VOLUME LICENSE AGREEMENT
This License Agreement (the "Agreement") is made and entered into as of
the 17th day of January, 2000, by and between Philips Speech Processing North
America, a Division of Philips Electronics North America Corporation, a
corporation organized and existing under the laws of the state of Delaware,
("PSP"), and Preferred Voice, Inc., a corporation organized and existing under
the laws of the state of Delaware ("Licensee").
WITNESSETH:
WHEREAS, PSP is the creator and owner of a speech recognition
technology, which includes certain signal processing algorithms that are used
for the computerized recognition of speech; and
WHEREAS, Licensee desires to license a subset of PSP technology that
would add speech recognition capabilities to its systems with voice processing
applications and obtain a license to use such software on the terms and
conditions set forth herein; and
WHEREAS, PSP is willing to grant a license to Licensee as hereinafter
specified; and
WHEREAS, Licensee desires ongoing technical support for the Licensed
Technology.
NOW, THEREFORE, in consideration of the mutual premises and covenants
of the parties hereto, the parties hereby covenant and agree as follows:
1. Definitions
Words shall have their normally accepted meanings as used in this
Agreement. The terms herein and hereof , unless specifically limited, shall have
reference to the entire Agreement. The word "shall" is mandatory, the word "may"
is permissive, the word "or" is not exclusive, the word "includes" and
including" are not limiting and the singular includes the plural and vice versa.
As used in this Agreement, the following terms have the respective meanings
specified below:
1. "Enhancements" means modifications, refinements, or additions that, when made
or added to the Licensed Technology, materially change its utility, efficiency,
functional capability, or application.
2. "Force Majeure Condition" means any condition or event beyond the control of
the party affected thereby, including, but not limited to, fire, explosion, or
other casualty, act of God, war or civil disturbance, acts of public enemies,
embargo, the performance or nonperformance of third parties, acts of city,
state, local or federal governments in their sovereign, regulatory, or
contractual capacity, labor difficulties, and strikes.
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3. "Licensed Technology" means the subset of Technology that is adapted to
provide the speech recognition capabilities described in Exhibit A, attached
hereto and incorporated herein by reference, for Systems.
4. "Recognizer" means an individual channel capable of speech recognition using
Licensed Technology. Recognizers can be used as a shared resource in Systems or
they can be deployed on every line in a System.
5. "Speech Verification" means a channel capable of verifying one's claimed
identity through analyzing voice patterns.
6. "Systems" means the products sold by Licensee that are described in Exhibit B
attached hereto and incorporated herein by reference.
7. "Technological Improvements" means minor improvements, refinements, or
perfections of the Licensed Technology.
8. "Technology" means, irrespective of the form in which it is recorded, all
information relating to telephone channel discrete and continuous utterance
speaker-independent and speaker- dependent speech recognition and speaker
verification, whether already developed or developed hereunder, made, owned or
discovered by PSP, including, but not limited to, software, hardware, firmware,
custom and semi-custom components, algorithms, know-how, trade secrets,
confidential information, source codes, Object codes, designs, plans,
specifications, magnetic media or other form of recorded information, except for
information that is generally available to the public (including information
that is available, with or without fee, from other vendors).
1. Grant of License
1. PSP hereby grants to Licensee a world-wide, non-exclusive, perpetual license
to use, copy, and distribute under perpetual sublicenses the Licensed Technology
for the purpose of providing telephonic voice recognition services using
Systems.
2. There is no geographic limitation on Licensee's right to distribute into any
market so long as the Systems sold into any market have been enhanced with the
appropriate languages and dialects for that market.
3. During the term of the license granted in 2.01 above, PSP hereby grants to
Licensee a nonexclusive, nontransferable license to use trademarks and service
marks ("Marks") which are set forth on Exhibit G, attached hereto and
incorporated herein by reference, relating to the Licensed Technology in
promotional materials, technical publications, products descriptions, and other
printed or electronic materials which are created or disseminated in the conduct
of Licensee's sale and distribution of Systems, subject to PSP' prior approval
of such use and strictly in accordance with PSP's guidelines for the use of its
Marks as provided to Licensee by PSP. Licensee shall display such Marks adjacent
to and with the first or most prominent use of the appropriate Mark in each such
publication, except when the publication relates to Licensee's products which
incorporate the
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Licensed Technology in bundled form, in which event the display of Licensee's
own trademarks or service marks shall not be construed to grant Licensee any
ownership to the Licensed Technology licensed by PSP to PSP hereunder. Licensee
further agrees not to use any other trademark or service mark in close proximity
to the Marks or combine such Marks in a confusing manner or in a manner which
creates a unitary composite mark. In all events PSP shall retain ownership
rights to its Marks licensed to Licensee hereunder, and Licensee shall notify
PSP of any unauthorized use of PSP's Marks which become known to Licensee.
