LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "Agreement") is made and entered, effective as
of the date set forth below, by and between SANTA ▇▇▇▇▇▇▇ CONNECTED SYSTEMS
CORPORATION, a California corporation ("Licensor"), and VODAVI TECHNOLOGY, INC.,
a Delaware corporation ("Licensee"), with reference to the following facts:
RECITALS:
A. Under the OEM Agreement, Licensor has manufactured and sold to Licensee
certain products based upon Licensor's "Oyster" technology, and the parties have
elected to terminate the OEM Agreement and to have Licensor grant to Licensee a
perpetual, non-exclusive license to use the Licensed Technology described below
to manufacture and distribute the Products which Licensor previously sold to
Licensee pursuant to the OEM Agreement.
B. Licensor acquired its right to use a portion of the Licensed Technology
from D2 under the D2 Agreement described below, and the grant of license under
this Agreement also is subject to the terms, conditions and restrictions of the
separate Object Code Software License Agreement executed between Licensee and
D2.
C. Contemporaneously with the execution and delivery of this Agreement,
Licensee and D2 shall have entered into a separate Agreement.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual promises and covenants of
the parties hereinafter set forth and other valuable consideration, the parties
hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have the
following meanings.
1.1 "D2" means D2 TECHNOLOGIES, INC., a California corporation.
1.2 "D2 AGREEMENT" means that certain Software Assignment, License and
Maintenance Agreement dated August 21, 1996, between D2, as licensor, and
Licensor, as licensee.
1.3 "DOCUMENTATION" means the written documentation which has been prepared
by Licensor, which describes the Licensed Technology, including the Bills of
Materials, Assembly Instructions and Documents, and certain Software
documentation, which is described in Exhibit A to this Agreement.
1.4 "LICENSED TECHNOLOGY" means the Documentation, the Manufacturing
Drawings, and the Software, including both the Source Code and the Object Code,
and other related technology as defined in Section 1. and described on Exhibit A
to this Agreement.
1.5 "MANUFACTURING DRAWINGS" means the design and manufacturing diagrams,
sub-assembly specifications and other drawings that Licensor used in connection
with its manufacture of Products for Licensee prior to the date of this
Agreement and which are reasonably required for Licensee to be able, using
reasonable skills consistent with the capabilities of a competent manufacturer
of surface mounted, electronic
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component telecommunications products, to manufacture, support, or modify the
Products from the current release of the "Oyster" products as of the date of
this Agreement. Set forth on Exhibit A hereto is a list of the Manufacturing
Drawings that Licensor shall deliver to Licensee under this Agreement.
Notwithstanding the foregoing or any other provision of this Agreement, neither
any provision of this Agreement nor Licensor's delivery of any Licensed
Technology is intended or shall be construed as a representation or warranty by
Licensor that Licensee will be able to manufacture any of the Products
successfully or to modify any Product successfully. Notwithstanding the
foregoing, Licensor represents that the Licensed Technology is adequate to
enable manufacturing of the Products as they are currently manufactured.
1.6 "OBJECT CODE" means the version of a computer program that is not in a
programming language and is in a specific, machine-readable format only.
1.7 "OEM AGREEMENT" means the OEM Purchase Agreement dated April 11, 1997,
between Licensor and Enhanced Systems, Inc. ("Enhanced"), as amended by that
certain "Amendment to OEM Purchase Agreement" between Enhanced and Licensor, and
to which Licensee is a party as successor in interest to Enhanced Systems, Inc.
1.8 "PRODUCTS" means the "Oyster" products that Licensor manufactured for
Licensee under the OEM Agreement prior to the effective date of this Agreement
and all modifications and improvements to such "Oyster" products developed by
Licensor prior to the effective date of this Agreement, and all of the
derivative works of the "Oyster" products hereafter developed by Licensee. A
list of the Products as of the date of this Agreement is set forth on Exhibit B
hereto.
1.9 "SOFTWARE" means the computer software programs that were incorporated
into the Products that Licensor manufactured for Licensee prior to the date of
this Agreement. Notwithstanding the foregoing, the Software does not include and
Licensor shall have no obligation to deliver to Licensee any generally available
third party software that it has incorporated in, or used in connection with its
manufacture of, any of the "Oyster" products.
