<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
AMENDMENT NO. 1 TO FORM 10-K
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934 [No Fee Required]
For the fiscal year ended December 31, 1995
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 [No Fee Required]
For the transition period from ______ to __________.
Commission file number 0-21761
GEOTEL COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 04-3194255
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
900 Chelmsford Street, Tower II, 12th Floor
Lowell, Massachusetts 01851
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (508) 275-5100
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $.01 Par Value
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO ___
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K [ ].
As of March 17, 1997 there were 13,089,578 shares outstanding of the
registrant's common stock, $0.01 par value. As of that date, the aggregate
market value of voting stock held by non-affiliates of the registrant was
approximately $51,713,000.
<PAGE> 2
DOCUMENTS INCORPORATED BY REFERENCE
PART III -- Portions of the definitive Proxy Statement for the Annual Meeting of
Shareholders to be held on May 29, 1997 are incorporated by reference into Part
III (Items 10, 11, 12 and 13).
This Amendment No. 1 on Form 10-K/A to the Annual Report on Form 10-K
for the fiscal year ended December 31, 1996 (as amended, the "Report"), is being
filed to amend and restate Exhibit 10.22 to the Report. Such Exhibit 10.22 is
hereby amended and restated in its entirety. The other exhibits to the Report
are not being amended and have been previously filed with the Securities and
Exchange Commission with the Report.
<PAGE> 3
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized, this 8th day of August
1997.
GEOTEL COMMUNICATIONS CORPORATION
By: /s/ Timothy J. Allen
------------------------------
Timothy J. Allen
Vice President of Finance,
Chief Financial Officer,
Treasurer and Assistant Secretary
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed by the following persons in the capacities and on
the dates indicated.
<TABLE>
<CAPTION>
Signature Title(s) Date
- --------- -------- ----
<S> <C> <C>
/s/ * Chief Executive Officer, August 8, 1997
- ----------------------------- President and Director
John C. Thibault (principal executive officer)
/s/ Timothy J. Allen Vice President of Finance, Chief August 8, 1997
- ------------------------------------ Financial Officer, Treasurer
Timothy J. Allen and Assistant Secretary
(principal financial and
accounting officer)
/s/ * Director August 8, 1997
- -----------------------------
G. Wayne Andrews
/s/ * Director August 8, 1997
- -----------------------------
Alexander V. D'Arbeloff
/s/ * Director August 8, 1997
- -----------------------------
Gary Bowen
/s/ * Director August 8, 1997
- -----------------------------
Gardner C. Hendrie
/s/ * Director August 8, 1997
- -----------------------------
W. Michael Humphreys
*By: /s/ Timothy J. Allen
------------------------------------
Timothy J. Allen, Attorney in Fact.
</TABLE>
<PAGE> 1
EXHIBIT 10.22
ISSUE 2.
DIGITAL & GEOTEL
SOFTWARE AGREEMENT
INCORPORATING LICENSING RIGHTS
<PAGE> 2
CONTENTS
PAGE
NOS
1. Definitions 3
2. Term of Agreement 5
3. The Work 5
4. Variations 6
5. The Price 6
6. Delivery 7
7. Receipt of the Software 7
8. Acceptance Tests 7
9. Software Licence Rights 8
10. Indemnity - Virus Protection 9
11. Documentation 9
12. Commercial Service 9
13. Interface with other Equipment 10
14. Access, Assistance and Progress Reports 10
15. Mistakes in Information 10
16. Digital and/or BT Supplied Items and Property 11
17. Warranty 11
18. Title and Risk 13
19. Information 13
20. Confidentiality 13
21. Intellectual Property 14
22. Intellectual Property Rights Indemnification 14
23. Escrow 15
24. Indemnity 17
25. Limitation of Liability 17
26. Insurance 17
27. Termination 18
28. Force Majeure 19
29. Suspension of Work 19
30. Working on Site 19
31. Delivery and Removal of the Software and GeoTel's Equipment 21
32. Security 21
33. Quality 22
34. Compliance with Laws and Regulations 22
35. Assignment and Subcontracting 22
36. Contract Personnel 22
37. Non-Nuclear use and Export Control 22
38. Notices 23
39. General 23
40. Publicity 24
APPENDICES
Appendix 1. The Work and the Customer Specification Document 25
Appendix 2. Digital Price List and Payment Terms 26
Appendix 3. The Project Plan 29
Appendix 4. Support and Maintenance 30
Appendix 5 Documentation 31
Appendix 6 Potential Exclusivity Agreement in respect of GeoTel's
Standard Products 32
2
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SOFTWARE AGREEMENT
INCORPORATING LICENSING RIGHTS
AGREEMENT NUMBER: VL/14/11/96
THIS AGREEMENT, effective as at the Agreement Date is made between:
GeoTel Communications Corporation of 25 Porter Road, Littleton, MA 01460
("GeoTel"); and Digital Equipment Co. Limited of Plumtree Court, London. EC4A
4HT ("Digital").
BACKGROUND
i) GeoTel is a company carrying out a range of activities relating to
information technology including, but not limited to the development
and licensing of computer software programs; and
ii) Digital, who also operates within the field of information technology
and develops, uses, licenses and markets its own computer software
programs (together with equipment), desires that GeoTel develops
specific computer software programs for Digital pursuant to the
requirements of the BT Contract utilising GeoTel's Standard Products;
and
iii) GeoTel has agreed to develop and deliver to Digital the Software and
grant appropriate licensing rights pursuant to the BT Contract in
accordance with the terms and conditions of this Agreement.
For the avoidance of any doubt, this Agreement shall become effective
upon Digital issuing to GeoTel its Purchase Order(s) in accordance with
the provisions of this Agreement.
NOW IT IS AGREED AS FOLLOWS:
1. DEFINITIONS
1.1 "Software" means collectively or individually:
i) GeoTel's Standard Products; and
ii) the object computer programs and corresponding
documentation, which is clarified in Appendix 5 ("the
Documentation"), which are to be developed via
modifications to GeoTel's Standard Products to
support BT NUP and interconnection with the BT CTN
specifically for Digital/BT pursuant to the BT
Contract and provided by GeoTel under the terms of
this Agreement ("the BT Specific Development")
all of which is as defined in and will comply with the details
set out in the Customer Specification Document.
1.2 "Customer Specification Document" means the proprietary
specification in accordance with which GeoTel shall develop
the Software and is as referenced in and attached at Appendix
1.
1.3 "the Work" means all of GeoTel's activities as described in
Section 1 of Appendix 1 which result in the creation and
completion of the Software.
1.4 "Intellectual Property Rights" ("IPRs") means the copyright,
patent, design right, trade secret, tradename or mark or such
other rights.
1.5 "the Storage Media" means the agreed media upon which GeoTel
shall deliver the Software and Documentation, as detailed in
the Customer Specification Document.
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1.6 "the Object Code" means the machine readable code of the
Software which can be executed on Digital computer systems for
which the Software has been designed.
1.7 "Evaluation Software Licence" means that licence agreement
which has been entered into between the parties dated 21
August 1996 and which continues for a period of 180 days from
said date ("the Evaluation Period") at the expiry of which the
Evaluation Software Licence becomes superseded by the terms
and conditions of this Agreement except, for the avoidance of
any doubt, payment in respect of the Evaluation Software
Licence which shall be made under the terms and conditions of
same and not under this Agreement.
1.8 "Development Agreement" means that agreement, the final draft
of which was dated 21 August 1996 against which GeoTel carried
out the initial proof of concept development work ("the
Initial Development Work") and which is superseded as at the
Agreement Date by the terms and conditions of this Agreement
except, for the avoidance of any doubt, payment in respect of
the Initial Development Work which shall be made under the
terms and conditions of same and not under this Agreement.
1.9 "the Equipment" means that equipment and associated
peripherals (in conjunction with which the Software is
required to operate) to be delivered by Digital to BT under
the BT Contract.
1.10 "Ready for Service" means the ready for service date upon
which the Software is ready for use by BT and is that date
specified in the Project Plan.
1.11 "Documentation" means the documentation to be provided
hereunder pursuant to the Customer Specification Document to
include, but not be limited to directions for and
verifications of installation and use of the Software, reports
and any other explanatory materials.
