to Northern Telecom:
Northern Telecom Limited
▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: Secretary
with a copy to Vice President, Patents and Licenses
Page 15 of 38
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and such notices shall be deemed to have been received fifteen
(15) business days after mailing if forwarded by mail, and the
following business day if forwarded by facsimile transmission or
hand.
17.2 No agency, partnership or employment relationship is created
between the Parties by this Agreement.
17.3 Subject to the provisions of Article 4.1, neither Party shall use
the name of the other in any advertising or publicity or media
releases without the prior written consent of the other.
17.4 Northern Telecom Limited shall have the right to assign this
Agreement, delegate any duty or assign any right hereunder upon
the prior written consent of Talarian, such consent not to be
unreasonably withheld. Except for Northern Telecom's obligation
to pay Talarian, neither Party shall be liable for any failure to
perform due to causes beyond its reasonable control.
17.5 This Agreement shall be governed by the laws of the Province of
Ontario. All proceedings shall be conducted in English. Venue for
all proceedings shall be Toronto. This Agreement constitutes the
entire agreement between the Parties, supersedes all other
agreements between the Parties concerning the subject matter
herein and may only be modified by a written instrument signed by
each Party's authorized signatories.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective
Date.
NORTHERN TELECOM LIMITED TALARIAN CORPORATION
/s/ P.T. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------- ----------------------------------------
Authorized Signature Authorized Signature
P.T. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President, Sales
--------------------------------------- ----------------------------------------
Vice President, Patents an Licenses Printed Name and Title
/s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Authorized Signature
▇.▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Secretary
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SCHEDULE A
APPLICABLE PRICE LIST
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18
SCHEDULE B
NT SYSTEMS AND TYPES
SuperNode OPC
SuperNode OPC's data manager is a UNIX based operations, administration
and maintenance (OAM) platform. The data manager provides an open
platform for OAM applications. Functions such as surveillance and
provisioning shall be a part of the OAM applications. Surveillance will
provide a reduced stream of log information to the switch operations
systems through real-time log monitoring and analysis, log reduction and
log correlation. Provisioning will provide a service view of datafill
needed to add, change, or delete services offered on a switch, reducing
operations costs as well as the level of knowledge required to perform
such provisioning tasks.
DMS Maintenance Advisor
The primary purpose of the DMS Maintenance Advisor is to significantly
reduce the manual tasks involved in maintaining, analyzing and
presenting problems from a network of DMS switches. The system provides:
(i) a problem analyzer using expert system technology, (ii) a configured
interface to collect DMS switch information, and (iii) a human-machine
graphical interface. The initial release of the DMS Maintenance Advisor
shall include capabilities for: (i) real-time DMS maintenance and
problem analysis, (ii) using expert system technology in the automation
of the detection, analysis and resolution recommendation of DMS switch
problems, (iii) reducing work content by organizing and presenting
complex analysis tasks in user understandable manner, and (iv) providing
proactive maintenance capabilities of multiple DMS switches from a
single center.
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SCHEDULE C
SUBLICENSE AGREEMENT
Sublicense Agreements shall include terms and conditions substantially similar
to the following:
1. restrict use of RTworks Runtime Application to object code form only;
2. prohibit assignment, time-sharing or rental of RTworks Runtime
Application;
3. prohibit use of the RTworks Runtime Application for any purpose outside
the scope of NT Systems;
4. prohibit causing or permitting the reverse engineering, disassembly or
decompilation of RTworks Runtime Application;
5. prohibit title from passing to the End User;
6. disclaim Talarian's liability for any damages, whether direct, indirect,
incidental or consequential arising from the use of the RTworks Runtime
Application;
7. require the End User, at the termination of the sublicense, to
discontinue use and destroy or return to Northern Telecom, Manufacturing
Licensee or Distributor RTworks Runtime Application, its associated
documentation and all archival or other copies of RTworks Runtime
Application.
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SCHEDULE D
TECHNICAL SUPPORT
1. Talarian shall provide Northern Telecom with Technical Support with
respect to RTworks Software Products. Talarian shall provide written
notice to Northern Telecom of the identity of any RTworks Software
Product that is being dropped from Talarian's Applicable Price List and
the effective date of such change.
2. Technical Support shall include those services described in Sections 2.1
through 2.11 of this Schedule.
2.1 Technical Support shall be provided so as to maintain compliance
of RTworks Software Products with Specifications.
2.2 Technical Support shall be provided to ensure the continued
operation of RTworks Software Products in accordance with
Specifications and to ensure they remain free of Critical
Problems and/or Serious Problems. The accompanying RTworks
Documentation shall remain substantively complete and accurate.
2.3 Talarian shall provide to Northern Telecom, promptly, upon
release by Talarian, a copy of all Updates.
2.4 Talarian shall provide unlimited telephone support from its US
support centre(s) between the hours of 9:00 a.m. and 5:30 p.m.
(at Talarian support centre local time zone), Monday to Friday,
to technical support contacts designated by Northern Telecom
("Support Contacts") for RTworks Software Products provided that
Northern Telecom shall be responsible for providing the first
line of technical support.
2.5 Upon receiving notice from Northern Telecom of a bug or error in
RTworks Software Products covered by Technical Support, Talarian
shall verbally acknowledge receipt of such notice. A bug report
must contain sufficient information, on machine-readable media if
possible, for Talarian to reproduce the bug on Talarian premises.