1.10 "SOURCE CODE" means the version of a computer program that is in a
programming language that is understandable by humans and shall include any
programmers notes and similar documentation available as of the date of this
agreement.
2. GRANT OF LICENSE
2.1 NON-EXCLUSIVE LICENSE. Subject to the terms and conditions of this
Agreement, Licensor hereby grants to Licensee a world-wide, non-exclusive and
perpetual license (a) to use the Licensed Technology to manufacture or have
manufactured and sell the Products under the Licensee's brand names, (b) to
reproduce the Software, in Object Code format only, for distribution with the
Products, and (c) to use the Licensed Technology to develop modifications and
improvements of the Products. Licensee acknowledges that the license granted
under this Section is a non-exclusive license that does not convey ownership of
the Licensed Technology to Licensee, and that nothing in this Agreement limits
in any way Licensor's right to grant to any other person or entity a license to
use the Licensed Technology in connection with goods and services that may be
competitive with the Products and/or Licensee's business activities.
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2.2 NO SUBLICENSING. Licensee shall not have the right to sublicense the
use for any purpose of any or all of the Licensed Technology to any person or
entity that designs, manufactures or distributes any voicemail, voice
processing, computer telephony or voice/data networking products.
Notwithstanding the foregoing, Licensee may contract with a third party for such
third party to manufacture Products for delivery to and sale by Licensee, even
if such third party does manufacture or distribute voice mail, voice processing,
computer telephony or voice/data networking products.
2.3 LICENSOR RIGHT TO MANUFACTURE. Licensor shall have the right to
manufacture for its own account and the account of other persons and entities,
and to contract for manufacture by others, of voicemail, voice processing,
voice/data networking and similar products that use, incorporate or rely upon
any or all of the Licensed Technology.
3. SOFTWARE MODIFICATIONS.
3.1 OWNERSHIP. All modifications to the Software, whether made to effect
"bug" fixes or to effect enhancements or improvements to the Software, and
regardless of whether or not such modifications constitute derivative works of
the Software, and regardless of which party effects such modifications, will be
the property of Licensor, but will be deemed to be Software subject to all the
license and other rights of Licensee under this Agreement. Licensor shall be the
exclusive owner of all such modifications and of all patents, copyrights and
other intellectual property rights in or to such modifications. Automatically
and simultaneously with the creation of any such modifications by Licensee,
Licensee shall be deemed to have assigned to Licensor all of its right, title
and ownership interest in and to each such modification and all patent,
copyright and other intellectual property rights related thereto.
3.2 COMPATIBILITY. Any modifications to the Software made by Licensee shall
be subject to review and acceptance by Licensor in order to maintain continuity
and compatibility of the modified Software with the API and/or DSP level
operating system software of the Products. Licensee shall not make any
modification to the Software which Licensor determines will interfere with the
continuity and compatibility of the modified Software with the API and/or DSP
level operating system software of the hardware. Licensor will not unreasonably
withhold its consent to or acceptance of any modification to the Software
requested by Licensee.
4. DELIVERIES BY LICENSOR. Simultaneously with the execution of this Agreement,
and upon receipt of payment in full of the initial payment installment as
determined in Section 5.1 below, Licensor shall deliver to Licensee copies of
the Licensed Technology.
5. PAYMENTS. In consideration of the grant of license under this Agreement,
Licensee shall pay to Licensor the following amounts.
5.1 UPON EXECUTION. Simultaneously with the execution of this Agreement,
Licensee shall pay to Licensor cash in the amount of Three Hundred Thousand
Dollars ($300,000.00);
5.2 DELIVERY OF LICENSED TECHNOLOGY. Simultaneously with Licensor's
delivery of the Licensed Technology under Section 4, above, and acceptance of
the Licensed Technology by Licensee, Licensee shall pay to Licensor cash in the
amount of One Hundred Thousand Dollars ($100,000.00). Licensee shall have one
week from the date of receipt of the Licensed Technology in which to evaluate
and accept, or state why it does not accept, the Licensed Technology. Upon
receipt of formal notification in writing to Licensor of failure of Licensee to
accept the Licensed Technology, Licensor shall attempt to
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remedy the deficiency immediately. If no remedy, or reasonable attempt to
remedy, is made within thirty (30) days after such notification, this Agreement
will be terminated and Licensor will refund the $300,000.00 initial payment.and
the OEM Agreement rights and obligations of the parties shall remain in full
force and effect.
