1
Exhibit 10.2
Date: 10th September, 1997
SECURITY DOMAIN PTY LIMITED
and
CONTEGO L.L.C.
INFORMATION TECHNOLOGY SUPPLY AGREEMENT
2
INFORMATION TECHNOLOGY SUPPLY AGREEMENT
Clause Page No.
1. INTERPRETATION .................................................... 1
1.1 Definitions ............................................ 1
1.2 General ................................................ 2
1.3 Precedence ............................................. 2
2. COMMENCEMENT AND DURATION ......................................... 3
2.1 Commencement of Agreement .............................. 3
2.2 Commencement of Modules ................................ 3
2.3 Termination ............................................ 3
3. RELATIONSHIP OF THE PARTIES ....................................... 3
4. SCOPE OF AGREEMENT ................................................ 3
4.1 Supply of Products and Services ........................ 3
4.2 Customer to Pay Fees ................................... 3
5. PAYMENT ........................................................... 4
5.1 Terms of Payment ....................................... 4
5.2 Effect of Late Payment ................................. 4
6. GENERAL LIMITATION OF LIABILITY ................................... 4
6.1 Exclusion of Liability ................................. 4
6.2 Customer's Acknowledgment .............................. 5
7. CONFIDENTIALITY ................................................... 5
7.1 Parties not to Disclose Confidential Information ....... 5
7.2 Disclosure to Employees, Agents and Contractors ........ 5
7.3 Survival of Obligations ................................ 6
8. PERSONNEL ......................................................... 6
8.1 Appointments of Personnel .............................. 6
8.2 Unavailability of Nominated Personnel .................. 6
8.3 Use of Experienced Personnel ........................... 6
8.4 Information of Qualification ........................... 6
8.5 Non-Solicitation ....................................... 6
8.6 Party to Inform Other Party of Approaches .............. 6
3
ii.
9. OBLIGATIONS OF CUSTOMER.......................................... 6
10. FORCE MAJEURE.................................................... 7
11. ASSIGNMENT....................................................... 8
12. DISPUTE RESOLUTION............................................... 8
12.1 Agreement to Use Dispute Resolution................... 8
12.2 Notice of Dispute..................................... 8
12.3 Dispute Resolution.................................... 8
13. NOTICES.......................................................... 8
14. MISCELLANEOUS.................................................... 8
14.1 Further Assurance..................................... 8
14.2 Counterparts.......................................... 9
14.3 Entire Agreement...................................... 9
14.4 Legal Costs........................................... 9
14.5 Variation............................................. 9
14.6 Severability.......................................... 9
14.7 Waiver................................................ 9
14.8 Non-derogation of Powers, Remedies and Rights......... 9
14.9 Governing Law......................................... 9
14.10 Submission to Jurisdiction............................ 10
SCHEDULE 1....................................................... 11
PRODUCTS AND SERVICES............................................ 11
SCHEDULE 2....................................................... 12
SPECIAL TERMS AND CONDITIONS..................................... 12
MODULE A......................................................... 1
4
THIS INFORMATION TECHNOLOGY SUPPLY AGREEMENT is made on
1997
BETWEEN:
SECURITY DOMAIN PTY LIMITED ACN 000 000 000, a company having its
principal place of business at Xxxxx 0, 0 Xxxxx Xxxxx, Xxxxx Xxxxxx, Xxx
Xxxxx Xxxxx, Xxxxxxxxx ("Security Domain");
and CONTEGO, L.L.C., a limited liability corporation, having its principal
place of business at 0000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxx, XX
00000, XXX ("Customer").
RECITALS
A. Customer desires to acquire from Security Domain, and Security Domain
wishes to supply to Customer, certain information technology products
and services.
B. Customer now agrees to acquire from Security Domain, and Security Domain
now agrees to supply to Customer, the information technology products and
services referred to in Recital A in accordance with the terms and
conditions of this Agreement.
OPERATIVE PROVISIONS:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement, unless the context otherwise requires:
"Act of Bankruptcy" means, in relation to a party:
(a) suspension or cessation of that party's business activities;
(b) liquidation, dissolution or insolvency of that party;
(c) appointment or a receiver or trustee in respect of any property of
that party;
(d) assignment of any rights or other property by that party for the
benefit of its creditors; or
(e) making of any formal or informal composition, compromise or
arrangement between that party and its creditors or any class or them.
"Business Day" means a day when trading banks are open for business in New
South Wales.
"Business Hours" means the period between 9 am and 5 pm on any Business Day.
"Commencement Date" means the date specified at the beginning of this Agreement.
"Products" means the computer hardware and software products specified in
Schedule 1.
"Services" means the computer hardware and software services specified in
Schedule 1.
"Special Terms and Conditions" means the special terms and conditions specified
in Schedule 2.
