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EXHIBIT 10.7
PRIMAL
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Revised February 15, 2000
Table of Contents
-----------------
MASTER SOFTWARE LICENSE AGREEMENT............................................ 2
SCHEDULE 1.................................................................. 7
ATTACHMENT 1............................................................... 9
ATTACHMENT 2............................................................... 10
ATTACHMENT 3............................................................... 11
EXHIBIT A................................................................ 14
EXHIBIT B................................................................ 16
EXHIBIT C................................................................ 17
EXHIBIT D................................................................ 18
ATTACHMENT 4............................................................... 19
EXHIBIT A................................................................ 21
EXHIBIT B................................................................ 22
ATTACHMENT 5............................................................... 23
ATTACHMENT 6............................................................... 24
ATTACHMENT 7............................................................... 25
ATTACHMENT 8............................................................... 26
SCHEDULE 2.................................................................. 27
ATTACHMENT 1............................................................... 30
EXHIBIT A................................................................ 31
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PRIMAL
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Revised February 15, 2000
MASTER SOFTWARE LICENSE AGREEMENT
THIS MASTER SOFTWARE LICENSE AGREEMENT ("Agreement") is made and entered
into as of (DATE), by and between Wireless Billing Systems, d.b.a. Primal
Billing Solutions, a California corporation ("PRIMAL") with its principal place
of business located at 18881 Von Karman Avenue, Irvine, California 92612, and
(CUSTOMER NAME) a company incorporated in (LOCATION INCORPORATED) ("Licensee")
with its principal place of business located at (ADDRESS).
On the terms and conditions set forth herein, Licensee desires to obtain
from PRIMAL, and PRIMAL desires to grant to Licensee, a license to use a copy of
the computer programs listed on attachments and exhibits included in Schedule 1
attached hereto and in supplements to this Agreement ("Schedule" or
"Schedules"), executed from time-to-time by PRIMAL and Licensee ("Programs") and
a copy of the related documentation listed on the applicable Schedules and
Attachments ("Documentation"). The Programs and the Documentation collectively
are referred to as the "Software." This Agreement consists of this Master
Software License as well as all Schedules, Attachments, Exhibits, and Addenda to
this License currently or subsequently incorporated herein.
NOW THEREFORE, in consideration of the mutual promises and covenants set
forth herein, PRIMAL and Licensee agree as follows:
1. Grant of License
----------------
1.1 PRIMAL, or its third-party licensor(s), hereby grants to Licensee, and
Licensee hereby accepts from PRIMAL, or its third-party licensor(s), subject to
the terms and conditions of this Agreement, a personal, nontransferable,
nonexclusive license (the "License") (i) to use copies of each Program, in
object code in executable form only, solely at the location specified on the
Attachments in Schedule 1 or any supplements hereto with respect to such Program
(the "Designated Location") for Licensee's data processing needs and (ii) to use
copies of the Documentation solely for use in connection with the use of the
Programs authorized hereunder. Additional locations shall require additional
licenses and license fees. The License includes the right to copy the Software
as reasonably required by Licensee solely for its own internal data processing
needs at the Designated Location and for archival, back-up and disaster recovery
purposes.
1.2 Licensee agrees that it is an end user ("End User"), in that it is using
the Software solely for its own internal purposes, and that the License does not
include any right to use or authorize the use of the Software for any purpose
other than to fulfill the internal data processing needs of Licensee. Licensee
acknowledges and agrees that it has no right whatsoever to license the use,
reproduction or distribution of the Software by any person, firm or entity and
Licensee has no right to use any of the Software to provide data processing
services to any third party on a service bureau or time-sharing basis or
otherwise.
1.3 PRIMAL shall not provide Licensee with a copy of, and Licensee acquires no
right of any kind with respect to, any source code for any of the Programs.
Licensee agrees not to, and shall insure that its employees, contractors, or
agents do not, create or attempt to create, by de-compiling, disassembling,
reverse engineering or otherwise, the source code for any of the Programs.
Licensee acknowledges and agrees that it has no right whatsoever to modify the
Software or any portion thereof in any manner.
1.4 Licensee acknowledges and agrees that any third-party licensor shall be a
third-party beneficiary of all of the provisions of this License and shall be
entitled to enforce such terms.
2. Term and Termination
--------------------
2.1 The term ("Term") of this Agreement shall begin on the date 2 first stated
above, and continue so long as any Schedule hereto remains in effect hereunder
or until this Agreement is terminated pursuant to any provision hereof.
2.2 Except as otherwise provided for in the applicable Schedule attached
hereto, either party shall be entitled to terminate this Agreement (and pursue
all of its rights hereunder or at law or in equity) upon written notice to the
other party in the event of a breach by such other party of any of its
obligations hereunder and the failure of such other party to cure any such
breach within 30 days from receipt of written notice of such breach, unless such
breach by its nature cannot be cured, in which event the non-breaching party
shall be entitled to terminate this Agreement upon written notice to the other
party without any opportunity to cure.
2.3 This Agreement shall immediately terminate upon the occurrence of any of
the following events: a) filing by or against Licensee of a proceeding under any
bankruptcy or similar law, unless such proceeding is dismissed within 60 days
from the date of filing; (b) the making by Licensee of any assignment for the
benefit of creditors; (c) the filing by or against Licensee of a proceeding for
dissolution or liquidation, unless such proceeding is dismissed within 60 days
from the date of filing; (d) the appointment of or the application for the
appointment of a receiver, trustee or custodian for all or part of the assets of
Licensee, unless such appointment or application is revoked or dismissed within
60 days from the date of appointment or application whichever is earlier; (e)
the attempt by Licensee to make any adjustment, settlement, or extension of its
debts with its creditors generally; (f) the insolvency of Licensee; or (g) the
filing or recording of a notice of lien or the issuance or the obtaining of a
levy of execution upon or against a material portion of the assets of Licensee,
unless such lien or levy of execution is dissolved within 60 days from the date
of filing or recording.
2.4 Upon termination or expiration of this Agreement for any reason (including,
without limitation, discontinuation of use of the Software by Licensee), the
rights of Licensee to
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PRIMAL
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Revised February 15, 2000
possess or use the Software shall end, and Licensee shall immediately, at
PRIMAL's sole option, either deliver to PRIMAL or destroy the original Software
and all copies of the Software or any portion thereof in its possession or
control. Within 20 days following the date of such termination or expiration, an
officer of Licensee shall certify in writing to PRIMAL that the terms of this
Section 2.4 have been complied with.
2.5 Escrow provisions for the source code for the Programs are included in
Schedule 2 attached to this Agreement and incorporated herein.
3. Licensee Fees/Payment
---------------------
3.1 The fees ("Fees") for the License granted hereunder are specified in the
applicable Schedule attached hereto as modified by any applicable supplement,
which fees shall be paid by Licensee as specified in such Schedule or
supplement. All payments shall be made in United States currency.
3.2 In addition to any other amounts due, Licensee shall pay to or reimburse
PRIMAL the amount of any sales, use, excise, property or other federal, state,
local or foreign taxes, duties, tariffs or other assessments (other than any tax
based solely on PRIMAL's net income) and related interest and penalties which
PRIMAL is at any time obligated to pay or collect in connection with or arising
out of the transactions contemplated by this Agreement.
3.3 Expenses. All out-of-pocket expenses incurred in installation, training,
--------
ongoing maintenance and other support (telephone charges for ongoing support,
travel, etc.) will be billed to Licensee which amounts shall be promptly paid by
Licensee.
3.4 In the event PRIMAL does not receive any amounts from Licensee on or before
the date on which such amounts are due and payable, such outstanding amounts
shall bear interest at the rate of 1.5% per month, or the maximum rate permitted
by law, until payment is received. Amounts received by PRIMAL shall first be
credited against any unpaid interest, and accrual of such interest shall be in
addition to and without limitation of any and all additional rights or remedies
which PRIMAL may have hereunder or at law or in equity.
4. Proprietary Rights
------------------
4.1 Licensee acknowledges that PRIMAL considers that the Software constitutes a
valuable proprietary product and trade secret of PRIMAL embodying substantial
creative efforts and confidential information. Licensee obtains pursuant to this
Agreement only the right to use copies of the Software on the terms and
conditions set forth herein and that no right, title or interest in or to the
Software or any copies thereof or any copyrights, trademarks or other
proprietary rights related to the Software are transferred to Licensee. Licensee
will use its best efforts and will take all reasonable steps to protect the
confidentiality of the Software, including but not limited to agreeing not to
sell, transfer, publish, disclose, display or distribute the Software except as
specifically authorized by this Agreement (collectively "Unauthorized Use or
Disclosure").
4.2 For purposes of this Agreement, confidential information ("Confidential
Information") shall mean with respect
to each party, all proprietary information of such party, including without
limitation, inventions, concepts, products, trade secrets, hardware, processes,
client lists, business and financial data, technical know-how, software programs
(including source code and object code) designated by such party in writing as
Confidential Information, or is otherwise subject to reasonable efforts to
maintain the secrecy thereof, provided Confidential Information shall not
include information that (i) was in the possession of the receiving party
without any obligation of confidence prior to disclosure of such information by
the other party, (ii) is or becomes publicly available through no fault of the
receiving party or (iii) was developed by the receiving party independent of the
activities contemplated by this Agreement. Each party agrees to protect and
treat as confidential the other party's Confidential Information and not to
disclose Confidential Information to third parties (other than to employees with
a "need to know" or independent contractors who have executed a standard form of
non-disclosure agreement with Licensee containing provisions at least as
protective as those set forth in this Section 4, or to use such Confidential
Information for any purposes whatsoever other than to perform the work
contemplated by this Agreement. Notwithstanding the foregoing, the receiving
party will advise employees having access to Confidential Information of the
existence of this Agreement and advise each of them of their obligation to
maintain the secrecy of the Confidential Information.
4.3 Licensee shall not remove, alter, cover or obfuscate any copyright notice,
trademark or other proprietary rights notice placed by PRIMAL in or on the
Software or any portion thereof and shall insure that all such notices are
reproduced on all copies of the Software or any portion thereof made by
Licensee. Licensee shall comply with reasonable directions given by PRIMAL from
time-to-time regarding the form and placement of copyright notices and other
proprietary rights notices on the Software or any portion thereof.
