EXHIBIT 10.28
SOFTWARE LICENSE AGREEMENT
This Software License Agreement is made as of this 21st day of September,
1999, between Preferred Voice, Inc., a Delaware corporation ("Licensor") and
Southwest Texas Telephone Company, a Texas corporation, on behalf of itself and
its wholly owned subsidiaries and affiliates ("Licensee"). Licensor and Licensee
are collectively referred to in this Agreement as the "Parties."
BACKGROUND INFORMATION
Licensor has developed a system (the "System") that when interconnected
with a telephone switching system is capable of performing the services (the
"Services") described in a Marketing Agreement between Licensor and Licensee of
even date (the "Marketing Agreement"). Each System consists of the hardware,
certain third party software (the "Third Party Software") and certain
proprietary application software developed by Licensor (the "Application
Software"). Licensee is a licensed local exchange carrier that is currently
providing telecommunications service in local calling areas described in the
Marketing Agreement (the "Service Areas"). Licensee wishes to offer the Services
to end users ("End Users") under its own brand in conjunction with its
telecommunications services, and Licensor has agreed to install its System in
Licensee's location for that purpose pursuant to the Marketing Agreement.
In consideration of the mutual promises made in this Agreement, Licensor
and Licensee agree that the terms and conditions set forth as follows will apply
to the license of Application Software.
ARTICLE 1. LICENSE AND PROCUREMENT
1.01 LICENSE. Pursuant to this Agreement, Licensor hereby grants to
Licensee a nontransferable, non-exclusive license to use the Application
Software, together with all subsequent improvements thereto in the Service Area.
1.02 TERM. The initial term of this Agreement shall be co-terminus wit
Marketing Agreement.
ARTICLE 2. LIMITATIONS ON USE
2.01 GENERAL USE. Licensee agrees to use the Application Software solely to
provide the Services to End Users. Licensee may private brand the Services it
offers.
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2.02 LOCATION.
(a) Use of Application Software. The Application Software may be used
only on the hardware provided by Licensor ("Designated Hardware") at
Licensee's switch locations in the Licensed Areas.
(b) Temporary Use of Non-Desiqnated Hardware. Licensee may temporarily
install and use the Application Software on hardware other than Designated
Hardware, but only if the Designated Hardware cannot be used because of
hardware, software or other malfunction and only until the Designated
Hardware is returned to operation. Licensee shall not install or use the
Application Software on such replacement hardware without the prior verbal
consent of Licensor. Licensor shall not unreasonably withhold this consent
if the proposed replacement hardware meets or exceeds the Specifications
for the Designated Hardware.
2.03 COPIES. Licensee may make one "backup copy" of the Application
Software for archival purposes at each location; any such archival copy may be
stored at the location where the products are installed and operational or at
any such reputable off-site storage facility or facilities, as the case may be,
which Licensee, in its reasonable judgment, shall select to maintain and protect
such archival copy for purposes of disaster recovery. Licensee shall not
otherwise copy any portion of the Software. Licensee shall reproduce and include
Licensor's applicable copyright notice, patent notice, trademark, or service
▇▇▇▇ on any copies of the Application Software.
ARTICLE 3. PROPERTY RIGHTS
3.01 TITLE TO SOFTWARE. Title to the Application Software is reserved for
Licensor. Licensee acknowledges and agrees that Licensor is and shall remain the
owner of the Application Software and shall be the owner of all copies of the
Application Software made by Licensee.
3.02 CONFIDENTIALITY OF SOFTWARE. Licensee acknowledges that the
Application Software is confidential in nature and constitutes a trade secret
belonging to Licensor. Licensee agrees to hold the Application Software in
confidence for Licensor and not to sell, rent, license, distribute, transfer, or
disclose the Application Software or its contents, including methods or ideas
used in the Application Software, to anyone except to employees of Licensee when
disclosure to employees is necessary to use the license granted in this
Agreement. Licensee shall instruct all employees to whom any such disclosure is
made that the disclosure is confidential and that the employee must keep the
Application Software confidential by using the same care and discretion that
they use with other data designated by Licensee as confidential. The
confidentiality requirements of this Section shall be in effect both during the
term of this Agreement and after it is terminated, provided, that the foregoing
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restrictions shall not apply to information: (a) generally known to the public
or obtainable from public sources; (b) readily apparent from the keyboard
operations, visual display, or output reports of the Application Software; (c)
previously in the possession of Licensee or subsequently developed or acquired
without reliance on the Application Software; or (d) approved by Licensor for
release without restriction.
