Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Form S-1 Amendment Number 1 107 579K
2: EX-3.1 Restated Certificate of Incorporation 25 111K
3: EX-3.2 Amended and Restated By-Laws 18 82K
4: EX-4.1 Specimen Common Stock Certificate 2 12K
5: EX-4.2 Warrant Agreement Dtd September 4, 1998 33 94K
6: EX-4.3 Common Stock Warrant Dtd 02/19/1999 8 37K
7: EX-4.4 Common Stock Warrant Dtd 02/19/1999 8 37K
8: EX-4.5 Stockholders Agreement Dated 02/19/1999 28 142K
9: EX-10.1 Investment Agreement Dated 04/22/1998 2 19K
16: EX-10.10 Assignment and Assumption Dtd 10/02/1998 3 18K
17: EX-10.12 Employment Agreement Dtd 6/29/1998 15 53K
18: EX-10.13 Agreement for Cooperative Use Dtd 11/5/1996 37 112K
19: EX-10.14 Letter of Agreement Dtd 2/28/1997 2 15K
20: EX-10.15 Letter of Agreement Option Dtd 4/4/1997 2± 14K
21: EX-10.16 Letter Amendement Agreement Dtd 8/1/1997 3 17K
22: EX-10.17 Letter Amendement Agreement Dtd 10/21/1997 2± 14K
23: EX-10.18 Application Transfer Dtd 01/06/1999 2± 15K
24: EX-10.19 Assignment of Ussn and Pct Dtd 01/06/1999 2 16K
25: EX-10.20 Letter Amendment Agreement Dtd 01/26/1999 2 20K
26: EX-10.21 Assignmt of 50% of Certain Patent Prop Dtd 3 24K
01/26/1999
27: EX-10.22 Assignmt of Certain Trademarks Dtd 02/09/1999 2 15K
28: EX-10.23 Internet Services Agreement Dtd 10/24/1997 6 37K
29: EX-10.24 Collaboration Agreement Dtd 02/18/1998 2 17K
30: EX-10.25 Cais Iport License Agreement Dtd 09/10/1998 19 70K
31: EX-10.26 Marketing Assoc. Solution Agreement Dtd 11/11/1998 10 50K
32: EX-10.27 Master License Agreement Dtd 12/23/1998 51 175K
33: EX-10.28 Agreement for High Speed Net Access Serv Dtd 26 93K
02/19/1999
34: EX-10.29 Deed of Lease Dtd July 28, 1997 13 44K
10: EX-10.3 Series A Stock Dtd 02/19/1999 43 177K
35: EX-10.30 Deed of Lease Dtd May 28, 1998 12 41K
36: EX-10.31 Office Building Lease Dtd 11/21/1998 71± 279K
37: EX-10.32 Settle Agreement Dtd 01/24/1999 17 48K
38: EX-10.33 Amended and Restated Equity Dtd 02/12/1999 9 46K
11: EX-10.4 Exchange Agreement Dtd 10/02/1998 5 22K
12: EX-10.5 Agreement of Merger Dtd 10/02/1998 5 25K
13: EX-10.6 Amended and Restated Employment Agreement Dtd 9 43K
06/03/1997
14: EX-10.7 Assignment and Assumption Dtd 10/02/1998 3 17K
15: EX-10.9 Amended Employment Agreement Dtd 9/8/1997 11 49K
EX-10.25 — Cais Iport License Agreement Dtd 09/10/1998
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Exhibit 10.25
CAIS IPORT(TM) INTEGRATOR LICENSE AGREEMENT
(North America, Hotels Only)
(Nonexclusive)
This Agreement (the "Agreement") is effective as of Sept 10, 1998, between
--------- -------------
ATCOM, INC., a California Corporation, d/b/a ATCOM/INFO ("ATCOM") and
-----
CAIS Inc., a VIRGINIA Corporation ("Licensee").
------------------- --------
In consideration for the following mutual agreements, the parties agree as
follows:
1. "Software" means ATCOM's proprietary IPORT(TM) server software program as
--------
described in Exhibit A, all in object code form, and any related materials, in
---------
machine readable and/or printed form, furnished to Licensee by or on behalf of
ATCOM.
2. IPORT(TM) License Grant. Subject to the terms of this Agreement, ATCOM hereby
-----------------------
grants to Licensee, and Licensee accepts and agrees to purchase, a non-
transferable, nonexclusive right to use such number of object code copies of the
Software as are set forth on Exhibit B. For each such object code copy of the
---------
Software paid for by Licensee, Licensee will have a fully paid-up, perpetual
license to use such object code copy of the Software. The parties may amend and
supplement Exhibit B from time to time to add licenses to use additional object
---------
code copies. The licenses granted pursuant to this Agreement will be only for
one server per object code copy of the Software. Except as may be expressly set
forth in this Agreement, no right is granted hereby to use any of ATCOM's
trademarks, trade names, brand names, logos or service marks.
3. Restrictions. Licensee may not copy the Software except that it may make one
------------
copy of the Software per object code copy licensed solely for backup purposes.
