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Confidential treatment requested with respect to certain portions of this
agreement.
Exhibit 10.21
LICENSE AND SERVICES AGREEMENT
This License And Services Agreement ("Agreement") is entered into as of
June 21, 2000 ("Effective Date") by and among Evoke Communications, Inc., a
Delaware corporation ("Evoke") and Evoke Communications B.V., a Dutch
corporation ("Company").
Whereas, Evoke is in the business of providing integrated audio, video, and
data communications through the Internet and public telephone networks, and has
developed certain proprietary web conferencing technology in the field thereof;
Whereas, Evoke has entered into a Shareholders Agreement with @viso
Limited, a company incorporated under the laws of England and Wales ("@viso"),
dated June 9, 2000 ("Shareholders Agreement"), whereby Evoke and @viso have
agreed to associate themselves as shareholders of the Company;
Whereas, pursuant to such Shareholders Agreement, Evoke has agreed to
provide an exclusive license to certain of its existing proprietary web
conferencing, webcasting, web collaboration, and talking e-mail technology to
Company, at the fees set forth in this Agreement, and has agreed to enter into
an arrangement with Company for the development of future technology under a
"qualified cost sharing arrangement" within the meaning of United States
Treasury Regulation ("Treas. Reg.") (S) 1.482-7(b), in order to enable Company
to launch and provide integrated video, voice, and data communications solutions
and related services to customers located in certain European countries set
forth in the Shareholders Agreement; and
Whereas, Company will hold certain rights to the proprietary web
conferencing technology for the risk and account of Company and with the
intention to transfer (sell or contribute) the intellectual property against the
same consideration for which it received such rights to the proprietary web
conferencing technology.
Now, Therefore, in consideration of the premises and the mutual covenants
set forth herein, the parties hereto hereby agree as follows:
1. Definitions.
1.1 "Change In Control" shall mean (i) any change in the control of
Company's common shares resulting in Evoke maintaining voting control over less
than fifty percent (50%) of Company's common shares, or (ii) any change in the
membership of the board of directors of Company wherein the number of board
members elected to the board of directors by Evoke falls below fifty percent
(50%) of the total number of board members sitting on the board of directors.
1.2 "Competitor" shall mean any entity in the business of providing
integrated audio, video, voice, or data communications through the Internet or
through public telephone networks.
1.3 "Confidential Information" shall mean, to the extent previously,
currently, or subsequently disclosed or known to either party hereunder or
otherwise: information relating to any Proprietary Technology or Developed
Technology by either party, and the properties, composition, structure,
organization, use or processing thereof or systems therefor, or to either
party's business (including, without limitation, computer programs, code,
algorithms, schematics, data, know-how, processes, ideas, inventions (whether
patentable or not), names and expertise of employees and consultants and other
technical, business, financial, customer and product development plans,
forecasts, strategies and information).
1.4 "Cost Sharing Arrangement" shall mean the qualified cost sharing
arrangement set forth in Attachment C and intended as a "qualified cost sharing
arrangement" within the meaning of Treas. Reg. (S) 1.482-7(b).
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1.5 "Derivative Works" shall mean "derivative works" or "compilations"
within the meaning of such terms under the U.S. Copyright Act (17 U.S.C. (S) 101
et seq.).
1.6 "Developed Technology" shall mean any and all updates, upgrades,
improvements, new versions and releases, enhancements, Derivative Works,
translations, adaptations, or replacements of the Proprietary Technology,
including, without limitation, all hardware, software code, documentation,
materials and other information, whether or not patentable or copyrightable,
resulting from development efforts, research or expenditures of either party
after the Effective Date of this Agreement (a "covered intangible" within the
meaning of Treas. Reg. (S) 1.482-7(b)(4)(iv)).
1.7 "Developed Technology Costs" shall mean and include all costs
incurred by a party in connection with the development, license, or other
acquisition of any Developed Technology, or any rights in or to any Developed
Technology, including all direct and indirect costs and expenses incurred by a
party in connection with such Developed Technology, as well the cost of any
Intellectual Property Rights or other intangible property licensed or otherwise
acquired from third-parties in connection with such Developed Technology.
Without limiting the foregoing, Developed Technology Costs are intended to
include the following items: operating expenses as defined in Treas. Reg. (S)
1.482- 5(d)(3), other than depreciation or amortization expense, plus (to the
extent not included in such operating expenses, as defined in Section 1.482-
5(d)(3)) an arm's length rental charge for the use of any tangible property made
available to the Cost Sharing Arrangement.
1.8 "Developed Technology Cost Share" shall have the meaning set forth
in Attachment C.
1.9 "Intellectual Property Rights" shall mean any and all patents,
trade secrets, copyrights, trademarks, moral rights, trade names, rights in
trade dress, and all other intellectual property rights, whether arising under
the laws of the United States or any other state, country, or jurisdiction,
existing herein.
1.10 "Licensed Marks" shall mean solely the Evoke trademarks, trade
names, domain name, logos, and marks specified in Attachment A hereto, or which
may in the future be adopted for use by Evoke in connection with Services
offered by Evoke which are appropriate for use in connection with the Services
provided by Company; provided, however, that the existence, appearance and/or
style of the Licensed Marks may change from time to time in Evoke's sole
discretion.
1.11 "Principal Place of Business" shall mean an entity's headquarters
as defined by such entity.
1.12 "Proprietary Technology" shall mean, collectively, the Software
and other web conferencing technology specified in Attachment B, and any and all
Intellectual Property Rights existing therein.
1.13 "Services" shall mean the integrated video, voice and data web
conferencing services, provided by Evoke to customers as of the Effective Date,
and all marketing and promotional activities associated therewith.
1.14 "Specific Developed Technology" shall mean Developed Technology
resulting from development efforts, research, or expenditures outside of the
normal, ongoing and continuing development efforts of either party which, as
reasonably determined by Evoke, is primarily applicable only to the developing
party.
1.15 "Specific Developed Technology Costs" shall mean the Developed
Technology Costs of both parties relating to any Specific Developed Technology.
1.16 "Software" shall mean the computer software (in object code form)
used by Evoke to provide the Services as of the Effective Date, as identified
more particularly in Attachment B, including all related documentation listed
therein and generally delivered by Evoke in connection with the
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Services as of the date of this Agreement, and all content, information,
inventions, ideas, know-how, and other technology related to such computer
software and specified in Attachment B.
1.17 "Subsidiary" shall mean an entity wholly owned or controlled by
Company.
1.18 "Territory" shall mean those European countries listed in Annex A
to the Shareholders Agreement.
2. Proprietary Technology License.
2.1 Grant of License. Subject to all the terms and conditions of this
Agreement, including, without limitation, the payment of all applicable fees
under Section 8 below, Evoke hereby grants to Company a non-transferable and
exclusive (except as provided below) license under Evoke's Intellectual Property
Rights in and to the Proprietary Technology and any Developed Technology to:
(i) use the Proprietary Technology and any Developed Technology
in the Territory, solely for the purpose of providing the Services within the
Territory during the term hereof; and
(ii) sublicense the Proprietary Technology and any Developed
Technology to Subsidiaries within the Territory, as approved in advance in
writing by Evoke, solely for the purpose of providing the Services within the
Territory during the term hereof.
The licenses granted to Company shall be exclusive (subject to the provisions of
Section 14 below) in the Territory; provided, however, that Evoke may use and
grant licenses to use the Proprietary Technology to customers within the
Territory, or subsidiaries of such customers, where those customers or
subsidiaries: (i) have their Principal Place of Business outside the Territory,
(ii) are customers of Evoke or its affiliates as of the date of this Agreement,
(iii) contract for services on Evoke's or its affiliates' World Wide Web site,
(iv) require services from a single location which cannot be provided by
Company, or (v) after giving Company prior written notice, and with the prior
consent of @viso, insist in writing on being customers of Evoke or an affiliate
thereof, or that otherwise refuse to enter into an agreement with Company for
Services.
2.2 Limitations on Territory. Use of the Proprietary Technology and
any Developed Technology under the foregoing license by Company and its
sublicensees is restricted to use within the Territory and no rights to use or
modify the Proprietary Technology or any Developed Technology are granted by
Evoke to Company outside of the Territory. Any use or modification of the
Proprietary Technology or any Developed Technology outside of the Territory
shall be done solely: (i) with Evoke's prior written consent in each instance,
(ii) under terms no less restrictive than those in this Agreement, and (iii) in
compliance with all applicable laws.