4.4 Licensee shall promptly notify PRIMAL of any known Unauthorized Use or
Disclosure of the Software and will cooperate with reasonable requests of PRIMAL
in any litigation brought by PRIMAL against third parties to protect its
proprietary rights, provided that PRIMAL shall indemnify Licensee against all
out-of-pocket expenses (including legal costs) incurred by Licensee at PRIMAL's
direction arising out of such cooperation. Licensee's compliance with the
provisions of this section shall not be construed as a waiver of any of PRIMAL's
rights hereunder.
4.5 Because of the unique and proprietary nature of the Software, it is
understood and agreed that PRIMAL's remedies at law for a breach by Licensee of
its obligations under this Section 4 will be inadequate and that PRIMAL shall,
in the event of any such breach, be entitled to equitable relief (including,
without limitation, injunctive relief and specific performance) without any
requirement to post a bond as a condition of such relief, in addition to all
other remedies provided under this Agreement or available to PRIMAL at law.
5. Warranties
----------
5.1 PRIMAL warrants that (i) it owns the copyright in the Software or that it
has obtained a right to use and sub-license it (ii) the provision and
installation of the Software and the
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PRIMAL
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Revised February 15, 2000
Documentation does not contravene or breach in any way any contract or agreement
between PRIMAL and the third- party licensors or any other third-party
suppliers.
5.2 So long as Licensee maintains an in-force, paid-up annual maintenance
agreement ("Maintenance Agreement") with PRIMAL, PRIMAL warrants that the
Program shall perform substantially in accordance with the functional
performance specifications contained in the related Documentation. PRIMAL shall
(i) provide Licensee with a revised copy of the Program reflecting any
correction or modification which is incorporated by PRIMAL into its standard
version of such Program and shall provide Licensee with any new standard version
of the Program; (ii) use commercially reasonable efforts to correct any failures
of the latest version of the Program to perform substantially in accordance with
the functional performance specifications contained in the related
Documentation, provided PRIMAL is given written notice by Licensee of such
failures and such failures can be recreated by PRIMAL. PRIMAL DOES NOT WARRANT
THAT THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS OR THAT OPERATION OF THE
SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS PROVIDED IN THIS SECTION
5, PRIMAL DOES NOT MAKE BY VIRTUE OF THIS AGREEMENT, AND HEREBY EXPRESSLY
DISCLAIMS, ANY REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE
SOFTWARE OR THE SERVICES OF PRIMAL, INCLUDING, WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5.3 Any hardware ("Hardware") or third-party software ("Third-Party Software")
required or recommended for the use of the Software shall be, upon request of
Licensee, ordered on behalf of Licensee by PRIMAL and billed separately. PRIMAL,
upon payment in full of the purchase price for the Hardware and Third-Party
Software will assign to Licensee the title to the Hardware and license and any
manufacturer's warranties for any such Hardware and/or Third-Party Software.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT OR ON AN ATTACHED EXHIBIT OR
ATTACHMENT, PRIMAL MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO ANY OTHER MATTER
WITH RESPECT TO THE HARDWARE OR THIRD-PARTY SOFTWARE WHATSOEVER, INCLUDING,
WITHOUT LIMITATION, ITS MERCHANTABILITY OR FITNESS OR CAPACITY OR DURABILITY FOR
ANY PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE
HARDWARE OR THIRD-PARTY SOFTWARE OR CONFORMITY THEREOF TO THE PROVISIONS AND
SPECIFICATIONS OF ANY PURCHASE ORDER OR ORDERS RELATING THERETO. PRIMAL is not
responsible for any liability, claim, loss, damage or expense of any kind
(including strict liability in tort), caused directly or indirectly, by the
Hardware or Third-Party Software or any inadequacy thereof for any purpose, or
any deficiency or defect therein, or the use or maintenance thereof, or any
repairs, servicing or adjustments thereto; or any delay in providing or failure
to provide any part thereof, or any loss of business, or any damages whatsoever
and howsoever caused by the Hardware or Third-Party Software except for any
loss or damage caused by the gross negligence or willful misconduct of PRIMAL.
In no event is PRIMAL responsible for indirect, consequential, incidental or
special damages.
6. Maintenance
-----------
The warranty obligations of PRIMAL under Section 5.2 above are contingent
upon Licensee maintaining a current, paid-up Maintenance Agreement with PRIMAL
under the terms specified in Attachment 3 to Schedule 1 of this Agreement or any
appropriate supplement to this Agreement or upon the terms of a separately
executed PRIMAL Master Maintenance Agreement. Any maintenance agreement or
Master Maintenance Agreement must be renewed on an annual basis at the then-
current rates which are to be prepaid by Licensee at the time of the execution
of this Agreement for the initial year or at the commencement of any subsequent
renewal period ("Maintenance Program").
7. Programming Services
--------------------
Any modifications or revisions to the Software, including development of
custom software ("Custom Software"), performed by PRIMAL shall be subject to the
terms and conditions specified in the Custom Software Agreement included as
Attachment 4 to Schedule 1 of this Agreement or in a separate agreement. Either
software development agreement must be separately signed by an authorized
representative of both Licensee and PRIMAL. Such software modifications are not
within the scope of the Maintenance Program referenced above unless expressly
agreed to in writing by an authorized representative of PRIMAL.
8. Exclusion of Consequential Damages;
-----------------------------------
Limitation of Liability
-----------------------
8.1 PRIMAL SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO LICENSEE FOR
CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF
OR RELATED TO THE SOFTWARE OR THE TRANSACTIONS CONTEMPLATED HEREIN, EVEN IF
PRIMAL IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. IN NO EVENT
SHALL PRIMAL'S LIABILITY TO LICENSEE HEREUNDER (WHETHER BASED ON AN ACTION OR
CLAIM IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATED TO ANY PROGRAM
LICENSED HEREUNDER EXCEED THE TOTAL LICENSE FEE ACTUALLY PAID BY THE LICENSEE
FOR THE PROGRAM, PROGRAMS, OR SERVICES OUT OF WHICH SUCH LIABILITY AROSE.
8.2 Licensee acknowledges and agrees that PRIMAL has no control over the nature
of Licensee's business activities, its network switch(es), its other support
systems, or over the quality of telecommunications lines or the content of the
data transmitted, or any corruption, loss or damage to such data. Licensee
agrees to indemnify and hold PRIMAL harmless from any and all claims, suits or
damages by third parties arising out of the use of the Software except to the
extent such claims, suits or damages are covered under Section 10 hereof and
except to the extent PRIMAL's gross negligence or willful misconduct contributed
thereto.
9. Security Precautions
--------------------
To prevent loss or damage to data as a result of malfunctions, errors or
defects of or in the Software, Licensee will regularly maintain and verify
integrity of back-up copies ("Back-ups") of all data and programs used in
connection with the Software. Licensee is solely responsible for any loss or
damage caused by a failure to maintain and verify proper daily and other Back-
ups.
10. Proprietary Rights Indemnity
----------------------------
Subject to Licensee's fulfillment of its
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PRIMAL
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Revised February 15, 2000
obligations under this Section 10 and the dollar limitations set forth in this
section, PRIMAL will hold, to the extent set forth in this section, Licensee
harmless, and at its own expense defend or settle any claim, suit, action, or
proceeding brought against Licensee to the extent that such claim, suit, action
or proceeding is based on a claim that the latest version of the Software or any
portion thereof infringes or constitutes wrongful use of a valid patent,
copyright or trade secret right protected under the laws of the United States,
any state in the United States, or laws of any foreign jurisdiction where PRIMAL
does business (a "Legally Protected Proprietary Right" or "LPPR"). Licensee
shall notify PRIMAL in writing of any such claim promptly after Licensee first
learns of it, and shall provide PRIMAL with such cooperation and assistance as
PRIMAL may reasonably request from time-to-time in connection with the defense
thereof. PRIMAL shall have sole control over any such suit or proceeding
(including choice of counsel and, without limitation, the right to settle on
behalf of Licensee on any terms PRIMAL deems desirable in the sole exercise of
its discretion). Subject to Licensee's fulfillment of its obligation under this
Section 10, PRIMAL shall pay all damages and costs finally awarded against
Licensee (or payable by Licensee pursuant to a settlement agreement) in
connection with such suit or proceeding, provided, however, that PRIMAL's
obligation to pay such damages and costs on behalf of Licensee shall not exceed
the price Licensee paid PRIMAL for such software. PRIMAL shall not enter into
any settlement agreement pursuant to this Section 10 in excess of such amount
without the prior written consent of Licensee. In the event that the use of the
Software or any portion thereof as permitted hereunder is held to infringe or
constitute wrongful use of any LPPR and Licensee's right to use such Software is
enjoined by a court of competent jurisdiction or if PRIMAL, in the reasonable
exercise of its discretion, instructs Licensee to cease using any such Software
in order to mitigate or lessen potential damages arising from a claimed
infringement or wrongful use of any LPPR, Licensee shall cease using such
Software. In the event Licensee ceases to use any such Software as provided in
this section (other than by reason of a temporary restraining order), PRIMAL
shall (i) replace such Software with equally suitable non-infringing software,
(ii) modify such Software so that the use of the Software by Licensee as
permitted hereunder ceases to be infringing or wrongful, (iii) procure for
Licensee the right to continue using such Software as permitted hereunder, or
(iv) after reasonable efforts under subsections (i), (ii) and (iii) of this
sentence, pay to Licensee the depreciated price paid by Licensee for such
Software based upon a five-year, straight-line depreciation schedule. OTHER THAN
AS EXPRESSLY STATED IN THIS SECTION 10, PRIMAL SHALL HAVE NO LIABILITY
WHATSOEVER TO LICENSEE FOR ANY LOSS OR DAMAGE (INCLUDING, WITHOUT LIMITATION,
FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES) ARISING OUT OF
OR RELATED TO ANY ALLEGATION OR DETERMINATION THAT LICENSEE'S USE OF THE
SOFTWARE AS PERMITTED HEREUNDER INFRINGES OR CONSTITUTES WRONGFUL USE OF ANY
LPPR. PRIMAL MAKES NO REPRESENTATION OR WARRANTY AND DISCLAIMS ALL LIABILITY OF
ANY TYPE WHATSOEVER ARISING OUT OF OR RELATING TO ANY ALLEGATION OR
DETERMINATION THAT LICENSEE'S USE OF THE SOFTWARE INFRINGES OR CONSTITUTES
WRONGFUL USE OF ANY COPYRIGHT, TRADE SECRET, PATENT OR OTHER PROPRIETARY RIGHT
OTHER THAN A LPPR.
