Exhibit 10.6
ISES CORPORATION
0000 00xx Xxxxxx, Xxxxx X
Xxx Xxxxxx, Xxxx 00000
Tel: (000) 000-0000 Fax: (000) 000-0000
("ISES")
IN-FLIGHT ENTERTAINMENT SOFTWARE LICENSE AGREEMENT
Customer: Airtours International Airways, Limited
Parkway One Parkway Business Center, 000 Xxxxxxxx Xxxx
Xxxxxxxxxx X000XX XX
Tel: 00 000 000 0000 Fax: 00 000 000 0000
Contact: Xxxxx Xxxxxx/In-flight Product Director
This Agreement, effective as of March 31, 1999, is entered into between ISES
Corporation, having an office located at 0000 00xx Xx., Xxx Xxxxxx, XX 00000,
(ISES), and Airtours International Airways, Limited having an office located at
Parkway One Parkway Business Center, 000 Xxxxxxxx Xxxx, Xxxxxxxxxx X000XX, XX,
(Airtours). ISES hereby grants Customer, and Customer hereby accepts from ISES,
a non-exclusive and non-transferable right to use the computer programs
described in Section 1 below (the "Products") on the designated hardware
described in Section 2 below (the "Designated Hardware"), for the term specified
herein, subject to the terms and conditions specified below.
GENERAL TERMS AND CONDITIONS
1. PRODUCTS
"Products" means (i) the machine-readable object code version of the computer
programs described in the Product schedule, whether embedded on disc, tape or
other media, for use on the computer platform specified in the Product Schedule
(the "Software"), (ii) the published user manuals and documentation that ISES
makes generally available for the Software (the "Documentation"), (iii) the
fixes, updates, upgrades or new versions of the Software or Documentation that
ISES may provide to Customer under this Agreement (the "Enhancements") and (iv)
any copy of the Software, Documentation or Enhancements. Nothing in this
Agreement will entitle Customer to receive the source code of the Software or
Enhancements, in whole or in part.
2. DESIGNATED HARDWARE
"designated Hardware" means the hardware equipment installed in the designated
aircraft, each as specified in the Project Schedule. Customer may use the
Products as described in Section 3 only on the Designated Hardware while it
possesses and operates the Designated Hardware. Any other use or transfer of the
Products will require ISES's prior approval, which (i) shall not be unreasonably
withheld or delayed and (ii) may be subject to additional charges should any
revision to the Products be required as a result of the alternative use or
transfer.
3. USE
Customer may use the Products only in and for Customer's own internal purposes
in providing in-flight entertainment to its passengers and to the passengers of
any other airline which (i) is operated by a company within the Airtours Plc
group of companies (a "Group Company"), (ii) has contracted a majority of its
seat capacity to a Group Company, or (iii) has contracted to carry the majority
of the customers of any Group Company and (iv) providing that Customer or its
parent company at all times has legal control over each Group Company. Customer
will not permit any other person to use the Products, whether on a time-sharing
or other multiple user arrangement. Customer may install the Software or
Enhancements on a network or other multiuser
computer system specified in the Product Schedule and use the Designated
Hardware to provide file services to Customer's in-flight entertainment
consoles, up to the number of aircraft specified in the project schedule.
Customer may make a reasonable number of back-up archival copies of the Software
and Enhancements. Customer will reproduce all confidentiality and proprietary
notices on each of these copies and maintain an accurate record of the location
of each of these copies. Customer will not otherwise copy, translate, modify,
adapt, decompile, disassemble or reverse engineer the Products, except as and to
the extent expressly authorized by applicable law or with the prior approval of
ISES.
4. PAYMENT
(a) License Fee. Customer will pay to ISES the License Fee specified in the
Product Schedule and by the date specified in the Product Schedule. The License
Fee is based upon the right to access the Products on up to a maximum of four
(4) A330 aircraft. Any increase in usage may be subject to additional charges.
All amounts specified in the Product Schedule are exclusive of any applicable
use, sales, service, property or other taxes or contributions, which Customer
will pay in addition to the amount due and payable. If, under local law or
applicable treaty, Customer is required to withhold any tax on such payments,
then the amount of the payment will be automatically increased to totally offset
such tax, so that the amount actually remitted to ISES, net of all taxes, equals
the amount invoiced or otherwise due. If ISES shall be entitled to receive a
credit against or remission for any such tax, ISES shall reimburse Customer with
such amount as ISES shall reasonably certify to be the proportion of such credit
or remission as will leave ISES (after such reimbursement) in no worse position
than it would have been had there been no such deduction or withholding. Such
reimbursement shall be made forthwith upon ISES certifying that the amount o
such credit or remission has been received by it. Customer will promptly furnish
ISES with the official receipt of payment of these taxes to the appropriate
taxing authority. Except for amounts disputed in good faith, any amount not paid
when due will accrue interest at the rate of 1.5% per month. Customer will pay
such interest when remitting the principal amount to ISES.