5.3 PRODUCTION OF FIRST PRODUCT BY LICENSEE. Within five (5) days after the
date on which Licensee first produces a Product [UNDER THE RIGHTS GRANTED IN
THIS AGREEMENT], but not later than three (3) months after acceptance pursuant
to 5.2, Licensee shall pay to Licensor cash in the amount of One Hundred
Thousand Dollars ($100,000.00).
6. TRANSITION ASSISTANCE AND TRAINING. The parties acknowledge that (a) Licensee
is entering into this Agreement with the objective of manufacturing Products
both at its own facilities and at other facilities operated by parties with whom
Licensee has a working relationship, and (b) for the immediate future, the most
effective and efficient method of ensuring an uninterrupted supply of Products
to Licensee is for Licensor to (x) assist Licensee in developing working
relationships with the companies and firms which have provided goods and
services to Licensor in connection with Licensor's manufacture and sale of the
Products, and (y) provide Licensee certain technical expertise and know-how that
Licensor has developed, through its employees, in manufacturing Products.
Therefore, from time to time during the three (3) -month period following the
effective date of this Agreement, upon request of Licensee:
6.1 VENDORS. Upon execution, Licensor shall (a) provide Licensee the names,
addresses, and telephone numbers of such vendors and suppliers from whom
Licensor has purchased goods or services in connection with the manufacture and
sale of Products, and (b) assist Licensee in conferring directly with
representatives of such vendors and suppliers who may be helpful in allowing
Licensee to establish a business relationship with those parties.
6.2 SALE OF MATERIALS FOR PRODUCTS. Upon request of Licensee, and if
available in Licensor's then current excess inventory, Licensor shall sell to
Licensee materials and components for Products at a price equal to the cost
thereof paid by Licensor plus fifteen percent (15.0%).
6.3 CONSULTING SERVICES. Licensor shall make its employees reasonably
available to consult with Licensee in connection with the use of the Licensed
Technology and the manufacture of the Products. Licensee shall compensate
Licensor for such services according to the fees described in Exhibit C of this
Agreement.
7. TERMINATION OF OEM AGREEMENT. Except as specified in Section 5.2, the parties
hereby terminate the OEM Agreement effective as of the date of this Agreement.
Each of the parties, for itself and its officers, directors, employees, agents,
successors, and assigns, hereby releases the other party, and each of such other
party's officers, directors, employees, agents, successors and assigns, from any
and all claims that it may have against the other party under the OEM Agreement
or otherwise in connection with any Products sold to Licensee pursuant to that
Agreement, by reason of any act or omission, whether known or unknown, prior to
the date of this Agreement. The foregoing releases include all claims for
damages of all of the releasing parties, whether known or unknown, foreseen or
unforeseen, anticipated or unanticipated, and whether they are latent or arise
later as a result of the foregoing. Each of the parties hereto waives all rights
under ss.1542 of the California Civil Code, which reads as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
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EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
8. TERM AND TERMINATION.
8.1 TERM. The term of this Agreement shall begin as of the effective date
of this Agreement and, unless terminated sooner pursuant to the terms of this
Agreement, shall continue in perpetuity.
8.2 TERMINATION. If either party shall be in material default of any
obligation of such party hereunder and such default is not remedied within the
applicable time period set forth below, then the non-defaulting party may give
written notice of such default and of its election to terminate this Agreement
under this Section 8, unless the defaulting party either (a) remedies, or takes
reasonable steps to remedy, such default within thirty (30) days after the
delivery of such notice of termination, or (b) if such default is other than
with respect to the payment of money, and can be remedied but cannot easily be
remedied within such 30-day period, the default party commences such remedial
action within such 30-day period, and continues thereafter to diligently pursue
such remedy until the remedy is complete. Unless the default is remedied within
the applicable period set forth above, the non-defaulting party may terminate
this Agreement by a second written notice, specifying such termination, and this
Agreement shall terminate simultaneously with the delivery of such second
notice.
