Major Account License Agreement - Selectica Inc. and Aspect Telecommunications
MAJOR ACCOUNT LICENSE AGREEMENT
This Agreement, dated as of May 17, 1999 (the "Effective Date"), is
made and entered into by and between Selectica, Inc. 2890 Zanker Road, Suite
101, San Jose, California, 95134 ("SELECTICA"), and Aspect Telecommunications,
1730 Fox Drive San Jose, CA 95131("Customer"). SELECTICA and Customer agree as
follows:
SECTION 1. DEFINITIONS
Whenever used in this Agreement, the following terms will have the
following specified meanings:
1.1 "DOCUMENTATION" means the documentation specified in Exhibit A
attached hereto and licensed to Customer hereunder, together with any and all
new releases, corrections and updates furnished by SELECTICA to Customer under
this Agreement.
1.2 "SOFTWARE" means the computer software specified in Exhibit A
attached hereto, in object code form, together with any and all Upgrades
furnished by SELECTICA to Customer under this Agreement.
1.3 "UPGRADES" means all releases, updates and corrections of the
Software licensed to Customer hereunder, in object code form, which are
published and generally made commercially available by SELECTICA to its
licensees of the Software with a change in the integer, tenths or hundredths
digit of the version number (e.g., a change form version x.xx to y.xx or x.yx or
x.xy). Upgrades shall not include any release, update or correction that has
been customized by SELECTICA for use by any particular licensee of the Software
or which is made by SELECTICA solely to adopt or reflect the trade dress of any
third party.
SECTION 2. SOFTWARE DELIVERY AND LICENSE
2.1 DELIVERABLES. Upon execution of this Agreement, SELECTICA shall
deliver to Customer one reproducible master copy of the Software licensed
hereunder to Customer, in object code form, and one copy of the Documentation.
2.2 GRANT. SELECTICA hereby grants Customer a worldwide irrevocable,
nonexclusive, nontransferable, perpetual license to:
(a) Install and use the Software ordered by Customer hereunder
for internal processing requirements of Customer on the number of Customer's
servers and/or users then authorized under this Agreement. The number of servers
and/or users initially authorized hereunder is set forth in Exhibit A. Customer
may increase the
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number of authorized servers and/or users from time to time in unit quantities
and upon payment to SELECTICA of the applicable amount as set forth in Exhibit
B.
(b) Reproduce the Documentation for the Software ordered by
Customer hereunder and/or incorporate all or any portion of the Documentation in
training materials prepared by the Customer, in each case solely for the use of
the Customer and provided that the copyright notices and other proprietary
rights legends of SELECTICA are included on each copy of the Documentation and
such materials.
(c) Reproduce and make one copy of the Software for archival and
backup purposes.
2.3 RESTRICTIONS. Customer shall use the Software and Documentation
only for the purposes specified in section 2.2 and in accordance with the
following:
(a) Customer shall not modify or prepare derivative works of the
Software or Documentation except as expressly permitted in Section 2.2;
(b) Customer shall not reverse engineer, disassemble or decompose
the Software, except to the extent that such acts may not be prohibited under
applicable law;
(c) Customer shall not remove, obscure, or alter any notice of
patent, copyright, trade secret, trademark, or other proprietary rights notices
present on any Software Documentation;
(d) Customer shall not sublicense, sell, lend, rent, lease, or
otherwise transfer all or any portion of the Software or the Documentation to
any third party except as may be permitted in Section 9.4 hereof; and
(e) Customer shall not use the Software or the Documentation to
provide services to third parties, or otherwise use the same on a "service
business" basis.
2.4 COMPLIANCE WITH LAWS. SELECTICA and Customer shall each comply
with all applicable laws, regulations, rules, orders and other requirements, now
or hereafter in effect, of any applicable governmental authority, in their
performance of this Agreement. Without limiting the generality of the foregoing,
Customer will comply with all export laws and regulations of the United States
in dealing with the Software including its export and use of the Software
outside the United States.
2.5 PROPRIETARY RIGHTS. The Software Documentation contains valuable
patent, copyright, trade secret, trademark and other proprietary rights of
SELECTICA. Except for the license granted under Section 2.2, SELECTICA reserves
all rights to the Software and Documentation. No title to or ownership of any
Software or proprietary rights related to the Software or Documentation is
transferred to Customer under this Agreement.
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2.6 PROTECTION AGAINST UNAUTHORIZED USE. Customer shall promptly
notify SELECTICA of any unauthorized use of the Software or Documentation
licensed to the Customer hereunder which comes to Customer's attention. In the
event of any unauthorized use by any of Customer's employees, agents or
representatives, Customer shall use its commercially reasonable efforts to
terminate such unauthorized use and to retrieve any copy of the Software or
Documentation in the possession or control of the person or entity engaging in
such unauthorized use. SELECTICA may, at its option and sole expense, monitor
any such proceeding and, in such an event, Customer shall provide such
information related to such proceeding as SELECTICA may reasonably request.
2.7 RECORDS. Customer shall ensure that each copy it makes of all or
any portion of the Software or the Documentation includes the notice of
copyright or other proprietary rights legends appearing in or on the Software or
the Documentation delivered to Customer by SELECTICA; shall keep accurate
records of the reproduction and location of each copy. SELECTICA may audit, at
its sole expense and no more than once a year, Customer's use of the Software,
provided that it gives Customer thirty (30) days prior written notice. Any such
audit shall be conducted during regular business hours at Customer's facilities
and shall not unreasonably interfere with Customer's business activities. All
information disclosed by Customer during the course of the audit shall be
Confidential Information subject to the provisions of Section 9.15.
2.8 PRE-IMPLEMENTATION TESTING AND ACCEPTANCE. The pre-implementation
testing and acceptance of the Software shall be performed as specified in
Exhibit A.
SECTION 3. SUPPORT SERVICES, TRAINING AND MAINTENANCE
3.1 SUPPORT SERVICES AND TRAINING. Provided Customer has paid
SELECTICA the applicable maintenance fee specified in Exhibit B, SELECTICA will
provide Customer with the maintenance services and training set forth below.
SELECTICA shall continue to offer such maintenance services and training for at
least thirty-six (36) months from the installation date of the Software ordered.
After such period, SELECTICA reserves the right to change or discontinue from
time to time all or any part of the services or systems described below,
provided that SELECTICA gives Customer at least six (6) months prior written
notice of such change in, or discontinuance of, such services or systems.
Software problems shall be classified with their corresponding response times,
resolutions and solutions as follows: LEVEL 1: the production development system
is down and the product is unusable resulting in total disruption/product
outage, response time 2 hours; resolution: 24 hours workaround with engineering
working around the clock if a patch is required; solution: fix/incorporate into
next release and provide workaround if necessary. -LEVEL 2: a major
feature/function failure exists and operation is severely restricted and there
is no convenient workaround, response time 4 hours; resolution: 48 hours
workaround with fix delivered in monthly patch release; solution:
fix/incorporate into next release and provide workaround if necessary. -LEVEL 3:
a minor feature/function failure exists; response time 8 hours;
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resolution: workaround with fix delivered in the next release; solution: provide
fix or workaround which may be in next major release. -LEVEL 4: a minor problem
exists-i.e. documentation, information, enhancement request; response time 24
hours; resolution: answer technical information requests and forward issues to
appropriate groups; solution: update with next release.
(a) Telephone/Fax Support.SELECTICA will provide Customer with
telephone support twenty-four hours a day, seven days per week. Customer will
ensure that only person(s) properly trained in the operation and usage of the
Software and designated by SELECTICA as a contact in accordance with paragraph
3.1(e) below will utilize such telephone support. SELECTICA will provide such
telephone assistance relation to the (i) installation and operational use of the
Software; (ii) identification and verification of the causes of suspected errors
or malfunctions in the Software; and (iii) providing of detours for identified
Software errors or malfunctions, where reasonably available to SELECTICA.
(b) Internet Access. SELECTICA shall furnish Customer with access
to (i) SELECTICA's homepage on which SELECTICA will from time to time publish
information regarding any then existing defects and other problems related to
the Software and detours then discovered, together with information about future
Software enhancements and related SELECTICA products and (ii) SELECTICA's
electronic mail system by which Customer may send questions to SELECTICA about
software. SELECTICA will use reasonable efforts to respond to such inquiries
within one (1) business day of receipt.