1.12 "Revisions" mean all modifications, upgrades, enhancements and
new versions of the Software which may be provided under this
Agreement.
1.13 "Variations" shall mean any variation to the Customer
Specification Document or any other aspect of this Agreement
communicated and agreed in writing between the parties
pursuant to the provisions set out in the change control
process defined Condition 4.1.
1.14 "Acceptance" shall mean a written statement issued by Digital
to GeoTel, (in accordance with acceptance criteria and an
appropriate acceptance process to be agreed between the
parties and BT and documented within the period set for such
activities in the Project Plan) following acceptance testing
by Digital confirming that the Software complies with the
Customer Specification Document. The terms "Acceptance Tests"
and "Accepted" shall have the corresponding meanings.
1.15 "the Project Plan" shall mean the agreed timetable, (the key
dates of which are detailed in Appendix 3, to which GeoTel
shall perform its obligations under this Agreement subject
always to Digital's performance of its non GeoTel dependent
obligations and BT's performance of its obligations as
contained in the BT Contract) and is that document as at the
Agreement Date entitled "Project Telemarketing" dated: 4.10.96
version: 3.0 which may subsequently be revised by the mutual
written consent of the parties.
1.16 "the Review Process" shall mean any appropriate review process
agreed in writing by the parties by which the Work may be
measured by Digital on an on-going basis.
1.17 "the Price" shall mean the USS payments to be received by
GeoTel from Digital and is as detailed in Appendix 2.
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1.18 "GeoTel's Standard Products" shall mean the C7 cards specified
in the Development Agreement and those standard software
products proprietary to GeoTel as specified in the Evaluation
Software Licence and as may be enhanced by GeoTel pursuant to
GeoTel's enhancement policy prior to Acceptance. For the
avoidance of any doubt, details of such enchancements shall be
advised to Digital and shall not prevent the Software
performing in accordance with the Customer Specification
Document
1.19 "BT" means British Telecommunications plc of 81 Newgate
Street, London EC2 with whom Digital shall contract pursuant
to the BT Contract defined in Condition 3.7 below.
1.20 "Contract Personnel" means those personnel whom GeoTel use for
the performance of its duties under this Agreement, whether
such personnel are employed by GeoTel, act as consultants to
GeoTel or otherwise.
1.21 "the Agreement Date" means that date upon which this Agreement
becomes effective by its being signed by both parties and
Digital's issuing to GeoTel of its Purchase Order(s).
1.22 "Purchase Order(s)" means those Digital purchase order(s) to
be issued by Digital under this Agreement.
1.23 "Commercial Service" means that state of commercial service
into which Digital requires the Software to be put due to any
failure of the Software or any part thereof to pass the
Acceptance Tests as set out in Conditions 8.5, 8.6 and 12
below and "Certificate of Commercial Service" shall have the
corresponding meaning.
1.24 "Information" means all information whether written or oral or
any other form, including, but not limited to documentation,
specifications, reports, data, notes, drawings, models,
patterns, samples, software, computer outputs, designs,
circuit diagrams, inventions, (whether patentable or not) and
know how.
2. TERM OF THIS AGREEMENT
This Agreement shall commence upon the Agreement Date and shall
continue, unless otherwise agreed in writing between the parties to
ensure the simultaneous termination of the BT Contract and this
Agreement, for a period of 24 months (with the option to extend
annually at Digital's discretion for a further 36 months) unless
terminated by either party in accordance with Condition 27.
3. THE WORK
3.1 GeoTel agrees to develop, supply, license the Software to
Digital and carry out other related activities in accordance
with the terms and conditions of this Agreement.
3.2 GeoTel agrees to complete the Work in accordance with the key
dates which are detailed in Appendix, to which GeoTel shall
perform its obligations under this Agreement subject always to
Digital's performance of its non-GeoTel dependent obligations
and BT's performance of its obligations as contained in the BT
Contract.
3.3 The Work shall be monitored by Digital in accordance with the
Review Process. GeoTel agrees to follow the Review Process and
co-operate with Digital in its monitoring of the Work.
3.4 The Software and Storage Media will be delivered to Digital at
the Digital site as referenced in the Project Plan in object
code together with its appropriate Documentation.
5
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3.5 It is acknowledged and agreed between the parties that support
and maintenance in respect of the Work and the resultant
Software is, at the date of signing this Agreement, yet to be
agreed between the parties.
Within 60 days of the Agreement Date, the parties shall have
agreed the terms and conditions in respect of such support and
the same shall be attached at Appendix 4.
3.6 GeoTel shall provide monthly reports to Digital detailing
progress made against milestones indicated in the Project Plan
one week prior to progress meetings. GeoTel shall provide
suitable representation at these meetings. Such meetings shall
be held via conference call or other appropriate and
economical means
3.7 In accordance with and subject to Condition 9 below, GeoTel
hereby grants to Digital an irrevocable, royalty free license
to use the Software and Documentation solely for the purposes
of performing Digital's obligations (including but not limited
to those relating to the granting of sub-licences to BT and
its obligations in respect of support and warranty) under its
contracts(s) with BT pursuant to BT's project known as
"Signalling Requirement for Telemarketing Near Real Time
Control and Reports Platform ("the BT Contract") as set out in
the Project Plan.
3.8 The licence as referenced in Condition 3.7 above shall
commence upon the date appropriate for such commencement as
set out in the Project Plan and shall continue for a period
appropriate to the performance of Digital's obligations under
the BT Contract. At the end of said period the Software shall
be returned to GeoTel.
3.9 Pursuant to the licensing arrangements set out in Condition
3.7 above, Digital agrees that the Software shall not be
decompiled, reverse engineered, disassembled, analysed or
otherwise examined for the purpose of reverse engineering,
except and solely in so far as such activities are permitted
pursuant to Condition 50B of the Copyright Designs and Patents
Act 1998.
4. VARIATIONS
4.1 Either party shall have the right from time to time during the
performance of this Agreement by written request and by mutual
agreement, in accordance with and subject to the change
control process included in the quality plan referred in
Condition 33 below ("the Change Control Process") to alter,
amend, add to or otherwise vary any aspect of this Agreement.
4.2 The Price shall be increased or decreased subject to and in
accordance with the Change Control Process and dependent
contractual timescales shall be adjusted by a fair and
reasonable amount.
4.3 No variation shall be carried out under unless it is
authorised and processed in accordance with the Change Control
Process and notified in writing by Digital as an amendment to
this Agreement.
4.4 Any variation carried out other than in accordance with this
Condition 4 shall be the sole responsibility of GeoTel and no
change in the Price and/or no extension of timescales shall be
allowed.
5. THE PRICE
Subject to GeoTel's performance of all of its duties and obligations
under this Agreement, Digital shall pay GeoTel subject to and in
accordance with Appendix 2.
6
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6. DELIVERY
6.1 GeoTel shall develop and provide the Software in accordance
with the key dates as defined in Appendix .3. If no time is so
specified, GeoTel shall develop and provide the Software in
accordance with such timescales as the parties may agree in
writing.
6.2 GeoTel shall not, without the prior permission of Digital,
deliver any part order (by quantity or by item). In the event
that the Software is not available for delivery at the due
time, GeoTel shall (without prejudice to Digital's rights
under this Agreement) immediately inform Digital by telephone
or facsimile and confirm such communication by post
7. RECEIPT OF THE SOFTWARE
7.1 Initial receipt of the Software at the delivery point may be
signed for as unexamined and this shall not affect Digital's
rights subsequently to reject the Software. Where subsequent
checking shows a deficiency in the quantity of Software items
delivered, GeoTel shall make good the deficiency within 14
days of notice from Digital of the deficiency.
8. ACCEPTANCE TESTS
8.1 Digital and GeoTel shall agree a series of Acceptance Tests
which shall take place at appropriate stages within the
Project as indicated in the Project Plan.
8.2 When the Acceptance Tests have been passed in accordance with
this Agreement, Digital shall issue a dated certificate of
Acceptance to GeoTel.
8.3 Where the Software consists of sections or portions, the
Acceptance procedures outlined above shall be repeated for
each section or portion of the Software.
