LICENSING AND DISTRIBUTION AGREEMENT
Between
FACET PETROLEUM SOLUTIONS INC.
(being the Licensor of specified software)
AND
HOMEBASE WORK SOLUTIONS LTD.
(as Licensee)
March 30, 1999
Index
Page
ARTICLE 1
INTERPRETATION..............................................................1
1.1 Definitions.......................................................1
1.2 Interpretation....................................................1
1.3 Business Days.....................................................4
1.4 Schedules.........................................................5
ARTICLE 2
GRANT OF SOFTWARE LICENSE AND AGREEMENT OF PURCHASE AND SALE................5
2.1 Grant of Software License.........................................5
2.2 Development Agreement.............................................6
2.3 Modifications, Refinements and Updates............................6
2.4 Enhancements and New Application Modules..........................6
ARTICLE 3
REPRESENTATIONS AND WARRANTIES.
3.1 Licensor's Representations, Warranties and Covenants Generally....7
3.2 Licensee's Representations, Warranties and Covenants..............8
3.3 No Merger.........................................................9
3.4 Breach ...........................................................9
3.5 Survival of Covenants.............................................9
3.6 Limitations.......................................................9
ARTICLE 4
LIABILITIES AND INDEMNITIES................................................10
4.1 Licensor's Liabilities and Indemnities...........................10
4.2 Subrogation......................................................11
ARTICLE 5
PROPRIETARY INFORMATION, CONFIDENTIALITY AND RESTRICTIONS OF USE...........10
5.1 Trade Secrets ...................................................10
5.2 Licensee's Data..................................................11
5.3 Injunctive Relief................................................11
5.4 Confidential Information.........................................11
ARTICLE 6
TERMINATION................................................................11
6.1 Termination......................................................11
6.2 Survival.........................................................11
ARTICLE 7
GENERAL....................................................................11
7.1 Notice...........................................................11
7.2 Arbitration .....................................................12
7.3 Amendments and Waiver ...........................................12
7.4 Remedies Cumulative .............................................12
7.5 Further Assurances...............................................13
7.6 Time.............................................................13
7.7 Governing Law....................................................13
7.8 Prior Agreements and Amendments..................................13
7.9 Entire Agreement.................................................13
7.10 Assignment.......................................................13
7.11 Enurement........................................................13
7.12 Counterpart Execution............................................13
LICENSING AND DISTRIBUTION AGREEMENT
BETWEEN:
FACET PETROLEUM SOLUTIONS INC., a body corporate having an
office and carrying on business in the City of Calgary, in the
Province of Alberta (hereinafter referred to as "Facet PS" or
the "Licensor")
OF THE FIRST PART
- and -
HOMEBASE WORK SOLUTIONS LTD., a body corporate organized under
the laws of the Province of Alberta (hereinafter referred to
as "Homebase" or the "Licensee')
OF THE SECOND PART
WHEREAS Facet Petroleum Solutions Inc. (the "Licensor") is
engaged in the business of developing and licensing certain software systems;
AND WHERAS the Licensee is desirous of obtaining the exclusive
right to utilize, market and sell the software systems of the Licensor in the
"telework" industry market sector;
NOW THEREFORE THIS AGREEMENT WlTNESSES that in consideration
of the premises, mutual covenants agreements and warranties hereinafter set
forth, the parties hereto agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions
In this agreement, including the recitals, this clause and the
Licensees attached hereto, unless the context otherwise requires, or unless
otherwise defined herein, the following words and phrases shall have the
following meanings:
(1) "Affiliate" has the meaning ascribed thereto in the Securities Act
(Alberta);
(2) "Applicable Law" means any applicable Canadian federal, provincial, or
local statute, regulation, by-law, and any regulation or order issued
in respect thereof by a Governmental Authority, and the terms and