Each copy of the Software may be run on one server only. Unless and to the
extent otherwise expressly provided in this Agreement, Licensee will not (i)
attempt to construct or discover, decompile or reverse engineer any source code,
structure, algorithms, or other underlying ideas or processes of the Software by
any means whatever; (ii) remove any copyright or other proprietary notices,
(iii) modify, incorporate into other software or create a derivative work of any
part of the Software, or (iv) export the Software or any copy or direct product
thereof out of the United States except in compliance with any applicable export
laws and regulations.
4. Other Internet Software and Services. Licensee may provide other Internet
-- ------------------------------------
related services and software to its customers or sell Licensee hardware to
companies that compete with ATCOM, but Licensee will not develop or make
Internet access software that competes with, or would in any way affect
adversely, impair or decrease the use of, ATCOM's Software in the hotel and
motel market.
5. Delivery and Installation. Licensee will be solely responsible for
-- -------------------------
installing the Software and providing all hardware, telephone, cabling,
telecommunications and network service connections, including Internet service
access provisions, parts, and supplies,
CAIS
ATCOM Initial/Date: / Licensee Initial/Date: /
----- ----- ----- -----
1
necessary for installing the Software at the site location but Licensee's
installation must conform to the requirements of Exhibits F and G. Upon receipt
----------------
of the Software from ATCOM, Licensee will complete and return to ATCOM within
five business days an IPORT(TM) Property Site Survey in substantially the form
of the specimen of Exhibit C. ATCOM may change the form of the IPORT(TM)
---------
Property Site Survey from time to time. Licensee will retain all original disks
or CDs provided to Licensee by ATCOM containing the Software for purposes of
verification of compliance with this Agreement. The method, service provider and
hardware required for the Internet connection will be within the sole discretion
of Licensee. Licensee will pay the monthly fee for the Internet connection
directly to the provider.
6. Joint Efforts. ATCOM may, in its sole discretion, request Licensee to assist
-------------
ATCOM or otherwise participate with ATCOM in connection with IPORT(TM)
technology implementations on behalf of ATCOM's own customers. In such event,
Licensee and ATCOM agree to negotiate in good faith reasonable terms and
conditions therefor.
7. Customization and Advertising Services. During the term of this Agreement,
--------------------------------------
upon Licensee's written request and at Licensee's expense (based on ATCOM's time
and material rates set forth on Exhibit B), and upon prior mutual agreement on
---------
payment, design, delivery, and other relevant terms and conditions, ATCOM will
provide customization and advertising services.
8. Training. During the term of this Agreement, upon Licensee's written request
--------
and at Licensee's expense (based on ATCOM's time and material rates set forth on
Exhibit B), ATCOM will provide training reasonably necessary for Licensee to
---------
effectively use and instruct end users on the use of the Software.
9. Modification & Releases. During the term of this Agreement, ATCOM will
-----------------------
deliver to Licensee, without additional charge, any modifications, enhancements,
versions or releases of the Software, and Licensee will keep ATCOM informed as
to any problems encountered with the Software and any resolutions arrived at for
those problems.
10. License Fees. In consideration for the licenses granted pursuant to this
------------
Agreement, Licensee will pay ATCOM the non-refundable license, monitoring, and
use fees as set forth on Exhibit B. ATCOM reserves the right unilaterally to
---------
change the prices set forth as Exhibit B upon 30 days advance notice to
---------
Licensee.
11. Monitoring and Help Desk. During the term of this Agreement, ATCOM will
------------------------
provide the monitoring and help desk services, and Licensee will pay to ATCOM
the monitoring and help desk fees, in each case as set forth on Exhibit B. If
---------
requested by ATCOM, Licensee will allow ATCOM to make a reasonable limited on-
site inspection and limited on-site operational testing with respect to Software
performance. Such inspection and operational testing will include assessing the
physical integrity of the installed IPORT(TM) system (including the Software
loaded on the server and the corresponding Licensee Jacks) and attempting to
operate the system in a manner similar to that expected of an end user.
CAIS
ATCOM Initial/Date: / Licensee Initial/Date: /
----- ----- ----- -----
2
Licensee will allow ATCOM to remotely monitor the IPORT system for purposes of
auditing and statistics gathering.
12. Payment Due Dates. All fees will be payable as set forth on Exhibit B.
----------------- ---------
All fees will be deemed overdue if they remain unpaid 31 days after they become
payable. All payments will be made without abatement, set-off, or deduction for
any amount whatsoever. All overdue payments will bear interest from the date
when due to the date when paid at the maximum rate permitted by applicable law.
The payment obligations of Licensee pursuant to this Agreement will be absolute
and unconditional and will in no way be released, discharged or otherwise
affected by reason of any set off or claim Licensee may have against ATCOM or
any customer of Licensee.