Licensee (i) will not act in any manner that might reasonably injure the rights
or goodwill of PSP with respect to the Marks, (ii) will not challenge the
validity or ownership of the Marks, and (iii) will use reasonable efforts to
safeguard the Marks as necessary and appropriate.
4. In consideration of the License herein granted, Licensee shall pay to PSP
periodic royalties at the rates specified in Exhibit C.
5. This Agreement does not transfer title or any ownership interest in Licensed
Technology to Licensee. Licensed Technology, including all parts thereof, and
any copies, in whole or in part, are and shall remain the property of PSP,
irrespective of the ownership of the media on which Licensed Technology any part
thereof or any copy thereof is contained. Licensee acknowledges and agrees that
it is only acquiring title to media containing the Licensed Technology with the
limited right to resell Licensed Technology on which Licensed Technology are
contained and licenses as specified in this Agreement. All patents, copyrights,
trade secrets and other intellectual property rights in and to Licensed
Technology shall remain the exclusive property of PSP. Licensed Technology are
offered for sale and are resold by Licensee subject in every case to the
condition that such sale does not convey any license, expressly or by
implication, to manufacture, duplicate or otherwise copy or reproduce any
Licensed Technology.
6. Except as permitted pursuant to Section 2.01, Licensee agrees not to copy,
alter, modify, translate, decompile, disassemble, reverse engineer or create
derivative works of the Licensed Technology or any part thereof.
7. Except as permitted pursuant to Section 2.01, Licensee shall not: (i) loan,
rent, lease, give, sub-license or otherwise transfer Licensed Technology,
including any part thereof, or any copy thereof, in whole or in part, to any
third party; or (ii) distribute copies of Licensed Technology or any part
thereof to any third party or electronically transfer the same from one computer
to another over a network.
2. Support
1. PSP shall provide Level 3 Support for the Licensed Technology as detailed in
Exhibit F. Additionally, PSP shall provide to Licensee the following:
A. Technological Improvements it develops for the Licensed Technology at no
additional cost.
B. Software support to Licensee as reasonably required to implement
Technological improvements to the Licensed Technology at no additional
cost.
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C. A Test Plan for beta tests per Exhibit E.
1. In consideration of the support described in Section 3.01, Licensee
shall pay PSP in accordance with Exhibit D for the term of this
Agreement.
2. PSP shall make Enhancements available to Licensee at PSP' then
current prices to similarly situated customers.
1. Term
This Agreement is effective on the date hereof and unless sooner
terminated extends for a period of five (5) years ("Initial Term"). Further,
provided that Licensee is not in default of this Agreement at the end of the
Initial Term, Licensee may extend this Agreement on a yearly basis for an
additional five (5) years ("Extended Term") upon written notice to PSP provided
at least thirty (30) days prior to the then applicable expiration date.
2. Obligations of Licensee
1. Licensee agrees to use PSP as its sole and exclusive source for speech
recognition and speaker verification technology for five years from its first
commercial deployment of a System incorporating Licensed Technology. However,
Licensee is not bound to use PSP as its sole and exclusive source for speech
recognition and speaker verification technology, and has no obligation to do so,
in the event that any third party claim is made or alleged that the Licensed
Technology infringes any existing patent, copyright, trade secret, trademark or
other intellectual property rights of said third party, provided that Licensee
notifies PSP of such claim and further provided that PSP exercises one of the
three option listed in Section 11.02 hereof or the claim proceeds to litigation.
2. Licensee shall: (i) conduct business in a manner that reflects favorably at
all times on PSP products and the good name, goodwill and reputation of Philips;
(ii) avoid deceptive, misleading or unethical practices that are or might be
detrimental to PSP, PSP products or the public, including, but not limited, to
disparagement of PSP or PSP products; (iii) make no false or misleading
representations with regard to PSP or PSP products; (iv) not to publish or
employ or cooperate in the publication or employment of any misleading or
deceptive advertising material; (y) make no representations or guarantees to
customers or to the trade with respect to the specifications, features or
capabilities of PSP products that are inconsistent with the literature
distributed or approved by PSP; and (vi) actively promote the sale of Systems
incorporating the Licensed Technology.
3. Licensee agrees to act as a beta site for new releases of Licensed Technology
and agrees to provide input to PSP with respect to its beta testing of Licensed
Technology per Exhibit E.
4. Licensee shall develop reasonable safeguards to insure that Licensee's
customers do not wrongfully appropriate the Licensed Technology, in whole or in
part.
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5. The statement "Speech recognition technology provided by Philips Speech
Processing" shall be included on marketing and sales literature developed by
Licensee for the products that include the Licensed Technology.
