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MOTOROLA SOFTWARE LICENSE AGREEMENT
Motorola VoxGateway Software License v 1.0
THIS AGREEMENT, effective as of the last signature date hereto ("EFFECTIVE
DATE"), is entered into by and between Motorola, Inc., a Delaware corporation,
by and through the Internet Conductivity and Solutions Division of its
Communications Enterprise having offices at 55 Shuman Blvd, Naperville, IL 60563
(hereinafter "Motorola") and Intraco Systems, Inc., a Florida corporation, with
offices located at 3998 FAU Blvd, Suite 210, Boca Raton, FL 33431 (hereinafter
"Company"). Company and Motorola may be referred to herein as a Party or the
Parties as the case may require.
WHEREAS, Motorola is in the business of designing, developing, manufacturing,
selling and licensing equipment and software for the deployment of voice
technology services for wireless, wireline and Internet communication systems;
WHEREAS, Company desires to license Motorola VoxML(TM) Development Node Software
("Motorola Software") for development of VoxML applications, and Motorola
desires to license such Motorola Software in accordance with the terms and
conditions set for the in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises made herein, and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Parties agree as follows:
1. DEFINITIONS
As used in this AGREEMENT, the following terms shall have the following
meanings:
(a) "Affiliate(s)" means any corporation, company or
other entity which controls, is controlled by, or is
under common control with a Party. A corporation or
other entity shall be deemed to control another if it
owns or controls more than fifty percent (50%) of the
voting stock or other ownership interest of the
corporation or entity. References herein to Motorola
shall be deemed to include reference to its
affiliates unless otherwise specified or the context
otherwise requires. For the avoidance of doubt,
Motorola affiliates shall include all operating
divisions of Motorola, Inc.
(b) "Confidential Information" means confidential or
proprietary data or information of either party or
any of its Affiliates which is disclosed in oral,
written, graphic, machine recognizable, sample or any
other form, by one party to the other party, and
which is clearly designated or marked as confidential
or proprietary. For simplicity of administration, all
data or information provided from one party to the
other is confidential or proprietary unless indicated
otherwise. Confidential Information also includes
Motorola Software and Documentation. Notwithstanding,
anything to the contrary herein, the receiving party
shall have no obligation to preserve the
confidentiality of any information which (i) was
previously known to the receiving party free of any
obligation to keep it confidential; (ii) is
distributed to third parties by the disclosing party
without restriction; (iii) is or becomes publicly
available, by other than unauthorized disclosure by
the receiving party; (iv) is independently developed
by the receiving party; (v) is received rightfully
and without confidential limitation by the receiving
party from a third party; or (vi) is disclosed to a
governmental authority lawfully demanding
confidential information, provided that the
disclosing party provides prior written notice to the
other party and a reasonable opportunity to obtain a
protective order, and that confidentiality is
otherwise maintained by the parties after such
disclosure.
(c) "Commercial Use" means any direct or indirect use or
distribution of the Motorola Software by Company to
any third party, alone or bundled with other software
or hardware, for direct or indirect commercial or
strategic gain or advantage.
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(d) "Company Application Offerings" means, software
products created on the Motorola VoxML development
node or any other product developed by the Company
using any of the Motorola Software. Company offerings
will be defined in Appendix A which the parties may
mutually agree to modify in writing from time to
time.
(e) "Company Service Products" means software products or
services developed by the Company that contain or use
any of the Motorola Software and reside at the
location of the Company to provide a service to the
End-User.
(f) "Documentation" means textual and/or graphical
material, perceived directly by human and/or with the
aid of a device or machine, relating to Motorola
Software.
(g) "Designated CPU" means a single central processing
unit (CPU) used by an authorized Company employee and
located at Company's primary product development
facility.
(h) "End User" means any individual, company, firm, or
other entity that uses, licenses, or provides a
services or products that use the Company
Applications Offerings.
(i) "End User Documentation" means textual and/or
graphical material, perceived directly by human
and/or with the aid of a device or machine,
distributed by Company to an End User relating to the
Company Applications Offerings.
(j) "Error Correction" means any and all changes to the
Motorola Software that corrects the adverse effect of
a failure of the Motorola Software to perform any
function.
(k) "Internal Use" means use of Motorola Software within
Company's business or organization only by Company's
employees and not for resell to End-Users.
(l) "Object Code" means any software or computer
programs, or any part thereof, compiled or assembled
from the Source Code of the Motorola Software.
