Exhibit 10.13
SOFTWARE LICENSE AND MAINTENANCE AGREEMENT
BETWEEN
XXXXXX ROUTING SYSTEMS, INC. ("XXXXXX")
AND
SPARKLING SPRING WATER GROUP LIMITED ("SPARKLING")
WHEREAS Xxxxxx has developed and is entitled to license to others certain
software and supporting materials which Sparkling wishes to license, the parties
agree as follows:
1. DEFINITIONS AND SCHEDULES
In this Agreement the following definitions shall apply:
(a) Authorized Locations means the locations listed in Schedule "C."
(b) Confidential Information has the meaning specified in Section 14.
(c) Documentation means the documentation related to use of the Software
described in Schedule "B."
(d) Maintenance Commencement Date means the date that acceptance testing
is successfully completed at all of the Authorized Locations.
(e) Maintenance Services means the Software Update Service, Telephone
Support Service and Software Repair Service described in Section 10.
(f) Modifications means the modifications set out in Schedule "D."
(g) Person includes an individual, corporation, partnership, joint
venture, trust, unincorporated organization, the Crown or any agency or
instrumentality thereof or any other judicial entity recognized by law.
(h) Software means the software described in Schedule "B."
(i) Specifications means the specifications set out in Schedule "D."
(j) Work means the Software and the Documentation collectively.
The following is a summary of the Schedules, which shall form an integral
part of this Agreement:
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Schedule "A": Fee Schedule.
Schedule "B": Software and Documentation.
Schedule "C": Authorized Locations and Software copies for Authorized
Locations.
Schedule "D": Specifications, Modifications, Data Conversion.
Schedule "E": Implementation and Training.
Schedule "F": Telephone Support Schedule.
2. GRANT OF LICENSE
Xxxxxx hereby grants to Sparkling, for the use of Sparkling and affiliated
companies of Sparkling operating at Authorized Locations, a non-transferable and
non-exclusive licence to use: (i) the Software, safely in executable object code
format, at each AS400 at each of the Authorized Locations; and (ii) the
Documentation. Sparkling's right, if any, to use the Software and Documentation
at locations other than the Authorized Locations is subject to the payment of
additional fees in accordance with the Fee Schedule.
3. RESTRICTIONS ON USE
Sparkling shall:
(a) not copy the Software except to copy it onto another AS400 at the
Authorized Locations and to make copies of the Software at each Authorized
Location solely for backup purposes;
(b) not copy any of the Documentation except as required for Sparkling's
internal purposes related to Sparkling's use of the Software;
(c) not assign this Agreement or transfer, lease, export or grant a
sublicence of the Work to any Person, except as and when authorized to do so by
Xxxxxx in writing;
(d) not reverse engineer, decompile or disassemble the Software;
(e) not use the Work except as authorized herein;
(f) take all reasonable precautions to prevent third parties from using
the Work in any way that would constitute a breach of this Agreement including,
without limitation, such precautions as Sparkling would otherwise take to
protect its own proprietary software or hardware or information; and
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(g) not use the Work to act as a service bureau in whole or in part, for
any other Person, except for any affiliate of Sparkling operating at the
Authorized Locations.
4. DELIVERY, INSTALLATION AND DATA CONVERSION
(a) In accordance with Schedule "C," Xxxxxx has delivered the required
number of copies of the executable object code of the Software to those
Authorized Locations (together with copies of the Documentation as is reasonably
required by Sparkling to operate the Software in the manner contemplated
hereunder) and installed the Software on the applicable AS400's at each
Authorized Location. The installation of the Software at each existing
Authorized Location shall be deemed to be completed including contracted changes
and has been properly installed, is in good working order. Modifications and
changes shall fall within the 60 day testing period at which time they are
deemed to be completed and has been properly installed, is in good working
order.
(b) For Future Installations and Conversions at an existing or new
Authorized Location, Xxxxxx shall be available for Contracting required
installation and conversion tasks as reasonably required, in consultation with
and with the reasonable assistance of Sparkling, including conversion of
Sparkling's data, as more particularly described in Schedule "D," from its
current electronic form into a form suitable for processing with the Software
and as required for the testing of the Software and for use of the Software as
contemplated hereunder.