6. Licensee shall at all times comply with all United States laws or
regulations, and regulations of foreign jurisdictions, if applicable, as they
may exist from time to time, regarding the subject matter of the license, in
particular as to export licensing or the control or regulation of exportation or
re-exportation of the Product Software. Without limiting the generality of the
foregoing, Licensee specifically agrees not to sell any products covered by this
Agreement to any party, if such a sale would constitute a violation of any laws
or regulations of the United States.
7. Licensee shall seek and obtain at its cost any necessary governmental,
regulatory or other certifications or approvals for the use of Licensed
Technology in Licensee's Systems. PSP will furnish such reasonable support as
Licensee requests in developing and presenting applications for such licenses or
approvals.
3. Obligations of PSP
1. PSP shall offer to use Licensee as the first beta site for new releases of
Licensed Technology.
2. PSP shall provide Licensee with licenses for 26 SpeechPearl 99 Recognizers as
described in Exhibit A at no charge to replace Speech Wave Recognizers
previously acquired by Licensee.
4. Mutual Responsibilities
1. Training. PSP shall provide Licensee detailed and thorough training of a
professional caliber, without charge, for up to 2 qualified employees of
Licensee annually. The training shall be of three (3) days duration, shall be
offered in the continental United States, and will cover the installation, use,
and maintenance of the Licensed Technology, and shall include appropriate
printed training documentation and reference materials.
2. Additional training, including "refresher training", shall be conducted in a
manner agreed upon by the parties and at mutually agreeable fees, where
appropriate.
3. The parties shall make joint press releases pertaining to the deployment of
Systems. Each party will obtain the prior written consent of the other party
prior to issuing such releases.
5. Trade Secrets and Confidentiality
1. Each party covenants and agrees that at all times hereafter it will keep
secret all information communicated to it that has been designated as
confidential or proprietary, and that it will not divulge the same to any
person, firm, or corporation or use it for its benefit or for the benefit of
others without the prior written consent of the other party. This obligation
applies only if in the case
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of written communication, the document has been conspicuously labeled as
"confidential" or "proprietary" and in the event of an oral communication, the
information has been identified as confidential or proprietary at the time of
disclosure and a written summary of the confidential or proprietary information,
conspicuously marked as such, has been prepared by the disclosing party and sent
to the receiving party within 30 days of the disclosure. The recipient shall
take reasonable steps to safeguard such confidential information, using at a
minimum the same degree of care that the recipient uses to protect its own
similar categories of confidential and proprietary information. The provisions
of this Article do not apply to:
(A) Information that at the time of receipt can be shown by reasonable
evidence to be in the public domain; or
(B) Information that can be shown by reasonable evidence to have been
legally in possession of the party receiving such information prior to the
time of it being received from the other party;
(C) Information that can be shown by reasonable evidence to have legally
become part of the public domain, other than by acts or omissions of the
party receiving such information;
(D) Information that the disclosing party discloses to a third party
without restriction on use or disclosure; or
(E) Information that is received by the recipient from a third party having
no obligation to the disclosing party limiting the use or disclosure of the
information.
For the purpose of sub-paragraphs (A) and (C) of this section, information is
not considered to be in the public domain merely because a more generalized
disclosure of information, which does not specify the details of the information
received, is in the public domain.
2. Licensee shall take all precautions reasonably necessary to ensure that
persons purchasing, leasing or using Systems are made aware that title to the
Licensed Technology resides in PSP for any purpose other than use in connection
with Systems, and such users may not copy, disclose, attempt to disassemble or
decompile software that implements the Licensed Technology.
3. Licensee shall cause to appear on all software packages incorporating or
containing the Licensed Technology a proper copyright notice of the format:
"(C)2000 Philips Speech Processing, All Rights Reserved"
or such other notice as PSP may from time to time reasonably require to protect
PSP' copyrighted or proprietary materials utilized under this Agreement.
Licensee may qualify the scope of the copyright notice in order to limit it to
the portion of the software package containing the Licensed Technology.
4. Licensee shall execute and, if requested by PSP, direct its affiliates,
agents, servants, and employees to execute any and all agreements or other
documents reasonably necessary to secure and protect PSP' rights in and to the
Technology.
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5. In the event a breach or threatened breach of this Section 7, the aggrieved
party will be entitled to seek immediate relief, injunction or otherwise in
arbitration, in a court of law, or in equity.
6. Fees and Delivery
1. FOB Point. All deliveries shall be made FOB PSP, 14140 Midway Road, Dallas,
TX 75244.
2. Licensee will issue purchase orders to PSP for Licensed Technology to be
shipped with Systems. The purchase order shall indicate the number of ports of
simultaneous recognizers to be shipped with each System along with the Products
to be shipped and the appropriate royalty as per Exhibit C.
