EXHIBIT 10.1
CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R.
SECTIONS 200.80(B)(4), 200.83 AND 230.406
SOFTWARE LICENSE AND SERVICES AGREEMENT
This SOFTWARE LICENSE AND SERVICES AGREEMENT (this "AGREEMENT") is entered into
as of March 15, 2002 (the "EFFECTIVE DATE"), by and between General Electric
Company ("GEC"), with offices at 0000 Xxxxxx Xxxxxxxx, XXX, Xxxxxxxxx,
Xxxxxxxxxxx 00000, on behalf of itself, the GEC Affiliates and the GEC
Businesses as hereinafter defined (collectively "GE"), and General Magic, Inc.
("GMI"), with its principal office at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000.
1. Definitions
1.1 "API" means an implementation of the method prescribed for the
magicTalk Enterprise Platform by which a programmer writing an
application program can make requests of the magicTalk Enterprise
Platform.
1.2 "COMPONENT" means a reusable program building block that can be
combined with other Components in the same or other computers in a
distributed network to form an application.
1.3 "CONFIDENTIAL INFORMATION" means any and all technical and
non-technical information disclosed by one party ("Disclosing Party")
to the other ("Receiving Party") during the term of this Agreement and
related to the business of the Disclosing Party including but not
limited to either parties past, present or future research,
development, business activities and programs. Confidential
Information shall also include (1) any unannounced product(s) or
service(s) of either party; and (2) the terms, conditions and subject
matter of this Agreement and any related contract documents.
Confidential Information will not be deemed to include information
that is (i) publicly available or becomes so in the future without
restriction, other than as a breach of this Agreement, (ii) rightfully
received by the Receiving Party from a third party free of any
confidentiality obligation to the Disclosing Party, (iii) already in
the Receiving Party's possession and lawfully received from sources
other than the Disclosing Party, (iv) approved in writing by the
Disclosing Party for release or disclosure without restriction by the
Receiving Party or (v) independently developed by the Receiving Party
without use of or reference to any Confidential Information of the
Disclosing Party.
1.4 "DOCUMENTATION" means the user guides and manuals for installation and
Use of the Software.
1.5 "GEC AFFILIATES" means those entities, including subsidiaries and
joint ventures, which are controlled by, or under common ownership and
control with GEC where GEC owns at least a 33% equity interest in such
entity (or, for countries where majority ownership is restricted to
33% or less, the maximum equity ownership permitted by local law).
1.6 "GE APPLICATION" means a [**] voice application, and all modifications
and enhancements thereto developed by or on behalf of GE, including
APIs developed by GE, as well as the [**] which may be delivered by
GMI to GE pursuant to a Statement of Work under this Agreement and,
more specifically, under the Statement of Work dated March 15, 2002;
provided, however, that GE Application shall not mean or include the
GMI Software. GE shall own all right, title
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and interest in and to the GE Application, and all modifications,
improvements and derivatives thereof, including all intellectual
rights therein.
1.7 "GEC BUSINESS" means an individual operating business or division of
GEC, which at the time of this Agreement include: Aircraft Engines,
Appliances, Aviation Services, Capital Services, Capital Corporate,
Commercial Equipment Financing, Commercial Finance, Employers
Reinsurance Corporation (ERC), Financial Assurance, GE Equity, GE
Information Services "XXXX", GE Global eXchange Services "GXS", Global
Consumer Finance, Industrial Systems, Lighting, Medical Systems,
Mortgage Insurance Corporation, NBC, Plastics, Power Systems, Real
Estate, Structured Finance Group, Supply, Transportation Systems,
Vendor Financial Services and GE Corporate (which includes GE
Corporate Research & Development, and all other Corporate and support
components which components provide, among other things, international
trade support, market development, licensing and investments for
various GE businesses).
1.8 "GMI SOFTWARE" means the software including all Components thereof, in
the form commercially marketed and distributed by GMI, whether Object
Code or Interpreted Code or both, together with the media and Updates
therefor. GMI, its licensors and suppliers, shall own all right, title
and interest in and to the GMI Software and associated Documentation,
and to all modifications, improvements and derivatives thereof,
including all intellectual property rights therein.
1.9 "INTERPRETED CODE" means a human-readable software program that can be
executed by a computer without compilation, such as a program written
in the VoiceXML programming language.
1.10 "KEY" means a numeric or alpha-numeric code that is necessary to gain
access to and operate the Software in accordance with a license
granted under this Agreement. GE shall receive the Key to the Software
on the Effective Date of the Agreement. In the event that the Key
shall be changed during the term of this Agreement, GMI shall give GE
sixty (60) days notice of such change.
1.11 "OBJECT CODE" means the fully compiled version of a software program
that can be executed by a computer without further compilation.
1.12 "ORDER FORM" means the document in hard copy or electronic form by
which GE orders Software licenses and services, and which is accepted
and agreed to by GMI. Each Order Form shall be substantially in the
form attached hereto as Schedule A (Order Form) and shall reference
the Effective Date of this Agreement.
1.13 "PROFESSIONAL SERVICES" has the meaning given in Section 5.1
(Professional Services) of this Agreement.
1.14 "SERVICES" means the Professional Services and the Support Services.
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1.15 "SITE" means those locations in which the [**] Application is
developed, modified, maintained and/or deployed by or on behalf of GE
and in which GE is entitled to Use the Software in accordance with a
license granted under this Agreement.
1.16 "SOFTWARE" means the GMI Software and the Third Party Software
designated on the Order Form.
1.17 "SOURCE CODE" means the human-readable version of a software program
that requires compilation or other manipulation before it can be
executed by a computer.
1.18 "[**] APPLICATION" means that certain application known as the [**]
Application as it exists as of the date hereof and as it may be
extended, modified or enhanced hereafter via which employees,
contractors, customers, and suppliers of GE can obtain certain
information regarding GE products, services and business.
1.19 "SUPPORT SERVICES" has the meaning given in Section 5.2 (Support
Services) of this Agreement.
1.20 "THIRD PARTY SOFTWARE" means certain third party software specifically
identified on an Order Form that GMI has the right to sublicense and
deliver to GE, together with the media and Updates therefor.
1.21 "UPDATE" means a successor version of the Software that is made
generally available to GMI's licensees that are current in the payment
of Support Services for such Software. [**]
1.22 "USE" means the installation, utilization and reproduction of the
Software by or on behalf of GE solely for business purposes of GE's
[**] Application and not for remarketing, resale, redistribution or
sublicensing to or use on behalf of others. For the purposes of this
Agreement GE employees, contractors, suppliers, and customers
(collectively "Users") may Use the Software in conjunction with GE's
business, worldwide, whether from or off GE premises.
2. Grant of License
2.1 Grant. Subject to the terms and conditions of this Agreement and of
the applicable Order Form, GMI grants to GE a perpetual (except as
provided in Section 10.2 (Termination) below), worldwide,
non-exclusive, non-transferable (except as permitted under this
Section 2. and Section 11.1 (Non-assignment/Binding Agreement) below),
and non-sublicensable license:
(a) to Use the Software at the Site for the purposes and subject to
the terms, conditions and limitations specified on the applicable
Order Form;
(b) to use the Documentation in support of GE's Use of the Software
pursuant to this Agreement;
(c) to make those copies of the Documentation and Software reasonably
necessary to support GE's Use of the Software pursuant to this
Agreement; and
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(d) to make those copies of the Software reasonably necessary for
backup, disaster recovery, and archival purposes.
2.2 Relocation.
(a) GE may relocate Software from the computer systems or networks on
which the Software was initially installed in the event of
inoperability of the original computer or network, for purposes
of disaster recovery testing or as part of any GE program to
consolidate computer or network operations, provided the Software
remains subject to this Agreement, any quantity and use limits or
conditions set forth in an Order Form are maintained, and GMI is
notified within a reasonable period of time of the new location
of the Software.
(b) GE may relocate Software without restriction to another GEC
Business and/or GEC Affiliate owned or operated facility, or to
the facilities of a third party, provided the Software remains
subject to this Agreement, any quantity and use limits or
conditions set forth in an Order Form are maintained, and GMI is
notified within a reasonable period of time of the new location
of the Software.
2.3 Proprietary Rights. This Agreement transfers to GE neither title nor
any proprietary or intellectual property rights to the Software or the
Documentation, or to any modifications, improvements or derivatives
thereof, or any copyright, patent or trademark embodied therein or
used in connection therewith, except for the rights expressly granted
under this Agreement.
2.4 Proprietary Notices. GE agrees that, as a condition of its rights
under this Agreement, it will not delete, alter or obscure any
proprietary rights notices (including but not limited to copyright and
trademark notices) of GMI, its licensors or suppliers that appear on
or within each copy of the Software and the Documentation delivered by
GMI to GE, and that it will reproduce all such notices on any copies
of the Software and Documentation permitted under this Agreement.
2.5 Delivery. GMI shall deliver to GE within five (5) business days after
the date of receipt of a fully executed Order Form copies of the
Software suitable for installation and duplication on Software
compatible computers of GE, which copies will sent to the designated
"Ship To" address and consist of (i) two (2) copies of the Software
designated on the Order Form together with any appropriate Keys, (ii)
two (2) copies of the associated Documentation, and (iii) FTP or
digital downloadable media files of the then current Software and
Documentation. Software shall be deemed accepted by GE upon successful
installation.
3. License Restrictions
GE agrees that it will not itself, or through any agent or other third
party:
(a) install, use or reproduce the Software or the Documentation other
than in accordance with this Agreement and the applicable Order
Form;
(b) modify, adapt, port, translate, localize or create derivative
works of the Software or Documentation, except as specifically
permitted in this Agreement;
(c) decompile, disassemble, reverse engineer, or attempt, directly or
indirectly, to identify, reconstruct, derive or discover the
Source Code for all or any part of the Software (other than that
which is Interpreted Code);
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(d) sell, lease, loan, rent, transfer, license or sublicense the
Software or the Documentation except as permitted by this
Agreement;
(e) use the Software to provide processing services to third parties,
whether through timesharing, rental or sharing arrangements, or
otherwise use the Software on a "service bureau" basis;
(f) use any speech or data files, specifically prompts and grammars,
distributed with GMI Software except in connection with such
software, or use any speech or data files, specifically prompts
and grammars, distributed with Third Party Software except in
connection with such software;
(g) provide, disclose, divulge the Software or Documentation or make
it available to, or permit use of it by, any third party except
as permitted by this Agreement;
(h) disclose directly or indirectly the results of any benchmark or
other performance test run on the Software to any third party
without GMI's prior written consent; or
(i) knowingly take any action that would cause all or any part of the
Software to be placed in the public domain.
