SOFTWARE LICENSE CONTRACT BETWEEN BBVA PENSIONES CHILE S.A. AND ADMINISTRADORA DE FONDOS DE PENSIONES PROVIDA S.A. Santiago, Chile, December 1, 2005
Exhibit
4.2
SOFTWARE
LICENSE CONTRACT
BETWEEN
BBVA
PENSIONES CHILE S.A.
AND
ADMINISTRADORA
DE FONDOS DE PENSIONES PROVIDA X.X.
Xxxxxxxx, Chile,
December 1, 2005
In
Santiago, on December 1, 2005
I.
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BBVA PENSIONES
CHILE S.A. (hereinafter called the “Grantor”), a company
incorporated according to Chilean laws, with legal residence at 000, Xxxxx
xx Xxxxxxxx Xxx., Xxxxxxxxxxx, Xxxxxxxx, Xxxxx, Tax Identification (RUT)
No. 96,757,820-7, APPEARS AS PARTY OF THE FIRST
PART.
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The Grantor is
represented by Xx. Xxxxxxx Xxxxxxx Lemarie, Chilean, married, business
administrator, legally of age, bearer of Chilean national identity card
No. 5,894,308-8, and for the purposes hereof, the same legal address as the
company he represents.
II.
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ADMINISTRADORA
DE FONDOS DE PENSIONES PROVIDA S.A. (hereinafter called the “Licensee”), a company
incorporated according to Chilean laws, with legal residence at 000, Xxxxx
xx Xxxxxxxx Xxx., 00xx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxx, Xxxxx, Tax Identification (RUT)
No. 98,000,400-7, APPEARS AS PARTY OF THE SECOND
PART.
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The Licensee is
represented by Messrs. Xxxxx Xxxxx Chijner, Peruvian, married, business
administrator, bearer of Chilean foreign identity card No. 21,828,473-6,
and Xxxxxx Xxxxxxxxx Xxxxxxxxx, Chilean, married, lawyer, bearer of Chilean
national identity card No. 8,881,705-2, both legally of age and domiciled
for the purposes hereof as the company they represent.
The appearing
representatives in turn state that their respective powers have not been
revoked, suspended or restricted, and that the acting capacity of their
respective represented companies has not changed. Thus, acknowledging their
sufficient capacity to enter into this agreement, they state the
following:
WHEREAS:
I.
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The Grantor
owns the Intellectual Property Rights on the software described in Appendix 1
(hereinafter the “Software”). For the
purposes hereof, “Intellectual Property
Rights” shall be construed as ownership or trade-related aspects
regarding exploitation of the Software, its modifications and
customizations, as well as directives for using or running the Software
(hereinafter called the “Usage
Manual”).
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II.
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The Licensee
is interested in obtaining a license over the foregoing Software
Intellectual Property Rights, including the right to modify and customize
it to local technical requirements, in order to process information
according to its operational, business and legal compliance
needs.
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2
THEREFORE, both parties concur
in entering into this software license contract (hereinafter called the
“Contract”), whereby
they assent to the following terms and conditions:
1.
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LICENSE OBJECTIVE AND
TYPE
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1.1
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Objective:
The Grantor hereby grants the license or right to use the Software and its
Usage Manual to the Licensee, who in turn accepts it, for application on
its computer systems and with the sole purpose described in the foregoing
Recital II (hereinafter called the “License”).
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Except for the
rights expressly excluded in the following Sub-clause 1.2, the License
comprises of assignment to the Licensee of all Intellectual Property Rights on
the Software and its Usage Manual, including:
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(i)
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The right to
fully or partially copy the source codes or programs, by any means and in
any manner, whether provisionally or permanently, including load,
presentation, run, transmission and/or storage thereof, making as many
backup copies as deemed necessary, and partially or totally decompiling
the Software, and
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(ii)
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Translating,
adapting, arranging or in any way transforming the foregoing programs,
copying the results of such actions, including the right to make technical
customizations to meet local needs or
requirements.
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The Licensee may use
or in any way exploit any Intellectual Property Right hereunder, whether
directly or through subcontracted third parties, including outsourcing, to the
extent needed for the provision of such services to the Licensee.
1.2
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Type:
The License is non-exclusive and valid anywhere in the world, with the
Licensee not being entitled to grant third parties the Software use,
sublicenses or authorizations, whether exclusive or not, without the
written consent of the Grantor.
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1.3
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Evolutionary
Developments: The Grantor does not undertake any obligations to
produce new or enhanced Software versions. If it did, it shall be through
its AFP (Pension-Fund Administrator) Maintenance Center (“CMA”), which
shall be responsible for both evolutionary/regulatory development and
corrective maintenance.