5
2.
1.2 GENERAL
In this Agreement, unless the context otherwise requires:
(a) a reference to an individual or person includes a corporation,
partnership, joint venture, association, authority, trust, state or
government and vice versa;
(b) a reference to gender includes all genders;
(c) a reference to a Recital, clause, Appendix, Schedule or Module is to a
recital, clause, appendix, schedule or module of or to this Agreement;
(d) a Recital, Schedule, Appendix, Module or the description of the
parties forms part of this Agreement and a reference to this Agreement
includes a reference to a Recital, Schedule, Appendix, Module or the
description of the parties;
(e) where an expression is defined, another part of speech or grammatical
form has a corresponding meaning;
(f) a reference to any agreement (including this Agreement) or document is
to that agreement or document (and, where applicable, any of its
provisions) as amended, novated, supplemented or replaced from time to
time;
(g) a reference to a clause is to a clause in the body of this Agreement;
(h) a reference to a paragraph is to a paragraph of a Schedule, Appendix
or Module;
(i) an Appendix forms part of the Module to which it is appended and a
reference to a Module includes a reference to all Appendices appended
to it;
(j) a reference to a party is a reference to that party, its successors
and its permitted transferees or assigns;
(k) headings are for convenience of reference only and do not affect
interpretation.
1.3 PRECEDENCE
(a) The documents comprising this Agreement shall be read in the following
order of precedence:
(i) the Special Terms and Conditions; then
(ii) the clauses in the body of this Agreement; then
(iii) the paragraphs of Schedules other than the Special Terms and
Conditions; then
(iv) the paragraphs of the Modules; then
(v) the paragraphs of the Appendices to the Modules.
(b) Where any conflict occurs between the provisions contained in two or
more of the documents forming this Agreement, the documents lower in
the order of precedence shall where possible be read down to resolve
such conflict. If the conflict remains incapable of resolution by
reading down, the conflicting provisions shall be severed from the
document lower in the order of
6
3.
precedence without (to the extent possible) otherwise diminishing the
enforceability of the remaining provisions of that document.
2. COMMENCEMENT AND DURATION
2.1 COMMENCEMENT OF AGREEMENT
This Agreement commences on the Commencement Date.
2.2 COMMENCEMENT OF MODULES
Each Module, and the obligations of each party pursuant to that Appendix,
shall continue until terminated in accordance with the provisions of that
Module.
2.3 TERMINATION
The whole of this Agreement shall be deemed to be terminated upon the
termination of all the Modules.
3. RELATIONSHIP OF THE PARTIES
The relationship between Customer and Security Domain in relation to the
matters referred to in this Agreement shall be solely that of principal and
independent contractor, and nothing in this Agreement shall constitute or
be deemed to constitute a relationship of master and servant, partnership
or joint venture between Customer and Security Domain, except insofar as is
provided for in the Special Terms and Conditions in Schedule 2.
4. SCOPE OF AGREEMENT
4.1 SUPPLY OF PRODUCTS AND SERVICES
Customer shall acquire from Security Domain, and Security Domain shall
supply to Customer, each Product and Service:
(a) generally, in accordance with the body of this Agreement;
(b) more particularly, as set out in the Module specified in Schedule 1 as
being applicable to the supply of that Product or Service; and
(c) subject at all times to any Special Terms and Conditions specified in
Schedule 2 as applicable to the supply of that Product or Service.
4.2 CUSTOMER TO PAY FEES
In consideration of Security Domain agreeing to supply Customer with each
Product and Service in accordance with clause 4.1, Customer agrees to pay
Security Domain by issue of a capital interest in Contego L.L.C.:
(a) generally, in accordance with the body of this Agreement;
(b) more particularly, as set out in the Module specified in Schedule 1 as
being applicable to the supply of that Product or Service; and
7
5.
(c) If any condition or warranty is implied in this Agreement by the Trade
Practices Act (Cth) or any similar Commonwealth, State or Territory
legislation which may not be excluded, restricted or modified, such
condition or warranty shall be deemed to be included in this Agreement
but liability for any breach of it shall be limited, to the fullest
extent permitted by law, to the limits on liability referred to in
section 68A of the Trade Practices Act of any similar provision of
Commonwealth, State or Territory legislation.
6.2 CUSTOMER'S ACKNOWLEDGEMENT
Customer acknowledges that:
(a) in accepting and acquiring Products and Services under this Agreement,
it has relied upon its own skill and judgment in assessing:
(i) their selection;
(ii) the use and result it intends to obtain from them; and
(iii) their fitness for its particular purposes; and
(b) it has not relied on any representations made by Security Domain which
are not expressly stated in this Agreement or upon any descriptions or
illustrations or specifications contained in any material (including
any catalogues or promotional literature) produced by Security Domain.