8.3 BANKRUPTCY. If either party files or has filed against it a petition
under the Federal Bankruptcy Code, is adjudged a bankrupt, or files or has filed
against it a petition for reorganization or arrangement under any law relating
to bankruptcy, insolvency, moratorium, or similar laws for the protection of
debtors, whether under the laws of the United States, any of its political
subdivisions or otherwise, such party shall:
8.3.1 notify the other party thereof within ten days after the filing
of such a petition or such adjudication;
8.3.2 unless the petition is earlier dismissed, within ninety days
after the filing of such petition, shall assume this Agreement, and shall file a
petition with the appropriate court for approval of such assumption; and
8.3.3 thereafter shall take all other action as may be reasonably
necessary to obtain the approval of such assumption. If, within such ninety-day
period such party does not notify the other party of its assumption or rejection
of this Agreement and does not file the petition for approval of such assumption
or rejection, such party shall be deemed to have assumed this Agreement
8.4 EFFECT OF TERMINATION. The termination of this Agreement by either
party shall not constitute or be deemed to constitute the waiver or release by
such party of any right or claim such party may have against the other party by
reason of actions or omissions occurring on or before the effective date of
termination.
8.5 SURVIVAL. The rights and obligations of each party under Sections 5, 7,
8, 9, 10, 11, and 13 hereof will survive the expiration of this Agreement.
9. CONFIDENTIAL INFORMATION.
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9.1 CONFIDENTIAL INFORMATION. The term "Confidential Information" means
only information which either is used by either party in the conduct of its
business or relates to the Licensed Technology, and which has not been
voluntarily released by the party to the general public. The Confidential
Information shall include, but not be limited to, all information, processes,
process parameters, methods, practices, fabrication techniques, technical plans,
algorithms, computer programs, software, and related documentation, customer
lists, price lists, supplier lists, marketing plans, financial information, and
all other compilations of information of the Company. The Confidential
Information shall include all those documents, writings and other information
which are marked "confidential" or by some similar notation as the proprietary
and/or marked exclusive information of either party. Licensee agrees that the
Licensed Technology, including the Documentation, Manufacturing Drawings, and
Object Code and Source Code versions of the Software constitute Confidential
Information of Licensor, whether or not specifically marked as so and whether
supplied prior to or following the execution of this Agreement. Notwithstanding
the foregoing, the term "Confidential Information" does not include and this
obligation of non-disclosure shall not apply to any information which is:
9.1.1 published or otherwise made available to the public other than
by breach of this Agreement by the party receiving the information; or
9.1.2 rightfully received by the receiving party from a third party
without any breach by such third party or the receiving party of any
confidential limitations or contractual obligations; or
9.1.3 known to the party receiving the information prior to the first
receipt of same from the disclosing party provided that the receiving party so
notifies the disclosing party thereof within 30 days after its receipt of the
information; or
9.1.4 hereinafter disclosed by the disclosing party to a third party
without restriction on disclosure; or
9.1.5 approved for public release by the disclosing party in writing;
or
9.1.6 independently developed by the receiving party; or
9.1.7 made public through disclosure as required by law or legal
process; provided that, if either party claims that this paragraph applies, such
party shall not disclose any of the Confidential Information unless it has given
the other party notice of such law or legal process at least thirty (30) days
prior to the scheduled date of disclosure of the Confidential Information and
reasonable opportunity to oppose such disclosure.
9.2 IDENTIFICATION OF CONFIDENTIAL INFORMATION. All additional Confidential
Information not covered in Section 9.1 above and disclosed by one party to the
other hereunder shall be clearly labeled as such. Confidential Information which
is disclosed orally or in any non-tangible form shall be summarized in writing
by the disclosing party. The written summary shall be clearly labeled as
Confidential Information and shall be delivered to the receiving party within
thirty days of disclosure.
9.3 OBLIGATIONS. Each party agrees to receive and hold all Confidential
Information of the other party in confidence for a period of three (3) years
after receipt of such information and shall exercise the same degree of care to
prevent the disclosure of such Confidential Information as it does to protect
its own Confidential Information. As a minimum protection, the receiving party
shall limit disclosure of Confidential Information to its employees having a
need to know such information and shall not disclose the
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Confidential Information of the other to any third party, individual,
corporation or other entity, without the prior written consent of the disclosing
party.