13. Branding and Notices. Licensee agrees and acknowledges that the Internet
--------------------
access system enabled by the Software will be known only as the "IPORT(TM)
system," provided, however, that Licensee shall not be restricted from
referencing OverVoice in connection with Licensee's OverVoice(TM) infrastructure
system and equipment, and in connection with hotels or other facilities using
the OverVoice(TM) infrastructure solution. Licensee must not alter or remove
ATCOM's trade name, service marks, trademarks or copyright notice and any other
proprietary notices or trademarks on each installed copy or any backup copies
and must include ATCOM's "IPORT(TM)" trademark on the Licensee Jacks. Licensee's
"OverVoice(TM)" trade name, service mark, or trademarks shall be included on all
wall jacks and other equipment proprietary to Licensee where the OverVoice(TM)
infrastructure solution is used. ATCOM is the sole owner of the service marks,
trademarks and trade names "ATCOM/INFO," "IPORT(TM)" and "INTERNET DIAL TONE"
(the "ATCOM Marks"). Licensee agrees to actively promote the IPORT(TM) system by
-----------
furnishing ATCOM's promotional literature and technical information and related
assistance to end users and prospective end users of the IPORT(TM) system.
Licensee will comply in all respects with the trademark quality control
requirements set forth by ATCOM on Exhibits D. If ATCOM produces marketing
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materials or artwork that would help publicize the IPORT(TM) system, ATCOM will
make samples of such materials or artwork available to Licensee at no cost, and
Licensee will ensure that such materials are displayed in all appropriate
locations. Each party may use the other's name in marketing the IPORT(TM)
system, but each party will perform no actions to harm the other's name and
reputation.
14. Ownership and Proprietary Rights. ATCOM has and will retain all ownership
--------------------------------
and intellectual property rights in the Software and any derivative works
thereof, and, except as may be expressly provided in this Agreement, ATCOM has
the exclusive right to protect by copyright or otherwise to reproduce, publish,
sell or distribute the Software to anyone. ATCOM reserves the sole right to
modify and update the Software. Licensee acknowledges and agrees that ATCOM is
the sole and exclusive owner of all patents, copyrights and trademarks relating
to the Software and the IPORT(TM) system, whether or not registered. Licensee
will not take any action that might impair in any way any right, title or
interest of ATCOM and/or any licensee of ATCOM in or to any of ATCOM's
intellectual property rights or challenge the ownership of any patents or
validity or ownership of any of ATCOM's
CAIS
ATCOM Initial/Date: / Licensee Initial/Date: /
----- ----- ----- -----
3
copyrights, trade names or trademarks. Licensee will in no manner represent that
it has any ownership interest in the Software, the IPORT(TM) system or ATCOM's
intellectual property.
15. Confidentiality. Licensee agrees to receive and maintain the Software and
---------------
all information and ideas with respect thereto (collectively "Confidential
------------
Information") in confidence using at least, but not limited to, the same degree
-----------
of care to protect such Confidential Information it takes in protecting its own
confidential information. Except as expressly provided in this Agreement,
Licensee will not use Confidential Information or disclose it to third parties.
Without granting any license, ATCOM agrees that Licensee will have no
obligations under this section with respect to information Licensee demonstrates
by written records (a) was already rightfully known to Licensee without
restriction prior to disclosure by ATCOM; (b) is generally publicly available at
the time of disclosure; (c) is disclosed to Licensee by a third party who is not
in breach of an obligation of confidentiality, provided that all restrictions
imposed by such third party are complied with; or (d) becomes generally publicly
available after disclosure through no act or omission of Licensee. The
provisions of this section will survive any termination of the license or this
Agreement.
16. Termination. Unless earlier terminated in accordance with the provisions
-----------
of this Section, the term of this Agreement will continue from the date of this
Agreement until the third anniversary thereof and will automatically renew for
an additional one year term unless either party provides the other party with at
least 90 days notice of such party's intention not to renew. Either party may
terminate this Agreement at any time upon 90 days advance notice and by payment
of all accrued fees up to and including the effective date of termination or
upon 30 days notice if the other party materially fails to comply with any
provision of this Agreement and such failure is not cured within such 30-day
notice period. Upon termination, (a) Licensee will immediately and any
Confidential Information and return to ATCOM within one month after termination
of Confidential Information and (b) ATCOM will have no further obligations to
support, maintain, enhance or upgrade the Software as to provide any
customization, advertising, training, monitoring or help desk services, but
Licensee may continue to operate and maintain, but not copy, any object code
copies of the Software for which Licensee has previously paid ATCOM the
applicable up-front fees. This requirement applies to copies of Confidential
Information in all forms, partial and complete, in all types of media and
computer memory, and whether or not modified or merged into other materials.
Termination of this Agreement will not limit either party from pursuing any
other remedies available to it, including injunctive relief, nor will such
termination relieve Licensee of its obligation to pay all fees that accrued
prior to such termination.