At GMI's written request, not more frequently than once annually, GE shall
furnish GMI with a signed certification verifying that the Software and
associated Documentation is being used in accordance with the provisions of
this Agreement and applicable Order Forms. In addition, upon ten (10) day's
written notice and no more often than once annually, GMI may, at its
expense, audit GE's use of the Software and Documentation. Any such audit
shall be conducted during regular business hours at GE's facilities and
shall not unreasonably interfere with GE's business activities. If an audit
reveals that GE has underpaid or overpaid fees to GMI, then GE shall be
invoiced for such underpaid fees or receive a credit or refund in GMI's
sole discretion for such overpaid fees which such fees shall be determined
in accordance with this Agreement.
4. Payment Provisions
4.1 Amount. The fee for the Software licenses granted and for the Support
Services provided under the initial Order Form shall be at the rates
specified on the initial Order Form (Schedule A-1). All amounts will
be expressed, and shall be paid for, in U.S. dollars.
4.2 Additional Orders. GE Corporate may place additional orders for
Software and/or Support Services under this Agreement by submitting a
Schedule A-xx for the order and paying the required "Fee(s)" as
reflected in Schedule B. The Schedule A-xx shall specifically state
that the order is placed under this Agreement and shall be construed
accordingly.
4.3 Invoicing and Payment. Payment for the Software licenses granted and
for the Support Services provided during the Term of this Agreement
shall be due and payable net sixty (60) days from the date of receipt
of a correct invoice by GE. GMI shall invoice GE for the Software upon
successful installation of the Software provided that GE may withhold
payment in the event that GE does not accept GMI Deliverables in
accordance with the Professional Services Exhibit A.
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4.4 Support Services Fees. GMI shall invoice GE for GMI's Support Services
as described in Schedule C in the amount of the support fee listed on
Schedule B, including all applicable discounts. The charge for Support
Services shall be invoiced sixty (60) days prior to the expiration of
the Warranty Period, and thereafter annually sixty (60) days prior to
the anniversary of such expiration. Payment of the invoice shall
evidence that GE has elected maintenance for that year.
4.5 No Offset. Fees and expenses due from GE under this Agreement may not
be withheld or offset by GE against any amount owed to GE by GMI.
4.6 Taxes. GE shall pay all sales, use and excise taxes, and any other
assessments in the nature of taxes based on license fees for the
Software or its use or on the charges for any Services performed
hereunder, exclusive of business privilege, property, or license taxes
levied on GMI which are not required by law to be collected from GE,
and taxes based on GMI's net income. GE represents that it is on a
"self-pay" basis with all applicable U.S. taxing authorities and will,
at GMI's request, supply GMI with evidence thereof. Therefore, GMI
will issue any invoice pursuant to this Agreement without any taxes.
GMI and GE shall cooperate with each other in minimizing any
applicable tax and in obtaining any exemption from or reduced rate of
tax available under any applicable law or tax treaty.
5. Services
5.1 Professional Services. GMI will provide and perform professional
services for GE pursuant to the terms and conditions of Exhibit A
("Professional Services") to this Agreement ("Professional Services").
5.2 Support Services. Upon payment annually in advance in the amount set
forth on Schedule B, GMI will provide Support Services during the term
of this Agreement pursuant to the terms and conditions set forth in
Schedule C ("GMI Support Services"). GE at its option shall be
entitled to, but not obligated to, enroll in Support Services. Updates
shall be included under Support Services. GE may elect to receive
Support Services for a period of [**] after the expiration or
termination of this Agreement in accordance with the fees set forth on
Schedule B and the GMI Support Services set forth on Schedule C under
this Agreement.
6. Proprietary Rights Indemnification
GMI represents and warrants that it is the sole owner of the Software and
the GMI Deliverables, or has procured the Software and GMI Deliverables
under valid licenses from the owners thereof, and GMI further represents
and warrants that it has full power and authority to grant the rights
herein granted without the consent of any other person. GMI shall defend,
indemnify and hold GE harmless from and against any claim, suit, or other
proceeding brought against GE based on an allegation that the GMI Software
or the GMI Deliverables, or any elements thereof, when used in accordance
with this Agreement, violates or infringes any patent, copyright, trade
xxxx, or trade secret right arising under the law of [**], or that the
Third Party Software or any elements thereof, when used in accordance with
this Agreement, violates or infringes any patent, copyright, trade xxxx, or
trade secret right arising under the law of [**], provided that GMI is
notified promptly in writing of such allegation, suit, or proceeding, is
given sole control of the defense thereof and all related settlement
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negotiations, and is given full and complete authority, information and
assistance (at GMI's expense) for the defense of same. GMI shall pay
without limitation all damages and costs finally awarded against GE in, or
incurred by GE in a settlement of, any such suit or proceeding, but GMI
shall not be responsible for any compromise made by GE or its agents
without GMI's consent. If such Software or the GMI Deliverables or any
element thereof is held by a court of competent jurisdiction to be
infringing, and its use is enjoined, GMI shall, at its own expense without
limitation, either promptly procure the right for continued use of such
software by GE, or, if the performance thereof will not thereby be
materially adversely affected, promptly replace or modify such software so
that it becomes non-infringing. If neither of the actions specified for GMI
in the preceding sentence is commercially feasible, then as a last resort,
GMI shall [**].
GMI has no liability under this Section 6 for any claim to the extent it
arises out of or is related to (i) any use of the Software other than in
accordance with this Agreement and the Documentation [**]; (ii) a
modification of the Software by or on behalf of GE where, but for such
modification, there would be no infringement and such modification was not
reasonably contemplated by the parties; (iii) a combination of the Software
with any third party software or hardware if but for such combination
there would be no infringement and such combination was not reasonably
contemplated by the parties; or (iv) the use of a version of Software
other than the then current version if infringement would have been
avoided with the use of the then current version, [**].
The rights granted to GE under this Section 6 shall be GE's sole and
exclusive remedy for any alleged infringement of any patent, copyright,
trade secret or other proprietary rights. Where the alleged infringement of
any such right is asserted by GE to be an infringement of a GE right, the
parties agree that the indemnity obligation under this Section 6 shall not
apply.
7. Warranties
7.1 Media Warranty. GMI warrants that for a period of [**] from the date
of successful installation of the Software by GE that the media used
to deliver the Software to GE shall be free from defects in
manufacture and material under normal use. Should the media fail to be
free of defects in manufacture or material under normal use, GMI as
its entire liability and GE's sole and exclusive remedy shall replace
the defective media at no charge, including shipping, provided GE
notifies GMI of the defect during the [**] warranty period. This
warranty does not apply to damage resulting from abuse, misuse or
negligence.
7.2 Software Warranty. GMI warrants that, for a period of [**] from the
date of the first successful installation of the Software, the Software
will perform substantially as described in the Documentation. If the
Software fails to perform substantially in such a manner, GE's sole and
exclusive remedy, and GMI's entire liability, shall be either
correction or replacement of the Software at no charge or a full refund
of all license fees paid by GE for the right to use the Software,
provided that GE notifies GMI of the defect during the [**] warranty
period. GE will deliver all copies of defective Software with
associated Documentation to GMI to receive replacements or a refund of
fees. This warranty will apply only if (a) the Software has been
properly installed (if not installed by GMI) and used in accordance
with this Agreement and the Documentation; and (b) no modification,
alteration or addition has been made that were not reasonably
contemplated by the parties. Additionally, GMI warrants that for [**]
from the date
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of delivery of any Third Party Software hereunder, that such Software
will fully and completely interoperate with the GMI Software.
7.3 Code Integrity Warranty. GMI warrants and represents that the GMI
Software, other than the Key software, does not and will not contain
any program routine, device, code or instructions (including any code
or instructions provided by third parties) or other undisclosed
feature, including, without limitation, a time bomb, virus, software
lock, drop-dead device, malicious logic, worm, trojan horse, bug,
error, defect or trap door (including year 2000), that is capable of
accessing, modifying, deleting, damaging, disabling, deactivating,
interfering with, or otherwise harming the GMI Software, any
computers, networks, data or other electronically stored information,
or computer programs or systems (collectively, "Disabling
Procedures"). Such representation and warranty applies regardless of
whether such Disabling Procedures are authorized by GMI to be included
in the GMI Software. If GMI incorporates into the GMI Software
programs or routines supplied by other vendors, licensors or
contractors (other than the Key software), GMI shall obtain comparable
warranties from such providers or GMI shall take appropriate action to
ensure that such programs or routines are free of Disabling
Procedures. Notwithstanding any other limitations in this Agreement,
GMI agrees to notify GE immediately upon discovery of any Disabling
Procedures that are or may be included in the GMI Software, and, if
Disabling Procedures are discovered or reasonably suspected to be
present in the GMI Software, GMI, as its entire liability and GE's
sole and exclusive remedy for the breach of the warranty in this
Section 7.3, agrees to take action immediately, at its own expense, to
identify and eradicate (or to equip GE to identify and eradicate) such
Disabling Procedures and carry out any recovery necessary to remedy
any impact of such Disabling Procedures.
7.4 Documentation Warranty. Any Documentation associated with the GMI
Software will be in form and substance at least equal to comparable
materials generally in use in the industry. If at any time such
original Documentation is revised or supplemented by additional
Documentation, thereupon GMI shall deliver to GE copies of such
revised or additional Documentation at no charge in quantity
equivalent to the quantity of such original Documentation then in GE's
possession. GE's sole and exclusive remedy for breach of this
warranty, and GMI's entire liability, shall be the correction or
replacement of the defective Documentation.
