EXHIBIT 10.20
** Indicates that a portion of the document is confidential and has been omitted
and filed separately with the Securities and Exchange Commission in connection
with a request for confidential treatment of such omitted material.
Wave Distribution Agreement
This Agreement effective as of January 22, 1998 ("Effective Date") is between
Wave Technologies International, Inc. ("WAVE") with an address at 00000 Xxxxx
Xxxxxxxxx, Xxxxx 000, Xx. Xxxxx, XX 00000, and QA Training, Ltd. ("QA") with an
address at Xxxxxx Xxxx Castle, Cirencester, Glos. XX0 0XX.
1.0 DEFINITIONS
Capitalized terms in the Agreement have the following meanings:
1.1. Derivative Work is a work that is based on a Licensed Work and that would
be a copyright infringement if prepared without the authorization of the
copyright owners of the Licensed Work. Derivative Works are subject to the
ownership rights and licenses of a party or of others in the underlying
Licensed Work.
1.2. Licensed Work is any material described in or that conforms to the
description in the Attachment: Description of Licensed Works, or that is
delivered to QA as a Licensed Work, including associated documentation and
error corrections.
1.3. MCP Licensed Work is that Licensed Work further defined in the Attachment:
Description of Licensed Works.
1.4. MCSE Licensed Work is that Licensed Work further defined in the Attachment:
Description of Licensed Works.
1.5 A Unit is (a) one student enrollee in an MCSE course using all or any part
of the MCSE Licensed Work or any Derivative Work of the MCSE Licensed Work,
or (b) five student enrollees in an MCP course using all or any part of the
MCP Licensed Work, or of any Derivative Work of the MCP Licensed Work.
2.0 RESPONSIBILITIES OF WAVE
2.1. As soon as practicable after execution of this Agreement, WAVE will provide
to QA one complete set of each Licensed Work described in the Attachment:
Description of Licensed Works.
2.2. During the term of this Agreement, WAVE will:
a. provide to QA, at no charge, all error corrections for the Licensed
Works; and
b. provide to QA, in electronic format, enhancements and updates for the
Licensed Works within 60 days after general availability of a new
release of Microsoft networking products covered by the Licensed
Works.
2.3 Updates and enhancements described in Section 2.2(b) shall be of at least
the quality of the Licensed Works.
2.4 WAVE will, during the term of this Agreement, use its best efforts to
correct all errors or defects identified by QA in the Licensed Works.
3.0 LICENSE
3.1 WAVE grants QA a non-exclusive, non-transferable license to use and copy
the Licensed Works and Derivative Works prepared by QA only in accordance
with the terms of this Agreement. QA may print paper copies of all or any
part of the information included on the CD-ROM or master copies of the
Licensed Works or permitted Derivative Works solely: for delivery of the QA
instructor-led portions of MCSE or MCP programs, or as student materials
for attendees at any such instructor-led training programs (one copy per
student and one copy per instructor), in the United Kingdom and Ireland
(other than, directly or indirectly, for Unisys or its employees or
affiliates). No other use, copying, license, resale or distribution of the
Licensed Works or Derivative Works is permitted. The parties will appoint
representatives to prepare a distribution agreement on WAVE's standard
terms extending these rights into other parts of the world (excluding North
America).
3.2 QA may prepare Derivative Works, including alternate packaging, of the
Licensed Works. WAVE will assist in the preparation of such Derivative
Works, provided that WAVE's related costs do not exceed **. Derivative
Works of the Licensed Works, other than those prepared by WAVE, or approved
by WAVE in advance in writing, are not authorized to carry any Microsoft
trademark under this Agreement.
3.3 WAVE grants QA a non-exclusive, non-transferable license to use and copy
the "Derivative Works" of the QA "Licensed Works" as such terms are defined
in that certain Asset Purchase and License Agreement among QA, WAVE and QA
Training, Inc. dated as of January , 1998, solely for delivery of
instructor-led training, or for attendees at any such instructor-led
training programs, solely in the United Kingdom and Ireland (other than,
directly or indirectly, for Unisys or its employees or affiliates), and not
for resale or other use outside of such classroom training.
3.4 The Licensed Works and Derivative Works are owned by WAVE and are protected
by United States copyright laws and international treaty provisions. The
parties will xxxx each copy of any Licensed Work or any Derivative Work
with all copyright,
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trademarks and other proprietary notices as they appear in the versions
provided to QA by WAVE.