7. CONFIDENTIALITY
7.1 PARTIES NOT TO DISCLOSE CONFIDENTIAL INFORMATION
To the extent not expressly dealt with in the Schedules or Modules each
party shall treat as confidential all information belonging to any other
party or persons associated with that other party which has come, comes or
may come into its possession pursuant to or as a result of or in the course
of negotiation in respect of this Agreement or in the party's performance
of this Agreement ("Confidential Information") and shall not, without that
other party's prior written consent, disclose, use or copy or cause or
allow to be disclosed, used or copied any Confidential Information other
than for the purpose of performing this Agreement; but nothing in
sub-clause shall require a party to treat as confidential:
(a) information which is in or becomes part of the public domain other
than through a breach of that party's obligations under this
Agreement;
(b) information which that party acquires from a third party entitled to
disclose it; or
(c) information which that party can prove it knew before such information
was disclosed to it by another party; or
7.2 DISCLOSURE TO EMPLOYEES, AGENTS AND CONTRACTORS
Without limitation to the effect of clause 7.1, each party expressly
acknowledges and agrees that it shall not disclose the other party's
Confidential Information to any of its employees, agents or contractors
unless:
(a) the employee, agent or contractor enters into a confidentiality
agreement; and
(b) the other party gives written consent to the disclosure.
8
6.
7.3 SURVIVAL OF OBLIGATIONS
The obligations in clauses 7.1 and 7.2 shall survive the termination of
this Agreement.
8. PERSONNEL
8.1 APPOINTMENTS OF PERSONNEL
Security Domain may, at its discretion, appoint such personnel as it
considers necessary to provide Services to be supplied by it under this
Agreement.
8.2 UNAVAILABILITY OF NOMINATED PERSONNEL
If any of the personnel appointed by Security Domain to provide Services to
be supplied by it under this Agreement becomes unavailable or refuses to
provide Services to Customer, whether temporarily or otherwise, Security
Domain shall as soon as practicable appoint replacement personnel having at
least the same level of expertise.
8.3 USE OF EXPERIENCED PERSONNEL
Security Domain shall use its best endeavours to ensure that Services to be
supplied by it under this Agreement shall be provided solely by personnel
having and continuing to have all due expertise necessary to enable them to
perform the duties allotted to them pursuant to this Agreement.
8.4 INFORMATION OF QUALIFICATION
Security Domain will provide Customer, upon written request, with full
information as to the qualifications and relevant experience of any
personnel appointed by it to provide services to be supplied by it under
this Agreement.
8.5 NON-SOLICITATION
The parties agree that:
(a) subject to sub-clause (b), Customer shall not employ or procure the
service of any personnel appointed by Security Domain to provide
Services to be supplied by it under this Agreement without the written
consent of Security Domain.
(b) Customer shall become entitled to employ or procure the service of
any personnel appointed by Security Domain to supply Services to be
performed by it under this Agreement without the written consent of
Security Domain 12 months after the termination of this Agreement.
8.6 PARTY TO INFORM OTHER PARTY OF APPROACHES
A party shall, during the currency of this Agreement, promptly advise the
other party if any personnel employed or contracted by the other party seek
to be employed or contracted by it.
9. OBLIGATIONS OF CUSTOMER
Without limitation to any other obligation of Customer under this Agreement
or any Module, Customer shall:
(a) ensure that Security Domain shall have such access to Customer's
premises and all other locations at which the Products will be supplied
to or by Customer (if Customer is authorised
9
7.
to sub-license the Products under a Module) as Security Domain
considers necessary to enable it to fulfill its obligations under this
Agreement or any Module;
(b) immediately inform Security Domain of any factor which would affect
Security Domain's ability to perform its obligations under this
Agreement or any Module;
(c) provide any information concerning the Products, use (including misuse)
and implementation of the Products of which it becomes aware and copies
of all documentation (including without limitation minutes of meeting,
memoranda, reports and correspondence) containing such information to
Security Domain as soon as practicable after Customer becomes aware of
the information;
(d) immediately upon request from Security Domain, provide written reports
concerning the implementation and use of the Product by Customer
(including implementation and use by any sub-licensee of Customer);
(e) immediately upon request provide copies of all contracts between
Customer and its customers or other persons which affect or refer to
the Products or affect the ability of Security Domain to perform its
obligations under this Agreement or any Module;
(f) not include in any contract between Customer and its customers or other
persons, any representation, warranty or undertaking on behalf of
Security Domain or any representation in respect of Security Domain,
the Products or any of Security Domain's rights in or to the Products,
without the prior written approval of Security Domain; and
(g) not assign or purport to assign or transfer to Security Domain any
liability or obligation of Customer to another person without the prior
written consent of Security Domain.