conditions of any permit, license, authorization, or approval issued by
a Governmental Authority;
(3) "Associate" has the meaning ascribed thereto in the Securities Act
(Alberta);
(4) "Claims" means any claim, demand, order, action, cause of action,
damage, loss, cost, liability or expense, including reasonable legal
fees and all reasonable costs incurred in investigating or pursuing any
of the foregoing or any proceeding relating to any of the foregoing;
(5) "Closing" means the date upon which the transactions contemplated
herein, being the granting of exclusive licenses to Homebase and the
issuance of Homebase Common Shares to the Licensor;
(6) "Closing Date" means 9:00 o'clock a.m., Calgary time, on 30 March, 1999
or such other date or time as may be mutually agreed to by the parties
hereto;
(7) "Confidential Information" means:
(1) Software;
(2) all software materials and component elements directly or
indirectly obtained from the Licensors or either of them
including, without limitation: all definitions of input and
output format, problem structure, statements of objectives and
goals; statements of solution structure and logic; program
algorithms; problem flow charts, coding notes and
instructions; source programs, assembly and compilation notes;
testing and debugging notes; object programs; notes relating
to program execution and final production programs;
documentation, technical manuals, operational manuals, user
documentation manuals; documents relating to program operation
and maintenance;
(3) all tangible personal property on which any part of the
foregoing is imprinted or recorded (whether designated
"hardware" or "software" or otherwise); and
(4) the proprietary rights attached to i, ii and iii;
(8) "CPU" means central processing unit;
(9) "Development Contract" means the contract to be entered into between
Facet PS as developer and the Licensee as client for the development of
an application for the Facet PS Software;
(10) "Dollar" and "$" mean a dollar of lawful money of Canada. (USD) means a
dollar of lawful money of the United States of America.
(11) "Effective Date" means 9:00 o'clock a.m., Calgary time, on March 15,
1999;
(12) "Encumbrances" means all encumbrances, mortgages, pledges, liens,
claims, charges, security interests, restrictive covenants, easements
or other similar interests of any nature, whether or not consensual;
(13) "Enhancements" means improvements or additions to the Software by the
Licensor which add to the Functionality of the Software, as determined
by the Licensor;
(14) "Facet PS Software" means the data processing programs usually called
"Telework Operational Data Store (TODS)" and identified in Schedule "A"
consisting of a series of instructions or statements in machine
readable form and any related software materials including, without
limitation, flow charts, logic diagrams and listings provided for use
in connection with the data processing program;
(1) any additional machine readable or printed material not
included in the foregoing from time to time provided by Facet
PS to the Licensee; and
(1) all tangible personal property on which any of the foregoing
is imprinted or recorded, whether designated "hardware" or
"software" or otherwise;
(15) "Functionality" means the computer applications which the Software or
any part of it is capable of performing;
(16) "Governmental Authorities" means all applicable Canadian federal,
provincial and municipal agencies, commissions, boards, bureaus,
tribunals, ministries and departments;
(17) "Homebase Common Shares" means the common shares in the share capital
of Homebase, as presently constituted, and includes all shares for
which the common shares of Homebase are changed, reclassified,
subdivided, consolidated or converted into a different number or class
of shares or otherwise, as a result of a share reorganization, merger,
amalgamation, arrangement or other similar transaction;
(18) "License" means the rights and licenses granted to the Licensee
pursuant to Section 2.1;
(19) "Licensee" means Homebase Work Solutions Ltd., a body corporate
organized under the laws of the Province of Alberta;
(20) "Licensor" means Facet Petroleum Solutions Inc., a body corporate
organized under the laws of the Province of Alberta;
(21) "Modifications, Refinements and Updates" means alterations or
refinements made by the Licensor to the Software which do not amount to
Enhancements;
(22) "Persons" means any person, corporation, partnership or other legal
entity;
(23) "Place of Closing" means the office of counsel to the Licensee, or as
otherwise agreed to by the parties hereto;
(24) "Purchase Price" has the meaning ascribed thereto in Section 2.1;