4.0 PAYMENT
4.1 For the rights and licenses granted herein, QA will pay WAVE:
a. a non-refundable license fee of $**, plus **. QA will pay Wave $** of
the license fee at the closing of this Agreement via wire transfer,
$** of the license fee on or before April 27, 1998, ** of the license
fee on or before March 31, 1998, and the remainder on or before
September 30, 1998; and
b. after QA accumulates ** Units, a royalty of ** for each student
enrolled in a QA course utilizing all or any part of the MCSE Licensed
Work or any Derivative Work of the MCSE Licensed Work, and ** for each
student enrolled in a QA course utilizing all or any part of the MCP
Licensed Work or any Derivative Work of the MCP Licensed Work.
4.2 If QA elects to have WAVE make copies of the Licensed Works for QA, QA will
pay WAVE a per copy fee not to exceed:
.** per copy of MCSE Licensed Work; and
.** per copy of MCP Licensed Work.
4.3 WAVE will invoice QA for any amounts due WAVE by QA. Except as set forth in
Section 4.1(a), all such amounts will be due within 30 days of the date of
WAVE's invoice.
4.4 None of the amounts specified above include applicable taxes (including
VAT), import duties, transportation charges or warehousing charges, which
will be added to the invoices to QA and paid by QA.
4.5 In the final invoice for the initial two-year term of this Agreement, WAVE
will credit QA with an amount equal to a percentage of all license fees and
royalties paid by QA in excess of the ** payment under Section 4.1 during
such two-year term, as follows:
.**% of amounts in excess of ** and less than **; plus
.**% of all amounts in excess of ** and less than **; plus
.**% of all amounts in excess of ** and less than **; plus
.**% of all amounts in excess of $**.
4.6 QA shall provide WAVE, in a format approved by WAVE, a monthly report of
the number of copies of each Licensed Work or Derivative Work made by QA
during the prior month and the number of students registering during the
prior month for any
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instructor-led course in which any Licensed Work or Derivative Work is used
(by student name, course name, date of registration and date of course).
Such report shall be provided by the tenth (10th) day after the end of each
month.
4.7 QA shall maintain books and records in connection with its activity under
this Agreement for the term of this Agreement and for at least one year
from the date this Agreement terminates or expires.
4.8 WAVE shall have access to the books and records of QA during normal
business hours to audit, either directly or through a nationally or
internationally recognized accounting firm, the copies made by QA and to
verify the statements and reports sent to WAVE by QA under this Agreement.
4.9 In the event that the audit of the books and records of QA discloses an
error in any statement or report by QA to WAVE, then QA shall, within ten
(10) days of the date of written notification of such error, take
corrective action to remedy the error, and, in the event such error
constitutes a variance of five percent (5%) or more from any amount, shall
reimburse WAVE for all of its costs and expenses in connection with such
audit. Should QA fail to do so, within the time specified, then WAVE shall
have the right to terminate this Agreement, effective immediately.
5.0 INDEMNIFICATION AND LIABILITY
5.1 WAVE will defend and indemnify QA if a third party makes a claim against QA
based on infringement by the Licensed Works of patents, copyrights,
trademarks, trade secrets, and other intellectual property rights.
5.2 QA will defend and indemnify WAVE if a third party makes a claim against
WAVE based on failure by QA to perform QA's obligations under this
Agreement, or failure by QA to comply with government laws and regulations.
5.3 The party seeking indemnification will:
a. promptly provide the indemnifying party notice of any such claim; and
b. allow the indemnifying party to control, and cooperate with the
indemnifying party in the defense of, the claim and settlement
negotiations.
The indemnified party may participate in the proceedings at its option and
expense.
5.4 If an infringement claim appears likely or is made, WAVE may:
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a. obtain the necessary rights for QA to continue to distribute, license,
otherwise use the Licensed Works on an uninterrupted basis and
exercise all rights granted in the Licensed Works; or
b. modify the Licensed Works to resolve the claim.
5.5 In addition to any remedies specified in this Agreement, each party may
pursue any other remedy it may have in law or in equity.
5.6 Regardless of the type of claim, neither party is liable to the other for
indirect, incidental, special, or consequential damages including, but not
limited to, lost profits or revenues, under any part of this Agreement,
even if informed that they may occur.