Talarian's acknowledgment shall contain a unique number
identifying the particular bug or error for tracking purposes.
Talarian shall provide Northern Telecom with a status on any bug
or error logged for Northern Telecom, provided that Northern
Telecom identifies the particular bug or error by the tracking
number assigned to it by Talarian. Northern Telecom may make
inquiries regarding the status of any bug or error logged for
Northern Telecom either orally or in writing. Talarian shall
provide Northern Telecom with a response (i) verbally via a
Support Contact, or (ii) in writing, by number, describing the
closing resolution of the bug or error, including the date that
the necessary fix will be released and the nature of any known
workaround. Each bug or error logged for Northern Telecom shall
remain open until closure notification is received by Northern
Telecom.
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21
2.6 Upon request by Northern Telecom, but no more often than once a
month, Talarian shall either provide via an electronic mail
system operated by Talarian or print and circulate to Support
Contacts for RTworks Software Products a technical bulletin
containing generally the following types of information:
(a) all known bugs or errors in RTworks Software Products and
classification of each.
(b) any available workarounds.
(c) any resolutions and/or fixes.
(d) most common error codes.
2.7 Talarian shall notify Northern Telecom of each new Update a
minimum of, in the case of major software changes, ninety (90)
calendar days, and in the case of minor bug fixes and
enhancements, thirty (30) calendar days prior to the projected
release date thereof. The notification from Talarian shall
consist of a written document containing a summary of planned
changes, to the best of Talarian's knowledge, including
enhancements and bug fixes, and the planned schedule for beta
test and final release. Each bug or error fixed (which was logged
for Northern Telecom) shall be identified by the tracking number,
as described in Section 2.5 in this Schedule. At least thirty
(30) days prior to the projected release date, Talarian shall
provide a written document containing all of the information
described in this Section 2.7 in this Schedule plus the final
schedule and changes. Upon request, Northern Telecom may provide
a site as a beta test site for Talarian for Updates and, in
exchange, Talarian shall provide beta test versions of the
RTworks Software Products.
2.8 Patches or workarounds, made to fix reliability or specific
performance deficiencies not reported by Northern Telecom in
RTworks Software Products, may be made by Talarian when required,
and, upon request, shall be either delivered to Northern Telecom
within fourteen (14) days or made available to Northern Telecom
through electronic mail and a published technical bulletin, if
requested. Each patch and/or workaround delivered to Northern
Telecom pursuant to this Section 2.8 requires a written
description of the problem that the patch and/or workaround
addresses and the requisite installation procedure.
2.9 Talarian shall provide support to Northern Telecom's Support
Contacts for RTworks Software Products via electronic mail.
Northern Telecom shall notify Talarian of any change in the
identity of Support Contacts. Talarian's electronic mail system
shall be accessible 24 hours per day, 7 days per week, 365 days
per year. Talarian shall provide to Northern Telecom the names
and electronic addresses of its technical personnel providing
Technical Support to Northern Telecom. Such personnel shall have
a detailed, working knowledge of RTworks Software Products.
Talarian shall make all reasonable efforts to have each
Page 21 of 38
22
problem logged and responded to within eight (8) working hours by
a qualified technical expert possessing the ability to discuss
the details of such problem.
Talarian shall issue a call number (tracking number) to each
problem reported by Northern Telecom. In the event of a verbal
report of a bug or error by Northern Telecom, Northern Telecom
shall provide a prompt and detailed report, via the electronic
mail system, in a manner that will allow the Talarian to
reproduce the bug on Talarian premises.
Talarian's technical support staff shall interrogate, subject to
the provisions of Section 2.4 of this Schedule, the appropriate
electronic mail accounts on a regular basis at intervals not to
exceed three (3) hours.
2.10 Talarian shall provide a workaround or resolution for a RTworks
Software Product problem, as the case may be, and any associated
changes to the accompanying documentation according to the
following schedule:
(a) Critical Problems
- within eight (8) business hours of the first
interrogation by Talarian of the appropriate
electronic mail accounts.
(b) Serious Problems
- within five (5) business days of the first
interrogation by Talarian of the appropriate
electronic mail accounts.
(c) Minor Problems
- fixed in the next Update or new release of Software,
issued by Talarian.
The Parties acknowledge and understand the potentially
idiosyncratic nature of any bug or error in software. While the
turnaround times set forth previously in Section 2.10 of this
Schedule constitute targeted goals of Technical Support to be
provided by Talarian to Northern Telecom, it is understood by the
Parties that Talarian shall provide a workaround or resolution
for at least ninety-five percent (95%) of the Critical Problems
logged during any thirty (30) day period while this Agreement is
in effect and for at least ninety-five percent (95%) of the
Serious Problems logged in any thirty (30) day period while this
Agreement is in effect, and that failure to satisfy the
requirements described above shall be grounds for Northern
Telecom to pursue its remedies as set forth in this Agreement.
Sporadic failures by Talarian to meet or beat above targeted
turnaround times do not constitute a default under the Agreement.
2.11 In the event Northern Telecom requests on-site presence of a
Talarian engineer at an End User site to diagnose and resolve a
bug or error due to, for example, such bug or error's peculiar
nature or, the expectation that such bug or error may not be
Page 22 of 38
23
easily reproducible at Talarian's premises, then Talarian shall
make reasonable efforts to have a knowledgeable engineer
available at such End User site at the shortest time frame
possible provided that Northern Telecom shall re-imburse Talarian
for reasonable travel, living and out of pocket expenses related
to such travel.