(25) "Right of First Refusal" means a right of first refusal, pre-emptive
right of purchase or similar right (including any requirement to obtain
consent of a third party in order for the Licensor to grant the
exclusive license contemplated herein, other than a consent which by
the terms of the applicable agreement cannot be unreasonably withheld)
whereby any party has the right to acquire or purchase the exclusive
rights granted herein as a consequence of the Licensor having agreed to
grant the exclusive rights in accordance with this Agreement:
(26) "Royalty Burdens" means all gross and net overriding royalties, net
profits interests, carried interests and all similar burdens and
encumbrances;
(27) "Security Interest" means an assignment (including, without limitation,
any assignment of any right to receive income), mortgage, charge,
floating charge, hypothec, pledge, lien, encumbrance, conditional sales
agreement or security interest of any nature or kind;
(28) "Software" means the Facet PS Software;
(29) "Software Maintenance Services" or "Maintenance Services" means:
(1) the provision of Modifications, Refinements and Updates to the
Software; and
(2) the remedial maintenance of the Software including all
adjustments, repairs and corrections of all errors in the
Software;
(30) "Standard Release" means a release of Modifications, Refinement and
Updates from time to time;
(31) "Successors" means successors and includes any successor continuing by
reason of amalgamation or other reorganization and any Person to whom
assets are transferred by reason of a liquidation, dissolution,
winding-up or otherwise;
(32) "Tax Act" means the Income Tax Act (Canada), as amended from time to
time;
(33) "Tax Returns" includes all returns, reports, declarations, elections,
filings, information returns and statements filed in respect of Taxes;
(34) "Taxes" includes all taxes, duties, fees, premiums, royalties,
assessments, imposts, levies and other charges of any kind whatsoever
imposed by any taxing or other governmental authority or agency within
or outside of Canada, together with all interest, penalties or
additional amounts imposed in respect thereof; and
(35) "Telework Market " means the teleworking industry market sector.
1.2 Interpretation
In this Agreement:
(1) the inclusion of headings and a table of contents are for convenience
of reference only and are not to be considered or taken into account in
construing the provisions of this Agreement or to in any way qualify,
modify or explain the effect of any such provisions;
(2) references to an Article, Section or Schedules are references to an
Article, Section or Schedule, as the case may be, in this Agreement,
(3) if any term or condition, whether express or implied, of a schedule
hereto conflicts with or is at variance with any term or condition of
the main body of this agreement, the main body of this agreement shall
prevail;
(4) "including" or "including without limitation" when used before a
specific item or list of items in relation to a previous general
description means "including, without limiting the generality of the
foregoing";
(5) where in this agreement a representation or warranty is made on the
basis of knowledge or awareness, such knowledge or awareness shall be
conclusively deemed to consist of actual knowledge or awareness, as the
case may be, of the officers, directors or employees of the party
making the representations or warranty and does not include the
knowledge and awareness of any other person or persons;
(6) words importing the singular shall include the plural and vice versa
and words importing a particular gender shall include all genders;
(7) references to a statute includes the regulations and any other
subordinate legislation made pursuant to that statute and includes any
amendment, consolidation, reenactment, substitution or replacement of
all or any part of such statute, regulation or other subordinate
legislation;
(8) all monetary amounts are expressed in Canadian currency;
(9) where a period of time is specified, dated or calculated from a date or
event, the period shall be calculated excluding such date or the date
on which such event occurs, as the case may be; and
(10) where a term is defined in this Agreement, a derivative of that term
shall have a corresponding meaning unless the context otherwise
requires.
1.3 Business Days
If, pursuant to this Agreement, a notice must be given or an
action taken within a specified period or on or before a specified date and such
period ends on, or such date falls on a day that is a Saturday, Sunday or public
holiday, such notice may be given or such action may be taken on the next
succeeding day which is not a Saturday, Sunday or public holiday.