17. Warranty. ATCOM warrants for a period of the earlier of 90 days from the
--------
date of installation of the Software that the Software, unless modified by
Licensee, will perform the functions described in the documentation provided by
ATCOM, as updated by ATCOM from time to time, when operated on the operating
system described on Exhibit A. ATCOM will undertake to correct any substantial
---------
defect in the Software which has been reported to ATCOM by Licensee and any
minor defects will be corrected in a subsequent release. In addition, ATCOM
warrants the tapes, CDS, diskettes, or other tangible media to be free of
defects and materials and workmanship under normal use for 90 days from the date
of this
CAIS
ATCOM Initial/Date: / Licensee Initial/Date: /
----- ------ ----- -----
4
Agreement. During the 90-day period, Licensee may return defective media to
ATCOM and it will be replaced without charge. Replacement of media is Licensee's
sole remedy in the event of a media defect. In the case of breach of warranty of
the Software, ATCOM will correct or replace any defective Software or, if not
practicable, ATCOM will accept the return of the defective Software and refund
to Licensee the amount actually paid to ATCOM for the defective Software. THE
WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS,
REPRESENTATIONS, INDEMNITIES AND GUARANTIES WITH RESPECT TO THE SOFTWARE,
WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, BY ORAL OR WRITTEN
STATEMENTS BY ATCOM, ITS LICENSORS, OR REPRESENTATIVES OR OTHERWISE.
18. Disclaimer. ATCOM DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE'S
----------
OR ITS CUSTOMERS' REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE IN THE
COMBINATIONS WHICH LICENSEE MAY SELECT FOR USE, THAT THE OPERATION OF THE
SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL SOFTWARE ERRORS WILL
BE CORRECTED. THE SOFTWARE IS PROVIDED WITHOUT ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, ATCOM DOES NOT
WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING USE, OR THE RESULTS OF
USE, OF THE SOFTWARE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY,
CURRENTNESS, OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF
THE SOFTWARE IS ASSUMED BY LICENSEE.
19. Limitation of Remedies and Damages. ATCOM WILL NOT BE RESPONSIBLE OR
----------------------------------
LIABLE UNDER ANY PROVISION OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE,
STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOSS OR INACCURACY OF
DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR ANY
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO,
LOSS OF REVENUES AND LOSS OF PROFITS REGARDLESS OF WHETHER ATCOM HAS BEEN
ADVISED OF THE EXPECTATION OR EXISTENCE OF SUCH DAMAGES. ANY LIABILITY OF ATCOM
UNDER ANY THEORY WHATSOEVER WILL BE LIMITED EXCLUSIVELY TO PRODUCT REPLACEMENT
OR, IF UNENFORCEABLE, TO PAYMENT OF AN AMOUNT NOT GREATER THAN AMOUNTS ACTUALLY
RECEIVED BY ATCOM PURSUANT TO THE PROVISIONS OF THIS LICENSE AGREEMENT.
20. Notices. Any notice required or permitted pursuant to this Agreement to
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the parties to this Agreement will be in writing and will be deemed to have been
duly given if delivered personally, by telecopy upon appropriate answer-back or
mailed by first-class, registered or certified U.S. mail, postage prepaid or
reputable overnight courier, and if to Licensee, addressed to Licensee at the
address set forth on the signature page to this Agreement and if to ATCOM,
addressed to ATCOM at 308 G Street, San Diego, California 92101, FAX:
CAIS
ATCOM Initial/Date: / Licensee Initial/Date: /
----- ----- ----- -----
5
(619) 699-4040. The parties will promptly notify each other in writing of any
changes in address.
21. Indemnity. ATCOM will defend and indemnify Licensee against a claim that
---------
Software furnished and used within the scope of this Agreement infringes a
United States copyright or misappropriates any trade secret, provided that: (a)
Licensee notifies ATCOM in writing within 30 days of the claim, (b) ATCOM has
sole control of the defense and all related settlement negotiations, and (c)
Licensee provides ATCOM with the assistance, information, and authority
necessary to perform the above. ATCOM will have no liability for any claim of
infringement based on: (a) use of a superseded or altered release of Software
if such infringement would have been avoided by the use of a current unaltered
release of the Software that ATCOM provides to Licensee; (b) any customized
Software, to the extent that such customization was at the request of Licensee;
or (c) the combination, operations, or use of any Software furnished under this
Agreement with Software or data not furnished by ATCOM if such infringement
would have been avoided by the use of the Software without such Software or
data. If the Software is held or is believed by ATCOM to infringe, ATCOM will
have the option, at its expense, to (a) modify the Software to be noninfringing,
(b) obtain for Licensee a license to continue using the Software, or (c)
terminate the license for the infringing Software and refund the license fees
paid for those Software, prorated from the date such Software was delivered.
THIS SECTION STATES ATCOM'S ENTIRE LIABILITY FOR INFRINGEMENT.
22. Assignment/Affiliated Entities/Licensing of Licensee's Channel Partners.
-----------------------------------------------------------------------
a) The License is not assignable or transferable by Licensee and the
Software may not be sublicensed without the prior written consent of ATCOM,
which consent shall not be unreasonably withheld, and provided, however, that
Licensee may assign this License, without the further consent of ATCOM, to any
successor entity or in connection with the sale or transfer of all or
substantially all of Licensee's assets subject to assignee's assumption of all
Licensee's rights and obligations hereunder. Any other attempted transfer,
assignment or sublicense will be void and a material breach of this Agreement.
