CONTACT CENTRAL SOFTWARE LICENCE SCHEDULE (A)

Transcription

1 CONTACT CENTRAL SOFTWARE LICENCE SCHEDULE (A) 1. DEFINITIONS. 1.1 Affiliate(s) shall mean (1) all business units and divisions of the Customer or its parents and (2) any entity controlled by, controlling, or under common control with the Customer. Such entity shall be deemed to be an Affiliate only so long as such control exists. Upon request, the Customer agrees to confirm the Affiliate status of a particular entity. 1.2 "Ancillary Programs" shall mean the third party software delivered with the Programs. 1.3 "Commencement Date" means the earlier of the date when the Service is first made available to the Customer at a Site or the date when the Customer first starts to use the Service. 1.4 Customer shall mean the person so named on the Order Form and anyone reasonably appearing to BT to be acting with that person s authority or permission, who has entered into the Contract of which this licence forms part. 1.5 "Designated System(s) shall mean the Customer s computer hardware and operating system(s). 1.6 Documentation shall mean the current on-line help, guides, and manuals published by BT and made generally available by BT. Documentation shall include any updated Documentation that BT provides with Updates. 1.7 "Service Support" shall mean support provided by BT as described in the Customer Requirement Form. 1.8 "Pre-Production Program(s)" shall mean a software program which is not generally Licenced for commercial use by BT or which is not listed in BT's generally available marketing literature or which is designated as a "Alpha," "Beta," or Pre-Production program or release by BT. 1.9 "Program(s)" shall mean the Programs upon which such software is delivered to the Customer; and Updates. Programs shall not include Ancillary Programs "Program Licence" shall constitute each Licence granted to the Customer pursuant hereto for a User to use a Program Materials shall mean any materials provided to the Customer by BT in the course of performing technical services or professional services as set forth in a separate Contract between Customer and BT Training Materials shall mean any training materials provided in connection with any training courses ordered by Customer and delivered by BT. Issue No.1

2 1.13 "Update(s)" shall mean (a) subsequent releases of the Programs that (i) add new features, functionality, and/or improved performance, (ii) operate on new or other databases, operating systems, or client or server platforms, or (iii) add new foreign language capabilities; (b) bug or error fixes, patches, workarounds, and maintenance releases; (c) new point releases, including those denoted by a change to the right of the first decimal point (e.g., v3.0 to 3.1), and (d) new major version releases, regardless of the version name or number, but including those denoted by (i) a change to the left of the first decimal point (e.g., v5.0 to 6.0) and/or (ii) the addition of a date designation or a change in an existing date designation (e.g., v1999 to 2000); provided, however that Updates shall not include new or separate products that BT offers only for an additional fee to its customers generally, including those customers purchasing Maintenance Services "User(s)" shall mean the named or specified (by password or other user identification) individuals authorised by the Customer to use Programs, regardless of whether the individual is actively using the Programs at any given time. The Customer may replace authorised Users as necessary to reflect personnel changes provided that the number of individuals authorized to use the Programs does not exceed the maximum number of authorised Users at any time. The maximum number of Users that may use or access the Programs is specified in the Customer Requirement Form. Users may include the employees of Customer or third parties; provided that such third party is limited to use of the Programs (i) only as configured and deployed by the Customer, and (ii) solely in connection with Customer s business operations as conducted by or through such third party, including but not limited to the installation, administration or implementation of the Programs for Customer. The Customer agrees that it is responsible for ensuring that any usage by its employees and any such third parties is in accordance with the terms and conditions of this Contract. Notwithstanding the foregoing, Users shall exclude any individuals employed by, or acting on behalf or under the direction or control of, a direct competitor of BT or any of its licensors. 2. PROGRAM LICENCE. 2.1 Licence Grant. Subject to the terms and conditions of the Contract, BT hereby grants to the Customer the following non-transferable, non-exclusive, rights and Licences for the Customer's own internal business operations as follows: A. To Use. (i) to use the Programs and Ancillary Programs subject to all of the terms of the Contract; (ii) to use the Documentation solely for purposes of supporting Customer s use of the Programs and in accordance with the terms of the Documentation; (iii) to use the technical Training Materials solely for purposes of supporting Users who attend training courses on the Programs; (iv) to use the Programs that are development tools (i.e., the Tools Programs) solely in accordance with the Documentation to create Customer-specific objects for use with the Programs; (v) to use the Materials solely for purposes of installing or operating the Programs; and (vi) to install, integrate, and implement the Programs and Ancillary Programs or to have third parties (e.g., system integrators) do so for the Customer; B. To Copy. (i) to copy the Programs that operate on server systems as reasonably necessary to support the maximum number of named Users; (ii) to copy the Programs and Ancillary Programs that operate on the personal computers of Users up to the maximum number of named Users, provided that Customer may make one additional copy of each such Program for use on one personal computer, per named User, so long as such User operates only one copy of such Program at any given time; (iii) to make a reasonable number of additional copies of the Programs and Ancillary Programs solely for archival, emergency back-up, testing, or disaster recovery purposes; and (iv) to copy the Documentation as reasonably necessary to support its Users.