(m) "Major Release" means a version of the Motorola
Software that has substantial additional
functionality over earlier versions of the Motorola
Software and is labeled using a suitable designation
such as 2.x, 3.x, etc. wherein the first digit is the
major release number, and x is the minor release
number. For purposes of this Agreement, all minor
releases, (i.e., bug fixes and minor performance
enhancement) of a Major Release are considered the
same Major Release (i.e., versions 2.3, 2.2, 2.5, and
2.8 are the same Major Release; likewise 2.3 (for
instance) does not constitute a new Major Release
over 2.0).
(n) "Motorola Software" means all software or programs
delivered by Motorola to Company in Object Code,
Major Releases, Updates, Upgrades, enhancements,
modifications, additions, translations, and
compilations, or other software.
(o) "Updates" means all maintenance releases, error
corrections, revisions, bug fixes of the Motorola
Software.
(p) "Upgrades" means modifications made by Motorola to
the Motorola Software that substantially enhances the
functionality of the Motorola Software.
(q) "Voice Browser Software" means software that is
capable of interpreting instructions written in the
Voice Markup Language.
(r) "Voice Markup Language" means Motorola's VoxML Voice
Markup Language for creating voice or speech-enabled
applications.
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2. MOTOROLA GRANTS
2.1 OBJECT CODE LICENSE. Motorola grants to Company a worldwide,
irrevocable, non-exclusive, non-transferable, non-assignable,
royalty-bearing license to use the Object Code internally at
the Company's facilities for product development purposes and
to provide services to End Users provided that (i) Company
pays the sums set forth in Section 9 and (ii) the application
created with the Object Code are used with and fully
compatible with the then-current version of the Voice Markup
Language and remains compatible with subsequent versions of
the Voice Markup Language. Company is prohibited under this
license from disclosing, disassembling, or reverse engineering
the Object Code.
2.2 RESTRICTIONS. Unless otherwise provided herein, Company shall
not sell, lease, assign, share, pledge, or otherwise transfer,
in whole or in part, any right, license or obligation
hereunder. Motorola retains its right to utilize the Motorola
Software for other purposes and to license the Motorola
Software to other parties, without restriction.
2.3 NO OTHER RIGHTS GRANTED. Motorola retains all rights, title,
and interest in the Motorola Software, Motorola Confidential
Information, Documentation, and all copies thereof, including
all associated intellectual property rights including
copyrights, trade secrets rights, trademark rights, design
rights, patents rights and other proprietary and intellectual
proprietary rights. Except as otherwise expressly stated in
this Agreement, Company does not acquire any rights or
license, express or implied in the Motorola Software, the
Confidential Information, or Documentation.
2.4 THIRD-PARTY SOFTWARE. Company acknowledges that the Motorola
Software requires the following third-party software in order
to be executed; (i) a speech recognition engine; (ii) a speech
synthesis engine; and (iii) Microsoft Windows NT. Company
acknowledges that Motorola may not have the right nor the
ability to grant sublicenses to such software.
2.5 COMPANY'S GRANTS. Company hereby grants to Motorola a
perpetual, worldwide, non-exclusive, royalty-free, license,
with the right to sublicense, to use, reproduce, have made,
make, modify, compile, sell and distribute any portions of the
Error Corrections, and associated End User documentation of
the Motorola Software that it may suggest to Motorola in the
course of its development activities.
3. PROTECTION OF INFORMATION
3.1 INJUNCTIVE RELIEF. Company acknowledges that the Motorola
Software contains valuable proprietary information and trade
secrets and any improper use or disclosure of Motorola
Software will result in irreparable harm and significant
injury to Motorola for which monetary damages would be
inadequate. Company agrees that that Motorola may seek
temporary or permanent injunctive or other equitable relief
without the need to prove actual harm in order to protect
Motorola's interests.
3.2 LIMITED ACCESS. Company agrees to limit access to the Motorola
Software to only those employees of Company who need such
access in the performance of their jobs at Company and to take
appropriate action with those employees to preserve the
confidentiality of the Motorola Software and other
Confidential Information. Company agrees not to disclose,
transfer, provide, or otherwise make available in any form,
the Motorola Software, or any portion thereof, to any person
other than employees of Company, consultants and agents
without prior written consent of Motorola.
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3.3 RIGHT TO COPY. The Motorola Software may not be copied, in
whole or in part, except as necessary to use the Motorola
Software on the Designated CPU(s), and the media containing
the Motorola Software as provided by Motorola shall serve as
the only backup copy.
