Exhibit 10.10
MetSolv Agreement No. Alt1001 [LOGO of MetaSolv]
--------------------------------------------------------------------------------
MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT
THIS SOFTWARE LICENSE AND SERVICES AGREEMENT (this "Agreement") is effective as
of this 19th day of December, 1997, ("Effective Date") by and between MetaSolv
Software, Inc. ("MetaSolv"), a Delaware corporation with principal offices at
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and Allegiance Telecom, Inc.
("Customer") with principal offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
The terms of this Agreement shall apply to each Software license granted and to
all services provided by MetaSolv under this Agreement. When completed and
executed by both parties, an Order, as described below, shall evidence the
Software licenses granted and the services to be provided by MetaSolv under this
Agreement.
For the purposes of this Agreement, the defined terms set forth herein shall
apply to the respective capitalized terms and their respective singular, plural
and verb forms.
1. Definitions
a) The term "Agreement" includes this Master Software License and
Services Agreement, and any Orders which reference it.
b) The term "Software" shall mean the software and related documentation
owned or distributed by MetaSolv for which Customer is granted a
license under this Agreement, the user guides and manuals for use of
the Software, and updates, new versions, releases and replacements to
such software and documentation.
c) The term "Order" shall mean a written order for MetaSolv products or
services signed by both parties hereto, and referencing this
Agreement. Customer agrees to include a reference to this Agreement,
by Agreement number, in all of its orders submitted for MetaSolv
products or services.
d) The term "Designated System" shall mean the computer hardware and
operating system, as well as replacements and upgrades thereto,
designated on the relevant Order.
e) Unless otherwise specified in the Order, "User" shall mean an
individual (including employees and independent contractors) who is
authorized by Customer to use the Software on the Designated System.
f) The term "Customer Affiliate" shall include corporations with any of
the following relationships to Customer, for so long as the specified
relationship continues to exist: controlling parent corporation;
controlled subsidiary corporation; or affiliate corporation under
common control with Customer.
2. Software License
a) Rights Granted. MetaSolv grants to Customer and any Customer
--------------
Affiliate a nonexclusive license to use the Software Customer obtains
under this Agreement as follows:
i) Customer and any Customer Affiliate shall use the Software,
anywhere within the United
--------------------------------------------------------------------------------
Page 1 Confidential
States of America and Canada, solely for its own internal data
processing operations on the Designated System or on a backup
system if the Designated System is inoperative, up to any
applicable maximum number of designated Users (if any User
limitations apply), or other limitation specified on the Order.
Customer may designate independent contractors as Users provided
such independent contractors have agreed with Customer that their
use of the Software shall be in accordance with the terms and
conditions set forth herein, and further provided that Customer
shall be responsible for any breach by such independent
contractors of the terms and conditions set forth herein.
Customer and Customer's Affiliates may not use the Software for
third-party training, commercial timesharing, rental or service
bureau use. Customer may distribute copies of the Software to any
Customer Affiliate for purposes of facilitating the Customer's
and Customer Affiliate's use permitted under this Agreement. In
addition, Customer and Customer's Affiliates shall have the right
to make copies of the Software for their internal use, subject to
the restrictions on use and disclosure set forth in this
Agreement.
ii) Customer and Customer's Affiliates may make as many archival
copies of the Software as are required for backup or disaster
recovery purposes only, which copies will include MetaSolv's
copyright, trademark and proprietary notices. Customer and any
Customer Affiliate may use an archival copy in a backup or
disaster recovery situation as if it were the original, in
accordance with the licensing rights and restrictions of this
Agreement.
b) Verification.
------------
i) At MetaSolv's written request, not more frequently than annually,
Customer shall furnish MetaSolv with a signed certification
verifying that the Software is being used by Customer and
Customer Affiliates pursuant to the provisions of this Agreement,
including any User and other limitations, and listing the
locations, types and serial numbers of the Designated Systems on
which the Software is run.
ii) MetaSolv may, upon reasonable notice and at its expense, audit
Customer's and any Customer Affiliate's use of the Software. Any
such audit shall be conducted during regular business hours at
Customer's or Customer Affiliate's facilities and shall not
unreasonably interfere with their business activities. If an
audit reveals that Customer has underpaid fees to MetaSolv,
Customer shall be invoiced for such underpaid fees based on the
current list price in effect at the time the audit is completed.