2.3 Limitations on Use. Unless otherwise expressly permitted herein,
Company agrees that it shall not, and further agrees that it shall use best
efforts to ensure that its sublicensees do not, decompile, disassemble, decrypt,
extract, reverse engineer, reconfigure, or otherwise manipulate, or attempt to
manipulate the Software, otherwise attempt to derive the source code,
application programming interfaces, data structures, or algorithms underlying
the Software, or copy or modify the Software, or allow others to do any of the
foregoing.
2.4 Limitations on Developed Technology. Company acknowledges that
the foregoing license shall not grant Company, or its sublicensees, any right or
license to develop, license, or otherwise acquire any Developed Technology, or
otherwise modify or enhance the Proprietary Technology, except (i) for any
Developed Technology approved in advance in writing by Evoke and performed by
Company relating to the Company Services, described in Section 5, or the Support
Services, described in Section 6, or (ii) as provided below:
(1) Developed Technology. Company may, at its option, and
subject to the terms of this Agreement, seek to enter into an agreement with
Evoke to obtain a limited right to develop, license, or otherwise acquire
Developed Technology and to use such Developed Technology in the Territory.
Evoke agrees to negotiate any such agreement with Company in good faith. Any
such
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agreement shall be documented using a written agreement and shall include
provisions regarding use of the Developed Technology by the parties that are no
less restrictive than those contained in this Agreement. The amounts paid by
both parties in consideration of the rights to use any such Developed Technology
shall be determined under the terms of the qualified Cost Sharing Arrangement.
(2) Evoke Specific Developed Technology. Company acknowledges
that the foregoing license shall not grant Company, or its sublicensees, any
right or license to any Specific Developed Technology developed, licensed, or
otherwise acquired by Evoke ("Evoke Specific Developed Technology").
Notwithstanding the foregoing, from time to time during the term hereof, Evoke
may, in its sole discretion, make available to Company certain Evoke Specific
Developed Technology in which case Company shall install, localize, and
implement such Evoke Specific Developed Technology in accordance with an
implementation plan developed and approved by both parties. Company's right to
use any such Evoke Specific Developed Technology shall be subject to the terms
of this Agreement. The amount paid by Company in consideration of such rights to
any such Evoke Specific Developed Technology shall be determined under the terms
of the Cost Sharing Arrangement.
(3) Company Specific Developed Technology. Subject to the prior
written approval of Evoke, Company may, during the term of this Agreement, seek
to develop, license, or otherwise acquire Specific Developed Technology
("Company Specific Developed Technology"). Whenever possible, Company shall
offer to Evoke the right to acquire from Company (or, as applicable, directly
from the third-party from which Company itself acquired such Company Specific
Developed Technology) the rights to use any Company Specific Developed
Technology outside of the Territory subject to no greater restrictions than
those under which Evoke may use the Proprietary Technology under this Agreement.
Evoke's right to use any such Company Specific Developed Technology shall be
subject to the terms of this Agreement. The amount paid by Evoke, in
consideration of such rights in and to any such Company Specific Developed
Technology shall be determined under the terms of the Cost Sharing Arrangement.
3. Trademark License. Subject to all the terms and conditions of this
Agreement, including, without limitation, the payment of all applicable fees
under Section 8 below. Evoke hereby grants to Company a non-transferable,
exclusive (as specified below) license to use the Licensed Marks in the
Territory solely in connection with the marketing, promotion, and provision of
the Services under this Agreement during the term hereof. Any use of the
Licensed Marks under the foregoing license shall be subject to the Trademark Use
Standards, as set forth in Attachment A and as modified by Evoke from time to
time during the term hereof. The foregoing license grants no rights to Company
to use the Licensed Marks outside of the Territory. As used herein, the term
"exclusive" means only that Evoke shall not grant to any third party a license
to use, nor use for its own account, the Licensed Marks in connection with the
provision of Services in the Territory, except for uses relating to any
activities permitted under the last sentence of Section 2.1 above and subject to
the provisions of Section 14 below.
4. Ownership.
4.1 Ownership of Proprietary Technology. The Proprietary Technology
is and shall remain proprietary products of Evoke and its licensors. Evoke and
its licensors shall retain ownership of all Intellectual Property Rights
relating to or residing in the Proprietary Technology. Except for the license
granted to Company above, Company shall have no right, title, or interest in or
to the Proprietary Technology. Evoke reserves all rights not expressly granted
to Company.
4.2 Ownership of Developed Technology. The parties agree that legal
title to the Developed Technology should rest in one party in order to most
effectively protect the Intellectual Property Rights in the same by making it
easier to prosecute claims against infringers. Accordingly, any and all
Developed Technology (whether or not patentable or copyrightable) and all
Intellectual Property Rights therein, that are developed, licensed, or otherwise
obtained by either party (whether or not in violation of this Agreement) shall
be owned solely by Evoke, subject to Company's rights in Developed Technology as
set forth in Section 2.4 above. Evoke shall have the right, at its own expense,
and solely in
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its own name, to apply for, prosecute, and defend its Intellectual Property
Rights in and to such Developed Technology. Company agrees to and hereby makes
any assignments necessary to accomplish the foregoing ownership, and will
otherwise cooperate with Evoke to achieve such ownership and will aid in any
application for registration and protection of such Intellectual Property Rights
at Evoke's expense.
4.3 Ownership of Specific Developed Technology. Any Specific
Developed Technology developed, licensed, or otherwise acquired by either party
shall be owned by that party and, as applicable, its licensors.
4.4 Ownership of Licensed Marks. The Licensed Marks are owned solely
and exclusively by Evoke. Company hereby acknowledges and agrees that, except as
set forth in this Agreement, Company shall have no right, title, or interest in
or to the Licensed Marks and that all use of the Licensed Marks by Company shall
inure solely to the benefit of Evoke. Company further acknowledges and agrees
that any use of the Licensed Marks hereunder shall be subject to the Trademark
Use Standards set forth in Attachment A, as modified by Evoke from time to time
during the term hereof.
4.5 Notice. If Company becomes aware of any product or activity of
any third party that involves infringement or violation of the Proprietary
Technology, Developed Technology, or Licensed Marks, then Company shall promptly
notify Evoke in writing of such infringement or violation. Evoke may in its
discretion take or not take whatever action it believes is appropriate; if Evoke
elects to take action, Company will fully cooperate therewith at Evoke's
expense. Company shall not take any action on account of any such infringement,
claim or action without the prior written consent of Evoke, such consent not to
be unreasonably withheld.
5. Deployment Services.
5.1 Deployment Plan. Within a mutually agreed time after the
Effective Date, Evoke and Company shall develop a mutually agreeable operational
plan, which (consistent with the terms and conditions contained herein) shall
specify certain details relating to the provision of the Evoke Services by Evoke
and the Company Services by Company, as described below in Sections 5.2 and 5.3
respectively, in accordance with the Projected Timetable generally set forth in
Attachment D, and such other details as are agreed to by the parties (a
"Deployment Plan").
5.2 Obligations of Company. Company agrees to undertake and perform
the following services ("Company Services"):
(i) Platform Development Services. Company shall be
responsible for the development, acquisition, and installation of all
connectivity equipment, hardware, software, and other equipment necessary for
Company to use, operate, and support the Proprietary Technology to provide the
Services, including, without limitation, the "Minimum Platform" set forth in
Attachment E, and all fees and costs associated therewith (collectively,
"Platform Development Services").
(ii) Delivery and Installation Services. Company shall be
responsible for performing all services necessary to physically transfer the
Proprietary Technology to Company and to install the Software ("Delivery and
Installation Services"), the scope of such Delivery and Installation Services to
be set forth in the Deployment Plan.
(iii) Integration Services. Company shall be responsible for
performing all services that may be necessary to integrate, assimilate, or
otherwise modify the Proprietary Technology, including the development of
Developed Technology, to function with the telephone, Internet, or power utility
systems within the Territory ("Integration Services"), the scope of such
Integration Services to be set forth in the Deployment Plan.
(iv) Localization Services. Company shall be responsible for
performing all localization services that may be necessary to localize,
internationalize, or otherwise adapt the Software or any aspect of the
Proprietary Technology to function and perform the Services within the Territory
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("Localization Services"), the scope of such Localization Services to be set
forth in the Deployment Plan.