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SCHEDULE E
LICENSE FEES
1. RTworks Development System
Northern Telecom shall pay to Talarian for each copy of the RTworks Development
System provided by Talarian or made by Northern Telecom a license fee based on
the Applicable Price List and the discount schedule given below. The cumulative
amounts of such license fees shall be computed separately for each Type of NT
System.
Cumulative amount of
license fees paid for RTworks
Development System
associated with a particular Discount from
Type of NT System ($) Applicable Price List (%)
----------------------------- -------------------------
0 to 100,000 0
100,001 to 250,000 10
250,001 to 500,000 15
500,000 to 1,000,000 20
1,000,000 plus 25
In the event Northern Telecom makes any advance payment to Talarian in respect
of copies of RTworks Development Systems, such amount shall be included in the
computation of cumulative amounts given above and any RTworks Development
Software ordered by Northern Telecom thereafter shall attract license fees based
on the then applicable discount percentage. As an example, in the event Northern
Telecom makes an advance payment of $100,001 to Talarian, any RTworks
Development System license fee shall be computed using a 10% (and not 0%)
discount based on the Applicable Price List and the advance payment shall be
reduced by the discounted amount to compute the available credit.
The Parties acknowledge that Northern Telecom Inc. ordered from Talarian,
through a purchase order numbered EX 191920 and dated 14 April, 1993, RTworks
Development Systems totalling an amount of $33,000 and agree that this amount
shall be grand-fathered in respect of RTworks Development Systems for the DMS
Maintenance Advisor Type of NT System and included in the cumulative amount
given above for such Type of NT System.
2. RTworks Runtime Application
Northern Telecom shall pay to Talarian for each copy made of the RTworks Runtime
Application Distributed by Northern Telecom, a Manufacturing Licensee or a
Distributor, a license fee based on the Applicable Price List and the discount
schedule given below. The cumulative amounts of such license fees shall be
computed separately for each Type of NT System and shall include the cumulative
amounts for the RTworks Runtime Application and RTworks Development System
associated with such Type of NT System.
Page 24 of 38
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Cumulative amount of
license fees paid for RTworks
Runtime Application and RTworks
Development System associated
with a particular Type of Discount from
NT System ($) Applicable Price List (%)
------------------------------- -------------------------
0 to 150,000 25
150,001 to 400,000 50
400,001 to 1,000,000 70
1,000,000 plus 80
In the event Northern Telecom makes any advance payment to Talarian in respect
of copies of RTworks Runtime Application, such amount shall be included in the
computation of cumulative amounts given above in this Article (2) and any
RTworks Runtime Application ordered by Northern Telecom thereafter shall attract
license fees based on the then applicable discount percentage. As an example, in
the event Northern Telecom makes an advance payment of $150,001 to Talarian, any
RTworks Runtime Application license fee shall be computed using a 50% (and not
25%) discount based on the Applicable Price List and the advance payment shall
be reduced by the discounted amount to compute the available credit for such
Type of NT System.
The Parties acknowledge that Northern Telecom Inc. ordered from Talarian,
through a purchase order numbered EX191920 and dated 14 April, 1993, RTworks
Runtime Applications totalling an amount of $5,000 and agree that this amount
shall be grand-fathered in respect of RTworks Runtime Applications for the DMS
Maintenance Advisor Type of NT System and included in the cumulative amount
given above for such Type of NT System.
3. Fees for Technical Support
Northern Telecom shall, subject to the provisions of Article 5.5 and Article 8
of this Agreement, pay to Talarian, at each anniversary of the Effective Date of
this Agreement, for Technical Support in respect of RTworks Development Systems,
an annual amount equal to 18% of the cumulative license fees paid for (excluding
any remaining credits) RTworks Development Systems.
In respect of each Type of NT System, Northern Telecom shall, subject to the
provisions of Article 5.5 and Article 8 of this Agreement, pay to Talarian, at
each anniversary of the Effective Date of this Agreement, for Technical Support
in respect of RTworks Runtime Applications, an annual amount equal to 18% of the
cumulative license fees paid for (excluding any remaining credits) RTworks
Runtime Applications. In the event the cumulative license fees paid to Talarian
in respect of RTworks Development Systems and RTworks Runtime Systems in respect
of each Type of NT System (excluding any remaining credits) reaches $400,000,
then 9% shall be applied to any amount beyond the $400,000 (and not 18%) in the
calculation of the fees for Technical Support.
Page 25 of 38
26
Notwithstanding the provisions of this Article 3 in this Schedule E, fees for
Technical Support in respect of each Type of NT System shall not exceed $180,000
for any period between successive anniversary dates of the Effective Date.
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SCHEDULE F
TALARIAN TRADEMARKS
Registered Trademarks of Talarian Corporation
---------------------------------------------
RTworks
Talarian
Trademarks of Talarian Corporation
----------------------------------
RTie
RTdaq
RThci
RTdraw
RTsdb
RTsdbtool
RTserver
RTgen
RTarchive
RTplayback
Page 27 of 38
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SCHEDULE G
TALARIAN TRADEMARK GUIDELINES
Northern Telecom shall use its own general guidelines.