(c) Training Services. SELECTICA will authorize a maximum of two
Customer employees to contact SELECTICA for telephone and/or fax Support. Each
contact must have completed SELECTICA's ACE Basic, ACE Basic Plus and ACE
Intensive training courses ("Training Course"), and will be designated as either
the primary or backup contact. The Training Course features are described in the
most current version of the Selectica Course Description brochure.
3.2 MAINTENANCE. Provided Customer has paid SELECTICA the applicable
maintenance fee specified in Exhibit B, SELECTICA will furnish to Customer
within[thirty (30) days after publication, one (1) copy of all Upgrades.
3.3 OTHER SERVICES. SELECTICA will furnish to Customer the Software
customization and/or additional maintenance services and/or training identified
in Exhibit C, if any, on the terms and conditions specified therein.
SECTION 4. COMPENSATION
4.1 LICENSE FEE. Customer will pay SELECTICA the Software license fee
according to the payment schedule as specified in Exhibit B.
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4.2 MAINTENANCE FEE. In consideration for SELECTICA's services set
forth in Section 3.1 and 3.2, Customer agrees to pay SELECTICA the maintenance
fee in the amount and in accordance with the terms of Exhibit B for the first
twelve (12) month period commencing on the Effective Date. Customer may renew
the services described in Section 3.1 and 3.2 thereafter on an annual basis by
payment of the maintenance fee before the beginning of each new twelve (12)
month period After the end of the second twelve (12) month period after the
Effective Date, SELECTICA may increase the maintenance fee for subsequent
maintenance periods, but the overall increase in the maintenance fee for any
twelve (12) month period shall not exceed the increase during the previous
twelve (12) month period for the published United States Consumer Price Index.
SELECTICA shall give Customer at least sixty (60) days prior written notice of
any such change. SELECTICA reserves the right to charge Customer a reinstatement
fee to resume such maintenance services if Customer has not continuously
maintained such services in effect in accordance with the terms of this Section
4.2.
4.3 PAYMENT. All fees, charges and other sums payable to SELECTICA
under this Agreement will be due and payable on the dates specified in Exhibit
B, or within thirty (30) days after invoice date if no date is specified in
Exhibit B. Except for the invoice for payments specified in Exhibit B, all
invoices shall be issued after the date of acceptance. All monetary amounts are
specified and shall be paid in the lawful currency of the United States of
America. Customer shall pay all amounts due under this Agreement to SELECTICA at
the address set forth herein or such other location as SELECTICA designates in
writing. Any amount not paid when due will bear interest at the rate of one and
one half percent (1.5%) per month or, the maximum rate permitted by law,
whichever is less, determined and compounded on a daily basis from the date due
until the date paid. All fees, charges and other sums payable to SELECTICA under
this Agreement do not include any sales, use, excise or other applicable taxes,
tariffs or duties (excluding any applicable federal and state taxes based on
SELECTICA's net income), payment of which shall be the sole responsibility of
Customer. Customer shall have the right to challenge, at its sole control and
expense, the validity of all applicable taxes and SELECTICA shall assist
Customer as necessary, without any additional cost to SELECTICA, in contesting
such taxes.
SECTION 5. TERM AND TERMINATION
5.1 TERM. The term of this Agreement and the license set forth in
Section 2.2 shall commence on the Effective Date and shall end upon the
termination of this Agreement pursuant to Section 5.2 or 5.3.
5.2 TERMINATION BY CUSTOMER. Customer may terminate this Agreement
and the license for any reason by providing SELECTICA with sixty (60) days prior
written notice.
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5.3 TERMINATION FOR CAUSE. If either party defaults in the
performance of or compliance with any of its material obligations under this
Agreement, and such default has not been remedied or cured within thirty (30)
days after the other party gives the breaching party written notice specifying
the default or, if the nature of the default is such that more than thirty (30)
days are required for the cure thereof, and the breaching party fails to
commence its effort to cure such breach or default within such thirty (30) days
and to diligently prosecute the same to completion thereafter to the other
party's satisfaction in its sole discretion, the other party may terminate this
Agreement and the license, in addition to its other rights and remedies under
law. In the case of termination due to breach by SELECTICA, Customer shall
receive a pro-rata refund of maintenance fees for the remaining maintenance term
paid for beyond the termination date.
5.4 POST TERMINATION. Upon termination of this Agreement, Customer
shall promptly cease the use of the Software and Documentation and destroy (and
in writing certify such destruction) or return to SELECTICA all copies of the
Software and Documentation then in Customer's possession or control.
5.5 SURVIVAL. Sections 2.5, 5.4, 7, 8 and 9 shall survive the
termination of this Agreement. Customer shall pay SELECTICA only for those fees
still owing up until the date of termination.
SECTION 6. WARRANTIES AND REMEDIES
6.1 PERFORMANCE WARRANTY AND REMEDY. SELECTICA warrants to Customer
that when operated in accordance with the Documentation and other instructions
provided by SELECTICA, the Software will perform in all material respects in
accordance with the functional specifications set forth in the Documentation
(without the need for customization or modification, or delivery of additional
services) for a period of ninety (90) days after the date of installation of the
Software at the Customer site. SELECTICA also warrants that it shall promptly
provide Customer with current, complete and accurate documentation and other
user materials, and that all such documentation and user materials shall contain
information sufficient to explain the operation of the Software. If the Software
fails to comply with the warranty set forth in this Section 6.1, SELECTICA will
use reasonable commercial efforts to correct the noncompliance provided that:
Customer promptly notifies SELECTICA of the noncompliance of the Software to the
Customer, and SELECTICA is able to reproduce the noncompliance as communicated
by Customer to SELECTICA. If after the expenditure of reasonable efforts,
SELECTICA is unable to correct any such noncompliance, SELECTICA shall refund to
Customer the license fee paid by Customer to SELECTICA for such Software in full
satisfaction of Customer's claims relating to such noncompliance upon Customer's
return of said Software.
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6.2 PERFORMANCE WARRANTY LIMITATIONS. The warranties set forth in
Section 6.1 do not apply to any noncompliance of the software resulting from
misuse, casualty loss, use or combination of the Software with any products,
goods, services or other items furnished by anyone other than SELECTICA (unless
otherwise approved by SELECTICA), any modification not made by or for SELECTICA
(unless otherwise approved by SELECTICA), or any use of the Software by Customer
in contradiction of the terms of this Agreement (unless otherwise approved by
SELECTICA).
6.3 ADDITIONAL SOFTWARE WARRANTIES. SELECTICA further warrants that:
(1) the SELECTICA Software shall be free from any and all defects in material of
the media in which the Software is delivered; and (2) SELECTICA has checked for
viruses in the Software using commercially available virus checking software
consistent with standard industry practice; and (3) that the Software does not
and shall not contain at the time issued or delivered by SELECTICA to Customer a
device for monitoring the use of the Software at any time, or contain any
program, routine, device, or other undisclosed feature, including, without
limitation, time-bomb, virus, software lock, drop dead device, malicious logic,
worm, Trojan horse, or trap door that is designed to delete, disable,
deactivate, interfere with or otherwise harm the Software or Customer's
hardware, data, or other software, or that is intended to provide access or
produce modifications not authorized by the Customer (collectively "Disabling
Procedures"). Such Disabling Procedures warranty is intended to apply regardless
of whether such Disabling Procedures are authorized by SELECTICA to be included
in such Software. If SELECTICA incorporates into the Software any software or
routines supplied by other vendors, licensors, or contractors, SELECTICA shall
obtain comparable warranties from such providers or SELECTICA shall take
appropriate action to ensure that such Software or routines are free of
Disabling Procedures. If the Software fails to comply with the warranty set
forth in this Section 6.3, SELECTICA will use reasonable commercial efforts to
correct the noncompliance. If after the expenditure of reasonable efforts,
SELECTICA is unable to correct any such noncompliance, SELECTICA, in addition to
all other remedies that might be available, shall refund to Customer all or an
equitable portion of the license fee paid by Customer to SELECTICA for such
Software. Notwithstanding the foregoing remedies, SELECTICA agrees to notify the
Customer immediately upon discovery of any Disabling Procedures that are or may
be included in the Software that have been issued or delivered to the Customer,
and if the Disabling Procedures are discovered or reasonably suspected to be
present in the Software, SELECTICA agrees to take action immediately, at its own
expense, to identify and eradicate (or to equip Customer to identify and
eradicate) such Disabling Procedures and carry out any recovery necessary to
remedy any impact of such Disabling Procedures.