1.4 Schedules
The following Schedules are attached hereto and form a part of
this Agreement:
Schedule "A" - Facet PS Software
Schedule "B" - Facet PS Licensing Terms and Conditions
Schedule "C" - License Fee Schedule
Wherever any term or condition, express or implied, of such Schedules conflicts
or is at variance with any term or condition in the body of this Agreement, such
term or condition in the body of this Agreement shall prevail.
ARTICLE 1
GRANT OF SOFTWARE LICENSE
1.5 Grant of Software License
(i) In consideration of the issue of 6,910 Homebase Common Shares to Facet
PS at an aggregate deemed value of $125,000 ) (the "Purchase Price") to
be delivered to Facet PS on the Closing Date subject only to the
agreement by the Licensee to abide by the terms and conditions of this
License Agreement Facet PS grants to the Licensee an exclusive right in
the Telework Market (the "Facet PS License") to use and resell the
Facet PS software program more particularly identified in Schedule "A"
(hereinafter referred to as the "Software") in connection with and
incorporated in software to be jointly developed by Facet PS and
Homebase for a period of two (2) years from the Closing Date and
subject to the terms and conditions set out in Schedule B it being
understood and agreed that Facet PS will be entitled to receive license
and service fees as per Schedule "C".
The Licensor and Licensee shall deliver such other documents
as may be necessary to complete the transactions provided for in this Agreement.
Development Agreement
Facet PS and Homebase shall enter into the Development
Agreement before or after the Closing. Under the terms of the Development
Agreement, Facet PS will develop an application of the Facet PS Software for the
specifications to be defined by Homebase. All rights, title and interest in the
developed application will, subject to the rights of Facet PS in the Facet PS
Software which will form part of the developed application and will be governed
by this License Agreement, belong to Homebase.
1.6 Modifications, Refinements and Updates
As applicable, the Licensor shall without additional charge to
the Licensee, furnish the Licensee with Standard Releases of the Software.
Licensee agrees to accept all Standard Releases and is solely liable for any
loss or damages incurred and assumes all risks resulting from failure to install
and implement the Standard Releases furnished by Licensors.
Upon Licensee's request, the Licensor shall install such
Standard Releases at the Licensee's site and will invoice Licensee at the
respective Licensor's standard rates for labour and expenses for such
installation services. If Licensee does not request such Licensor's assistance
in installation, Licensee shall be solely responsible for the installation and
implementation of the Standard Releases.
The Licensor shall not be responsible to Licensee for loss of
use of the Software or for any other liabilities arising from any alteration,
addition, adjustment or repair that is made by other than authorized
representatives of the Licensor.
1.7 Enhancements and New Application Modules
Enhancements and new computer application modules may be
developed or otherwise acquired by the Licensor from time to time. The
development and acquisition of Enhancements and new application modules,
including the nature and timing of same, shall be at the sole discretion of the
Licensor. Enhancements and new application modules may, in Licensor's
discretion, be priced separately and offered to the Licensee at the Licensor's
then-current price. This Article 2.4 shall in and of itself, create no
obligation on behalf of Licensor or the Licensee to develop, acquire or license,
as the case may be, Enhancements or new application modules.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
1.8 Licensor's Representations, Warranties and Covenants Generally
The Licensor represents, warrants and covenants to and with
the Licensee that:
(1) Standing: such Licensor is a corporation duly organized and validly
subsisting under the laws of its jurisdiction of incorporation;
(2) Capacity: such Licensor has the requisite power and authority to
conduct its business as now conducted, to license the Software in the
manner provided in this Agreement;
(3) Consents and Approvals: no authorization or approval or other action
by, and no notice to or filing with, any Governmental Authority or
regulatory body exercising jurisdiction over the Software is required
for the due execution, delivery and performance by such Licensor of
this Agreement except those which has been obtained prior to the date
hereof;
(4) No Conflicts: none of the execution, delivery or performance of this