11. Assignment
----------
Neither Licensee nor PRIMAL may assign or transfer this Agreement or any
interest herein (including rights and duties of performance) without the prior
written consent of the other party, which consent shall not be unreasonably
withheld. Licensee shall pay to PRIMAL a reasonable transfer fee should this
Agreement be assigned. Notwithstanding the foregoing, a party may, without the
consent of the other party, assign this Agreement and all of its rights and
obligations hereunder to any successor in interest which assumes all of the
assigning party's obligations hereunder in connection with a merger, a sale of
all or substantially all of such party's assets, or a sale of such party's
capital stock, so long as such successor in interest and any entity which
directly or indirectly controls such successor in interest is not a competitor
of the other party hereto.
12. Notices
-------
Except as otherwise specified herein, all notices, requests, demands or
communications required or permitted hereunder shall be in writing, delivered
(i) personally, (ii) by facsimile (provided original is sent by other approved
means as set forth herein), (iii) sent by courier service of international
reputation (e.g., Federal Express) or (iv) sent by certified mail, postage
prepaid and return receipt requested (provided the origin and destination of the
notice are both within the United States), to the parties at the respective
addresses above (or at such other address as shall be given in writing by either
of the parties to the other in accordance with this Section 12). All notices,
requests, demands or communications shall be deemed effective upon receipt
(including facsimile).
13. Excused Performances
--------------------
PRIMAL shall not be deemed to be in default of or to have breached any
provision of this Agreement as a result of any delay, failure in performance or
interruption of service, resulting directly or indirectly from acts of God, acts
of civil or military authorities, civil disturbances, wars, strikes or other
labor disputes, shortages of labor or materials, fires, transportation
contingencies, laws, regulations, acts or orders of any government or agency or
official thereof, other catastrophes, or any other occurrences beyond PRIMAL's
reasonable control.
14. Miscellaneous Provisions
------------------------
14.1 Except as otherwise provided herein, no remedy made available to either
party hereto by any of the provisions of this Agreement is intended to be
exclusive of any other remedy, and each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute or otherwise.
14.2 No waiver of any provision of this Agreement or any rights or obligations
of either party hereunder shall be effective, except pursuant to a written
instrument signed by the party or parties waiving compliance, and any such
waiver shall be effective only in the specific instance and for the specific
purpose stated in such writing.
14.3 This Agreement shall be construed and enforced in accordance with the laws
of the United States of America and the State of California which are applicable
to the construction and enforcement of contracts between parties resident in
California which are entered into and fully performed in California, regardless
of where this Agreement is
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PRIMAL
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Revised February 15, 2000
executed or performed or the residency of the parties hereto except that the
U.N. Convention on the International Sale of Goods shall not apply to this
Agreement. The Agreement shall be interpreted in accordance with its fair
meaning and not in favor or against either party. The operative Agreement shall
be the original English language Agreement executed by the parties, and
notwithstanding any translation that may be made by Licensee. In the event of a
conflict between the translation and the English language version, the English
language version shall take precedence over the translation and the terms and
conditions shall be construed in accordance with the English language Agreement.
14.4 This Agreement may be executed in one or more counterparts, each of which
shall be an original and all of which together shall constitute one and the same
instrument.
14.5 This Agreement shall inure to the benefit of and shall be binding upon the
parties hereto and their respective permitted successors and assigns.
14.6 Sections 2.4, 3, 4, 5.2, 8, 10 and 14 shall survive expiration or
termination of this Agreement for any reason.
14.7 In the event that any provision hereof is found invalid or unenforceable
pursuant to judicial decree or decision, the remainder of this Agreement shall
remain valid and enforceable according to its terms.
14.8 In the event of any litigation hereunder, such action shall be brought
into a state or federal court of competent jurisdiction located in Orange
County, California, and the prevailing party in the action as determined by the
court will be entitled to recover from the other party its court costs and
reasonable attorneys' fees.
14.9 This Agreement constitutes the entire understanding and agreement between
PRIMAL and Licensee with respect to the transactions contemplated herein and
supersedes any and all prior or contemporaneous oral or written communications
with respect to the subject matter hereof it is expressly understood and agreed
that no employee, agent or other representative of PRIMAL has any authority to
bind PRIMAL with regard to any statement, representation, warranty or other
expression unless the same is specifically set forth or incorporated by
reference herein. It is expressly understood and agreed that, there being no
expectation to the contrary between the parties hereto, no usage of trade or
other regular practice or method of dealing between the parties hereto shall be
used to modify, interpret, supplement or alter in any manner the express terms
of this Agreement or any part hereof. It is expressly agreed and understood that
this Agreement is the product of negotiations among the parties and that this
Agreement was mutually drafted by the parties. This Agreement shall not be
modified, amended or in any way altered except by an instrument in writing
signed by duly authorized representatives of the parties.
14.10 Each party agrees that neither it nor any entity under its control shall
directly or indirectly solicit for employment, employ, or retain as an
independent contractor or otherwise, any employee or former employee as herein
defined of the other party during the Term of this Agreement and for one (1)
year following its expiration, or for a period of three (3) years following the
commencement date of this Agreement, whichever is longer; except with such
party's written consent. Former employees shall include only those employees who
have terminated their employment with a party within a period of three (3)
months prior to the execution of this Agreement.
14.11 Licensee agrees to comply with United States export regulations.
Diversion of the Licensed Program(s) contrary to United States law is
prohibited.
14.12 PRIMAL shall have the right upon reasonable notice, to conduct and/or
direct an independent accounting firm to conduct, during normal business hours,
an audit of the appropriate records of Licensee to verify (i) the number of
copies of the Software in use, (ii) the computer systems on which such copies
are installed, (iii) the number of processors for which such copies are used,
and (iv) the number of billed accounts.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
<TABLE>
<CAPTION>
Wireless Billing Systems, Licensee: <CUSTOMER>
d.b.a. Primal Billing Solutions
<S> <C> <C> <C>
By: By:
------------------------------------------ ----------------------------------------------
Signature Signature
Bill Salway
------------------------------------------ ----------------------------------------------
Print or Type Name Print or Type Name
Title: President Title:
------------------------------------------ ----------------------------------------------
</TABLE>
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PRIMAL
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Revised February 15, 2000
SCHEDULE 1
Dated as of (DATE)
to the
Master Software License Agreement dated as of (DATE)
by and between
Wireless Billing Systems, d.b.a. Primal Billing Solutions as Licensor ("PRIMAL")
and
(CUSTOMER), as Licensee ("Licensee")
This Schedule is issued pursuant to the Master Software License Agreement
identified above. All of the terms and conditions of the Master Software
License Agreement are incorporated herein and made a part hereof as if
expressly set forth in this Schedule.
1. Term
----
The term ("Initial Term") of this Schedule shall commence upon the date
set forth above (the "Commencement Date") and shall continue for a period of
five (5) years. Thereafter, so long as no event of default has occurred and is
continuing, this Schedule may be renewed upon mutually agreeable terms and
conditions.
2. Programs
--------
The Programs included under this Schedule are set forth in Attachment 1
hereto.
3. Documentation
-------------
One (1) copy each of the available Documentation for the Programs licensed
hereunder is included with the Software License fee. Additional copies may be
obtained at PRIMAL's then-current rate.
4. Designated Location
-------------------
The system ("System") shall be located at Licensee's place of business as
set forth in Attachment 1 hereto. Licensee agrees that the operation of the
System shall be restricted to the location specified, however, Licensee shall
be allowed to relocate the operation of the System to another business location
that physically replaces the specified location on prior written notice to
PRIMAL.
5. Professional Services
---------------------
PRIMAL professional services ("Professional Services") includes Training,
Consulting, Project Management, Server Hardware Configuration, Software
Installation, Testing, Data Conversions and additional on-site activities. The
Professional Services to be provided hereunder shall be as listed in Attachment
2 hereto.
If Licensee provides PRIMAL with less than ten (10) days notice of a
change or cancellation of the dates set for training, support or any other
planned on-site PRIMAL activity, Licensee may incur a penalty of $1,500 per
PRIMAL person-day, up to a maximum of five (5) days, plus all expenses
incurred.
Normal workdays are not to exceed ten (10) hours. Any hours over ten (10)
hours a day required by Licensee will be billed at a prorated portion of 150%
of the daily rate for a weekday and 200% for any weekend day or PRIMAL-
recognized holiday.
PRIMAL and Licensee will mutually agree to a Professional Services
schedule. Professional Services beyond those defined in this Schedule will be at
PRIMAL's then-current rates.
6. Third-Party Software and System Hardware
----------------------------------------
Licensee agrees to purchase through PRIMAL the required Third-Party
Software and/or System Hardware as defined in Attachment 5 hereof for the price
set forth in Attachment 7. Third-Party Software and/or System Hardware prices
are net and exclude taxes, duties, freight and other like charges. If required
by the Third-Party Software and/or System Hardware Supplier(s), Licensee agrees
to execute the Third-Party Software and/or System Hardware License(s) and/or
Maintenance Agreement(s) defined in Attachment 6 hereof.
If Licensee elects to purchase the System Hardware and/or Third-Party
Software directly, and not to purchase it through PRIMAL, Licensee acknowledges
and agrees that:
(i) System Hardware and/or Third-Party Software purchased by Licensee
shall meet the technical specifications provided by PRIMAL as set forth in
Attachment 5.
(ii) Licensee shall prepare the site, System Hardware and install the
Third-Party Software according to PRIMAL's specifications, and shall notify
PRIMAL that the site is so prepared and arrange for PRIMAL to arrive and install
the PRIMAL Software. Any delay from agreed plan, or once PRIMAL people arrive,
may result in additional charges.
If Licensee elects to purchase the System Hardware and/or Third-Party
Software through PRIMAL, PRIMAL will:
(i) Load and configure the System Hardware with the required Third-Party
Software and PRIMAL Software System, create program and data directories, and
load test data in order to perform the Factory Acceptance Test (FAT).