3. Payment terms for invoices shall be Net 30 days from date of invoice.
4. Taxes. Royalty fees do not include taxes. Licensee shall pay all taxes
associated with the sale of Systems(s) and sublicensing of software hereunder,
exclusive of taxes based on Philips' income. Any such tax Philips may be
required to collect or pay upon the sale or delivery of Product(s) shall be paid
by Licensee and such sums shall be due and payable at net 30 days from
Licensee's receipt of invoice. If claiming a sales tax exemption, Licensee must
provide PSP with valid tax exemption certificates when applicable.
5. PSP represents and promises that the prices and indemnity obligations
provided or made available to Licensee under this Agreement during the term of
this Agreement, shall be as favorable as the prices and indemnity obligations
provided or made available to any other resellers and value added resellers of
PSP, based on similar quantities of Products, similar purchase commitments, and
under similar terms and conditions.
7. Late Payments
With respect to any invoice or royalty amount due PSP that is not paid
by its due date, Licensee shall pay PSP interest from the due date to date of
payment at the rate of one and one-half (1-1/2 %) percent per month on the
unpaid balance (or such lower rate as may be the maximum allowable by law),
together with PSP' costs of collection (including reasonable attorney's fees).
8. Representation and Warranties
1. PSP represents and warrants that it has the right to grant the license
granted to Licensee herein. PSP shall indemnify and hold Licensee harmless
against any and all costs, claims, damages, expenses, losses and demands
(including reasonable attorneys fees) incurred, at Licensee's written request or
authorization, by or against Licensee as a result of or in connection with any
third party claim made or alleged that the Licensed Technology directly
infringes any existing patent, copyright, trade secret, trademark or other
intellectual property ("IP") rights of any third party, recognized in any
jurisdiction where an Licensee may lawfully use Licensed Technology furnished
hereunder, or if by reason of the use, in accordance with PSP's specifications,
in any such jurisdiction of any
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Licensed Technology furnished by Supplier to an Licensee under this Agreement,
conditioned on the following:
(A) That PSP is notified promptly in writing by Licensee of any notice of
such claims; and
(B) That PSP has the sole control of the defense of any action, including
appeals, on such claim and all negotiations for its settlement or
compromise.
(C) That the Licensee fully cooperates, at PSPs cost, with PSP in relation
to the defense or settlement of the claim.
However, in no event shall PSP be liable for Licensee's consequential damages.
2. Should the Licensed Technology be held in a final judgment, or in PSP'
opinion be likely to be held, to infringe a third party's IP rights, PSP shall,
at its option and expense, (i) procure for Licensee the right to continue using
the Licensed Technology, (ii) replace or modify the same so that it becomes
noninfringing but still provides substantially the same functionality as the
Licensed Technology provided prior to replacement or modification, or (iii)
withdraw the Licensed Technology and refund to Licensee all fees paid by
Licensee under this Agreement. In no event, however, shall PSP's liability under
this Section 11 exceed the greater of Two Million Dollars ($2,000,000.00) or the
amount(s) paid Licensee to PSP under this Agreement.
3. Notwithstanding the foregoing, PSP will have no liability to Licensee or its
customers with respect to any claim of patent, copyright or other intellectual
property infringement that is based upon a claim that an application in which
Licensed Technology is used infringes the intellectual property rights of
another person or entity. However, this section shall not be construed as
exempting PSP from liability for any claim of infringement of any third party EP
right to the extent such claim of infringement is based on the combination of
the Licensed Technology on an industry standard PC or server (such as the
hardware listed in Exhibit B).
4. PSP will have no liability for any claim of infringement of any third party
IP right that arises as a result of (a) use of Licensed Technology by Licensee
or any sublicensee of Licensee in connection or combination with software or
hardware not provided by PSP, where the claim arises from the combination with
the other software or hardware with which Licensed Technology is combined, or
(b) modification of Licensed Technology by Licensee or (c) the use, reproduction
or distribution of the Licensed Technology by Licensee after the date ("Claim
Date") that either Licensee Receives written notice from PSP that PSP has
received a claim or demand alleging that the Licensed Technology is infringing
or Licensee receives a claim or demand that the Licensed Technology is
infringing, provided, in either case, that PSP first informs Licensee in writing
that the Licensed Technology is likely to be held to infringe a third party's IP
rights and that PSP then exercises one of the three options listed in the
preceding paragraph 11.02. However, this section shall not be construed as
exempting PSP from liability for any claim of infringement of any third party IP
right to the extent such claim of infringement is based on the combination of
the Licensed Technology on an industry standard PC or server (such as the
hardware listed in Exhibit B). In the event that a third-party claim of
infringement is asserted against a trademark, PSP may instruct Licensee to use a
different trademark or cease using the infringing trademark. Notwithstanding the
foregoing to the contrary,
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PSP shall not be obliged to defend against and shall not be liable for
infringement of any third party's IP Rights arising from and based on Licensee's
modification the Licensed Technology.