10. FORCE MAJEURE
To the extent not expressly dealt with in the Schedules or Modules, where a
party would, but for the operation of this clause, be in default of its
obligations under, or be liable for any loss, damage or delay arising
out of this Agreement for any reason beyond its reasonable control (a
"FORCE MAJEURE EVENT"):
(a) that party shall give notice (a "Suspension Notice") to each other
party, as soon as practicable, of the nature and duration of the Force
Majeure Event, the obligations affected by it and the nature and extent
of its effect on those obligations;
(b) upon that party giving a Suspension Notice, that party shall not be in
default of its obligations under, or be liable for any loss, damage or
delay arising out of, this Agreement as a result of the Force Majeure
Event AND performance of any obligation affected by the Force Majeure
Event shall be suspended from the date the Suspension Notice is given
until cessation of the Force Majeure Event; and
(c) upon cessation of the Force Majeure Event, that party shall immediately
resume performance of any obligation suspended as a result of it.
10
8.
11. ASSIGNMENT
To the extent not expressly dealt with in the Schedules or Modules, no party
shall assign, license, mortgage, charge or part with, in whole or in part,
any benefit conferred or obligation imposed on it without the other
parties' prior written consent, and any attempt to do so shall be void and
of no effect.
12. DISPUTE RESOLUTION
12.1 AGREEMENT TO USE DISPUTE RESOLUTION
Before filing any action or instituting legal proceedings with respect to
any dispute arising out of or relating to this agreement, the parties agree
that they will attempt to resolve such matters in accordance with the
following dispute resolution procedure.
12.2 NOTICE OF DISPUTE
The aggrieved party shall give the other party written notice of its
grievance and provide the other party with an opportunity to meet and
discuss the matter in order to consider informal and amicable means of
resolution.
12.3 DISPUTE RESOLUTION
If the parties are unable to agree on a mutually satisfactory resolution to
the matter, the matter shall be submitted to arbitration in Australia. The
arbitrator shall be agreed between the parties and if the parties are
unable to agree, shall be nominated by the Standing Committee for the
Regulation of Contractual Relations of the International Chamber of
Commerce ("ICC") in accordance with the Rules on the Regulation of
Contractual Matters of the ICC (the "Rules"). The arbitrator, whether
selected by the parties or nominated, shall be independent of the parties,
be fluent in English, have demonstrated experience in the business of
developing software solutions and electronic data interchange and security
systems and shall have knowledge of the laws in force in New South Wales,
Australia including relevant Federal laws and New South Wales State laws.
The arbitration shall be conducted in accordance with the Rules. The
decision of the arbitrator shall be final although the parties shall always
be entitled to bring legal proceedings in relation to the matter in dispute
in the courts of New South Wales, Australia.
13. NOTICES
Any notice required or permitted to be given by a party (the "notifying party")
to another party under this Agreement shall be in writing and forwarded by
prepaid mail, facsimile or hand delivery to that other party at the address
for that party set out at the beginning of this Agreement or such other
address as the other party may from time to time give notice to the
notifying party. Such notices shall be deemed to have been given and
received:
(a) if delivered to the other party's address, when delivered;
(b) if sent by prepaid mail, on the third Business Day after posting; or
(c) if transmitted by facsimile and a correct and complete transmission
report is received by the notifying party, on the following Business
Day after transmission.
14. MISCELLANEOUS
14.1 FURTHER ASSURANCE
11
9.
The parties shall execute and do all such acts and things as shall be
necessary or desirable to implement and give full effect to the provisions
and purposes of this Agreement.
14.2 COUNTERPARTS
This Agreement may be executed in any number of counterparts and all of
those counterparts taken together constitute one and the same instrument.
14.3 ENTIRE AGREEMENT
The Agreement (including all its Schedules and Modules) is the entire
agreement of the parties on the subject matter. The only enforceable
obligations and liabilities of the parties in relation to the subject
matter are those that arise out of the provisions in this Agreement. All
representations, communications and prior agreements in relation to the
subject matter are merged in and superseded by this Agreement.
14.4 LEGAL COSTS
Each party shall pay its own legal costs incurred in respect of the
preparation of all drafts and engrossments of this Agreement.
14.5 VARIATION
This Agreement may be amended or varied only by agreement in writing signed
by the parties.
14.6 SEVERABILITY
Any clause, paragraph or portion of any clause or paragraph which may be
held to be unenforceable for any reason whatsoever shall be severed from
this Agreement and this Agreement shall continue to operate and be of full
force and effect as if the severed provision had never been included in
this Agreement.
14.7 WAIVER
The failure, delay, relaxation or indulgence on the part of any party in
exercising any power or right given to that party under this Agreement does
not operate as a waiver of that power or right, nor does any single
exercise of a power or right preclude any other or further exercise of it
or the exercise of any other power or right under this Agreement. A power
or right may only be waived in writing, signed by the party to be bound by
the waiver.