3.4 VERIFICATION. Upon Motorola's request, Company shall provide
to Motorola a signed certification (a) verifying the Motorola
Software is being used in accordance with the terms of this
Agreement; and (b) a listing of the locations and type of
Designated CPU(s) on which the Motorola Software is operating.
4. TRADEMARKS, TRADENAMES, AND SERVICE MARKS
4.1 NO USE OF MOTOROLA MARKS. Company shall not use any
trademarks, tradenames or service marks of Motorola, or any
word or symbol likely to be confused with any Motorola
trademark, tradename or service mark, either alone or in any
combination with another word or symbol, except that Company
can identify that its Company Offerings were created using
Voice Markup Language as follows "This product (or application
or service) was developed using Motorola's VoxML(TM) markup
language". Company shall also identify that VoxML and Motorola
are trademarks of Motorola, Inc.
4.2 ATTRIBUTION. At the request of Motorola, Company shall include
an attribution technology mark or statement adopted by and
provided by Motorola to indicate the presence or use of the
VoxML(TM) technology or language on all packaging,
documentation and marketing materials for Company Offerings or
Products. Such attribution technology mark shall have a
placement and size similar to marks of other technology
providers. In the event of no other marks, the placement and
size shall be determined by Company.
5. DELIVERY OF MATERIALS
5.1 Motorola will make the Motorola Software available to Company
via ftp or on CD-ROM media upon Company's direction
5.2 Motorola will deliver the Motorola Software within five (5)
business days of Motorola's receipt of notice and
documentation from Company that Company has received adequate
financing.
5.3 DOCUMENTATION. Company must include any documentation
detailing the additions and changes made by Company and the
date of such additions and changes.
5.4 ACCEPTANCE. The Motorola Software is deemed accepted by the
Company upon receipt.
6. CONFIDENTIALITY
6.1 EXCHANGE OF CONFIDENTIAL INFORMATION. From time to time during
the performance of this Agreement, the parties may deem it
necessary to provide each other with Confidential Information.
The parties agree:
(a) To maintain the confidentiality of such Confidential
Information and not disclose same to any third party,
except as authorized by the original disclosing party
in writing.
(b) To restrict disclosure of Confidential Information to
employees who have a "need to know". Such
Confidential Information shall be handled with the
same degree of care which the receiving party applies
to its own confidential information but in no event
less than reasonable care.
(c) To take precautions necessary and appropriate to
guard the confidentiality of Confidential
Information, including informing its employees who
handle such Confidential Information that it is
confidential and not to be disclosed to others.
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(d) That Confidential Information is and shall at all
times remain the property of the disclosing party. No
use of any Confidential Information is permitted
except as otherwise expressly provided herein and no
grant under any proprietary rights is hereby given or
intended, including any license implied or otherwise.
(e) To use such Confidential Information only as required
in performance of this Agreement.
6.2 TERMINATION. Upon any termination of this Agreement, the
receiving party agrees to return all Confidential Information
hereunder and further agrees to, as the disclosing party
directs, either destroy and certify the destruction of, or
return to the disclosing party within thirty (30) days
following the termination date, all complete or partial copies
of Confidential Information in the receiving party's
possession or control, including any copies receiving party
may have produced.
6.3 COPYING. The receiving party shall not make copies of
Confidential Information except as authorized by the
disclosing party. The receiving party shall preserve any
proprietary or confidentiality legends contained on any copy
of any item of Confidential Information supplied under this
Agreement.
6.4 RESPONSIBILITIES AS TO EMPLOYEES. The receiving party
acknowledges that Confidential Information may contain
information that is proprietary and valuable to the disclosing
party and that unauthorized dissemination or use of the
Confidential Information may cause irreparable harm to the
disclosing party. Therefore, the receiving party shall take
appropriate action, by instruction, agreement or otherwise,
with any employee permitted access to the Confidential
Information so as to enable it to hold the Confidential
Information in confidence or otherwise satisfy its obligations
under this Agreement.
6.5 SURVIVAL. Each party's obligations under this Agreement to
keep confidential and restrict use of the other party's
Confidential Information shall survive the expiration or
termination of this Agreement.
6.6 DISCLOSURE. Except as may be required by applicable law,
neither party shall disclose or publish the terms and
conditions of this Agreement or any amendments hereto without
the prior written consent of the other party.
6.7 INDEPENDENT DEVELOPMENT. Company acknowledges that Motorola
and/or third parties are, or may be developing software,
products, and services similar in functionality to those
developed hereunder by Company. Company agrees that the
receipt of Confidential Information by Motorola from Company
shall in no way prohibit Motorola and/or third parties from
developing such software, products and services, provided that
the provisions of this Section 8 regarding the ownership,
protection and security of Company's Confidential Information
have not been breached.