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SCHEDULE H
ESCROW AGREEMENT
THIS SOFTWARE ESCROW AGREEMENT EFFECTIVE AS OF THE _______________ DAY OF
__________________ 19__.
BY AND BETWEEN: Talarian Corporation;
(hereinafter referred to as "TALARIAN");
AND: NORTHERN TELECOM LIMITED, a corporation incorporated
under the laws of Canada, with its executive offices at
▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇
(hereinafter referred to as "Northern Telecom");
AND: ,
-----------------------------------
(hereinafter referred to as "Trustee");
WHEREAS:
(a) TALARIAN and Northern Telecom have entered into a Value Added Reseller
Agreement (the "VAR Agreement") whereby TALARIAN has granted to Northern
Telecom a license or other rights permitting Northern Telecom to use and
distribute certain software products described in Appendix "A" hereof
(herein referred to as the "Software");
(b) To assure the continued availability of such products, and their continued
support, for Northern Telecom in accordance with the VAR Agreement,
TALARIAN agrees to establish and maintain in trust the source code and
other items applicable to the products as identified in the VAR Agreement
("Escrow Materials");
(c) Trustee is agreeable to store and release such Escrow Materials under the
terms of this Agreement; and
(d) TALARIAN consents to this Agreement.
NOW THEREFORE, in consideration of the premises and the terms and conditions
contained herein, TALARIAN, Northern Telecom and Trustee covenant and agree as
follows:
1. PREAMBLE AND DEFINITIONS
1.1 The preamble shall form part of this Agreement as if recited at length
herein.
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1.2 In this Agreement:
(a) "Escrow Materials" shall have the meaning assigned to it in the
preamble hereto.
2. DEPOSIT AND SUBSTITUTION
2.1 Within five (5) business days of execution of this Agreement by all the
Parties hereto, and upon release to Northern Telecom of any modification
to RTworks Development System or RTworks Runtime Application respectively,
pursuant to the VAR Agreement, while the VAR Agreement is in force,
TALARIAN shall, following the provision to Northern Telecom of the
technical assistance contemplated in the VAR Agreement, deposit a copy of
the current version of the Escrow Materials with the Trustee with the name
of Northern Telecom thereon and identification as to program name and
revision number, whereupon the Trustee shall return any prior version in
its possession to TALARIAN.
2.2 The Trustee shall be under no obligation to verify upon deposit or
subsequently that RTworks Development System so deposited is the basis for
the Software subject to the VAR Agreement.
3. INSPECTION
3.1 In order to verify that TALARIAN has satisfied its obligations hereunder
Northern Telecom may at any time call for inspection of Escrow Materials
in the manner and subject to the conditions below:
3.1.1. Northern Telecom shall notify TALARIAN and the Trustee of its
request for an inspection in writing not less than (10) business
days in advance, and shall appoint a time between 9:00 and 17:00
hours and place for such inspection.
3.1.2. Trustee shall attend at the appointed time and place and shall
thereat produce the sealed container to be inspected.
3.1.3. TALARIAN shall attend thereat, failing which a determination that
TALARIAN has, or has not, satisfied its obligations hereunder, may
be made in TALARIAN's absence.
3.1.4. The contents of the sealed container shall be inspected by
TALARIAN, Northern Telecom, and a determination made as to whether
they are as purported to be by TALARIAN on the face of the
container.
3.1.5. If the contents are determined to be as purported, then they will
be resealed and returned to the Trustee to hold in escrow.
3.1.6. If the contents are determined not to be as purported, then a copy
of RTworks Development System complying with TALARIAN's obligations
hereunder shall be made by TALARIAN, and delivered forthwith to
Trustee with notice to Northern Telecom.
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3.1.7. The parties shall do all things and produce all materials in their
possession or control necessary to comply with the letter and
intent of this paragraph.
3.2 Expenses and fees for the first two (2) inspections of Escrow Materials in
any calendar year shall be borne by TALARIAN. In the event Northern
Telecom requires further inspections of Escrow Materials, then Northern
Telecom shall be responsible from such fees and expenses of such
additional inspections.
4. TERM OF AGREEMENT
4.1 This Agreement shall remain in full force and effect until the
cancellation or termination of the VAR Agreement, unless terminated
earlier in accordance with the terms of this Agreement. Northern Telecom
may retain this Agreement in effect following the termination of the VAR
Agreement, if not terminated because of breach by Northern Telecom, in the
event it pays the Trustee's full charges associated with such continuance
and provides prior written notice of such election to TALARIAN.
5. CHARGES
5.1 TALARIAN shall pay Trustee's charges for services which charges shall not
exceed as follows:
5.1.1 $________ on account of the receipt and handling of the Escrow
Materials pursuant to Article 2 herein, payable within thirty (30)
days of the effective date of the Agreement;
5.1.2. $________ on account of receipt of each updated Escrow Materials
payable within thirty (30) days of such receipt.
5.1.3. Upon each anniversary of this Agreement on at least two (2) months'
prior written notice to TALARIAN and Northern Telecom, Trustee may
increase the charges payable during the next twelve (12) month
period. Any increase in such charges shall be limited to the
percentage increase in the Consumer Price Index (All Items) as
published by Statistics Canada during the period since the last
increase or any successor like measurement. In no event however,
shall the charges hereunder exceed the published standard list
prices for such services generally charged by Trustee.
