Software Distribution Agreement ( Nabnasset )

SOFTWARE DISTRIBUTION AGREEMENT





LUCENT TECHNOLOGIES INC.







NABNASSET CORPORATION









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Lucent Technologies Inc./Nabnasset Corporation





TABLE OF CONTENTS



SOFTWARE DISTRIBUTION AGREEMENT

LUCENT TECHNOLOGIES INC.

NABNASSET CORPORATION



RECITALS................................................................ -1-



1. DEFINITIONS........................................................ -1-



2. LICENSE GRANT...................................................... -3-



3. RELATIONSHIP OF THE PARTIES........................................ -4-



4. PERIODIC MEETINGS.................................................. -5-



5. GOLDEN MASTERS..................................................... -6-



6. MONTHLY REPORTS.................................................... -6-



7. AUDIT.............................................................. -7-



8. LICENSE FEE........................................................ -7-



9. RIGHTS TO PRODUCT.................................................. -7-



10. DELIVERABLES....................................................... -8-



11. TAXES.............................................................. -9-



12. PAYMENTS........................................................... -10-



13. MISCELLANEOUS EXPENSES............................................. -11-



14. ESCROW AGREEMENT................................................... -11-



15. ACCEPTANCE......................................................... -12-







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16. CONTINUED PRODUCT AVAILABILITY..................................... -13-



17. MARKETING.......................................................... -13-



18. WARRANTY........................................................... -14-



19. LIMITATION OF LIABILITY............................................ -16-



20. TECHNICAL SUPPORT.................................................. -16-



21. TRAINING........................................................... -17-



22. END USER SUBLICENSES............................................... -17-



23. TERM, TERMINATION AND DEFAULT...................................... -18-



24. INDEMNIFICATION.................................................... -20-



25. COPYRIGHT NOTICE................................................... -21-



26. ASSIGNMENT......................................................... -22-



27. USE OF TRADENAME................................................... -23-



28. CONFIDENTIALITY.................................................... -24-



29. EXPORT............................................................. -26-



30. LUCENT RIGHT TO COMPARABLE PRODUCT................................. -26-



31. NOTICES AND REQUESTS............................................... -27-



32. CONTROLLING LAW.................................................... -28-



33. ENTIRE AGREEMENT................................................... -28-



34. DISPUTE RESOLUTION................................................. -28-







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35. GENERAL............................................................ -29-



36. FORCE MAJEURE...................................................... -29-



37. AGREEMENT TITLE AND ARTICLE HEADINGS............................... -29-



38. IMPLEADER.......................................................... -29-



39. EXCLUSION OF LICENSES.............................................. -30-



40. NON-WAIVER......................................................... -30-



41. INSURANCE AND LIABILITY............................................ -30-



42. COMPLIANCE WITH LAWS............................................... -31-



43. RELEASES VOID...................................................... -31-



44. PLANT RULES AND GOVERNMENT CLEARANCE............................... -32-



45. SURVIVAL OF OBLIGATIONS............................................ -32-



46. HARDWARE AND SOFTWARE DEVELOPMENT ASSISTANCE....................... -32-



47. EXHIBITS INCORPORATED.............................................. -32-



EXHIBITS and ATTACHMENTS



Exhibit A - Product to be Delivered

Exhibit B - Payment Schedule

Exhibit C - Training Deliverables

Exhibit D - Technical Support

Exhibit E - Supplier's Existing and Potential Customers

Exhibit F - Supplier's Standard License Agreement



Attachment 1 - Escrow Agreement







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Lucent Technologies Inc./Nabnasset Corporation







SOFTWARE DISTRIBUTION AGREEMENT



This Agreement is entered into by and between Lucent Technologies Inc., a Delaware corporation, by and through its Business Communications Systems Division with a place of business at 211 Mt. Airy Rd., Basking Ridge NJ 07920 (hereinafter called LUCENT), and Nabnasset Corporation, a Massachusetts corporation, with a place of business at 15 Craig Road, Acton, Massachusetts 01720 (hereinafter called SUPPLIER).



The effective date of this Agreement shall be the later of the dates executed by the respective parties.