7.5 [**]
7.6 [**]
7.7 [**]
7.8 [**]
7.9 [**]
7.10 Service Personnel. GMI warrants and represents that each of its
employees, subcontractors or agents assigned to perform work under any
Support Services agreement, shall have the proper skill, training and
background so as to be able to perform in a competent, professional
and workmanlike manner and that all work will be so performed and in
accordance with generally
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accepted industry professional standards. GE's sole and exclusive
remedy for breach of this warranty, and GMI's entire liability, shall
be the re-performance at no cost of the services, provided the claim
is made within [**] of the service date.
7.11 Third Party Pass-Through. GMI hereby assigns to GE any and all
manufacturers' or suppliers' warranties, guarantees, representations,
services agreements and indemnities, if any, with respect to any third
party hardware and software delivered by GMI hereunder to the extent
assignable by GMI. To the extent such warranties, guarantees,
representations, services agreements and indemnities are not
assignable by GMI, GMI agrees that GE may assert or enforce any right
that GMI may have to enforce such warranties, guarantees,
representations, service agreements and indemnities, or if such can
only be enforced by GMI and in its own name, upon GE's request and at
GE's sole expense, GMI shall take all reasonable action requested by
GE to enforce such warranties, guarantees, representations, service
agreements and indemnities.
7.12 Warranty Disclaimer. THE WARRANTIES IN THE FIRST SENTENCE OF SECTION 6
(PROPRIETARY RIGHTS INDEMNIFICATION), IN SECTION 7 (WARRANTIES) AND IN
SECTION 4 (WARRANTIES) OF EXHIBIT A (PROFESSIONAL SERVICES) ARE THE
SOLE AND EXCLUSIVE WARRANTIES TO GE UNDER THIS AGREEMENT, AND IN LIEU
OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR USE, TITLE AND NONINFRINGEMENT. GMI'S LICENSORS
AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS,
STATUTORY OR IMPLIED, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT. GMI DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE IN
COMBINATIONS OTHER THAN AS SPECIFIED IN THE DOCUMENTATION OR THAT THE
OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
PRE-PRODUCTION RELEASES OF SOFTWARE ARE DISTRIBUTED "AS IS", HOWEVER,
IF GE IS TO RECEIVE A PRE-PRODUCTION RELEASE OF SOFTWARE IT SHALL BE
NOTIFIED IN ADVANCE AS TO THE STATUS OF THE SOFTWARE. NEITHER THE
SOFTWARE NOR THE GMI DELIVERABLES ARE INTENDED FOR USE DIRECTLY IN ANY
NUCLEAR, AVIATION, MASS TRANSIT, MEDICAL, OR OTHER INHERENTLY
DANGEROUS APPLICATION. GMI EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED
WARRANTY OF FITNESS FOR SUCH USE. GE REPRESENTS AND WARRANTS THAT IT
SHALL NOT DIRECTLY OR INDIRECTLY USE THE SOFTWARE OR THE GMI
DELIVERABLES TO DEVELOP, TEST OR DEPLOY ANY APPLICATIONS FOR SUCH
PURPOSES.
8. Limitation of Liability
EXCEPT FOR GE'S OBLIGATIONS UNDER SECTION 3 (LICENSE RESTRICTIONS), GMI'S
OBLIGATIONS UNDER SECTION 6 (PROPRIETARY RIGHTS INDEMNIFICATION) AND EACH
PARTY'S OBLIGATIONS UNDER SECTION 9.1 (CONFIDENTIAL INFORMATION), NEITHER
PARTY SHALL BE LIABLE TO THE OTHER FOR COSTS OF PROCUREMENT OF SUBSTITUTE
PRODUCTS OR SERVICES, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR ANY OTHER
SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY
KIND INCURRED IN CONNECTION WITH OR ARISING OUT OF OR RELATING TO
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THIS AGREEMENT, THE SOFTWARE, THE GMI DELIVERABLES, THE DOCUMENTATION, THE
SERVICES, OR THE FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE, GMI
DELIVERABLES, DOCUMENTATION OR SERVICES PROVIDED HEREUNDER, WHETHER ALLEGED
AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, EVEN IF THE PARTY HAS BEEN
NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR GE'S OBLIGATIONS
UNDER SECTION 3 (LICENSE RESTRICTIONS), GMI'S OBLIGATIONS UNDER SECTION 6
(PROPRIETARY RIGHTS INDEMNIFICATION) AND EACH PARTY'S OBLIGATIONS UNDER
SECTION 9.1 (CONFIDENTIAL INFORMATION), AS TO WHICH THERE SHALL BE NO
LIMITATION OF LIABILITY, NEITHER PARTY'S LIABILITY TO THE OTHER UNDER THIS
AGREEMENT SHALL EXCEED [**] THE AGGREGATE FEES ACTUALLY PAID TO GMI BY GE
UNDER THIS AGREEMENT.
9. Confidential Information and Publicity
9.1 Confidential Information. All Confidential Information furnished under
this Agreement by the party disclosing such Confidential Information
(the "Disclosing Party") to the party receiving the Confidential
Information (the "Receiving Party") shall remain the property of the
Disclosing Party and/or its licensors and suppliers. The Disclosing
Party's Confidential Information may be disclosed to Receiving Party
visually, orally, in machine-readable form, or in writing (including
graphic material). When disclosed in machine-readable form or writing,
the Confidential Information shall be labeled "Confidential" or
otherwise appropriately as to indicate its confidential nature. When
disclosed visually or orally, the Confidential Information shall be
identified as Confidential Information at the time of initial
disclosure. Regardless of whether so marked or identified, however,
any information that the Receiving Party knew or should have known was
considered confidential or proprietary by the Disclosing Party,
including without limitation information learned by the Receiving
Party upon visual inspection of the Disclosing Party's property, will
be considered Confidential Information of the Disclosing Party for the
purposes of this Agreement.
GMI and GE agree that each party shall receive the Confidential
Information of the other party subject to the following conditions:
(a) Confidential Information shall be held and protected by Receiving
Party in strict confidence and used by Receiving Party and its
personnel and affiliates only in conjunction with the performance
of this Agreement. The Receiving Party shall not disclose the
Confidential Information of the Disclosing Party to anyone except
its own officers, employees, agents and contractors who have a
need to know such information for purposes of exercising the
Receiving Party's rights or performing its obligations hereunder,
and such officers, employees, agents and contractors shall make
no further disclosure of Confidential information without the
express written authorization of the Disclosing Party.
(b) Each party warrants and represents that each of its officers,
employees, agents and contractors working on GE-GMI projects are
aware of (or will, within 10 days of the Effective Date of this
Agreement be made aware of) the terms of this non-disclosure
agreement so that they may sufficiently protect the considerable
interests of the other party in maintaining the confidentiality
of its Confidential Information.
(c) The Receiving Party shall not copy the Disclosing Party's
Confidential Information (except for the limited purpose of
making secondary copies for officers and employees on
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a need-to-know basis) and shall return to Disclosing Party any or
all portions of the Disclosing Party's Confidential Information
at any time upon request by the Disclosing Party including, but
not limited to all documents or other media containing the
Disclosing Party's Confidential Information. If any intermediate
work products or working papers containing the Disclosing Party's
Confidential Information shall have been generated, they shall be
delivered to the Disclosing Party's contract administrator or
technical coordinator or, when appropriate, disposed of as they
so direct.
(d) Each party's obligations hereunder with respect to any item of
Confidential Information of the other shall continue during the
term of this Agreement and for 3 years after the expiration or
termination of this Agreement, except that each party's
obligations hereunder with respect to trade secrets of the other
shall extend to such time as the relevant information ceases to
qualify as a trade secret under applicable law.
(e) THE RECEIVING PARTY ACQUIRES NO INTELLECTUAL PROPERTY RIGHTS FROM
THE DISCLOSING PARTY UNDER THIS SECTION 9.1, except for the
restricted right to use Disclosing Party's Confidential
Information for the express, limited purposes described above.
(f) The Receiving Party shall be responsible in all cases for the
enforcement of all confidentiality and non-disclosure provisions
contained herein as they pertain to the Disclosing Party's
Confidential Information, and shall bear all liability for any
violations of these provisions by its subsidiaries, affiliates,
joint venturers, consultants, agents, third party contractors and
related persons or entities that are controlled by or under
common ownership and control of the Receiving Party.
(g) The parties acknowledge that they do not desire to receive any
Confidential Information that is not reasonably necessary or
appropriate to the performance of this Agreement.
9.2 Publicity. As a material obligation of this Agreement, neither party
shall use the name, logo, trademark, nor any reference either direct
or indirect of the other in publicity releases, advertising, case
studies or references without the prior written consent of the other.
GMI understands that GE does not contemplate providing any such
consent and is under no obligation, express or implied, to provide any
such consent. In the event that consent should be granted for a
particular communication, neither party shall be under any further
obligation to provide consent to any future request. Both parties to
this Agreement agree not to disclose the existence or any terms of
this Agreement to any third party without the prior written approval
of the other, except that the parties may disclose this Agreement (i)
to an assignee pursuant to Section 11.1 (Non-assignment/Binding
Agreement) hereof; or (ii) as may be required by law or legal process.
10. Term and Termination
10.1 Term. The license(s) granted under this Agreement will remain in force
perpetually unless terminated as provided below. This Agreement shall
become effective on the date specified on the first page hereof and
shall remain in force for a minimum period of three (3) years and
shall remain in effect thereafter until terminated by either party
upon ninety (90) days' prior written notice to the other party or
until this Agreement is otherwise terminated as provided herein.
-11-
10.2 Termination for Cause. Either party may terminate this Agreement and
in the event GMI is the non-breaching party, GMI may in addition
terminate any or all licenses granted hereunder upon the occurrence of
any of the following events of default:
(a) If the other party fails to perform or discharge any of its
material obligations hereunder, and fails to correct such failure
within a thirty (30) day cure period following written notice
from the non-breaching party specifying such failure. For
purposes of this paragraph, GE's obligation to make payment of
any amount due to GMI under this Agreement shall be deemed a
material obligation.