6.0 TERM AND TERMINATION
6.1 This Agreement begins on the Effective Date and continues thereafter for
two years.
6.2 WAVE may terminate this Agreement if QA has not cured a breach of Section
3.1 of this Agreement within 15 days after notice from WAVE, and WAVE may
terminate this Agreement immediately upon QA's second breach of Section 3.1
in any 12-month period.
6.3 Either party may terminate this Agreement for the other's material breach
by providing the breaching party with a written notice that describes the
breach. The termination will become effective forty-five (45) days after
receipt of the notice unless the breach is cured within that forty-five
(45) day period.
6.4 Either party may terminate this Agreement immediately in the event that the
other party shall become insolvent, or shall be dissolved or liquidated, or
any proceeding by or against it shall be commenced under the bankruptcy
laws of the jurisdiction in which such party is located.
6.5 Upon termination of this Agreement, all rights granted to QA by Wave in
this Agreement will terminate and revert to WAVE. No termination of this
Agreement shall relieve QA of its obligation to pay the license fee set
forth in Section 4.1. Promptly upon termination of this Agreement for any
reason, QA will return or destroy, as requested by WAVE, all copies of the
Licensed Works or Derivative Works in its possession. QA agrees to certify
compliance with such restrictions upon WAVE's request.
7.0 NOTICE
7.1 Any notice required or permitted to be made by either party to this
Agreement must be in writing. Notices are effective when received by the
appropriate coordinator as
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demonstrated by reliable written confirmation (for example, certified mail
receipt or facsimile receipt confirmation sheet).
7.2 The persons responsible to receive all notices and administer this
Agreement are:
For For
QA: WAVE:
Name: Xxxxxxx X. Xxxx Name: Xx. Xxx Xxxxxxxxxx
Title: Title: VP Corp. Administration
Address: Xxxxxx Xxxx Castle Address: 00000 Xxxxx Xxxx.
Cirencester, Glos. GL7 2EF Xx. Xxxxx, Xxxxxxxx 00000
Phone: 000-000-0000 Phone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
8.0 GENERAL
8.1 Independent Contractor. Each party is an independent contractor. Neither
party is, nor will claim to be, a legal representative, partner,
franchisee, agent or employee of the other. Each party is responsible for
the direction and compensation of its employees.
8.2 No Payments. QA hereby confirms that it has not received from WAVE, or any
employee or agent of WAVE, any payment, offer to pay or promise to pay any
money or anything of value in connection with this Agreement. QA further
confirms that no employee or agent of QA acting in connection with this
Agreement is an official of any government or governmental subdivision or
of any political party or is a candidate for political office.
8.3 Reliance. Neither party relies on any promises, inducements or
representations made by the other or expectations of more business
dealings, except as expressly provided in this Agreement. This Agreement
accurately states the parties' agreement.
8.4 Headings. The headings of this Agreement are for reference only. They will
not affect the meaning or interpretation of this Agreement.
8.5 Counterparts. This Agreement may be signed in one or more counterparts,
each of which will be considered an original, but all of which together
form one and the same instrument.
8.6 Amendment and Waivers. For a change to this Agreement to be valid, both
parties must sign it. No approval, consent or waiver will be enforceable
unless signed by the granting party. Failure to insist on strict
performance or to exercise a right when entitled does not prevent a party
from doing so later for that breach or a future one.
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8.7 Actions. Neither party will bring a legal action relating to the subject
matter of this Agreement, against the other more than 2 years after the
cause of action arose.
8.8 Dispute Resolution. Both parties will act in good faith to resolve
disputes prior to instituting litigation.
8.9 Governing Law. This Agreement will be governed by the substantive law of
the United Kingdom.
This Agreement replaces all prior oral or written communications between the
parties relating to the subject matter. Once signed, any reproduction of this
Agreement made by reliable means (for example, photocopy or facsimile) is
considered an original, unless prohibited by local law.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
QA Training, Ltd. Wave Technologies International, Inc.
By: /s/ Xxxxx Xxxx By: /s/ J. Xxxxxxx Xxxxxx
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Name: Xxxxx Xxxx Name: J. Xxxxxxx Xxxxxx
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Title: Director Title: Chief Financial Officer
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