5. Both parties hereto represent and warrant that they have the right to enter
into this Agreement and that no obligation of either of them to the other is in
breach of any known duty to any third party.
6. FOR A PERIOD OF NINETY (90), THE LICENSED TECHNOLOGY SHALL SUBSTANTIALLY
COMPLY WITH THE SPECIFICATIONS. IF THE LICENSED TECHNOLOGY DOES NOT
SUBSTANTIALLY CONFORM TO THE SPECIFICATIONS, LICENSEE SHALL PROMPTLY NOTIFY PSP.
PSP SHALL USE REASONABLE COMMERCIAL EFFORTS TO PROMPTLY REPLACE OR CORRECT THE
NON CONFORMITY. THE FOREGOING WARRANTY IS INLIEU OF ANY OTHER WARRANTIES,
EXPRESS OR IMPLIED AND PSP DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF INFRINGEMENT,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN
INFORMATION OR ADVICE GIVEN BY PSP SHALL CREATE A WARRANTY OR IN ANY WAY
INCREASE THE SCOPE OF THIS WARRANTY.
7. Each party shall defend, hold harmless, and indemnify the other party and its
customers against any and all claims, expenses (including attorney's fees), loss
or liability for injury to or death of any persons (including employees or
agents), and loss of or damage to property (including property owned, leased, or
borrowed by the third party or its customers), incurred during the performance
of this Agreement, and caused by the negligence or intentional misconduct of the
first party, its subcontractors, employees, agents, or customers. In no event
shall either party be liable for the other party's consequential damages.
8. Except to the extent provided below, PSP shall not be obliged to indemnify,
save and hold harmless Licensee and shall not be liable for infringement of any
third party's intellectual property rights to the extent that such third party
is awarded by a court of competent jurisdiction damages with regard to the
Licensed Technology supplied hereunder in the form a Use-Based Royalty and to
the extent that such awarded Use-Based Royalty could not be avoided, in PSP's
opinion, by PSP reasonably and good faith exercising one or more of the options
provided to PSP in Section 11.02. For the purposes of this section, a "Use-Based
Royalty" is a royalty or lost profits award based on the use of the Licensed
Technology as opposed to and award based on a percentage or portion of the Per
Unit Price. PSP warrants and undertakes that to the best of its knowledge, as of
the Effective Date, no third party has claimed that it is entitled to the
payment Use-Based Royalties with regard to the Lcensed Technology. If a third
party makes any claim that it is entitled to the payment of Use- Based Royalties
with regard to the Licensed Technology and/or refuses to grant PSP a license,
under reasonable terms and conditions, for the intellectual property rights to
which the claim relates, then (a) PSP agrees to use all commercially reasonable
efforts to defend any such claims at its own cost; and (b) PSP agrees to keep
Licensee fully informed of any such claims. If, in PSP opinion, it is unable to
defend such claim, and Licensee incurs any liability to such third party based
on Use-Based Royalties with regard to the Licensed Technology, PSP shall
promptly pay Licensee an amount equal to a payment based on a percentage or
portion (to be mutually agreed upon by the parties) of the Per
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Unit Price times the quantity of Licensed Technologys for which Licensee is
required to pay the aforementioned Use-Based Royalties.
9. Licensed Technology is warranted to be Year 2000 Compliant, meaning that the
functionality and the performance of the products are not materially adversely
affected by dates prior to, during and after the year 2000, provided they are
used (i) in accordance with the applicable specifications and user instructions;
and (ii) as originally delivered, unmodified (unless in accordance with PSP
release procedures and/or instructions), and have not been tampered with.
Evaluation and verification of operation of the product in conjunction with
other products are Licensee's own responsibility.
10. If it is demonstrated nevertheless by no later than three months from the
delivery of the Licensed Technology that the Licensed Technology is not fully
Year 2000 Compliant, Licensee's sole and exclusive remedy, and PSP's sole and
exclusive obligation, at PSP's sole discretion will be, (a) to repair/correct
free of charge such product (or part thereof), or if this is not reasonably
achievable (b) to offer the Licensee a replacement product (or part thereof)
that is Year 2000 Compliant, in accordance with PPS's standard terms and
conditions applicable to replacing the product. In case (a) applies, Compliance
will be achieved by means of a fix, update or upgrade, provided the Licensee
reasonably cooperates at no cost to PSP.