5.1.4. In addition to the charges set out in this Agreement, TALARIAN
shall pay any applicable taxes, or fees or amounts in lieu of such
taxes, paid or payable by the Trustee, and levied or based upon
such charges or on this Agreement or services rendered, exclusive
however of taxes based on the Trustee's net income.
5.1.5. Northern Telecom shall pay directly to the Trustee all applicable
inspection charges and related taxes.
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6. TITLE TO AND RETENTION OF RTWORKS DEVELOPMENT SYSTEM
6.1 The parties hereby agree that Trustee is hereby appointed to act as
depository for Northern Telecom and to receive copy of the Escrow
Materials in accordance with the provisions of this Agreement
6.2 Ownership of the copy of the Escrow Materials which is deposited with
Trustee will vest in Trustee immediately upon deposit, and will be
transferred to Northern Telecom upon release of such copy by the Trustee
in accordance with this Agreement and such ownership of the copy shall
entitle Northern Telecom to use the Escrow Materials in accordance with
this Agreement and the VAR Agreement. Notwithstanding this transfer of
ownership in the copy of the Escrow Materials, TALARIAN will at all times
retain ownership of the copyright and all other intellectual property
rights in the Escrow Materials.
7. RELEASE OF THE ESCROW MATERIALS TO LICENSEE
7.1 In the event TALARIAN gives notice to Trustee consenting to release of the
Escrow Materials to Northern Telecom, or in the event Northern Telecom becomes
entitled to access the Escrow Materials for the reasons set out in the VAR
Agreement between TALARIAN and Northern Telecom, or in the event that TALARIAN
makes a general assignment to the benefit of creditors, is adjudged bankrupt by
final judgment, makes any proposal to its creditors under bankruptcy or
insolvency legislation or if a custodian, receiver or manager is appointed for
all the property of TALARIAN, Trustee shall release all copies of the Escrow
Materials in its possession for the benefit of Northern Telecom to Northern
Telecom on the thirtieth (30th) day (or the next business day thereafter) after
receipt of a written request for release, provided:
7.1.1. Northern Telecom has delivered to Trustee a written request for the
release of the Escrow Materials, accompanied by a Statutory
Declaration in a form satisfactory to Trustee from a senior officer
of Northern Telecom stating the particulars of the reasons for its
request and confirm that copy of such request has been delivered to
TALARIAN;
7.1.2. a copy of the request and Statutory Declaration have been delivered
to TALARIAN, and TALARIAN has received at least fifteen (15) days
notice prior to the contemplated release of RTworks Development
System; and
7.1.3. no written notice of dispute by TALARIAN has been received by
Trustee within fifteen (15) days of receipt of Northern Telecom's
notice by Trustee.
7.2 In the event that Trustee received such notice of dispute, Trustee shall
not deliver copies of the Escrow Materials to Northern Telecom until
directed to do so by a final judgment of a court of competent
jurisdiction, and upon receipt and compliance with such directions by
Trustee, this Agreement shall terminate.
7.3 Notwithstanding the preceding provisions of this Article 7, in the event
Northern Telecom provides a written request to Trustee for the release of
the Escrow Materials, accompanied by a Statutory Declaration from a senior
officer of Northern Telecom,
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33
alleging that one or more of the stipulations in Article __, Escrow of the
Value Added Reseller Agreement between Northern Telecom and TALARIAN dated
_____________ has been realized, and provides to TALARIAN copy of such
request and Statutory Declaration no later than the day on which they are
given to Trustee, Trustee shall deliver the Escrow Materials to Northern
Telecom forthwith without delay after having verified with TALARIAN by
telecopier that TALARIAN has received copy of such request and Statutory
Declaration or having made a reasonable effort to do so. Trustee shall
notify TALARIAN of such delivery, but shall in no event delay such
delivery, pending the giving of notice, or the receipt of any reply from
TALARIAN.
In the event that any of Northern Telecom's operative allegations
contained in a notice delivered pursuant to the immediately preceding
paragraph is incorrect, Northern Telecom shall pay to TALARIAN an amount
not to exceed $10,000 Canadian funds representing TALARIAN's liquidated
damages resulting from Northern Telecom's action or an amount equal to the
actual damages incurred by TALARIAN as a result of such action, whichever
amount is the greater.
7.4 This Agreement shall be terminated upon delivery to Northern Telecom of a
copy of the Escrow Materials in accordance with the provisions of this
Article 7 of this Agreement.
8. OBLIGATION OF TRUSTEE AND NORTHERN TELECOM UPON TERMINATION
8.1 In case Northern Telecom wishes to terminate the present Agreement, it
must give written notice to TALARIAN and Trustee, upon which the Trustee
shall remit the Escrow Materials to TALARIAN.
8.2 Upon the expiration or termination of the VAR Agreement, TALARIAN shall
give written notice of such termination or expiration to Trustee with copy
to Northern Telecom, failing which Northern Telecom may give such notice.
Following the expiration of thirty (30) days from the receipt of such
notice by Trustee:
8.2.1 Trustee shall cease to have any obligation to Northern Telecom with
regard to the Escrow Materials; and
8.2.2 Trustee shall return all copies of the Escrow Materials to TALARIAN
provided Trustee has not received any written notice of dispute by
Northern Telecom within twenty-five (25) days of receipt of notice
of expiration or termination of the VAR Agreement by Trustee.
8.3 In the event that Trustee received such notice of dispute, Trustee shall
not deliver copies of the Escrow Materials to Northern Telecom until
directed to do so by a judgment of a court of competent jurisdiction, and,
upon receipt and compliance with such directions by Trustee, this
Agreement shall terminate.