8.4 If the Software or any relevant part of it fails to pass the
Acceptance Tests, then GeoTel will either:
i) implement free of charge and within a reasonable time
such alterations or modifications to the Software as
are necessary to make possible the repetition of the
Acceptance Tests; or
ii) upon the request of Digital and, with GeoTel's
agreement, bring the Software into Commercial Service
in accordance with Condition 12 below.
8.5. If the Software fails to pass any repetition of the Acceptance
Tests then, Digital at its option, may:
i) request GeoTel to implement free of charge, and
within a reasonable time, such alterations or
modifications to the Software as are necessary to
make possible the repetition of the Acceptance Tests;
or
ii) bring the Work into Commercial Service; or
iii) terminate future performance of this Agreement.
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9. SOFTWARE LICENCE RIGHTS
9.1 GeoTel hereby grants to Digital:
i) where GeoTel shall have failed or been unable to meet Digital
and/or BT's reasonable requirements for new facilities and
features or shall have ceased to support the Software as provided
for in this Agreement; and,
ii) an exclusive, irrevocable, royalty free licence to use and copy
the BT Specific Development as defined in 1.1 and corresponding
Documentation and grant sub licences to BT in respect of the
same; and
iii) a non exclusive, irrevocable, royalty free licence to use and
copy GeoTel's Standard Products and corresponding Documentation
and grant sub-licences to BT in respect of the same; and
for the purposes of Digital's performance of the BT Contract
anywhere in the United Kingdom. Such rights shall include the
right, under the Condition entitled "Intellectual Property
Rights, in order to:
a) Use and copy for the purposes of operating or maintaining
the BT Network anywhere in the United Kingdom, including
training purposes, and the making of copies for back-up and
maintenance purposes; and
b) Modify or have modified the Software under the Condition
relating to Confidentiality, in the following circumstances:
iv) with the written consent of GeoTel, to allow integration with
Digital and/or BT support systems; and
v) to meet Digital and/or BT urgent operational requirements where
GeoTel is unable or fails to meet those operational requirements;
and (after proper consultation with GeoTel and with GeoTel's
written permission, where GeoTel shall have failed or been unable
to meet Digital and/or BT's reasonable requirements for new
features and facilities or shall have ceased to support the
Software as provided for in this Agreement:
a) enhance or have enhanced the Software; and
b) merge or have merged Digital and/or BT data with any
Software; and,
c) supply the Software or copies of the Software to third
parties under Conditions of Confidentiality for the purposes
of modification or enhancement or merger of the Software as
provided for above; and,
e) supply the Software or copies of the Software to third
parties under Conditions of Confidentiality for the purpose
of the design and supply to Digital and/or BT of systems
interoperable with the Equipment or Software which are
necessary for enabling such design and supply.
9.2 The sub licensing rights mentioned above shall always be subject to
the entering into of appropriate licenses containing no less stringent
licensing terms and conditions to those as set out in this Agreement.
9.3 Without prejudice to any other obligations of GeoTel under this
Agreement, GeoTel undertakes to obtain for Digital and/or BT an
irrevocable, royalty free licence upon the same terms from any third
party owning Intellectual Property Rights in the Software.
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9.4 Without prejudice to Digital's rights granted hereunder and always
subject to and in accordance with the terms and conditions of this
Agreement, for the purposes of Section 117 of the Copyright Act of
1976, as amended, and for all other purposes GeoTel shall be
considered the owner of the Software and any copies thereof and of its
Intellectual Property Rights. Physical copies of the Software, in
firmware, diskette, tape, paper, or other form shall be deemed to be
in loan to Digital and/or BT during the term of the licence and rights
as set out in this Agreement.
9.5 The provisions of this Condition 9 shall survive the expiry or
termination of this Agreement except in the event of termination due
to Digital's breach of this Agreement.
10. INDEMNITY - VIRUS PROTECTION
10.1 Each party shall take reasonable care to avoid the introduction of any
computer virus or malicious code in any Software that either party
supplies to the other or uses in the performance of the Work. If any
computer virus or malicious code is introduced into Digital or BT's
systems and/or network by GeoTel as a result of GeoTel's failure to
comply with this condition (including, but not limited to not using
any state of the art virus checker), then GeoTel shall, at its own
expense, use all reasonable endeavours to remove or, at its option,
counteract the virus or malicious code and restore such systems to the
state they were in prior to the introduction of the virus or malicious
code. GeoTel shall ensure, where possible, to keep adequate back-up
copies of all data, software and other materials and will take all
reasonable precautions to counteract the spread of any virus or
malicious code which has been introduced.
11. DOCUMENTATION
11.1 GeoTel shall, in consideration of the amount specified in Appendix 2
in respect of Documentation, prepare and supply to Digital all
installation guides and maintenance guides associated with the
Software and all other documentation (including without limitation
software documentation) necessary to use and maintain the Software and
to meet the requirements of this Agreement. The Documentation is
listed in the Customer Specification Document. GeoTel hereby grants to
Digital, BT and BT's customers the right to copy the Documentation and
make free use of the same for any reasonable purpose connected with
the sale, use or maintenance of the Software. Digital and/or BT
proprietary software documentation shall not be copied by GeoTel
without prior written authorisation from Digital.
12. COMMERCIAL SERVICE
12.1 Where Digital wishes to put the Software (or any portion thereof) into
Commercial Service in accordance with Conditions 8.5 and 8.6 above in
the event that the Software or any relevant part of it fails to pass
the Acceptance Tests, Digital will issue a Certificate of Commercial
Service. Such Certificate will detail all outstanding items and
deficiencies to be made good by GeoTel, as are known to Digital at the
date of issue of such Certificate.
12.2 Digital and GeoTel shall agree (by reference to prices stated in this
Agreement) an appropriate payment to be made to GeoTel. Such payment
shall relate to the proportion of the Software to be put into
Commercial Service and shall not in any event exceed *% of the
payment due for the Software (or portion thereof) to be put into
Commercial Service.
12.3 The warranty arrangements detailed in this Agreement shall apply to
any Software put into Commercial Service from the date that such
Commercial Service begins. However, such
* Confidential Information omitted and filed separately with the Commission.
9
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arrangements shall be extended (free of additional charge to Digital)
for a period equal to that between the formal entry into Commercial
Service date and the Acceptance date by up to a maximum of 3 months.
12.4 GeoTel shall carry the risk in respect of any Software put into
Commercial Service (and for which title is still vested in GeoTel)
until such Software is Accepted by Digital. However, where Digital
puts the Software into Commercial Service prior to Acceptance against
the advice of GeoTel, then use of such Work shall be at Digital's sole
risk.
12.5 Digital and GeoTel shall agree mutually convenient times during which
GeoTel may be allowed access to the Software in Commercial Service for
the purposes of facilitating Acceptance by Digital of the Software in
Commercial Service. Such activities will be performed at no additional
expense to Digital.
12.6 When the deficiencies detailed in the Certificate of Commercial
Service have been remedied and the Software (or portion thereof) has
passed the agreed Acceptance Test(s), Digital will issue a certificate
of Acceptance.
12.7 Digital and GeoTel anticipate that for the 12 months subsequent to
acceptance of the product or initial placement into commercial
service, the licenses granted under this agreement will be deployed in
customer applications at rate of two (2) licenses per month. Digital
may accelerate this deployment rate at any time.
13. INTERFACE WITH OTHER EQUIPMENT
13.1 GeoTel shall ensure the successful interworking of the Software in or
with the BT Network existing at the date of BT's use of the Software
pursuant to the BT Contract and that the Software does not impair or
degrade the performance or operation of the BT Network or any other
telecommunications network.
13.2 GeoTel shall supply within two months of any request, at its own
reasonable cost such information as Digital or GeoTel may reasonably
require to enable Digital to interface and fully interwork Software
with the BT Network or any other telecommunications network.
14. ACCESS, ASSISTANCE AND PROGRESS REPORTS
14.1 GeoTel shall:
a) ensure that Digital (or any person authorised by Digital) shall
have access.. upon reasonable notice, at all reasonable times to
the premises of GeoTel, and those of any sub contractor, as
Digital may require to assess the progress of this Agreement; and
b) render such reports to Digital on the performance of this
Agreement, and attend such meetings, as may be reasonably
required by Digital; and nominate a suitable representative to
attend all such meetings.
c) The representative shall be fully conversant at all times with
the performance of this Agreement.