If the shortfall exceeds 5% of the license fees that the Customer
should have paid, Customer shall also pay MetaSolv reasonable
costs of conducting the audit, not to exceed $10,000.00 per
audit. Audits shall be conducted not more than once annually.
c) Ownership Rights. Title and ownership rights to Software, in its
----------------
original form and any modified version, shall remain with MetaSolv and
its applicable licensors. Where modification of any licensed Software
is expressly permitted by written communication from MetaSolv, title
and ownership rights to non-MetaSolv material that Customer or a
Customer Affiliate incorporates into a modified or derivative version
of the Software shall remain with Customer, Customer Affiliate or
Customer's third-party licensor. This paragraph does not authorize
modification of the Software.
d) Rights in Data. MetaSolv may use any suggestions and improvements
(other than those that qualify
--------------------------------------------------------------------------------
Page 2 Confidential
as "Proprietary Information") that Customer or any Customer Affiliate
happens to furnish to it in connection with this Agreement, and
Customer grants MetaSolv an unrestricted, irrevocable and royalty-free
license, without warranty of any kind, to include them in MetaSolv's
product or service offerings. MetaSolv indemnifies, defends and holds
harmless Customer from third-party claims arising from the use
MetaSolv makes of such suggestions and improvements. Customer or the
Customer Affiliate shall retain any ownership of such suggestions and
improvements, with an unrestricted right to use in any manner
Customer's or the Customer Affiliate's ideas, designs, concepts,
inventions, techniques, discoveries or improvements.
e) Patent and Copyright Indemnification. MetaSolv indemnifies, defends,
------------------------------------
and holds harmless Customer and any Customer Affiliate from any action
brought against Customer or the Customer Affiliate to the extent that
it is based on a claim that the Software infringes or misappropriates
any patent, trademark, trade secret, copyright or any other
proprietary right in the United States or Canada. MetaSolv's indemnity
obligations shall not extend to (i) infringement arising out of
unauthorized use of the Software, (ii) a non-MetaSolv modification of
the Software after delivery by MetaSolv, (iii) the combination,
operation, or use of the Software with non-MetaSolv programs or data
if such infringement would have been avoided by the combination,
operation or use of the Software with other programs or data. MetaSolv
shall pay all damages and costs attributable to an action and finally
awarded against Customer or Customer Affiliate, provided that:
MetaSolv is promptly informed in writing of each such claim, suit or
proceeding; Customer and any Customer Affiliate shall permit MetaSolv
to control the defense in settlement thereof; and Customer and any
Customer Affiliate shall cooperate in the defense and settlement
thereof. Customer shall furnish a copy of each communication, notice
or other action relating to the alleged infringement and shall provide
MetaSolv authority, information and assistance (at MetaSolv's expense)
necessary to defend or settle such claim. If the Software becomes, or,
in MetaSolv's opinion is likely to become, the subject of a claim of
infringement subject to this indemnity, then MetaSolv may, at its
option (i) procure for Customer and any Customer Affiliate the right
to use that Software free of any liability for infringement, (ii)
replace the Software with a non-infringing substitute complying
substantially with all the requirements of this Agreement, or if (i)
and (ii) are not commercially practicable or reasonable for MetaSolv,
then (iii) refund the license fee previously paid for the infringing
Software, less a charge for the value of Customer's and its Customer
Affiliate's prior use of the Software based upon a five (5) year
depreciation schedule, and accept return of the infringing Software.
THE FOREGOING INDEMNITY OBLIGATIONS CONSTITUTE METASOLV'S SOLE
LIABILITY AND CUSTOMER'S SOLE REMEDY FOR INFRINGEMENT OF PATENTS AND
COPYRIGHTS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. (OPEN
ISSUE)
3. Restriction of License
a) Except as otherwise specifically authorized by this Agreement:
i) Neither Customer nor any Customer Affiliate shall copy, modify,
sublicense, distribute, transfer, reverse engineer or reverse
compile the Software, nor shall Customer or any Customer
Affiliate prepare derivative works incorporating the Software.
ii) Neither Customer, any Customer Affiliate, nor their personnel
having had access to the Software or documentation may use it to
design software with similar or competitive functionality for
distribution to third parties, nor to distribute or deliver
educational courses
--------------------------------------------------------------------------------
Page 3 Confidential
or materials based on the Software or documentation to persons
other than to Customer, a Customer Affiliate or contractors, and
then only for the purpose of providing Software-related services
to Customer or a Customer Affiliate; provided, however, that for
purposes of construing this sentence in any action for breach of
contract (and not for purposes of determining copyright
infringement), that access to the Software or documentation alone
shall not be deemed to be "use" of such Software or
documentation, and shall not result in shifting the burden to the
Customer to disprove its "use" of the Software or documentation
for the above purposes.