This Agreement is assignable by ATCOM.
b) ATCOM agrees that Licensee may elect to allow one or more entities
affiliated with Licensee to opt into the terms and conditions of this License as
a licensee following written notice by Licensee and such affiliated entity to
ATCOM of such election.
c) ATCOM agrees to provide Licensee from time to time with updated
pricing and other terms under which ATCOM would be prospectively offering to
license the Software to Licensee's channel partners. Licensee shall have the
right to provide such information as furnished by ATCOM to Licensee's actual and
prospective channel partners on a non-binding basis and for informational
purposes only, recognizing that the pricing and other terms of any license
agreement between ATCOM and a channel partner of Licensee would be subject to
subsequent negotiation and execution of mutually acceptable license agreement
between ATCOM and such channel partner of Licensee.
CAIS
ATCOM Initial/Date: / Licensee Initial/Date: /
----- ----- ----- -----
6
23. Taxes. Licensee will pay or reimburse ATCOM for all duties, sales and
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use taxes and other charges relating to the Software, this Agreement or payments
pursuant to this Agreement, with the sole exception of taxes on ATCOM's income.
24. Dispute Resolution. This Agreement will be governed and construed by and
------------------
under the laws of the State of California without regard to the application of
the principles of conflict of laws, and, subject to the arbitration provisions
set forth below. Licensee and ATCOM (the "Parties") will submit all disputes
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arising out of or related to these terms and conditions or to the performance,
breach or termination thereof, to binding arbitration pursuant to the Expedited
Procedures of the Commercial Arbitration Rules ("Rules") of the American
-----
Arbitration Association ("AAA"). The arbitration will take place in San Diego,
---
California at the offices of the AAA. The dispute will be resolved by a single
arbitrator appointed by the AAA in accordance with the list procedure described
in Paragraph 13 of the Rules, except that the AAA will transmit the list within
ten days of the filing of the Demand for Arbitration, and the Parties will have
five days to return the list to the AAA with their objections and preferences.
Discovery will be limited to one deposition by each side and written document
requests, requesting the production of specific documents. The Parties will
voluntarily produce any and all documents that they intend to use at the hearing
before the close of discovery, subject to supplementation for purposes of
rebuttal or good cause shown. The period for taking discovery will be sixty
days, commencing upon the day that the answer is due under the Rules. The
arbitrator will hold a pre-hearing conference within three days of the close of
discovery, and will schedule the hearing within thirty days of the close of
discovery. The Parties expressly agree that prior to the selection of the
arbitral panel, nothing in this Agreement will prevent the Parties from applying
to a court that would otherwise have jurisdiction for provisional or interim
injunctive or other equitable measures. After the arbitral panel is selected, it
will have sole jurisdiction to hear such applications, except that the Parties
agree that any measure ordered by the arbitrator may be immediately and
specifically enforced by a court otherwise having jurisdiction over the Parties.
All fees and costs will be allocated to the Parties to the arbitration as
determined by the arbitrator. To the extent that the state or federal law under
which a Party's claim arises provides for the award of attorneys fees to the
prevailing party, the arbitrator is empowered to award such fees. The Parties
submit to the exclusive jurisdiction of any court sitting in the County of San
Diego, State of California, for the resolution of any dispute or enforcement of
any right arising our of or relating to this section, and waive any objection to
the venue or personal jurisdiction of said courts.
25. Equitable Relief. Either party may have injunctive, preliminary or other
----------------
equitable relief (without needing to post bond or other security) to remedy any
actual or threatened breach of this Agreement, including without limitation, the
unauthorized copying or use of the Software or disclosure of confidential
information, in addition to such other and further relief as may be proper.
26. Publicity. ATCOM will have the right to inform its customers and the
---------
public that Licensee is a customer of ATCOM. Each party may use the other's
name in marketing the Software or related products or systems and may link to
each other's websites, but each party will perform no actions to harm the
other's name and reputation.
CAIS
ATCOM Initial/Date: / Licensee Initial/Date: /
----- ----- ----- -----
7
27. Miscellaneous. It is expressly agreed that each of the parties is acting
-------------
as an independent contractor and under no circumstances will any of the
employees of either party be deemed the employees or agents of the other party
for any purpose. If any provisions of this Agreement are deemed to be invalid or
unenforceable, the remaining provisions will nevertheless continue in full force
and effect. No amendments, modifications or waivers will be binding or
enforceable unless they are in writing and executed by each party. This
Agreement, together with all attachments and exhibits, constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement.
28. Export Law Compliance. Licensee will comply with all export laws and
---------------------
restrictions and regulations of the Department of Commerce or any other United
States or foreign agency or authority, and not export, or allow the export or
reexport of any Software or information supplied or licensed to it pursuant to
this Agreement or any direct product thereof in violation of any such
restrictions, laws or regulations.
29. Customer Obligations. Licensee will require its customers to agree to and
--------------------
abide by the terms and conditions set forth on Exhibits E, F and G.