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In this case and
whenever the Grantor has new or enhanced Software versions, no new license shall
be necessary and any such versions shall be automatically comprised herein. In
the latter case, the Licensee must pay to the CMA the new development price,
equivalent to actual man/hour unit-rate costs in dollars.
The Software
corrective maintenance shall be governed by the provisions of a separate
document executed by the parties.
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2.
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INSTALLATION AND
DELIVERY OF USAGE MANUAL
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2.1
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Installation:
The Grantor commits to install the Software in the equipment specified by
the Licensee. The installation shall be deemed complete when the Software
can be correctly used in the Licensee’s computer systems for the purposes
stated herein.
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Any developments
required to adapt or install the Software in the Licensee’s systems shall be
deemed comprised in the price specified in Clause 4 hereof, but any
transportation expenses of the Grant or, its personnel or that of service
providers to the Licensee’s premises to perform such installation shall be
invoiced separately.
Upon completion of
the installation, the parties shall sign off a document of acceptance by the
Licensee.
2.2
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Usage
Manual: The Grantor shall deliver soft copies of the Usage Manual
to the Licensee upon installation completion. The following contents shall
be included in the Usage Manual, as a
minimum:
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(i)
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Source codes,
the modification right of which is licensed
herein;
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(ii)
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Functional
design of the various Software
modules;
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(iii)
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User manual of
the various Software modules;
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(iv)
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Operation
manual of the Software;
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(v)
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Data model
(general and detailed), and
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(vi)
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Component
details (tables, folders, etc.).
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3.
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EFFECTIVE
TERM
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The License
hereunder is indefinitely granted, and if a term was mandatory, then for as long
as legally permitted.
Notwithstanding,
this Contract shall be terminated, hence the License revoked, in the following
cases:
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(i)
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By the
Licensee at any time giving prior reliable notice to the other party of
its decision to terminate the Contract at least twelve (12) months in
advance of the effective termination date, without any compensation right
vested for any of the parties.
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(ii)
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By the Grantor
if the Licensee separated from the group of companies led by Banco Bilbao
Vizcaya Argentaria, S.A., or of which the latter is a member. For the
purposes hereof, the Grantor shall be deemed to be part
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4
of such group in any
of the cases provided in Article 4th* of the Spanish Law on the Stock Market
(LMV) No. 24/1988, enacted July 28, any amendments or replacing regulation
thereof. In this case, the Contract shall be terminated by prior reliable notice
of the Grantor to the Licensee, stating its decision to terminate the Contract
effective upon twelve (12) months of such notice.
In the latter case,
the Licensee may demand compensation from the Granter as provided in Appendix II
hereof according to the Contract lapsed effective period, from execution to
termination, without any further compensation right vesting
thereto.
Upon termination
hereof as provided herein, the Licensee shall abstain from using the Software
hereunder, delete any backup copies from its systems and return to the Grantor
the copies of the Usage Manual with any other Software documentation that it may
have at the time.
4.
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PRICE, PAYMENT AND
TAXES
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4.1 License
Price and Payment: As consideration for granting the license and all
other obligations herein undertaken by the Grantor (excluding the Software
installation), the Licensee shall pay the Grantor the amounts specified in Appendix III
hereof, as provided therein.
4.2 Price of
New Versions (Evolutionary Development): If the CMA produced new or
improved Software versions, no new license shall be necessary and any such
versions shall be automatically comprised herein, as provided in
sub-clause 1.3.
4.3 Taxes:
The Licensee shall bear all existing and future taxes hereunder. Consequently,
should any applicable law require encumbering, deducting or withholding any
amounts for tax purposes, the price to be paid by the Licensee shall be
increased accordingly, so that the amount received by the Grantor remains
exactly as provided in Appendix III
hereof.
___________________
In
any case, a decisional unit shall be construed in any of the scenarios provided
in Paragraph 1 of Article 42 of the Code of Mercantile Law, or when at
least half the Board members of the controlled organization are Board members or
top managers of the controlling one, or of another organization controlled by
the latter.
For
the purposes of the foregoing provisions, the controlling organization shall add
to its rights those vested through other controlled organizations or through the
individuals acting on behalf of the controlling organization, or of other
controlled ones, or those jointly held with any other individual.
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5.
