EXHIBIT 10.22
DATED
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XXXXXXX.XXX LIMITED (1)
and
XXXXXXXXXXX.XXX, INC. (2)
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EUROPEAN SPECIFIC SOFTWARE
DEVELOPMENT AGREEMENT
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Wragge & Co.
CONTENTS
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Clause Heading Page
1 Definitions........................................................... 2
2 Obligations........................................................... 5
3 Development of the European Specific Software......................... 6
4 Payment and expenses.................................................. 7
5 Development Schedule and delays....................................... 7
6 Testing and acceptance................................................ 7
7 Confidentiality....................................................... 9
8 Duration.............................................................. 9
9 Termination........................................................... 9
10 Consequences of Termination.......................................... 10
11 Intellectual Property Rights......................................... 10
12 Limitation of Liability.............................................. 11
13 General.............................................................. 11
14 Entire Agreement..................................................... 11
15 Variations........................................................... 11
16 Waiver............................................................... 11
17 Severability......................................................... 12
18 Compliance........................................................... 12
19 Law.................................................................. 12
20 Jurisdiction......................................................... 12
21 Notices.............................................................. 12
22 Non-Solicitation of Staff............................................ 13
23 Disputes............................................................. 13
Schedule 1............................................................... 16
Schedule 2............................................................... 17
THIS AGREEMENT is made on 1999
BETWEEN:
(1) XXXXXXX.XXX LIMITED (Registered in England & Wales No. 3831828) whose
registered office is at Xxxxxxxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxxxxxx, XX0
0XX ("Bonveno") and
(2) XXXXXXXXXXX.XXX, INC., a body corporate organised and existing under the
laws of Delaware, U.S.A., , having its principal place of business at 000
Xxxxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx, XXX 59937("Orbittravel").
RECITAL:
(A) Together with Web Travel Systems Limited, the parties are members of a
joint venture agreement (the "JV Agreement") and Bonveno is the joint
venture company for providing and marketing an internet based travel and
leisure booking system to businesses and consumers in the European
Territory.
(B) Orbittravel is, under an agreement of today's date, providing support,
licences and maintenance for the European Specific Software, and
development, support, licences and maintenance for the Global Software (the
"Operational Agreement").
(C) Orbittravel and Bonveno have also agreed, under an agreement of today's
date, a management structure, marketing policy, content sharing and
distribution policy (the "Management Agreement").
(D) Orbittravel has agreed to provide software development to Bonveno for the
European Specific Software on the terms and conditions of this Agreement
(the "Agreement").
In consideration of the mutual covenants and undertakings set out below THE
PARTIES AGREE as follows:
1 Definitions
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1.1 In this Agreement unless the context otherwise requires: "Acceptance" means
the acceptance procedure set out in Clause 6.5;
"Additional Development Fees" means the fees for Development outside the
scope of the Product Plan as agreed between the parties;
"Additional Development Specification" means a specification issued by
Bonveno setting out the operational requirement of each element of the
Development outside the scope of the Product Plan as agreed between the
parties;
"Application Software" has the meaning set out in the Operational
Agreement;
"Bonveno Service" means the Global Product and the European Specific
Software;
2
"Build Definitions" means the details and specifications of the component
software, hardware and documentation used in the creation, development and
maintenance of the Programs;
"Business Day" means a day (other than a Saturday or Sunday) on which the
banks are ordinarily open for business in the City of London;
"Central Equipment" has the meaning specified in the Operational Agreement;
"Change Control Procedures" has the meaning specified in the Operational
Agreement.