11. This warranty is in lieu of any and all other warranties, whether express or
implied, statutory or otherwise, including, without limitation, any warranty of
merchantability or fitness for a particular purpose related directly or
indirectly to Year 2000 compliance, which are hereby excluded, and does not
imply that the products will always work without interruption or will be error
free.
12. The foregoing states the entire liability of PSP in connection with the
infringement of IP rights owned or controlled by third parties by product
supplied as such by PSP hereunder and except as stated hereinabove, PSP shall
not be liable for any loss or damage of any kind whatsoever, including any
incidental, indirect, special or consequential damages, suffered or incurred by
Licensee, its mediate or immediate licensees or any other person in respect of
or in connection with the infringement of any third party intellectual property
rights.
9. Termination
1. If Licensee fails to pay any amount due hereunder when due and such failure
is not cured within thirty (30) days of receiving written notice from PSP of
such failure, PSP will have the right to terminate this Agreement by giving
written notice of termination to Licensee.
2. If either party fails to fulfill any other material obligations or conditions
hereof, or commits any other breach or is in default in any other way with
regard to any of the provisions of this Agreement, and such failure, breach, or
default is not cured within thirty (30) days of written notice to the defaulting
party by the other party specifying the nature of the default, the aggrieved
party will have the right to terminate this Agreement by giving written notice
of termination to the defaulting party, whereupon this Agreement shall
automatically terminate on the 30th day after such termination
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notice is given. Either party has the right to cure any such default up to but
not after receiving notice of termination.
3. In the event that under the laws of the United States either party files for
bankruptcy or is deemed insolvent or is obliged to cease to trade or to wind up
its affairs and go into liquidation, or seeks protection from its creditors or a
rearrangement of its obligations by legal process, or otherwise, or a committee
of creditors is appointed, or any similar proceeding is had or commenced
pursuant to the laws of any jurisdiction or otherwise, the other party will be
entitled to give written notice terminating this Agreement forthwith without
prejudice to any rights of either Licensee or PSP that may have accrued
hereunder at or as of the date of such termination.
4. Termination of this Agreement for any cause will not be construed as a waiver
in respect of either party of any of its rights, claims (including claims for
damages) or obligations that have accrued up to and including the date of
termination, including Licensee's obligation of paying any royalties or sums
accrued to PSP.
5. Upon termination or expiration of this Agreement, Licensee agrees to return
to PSP within fifteen (15) days of termination or expiration of the Agreement,
at its own expense, all PSP proprietary information relating to the Licensed
Technology that is not required to support Licensees licenses in the Licensed
Technology. All sublicenses of Licensed Technology granted to End Users by
Licensee in accordance with the terms and conditions of this Agreement shall
survive and continue in full force and effect upon termination of this
Agreement. Philips shall be considered a third party beneficiary of such
sublicenses and shall have all the rights and remedies of Licensee in enforcing
such sublicenses.
10. Governing Law; Construction
THIS AGREEMENT IS EXECUTED IN THE STATE OF TEXAS AND IT IS EXPRESSLY AGREED BY
THE PARTIES HERETO THAT IT SHALL BE CONSTRUED AND GOVERNED BY, AND THE LEGAL
RELATIONSHIPS BETWEEN THE PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF TEXAS, EXCEPT THAT ANY CONFLICTS OF LAWS RULES OR 11
PRINCIPLES OF THE STATE OF TEXAS THAT WOULD REQUIRE REFERENCE TO ANOTHER
JURISDICTION SHALL BE DISREGARDED. EXCLUSIVE VENUE AND JURISDICTION FOR ANY
DISPUTE ARISING HEREUNDER SHALL BE IN DALLAS COUNTY, TEXAS.
11. Independent Contractors
No agency, employment, joint venture or partnership is hereby created
by the parties to this Agreement. No representation may be made by either party
that would create an apparent agency, employment, joint venture, or partnership
with the other. Neither party has the authority to act for the other in any
manner or to create obligations or debts that would be binding upon the other
nor is either party responsible for any obligations whatsoever of the other. The
only relationship between the parties hereto is that of independent contractors.
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12. Dispute Resolutions
SUBJECT TO THE PROVISIONS HEREOF, IN THE EVENT OF ANY DISPUTE REGARDING
THE INTERPRETATION OF, PERFORMANCE UNDER OR BREACH OF THIS AGREEMENT, SUCH
DISPUTE MAY, BY AGREEMENT OF THE PARTIES, BE SETTLED BY NON-BINDING MEDIATION OR
BINDING ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION ("AAA") IN
ACCORDANCE WITH ITS COMMERCIAL RULES IN DALLAS, TEXAS. THE PREVAILING PARTY IN
ARBITRATION OR LITIGATION SHALL BE ENTITLED TO FEES FOR ATTORNEYS AND EXPERT
WITNESSES AND OTHER COSTS INCURRED IN CONNECTION THEREWITH.