4. License Fees & Payment
a) All fees and payments are to be made in U.S. dollars. License fees and
payment terms are determined on the Order submitted by Customer and
accepted by MetaSolv. Each Order submitted shall be subject to
applicable license fees. A finance charge of 1.5% per month (but in no
event more than the maximum allowed by law) shall be assessed on all
past-due amounts. Customer shall pay taxes arising out of Customer's
purchase and use of Software under this Agreement, which do not
include taxes based on MetaSolv's income.
5. Services
a) MetaSolv shall provide installation support and user training and
other services, only as specified on the Order. All travel expenses
incurred by MetaSolv as a result of such services shall be paid by
Customer.
6. Maintenance
a) Initial Maintenance Period. For the Initial Maintenance Period
--------------------------
specified on the Order, MetaSolv shall provide Standard Maintenance
Support for the Software at no additional charge.
b) Standard Maintenance Support. After the Initial Maintenance Period,
----------------------------
for as long as MetaSolv generally offers Standard Maintenance Support
for the Software to end-user licensees, Customer will automatically
receive Standard Maintenance Support in successive 12-month periods
based on MetaSolv's then current Standard Maintenance Support program.
A copy of MetaSolv's current Standard Maintenance Support program is
attached. Fees for Standard Maintenance Support are payable at the
beginning of each renewal maintenance period. Standard Maintenance
Support includes:
i) One (1) copy of standard maintenance releases as generally issued
to end-user licensees under MetaSolv's Maintenance Support
program for the correction of known errors, plus improvements,
modifications and enhancements that MetaSolv incorporates into
the Software and does not market as a separate product.
ii) MetaSolv's standard telephone customer service "hot-line" support
for reporting Software errors. MetaSolv will make reasonable
timely efforts to correct errors in the Software reported in this
way in a timely manner. Maintenance Support at any time covers
only the current release of the Software, plus the most recent
prior release for up to six months after release of the current
Software. Error correction applies only to Software used as
--------------------------------------------------------------------------------
Page 4 Confidential
authorized by this Agreement and applicable documentation, and
not to Software modified by Customer or a Customer Affiliate.
c) Customer will designate in writing one primary Customer employee, and
two back-up employees, as its and all Customer Affiliates' single
point of contact for MetaSolv's delivery of Standard Maintenance
Support for the Software. Standard Maintenance Support communications
and deliveries between Customer, its Customer Affiliates and MetaSolv
shall be through the single point of contact. Customer shall be
responsible for copying, distributing and otherwise disseminating such
Standard Maintenance Support from the single point of contact
throughout Customer and its Customer Affiliates. Customer may change
its single point of contact upon reasonable written notice to
MetaSolv.
7. Term & Termination of Agreement
a) If not otherwise specified on the Order, each Software license granted
under this Agreement shall remain in effect perpetually unless the
license or this Agreement is terminated in accordance with the
following:
i) For Cause. MetaSolv or Customer may terminate this Agreement and
any license under it at any time if, after thirty (30) days'
written notice, the other fails to correct a material breach of
this Agreement. If such a termination occurs, then in addition to
any other rights and remedies, Customer's and any Customer
Affiliate's rights to the Software shall end, and within thirty
(30) days following termination, Customer shall either return to
MetaSolv all copies of the Software, or destroy all copies of the
Software and provide to MetaSolv written certification of this
destruction.
ii) For Convenience. Customer may terminate any license under this
Agreement for convenience at any time by delivery of written
notice and either the return of all Software copies to MetaSolv,
or their destruction with written certification of destruction
delivered to MetaSolv.