(b) If the other party shall have become insolvent or bankrupt,
admitted in writing its inability to pay its debts as they mature
or taken any action for the purpose of entering into winding-up,
dissolution, bankruptcy, reorganization or similar proceedings
analogous in purpose or effect thereto, or any such action shall
have been instituted against it and such party shall have acceded
thereto or such action shall not have been dismissed or stayed
within sixty (60) days of the institution thereof, or any order
shall have been made by any competent court or any resolution
shall have been passed for the appointment of a liquidator or
trustee in bankruptcy or such party shall have appointed or
suffered to be appointed any receiver or trustee of the whole or
any material part of its assets or business or shall have entered
into any composition with its general creditors. In any such
event the other party (i.e., the first party specified in this
Section 10.2(b)) may terminate this Agreement at any time after
such event by giving notice or may suspend or cancel deliveries
during the continuation of any such event.
10.3 Termination for Convenience. GE may terminate this Agreement for
convenience at any time; termination shall not, however, relieve GE of
the obligations specified in Sections 10.4 and 10.5 below nor shall
GE's right to Use the Software be terminated.
10.4 Effect of Termination. Termination of this Agreement or any license
shall not prevent either party from pursuing other remedies available
to it, including injunctive relieve, nor shall such termination
relieve GE's obligation to pay all fees that have accrued or are
otherwise owed by GE under this Agreement. Expiration or termination
of this Agreement or any license granted hereunder for any reason
other than a material breach by GE shall not abridge or diminish in
any way the rights of GE to use the Software previously licensed or to
receive Support Services as provided in this Agreement, and such use
of the Software shall continue in perpetuity, subject to the terms and
provisions of this Agreement and the applicable Order Form.
Continuation of optional Support Services for such Software is subject
to the applicable terms and provisions of Schedules B and C of this
Agreement. The party's rights and obligations under Sections 1
(Definitions), 2.3 (Proprietary Rights), 2.4 (Proprietary Notices), 3
(License Restrictions), 4 (Payment Provisions), 8 (Limitations of
Liability), 9.1 (Confidential Information), 10 (Term and Termination)
and 11 (General) shall survive any termination or expiration of this
Agreement for any reason.
10.5 Discontinuation of Use. Within thirty (30) days after the date of
termination of any license granted hereunder because of a material
breach by GE, GE shall cease use, and shall return or destroy the
applicable Software, and all copies thereof, all related Documentation
and all copies thereof and shall furnish GMI with written
certification verifying that it has done so. GE shall not be entitled
to refund of all or any portion of the applicable license fee in such
circumstances.
-12-
11. General
11.1 Non-assignment/Binding Agreement. Neither this Agreement nor any
rights or obligations of either party under this Agreement may be
assigned in whole or in part without the prior written consent of the
other party. Notwithstanding the foregoing, GEC may, without GMI's
written consent, assign this Agreement in whole or in part to any GEC
Affiliate or in connection with a merger, combination or sale of all
or substantially all of its assets. In addition, GMI may, without
GEC's written consent, assign this Agreement in connection with a
merger, combination or sale of all or substantially all of its assets.
Any attempted assignment in violation of this Section 11.1 will be
void and of no force or effect. Subject to the foregoing, this
Agreement will bind and inure to the benefit of the parties and their
respective successors and permitted assigns.
11.2 Notices. Any notice required or permitted under the terms of this
Agreement or required by law must be in writing and must be (a)
delivered in person, (b) sent by first class registered mail, or (c)
sent by major commercial overnight air courier, in each case properly
posted to the other party at the address set forth below. Either party
may change such address by notice to the other party given in
accordance with this Section 11.2. Notices will be considered to have
been given at the time of actual delivery in person (or when delivery
is refused), five (5) business days after deposit in the mail as set
forth above, or one (1) day after delivery to an overnight air courier
service, as applicable.
11.3 Force Majeure. Neither party will incur any liability to the other
party on account of any loss or damage resulting from any delay or
failure to perform all or any part of this Agreement if such delay or
failure is caused, in whole or in part, by events, occurrences, or
causes beyond its control. Such events, occurrences, or causes will
include, without limitation, acts of God, strikes, lockouts, riots,
acts of war, acts of terrorism, earthquakes, fire and explosions, but
the inability to meet financial obligations is expressly excluded.
11.4 Waiver. Any waiver of the provisions of this Agreement or of a party's
rights or remedies under this Agreement must be in writing to be
effective. Failure, neglect or delay by a party to enforce the
provisions of this Agreement or its rights or remedies at any time,
will not be deemed to be a waiver of such party's rights under this
Agreement and will not in any way affect the validity of the whole or
any part of this Agreement or prejudice such party's right to take
subsequent action.
11.5 Severability. If any term, condition, or provision of this Agreement
is found by a court of competent jurisdiction to be invalid, unlawful
or unenforceable to any extent, the parties shall endeavor in good
faith to replace such provision with a provision that will preserve,
as far as possible, the purposes intended by the parties under the
provision held invalid, unlawful or unenforceable. If the parties fail
to agree on such an amendment, the invalid term, condition or
provision shall be changed or interpreted so as best to accomplish the
objectives of such provision within the limits of applicable law, and
the balance of the Agreement will continue to be valid and enforceable
to the fullest extent permitted by law.
11.6 Entire Agreement. This Agreement and the Order Forms (Schedule A,
Schedule A-xx, etc.) issued hereunder constitute the entire agreement
of the parties, and supersede all previous and contemporaneous
communications, representations, understandings and agreements,
whether oral or written, between the parties, with respect to the
subject matter of this Agreement. This Agreement may not be modified
or amended except by a writing signed by authorized
-13-
representatives of both parties; no other act, document, usage or
custom shall be deemed to amend or modify this Agreement.
11.7 Relationship of Parties. In making and performing this Agreement, the
parties act and shall act as independent contractors. Nothing
contained in this Agreement shall be construed or implied to create
the relationship of partner, or of employer and employees, between
the parties. At no time shall either party make commitments for or in
the name of the other party.
11.8 Standard Terms of GE. No terms, provisions or conditions of any
purchase order, acknowledgment or other business form that GE may use
in connection with the licensing of the Software and associated
Documentation or with securing Services hereunder will have any
effect on the rights, duties or obligations of the parties under, or
otherwise modify, this Agreement and the Order Forms issued
hereunder, regardless of any failure of GMI to object to such terms,
provisions or conditions.
11.9 Export of Software; Government Use. GE agrees to comply fully with
all relevant export laws and regulations of the United States
("Export Laws") to assure that neither the Software nor the
Documentation, nor any direct product thereof are (1) exported,
directly or indirectly, in violation of Export Laws; or (2) are
intended to be used for any purposes prohibited by the Export Laws,
including, without limitation, nuclear, chemical, or biological
weapons proliferation. The Software and Documentation are "commercial
items" as that terms is defined in 48 C.F.R. 2.101, consisting of
"commercial computer software" and "commercial computer software
documentation" as such terms are used in 48 C.F.R. 12.212 and
227.7202. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1
through 227.7202-4, and all U.S. Government customers acquire rights
to use the Software and Documentation only as commercial items and
with only those rights as are granted to all other GE customers
pursuant to the terms and conditions of this Agreement. Unpublished
rights are reserved under the copyright laws of the United States. In
addition, during the term of this Agreement, GMI will, as a material
obligation of this Agreement, disclose the levels of encryption
technology contained within the Software sufficient for GE to comply
with all applicable export and import law and regulations.
Furthermore, GMI will notify GE, ninety (90) days in advance of any
change in the level of encryption technology.
11.10 Counterparts. This Agreement may be executed in counterparts, each of
which so executed will be deemed to be an original and which together
will constitute one and the same agreement. To expedite order
processing, GE agrees that GMI may treat faxed counterparts of this
Agreement (including executed counterparts) as originals;
nevertheless, either party may require the other to exchange original
signed documents.
11.11 Applicable law; Jurisdiction. This Agreement will be interpreted and
construed in accordance with the laws of the State of New York and
the United States of America, without regard to conflict of law
principles that would require application of the laws of a different
state. The United Nations Covenant on Contracts for the Sale of Goods
does not apply to this Agreement. All disputes arising out of this
Agreement shall be subject to the jurisdiction and venue of the state
and federal courts of New York and of Santa Xxxxx County, California,
and the parties consent to the personal jurisdiction of these courts.
11.12 Dispute Resolution. Before either party initiates any legal action
against the other arising from this Agreement (other than to seek
injunctive or other equitable relief), the matter in controversy will
first be referred to the chief information officers or other
appropriate officers
-14-
of the parties. Such officers shall take all reasonable steps to
attempt to resolve the matter within four (4) weeks of the date of
referral.
11.13 Attorneys' Fees. The prevailing party in any judicial action brought
to enforce or interpret this Agreement or for relief for its breach
will be entitled to recover its costs and its reasonable attorneys'
fees incurred to prosecute or defend such action.
11.14 Remedies. In the event of any actual or threatened breach of the
provisions of Section 3 (License Restrictions) or 9.1 (Confidential
Information), or the licenses granted in Section 2 (Grant of
License), the parties agree that the non-breaching party will have no
adequate remedy at law and shall be entitled to immediate injunctive
and other equitable relief, without bond and without the necessity of
showing actual money damages.
11.15 Interpretation. Section and Schedule headings are for ease of
reference only and do not form part of this Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GENERAL ELECTRIC COMPANY GENERAL MAGIC, INC.