-------------------
30. Most Favored Licensee. If during the term of this Agreement, ATCOM
----------------------
subsequently enters an agreement with a third part integrator which (i) requires
ATCOM to grant a non-transferable, nonexclusive right to use a similar quantity
of object code copies of the Software, under substantially the same terms and
conditions, for integration and use in a similar quantity of hotel rooms, and
(ii) includes a most favorable licensee provision, ATCOM will notify CAIS of
such an agreement. Within 30 days of such notice, the parties will initiate
negotiations in good faith to amend this Agreement to include terms and
conditions similar to such most favorable licensee provision. Such most
favorable licensee provision will only be effective for so long as the same
terms and most favorable licensee provision apply to such third party
integrator. In no event will ATCOM be obligated to repay or reimburse CAIS for
any amounts paid or due up to the time of execution of such amendment of this
Agreement. The requirements of this provision will not apply to any strategic
agreement or any agreements with third party integrators which ATCOM may enter
on an evaluation or "beta trial" basis in order to demonstrate, promote, prove
or verify the capability of the Software to any third party.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date first written above.
[Download Table]
ATCOM, INC. Licensee: CAIS, INC.
308 G Street -------------------------------
San Diego, CA 92101 Address: 6861 ELM STREET
-------------------------------
McLEAN, VA 22101
-------------------------------
-------------------------------
/s/ Neil R. Senturia /s/ Evans K. Anderson
------------------------------------ -----------------------------------------
Signature
CAIS
ATCOM Initial/Date: / Licensee Initial/Date: /
----- ----- ----- -----
8
[Download Table]
Neil R. Senturia Name: Evans K. Anderson
--------------------------------
Its: Chief Executive Officer Its:Vice President/General Manager
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10/5/98
CAIS
ATCOM Initial/Date: / Licensee Initial/Date: /
----- ----- ----- -----
9
EXHIBIT A
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PRODUCTS
IPORT(TM) Product
-----------------
The IPORT server software is a pay per-use Internet access system and runs
on a Windows(R) NT server operating system.
CYBERSHELL(TM) Product
----------------------
The CyberShell public terminal software (includes integration with the IPORT
server for metered use applications)
LICENSEE IS SPECIFICALLY EXCLUDED FROM SELLING OR DISTRIBUTING ANY OTHER ATCOM
BRANDED OR ATCOM OWNED PRODUCT WHICH IS NOT DESCRIBED ABOVE IN THIS EXHIBIT A.
CAIS
ATCOM Initial/Date: / Licensee Initial/Date: /
----- ----- ----- -----
10
EXHIBIT B
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QUANTITIES, FEES, AND PAYMENT TERMS
. For each object code copy of the Software at a property, Licensee will pay to
ATCOM:
An up-front one-time license fee of $4,000.00 plus any third party
software.
. IPORT service fee revenue sharing:
[Download Table]
Usage Rate 0 - 3.5% 3.5 - 7% greater than 7%
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% of revenue to Licensee * % * % * %
-------------------------------------------------------------------------
% of revenue to ATCOM * % * % * %
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Usage Rate is calculated as:
(Total monthly IPORT uses per month)
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(Number of IPORT installed rooms) multiplied by (75%)
The IPORT per use fee is for any 24 hour period the IPORT service is used
from noon to noon
All monthly recurring fees are due to ATCOM 15 days following the end of
the month during which such fees are collected.
The per use fee includes the 24x7 IPORT Help Desk service via a toll-free
number. The service level delivered at the telephone Help Desk is to
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answer 80% of calls within 20 seconds with an available representative that
---------------------------------------------------------------------------
can provide the assistance required.
-----------------------------------
ATCOM will be allowed to remotely monitor all IPORT servers for read-only
purposes of quality control and statistical usage analysis.
. IPORT Client software is provided free of charge. IPORT server upgrades will
be priced individually and released periodically.
. Licensee must install a minimum of fifty (50) ports per property.
*Confidential Treatment Requested. The redacted material has been separately
filed with the Commission.
CAIS
ATCOM Initial/Date: / Licensee Initial/Date: /
----- ----- ----- -----
11
. For each individual PC in which the Licensee installs the CyberShell software,
Licensee will pay ATCOM a one-time license fee of $195.00. CyberShell
software upgrades will
. be priced individually and released periodically. If ATCOM provides the PC
hardware, Licensee will be charged for the hardware and third party software
plus a 20% handling fee.
. Licensee is responsible for payment of all fees associated with
shipping/handling and export/import (FOB).
. If ATCOM provides educational and training services the charge will be
$1,000.00 and the IPORT training for Licensee will take place at the ATCOM
home office in San Diego, California.
. For customization and advertising services requested during the term of this
Agreement, Licensee will pay to ATCOM a non-recurring engineering charge set
forth below. This charge is only applicable in the event Licensee requests
customization or advertising work in writing.
Non recurring engineering charge: $125.00 per hour.
CAIS
ATCOM Initial/Date: / Licensee Initial/Date: /
----- ----- ----- -----
12
EXHIBIT C
---------
IPORT PROPERTY SITE SURVEY
ATCOM/INFO - 308 G Street, San Diego, CA 92101, 619-699-4000, Fax: 619-699-4040
-------------------------------------------------------------------------------
ATCOM/INFO PROPERTY SITE SURVEY
-------------------------------------------------------------------------------
Please return this form for each property that IPORT(TM) will be installed in.