"Commencement Date" means
"Confidential Information" means secret or confidential commercial,
financial, marketing, technical or other information, know-how, trade
secrets and other information in any form or medium whether disclosed
orally or in writing before or after the date of this Agreement, together
with any reproductions of such information in any form or medium or any
part(s) of this information (and "Confidential" means that the information,
either in its entirety or in the precise configuration or assembly of its
components, is not publicly available;
"Configuration Management" means the management of Build Definitions
including a change of control procedure to be put in place between the
parties, in writing, from time to time, that allows for Bonveno to submit
suggestions for the Build Definitions in writing;
"Cost Estimate" means a detailed cost estimate to be provided by
Orbittravel to Bonveno in the format of the sample cost estimate form in
Schedule 2;
"Defect" has the meaning specified in the Operational Agreement;
"Development Environment" means all software toolkits and software
development tools used by Orbittravel in the creation, maintenance,
testing, training and development of the Programs;
"Development Schedule" means the time schedule owned, created and
maintained by Orbittravel, but agreed between the parties in accordance
with Clause 5.1, for the completion of the Phases of preparation,
Acceptance and delivery of the European Specific Software;
"Documentation" means the operating manuals, user instructions, technical
literature and all other related materials (including without limitation,
the Product Plan) supplied to Bonveno by Orbittravel for aiding the use and
modification of the Programs as corrected or modified from time to time
pursuant to any provision of this Agreement;
"European Specific Software" means the developments to the Global Product
in accordance with this Agreement and detailed in the Product Strategy,
Product Requirement Specifications, Product Plan and specified to be
implemented in the Development Schedule as European Specific Software
requirements or developments requested by the issue of a Additional
Development Specification by Bonveno;
3
"Global Product" has the meaning set out on the Operational Agreement;
"Intellectual Property Rights" means any patent, copyright, design right,
registered design, trade xxxx, service xxxx, know-how, utility model,
unregistered design or, where relevant, any application for any such right,
or other industrial or intellectual property right anywhere in the world;
"Licence" means the licence granted by Orbittravel to Bonveno under the
Operational Agreement;
"Maintenance Services" has the meaning set out in the Operational
Agreement;
"Phase" means a time period phase of the Development Schedule;
"Principal Development Fees" means the fees payable by Bonveno to
Orbittravel for development of the European Specific Software in accordance
with Schedule 1 and as agreed in writing between the parties from time to
time;
"Product Requirement Specification" means the detailed product technical
specification created by Orbittravel in accordance with the Development
Schedule;
"Product Strategy Document" means the document owned and produced by
Bonveno that specifies the required functionality of both the Application
Software and Host Software and which is annexed at Schedule 4 of the
Operations Agreement;
"Product Plan" means the document owned, created and maintained by
Orbittravel which provides a high level functional specification of the
Programs in accordance with the Product Strategy Document;
"Program Materials" means the Programs and the Documentation;
"Programs" has the meaning specified in the Operational Agreement;
"Ready for Use" means fully installed, and tested and accepted in
accordance with Clause 6;
"System" means the Programs and the Equipment;
"Technical Documents" means the more detailed technical documents that will
be created and maintained by Orbittravel and used for software development
covering coding, testing, integration, interfacing and quality assurance;
"Training Plan" means the Training Plan set out in Schedule 6 of the
Operational Agreement that specifies the training to be provided to Bonveno
by Orbittravel on Acceptance of the Phases;
"Use" means to load, store, run, display and use any software program
provided by Orbittravel in accordance with the terms of this Agreement and
"User" shall be interpreted accordingly;
"Warranty Period" means a period of 6 months from the date of Acceptance of
each stage or element of the European Specific Software;
4
"Web Travel Systems Limited" has the meaning set out in the Operational
Agreement;
"Year" means a period of twelve months commencing on the Commencement Date
and on each successive anniversary of the Commencement Date and ending on
the day before each successive anniversary of the Commencement Date.
1.2 The headings to clauses are inserted for convenience of reference only and
shall not affect the interpretation or construction of this Agreement.
1.3 Words imparting the singular shall include the plural and vice versa. Words
imparting a gender include every gender and references to persons include
an individual, company, corporation, firm or partnership.
1.4 The words and phrases "other", "including" and "in particular" shall not
limit the generality of any preceding words or be construed as being
limited to the same class as any preceding words where a wider construction
is possible.
1.5 References to any statute or statutory provision shall include (i) any
subordinate legislation made under it, (ii) any provision which it has
modified or re-enacted (whether with or without modification), and (iii)
any provision which subsequently supersedes it or re-enacts it (whether
with or without modification).