14.8 NON-DEROGATION OF POWERS, REMEDIES AND RIGHTS
The powers, remedies and rights conferred upon the parties by or under any
statute shall (except to the extent inconsistent with the terms and
provisions expressed in this Agreement) be in addition to the powers,
remedies and rights conferred by this Agreement.
14.9 GOVERNING LAW
Except as expressly provided for in this Agreement, this Agreement shall be
interpreted in accordance with and governed by the law in force in New
South Wales.
12
10.
14.10 SUBMISSION TO JURISDICTION
The parties submit to the non-exclusive jurisdiction of the courts of New
South Wales and any courts which may hear appeals from those courts in
respect of any proceedings in connection with this Agreement.
EXECUTED as an agreement.
SIGNED for and on behalf of )
SECURITY DOMAIN PTY )
LIMITED by a duly ) /s/ X.X. Xxxxxxx
authorised representative in ) ---------------------------
the presence of: Representative
Name (printed): X.X. XXXXXXX
Position (printed):
MANAGING DIRECTOR
/s/ Xxxxx X. Xxxxxx
------------------------------------
Witness
Name (printed): XXXXX X. XXXXXX
SIGNED for and on behalf of )
CONTEGO L.L.C. by a duly )
authorised representative in ) /s/ Xxxxx X. Xxxxxx
the presence of: ) ----------------------------
Representative
Name (printed):
Position (printed):
/s/ X.X. Xxxxxxx
------------------------------------
Witness
Name (printed): X.X. XXXXXXX
13
11.
SCHEDULE 1
PRODUCTS AND SERVICES
--------------------------------------------------------------------------------
Product/Service Category Applicable Module
--------------------------------------------------------------------------------
Standard Software Module A
--------------------------------------------------------------------------------
Custom Software Not applicable
--------------------------------------------------------------------------------
3rd Party Products Not applicable
--------------------------------------------------------------------------------
Professional Services Not applicable
--------------------------------------------------------------------------------
Software Maintenance Services Not applicable
--------------------------------------------------------------------------------
14
12.
SCHEDULE 2
SPECIAL TERMS AND CONDITIONS
1. RELEASE OF SOURCE CODE
Security Domain shall deposit current versions of the source code of the
Products with an independent recognized escrow agent, under an agreement
covering the terms under which the source code may be accessed by the
Customer, which shall be limited to circumstances in which Security Domain
ceases to undertake and provide to the Customer further enhancements to the
Product, in a manner which would be detrimental to the business activities
of the Customer.
2. SPECIAL PAYMENT TERMS
In consideration for supply of the Products and Services, customer agrees
to issue Security Domain with a capital interest in Contego L.L.C., in
accordance with the terms contained in the agreement between Intelispan
L.L.C. and Security Domain and other parties relating to the operation of
Contego, L.L.C.
15
MODULE A
STANDARD SOFTWARE
16
Module for
Supply of Standard Software
(End-User)
In this Module:
---------------------------------------------------------------------------
Unless expressly defined in this Module, terms and expressions used in
this Module shall have the same meaning as they have in the clauses of the
Agreement.
---------------------------------------------------------------------------
"Designated System" means a computer system so designated in Appendix A1;
"Documentation" means explanatory and informational materials concerning
the computer programs and data sets referred to in the definition of
"Standard Software" which Security Domain releases from time to time for
distribution with those computer programs and data sets, such as manuals,
descriptions, instructions, diagrams, printouts, comments, listings and
flowcharts, contained on visual media such as paper or photographic film,
or on other physical storage media in human-readable and machine-readable
form. "Documentation" does not include source code.
"Installation Date" means the date specified in Appendix A1.
"Intellectual Property" means all copyright, designs and patents (whether or
not registrable throughout the whole of the Territory), trade secrets and
know-how and other intellectual property rights throughout the Territory.
"Licence" means the licence of Standard Software granted in paragraph 2.1.
"Licence Fees" means the licence fees identified on Appendix A1 for the
applicable Standard Software.
"Maintenance Fees" means the software maintenance fees identified on
Appendix A2 for the applicable Maintenance Services.
"Maintenance Services" means the software maintenance services specified in
Appendix A2.
"Standard Software" includes all the software identified in Appendix A1,
being computer programs and data sets in machine-readable form that are
contained in physical storage media such as magnetic tapes, cassettes,
discs and semi-conductor chips. For the purposes of this definition,
"Standard Software" also includes:
(a) all modifications, enhancements, updates and/or revisions to the
software identified in Appendix A1 issued by Security Domain from time
to time; and
(b) where possible in this Module, all Documentation of the software
referred to above in this definition.