3.03 SECURITY. Licensee agrees to keep the Software in a secure place,
under access and use restrictions designated to prevent disclosure of the
Software to unauthorized persons. Licensee agrees to at least implement the
security precautions that it normally uses to protect its own confidential
materials and trade secrets.
3.04 DISCLOSURE AS BREACH. Licensee agrees that any disclosure of the
Software to a third party, except as set forth above, constitutes a material
breach of this Agreement, entitling Licensor to the benefit of Section 5.01
hereof.
3.05 REMOVAL OF MARKINGS. Licensee agrees not to remove, mutilate, or
destroy any copyright, patent notice, trademark, service ▇▇▇▇, other proprietary
markings, or confidential legends placed on or within the Software.
ARTICLE 4. WARRANTY PROVISIONS
4.01 WARRANTIES.
(a) General. Licensor warrants that (i) it has good title to the
Application Software and the right to license its use to Licensee free of
any proprietary rights, liens, or encumbrances of any other party, (ii) the
Application Software will permit the System to provide Services when
properly interconnected to Licensee's functioning switches described in the
Marketing Agreement (provided, that any modification of the Application
Software by any persons other than Licensor shall void the Warranty in this
clause (iii) commencing on installation thereof, and for a period of 90
days thereafter, (iv) the Software shall be free of viruses, bugs or
contaminants which may cause damage to Licensee's systems or interrupt
Licensee's utilization of a System; and (v) the media in which the Software
is contained shall be free of material defects in materials or workmanship.
(b) Year 2000. Licensor warrants that the Application Software
delivered or modified by Licensor is, or will be, Year 2000 Compliant (as
defined below). Year 2000 Compliant software that is intended to
interoperate with third party products (including Third Party Software) as
described herein will be compatible and interoperate in such manner as to
process between them, as applicable, date related data correctly as
described in the definition of "Year 2000 Compliant." Except as set forth
in the preceding sentence, (i) Licensor assumes no responsibilities or
obligations to cause third party products to function with the Application
Software; and (ii) Licensor will not be in breach of this warranty for any
failure of the Application Software to be Year 2000 Compliant if such
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failure results from the inability of any software, hardware, or systems of
Licensee or any third party to be Year 2000 Compliant. "Year 2000 Compliant"
means that (a) neither the performance nor functionality of the Application
Software will be affected by dates prior to, during and after the year 2000, (b)
no value for current date will cause any interruption in the operation of the
Application Software; (c) the year 2000 is recognized as a leap year; (d) in all
interfaces and data storage the century, in any date, is specified either
explicitly or by unambiguous algorithms or inferencing rules and (e) date-based
functionality of the Application Software behaves and will behave consistently
for dates prior to, during and after the year 2000.
4.02 REMEDIES. In the event of any nonconformity or defect in the
Application Software (or any other breach with respect to the condition or
operation of the Application Software) for which Licensor is responsible,
Licensor shall, during the foregoing respective warranty periods, (A) provide
reasonable efforts to correct or cure such nonconformity, defect, contaminant or
breach (which may include a workaround for system errors), (13) at Licensor's
option, replace the relevant part of the Application Software in lieu of curing
such nonconformity, defect, contaminant or breach, or (C) if Licensor determines
that neither of the foregoing is commercially practicable, remove the System and
terminate the Marketing Agreement and this License Agreement.
4.03 WARRANTY DISCLAIMER. LICENSOR DOES NOT REPRESENT OR WARRANT THAT ALL
ERRORS WILL BE CORRECTED. LICENSEE AGREES THAT LICENSEE'S SOLE AND EXCLUSIVE
REMEDY FOR THE DEFECTS DESCRIBED IN THIS SECTION SHALL BE LIMITED TO THE
CORRECTIVE ACTION DESCRIBED IN THIS SECTION. THE EXPRESS WARRANTIES SET FORTH IN
THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4.04 LIMITATION OF REMEDIES. LICENSEE AGREES THAT ITS EXCLUSIVE REMEDIES,
AND LICENSOR'S ENTIRE LIABILITY WITH RESPECT TO THE SOFTWARE IS AS SET FORTH IN
THIS AGREEMENT. LICENSEE FURTHER AGREES THAT LICENSOR SHALL NOT BE LIABLE TO
LICENSEE FOR ANY INDIRECT DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, OR
OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF ITS USE OR INABILITY
TO USE THE SOFTWARE OR THE BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, EXCEPT AS
SET FORTH IN SECTION 4.05.