1.6 All payments to be made by the parties pursuant to this Agreement must be
made in Sterling unless otherwise agreed by the parties.
1.7 All of Bonveno's rights in this Agreement will be deemed to extend to
Bonveno's subsidiaries.
2 Obligations
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2.1 Orbittravel hereby agrees to develop the European Specific Software in
accordance with the terms and conditions of this Agreement.
2.2 Orbittravel agrees to maintain, licence and support the Programs, including
the European Specific Software, in accordance with the provisions in the
Operational Agreement.
2.3 In consideration of the payment by Bonveno of the Additional Development
Fees and the Principal Development Fees, Orbittravel agrees to make
developments to the European Specific Software in accordance with the
European Specific Requirements in the Product Plan and Development
Schedule; and
2.4 Orbittravel hereby agrees to provide Documentation, and training in
accordance with Clause 6, for the European Specific Software upon the terms
and conditions contained in this Agreement.
2.5 Should Orbittravel wish to utilise the European Specific Software, Bonveno
hereby agrees to grant it a sub-licence for the Use of the same on
reasonable terms and for a royalty to be agreed.
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3 Development of the European Specific Software
---------------------------------------------
3.1 Orbittravel will provide the European Specific Software, in Phases, in
accordance with the requirements of the Additional Development
Specification, the Development Schedule, Product Plan and Product Strategy
Document (which is set out in Schedule 4 of the Operational Agreement).
3.2 Orbittravel will produce the Product Requirement Specification derived from
the Product Strategy Document for each element of the European Specific
Software in co-operation with Bonveno.
3.3 Orbittravel will produce the Product Plan for the Programs in accordance
with the Product Strategy Document and Product Requirement Specification
and will deliver the same to Bonveno for approval.
3.4 Bonveno will communicate any amendments it requires to the Product Plan, in
respect of the European Specific Software, within 14 days of its delivery
(or redelivery, as the case may be) to Bonveno. Bonveno will follow the
Change Control Procedures established by the Parties with regard to any
such amendments.
3.5 No later than ten (10) Business Days prior to the commencement of the
development of the European Specific Software in a Phase, Orbittravel shall
submit a Cost Estimate to Bonveno for approval. Bonveno shall convey its
approval or otherwise within 3 Business Days of delivery of the Costs
Estimate.
3.6 Additional Development
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(a) In the event that Bonveno requires additional European Specific
Software, as set out in the Additional Development Specification,
Orbittravel will if it agrees to undertake such work, be entitled to
charge Bonveno at Orbittravel's preferential rate as agreed in writing
between the parties from time to time.
(b) Orbittravel will produce a Development Schedule, in respect of such
additional requirements and submit it to Bonveno for its agreement
(including details of the Additional Development Fees for such
development) for any additional work required to implement those
changes.
(c) Upon agreement of the Development Schedule, Orbittravel will commence
the Development in accordance with the Development Schedule and
Additional Development Specification.
3.7 Orbittravel shall be responsible for Configuration Management and create a
Build Definition for each major System release. The Build Definition will
identify Host Software, Application Software and System Software, with
release and version numbers.
3.8 Orbittravel will establish, support and fund a suitable Development
Environment for the production and testing of the Application Software and
not pass any of this cost on to Bonveno under any circumstances.
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3.9 Orbittravel shall be responsible for integration of the European Specific
Software with the System Software, Host Software and Application Software
to form the Bonveno Service.
3.10 Orbittravel shall, where applicable, work directly with Web Travel Systems
Limited to ensure proper integration is achieved between the European
Specific Software, Application Software and Host Software.
3.11 Orbittravel shall bear the cost and be responsible for all software tools
required for development of the Application Software.
3.12 Orbittravel shall where applicable enable remote access into the
development environment for the purposes of conducting interfacing tests
and other remote access tests.
4 Payment and expenses
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4.1 The Principal Development Fees will be invoiced on Acceptance of each Phase
(which Acceptance shall not be unreasonably withheld), as detailed in
Schedule 1.
4.2 The Additional Development Fees will be invoiced on the Acceptance of each
Phase (which Acceptance shall not be unreasonably withheld), as detailed in
the relevant Development Schedule.