(c) custom modifications to the Standard Product itself carried out by
Security Domain, whether or not requested by, or paid for by the
Customer, but not including software that may be developed by Customer
or its subcontractors, using such software interfaces as may be
provided by Security Domain for this purpose.
"Standard Software Commencement Date" means the date specified in Appendix
A1.
"Territory" means the geographic location specified in Appendix A1.
17
"Warranty period" means the 12 month period following the Standard
Software Commencement Date.
OPERATIVE PROVISIONS:
1. PRINCIPAL OBLIGATIONS
Security Domain shall:
(a) grant the Licence of the Standard Software to Customer; and
(b) perform Maintenance Services in relation to the Standard Software for
Customer,
all in accordance with the terms and conditions of this Module, in
consideration of which Customer shall pay Security Domain the applicable
License Fees and Maintenance Fees in accordance with the terms and
conditions of this Module.
2. LICENCE OF STANDARD SOFTWARE
2.1 Security Domain grants to Customer a perpetual, non-exclusive,
non-transferable licence, commencing on the Standard Software Commencement
Date, to use the Standard Software in the Territory in the course of
Customer's ordinary business in accordance with any limitations specified
in Appendix A1.
2.2 Under the Licence:
(a) Customer may only use the Standard Software in accordance with the
Documentation and the normal operating procedures notified to it by
Security Domain.
(b) Subject to sub-paragraph (c), Customer shall not copy, adapt, change
or modify the Standard Software or any part of it or merge the
Standard Software or any part of it with other software except as
specified by Security Domain and using an interface provided for this
purpose by Security Domain, unless previously authorized to do so in
writing by Security Domain.
(c) Customer may make the number of copies of the Standard Software
specified in Appendix A1 for the purpose of:
(i) its back-up, disaster recovery and security operations; and
(ii) using the Standard Software within the terms of paragraph 2.1.
(d) Customer shall maintain a record of the locations of all Standard
Software at all times and shall allow Security Domain access to that
record at any time during Business Hours.
(e) Customer shall not re-supply the Standard Software or any part of it
to any other person or permit the use, adaptation or copying of the
Standard Software or any part of it by any other person.
(f) Customer shall not reverse assemble, reverse compile or directly or
indirectly allow any other person to reverse assemble or reverse
compile the Standard Software or any part of it.
2.3 Security Domain shall deliver and install the Standard Software, at the
installation site notified to it by Customer, on or before the Installation
Date during Business Hours.
2.4 Security Domain shall:
(a) test the Standard Software within the period specified in Appendix A1
in accordance with its established standard test procedures; and
(b) provide Customer with a description of the test procedures
18
undertaken by it in relation to the Standard Software and the results
of those test procedures.
2.5 Customer shall be deemed to have accepted any Standard Software upon the
earlier of:
(a) the date it receives notice from Security Domain of the satisfaction
of the acceptance tests of that Standard Software; or
(b) the expiry of a 30 day period of live commercial operation of that
Standard Software.
3. MAINTENANCE SERVICES
Security Domain shall maintain the Standard Software in accordance with
Appendix A2.
4. OWNERSHIP OF INTELLECTUAL PROPERTY
4.1 Customer acknowledges that all right, title and interest in the Standard
Software and all Intellectual Property in it is and shall at all times be
owned by Security Domain, even if the Standard Software or any part of it
is modified or adapted by Customer, except as provided for in this clause.
Where custom modifications to the Standard Product, that result in
substantial transformation of the functionality of the Standard Product,
are carried out by Security Domain or by the Customer with the consent of
Security Domain and paid for by the Customer, the ownership of and rights
to exploit such resulting changes shall be the subject of a separate
agreement between the parties.
4.2 Customer acknowledges that, if the Standard Software or any part of it is
modified or adapted by Customer without the prior written consent of
Security Domain, this Module shall apply to the Standard Software or any
part of it as modified or adapted.
4.3 Customer shall:
(a) ensure that all copies of Standard Software:
(i) are to the extent practicable signified and identified as the
property of Security Domain;
(ii) are at all times protected from access, use or misuse, damage or
destruction by any person not authorised in writing by Security
Domain for that purpose; and
(iii) remain free of any lien, charge or encumbrance of persons other
than Security Domain or its nominees; and
(b) do all further acts and things and execute any documents necessary or
convenient to give effect to this paragraph 4.
5. INTELLECTUAL PROPERTY INDEMNITY
5.1 Subject to paragraphs 5.2, 5.3 and 5.4, Security Domain shall indemnify
Customer against liability under any final judgment in legal proceedings
brought in the Territory by a third party against Customer determining that
Customer's use of the Standard Software or any part of it infringes the
Intellectual Property of that third party.