7. SUPPORT
7.1 TELEPHONE AND EMAIL SUPPORT. During the term of this
Agreement, Motorola and Company will make mutual support
available by telephone and email between Company and Motorola
personnel, respectfully, from 8:00am until 5:00p.m. (Central
time) each business day.
7.2 SET-UP AND INSTALLATION. Company agrees to notify Motorola
when it has procured the necessary hardware and software
components and Motorola will provide up to forty (40) hours of
on-site support for the installation and set-up of the
development node. Motorola shall provide its personnel at a
time that is mutually agreeable to both parties.
7.3 LIMITED SUPPORT OF MOTOROLA SOFTWARE. Company agrees that
Motorola shall not be responsible under any circumstances for
any field servicing whatsoever of the Motorola Software.
Motorola shall furnish to Company all Upgrades, Updates, Major
Releases, or Minor Releases as generally available or
commercially available by Motorola for the Motorola Software.
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8. CONSULTING SERVICES AND MARKETING SUPPORT
8.1 The parties agree to explore an arrangement in which Motorola
would provide consulting services to Company for voice
application services development, systems integration and
related services as desired by Company.
8.2 Motorola will provide such services at a rate not exceed $200
pr hour during the term of this Agreement upon execution of a
Consulting Agreement with Company.
8.3 Co-Marketing Support. As a licensed developer of Motorola
Software, Motorola agrees to enter into a Co-marketing
arrangement with Company according to the terms to be defined
in a Definitive Co-Marketing Agreement which will be entered
into by February 29th, 2000 or within 60 days of the execution
of this Agreement which ever is later.
9. FEES AND PAYMENTS
9.1 PAYMENTS. As partial compensation for the rights and licenses
granted in Section 2, Company agrees to pay Motorola license
fees as follows:
(a) A non-refundable, initial royalty fee of fifty
thousand dollars ($50,000.00) payable thirty (30)
days after shipment of the Motorola Software for the
initial configuration of up to fifty (50) ports.
(b) An initial set-up fee of twenty-five thousand dollars
($25,000) to be paid within thirty (30) days of the
shipment of the Motorola Software for up to forty
(40) hours of on-site assistance with set up and
installation of the VoxGateway Software.
(c) A maintenance and support fee of twenty-five thousand
dollars ($25,000) to be paid within thirty (30) days
of the shipment of the Motorola Software for
maintenance and support as described in Section 7
above for the first year of this Agreement, or in
quarterly payments of seven-thousand five hundred
dollars ($7,500) each due on the first day of each
calendar quarter. An additional maintenance and
support fee of twenty-five thousand dollars ($25,000)
will be due on each anniversary of this Agreement, if
renewed.
(d) Subsequent payments for deployments of additional
ports as described in Attachment A must be made
within thirty (30) days of deploying such additional
capacity.
9.2 TAXES. Company will pay all sales, use, or other taxes
applicable to this Agreement or the performance by Company of
its obligations under this Agreement.
9.3 LATE PAYMENTS. Where Motorola does not receive payment of any
sums due to it within 30 days of the due date thereof,
interest shall thereafter accrue on the sum due and owing to
Motorola at the rate of 1% per month calculated on a daily
basis, without prejudice to Motorola's right to receive
payment on the due date within such 30 day period.
9.4
10. TERM AND TERMINATION
10.1 TERM. This Agreement shall commence as of the Effective Date
and shall be for an initial term of one (1) year, and may be
renewed by the parties for successive terms of one (1) year
each, provided that each party executes a written consent as
to each one-year renewal period ninety (90) days in advance of
the expiration date of the previous term and Company pays the
fees set forth the renewal notice provided by Motorola.
10.2 RIGHT TO TERMINATE. Either party may terminate this Agreement
upon notice to the other if:
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(a) MATERIAL BREACH. The other party breaches a material
obligation under this Agreement and such breach
continues without care for a period of thirty (30)
days after notice.
(b) CHANGE OF OWNERSHIP. The direct or indirect ownership
or control of the other party that exists on the date
of this Agreement changes in any material manner that
adversely affect the rights of the terminating party,
including the acquisition of ownership or control by
a competitor of the other party. In such event, the
terminating party shall cooperate with the other
party to conduct an orderly termination of the
Agreement.