Agreement by such Licensor does or, with the giving of notice or the
lapse of time or both, will:
(1) violate or conflict with any of the provisions of the
constating documents or other governing documents of such
Licensor;
(2) violate or conflict with any provision of any law or
administrative regulation or any judicial or administrative
order, award, judgment or decree applicable to such Licensor;
(3) conflict with, result in a breach of, constitute a default
under, or accelerate or permit the acceleration of the
performance required by any agreement, covenant, undertaking
or commitment to which such Licensor or any partner comprising
such Licensor is a party or by which such Licensor or any
Affiliate is bound or to which any properties or assets of
such Licensor are subject; and
(4) to the best of its knowledge, the use of such Licensor's
Software, in compliance with the terms and conditions of this
Agreement, will not infringe any patent or copyright of any
third party; and any updates and modifications to such
Licensor's Software will be developed in a careful, diligent
and workmanlike manner;
(5) Execution and Enforceability of Documents: this Agreement has been, and
all documents executed and delivered by such Licensor pursuant hereto
shall be, duly executed and delivered by it, and this Agreement does,
and such documents will, constitute legal, valid and binding
obligations of such Licensor enforceable against such Licensor in
accordance with their respective terms, subject to bankruptcy,
insolvency, preference, reorganization, moratorium and other similar
laws affecting creditor's rights generally and the discretionary nature
of equitable remedies and defences;
(6) Finder's Fee: such Licensor has not incurred any obligation or
liability, contingent or otherwise, for brokers' or finders' fees in
respect of the transaction contemplated herein for which the Licensee
shall have any obligation or liability;
(7) Canadian Resident: such Licensor is not a non-resident of Canada for
the purposes of the Income Tax Act (Canada);
(8) Private Company: such Licensor is a "private company" pursuant to the
Securities Act (Alberta) and is not a "reporting issuer" pursuant to
such Act and has no filing or reporting obligations pursuant to any
securities legislation of any jurisdiction;
(9) Lawsuits and Claims: there are no Material claims, violations, alleged
violations, proceedings, actions, lawsuits, administrative proceedings
or governmental investigations in existence, or to the best of such
Licensor's knowledge, contemplated or threatened against or with
respect to such Licensor, such Licensor's Software or such Licensor's
interests in the Software which might result in impairment or loss of
such Licensor's Software or such Licensor's interests therein or which
might otherwise materially adversely affect such Licensor's Software.
Such Licensor is not aware of any existing basis upon which any of such
claims, violations, alleged violations, proceedings, actions or
lawsuits might be commenced by any Person which or which might
materially adversely affect such Licensor's Software;
(10) Rights of First Refusal: Facet PS Inc. grants to Homebase Work
Solutions Ltd. a Right of First Refusal to purchase an exclusive
license in any related telework industry vertical during the effective
period of this Agreement. The definition of a related telework industry
vertical shall be as mutually agreed upon.
(11) except as stated herein, the Software and all accompanying written
materials are provided "as is" without warranty or condition of any
kind, express or implied, including but not limited to implied
warranties or conditions or merchantability or fitness for a particular
purpose and those arising by statute or otherwise in law or from a
usage in the trade. The entire risk as to results and performance of
the Software is with the Licensee. Such Licensor does not warrant,
guarantee or represent that the functions contained in the Software
will meet the Licensee's requirements or that the installation or
operation of the Software will be uninterrupted or error free.
The Licensee acknowledges that it has only relied upon the
representations, warranties and covenants contained in Article 3 and not on any
representations, warranties or covenants outside this Agreement and the Licensor
shall have no liability, whether in contract or in tort, in respect of any
statements, information, representations, warranties or covenants made by them
or their agents or representatives, except liability for the representations,
warranties and covenants contained in Article 3, which liability shall be
subject to the limitations contained in this Agreement.