6.4 PASS-THROUGH WARRANTY. SELECTICA warrants that it shall
pass-through or assign to Customer any and all third party warranties which
SELECTICA receives in connection with any Software licensed to the Customer, to
the extent that Customer's agreements with such third parties permit such
pass-through.
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6.5 SERVICES WARRANTY. SELECTICA warrants that it shall perform the
consulting, training, support, maintenance and all other professional services
hereunder in a timely, professional and workmanlike manner, using individuals of
suitable training and skill, in accordance with the highest industry standards.
In addition to any other remedies available to Customer for breach of this
warranty, SELECTICA shall promptly re-perform the services as warranted, or if
unable to do so, refund the applicable fees paid for the unsatisfactory
services.
SECTION 7. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
SELECTICA agrees, at its own expense, to defend, indemnify and hold
harmless Customer for , and at its opinion to settle, any and all claims,
demands, litigation, liabilities or actions brought against Customer on the
issue of infringement of any United States or United Kingdom patent, copyright,
trademark, trade secret or any other intellectual property right of any third
party by the Software as used within the scope of this Agreement, and to pay all
damages, expenses and costs, including reasonable attorney's fees, which may be
assessed against Customer under any such claim, demand, litigation, liability or
action. SELECTICA shall be released from the foregoing obligation unless
Customer provides SELECTICA with (i) prompt written notice after Customer first
becomes aware of such a claim, demand, litigation, liability or action; (ii)
sole control and authority over the defense or settlement thereof (Customer
shall, at its sole expense, have the right to employ separate counsel to monitor
the defense and settlement of the claim thereof); and (iii) proper and full
information as is reasonable, and reasonable assistance to settle and/or defend
any such claim or action. Without limiting the forgoing, if a final injunction
is, or SELECTICA believes, in its sole discretion, is likely to be, entered
prohibiting the use of the Software by Customer as contemplated herein,
SELECTICA will, at its sole option and expense, either (a) procure for Customer
the right to use the infringing Software as provided herein or (b) replace the
infringing Software with noninfringing, functionally equivalent products, or (c)
suitably modify the infringing Software so that it is not infringing, with no
loss of functionality; or (d) in the event (a), (b) and (c) are not commercially
reasonable, terminate the license, accept return of the infringing Software and
refund to Customer the license fee paid therefor, reduced by an amount equal to
the depreciated portion of the payments calculated on a five (5) year straight
line basis. Except as specified above, SELECTICA will not be liable for any
costs or expenses incurred without its prior written authorization, not to be
unreasonably withheld. Notwithstanding the foregoing, SELECTICA assumes no
liability for infringement claims arising from (i) combination of the Software
with the other products not provided by SELECTICA, but not covering the Software
alone, unless SELECTICA has approved of such combination or (ii) any
modifications to the Software unless such modification was approved by, or was
made, by SELECTICA. THE FOREGOING PROVISIONS OF THIS SECTION 7 STATE THE ENTIRE
LIABILITY AND OBLIGATIONS OF SELECTICA AND THE EXCLUSIVE REMEDY OF
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CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT,
COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE
SOFTWARE.
SECTION 8. DISCLAIMER WARRANTY AND LIMITATION OF LIABILITY
8.1 DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH ININ THIS AGREEMENT
AND ALL ATTACHMENTS REFERENCED HEREIN, SELECTICA MAKES NO WARRANTIES WHETHER
EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE SOFTWARE OR THE
DOCUMENTATION OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER
UNDER THIS AGREEMENT. SELECTICA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, AND SATISFACTORY QUALITY
WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND ANY OTHER MATERIALS AND SERVICES
PROVIDED BY SELECTICA HEREUNDER, AND WITH RESPECT TO THE USE OF THE FORGOING.
8.2 LIMITATION OF LIABILITY. EXCEPT AS SET FORTH IN SECTION 7, IN NO
EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS
INTERRUPTION, LOSS OF DATA, COST TO RECOVER, OR FOR ANY INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING
OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE, DOCUMENTATION OR ANY
MATERIALS OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF
CONTRACT OR TORTUOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF THE OTHER PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS SET FORTH IN SECTION
7, EACH PARTY'S LIABILITY UNDER THIS AGREEMENT FOR DAMAGES WILL NOT, IN ANY
EVENT, EXCEED THE AGGREGATE AMOUNT PAID BY THE CUSTOMER TO SELECTICA UNDER THIS
AGREEMENT.
SECTION 9. MISCELLANEOUS
9.1 NONDISCLOSURE OF AGREEMENT. Each party shall not disclose the
terms of this Agreement or the ongoing business relationship initiated by this
Agreement except as required by law or governmental regulation without the other
party's prior written consent, except that each party may disclose the terms of
this Agreement on a confidential basis to its accountants, attorneys, parent
organizations and financial advisors and lenders.
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9.2 This item not used.
9.3 NOTICES. Any notice or other communication under this Agreement
given by either party to the other will be deemed to be properly given if given
in writing and delivered in person or facsimile, if acknowledged received by
return facsimile or followed within one day by a delivered or mailed copy of
such notice, or if mailed, properly addressed and stamped with the required
postage, to the intended recipient at its address specified in this Agreement.
Either party may from time to time change its address for notices under this
Section by giving the other party notice of the change in accordance with this
Section 9.3.
9.4 ASSIGNMENT. Each party shall not assign (directly, by operation
of law or otherwise) this Agreement or any of its rights under this Agreement
without the prior written consent of the other party, not to be unreasonably
withheld, except that each party may assign all, but not part, of this Agreement
and the Software and Documentation then in its possession or control to the
successor of Customer in a merger or other similar corporate reorganization
outside of the course of Customer's normal business operations or to the
purchaser of substantially all of Customer's assets, provided such successor or
purchaser agrees in writing to comply with the terms of this Agreement.
Notwithstanding the foregoing, SELECTICA shall not in any instance assign its
service obligations under Section 3 and Exhibit C of this Agreement without the
prior written consent of the Customer. Subject to the foregoing, this Agreement
is binding upon, inures to the benefit of and is enforceable by the parties and
their respective successors and assigns.
9.5 NONWAIVER. Any failure of either party to insist upon or enforce
performance by the other party of any of the provisions of this Agreement or to
exercise any rights or remedies under this Agreement will not be interpreted or
construed as a waiver or relinquishment of such party's right to assert or rely
upon such provision, right or remedy in that or any other instance.
9.6 ENTIRE AGREEMENT. This Agreement and all of its Exhibits
referenced herein constitute the entire agreement, and supersede any and all
prior agreements, between SELECTICA and Customer relating to the Software,
Documentation, services and other items subject to this Agreement. No amendment
of this Agreement will be valid unless set forth in a written instrument signed
by both parties.
9.7 GOVERNING LAW, JURISDICTION ANDNON-BINDING MEDIATION. The rights
and obligations of the parties under this Agreement shall not be governed by the
1980 UN Convention on Contracts for the International Sale of Goods, but instead
shall be governed by and construed under the laws of the State of California,
including its Uniform Commercial Code, without reference to its conflict of laws
principles. In the event of any controversy, claim or dispute between the
parties arising out of or relating to this Agreement, such controversy, claim or
dispute may be tried solely in a state or federal court for Santa Clara County,
California, and the parties hereby irrevocably
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consent to the jurisdiction and venue of such courts. Except as otherwise
provided in this Agreement, no civil action with respect to any dispute, claim
or controversy arising out of or in connection with this Agreement may be
commenced until the matter has been submitted to JAMS/ENDISPUTE, or its
successor, for mediation. Either party may commence mediation by providing to
JAMS/ENDISPUTE and the other party a written request for mediation, setting
forth the subject of the dispute and the relief requested. The parties will
cooperate with JAMS/ENDISPUTE and each other in selecting a mediator from
JAMS/ENDISPUTE's panel of neutrals, and in scheduling the mediation proceedings.
The parties agree to participate in the mediation in good faith, and to share
equally its costs. All conduct and statements, whether oral or written, made in
the course of the mediation by any of the parties, their agents, employees,
experts and attorneys, and by the mediator and any JAMS/ENDISPUTE employees, are
confidential, privileged and inadmissible for any purpose, including
impeachment, in any litigation or other proceeding between the parties, provided
that evidence that is otherwise admissible or discoverable shall not be rendered
inadmissible or non-discoverable as a result of its use in the mediation.