(v) Evaluation Services. Company shall be responsible for
performing all services that may be necessary to evaluate the performance of and
accept the Proprietary Technology and any Developed Technology resulting from
the Evoke Services performed under this Agreement ("Evaluation Services"), the
procedures and criteria for the acceptance testing (collectively, "Evaluation
Criteria") to be set forth in the Deployment Plan.
5.3 Obligations of Evoke. During the term of this Agreement and for
so long as Company has paid the applicable fees specified in Section 8 below
when due, Evoke agrees to undertake and perform the services set forth in this
Section 5.3 ("Evoke Services"). Evoke reserves the right to amend the Evoke
Services provided that, (i) Evoke determines that such amendment is for a
reasonable and legitimate business purpose, (ii) Evoke provides Company with
prior written notice and an explanation of the proposed change in reasonable
detail, and (iii) Company approves in advance of such change. All Evoke Services
performed by Evoke shall be paid for by Company as set forth in Section 8.
(i) Platform Development Services. Evoke shall use
commercially reasonable efforts to assist Company in the performance of the
Platform Development Services.
(ii) Delivery and Installation Services. Evoke shall use
commercially reasonable efforts to assist Company in the performance of the
Delivery and Installation Services. Transfer of any tangible manifestation of
the Proprietary Technology shall occur exclusively in the Territory.
(iii) Integration Services. Evoke shall use commercially
reasonable efforts to assist Company in the performance of the Integration
Services.
(iv) Localization Services. Evoke shall use commercially
reasonable efforts to assist Company in the performance of the Localization
Services.
(v) Evaluation Services. Evoke shall use commercially
reasonable efforts to assist Company in the performance of the Evaluation
Services.
(vi) Training Services. Evoke will provide Company's personnel
with a reasonable amount of training regarding the use, service and operation of
the Proprietary Technology, at Evoke's facilities and at mutually agreeable
times, as to be set forth in the Deployment Plan.
6. Support Services. Company or its sublicensee will be responsible for
providing all first level support to end users of the Services in accordance
with Evoke's then-current Customer Support Policies and Standards as supplied to
Company by Evoke. During the term of this Agreement and for so long as Company
has paid the applicable fees specified in Section 8 when due, Evoke will provide
Company with the support services relating to the Proprietary Technology set
forth in Attachment F ("Support Services"). The parties agree that the Support
Services will be provided by Evoke pursuant to a written agreement negotiated in
good faith by the parties, which shall include provisions no less restrictive
than those contained in this Agreement.
7. Marketing.
7.1 Marketing of Services. Company shall commercially reasonable
efforts to provide and market the Services under the licenses provided
hereunder. In connection with Company's obligations hereunder, Company shall use
its best efforts to:
(i) market and promote the Services within the Territory using
the Licensed Marks exclusively, but in any case shall meet in good faith with
Evoke on at least a semi-annual basis to jointly assess current and potential
marketing and promotion activities in the Territory;
(ii) subject to any applicable legal and regulatory standards
and requirements in the jurisdictions in which the Services are provided, adhere
to the standards for quality, marketing,
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customer service, operational reliability, and performance of the Services
generally observed by Evoke in its own performance of the Services, and as
otherwise provided by Evoke to Company from time to time throughout the term of
this Agreement; and
(iii) obtain all necessary regulatory and other approvals for the
provision of the Services to Customers with all appropriate governmental and
non-governmental authorities exercising regulatory or similar authority over
provision of the Services within the Territory and any geographic subdivisions
thereof. Prior to providing any Services to customers, Company shall ensure that
the Services meet all applicable legal and regulatory standards and requirements
in the jurisdictions in which the Services are provided.
7.2 Ancillary Agreements. Company shall use its best efforts and
shall cooperate with Evoke as required to conclude remarketing, non-competition
and non-solicitation agreements with Cegetel, in accordance with the terms and
conditions to be agreed to by the parties pursuant to Section 2(f) of the
Shareholders Agreement. In addition, Company and Evoke shall negotiate in good
faith an agreement whereby Evoke and Company would provide certain services to
the other in connection with customer support and the availability of
telecommunications infrastructure and related services available in the
respective territories served by each party.
8. License Fee and Payment.
8.1 Proprietary Technology Fees. In consideration of the rights and
licenses to the Proprietary Technology provided to Company by Evoke hereunder,
Company shall pay Evoke the fee of * ("Proprietary Technology License Fee"),
payable * in cash and 5,000,000 ECU in the form of a promissory note payable
to Evoke.
8.2 Developed Technology Cost Reimbursement. In consideration of the
rights to the benefits of any Developed Technology provided to Company by Evoke
hereunder, Company shall reimburse Evoke a share of the Developed Technology
Costs incurred by Evoke in the development of such Developed Technology based on
Company's Developed Technology Cost Share, calculated under the terms of the
Cost Sharing Arrangement ("Developed Technology Cost Reimbursement").
8.3 Evoke Services Fees. In consideration of the Evoke Services
provided to Company by Evoke under Section 5.3, Company shall pay Evoke for the
Evoke Services at the rates set forth in Attachment G ("Evoke Services Fees").
Evoke may reasonably modify the Evoke Services Fees due for the Evoke Services
from time to time during the term hereof, provided that such modifications do
not increase the Evoke Services Fees by greater than ten percent (10%) per year
for the term of the Agreement.
8.4 Support Service Fees. In consideration of the Support Services
provided to Company by Evoke under Section 6, Company shall pay Evoke for the
Support Services at the rates set forth in Attachment F ("Support Fees"). Evoke
may reasonably modify the Support Fees due for the Support Services from time to
time during the term hereof, provided that such modifications do not increase
the Support Fees by greater than ten percent (10%) per year for the term of the
Agreement.
8.5 Costs and Expenses. Company shall reimburse Evoke for all travel,
room and board and other out-of-pocket expenses incurred in connection with all
Evoke Services and Support Services required to be performed outside of Evoke's
own service locations ("Expenses") at Evoke's then current rates, provided that
Company has approved in advance of the Evoke Services and/or Support Services in
connection with which such Expenses were incurred. Except as otherwise set forth
in this Section 8.5, each party shall pay its own travel, room, and board and
other out-of-pocket expenses incurred in connection with fulfilling its
obligations under this Agreement.
8.6 Payment and Taxes. Payment in full of the Proprietary Technology
License Fee shall be made on or before the Effective Date. Payment in full of
the Developed Technology Cost Reimbursement shall be made as set forth in the
Cost Sharing Arrangement. All Evoke Services Fees,
* Confidential Treatment Requested.
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Support Fees, and Expenses shall be payable within thirty (30) days of Evoke's
invoice specifying the fees due. All fees specified in this Agreement are
exclusive of, and Company shall be solely responsible for, all sales, use or
other taxes applicable to the transactions contemplated by this Agreement,
except for any taxes based upon Evoke's net income.
9. Term and Termination.
9.1 Term. This Agreement shall commence on the Effective Date hereof
and shall continue indefinitely unless earlier terminated pursuant to this
Section 9.
9.2 Termination of the Shareholders Agreement. This Agreement shall
terminate upon the termination of the Shareholders Agreement for any reason,
except: (i) exercise by @viso of its right to acquire all of the shares of
Company held by Evoke pursuant to Section 10(a) of the Shareholders Agreement,
or (ii) Evoke ceases to own any shares in Company, as set forth in the final
sentence of Section 11(a) of the Shareholders Agreement.
9.3 Termination by Company. Without prejudice to any other rights or
remedies available to Company, this Agreement may be terminated by Company for
cause immediately by written notice if Evoke breaches any material provision of
this Agreement and fails to cure such breach within thirty (30) days of written
notice describing such breach in reasonable detail, provided that if Evoke is
using diligent efforts to cure such breach, it shall be afforded an additional
one hundred and twenty (120) days to remedy such failure.
9.4 Termination by Evoke.
(i) For Cause In General. Without prejudice to any other
rights or remedies available to Evoke, Evoke may terminate this Agreement for
cause immediately upon written notice if at any time Company breaches any
material provision of this Agreement and fails to cure such breach within thirty
(30) days of written notice describing such breach in reasonable detail,
provided that such breach did not result from the bad faith actions of Evoke, ,
and if Company is using diligent efforts to cure such breach, it shall be
afforded an additional one hundred and twenty (120) days to remedy such failure.