(ii) Licensee shall prepare the site to meet specifications provided by
PRIMAL and shall notify PRIMAL that the site is so prepared and arrange for
PRIMAL to arrive and install the PRIMAL Software. Any delay from agreed plan or
once PRIMAL people arrive may result in additional charges.
Shipping expenses are the responsibility of Licensee. PRIMAL shall not be
held responsible for transit time, customs clearance time or other potential
delays to the arrival of the System Hardware and/or Third-Party Software to the
installation site.
--------------------------------------------------------------------------------
7
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
If Licensee purchases System Hardware and/or Third-Party Software from
PRIMAL, all ownership and financial responsibility of purchased System Hardware
and/or Third-Party Software transfers to the Licensee from the time the System
Hardware and/or Third-Party Software leaves PRIMAL's facility.
7. Maintenance
-----------
Maintenance support as specified in Attachment 3, "Maintenance Agreement"
hereto, is available for a Maintenance Support fee equal to the rate set forth
in said attachment and will be based on the then-current applicable Software
License fees for the Software licensed hereunder and any Custom Software fees.
8. Custom Software
---------------
PRIMAL custom software services will be performed under this Schedule as
set forth in Attachment 4, "Custom Software Agreement" hereto and will be based
on the applicable functional or technical specifications ("Functional Spec")
developed for such custom software. The fees for such custom software shall be
set forth in said attachment. Any changes outside the scope of or subsequent to
the Functional Spec will be billed at PRIMAL's then-current rates and evidenced
by a change order.
9. License Fees and Payment Schedule
---------------------------------
The License and other Fees payable hereunder are set forth in Attachment 7
hereto, are in U. S. dollars payable in the United States and exclude any taxes,
duties, freight, insurance, or other government charges, as well as any
reasonable out-of-pocket expenses as described in Section 3.3 of the Master
Software License Agreement, which will be billed separately and paid by Licensee
in accordance with the terms of Section 10.6.
Except as expressly set forth in Attachment 8 to this Schedule, under the
special terms ("Special Terms") relating to the Monthly License and Maintenance
Fees, payments hereunder shall be subject to the following terms:
10. Standard Payment Method and Schedule for Other Products and Services
--------------------------------------------------------------------
10.1 Application Software License Fees. 100% due and payable upon receipt of
signed quotation or Purchase Order
10.2 Professional Services. 50% due upon receipt of signed quotation or Purchase
Order, balance due upon completion
of the applicable service.
10.3 Hardware/Equipment/Third-Party Software. 100% due and payable upon receipt
of signed quotation or Purchase Order.
10.4 Software Maintenance. 100% of the Base Maintenance Fees are due and
payable upon execution of the Maintenance Agreement (see Attachment 3) or a
separate Master Maintenance Agreement.
10.5 Custom Software. 50% due upon receipt of signed Functional Specifications
quotation for customization, balance due upon delivery (refer to Attachment 4).
10.6 Other Fees and Charges. Invoices due upon receipt.
Incremental License fees are due and payable when the cumulative unit count
is exceeded. Licensee agrees to notify PRIMAL prior to exceeding such expanded
unit counts and to pay the incremental License fees corresponding to the new
level of use.
Licensee acknowledges that for so long as payments for Software (including
but not limited to initial fees, upgrade fees, incremental License fees,
optional Software modules and/or custom software) remain due under this License,
an expiration date that renders the Software unusable will reside in the
Software and will be updated by PRIMAL as long as payments for said Software are
made in a timely manner by Licensee.
Invoices under this Agreement may be submitted by facsimile and shall be
effective as of the date of receipt of such facsimile transmission.
11. Additional Licensee Responsibilities
------------------------------------
PRIMAL will provide Licensee, at no additional cost, with a new customer
start-up kit upon execution of this Schedule which shall contain start-up
information including, but not limited to, site preparation checklist, specific
recommendations as to other facility requirements and an PRIMAL contact list.
Licensee will provide a completed and signed-off copy of the checklist to PRIMAL
prior to installation.
12. Special Terms
-------------
Any special terms applicable to this Schedule shall be set forth on
Attachment 8 hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Schedule as of the
date first written above.
<TABLE>
<CAPTION>
Wireless Billing Systems, Licensee: <CUSTOMER>
d.b.a. Primal Billing Solutions
<S> <C> <C> <C>
By: By:
------------------------------------------ ---------------------------------------------
Signature Signature
Bill Salway
------------------------------------------ ---------------------------------------------
Print or Type Name Print or Type Name
Title: President Title:
------------------------------------------ ---------------------------------------------
</TABLE>
--------------------------------------------------------------------------------
8
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
ATTACHMENT 1
To SCHEDULE NO. 1 dated as of (DATE)
to the
Master Software License Agreement dated as of (DATE)
by and between
Wireless Billing Systems, d.b.a. Primal Billing Solutions as Licensor ("PRIMAL")
and
(CUSTOMER), as Licensee ("Licensee").
Licensed Programs and Location
1. Programs Licensed Hereunder
---------------------------
(INSERT PROGRAMS)
2. Third-Party Software and System Hardware
----------------------------------------
(INSERT S/W AND H/W)
3. Designated Location
-------------------
(LOCATION)
--------------------------------------------------------------------------------
9
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
ATTACHMENT 2
To SCHEDULE NO. 1 dated as of (DATE)
to the
Master Software License Agreement dated as of (DATE)
by and between
Wireless Billing Systems, d.b.a. Primal Billing Solutions as Licensor ("PRIMAL")
and
(CUSTOMER), as Licensee ("Licensee").
Professional Services to be Provided
1. Training, Support and Consulting
--------------------------------
(LIST)
Terms Relating to Training
All training classes are limited to a total of six (6) Licensee employees
per instructor per class unless otherwise stated in PRIMAL's training
information. Licensee agrees that personnel attending Pre-Installation
Training and Consulting will have the authority to make decisions about
tables and parameters. If changes are made to tables and system parameters
by Licensee during or after the Pre-Installation Training and Consulting,
causing material changes to on-site training that delay completion of the
training on schedule, Licensee will be charged $1,500 per day for each
extra day (or partial day) caused by such delay for each on-site PRIMAL
person.
2. Project Management
------------------
(LIST)
3. Server Hardware Configuration, Software Installation,
-----------------------------------------------------
and Testing
-----------
(LIST)
--------------------------------------------------------------------------------
10
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
ATTACHMENT 3
To SCHEDULE NO. 1 dated as of (DATE)
to the
Master Software License Agreement dated as of (DATE)
by and between
Wireless Billing Systems, d.b.a. Primal Billing Solutions as Licensor ("PRIMAL")
and
(CUSTOMER), as Licensee ("Licensee").
Maintenance Agreement
This Maintenance Agreement ("Agreement") dated as of the (DAY) day of (MONTH),
(YEAR) ("Effective Date") is issued pursuant to the Master Software License
Agreement identified above. All of the terms and conditions of the Master
Software License Agreement are incorporated herein and made a part hereof as if
expressly set forth in this Agreement.
The parties hereto agree as follows:
1.0 Definitions
1.1 "Agreement Term" shall mean an initial period of one (1) year, commencing
on the Effective Date. Thereafter, the Agreement Term shall automatically renew
on a year-to-year basis unless terminated by either party in writing no later
than ninety (90) days prior to the expiration of any annual renewal period.
However, in no event shall the Agreement Term extend beyond the term of the
PRIMAL License.
1.2 "Basic Enhancements" shall mean changes or additions to the PRIMAL
Software, other than an Error Correction or Custom Software, which are
functional improvements to the PRIMAL Software. Basic Enhancements include only
those improvements that are generally made available at no additional cost to
PRIMAL customers.
1.3 "Major Release" shall mean integer releases, such as from release 1.0 to
2.0, which PRIMAL from time-to-time may offer to its customers at an additional
charge, and are not covered under this Agreement.
1.4 "Custom Software" shall mean any Licensee-funded software modifications
developed by PRIMAL under the provisions of the Primal License and listed under
Attachment 4 of Schedule 1 to the Primal License.
1.5 "PRIMAL License" shall mean the Master Software License referenced above
and to which this Agreement is an Attachment.
1.6 "PRIMAL Software" shall mean the (i) proprietary Software Program modules
listed on Attachment 1, and (ii) Custom Software listed on Attachment 4 to
Schedule 1 to the PRIMAL License.
1.7 "Error" shall mean any failure of the PRIMAL Software to substantially
conform to the specifications included in the Documentation delivered with the
PRIMAL Software.
1.8 "Error Correction" shall mean a software modification or addition that,
when made or added to the PRIMAL Software, establishes material conformity to
the specifications in the Documentation delivered with the PRIMAL Software.
1.9 "Third-Party Products" shall mean those third-party software programs in
object code format listed under Attachment 1 to Schedule 1 to the PRIMAL
License.
1.10 "Normal Support Hours" shall mean the hours between 6:00 a.m. and 5:00
p.m., Pacific Standard Time (PST), Monday through Friday, excluding regularly
scheduled holidays of PRIMAL as shown in Exhibit B of this Agreement.
1.11 "System Software" shall mean the (i) third-party products, and (ii) the
PRIMAL Software.
1.12 "PRIMAL Product Certified" shall mean a Licensee representative(s) who has
successfully completed the PRIMAL Product Certification Program. The Licensee is
required to maintain at least one (1) PRIMAL Product Certified Representative on
staff as part of this Agreement.
1.13 "Network Certified" shall mean any Information Services (IS) Engineer who
has successfully completed the appropriate Network Certification program for the
hardware platform used to execute the PRIMAL Software. The Licensee is required
to maintain at least one (1) Network Certified Representative on staff as part
of this Agreement.
1.14 "Software Service Levels" shall mean the level of Error Correction response
provided by PRIMAL as set forth in Exhibit D to this Agreement.
1.15 "Non-Standard Software Support" shall include, but is not limited to: (i)
calls to PRIMAL beyond the hours specified in Section 2.1.1, (ii) hardware or
network-related problems, or (iii) failures caused by improper use or care of
the PRIMAL Software application. Such services shall be billable at PRIMAL's
then- current rates.