By: ____________________________ By: ____________________________
________________________________ ________________________________
(print name and title) (print name and title)
-15-
SCHEDULE A-1
INITIAL ORDER FORM
----------------------------------------------------------------------------------------------------
CUSTOMER INFORMATION
----------------------------------------------------------------------------------------------------
Sold and Billed To: General Electric, [**] Ship To:*
----------------------------------------------------------------------------------------------------
Address: [**] Address:
----------------------------------------------------------------------------------------------------
City: Fairfield State: CN City: State:
----------------------------------------------------------------------------------------------------
Country: USA Zip Code: [**] Country: Zip Code:
----------------------------------------------------------------------------------------------------
Contact: [**] Contact:
----------------------------------------------------------------------------------------------------
Phone: [**] Phone:
----------------------------------------------------------------------------------------------------
Fax: [**] Fax:
----------------------------------------------------------------------------------------------------
Email: [**] Email:
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
* If different from Billing Address
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
MAGICTALK(R) VOICE SEATS CHANNELS SITE(S) LICENSE FEE
GATEWAY 1.6 LICENSES*
----------------------------------------------------------------------------------------------
Development 5 [**] [**]
----------------------------------------------------------------------------------------------
Staging 1-T1 [**] [**]
----------------------------------------------------------------------------------------------
Deployment 1-T1 [**] [**]
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
TOTAL LICENSE FEES: [**]
----------------------------------------------------------------------------------------------
* INCLUDED WITH ENTERPRISE PLATFORM DEPLOYMENT LICENSE
----------------------------------------------------------------------------------------------
MAGICTALK(R) ENTERPRISE SEATS CONNECTIONS CPUS SITE(S) LICENSE FEE
PLATFORM 1.0 LICENSES
*INCLUDED WITH ENTERPRISE
----------------------------------------------------------------------------------------------
Development 5 [**] [**]
----------------------------------------------------------------------------------------------
Staging 1 [**] [**]
----------------------------------------------------------------------------------------------
Deployment 1 [**] [**]
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
TOTAL LICENSE FEES: [**]
----------------------------------------------------------------------------------------------
* INCLUDED WITH ENTERPRISE PLATFORM DEPLOYMENT LICENSE
----------------------------------------------------------------------------------------------
THIRD PARTY LICENSES/SUPPORT PORTS DESCRIPTION SITE(S) LICENSE FEE
SOFTWARE &
HARDWARE
----------------------------------------------------------------------------------------------
[**] Development [**] [**]
----------------------------------------------------------------------------------------------
Staging [**] [**]
----------------------------------------------------------------------------------------------
Deployment 1 T1 [**] [**]
----------------------------------------------------------------------------------------------
Support [**]
----------------------------------------------------------------------------------------------
[**] Development [**] [**]
----------------------------------------------------------------------------------------------
Staging [**] [**]
----------------------------------------------------------------------------------------------
--------
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-16-
Deployment 1 T1 [**] [**]
----------------------------------------------------------------------------------------------
Support [**]
----------------------------------------------------------------------------------------------
[**] [**] [**]
----------------------------------------------------------------------------------------------
2 - Servers [**] [**]
----------------------------------------------------------------------------------------------
TOTAL LICENSE [**]
FEES:
----------------------------------------------------------------------------------------------
* INCLUDED WITH ENTERPRISE PLATFORM DEPLOYMENT LICENSE
----------------------------------------------------------------------------------------------
GMI SERVICES ANNUAL PERIOD FURTHER DESCRIPTION SERVICE FEES
----------------------------------------------------------------------------------------------
Support Services [**] per year of the [**]
net software license
fee
----------------------------------------------------------------------------------------------
Application Development [**] VUI per SOW [**]
dated March 15, 2002
----------------------------------------------------------------------------------------------
TOTAL SERVICE FEES: [**]
----------------------------------------------------------------------------------------------
* INCLUDED WITH ENTERPRISE PLATFORM DEPLOYMENT LICENSE
---------------------------------------------
Subtotal [**]
---------------------------------------------
State Sales Tax Company
Self-Pay
---------------------------------------------
GRAND TOTAL [**]
---------------------------------------------
ADDITIONAL DEFINITIONS. Capitalized terms used but not defined in this Order
Form shall have the meaning given them in the main body of the Agreement. For
purposes of the Agreement and this Order Form the following additional terms
have the meanings indicated below:
"CHANNELS" means the number of T-1 lines over which telephone connections
may be made with the Software and for which GMI has provided Keys in
accordance with the Agreement.
"CONNECTIONS" means the number of number of telephone connections that may
be simultaneously maintained with the Software and for which GMI has
provided Keys in accordance with the Agreement.
"CPUS" means the number of single microprocessors on which the Software may
be operated and for which GMI has provided Keys in accordance with the
Agreement.
"DEVELOPMENT LICENSE" means Use of the Software by the Seats designated on
the Order Form for the purpose of designing, developing and testing GE
Applications.
"DEPLOYMENT LICENSE" means Use of the Software through the Channels or
Ports, or on the CPUs, as applicable, designated on the Order Form for the
purpose of testing for deployment and deploying the [**] Voice
Applications.
"PORTS" means, with respect to the [**], the number of telephone channels
or telephone lines enabled to use the OSR Software to support a single
conversation, as hereinafter defined. A "conversation" commences when a
telephone caller is first connected to a computer system which processes
the caller's spoken words for speech recognition purposes through use of
OSR Software ("Computer System") and continues until the first of the
following to occur: (a) the caller's telephone (or equivalent device)
completely terminates the speech recognition portion of the connection
--------
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-17-
between the telephone (or equivalent device) and the network or networks
which connect it to the Computer System; (b) the telephone caller's
connection is transferred to a human being; or (c) although the caller may
remain connected to the Computer System, the Computer System will not
further process the caller's spoken words for speech recognition purposes
prior to termination of the call as defined in (a) above.
"PORTS" means, with respect to the [**] software, the maximum number of
telephone channels or telephone lines simultaneously enabled to play the
output of the Speechify software at a single time.
"SEATS" means the number of employees and individual independent
contractors of GE who may concurrently Use the Software.
"STAGING LICENSE" means Use of the Software over the Channels or Ports, or
on the CPUs, as applicable, designated on the Order Form, for the purpose
of testing for deployment the [**] Voice Applications.
FURTHER LICENSE RESTRICTIONS. Each license granted pursuant to this Order Form
shall be subject to the limitations set forth in this Order Form. In no event
shall GE's Use of the Software exceed the number of Channels, Connections, CPUs,
Ports or Seats designated above, unless GE has placed and GMI has accepted an
order for such additional Channels, Connections, CPUs, Ports or Seats, all in
accordance with the Agreement.
This order is placed subject to the terms and conditions of the Software License
Agreement by and between GMI and GE with the Effective Date of March 15, 2002.
GENERAL ELECTRIC COMPANY ACCEPTED BY GENERAL MAGIC, INC.:
Signature: _____________________ Signature: _________________________
Name: __________________________ Name: ______________________________
Title: _________________________ Title: _____________________________
Date: __________________________ Date: ______________________________
--------
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-18-
SCHEDULE A-XX
ORDER FORM
----------------------------------------------------------------------------------------------
CUSTOMER INFORMATION
----------------------------------------------------------------------------------------------
Sold and Billed To: Ship To: *
----------------------------------------------------------------------------------------------
Address: Address:
----------------------------------------------------------------------------------------------
City: State: City: State:
----------------------------------------------------------------------------------------------
Country: Zip Code: Country: Zip Code:
----------------------------------------------------------------------------------------------
Contact: Contact:
----------------------------------------------------------------------------------------------
Phone: Phone:
----------------------------------------------------------------------------------------------
Fax: Fax:
----------------------------------------------------------------------------------------------
Email: Email:
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
* If different from Billing Address
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
MAGICTALK(R) VOICE SEATS CHANNELS SITE(S) LICENSE FEE
GATEWAY 1.6 LICENSES
----------------------------------------------------------------------------------------------
Development [**]
----------------------------------------------------------------------------------------------
Staging [**]
----------------------------------------------------------------------------------------------
Deployment [**]
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
TOTAL LICENSE FEES:
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
MAGICTALK(R) ENTERPRISE SEATS CONNECTIONS CPUS SITE(S) LICENSE FEE
PLATFORM 1.0 LICENSES
----------------------------------------------------------------------------------------------
Development [**]
----------------------------------------------------------------------------------------------
Staging [**]
----------------------------------------------------------------------------------------------
Deployment [**]
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
TOTAL LICENSE FEES:
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
THIRD PARTY LICENSES/SUPPORT PORTS DESCRIPTION SITE(S) LICENSE FEE
SOFTWARE
----------------------------------------------------------------------------------------------
[**] Development [**]
----------------------------------------------------------------------------------------------
Staging [**]
----------------------------------------------------------------------------------------------
Deployment [**]
----------------------------------------------------------------------------------------------
Support
----------------------------------------------------------------------------------------------
[**] Development [**]
----------------------------------------------------------------------------------------------
Staging [**]
----------------------------------------------------------------------------------------------
--------
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-19-
----------------------------------------------------------------------------------------------
Deployment [**]
----------------------------------------------------------------------------------------------
Support
----------------------------------------------------------------------------------------------
TOTAL LICENSE FEES:
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
GMI SERVICES ANNUAL PERIOD FURTHER DESCRIPTION SERVICE FEES
----------------------------------------------------------------------------------------------
Support Services [**] per year of the net
software license fee
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Training
----------------------------------------------------------------------------------------------
TOTAL SERVICE FEES:
----------------------------------------------------------------------------------------------
---------------------------------------------------
Subtotal
---------------------------------------------------
State Sales Tax Company
Self-Pay
---------------------------------------------------
GRAND TOTAL
---------------------------------------------------
ADDITIONAL DEFINITIONS. Capitalized terms used but not defined in this Order
Form shall have the meaning given them in the main body of the Agreement. For
purposes of the Agreement and this Order Form the following additional terms
have the meanings indicated below:
"CHANNELS" means the number of T-1 lines over which telephone connections
may be made with the Software and for which GMI has provided Keys in
accordance with the Agreement.
"CONNECTIONS" means the number of number of telephone connections that may
be simultaneously maintained with the Software and for which GMI has
provided Keys in accordance with the Agreement.
"CPUS" means the number of single microprocessors on which the Software may
be operated and for which GMI has provided Keys in accordance with the
Agreement.
"DEVELOPMENT LICENSE" means Use of the Software by the Seats designated on
the Order Form for the purpose of designing, developing and testing GE
Applications.
"DEPLOYMENT LICENSE" means Use of the Software through the Channels or
Ports, or on the CPUs, as applicable, designated on the Order Form for the
purpose of testing for deployment and deploying the [**] Voice
Applications.