(c) CESSATION OF BUSINESS. The other party ceases to
conduct business in the normal course, files a
petition in bankruptcy, becomes insolvent, enters
into suspension of payments, moratorium,
reorganization or bankruptcy, makes a general
assignment for the benefit of creditors, admits in
writing its inability to pay debts as they mature,
suffers or permits the appointment of a receiver for
substantially all of its business or assets, or
avails itself of or becomes subject to any other
judicial or administrative proceeding that relates to
insolvency or protection of creditors' rights, or
institutes of any proceedings for the liquidation or
winding up of the business or for the termination of
its corporate charter.
10.3 RIGHTS AND OBLIGATIONS AT TERMINATION. Upon expiration or
termination of this Agreement for any reason:
(a) CEASE AND DESTROY. Each party will promptly cease
using and destroy and certify such destruction, or
return to the other party, all items that contain any
Confidential Information (as defined herein) of the
other party, except Motorola shall be permitted to
retain copies of the Improvements and Error
Corrections together with the associated Confidential
Information for the purpose of supporting existing
End Users.
(b) OUTSTANDING SUMS. Company shall remain obligated to
pay to Motorola any sums which have accrued due or
which subsequently accrue due hereunder and shall not
be entitled to reimbursement of any such sums paid,
or any proportion thereof. Motorola shall invoice
Company for any outstanding sums which may be owing.
10.4 CERTIFICATION. Within ten (10) days after termination or
expiration of this Agreement, Company will furnish to Motorola
a certificate that the original and all copies, in whole or in
part, in any form and whether or not modified or merged in
other materials, of the Motorola Software, Documentation, and
Confidential Information have been destroyed or returned to
Motorola.
10.5 EFFECT OF TERMINATION. Expiration or termination of this
Agreement or any license by either party shall not affect, the
accrued rights of the Parties arising in any way out of this
Agreement as at the date of termination or limit either party
from pursuing any other remedies available to it, including
injunctive relief. The parties rights and obligations under
Sections 6, 11, and 12 shall survive termination of this
Agreement.
11. DISCLAIMER OF WARRANTIES AND REPRESENTATIONS
11.1 THE MOTOROLA SOFTWARE IS PROVIDED UNDER THIS AGREEMENT ON AN
"AS IS" BASIS. THE COMPANY ACCEPTS ALL RISKS AND LIABILITIES
ASSOCIATED WITH ITS USE AND BEARS THE ENTIRE RISK AS TO THE
QUALITY AND PERFORMANCE OF THE MOTOROLA SOFTWARE. MOTOROLA
DISCLAIMS, ANY AND ALL WARRANTIES, CONDITIONS, OR
REPRESENTATIONS (EXPRESS OR IMPLIED), WITH RESPECT TO THE
MOTOROLA SOFTWARE, DOCUMENTATION, OR ANY PART THEREOF,
INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF
TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS OR
SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT LICENSOR KNOWS,
HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT
AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW,
BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF
DEALING. IN ADDITION, MOTOROLA EXPRESSLY DISCLAIMS ANY
WARRANTY OR REPRESENTATION TO ANY PERSON OR THIRD PARTY WITH
RESPECT TO THE MOTOROLA SOFTWARE, DOCUMENTATION OF ANY PART
THEREOF.
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11.2 The Motorola Software is not designed or intended and Motorola
expressly disclaims any representation or warranty (either
express or implied) for use in (1) online control of aircraft,
air traffic, aircraft navigation or aircraft communications;
or (2) in the design, construction operation or maintenance of
any nuclear facility.
12. INDEMNIFICATION
12.1 INDEMNIFICATION BY COMPANY. Company agrees to indemnify and
save harmless Motorola, its successors, assigns and Customers
from any and all expenses, liabilities, damages or other
losses, including court costs and attorney's fees, arising
from or by reason of any actual or claimed infringement of any
patents, trademarks, copyrights, maskworks, trade secrets or
other intellectual property rights by the Company Offerings,
the Object Code, the End User Documentation, Improvements,
modifications, and Error Corrections made to the Motorola
Software, or any part thereof; and to defend at its expense
any action based thereon with respect to the use, license, or
distribution of such software. If the use of any portion of
the Motorola Software provided under this Agreement is
enjoined as a result of such suit, Company will cease using
the enjoined Motorola Software. Company agrees that its
obligations to indemnify, as set forth in this Section 15.1,
shall survive the term of this Agreement.