3 2.2 Licence Restrictions. The rights granted in Section 2.1 are subject to the following restrictions: (i) the Customer may use the Ancillary Programs only in combination with the Programs and solely for purposes of installing and/or operating the Programs; the Customer may not use the Ancillary Programs as stand-alone applications; (ii) the Customer may not reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code of the Programs or Ancillary Programs; provided that, if required under applicable law, upon the Customer's request, BT shall provide information necessary for the Customer to achieve interoperability between the Programs and other software for a nominal administrative charge; (iii) the Customer may not sub-licence or use the Programs or Ancillary Programs for commercial time-sharing, rental, outsourcing or service bureau use, or to train persons other than named Users; (iv) the Customer shall not use the programs that are development tools for general application development purposes; and (v) with regard to any and all copies of the Programs, Ancillary Programs, and Documentation, the Customer shall only make exact copies of the versions as originally delivered by BT, the Customer shall ensure that each copy contains all titles, trademarks, and copyright and restricted rights notices as in the original, and all such copies shall be subject to the terms and conditions of the Contract. 2.3 Retention of Rights. BT and its suppliers reserve all rights not expressly granted to the Customer in this Schedule. Without limiting the generality of the foregoing, the Customer acknowledges and agrees that: (i) except as specifically set forth in this Schedule, BT and its suppliers retain all rights, title and interest in and to the Programs, Ancillary Programs, Documentation, Materials, and Training Materials and the Customer acknowledges and agrees that it does not acquire any rights, express or implied, therein; (ii) any configuration or deployment of the Programs shall not affect or diminish BT's or its licensors rights, title, and interest in and to the Programs; and (iii) if the Customer suggests any new features, functionality, or performance for the Programs that Systems subsequently incorporates into the Programs, the Customer hereby grants to BT a worldwide, exclusive except as to Customer, royalty-free, perpetual right and Licence to use and incorporate such suggestions into the Programs. The Customer acknowledges that the Programs incorporating such new features, functionality, or performance shall be the sole and exclusive property of BT or its licensor. 2.4 Transfer and Assignment. Neither this Schedule nor any rights granted hereunder, nor the use of any of the Programs, may be sold, leased, assigned, or otherwise transferred, in whole or in part, by either party, and any such attempted assignment shall be void and of no effect without the advance written consent of the other party, such consent not to be unreasonably withheld or delayed; provided, however, that such consent shall not be required if (i) either party assigns this Contract to an Affiliate or in connection with a merger, acquisition, or sale of all or substantially all of its assets, unless the Affiliate or surviving entity is a direct competitor of BT or (ii) BT assigns its right to receive and collect payments hereunder. The Customer may, upon written notice to BT (i) transfer any Program Licence to any other Affiliate in accordance with this Section 2.4 without consent by BT and (ii) transfer any Programs to any other client computer that is then part of a Supported Platform without consent by BT. In addition, the Customer may, upon written notice to BT, transfer all of its rights and obligations hereunder to an independent subsidiary in connection with the sale of such subsidiary provided that (i) the Programs continue to be used only for such subsidiary s internal business operations and (ii) such independent subsidiary does not include that portion of a business of a third party that is a direct competitor of BT or owned or controlled by a company that includes that portion of a business of a third party that is a direct competitor of BT. 2.5 Verification. The Customer is hereby notified that Siebel Systems EMEA Limited ("Siebel") and Cosmocom Inc, ("Cosmocom") are third-party beneficiaries to this Contract and that the provisions of this Contract related to the Customer's use of the Programs are made expressly for the benefit of Siebel and Cosmocom and are enforceable by both Siebel and Cosmocom in addition to BT. At BT's written request, but not more frequently than annually, the Customer shall furnish BT with a document signed by the Customer s authorised representative listing (i) the number of Users by country, and (ii) the locations and types of the systems on which it operates or has installed the Programs. The Customer is responsible for implementing reasonable