(b) Renewal. The License Fee shall remain fixed for the first two years.
Thereafter, the parties may by mutual agreement vary the License Fee with effect
from the second anniversary of the commencement of the Rental Term as stipulated
in the Product Schedule by a percentage not to exceed fifteen percent (15%) per
year from the date of this agreement.
5. SHIPMENT
ISES will, at its own cost, ship the Products from its distribution center to a
mutually agreed third party in the United States, subject to delays beyond
ISES's control. Should Customer desire shipment outside of the United States,
then ISES will select the method of shipment for Customer's account and obtain
all licenses required to export the Products from the country of origin.
Customer shall pay or reimburse ISES for the cost of shipment of the Products to
the port of entry at Customer's country of domicile. Customer will (i) obtain
all licenses required to import the Products into its country of domicile, (ii)
clear the Products through local customs and (iii) pay all customs duties and
other charges assessed on such importations, if applicable. Risk of loss will
pass to Customer upon arrival of the products at the port of entry in Customer's
country of domicile.
6. MAINTENANCE AND SUPPORT
(a) Maintenance. During the warranty period specified in Section 7(a), ISES will
provide Customer, at no additional charge, with the fixes and updates that ISES
may make generally available as part of its standard maintenance services (the
"Updates"). Required Maintenance provides Updates for the remainder of the Term
(as defined in Section 12(a)) after the Warranty Period (the "Maintenance
Period") and is paid to ISES annually in advance. The Required Maintenance Fee
is specified in the Product Schedule.
(b) "Hot-Line" Support. During the Warranty Period and any Maintenance Period
for which Customer has paid, ISES will provide Customer, at no additional
charge, with advice, consultation and assistance to use the Product and diagnose
and correct problems that Customer may encounter (the "Hot-Line Support"). ISES
will offer the Hot-Line Support remotely by telephone, fax or other electronic
communication during
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its normal business hours. Customer will bear all telephone and other expenses
that it may incur in connection with the "Hot-Line" Support. ISES may offer
on-site support to Customer at additional charges.
(c) Limitation. The Updates will not include any upgrade or new version of the
Products that ISES decides, in its sole discretion, to make generally available
to its customer base as a separately priced item. This Section will not be
interpreted to require ISES to (i) develop and release Enhancements or (ii)
customize the Enhancements to operate in conjunction with any Customer
Modification or otherwise satisfy Customers' particular requests. If an
Enhancement replaces the prior version of the Product, Customer will destroy
such prior version upon installing the Enhancement.
7. WARRANTIES AND REMEDIES
(a) Limited Warranty. ISES warrants that (i) the Software will conform to ISES's
published specifications in effect on the date of delivery, (ii) the Software
will perform substantially as described in the accompanying Documentation for
the earlier of (x) 180 days from delivery to the Product integrator mutually
agreed to by the parties and (y) 90 days after Customer's in-aircraft deployment
of the Product, and (iii) from the date of delivery of the Products by ISES
until December 31, 2000, the Products will record, store, process and present
calendar dates falling on or after December 31, 1999 in the same manner and with
substantially the same functionality as such Products record, store, process and
present calendar dates falling before December 31, 1999, (iv) it will perform
any maintenance and support services pursuant to Section 6 with reasonable care
and skill. Customer acknowledges that (i) the Products may not satisfy all of
Customer's requirements, (ii) the use of the Products may not be uninterrupted
or error-free and (iii) this limited warranty will not apply in case of any
Customer Modifications. Customer further acknowledges that (i) the License Fee
and other charges contemplated under this Agreement are based on the limited
warranty, disclaimers and limitation of liability specified in Sections 7, 8 and
9 and (ii) such charges would be substantially higher if any of these provisions
were unenforceable.
