Service Level Corporation
OEM Software License and Support Agreement
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1.
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Parties; Effective Date.
This Software License
and Support Agreement (“Agreement”) is between Service
Level Corporation, a Delware corporation with offices at 2929
Plymouth Road, Suite 300, Ann Arbor, Michigan 48105 U.S.A.
(“SLC”) and ACE*COMM Corporation 704 Quince Orchard
Road, Gaithersburg, Maryland 20878 (“Licensee”). This
Agreement is effective on the date last signed by the parties
(“Effective Date”).
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2.
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Nature of Agreement.
SLC is a developer of
computer software programs and a provider of software-related
services. SLC owns and has the right to grant licenses in certain
computer software called the SLC Ratchet TM Rating System which is more fully
described on Schedule A to this Agreement (the
“Software”) Licensee desires to use the Software in
connection with its development and testing of products that will
contain, interface with, and/or be supplied with the Software
(“Products”). Identifying the Products as including
SLC’s Software, Licensee will then market and license the
Products, in object code form, to end-users
(“End-Users”) solely in accordance with this
Agreement.
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3.
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Grant of Software
License.
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3.1
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Subject to all terms of this
Agreement, SLC grants Licensee a perpetual, nonexclusive,
worldwide, nontransferable license to:
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3.1.1
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integrate and embed the Software
into Licensee’s Products and, distribute the Software as
integrated into Licensee’s Products for sale as a unit to
Licensee’s resellers and End-Users;
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3.1.2
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use
the Software to provide technical support services to
Licensee’s reseller and End-Users;
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3.1.3
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use
any user documentation provided by SLC
(“Documentation”) to create customer documentation for
Licensee’s resellers and End-Users (“Product
Documentation”), and distribute such Product Documentation to
End-Users, provided that no such user Product Documentation shall
contain any Confidential Information of SLC, set forth below;
and
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3.1.4
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reproduce copies of the Software as
reasonably necessary for Licensee to exercise its rights under this
Agreement, subject to the confidentiality provisions of this
Agreement.
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3.1.5
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use
and modify source code for use in and with any of Licensee’s
products under a Licensee private label name and
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3.1.6
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License to End-Users and Sub-License
to resellers the Licensee’s private label version of the
Software created by Licensee.
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3.2
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Licensee may not use the Software
except as expressly provided herein. All license rights not
expressly granted to Licensee in this Agreement are reserved to
SLC. Except as expressly provided herein. Licensee shall not
sublicense except to authorized resellers, rent, assign except to
Licensee’s subsidiaries, lease, sell, distribute or transfer
the Software.
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3.3
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Licensee shall not remove alter or
destroy any copyright notices or other proprietary rights marks or
legends on or in the Software or Documentation and on authorized
copies. In addition, Licensee will ensure that the following
trademark notice and copyright notice are included in the
“About” section of the Product(s) and on, and/or in,
all physical and electronic packaging for the
Product(s);
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Copyright
©
2005 Service Level Corporation,
All right reserved.
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4.
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Ownership. SLC is the owner or licensee of all
intellectual property rights in the Software and Documentation,
including without limitation, copyrights, trade secrets,
trademarks, patents, and “know-how.” Licensee
acknowledges the foregoing and agrees to implement software
protection measures designed to prevent unauthorized use and
reproduction of the Software or Documentation, including, but not
be limited to, keeping the Software and Documentation in a secure
place, under reasonable access and use restrictions not less strict
than those applied by Licensee with respect to its own confidential
information. Licensee shall make reasonable efforts to notify SLC
of any potential or apparent infringements of rights in the
Software and/or Documentation. Licensee shall have and retain all
rights, title and interest in and to derivative works made by
Licensee pursuant to Section 3.2 above, exclusive of Software.
Documentation and other materials owned by SLC or its third party
licensors.
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5.
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Product License.
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5.1
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Licensee may license Products to
End-Users and Sub-License to resellers only pursuant to written
agreements (each a “product License”) that include
terms and obligations no less stringent regarding the Software and
Documentation than the terms and obligations of this
Agreement.