15. MISTAKES IN INFORMATION
15.1 GeoTel shall inform Digital in writing of any mistakes in design
information within a reasonable time of receipt.
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15.2 Any mistakes in Information owned or controlled by GeoTel and in any
Information relating to GeoTel's Intellectual Property Rights shall be
GeoTel's responsibility to remedy at its cost whether such Information
has been approved by Digital or not. Where any such remedial work is
undertaken by Digital after proper consultation with GeoTel, GeoTel
shall bear all costs.
16. DIGITAL AND/OR BT SUPPLIED ITEMS AND PROPERTY
16.1 Any and all items supplied by either Digital and/or BT ("the Digital
and/or BT Supplied Items") shall remain the property of Digital and/or
BT, as appropriate. GeoTel shall return them to Digital and/or BT upon
completion or termination of this Agreement or earlier upon reasonable
request. GeoTel shall keep the Digital and/or BT Supplied Items and
(before their delivery to Digital and/or BT) any items or things that
are or have become Digital's and/or BT Property ("Digital and/or BT
Property"), in safe custody and good condition, set aside and clearly
marked as Digital and/or BT Property.
16.2 Upon receipt of the Digital and/or BT Supplied Items, GeoTel shall
satisfy itself that they are not defective or deficient for the
purpose for which they are being provided, and within 14 days of
receipt shall notify Digital of any defects or deficiencies.
16.3 GeoTel shall not, without the prior written consent of Digital, use
the Digital and/or BT Supplied Items for any purpose other than is
necessary for the performance of this Agreement or allow any other
party to use, take possession of, or have any rights or lien over the
Digital and/or BT Supplied Items or Digital and/or BT Property.
16.4 Without limiting the generality of GeoTel's obligations, GeoTel shall
not have, and shall ensure that Contract Personnel shall not have, a
lien on the Digital and/or BT Supplied Items or Digital and/or BT
Property for any sum due. GeoTel shall take all reasonable steps to
ensure the title of Digital and/or BT and the exclusion of such lien
are brought to the notice of all Contract Personnel dealing with any
Digital and/or BT Supplied Items or Digital and/or BT Property.
16.5 In the event of any threatened seizure of any Digital and/or BT
Supplied Items or Digital and/or BT Property or in the event of GeoTel
(or any Contract Personnel in possession of such Digital and/or BT
Supplied Items or Property) going into receivership, administration or
liquidation (or the equivalent of any of these) GeoTel shall:
a) notify Digital immediately; and,
b) draw to the attention of the relevant official that Digital
and/or BT Supplied Items and Digital and/or BT Property are the
Property of Digital and/or BT and do not form part of GeoTel's
assets; and,
c) allow Digital and/or BT to enter GeoTel's premises or those of
any Contract Personnel where Digital and/or BT Supplied Items or
Digital and/or BT Property are stored and take possession of
them.
17. WARRANTY
17.1 GeoTel agrees that it fully understands the nature of the Work and
that it has satisfied itself as to the relevance and content of the
Customer Specification Document. Accordingly, GeoTel confirms that it
has the capacity to complete the Work and deliver the Software and
Documentation in accordance with this Agreement.
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17.2 GeoTel agrees that GeoTel are the sole legal and beneficial owner of
the Software and Documentation and that the same are free and clear of
all liens and encumbrances and free and clear from all claims and
demands of third parties.
17.3 GeoTel agrees that the Software and Intellectual Property Rights (or
any part thereof) shall not infringe or violate any United States of
America and/or United Kingdom patent, copyright, trademark, trade
secret or other right of any third party. GeoTel shall give Digital
immediate written notice if it becomes aware of any alleged
infringement or violation and shall indemnify Digital and Digital in
accordance with Condition 22 below.
17.4 GeoTel warrants that the Software shall conform and perform in
accordance with the Customer Specification Document and shall at its
own cost promptly remedy (by repair, replacement or modification, at
Digital's option), any defects in the Software notified by Digital and
which become apparent during the period commencing at Acceptance or
Commercial Service (as appropriate) and expiring 12 months thereafter
("Warranty Period"), due to:
i) defective workmanship; or,
ii) faulty design, (other than a design made or furnished or
specified by Digital and for which GeoTel has previously
disclaimed responsibility in writing within a reasonable time of
receipt of design); or,
iii) defective material supplied by GeoTel; or,
iv) any act, neglect or omission by GeoTel or Contract Personnel.
17.5 GeoTel shall:
i) ensure that any remedied part of the Software is compatible with
all of the Software and
ii) complete the remedy to the satisfaction of Digital within the
timescales set out in this Agreement; and
iii) ensure that defective Software is not remedied on Digital and/or
BT premises without Digital's consent, unless, for operational or
technical reasons they can only be removed or replaced with
difficulty; and cause the minimum of disruption to Digital and/or
BT and said parties' customers in effecting any remedy. The time
at which any remedy is to be effected shall be agreed with
Digital and Digital may at its discretion direct GeoTel to work
outside normal working hours at no cost to Digital.
17.6 The unexpired period of the Warranty Period or, if longer, a further
Warranty Period of 90 days, and the provisions of this Condition,
shall apply to all repaired or replacement Software and parts. GeoTel
shall, upon receipt of the Software returned under this Condition,
immediately investigate the Software and take all necessary
corrective action to prevent recurrence of the defects in any Software
to be supplied under this Agreement.
17.7 GeoTel warrants that the Software is where applicable, fully
compatible (without modification, loss of performance, loss of use, or
work or expense on the part of Digital and/or BT) with changes to
inputs or other information in relation to the dates arising in the
year 2000 and beyond and this warranty will remain effective after
the end of this Agreement.
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17.8 For the avoidance of any doubt, it is agreed that support and
maintenance shall commence from Acceptance or Commercial Service, as
appropriate and shall be provided in addition to the warranty
arrangements set out in this Condition 17 and that the fee for such
support and maintenance is included in the Price.
18. TITLE AND RISK
18.1 For the avoidance of any doubt, no title shall pass to Digital and/or
BT under this Agreement except that title in the C7 cards (as defined
in the Customer Specification Document) shall pass to Digital upon
payment therefor.
18.2 The risk of loss of or damage to the Software shall pass to Digital
upon delivery.
19. INFORMATION
19.1 Either party that has during the term of this Agreement received
Information in a recorded form from the other (or has recorded
received Information) shall return these records upon:
a) expiry or termination of this Agreement; or
b) earlier upon reasonable request:
unless such records are part of the Software.
19.2 Except as expressly set out in this Agreement, no assignment of or
licence under any Intellectual Property Right or trade mark or service
mark (whether registered or not) is granted by this Agreement.
20. CONFIDENTIALITY
20.1 A party to this Agreement receiving Information ("the Recipient") from
the other shall not, without the prior written consent of the other:
i) disclose the Information to any person other than the Recipient's
employees or a sub-contractor engaged for the purposes of this
Agreement; or
ii) use the Information other than for the purposes of this
Agreement.
20.2 Condition 20.1 of this Condition shall not apply to Information that
is:
i) published or becomes so otherwise than by breach of this
Agreement;
ii) lawfully known to the Recipient at the time of disclosure and is
not subject to any obligations of confidentiality;
iii) lawfully disclosed to the Recipient without any obligations of
confidentiality by a third party; or
iv) replicated by development independently carried out by or for the
Recipient.
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20.3 For the avoidance of doubt, it is agreed that this Condition 20 shall
also apply to
GeoTel's (and any sub-contractor of GeoTel) disclosure and use of
Information relating to Digital and/or BT's Intellectual Property
Rights which is owned or controlled by Digital.
20.4 GeoTel shall ensure that each sub-contractor engaged for the purpose
of this Agreement is bound by similar confidentiality terms to those
in this Condition.
20.5 Nothing in this Agreement shall prevent the Recipient from utilising
general skill or knowledge or experience gained from work carried out
under this Agreement insofar as such skill, knowledge or experience
does not infringe the other party's Intellectual Property Rights or
would involve a direct disclosure or unauthorised use of Information
which the Recipient is required under this Agreement to keep
confidential.
20.6 This Condition shall survive the expiry or termination of this
Agreement.