1.9 Licensee's Representations, Warranties and Covenants
The Licensee hereby represents, warrants and covenants to and
with the Licensor that:
(1) Standing: it is a corporation validly existing and in good standing
under the laws of its jurisdiction of incorporation and is registered
to do business under the laws of the Province of Alberta;
(2) Capacity: the Licensee has good and sufficient power, authority and
right to enter into this Agreement and to complete the transactions to
be completed by the Licensee contemplated hereby and has taken all
requisite corporate action to authorize the due creation and issuance
of the Homebase Common Shares to be issued to the Licensor hereunder,
and, upon completion of Closing pursuant to this Agreement, the
Homebase Common Shares shall be validly issued and outstanding as fully
paid and non-assessable shares in the capital of the Licensee in
compliance with all applicable securities laws and regulations;
(3) Capital: the authorized capital of the Licensee consists of an
unlimited number of Homebase Common Shares and an unlimited number of
First Preferred Shares, Series A, of which, prior to the issue of the
Homebase Common Shares to the Licensor hereunder, not more than 900,000
Homebase Common Shares and 50,000 Homebase First Preferred Shares,
Series A are issued and outstanding, all of which shares are fully paid
and non assessable;
(4) No Conflicts: none of the execution, delivery or performance of this
Agreement by the Licensee does or, with the giving of notice or the
lapse of time or both, will:
(1) violate a conflict with any of the provisions of the charter,
articles, bylaws or other governing documents of the Licensee;
(2) violate or conflict with any of the provisions of any law or
administrative regulation or any judicial or administrative
order, award, judgment or decree applicable to the Licensee;
(3) conflict with, result in a breach of, constitute a default
under, or accelerate or permit the acceleration of the
performance required by any agreement, covenant, undertaking
or commitment to which the Licensee is a party whereby which
it is bound or to which any properties or assets of the
Licensee are subject;
(5) Execution and Enforceability of Documents: this Agreement has been, and
all documents executed and delivered by the Licensee pursuant to this
Agreement shall be, duly executed and delivered by it, and this
Agreement does, and such documents will, constitute legal, valid and
binding obligations of the Licensee enforceable against the Licensee in
accordance with their respective terms, subject to bankruptcy,
insolvency, preference, reorganization, moratorium and other similar
laws affecting creditor's rights generally and the discretionary nature
of equitable remedies and defences;
(6) Finder's Fee: it has not incurred any obligation or liability,
contingent or otherwise, for brokers' or finders' fees in respect of
the transaction contemplated herein for which the Licensor shall have
any obligation or liability;
(7) Residence: the Licensee is not a non-resident of Canada within the
meaning of Section 116 of The Income Tax Act (Canada).
1.10 No Merger
There shall not be any merger of any covenant, representation or
warranty in any assignment, conveyance, transfer or document delivered pursuant
hereto notwithstanding any rule of law, equity or statute to the contrary and
all such rules are hereby waived.
1.11 Breach
The covenants, representations and warranties of the parties hereto set
forth in Sections 3.1 and 3.2 shall be true or performed as the case may be at
the Closing Date or, if it is to be performed after the Closing Date, shall be
complied with after the Closing Date, but no claim or action commenced in
respect of a breach of any such covenant, representation or warranty shall be
made unless the party making the claim or prosecuting the action has given
written notice of such claim (including reasonable particulars of the
misrepresentation or breach) to the other party hereto within the period of
twelve (12) months from the Closing Date.
1.12 Survival of Covenants
Notwithstanding anything to the contrary herein expressed or implied,
the covenants, representations and warranties set forth in Sections 3.1 and 3.2
are relied upon by the Licensee and the Licensor respectively as being true on
the date hereof and on the Closing Date and, notwithstanding the Closing or
deliveries of covenants, representations and warranties in any other agreements
at Closing or prior or subsequent thereto, the covenants, representations and
warranties set forth in Sections 3.1 and 3.2 hereof shall survive Closing for
the benefit of the parties hereto, subject to Sections 3.4 and 3.6 hereof.