5. TRAINING
In conjunction with the installation of the Software at each existing or
new Authorized Location, and prior to the commencement of acceptance testing at
each Authorized Location, Xxxxxx shall provide as contracted a qualified
personnel as specified in Schedule "E." Xxxxxx shall also provide copies of
reference documentation and manuals for training and reference by Sparkling's
personnel.
6. ACCEPTANCE TESTING AT EACH AUTHORIZED LOCATION
(a) For each new Authorized Location, upon written notice by Xxxxxx of
the completion of the installation of the Software as contracted for in Section
4 including training provided for in Section 5, Sparkling shall operate and test
the Software for an acceptance period of 30 business days in accordance with
Sparkling's normal operating practices. At the end of each day during the
acceptance period, Sparkling shall notify Xxxxxx of any instances in which the
Software does not perform in accordance with the Specifications.
(b) If Xxxxxx receives such notification, then it shall take the actions
that are necessary to make the Software perform in accordance with the
Specifications.
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Once it has completed such action, the Software shall be retested by Sparkling
for a new 30 day period in accordance with Section 6(a). Such testing and
notification by Sparkling and remedial action by Xxxxxx shall be repeated until
the Software has been accepted by Sparkling, acting reasonably, as meeting the
Specifications.
(c) Notwithstanding (a) and (b) of this Section 6, Sparkling
acknowledges and agrees that there may be minor deficiencies in the Software and
provided that on notification thereof Xxxxxx promptly rectifies such
deficiencies, the acceptance of the Software will not be delayed thereby.
(d) If Xxxxxx does not receive notice of any deficiencies within ten
(10) business days after the completion of the acceptance period, then Sparkling
shall be deemed to have accepted the Software at that Authorized Location.
7. OPTION TO REJECT SOFTWARE
If during the acceptance period described in Section 6, the Software has
failed to perform in accordance with the Specifications and Xxxxxx has been
unable to correct the deficiency within 45 business days of written notice being
provided to Xxxxxx of such failure then Sparkling shall have the option,
exercisable on 15 business days written notice to Xxxxxx, in lieu of any other
remedy, to reject the Software. Such option shall terminate if in the interim,
the Software successfully completes acceptance testing and meets the
Specifications.
8. OPTION TO REJECT EXERCISED
If Sparkling exercises its option to reject the Software in accordance with
Section 7, then the parties shall forthwith carry out the following actions and
this Agreement will terminate upon their completion:
(a) Sparkling shall return all copies of the Work and all of Xxxxxx'x
Confidential Information in its possession or control to Xxxxxx.
(b) Xxxxxx shall return to Sparkling any and all amounts paid to Xxxxxx
hereunder, and all of Sparkling's Confidential Information in its possession or
control.
9. CO-OPERATION AND IMPLEMENTATION
(a) Both Xxxxxx and Sparkling have designated in Schedule "E" a
responsible individual from their respective organizations with the authority
and competence to act, and responsibility to serve, as a project manager
hereunder and deal with the other party with respect to the Software.
Sparkling's project manager shall also be responsible for providing or
coordinating the provision of such information about Sparkling and its
operations, external and internal procedures and such other information as
Xxxxxx may reasonably require in order to perform its obligations hereunder.
Sparkling's project manager shall have the authority on behalf
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of Sparkling to notify Xxxxxx that any acceptance tests provided for herein have
been successfully passed or, where applicable, that Sparkling waives compliance
with any such acceptance tests. Xxxxxx'x project manager shall be responsible
for coordinating with Sparkling's project manager the delivery and installation
of the Software. The project managers shall meet for this purpose, as may be
reasonably requested by either of them in writing.
(b) Xxxxxx and Sparkling shall use their best efforts to carry out their
respective obligations under this Agreement in accordance with the
Implementation and Training Schedule.
10. MAINTENANCE AND SUPPORT
For a renewable one-year term commencing upon the Maintenance Commencement
Date, subject to payment of maintenance fees in accordance with the Fee Schedule
but without additional fees or charges, Xxxxxx shall provide the following
Maintenance Services:
(a) SOFTWARE UPDATE SERVICE
As part of the Software Update Service, Xxxxxx shall provide to Sparkling
as soon as reasonably available:
(1) corrections and bug fixes for the Software;
(2) all modifications, refinements, and enhancements
("Improvements") of the Software;
(3) new releases of the Software; and
(4) updated user manuals to support all of the above in a
reasonable time frame.