4.3 All charges properly due and payable by Bonveno under this Agreement shall
be paid within thirty (30) days after the receipt by Bonveno of
Orbittravel's invoice.
5 Development Schedule and delays
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5.1 Orbittravel will consult with Bonveno and, within thirty (30) days after
the Commencement Date, Orbittravel will provide Bonveno with a suggested
timetable detailing when each of the developments to end of Phase 2
including Phase 0 and Phase 1 to the European Specific Software will take
place. When both parties agree the content of the timetable, it will form
the Development Schedule. Both parties may from time to time agree to
reasonable changes to the Development Schedule. The Development Schedule
will be documented in the Product Plan.
5.2 Orbittravel undertakes to complete each Phase by the date specified in the
Development Schedule.
5.3 Orbittravel shall provide the developments to the European Specific
Software Ready for Use on or before the Completion Date.
6 Testing and acceptance
----------------------
6.1 Orbittravel shall have full responsibility for providing final checks on
the System Software, Host Software, Application Software and European
Specific Software and full end-to-end System testing before release.
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6.2 Orbittravel will perform regression testing as necessary to ensure that all
software releases are valid at both the component level and system level.
6.3 After the developments to the European Specific Software have been fully
installed on the Equipment, Orbittravel shall give to Bonveno at least 7
days' prior written notice (or such shorter notice as may be agreed between
the parties) of the date (the "Testing Date") on which Orbittravel will be
ready to perform acceptance tests. Bonveno may and Orbittravel shall attend
such tests on the Testing Date. Orbittravel shall provide all necessary
facilities to enable such tests to be carried out.
6.4 On the Testing Date Orbittravel shall process, in the presence of the
authorised representatives of Bonveno, should they elect to be present,
suitable test data on the Equipment using the European Specific Software.
6.5 Bonveno shall accept the European Specific Software immediately after it
has correctly processed such test data by achieving the expected results,
and the European Specific Software will be Accepted and released in writing
by Bonveno.
6.6 The European Specific Software shall not be deemed to have incorrectly
processed such test data by reason of any failure to provide any facility
or function not specified in the Product Plan, the Development Schedule or
Additional Development Specification.
6.7 If the European Specific Software shall fail to process such test data
correctly then repeat tests shall be carried out on the same terms and
conditions within a reasonable time thereafter but in any event no later
than 14 days thereafter. Orbittravel shall not be entitled to make any
charge for attending such repeat tests, except to the extent that such
failure is not attributable to any act or omission of Orbittravel.
6.8 If such repeat tests demonstrate that the European Specific Software is not
in accordance with the Product Plan, Development Schedule or Additional
Development Specification then Bonveno may by written notice to Orbittravel
require Orbittravel to fix (without prejudice to its other rights and
remedies) a new date for carrying out further tests on the European
Specific Software on the same terms and conditions as the repeat tests
(save that all costs which Bonveno may incur as a result of carrying out
such tests shall be reimbursed by Orbittravel). If the European Specific
Software shall fail such further tests then Bonveno shall, at its option be
entitled to proceed under Clause 6.9 or may by written notice require
Orbittravel to retest in accordance with this Clause 6.8;
6.9 If Bonveno have elected to proceed under this Clause in accordance with
Clause 6.8 above, it may by written notice to Orbittravel elect to accept
the European Specific Software subject to an abatement of the fees payable,
such abatement to be in such an amount as, taking into account the
circumstances, is reasonable. In the absence of written agreement as to
abatement within 14 days after the date of such notice Bonveno shall be
entitled to reject the European Specific Software in accordance with Clause
6.10
6.10 If the parties are unable to agree an abatement of charges in accordance
with Clause 6.9 above, Bonveno may by written notice to Orbittravel reject
the European Specific Software as not being in conformity with this
Agreement, in which event this
8
Agreement shall automatically terminate and Orbittravel shall (without
prejudice to Bonveno's other rights and remedies) forthwith refund to
Bonveno all sums previously paid to Orbittravel under this Agreement
7 Confidentiality
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7.1 Each party shall keep and procure to be kept secret and confidential all
Confidential Information belonging to the other party disclosed or obtained
as a result of the relationship of the parties under this Agreement and
shall not use nor disclose the same save for the purposes of the proper
performance of this Agreement or with the prior written consent of the
other party. Where disclosure is made to any employee, consultant,
sub-contractor or agent, it shall be done subject to obligations equivalent
to those set out in this Agreement and each party agrees to ensure that if
the other party so requests prior to such disclosure such employee,
consultant, sub-contractor or agent enters into a deed of covenant with the
other party in a form reasonably acceptable to that other party containing
obligations equivalent to those set out in this Clause 7. Each party shall
use its best endeavours to procure that any such employee, consultant,
sub-contractor or agent complies with such obligations. Each party shall be
responsible to the other party in respect of any disclosure or use of such
Confidential Information by a person to whom disclosure is made.