12.2 INDEMNIFICATION BY MOTOROLA. Motorola agrees to indemnify and
save harmless Company, its successors, assigns and Customers
from any and all liabilities, damages or other losses finally
awarded, including court costs and attorney's fees, arising
from or by a claim that reproduction and/or use by Company of
the Source Code of the Motorola Software and Documentation
furnished hereunder within the scope of a license granted
hereunder directly infringes any U.S. patent, trademark,
copyright, maskwork or trade secret provided that: (i) Company
promptly notifies Motorola in writing of such claim and
Motorola has sole control of the defense and all related
settlement negotiation; and (ii) cooperates with Motorola, at
Company's expense, in defending or settling such claim;
Motorola shall have no liability for and Company shall
indemnify and hold Motorola harmless from and against any
claim based upon; (i) use of other than the then-current
unaltered version of the Motorola Software or Documentation
(ii) use, operation or combination of the Motorola Software or
Documentation with non-Motorola programs, data, equipment or
documentation if such infringement would have been avoided but
for such use, operation or combination; (iii) Company's or its
agent's activities after Motorola has notified Company that
Motorola believes such activities may result in infringement;
(iv) compliance with Company's detailed designs,
specifications, or instructions; (v) any modifications or
marking of the products, services, or documentation not
specifically authorized in writing by Motorola; or (vi) third
party software. The foregoing states the entire liability of
Motorola and the exclusive remedy of Company with respect to
infringement of any intellectual property rights. Motorola
agrees that its obligations to indemnify, as set forth in this
Section 15, shall survive the term of this Agreement. IN NO
EVENT WILL MOTOROLA BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES ARISING FROM INFRINGEMENT OR ALLEGED INFRINGEMENT OF
PATENTS, TRADEMARKS OR COPYRIGHTS, OR ANY RELATED ACTIONS.
12.3 LIMITATION OF LIABILITY. EXCEPT FOR PERSONAL INJURY,
MOTOROLA'S TOTAL LIABILITY, WHETHER AS A RESULT OF BREACH OF
CONTRACT, WARRANTY, LIABILITY IN TORT (INCLUDING NEGLIGENCE),
OR OTHERWISE, SHALL NOT EXCEED PAYMENTS MADE BY COMPANY TO
MOTOROLA AS PART OF THIS AGREEMENT. IN NO EVENT SHALL MOTOROLA
BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED
TO, LOSS OF PROFIT, REVENUES OR GOODWILL, LOSS OF USE OF
EQUIPMENT OR LOSS OF DATA, COST OF CAPITAL, COST OF SUBSTITUTE
PRODUCTS, FACILITIES OR SERVICES, DOWNTIME COSTS OR ANY CLAIM
AGAINST COMPANY BY ANY OTHER PARTY, EVEN IF SUCH DAMAGES WERE
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FORESEEABLE AND EVEN IF COMPANY WAS ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES, THE PARTIES EXPRESSLY AGREE THAT THE
FOREGOING LIMITATIONS ARE AGREED ALLOCATIONS OF RISK
CONSTITUTING IN PART THE CONSIDERATION FOR THIS AGREEMENT, AND
THAT SUCH LIMITATIONS SHALL SURVIVE THE DETERMINATION OF ANY
COURT OF COMPETENT JURISDICTION THAT ANY REMEDY PROVIDED
HEREIN OR AVAILABLE AT LAW FAILS OF ITS ESSENTIAL PURPOSE.
13. AUDIT
Company shall grant Motorola the right, upon reasonable notice
and at reasonable times, to audit Company's facilities to
review security measures for the Motorola Software and records
that pertain to the use of Motorola Software, for purposes of
verifying compliance with the terms set forth in this
Agreement.
14. NOTICES
14.1 FORM OF NOTICE. All notices required or permitted to be given
hereunder shall be in writing and shall be valid and
sufficient if dispatched by overnight courier, facsimile or
registered or certified mail, postage prepaid, in any post
office in the United States or Canada addressed as follows:
If to Motorola:
Motorola, Incorporated
55 Shuman Blvd
Naperville, IL 60563
Attn: Audra Bonaroti
If to Company:
____________________________
Attn: _____________________
14.2 WHEN EFFECTIVE. Either Party may change its address by a
notice given to the other Party in the manner set forth above.
Notice given as herein provided shall be construed to have
been given seven (7) days after the mailing thereof.
15. COMPLIANCE WITH LAWS AND FORCE MAJEURE
This Agreement and the obligations and performance of the Parties shall
be subject to all laws, both present and future, of any Government
having competent jurisdiction over the Parties hereto, and to orders,
regulations, licenses, directions or requests of any such Government,
or any department, agency or corporation thereof and contingencies as a
result of war, acts of public enemies, strikes or other labor
disturbances, fires, floods, acts of God, or any causes of like or
different kind beyond the control of the Parties, and the Parties
hereto shall be excused from any failure to perform any obligation
hereunder to the extent such failure is caused by any such law, order,
regulation, direction, request or contingency.