2.0 Scope of Services
2.1 PRIMAL Software
2.1.1 Consultation. PRIMAL shall provide to Licensee's PRIMAL Product Certified
Representative telephone and/or electronic consultation on the PRIMAL Software
during Normal Support Hours. Such consultation shall include problem diagnosis,
troubleshooting and identification of Errors.
2.1.2 Error Correction. Licensee shall notify PRIMAL in writing of any Error,
specifying the reason the PRIMAL Software does not perform in conformity with
the applicable specifications and instructions how to recreate the Error
condition. Following completion of the Error Correction, PRIMAL shall provide
the Error Correction to Licensee through a procedure consisting
--------------------------------------------------------------------------------
11
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
of the transmission of sufficient programming data and operating
instructions to remedy the Error. Such transmission may be in a form, which
includes other changes that have been made by PRIMAL. Installation and
incorporation of any transmission that includes the Error Correction is the
responsibility of the Licensee. Licensee agrees to install and notify
PRIMAL when the Error Correction has been installed.
2.1.3 New Releases. PRIMAL may from time-to-time, distribute new program
releases ("Release") containing Error Corrections and Enhancements. PRIMAL
shall: (i) provide Licensee with notice concerning the content of such
Releases; and (ii) provide Licensee with access to the new program Releases
via FTP (File Transfer Protocol) or internet download during the Term of
this Agreement.
2.2 Education. PRIMAL shall make available training, as indicated in Attachment
2 to Schedule 1 of the PRIMAL License, during the Term of this Agreement in
system administration and use of the System Software, including new Releases to
the PRIMAL Software. Such training shall be subject to PRIMAL's published class
schedules, then-current training rates, available space at its training center,
or availability of on-site trainers. This does not negate the Licensee's
responsibility in training themselves on the features and functionality of the
PRIMAL Software.
2.3 Complete Subscription. While highly recommended, PRIMAL Software
maintenance is optional to the Licensee. However, when said Licensee enters into
this Agreement for maintenance, any additional software that is licensed
relating to or dependent upon the main application, including Third-Party
Products, must also have support and/or maintenance agreements in force.
2.4 Current Version. It is the obligation of the Licensee to install and share
in the benefits of upgrades ("Upgrades") to the PRIMAL Software, as Releases
become available. PRIMAL will continue to support prior Releases for eighteen
(18) months from the first Ship Date of the Upgrade or most current Release. If
said Licensee chooses not to install the Upgrade or current Release, and the
prior Release becomes no longer supported by PRIMAL, PRIMAL will not be held
responsible to the Licensee for maintenance of the non-supported PRIMAL
Software.
2.5 Third-Party Products. PRIMAL does not provide support or maintenance except
for such software programs listed on Attachment 1 to Schedule 1 to the PRIMAL
License to which this Agreement is attached (and subject to any special
conditions which may apply). Licensee agrees to install and maintain versions of
the Third-Party Products that are compatible with the PRIMAL Software.
2.6 Custom Software. PRIMAL will provide Licensee quarterly maintenance for the
Custom Software set forth in Exhibit C, for the fees listed. Licensee and PRIMAL
agree that Custom Software may be added or deleted from this Exhibit C from
time-to-time while this Agreement is in force. All modifications to Exhibit C
will be in writing and signed by both parties.
2.7 PRIMAL User Group (PUG). Upon receipt of the fees and charges set forth in
Exhibit A of this Agreement, Licensee will be provided with membership in the
PRIMAL customer User Group for the remainder of the calendar year. PUG fees for
subsequent years will be the direct responsibility of the Licensee.
3.0 Fees and Charges
----------------
3.1 Licensee shall pay PRIMAL in advance of the Effective Date, or anniversary
date thereof, the annual charge for the maintenance and support services
described herein in accordance with the fees and charges set forth in Exhibit A
of this Agreement, PRIMAL reserves the right to adjust the rates for subsequent
Agreement Terms.
3.2 If Licensee allows this Agreement to lapse at the expiration of the
applicable Term thereof due to non-payment of the Annual Fee due hereunder,
Licensee may reinstate maintenance by first paying a Reinstatement Fee equal to
(i) 110% of the Maintenance Fee(s) payable during the lapsed period, plus (ii)
$2,000 in addition to the then-current Maintenance Fee for the new Term.
3.3 In addition to any other amounts due, Licensee shall pay to or reimburse
PRIMAL the amount of any sales, use, excise, property or other federal, state,
local or foreign taxes, duties, tariffs or other assessments (other than any tax
based solely on PRIMAL's net income) and related interest and penalties which
PRIMAL is at any time obligated to pay or collect in connection with or arising
out of the transactions contemplated by this Agreement. Licensee further
understands and agrees that all references to contract sums or prices in the
Agreement or the Exhibits hereto are to be made in United States currency.
3.4 Licensee shall be responsible for any charges for services not included
within the scope of this Agreement, including charges, such as, for PRIMAL
personnel performing training services at Licensee's site or other locations
specified by Licensee. Reasonable travel and living expenses incurred by PRIMAL
personnel in performing any services will be billed to the Licensee, as will the
cost of long-distance telephone charges to support international Licensee.
3.5 In the event PRIMAL does not receive any amounts from Licensee on or before
the date on which such amounts are due and payable, such outstanding amounts
shall bear interest at the maximum rate permitted by law until payment is
received. Amounts received by PRIMAL shall first be credited against any unpaid
interest, and accrual of such interest shall be in addition to and without
limitation of any and all additional rights or remedies which PRIMAL may have
hereunder or at law or in equity.
4.0 Proprietary Rights
------------------
4.1 To the extent that PRIMAL provides Licensee with any Error Corrections and
Basic Enhancements, Licensee shall promptly (i) install the Error Corrections
and Basic Enhancements in the form provided by PRIMAL; and (ii) use such Error
Corrections and Basic Enhancements only in connection with the PRIMAL Software
and in a manner consistent with the requirements of the PRIMAL Software Licensee
shall have the non-exclusive, non-transferable right to use Error Corrections
and Basic Enhancements for its internal business purposes only, and PRIMAL shall
retain all further rights. Licensee shall not duplicate (except for archival
purposes), reverse engineer, translate or adapt such PRIMAL Software.
4.2 The Error Corrections and Basic Enhancements are and shall remain the sole
property of PRIMAL, regardless of whether Licensee, its employees, or
contractors may have contributed to the conception of such work, joined in the
effort of its development, or paid PRIMAL for the use of the work product.
--------------------------------------------------------------------------------
12
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
5.0 Warranty and Limitation of Liability
------------------------------------
5.1 During the period in which this Agreement remains in effect, PRIMAL
warrants that Basic Enhancements and Error Corrections shall conform to the
functional specifications as detailed in the Documentation that accompanies the
PRIMAL Software. Any failure by Licensee to promptly implement Basic
Enhancements and Error Corrections as supplied by PRIMAL will terminate the
warranty obligations of PRIMAL under this Agreement, unless Licensee has
obtained prior written authorization from PRIMAL.
5.2 All other warranty terms and limitations of liability are as stated in the
PRIMAL Software License Agreement to which this Agreement is attached.
6.0 Termination
-----------
This Agreement may be terminated as set forth in this Section 6.0.
6.1 Termination of License. This Agreement shall immediately terminate upon the
termination of the PRIMAL License.
6.2 Annual Term. This Agreement may be terminated for any subsequent Term by
either party in writing no later than ninety (90) days prior to the expiration
of any Term of this Agreement.
6.3 Non-Payment. This Agreement may be terminated by PRIMAL in the event the
CUSTOMER is more than thirty (30) days delinquent relating to payment in full of
the Fees due under this Agreement.
6.4 Failure to Perform. If either party defaults in the performance of any of
its obligations under this Agreement, and such default is not cured within
forty-five (45) days of written notification of such default from the non-
defaulting party, this Agreement may be immediately terminated by the non-
defaulting party upon written notice to the defaulting party.
7.0 Exhibits
--------
The attached Exhibits executed by initials of an authorized representative
of both parties are hereby incorporated by reference and made a part of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
<TABLE>
<CAPTION>
Wireless Billing Systems, Licensee: <CUSTOMER>
d.b.a. Primal Billing Solutions
<S> <C> <C> <C>
By: By:
------------------------------------------ ---------------------------------------------
Signature Signature
Bill Salway
------------------------------------------ ---------------------------------------------
Print or Type Name Print or Type Name
Title: President Title:
------------------------------------------ ---------------------------------------------
</TABLE>
--------------------------------------------------------------------------------
13
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
EXHIBIT A
To ATTACHMENT 3
Software Products
CUSTOMER NAME AND BILLING ADDRESS
(CUSTOMER NAME)
(LINE 1 ADDRESS)
(LINE 2 ADDRESS)
(CITY STATE ZIP)
TELEPHONE SUPPORT CONTACTS
<TABLE>
<CAPTION>
NAME PHONE EMAIL PAGER FAX
--------------------------------------------------------------------------------------------------
1. (NAME) (PHONE) (EMAIL) (PAGER) (FAX)
--------------------------------------------------------------------------------------------------
2. (NAME) (PHONE) (EMAIL) (PAGER) (FAX)
--------------------------------------------------------------------------------------------------
PRIMAL SOFTWARE
MODULE EFF. DATE LICENSE (LIST) MAINT. FEE
<S> <C> <C> <C>
(MODULE) (DATE) (LICENSE) (FEE)
----------------------------------------------------------------------------------------------------------------
(MODULE) (DATE) (LICENSE) (FEE)
----------------------------------------------------------------------------------------------------------------
(MODULE) (DATE) (LICENSE) (FEE)
----------------------------------------------------------------------------------------------------------------
(MODULE) (DATE) (LICENSE) (FEE)
----------------------------------------------------------------------------------------------------------------
(MODULE) (DATE) (LICENSE) (FEE)
----------------------------------------------------------------------------------------------------------------
(MODULE) (DATE) (LICENSE) (FEE)
----------------------------------------------------------------------------------------------------------------
(MODULE) (DATE) (LICENSE) (FEE)
TOTAL (TOTAL FEE)
-----------------------------
</TABLE>
EQUIPMENT
The Software supported and maintained by us, listed above, is licensed to
operate at the location listed below:
<TABLE>
<CAPTION>
<S> <C>
LOCATION Address/City/State/Postal Code
-------------------------------------------------------------------
(INSERT LOCATION)
-------------------------------------------------------------------
CPU Brand/Serial Number(s)/Manufacturer
-------------------------------------------------------------------
(INSERT CPU)
-------------------------------------------------------------------
OS Manufacturer/Version/Release
-------------------------------------------------------------------
(OPERATING SYSTEM)
-------------------------------------------------------------------
</TABLE>
--------------------------------------------------------------------------------
14
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
<TABLE>
<S> <C>
DATABASE Manufacturer/Version/Release
-------------------------------------------------------------------
(INSERT DATABASE)
-------------------------------------------------------------------
</TABLE>
THIRD-PARTY PRODUCTS
<TABLE>
<CAPTION>
NAME VERSION LICENSE FEE. (List) MAINTENANCE FEE
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
(INSERT NAME) (VERSION) (LICENSE FEE) (FEE)
--------------------------------------------------------------------------------------------------
(INSERT NAME) (VERSION) (LICENSE FEE) (FEE)
--------------------------------------------------------------------------------------------------
(INSERT NAME) (VERSION) (LICENSE FEE) (FEE)
--------------------------------------------------------------------------------------------------
(INSERT NAME) (VERSION) (LICENSE FEE) (FEE)
--------------------------------------------------------------------------------------------------
</TABLE>
--------------------------------------------------------------------------------
15
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
EXHIBIT B
To ATTACHMENT 3
Scheduled Holidays
The following are PRIMAL's company holidays:
New Year's Day
Memorial Day
Independence Day
Labor Day
Thanksgiving
Day after Thanksgiving
Christmas Eve
Christmas Day
--------------------------------------------------------------------------------
16
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
EXHIBIT C
To ATTACHMENT 3
Custom Software Acceptance Form
PRIMAL formally accepts and incorporates the Software listed below to be
included under this Agreement for the additional quarterly Fee of $ (AMOUNT),
payable in advance.
