Amended And Restated Development Agreement

AMENDED AND RESTATED DEVELOPMENT AGREEMENT


This Amended and Restated Development Agreement dated April 3, 1996 (this "Agreement") is an amendment to the Software Development, License and MIS Support Agreement (the "Original Agreement") dated as of October 7, 1994, between IXC Long Distance, Inc., a Delaware corporation ("IXC"), and Intertech Management Group, Inc., a Missouri corporation ("Intertech").


BACKGROUND


A. IXC and Intertech entered into the Original Agreement in order, among other things, to memorialize the terms and conditions on which Intertech would develop the necessary software products for IXC's switched minute service business.


B. IXC and Intertech desire to amend and restate the Original Agreement on the terms and conditions set forth below.


AGREEMENT


NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants set forth below, IXC and Intertech agree as follows:


ARTICLE I


1.1 Amendment and Restatement. This Agreement amends and restates the Original Agreement in its entirety, and the Original Agreement shall no longer be of any force or effect. Intertech hereby irrevocably and unconditionally releases, acquits ad forever discharges IXC and its officers, directors, shareholders, agents, affiliates, attorneys, predecessors and successors-in-interest from any and all liabilities, claims, demands, causes of action at law or in equity, of any nature, known or unknown (collectively, any "Claim"), which Intertech now owns or holds, has at any time heretofore owned or held, or may at any time hereafter own or hold by reason of any act, event or omission which occurred prior to the execution hereof, including, without limitation, any Claim arising out of the Original Agreement or any transaction contemplated thereby, expenses incurred by Intertech as a result of delays in receiving information from IXC or for work performed by Intertech outside the scope of the Original Agreement; provided, however, that IXC shall not be released, acquitted or discharged from any Claims with respect to the invoices set forth on Exhibit A attached hereto. Intertech expressly relinquishes and waives all rights that has, may have, or may claim to have under any statute of any jurisdiction similar in nature to California Civil Code Section 1542, which reads:


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"A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."


1.2 Consideration. Upon the execution of this Agreement, IXC shall pay Intertech ***.


ARTICLE II
DEFINITIONS


2.1 Custom Software shall mean all software developed by Intertech for IXC or relating to IXC through the date hereof, including, without limitation, pursuant to the Development Program under the Original Agreement, the Custom Software under the Original Agreement, all software developed outside the Original Agreement, and all Enhancements, "Custom Software" shall also include all elements of the Existing Modules incorporated in, or utilized by, the Custom Software defined above.


2.2 Enhancements shall mean the "Intertech Design Enhancements" and the "IXC Design Enhancements."


2.3 Existing Modules shall mean the series of Network Strategies(R) modules developed by Intertech.


2.4 Intertech Design Enhancements shall mean all: (i) enhancements, modifications, upgrades or improvements to the Custom Software; (ii) or other software of any kind developed by Intertech for IXC; but shall not include the IXC Design Enhancements.


2.5 IXC Design Enhancements shall mean all enhancements to the Custom Software which result from modifications, upgrades or improvements to the Custom Software following the date hereof or other software of any kind developed by Intertech for IXC, for which IXC shall have been primarily responsible for the design (such design being understood to comprise the preparation of use cases, context series, object model, dynamic model, functional model, interface specifications and test suites), and which IXC shall have identified in writing to Intertech as being owned by IXC under the terms hereof.


2.6 Source Code shall mean the source code to the Custom Software, including, without limitation, the input to a compiler or assembler written in a source language and any related documentation, including all comments and any procedural code such as job control language and any design documentation. Source Code shall also include, without limitation, any tools, utilities and development environment attributes necessary for the use of the Source Code.


--------- ***Portions redacted pursuant to a request for confidential treatment.


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ARTICLE III
THE LICENSE


3.1 Ownership of the Software. Except for the license set forth below Intertech shall own and retain title to the Existing Modules, and the Custom Software (excluding the IXC Design Enhancements) subject to the license to IXC and the other restrictions set forth herein. IXC shall own and retain title to the IXC Design Enhancements.


3.2 Grant of the License. Intertech hereby grants to IXC, and IXC hereby accepts from Intertech a fully paid-up, worldwide, perpetual, non-exclusive license to use and modify the Custom Software (the "License"), and the right to sub-license such software solely to the switched services customers of IXC or its affiliates in connection with the sale of such switched services to such customers. Such use and sub-license by IXC or its affiliates or their customers is not to include the provision of Retail Billing Services in the telecommunications industry using the Custom Software. Notwithstanding the foregoing however, IXC, its affiliates, and their customers shall not be restricted in any way (including the provision of Retail Billing Services) from using outputs or data, from the use of the Custom Software or any Enhancements. "Retail Billing Services" for the purposes of the foregoing sentence shall mean the computation or preparation of bills for end-users.