WHEREAS, SUPPLIER has the right to license PRODUCT, as hereinafter defined, and



WHEREAS, LUCENT desires to obtain rights to PRODUCT and related materials described hereinafter; and



WHEREAS, SUPPLIER desires to provide LUCENT with such rights upon the terms and conditions set forth in this Agreement; and



NOW, THEREFORE, in consideration of the foregoing recitals and the covenants and conditions set forth in this Agreement, the parties agree as follows:



1. DEFINITIONS



A. AFFILIATE: means a subsidiary, corporation, partnership, or venture a majority of whose voting stock or ownership interest is owned directly or indirectly by LUCENT.



B. AGREEMENT: means this document and all of the annexed schedules and exhibits, all of which are hereby incorporated herein by reference together with any future written amendments hereto which have been executed by SUPPLIER and LUCENT.



C. CONFIDENTIAL INFORMATION: means information which is defined in Section 28 hereof.



D. DEMONSTRATION COPY: means a copy of the PRODUCT contained in demonstration kits which shall be supplied to LUCENT by SUPPLIER at no charge.







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E. DOCUMENTATION: means the technical documentation, user manuals, handbooks. list of errors, workarounds, specifications and other written materials relating to PRODUCT provided by SUPPLIER for the PRODUCT.



F. END USER: means a third person or legal entity that obtains rights from LUCENT or from a Subdistributor during the term of this Agreement to utilize PRODUCT and who will have no right to grant further rights to or license PRODUCT to others.



G. ENHANCEMENTS: means modifications or additions to PRODUCT other than maintenance modifications, that may be integrated into the PRODUCT and alter features, functionality or performance of the PRODUCT.



H. GOLDEN MASTER: means an Object Code version of the PRODUCT provided to LUCENT on a media mutua lly agreed upon by LUCENT and SUPPLIER which will be utilized by LUCENT to replicate copies of the PRODUCT for distribution to End Users pursuant to Sublicenses.



I. LICENSE FEE: means the amount of money to be paid by LUCENT to SUPPLIER in accordance w ith the schedule set forth on Exhibit B hereof for each copy of the PRODUCT replicated and provided to an End User, to a Subdistributor or used internally by LUCENT in a production environment.



J. MAINTENANCE AGREEMENT: means a separate agreement which addresses the maintenance and support obligation to End Users and which is more fully described in Exhibit D hereto.



K. MAINTENANCE RELEASE: means a modification of the Object Code of the Product which corrects bugs or errors but does not alter the functionality of the PRODUCT.



L. MAJOR RELEASE: means a new version of the Object Code of the PRODUCT which SUPPLIER has determined results in a substantial alteration in the features or functions of the PRODUCT.



M. MINOR RELEASE: means a new set of Object Code for the PRODUCT that includes support for planned future features and /or addition of limited new features.



N. NEW MODULE: means additional functionality that SUPPLIER may make available to LUCENT and/or End Users for licensing separately to work with the PRODUCT.







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0. OBJECT CODE: means computer programs of the PRODUCT assembled or compiled in magnetic or electronic binary f orm on software media which are readable and reasonable by machine but are not generally readable by humans without reverse assembly, reverse compiling or reverse engineering and which are executable versions of the PRODUCT which may be utilized on platfo rms as defined in Exhibit A hereto.



P. PRODUCT: means the (1) Object Code version of the software of SUPPLIER, that is described in Exhibit A hereto that SUPPLIER markets, maintains and supports as of the date of this Agreement, (2) any Releases, as hereinafter defined, enhancements, fix es, updates and modifications provided to LUCENT pursuant to the terms and provisions hereof, and the Documentation. PRODUCT does not include any intellectual property developed or created by LUCENT pursuant to Section 9 of this Agreement.



Q. RELEASES: means any Enhancement, Major Release, Minor Release, or Maintenance Release.



R. SUPPORT: means warranty and maintenance services which the SUPPLIER is obligated to provide pursuant to the terms and provisions of the warranty or a Maintenance Agreement.



S. SUBDISTRIBUTORS: means a third party who is granted distribution rights to End Users by Lucent through a Sublicense agreement pursuant to the terms and provisions of this Agreement.