7.2 The obligations of confidentiality in this Clause 7.2 shall not extend to
any matter which either party can show:
(a) is in, or has become part of, the public domain other than as a result
of a breach of the obligations of confidentiality under this
Agreement; or
(b) was independently disclosed to it by a third party entitled to
disclose the same; or
(c) is required to be disclosed under any applicable law, or by order of a
court or governmental body or authority of competent jurisdiction; or
(d) was independently developed by that party without prior reference to
any Confidential Information received directly or indirectly from the
other party.
7.3 The obligations relating to confidentiality under this Agreement shall
survive any termination of this Agreement.
8 Duration
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8.1 This Agreement shall come into force on the Commencement Date and (subject
to the provisions for earlier termination in Clause 9 below) shall continue
in force thereafter unless and until either party gives to the other not
less than 6 months' prior written notice of termination subject always to
the provisions of Clause 9 below.
9 Termination
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This Agreement continue in force for so long as the Operational Agreement
continues and shall automatically terminate on the termination of the
Operational Agreement.
9
10 Consequences of Termination
---------------------------
10.1 Upon termination of this Agreement for any reason whatsoever:
(a) the services to be provided by Orbittravel under the Agreement shall
cease and the Agreement shall terminate except to the extent to which
the Agreement is required to continue in force for the purposes of
Bonveno completing any contractual obligations which Bonveno has
entered into prior to the date of termination and which require the
use of the Programs or Orbittravel's maintenance services;
(b) the licences granted under the Operational Agreement shall continue in
full force and effect;
(c) the agreement of the parties relating to confidentiality contained in
Clause 9 of this Agreement shall continue in full force and effect and
each party shall be responsible for keeping and procuring to be kept
secret and confidential all of the other party's Confidential
Information, and other information and know-how acquired from and
through the other party under this Agreement and shall not disclose
the same to any third party and shall use its best endeavours to
prevent disclosure of such except as expressly permitted by this
Agreement;
(d) where either party has been a recipient of Confidential Information
(the "Recipient") it shall forthwith return or procure to be returned
to the other (the "Originator") at such place as the Originator
directs and at the Originator's expense (or if the Originator so
requires by notice in writing to the Recipient, destroy) all of the
Originator's Confidential Information, (together with each and every
copy of it and all literature and packaging relating to it) and shall
make no further use of the Programs, literature, packaging or any of
the Originator's secret or Confidential Information save for the
purpose of completing any contractual obligations in accordance with
Clause 10.1(a) above.
10.2 Termination shall be without prejudice to any rights of either party
against the other which may have accrued up to the date of termination.
11 Intellectual Property Rights
----------------------------
11.1 The European Specific Software and the related Documentation and all parts
thereof and all Intellectual Property Rights therein is and shall remain
the property of Orbittravel
11.2 The copyright and all other intellectual property rights of whatever nature
in any corrected or modified versions of the Programs made pursuant to this
Agreement is and shall remain the property of Orbittravel.
11.3 Orbittravel hereby undertakes to indemnify Bonveno and to keep Bonveno
indemnified fully at all times against all claims, demands, actions,
proceedings, damages, losses, costs and expenses (including, without
limitation, legal and other professional advisers' fees) which are made or
brought against or incurred by Bonveno
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howsoever arising for infringement of third party Intellectual Property
Rights by Bonveno's or Bonveno's customers' use of the European Specific
Software.