-------------------------------------------------------------------------------
[Download Table]
Primary Contact Title:
---------------------------- -------------------
Phone: E-mail:
---------------------------- -------------------
Technical Contact Name: Title:
---------------------------- -------------------
Phone: E-mail:
---------------------------- -------------------
Company Name:
---------------------------------------------------------
Address:
---------------------------------------------------------
---------------------------------------------------------
Fax: Website:
----------------------------- ------------------
--------------------------------------------------------------------------------
Property Name:
---------------------------------------------------------
Property Address:
---------------------------------------------------------
[Download Table]
General Manager: Phone:
---------------------------- -----------------
Director of Sales: Phone:
---------------------------- -----------------
Number of Rooms: Number of Floors:
----------------- -----------------
Weekday Rate: Weekend Rate:
----------------- -----------------
Description of Typical Guest/Customer:
----------------------------------------
Purpose of Visit: Average Length of Visit:
---------------------
Average Occupancy Percentage on Weekdays: Weekends:
-------------- --------------
What is the existing room wiring configuration?
---------------------------------
Do you currently offer a second in-room phone line for data (Internet) access?
Yes [_] No [_]
What additional business services do they offer (e.g. fax, business center)?
--------------------------------------------------------------------------------
Percentage of guests with laptop computers:
-------------------------------------
PMS Vendor: Name: Phone:
----------------------------- -----------------------
PMS Support: Name: Phone:
----------------------------- -----------------------
Hotel PMS Contact: Name: Phone:
------------------------ -----------------------
CAIS
ATCOM Initial/Date: / Licensee Initial/Date: /
------ ------ ----- -----
13
EXHIBIT D
---------
TRADEMARK AND BRANDING REQUIREMENTS
The Mark:
[LOGO OF IPORT(TM)]
Specifications:
. The Mark must be used in promotional materials in connection with the IPORT
service and label all IPORT jacks with the Mark.
. The Mark may only be used as provided by ATCOM electronically and in hard
copy form, and may not be altered in any manner.
. The Mark may not be used in any manner that expresses or might imply IPORT or
ATCOM's affiliation, sponsorship, endorsement, certification, or approval of
any other services.
. Except as otherwise provided in this Agreement, the Mark may not be combined
with any other object, including, but not limited to, other logos, words,
graphics, photos, slogans, numbers, design features, or symbols. The Mark must
appear by itself, with a minimum spacing (the height of the Mark) between each
side of the Mark and other graphic or textual elements.
. The Mark may not be used in whole or in part, as part of its company name,
domain name, product or service name, logo, trade dress, design, slogan, or
other trademarks without express written permission from ATCOM.
. The Mark shall include the (TM) symbol as shown in this exhibit or if notified
by ATCOM, the (R) symbol.
. The Mark shall be attributed to ATCOM Inc. in all materials where it is used,
with the attribution clause "IPORT is a trademark of ATCOM Inc. in the United
States and other countries and is used by Licensee under license."
CAIS
ATCOM Initial/Date: / Licensee Initial/Date: /
----- ----- ----- -----
14
EXHIBIT E
---------
CUSTOMER OBLIGATIONS
Customer will not (i) attempt to construct or discover, decompile or reverse
engineer any source code, structure, algorithms, or other underlying ideas or
processes of ATCOM's IPORT(TM) software (the "Software") by any means whatever;
--------
(ii) remove any copyright or other proprietary notices, (iii) modify,
incorporate into other software or create a derivative work of any part of the
Software, or (iv) export the Software or any copy or direct product thereof out
of the United States except in compliance with any applicable export laws and
regulations.
Customer agrees and acknowledges that the Internet access system enabled by the
Software will be known only as the "IPORT(TM) system." Customer must not alter
or remove ATCOM's trade name, service marks, trademarks or copyright notice and
any other proprietary notices or trademarks on each installed copy or any backup
copies and must include ATCOM's "IPORT(TM)" trademark on the IPORT(TM) jacks.
ATCOM is the sole owner of the service marks, trademarks and trade names
"ATCOM/INFO," "IPORT(TM)" and "INTERNET DIAL TONE" (the "ATCOM Marks"). Customer
-----------
agrees to actively promote the IPORT(TM) system by furnishing ATCOM's
promotional literature and technical information and related assistance to end
users and prospective end users of the IPORT(TM) system. Customer will comply in
all respects with the trademark quality control requirements set forth by ATCOM
and provided to Customer from time to time. ATCOM will have the right to inform
its customers and the public that Customer is a customer of ATCOM's IPORT(TM)
system.
Customer will not take any action that might impair in any way any right, title
or interest of ATCOM and/or any licensee of ATCOM in or to any of ATCOM's
intellectual property rights or challenge the ownership of any patents or
validity or ownership of any of ATCOM's copyrights, trade names or trademarks.
Customer will in no manner represent that it has any ownership interest in the
Software, the IPORT(TM) system or ATCOM's intellectual property.
Customer agrees to receive and maintain all ATCOM's information and ideas
(collectively "Confidential Information") in confidence using at least, but not
------------------------
limited to, the same degree of care to protect such Confidential Information it
takes in protecting its own confidential information.