3.3 Restrictions on Intertech's Ability to License, Sell or Otherwise Transfer Any Right to Use the Software. Intertech shall have the right to license the Custom Software (excluding the IXC Design Enhancements), without IXC's prior written consent, to any person or entity; provided, however, that any license to any of the following companies (or any affiliate thereof), shall require IXC's prior written consent, which consent may be withheld in IXC's sole discretion: (i) WCT Communications, Inc; (ii) LCI International Telecom Corp.; (iii) SP Telecom; (iv) U.S. Long Distance Services; (v) WorldCom, Inc.; and (vi) Frontier Corporation. In addition, Intertech shall impose restrictions consistent with those set forth in this section on any permitted licensee who is granted the right to sublicense the Custom Software with respect to such permitted licensee's ability to license any rights in or to the Custom Software.


3.4 Protection of the Custom Software. Promptly following the execution of this Agreement, Intertech shall: (i) apply to the United States Copyright Office for, and thereafter diligently pursue, registration of the copyright in the Custom Software; (ii) apply to the United States Patent and Trademark Office (the "PTO") for, and thereafter diligently pursue, such patents with respect to the Custom Software as Intertech may determine, after consultation with its patent counsel, it would be prudent to seek; and (iii) apply to the PTO for, and thereafter diligently pursue, registration of such trademarks with respect to the Custom Software as it may appear to Intertech prudent to seek. All costs of obtaining initial copyright, patent or trademark protection with respect to the Custom Software shall be borne by Intertech with counsel of its choice. Both parties shall take appropriate steps and precautions to protect against any unauthorized use or copying of the Custom Software. In the event either Intertech or IXC believes that any third party is infringing on any protected rights in the Custom Software, such party shall notify the other party of such belief and each party shall use its best efforts to vigorously defend its protected rights in the Custom Software. The parties may agree that one party may take the lead in protecting the rights in the Custom Software. In any event, the parties shall cooperate with each other in such proceedings and shall share any monetary award obtained in an action brought by either party in proportion to the expense incurred by such party in bringing and prosecuting


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such action; provided, however, that Intertech shall not be required to institute or join any legal action against such third party unless IXC shall have first agreed in writing to indemnify and hold Intertech harmless from any and all costs and expenses that may be incurred by Intertech as a result of instituting or joining such action, including all reasonable legal fees and disbursement of counsel of Intertech's choice. In the event a third party asserts a claim against Intertech or IXC alleging that the Custom Software infringes any intellectual property right of such third party, Intertech shall bear all costs of defending such claim, whether or not a lawsuit is commenced, and Intertech shall indemnify and hold IXC harmless from any and all costs, expenses, final judgments, and settlements approved by Intertech, incurred by or entered against IXC resulting from such claim; provided, however, that if Intertech is successful in defending against such claim on the merits, then IXC shall share equally with Intertech the reasonable legal fees and expenses incurred by Intertech in conducting such defense. Intertech shall have the right to settle such claim upon such terms as Intertech deems advisable without the consent of IXC, unless IXC shall have first agreed in writing to indemnify and hold Intertech harmless from any and all costs, expenses, final judgments, and settlements approved by IXC that may be incurred by or entered against Intertech as a result of continuing to defend against such claim; provided, however, that any such settlement shall not relieve Intertech of its obligations to IXC under this Agreement. Intertech shall have no liability for, and shall not indemnify IXC for, any infringement claim arising from any modification of the Custom Software by IXC, any combination of the Custom Software with hardware, software or other items provided or selected by any party other than Intertech, or any use of the Custom Software in any manner not specified in this Agreement, including the Exhibits and Schedules hereto, or in the documentation provided by Intertech. In the event a third party asserts a claim against Intertech alleging that any modifications made by IXC to the Custom Software or the Existing Modules incorporated therein infringes any intellectual property right of such third party, IXC shall bear all costs of defending such claim, whether or not a lawsuit is commenced, and IXC shall indemnify and hold Intertech harmless from any and all costs, expenses, final judgments, and settlements approved by IXC, incurred by or entered against Intertech resulting from such claim.


3.5 Source Code. Intertech shall deliver to IXC upon the execution of this Agreement a current copy of the Source Code and associated documentation for the Custom Software (including that portion of the Existing Modules incorporated in, or utilized by, the Custom Software) and shall at all times hereafter keep the copy of such Source Code held by IXC updated on a weekly basis. Intertech agrees that it shall not permit any third party to have access to the Source Code relating to the IXC Design Enhancements.


ARTICLE IV
WARRANTY AND MAINTENANCE


4.1 Warranty. Intertech warrants that the Custom Software will, if maintained and operated in accordance with Intertech's instructions, for a period of one year from the date hereof (or, with respect to Enhancements, from the date of completion thereof): (i) perform in all material respects in accordance with applicable performance standards; and (ii) be free of material reproducible programming errors, defects in workmanship and materials, and other defects which may cause it to malfunction in any material respect. Intertech's warranty shall not apply to defects ("Non-Warranty Defects") caused by (i) IXC's modifications of the Custom


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