12 Limitation of Liability
-----------------------
12.1 Orbittravel shall indemnify Bonveno and keep Bonveno fully and effectively
indemnified on demand against any loss of or damage to any tangible
property or injury to or death of any person caused by: any negligent act
or omission or wilful misconduct of Orbittravel, its employees, agents or
sub-contractors or by any defect in the design or workmanship of the
European Specific Software.
12.2 Except in respect of injury to or death of any person under Clause 12.1
(for which no limit applies) the liability of Orbittravel under Clause 12.1
in respect of each event or series of connected events shall not exceed.
2.5 million [British pounds].
13 General
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13.1 Neither party shall pledge the credit of the other party nor represent
itself as being the other party, nor an agent, employee or representative
of the other party and neither party shall hold itself out as such nor as
having any power or authority to incur any obligation of any nature,
express or implied on behalf of the other party and nothing in this
Agreement shall create, or be deemed to create, a joint venture or
relationship of employer and employee or principal and agent between the
parties and no employee of either party shall be deemed to be or have
become an employee of the other party.
13.2 Orbittravel may not assign, sub-contract, transfer, charge or otherwise
dispose of all or any of its rights and responsibilities under this
Agreement, without the prior written consent of Bonveno which will not be
unreasonably withheld.
14 Entire Agreement
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14.1 This Agreement contains the entire agreement between the parties in
relation to its subject-matter. Each of the parties irrevocably and
unconditionally waives any right it may have to claim damages for, and/or
to rescind this Agreement because of breach of any warranty not contained
in this Agreement, or any misrepresentation not contained in this
Agreement, unless such misrepresentation was made fraudulently.
15 Variations
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15.1 No purported alteration or variation of this Agreement shall be effective
unless it is in writing, refers specifically to this Agreement and is
signed by a director of each of the parties to this Agreement.
16 Waiver
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16.1 The rights and remedies of either party in respect of this Agreement shall
not be diminished, waived or extinguished by the granting of any
indulgence, forbearance or extension of time granted by such party to the
other nor by any failure of, or delay by the said party in ascertaining or
exercising any such rights or remedies. Any waiver of any breach of this
Agreement shall be in writing. The waiver by either party of any
11
breach of this Agreement shall not be deemed to be a waiver of any
subsequent breach of that or any other provision.
17 Severability
------------
17.1 If at any time any part of this Agreement (including any one or more of the
clauses of this Agreement or any sub-clause or paragraph or any part of one
or more of these clauses) is held to be or becomes void or otherwise
unenforceable for any reason under any applicable law, the same shall be
deemed omitted from this Agreement and the validity and/or enforceability
of the remaining provisions of this Agreement shall not in any way be
affected or impaired as a result of that omission.
18 Compliance
----------
18.1 Each of the parties shall, and shall use their reasonable endeavours to
procure that any necessary third parties shall, execute and deliver to the
other party such other instruments and documents and take such other action
as is necessary to fulfil the provisions of this Agreement in accordance
with its terms.
19 Law
---
19.1 This Agreement shall be governed by, and construed in accordance with, the
laws of England.
20 Jurisdiction
------------
20.1 Subject to Clause 23, all disputes arising out of or relating to this
Agreement shall be subject to the exclusive jurisdiction of the English
Courts to which the parties irrevocably submit.
21 Notices
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21.1 Any notices sent under this Agreement must be in writing and may be served
by personal delivery or by sending the notice by air mail post or facsimile
or electronic data transmission at the address given below or at such other
address as the relevant party may give for the purpose of service of
notices under this Agreement and every such notice shall be deemed to have
been served upon delivery if served by hand or at the expiration of 5
Business Days after despatch of the same if delivered by air mail post or
at ten hours am local time of the recipient on the next Business Day
following despatch if sent by facsimile or electronic data transmission.