21. INTELLECTUAL PROPERTY
21.1 Due to GeoTel developing the Software (which is a Digital/BT specific
requirement) to be incorporated within GeoTel's Standard Products for
sub licensing to BT under the terms of this Agreement, the following
specific Condition 21.1. i) shall apply to the Software in addition to
Conditions 21.2 - 21.4 below:
i) The IPRs relating to all parts of the Software shall reside with
GeoTel and its licensor(s), as appropriate and Digital are
granted rights for the use and copying of the Software in
accordance with the terms and conditions of this Agreement.
21.2 The Intellectual Property Rights in any work and software additional
to the Work and the Software shall be agreed between the parties
pursuant to the Change Control Process.
21.3 To the extent necessary for Digital's use (including any agreed
further development) of the Software and the corresponding
Intellectual Property Rights, Digital shall have the right (in
addition to the rights set out in Conditions 3.7 and 3.8 above) to a
non-exclusive irrevocable licence to GeoTel's Intellectual Property
Rights. Such licence shall be granted subject to the payment of agreed
amounts.
21.4 In the event that GeoTel wishes to license its Intellectual Property
Rights under Condition 21.3 on royalty bearing terms, it shall
appropriately mark the deliverables hereunder or submit a written
notice to Digital indicating that use of the Software requires a
licence in respect of GeoTel's Intellectual Property Rights.
22. INTELLECTUAL PROPERTY RIGHTS INDEMNIFICATION
22.1 GeoTel indemnifies Digital against all actions, claims, proceedings,
damages, costs and expenses arising from any actual or alleged
infringement occurring in the United Kingdom and/or the United States
of America of GeoTel's Intellectual Property Rights whether created
under this Agreement or otherwise or breach of confidentiality by the
possession or use of the Software (or any part thereof) or GeoTel's
Intellectual Property Rights whether created under this Agreement or
otherwise or any other deliverable under this Agreement.
22.2 Digital shall notify GeoTel in writing of any such allegation received
by Digital and shall not make any admissions unless GeoTel gives prior
written consent.
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22.3 At GeoTel's request and expense, Digital shall permit GeoTel to
conduct all negotiations and litigation. Digital shall give all
reasonable assistance and GeoTel shall pay Digital's costs and
expenses so incurred.
22.4 GeoTel may (at GeoTel's option and at its expense) modify or replace
the Software to avoid any alleged or actual infringement or breach.
The modification or replacement must not affect the performance of the
Software.
22.5 This indemnity shall not apply to infringement or breaches arising
directly from:
i) compliance with the design information where such compliance
inevitably results in the infringement. This exception does not
apply to infringement resulting from a BT requirement that the
Software comply with a national or international standard; or
ii) the combination of the Software with other items not supplied
under this Agreement or the BT Contract.
22.6 Without prejudice to Condition 22.5.i) above, Digital warrants that
compliance with the design information for the purposes of the
provision of the Software to Digital and/or BT will not cause
infringement or breach.
22.7 This Condition 22 shall survive the expiry or termination of this
Agreement.
23. ESCROW
23.1.GeoTel shall not incorporate Information which is owned or controlled
by a third party into the Software if such Information could be
necessary for the maintenance or support of the Software unless GeoTel
shall have secured:
i) in the case of Information necessary for the maintenance or
support of the Software, the right to put the Information into
escrow to the benefit of Digital;
iv) or the prior written consent of Digital.
23.2 In addition to Condition 23.1 above, the Software (and all Revisions
thereto) shall be put into an appropriate escrow deposit in the United
Kingdom in accordance with this Condition. GeoTel shall if required by
Digital, enter into an agreement upon mutually fair and reasonable
terms and conditions for the deposit and maintenance of Documentation
and the source code version of the Software and information relating
thereto ("the Escrow Items"). The Escrow Items shall be released by
the escrow agent to Digital and/or BT in the event that has not been
satisfactorily remedied within a 30-day period by:
i) Source Code Escrow. Within 10 business days of the successful
acceptance by Digital as defined in paragraph 8 GeoTel agrees to
deposit the Escrow Items into escrow with a mutually agreed upon
escrow agent. This Escrow Agreement requires GeoTel to, and
GeoTel will, deposit updates to such deposited material upon
delivery of updates and upgrades to Digital hereunder. Evidence
of each deposit will be provided annually to Digital.
Additionally, such Escrow Agreement will provide for the release
of such Escrow Items in the event (each, a "Release Condition")
GeoTel:
a) ceases to be engaged in normal business operations for
period of thirty (30) days;
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b) becomes involved in any voluntary or involuntary bankruptcy
or other insolvency proceeding or petition for the benefit
of creditors, or makes an assignment for the benefit of
creditors, and such proceeding, petition or assignment is
not dismissed or set aside within sixty (60) days after it
was made;
c) *
23.3 The information to be held in escrow in regard to Software shall
include the following:
i) Details of the programming language and version used (to include,
but not be limited to any extensions employed;
ii) Details of the compiler used;
iii) Full design documentation (this may be held on magnetic or
similar media);
iv) A copy of the source code listing on magnetic or similar media;
v) Any other documentation, records, methodologies, tools,
procedures and processes which may be deemed necessary in order
that Digital or an agent of Digital could support, maintain, and
enhance the Software.
This information shall be updated as necessary to incorporate changes
resulting from defect fixes and enhancements. It shall be the
responsibility of GeoTel to ensure the long term integrity and
security of this information. Where information is held on magnetic or
similar media, suitable hardware and if necessary software shall be
maintained in escrow by GeoTel to enable its retrieval. In the event
of the retrieval hardware/software becoming obsolete, it shall be the
responsibility of GeoTel to transfer the escrowed information to a
current system of storage.
23.4 In respect of Software written by GeoTel or its associate companies
and supplied to Digital under this Agreement, GeoTel shall either:
i) offer to provide, on fair and reasonable terms, maintenance
services for the Software in support of its use by Digital or
ii) supply Digital, at the cost of collation, reproduction and
dispatch, relevant source code for the relevant Software (or
parts thereof) for which GeoTel is no longer willing to offer
maintenance services solely for maintenance by or on behalf of
Digital of the relevant Software.
23.5 Fees and Expenses. The fees and expenses associated with the creation
of the escrow and naming of Digital as a third party beneficiary will
be borne by Digital.
23.6 Rights Transferable. Digital shall be entitled to make BT a party to
the Escrow Agreement provided for in this Article to the extent
required by BT. Notwithstanding anything to the contrary herein,
Digital may sublicense its rights to BT under the license described in
this Software Agreement under substantially similar terms and
conditions as are specified in the Software Agreement to the extent
required by BT.
* Confidential Information omitted and filed separately with the Commission.
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24. INDEMNITY
Without prejudice to any other rights or remedies available to Digital,
GeoTel shall indemnify Digital against all loss of or damage to any Digital
and/or BT property to the extent arising as a result of the negligence or
wilful acts or omissions of GeoTel or Contract Personnel in relation to the
performance of this Agreement; and all claims and proceedings, damages,
costs and expenses arising or incurred in respect of:
a) death or personal injury of any person in relation to the performance
of this Agreement, except to the extent caused by Digital's
negligence; or
b) death or personal injury of any other person to the extent arising as
a result of any defect in the Software or the negligence or wilful
acts or omissions of GeoTel or Contract Personnel in relation to the
performance of this Agreement; or
c) loss of or damage to any property to the extent arising as a result of
the negligence or wilful acts or omissions of GeoTel or Contract
Personnel in relation to the performance of this Agreement.
25. LIMITATION OF LIABILITY
25.1 Subject to Paragraph 3 of this Condition, GeoTel shall not be liable
to Digital and Digital shall not in any event be liable to GeoTel
whether founded in contract, tort, (including negligence), for any
breach of statutory duty or otherwise, or any damages resulting from
loss of data or use, corruption of data, loss of profits, anticipated
savings or business or for any indirect or consequential losses or
damage.
25.2 Subject to Paragraph 3 of this Condition, the liability of GeoTel to
Digital under this Agreement shall not exceed $* per unrelated
incident or in any event a total maximum of the amount paid to GeoTel
under this Agreement exclusive of any amounts paid under Appendix 6.
25.3 Paragraphs 1 and 2 of this Condition shall not apply to loss or damage
arising out of or in connection with:
i) death or personal injury; or
ii) Digital's obligation to pay the Price.