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5.2
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Without limiting the generality of
the foregoing each Product License shall contain substantially the
following terms, which may not be modified without the prior
express written consent of SLC:
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5.2.1
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authorize the use of End–Users
copies of the Software only in machine-readable object code
form;
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5.2.3
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prohibit further copying and/or
transfer of the Software. Documentation, and/or Product
Documentation by the End-User;
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5.2.4
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limit the use of the Software to the
provision of services to the End-User’s direct customers and
prohibit the use of the Software in service bureaus and in
Application Provider (“ASP”) mode;
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5.2.5
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prohibit the End-User, or its
customers who may have access to the Software incident to services
provided by the End-User from reverse engineering reverse
compilation or reverse assembly of the Product(s) and/or
Software.
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5.2.6
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a
disclaimer of all warranties or liability as to SLC including
without limitation warranties of merchantability and fitness for a
particular purpose:
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5.2.7
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require the End-User to be bound be
the same or substantially similar confidentiality obligations that
Licensee is bound by under this Agreement; and
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6.
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Software Delivery and Acceptance;
Remedy.
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6.1
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Within ten (10) days after the
date SLC receives this signed Agreement which includes payment of
the OEM License Fee described in Schedule B, SLC will ship the
Software and any other materials identified in Schedule A to
Licensee. Licensee may acquire additional services from SLC at
SLC’s then current technical services rates or as otherwise
agreed between the parties.
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6.2
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The
Software is deemed accepted sixty (60) calendar days after
installation unless within that time (the “Acceptance
Period”). Licensee provides written notice to SLC that the
Software does not operate in substantial conformance with the
specifications as described in the HTML based Ratchet Rating System
User documentation delivered as part of this
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Agreement. If
Licensee provides such written notice to SLC. SLC will use
commercially reasonable efforts to, at its sole option, repair or
replace the Software with in a reasonable time of its receipt of
the notice. If SLC is unable to repair or replace the Software
within a reasonable time Licensee may terminate this Agreement and
return the Software and Documentation for a full refund of the
license paid pursuant to this Agreement.
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7.
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Fees; Taxes.
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7.1
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In
exchange for the rights granted to Licensee under this Agreement
Licensee shall pay SLC the fees set forth in
Schedule B.
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7.2
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Licensee shall pay the fees to SLC
in accordance with the terms of Schedule B. One-time charges
required under this Agreement will be billed by SLC in advance.
Standard payment terms are net cash without discount set-off or
deferment due and payable with thirty (30) days from the date of
SLC’s invoice. Licensee shall be charged a one and a half
percent (1.5%) late fee per month on all overdure amounts for any
fees due and payable under this Agreement.
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7.3
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All
fees are net of any sales, excise, ad-valorem use or other taxes.
Licensee warrants that it shall be responsible for payment of all
such taxes arising from Licensee’s use of the Software and
distribution of the Products. Licensee shall pay, or reimburse. SLC
for any tax or assessment including but not limited to all sales,
use, rental, property, gross receipts, excise or other taxes duties
or charges imposed by any government body or agency or subdivision
thereof (collectively “governmental body”) by virture
of SLC’s interest in or sale, provision, or use of any
services or tangible personal or intangible property pursuant ot
the terms of this Agreement. Licensee shall pay SLC or the
appropriate governmental body as the case may be such tax or
assessment together with any times penalties or interest thereon
within thirty (30) calendar days of the date of the invoice by
SLC or the date on which Licensee received notice of such
requirement from the applicable governmental body whichever is
earlier. Notwithstanding the foregoing, Licensee shall not be
responsible for paying or reimbursing SLC for corporate franchise
tax capital tax, net worth tax, or taxes measured by reference to
SLC’s net income.
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7.4
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Should Licensee in good faith
dispute any portion of the invoice submitted by SLC. Licensee must
advise SLC in writing within thirty (30) days of invoice date
of such dispute and when due pay all non-disputed charges. SLC will
consider Licensee’s dispute in good faith.
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8.
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Maintenance and Support Services ;
Other Services.
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8.1
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SLC
shall make installation, customization, training, consulting,
technical support and other services related to the Software
available to Licensee in accordance with the terms and fees set
forth on Schedule B. Licensee may acquire additional services
through the written agreement of the parties. Licensee shall be
solely responsible for providing any warranty and technical support
to its End-Users. Other than as provided in Section 8.3. SLC
shall have no
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responsibility
for any technical support to End-Users unless SLC contracts
directly with such End-User.