NAMED APPLICATION(S)
(APPLICATION)
(APPLICATION)
(APPLICATION)
(APPLICATION)
(APPLICATION)
(APPLICATION)
(APPLICATION)
(APPLICATION)
SPECIAL CONSIDERATIONS/LIMITATIONS
(CONSIDERATION)
(CONSIDERATION)
(CONSIDERATION)
(CONSIDERATION)
(CONSIDERATION)
(CONSIDERATION)
(CONSIDERATION)
(CONSIDERATION)
(CONSIDERATION)
(CONSIDERATION)
<TABLE>
<CAPTION>
Wireless Billing Systems, Licensee: <CUSTOMER>
d.b.a. Primal Billing Solutions
<S> <C> <C> <C>
By: By:
------------------------------------------ ---------------------------------------------
Signature Signature
Bill Salway
------------------------------------------ ---------------------------------------------
Print or Type Name Print or Type Name
Title: President Title:
------------------------------------------ ---------------------------------------------
</TABLE>
--------------------------------------------------------------------------------
17
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
EXHIBIT D
To ATTACHMENT 3
Software Service Levels
Service Priority Levels: PRIMAL will respond to service requests based on the
following Priority Levels:
<TABLE>
<CAPTION>
INITIAL RESPONSE *TARGET TURN-AROUND *TARGET PERMANENT
PRIORITY DESCRIPTION FIX
-----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C>
1 PRIMAL Software is unusable and the Licensee cannot conduct 1 Hour 12 Hours 7 Days
business; failure of a major process (e.g., unable to run
month-end reports, provide real-time call processing, and/or
run PRIMAL Software).
2 Severe loss of functionality to a group of users or to a 2 Hours 24-72 Hours 12 Days
single user running a business-critical operation.
Inconvenient situation whereby the PRIMAL Software is 12 Hours N/A Next Release
3 usable, but does not provide a function in the most
convenient or expeditious manner.
4 Minor Software problem that does not prevent Licensee from 24 Hours N/A N/A
doing their work.
</TABLE>
SERVICE LEVEL PARAMETERS
*The targets listed above are applicable during PRIMAL's normal support
hours. Priority 1 faults will be handled in a sequential order unless multiple
Priority 1 issues exist on a given day, then Licensee and PRIMAL must agree on
the appropriate Level 1 fault priorities daily. NOTE: While PRIMAL will respond
promptly to all requests, it is necessary to prioritize problems to meet all
customer needs.
The priority of the request will primarily be determined by the direct
impact to the daily business operations of the client. The priority will be
determined and mutually agreed upon by the client and a PRIMAL CSA.
When a fault is suspected, the Licensee must complete a PRIMAL Trouble
Report Form and contact Customer Support via telephone or e-mail. Work will not
commence until a complete description of the suspected fault or problem has been
received.
ESCALATION PROCEDURE
When an issue has missed its resolution target, the escalation levels and
contacts are as described as follows:
Standard Support Hours. These are the hours that a customer may call in to
their designated support center as identified in the Contact Procedure Section.
Standard Support Hours for the California-based office are 6:00 a.m. to 5:00
p.m. Pacific Standard Time (PST), Monday through Friday, excluding PRIMAL
holidays, for calls that are medium to low priority incidents as identified in
the Service Level Agreement.
Emergency Support. High Priority calls are taken 24 hours a day, 7 days a
week, 365 days a year. See the Response Time Matrix above for the definition of
High Priority.
NOTE: The customer may be charged PRIMAL's current hourly rates for
Emergency Support or for certain exclusions such as platform support, problems
with Third-Party Software, improper use of the Product and for support of a
Release that is more than two versions behind. Please review your Support
Contract for the details of exclusion.
CONTACT PROCEDURE
Please use the following process if problems are encountered with a PRIMAL
System:
Step 1: Contact the CSA First Level contact at the PRIMAL Office in Irvine,
California between 6:00 a.m. and 5:00 p.m. PST for Standard Support or for
Emergency Support outside of these hours. If the CSA cannot be reached within
one hour or has not responded satisfactorily, proceed to Step 2.
Step 2: Contact the Client Support Lead. If no response within half-an-
hour, proceed to Step 3.
Step 3: Contact the Client Services Manager. If no response within half-an-
hour, proceed to Step 4.
Step 4: Contact the President of PRIMAL.
--------------------------------------------------------------------------------
18
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
ATTACHMENT 4
To SCHEDULE NO. 1 dated as of (DATE)
To the Master Software License Agreement dated as of (DATE)
by and between
Wireless Billing Systems, d.b.a. Primal Billing Solutions as Licensor ("PRIMAL")
and
(CUSTOMER), as Licensee ("Licensee")
Custom Software Agreement
This Custom Software Agreement ("Agreement") dated as of the (DAY) day of the
(MONTH), (YEAR) ("Effective Date") is issued pursuant to the Master Software
License Agreement identified above. All of the terms and conditions of the
Master Software License Agreement are incorporated herein and made a part hereof
as if expressly set forth in this Agreement. This Agreement covers any Custom
Software to be developed by PRIMAL in connection with the License of Software
under the Master Software License Agreement referenced above.
The parties hereto agree as follows:
1. Project Description and Scope
---------------------------------------------------
The purpose of this Agreement is to define the terms and conditions for the
Custom Software Development Services ("Services") to be provided to Licensee by
PRIMAL. The project description is set forth in Exhibit A of this Agreement,
which delineates the agreed-upon scope of services ("Scope") to be performed
under this Agreement ("Project"). The Scope of services to be provided pursuant
to this Agreement may be changed from time-to-time on an as-needed basis. Any
change in Scope shall be evidenced by a written Addendum to this Agreement
executed by the parties to this Agreement. The parties agree to finalize the
functional specifications ("Functional Spec") governing the functional
performance of the Custom Software to be developed under this Agreement no later
than thirty (30) days following the Effective Date.
2. Schedule
---------------------------------------------------
The milestone dates ("Milestone Dates") for the Project are described in
Exhibit A.
If PRIMAL is delayed at any time in the progress of its work on the Project
by any of the causes set forth below, the applicable Milestone Dates shall be
extended by a change order ("Change Order") for such reasonable time as agreed
upon by the parties of this Agreement. Reasons for extending applicable
Milestone Dates shall include: (i) an act or neglect of Licensee or of its
employees; (ii) an act or neglect of a separate contractor employed by the
Licensee; (iii) changes ordered in the Scope of the Project by Licensee; (iv)
other causes beyond PRIMAL's control not caused by PRIMAL's negligence,
recklessness, willfulness or intentional conduct. Monetary claims relating to
time shall be made in accordance with provisions of Section 7 of this Agreement
(Change Orders).
3. Project Manager
---------------
Licensee is to appoint a single Project Manager who has full and complete
authority to represent the Licensee, make final decisions on behalf of the
Licensee for all Specifications, project directions and approvals, and Change
Orders. Licensee's Project Manager shall be defined in Exhibit A.
4. Non-Monetary Licensee Obligations
---------------------------------
Licensee agrees to provide to PRIMAL all necessary information, Hardware,
Hardware mainte-nance, System Software, facilities and personnel deemed
necessary by PRIMAL for the delivery of Services as specified in this Agreement.
Licensee understands that if Licensee fails to provide these to PRIMAL, it may
result in additional costs and delay to the Project without the fault of
PRIMAL.
5. Fees and Payment Terms
----------------------
Services provided under this Agreement are to be provided according to the
rates shown on Exhibit B.
Billings for the Services shall be generated by PRIMAL as such Services are
actually performed or completed. Billings for all appli-cable taxes shall be
gene-rated as they are due.
6. Reimbursable Expenses
---------------------
Licensee agrees to reimburse PRIMAL at cost for any reimbursable expenses
("Reimbursable Expenses') in the form of travel or other incidentals incurred
during the course of the Project within twenty (20) days following receipt of
vouchers, provided:
A. Licensee has given approval to incur Expenses as submitted by PRIMAL.
B. PRIMAL provides complete vouchers for all such Expenses, in the form of
actual receipts or other substantiation of each expenditure for all approved
Expenses.
C. PRIMAL follows Licensee's travel policy, a copy of which shall be
provided to PRIMAL by Licensee.