(b) TELEPHONE SUPPORT SERVICE
Telephone Support Service includes Sparkling having direct telephone access
to employees of Xxxxxx who have the necessary technical expertise and experience
to understand and consider Sparkling's inquiries concerning the failure of
Software to operate according to Specifications and to clarify Documentation
that is either insufficient or unclear. Such direct telephone access shall be
available in accordance with the Telephone Support Schedule. In the event that
the Telephone Support Service does provide a resolution to Sparkling (acting
reasonably) within 2 business days to permit the Software to meet the
Specifications, then Xxxxxx shall provide Software Repair Services to address
the Software failure. The existing Telephone support numbers are for Xxxxxx
business hours 0-000-000-0000 or 0-000-000-0000
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and after hours 0-000-000-0000, which is a pager number being monitored directly
by qualified Xxxxxx staff.
(c) SOFTWARE REPAIR SERVICE
Should the Software not operate substantially in conformance with the
Sparkling's Specifications in all material respects, Xxxxxx will use its best
efforts to repair the Software under the support agreement at no additional
charge to Sparkling. Notwithstanding the foregoing, Xxxxxx may charge a fee at
its rates set out in the Fee Schedule to provide Software Repair Services which
are required due to:
(1) failure due to Sparkling operator errors;
(2) failure to maintain Software at such updated version or
release of the Software provided by Xxxxxx to Sparkling, from
time to time, at no additional charge as part of the
Maintenance Services or otherwise;
(3) material modification of the Software by Sparkling; or
(4) the Software being transferred to a different networking
environment or hardware configuration without the prior
written consent of Xxxxxx; or
(5) any failure of the hardware or the operating system not caused
by Xxxxxx or the Software.
11. FEES
Sparkling shall pay the fees as set out in the Fee Schedule in accordance
with the terms of this Agreement and the Fee Schedule.
12. SPECIFICATIONS AND WARRANTY
For the acceptance period and for a period of one year from the
Maintenance Commencement Date, and thereafter for as long as the Software is
covered by Maintenance Services and is used by Sparkling in accordance with this
Agreement, Xxxxxx warrants that the Software shall perform in conformance with
the Specifications in all material respects.
13. INTELLECTUAL PROPERTY INDEMNITY
Xxxxxx is the owner of all intellectual property rights in the Work
(including any Improvements or Modifications thereto), including all related
materials, logos, and names provided pursuant to the terms of this Agreement. No
title to the intellectual property in the Work is transferred to Sparkling by
this Agreement.
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Xxxxxx represents and warrants that it owns or controls all rights necessary to
grant the rights to Sparkling in accordance with this Agreement and that there
are not, nor will there be, any lien, encumbrance, security interest or other
rights against the Work which will interfere in any way with the rights granted
to Sparkling. Xxxxxx agrees to indemnify Sparkling and hold it harmless from any
and all losses, damages and expenses including without limitation, court costs,
arbitration fees, penalties, fines, amounts paid in settlement of claims and
reasonable legal fees and expenses of investigation (collectively the "Losses")
which Sparkling or any of its respective officers or directors may incur due to
a breach of this warranty. Sparkling shall notify Xxxxxx in writing of any such
claim within ten calendar days of a responsible officer of Sparkling becoming
aware of such claim. If the Work or any portion thereof is held to constitute an
infringement of another Person's rights, and use thereof is enjoined, Xxxxxx
shall, at its election and expense, make every reasonable effort to correct the
situation with minimal effect upon the operations of Sparkling and shall either:
(a) procure the right to use the infringing element of the Work;
(b) procure the right to an element which performs the same function
without any material loss of functionality; or
(c) replace or modify the element of the Work so that the infringing
portion is no longer infringing and still performs the same function without any
material loss of functionality.
14. CONFIDENTIALITY
By virtue of this Agreement, the parties may have access to information
that is confidential to one another ("Confidential Information"). Confidential
Information means all data and information related to the business and
management of either party, including proprietary and trade secrets, technology
and accounting records for which access is obtained by the other party pursuant
to this Agreement, provided that such Confidential Information shall not include
data or information which:
(a) is or becomes publicly available through no fault of the other
party;
(b) is already in the rightful possession of the other party prior to
its receipt from the other party;
(c) is independently developed by the other party;
(d) is lawfully obtained by the other party from a third party;
(e) is disclosed as required by law; or
(f) is disclosed to professional advisors in confidence.