T. SUBLICENSE: means a written agreement between an End User a nd a Subdistributor LUCENT; or between a Subdistributor and LUCENT, pursuant to which the End User is granted limited rights to use the PRODUCT and the Subdistributor is granted certain distribution rights.



2. LICENSE GRANT



A. SUPPLIER grants LUCENT, subject to the terms and conditions set forth herein, including but not limited to the payment terms set forth in Exhibit B, a non-exclusive, perpetual, worldwide right and license to use, demonstrate, market, Sublicense, an d distribute copies of PRODUCT supplied to LUCENT by SUPPLIER in Object Code form.



SUPPLIER also grants to LUCENT a non-exclusive, perpetual, royalty-free license to (i) use and reproduce the PRODUCT for purposes of evaluation and acceptance; (ii) reproduce Demonstration Copies of each PRODUCT supplied to LUCENT by SUPPLIER







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solely for the purpose of marketing and promoting the PRODUCT and training customers in its use; (iii) reproduce and distribute copies of Documentation for use by LUCENT personnel in its activities pursuant to this Agreement and for use by Subdistributors and End Users; and (iv) reproduce and distribute copies and D o cumentation in furtherance of this Agreement. Any and all rights and licenses granted to LUCENT under this Agreement shall be non-transferrable except that (a) LUCENT may transfer all or part of said rights and licenses at any time to any AFFILIATE; and ( b ) LUCENT may transfer all or part of said rights and licenses to a third party with the prior written consent of SUPPLIER, which consent shall not be unreasonably withheld. LUCENT shall also have the right to appoint any AFFILIATE or any third party as a S ubdistributor either in the United States or in any countries internationally in which the PRODUCT is Sublicensed. Such Subdistributor(s) shall have the right and license to Sublicense the PRODUCT to further Subdistributors or to End-Users. LUCENT shall b e responsible to SUPPLIER for the acts of its Subdistributors that are in violation of this Agreement.



B. In no event shall LUCENT reverse compile or disassemble Object Code versions of the PRODUCT or otherwise create, or attempt to create or permit, allow or assist others to create source code versions of the PRODUCT



C. The license grants to LUCENT in this Agreement shall extend to any AFFILIATE.



3. RELATIONSHIP OF THE PARTIES



LUCENT and SUPPLIER are and shall remain independent companies and the employees of one shall not hold themselves out or be considered to be employees or representatives of the other. This Agreement is not intended by the parties to constitute or cr e ate a joint venture, agency, partnership, OEM, or other form of business organization, and the rights and obligations of the parties shall be only those expressly set forth herein. If LUCENT and SUPPLIER agree to provide an integrated solution to a custom e r and LUCENT and SUPPLIER determine that a prime contractor/subcontractor relationship between LUCENT and SUPPLIER is appropriate, unless LUCENT and SUPPLIER agree to the contrary, LUCENT shall assume the prime contractor position, and in every prime/subc o ntractor situation, a separate written prime/subcontractor agreement covering the respective obligations of the parties and the rights to any intellectual property created during the prime/subcontractor relationship pertaining to that customer shall be ex ecuted by LUCENT and SUPPLIER. The terms of these separate prime/subcontractor agreements shall not override the terms of this Agreement unless expressly agreed to by LUCENT and SUPPLIER.



If, at any time, either party discloses to the other party information relating to an







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opportunity to sublicense PRODUCT to an interested End User, such information shall be deemed Confidential Informat ion as defined in Section 28 hereof, and as such, shall not be used as a sales lead by either party's direct sales force to approach said End User to license PRODUCT directly to said End User unless agreed by the parties. Further, SUPPLIER agrees not to c reate any commission plan or any other type of incentive that would have the effect of encouraging the direct sales force of SUPPLIER to specifically compete against LUCENT.