7. Change Orders
-------------
Any change or modification to this Agreement, including the Scope of the
Project or the Services to be rovided by PRIMAL during the course of the
Agreement, shall
--------------------------------------------------------------------------------
19
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
be evidenced by a written Change Order executed by both parties. Each Change
Order shall include a description of the services added or deleted, the amount
of the adjustment to Project Fees, and any impact upon the Project schedule. All
approved and executed Change Orders shall be evidenced as an Amendment and
Addendum to this Agreement and incorporated into the Scope of the Project.
Commencement by PRIMAL of work or Services prior to execution of a Change Order,
pursuant to a request by Licensee for modification of the Project or the Scope
of the Project, shall not constitute a waiver by PRIMAL for compensation for
such Services.
8. Ownership
---------
Full and exclusive rights and ownership in the Custom Software developed as
part of the Project(s) and in any and all related letters patent, trademarks,
copyrights, trade secrets, Confidential Information and any other proprietary
rights belong to PRIMAL. Licensee shall retain no right, ownership or title in
the Software developed as part of Services or in any related letters patent,
trademarks, copyrights, trade secrets, Confidential Information or any other
proprietary rights. The parties hereto agree that the Software developed as part
of Services and all such rights in their entirety belong to PRIMAL for whatever
use it desires.
9. Benefit of Agreement
--------------------
It is the intent of the parties hereto that this Agreement is made solely
for the benefit of the undersigned and is not intended to benefit any third
parties who are not parties to this Agreement.
10. Limitation of Liability
-----------------------
In no event shall PRIMAL's total liability arising out of the performance
of the Custom Software Development Services in the Project, whether in contract
or in tort, exceed $75,000 or the total agreed contract sum including Change
Orders, whichever is greater. No action arising from or related to the Project
or this Agreement, or the performance thereof, shall be commenced by either
party against the other more than two (2) years after the completion or
cessation of work under this Agreement.
PRIMAL DISCLAIMS AND CLIENT WAIVES ANY AND ALL LIABILITY FOR ANY DAMAGES
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DIRECT DAMAGES, LOST PROFITS OR LOST
DATA OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR
RELATED TO THE USE OF OR THE INABILITY TO USE THE SOFTWARE DEVELOPED HEREUNDER,
EVEN IF PRIMAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Authority to Execute
--------------------
Each of the undersigned represents that he or she is authorized to execute
this Agreement on behalf of the party described below.
BOTH PARTIES ACKNOWLEDGE that they have read this Agreement, understand it, and
agree to be bound by its terms and conditions.
Accepted by:
<TABLE>
<CAPTION>
Wireless Billing Systems, Licensee: <CUSTOMER>
d.b.a. Primal Billing Solutions
<S> <C> <C> <C>
By: By:
------------------------------------------ ----------------------------------------------
Signature Signature
Bill Salway
------------------------------------------ ----------------------------------------------
Print or Type Name Print or Type Name
Title: President Title:
------------------------------------------ ----------------------------------------------
</TABLE>
--------------------------------------------------------------------------------
20
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
EXHIBIT A
Of ADDENDUM NO. (NO.) to ATTACHMENT 4
Scope/Schedule/Specifications
--------------------------------------------------------------------------------
21
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
EXHIBIT B
Of ADDENDUM NO. (NO.) to ATTACHMENT 4
Fees and Payment Terms
--------------------------------------------------------------------------------
22
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
ATTACHMENT 5
To SCHEDULE NO. 1 dated as of (DATE)
To the Master Software License Agreement dated as of (DATE)
by and between
Wireless Billing Systems, d.b.a. Primal Billing Solutions as Licensor ("PRIMAL")
and
(CUSTOMER), as Licensee ("Licensee")
Third-Party Software and System Hardware
--------------------------------------------------------------------------------
23
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
ATTACHMENT 6
To SCHEDULE NO. 1 dated as of (DATE)
To the Master Software License Agreement dated as of (DATE)
by and between
Wireless Billing Systems, d.b.a. Primal Billing Solutions as Licensor ("PRIMAL")
and
(CUSTOMER), as Licensee ("Licensee")
Third-Party License/Maintenance Agreements
--------------------------------------------------------------------------------
24
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
ATTACHMENT 7
To SCHEDULE NO. 1 dated as of (DATE)
To the Master Software License Agreement dated as of (DATE)
by and between
Wireless Billing Systems, d.b.a. Primal Billing Solutions as Licensor ("PRIMAL")
and
(CUSTOMER), as Licensee ("Licensee")
License and Other Fees Payable
Application Software License Fees (INSERT S/W LICENSE FEE)
Professional Services (INSERT AMOUNT)
1. Total of (NO.) days including (NO.) days on-site training, (NO.) days
on-site
Installation, and (NO.) days off-site (PLATFORM) and (PLATFORM)
installation
and configuration (AMOUNT).
2.
Hardware/Equipment/Third-Party Software (INSERT AMOUNT)
Software Maintenance (INSERT AMOUNT)
Custom Software (INSERT AMOUNT)
Discounts (INSERT AMOUNT)
--------------------------------------------------------------------------------
25
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
ATTACHMENT 8
To SCHEDULE NO. 1 dated as of (DATE)
To the Master Software License Agreement dated as of (DATE)
by and between
Wireless Billing Systems, d.b.a. Primal Billing Solutions as Licensor ("PRIMAL")
and
(CUSTOMER), as Licensee ("Licensee")
Special Terms
--------------------------------------------------------------------------------
26
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
SCHEDULE 2
Dated as of (DATE)
to the
Master Software License Agreement dated as of (DATE)
by and between
Wireless Billing Systems, d.b.a. Primal Billing Solutions as Licensor ("PRIMAL")
and
(CUSTOMER), as Licensee ("Licensee")
This Schedule is issued pursuant to the Master Software License Agreement
identified above. All of the terms and conditions of the Master Software License
Agreement are incorporated herein and made a part hereof as if expressly set
forth in this Schedule.
Escrow Agreement
This Agreement is made as of (MONTH AND DAY), <YEAR> by and among Wireless
Billing Systems, d.b.a. Primal Billing Solutions as Licensor ("PRIMAL"), and
(CUSTOMER), as Licensee ("Licensee") and Fort Knox Escrow Services, Inc.,
("Escrow Agent") with reference to the following:
A. PRIMAL has granted a non-exclusive License to Licensee pursuant to the
Master Software License Agreement between the parties, dated as of (MONTH AND
DAY), (YEAR) ("License Agreement") to use and distribute the computer programs
as listed in the License Agreement (the "Software").
B. Licensee has requested that PRIMAL deposit the source code to the Software
in escrow pursuant to the terms of this Agreement, and PRIMAL has agreed to do
so.
1. Deposit
-------------
Within thirty (30) days of delivery and acceptance of the Software, PRIMAL
shall deposit with Escrow Agent a copy of the source code form of the Software
("Source Code"), including all relevant explanations and other documentation of
the Source Code (collectively, "Documentation").
PRIMAL agrees to deposit with Escrow Agent every six (6) months from the
date of this Agreement, a copy of the newest version to the Source Code or
Documentation encompassing all Corrections or Enhancements made to the Software
by Primal pursuant to the License Agreement or any software maintenance contract
between PRIMAL and Licensee and to which Licensee is entitled. The terms "Source
Code" and "Documentation" as used herein shall include all new Releases as
described in the preceding sentence.
PRIMAL represents and warrants that the deposits here-under represent a
true and correct copy of the Source Code for the Software. In depositing new
Releases of the Source Cod or Documentation with Escrow Agent, PRIMAL may remove
from Escrow Agent's possession any material which PRIMAL deems to be superseded
by the new Releases so deposited.
PRIMAL will retain copies of all material deposited with Escrow Agent.
2. Term. This Agreement shall remain in effect during the Term of the Master
Software License Agreement and the Software Maintenance Agreement between PRIMAL
and Licensee, and for so long as an End User under Licensee is entitled to the
continued use of the Software. Upon receipt of written notice from PRIMAL that
either of such Agreements has been terminated, Escrow agent shall promptly
notify Licensee in writing and provide PRIMAL with a copy of such notice. If
Licensee does not deliver a written objection to such termination within thirty
(30) days of delivery of Escrow Agent's notice, this Agreement shall be deemed
terminated and the Source Code and Documentation shall be promptly returned to
PRIMAL .
If Licensee delivers a written objection to the termination within the time
period specified above, Escrow Agent shall so notify PRIMAL and shall not
deliver the Source Code or Documentation to Licensee until it receives
satisfactory evidence of an agreement between PRIMAL and Licensee for such
delivery, or certified copy of a court order directing it to do so.
This Agreement shall also terminate if Licensee fails to pay the Fee due
Primal or Escrow Agent under Section 4 and such failure continues for more than
thirty (30) days after written demand for payment has been received by Licensee
from either Escrow Agent or PRIMAL.
Finally, this Agreement shall terminate upon delivery of the Source Code and
Documentation to Licensee in accordance with the terms hereof.
3. Delivery to Licensee.
---------------------
Upon receipt of written notice by Licensee that PRIMAL has, without cause on
Licensee's part, interrupted its business or been acquired by another entity,
and failed to furnish Licensee with maintenance support to the extent required
under the License Agreement and any applicable Maintenance Agreement between the
parties, Escrow Agent shall promptly send a copy of such notice to PRIMAL.
If Escrow Agent does not receive a written notice
--------------------------------------------------------------------------------
27
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
from PRIMAL within twenty (20) days of delivery of License notice, disputing the
facts in Licensee's notice, Escrow Agent shall deliver the Source Code and
Documentation in its possession to Licensee.
Licensee will be entitled to use the Source Code and Documentation in the
same manner as it is entitled to use the Software under the License Agreement,
except that neither Licensee nor its Affiliates shall be entitled to further
distribute the Software. All restrictions on use (except that Licensee shall be
permitted to use the Source Code as necessary for the limited purpose of
maintaining and supporting its End Users) of the Software under the Master
Software License Agreement shall apply to use of the Source Code and
Documentation, and all Confidentiality obligations under the License Agreement
shall apply to Licensee's use and possession of the Source Code and
Documentation.