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The parties agree to hold each other's Confidential Information in
confidence. The parties agree not to make each other's Confidential Information
available in any form to any third party or to use each other's Confidential
Information for any purpose outside the scope of this Agreement. Each party
agrees to take all reasonable steps to ensure the Confidential Information is
not disclosed or distributed by its employees or agents in violation of this
Section.
15. LIMITATION OF XXXXXX'X LIABILITY
The exclusive remedy of either party in a claim against the other under
this Agreement shall be the recovery of its direct damages. In no event shall
either party be liable to the other for the recovery of any special, indirect or
consequential damages even if the defendant party had been advised of the
possibility of such damages including but not limited to lost profits, lost
revenues, failure to realize expected savings, loss of data and loss of use. The
parties agree that the limitation of liability in this paragraph reflects the
allocation of risk between the parties and the price of the licenced Software.
The limitation of liability in this Section 15 shall not apply to breaches of
Sections 13 and 14.
16. SOURCE CODE ESCROW
(a) Immediately upon execution of this Agreement, Xxxxxx shall maintain
on each AS400 at an Authorized Location the most current version of:
(1) all source code for the Software in machine readable form,
with user option to print;
(2) all program and user documentation in machine readable and
printed form;
(3) all tools such as compilers, assemblers, linkers and editors
required to make the source code into the functional Software
operating in accordance with the Specifications as amended
from time to time;
(4) a complete explanation of any procedures that are not standard
practice, required to create from the source code the
functional Software; (5) all documentation listing program and
module inputs and their sources, outputs and their
destinations, and any other relevant program and module
documentation,
(collectively, the "Codes").
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This Source Code shall remain the property of Xxxxxx unless Sparkling
exercises its option to purchase as specified in the Source Code Agreement. The
Source Code on each AS400 shall be the most current version of all Codes for all
corrections, bug fixes, Improvements and new releases of the Software which are
licensed by Sparkling hereunder. Sparkling shall not be entitled to make use of
the Codes except as provided in Section (b), provided that Sparkling may itself
or by retaining independent experts, examine and test the materials for
compliance with the obligations of Xxxxxx hereunder.
(b) Xxxxxx hereby grants to Sparkling, a perpetual, fully paid,
non-exclusive license entitling Sparkling to use and reproduce the Codes
deposited with it pursuant to Section (a) to change, update, add to, or
substitute the Codes, the Software or any part thereof, limited to Sparkling's
needs for the use and improvement of the Software or Sparkling's operations,
provided that Sparkling shall only be entitled to utilize such license if
Sparkling terminates this Agreement pursuant to Section 17(c) due to Xxxxxx'x
default, or if Xxxxxx ceases to support the Software as required pursuant to
this Agreement. The parties acknowledge that the bankruptcy of Xxxxxx shall not
prevent Sparkling's continued use of the Work or the Codes in accordance with
United States Bankruptcy Code section 365(n) or any similar provisions in any
jurisdiction.
17. TERM AND TERMINATION
(a) This Agreement and the license granted under this Agreement shall
remain in effect perpetually as long as fees are paid by Sparkling in accordance
with the Fee Schedule and the Agreement is not otherwise terminated in
accordance with this Section.
(b) Sparkling may terminate this Agreement at any time upon ninety (90)
calendar days written notice to Xxxxxx. If Sparkling terminates this Agreement
pursuant to this Section 17(b), Sparkling shall cease using the Software at the
end of the ninety (90) day notice period, and shall certify to Xxxxxx within
thirty (30) calendar days of termination that Sparkling has destroyed or has
returned to Xxxxxx all Software, Documentation and Codes.