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9. INDEMNIFICATION OF TRUSTEE
9.1 Trustee shall not, by reason of its signing this Agreement, assume any
responsibility or liability for any transaction between TALARIAN and
Northern Telecom other than the performance of its obligations in
accordance with this Agreement. Except for a breach of the obligations set
out herein, in no event shall Trustee be liable to any Party hereto for
indirect, consequential or incidental damages.
9.2 The Party on whose behalf, or pursuant to whose direction the Trustee
acts, shall indemnity and hold harmless the Trustee from any and all
liability, damages, costs or expenses, including reasonable counsel fees,
that shall be sustained or incurred by the Trustee as a result of such
actions by the Trustee, except for a breach by the Trustee of its
obligations set out herein.
10. NON-DISCLOSURE BY TRUSTEE
10.1 Trustee recognizes and agrees that the Escrow Materials are valuable
proprietary and confidential information of TALARIAN and agrees to hold
same in strict confidence and to take all appropriate actions to preserve
its confidentiality. Except as expressly provided for in this Agreement,
Trustee agrees that it will not use of disclose, divulge or make available
the Escrow Materials to any person, association, firm, partnership or
corporation either directly or indirectly, in any manner whatsoever.
11. NON-DISCLOSURE BY NORTHERN TELECOM
11.1 Northern Telecom recognizes and agrees that the Escrow Materials are
valuable proprietary and confidential information of TALARIAN. Northern
Telecom agrees to hold same in confidence and to preserve its
confidentiality in the event that it obtains same from Trustee pursuant to
this Agreement. Northern Telecom agrees that, if it obtains the Escrow
Materials as provided for in this Agreement, Northern Telecom shall be
entitled to use the Escrow Materials solely for the purposes set forth in
the VAR Agreement. Northern Telecom further agrees not to disclose the
Escrow Materials to any third party except as may be required to enable
Northern Telecom to obtain support or manufacturing services or supplies
of necessary components, or in accordance with the VAR Agreement. Northern
Telecom shall secure from any party to whom such disclosure may be made
written covenant that it will not disclose the Escrow Materials or make
use thereof for any purposes except performing services or supplying goods
to Northern Telecom.
12. NOTICES
12.1 All notices or other communications to be given by any party shall be in
writing and may be given by personal delivery or sent by registered or
certified mail and if given by mail, shall be deemed given five (5) days
after such is deposited in the mail, during normal postal conditions
throughout such period, to the party for which it is intended at the
following addresses:
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TALARIAN:
-----------------------
-----------------------
-----------------------
Northern Telecom:
-----------------------
-----------------------
-----------------------
Trustee:
-----------------------
-----------------------
-----------------------
until further notice.
13. CHANGE OF TRUSTEE
13.1 In case the Trustee becomes insolvent or winds up or surrenders to its
creditors or is in the process of making arrangement with them, or if a
receiver or any such officer if appointed for the administration of the
Trustee's assets, or if a bankruptcy is petitioned by or against the
Trustee or any action is levied with regard to reorganization or
liquidation of the Trustee according to any applicable legislation, then
TALARIAN and Northern Telecom shall by common agreement choose another
trustee (the "New trustee") to whom the Escrow Materials should be
remitted under the same terms and conditions as this Agreement's.
13.2 In such event, upon receipt by the Trustee of a joint written notice from
TALARIAN and Northern Telecom, Trustee must remit the Escrow Materials to
the New trustee designated in such notice.
13.3 In case the Trustee fails to carry out the stipulations of the previous
paragraph, TALARIAN may remit to the New trustee a new copy of the Escrow
Materials to be governed by the terms of a new Software Escrow Agreement.
14. GENERAL
14.1 This Agreement shall not be assigned by any Party hereto without the prior
written consent of the other Parties hereto.
14.2 This Agreement shall be governed by the laws in force in the Province of
Ontario.
14.3 Should any provision of this Agreement be held illegal by final judgment,
the remaining provisions shall continue in full force and effect. In such
event, the parties shall use their best efforts to replace the illegal
provision by a legal provision having the same commercial effect.
14.4 This Agreement constitutes the entire agreement between the Parties with
respect to the subject matter hereof and merges all prior agreements and
negotiations, and there are no warranties, representations or agreements
among the parties in connection with the subject matter hereof except as
specifically set forth and referred to herein.
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14.5 The Agreement has been drafted in English at the express wish of the
Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement by their officers
duly authorized as they so declare as of the date first written above.
TALARIAN CORPORATION NORTHERN TELECOM LIMITED
Per: Per:
------------------------------- ------------------------------
Name in Print Name in Print
------------------------------------ ----------------------------------
Title Title
"TRUSTEE"
Per:
--------------------------------
Name in Print
------------------------------------
Title
Page 36 of 38
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APPENDIX "A"
DESCRIPTION OF SOFTWARE
TITLE:
----------------------------
RELEASE NUMBER:
----------------------------
Page 37 of 38
38
SCHEDULE "B"
ESCROW MATERIALS
Page 38 of 38
39
AMENDING AGREEMENT NO. 1
This is an agreement to amend the Value Added Reseller Agreement effective
December 17, 1993 (the "Agreement") between Talarian Corporation, a corporation
duly incorporated under the laws of California, with offices at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
("Talarian"), and Northern Telecom Limited, a corporation duly incorporated
under the laws of Canada, having its executive offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, and its subsidiaries ("Northern Telecom").