9.4 RETURN OF CONFIDENTIAL INFORMATION. Within thirty (30) days following
termination of this Agreement for whatever reason, unless termination is
disputed and submitted to arbitration per section 13.10 of this Agreement, at
the disclosing party's request, the receiving party shall return the original
and all copies of Confidential Information to the disclosing party, or certify
in writing that all copies have been destroyed.
9.5 INSPECTION. Each party may, as its own expense, examine the other
party's applicable records to verify that such party has satisfied such party's
obligations under this Section 9 relating to the protection of Confidential
Information. Each party agrees to make its records available to the other party
as requested upon one month prior written notice. No such examination shall be
made more than once during any twelve-month period. The audited party shall be
entitled to require execution of non-disclosure agreements by any person
designated to perform such an examination.
10. RIGHTS ON INSOLVENCY. The parties expressly acknowledge that the Licensed
Technology and Licensee's rights under this Agreement constitute "intellectual
property" within the meaning of Section 101 of the Bankruptcy Code, and that, in
the event Licensor becomes the subject of a bankruptcy case, it is the parties'
intention and understanding that Licensee would thereafter continue to be
entitled to exercise its rights under this Agreement as provided by Section
365(n) of the Bankruptcy Code. Accordingly, during the term of this Agreement,
Licensor will promptly deliver all embodiments of the Hardware Documentation and
Software Documentation to Licensee as soon as they are available to Licensor.
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11. Intellectual Property Infringement Indemnity.
11.1 Indemnification by Licensor. Licensor warrants and agrees as follows:
11.1.1 The Licensed Technology will not infringe any patent,
copyright, trade secret or other intellectual property right of any third party.
11.1.2 Licensor may grant Licensee the rights and licenses to be
granted to Licensee hereunder without breach of any contractual obligation of
Licensor, and, to the best of its knowledge, without infringement of any
intellectual property rights of any third party.
11.1.3 Notwithstanding the foregoing provisions of this Section 11 or
any other provision of this Agreement to the contrary, Licensor is not providing
to Licensee any representation or warranty to Licensee whatsoever, and Licensor
shall not be liable to Licensee for any claims, costs, damages, or expenses,
arising from or relating to any modifications to the Licensed Technology made by
Licensee after the effective date of this Agreement.
11.2 Indemnity by Licensor. Licensor will indemnify, defend, and hold
Licensee and its successors and assigns free and harmless from and against all
claims alleging such infringement or breach and all damages, loss, cost and
expense (including attorneys' fees) incurred by Licensee in connection with such
claims, provided that (a) Licensee provides Licensor written notice of such
claim within fourteen (14) days following the first date as of which Licensee
first discovers the existence of the claim, and (b) Licensee cooperates
reasonably with Licensor in the defense against the claim. Licensor may satisfy
its indemnity obligation under this Section 11.2 with respect to any particular
claim by procuring for Licensee from the party asserting infringement a license
that entitles Licensee to use the allegedly infringing item, on terms no less
favorable to Licensee than the terms of this Agreement; provided that obtaining
such a license will not relieve Licensor of its obligation to indemnify Licensee
for any indemnification damages, loss, cost or expense incurred by Licensee
prior to the time such license is secured.
11.3 Limitation. Other than the express warranties provided in this Section
11 and in Section 12, below, Licensor:
DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ON THE
CONFIDENTIAL INFORMATION OR THE INTELLECTUAL PROPERTY USE RIGHTS
TRANSFERRED HEREUNDER; and
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS OR
BUSINESS, LOSS OF USE, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES (EXCEPT