Notwithstanding the foregoing, either party may seek equitable relief from a
court of competent jurisdiction prior to the mediation in order to protect its
Intellectual Property Rights. Except for such an action to obtain equitable
relief, neither party may commence a civil action with respect to the matters
submitted to mediation until after the completion of the initial mediation
session, or 45 days after the date of filing the written request for mediation,
whichever occurs first. Mediation may continue after the commencement of a civil
action, if the parties so desire. The provisions of this Section 9.7 may be
enforced by any court of competent jurisdiction, and the party seeking
enforcement shall be entitled to an award of all costs, fees and expenses,
including attorneys' fees, to be paid by the party against whom enforcement is
ordered.
9.8 LANGUAGE. This Agreement is in the English language only, which
language shall be controlling in all respects, and all versions hereof in any
other language shall not be binding to the parties hereto. All communications
and notices to be made or given pursuant to this Agreement shall be in the
English language.
9.9 APPLICABILITY OF PROVISIONS LIMITING SELECTICA'S LIABILITY. The
provisions of this Agreement under which the liability of each party is excluded
or limited, shall not apply to the extent that such exclusions or limitations
are declared illegal or void under any applicable laws, unless the illegality or
invalidity is cured under such laws by the fact that the law of California
governs this Agreement.
9.10 YEAR 2000 COMPLIANCE WARRANTY. SELECTICA represents and warrants
that the Software as delivered will operate prior to, during, and after, the
calendar year 2000 A.D. without error relating to date data, specifically
including but not limited to any error relating to calculations (including leap
year calculations), sorting, interpretation, processing or acceptance of date
data which represents or references different centuries or more than one century
and loss of functionality with respect to the introduction of records containing
dates falling on or after January 1, 2000, provided that all hardware, firmware
and other software used in conjunction with the Software properly
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exchanges accurate and properly formatted date data with the Software. SELECTICA
represents and warrants that the Software only responds to four-digit year
values in the range of 0000 to 9999. SELECTICA further warrants that for any
technical support provided by SELECTICA for the Software, the level of such
technical support shall not be materially impacted by the Year 2000. SELECTICA
shall promptly notify Company in writing if it discovers that any of the
Software, or any portions thereof, are not Year 2000 Compliant. If the Software
fails to comply with the warranty set forth in this Section 12, SELECTICA will
use reasonable commercial efforts to correct the noncompliance by repair,
replacement, reconfiguration, or workaround (with no loss of functionality),
provided that Customer notifies SELECTICA of the noncompliance within the Year
2000 Warranty Period, and SELECTICA is able to reproduce the noncompliance as
communicated by Customer to SELECTICA. If after the expenditure of reasonable
efforts, SELECTICA is unable to correct any such noncompliance, SELECTICA may
refund to Customer the license fee paid by Customer to SELECTICA for such
Software in full satisfaction of Customer's claims relating to such
noncompliance upon Customer's return of said Software. The foregoing Year 2000
Compliance Warranty shall expire on December 31, 2000.
9.11 SOURCE CODE ESCROW
SELECTICA agrees to keep, and maintain current, a copy of the source code and
relevant materials (hereinafter referred to as "Escrow Materials") for the
Software in Escrow with Fort Knox (the "Escrow Agent"). A copy of the Escrow
Materials for each maintenance release or new version of the Software licensed
hereunder will also be delivered to the Escrow Agent to be held in escrow;
provided, however, that SELECTICA need not update the Escrow Materials more
frequently than either twice per year or upon release of a new version of the
Software.
SELECTICA shall enter into an agreement with the Escrow Agent, under
which Customer shall be a beneficiary, setting out the terms of this Section
9.11, and further providing that upon notification by Customer of the occurrence
of an event described in Paragraph (a) below and Customer's requesting delivery
of the Escrow Materials, the Escrow Agent shall give notice thereof to
SELECTICA. If SELECTICA does not challenge the request within thirty (30) days
of receipt of such notice, the Escrow Agent may proceed; otherwise, the matter
shall be referred to arbitration, as described in the escrow agreement.
(a) SELECTICA's agreement with the Escrow Agent shall provide
that a copy of the Escrow Materials for the Software will be delivered to
Customer by the Escrow Agent in the event that (i) SELECTICA (or its successors
or assigns) ceases doing business as a going concern, (ii) an involuntary
bankruptcy petition is not discharged within sixty (60) days after SELECTICA
receives notice of the filing of the petition or (iii) SELECTICA discontinues
supporting the software for any reason.
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(b) Upon delivery of the Escrow Materials to Customer, Customer
shall have a nontransferable, nonexclusive license to use the Escrow Materials
to support and maintain the Software for existing sublicenses and for no other
purpose Customer shall retain a right to deploy additional licenses for use
subject to the license provisions of this agreement. SELECTICA shall retain all
ownership right, title and interest in and to the Escrow Materials, including
all patents, copyrights, trademarks, trade secrets and other intellectual
property rights inherent therein. Customer shall maintain the Escrow Materials
in the strictest confidence and disclose them to employees only as necessary to
exercise its rights granted herein. The object code derived from the source code
is subject to the same restrictions as apply to the Software distributed under
this Agreement.
9.12 FORCE MAJEURE. Neither party will be liable for, or be
considered to be in breach of or default under this Agreement as a result of any
cause or condition beyond such party's reasonable control.
9.13 SEVERABILITY. In the event that any provision of this Agreement
(or any portion hereof) is determined by a court of competent jurisdiction to be
illegal, invalid, or otherwise unenforceable, such provision (or part thereof)
will be enforced to the extent possible consistent with the stated intention of
the parties, or, if incapable of such enforcement, will be deemed to be severed
and deleted from this Agreement, while the remainder of this Agreement will
continue in full force and remain in effect according to its stated terms and
conditions.
9.14 PREVAILING PARTIES. In any suit or proceeding between the
parties, arising out of or involving this Agreement, the prevailing party shall
be entitled to recover its costs and expenses related to such suit or
proceeding, including reasonable attorney's fees. The provisions of this Section
9.14 shall survive expiration, cancellation or termination of this Agreement.
9.15 CONFIDENTIAL INFORMATION. By virtue of this Agreement, the
parties may have access to information that is confidential to one another
("Confidential Information"). Confidential Information will be limited to:
planning, pricing and offerings for products and services; other product
information including but not limited to configuration and packaging details;
terms and pricing under this Agreement; all information clearly identified or
marked as confidential; and all information identified elsewhere in this
Agreement as Confidential Information. A party's Confidential Information will
not include information that: (i) is or becomes generally known to the public
through no act or omission of the other party; (ii) was in the other party's
lawful possession prior to the disclosure and had not been obtained by the other
party either directly or indirectly from the disclosing party; (iii) is lawfully
disclosed to the other party by a third party without restriction on disclosure;
or (iv) is independently developed by the other party without use of or
reference to the other party's Confidential
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Information. The parties agree to hold each other's Confidential Information in
confidence during the term of this Agreement and for a period of three (3) years
after termination of this Agreement. The parties agree, unless required by law,
not to make each other's Confidential Information available in any form to any
third party for any purpose except to the extent necessary to exercise its
rights under this Agreement and to treat Confidential Information of the other
party with the same degree of care with which it would treat its own
confidential information of a like nature, and in no case with less than a
reasonable degree of care. It shall not be a breach of this section if
Confidential Information is disclosed pursuant to subpoena or other compulsory
judicial or administrative process, provided the party served with such process
promptly notifies the other party and provides reasonable assistance so that the
other party may seek a protective order against public disclosure. Each party
agrees to limit the disclosure of Confidential Information to those of its
employees and agents who have a need to know such Confidential Information, and
each party agrees to take all reasonable steps to ensure that Confidential
Information is not disclosed or distributed by its employees or agents in
violation of the terms of this Agreement. Each party agrees not to use the other
party's Confidential Information for any purpose other than the performance of
this Agreement.