If PRIMAL delivers a written notice to Escrow Agent within the foregoing
20-business-day period disputing Licensee's claim, Escrow Agent shall not
deliver the Source Code or Documentation to Licensee until it receives
satisfactory evidence of an agreement between PRIMAL and Licensee for such
delivery, or a certified copy of a court order directing it to do so.
4. Compensation
------------
As compensation for the services to be performed by Escrow Agent and PRIMAL
hereunder, Licensee shall pay PRIMAL an Initial Fee of $2,500 upon execution of
this Agreement, and an Annual Fee of $1,000 in advance on each anniversary date
of this Agreement during its Term. In addition, Licensee shall pay Escrow Agent
an Initial Fee of $850 upon execution of this Agreement and an Annual Fee of
$900 ($1,000 international) in advance on each Anniversary Date of this
Agreement during its Term (in accordance with the terms on Attachment 1).
Licensee is not entitled to a partial or full refund of any fees paid if this
Agreement is terminated other than on an Anniversary Date, unless Escrow Agent
resigns.
5. Resignation.
-----------
Escrow Agent may resign as such at any time upon 30 days prior written
notice to PRIMAL and Licensee. Upon resignation, Escrow Agent shall deliver the
Source Code and Documentation to such successor as PRIMAL and Licensee
designate.
If PRIMAL and Licensee do not designate a successor Escrow Agent in such
30-day period, Escrow Agent shall deliver the Source Code and Documentation to
PRIMAL, who shall hold such Source Code and Documentation in off-site storage
until such time as PRIMAL and Licensee agree on a successor Escrow Agent. PRIMAL
and Licensee agree to cooperate in good faith in the appointment of a successor
Escrow Agent.
If Escrow Agent resigns, other than on an Anniversary Date, it shall
refund a portion of the last Escrow Fee paid by Licensee. Such refund shall be
pro-rated based on the number of months (including partial ones) out of twelve
that Escrow Agent served following payment of the last Escrow Fee.
6. Confidentiality
---------------
Except as provided in this Agreement, Escrow Agent shall not develop,
disclose or otherwise make available to any third party whatsoever, or make any
use whatsoever, of the Source Code or Documentation, without the prior written
consent of PRIMAL.
7. Storage Environment
-------------------
Escrow Agent shall take reasonable measures to insure that the Source Code
tapes and Documentation are protected from theft and from damage and
deterioration, including damage caused by fire, water or chemicals.
8. Liability
---------
Escrow Agent shall not assume any liability or responsibility for any
transaction between Licensee and PRIMAL, other than the performance of its
obligations hereunder.
9. Remedies
--------
Except for actual fraud, gross negligence or intentional misconduct, Escrow
Agent shall not be liable to Licensee or to PRIMAL for any act, or failure to
act, by Escrow Agent in connection with this Agreement. Escrow Agent will not be
liable for special, indirect, incidental or consequential damages hereunder.
10. Notices
-------
All notices, instructions or other communications hereunder shall be in
writing and shall be deemed delivered on the date of delivery, if hand-
delivered, or two days after mailing, if sent by courier of international
reputation (e.g., DHL or Federal Express) prepaid and addressed as follows:
If to PRIMAL:
PRIMAL Billing Solutions
18881 Von Karman Avenue, Suite 450
Irvine, CA 92612
Attn: President/General Manager
If to Escrow Agent:
Fort Knox Escrow Services, Inc.
2100 Norcross Parkway, Suite 150
Norcross, GA. 30071
Attn: Vice President
If to Licensee:
(COMPANY)
(STREET ADDRESS)
(CITY, STATE, ZIP)
(ATTN:)
Any party can change its address for receipt of notices by notifying the
others in the manner set forth above.
11. Miscellaneous
-------------
11.1 Governing Law
-------------
This Agreement shall be governed by and construed in accordance with the
laws of California, excluding any laws
--------------------------------------------------------------------------------
28
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
which might cause the laws of any other jurisdiction to apply, and the parties
agree to jurisdiction and venue to be in the applicable state or federal court
sitting in Santa Ana, California.
11.2 Attorney's Fees
---------------
The prevailing party in any dispute concerning the subject matter hereof
shall be entitled to recover from the losing party its costs and reasonable
attorney's fees.
11.3 Counterparts
---- ------------
This Agreement may be executed in multiple counterparts each of which shall
be deemed an original and all of which together will constitute a single
Agreement, even if the parties execute different counterpart signature pages.
11.4 Successors and Assigns
----------------------
This Agreement shall be binding on and inure to the benefit of the parties
hereto and their respective successors and assigns. Notwithstanding the
foregoing, Escrow Agent may not assign its duties hereunder without the prior
written consent of PRIMAL and Licensee.
11.5 Waiver
------
No waiver of any provision of this Agreement or any rights or obligations
of the parties hereunder shall be binding unless made in writing by the party or
parties waiving compliance. Any such waiver shall be effective only for the
specific instance and for the specific purpose stated in such writing.
10.6 Constructions
-------------
This Agreement shall be interpreted in accordance with its fair and
reasonable meaning and not more strictly against one party than the others.
10.7 Invalidity
----------
In the event any provision hereof is found invalid or unenforceable, the
remainder of this Agreement shall remain valid and enforceable according to its
terms.
10.8 Indemnity
---------
Primal and Licensee shall, jointly and severally indemnify and hold
harmless Escrow Agent and each of its directors, officers, agents, employees and
stockholders ("Escrow Agent Indemnities") absolutely and forever, from and
against any and all claims, actions, damages, suits, liabilities, obligations,
costs, fees, charges, and any other expenses whatsoever, including reasonable
attorneys' fees and costs, that may be asserted against any Escrow Agent
Indemnity in connection with this Agreement or the performance of Escrow Agent
or any Escrow Agent Indemnity hereunder.
10.9 Disputes and Inter-Pleader
--------------------------
In the event of any dispute between any of the Escrow Agent, Licensee,
and/or PRIMAL relating to the delivery of the deposit materials by Escrow Agent
or to any other matter arising out of this Agreement, Escrow Agent may submit
the matter to any court of competent jurisdiction in an inter-pleader or similar
action. Any and all reasonable attorneys' fees and costs, shall be borne 50% by
each of Licensee and PRIMAL.
Escrow Agent shall perform any acts ordered by any court of competent
jurisdiction, without any liability or obligation to any party hereunder by
reason of such act.
<TABLE>
<CAPTION>
<S> <C>
10.10 Survival
------- --------
</TABLE>
Sections 8, 9, and 11 shall survive any termination of this Agreement.
<TABLE>
<CAPTION>
Wireless Billing Systems, Licensee: <CUSTOMER>
d.b.a. Primal Billing Solutions
<S> <C> <C> <C>
By: By:
------------------------------------------ -----------------------------------------------
Signature Signature
Bill Salway
------------------------------------------ -----------------------------------------------
Print or Type Name Print or Type Name
Title: President Title:
------------------------------------------ -----------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
"Escrow Agent,"
Fort Knox Escrow Services, Inc.
<S> <C>
By:
------------------------------------------
Signature
------------------------------------------
Print or Type Name
Title:
------------------------------------------
</TABLE>
--------------------------------------------------------------------------------
29
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
ATTACHMENT 1
To SCHEDULE NO. 2 dated as of (DATE)
to the
Master Software License Agreement dated as of (DATE)
by and between
Wireless Billing Systems, d.b.a. Primal Billing Solutions as Licensor ("PRIMAL")
and
(CUSTOMER), as Licensee ("Licensee").
Escrow Service Fees
ESCROW AGENT FEES
<TABLE>
<CAPTION>
INITIAL ESCROW FEES TO BE PAID SHALL BE AS FOLLOWS:
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
Initialization Fee (one time only) $850 ($765 for current customers)
Annual Maintenance/Storage Fee $900 per product License
$1,000 per international License
Product Updates $150 (for each update above 2 per year)
Additional Storage Space (above 1 cubic foot) $150 per cubic foot
</TABLE>
<TABLE>
<CAPTION>
FEES TO BE PAID EACH YEAR THEREAFTER SHALL BE AS FOLLOWS:
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
Maintenance/Storage Fee $900 per product License
$1,000 per international License
Product Updates (due upon receipt of release for source code) $150 (for each update above 2 per year)
At Producer's Request $100
At Licensee's Request $500
</TABLE>
PRIMAL FEES
<TABLE>
<CAPTION>
ANNUAL FEES PAYABLE TO PRIMAL SHALL BE AS FOLLOWS:
<S> <C>
---------------------------------------------------------------------------------------------------------------------------------
Initialization Fee (one time only) $2,500 (waived for current customers)
Normal Annual Update $1,000
</TABLE>
Fees shall be subject to current pricing, provided such prices do not increase
more than 10% per annum.
--------------------------------------------------------------------------------
30
<PAGE>
PRIMAL
--------------------------------------------------------------------------------
Revised February 15, 2000
EXHIBIT A
Of Attachment 1 to the Escrow Agreement
Licensed Programs and Versions
TYPE OF DEPOSIT
<TABLE>
<CAPTION>
(AMOUNT) Initial Deposit
--------------------------------
(AMOUNT) Update Deposit (to Replace Current Deposits)
--------------------------------
(AMOUNT) Other (Please Describe):
--------------------------------
<S> <C>
(DESCRIPTION)
</TABLE>
ITEMS DEPOSITED
<TABLE>
<CAPTION>
PRODUCT VERSION # QUANTITY MEDIA TYPE DESCRIPTION
------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
(PRODUCT) (VERSION) (QTY) (TYPE) (DESCRIPTION)
------------------------------------------------------------------------------------------------------
(PRODUCT) (VERSION) (QTY) (TYPE) (DESCRIPTION)
------------------------------------------------------------------------------------------------------
(PRODUCT) (VERSION) (QTY) (TYPE) (DESCRIPTION)
------------------------------------------------------------------------------------------------------
(PRODUCT) (VERSION) (QTY) (TYPE) (DESCRIPTION)
------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
Prepared and Confirmed By:
<S> <C>
Name: (NAME)
----------------------------------------------------------------
Print or Type Name
Title: (TITLE)
----------------------------------------------------------------
Print or Type Title
Signed By:
----------------------------------------------------------------
Signature
Date:
----------------------------------------------------------------
</TABLE>
--------------------------------------------------------------------------------
31