1 .13 Limitations
Notwithstanding anything in this agreement to the contrary, the
Licensee shall have no remedy or cause of action against either of the Licensors
for breach of representation, warranty or covenant or claim for indemnity for
any circumstance, matter or thing actually known to the Licensee or any
employee, agent, consultant or representative thereof as at the Closing Date.
ARTICLE 3
LIABILITIES AND INDEMNITIES
1.14 Licensor's Liabilities and Indemnities
(1) The Licensor shall remain liable for, and shall indemnify the Licensee
and its directors, officers, servants, agents and employees harmless
from and against, all losses, costs, claims, damages, expenses or
liabilities suffered, sustained, paid or incurred by the Licensee or
its directors, officers, servants, agents and employees arising as a
direct consequence of the breach, as of the Closing Date, of any of the
warranties and representations of the Licensor contained in this
Agreement and the Licensee shall indemnify the Licensor and its
directors, officers, servants, agents and employees harmless from and
against all losses, costs, claims, damages, expenses or liabilities
suffered, sustained, paid or incurred by the Licensor or its directors,
officers, servants, agents and employees arising out of or pertaining
to or with respect to its Software occurring subsequent to the Closing
Date or as a direct consequence of the breach, as of the Closing Date,
of any of the warranties and representations of the Licensee;
excepting, in each case, to the extent that such liabilities are
reimbursed by insurance or are caused by the party claiming indemnity.
Such indemnities shall be deemed to apply to all assignments,
transfers, conveyances, novations and other documents licensing the
Software to the Licensee notwithstanding the actual terms thereof. Such
indemnities shall extend to legal costs on a solicitor and client
basis.
(2) Neither party shall be entitled to any indemnification in respect of
any matter or thing which is the subject of the indemnity in Section
(a) above unless it shall have given written notice of its claim for
indemnification (including reasonable particulars of the claim) to the
other party, within six (6) months of the Closing Date.
1.15 Subrogation
The Licensor licenses the Software to the Licensee with full right of
substitution and subrogation of the Licensee in and to all covenants,
representations and warranties of others given to the Licensor, or any of them,
or its predecessors in title in respect of the Software or any part thereof.
ARTICLE 4
PROPRIETARY INFORMATION, CONFIDENTIALITY AND RESTRICTIONS OF USE
1.16 Trade Secrets
The Licensee acknowledges that the Software includes confidential data
and knowhow which are proprietary trade secrets of the Licensor. The Licensee
shall not disclose such data or know-how to any third party and shall protect
such data and know-how from disclosure by taking reasonable steps to protect the
confidentiality of such data and know-how.
1.17 Licensee's Data
All data furnished by the Licensee, and processed on the Licensee's
CPUs, shall always be and remain the property of the Licensee. Such data shall
not include the Software or any part thereof.
1.18 Injunctive Relief
If the Licensee or any of its employees, agents or representatives
uses. or attempts to use, or disposes of the Software in any manner contrary to
the terms of this Agreement, the Licensor shall have the right, in addition to
such other remedies that may be available to them, to injunctive relief
enjoining such acts or attempts, it being acknowledged that legal remedies are
inadequate.
1.19 Confidential Information
All information and data, in whatever form, obtained by the Licensee in
respect of the subject-matter of this Agreement (the "Confidential Information")
shall be held by the Licensee in the strictest confidence and shall not be
disclosed prior to Closing; provided that such Confidential Information may be
disclosed if the disclosure (i) is made with the consent of all the parties;
(ii) is made to an Affiliate of the Licensee; (iii) is required by law, by a
government or governmental department, ministry, board, commission or agency or
by a court or other tribunal of competent jurisdiction; (iv) is required by a
securities commission or stock exchange having jurisdiction over the Licensee or
an Affiliate of the Licensee; (v) is in respect of information or data that is
in the public domain at the time of the disclosure through no fault of the
Licensee; (vi) is made on a need-to-know basis to outside consultants.
accounting. business or legal advisors who agree to maintain the confidentiality
of the Confidential Information.