CAIS
ATCOM Initial/Date: / Licensee Initial/Date: /
----- ----- ----- -----
15
CUSTOMER ACKNOWLEDGES AND AGREES THAT ATCOM DOES NOT WARRANT THAT THE SOFTWARE
WILL MEET CUSTOMER'S REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE IN THE
COMBINATIONS WHICH CUSTOMER MAY SELECT FOR USE, THAT THE OPERATION OF THE
SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL SOFTWARE ERRORS WILL
BE CORRECTED. THE SOFTWARE IS PROVIDED WITHOUT ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, ATCOM DOES NOT
WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING USE, OR THE RESULTS OF
USE, OF THE SOFTWARE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY,
CURRENTNESS, OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF
THE SOFTWARE IS ASSUMED BY CUSTOMER.
ATCOM WILL NOT BE RESPONSIBLE OR LIABLE UNDER ANY PROVISION OF THIS AGREEMENT OR
UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE
THEORY FOR LOSS OR INACCURACY OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS,
SERVICES OR TECHNOLOGY, OR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES AND LOSS OF PROFITS REGARDLESS
OF WHETHER ATCOM HAS BEEN ADVISED OF THE EXPECTATION OR EXISTENCE OF SUCH
DAMAGES. ANY LIABILITY OF ATCOM UNDER ANY THEORY WHATSOEVER WILL BE LIMITED
EXCLUSIVELY TO PRODUCT REPLACEMENT OR, IF UNENFORCEABLE, TO PAYMENT OF AN AMOUNT
NOT GREATER THAN AMOUNTS ACTUALLY RECEIVED BY ATCOM PURSUANT TO THE PROVISIONS
OF THIS LICENSE AGREEMENT.
CAIS
ATCOM Initial/Date: / Licensee Initial/Date: /
----- ----- ----- -----
16
EXHIBIT F
---------
INSTALLATION REQUIREMENTS
Each property where IPORT is installed the following requirements must be met:
. The IPORT Instruction card must be visible to IPORT end users in the guest
room.
. All IPORT jacks must be branded with the IPORT image shown in Exhibit D.
. IPORT jacks must be placed within 3 feet of the guest room desk or work area.
. A 10BaseT cable must be provided in each guest room to connect the laptop to
the IPORT jack.
. ATCOM must pre-approve the model and vendor of Ethernet switch used for the
IPORT installation. All Ethernet switches must be configured to prevent
individual guests from snooping network information originating from other
guests. Ethernet Hubs are NOT allowed in any IPORT installation.
. IPORT wiring to guest rooms must use Category 5 type cable or an ATCOM pre-
approved alternative wiring specification. Fiber Optic cable must be used when
installing a network backbone in each IPORT property.
. ATCOM must pre-approve the model and vendor of Internet router equipment and
the configuration used at the IPORT property.
. Adequate Internet bandwidth must be provisioned at the IPORT property to
ensure at least a shared bandwidth of 1.5 Megabits for each IPORT user.
. ATCOM must pre-approve the model and vendor of IPORT server hardware.
. Licensee must provide an adequate level of IPORT training for the property
staff members.
. Licensee must comply to Exhibit G in regards to the IPORT Services Display.
. The following list represents ATCOM approved equipment for Licensee
properties:
OverVoice Jack, OverVoice Control Units, OverVoice Universal Jack, OverVoice
----------------------------------------------------------------------------
Certified Ethernet Hub Solutions
--------------------------------
CAIS
ATCOM Initial/Date: / Licensee Initial/Date: /
----- ----- ----- -----
17
EXHIBIT G
---------
THE IPORT SERVICES DISPLAY
The IPORT Services Display is the visual web-based layout displayed by the IPORT
product before payment of IPORT services, after payment of IPORT services, and
upon termination of IPORT services.
[CHART APPEARS HERE]
Specifications:
. Region A is reserved as a header area for IPORT branding. Region A may
not be altered.
. Region B is reserved as a header area for Hotel or Property branding and
may not be altered except in accordance and with permission from the
legal owner of the associated property brand impressions.
. Region C is reserved as a content area for standard IPORT services and
may not be altered.
. Region D is reserved for the Licensee and may be altered at any time.
CAIS
ATCOM Initial/Date: / Licensee Initial/Date: /
----- ----- ----- -----
18
EXHIBIT H
---------
ACKNOWLEDGMENT OF CAIS DEVELOPMENT WORK
---------------------------------------
The parties acknowledge that CAIS had been developing and continues to develop a
--------------------------------------------------------------------------------
server and server and Internet access software solution for the MDU market, and
-------------------------------------------------------------------------------
ATCOM agrees that such development work shall not be considered a breach of
---------------------------------------------------------------------------
paragraph 4 of this Agreement as long as CAIS does not deploy any Internet
--------------------------------------------------------------------------
access software so developed in the hotel and motel market during the term of
-----------------------------------------------------------------------------
this Agreement, notwithstanding whether any such software developed by CAIS for
-------------------------------------------------------------------------------
the MDU market has potential application in the hotel and motel market.
----------------------------------------------------------------------
CAIS
ATCOM Initial/Date: / Licensee Initial/Date: /
----- ----- ----- -----
19
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