"PORTS" means, with respect to the [**], the number of telephone channels
or telephone lines enabled to use the OSR Software to support a single
conversation, as hereinafter defined. A "conversation" commences when a
telephone caller is first connected to a computer system which processes
the caller's spoken words for speech recognition purposes through use of
OSR Software ("Computer System") and continues until the first of the
following to occur: (a) the caller's telephone (or equivalent device)
completely terminates the speech recognition portion of the connection
between the telephone (or equivalent device) and the network or networks
which connect it to the Computer System; (b) the telephone caller's
connection is transferred to a human being; or (c) although the caller may
remain connected to the Computer System, the Computer System will not
--------
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-20-
further process the caller's spoken words for speech recognition purposes
prior to termination of the call as defined in (a) above.
"PORTS" means, with respect to the [**] software, the maximum number of
telephone channels or telephone lines simultaneously enabled to play the
output of the Speechify software at a single time.
"SEATS" means the number of employees and individual independent
contractors of GE who may concurrently Use the Software.
"STAGING LICENSE" means Use of the Software over the Channels or Ports, or
on the CPUs, as applicable, designated on the Order Form, for the purpose
of testing for deployment the [**] Voice Applications.
FURTHER LICENSE RESTRICTIONS. Each license granted pursuant to this Order Form
shall be subject to the limitations set forth in this Order Form. In no event
shall GE's Use of the Software exceed the number of Channels, Connections, CPUs,
Ports or Seats designated above, unless GE has placed and GMI has accepted an
order for such additional Channels, Connections, CPUs, Ports or Seats, all in
accordance with the Agreement.
This order is placed subject to the terms and conditions of the Software License
Agreement by and between GMI and GE with the Effective Date of
_________________________, 2002.
GENERAL ELECTRIC COMPANY ACCEPTED BY GENERAL MAGIC, INC.:
Signature: _____________________ Signature: _________________________
Name: __________________________ Name: ______________________________
Title: _________________________ Title: _____________________________
Date: __________________________ Date: ______________________________
--------
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-21-
SCHEDULE B
FEES
------------------------------------------------------------------------------------------------
magicTalk(R) Deployment Unit List Price [**] Net [**]
License Discount* License
Fee
Discounted
Price*
------------------------------------------------------------------------------------------------
Voice Gateway 1.6 (Includes 5 One T1 $[**] $[**] $[**]
development seat licenses and
1 channel staging license)
------------------------------------------------------------------------------------------------
Enterprise Platform 1.0 One CPU $[**] $[**] $[**]
(Includes 5 development seat
licenses and 1 staging
connection license)
------------------------------------------------------------------------------------------------
Enterprise Platform 1.0 One CPU $[**] $[**] $[**]
Personalization (Includes one
staging license)
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
Third Party Software Unit List Price [**] Net [**]
Deployment License** Discount* License
Fee
Discounted
Price*
------------------------------------------------------------------------------------------------
[**] One T1 $[**] $[**] $[**]
(Includes development &
staging)
------------------------------------------------------------------------------------------------
[**] One T1 $[**] $[**] $[**]
(Includes development &
staging)
------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------
General Magic Services [**] Price
-------------------------------------------------------------------------------
Standard Support Services [**] of the net Software License Fee
-------------------------------------------------------------------------------
Training $[**] per day plus travel expenses
-------------------------------------------------------------------------------
Professional Services $[**] per day per person
-------------------------------------------------------------------------------
*[**]DISCOUNT
General Magic agrees to apply a discount rate of [**] on the magicTalk Voice
Gateway and Enterprise Platform deployment licenses in exchange for [**]
participation in the General Magic Early Adopter Program (EAP).
** THIRD PARTY SOFTWARE DEPLOYMENT LICENSE
Not required to be purchased through General Magic.
--------
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-22-
SCHEDULE C
SUPPORT SERVICES
For so long as GE is current in the payment of all applicable Maintenance and
Support fees, GMI will provide to GE Support Services for the licensed Software
as follows:
1. Telephone and email Support. GMI will provide telephone and electronic
support services to GE's Designated Support Contacts from 8 a.m. to 5 p.m.
Pacific Time, Monday through Friday, excluding regularly scheduled GMI holidays
("Support Hours"). Telephone and electronic support will consist of the
following:
a. GMI will provide support regarding clarification of functions and features
of the licensed Software, guidance in the installation, operation and
performance of the licensed Software, and clarification of the Documentation of
the licensed Software; and
b. Assistance in diagnosing and resolving suspected Errors in the licensed
Software. An "Error" means a reproducible defect or deficiency in the licensed
Software that causes the licensed Software not to operate substantially in
accordance with the Documentation and that, despite GE's commercially reasonable
efforts, cannot be resolved by reference to the Documentation, to GMI's
technical support information database or to other materials made available by
GMI to GE for such purposes.
c. GMI will provide one dedicated GMI resource to be an Expert on the relevant
[**] Application community.
2. Resolution of Errors. Based on the information provided by a Designated
Support Contact and GMI's independent verification of the Error, GMI will
classify all reported and verified Errors in accordance with the severity level
resolution table below. Unless otherwise specified by the Designated Support
Contact or GMI's support engineer, Errors initially will be classified as
Severity 3. GMI will use commercially reasonable efforts to acknowledge the
report of a Severity 1 Error within [**], of a Severity 2 Error within [**], and
a Severity 3 or Severity 4 Error within [**]. GMI will use commercially
reasonable efforts to provide a correction of the Licensed Software or
Documentation to resolve the Error ("Resolution") in accordance with the
response times assigned to each severity level in the table below. Resolution
may include: (a) a determination that the Error is not reproducible; (b) a
determination that the Error is an enhancement request; (c) guidance on the
installation, function and operation of the licensed Software; (d) the creation
of a workaround for an Error in the licensed Software; or (e) the creation of
modifications to the licensed Software that enable the temporary or permanent
correction of an Error in the Software. GMI will have no liability to GE if,
despite its commercially reasonable efforts, GMI is unable for any reason to
provide a Resolution within the targeted response time or at all. Both after
hours support and complex trouble-shooting (where a defect has been isolated to
software or hardware not supplied by GMI) are available at GMI's standard hourly
rates.
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---------------------------------------------------------------------------------------------
SEVERITY LEVEL DESCRIPTION TARGETED RESOLUTION TIME*
---------------------------------------------------------------------------------------------
Severity 1 An Error that causes complete Within [**] after acknowledging
loss of service on a production receipt of the Error report.
system. Work on the system cannot
reasonably continue, is mission
critical to the business and the
situation is an emergency.
---------------------------------------------------------------------------------------------
Severity 2 An Error, other than a Severity 1 Within [**] after acknowledging
Error, that causes a significant receipt of the Error report.
loss of service on a production
system. No acceptable workaround
is available; however, operation
of the system can continue in a
restricted fashion.
---------------------------------------------------------------------------------------------
Severity 3 An Error, other than a Severity 1 Within [**] after acknowledging
or 2 Error, that reduces receipt of the Error report.
performance of the Software but
does not significantly impair
operation of a production system.
---------------------------------------------------------------------------------------------
Severity 4 An Error that causes no loss of In the next major release of the
service, and is minor or cosmetic Software (in the licensor's discretion).
in nature, including requests
for enhancement of the Software.
---------------------------------------------------------------------------------------------
* The Targeted Resolution Time does not include the time taken by the Company or
the End User to gather information, transaction data and reproducible test cases
necessary to determine the nature of the Error and to isolate any defects to the
Software.
3. Place of Performance. The Support Services provided by GMI hereunder shall
be performed remotely from GMI's facilities in Sunnyvale, California. Upon GE's
request, and subject to availability, GMI may elect to furnish qualified
personnel for on-site assistance to GE to resolve Errors in the licensed
Software. In such event, GE shall pay GMI at the time and materials rates as set
forth on Schedule B for the time of required personnel and reimburse GMI for
reasonable travel and living expenses of such personnel incurred in rendering
the requested assistance.
4. Service Limitations. GMI will have no responsibilities or obligations under
this Agreement with respect to any Errors not attributable to GMI, including but
not limited to those resulting from or related to any of the following causes:
(a) installation (other than by GMI) or use of the licensed Software other than
in accordance with the Documentation and this Agreement; (b) any alteration of,
modification of or addition to, or attempted alteration of, modification of or
addition to the licensed Software undertaken by other than GMI or its authorized
representatives except if reasonably contemplated by the parties; (c) accident,
neglect, failure or fluctuation of electric power, air conditioning or humidity
control, or unusual physical, electrical or electromagnetic stress; (d)
combination, merger or use of the licensed Software with any hardware, software
or telecommunication interfaces not supplied or identified as compatible by GMI,
or not meeting or maintained in accordance with the Documentation except if
reasonably contemplated by the parties; (e) changes to the operating system or
environment in which the licensed Software is deployed which adversely affect
performance of the licensed Software except if reasonably contemplated by the
parties; (f) failure to implement within three (3) months all Updates and Error
corrections issued by GMI except if reasonably contemplated by the parties; or
(g) use of any release of the licensed Software other than the current release
or the one immediately preceding it except if reasonably contemplated by the
parties.
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5. Responsibilities of GE. GMI's provision of Support Services is subject to
the following:
a. GE must select at least one and not more than five IT Users as Designated
Support Contacts, who shall be identified below. In order to avoid interruptions
in Support Services, GE must notify GMI whenever the duties of a Designated
Support Contact are transferred to another User.
b. GE will properly train its Dedicated Support Contact(s) and all other of
its personnel responsible for rendering support services to end users in the
installation, operation, maintenance and support of the licensed Software.
c. In the event that GE is impacted by an Error and requires resolution, GE
will report such Error to GMI.
d. GE will provide GMI reasonable access to the Dedicated Support Contact(s)
and such of GE's personnel and equipment as may be necessary to verify, analyze
and resolve any unresolved Error reported by GE. This access must include the
ability to dial in to the equipment on which the licensed Software is operating
and to obtain the same access to the equipment as those of GE's employees having
the highest privilege or clearance level. GMI will inform GE of the
specifications of the modem equipment and associated software needed, and GE
will be responsible for the costs and use of said equipment at GE's site.
e. GE will supply first level support to end users, and will not refer any end
user directly to GMI for support services.
f. GE will utilize any tools provided by GMI to report, track and resolve
Errors. These tools may include an e-mail account and an online Error tracking
database accessible through the GMI website.