9.16 RELATIONSHIP OF THE PARTIES. This Agreement shall not be
construed as creating an agency, partnership, joint venture or any other form of
association, for tax purposes or otherwise, between the parties; the parties
shall at all times be and remain independent contractors. Except as expressly
agreed by the parties in writing, neither party shall have any right or
authority, express or implied, to assume or create any obligation of any kind,
or to make any representation or warranty, on behalf of the other party or to
bind the other party in any respect whatsoever.
9.17 TITLES AND HEADINGS/CLERICAL ERRORS. The title and section
headings of this Agreement are inserted for convenience only and are not
intended to affect the meaning or interpretation of this Agreement. Clerical
errors are subject to correction by mutual agreement of the parties.
9.18 ACCEPTANCE. Neither this Agreement nor any of its EXHIBITs will
become effective until signed by the authorized officers of both parties
designated below at their offices in San Jose, California.
SECTION 10 INSURANCE
10.1 INSURANCE. SELECTICA shall provide Customer, prior to the
commencement of this Agreement, with a signed original Certificate of Insurance.
Customer shall be named as Additional Insured on all liability coverages.
SELECTICA shall maintain insurance throughout the life of this Agreement as
follows:
PRIMARY LIABILITY. Commercial General Liability insurance shall be
with limits
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not less than $2,000,000 Per Occurrence and $2,000,000 General Aggregate.
PROFESSIONAL LIABILITY. There shall be at least $5,000,000 of Professional
Liability to cover errors or omissions. This shall include Electronic Errors and
Omissions coverage for hardware and software. AUTO LIABILITY. Primary Automobile
Liability shall be with limits not less than $1,000,000 per occurrence covering
owned and non-owned vehicles. EXCESS LIABILITY. Excess liability shall be
provided on an umbrella form excess of the primary liability policies, with
limits not less than $5,000,000 each occurrence. WORKMEN'S COMPENSATION. The
Employer's Liability limits shall be $1,000,000. All of the foregoing policies
shall be on an "occurrence" basis unless otherwise expressly stated. All such
coverages shall remain in full force and effect during the initial term of the
Agreement and any renewal thereof. Customer shall be notified 30 days prior to
any coverage cancellation.
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In Witness whereof, the parties have executed this Agreement by their duly
authorized representatives.
SELECTICA, INC. ASPECT TELECOMMUNICATIONS
--------------------------------------------
("SELECTICA") ("Customer")
By: /s/ [ILLEGIBLE] By: /s/ KATHY CRUZ
--------------------------------- -------------------------------------
Print name: [ILLEGIBLE] Print name: KATHY CRUZ
------------------------- -----------------------------
Title: VICE PRESIDENT Title: SENIOR VICE PRESIDENT-CIO
------------------------------ ----------------------------------
Date: 5-25-99 Date 24 MAY 1999
------------------------------- ------------------------------------
Address: 2890 Zanker Road Address: 1730 Fox Drive
---------------------------- --------------------------------
Suite 101
---------------------------- --------------------------------
San Jose, CA 95134 San Jose, CA 95131
---------------------------- --------------------------------
Telephone #: (408) 570-9700 Telephone #: 408-325-4180
------------------------ ----------------------------
Facsimile #: (408) 570-9705 Facsimile #: 408-325-4004
------------------------ ----------------------------
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EXHIBIT A
DESCRIPTION OF SOFTWARE AND DOCUMENTATION
LICENSED SERVERS
Description Quantity Licensed
----------- -----------------
ACE Enterprise Server, including Documentation
Single CPU None
Dual CPU 1 (One)
ACE Enterprise Pro Server, including Documentation
Single CPU None
Dual CPU 1 (One)
Single CPU-Test and Development 1 (One)
Server Manager None
ACE Quoter, including Documentation
Single CPU None
Dual CPU 1 (One)
ACE Connector (Oracle) 1 (One)
LICENSED USERS
ACE Studio - Number of Licensed Users
Including Documentation 4(Four)
ACE Mobile Docker - Number of Licensed Users
Including Documentation 250
ACE Framework - Number of Licensed Users
Including Documentation 250
Note 1: Additionally purchased seats of ACE Mobile shall be priced at $[*]
per seat.
Note 2: Customer shall have the right to install an additional 4 ACE Studio
seats above the licensed four (4) during the twelve month period following the
acceptance date of the software. If these four seats of ACE Studio are installed
during the twelve (12) month period following "Acceptance", these seats shall be
considered "licensed".
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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Note 3: If during the initial twenty-four month period following "acceptance",
Customer elects to deinstall the ACE Mobile Seats from the Customer
workstations, and reimplement the software on those user environments as an
"HTML" application utilizing the ACE Enterprise Server as the Internet
application server, Customer shall have the licensed right to install the
licensed ACE Enterprise Server and licenced ACE Quoter Server on Four-processor
servers, rather than the licensed dual processor servers.
Note 4: It is understood by Customer and SELECTICA that Customer shall receive
the Selectica Software products defined as ACE Application Framework and ACE
Studio HTML Editor when these products are made generally available to the
marketplace by Selectica. There shall be no extra charge for software licensing
or annual maintenance for these Software products. Selectica is utilizing both
of these Selectica Software products in the development of the Aspect Statement
of Work.
PRE-IMPLEMENTATION TESTING AND ACCEPTANCE OF THE SOFTWARE.
Prior to the delivery of the Software to the Customer, Selectica shall develop
testing procedures and provide them to Customer for its approval, such approval
not to be unreasonably withheld. Such testing procedures shall be sufficient to
test the functionality of the Software in Customer's operating environment and
using Customer's data. Within ten (10) days after installation of the Software
is completed, such testing procedures shall be applied and, if such procedures
are satisfied and the Software otherwise conforms to the requirements of this
Agreement, Selectica shall so certify to Customer. Unless Customer has notified
Selectica of a material defect in the Software that has not yet been cured, the
Software shall be deemed accepted thirty days after the date of receipt by
Customer of such certification. Acceptance of the Software shall not affect any
warranties still in effect under this Agreement. Customer shall incur no
additional fees under these pre-implementation testing and acceptance
provisions.
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EXHIBIT B
LICENSE AND MAINTENANCE FEES
1. License Fee. $[*]
2. Maintenance Fee. Maintenance fees are due in advance on an annual basis.
Maintenance fees for the use of the Software on any additional servers or
workstations licensed subsequent to the Effective Date will be payable
concurrently with the additional server or user license fee on a pro-rated
annual basis.
Annual maintenance and upgrade support $[*]
Note: Per Section 4.2 of this Agreement, maintenance fees of $[*]
annually will remain fixed at $[*] per annum for Year #1 and Year
#2 beginning August 1, 1999. Effective August 1, 2001, annual
maintenance fee increases will be limited to the annual increase for
the preceding 12 month period in the United States Consumer Price
Index.
3. PAYMENT SCHEDULE:
Selectica will invoice for payments shown in this Exhibit A upon receipt of the
accepted Agreement. Customer agrees to remit payments according to the following
payment schedule:
May 26, 1999 Software $[*]
Aug 1, 1999 Annual Maintenance $[*]
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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EXHIBIT C
ADDITIONAL SERVICES AND TRAINING
SELECTICA INC. CONSULTING SERVICES: GENERAL TERMS AND CONDITIONS
--------------------------------------------------------------------------------
1. The services that Selectica will perform as a "Work for Hire" for
Customer (the "Services") are described on the attached Statement of
Work and Authorization, and in any further Statement of Works entered
into by Selectica and Customer referencing this Statement of Work, in
accordance with the terms and conditions of this Exhibit C and the Major
Account License Agreement (License Agreement) that this Exhibit C is
incorporated by reference thereto.
2. Customer will pay Selectica for Services actually rendered at the
Billing Rate stated in the applicable Statement of Work, and for all
reasonable travel, lodging and other out-of-pocket expenses incurred in
the course of performing the Services. Expenses will be incurred and
documented in accordance with Customer's standard policies. Selectica
shall submit invoices identifying the Statement of Work, the Services
provided, applicable Billing Rate(s) and expenses. Any taxes incurred in
connection with Services (other than taxes imposed on Selectica's
earnings generally or referred to in Section 3 below) will be billed to,
and paid by Customer in addition to Project Fees and Expenses. SELECTICA
shall render monthly invoices for the Service Fees earned for the
proceeding month. Payment is due within thirty (30) days of the invoice
date for a correct, complete and accurate invoice accompanied by
appropriate backup documentation reasonably requested by Customer.