At SUPPLIER's request, LUCENT acknowledges that SUPPLIER has established rel ationships with certain end users of the PRODUCT ("Existing Customers") and has entered into marketing discussions with certain potential end users ("Potential End Users"). Said Existing End Users and Potential End Users (collectively, "Listed Customers") are listed in Exhibit E. As soon as practical after the effective date of this Agreement, sales or marketing personnel of the parties shall agree on the parties' respective roles in dealing with the Listed Customers with respect to the PRODUCT and related services. If a joint agreement cannot be reached by the parties as to any Existing Customer by July 1, 1997, SUPPLIER shall have right of first preference to enter into agreements with such Existing Customer for PRODUCT and related services. If a joint ag r eement cannot be reached by the parties as to any Potential End User by July 1, 1997, the parties shall market and sell PRODUCT and related services to such Potential End User independently and without restriction in the absence of an agreement by the par t ies to the contrary as to any Potential End User. Beginning on January 1, 1998, the parties shall market and sell PRODUCT and related services independently and without restriction to Potential End Users. Nothing in this paragraph shall be construed to pr e clude any customer, Listed Customer or End User at any time from electing to license PRODUCT from either party and such election shall be binding on both parties. Nothing contained in this paragraph shall restrict LUCENT from marketing or selling any LUCE N T or third party equipment or related services to any customer or End User, including but not limited to any Listed Customer, provided that, LUCENT shall not market or sell the PRODUCT and related services, or a product and its related services which dire ctly compete with the PRODUCT and related services, to an Existing Customer in the absence of a specific request by such Existing Customer.



4. PERIODIC MEETINGS



During the term of this Agreement, duly authorized represe ntatives of the parties shall meet quarterly within thirty (30) days of the receipt by SUPPLIER of the quarterly payment by LUCENT of any fees due hereunder to discuss issues arising out of this Agreement and related services and PRODUCT, to review volume s of PRODUCT Sublicensed by LUCENT, to review SUPPLIER plans relating to PRODUCT, and to







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review levels of Sublicense satisfaction with PRODU CT. No discussions or agreements reached during said meetings shall modify or amend this Agreement unless reduced to the form of a Written amendment to this Agreement signed by authorized representatives of LUCENT and SUPPLIER.



5. GOLDEN MASTERS



Upon execution of this Agreement by LUCENT and SUPPLIER, SUPPLIER shall provide to LUCENT (i) three copies of a Golden Master of the PRODUCT software in Object Code form and (ii) three copies of all applicable Documentation. The Documentation shall be provided on the same media as the Object Code that will allow LUCENT to reproduce and distribute such Documentation in accordance with normal manufacture reproduction procedures. In addition to the righ t s granted in Section 2 hereof, entitled License Grant, subject to the provisions of this Agreement, LUCENT shall have the right to reproduce the PRODUCT in Object Code form and all applicable Documentation for distribution to End Users solely for the use of such End User without the right to distribute the PRODUCT further. Subject to the provisions of this Agreement, LUCENT shall also have the right to distribute the PRODUCT, Demonstration Copies, and Documentation to its Subdistributors.



6. MONTHLY REPORTS



LUCENT shall render written monthly reports to SUPPLIER within [*] days from the end of each calendar month specifying the number of copies of the PRODUCT and the number of copies of the Documentation delivered to En d Users during the previous month. Each such report shall include the name and address of each End User. Within [*] days from the end of each quarter, LUCENT will pay to SUPPLIER the total License Fees payable to SUPPLIER corresponding to the number of co pies of PRODUCT replicated and shipped to End Users or used internally by LUCENT during the quarter just ended.



SUPPLIER shall render written monthly reports to LUCENT within thirty (30) days from the end of each calendar month specifying the number of Maintenance Agreements with End Users executed during the previous month. Each such report shall include the name and address of each End User. Within [*] days of the end of each quarter SUPPLIER will pay to LUCENT the portion due LUCENT of such fees p aid pursuant to such Maintenance Agreements during the quarter just ended.







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[*] Certain information in this exhibit has been omitted and filed

separately with the Commission. Confidential treatment has been

requested with respect to the omitted portions.