4 means to monitor its compliance with the terms of this Contract, provided that BT shall provide all necessary cooperation to assist the Customer in collecting User information. BT, Siebel and Cosmocom reserve the right to audit the Customer's use of the Programs no more than once annually at BT s expense. Any such audit shall be conducted during regular business hours at the Customer's facilities and shall not unreasonably interfere with the Customer's business activities. If such audit reveals that the Customer has underpaid fees to BT, the Customer shall promptly pay to BT such fees at the prices previously agreed to for such Programs. 3. TERM AND TERMINATION. 3.1 Term. Each Program Licence granted under this Contract shall commence on the Commencement Date and shall remain in effect perpetually unless such Program Licence or this Contract is terminated by BT. 3.2 Termination by BT. BT may terminate the Contract or any Program Licence upon written notice if the Customer breaches this Contract and fails to correct the breach within thirty (30) days following written notice from BT specifying the breach. 3.3 Handling of Programs Upon Termination. If a Program Licence granted under this Contract terminates, the Customer shall (a) cease using the applicable Programs, Documentation, and related Confidential Information and (b) certify to BT within thirty (30) days after termination that the Customer has destroyed, or has returned to BT, the Programs, Documentation and related Confidential Information and all copies thereof, whether or not modified or merged into other materials. Upon termination of this Contract, each party shall certify to the other party within thirty (30) days of termination that it has destroyed or returned to the other party all Confidential Information of the other party, and all copies thereof, whether or not modified or merged into other materials. Provided that (i) the Customer has used best efforts to destroy or return all materials as required in this Section 3.3 and (ii) the Customer has no intent to retain such materials, if the Customer discovers inadvertently retained materials it shall not be considered in breach of this Section 3.3 provided that the Customer destroys or returns such materials immediately after discovering them. 3.4 Effect of Termination. Termination of this Contract or any Program Licence shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve the Customer of its obligation to pay all fees that have accrued or are otherwise owed by the Customer. The parties rights and obligations under Sections 2.2, 2.3, 3 and 4 shall survive termination of this Contract. 4. GENERAL TERMS. 4.1 Non-disclosure. By virtue of this Contract, the parties may have access to information that is confidential to one another ("Confidential Information"). BT's Confidential Information shall include the Programs, formulas, methods, know-how, processes, designs, new products, developmental work, marketing requirements, marketing plans, customer names, prospective customer names, the terms and pricing under this Contract, and all information clearly identified in writing at the time of disclosure as confidential. A party's Confidential Information shall not include information that (a) is or becomes a part of the public domain through no act or omission of the other party; (b) 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; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party. The Customer shall not disclose the results of any performance tests of the Programs to any third party without BT's prior written approval. The parties agree to hold each other's Confidential Information in confidence during the term of this Contract and for a period of three (3) years after termination of this Contract, provided, however, that with respect to the Data Model Reference Manual, the Data Mart Data Model Reference, and other highly sensitive Confidential Information clearly identified as such at the time of disclosure by either party ( Highly Sensitive Confidential Information ), the nondisclosure obligations set forth herein shall continue indefinitely. The parties agree, unless required by law, not to make each other's Confidential Information available in any form to any third party or to use each other's Confidential Information for any purpose other than in the performance of this Contract. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by

5 its employees or agents in violation of the terms of this Contract. Each party acknowledges and agrees that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this Section 4.1 and that such breach would cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under this Contract. 4.2 Disclaimer of Implied Warranties. BT does not warrant that (i) the Programs will meet the Customer's requirements, (ii) the Programs will operate in combinations with other hardware, software, systems or data not provided by BT (except as expressly specified in writing by BT in the Documentation) that the Customer may select for use, (iii) the operation of the Programs will be uninterrupted or error-free, or (iv) all Program errors will be corrected; provided, however, that if Customer is current on Service Support charges, BT shall be obligated to provide Service Support. Notwithstanding any provision to the contrary, Pre-Production Programs, Materials, Training Materials, and Customer s Licence under Section 2.3 are distributed AS IS and the Customer acknowledges that Pre-Production Programs are not suitable for general use. BT shall have no Year 2000-related liabilities for any products or Services except as expressly stated in this Contract. ANY WARRANTIES SET FORTH IN THIS CONTRACT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGMENT AND QUALITY OF SERVICE.