ARTICLE 5
TERMINATION
1.20 Termination
This License Agreement is effective until terminated. The Facet PS
License shall be subject to the termination provisions set out in Schedule "B".
1.21 Survival
All obligations herein regarding confidentiality, secrecy and
disclosure including, without limitation, the provisions of Section 5.4 shall
survive termination of this Agreement.
ARTICLE 6
GENERAL
1.22 Notice
All notices shall be in writing and shall be sufficiently given or made
if (i) delivered to the intended recipient personally or by courier during
normal business hours on a business day at the intended recipient's addresses as
set forth below, or telecopied to the intended recipient; and
If to Facet PS:
0000 - 00xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X 1 P3
Attention: xxx X. Xxxxxxx
Telecopier: (000) 000-0000
If to Homebase:
Xxxxx 000, 000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X OH3
Attention: Xxx XxxXxxx
Telecopier: (000) 000-0000
Any notice given or made in the above-noted manner shall be deemed to have been
given or made and to have been received on the day of its delivery or
transmission, as the case may be, if such day is a business day and such notice
is received prior to 4:00 p.m., local time, and, if not, on first business day
thereafter.
1.23 Arbitration
If any matter upon which the parties do not agree is required to be
referred to arbitration pursuant to the terms hereof or if the parties agree to
refer any matter arising hereunder to arbitration, the arbitration shall be
conducted before a single arbitrator. Any such arbitration, including the
selection of the arbitrator, shall be governed by the Arbitration Act (Alberta)
and the rules of the Arbitration and Mediation Society of Alberta. The decision
of any such arbitrator shall be final and binding upon the parties and the fees
and costs relating thereto shall be borne and paid in the manner the arbitrator
determines.
1.24 Amendments and Waiver
All amendments to this Agreement, and all waivers of any provision, or
the breach of any provision, of this Agreement, shall be made in a written
instrument signed by all of the parties. A waiver shall affect only the matter
specifically identified in the instrument granting the waiver and shall not
extend to any other matter, provision or breach.
1.25 Remedies Cumulative
No reference to or exercise of any specific right or remedy by a party
hereunder, shall prejudice or preclude such party from exercising or invoking
any other remedy in respect thereof, whether allowed at law or in equity or
expressly provided for herein. No such remedy shall be exclusive or dependent
upon any other such remedy but each party may exercise any one or more of such
remedies independently or in combination.
1.26 Further Assurances
At the Closing and thereafter as may be necessary and without further
consideration, the parties hereto shall execute. acknowledge and deliver such
other instruments and shall take such other action as may be necessary to carry
out their respective obligations under this agreement.
1.27 Time
Time shall be of the essence.
1.28 Governing Law
This Agreement shall be interpreted, construed and governed in all
respects by the laws of the Province of Alberta.
1.29 Prior Agreements and Amendments
This agreement shall supersede and replace any and all prior agreements
between the parties hereto relating to the licensing of the Software and may be
amended only by written instrument signed by the parties hereto.
1.30 Entire Agreement
This Agreements constitutes the entire agreement of the parties in
respect of the subject matter herein and supersedes all prior oral or written
agreements and understandings of the parties, or any one of them in relation
thereto.
1.31 Assignment
This Agreement may not be assigned by the other party hereto without
the prior written consent of the other party hereto, which consent may not be
unreasonably withheld.
1.32 Enurement
This Agreement is binding up and shall enure to the benefit of the
parties hereto and their respective successors and permitted assigns.
1.33 Counterpart Execution
This Agreement may be executed in any number of counterparts each of
which she.. be an original and all counterparts together shall constitute a
single document.
IN WITNESS WHEREOF the parties have duly executed this Agreement on the
date first written above.
FACET PETROLEUM SOLUTIONS INC.
Per: /s/ Xxx Xxxxxxx
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HOMEBASE WORK SOLUTIONS LTD.
Per: /s/ Xxx XxxXxxx
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