However, any right of termination of Evoke under this Section 9.4(i) shall not
apply in the event that: (a) Evoke had, or had reasonable cause to have, prior
knowledge of the events relating to the breach by Company, and (b) Evoke could
have prevented the breach by Company through reasonable action of Company's
Board of Directors.
(ii) For Cause Upon A Change In Control. Without prejudice to
any other rights or remedies available to Evoke, upon the occurrence of any
Change In Control, and for so long as such Change In Control remains in effect,
Evoke may terminate this Agreement immediately upon written notice if at any
time:
(1) Company fails to pay any of the amounts payable under
this Agreement to Evoke, and such non-payment continues for a period of thirty
(30) days after notice thereof to Company;
(2) Company fails to observe any material provisions of
Section 2, 4, 13, or 14, and fails to cure such breach within thirty (30) days
of written notice describing such breach in reasonable detail to Company; or
(3) Company fails to promptly secure or renew any license,
registration, permit, authorization or approval the absence of which would
materially and adversely affect its ability to conduct its business in the
manner contemplated by this Agreement or if any such license, registration,
permit, authorization or approval is revoked or suspended and not reinstated
within sixty (60) days; provided that if Company is using diligent efforts to
secure or renew such license, it shall be afforded an additional one hundred and
twenty (120) days to remedy such failure.
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9.5 Termination for Insolvency. This Agreement shall automatically be
terminated upon written notice by Company or Evoke if Company or Evoke becomes
insolvent or seeks protection under any bankruptcy, receivership, trust deed,
creditors arrangement, composition or comparable proceeding, or if any such
proceeding is instituted against Company or Evoke (and not dismissed within
sixty (60) days).
9.6 Effect of Termination.
(i) In General. Upon termination of this Agreement for any
reason, neither party shall be relieved from fulfilling its obligations under
this Agreement.
(ii) Right of Repurchase. Upon any termination of this
Agreement, Evoke shall have right to repurchase any and all rights granted to
Company under this Agreement, including, without limitation, any and all rights
in and to the Proprietary Technology, Licensed Marks, Developed Technology,
and/or Evoke Specific Technology, at the then current Market Value of such
rights. For purposes of this Section, the "Market Value" of such rights shall be
mutually agreed to by the parties at the time of termination. If the parties are
unable to agree on the value of such rights, and the difference between their
valuations is less than ten percent (10%) of the lower valuation, the average
between the valuations shall be used to determine the Market Value. If the
difference is greater than ten percent (10%) of the lower valuation, the parties
shall engage an independent internationally recognized accounting firm to
perform its own valuation, applying methods commonly used in the industry, which
shall be completed within sixty (60) days. Of the three valuations, the
valuation that differs in magnitude most from the other two valuations shall be
disregarded, and the average between the two remaining valuations shall be used
to determine the Market Value. The fees and expenses of such accounting firm
shall be shared equally by the parties.
(1) Exercise. Upon exercise by Evoke of its right of
repurchase under this Section, and payment of the Market Value to Company, (i)
all rights and licenses granted Company and its sublicensee(s) under this
Agreement and all other rights and obligations hereunder shall terminate, (ii)
Company and any sublicensee(s) will immediately cease using and return to Evoke
any and all Evoke Confidential Information, Proprietary Technology, Developed
Technology, Evoke Specific Technology, Software, marketing materials, and/or
literature in their possession, custody or control in whichever form held
(including, without limitation, all documents or media containing any of the
foregoing and all copies, extracts or embodiments thereof), (iii) Company will
cease using the Licensed Marks and any other trademarks, service marks and other
designations of Evoke, (iv) Evoke shall be excused from all obligations under
Section 2.1; and (v) Sections 1, 2.3, 4, 9, 11, 12, 13, 14, 15, 16, and 19 shall
survive such termination and will continue in accordance with their terms.
(2) Non-Exercise. In the case that Evoke does not elect
or otherwise fails to exercise its right of repurchase under this Section, (i)
the license granted under Section 2.1 of this Agreement shall become a
perpetual, worldwide, nonexclusive, royalty-free license under the then existing
Proprietary Technology and Developed Technology (notwithstanding the foregoing,
under no circumstances shall the foregoing license include any Developed
Technology or Evoke Specific Developed Technology developed or acquired after
the date of termination of this Agreement); (ii) all obligations of Evoke under
this Agreement with regard to the Proprietary Technology, Developed Technology,
and Evoke Specific Developed Technology shall cease, including, without
limitation, any obligation to provide any Evoke Services, maintenance, or
support; (iii) all warranties and indemnifications provided by Evoke under this
Agreement shall terminate and shall be unenforceable against Evoke; (iv) Company
and any sublicensee(s) will immediately cease using and return to Evoke all
marketing materials and literature in their possession, custody, or control in
whichever form held (including, without limitation, all documents or media
containing any of the foregoing and all copies, extracts or embodiments
thereof); (v) Company will cease using the Licensed Marks and any other
trademarks, service marks and other designations of Evoke within six (6) months
of the termination of this Agreement; (vi) Company shall be excused from all
obligations under Section 14; and (vii) Sections
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1, 2.2, 2.3, 4, 9, 11, 12, 13, 15, 16, 18, and 19 shall survive such termination
and will continue in accordance with their terms.
10. Representations and Warranties.
10.1 Representations and Warranties of Evoke.
(i) With the exception of any portion of the Minimum Platform
and any Developed Technology relating to the Software necessary for the
completion of the Localization Services, including, without limitation, any
additional modifications that may be required under legal, regulatory or
technological requirements in the Territory, and any other Developed Technology
agreed upon by the parties, Evoke represents and warrants that: (1) it has the
authority to license to Company the Proprietary Technology to be licensed to
Company under this Agreement, and (2) the Proprietary Technology to be licensed
to Company under this Agreement includes all of the software and related
technologies and information required for Company to provide the Services in the
Territory in a manner comparable in all material respects to the way the
Services are provided by Evoke in the United States as of the Effective Date.
(ii) Evoke represents and warrants to Company that Evoke will
use commercially reasonable efforts to: (A) perform the Evoke Services so that
the Software is implemented in agreement with mutually agreed upon standards set
forth in the Deployment Plan, and (B) provide the Support Services set forth in
Attachment F.
(iii) Evoke represents and warrants to Company that Evoke is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware and that it has full power, right and authority to
enter into this Agreement, to carry out its obligations under this Agreement,
and to grant the rights granted to Company herein.
(iv) Evoke represents and warrants to Company that Evoke has
performed all corporate actions and received all corporate authorizations
necessary to execute and deliver this Agreement and to perform its obligations
hereunder, and that this Agreement is valid, binding, and enforceable against it
(subject to applicable principles of equity and bankruptcy and insolvency laws).
(v) Evoke represents and warrants that, the execution of this
Agreement, the granting of the rights and licenses of Company herein, and the
performance of its obligations hereunder does not and will not: (A) violate the
Certificate of Incorporation or By-laws of Evoke, (B) to the best of its
knowledge, violate any provision of any U.S. law, statute, rule or regulation to
which it is subject; (C) to the best of its knowledge, violate any judgment,
order, writ, injunction or decree of any court applicable to Evoke; or (D)
conflict with or violate any other agreement into which Evoke has entered;
excluded in the case of (A), (B), or (C), however, any regulatory approvals that
may be required in connection with the performance of the Services in the
Territory.
(vi) Evoke represents and warrants that, to the best of its
knowledge as of the Effective Date, except as disclosed in the Shareholders
Agreement, or otherwise in writing or via electronic mail to Company, it has the
rights to grant the licenses herein and that the use of the Proprietary
Technology in accordance with the terms of this Agreement and will not infringe
or misappropriate the intellectual property or proprietary rights of any third
party.
(vii) Except as disclosed to Company in the Shareholders
Agreement, or otherwise in writing or via electronic mail, Evoke represents and
warrants that, to the best of its knowledge as of the Effective Date, no
proceedings have been instituted or are pending or threatened that challenge the
rights of Evoke in the Territory in respect of the Proprietary Technology or the
Licensed Marks.