4.05 INDEMNIFICATION.
(a) Infringement. Licensor agrees to indemnify and hold Licensee and
its directors, officers, employees and agents, harmless against any and all
claims, demands, actions, losses, liabilities, judgments, settlements,
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awards and costs (including reasonable attorneys' fees and expenses)
(collectively, "Liabilities") arising out of or related to any claim
against Licensee by a third party that Licensee's use or possession of the
Application Software (or the license granted to Licensee hereunder with
respect thereto), infringes or violates any United States patent, copyright
or other proprietary right of any third party; provided that Licensee gives
Licensor prompt notice of any such claim of which it has actual knowledge
and cooperates fully with Licensor in the defense of such claim. Licensor
shall have the exclusive right to defend and settle at its sole discretion
and expense all suits or proceedings arising out of the foregoing. Licensee
shall not have the right to settle any action, claim or threatened action
without the prior written consent of Licensor (at Licensor's sole and
absolute discretion). In case use of the Application Software is forbidden
by a court of competent jurisdictionbecause of proprietary infringement,
Licensor shall promptly, at its option, (i) procure for Licensee the rights
to continue using the Application Software; (ii) replace the infringing
Application Software with non-infringing Application Software of equal
performance and quality which are materially the functional equivalent of
the infringing Application Software; (iii) modify the infringing
Application Software so it becomes non- infringing while materially
maintaining the functionality thereof; or (iv) if none of the foregoing are
commercially practicable, remove the System and terminate the Marketing
Agreement and this License Agreement Licensor will then be released from
any further obligation whatsoever to Licensee with respect to the
infringing part of the Application Software. Nothing in this Section shall
be deemed to make Licensor liable for any patent or copyright infringement
suits that arise in connection with (a) designs, modifications, use,
integration or data furnished by Licensee if infringement would have been
avoided by not using or combining the Application Software with such other
programs or data or (b) if infringement would have been avoided by the use
of an updated version made available to Licensee.
(b) Other. Licensor agrees to indemnify and hold Licensee harmless
against any and all Liabilities arising out of Licensor's negligent acts or
omissions, intentional torts, or material breach of this Agreement.
ARTICLE 5. TERMINATION
5.01 CAUSE FOR TERMINATION. The license granted in this Agreement shall
terminate automatically and without further notice upon the occurrence of
expiration of the term, specified in Section 1.02 or of any renewal term in the
absence of a subsequent renewal in accordance with the terms of this Agreement.
Licensor may terminate this Agreement in the event that (a) Licensee discloses
the Software to a third party, whether directly or indirectly and whether
inadvertently or purposefully, or (b) Licensee attempts to use, copy, license,
or convey the Software in any manner contrary to the terms of this Agreement or
in derogation of Licensor's proprietary rights in the Application Software. In
addition, either party may terminate this Agreement (and all licenses granted
hereunder) at any time if (a) the other party breaches any term hereof (other
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than breaches by Licensee pursuant to the preceding sentence) or the Marketing
Agreement and fails to cure such breach within 30 days after receipt of written
notice, (b) the other party shall be or becomes insolvent, (c) the other party
makes an assignment for the benefit of creditors, (d) there are instituted by
the other party proceedings in bankruptcy or under any insolvency or similar law
or for reorganization, receivership or dissolution, (e) there are instituted
against the other party proceedings in bankruptcy or under any insolvency or
similar law or for reorganization, receivership or dissolution, which
proceedings are not dismissed within 60 days, or (f) the other party ceases to
do business.
5.02 EFFECT OF TERMINATION. Licensee agrees that on termination under
Section 5.01, Licensor may recover all copies of Application Software that have
been delivered to or made by Licensee, and (on Licensor's request) Licensee
shall destroy all copies of the Application Software that are not recovered by
Licensor, certify to Licensor that it has retained no copies of the Application
Software, and acknowledge that it may no longer use the Application Software.
Upon termination of the license, Licensor's obligations under this Agreement
shall cease.
ARTICLE 6. MISCELLANEOUS
6.01 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCEPT THAT ANY CONFLICTS OF LAW
RULES OR PRINCIPLES OF THE STATE OF TEXAS THAT WOULD REQUIRE REFERENCE TO THE
LAWS OF ANOTHER JURISDICTION SHALL BE DISREGARDED.