26. INSURANCE
26.1 GeoTel shall at its own expense effect and maintain for this term of
Agreement such insurances as required by any applicable law and as
appropriate in respect of its obligations under this Agreement. Such
insurances shall include third party liability insurance with an
indemnity limit of not less than $2,000,000 for each and every claim.
Digital insurance is limited to personal injury and damage to
property.
26.2 If GeoTel cannot provide evidence of such insurance to Digital on
request, Digital may arrange such insurance and recover the cost from
GeoTel.
26.3 GeoTel shall notify Digital as soon as it is aware of any event
occurring in relation to this Agreement which may give rise to an
obligation to indemnify Digital under this Agreement, or to a claim
under any insurance required by this Agreement.
26.4 This Condition shall not be deemed to limit in any way GeoTel's
liability under this Agreement.
* Confidential Information omitted and filed separately with the Commission.
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27. TERMINATION
27.1 If either party commits a material breach or persistent breaches of
this Agreement and, in the case of a breach which is capable of
remedy, fails to remedy the breach within 30 days (or such longer
period as the parties may agree in writing including as indicted by
clauses in this Agreement) of written notice from the notifying party
to do so, then the notifying party shall have the right:
a) at any time to terminate this Agreement forthwith as a whole or
in respect of any part of this Agreement to be performed; and
b) to recover from the other party all losses and expenses incurred
subject always to the Limitation of Liability Condition.
27.2 Either party shall have the right at any time to terminate this
Agreement forthwith and to recover from the other all losses and
expenses incurred subject always to the Limitation of Liability
Condition if the other party shall become insolvent or cease to trade
or compound with its creditors; or a bankruptcy petition or order is
presented or made against the other party; or where the other party is
a partnership, against any one partner, or if a trustee in
sequestration is appointed in respect of the assets of the other party
or (where applicable) any one partner; or a receiver or an
administrative receiver is appointed in respect of any of the other
party's assets; or a petition for an administration order is presented
or such an order is made in relation to the other party; or a
resolution or petition or order to wind up the other party is passed
or presented or made or a liquidator is appointed in respect of the
other party (otherwise than for reconstruction or amalgamation).
27.3 Digital may at any time on written notice terminate this Agreement
forthwith. Where Digital terminates this Agreement under this
paragraph 3 and does not have any other right to terminate this
Agreement, the following shall apply:
a) Digital shall subject to sub-paragraph (b) below, pay GeoTel such
amounts as may be necessary to cover its reasonable costs and
outstanding and unavoidable commitments (and reasonable profit
thereon) necessarily and solely incurred in properly performing
this Agreement in relation to Applicable Software (as defined
below) prior to termination.
b) Digital shall not pay for any such costs or commitments that
GeoTel is able to mitigate and shall only pay costs and
commitments that Digital has validated to its reasonable
satisfaction. Digital shall not be liable to pay for any
Applicable Software that, at the date of termination, Digital is
entitled to reject (including any Software for which Digital may
have issued a Certificate of Commercial Service) or has already
rejected. Digital's total liability under sub-paragraph (a) above
shall not in any circumstances exceed the price that would have
been payable by Digital for Applicable Software if this Agreement
had not been terminated.
c) In this paragraph 3, "Applicable Software" means Software in
respect of which this Agreement has been terminated under this
paragraph, which were ordered by Digital under this Agreement
before the date of termination, and for which payment has not at
that date become due from Digital.
d) Sub-paragraphs (a) and (b) above encompass the total liability of
Digital for termination pursuant to this Paragraph, and Digital
shall be liable for no other costs, claims, damages, or expenses
consequent upon such termination.
27.4 The rights of the parties under this Condition is without prejudice to
any other right of the parties under this Condition or otherwise.
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28. FORCE MAJEURE
28.1 Neither party shall be liable to the other party for any delay in the
performance of this Agreement directly caused by any event beyond its
reasonable control provided such party shall have first given the
other party written notice within seven days after becoming aware that
such delay was likely to occur.
28.2 For the avoidance of any doubt, the provisions of this Condition shall
not affect Digital's right to terminate this Agreement under Paragraph
3 of the Condition headed "Termination".
29. SUSPENSION OF WORK
29.1 Digital may suspend the Work at any time (Digital will notify GeoTel if the
suspension is likely to be more than 3 months) and will pay to GeoTel all
reasonable resulting expenses incurred by GeoTel (other than those arising
from GeoTel's own default) provided that:
a) no payment shall be made for any period of suspension, prevention or
delay less than 2 consecutive working days; and,
b) GeoTel has within 10 working days after the event giving rise to the
claim, given notice in writing to Digital of its intention to make
such a claim; and,
c) GeoTel makes such claim giving details of each item claimed and the
reason for such cost within 30 days after Acceptance of the Software.
30. WORKING ON SITE
30.1 GeoTel shall be deemed to have examined the BT site in the United
Kingdom to which GeoTel may require access to perform its obligations
under this Agreement and to which deliveries may be made ("the Site")
and no claim from GeoTel for additional payment will be allowed on the
grounds of misinterpretation of any matter relating to the Site, or
which GeoTel could reasonably have satisfied itself by a visit to the
premises, reference to Digital and/or BT or otherwise.
30.2 GeoTel, if applicable, shall inform Digital and/or BT of the number of
employees to be brought onto the Site, and Digital and/or BT shall,
where reasonably practicable, provide:
a) such permanent or temporary sanitary and messing facilities as
Digital and/or BT considers are adequate for the number of
employees; and
b) a lockable office for the use of GeoTel and reasonable, suitable
accommodation for equipment and supplier's equipment, including a
lockable area for valuable stores and test equipment; and
c) a direct exchange line and telephone instrument for GeoTel's use,
but GeoTel shall pay all call charges.
30.3 GeoTel shall not (and shall ensure that Contract Personnel shall not)
use premium rate service lines or BT service lines or Digital and/or
BT customer lines other than for essential test purposes or directly
in connection with the performance of this Agreement, ensuring that in
all such cases, by the use of charge cards 'answer no charge' lines or
otherwise, no charge to any Digital and/or BT customer will arise.
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30.4 GeoTel shall, as appropriate and as mutually agreed with GeoTel and
Digital, employ one or more competent representatives to supervise
the carrying out of the Work on the Site whose names shall be
notified to Digital and/or BT in writing.
30.5 Digital and/or BT shall provide GeoTel with facilities for carrying
out installation and commissioning of the Software on the Site and
shall provide facilities to carry out the Work on Digital and/or BT
premises. If Digital and/or BT envisage working out of hours then
they shall inform Digital and/or BT within a reasonable timescale to
enable Digital and/or BT to facilitate internal rota/overtime
arrangements.
30.6 Where the Work is to be carried out on Digital and/or BT customer
premises or other non-Digital and/or BT premises, Digital and/or BT
shall wherever possible provide facilities during reasonable working
hours as may be applicable to each Site as are agreed between
Digital and/or BT and GeoTel.
30.7 Digital and/or BT shall allow the application of electric power to
relevant parts of the Software on the Site outside the agreed
working hours, provided always that:
a) GeoTel has provided both power plant and system prompt alarms
to the Software and has successfully demonstrated their
operation to the satisfaction of Digital and/or BT; and,
b) Digital and/or BT is satisfied as to the adequacy of alarms
prior to giving agreement that such Software shall be left
unattended; and,
c) When a prompt alarm is generated by such Software it shall be
attended by the Digital and/or BT emergency call out engineer
who shall take such action as may be necessary to disconnect
the power supply (following appropriate procedures) and to
protect such Supplies, other equipment and the Site. Such
action shall be advised to GeoTel at the earliest opportunity
of action being taken, and shall be at GeoTel's risk and
expense; and,
d) GeoTel shall satisfy Digital and/or BT that the power
arrangements meet any safety provisions as may be applicable
to the Site.
30.8 Any statement of satisfaction by or on behalf of Digital and/or BT
shall be without prejudice to the obligations and liabilities of
GeoTel.
30.9 Digital and/or BT is responsible for preparing and maintaining a
safe and suitable site. GeoTel shall notify Digital and/or BT of any
potential health or safety risks that may exist on the Site. The
Work may not be performed if GeoTel reasonably believes that
conditions at the Site represent a safety or health risk. Where
GeoTel so requires, Digital and/or BT shall accompany GeoTel's
personnel while on Site for purposes connected with the Work.