FOR BREACH OF THE INTELLECTUAL PROPERTY INFRINGEMENT WARRANTIES GIVEN IN
SECTION 11 OF THIS AGREEMENT), EVEN IF THE PARTY WAS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
12. YEAR 2000 COMPLIANCE.
12.1. YEAR 2000 WARRANTY. Licensor warrants to Licensee that the Software,
as it exists as of the effective date of this Agreement and used in connection
with other software, components and products that are Y2K Compliant (as defined
below), the Software is and will be Y2K Compliant. For purposes of this Section
12, the term "Y2K Compliant" means that the particular software, component or
other product
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will not fail to operate in conformity with its specifications on and after
December 31, 1999, solely by reason of the date changing to a date subsequent to
December 31, 1999. The representation provided in this Section 12 relates only
to the Software and does not constitute a representation or warranty as to
whether or not (a) the Software will operate, on or after December 31, 1999, in
conformity with its specifications if it is used in connection with any other
software, component or product that is not Y2K Compliant, or (b) any system,
component or other product in connection with which the Software is used will be
Y2K Compliant. Licensee acknowledges and agrees that, as between Licensor and
Licensee, Licensee is solely responsible for determining whether or not any of
such other software, component, product or system is Y2K Compliant. The
foregoing representation is made exclusively for the benefit of Licensee and its
successors and assigns. Licensor specifically disclaims any representation or
warranty to any party other than Licensee with respect to the Software and
whether or not the Software is or will beY2K Compliant.
THE FOREGOING WARRANTY CONSTITUTES LICENSOR'S SOLE WARRANTY WITH RESPECT
WHETHER OR NOT THE SOFTWARE IS Y2K COMPLIANT, AND LICENSOR SPECIFICALLY
DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT
TO WHETHER OR NOT THE SOFTWARE IS Y2K COMPLIANT.
12.2 YEAR 2000 INDEMNIFICATION. Subject to the limitations set forth in
this Section, Licensor will indemnify, defend and hold harmless Licensee, and
its successors and assigns, against any and all damages, costs, expenses,
liabilities and obligations arising from the breach or inaccuracy of the year
2000 warranty set forth in Section 12.1, above.
IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY LOSS OF PROFITS OR BUSINESS,
LOSS OF USE, LOSS OF DATA OR INFORMATION, LOSS OF QUIET ENJOYMENT, OR
INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES AS A RESULT OF THE BREACH OR
INACCURACY OF THE Y2K WARRANTY SET FORTH IN SECTION 12.1, ABOVE.
13. GENERAL TERMS.
13.1 TRADEMARKS. Nothing in this Agreement shall be construed to confer any
license, right to use, or other right with respect to any trademark or trade
name of either party.
13.2 NO IMPLIED LICENSE. No license is granted by this Agreement by either
party to the other, either directly or by implication, estoppel or otherwise,
except as expressly provided in this Agreement.
13.3 EXPORT REGULATIONS. If the Hardware or the Software is exported from
the United States or re-exported from a foreign destination by either party,
such party shall insure that the distribution and re-export thereof is in
compliance with all laws, regulations, orders, or other restrictions of the U.S.
Export Administration regulations.
13.4 SEVERABILITY. If any provision of this Agreement is for any reason
found to be ineffective, unenforceable, or illegal by any court having
jurisdiction, such condition shall not affect the validity or enforceability of
any of the remaining portions hereof, unless it deprives any party hereto of any
material right or license held by such party under this Agreement. The parties
shall negotiate in good faith to replace any such ineffective, unenforceable or
illegal provisions as soon as is practicable, and the substituted provision
shall, as closely as possible, have the same economic effect as the eliminated
provision.
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13.5 INDEPENDENT CONTRACTORS. Performance by the parties under this
Agreement shall be as independent contractors. Nothing contained herein or done
in pursuance of this Agreement shall constitute the parties' entering upon a
joint venture or partnership, or shall constitute either party the agent for the
other party for any purpose or in any sense whatsoever, or to create any
fiduciary or any other extra obligations.
13.6 NOTICES. All notices permitted or required by this Agreement shall be
in writing and shall be deemed to have been delivered and received (a) when
personally delivered, (b) on the third (3rd) business day after the date on
which deposited in the United States Mail, certified or registered mail, postage
prepaid, (c) on the date on which transmitted by facsimile (provided that the
sender's facsimile machine generates a written receipt confirming a successful
transmission), or (d) on the next business day after the date on which deposited
with a regulated public carrier (e.g, Federal Express) for the fastest available
overnight delivery, addressed to the party for whom intended at the address set
forth on the signature page of this Agreement or such other address or facsimile
number, notice of which is delivered in a manner permitted by this Section 13.6.