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GUARANTEES
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5.1
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The Grantor
expressly assures the Licensee:
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(i)
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That it owns
the Software Intellectual Property Rights, including source and executable
programs thereof, and that no legal or contractual restriction exists
under any jurisdiction preventing its full or partial transfer, assignment
or any other arrangement as provided herein, nor any full or partial
transfer, assignment or other arrangement of the source and executable
programs that form the Software;
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(ii)
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That the
Intellectual Property Rights hereunder are free of any burden, encumbrance
or charge;
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(iii)
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That the
Software use provided herein does not infringe any legal provisions or
third-party rights, nor is it in any way unfair competition,
and
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(iv)
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That the
Software features and services are suitable for the intended use thereof
stated in Recital II.
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The foregoing
guarantees solely relate to the Software licensed by the Grantor at this time,
and therefore, shall not extend to any modifications or alterations performed by
the Licensee.
5.2
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The Grantor
commits to compensate the Licensee for any loss or damage resulting from
any infringement of the guarantees provided in the foregoing sub-clause,
number 5.1, including all expenses and costs paid by the Licensee to
the Grantor or disbursed defending any third-party claim (for instance:
expert studies, legal counsel fees, court expenses,
etc.).
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5.3
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The Grantor
promises to cooperate with the Licensee in defending its interests should
any third party, judicial or government authority start any proceedings
against the latter, as a result of an infringement of the guarantees
herein. In any case, the Licensee shall decide, at its sole discretion,
whether to comply with the claim or oppose it, acting therefore in good
faith.
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6.
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CONTRACT
ADMINISTRATION
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The parties appoint
the following liaison persons to resolve any matter regarding the licensed
Software installation or operation:
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(i)
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For the
Grantor:
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Xxxxxxxxx
Xxxxx
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(ii)
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For the
Beneficiary:
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Xxxx Xxxxxx
Xxxxx Madriaza
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7.
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CONFIDENTIALITY
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Any information
furnished to one party by the other shall be considered confidential, regardless
of the support media and whether it relates to the Software or hereto. Any
public domain information as of the date hereof is excluded.
Neither party may
disclose such information to any third party without consent from the other
party, unless such disclosure is (i) essential to abide by law or
(ii) required by a judicial or government authority.
8.
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MISCELLANEOUS
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8.1
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Representations
and Guarantees of the Parties: Each party states and assures the
other:
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(i)
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That it is
duly incorporated society according to its national laws, legally capable
of granting this License and fulfilling this Contract, as well as of
exercising the rights and meeting the obligations hereunder, and that it
has completed all processing and met all the requirements needed for the
grant and fulfillment hereof;
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(ii)
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That the grant
and fulfillment hereof does not infringe any current legal provision,
their by-laws, nor any other agreement or commitment entered or undertaken
by each party;
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(iii)
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That the
individuals executing this Contract are legally empowered and mandated to
bind the party that they respectively represent,
and
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(iv)
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That the
obligations undertaken by each party herein are fully effective, binding
and enforceable, without requiring any further authorizations, approvals,
formalities, records or registrations by anyone or any
authority.
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8.2
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Sole
Document: All the Grantor’s and Licensee’s rights and obligations
are contained in this Contract and its appendices, which jointly form only
one regulating document between both parties that replaces and revokes any
previous agreement or document regarding the Software
License.
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8.3
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Partial
Nullity: Should any provision herein be declared null, the
remaining ones shall prevail in their own terms. If the nullity involved
an essential part hereof, the parties shall negotiate to find a reasonable
good-faith solution always considering the spirit hereof and the purpose
of the cancelled provision.
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8.4
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No
Other Beneficiaries: Unless otherwise expressly stated herein, no
provision hereof may be construed as granting any rights or resorts to any
non-party, except for legal successors of each
party.
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8.5
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Independence:
This Contract is not intended to establish any mandate or entrustment
relationship of any kind between the parties. None thereof shall be
considered as representative of the
other.
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8.6
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Assignment:
The Grantor may fully or partially assign this Contract to an organization
member of the group of companies led by Banco Bilbao Vizcaya Argentaria,
S.A., or of which the latter is a member, pursuant to Clause 3
hereof, by simply giving written notice to the
Licensee.
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On the other hand,
the Licensee may not partly or fully assign this Contract to any third party,
whether a member of the group of companies led by Banco Bilbao Vizcaya
Argentaria, S.A.or not, without the prior express and reliably given consent of
the Grantor.
8.7
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Breach:
Each party shall be liable for compensating the other for any direct loss
or damage resulting from any breach hereof. Indirect damages, loss of
profit and non-pecuniary loss are not
compensable.
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9.