(b) Remedies. In case of breach of warranty or any other duty related to the
quality of the Products, ISES or its representative will, at its own cost
promptly correct or replace any defective Software or, in the event of a failure
by ISES to do so, pay to Customer such costs as it may reasonably incur in
correcting such defects as mutually agreed upon or, if not practicable, ISES
will accept the return of the defective Software and refund to Customer (i) the
amount actually paid to ISES for the defective Software, less depreciation based
on a 5-year straight line depreciation schedule, and (ii) a pro rata share of
any maintenance fees that Customer actually paid to ISES for the period that
such Software was not usable. Customer acknowledges that this Paragraph sets
forth Customer's exclusive remedy, and ISES's exclusive liability, for any
breach of warranty or other duty related to the quality of the Products.
(c) Limitations. The warranty provided in this Section 7 will not apply to the
extent that the breach of warranty or Product defect is not brought to the
attention of ISES during the applicable warranty period or arises as a result of
(i) failure to properly install or use the Product in accordance with its
documentation, (ii) failure of the operating environment or hardware failure,
(iii) modification of the Products other than by ISES, (iv) failure to promptly
install an Update Provided to the Customer by ISES that would have eliminated
the defect, (v) use of the Products with ambiguous date related data or in a
Year 2000 non-compliance operating environment or (vi) the combination of the
Products with other items not provided by ISES, but only if the breach would not
have occurred from use of the Product alone with the Designated Hardware
existing as of the date of this Agreement.
(d) Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES,
CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE
PRODUCTS, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR
WRITTEN STATEMENTS BY ISES, ITS AGENTS OR OTHERWISE (INCLUDING, BUT NOT LIMITED
TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSES,
SATISFACTORY
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QUALITY AND NON-INFRINGEMENT) ARE HEREBY OVERRIDDEN, EXLCUEED AND DISCLAIMED.
8. INDEMNITY
(a) Indemnity. If an action is brought against Customer claiming that a Product
infringes a presently issued U.S. patent, or a copyright or trade secret, ISES
will defend Customer at ISES's expense and, subject to this Section and Section
9 pay the damages and costs finally awarded against Customer in the infringement
action, but only if (i) Customer notifies ISES promptly upon learning that the
claim might be asserted, (ii) ISES has sole control over the defense of the
claim and any negotiation for its settlement or compromise provided, however,
that ISES shall consult with Customer with respect to any decision that
materially affect's Customer's rights of use with respect to the Products and
(iii) Customer provides ISES with full cooperation in the investigation, defense
and settlement of such claim as ISES may reasonably require, providing that
Customer shall be reimbursed all of its reasonable out of pocket expenses
incurred as a result.
(b) Alternative Remedy. If a claim described in Section 8(a) may be or has been
asserted, Customer will permit ISES, at ISES's option and expense, to (i)
procure the right to continue using the Product, (ii) replace or modify the
Product to eliminate the infringement while providing functionally equivalent
performance or only if the remedies specified in (i) and (ii) are unavailable to
ISES on commercially reasonable terms, (iii) accept the return of the Product
and refund to Customer the amount actually paid to ISES for such Product, less
depreciation based on a 5-year straight-line depreciation schedule and a pro
rata share of any maintenance fees that Customer actually paid to ISES for the
period that such Product was not usable.
(c) Limitation. ISES shall have no indemnity obligation to Customer under this
Section if the infringement claim results from (i) a correction or modification
of the Product not provided by ISES, such as a Customer Modification, (ii) the
failure to promptly install an Update provided to Customer by ISES or (iii) the
combination of the Product with other items not provided by ISES, unless the
infringement would have occurred from use of the Product alone.
9. NO CONSEQUENTIAL DAMAGES
UNDER NO CIRCUMSTANCES WILL ISES OR ITS LICENSORS BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST
PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CUSTOMER'S CLAIMS OR
THOSE OF ITS PASSENGERS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA,
GOODWILL, USE OF MONEY OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR
AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS OR
EQUIPMENT), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY,
BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR
OTHERWISE. IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH ISES OR ITS LICENSORS
MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY
CUSTOMER FOR THE SPECIFIC PRODUCT THAT DIRECTLY CAUSED THE DAMAGE. THIS SECTION
WILL NOT APPLY ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY
REQUIRES LIABILITY, DESPITE THE FOREGOING EXCLUSION AND LIMITATION.
10. OWNERSHIP
All trademarks, service marks, patents, copyrights, trade secrets and other
proprietary rights in or related to the Products are and will remain the
exclusive property of ISES or its licensors, whether or not specifically
recognized or perfected under applicable law. Customer will not take any action
that jeopardizes ISES's or its licensor's proprietary rights or acquire any
right in the Products, except the limited use rights specified in Section 3.