6.02 HEADINGS. Headings used in this Agreement are to facilitate reference
only, are not a part of this Agreement, and will not in any way affect the
interpretation hereof. The use herein of the word "including," when following
any general statement, term or matter, shall not be construed to limit such
statement, term or matter to the specific items or matters set forth immediately
following such word or to similar items or matters, whether or not non- limiting
language (such as "without limitation," or "but not limited to," or words of
similar import) is used with references thereto, but rather shall be deemed to
refer to all other items and matters, that reasonably could fall within the
broadest possible scope of such general statement, term or matter.
6.03 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 will not
be unreasonably withheld; except that either party may freely assign any or all
of its rights and obligations hereunder to any affiliate. An affiliate is (a) an
entity that owns all or substantially all of the outstanding stock of the entity
so assigning, (b) an entity all or substantially all of whose stock is owned by
the entity so assigning, or (c) an entity under common ownership with the entity
so assigning. Such assignee entity shall thereupon be free to assign the rights
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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.
6.04 FAILURE OR PARTIAL EXERCISES. No failure on the part of any party to
exercise, and no delay in exercising, any right or remedy hereunder shall
operate as a waiver thereof. Nor shall any single or partial exercise of any
right or remedy hereunder exclude any other or further exercise thereof or the
exercise of any other right hereunder.
6.05 ENTIRE AGREEMENT, AMENDMENTS. This Agreement and all schedules and
exhibits annexed hereto constitute the entire agreement among the parties
respecting the subject matter hereof and supersedes all prior agreements among
the parties relative to the subject matter hereof. In entering this Agreement,
Licensee did not rely on any representations or warranties of Licensor 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 which is signed by duly authorized
representative of the parties.
6.06 NOTICES. All notices required or permitted to be given hereunder shall
be in writing and shall be valid and sufficient if dispatched either (i) by hand
delivery, (ii) by facsimile transceiver, with confirming letter mailed promptly
thereafter by first class mail, postage prepaid, (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 facsimile as aforesaid, notices given as herein
provided shall be considered to have been received at the beginning of
recipient's next business day following their confirmed transmission; otherwise,
notices shall be considered to have been received only upon delivery or
attempted delivery during normal business hours.
6.07 PARTIAL INVALIDITY. If any clause or provision of this Agreement is
held to be illegal, invalid, or unenforceable under present or future laws
effective during the term of this Agreement, then and in that event, it is the
intention of the parties hereto that the remainder of this Agreement shall not
be affected thereby, and it is also the intention of the parties to this
Agreement that in lieu of each clause or provision of this Agreement that is
held to be illegal, invalid, or unenforceable, there be added as a part of this
Agreement a clause or provision as similar in terms to such illegal, invalid, or
unenforceable clause or provision as may be possible and still be legal, valid,
and enforceable.
6.08 ATTORNEYS FEES. The prevailing party in any litigation, arbitration or
other proceedings arising out of this Agreement shall be reimbursed by the other
party for all costs and expenses incurred in such proceedings, including
reasonable attorneys' fees.
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6.09 FORCE MAJEURE. No party hereto shall be liable for delay or default in
performing hereunder, other than a delay or default in payment of any monies due
to the other party, if such performance is delayed or prevented by a Force
Majeure Condition. "Force Majeure Condition" means any condition or event beyond
the reasonable control of the party affected thereby, including fire, explosion,
or other casualty, act of God, war or civil disturbance, acts of public enemies,
embargo, the performance or non-performance of third parties, acts of city,
state, local or federal governments in their sovereign, regulatory, or
contractual capacity, labor difficulties, and strikes, but specifically
excluding a party's failure to be Year 2000 Compliant. 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 terms 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. Each party shall,
with the cooperation of the other, exercise all reasonable efforts to mitigate
the extent of a delay or failure resulting from a Force Majeure Condition.
6.10 INDEPENDENT CONTRACTOR. The relationship of the parties established by
this Agreement is that of independent contractors, and nothing contained in this
Agreement will be construed (a) to give either party the power to direct and
control the day-to-day activities of the other, (b) to constitute the parties as
partners, joint venturers, owners or otherwise as participants in a joint or
common undertaking, or (c) to allow either party to create or assume any
obligation on behalf of the other for any purpose whatsoever.
PREFERRED VOICE, INC. Southwest Texas Telephone Company
on behalf of itself and its wholly owned
subsidiaries and affiliates
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President Title: President
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Fax No.: ▇▇▇-▇▇▇-▇▇▇▇ FAX No.: ▇▇▇-▇▇▇-▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
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