6. Updates. For so long as GE is entitled to Support Services, GMI will
furnish to GE copies of all Updates (as defined in the Agreement) and related
Documentation, free of charge (other than shipping fees), when and as available.
7. Additional GMI Support Services. GE shall have access to GMI technical
support databases regarding installation, function and operation of the licensed
Software, as well as its Error tracking database, as such databases are made
commercially available.
GMI Technical Support Contact:
Phone No. [**]
Email: [**]
GE Designated Support Contacts:
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THE OMITTED PORTIONS.
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Name: __________________________ _______________________
Address: _______________________ Phone No.: _____________________
_______________________ Fax No.: _______________________
Phone No.: _____________________ Email: _________________________
Fax No.: _______________________
Name: __________________________
Email: _________________________
Address: _______________________
Name: __________________________ _______________________
Address: _______________________ Phone No.: _____________________
_______________________ Fax No.: _______________________
Phone No.: _____________________ Email: _________________________
Fax No.: _______________________
Name: __________________________
Email: _________________________
Address: _______________________
Name: __________________________ _______________________
Address: _______________________ Phone No.: _____________________
Fax No.: _______________________
Email: _________________________
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EXHIBIT A
PROFESSIONAL SERVICES
This Exhibit A (Professional Services) provides the terms and conditions for the
provision of certain services by GMI to GE related to GE's required
customizations to enable Use of the Software for the [**] Application as
provided in the Software License and Services Agreement (the "Agreement") to
which this Exhibit is attached.
Effect of Exhibit A (Professional Services). This Exhibit is an additional part
of and is incorporated into the Agreement as its Exhibit A. This Exhibit does
not change or supersede any term of the Agreement and applies only to the
software described in the Statement of Work, as defined below. All capitalized
terms not otherwise defined herein will have the meanings provided in the
Agreement and/or other schedules or exhibits attached thereto.
1) DEFINITIONS
a) "ACCEPTANCE DATE" has the meaning provided in Section 2 (d) below.
b) "GE DELIVERABLES" means the items listed in the SOW to be delivered by
GE to GMI for use in the development of the GMI Deliverables.
c) "GMI DELIVERABLES" shall mean the deliverable items specifically
identified in a SOW for delivery by GMI to GE.
d) "STATEMENT OF WORK" or "SOW" shall mean any mutually agreed upon form
executed by both parties specifying the Professional Services to be
rendered in accordance therewith, GE Deliverables, GMI Deliverables,
applicable fees (including whether such fees shall be on a time &
materials ("T&M"), or on a fixed price ("FP") basis), scope of work,
and appropriate project timelines, as well as any project-specific
requirements, including an appropriate acceptance procedure. Each SOW
shall be governed by the terms of the Agreement, including this
Exhibit A (Professional Services), and shall reference the Effective
Date of the Agreement.
e) "THIRD PARTY TECHNOLOGY" shall mean any commercial off-the-shelf
software and other intellectual property whether or not such property
is fixed in a tangible medium (for example, a standard authoring
program or platform) specifically identified in the SOW or utilized in
the course of the SOW by GMI, and owned by a company or individual
other than GMI or GE.
2) PROFESSIONAL SERVICES
a) GE will deliver any GE Deliverables (including any GE Property as
further described in Section 7 (a)) required under a SOW in accordance
with the schedule set forth in the SOW.
b) GMI will deliver the GMI Deliverables (including any GMI Property as
further described in Section 7 (b)) required under a SOW in accordance
therewith.
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c) The parties agree that any delay by one party in performing the tasks
that are identified as its responsibility in the SOW and that are
prerequisite for the performance of a task by the other party will
extend the schedule for the other party's completion of that task on a
day-for-day basis (or longer if the nature of the delay causes more
than a day-for-day slip in the schedule).
d) GE shall have [**] from the date on which GMI delivers each GMI
Deliverable to GE (the "Correction Period"), to determine that each
such GMI Deliverable substantially conforms to the SOW. Within the
Correction Period, GE will provide GMI with written acceptance of the
GMI Deliverable or a statement of errors to be corrected ("Errors").
Such Errors shall be limited to the failure of the GMI Deliverable to
substantially conform to the SOW. The GMI Deliverable will be deemed
to have been accepted by GE if GMI does not receive written acceptance
of the deliverable or a statement of Errors during the Correction
Period or, if the GMI Deliverable is a software program, if GE deploys
the software in a commercial or production environment during such
period. Upon receipt of any statement of Errors, GMI shall use
commercially reasonable efforts to correct any reproducible Errors and
redeliver the GMI Deliverable to GE. GE shall, within [**] of
redelivery of the deliverable (the "Subsequent Correction Period"),
provide GMI with written acceptance of the revised deliverable or,
should the revised deliverable fail to substantially conform to the
SOW, provide GMI with a written statement of additional Errors. The
revised deliverable will be deemed to have been accepted by GE if GMI
does not receive a written acceptance of the revised deliverable or a
statement of additional Errors within the Subsequent Correction Period
or, if the GMI Deliverable is a software program, if GE deploys the
software in a commercial or production environment during such period.
The acceptance procedures set forth herein shall continue until such
time as GE accepts, or is deemed to have accepted, the GMI
Deliverable. The date of written acceptance or of deemed acceptance of
the deliverable under the foregoing acceptance procedures will be
referred to as the "Acceptance Date."
e) Each party will appoint a Project Manager to supervise the development
and implementation work to be undertaken pursuant to each SOW. The
initial Project Managers will be identified in the SOW. Each party may
replace its Project Manager upon notice to the other party. It will be
the responsibility of the Project Managers to ensure orderly conduct
of the development and implementation work and to attempt in good
faith to resolve any disputes between the parties regarding such work.
3) RESOURCE AND RESOURCE CHANGES
a) GE, prior to the commencement of any SOW, may request from GMI resumes
and/or skill sets or other relevant information (via telephone
interview, teleconferences, etc.).
b) GE, in its reasonable discretion, may request that GMI remove a
particular consultant who is providing Professional Services under
this Agreement if GE reasonably believes that such consultant is not
providing Professional Services as warranted and GMI, after notice,
has been unable to resolve performance issues relative to such
consultant. GMI shall pay the costs of familiarizing the replacement
consultant with the project and take such other appropriate steps to
ensure that GE does not incur additional project costs or missed
project deadlines in accordance with a SOW. GE may request to
interview and approve any replacement consultant prior to such
consultant's commencement of Professional Services for GE. GE's
approval shall not be unreasonably withheld.
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c) A party desiring to make a change (the "REQUESTOR") to the executed
SOW must submit a written change request to the other party (the
"REQUESTEE"). The Requestee will use reasonable efforts to notify the
Requestor of its acceptance or rejection of the change request within
five (5) business days. If the change request is accepted by the
Requestee, GMI will determine within ten (10) business days of
acceptance whether implementing the suggested change would result in a
delay in schedule or increase in costs and will advise GE in writing
within such period of the effect of the suggested change on schedule
and costs. If GE accepts the effects on schedule and costs within ten
(10) business days thereafter, the Statement of Work will be modified
as necessary to reflect the change and its effects ("Change Order").
If either party rejects a change request submitted by the other party,
or if GE does not accept the effects on schedule and costs, this
Agreement will remain in effect with no change to the SOW.
4) WARRANTIES
a) GMI warrants that its Professional Services under this Exhibit A and
the applicable SOW will be performed by qualified individuals in a
professional and workmanlike manner conforming to generally accepted
industry standards and practices, and that the GMI Deliverables will
substantially conform to any specific specifications set forth in the
applicable SOW for those deliverables. This warranty will apply only
if (a) no modification, alteration or addition has been made to the
GMI Deliverables by persons other than GMI or GMI's authorized
representatives that were not reasonably contemplated by the parties.
b) In order to make a valid breach of warranty claim under this Section
4.0 and to receive warranty remedies, GE shall report a deficiency in
the Professional Services and/or GMI Deliverables to GMI in writing
within [**] of performance of T&M Professional Services or, in the
case of fixed price Professional Services, within [**] of acceptance
of the Deliverables. However, where GE could not have known of such
deficiency within [**] of performance by GMI, GE will have a [**]
warranty period from the date of actual knowledge of the deficiency,
provided that in no event shall a valid warranty claim be made more
than [**] from the date of delivery or acceptance, as applicable, of
the GMI Deliverables. For any breach of the above warranties, GE's
exclusive remedy, and GMI's entire liability, shall be the timely
re-performance of the Professional Services. If GMI is unable to
re-perform the Professional Services as warranted, GE shall be
entitled to recover the fees paid to GMI under the applicable SOW for
the deficient Professional Services.
5) INSURANCE
During the performance of Professional Services under this Agreement, GMI
shall provide and maintain minimum insurance coverage as follows:
(a) Worker's Compensation and employees liability, per statutory
requirements;
(b) Comprehensive General Liability insurance including contractual
liability coverage with the following limits in equivalent units
of the local currency:
Bodily Injury and Property Damage: Each Occurrence $[**] USD
Aggregate $[**] USD
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Excess Coverage: Each Occurrence $[**] USD
Aggregate $[**] USD
UPON GE'S REQUEST, GMI SHALL PROVIDE GE WITH A CERTIFICATE OF INSURANCE
COMPLETED BY ITS INSURANCE CARRIER CERTIFYING THAT MINIMUM INSURANCE
COVERAGES AS REQUIRED ABOVE ARE IN EFFECT.