(viii) Evoke represents and warrants that it will perform all
Evoke Services provided to Company under this Agreement in a professional and
competent manner in accordance with industry standards.
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(ix) Evoke represents and warrants that it will reasonably
cooperate with Company, and give Company any reasonable assistance necessary, to
give the notices and obtain the consents contemplated in Section 10.3(iii).
(x) Evoke shall comply with any applicable import and/or
export related clearances required to make the Proprietary Technology available
in the Territory.
10.2 Disclaimers by Evoke. OTHER THAN THOSE SET FORTH ABOVE, EVOKE
MAKES NO WARRANTIES TO ANY PERSON OR ENTITY WITH RESPECT TO ANY SOFTWARE,
PROPRIETARY TECHNOLOGY, DEVELOPED TECHNOLOGY, LICENSED MARKS, OR OTHER SUBJECT
MATTER OF THIS AGREEMENT, ALL OF WHICH ARE PROVIDED "AS IS," AND HEREBY
DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. TO THE
EXTENT THAT A PARTY MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW,
THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER
SUCH LAW.
10.3 Representations, Warranties and Covenants of Company. Without
limiting any other obligation of Company under this Agreement, Company
represents, warrants, covenants and agrees that:
(i) it is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation and it
has the corporate power and is authorized under its charter and organizational
documents to carry on its business as now conducted;
(ii) it has performed all corporate actions and received all
corporate authorizations necessary to execute and deliver this Agreement and to
perform its obligations hereunder and this Agreement is valid, binding and
enforceable against it (subject to applicable principles of equity and
bankruptcy and insolvency laws);
(iii) it will obtain and then maintain the power and authority
and all material governmental licenses, authorizations, consents and approvals
to be obtained in the Territory or applicable foreign country and in the
jurisdiction in which it is incorporated to own its assets, carry on its
business and to execute, deliver, and perform its obligations under this
Agreement;
(iv) it is in compliance with all requirements of any country
in the Territory and in the jurisdiction in which it is incorporated or to the
best of its knowledge, any other law (statutory or common), treaty, directive,
rule or regulation or determination of an arbitrator or of a governmental
authority, in each case applicable to or binding upon it or any of its property
or to which the Services or any of its business related to the Services is
subject, except where failure to be in compliance could not reasonably be
expected to cause a material adverse change in, or have a material adverse
effect upon, the operations, business, properties, condition (financial or
otherwise) or prospects of Company;
(v) there are no (A) non-governmental third parties or (B)
governmental or regulatory entities in the Territory or in the jurisdiction in
which Company is incorporated, who are entitled to any notice of the transaction
contemplated hereunder or whose consent is required to be obtained by Company
for the consummation of the transaction contemplated hereunder other than those
to whom notice has already been given or from whom consent has already been
obtained;
(vi) it shall obtain any applicable import and/or export
related clearances required to make the Proprietary Technology available in the
Territory;
(vii) it will only utilize the Proprietary Technology as
contemplated herein; and
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(viii) it shall use reasonable commercial efforts during the
term of this Agreement to develop, market, and distribute the Services and to
make certain that all Services distributed under the Licensed Marks will be
subject to the quality control measures contemplated by this Agreement.
11. Limitation of Liability. EXCEPT FOR ANY BREACH OF SECTIONS 2, 3, 4, 8
or 13 HEREOF, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, THE OTHER
PARTY'S CLIENTS OR CUSTOMERS, OR ANY OTHER ENTITY CLAIMING THROUGH OR UNDER THE
OTHER PARTY FOR ANY LOSS OF PROFITS, INCOME OR SAVINGS, LOSS OF DATA, OR OTHER
CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES INCURRED BY
SUCH PARTY (WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY)
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THESE
LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY.
12. User Data. To the extent that any non-personally identifiable
information or data is collected by either party from or about Company's
customers including, without limitation, both voluntarily-disclosed information
and any information obtained without the knowledge of Company's customers
(collectively "User Data"), such User Data shall be owned by Company. Subject
only to any applicable laws and regulations, Company grants to Evoke a
worldwide, perpetual, royalty-free, license, with right to sublicense, to use
all User Data. Upon request, Company shall promptly provide the Evoke with all
User Data in its possession in a mutually agreeable form. Such User Data may be
used by Evoke for any lawful business purpose, without a duty of accounting to
Company. Evoke agrees to comply with all applicable contractual obligations,
privacy and other nondisclosure policies, and legal obligations of Company,
including, policies, laws and regulations respecting the dissemination and use
of the User Data. Upon request, Company will furnish Evoke with a copy of all
applicable policies, rules, laws or regulations with respect to the foregoing.
13. Confidentiality. Each party recognizes the importance to the other of
the other's Confidential Information. In particular, Company recognizes that the
Proprietary Technology of Evoke (and the confidential nature thereof) are
critical to the business of Evoke and that it would not enter into this
Agreement without assurance that such Proprietary Technology and the value
thereof will be protected as provided in this Agreement. Accordingly, each party
(the "Receiving Party") agrees as follows as to its use and treatment of the
Confidential Information of other party (the "Disclosing Party"):
13.1 The Receiving Party agrees (i) to hold the Disclosing Party's
Confidential Information in confidence and to take all reasonable precautions to
protect such Confidential Information (including, without limitation, all
precautions the Receiving Party employs with respect to its own confidential
materials), (ii) not to divulge any such Confidential Information or any
information derived therefrom to any third person, (iii) not to make any use
whatsoever at any time of such Confidential Information except as expressly
authorized in this Agreement, and (iv) to comply with the U.S. Foreign Corrupt
Practices Act (regarding among other things, payments to government officials)
and all export laws, restrictions, national security controls and regulations of
the United States or other applicable foreign agency or authority, and not to
export or re-export, or allow the export or re-export of any such Confidential
Information or any copy or direct product thereof in violation of any such
restrictions, laws or regulations, or to any Group D:1 or E:2 country (or any
national of such country) specified in the then current Supplement No. 1 to Part
740, or in violation of the embargo provisions in Part 746 of the U.S. Export
Administration Regulations (or any successor regulations or supplement), except
in compliance with and with all licenses and approvals required under applicable
export laws and regulations, including, without limitation, those of the U.S.
Department of Commerce. Any employee, contractor or other person given access to
any such Confidential Information must have a legitimate "need to know" and
shall have
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<PAGE>
agreed to be bound by confidentiality provisions no less restrictive than those
set forth herein. Without granting any right or license, the Disclosing Party
agrees that the foregoing clauses (i), (ii) and (iii) shall not apply with
respect to information the Receiving Party can document (A) is in or (through no
improper action or inaction by the Receiving Party, agent or employee) enters
the public domain (and is readily available without substantial effort), (B) was
rightfully in its possession or known by it prior to receipt from the Disclosing
Party, (C) was rightfully disclosed to it by another person without restriction,
(D) was independently developed by persons without access to such information or
without use of any Confidential Information of the Disclosing Party or (E) was
required to be disclosed in accordance with applicable law provided that
reasonable efforts are undertaken by the Receiving Party to minimize the extent
of any required disclosure and to obtain an undertaking from the recipient to
maintain the confidentiality thereof. The Receiving Party must promptly notify
the Disclosing Party of any information it believes comes within any
circumstance listed in the immediately preceding sentence and will bear the
burden of proving the existence of any such circumstance by clear and convincing
evidence. Each party's obligations under this Section 13.1 (except under clause
(iv) of the first sentence) shall terminate, with respect to any particular
information, five (5) years after the date of disclosure of such information.
13.2 The Receiving Party acknowledges and agrees that due to the
unique nature of the Disclosing Party's Confidential Information, there can be
no adequate remedy at law for any breach of its obligations hereunder, that any
such breach may allow the Receiving Party or third parties to unfairly compete
with the Disclosing Party resulting in irreparable harm to the Disclosing Party,
and therefore, that upon any such breach or any threat thereof, the Disclosing
Party shall be entitled to appropriate equitable relief in addition to whatever
remedies it might have at law and to be indemnified by the Receiving Party from
any loss or harm, including, without limitation, attorney's fees in connection
with any breach or enforcement of the Receiving Party's obligations hereunder or
the unauthorized use or release of any such Confidential Information. The
Receiving Party will notify the Disclosing Party in writing immediately upon the
occurrence of any such unauthorized release or other breach. Any breach of this
Section 13 will constitute a material breach of this Agreement.