ISES or its licensor will own all rights in any copy, translation, modification,
adaptation or derivation of the Products, including any Customer Modification or
other improvement or development of the Products. Customer will obtain, at
ISES's reasonable request and expense, the execution of any instrument that may
be appropriate to assign these
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rights to ISES or its designee or perfect these rights in ISES's or its
licensor's name.
11. CONFIDENTIALITY
(a) Confidentiality. Customer acknowledges that the Products incorporate
confidential and proprietary information developed or acquired by or licensed to
ISES. Customer will take all reasonable precautions necessary to safeguard the
confidentiality of the Products, including (i) those taken by Customer to
protect Customer's own confidential information and (ii) those which ISES or its
authorized representative may reasonably request from time to time. Customer
will not allow the removal or defacement of any confidentiality or proprietary
notice placed on the Products. The placement of copyright notices on these items
will not constitute publication or otherwise impair their confidential nature.
(b) Disclosure. Customer will not disclose, in whole or in part, any item of the
Products that has been designated as confidential to any individual, entity or
other person, except (i) to those of Customer's employees or consultants who (x)
require access for Customer's authorized use of the Products and (y) agree to
comply with the use and non-disclosure restrictions applicable to the Products
under this Agreement or (ii) pursuant to the order of a court of competent
jurisdiction or of any regulatory body to whose authority Customer is required
to submit; provided that Customer will have first given prior notice of such
order to ISES, if practicable, and afforded ISES the opportunity to apply for a
protective order or to otherwise limit the disclosure. Customer shall cause any
employee or consultant who has access to the source code of the Software to
expressly acknowledge its confidential and proprietary nature. Customer
acknowledges that any unauthorized use or disclosure of the Products may cause
irreparable damage to ISES, its licensors and ISES. If an unauthorized use or
disclosure occurs, Customer will immediately notify ISES and take, at Customer's
expense, all steps which may be available to recover the Products and to prevent
their subsequent unauthorized use or dissemination.
(c) Limitation. Customer will have no confidentiality obligation with respect to
any portion of the Products that (i) customer knew or independently developed
before receiving the products under this Agreement, (ii) Customer lawfully
obtained from a third party under no confidentiality obligation or (iii) became
available to the public other than as a result of any act or omission by
Customer or any of customer's employees or consultants.
12. TERM AND TERMINATION
(a) Term. This agreement will become effective as of March 31, 1999 and shall
continue in effect for 36 months of commencement of the Rental Term unless (i)
Customer provides ISES with 90 days written notice of its intention to
terminate, such notice to expire only on the first or any subsequent anniversary
of the effective date or unless (ii) terminated pursuant to Section 12(b) or
(c).
(b) Termination for Convenience. Customer may terminate this Agreement, without
right to refund, by notifying ISES of such termination.
(c) Termination for Cause. Either party may terminate this Agreement,
immediately upon notice to the other party and without judicial or
administrative resolution, if the other party or any of its employees or agents
breach any term or condition hereof and such breach is not cured within 60 days
after receipt of notice specifying the breach and demanding its cure; provided,
however, that a cure period shall be applicable to a breach of Sections 10 or 11
only if such breach is, in the non-breaching party's opinion, reasonably capable
of cure. This Agreement will terminate automatically if either party becomes
insolvent or enters into bankruptcy, suspension of payments, moratorium,
reorganization or any other proceeding that relates to insolvency or protection
of creditors' rights granted to Customer hereunder will cease, and Customer will
promptly (i) purge the Software and Enhancements from the Designated Hardware
and all of Customer's other computer systems, storage media and other files,
(ii) destroy the Products and all copies thereof and (iii) deliver to ISES a
letter signed by an officer of Customer which certifies that Customer has
complied with these termination obligations. Upon termination of this Agreement
by Customer pursuant to Section 12(C), ISES shall refund to Customer the
pro-rated amount of the then-paid license fee or maintenance fee for the
remaining term of the Agreement. The
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provisions of Sections 7, 8, 9, 10 and 11 will survive the termination of this
Agreement.
13. INSPECTION
During the term of this Agreement, ISES or its representative may, upon
reasonable prior notice to Customer, inspect the files, computer processors,
equipment, aircraft and facilities of Customer during normal working hours to
verify Customer's compliance with this Agreement. While conducting such
inspection, ISES or its representative will be entitled to copy any item that
Customer may possess in violation of this Agreement.