Selectica may suspend work and withhold Deliverables in the event a
properly submitted and valid invoice is not paid within thirty days of
notice of nonpayment, and may charge interest at a rate of one percent
per month on any outstanding balance more than forty-five days overdue.
3. Selectica is an independent contractor, and no Statement of Work shall
be construed to create an employment relationship between the parties,
whether for tax or any other purpose. Neither party shall have the right
to bind the other to any agreement with a third party or to incur any
obligation or liability on behalf of the other party. Selectica and its
personnel shall not be considered employees of Customer. SELECTICA shall
not have the right to subcontract any and all Services under this
Agreement to third parties unless Customer has approved such
subcontracting in writing. Selectica will, during the term of this
Agreement, maintain at Selectica's expense all necessary insurance for
its personnel, including but not limited to worker's compensation,
disability, unemployment insurance, and general liability insurance.
Selectica will provide Customer with certification of insurance upon
request. Selectica will be responsible for employment taxes, worker's
compensation, disability, or unemployment compensation insurance,
premiums or claims levied
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upon or attributable to the services rendered by Selectica, and
Selectica's personnel, including but not limited to, all state and
federal FICA, worker's compensation, disability, unemployment,
withholding taxes, premiums and claims.
4. Under the Services provided hereunder, Selectica may develop or prepare
and provide Customer with software corrections, scripts, triggers, other
modifications or enhancements, technical documentation, reports,
analysis or other deliverables ("Deliverables"). Selectica shall
complete and deliver the Deliverables to Customer according to the
delivery schedule and in conformance with the specifications described
in the applicable Statement of Work. Customer shall evaluate such
Deliverables and shall submit a written acceptance or rejection of to
Selectica within fifteen (15) days after Customer's receipt of the
Deliverables. Conformity to specifications and Selectica's warranties
herein shall solely determine Customer's right to accept or reject any
Deliverable. If rejected, Selectica shall promptly correct the
Deliverable. If Selectica fails to correct the Deliverable within
fifteen (15) days after notice of rejection, Customer may terminate the
applicable Statement of Work to this Agreement and receive a full refund
of amounts paid under such Statement of Work. If, subject to the fixed
cost bid criteria incorporated into the Statement of Work, the
Deliverable is not delivered on the due date specified in the applicable
Statement of Work, or if the Deliverable does not meet the
specifications in such Statement of Work, then Customer may, at its
option, and upon written notice to Selectica, terminate the applicable
Statement of Work for a full refund of amounts paid under such Statement
of Work.
5. The Services have been specially ordered and commissioned by Customer as
a "Work Made for Hire" and the Deliverables may be incorporated in
existing Customer works as a compilation or collective work. The parties
agree that all copyrights in the Deliverables shall be owned by
Customer. However, the parties acknowledge that certain intellectual
property of Selectica, including copyrights and trademarks, which
existed prior to the Agreement and prior to the Services ("Pre-Existing
Assets") may be incorporated in the Deliverables, and Selectica shall
own and retain all Pre-Existing Assets in such elements of the
Deliverables. The parties acknowledge that the intellectual property
rights in and to the Software referenced in the License Agreement shall
be Pre-Existing Assets. Subject only to payment of applicable Project
fees, expenses and taxes, Customer is granted an irrevocable, unlimited
(subject to the provisions of Exhibit A to the License Agreement), world
wide, royalty free, non-exclusive, freely transferable right and license
to use the Pre-Existing Assets only in conjunction with the
Deliverables. No other rights in or to the Pre-Existing Assets,
including but not limited to any right to use them independently of the
Deliverables, are granted or implied. Subject to the foregoing
provisions of this Section 4 of this Exhibit C, Selectica hereby assigns
to Customer, its successors and assigns, all rights, title and interest
in and to the Deliverables including, without limitation the following:
(i) any U.S. copyrights that Selectica may acquire in the Deliverables
and all copyrights and equivalent rights in the Deliverables throughout
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<PAGE> 23
the world; and (ii) all rights in and title to any inventions, ideas,
designs, concepts, techniques, discoveries, or improvements, whether or
not patentable, which are first developed in the course of Selectica's
creation of the Deliverables, including but not limited to all trade
secrets, utility and design patent rights; and (iii) any documents,
magnetically or optically encoded media, or other materials created by
Selectica under this Agreement. Subject to the provisions of this
Section 4, Selectica shall execute and deliver such instruments and take
such other action as may be requested by Customer to perfect or protect
Customer's rights in the Deliverables and to carry out the assignments
contemplated above. 6. Selectica warrants that the Services will be
performed as described in the Statement of Work by appropriately trained
and qualified personnel using reasonable skill and diligence performed
in a professional workmanlike manner in accordance with the highest
industry standards; provided, however, that (i) Selectica shall have
received written notice of the work that Customer claims does not
conform to the foregoing warranty within thirty days of the date on
which the work was completed, and (ii) Customer's sole remedy and
Selectica's sole obligation in the event of a breach of the foregoing
warranty shall be to either re-perform the nonconforming work or to
refund the Project Fees and Expenses incurred by the Customer for the
nonconforming work. EXCEPT FOR THE FOREGOING SENTENCE, SELECTICA DOES
NOT MAKE ANY GUARANTY, WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED
(INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO QUALITY, PERFORMANCE,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT).
7. Selectica shall defend, indemnify and hold harmless Customer from any
claim, suit or proceeding, and pay any settlement amounts or damages and
costs (including reasonable attorney's fees) awarded by a court of final
jurisdiction, against Customer arising out of claims, suits or
proceedings by third parties that a Deliverable infringes any copyright,
patent, trademark, trade secret or any other intellectual property
right. The foregoing indemnification obligation (i) shall only apply to
a Deliverable for which Customer has paid all applicable fees; and (ii)
shall not apply to any claim of infringement based on any modification
of the Deliverable (unless approved by Selectica) or the combination,
operation or use of the Deliverable with materials not supplied by
Selectica (unless approved by Selectica). In the event of a claim of
infringement, Selectica shall have the option, at its expense (i) to
procure for Customer the right to continue using the infringing
Deliverable, (ii) to replace such Deliverable with a non-infringing
product substantially similar in features and functionality in all
material respects, (iii) to modify such Deliverable to make it
non-infringing without materially affecting features or functionality,
or (iv) to grant to Customer a refund of the fees for such Deliverable
in exchange for its return. This section constitutes the entire and
exclusive obligation of Selectica with respect to any infringement of
any intellectual property right.
8. As a condition to the foregoing, the Customer must (i) promptly notify
Selectica in writing of the claim, suit or proceeding for which
indemnification is sought, (ii)
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permit Selectica to have sole control, and (iii) reasonably cooperate
with Selectica in the defense or settlement of the claim, suit or
proceeding. Customer shall have the right to retain its own counsel, at
its sole expense, to monitor the claim, suit or proceeding.
9. NEITHER PARTY SHALL BE LIABLE FOR (I) SPECIAL, INDIRECT, INCIDENTAL,
CONSEQUENTIAL, TORT OR COVER DAMAGES, INCLUDING, WITHOUT LIMITATION,
DAMAGES RESULTING FROM LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL,
WHETHER OR NOT ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES, OR
(II) MONETARY DAMAGES IN EXCESS OF THE AGGREGATE FEES AND EXPENSES PAID
BY CUSTOMER UNDER THE STATEMENT OF WORK OR AUTHORIZATIONS THAT DIRECTLY
RELATE TO THE CLAIM OR CLAIMS OUT OF WHICH THE DAMAGES HAVE ARISEN. The
amount of any monetary damages to which Selectica may be entitled is in
addition to, and not in lieu of, the fees, expenses and other amounts
due Selectica from Customer. The limitation on the amount of monetary
damages shall not apply to the indemnification obligations set forth in
Section 7 above.
10. Either party may terminate a Statement of Work at any time on thirty
(30) days prior written notice; provided that upon termination Customer
shall pay Selectica for Services, work-in-progress and expenses incurred
prior to the effective date of termination. Upon the termination of a
Statement of Work, the parties shall return any Confidential Information
received in tangible form, and Selectica shall deliver to Customer all
documents and other materials received from Customer in the course of
providing Services under the Statement of Work and, to the extent paid
for by Customer, copies of all Deliverables or portions of Deliverables
prepared pursuant to the Statement of Work. The General Terms and
Conditions shall survive the termination of any Statement of Work.