14. Limitations on Company's Rights.
14.1 Territorial Limitations. During the term of this Agreement,
Company shall not, directly or indirectly, or in whole or in part enter into an
agreement whereby it provides or agrees to provide Services to customers located
outside of the Territory, provided, however, that Company may provide or agree
to provide Services to customers outside of the Territory that: (i) while
maintaining a presence outside of the Territory, have their Principal Place of
Business within the Territory, (ii) are determined in writing by Evoke to
require services from a single location which cannot be provided by Evoke, or
(iii) with the prior written consent of Evoke, insist in writing on being
customers of Company, or that otherwise refuse in good faith to enter into an
agreement with Evoke for Services.
14.2 Spillover. The parties acknowledge that in any Internet-based
system it is not possible to exclude all inquiries or business from outside a
geographical territory. Evoke acknowledges that certain incidental promotion of
and/or access to the World Wide Web site for Company's business may occur from
outside of the Territory and agrees that, subject to the terms of this Section
14, the same will not constitute a breach of this Agreement. Company similarly
acknowledges that certain incidental promotion of and/or access to the World
Wide Web site for Evoke's business may occur from within the Territory and
agrees that, subject to the terms of this Section 14, the same will not
constitute a breach of this Agreement. Evoke agrees that in the event of an
inquiry from a customer whose Principal Place of Business is within the
Territory, it shall refer such customer to Company. Company agrees that in the
event of an inquiry from a customer whose Principal Place of Business is outside
the Territory, it shall refer such customer to Evoke. For the avoidance of
doubt, Company:
(i) shall be prohibited from making active sales outside the
Territory;
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<PAGE>
(ii) shall be free to respond to unsolicited approaches made
by potential customers to the Company only as set forth in Section 14.1 and
under all applicable consumer credit and financial services law in the territory
where the unsolicited approach originated; and
(iii) shall, to the extent that it is not permitted under
applicable laws to respond to unsolicited approaches from outside the Territory,
provide full details to Evoke or other Evoke companies in the territory where
the unsolicited approach originated.
14.3 Non-Competition. Except as otherwise agreed to in writing, the
license(s) granted in this Agreement shall in no event extend to allow any use
of the Proprietary Technologies, Developed Technologies, Confidential
Information, Software or Licensed Marks by Company in any way that is
competitive with the business of Evoke outside of the Territory. Such prohibited
uses shall include but not be limited to, uses in conjunction with or in ways
that directly or indirectly benefit any competitor of Evoke. If this Agreement
is terminated by Evoke pursuant to Section 9 above, Company will not directly or
indirectly engage in the business of providing Services, solutions, or related
services that are similar to, or compete with, the Services in the Territory for
one (1) year after termination of this Agreement.
15. Nonsolicitation. Except by subsequent written agreement of the
parties, during the term of, and for one (1) year after the termination of this
Agreement, neither party will, directly or indirectly, solicit the employment or
services of any employee or consultant of the other party with whom such party
has had contact or who became known to it in connection with this Agreement, or
encourage such employees or consultants to leave the other party; provided,
however, that the foregoing does not prevent a party from employing such persons
who contact a party on their own initiative without prior solicitation from such
party or to general advertisements or other general solicitations of employment
not directed to the other party's employees or consultants.
16. Independent Contractors. Company is acting under this Agreement as an
independent contractor. Nothing contained in this Agreement will be interpreted
or construed to characterize the relationship between Evoke and Company as a
company, partnership or franchise for any purpose. Neither party has the
authority to, and neither party shall, make any representation, prepare
documents or statements on behalf or in the name of the other party, give any
warranties, enter into a contract on behalf of the other party or obligate the
other party in any manner, unless expressly authorized to do so in writing by
the other party. Company agrees to indemnify and hold Evoke harmless from
damages and expenses which result from any unauthorized, wrongful or negligent
act on its part or the part of its agents or employees in connection with the
performance of this Agreement.
17. Unlawful Payments. Company will not use any payment or other benefit
derived from Evoke to offer, promise or pay any money, gift or any other thing
of value to any person for the purpose of influencing official actions,
decisions affecting this Agreement, while knowing or having reason to know that
any portion of such money, gift, or thing will, directly or indirectly, be
given, offered or promised to (i) an employee, officer or other person acting in
an official capacity for any government or its instrumentalities or (ii) any
political party, party official or candidate for political office.
18. Assignment. Except as otherwise provided herein, the rights and
obligations of each party under this Agreement are personal and may not be
assigned, directly or indirectly, either voluntarily or by operation of law,
without the prior written consent of the non-assigning party. Notwithstanding
the foregoing, any entity into which either party may be merged, or with which
it may be consolidated, or to which it may sell, or transfer its assets as a
whole or substantially as a whole, shall become the successor hereunder and be
vested with all rights and duties hereunder as was its predecessor without the
execution or filing of any instrument on the part of any party hereto (unless by
operation of law the successor would not be bound to perform its obligations
under this Agreement, in which case it will execute an agreement pursuant to
which it agrees to assume that party's obligations hereunder in form and
substance reasonably
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<PAGE>
satisfactory to the other party). Notwithstanding the foregoing, Evoke may
assign this Agreement without consent, but with written notice to Company, to
any Evoke subsidiary.
19. Additional Terms and Conditions.
19.1 Amendment and Waiver. Except as otherwise expressly provided
herein, any provision of this Agreement may be amended and the observance of any
provision of this Agreement may be waived (either generally or any particular
instance and either retroactively or prospectively) only with the written
consent of all of the parties.
19.2 Agent for Service of Process. Company agrees to appoint an
appropriate agent for service of process in the United States before or
concurrent with the Effective Date.
19.3 Notices. Notices under this Agreement shall be sufficient only
if personally delivered, delivered by a major commercial rapid delivery or
courier service with tracking capabilities or mailed by certified or registered
mail, return receipt requested to a party at its addresses set forth below or as
amended by notice pursuant to this subsection 19.3. All such notices shall be
addressed as follows:
If to Evoke: Evoke Communications, Inc.
1157 Century Drive
Louisville, CO 80027
Phone: (303) 928-2424
Fax: (303) 928-2832
Attn: Mr. James LeJeal
If to Company: Evoke Communications B.V.
c/o @viso
Tour Cedre Paris La Defense
7, allee de l'Arche
92677 Courbevoie, France
Phone: 33.1.7177.1631
Fax: 33.1.7177.3439
Attn: Mr. Andreas Brun
19.4 Entire Agreement. This Agreement, and all Attachments hereto,
and the documents referred to herein supersede all proposals, oral or written,
all negotiations, conversations, or discussions between or among the parties
relating to the subject matter of this Agreement and all past dealing or
industry custom.
19.5 Governing Law and Legal Actions. This Agreement shall be
governed by and construed under the laws of the State of Colorado without regard
to conflicts of laws provisions thereof and without regard to the United Nations
Convention on Contracts for the International Sale of Goods.
19.6 Arbitration. Any disputes arising among the parties in
connection with this Agreement shall be settled by the parties amicably through
good faith discussions upon the written request of any party. In the event that
any such dispute cannot be resolved through such discussions within a period of
sixty (60) days after delivery of such notice, the dispute shall be finally
settled by binding arbitration in London, England using the English language and
in accordance with the LCIA Rules then in effect. There shall be three neutral
arbitrators and the arbitrator(s) shall have the authority to grant specific
performance, and to allocate between the parties the costs of arbitration in
such equitable manner as the arbitrator(s) may determine. The prevailing party
in the arbitration shall be entitled to receive reimbursement of its reasonable
expenses incurred in connection therewith. Judgment upon the
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<PAGE>
award so entered in any court having jurisdiction or application may be made to
such court for judicial acceptance of any award and an order of enforcement, as
the case may be.
19.7 Force Majeure. No party hereto shall be responsible for any
failure to perform its obligations under this Agreement if such failure is
caused by acts of God, war, strikes, revolutions, lack or failure of
transportation facilities, laws or governmental regulations or other causes
which are beyond the reasonable control of such party. Obligations hereunder,
however, shall in no event be excused but shall be suspended only until the
cessation of any cause of such failure, and the corresponding obligations of the
other party shall be similarly suspended. In the event that such force majeure
should obstruct performance of this Agreement for more than thirty (30) days,
the parties hereto shall consult with each other to determine whether this
Agreement should be terminated. The party facing an event of force majeure shall
use its best endeavors in order to remedy that situation as well as to minimize
its effects. The party facing such event of force majeure shall notify the other
party by telefax immediately after its occurrence, to be promptly confirmed by
written notice.