14. ASSIGNMENT
Customer shall not assign, delegate or otherwise transfer this Agreement or any
of its rights or obligations hereunder without Isis's prior approval.
15. EXPORT CONTROLS
Customer acknowledges that the Products and all related technical information,
documents and materials are subject to export controls under the U.S. Export
Administration Regulations. Customer will (i) comply strictly with all legal
requirements established under these controls, (ii) cooperate fully with ISES in
any official or unofficial audit or inspection that relates to these controls
and (iii) not export, re-export, divert or transfer, directly or indirectly, any
such item or direct products thereof to Cuba, Iran, Iraq, Libya, North Korea,
Sudan, Syria or any country that is embargoed by Executive order, unless
Customer has obtained the prior written authorization of ISES and the U.S.
Commerce Department. Upon notice to Customer, ISES may modify this list to
conform to changes in the U.S. Export Administration Regulations.
16. MISCELLANEOUS
All notices or approvals required or permitted under this Agreement must be
given in writing. Any waiver or modification of this Agreement will not be
effective unless executed in writing and signed by the parties. This Agreement
will bind the parties' successors-in-interest. This Agreement will be governed
by and interpreted in accordance with the laws of the State of New York, U.S.A.
The parties hereby exclude application of the U.N. Convention on Contracts for
the International Sales of Goods from this Agreement and any transaction between
them related thereto. If any provision of this Agreement is held to be
unenforceable, in whole or in part, such holding will not affect the validity of
the other provisions of this Agreement, unless either party in good xxxxx xxxxx
the unenforceable provision to be essential, in which case such party may
terminate this Agreement effective immediately upon notice other party. Any
press release or other public statement regarding this Agreement shall be
mutually agreed to between the parties. Either party may use the other's name in
its advertising collateral, subject to the prior approval of the other party,
which shall not be unreasonably withheld or delayed. This Agreement constitutes
the complete and entire statement of all conditions and representations of the
agreement between ISES and Customer with respect to its subject matter and
supersedes all prior writings or understandings.
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THIS AGREEMENT IS NOT EFFECTIVE UNTIL SIGNED ON BEHALF OF BOTH PARTIES.
ISES Corporation Airtours International Airways, Limited
0000 00xx Xxxxxx, Xxxxx X Xxxxxxx Xxx Xxxxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000 000 Xxxxxxxx Xxxx
Tel: (000) 000-0000 Xxxxxxxxxx, X000XX UK
Fax: (000) 000-0000 Tel: 00 000 000 0000
Fax: 00 000 000 0000
("ISES") ("Customer")
By: /S/ By: /S/
----------------------- -------------------------------
(Signature) (Signature)
Name: Xxxx Xxxxxxx Xxxxxxx Name: Xxxxx Xxxxxx
Title: President Title: In-flight Product Director
Date: June 21, 1999 Date: 22nd April 1999
PRODUCT SCHEDULE
Software: ISES Games package includes the following 10 games:
1. Solitaire
2. Backgammon
3. Matchboxes
4. Hangman
5. Trivia
6. Mr. Sneaky
7. Chinese Solitaire
8. Iron Curtain
9. Gold digger
10. Noughts and Crosses
Computer Platform: Rockwell Xxxxxxx TES Core D
Designated Hardware (S/N): Rockwell Xxxxxxx TES
Designated Aircraft: Airbus A330
Maximum Number of Aircraft: 4
License Fee: [Confidential treatment has been requested for this portion of this
Exhibit]
Installation Fee for additional ISES Games to be added/removed from initial ISES
Game package: [Confidential treatment has been requested for this portion of
this Exhibit]
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Required Maintenance Fee: [Confidential treatment has been requested for this
portion of this Exhibit]
Payment Due By: Net 30 Days
Game Availability: Air Tours has access to all ISES developed Games
approved for Rockwell Xxxxxxx TES that are publicly available. The bundling
of additional games for Airtours is subject to the availability of the
Airtours rack at Rockwell Xxxxxxx. It is the responsibility of Airtours to
bear any additional costs that Rockwell Xxxxxxx may require for a new
software bundle and its integration. ISES will negotiate in good faith with
Airtours for non-ISES developed games.
Rental Term: The rental term of this agreement will begin on the earlier of
180 days from the initial installation of the Product at Rockwell
Xxxxxxx on the Airtours rack (3/8/99 installation) or upon delivery of
the first aircraft. Airtours will provide written notice to ISES of
the aircraft delivery date within 30 days of the actual delivery.
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