13.7 ASSIGNMENT. This Agreement is not assignable by either party without
the other party's written consent, provided that either party may assign this
Agreement to: (a) a subsidiary or entity controlling, controlled by or under
common control with such party or to any entity providing the assigning party
agrees to remain liable for its obligations under this Agreement; or (b) a third
party who acquires the assigning party by a merger or acquisition of eighty
percent (80%) or more of the assigning party's outstanding stock; or (c) by a
third party who acquires all or substantially all of the assets of the assigning
party; provided the assignee agrees to assume the assigning party's obligations
under this Agreement. Any attempted assignment in violation of this provision
shall be void. The provisions hereof will be binding upon and inure to the
benefit of the parties, their successors and permitted assigns.
13.8 NO CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
ANY LOSS OF PROFITS, LOSS OF USE, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES
FOR ANY BREACH OF A PARTY'S OBLIGATIONS UNDER THIS AGREEMENT.
13.9 GOVERNING LAW, JURISDICTION AND VENUE. This Agreement shall be
governed by and subject to and construed according to the internal laws of the
State of California. Each party hereby consents to the jurisdiction of the
courts of the defendant for any action construing or enforcing the rights and
duties created hereunder. The parties agree that the exclusive venue for all
disputes arising under or in connection with this Agreement shall be the court
of general jurisdiction in or for the County in which the defendant's principal
executive offices are located, and further hereby waive any right to object that
such venue is inconvenient or otherwise inappropriate.
13.10 ARBITRATION. Except for any action requiring the exercise of
equitable powers, all disputes which arise under this Agreement and are not
resolved within thirty (30) days following the date on which either party
delivers to the other a written notice invoking the arbitration provisions of
this Section 13.10 shall be resolved by binding arbitration before a single
arbitrator in Las Vegas, Nevada , under the rules then obtaining of the American
Arbitration Association. The arbitrator shall be an attorney licensed to
practice in California and shall have substantive experience in and familiarity
with the law, custom, and practice governing the development, marketing, and
licensing of hardware and software. The decision of the arbitrator shall be
final and binding on the parties, and judgment thereon may be entered in a court
of competent jurisdiction. This agreement to arbitrate shall be specifically
enforceable.
13.11 INCORPORATION OF EXHIBITS. All Exhibits referenced herein are
incorporated into and become an integral part of this Agreement by this
reference.
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13.12 ENTIRE AGREEMENT; AMENDMENTS. This Agreement (a) sets forth the
entire understanding of the parties concerning the subject matter hereof, and
supersedes all prior and contemporaneous agreements and understandings relating
to the subject matter hereof, whether oral or written, and (b) may not be
modified or amended, except by a written instrument executed after the effective
date of this Agreement by the party sought to be charged by the amendment or
modification.
13.13 COUNTERPARTS. This Agreement is executed in the English language and
may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
13.14 INTERPRETATION. Each party to this Agreement has been represented by
independent legal counsel. Therefore, the normal rule of construction that an
agreement shall be interpreted against the drafting party shall not apply. All
pronouns and any variation thereof shall be deemed to refer to the masculine,
feminine, or neuter and to the singular or plural as the identity of the person
or persons may require for property interpretation of this Agreement.
13.15 ATTORNEY'S FEES. In any action between the parties seeking
enforcement of any of the terms and provisions of this Agreement, the prevailing
party in such action shall be awarded, in addition to damages, injunctive or
other relief, its reasonable costs and expenses, not limited to taxable costs,
and a reasonable attorneys' fee.
13.16 COPYRIGHT NOTICES. Licensee shall place such copyright notices on the
Hardware and the Software and in such typical and reasonable places thereon as
Licensor may request from time to time to evidence or maintain its intellectual
property rights. Licensor may inspect, in accordance with the provisions of
Section 9.5 hereof, Licensee's applicable records to verify that Licensee has
complied with its obligations under this Section 13.16.
13.17 EFFECTIVE DATE. The effective date of this Agreement shall be May 17,
1999.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers.
SANTA ▇▇▇▇▇▇▇ CONNECTED SYSTEMS VODAVI TECHNOLOGY, INC.,
CORPORATION, a California corporation a Delaware corporation
By /s/ ▇▇▇▇▇▇ ▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ---------------------------------
▇▇▇▇▇▇ ▇▇▇▇, President Name & Title: President
Date May 17, 1999 Date May 24, 1999
Address and Facsimile No. for Notices: Address and Facsimile No.for Notices:
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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Connected Systems and Vodavi Technology Proprietary and Confidential