8. Confidentiality
a) While this Agreement and related licenses are in effect, MetaSolv on
the one hand and Customer and any Customer Affiliate on the other hand
may disclose their proprietary and confidential information
("Proprietary Information") to each other. As used herein Proprietary
Information shall mean any and all technical or business information,
in whatever tangible form or medium, furnished or disclosed by one
party to another in connection with this Agreement (including but not
limited to, product/service specifications, prototypes, computer
programs, models, drawings, marketing plans, customer lists, financial
data, personnel statistics or third-party information), which (a) the
recipient should reasonably know to be the confidential information of
the disclosing party; or (b) is marked as confidential or proprietary;
or (c) for information which is orally disclosed, the disclosing party
indicates to the other at the time of disclosure the confidential or
proprietary nature of the information. For example, the Software
licensed to Customer includes Proprietary Information of MetaSolv.
Customer, the Customer Affiliates, and MetaSolv each shall hold the
others' Proprietary Information in confidence, with the same degree of
care that they apply to their own Proprietary Information of like
importance, and never less than reasonable care. Neither party
--------------------------------------------------------------------------------
Page 5 Confidential
has any confidentiality obligation to the other under this Agreement
for any information to the extent that it can show that the
information: (i) is previously known by it without obligation of
confidence, or without breach of this Agreement, (ii) is publicly
disclosed through no wrongful act of the disclosure, (iii) is received
from a third party without obligation of confidence and without breach
of this Agreement, (iv) is independently developed by the disclosing
party without access to the other's Proprietary Information, or (v) is
approved for release by written authorization of the owner. The
foregoing confidentiality obligation shall survive the termination of
this Agreement.
9. Warranty & Liability
a) MetaSolv warrants that it is the owner and/or the licensee of all
intellectual property rights relating to the Software and has the full
right to grant the licenses provided by this Agreement.
b) MetaSolv further warrants that during any Maintenance Support period,
the Software shall perform the functions described in the
documentation accompanying it, if properly used in accordance with the
documentation's instructions and specifications. In the event this
warranty is breached, MetaSolv will take action to repair or replace
defective Software in accordance with Section 9(f) below.
c) MetaSolv further warrants that the Software will record, store,
process, and present calendar dates falling on or after January 1,
2000, in substantially the same manner, and with substantially the
same functionality, as calendar dates falling on or before December
31, 1999. In the event this warranty is breached, MetaSolv will take
action to repair or replace defective Software in accordance with
Section 9(f) below.
d) MetaSolv shall exercise reasonable care to examine the Software prior
to shipment to Customer and to provide reasonable safeguards during
the performance of MetaSolv services to prevent the inclusion by
MetaSolv of a virus or other destructive functionality which may be
harmful to any computer system owned or operated by Customer and upon
which the Software is intended to run. MetaSolv warrants and
represents that it has not intentionally included any code in the
Software intended to cause Customer's computer system to cease to
operate, to operate in a degraded manner, to damage or destroy data or
code, or to operate and perform functions in an unauthorized manner.
The term "computer system" includes hardware, operating system
software and any applications software used in conjunction with the
Software. In the event that a virus is discovered by either party,
such party shall notify the other party of the existence of the virus
and provide available information and reasonable assistance regarding
such virus. Customer agrees that it shall use reasonable software
security and virus prevention measures designed to discover, prevent
and/or contain the spread, disruption or harmful effects of a virus
and that it shall otherwise take reasonable steps to mitigate any
possible damages to itself caused by such virus. In the event that
MetaSolv has introduced such a virus or other destructive
functionality into the Software, or delivered the Software to Customer
with such a virus or other destructive functionality in it, then
MetaSolv shall take action to repair or replace such software as
defective Software, as it would under Section 9(f) below.
--------------------------------------------------------------------------------
Page 6 Confidential
e) MetaSolv further warrants that services shall be performed in a
professional manner in accordance with standards and practices
generally observed in the industry for similar products and services
or MetaSolv will reperform the services as set forth in Section 9(f)
below.
f) During any Maintenance Period, if the warranty is breached, MetaSolv
shall take action to repair or replace defective Software, in
accordance with its Maintenance Support obligations. For services,
MetaSolv will reperform defective services in order to correct such
defective services, upon written notice from Customer received not
more than thirty (30) days after the defective service was performed.