5.2 Security Domain shall not be obliged to indemnify Customer if any alleged
or actual infringement that arises from infringement of the inventions,
methods and devices described and claimed in following patent registered in
the United States of America, commonly known as the RSA algorithm patent:
"Cryptographic Communications System and Method" No. 4,405,829
Customer acknowledges that it is wholly
19
responsible for ensuring that its use of the Products and its business
operations do not infringe this patent.
5.3 Security Domain shall not be obliged to indemnify Customer if any alleged
or actual infringement arises from:
(a) use of the Standard Software in combination by any means and in any
form with computer hardware or software not supplied or specifically
approved by Security Domain;
(b) use of the Standard Software in a manner or for a purpose not
reasonably contemplated or not authorised by Security Domain;
(c) modification of the Standard Software without the prior written
consent of Security Domain; or
(d) any transaction entered into by Customer relating to the Standard
Software without the prior written consent of Security Domain.
5.4 Notwithstanding paragraph 5.1, Security Domain shall not be obliged to
indemnify Customer unless Customer:
(a) notifies Security Domain as soon as practicable of any potential,
suspected, alleged or actual infringement referred to in paragraph
5.1;
(b) gives Security Domain the option to, at Security Domain's expense,
conduct the defence of actions or claims referred to in paragraph 5.1,
including negotiations for settlement or compromise prior to the
institution of legal proceedings;
(c) provides Security Domain with all necessary assistance, at Security
Domain's expense, in conducting the defence of legal proceedings
referred to in paragraph 5.1;
(d) permits Security Domain to modify, alter or substitute Standard
Software, at Security Domain's expense, so that such infringement is
removed or avoided; and
(e) authorises Security Domain to procure for Customer, at Security
Domain's expense, the lawful right to continue the use and possession
of the Standard Software.
5.4 Without limiting the generality of paragraph 5.3, if it is determined by
any independent tribunal of fact or law or if it is agreed between the
parties to the dispute that any infringement of the Intellectual Property
of any third party has occurred because of Customer's use of the Standard
Software or any part of it, Security Domain shall at its own expense:
(a) modify, alter or substitute the Standard Software so that such
infringement is removed or avoided;
(b) procure for Customer the lawful right to continue the use and
possession of the Standard Software; or
(c) if the solutions in sub-paragraphs (a) and (b) cannot be achieved,
recall the Standard Software and terminate this Module.
5.5 To the extent permitted by law, Security Domain's total liability to
Customer pursuant to paragraph 5.1 shall be limited to and shall not exceed
the amount specified in Appendix A1 in aggregate for all claims made by
Customer to Security Domain pursuant to paragraph 5.1.
6. GENERAL WARRANTIES
6.1 Security Domain warrants that software comprising the Standard Software
will, during normal use within the operating environment designated in the
Documentation, substantially perform the
20
functions detailed in the Documentation and shall at its own expense remedy
any such error or defect in that software notified to it during the
Warranty Period.
6.2 Security Domain does not warrant that:
(a) the Standard Software is error-free;
(b) use of the Standard Software will be uninterrupted;
(c) the Standard Software will meet Customer's requirements or be fit for
any particular purpose required by Customer other than as set out in
the Documentation;
(d) the Standard Software will operate in combination by any means and in
any form with any computer hardware or software not documented for
such use in the Documentation, or not specifically approved in writing
for such use by Security Domain; or
(e) the Standard Software will provide any function or adequately perform
in any operating environment not designated in the Documentation.
7. TERMINATION
7.1 Without prejudice to any other rights or remedies available to either
party, a party ("the terminating party") may terminate this Module
immediately by notice if:
(a) the other party has failed to perform or observe any obligation under
this Module and the other party has not rectified such failure within
30 days after the date it receives a notice from the terminating party
requiring such failure to be rectified; or
(b) the other party commits an Act of Bankruptcy; or
(c) a Force Majeure Event in relation to performance of this Module
continues for a period of 30 days after a Suspension Notice is given
by either party in respect of that Force Majeure Event.
7.2 Without prejudice to any other rights or remedies available to either
party, Security Domain may terminate this Module immediately by notice if:
(a) any payment due from Customer to Security Domain pursuant to this
Module remains unpaid for the period specified in Appendix A1;
(b) except as expressly authorised in this Module, Customer copies,
disposes of, modifies, reverse engineers or changes the Standard
Software or any part of it without Security Domain's prior written
consent; or
(c) without limiting anything in sub-paragraph (b), Customer otherwise
breaches the terms and conditions of the Licence.