19.8 Severability. If any provision of this Agreement is held
illegal, invalid or unenforceable by a court of competent jurisdiction, through
the arbitration process herein, or the parties otherwise mutually agree that a
provision is or becomes illegal or invalid then the meaning of said provision
shall be construed, to the extent feasible, so as to render the provision
enforceable, and if no feasible interpretation would save such provision, it
shall be severed from the remainder of this Agreement which shall remain in full
force and effect unless the severed provision is essential and material to the
rights or benefits received by either party. In such event, the parties shall
use best efforts to negotiate, in good faith, a substitute, valid and
enforceable provision or agreement which most nearly effects the parties' intent
in entering into this Agreement.
19.9 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
19.10 Nature of Rights. The license rights granted under Sections 2
and 3 above are, for the purposes of Section 365(n) of the U.S. Bankruptcy Code
(the "Code"), licenses of "intellectual property" within the meaning of Section
101 of the Code.
19.11 Currency. Any payments or license fees payable by Company to
Evoke under this Agreement shall be payable in U.S. dollars.
In Witness Whereof, the parties have executed this Agreement as of the
Effective Date. All signed copies of this Agreement shall be deemed originals.
Evoke Communications, Inc. Evoke Communications Europe, B.V.
By: By:
-------------------------------- --------------------------------
Name: Name: Andreas Brun
------------------------------
Title: Title: Chief Executive Officer
-----------------------------
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Attachment A
LICENSED MARKS; CONDITIONS; USE AND DISPLAY
1. Licensed Marks.
Mark: Type: Application No.:
-------------------------------------------------------
Evoke Word Mark ECTM - 1,551,480
-------------------------------------------------------
2. Permitted Combination of Licensed Marks with Company Marks.
2.1 Licensed Marks may be used in combination with Company
trademark(s), service mark(s) or trade name(s) on a case by case
basis with Evoke's prior written consent.
2.2 Additional text identifying Company may adjoin the Licensed Marks.
The text, fonts, and proportionality with logo sizes are to be co-
operatively determined by Evoke and Company.
3. Copyright Standards.
3.1 All collateral, media, and web pages of Company which display the
Licensed Marks (with the exception of corporate stationery) shall:
(i) where appropriate, list Evoke as the copyright holder or a
joint copyright holder, as the case may be;
(ii) note that Company is licensed to use the Evoke mark.
3.2 Some examples are as follows:
(C)2000 Evoke Communications, Inc. Company is licensed to use
the Evoke service mark(s) owned by Evoke.
(C)2000 Evoke Communications, Inc. The Evoke service mark(s)
is/are owned by Evoke and licensed to Company.
4. Trademark License Conditions.
4.1 Company acknowledges that the Licensed Marks are owned solely and
exclusively by Evoke. Company hereby acknowledges and agrees that, except as
set forth in this Agreement, Company shall have no rights, title or interest in
or to the Licensed Marks and that all use of the Licensed Marks by Company shall
inure to the benefit of Evoke. Company agrees not to apply for registration of
the Licensed Marks (or any mark confusingly similar thereto) anywhere in the
Territory. Evoke shall apply for and use reasonable efforts to pursue
registration of the Licensed Marks within the Territory at its expense, and, in
such event and if applicable, Company agrees to reasonably assist and cooperate
with Evoke in connection therewith at Evoke's expense.
4.2 Company understands and agrees that it does not have the right to
use the Licensed Marks in any manner that conflicts with the rights of any third
party. If, in Evoke's sole reasonable determination, Company's use of any
Licensed Marks infringes the rights of any third party, then Company agrees to
immediately terminate or modify such use in accordance with Evoke's
instructions. If Evoke reasonably believes that Company's use of a Licensed Mark
weakens or impairs Evoke's right in such Licensed Mark, then Evoke may request
that Company modify such use to avoid further weakening or impairment, and
Company agrees to take reasonable steps to modify such use in accordance with
Evoke's request.
<PAGE>
5. Use and Display of Licensed Marks.
5.1 Company acknowledges and agrees that the presentation and image of
the Licensed Marks should be of a uniform and consistent quality with respect to
all services, activities and products associated with the Licensed Marks.
Accordingly, subject to applicable law, Company acknowledges and agrees that all
use of the Licensed Marks by it shall be in accordance with Evoke's reasonable
standards for the Licensed Marks as generally in effect from time to time,
including the standards referred to immediately below and the quality standards
set forth in this Attachment A, provided that Evoke's judgment as to the
reasonableness of any such standards shall be determinative.
5.2 All usage by Company of the Licensed Marks shall include the
registered trademark symbol and shall be in the following form, as appropriate:
"[Licensed Mark](TM)", until the applicable trademark has been registered, or
"[Licensed Mark](R)", after the applicable trademark has been registered. All
literature and materials printed, distributed or electronically transmitted by
Company and containing the Licensed Marks shall include the following notice in
close proximity to the Licensed Marks:
[Licensed Mark] is a trademark of Evoke Communications, Inc. used
under license.
6. Quality Standards.
6.1 Company shall provide Evoke, at no expense to Evoke, with access
to the Services in the form that it intends to provide them under the Licensed
Marks to allow Evoke to sample and review the quality of the Services. If such
samples are of substantially equal quality to the services provided by Evoke,
Evoke shall approve the level of quality of such samples without delay.
Thereafter, upon the request of Evoke, Company shall furnish, at no expense to
Evoke, samples of the Services it intends to offer under the Licensed Marks to
allow Evoke to monitor the quality of the Services.
6.2 Evoke shall have the right to request that Company make any
reasonable changes and/or corrections to the Services provided by it under the
Licensed Marks as may be required to prevent an erosion of the goodwill
associated with the Licensed Marks, and to maintain the quality standard
prescribed in the Agreement, and, subject to applicable law, Company shall use
its best efforts to make and incorporate said changes or corrections at its sole
cost and expense.
6.3 Company agrees that it shall not engage, participate or otherwise
become involved in any activity or course of action that diminishes and/or
tarnishes the image and/or reputation of any Licensed Mark.
6.4 Evoke may inspect Company's operations and facilities, up to twice
annually, during normal business hours, upon reasonable prior notice, to the
extent necessary to ensure that Evoke's quality standards have been and are
being met by Company.
6.5 Company agrees to comply with all applicable laws in the Territory
in conducting its activities under this Agreement.
6.6 Company agrees to use the Licensed Marks in accordance with this
Agreement and only in connection with the Services.
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<PAGE>
Attachment B
DESCRIPTION OF SOFTWARE AND TECHNOLOGY
The Proprietary Technology and Software shall include code supporting Evoke's
Web Conferencing, Talking Email, Web Talk, Web Cast, Wireless Web Conferencing
and Web Collaboration services as of the Effective Date, and, in particular,
shall include the following:
Web content (documents and images)
Web server extensions
Logging/reporting code
Source code libraries
Encryption library
Process/System monitoring and event notification tools
Application servers, including but not necessarily limited to the following:
Credit card processing servers.
Bridge interface server.
Bulk/mass email sending tools.
Automated audio encoding tools.
Customer provisioning tools.
Automated document (PowerPoint(TM)) conversion tools.
Web client session management.
Call data processor servers.
Web text chat servers.
Automated stress testing tools
<PAGE>
Attachment C
COST SHARING ARRANGEMENT
1. Cost Sharing Arrangement. The parties hereto agree to combine their
research and development efforts and to share the costs, risks and rights
relating to the development, license, or other acquisition of Developed
Technology pertaining to the Services as the parties may agree to from time to
time, including both basic or experimental research and service-specific
research which the parties may agree to make part of the research and
development program. The parties hereto intend that the arrangement
contemplated by this agreement constitutes a "qualified cost sharing
arrangement" within the meaning of Treas. Reg. (S)1.482-7(b).
2. Cost Allocation.
2.1 Developed Technology. The parties intend that each party's share
of the Developed Technology shall be determined based upon the reasonably
anticipated benefits to be derived by the party receiving rights to any such
Developed Technology as a result of that party's right to use the Developed
Technology under the terms of this Agreement, whether in the form of additional
income generated or costs saved (collectively, "Benefits").