WHEREAS the parties desire to amend the Agreement to revise the license fees and
fees for Technical Support applicable to the SuperNode Data Manager;
NOW THEREFORE, in consideration of the premises and the mutual obligations
herein contained, the parties hereto agree as follows:
1. The definition of "NT System" in Section 1 of the Agreement is amended by
replacing the words "Schedule B" in the first line thereof with the words
"an NT System Schedule".
2. The following is added immediately following the definition of "NT System"
in Section 1 of the Agreement:
"NT System Schedule" shall mean a schedule substantially in the
form of Schedule "B" hereto completed with respect to each NT
System subject to this Agreement which provides a brief
description of the NT System pertaining thereto and any special
terms and conditions applicable in respect of such NT System."
3. Section 2.3 of the Agreement is amended in its entirety as follows:
"Northern Telecom may at any time while this Agreement is in
effect add a new NT System to this Agreement by completing a new
NT System Schedule and providing a copy thereof to Talarian,
provided that Northern Telecom shall not specify any additional
terms and conditions with respect to such new NT System without
Talarian's consent. In the event Northern Telecom requests
additional terms and conditions (such specific terms and
conditions including but not limited to provisions for royalty,
buy-out or a revised fee structure) with respect to such new NT
System, the parties shall negotiate in good faith to agree on
such specific terms and conditions."
4. In Section 5.2 of the Agreement the words "and the applicable NT System
Schedule" are inserted immediately following the words "Schedule E".
5. In the last line of Section 8, the words "and the applicable NT System
Schedule" are added immediately following the words "Schedule "E".
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6. Schedule B of the Agreement is deleted in its entirety and replaced by the
NT System Schedules attached hereto.
7. Within 30 days following execution of this Amending Agreement No. 1,
Northern Telecom shall pay Talarian the sum of $12,500 in partial
consideration of the inclusion of the NT System Schedule governing the
licensing of the NT System known as SuperNode Data Manager.
IN WITNESS WHEREOF the parties hereto have caused this Amending Agreement No. 1
to be executed by their duly authorized representatives which shall be effective
as of the date of the last signature below.
NORTHERN TELECOM LIMITED TALARIAN CORPORATION
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------- ---------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------- -------------------------
Title: Director, DMS OAM Evolution Title: President
----------------------------------- ------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Asst. General Counsel
-----------------------------------
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NT SYSTEM SCHEDULE
IN THE EVENT OF ANY INCONSISTENCIES BETWEEN THE TERMS AND CONDITIONS OF THIS NT
SYSTEM SCHEDULE AND THE AGREEMENT, THE PROVISIONS OF THIS NT SYSTEM SCHEDULE
SHALL BE CONTROLLING WITH RESPECT TO THE TYPE OF NT SYSTEM PERTAINING HERETO.
NT System: DMS Maintenance Advisor
The Primary purpose of the DMS Maintenance Advisor is to significantly reduce
the manual tasks involved in maintaining, analyzing and presenting problems from
a Network of DMS switches. The system provides:
(i) a problem analyzer using expert system technology;
(ii) a configured interface to collect DMS switch information; and
(iii) a Human machine graphical interface.
The initial release of the DMS Maintenance Advisor shall include capabilities
for:
(i) real-time DMS maintenance and problem analysis;
(ii) using expert system technology in the automation of the detection,
analysis and resolution recommendation of DMS switch problems;
(iii) reducing work content by organizing and presenting complex analysis tasks
in user-understandable manner; and
(iv) providing proactive maintenance capabilities of multiple DMS switches from
a single center.
Special terms: none.
--------------
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NT SYSTEM SCHEDULE
IN THE EVENT OF ANY INCONSISTENCIES BETWEEN THE TERMS AND CONDITIONS OF THIS NT
SYSTEM SCHEDULE AND THE AGREEMENT, THE PROVISIONS OF THIS NT SYSTEM SCHEDULE
SHALL BE CONTROLLING WITH RESPECT TO THE TYPE OF NT SYSTEM PERTAINING HERETO.
NT System: Integrated Network Management
Integrated Network Management is a series of applications which provide
consolidated operations, administration, management and provisioning (OAM&P) for
a variety of Nortel and non-Nortel SONET network elements. The capabilities
provided include centralized network surveillance, alarm management, connection
provisioning, software Delivery, remote inventory and performance monitoring.
Special terms: none.
--------------
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NT SYSTEM SCHEDULE
IN THE EVENT OF ANY INCONSISTENCIES BETWEEN THE TERMS AND CONDITIONS OF THIS NT
SYSTEM SCHEDULE AND THE AGREEMENT, THE PROVISIONS OF THIS NT SYSTEM SCHEDULE
SHALL BE CONTROLLING WITH RESPECT TO THE TYPE OF NT SYSTEM PERTAINING HERETO.
NT System: Network Resource Manager
Network Resource Manager is a series of applications which provide consolidated
operations, administration, management and provisioning (OAM&P) for a variety of
Nortel and non-Nortel SDH network elements. The capabilities provided include
centralized network surveillance, alarm management, connection provisioning,
software Delivery, remote inventory and performance monitoring.
Special terms: none.