g) METASOLV MAKES NO OTHER WARRANTY FOR ANY PRODUCTS OR SERVICES UNDER
THIS AGREEMENT. THE WARRANTIES ABOVE ARE INSTEAD OF ALL OTHER
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED
TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, AND ANY OTHER WARRANTY OBLIGATION ON THE PART OF
METASOLV OR ITS LICENSORS. FURTHERMORE, THE STATED REMEDIES FOR BREACH
OF WARRANTY ARE EXCLUSIVE, AND METASOLV PROVIDES NO OTHERS.
h) Except as otherwise provided for patent and copyright infringement
indemnities above, MetaSolv's maximum liability to Customer, and
Customer's remedy for any cause whatsoever, will be limited to the
recovery of actual damages up to any amounts paid by Customer with
respect to the applicable Order. NEITHER METASOLV NOR CUSTOMER WILL BE
LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR
LOSS OF DATA, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, EXCEPT FOR BREACH OF THE OTHER'S CONFIDENTIALITY OR
INTELLECTUAL PROPERTY RIGHTS.
10. Arbitration of Disputes
a) Any dispute arising under this Agreement, shall be submitted to
binding arbitration, to the American Arbitration Association ("AAA")
in Dallas, Texas according to the rules and procedures of the AAA for
commercial arbitration. Unless the parties agree otherwise, there
shall be a single arbitrator selected by agreement among the parties
or, if they cannot agree, designated by the AAA. It shall be the
determination of the arbitrator as to which of the parties shall be
responsible for any attorneys' fees and costs incurred by each party
as a result of the Arbitration. The award of the arbitrator shall be
final and binding upon the parties and may be confirmed by any court
having jurisdiction over the parties and the controversy.
11. General
a) This Agreement may be assigned by Customer, but only to a Customer
Affiliate, in any event with written notice by Customer to MetaSolv,
and Customer shall thereafter remain jointly and severally liable for
the Customer Affiliate's performance in accordance with the terms of
this Agreement. Furthermore, Customer may assign this Agreement and/or
any license under this Agreement to a nonaffiliated third party not
included in the preceding sentence and without remaining jointly and
severably liable under the preceding sentence, but only if all of the
following conditions are satisfied: Customer receives the prior
written consent of MetaSolv (not to be unreasonably
--------------------------------------------------------------------------------
Page 7 Confidential
withheld); the assignment is in connection with the sale by Customer
of all or substantially all of its assets or the assets of a Customer
Affiliate to such third party; the third party executes a written
assumption and acceptance of all remaining obligations of Customer and
such Customer Affiliate.
b) Neither party shall be liable for failure to perform any material
obligation under this Agreement, if the failure is due to an event
beyond its reasonable control.
c) Each party shall comply with all applicable export control laws and
regulations concerning the Software, including but not limited to the
securing of export licenses and execution of letters of assurance as
required under such laws or regulations.
d) All notices and other communications required or permitted to be given
under this Agreement shall be in writing, by certified mail or courier
service, to the addresses given on the first page of this Agreement,
unless by such notice a different address shall have been designated,
and shall be considered effective when deposited in the U.S. mail,
postage prepaid, and addressed to the appropriate party at the address
noted above.
e) This Agreement is the entire, exclusive set of terms and conditions
for any transactions entered into under it, and may be modified only
by a written instrument duly signed by authorized representatives of
both parties. This Agreement is governed by the laws of the State of
Texas.
f) In the event either party at any time terminates this Agreement as
stipulated in Article 7, then Paragraphs 2(c), 2(d), 3, 8, 9(e), 9(f),
10, and 11, in their entirety, shall survive the life of this
Agreement.
g) Termination of this Agreement or any license shall not relieve
Customer's obligation to pay all fees that have accrued or are
otherwise owed by Customer under any Order or other similar ordering
document under this Agreement.
--------------------------------------------------------------------------------
Page 8 Confidential
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective duly authorized representatives as set forth below:
MetaSolv Software, Inc. Allegiance Telecom, Inc.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:__________________________________ By:__________________________________
(Signature) (Signature)
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________________ _____________________________________
Typed or Printed Name Typed or Printed Name
VP - Business Services Senior Vice President & CIO
_____________________________________ _____________________________________
Title Title
December 26, 1997 December 26, 1997
_____________________________________ _____________________________________
Date Date
--------------------------------------------------------------------------------
Page 9 Confidential