16. EXPORT
Company agrees that it will not in any form export, re-export, resell,
ship or divert or cause to be exported, re-exported, resold, shipped or
diverted, directly or indirectly, the Motorola Software, Company
Offering, or any technical data furnished by the other Party hereunder,
or the direct product thereof to any destination, person, or firm for
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which the United States Government or any agency thereof at the time of
export or re-export requires an export license or other governmental
approval without first obtaining such license or approval.
17. NO WAIVER
No failure or delay on the part of either Party in the exercise of any
right or privilege hereunder, including the right to cancel, shall
operate as a waiver thereof, nor shall any single or partial exercise
of such right or privilege preclude other or further exercise thereof
or of any other right or privilege.
18. GOVERNING LAW AND DISPUTE RESOLUTION
(i) GOVERNING LAW. The validity, performance, and all matters
relating to the effect of this Agreement and any amendment
hereto shall be governed by the laws of the State of Illinois,
without regard to its conflict of law rules and both Parties
shall submit to the venue and jurisdiction of the courts
within the State of Illinois.
(ii) ESCALATION. The parties will attempt to settle any dispute,
claim or controversy arising out of this Agreement through
consultation and negotiation in good faith and in a spirit of
mutual cooperation. If those attempts fail, then the dispute
will be mediated by a mutually-acceptable mediator to be
chosen by the parties within 45 days after written notice by
either Party demanding mediation. Neither party may
unreasonably withhold its consent to the selection of a
mediator, and the parties will share the costs of the
mediation (or other ADR) equally. Each party shall pay its own
attorneys' fees and other costs. The mediator shall be
knowledgeable about the telecommunications industry and
telecommunications law. By mutual agreement, however, the
parties may postpone mediation until each has completed some
specified but limited discovery about the dispute. The parties
may also agree to replace mediation with some other form of
ADR, such as neutral fact-finding or a minitrial.
(iii) ALTERNATE DISPUTE RESOLUTION ("ADR"). Any dispute which the
parties cannot resolve between them through negotiation,
mediation or some other form of non-binding ADR within 45 days
of the date of the initial demand for it by one of the Parties
may be submitted for final resolution to the courts of the
State of Illinois. The use of any ADR procedure will not be
construed under the doctrines of laches, waiver or estoppel to
affect adversely the rights of either party, and nothing in
this section will prevent either party from resorting to
judicial proceedings if (1) good faith efforts to resolve the
dispute under these procedures have been unsuccessful, or (2)
interim relief from a court is necessary to prevent serious
and irreparable injury to one part or to others.
(iv) Notwithstanding the foregoing, any disputes with respect to
intellectual property rights shall be submitted to the courts
and not be subject to the provisions of this section.
19. INDEPENDENT CONTRACTORS
The Parties shall perform activities under this Agreement only as
independent contractors and nothing contained herein shall be construed
to be inconsistent with this relationship or status. Under no
circumstances shall any personnel of either Party be considered to be
an employee or agent of the other Party. Nothing in this Agreement
shall be interpreted as granting either party the right or authority to
make commitments of any kind for the other, implied or otherwise,
without prior review and written agreement. This Agreement shall not
constitute, create, or in any way be interpreted as a joint venture,
partnership or formal business organization of any kind.
20. PUBLICITY
All notices to third parties and all other publicity, including press
releases, public announcements, advertisements or marketing, or
promotional materials, concerning the terms and conditions with regard
to this Agreement shall be jointly planned and coordinated by and
between the Parties. Neither of the Parties shall act unilaterally in
<PAGE>
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this regard without the prior written approval of the other Party.
Neither Party may disclose either the existence or the terms and
conditions of this Agreement or the details of the relationship between
the Parties without the other Party's consent. As appropriate, a
mutually-approved press release may be issued in the future.
21. CAPTIONS
The captions used in this Agreement are for convenience of reference
only and are not to be used in interpreting the obligations of the
Parties under this Agreement.
22. NEGOTIATION
This Agreement is the result of negotiation between the Parties and,
accordingly, shall not be construed for or against either Party
regardless of which party drafted this Agreement or any portion
thereof.