13. Force Majeure
1. No party hereto will be liable for delay or default in performing hereunder,
other than a delay or default in payment of monies, if such performance is
delayed or prevented by a Force Majeure Condition.
2. If a Force Majeure Condition occurs, the party delayed or unable to perform
shall give prompt notice of such occurrence to the other party. The party
affected by the other party's inability to perform may, after sixty (60) days,
elect to either terminate this Agreement or continue performance with the option
of extending the term of the Agreement up to the length of time the Force
Majeure Condition endures. The party experiencing the Force Majeure Condition
must inform the other party in writing when such a condition ceases to exist.
3. Notwithstanding anything contained in this Agreement to the contrary, the
obligations of the parties hereto are subject to all laws, both present and
future, of any government having jurisdiction over the parties hereto and their
business operations related to this Agreement, and to orders, regulations,
directions or requests of any such government, or any department, agency or
corporation thereof, and the parties hereto will be excused from any failure to
perform any obligation hereunder to the extent such failure is caused by any
such law, order, regulation, direction or contingency.
14. Notice
All notices required or permitted to be given hereunder shall be in
writing and will be valid and sufficient if dispatched either (i) by hand
delivery, (ii) by telex, cable or facsimile transceiver, with confirming letter
mailed promptly thereafter in accordance with clause (iv) hereof, (iii) by
reputable overnight express courier or (iv) by certified mail, postage prepaid,
return receipt requested, deposited in any post office in the United States, in
any case, addressed to the addresses set forth on the signature page of this
Agreement, or such other addresses as may be provided from time to time in the
manner set forth above. When sent by cable or facsimile as aforesaid, notices
given as herein provided will be considered to have been received when sent
during normal business hours; otherwise, notices will be considered to have been
received only upon delivery or attempted delivery during normal business hours.
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15. Sole Agreement
1. This Agreement represents the full and complete understanding and agreement
between PSP and Licensee, and supersedes and cancels any prior agreements among
the parties or their predecessors, relating to the Licensed Technology. In
entering this Agreement, neither party relied on any representations,
provisions, or warranties of the other party or its employees or agents other
than those set forth in this Agreement. This Agreement may not be modified or
amended except by a writing that states that it is an amendment to this
Agreement and that is signed by duly authorized representative of the parties.
2. If any provision of this Agreement is found to be illegal, unenforceable or
void, then both parties will be relieved of all obligations arising under such
provision, but only to the extent that such provision is illegal, unenforceable
or void, it being the intent and agreement of the parties that this Agreement
shall be deemed amended by modifying such provision to the extent necessary to
make it legal and enforceable while preserving its intent or, if that is not
possible, by substituting another provision that is legal and enforceable and
achieves the same objective. If the remainder of this Agreement is not affected
by such declaration or finding and is capable of substantial performance, then
each provision not so affected shall be enforced to the extent permitted by law.
16. No Delay Waiver
No delay on the part of the parties hereto in exercising any power or
right hereunder will operate as a waiver thereof, nor will any single or partial
exercise of any power or right hereunder preclude other or further exercise
thereof or the exercise of any other power or right.
17. Non-Assignment
This Agreement, and all rights and obligations hereunder, are personal
as to the parties hereto and may not be assigned, in whole or in part, by any of
the parties to any other person, firm or corporation without the prior written
consent thereto by the other party hereto, which consent may not be unreasonably
withheld; except that either party may freely assign any or all of its rights
and obligations hereunder to any affiliate or in conjunction with a merger or a
sale of substantially all of the party's assets or business. An affiliate is (a)
a company that owns all or substantially all of the outstanding stock of the
company so assigning, (b) a company all or substantially all of whose stock is
owned by the company so assigning, or (c) a company under common ownership with
the company so assigning. Such assignee company will thereupon be free to assign
the rights and obligations under this Agreement to any other affiliate. Any
assignment contrary to the terms hereof shall be null and void and of no force
or effect.
18. Liability Limitations
1. Except as specifically provided in this Agreement, neither party or their
respective officers, directors, employees and agents will be liable to the other
for any incidental, indirect, special or
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consequential damages such as, but not limited to, exemplary or punitive
damages, even if such party has been advised of the possibility of such damages.
2. Except for PSP's indemnity obligations contained in section 11 of this
Agreement, in no event shall either party have any liability under this
Agreement including but not limited to direct or indirect damages of any kind or
nature in the aggregate, in excess of the payments actually received by PSP
under this Agreement, whether arising by contract, tort, strict liability or
otherwise.
19. Miscellaneous
1. This Agreement will be binding upon and will inure to the benefit of PSP and
Licensee, their assigns and successors in interest.