11. General Terms and Conditions and the applicable Statement of Work
constitute the entire agreement between the parties and supersede all
previous negotiations, agreements, and other communications, whether
oral or written, relating to the subject matter of this Agreement. Any
variance from or addition to the terms of this agreement contained in
any purchase order or other written notification will be of no effect.
This agreement may not be assigned by either party without the prior
written consent of the other, except for assignments by Customer to
affiliated entities, may not be modified in any way except in writing
signed by both parties and shall be governed by California law. The
invalidity or unenforceability of one or more provisions of this
agreement shall not affect the validity or enforceability of any of the
other provisions and this agreement shall be construed in all respects
as if such invalid or unenforceable provisions were omitted. The terms
and conditions of the referenced License Agreement shall also apply.
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11. YEAR 2000 COMPLIANCE WARRANTY. SELECTICA represents and warrants
that the Deliverables as delivered will operate prior to, during, and after, the
calendar year 2000 A.D. without error relating to date data, specifically
including but not limited to any error relating to calculations (including leap
year calculations), sorting, interpretation, processing or acceptance of date
data which represents or references different centuries or more than one century
and loss of functionality with respect to the introduction of records containing
dates falling on or after January 1, 2000, provided that all hardware, firmware
and other software used in conjunction with the Deliverables properly exchanges
accurate and properly formatted date data with the Deliverables. SELECTICA
represents and warrants that the Deliverables only respond to four-digit year
values in the range of 0000 to 9999. SELECTICA further warrants that for any
technical support provided by SELECTICA for the Deliverables, the level of such
technical support shall not be materially impacted by the Year 2000. SELECTICA
shall promptly notify Customer in writing if it discovers that any of the
Deliverables, or any portions thereof, are not Year 2000 Compliant. If the
Deliverables fail to comply with the warranty set forth in this Section 11,
SELECTICA will use reasonable commercial efforts to correct the noncompliance by
repair, replacement, reconfiguration, or workaround (with no loss of
functionality), provided that Customer notifies SELECTICA of the noncompliance
within the Year 2000 Warranty Period, and SELECTICA is able to reproduce the
noncompliance as communicated by Customer to SELECTICA. If after the expenditure
of reasonable efforts, SELECTICA is unable to correct any such noncompliance,
SELECTICA may refund to Customer the license fee paid by Customer to SELECTICA
for such Deliverables in full satisfaction of Customer's claims relating to such
noncompliance upon Customer's return of said Deliverables. The foregoing Year
2000 Compliance Warranty shall expire on December 31, 2000.
ACT
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Aspect's Configuration Tool
Statement of Work
(VERSION 1.0)
[SELECTICA LOGO]
PROPOSAL FOR ACT - ASPECT'S CONFIGURATION TOOL
BY: SELECTICA, INC.
__________
Introduction
Aspect Telecommunications is embarking on a replacement project for Quote IT,
their current configuration and quoting tool. The first phase of this project
has a deliverable date of Aug 1. This statement of work covers the scope of the
functionality that Selectica can deliver in its fixed bid for the project. For
purposes of this document, Selectica will refer to the project as ACT or
Aspect's Configuration Tool.
Objective
ACT, Aspect's Configuration Tool is targeted to an audience knowledgeable on
Aspect products and includes Aspect's product managers, pricing managers, direct
sales force and around 10 distributors. ACT will run on a standalone computer
such as a laptop, and will be capable of uploading quotes to a centralized Quote
repository. ACT will present Aspect's new packaging of products as the primary
interface for configuration, and build new systems and add-ons. The first phase
of ACT will be deployed Aug 1, 1999.
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Project Manager:
Selectica shall assign Sara Kern as the Project Manager for the Services
provided under, and for the duration of, this Statement of Work. Other Selectica
resources are to be named and approved by Aspect's project manager five days
after the effective date of the License Agreement. All assigned personnel shall
not be re-assigned from this project unless Customer has provided its prior
written approval.
Deployment
The system will be deployed for remote users on a mobile platform. The minimum
mobile platform requirements are:
Platform: Win 95/Win NT P166 MHz CPU
RAM: 32M
Hard Disk: 2G with up to 30M of free disk space
CD ROM drive
Browser: Netscape 4.x or Internet Explorer 4.x (latest
versions recommended)
System
The system will allow users to configure new systems (multi-site and module at a
time), services and add-ons. It will generate a high level quote with line item
consolidation for the following areas:
- Customer Relationship Management
- Customer Self Service
- Customer Interaction
- Platforms
- Services
- Addons
NOTE: CUSTOMER DATAMART (IS SCHEDULED FOR A LATER PHASE). ADDONS WILL ALLOW
QUOTES FOR EXISTING CUSTOMERS WHO MAY WISH TO ADD TO EXISTING SYSTEMS.
THESE AREAS WILL COVER EXISTING PRODUCTS COVERED BY QUOTE IT, AND MODEL CODES
THAT ARE AVAILABLE IN THE JUNE 1 PRICE BOOK:
Output
The system will generate a Word template based quote that can be printed (like
Quote IT) using the existing templates and (a modified version of) the existing
program "parser" generating this output.
The configuration can also be saved and retrieved for later modifications.
Synchronization of Quotations
The system will have the ability to upload quotes created on the remote platform
up to a centralized server.
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Pricing Data
There are 2 categories of prices:
1. For existing customers requiring add-on products, pricing is driven off
the old cost of goods sold.
2. For new customers, new systems and new system add-ons, pricing is driven
off a new list price and new cost of goods sold.
Aspect will provide an excel spreadsheet with the model codes and list prices.
This file will contain the following minimum fields (all fields that are
necessary to derive the final quote):
Model Code, COGS, Description, Market Uplift %, Uplift % by country (same for
all model codes for a country), Transfer rate by country, Tariff % by country,
etc. and support related information. Distributors will also be covered in this
file.
Customer Data
Region specific customer data will be used to present customer lists customer
id, Bill To and Ship To addresses.
Discounts
Discount options available today in the current Quote it! Tool will be available
in ACT. This includes customer level default, line-level, group and overall
discounts.
Service Configuration
Service will be quoted as part of new system configurations. The Service
configuration requirements and rules are currently being evaluated and
understood by Aspect. The interface and impact of this on ACT are expected to be
non-trivial.
Security
All knowledgebase files will be encrypted. All price files will be encrypted as
well. Price files will be unlocked via a pass-code.
Responsibilities
Aspect is responsible for:
- Documentation of Rules
- Help System Development
- User Interface Design
- All reviews
- Testing
- Flattened Price Files in the format specified for both formats
- Customer Information files (regionalized)
- Deployment of ACT to Aspect sales force
Selectica is responsible for:
- Knowledge-base development
- User interface development
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- Integration with framework
- Packaging ACT for simple download (or CD) installation.
- Oracle order entry integration
Web Deployment: Selectica has agreed to include this and feels that it can
deploy the Web application by Aug 31, 1999.
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Future Phase(s)
- Customer Datamart (3rd quarter release)
- Upgrades
- Change Orders
- Free-form (outside price list) add-ons
Fixed Price Bid: Subject to the "Fixed Price Bid Criteria" incorporated into
this Exhibit "C", Selectica agrees to fix price bid this Statement of Work at
$[*].
Payment Schedule:
Milestone #1 : acceptance of GUI design (approximately 15-Jun-99) 25% $[*]
Milestone #2 : successful completion of Beta testing (approximately 15-Jul-99) 25% $[*]
Milestone #3 : successful implementation and acceptance of all deliverables (1-Aug-99) 50% $[*]
FIXED COST BID CRITERIA
TOTAL PROJECT ELAPSED TIME: TEN WEEKS FROM MAY 24, 1999
Fixed Cost Bid Based on Following Criteria:
1) Aspect Telecommunications provides all product names, model numbers, and
data/rules for all products involved in this project by end of business
day Tuesday June 1, 1999. For product configurations this will include any
existing functional spec documentation, augmented with notes as necessary
to describe variation of the current rules/products from original spec.
For product pricing both old and new pricing models will be provided in an
excel spreadsheet. Pricing formulas for International will be provided.
For services/support pricing Aspect will provide a description on the
support options offered and the pricing rules that support the options.