23. ASSIGNMENT
Neither party shall directly or indirectly assign its rights or
delegate its duties under this Agreement without the prior written
consent of the other. Notwithstanding any other provision herein, if
either Party or substantially all of the business of either Party, is
acquired by, merged with, or transferred or sold to, another entity or
individual, all rights and obligations of this Agreement will be
binding on that new entity or individual and the acquiring or merging
entity or individual shall, by its acquisition or merger, become a
Party to this Agreement and shall be treated for all purposes hereunder
as the acquired Party.
24. GOVERNMENT POLICIES
The terms of this Agreement shall prevail over any U.S. Government
procurement policy, regulation or contract clause relating to rights in
computer software. In the event that Company elects to distribute
Company products based on or derived from the Motorola Software to any
U.S. federal, provincial, state, local government or foreign government
(collectively, "Government"), or to a contractor selling to a
Government customer, Company does so solely at its own option and risk
and agrees not to obligate Motorola as a subcontractor or otherwise to
such. Company remains solely and exclusively responsible for compliance
with all statutes, regulations and clauses governing sales to
Government or to a contractor selling to a Government customer.
Motorola makes no representations, certifications or warranties
whatsoever with respect to the ability of its goods, services or prices
to satisfy any such statutes, regulations or clauses. Company agrees to
affix to all Company products based on or derived from the Motorola
Software the following Restrictive Rights Legend for all government
sales: "Government Users: If you are a U.S. Government user, then the
Software is provided with "RESTRICTED RIGHTS" as set forth in
subparagraphs (c) (1) and (2) of the Commercial Computer
Software-Restricted Rights clause at FAR 52 227-19 or subparagraph (c)
(1) (ii) of the Rights in Technical Data and Computer Software clause
at DFARS252.277-7013, as applicable."
25. CUMULATIVE REMEDIES
Except as otherwise provided herein, if either party breaches this
Agreement, the non-breaching party shall have the right to assert all
legal and equitable remedies available.
26. SEVERABILITY AND SURVIVABILITY
26.1 SEVERABILITY. In the event any one or more of the provisions
of this Agreement is held to be unenforceable or invalid under
applicable law: (i) such unenforceability or invalidity shall
not affect any other provision of this Agreement; (ii) this
Agreement shall be construed as if said unenforceable or
invalid provision had not been contained herein; and (iii) the
parties shall negotiate in good faith to replace the
unenforceable or invalid provision by such as has the effect
nearest to that of the provision being replaced.
26.2 SURVIVABILITY. The parties agree that where the context of any
provision indicates an intent that it shall survive the term
of this Agreement, then it shall survive.
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27. AUTHORITY
Each party hereto represents and warrants that (i) it has obtained all
necessary approvals, consents and authorizations of third parties and
governmental authorities, if applicable, to enter into this Agreement
and to perform and carry out its obligations under this Agreement, (ii)
the persons executing this Agreement on its behalf have express
authority to do so, and, in so doing, to bind the party thereto; (iii)
the execution, delivery, and performance of this Agreement does not
violate any provision of any bylaw, charter, regulation, or any other
governing authority of the party; and (iv) the execution, delivery and
performance of this Agreement has been duly authorized by all necessary
partnership or corporate action and this Agreement is a valid and
binding obligation of such party, enforceable in accordance with its
terms.
28. ENTIRE AGREEMENT
This Agreement and Exhibits hereto constitute the entire understanding
between the parties concerning the subject matter hereof and supersede
all prior discussions, agreements and representations, whether oral or
written and whether or not executed by Motorola and Company. In case of
inconsistencies between the terms of this Agreement and the Exhibits,
this Agreement shall govern and supersede the Exhibits. Orders issued
pursuant to this Agreement shall be deemed to be governed by the terms
of this Agreement, and in case of inconsistencies between the terms of
this Agreement and such Orders, this Agreement shall supersede, whether
or not this Agreement is specifically incorporated by reference into
such Orders. This Agreement or any part or provision hereof shall not
be deemed waived, amended, or modified by either party unless such
waiver, amendment or modification is in writing and executed by
authorized representatives of both parties.
IN WITNESS WHEREOF, the Parties have caused this AGREEMENT to be executed as of
the last signature date hereto.
MOTOROLA, INC. COMPANY, INC.
By: /s/ MARIA MARTINEZ By: /s/ WALT NAWROCKI
---------------------------- --------------------------------
Name: Maria Martinez Name: Walt Nawrocki
Title: VP & GM, ICSD Title: CEO
Date: Date: 1/18/00
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Attachment "A"
PER-PORT ROYALTY SCHEDULE
Pre-paid for first 50 ports
$110/port for 50 - 250 ports
$100/port for 251 - 500 ports
$ 75/port for 501 - 1,000 ports