2. The subject headings of this Agreement are included for the purpose of
convenience only and will not affect the construction or interpretation of its
provisions.
3. This Agreement may be executed simultaneously in any one or more
counterparts, each of which will be deemed an original and all of which, taken
collectively, will constitute one agreement.
4. If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this agreement shall nevertheless remain in full
force and effect.
IN WITNESS WHEREOF, the parties have cause this Agreement to be
executed as of the date first appearing on page one above.
PHILIPS SPEECH PROCESSING
NORTH AMERICA, A DIVISION
OF PHILIPS ELECTRONICS
NORTH AMERICA CORPORATION PREFERRED VOICE, INC.
("PSP") ("LICENSEE")
By: By:
---------------------------------- ---------------------------------
Name: Name:
-------------------------------- -------------------------------
Title: Title:
------------------------------- ------------------------------
Address: 14140 Midway Road Address: 6500 Greenville Ave.
Suite 100 Suite 570
Dallas, Texas 75244 Dallas, Texas 75206
FAX: (972) 726-1211 FAX: (214)_______________
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EXHIBITS
Exhibit A Licensed Technology
Exhibit B Licensee's Products (Systems)
Exhibit C License Fees
Exhibit D Support Fee, including fee for additional vocabularies and
charge for collecting new vocabularies
Exhibit E Test Procedure
Exhibit F Support Levels
Exhibit G Marks
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Exhibit A
SpeechPearl 99
The license for SpeechPearl 99, which is included in the Licensed Technology, is
for all dialects of the currently available languages at the time of this
Agreement.
Features of SpeechPearl 99
Grammar-based natural language understanding "Learn Word" function for name
dialing applications Dynamic grammars to enable on-line application update
Public rules to enable grammar reuse
Out-of-Vocabulary rejection and confidence computation for improved recognition
performance Grammar tags for easy recognition result evaluation N-best result
output to enable post-processing like database checks Multi-channel recognition
for highest integration density Support of multiple input formats including PCM,
A-law, mu-law Language resource switching for outmost flexibility in the
applications Utterance logging for evaluation and data collections "C" API for
most flexible integration
The currently available languages are:
US English
French
German
Dutch
North American Spanish
The SpeechPearl 99 software and dongles are not to include expiration dates
embedded in the software.
SpeechPearl 99 is to be capable of 15,000 items per sub-vocabulary.
PSP and Licensee agree to participate jointly in the gathering of voices for
optimization of the recognizer in specific regions. PSP will pay any labor costs
or costs of a third party to provide the voices. Licensee will provide the
system to record the voices.
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Exhibit B
Licensee Systems
Typical Licensee's Systems will consist of the following:
Single or Dual Pentium II processors
Windows NT Workstation 4.0 with service pack 5 Operating System
Dual 9.1 Gb, HDD, SCSI with RAID
24 or 48 port telephony interface
The actual platform may or may not be exactly as described here.
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Exhibit C
Royalties and License Fees
In consideration of the terms of the Agreement, the price for SpeechPearl 99 (as
described in Exhibit A) is $1,100 per Recognizer.
As an example, the typical 24 port system will employ six recognizer units at a
license fee of $6,000.
An additional 1,000 items per directory above the 15,000 provided in Exhibit A
shall be made available to Licensee at a 40% discount from PSP list prices.
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Exhibit D
Support Fees
Normal charges for maintenance/support are 20% per licensed Recognizer per
annum. In consideration of the terms of the Agreement, the charges for
maintenance and support shall be 10% per licensed Recognizer, and shall be
invoiced by PSP to Licensee quarterly, based upon purchases during the preceding
quarter. The maximum annual charge for support shall not exceed $100,000.
The charges for maintenance and support for a new release of SpeechPearl will
not be invoiced until the new release of SpeechPearl is a general commercial
released product from PSP.
Maintenance/support services provides Technological Improvements, telephone
support and maintenance services for Licensed Technology.
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Exhibit E
Test Procedure
PSP will provide a test procedure prior to February 15, 2000. PSP and Licensee
will mutually agree on a test procedure prior to the Beta Test.
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Exhibit F
Support Levels
The following Support Levels definitions will apply to this Agreement.
Level 1 Service shall mean the service provided in response to the
initial phone call placed by a customer or distributor which identifies and
documents an error in the Licensed Technology. This includes problem source
identification assistance, problem analysis, problem resolution, installation
planning information and preventive and corrective service information.
Level 2 Service shall mean the service provided to analyze or reproduce
the error to determine that the error is not reproducible. This includes problem
recreation and in-depth technical analysis.
Level 3 Service is the service provided to isolate the error to a
component level of the Product. An attempt is to be made to provide an error
correction or circumvention or notification that no correction or circumvention
is available.
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Exhibit G
Marks
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