2) The user application interface will be approved by Aspect no later than
Tuesday June 15 (layouts, navigation, color & font etc). If approved with
changes, Aspect must submit clear design change requirements for update by
Selectica within two business days.
3) No product changes, including rules, pricing, or product numbers will be
allowed during the development period unless approved in writing by
Selectica Project Manager and the Aspect Project Manager.
4) Aspect Telecommunications agrees to provide sign-off approval of design
changes, product design, or product recommendations by the following day
end of business day.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
30
<PAGE> 31
5) Aspect shall provide at least four complete work environments for
Selectica project personnel. Selectica will work primarily at the Aspect
location based on space availability at Aspect. Selectica agrees to
provide workspace for the Aspect project manager at Selectica site.
6) Selectica agrees to complete the mobile application for deployment to the
Aspect Salesforce by August 1, 1999. Selectica agrees to create a web
interface for use by web-users after the initial mobile deployment at no
additional charge to Aspect by August 31.
If Aspect is unable to provide information or approvals as outlined above,
Selectica shall have the right to adjust professional services charges for
weekend, overtime, and extensions of hours required to meet project deadlines
after giving 2 business days notice to the Aspect Project Manager and having
obtained approval of such expenses in advance. Aspect agrees that delays caused
by Aspect will cause overall project delays, and shall not be the responsibility
of Selectica. In case of project delay due to above conditions, Aspect shall not
withhold monies due to Selectica.
Selectica Project Management and Consulting Engineer rates for future sizing
efforts will be in effect for a period of twelve months from the acceptance date
of the Agreement between Selectica and Aspect. The rates are as follows:
Project Management $[*]/hour
Consulting Engineer $[*]/hour
Selectica agrees to provide Aspect Telecommunications with a "Minimum/Maximum"
quotation on any product or product line which falls outside the time guidelines
of the Agreement.
TERMINATION OF STATEMENT OF WORK. Subject to the Fixed Price Criteria under this
Statement of Work, if the Deliverables hereunder are not delivered by August 1,
1999, or such Deliverables fail to meet the specifications under this Statement
of Work on August 1, 1999, then Customer may immediately terminate this License
Agreement and all of its Exhibits and receive a full refund for the Software
License fees, Maintenance Fees and Services Fees paid to Selectica thereunder.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
31
<PAGE> 32
[GRAPHIC]
32
<PAGE> 33
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*REPORT DATE: 05/21/99 TICKET RECENT PRICE P/E RATIO DIVIDEND YIELD
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ASPECT TELECOMMUNICATIONS CORPORATION ASPT 8.563 99.61 NA
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SHARES OUTSTANDING: 48,859,000 ISSUE TYPE 52 WEEK HIGH 37,188 99.61 ANNUAL DIVIDEND
MARKET VALUE: 418,355,000
EXCHANGE: Nasdaq National Market C 52 WEEK LOW 6.000 N/E NA
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Major Shareholders ??? ??? to Major ??? Stock FYE ??? ???
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ENTITIES AFFILIATED WITH PMR CORP. 14.90% 12/31 PROFITABILITY 1997 LEVERAGE 1997
MASSACHUSETTS FINANCIAL SERVICES CO. 12.80% ------------ Net Inc/Comm. Equity 0.13 Total Liab/Total Assets 0.28
Net Inc/Total Assets 0.09 Total Liab/Inv. Cap. 0.37
Net Income/Inv. Cap. 0.13 Total Liab/Comm. Equity 0.38
Pretax Inc/Net Sales 0.15 Interest Coverage Ratio 206.73
Net Income/Net Sales 0.09 Current Debt/Equity 0.02
Cash Flow/Net Sales 0.14 LTD/Equity 0.02
SG&A/Net Sales 0.27 Total Debt/Equity 0.05
ASSET UTILIZATION LIQUIDITY
Receivables Turnover 4.50 Quick Ratio 2.43
Inventory Turnover 31.74 Current Ratio 2.77
Inventory Day Sales 11.34 Res./Curr. Assets 0.33
Net Sales/Work Cap. 2.30 Inv./Curr. Assets 0.05
Net Sales/PP&E 6.65
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PER SHARE OVERVIEW
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DATE EARNINGS DIVIDEND P/E RATIO
03/31/99 0.08 NA 82.81
09/30/98 -0.48 NA N/E
06/30/98 -0.62 NA N/E
03/31/98 0.72 NA 37.24
12/31/97 0.67 NA 31.16
09/30/97 0.79 NA 29.59
06/30/97 0.87 NA 25.57
03/31/97 0.82 NA 23.78
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INCOME STATEMENT (MILLIONS) 03/31/99 09/30/98 06/30/98 03/31/98 QUARTERLY REVENUE YEAR OVER YEAR*
Total Revenues (Net Sales) 100.09 137.95 126.09 113.46
Cost of Goods Sold 53.39 60.14 56.32 48.34
Selling and Admin Expenses 45.94 40.41 35.62 31.08
Operating Income -18.75 17.94 18.03 21.00
Amortization & Depreciation NA NA NA NA [GRAPH]
Internet Expense NA NA NA NA
Pretax Income -18.97 18.37 9.22 23.41
Other Income NA NA NA NA
Net Income before Extraordinary
Items/Disc Oper -13.28 11.24 1.69 13.90
Net Income -13.28 11.24 1.69 13.90
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BALANCE SHEET (MILLIONS) FIVE YR SALES TO NET INCOME
ASSETS
Cash & Short Term Investments 208.74 205.76 82.94 146.81
Receivables - Total 96.22 141.41 106.59 94.87
Inventories - Total 22.33 14.22 12.28 13.27
TOTAL CURRENT ASSETS 352.53 378.86 216.53 271.09
Net Property, Plans, and
Equipment 69.00 69.43 67.60 62.16
TOTAL ASSETS 545.08 583.49 415.85 377.41
------------------------------------------------------------------------------------------- [GRAPH]
LIABILITIES AND STOCKHOLDERS' EQUITY
Accounts Payable 14.97 16.16 16.50 12.12
Debt in Current Liabilities 1.90 4.50 6.80 6.15
Total Current Liabilities 107.82 101.39 99.18 86.61
Long-Term Debt - Total NA NA 5.78 6.61
TOTAL LIABILITIES 267.52 261.07 104.96 93.22
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Minority Interests NA NA NA NA ANNUAL SUMMARY DATA
Preferred Stock NA NA NA NA ----------------------------------------
Common Stock 135.97 172.39 172.30 147.90 Year Sales* Net Income* EPS
Retained Earnings 143.17 150.78 139.54 137.85 12/93 106.47 11.48 0.27
Treasury Stock NA NA NA NA 12/94 147.24 17.57 0.41
Total Stockholders' Equity 277.56 322.42 310.90 284.19 12/95 198.97 23.99 0.55
Total Liabilities and 12/96 308.70 37.63 0.79
Stockholders' Equity 545.08 583.49 415.85 377.41 12/97 390.64 35.18 0.67
-------------------------------------------------------------------------------------------
CASH FLOW SUMMARY (MILLIONS) Growth
Net Cash Provided by Operations 23.78 11.67 24.28 6.49 Rates 40.63 43.35 46.29
Net Cash Provided by Investments -10.48 -185.49 -74.15 -56.08
Net Cash Provided by Financing -7.62 142.45 -2.25 1.94
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COMPANY DESCRIPTION PRIMARY SIC CODE: 3661 I/B/E/S(R) FORECAST DATA
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Develops, manufactures, markets and supports systems for call EPS-99 DPS-99 EPS-00 DPS-00
transaction processing, call center automation and networking, Mean Estimate -0.81 -- 0.02 --
and interactive voice response; And provides consulting, Number of Estimates 9 -- 9 --
training, and systems integration services which help Projected P/E Ratio 0.00 -- 361.18 --
companies plan, staff and manage call centers effectively. Year/Year Growth (%) -194.19 -- -102.47 --
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OWNERSHIP
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TYPE DATE (Q.M) OWNERS HELD (000S) %OWN
INST 03/31/99(Q) 97 37,425 73.15
INSIDERS 02/28/99(M) 26 623 1.21
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ADDRESS
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1730 FOX DRIVE TEL 408-325-2200
CITY: STATE ZIP
SAN JOSE CA 95131-2312
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User assumes all risk of any errors.
* The date on which the information contained in this report was compiled. Report does not reflect the most current information on
this company. Refer to Company News.