Software Development and
Integration
and
Manufacturing Assistance
Agreement
This
Software Development and Integration and Manufacturing
Assistance Agreement (this “Agreement”) is made as
of April 6, 2009 between ACN Digital Phone Service, LLC, a Delaware
limited liability company with its principal place of business at
1000 Progress Place, Concord, NC 28025 (“ACN”), and Ojo
Video Phones LLC, a Pennsylvania limited liability company with its
principal place of business at 3190 Tremont Avenue, Trevose, PA
19053 (“OJO” and together with ACN, the
“Parties” or a “Party” as the case may
be).
Recitals
Whereas , ACN sells video phones together with digital
phone service using Voice over Internet Protocol; and
Whereas , OJO develops software for, manufactures, and
sells certain video phone communication devices and related
accessories, providing a variety of services with respect thereto;
and
Whereas , ACN, in accordance with the terms of this
Agreement, wants to retain OJO to develop software (the
“Developed Software”) for ACN’s existing video
phone (“IRIS 3000”) according to mutually agreed
specifications, and to assist ACN with the capability to
manufacture and acquire IRIS video phones, including, without
limitation, the IRIS 3000 with the Developed Software integrated
therein (the “IRIS 3000W”), with such effort being
generally referred to hereunder as Phase 1; and
Whereas , pursuant to the terms and conditions of an ACN
Consumer Communications Equipment Master Purchase Agreement (the
“Commercial Agreement”) that is being executed by the
Parties concurrently herewith, OJO has agreed to develop and to
sell to ACN a new video phone, using the DaVinci chip and the
Developed Software (the “IRIS 4000”) according to
mutually agreed specifications with such effort being generally
referred to hereunder as Phase 2.
Now,
Therefore, in
consideration of the mutual covenants, representations and
warranties of the Parties contained in this Agreement, the Parties
hereby agree as follows:
1.1. Phase
1 Development
OJO shall carry
out a project (the “Project”) to specify, develop and
deliver software that (i) is specially developed or customized for
the IRIS 3000, (ii) shall reasonably fulfil ACN's objectives and
requirements as described in Appendix 1, and (iii) shall be
compliant with the mutually agreed specifications that
are to be developed as part of the Project.
1.2 Development
tools – development method
OJO shall be
responsible for selecting the development tools, methods and
environment, and establishing and maintaining this development
environment. If ACN has any special requirements
concerning the development environment or method, then such
requirements will be communicated in writing to OJO.
1.3 Project
implementation and cooperation
1.3.1 OJO shall carry out the Project
in accordance with a mutually agreed work schedule to be developed
as part of the Project.
1.3.2 Both ACN and OJO shall have a
development project manager. The development project managers are
responsible for the day-to-day follow-up of their own personnel,
and they are responsible for planning and following up their own
obligations.
1.3.3 The development project
managers shall meet frequently to monitor the progress of the
development effort and to provide feedback to each other as the
Project progresses. The development project managers
shall also provide each other with the information from their
respective organizations that is reasonably required to manage,
monitor and complete this development effort.
1.4 Detailed
specifications and project plan
1.4.1 OJO shall prepare Detailed
Specifications and a Software Development Project Plan for the
Developed Software based on consultation with ACN and the
documentary materials provided to OJO by ACN for such
purpose. The Detailed Specifications shall consist
of a detailed itemization and/or definition of the Developed
Software and its required operation and
functionality. The Detailed Specifications shall form
the basis for the development to be carried out in the development.
The Software Development Project Plan shall consist of the
anticipated schedule for the development project, and the
allocation of project responsibilities as required for this
schedule. This work shall be carried out in close
cooperation and consultation with ACN.
1.4.2 Upon agreement of the parties
on the Detailed Specifications and the Software Development Project
Plan the same shall be finalized in writing and attached hereto as
Appendices 2 and 3 respectively.
1.4.3 The Parties acknowledge and
agree that the Detailed Specifications and the Software Development
Project Plan may be subject to change during the course of the
development effort, and as such, the Parties will reasonably
cooperate to evaluate and accommodate proposed changes as the same
may arise.
1.5 Development
of the Developed Software
OJO shall
develop the Developed Software described in the Detailed
Specifications. OJO is responsible for designing, developing and
testing the Developed Software in accordance with the Detailed
Specifications and the Software Development Project
Plan.
1.6 Title,
Rights and Interests
As between the
Parties, each Party expressly retains all title, right and interest
in and to their respective confidential and/or proprietary
information and work product as the same may be developed,
furnished or utilized hereunder.
1.7 Testing
OJO and ACN
shall cooperate to carry out any tests that are necessary to verify
that the Developed Software functions in accordance with the agreed
Detailed Specifications prior to field installation and use in IRIS
3000W.
1.8 Manufacture
and sourcing of IRIS 3000 and 3000W
Pending the
development of the IRIS 4000, the Parties will jointly develop a
plan to provide for the manufacture and purchase of the IRIS 3000
(and ultimately the IRIS 3000 W) through and with OJO’s
assistance, from ACN’s existing IRIS 3000 manufacturing
partner, UMEC. Such plan may involve the assignment to OJO, in
whole or in part, of ACN’s current contract with UMEC
(attached hereto as Appendix 4 and referred to herein as the UMEC
Contract), the creation of an agency relationship, or some other
arrangement as the Parties may mutually agree, and that would
reasonably facilitate continued supply to ACN of products and
services as required for its business. Such plan would
also provide for the potential download of the Developed Software
to deployed IRIS 3000’s, resulting in an upgrade of the same
to IRIS 3000Ws.
1.9 Project
implementation and cooperation
1.9.1 OJO shall carry out the Project
in accordance with a mutually agreed work schedule to be developed
as part of the Project.
1.9.2 Both ACN and OJO shall have a
manufacturing project manager. The manufacturing project managers
are responsible for the day-to-day follow-up of their own
personnel, and they are responsible for planning and following up
their own obligations.
1.9.3 The manufacturing project
manager