8. EFFECT OF EXPIRY OR TERMINATION
8.1 Subject to paragraph 8.2, upon expiry or termination of this Module, by
whatever means and howsoever effected:
(a) at Security Domain's direction, Customer shall:
(i) deliver to Security Domain all copies of Standard Software;
and/or
(ii) destroy all copies of Standard Software,
in the possession, power or control of Customer or any of its
officers, employees, agents or advisers;
(b) Security Domain shall provide reasonable assistance to enable the
21
transfer of the functions and Services undertaken by it under this
Module to Customer or to a third party nominated by Customer;
(c) Customer shall pay Security Domain on a time and materials basis, at
Security Domain's then current standard rates, for all assistance
rendered pursuant to sub-paragraph (b) above;
(d) both parties shall be regarded as discharged from any further
obligations under this Module; and
(e) either party may pursue any additional or alternative remedies
provided by law or in equity.
8.2 Notwithstanding paragraph 8.1, the terms and conditions in this paragraph 8
shall remain operative and in full force and effect after the expiry or
termination of this Module, by whatever means and howsoever effected.
22
APPENDIX A1
LICENCE OF STANDARD SOFTWARE
1. DEFINITIONS
(a) DESIGNATED SYSTEM
A public key infrastructure to enable the Customer to provide secure
communications services.
(b) INSTALLATION DATE
Before 30th September, 1997, or as otherwise agreed between the
parties.
(c) STANDARD SOFTWARE
Open SECURkey family of public key infrastructure products, including
but not limited to SECURcertify, SECURregister, SECURstore, SECURgen,
Web Registration Authority, plus all standard enhancements to these
products that may be developed by Security Domain and marketed to
multiple customers during the next twelve months.
SECURuser security sub-system, plus all standard enhancements to these
products that may be developed by Security Domain and marketed to
multiple customers during the next twelve months.
Those parts of SECURserver which may be used to implement user
authentication services within the Contego secure communications
services, but not including custom software developments that may be
required to enhance those parts, which shall be the subject of a
separate agreement.
(d) STANDARD SOFTWARE COMMENCEMENT DATE
Upon execution of the Operating Agreement between Security Domain and
Intelispan L.L.C. and other parties relating to the operation of
Contego, L.L.C.
(e) TERRITORY
North America, and other parts of the world, provided that where
products are used other than in North America, they are only used as
part of the Customer's secure communication service.
(f) LICENCE FEES
Payment shall be by way of creation of a capital interest in Contego
L.L.C., pursuant to the Special Terms and Conditions in Schedule 2 of
this agreement, and the terms and conditions of the Operating
Agreement between Security Domain and Intelispan LLC and other parties
relating to the operation of Contego, L.L.C.
2. PARAGRAPH 2.1 - LIMITATIONS ON USE
(a) LICENSED NUMBER OF WORKSTATIONS
23
No limitation, provided that SECURuser is used as part of the Contego
secure communication service.
(b) OTHER (eg, USE AS PART OF THE DESIGNATED SYSTEM)
Use of the software to develop and market secure communications
services.
3. PARAGRAPH 2.2(c) - NUMBER OF COPIES
No limitation provided that the Standard Software is only used as part of
the Contego secure communications service.
4. PARAGRAPH 2.4 - TESTING PERIOD
Within 10 days after Security Domain has completed installation of the
Standard Software.
5. PARAGRAPH 5.5 - LIMITATION ON LIABILITY
US$750,000 in aggregate of all claims made by Customer to Security Domain
pursuant to paragraph 5.1.
6. PARAGRAPH 7.2 - PERIOD OF TIME PAYMENT REMAINS UNPAID
Not applicable
24
APPENDIX A2
Maintenance Services
1. MAINTENANCE FEES
To be agreed between the parties prior to expiry of the warranty period.
2. PRINCIPAL MAINTENANCE SERVICES OBLIGATION
Security Domain shall use its best endeavours to perform such Maintenance
Services as are necessary to ensure that:
(a) the Standard Software remains in conformity and performs in accordance
with the Documentation; and
(b) the Standard Software is and remains free from errors and defects.
3. DESCRIPTION OF MAINTENANCE SERVICES
The Maintenance Services to be provided to or for the benefit of Customer
by Security Domain in accordance with this Appendix include (without
limitation) provision of the following services promptly as necessary in
the circumstances:
(a) telephone support in the form of consultations, assistance and advice
in connection with the use of Standard Software and any difficulties
and defects with such software;
(b) if such telephone support has not remedied or cannot remedy the defect
or error, correction by means of modem or at the site of the defect or
error;
(c) provision and installation of new releases, patches, workarounds,
corrections, updates, new versions or enhancements which have been
developed, tested and released;
(d) revision and supplementation of Documentation, including, where
suitable, information relating to availability of code corrections,
identified procedures and limitations; and
(e) provision of guidance to Customer's personnel on contact procedures
and investigation requests.
Maintenance Services will be provided during Business Hours.
4. MAINTENANCE REPORTS
Security Domain shall keep fully detailed records of:
(a) all requests for Maintenance Services;
(b) the responses and measures taken to such requests; and
(c) the outcomes of such responses and measures.