--------------
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44
NT SYSTEM SCHEDULE
IN THE EVENT OF ANY INCONSISTENCIES BETWEEN THE TERMS AND CONDITIONS OF THIS NT
SYSTEM SCHEDULE AND THE AGREEMENT, THE PROVISIONS OF THIS NT SYSTEM SCHEDULE
SHALL BE CONTROLLING WITH RESPECT TO THE TYPE OF NT SYSTEM PERTAINING HERETO.
NT System: SuperNode Data Manager ("SDM")
---------
SDM is a Unix-based operations, administration and maintenance ("OAM") server
within the DMS SuperNode architecture comprised of computing hardware, a UNIX
Base Operating System, and Northern Telecom system software and OAM
applications. Functions such as surveillance and provisioning form part of the
OAM applications.
Special terms:
1. In this NT System Schedule,
a) "Northern Telecom Application Program" means a software application
developed by Northern Telecom for incorporation into the SDM product
using the RTie component and no other components of the RTworks
Development System;
b) "Knowledge Base Upgrade" means software that increases the number of
rules contained in the Knowledge Base of a Northern Telecom
Application Program;
c) "RTworks Functionality Upgrade" means an Update to the RTworks
Development System which adds new functionality thereto; .
d) "Delivery" means a sale or lease by Northern Telecom or a
Manufacturing Licensee directly or indirectly through a Distributor
to an End User.
2. Northern Telecom shall pay Talarian the following fees in respect of each
Delivery mentioned below:
a) For the Delivery of a copy of a Northern Telecom Application Program
for incorporation into an SDM:
i) $500, only if as a result of the installation of that copy,
the Knowledge Base thereof employs no more than 120 rules;
ii) $750, only if as a result of the installation of that copy,
the Knowledge Base thereof employs more than 120 and no more
than 300 rules;
iii) $1000, only if as a result of the installation of that copy,
the Knowledge Base thereof employs more than 300 rules; or
iv) $0 in any other case; and
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b) Subject to paragraph 3 below, for the Delivery of an SDM to a DMS100
NA100 End User without a copy of the Northern Telecom Application
Program known as RTie/Exception Reporting:
i) $500, only if that DMS100 NA100 End User is taking Delivery of
that SDM for integration with a DMS SuperNode Switch within
which an SDM is not already installed; or
ii) $0 in any other case; and
c) For the Delivery of a copy of a Knowledge Base Upgrade for
integration in a Northern Telecom Application Program in respect of
which a license fee has been paid pursuant to sub-paragraph 2(a):
i) $250 only if immediately prior to the installation of that
copy, the Knowledge Base component of the Northern Telecom
Application Program employs no more than 120 rules and
immediately thereafter employs more than 120 rules and no more
than 300 rules;
ii) $500 only if immediately prior to the installation of that
copy, the Knowledge Base component of the Northern Telecom
Application Program employs no more than 120 rules and,
immediately thereafter employs more than 300 rules;
iii) $250 only if immediately prior to the installation of that
copy, the Knowledge Base component of the Northern Telecom
Application Program employs more than 120 rules and no more
than 300 rules and immediately thereafter employs more than
300 rules; or
iv) $0 in any other case; and
d) For the Delivery of a copy of a Northern Telecom Application Program
in respect of which a license fee has been paid pursuant to
sub-paragraph 2(a) and which utilizes new functionality derived from
an RTworks Functionality Upgrade:
i) $45.00 only if immediately before the installation of that
copy of the Northern Telecom Application Program, the
Knowledge Base component thereof employs no more than 120
rules;
ii) $67.50 only if immediately before the installation of that
copy of the Northern Telecom Application Program, the
Knowledge Base component thereof employs more than 120 rules
and no more than 300 rules;
iii) $90.00 only if immediately before the installation of that
copy of the Northern Telecom Application Program, the
Knowledge Base component thereof employs more than 300 rules;
or
iv) $0 in any other case.
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provided that the aggregate of all amounts paid under this
sub-paragraph 2(d) shall not exceed $20,000 in any calendar
year.
3. If, for any reason, Northern Telecom should decide to discontinue the
marketing and distribution of the Northern Telecom Application Program
known as RTie/Exception Reporting to DMS100 NA100 End Users, sub-paragraph
2(b) shall cease to be of force and effect.
4. Sub-paragraph 2(d) notwithstanding, the payment by Northern Telecom of
Technical Support fees under this Agreement entitles Northern Telecom to
distribute, without liability for additional fees, copies of Northern
Telecom Application Programs within which may be integrated Updates to the
RTworks Development System.
5. Provided Talarian agrees to execute a confidentiality and non-disclosure
agreement on terms satisfactory to Northern Telecom, Talarian reserves the
right to inspect the source code expression of Northern Telecom
Application Programs and to inspect those records of Northern Telecom
which record the Delivery of copies of Northern Telecom Application
Programs and copies of RTworks Functionality Upgrades solely for the
purpose of verifying the number of rules employed by Northern Telecom
Application Programs.
IN WITNESS WHEREOF the parties hereto consent to aforementioned special terms by
causing the execution of this NT System Schedule by their duly authorized
representatives.
TALARIAN CORPORATION NORTHERN TELECOM LIMITED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
---------------------------------- -----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇.▇. ▇▇▇▇▇▇▇▇
-------------------------------- ---------------------------
Date: 9/15/97 Date: 9/29/97
-------------------------------- ---------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Date: 9/30/97
----------------------------
8