6) TERMINATION
a) GE may terminate the Professional Services being rendered by GMI
pursuant to a SOW if GMI has failed to perform a material obligation
set forth herein or in the SOW in question, provided that GE has given
GMI written notice upon the occurrence of any such failure, which
notice shall specify each such failure, and provided further that GMI
has not cured any such failure within thirty (30) days of written
notice thereof.
b) GMI may terminate a SOW if GE has failed to perform a material
obligation set forth herein or in the SOW in question and if GE has
not cured the breach within thirty (30) days' following written notice
from GMI specifying the breach. For purposes hereof, GE's obligation
to make payment to GMI in accordance with the SOW shall be deemed a
material obligation.
c) Consent to extend the cure period shall not be unreasonably withheld
by either party, so long as the breaching party has commenced cure
during the thirty-day notice period and pursues cure of the breach in
good faith.
d) Except as otherwise provided herein, termination of Professional
Services under any SOW shall not limit either party from pursuing any
other remedies available to it, including injunctive relief, nor shall
termination relieve GE of its obligation to pay GMI all charges that
have accrued prior to such termination. Any provisions of this Exhibit
A (Professional Services) which by their terms contemplate survival
will survive any termination of the Agreement or any SOW issued
hereunder (other than the provisions of Section 4 (Warranties) which
shall not survive termination of Professional Services by GE under any
given SOW or of the Agreement). After termination and upon GE's
request, GMI shall return to GE all GE Deliverables, GE Confidential
Information, and all other GE data, records, or other materials
provided to GMI in connection with the work contemplated by the
terminated SOW.
7) RIGHTS TO DELIVERABLES
a) GE PROPERTY. GE may provide to GMI for incorporation into or use in
developing of the GMI Deliverables, GE Property owned or licensed by GE.
"GE Property" shall mean all GE intellectual property prepared by GE, or
for GE by a third party and which is identified in the applicable SOW and
provided to GMI by GE for use hereunder. GE retains all ownership rights in
and to GE Property at all times.
b) GMI PROPERTY. GMI may incorporate into GMI Deliverables, and/or provide to
GE for use with GMI Deliverables, GMI Property owned or licensed by GMI.
"GMI Property" shall mean all preexisting GMI intellectual property (except
the GMI Software) which is provided to GE by GMI for use in or with GMI
Deliverables hereunder. GMI hereby grants to GE a nonexclusive, worldwide,
royalty-free right and license to use, execute, reproduce, display, perform
modify and create
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derivative works of the GMI Property, solely and exclusively for GE
internal use with and as part of GMI Deliverables. GMI retains all
ownership rights in and to GMI Property at all times.
c) NEWLY-DEVELOPED MATERIALS. Each party's rights in and to material prepared
by GMI for GE during the term of and in the performance of Professional
Services under SOW(s) issued hereunder shall be as follows:
TYPE I MATERIALS - Type I Materials developed, authored or prepared for GE,
including but not limited to all documents, documentation, designs,
computer programs, computer systems, data compilations, and other tangible
and intangible materials by GMI, shall be considered works made for hire,
are the sole and exclusive property of GE, and shall include all newly
developed materials including, but not limited to, the GMI Deliverables
(but excluding GMI Software, GMI Property, Type II Materials, Inventions of
GMI, and Third Party Software as these terms are defined herein). In the
event that the GMI Deliverables, Type 1 Materials and any other newly
developed materials do not fall within the specifically enumerated works
that constitute works made for hire under the United States Copyright laws,
GMI hereby agrees to assign and, upon its authorship or creation, expressly
assigns all copyrights, proprietary rights, trade secrets and other right,
title and interest in and to such GMI Deliverables, Type 1 Materials and
other newly-developed materials to GE. GMI agrees that such assignment
shall be automatic under this Agreement.
GMI further agrees to render all required assistance to protect GE's
aforementioned rights. Classification of a Type I Material shall be
mutually determined prior to the commencement of any Professional Services
by GMI, and shall be specifically set forth in a SOW. GMI may decline to
enter into any SOW for a GMI Deliverable which GE desires to claim as a
Type I Material. Upon creation of any such Type I Materials, GMI
automatically assigns and agrees to assign without further consideration,
the copyright and all other rights, except rights to Inventions and/or
patents as more specifically addressed in Section 7.d. below, in and to all
such Type I Materials. It is anticipated that Type I Materials shall be
those specific items that express or embody GE Property or GE's proprietary
processes, techniques and/or information.
Upon written agreement by GE, at GE's sole and exclusive discretion, and
for such consideration as GE and GMI may agree to in writing, GMI may
request, on a per SOW basis, to acquire the nonexclusive right to use and
distribute certain Type I Materials.
Notwithstanding the foregoing, GE acknowledges that its ownership of Type I
Materials will not preclude GMI from utilizing in other projects any
general ideas, concepts, techniques, or generic tools or software
components learned by GMI in connection with the performance of
Professional Services for GE, provided that the foregoing are not specific
and unique to GE.
TYPE II MATERIALS - Notwithstanding, GMI retains title, including ownership
of copyright, to materials: i) identified in a SOW as Type II Materials,
and/or ii) any GMI high-level macro language or CASE generated subroutines,
scripts, objects (such as EJB components) and other tools, utilities or
components which are not specific and unique to GE (excluding any GE
Confidential Information). GE's license to Type II Materials is as set
forth in under the terms and conditions of the Agreement.
8) FEES FOR PROFESSIONAL SERVICES
Professional Services will be provided either on a T&M basis at rates and
applicable discounts in accordance with Schedule B during the term thereof,
or on a FP basis, at the fixed price stated in the applicable SOW, where
the bid for such fixed price shall incorporate rates and applicable
discounts in accordance with Schedule B during the term thereof.
-31-
If a dollar limit is stated in the applicable SOW for T&M Professional
Services, the limit shall be deemed an estimate for GE's budgeting and
Licensor's resource scheduling purposes; after the limit is expended,
Licensor will continue to provide the Professional Services on a T&M basis,
if a SOW for continuation of the Professional Services is signed by the
parties. Payment will be subject to Sections 4.4 (No Offset) and 4.5
(Taxes) of the Agreement.
9) INVOICING AND PAYMENT
GMI shall invoice GE monthly, unless otherwise expressly specified in the
applicable SOW. Charges shall be payable within [**] of receipt of a
correct invoice. GE shall issue a purchase order, or alternative document
acceptable to GMI, on or before commencement of Professional Services under
the applicable SOW. All amounts will be expressed, and shall be paid for,
in U.S. dollars.
10) INCIDENTAL EXPENSES
Upon prior written agreement of the parties, appropriate travel,
administrative, and out-of-pocket expenses incurred by GMI in connection
with the Professional Services performed shall be invoiced by, and
reimbursed by GE to, GMI. GMI acknowledges that, when approved by GE, any
such incidental expenses shall be incurred by GMI in accordance with GE's
general policies for such expenses.
11) LICENSE FEES FOR THIRD PARTY TECHNOLOGY
In each SOW, GE shall set forth all GE standard software and hardware
platforms that may be relevant to the preparation and/or deployment of the
GMI Deliverables, including all Third Party Technology licenses relating
thereto. GMI shall work with GE to ensure that, whenever possible, such
standard software and platforms will be utilized. Notwithstanding the
foregoing, GMI may also utilize other Third Party Technology in GMI
Deliverables provided that the following requirements are met:
(a) THIRD PARTY TECHNOLOGY FOR WHICH THE ANTICIPATED INITIAL LICENSE
FEES WILL BE TEN THOUSAND DOLLARS ($10,000) OR MORE IN THE
AGGREGATE FOR A PARTICULAR SOW:
- GE, upon notification by GMI, shall verify to the extent
commercially practicable, that GE has an existing license to
such Third Party Technology, or that GE will acquire such
license, in each case that permits use by GMI as
contemplated by the SOW.
- If GE does not already have an existing license to such
Third Party Technology, or does not intend to acquire such
license itself, then GMI shall acquire such license and the
terms of the license and any maintenance, support, and/or
royalty provisions thereto shall be first approved in
writing by GE prior to any execution of the license by GMI
on GE's behalf. GMI shall have no responsibility or
liability for such fees; or,
(b) THIRD PARTY TECHNOLOGY FOR WHICH THE LICENSE, MAINTENANCE,
SUPPORT, AND/OR ROYALTY FEES ARE LESS THAN TEN THOUSAND DOLLARS
($10,000) IN THE AGGREGATE FOR A PARTICULAR SOW:
- GE shall be responsible for Third Party Technology license,
maintenance, support, and/or royalty fees which are less
than ten thousand dollars ($10,000) in the aggregate only
when GMI has acquired such Third Party Technology
specifically for GE, or where GMI
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will incur incremental cost (e.g. license fees, royalties,
etc.) as a result of utilizing such Third Party Technology
under a SOW.
12) COMPLIANCE WITH GE'S POLICIES
a) SAFETY POLICIES. GMI agrees to use reasonable efforts to cause any
consultant who provides Professional Services under this Agreement to
comply when on GE's premises with GE's reasonable standard safety
policies that GE communicates to such consultant, to the extent that
such policies are applicable to the site where such consultant is
providing Professional Services.
e) DRUG ABUSE POLICIES. GMI will advise any consultant who is physically
on a GE Site and who provides Professional Services under this
Agreement of GE's policy, exclusively when providing Professional
Services where drug screening is mandatory pursuant to governmental
regulations, to require an initial drug screen prior to the
commencement of the assignment and, further, to require a drug screen
at any time during the assignment either (i) if GE believes in good
faith that the consultant is under the influence of an illegal
substance, or (ii) as a consequence of an accident caused by or
involving the consultant on GE's premises during the performance of
this Agreement and likely to have been related to the consultant's use
of an illegal substance. Any drug screens shall be performed by GE (or
a company hired by GE) at GE's expense.
b) THE SPIRIT & THE LETTER. GMI agrees to use reasonable efforts to cause
any consultant who provides Professional Services under this Agreement
to comply with GE's Policy Handbook, Integrity: The Spirit & The
Letter of Our Commitment and agrees to comply with its Policies 20.2,
Equal Employment Opportunity; 20.4, Ethical Business Practices; 20.5,
Complying with the Antitrust Laws; and 30.5, Avoiding Conflicts of
Interest.
12) NONEXCLUSIVITY
This Agreement is nonexclusive. GE may contract with other entities to
perform services, and nothing herein precludes GMI from developing,
marketing, and distributing any voice-solution technology.
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