7. AUDIT



SUPPLIER shall have the right to engage an independent accounting firm to audit LUCENT's information on distribution of the PRODUCT to establish the accuracy and timeliness of monthly reports and quarterly payments made to SUPPLIER by LUCENT. The information provided to SUPPLIER by the accounting firm shall be limited to the firm's o pinion on the accuracy and timeliness of reports and payments made by LUCENT: as to all other information qathered or discovered during the audit, the accounting firm shall be required to hold all such information strictly confidential to LUCENT. The audi t may be conducted not more than once a year, and LUCENT shall not unreasonably, withhold or delay its consent to the time of the audit and SUPPLIER'S choice of accounting firm. The accounting firm shall be bound by a non-disclosure agreement in the form t o be provided by LUCENT to ensure compliance with this paragraph and shall provide LUCENT with a copy of its audit report. Any discrepancies or errors identified in an audit report shall be corrected by the party who committed the error within thirty (30) days of the receipt of the report by that party. Any dispute related to the content of an audit report shall be resolved pursuant to Section



8. LICENSE FEE



LUCENT shall pay SUPPLIER a License Fee as shown in EXHIBIT B for each copy of the PRODUCT replicated and provided to an End User by LUCENT or its Subdistributors.



9. RIGHTS TO PRODUCT



The PRODUCT, including all Releases and New Modules, is and shall rema in at all times the exclusive property of SUPPLIER. LUCENT shall have no right, title or interest in the PRODUCT except as expressly set forth herein. No Subdistributor or End User shall acquire any rights of ownership in the PRODUCT. At the request of SU PPLIER, LUCENT will execute and deliver any document, instrument or agreement to SUPPLIER that may be appropriate to maintain the exclusive ownership of the PRODUCT by SUPPLIER.



The parties recognize and acknowledge that LUCENT shall have the right t o develop and create templates, interfaces, and other intellectual property that may be used in conjunction with the PRODUCT or incorporated into the PRODUCT for specific End Users. The parties agree that LUCENT shall have full right, title, and interest in the







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intellectual property that it develops and creates, and SUPPLIER shall have full right, title, and interest in the intellectual prope rty it has developed and created, including but not limited to the PRODUCT delivered to LUCENT, and to the intellectual property SUPPLIER develops and creates in the future. No right, title or interest in intellectual property shall pass from one party to the other unless expressly set forth in this Agreement or upon the express, written consent of both parties. Any dispute between the Parties relating to a right or interest of intellectual property shall be resolved pursuant to Section 34.



SUPPLIER may use, sell, assign, transfer or license the PRODUCT to third parties free from any restrictions of LUCENT.



10. DELIVERABLES



A. SUPPLIER agrees to deliver upon execution to LUCENT three (3) Golden Master copies of the PRODUCT; three (3) copies of all Documentation contained in media described in EXHIBIT A; three (3) Golden Master copies of Demonstration Copies of the PRODUCTS; and any other deliverable items set forth in Exhibit A.



B. Deliveries by SUPPLIER of Golden Masters and Documentation under this Agreement shall be one copy of each to the following three locations:



Lucent Receiving Dock

1200 West 120 Avenue

Westminster, CO 80234



Operations Manager Integrated Business Solutions

8200 East Maplewood Avenue

Englewood, CO 80111

Attn: Jerald Wyatt

Dan Prentice



Lucent Technologies Bell Laboratories

Room 30E108

11900 N. Pecos Street

Westminster, CO 80234-2703



Any or all of these locations may be changed by LUCENT at any time upon written notice to SUPPLIER.







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C. From time to time, SU PPLIER may issue Releases and New Modules. SUPPLIER shall promptly provide to LUCENT, at no additional charge, three (3) Golden Master Copies of the Releases and New Modules, three (3) Golden Master copies of corresponding Demonstration Copies, and three ( 3) copies of all applicable Documentation for each Release or New Module as soon as such Release or New Module is ready for use by any of SUPPLIER's customers. Whenever possible, SUPPLIER will provide LUCENT with 120 day advance notice of Release or New M o dule schedules and content. Such Release or New Module shall be considered PRODUCT subject to all terms and conditions of this Agreement. Should SUPPLIER introduce a Release or New Module, LUCENT may, at its sole option, elect not to distribute said Relea s e or New Module. Such decision shall not affect the respective obligations of t ...