2.2 Specific Developed Technology. Unless otherwise agreed to by the
parties, all Specific Developed Technology Costs shall be allocated in their
entirety to the party to whom the particular Specific Developed Technology
pertains.
2.3 As of the time hereof, the parties believe that the Benefits to be
derived by each party as a result of their use of any Developed Technology are
best measured by the ratio which sales derived from the business activities in
which the Developed Technology is exploited by a party hereto bears to the total
ratio which sales derived from the business activities in which the Developed
Technology is exploited. The estimate of reasonably anticipated benefits to be
derived by each party as a result of exploitation of Developed Technology and
used to determine the ratio defined above shall be based upon projections which
shall include a determination of:
(a) the applicability of the Developed Technology to the business
operations of the party receiving rights to the Developed Technology within the
geographic area in which that party may use the Developed Technology under this
Agreement;
(b) a determination of the time period between the inception of
the Developed Technology and the receipt of benefits;
(c) a projection of the time over which benefits will be received;
and
(d) a projection of the benefits anticipated for each year in
which it is anticipated that the Developed Technology will generate benefits.
2.4 To the extent projections anticipate a significant variation among
the parties hereto in the timing of their receipt of benefits from the
exploitation of the Developed Technology, the Benefits shall be based upon the
present discounted value of such projected benefits to each party.
2.5 Projections shall, to the extent required, be based upon underlying
factors such as a projection of sales, all as of the date of this Agreement and
at the beginning of each fiscal year.
2.6 As necessary and appropriate, the parties will review the
projections and negotiate in good faith to amend the ratio by which the
Developed Technology Costs are shared between the parties, to account for
changes in economic conditions, the business operations and practices of the
parties, the technological needs of the parties, and the ongoing development of
Developed Technology under this Agreement.
<PAGE>
2.7 The amount of each party's Developed Technology Cost Reimbursement
for any Developed Technology under this Agreement shall initially be determined
by dividing the Developed Technology Costs of such Developed Technology among
the parties as follows:
Company * %
Evoke * %
(Each party's share of such Developed Technology Costs, a "Developed Technology
Cost Share").
2.8 The parties hereto agree to use a consistent method of accounting
to measure costs and benefits, and agree to translate foreign currencies on a
consistent basis.
3. Documentation.
3.1 Each party hereto shall maintain documentation regarding (i) the
methodology and data used to establish anticipated benefits as well as
allocations described in Section 2 of this Attachment C, as modified from time
to time by mutual agreement of the parties; (ii) the total amount of Developed
Technology Costs incurred pursuant to this Agreement; (iii) the portion of the
Developed Technology Costs borne by each party hereto; (iv) the accounting
method used to determine the costs and benefits of the Developed Technology to
each party (including the method used to translate foreign currencies), and, to
the extent such accounting method materially differs from United States
generally accepted accounting principles, an explanation of such material
differences; and (v) prior research relating to the Developed Technology.
3.2 Each party hereto which is required to file a United States income
tax return agrees to attach to such return a statement indicating that it is a
participant in a qualified cost sharing arrangement, and listing the other
controlled participants in the arrangement. If a party is not required to file a
U.S. income tax return, such party agrees to ensure that such a statement is
attached to Schedule M of any form 5471 or to any Form 5472 filed with respect
to that participant.
4. Payment of Developed Technology Cost Reimbursement.
4.1 Statement of Development Costs. Within thirty (30) days following
any agreement between the parties regarding the use by the parties of any
Developed Technology, Evoke and Company shall furnish each other a written
statement, certified by an officer of such company, setting forth the Developed
Technology Costs incurred by it relating to such Developed Technology.
4.2 Settlement. If the Developed Technology Costs of a party hereto
are less than its Developed Technology Cost Reimbursement, such party shall pay
such difference between such amounts to the other party hereto within thirty
(30) days after receipt of the statement set forth in Section 4.1. To the extent
not otherwise prohibited under applicable local law, any amounts owed by one
party to another pursuant to this Section 4 may be offset or netted against
other indebtedness among the parties. To the extent desired by any party hereto,
all payments under this Section 4 may be made in a timely manner so as to avoid
the imputation of interest, under applicable tax laws.
* Confidential treatment requested.
- C2 -
<PAGE>
Attachment D
PROPOSED DEPLOYMENT TIMETABLE
--------------------------------------------------------------------------------
Date Activity Charged Party
--------------------------------------------------------------------------------
20 March 2000 Telephony hardware installed Evoke
--------------------------------------------------------------------------------
31 March 2000 Evoke required hardware installed Evoke
--------------------------------------------------------------------------------
15 April 2000 Evoke software installed Evoke
--------------------------------------------------------------------------------
30 June 2000 French web site translation complete Evoke
--------------------------------------------------------------------------------
30 July 2000 Cegetel billing integration complete Evoke
--------------------------------------------------------------------------------
<PAGE>
Attachment E
MINIMUM PLATFORM
Web servers:
LE: Dell PowerEdge 2450 Single P-III 733Mhz
Linux 6.1
128MB RAM
PERC2 RAID array, 18 GB (10,000rpm) total storage after RAID
Intel NetStructure 7110 e-Commerce Accelerator (IPIVOT)
TR server (tr1)
Sun E420 dual 450MHz UltraSPARC-II, 1GB RAM, 2x18GB internal disk
(mirrored)
Real (media) server:
Sun Netra T1 440-MHz UltraSPARC-IIi; 1.0 GB mem; Dual 18 GB disk (mirrored)
External Storage: A1000 50 GB
Offline encoder, live encoder, italk server (oe1, le1 and it1)
IT: Dell PowerEdge 2300 Single P-III 600Mhz
NT 4, sp5
128MB RAM
PERC2 RAID array, 18 GB (10,000rpm) total storage after RAID
LE: Dell PowerEdge 2450 Dual P-III 733Mhz
NT 4, sp5
128MB RAM
PERC2 RAID array, 9 GB (10,000rpm) total storage after RAID
OE: Dell PowerEdge 2450 Dual P-III 733Mhz
NT 4, sp5
128MB RAM
PERC2 RAID array, 18 GB (10,000rpm) total storage after RAID
Bridge controller
Sun E420 dual 450MHz UltraSPARC-II, 1GB RAM, 2x18GB internal disk
(mirrored)
External A1000
Database server
Sun E450 2 CPU, 1GB RAM, 2x18GB internal disk (mirrored)
External storage: Sun A1000 50 GB RAID array
Bridge network switches (sw1-sw4)
(unknown quantity) Foundry Server Iron
Backup bridge controller/tr server
Sun E420 dual 450MHz UltraSPARC-II, 1GB RAM, 2x18GB internal disk
(mirrored)
<PAGE>
Attachment F
SUPPORT SERVICES AND SUPPORT SERVICE FEES
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------
Support Description Fee
---------------------------------------------------------------------------------------------------------
<S> <C> <C>
Network Operations Center Monitoring and first level support for system problems TBD
(until Evoke EU is up and running)
---------------------------------------------------------------------------------------------------------
Operations Support This provides second level support. The NOC turns to TBD
this team for more complex problems that are often caused
by errors in submission, data, etc.
---------------------------------------------------------------------------------------------------------
Engineering Support and Engineering bug fixes and second level support for TBD
Maintenance for Operational Operational Software; Product Upgrades for Operational
Software Software
---------------------------------------------------------------------------------------------------------
Localization Support for To be provided in Deployment Plan TBD
Operational Software
---------------------------------------------------------------------------------------------------------
Developed Technology As defined in this Agreement TBD
---------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Attachment G
EVOKE SERVICES FEES
--------------------------------------------------------------------------------
Position Rate*
--------------------------------------------------------------------------------
Project Manager $ */hour
--------------------------------------------------------------------------------
Senior Programmer $ */hour
--------------------------------------------------------------------------------
Junior Programmer $ */hour
--------------------------------------------------------------------------------
Senior Engineer $ */hour
--------------------------------------------------------------------------------
Junior Engineer $ */hour
--------------------------------------------------------------------------------
* Rates do not include travel and expenses, which will be billed to Company as
set forth in this Agreement.
* Confidential treatment requested.