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COMMUNICATIONS
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9.1
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All requests,
notifications, notices and generally any communications between the
parties hereto shall be deemed duly given when transmitted by fax and
addressed to their respectively specified addresses and numbers, without
prejudice to the subsequent ratification by letters signed by authorized
individuals with regard to the communications themselves or acknowledging
receipt thereof.
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Original faxed
documents showing receipt at the corresponding fax numbers are sufficient proof
of notice.
9.2
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The following
are the parties’ respective addresses, telephone and fax
numbers:
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BBVA
PENSIONES CHILE
Xx. Xxxxx xx
Xxxxxxxx 000, Xxxxxxxxxxx, Xxxxxxxx, Xxxxx
Phone: (00-0)
000-0000
Fax: (00-0)
000-0000
A.F.P.
PROVIDA S.A.
Xx. Xxxxx xx
Xxxxxxxx 000, Xxxx 00, Xxxxxxxxxxx, Xxxxxxxx, Xxxxx
Phone: (00-0)
000-0000
Fax: (00-0)
000-0000
Any change of
address, phone or fax number must be reliably notified in writing to the other
party.
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10.
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APPLICABLE LAW AND
JURISDICTION
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10.1
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Applicable
Law: This Contract shall be construed and fulfilled according to
its own terms and conditions, and shall be governed by Chilean law, as
applicable.
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10.2
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Jurisdiction:
Any difficulty, doubt, issue or dispute that may arise between the parties
regarding the application, interpretation, fulfillment, performance,
effective period, termination, cancellation, nullity or validity hereof,
or any other related matter, shall be submitted for consideration and
resolution to a joint arbitrator, namely fact arbitrator for the
proceedings, whose ruling in law abidance may be ordinarily and
extraordinarily appealed, including
complaints.
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The arbitrator shall
be appointed by mutual agreement of the parties, failing which, the Santiago
Courts of Record shall appoint an individual having taught Civil or Commercial
Law at the University of Chile or Chilean Catholic University for at least five
years.
In acceptance of the
foregoing, the parties execute this agreement in duplicate, on the date and in
the place stated in the preamble hereof.
For
BBVA PENSIONES CHILE S.A.
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For
ADMINISTRADORA DE FONDOS DE
PENSIONES PROVIDA S.A. |
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____________________________
Xxxxxxx
Xxxxxxx Lemarie
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________________________________________
Xxxxx Xxxxx
Chijner
Xxxxxx Xxxxxxxxx Xxxxxxxxx |
[Signatures copied
and pasted from original in Spanish]
9
APPENDIX I
DESCRIPTION OF THE LICENSED
SOFTWARE
APPENDIX II
COMPENSATIONS IN CASE OF
AGREEMENT TERMINATION BY THE GRANTOR FOR THE LICENSEE SEPARATION FROM THE BBVA
GROUP
If the Licensee were
separated from the group of companies led by Banco Bilbao Vizcaya Argentaria,
S.A., of which the latter is a member, as provided in Clause 3 of the
License Contract (the “Contract”), and the Grantor exercised its right to
terminate the Contract pursuant thereto, the Licensee shall be entitled to
compensation by the Grantor according to the number of effective years. The
following distinctions apply to compensation for termination:
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1.
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In case of
termination during the first two years of the Contract effective date,
including the twelve months upon separation from the BBVA Group: 100% of
the License Price shall be
compensated.
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2.
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In case of
termination during the third year of the Contract effective date,
including the twelve months upon separation from the BBVA Group: 80% of
the License Price shall be
compensated.
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3.
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In case of
termination during the fourth year of the Contract effective date,
including the twelve months upon separation from the BBVA Group: 60% of
the License Price shall be
compensated.
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4.
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In case of
termination during the fifth year of the Contract effective date,
including the twelve months upon separation from the BBVA Group: 40% of
the License Price shall be
compensated.
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5.
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In case of
termination during the sixth year of the Contract effective date,
including the twelve months upon separation from the BBVA Group: 20% of
the License Price shall be
compensated.
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6.
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In case of
termination over six years after the Contract effective date, including
the twelve months upon separation from the BBVA Group: there shall be no
compensation.
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APPENDIX III
PRICE PAYABLE BY THE
LICENSEE
The Price to be paid
by the Licensee to the Grantor in the national currency, namely peso, is
equivalent of seven million, two-hundred and fifty-nine thousand Euros
(€ 7,259,000), after taxes. This amount shall be paid against receipt of
the pertinent invoice, to be issued during the month of December
2005.
[Signatures copied and pasted from
original in Spanish]