30.10 Where there is a need to dispose of magnetic media (eg. computer
fixed disc storage) which is either old or faulty, the media shall
be securely disposed of in accordance with the requirements of a
non-disclosure agreement.
30.11 Operational machines which are used to process Digital and/or BT
data shall not be used for software code development purposes.
30.12 A software security policy document ("the Security Policy") shall be
prepared by GeoTel outlining the Software, the impact or loss
associated with a possible security failure, the threats to the
Software and the proposed countermeasures.
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31. DELIVERY AND REMOVAL OF THE SOFTWARE AND GEOTEL'S EQUIPMENT
31.1 GeoTel shall remove any of its equipment and any defective Software
(pursuant to the warranty, maintenance and support obligations set
out in the Agreement), leaving the Site clean and in no worse
condition as at the than commencement of Work, either:
a) immediately before submitting Software for Acceptance; or,
b) at any time prior to Acceptance, subject to 20 days written
notice from Digital.
31.2 If GeoTel fails to remove its equipment from Site as specified
above, then Digital may remove it at GeoTel's risk and expense.
32. SECURITY
32.1 GeoTel shall ensure that Contract Personnel conform to all security,
safety and works regulations and such other local instructions, as
may be notified by Digital or BT whilst on any Digital site or the
Site or customer premises.
32.2 Digital may remove from and refuse entry and re-admission to a
Digital site, the Site or customer premises any person who is, in
the reasonable opinion of Digital, not conforming with these
requirements or not a fit person to be allowed on such locations.
32.3 Digital and/or BT may, at its discretion, search any Contract
Personnel or their vehicles, huts, lockers or equipment upon any
Digital site or the Site or upon entry to and departure from the
Site, any Digital site or customer premises. GeoTel shall use its
best endeavours to ensure that Contract Personnel are aware of and
comply with these requirements and that no Contract Personnel
unwilling to comply will be employed on the Site, any Digital site
or customer premises.
32.3 GeoTel shall (and shall ensure Contract Personnel shall) access only
those parts of the Site, Digital sites or customer premises strictly
necessary for the purposes of this Agreement.
32.4 GeoTel shall ensure that no Digital or BT equipment, facilities or
materials are used or removed from the Site, any Digital site or
customer premises without Digital's written consent and shall
immediately notify Digital of any known or suspected breach of
security in relation to this Agreement and give Digital full
co-operation in any investigation.
32.5 GeoTel shall implement appropriate physical and electronic security
measures to safeguard any Digital or BT property it holds (whether
in vehicles or otherwise) against loss or theft. Digital shall have
the right to examine such arrangements and associated security
procedures where necessary, and to inspect all Digital property
being held by or on behalf of GeoTel, and GeoTel shall implement
such additional reasonable security measures as BT and/or Digital
shall require
32.6 GeoTel shall supply on request details (name, address, date of
birth) of any Contract Personnel who might have access to the Site,
any Digital site or customer premises under this Agreement.
32.7 Digital may examine any Information relating to the handling,
processing, transportation and storage of information or property of
or supplied by Digital and held by GeoTel under this Agreement,
which Information shall be kept by GeoTel for at least one year
after the termination or expiry of this Agreement
32.8 Digital shall not be responsible for safeguarding any property or
money of Contract Personnel.
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33. QUALITY
33.1 GeoTel and Digital shall, pursuant to the Project Plan, agree in
writing an appropriate quality plan to apply to this Agreement.
34. COMPLIANCE WITH LAWS AND REGULATIONS
34.1 GeoTel and the Software shall comply with:
a) all applicable legislation, regulations or by-laws of a local
or other authority; and any Digital site or Site regulations
that may be notified to GeoTel.
35. ASSIGNMENT AND SUBCONTRACTING
35.1 GeoTel shall not without Digital's written consent (such consent not
to be unreasonably withheld or delayed), assigned or subcontract the
whole or any part of this Agreement. Any consent, if given, shall
not affect GeoTel's obligations or liabilities under this Agreement.
35.2 GeoTel shall allow Digital access to its sub - contractors, if any,
for technical discussions provided that the proposed agenda for such
discussions and the outcome shall be promptly notified to GeoTel.
Digital will notify any changes or proposals identified during such
discussions to GeoTel who will process them in accordance with this
Agreement.
36. CONTRACT PERSONNEL
36.1 Contract Personnel shall be competent, appropriately qualified and
to Digital's reasonable satisfaction.
37. NON-NUCLEAR USE AND EXPORT CONTROL
37.1 Non Nuclear Use
Digital products are manufactured for standard commercial uses and
are not intended to be sold or licenced for use in critical safety
systems in nuclear facilities. Digital may require additional
contractual safeguard for other nuclear, mass transportation, and
aviation applications.
37.2 Export Control
GeoTel hereby warrants that the Software and Documentation are
licensed for the purpose and use contemplated by this Agreement
outside the United States. GeoTel and Digital shall comply with all
applicable laws, including without limitation, the export control
laws of the United States of America and prevailing regulations
which may be issued from time to time by the United States
Department of Commerce and Office of Munitions Control, US
Department of State concerning the exporting, importing and the
re-exporting of the Software and/or Documentation. Without limiting
the generality of the foregoing, Digital agrees that it should not
export or re-export any Software and/or Documentation in violation
of the regulations of the United States Department of Commerce or
the US Export Administration Act or without the prior written
consent of GeoTel which shall not be unreasonably delayed or
withheld.
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38. NOTICES
38.1 Notices required under this Agreement shall be in writing and be
delivered by hand, post or facsimile transmission to the Commercial
Contact of the recipient and shall be deemed to be given upon
receipt (except notices sent by facsimile transmission, which shall
be deemed to be given upon transmission).
39. GENERAL
39.1 The invalidity or unenforceability for any reason of any provision
of this Agreement shall not prejudice or affect the validity or
enforceability of its other provisions.
39.2 The headings to the Conditions are for reference only and shall not
affect their interpretation.
39.3 No delay, neglect or forbearance by either party in enforcing any
provision of this Agreement shall be deemed to be a waiver or in any
way prejudice any rights of that party. No waiver by either party
shall be effective unless made in writing or constitute a waiver of
rights in relation to any subsequent breach of this Agreement.
39.4 This Agreement governs the relationship between the parties to the
exclusion of any other terms and conditions on which any quotation
or tender response has been given to Digital and supersedes any
terms and conditions printed on the Purchase Order(s), all
conditions in the Evaluation Licence Agreement and the Development
Agreement, with the exception of the payment terms and acceptance
terms contained within said agreements.
39.5 This Agreement is governed by the laws of the Commonwealth of
Massachusetts. The parties will try and resolve any dispute relating
to this Agreement by negotiation between senior executives of the
parties. If the matter is not resolves, the parties agree to
consider resolving the dispute by an Alternative Dispute Resolution
("ADR") Procedure using the service of the Centre for Dispure
Resolution ("CEDR"), 3 - 5 Norwich Street London EC4A 1EJ.
39.6 GeoTel shall not be, nor in any way represent itself as, an agent of
Digital and shall have no authority to enter into any obligation on
behalf of Digital or to bind Digital in any way.
39.7 Except as expressly set out in this Agreement, no assignment of or
licence under any Intellectual Property Right or trade mark or
service mark (whether registered or not) is granted by this
Agreement.
39.8 The following provisions of this Agreement shall survive its
termination or expiry in addition to those provisions relating to
Intellectual Property and those which by their content or nature
will so survive:
Digital and/or BT Supplied Items and Property
Warranty,
Information,
Confidentiality,
Indemnity,
Intellectual Property,
Intellectual Property Rights Indemnification.
23
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40. PUBLICITY
40.1 No publicity relating to this Agreement shall be published in any
newspaper, magazine journal or any written or electronic (to
include, but not be limited to the Internet) or visual media without
the prior written consent of Digital and GeoTel.