(c) If either party:
(1) makes an assignment in bankruptcy or is adjudicated a
bankrupt;
(2) makes a general assignment for the benefit of its creditors;
(3) has a receiver, administrator or manager of its property,
assets or undertaking appointed in such circumstances as would
in the reasonable discretion of the other party, detrimentally
affect such other party's rights under this Agreement;
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(4) is ordered by any court to be wound up;
(5) becomes insolvent or makes a sale in bulk of its assets;
(6) ceases doing business as a going concern;
(7) defaults on any of its material obligations provided for
hereunder and such default is not cured within thirty calendar
days of written notice thereof by the other party, or the
defaulting party fails to take sufficient actions to the
reasonable satisfaction of the other party to cure the default
within thirty calendar days of written notice;
this Agreement may be terminated by the other party. If this Agreement is
terminated by Sparkling, due to Xxxxxx'x default, the license herein granted
shall continue, but shall be converted to a perpetual license pursuant to which
Sparkling shall not be required to pay any further fees to Xxxxxx hereunder, and
Xxxxxx shall immediately return all fees paid under this Agreement for services
not yet rendered.
18. SURVIVAL OF CERTAIN SECTIONS
Any provisions of this Agreement that require or contemplate performance
after termination are enforceable against each party notwithstanding
termination. These provisions include but are not limited to Sections 13, 14,
15, 16(b), 18, 19 and 20.
19. NON-SOLICITATION OF EMPLOYEES
During the term of this Agreement and for a period of one year thereafter,
both parties agree not to hire or allow its respective affiliates to hire any
employee of the other party, or any person who was an employee of the other
party during the previous six months and who was directly involved in the
provision of services under this Agreement.
20. GENERAL MATTERS
(a) Time shall be of the essence with respect to all matters under this
Agreement.
(b) All notices required or permitted to be given under this Agreement
shall be given in writing and may be sent by personal delivery or facsimile
transmission addressed to the recipient at the addresses shown below (or such
other address as may be designated by notice in accordance with this Agreement):
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Xxxxxx: XXXXXX ROUTING SYSTEMS, INC
#0 - 000 00xx Xxxxxx Xxxx
Xxxxxxxxx, XX X0X 0X0
Sparkling: SPARKLING SPRING WATER GROUP LIMITED
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Any notice sent by personal delivery shall be deemed to be given on the day of
its delivery provided it is received during regular business hours on a business
day, and if it is not received as such then it shall be deemed to be given on
the next business day. Any notices sent by facsimile transmission shall be
deemed to be given on the day of transmission if received during regular
business hours on a business day, and if it is not received as such then it
shall be deemed to be given on the next business day.
(c) Unless otherwise permitted by this Agreement, no waiver of any part
of this Agreement shall be binding unless executed in writing by both parties.
No waiver of any part of this Agreement shall constitute a waiver of any other
part or a continuing waiver unless otherwise agreed to in writing by both
parties.
(d) Neither party may assign this Agreement or any rights and
obligations under this Agreement to any third party without the written consent
of the other party.
(e) The parties are acting as independent contractors under this
Agreement and not as agents or representatives of the other and not as partners
or joint ventures. Neither party shall enter into any agreement or commitment on
behalf of the other without the written consent of the other.
(f) If either party is delayed or prevented from exercising its
obligations or making deliveries in accordance with this Agreement due to
circumstances beyond the reasonable control of that party including without
limitation, strikes, lockouts, labor disputes, fire, explosion, act of god or
other similar causes, then such failure to meet obligations or make deliveries
shall not be a breach of this Agreement.
(g) Each of the provisions contained in this Agreement is distinct and
severable. If one or more of the provisions of this Agreement is found to be
illegal or unenforceable, this Agreement shall not be rendered inoperative or
invalid but the remaining provisions shall continue in full force and effect.
(h) This Agreement shall be governed by the laws of Nova Scotia and the
laws of Canada applicable in Nova Scotia. All disputes under this Agreement
shall be subject to the non-exclusive jurisdiction of the courts of Nova Scotia.
(i) All paragraph headings contained in this Agreement are for
convenience only and shall not affect the interpretation of this Agreement.
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(j) This Agreement constitutes the entire Agreement between the parties
with respect to its subject matter, and this Agreement supersedes all prior
understandings, representations, negotiations and communications between the
parties, oral and written.
Dated the ____ day of May, 2000.
XXXXXX ROUTING SYSTEMS, INC.
Per: ___________________________________
SPARKLING SPRING WATER GROUP LIMITED
Per: ___________________________________
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