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8.2
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Licensee may also request on-site
assistance from SLC. In such event Licensee shall pay SLC its then
current per-diem fees, and will reimburse SLC for all reasonable
traveling expenses and costs for meals, travel and
lodging.
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9.
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Indemnification by SLC for
Infringement Damages.
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9.1
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SLC
shall defend, at its sole expense, any third party claim, demand or
suit against Licensee alleging that Licensee’s authorized use
of the Software and Documentation infringes a third party’s
U.S. patent, copyright, trademark, trade secret or other
intellectual property right (“Claim”), and shall
indemnify and hold Licensee harmless from and against any and all
damages, fines, penalties, costs, expenses and/or fees (including
reasonable attorney’s fees) awarded or assessed against
Licensee in association with the Claim, or reached through a
negotiated settlement of the Claim.
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9.2
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If
the Software infringes a third party’s U.S. patent,
copyright, trademark, trade secret or other intellectual property
right, or SLC reasonably believes that it is likely to infringe,
then SLC shall, at its sole expense either (1) procure for
licensee the right to continue using the Software (2) replace
the Software with the software of similar functionality that is
non-infringing; or (3) modify the Software so that it is
non-infringing, but maintains substantially the same
functionality.
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9.3
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In
order to receive the indemnification in this Section, the Claim
must take place in the United States; Licensee must promptly notify
SLC of the assertion of the Claim; allow SLC to retain sole and
exclusive control over the defense and /or settlement of the Claim;
and cooperate with SLC, at SLC’s expense, in the defense and
/or settlement of the Claim. This Section sets forth SLC’s
sole indemnification obligations and Licensee’s sole
indemnification remedies, in association with the Claims described
above.
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10.
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Indemnification by
Licensee.
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10.1
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Licensee represents and warrants
that it shall be solely responsible for all actions relating to its
Products, including obtaining any licenses necessary for its use of
the Software, third party software, products, data, know-how, or
technology; its creation and distribution of Products; and
marketing, advertising, sale, export, warranty, performance of, and
technical support for the Products. In addition, Licensee shall not
make any statement, representation, or warranties, or accept any
inabilities whatsoever, to or with regard to nay person or entity
that are inconsistent with any disclaimer or limitation contained
in this Agreement.
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10.2
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Licensee shall defend, at its sole
expense, any Claims against SLC arising out of or related to the
responsibilities of Licensee as set forth in Section 10.1 or
otherwise related to the Products except to the extent such Claims
are caused by SLC or are SLC’s obligation under
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Section 9
above, and shall indemnify and hold SLC harmless from any and all
damages, fines, penalties, costs, expenses and fees (including
reasonable attorneys’ fees) awarded or assessed against it as
a result of such Claim, or reached through a negotiated settlement
of the Claim.
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10.3
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In
order to receive the indemnification in the Section, SLC must
promptly notify Licensee of the assertion of the Claim; allow
Licensee to retain sole and exclusive control over the defense
and/or settlement of the Claim; and cooperate with Licensee, at
Licensee’s expense, in the defense and/or settlement of the
Claim. This Section sets forth Licensee’s sole
indemnification obligations, and SLC’s sole indemnification
remedies, in association with the Claims described
above.
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11.
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Confidentiality.
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11.1
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During the Agreement each party may
have access to information that is considered confidential by the
other. This information may include the Software, technical
know-how, technical specifications, software object code and source
code, protocols, strategic business plans, results of testing,
systems, financial information, product information, methods of
operation, customer information, supplier information, and
compilation of data that a party marks or designates as
confidential (“Confidential Information”).
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11.2
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Each party shall use the other
party’s Confidential Information only for the purpose of, and
in performance of its obligations under, this Agreement. Each party
shall maintain the confidentiality of the other party’s
Confidential Information in the same manner in which it protects
its own Confidential Information of like kind, but in no event
shall either party take less than reasonable precautions to prevent
the unauthorized disclosure or use of the other party’s
Confidential Information.
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11.3
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Subject to the terms set forth
herein, each party is permitted to disclose the other party’s
Confidential Information to its employees and subcontractors on a
need to know basis only, provided that such employees and
subcontractors have written confidentiality obligations to that
party and that each party shall remain fully responsible and liable
to the other party for each employee’s and or
subcontractor’s performance and/or breach of
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