Signed: /s/ John C. Thibault
--------------------------
For and on behalf of GeoTel Communications Corporation
Name: John C. Thibault
----------------------------
Title: President & CEO
---------------------------
Date: November 27, 1996
----------------------------
Signed: /s/ Virginia Lynch
---------------------------
For and on behalf of Digital Equipment Co. Limited
Name: Virginia Lynch
----------------------------
Title: Commercial Group Manager
----------------------------
Date: 1st December, 1996
----------------------------
24
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APPENDIX 1
THE WORK AND THE CUSTOMER SPECIFICATION DOCUMENT
1.1 DESCRIPTION OF THE WORK
i) The design, manufacture, delivery, integration, Acceptance, maintenance
and support, Telemarketing Near Real Time Control and Reports"
requirement as detailed in the Customer Specification Document,
version:1 dated: 4 October 1996; and
ii) Training to be as agreed between the parties as may be required and
mutually agreed upon based on pricing defined in Appendix 2.
1.2 DIMENSIONING
Table 6.1 in Section 6.1 of the Customer Specification Document lists the
requirements with regard to capacity for the actual system ordered by
Digital. GeoTel has stated full compliance to these requirements and shall
make good at its own expense any shortfall in the Software has against the
parameters in Table 6.1 referenced above.
1.3 REGULATORY
The network interface to the Customer Call Centres on the network side of
the ACD interface is likely to be a regulatory interface and will be
published by Digital.
1.4 SECURITY
Security shall be in accordance with and subject to Section 8 of the
Customer Specification Document.
1.5 CE MARKETING
For the avoidance of any doubt, the C7 cards to be delivered under this
Agreement shall be fully CE compliant with EMC Directive 89/336/EEC, EN
55022 1994, Class B EN 50082-1 1992 at no charge to Digital or BT.
25
<PAGE> 26
APPENDIX 2
DIGITAL PRICE LIST AND PAYMENT TERMS
1. BASE PRICES*
<TABLE>
<CAPTION>
BASE PRICING SMALL (BT-S) MEDIUM (BT-M) LARGE (BT-L)
<S> <C> <C> <C>
Customers
ACD's
Calls per second
Training allowance * * *
Support
Price
UPGRADE PRICING
Small to Medium (BT-SM)
Medium to Large (BT-ML) *
Small to Large (BT-SL)
INCREMENTAL PRICING FROM ANY BASE
Per extra customer (BT-CUST) *
Per extra ACD (BT-ACD)
ADDITIONAL FEATURES
Small Medium Large
PostRouting (BT-PR)
Database Routing (BT-DR) * * *
SUPPORT
BT-Direct Support
More than 20 customers
Initial on-site support (AE & SE) *
Digital Support/BT Pass Through
First year
Second year
Third year *
On-site BT central site installation
Other on-site support
</TABLE>
* Confidential Information omitted and filed separately with the Commission.
26
<PAGE> 27
APPENDIX 2
DIGITAL PRICE LIST AND PAYMENT TERMS - CONT'D
OTHER EXTRAS
<TABLE>
<S> <C>
Additional model system: VV&T, Operations, Training
Base system equivalent to
existing model *
NIC cards *
Extra switch support - full functionality per vendor
Requires loan of switch and vendor support *
DOCUMENTATION
Turnkey without rights to electronics form *
Turnkey with rights to electronics form *
Printing fee *
Management
Grid management tool *
Training in Littleton for BT personnel
Supervisor course *
System manager course *
System administrator course *
3-month apprenticeship for System Engineers *
6-month apprenticeship for Application Engineers *
Network
Extra query for presentation CLI *
2. The following features have been ordered for this
Agreement:
System configuration BT-S $7,504,104
Documentation, turnkey without electronic rights *
Grid management tool *
Total *
The price (without exclusivity) of this Agreement is
calculated as follows:
Above total $7,779,104
Prior payment ($500,000)
----------
Price (without exclusivity) $7,279,104
3. The Price shall be paid, subject to GeoTel's satisfactory performance of its
obligations under this Agreement in accordance with the following staged
payment plan:
% payable amount
Date of signature of this Agreement *
Hardware acceptance *
Software acceptance *
System acceptance *
Ready for Service *
</TABLE>
* Confidential Information omitted and filed separately with the Commission.
27
<PAGE> 28
4. For the period expiring on the date of successful certification by
IVV&T as being ready for operational readiness testing (as defined in
the Customer Specification Document) it is agreed that Digital shall
be entitled to withhold payment of the sum of $* from the Price. Upon
such successful certification, payment will be made in accordance with
this Agreement. In the event that such satisfactory performance is not
achieved within a timescale stipulated by Digital, then Digital shall be
in entitled to terminate this Agreement. These provisions shall be
without prejudice to Digital's other rights and remedies.
5. Digital shall pay GeoTel's properly submitted and valid invoices
within 30 days of receipt.
6. Exclusively Pricing
A. 1997 *
B. 1998 *
C. 1999 *
* Confidential Information omitted and filed separately with the Commission.
28
<PAGE> 29
APPENDIX 3
THE
PROJECT PLAN
This Agreement shall be performed in accordance with the Project Plan and it is
agreed between the parties that, pursuant to the Project Plan, the following
dates are key to the performance of this Agreement:
16 December 1996 - availability of Release 1 of the Software (as
defined in the Customer Specification Document
and/or with feature content to be agreed between
the parties within 30 days of the Agreement Date)
30 June 1997 - availability of Release 2 of the Software (as
defined in the Customer Specification Document)
30 July 1997 - availability to BT of the fully Accepted and
compliant Release of the Software which enables
BT to provide services.
29
<PAGE> 30
APPENDIX 4
SUPPORT AND MAINTENANCE
It is acknowledged and agreed between the parties that support and maintenance
has, as at the Agreement Date, yet to be agreed. In view of this, the parties
agree that the finalised details will be agreed within 60 days from such date
and incorporated into this Agreement at this Appendix. Such exercise will
consider the applicability of the including Section 5 of the BT Requirements
Document and in any event will be in respect of maintenance and support being
provided on the then prevailing current release and the release immediately
previous to the then current. In no case will the support extend beyond what is
defined in the GeoTel Customer Support policy or the Customer Specification
Document unless mutually agreed.
30
<PAGE> 31
APPENDIX 5
DOCUMENTATION
Final specification of the turnkey documentation (to be supplied to Digital as
set out in the Customer Specification Document Section 3.2 - Documentation and
Helpscreens) will be completed prior to the Documentation production activity
identified in the Project Plan as item 138 commencing on 3/2/1997
31
<PAGE> 32
APPENDIX 6
POTENTIAL EXCLUSIVITY AGREEMENT
EXCLUSIVITY
1. As part of BT's requirements and plans in relation to this project, BT
intends to enter into an exclusive agreement with Digital (or GeoTel) on the
following basis:
i) with the exception of MCI and Rockwell Switching Systems, grant BT
exclusive market rights to the United Kingdom for the GeoTel Intelligent
Call Routing Product.
2. The term of this exclusive period shall be for the calendar year of 1997,
with an option with further options to extend for 1998, 1999.
3. BT shall advise Digital of their intention for exclusivity for subsequent
years (1997) no later than 30 June of the preceding year.
4. Subsequent to the first year exclusivity, BT are required to be committed to
maintenance support at the beginning of each year to be eligible for this
exclusivity option.
5. Subsequent to the first year, BT reserves the right to enter into 6 monthly
exclusivity periods. Pricing/fees for such 6 monthly periods shall be a pro
rata proportion of the amounts set out in Appendix 2.
6. Payment for exclusivity shall be invoiced quarterly in advance (first day of
each quarter).
7. The pricing/fees for exclusivity are identified in Appendix 2.
8. BT is currently evaluating the viability of proceeding on a non-exclusive
basis or an exclusive basis and shall have the option to enter into an
exclusive arrangement until 01 December 1996.
9. The parties recognise that entering into an exclusive arrangement will
require notification to competition and regulatory authorities and will
co-operate in submitting these notifications jointly.
7. Should the exclusive arrangement be prevent by the regulatory authorities,
then BT reserves the right to continue on a non-exclusive basis or to
terminate the non-exclusive and exclusive arrangements if it is not viable
for BT to continue on a non-exclusive basis. On cancellation of exclusivity,
Digital shall pay a proportional amount for exclusivity enjoyed until the
termination.
8. Should the exclusive arrangement be terminated as detailed above after
Acceptance by BT, then any fees paid or owed for a) exclusivity and b) the
Software are due and payable or non-refundable as appropriate.
32