21.2 To prove service of any notice it shall be sufficient to show in the case
of a notice delivered by hand that the same was duly addressed and
delivered by hand and in the case of a notice served by air mail post that
the same was duly addressed prepaid and posted in the manner set out above.
In the case of a notice given by facsimile or electronic data transmission,
it shall be sufficient to show that it was despatched in a legible and
complete form to the correct telephone number or electronic data number or
address without any error message provided that a confirmation copy of the
transmission is sent to the recipient by air mail post in the manner set
out above. Failure to send a confirmation copy will invalidate the service
of any facsimile or electronic data transmission.
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21.3 Notices to Orbittravel to be sent to:
Name: Xxxx Xxxxx - Vice President - Business Development
Address: 000 Xxxxxx Xxxxxx Xxxx, Xxxxxxxxx, XX, XXX, 00000
Fax: (000) 000-0000
E-mail: xxxxxx@xxxxxxxxxxx.xxx
21.4 Notices to Bonveno to be sent to:
Name: Xxxxx Xxxxxxx
Address: Xxxxxxxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx,
XX0 0XX
Fax: (0000) 0000 000 000
E-mail: xxxxx.xxxxxxx@xxxxxxxxxx.xx.xx
22 Non-Solicitation of Staff
-------------------------
22.1 Each party undertakes to the other that during the term of this Agreement
and for the period of 6 months after its termination, it shall not:
(a) make any offer of employment or enter into any discussions or
negotiations with a view to making any offer of employment to: any
person employed by the other or any associated or parent company of
the other at any time during the period of this Agreement, and with
whom it has had personal contact or dealing ("Employee");
(b) solicit or attempt to solicit services from any Employee on their own
account;
(c) have business dealings with or attempt to have business dealings with
any Employee (other than pursuant to this Agreement); or
(d) entice or attempt to entice any Employee away from the other or any
associated company of the other.
22.2 Each party shall pay liquidated damages to the other if it breaches its
undertaking given in Clause 22.1, the amount of such liquidated damages
being calculated in accordance with Clause 22.3.
22.3 The amount of liquidated damages payable pursuant to Clause 22.2 shall be a
sum equal to the gross salary of the Employee in question for the 12 month
period during which the said breach of undertaking occurs and for the
avoidance of doubt the parties agree that the liquidated damages referred
to in this Clause 22 are a genuine pre-estimate of the loss that each party
may suffer as a result of the other breaching its undertaking given in
Clause 22.1.
23 Disputes
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23.1 Either party may call a management meeting of the parties by service of not
less than 10 Business Days' written notice and each party agrees to procure
that an authorised representative of that party shall attend all such
meetings called in accordance with this Clause 23.1.
23.2 Those attending the relevant meeting shall use all reasonable endeavours to
resolve disputes arising out of this Agreement. If the meeting fails to
resolve the dispute within 10 Business Days of its being referred to it,
either party by notice in writing
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may refer the dispute to the Chief Executive of each party who shall
co-operate in good faith to resolve the dispute as amicably as possible
within 10 Business Days of the dispute being referred to them.
23.3 In the event the Chief Executives are unable to resolve the dispute within
that 10 Business Day period, the parties shall consider whether or not it
would be suitable to refer the matter in dispute to an arbitrator or an
expert appointed by the parties or to enter into an alternative dispute
resolution procedure with the assistance of a mediator appointed by the
parties or, in default of agreement, by the Centre for Dispute Resolution,
Xxxxxx'x Xxxxx, 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (or such alternative
address as may be associated from time to time with the Centre for Dispute
Resolution). If the parties are unable to agree on an alternative method of
resolving the dispute, either party shall be entitled to bring proceedings
in accordance with Clause 20.
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IN WITNESS OF THE ABOVE the parties have signed this Agreement on the date
written at the head of this Agreement.
SIGNED for )
and on behalf of ) /s/ Xxxxxx X. Xxxxxxx
-----------------------------
XXXXXXXXXXX.XXX, INC. ) Director/Authorised Signatory
SIGNED for )
and on behalf of ) /s/ Authorized Signatory
---------------------------------
XXXXXXX.XXX LIMITED ) Director/Authorised Signatory
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